### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs A pril 1, 200 3

STATE OF TENN ESSEE v. CALVIN SCOTT
Appeal from the Criminal Court for Shelby County No. 99-03993, 94, 95, 96, 97 J. C. McLin, Judge

No. W2002-01324-CCA-R3-CD - Filed July 8, 2003

The Appellant, Calvin Scott, was found guilty by a Shelby County

jury of ag gravated

ro bb er y, two counts o f especially a

ggravated robber

y, and two counts of fir st degree murder. The trial cour t sentenced Scott to an effective sentence of life plus t wenty -two y

ears. I n this appe al as of r

ight, Scott raises the following issues for our review: (1) whethe r the State asserted suffi ci ent race-neutral explanations to supportits exercise of peremptory challenges against four A frican-American

jurors; and (2) wh ether t he tri al cou rt, af ter con cludi ng that the S tate’ s exe rcise of a per empto ry challen ge was improper, should have dismissed the entire panel rather than resea ting the juror. We conclude that the State 's use o f its pere mptory chall eng es was proper, and the trial court did not err by reseating the challenge d juror. Accordingly , the judgment of the trial court is affirmed.

Tenn. R. App.P. 3; Judg ment of t he Crim inal Court

Affirme d.

D AV ID G. H AYES , J., delivered the opinion of the court, in which GARY R. W ADE , P.J., and T HOMAS T. W OODA LL , J., joined.

Robert Wilson Jones, S helb y County Public De fender ; W. Mark War d, Assista nt Shelby County Public Defender , Memphis, Tenness ee, for the Appellant, Cal vin Scott.

Paul G. Summers, Attorney Gene ral and Reporter; Mich ael Moore, Solic itor G ener al; Re nee W

. Turner, Assistant

Attorney Genera l; William L . Gibbons, District Attorney Ge ne ra l; an d G le n B ai ty, Assistant District Attorney Gene ral, for the Appellee, State of Tennessee.

OPINION

Factua l Background

Alth ough the evidence supporting the Appellant's conviction is not challenged on appea l, the circumstances leading to t he convict ions are briefly recounted as follows. On January 22, 1999, shortly after 3:00 p .m., the Appellan t, then ei ghteen

ye ars old, a

nd James Kne

eland, a rmed with1 We note that t he Appellant

also cha llen ges th e removal of one Caucasi an fem a le, Noella Pazara. The prosec utor

att empted to remove Pazara for caus e; h owever , t his reque st was de nied. Ulti matel y, the prose cutor used the State’s first

peremptory chall enge to r emove Pazara fr om the veni re. He explaine d that she was excused “bec ause of her equ ivocal answer s about whe ther or not she could accept

the l ife with out parol e.” While Batson is not l imited to the excl usi on of historically oppressed minorities, it does not appear that t he Appellant argued that Pazara w as chal lenged solely on ac cou nt of her race. Acc ord ingly, Batson doe s not ap ply to the exc lusion o f Paz ara fro m the v enire. E ven if Batson did apply to t he exc lus ion of Pazara, the prose cutor ’s expla nati on was suf fi cien tl y ra ce-n eutr al t o wit hst and a Batson challen ge.
-2- pistols , entered Progressive W heels, a wholesa le custom w

heel and tire business loca

ted in Memp

his. Brian Petty, the ma

nager of the business, John Paul Young, an employ ee, and Allan Bozarth were inside the busine ss. The men were ordered to lay down on the floor, and their feet and hands were bound with duct t

ape. The robbersdemande d to know where the mo n ey was loca

ted, and the Appellant asked about a safe. The victims informed the robbers tha t there wa s money

in a desk drawer, but there was no safe. The Appellant took “three , four hundred dollars ” out of Pe tty ’s pocket. Then, one of the robbers shot Bozart and Young in the hea d execution-style, and both men died as a result of their wounds. Petty was left unharmed and identified the Appel lant at trial. Furthermore, after the Appellant was developed as a suspect, he voluntarily ga

ve a statement to the police, in which he admitted that he shot the two victims and that he took their wallets an d m on ey. According to the App ellant’sstatemen t, he committed the acts under duress from a drug dealer, who promised to pay the Appe llant a large sum of money and spare his life.

ANALYSIS
During voir dire of the prospective jurors, the State exercised five per emptory challeng es agains tfour African-American fe males and one African-American ma le. 1 While it is unclear

from the record, the State and the Appel lant a gree t hat, during the f

irst round of chall enges , the State struckJurors Noella Pazara and Alma Brown. Jurors Teresa Hy man, Lester Harmon, a

nd Tracy Pric e were chal lenged by the State during its second submission of peremptory challenges and, during the third round of challenges, the State removed Juror Fr anc ine Sle dge. All five AfricanAmericans were members of the venire during t he first round of challenges. Defe nse counsel objectedto the jurors’ removal as beinga possible violation of Batson v. Kentucky , 476 U.S. 79, 89, 106 S. Ct. 1712, 1719 (1986) (holding that perempt orychallenges may not be exercised in a discriminatory

manner). The trialcourt concluded that the State's reasons in exercising peremptory challenges against four of the African-A mericans were sufficiently race-neutral

to permit exclusion. However, the trial

court concluded t

hat the ba sis for challenging Tracy Price was not suff icient and ordered her reinstated

to the venire. The Appellant, an African-Ame rican, disputes the trial court 's ruling, arguin g that:
(1) Challenging the jurors on back strikes seemed to raise a specter that the rea sons were not legitimate, but racially motivated;-3-

(2) The trial judge failed to analy ze the Batson challenge under the thre e-step p

rocess required and failed to follow the mandate of the Tennessee Sup reme C ourt by articulating specific findings of fa ct as to each step; and
(3) By rejecti ng the pr osecutor’s race neutral rea son for excluding the one prospective black juror, the trial judge found that the pro se cution ha d exercis ed its peremptory

challen ges in a

n intention all y d iscriminatory manner . As such, the proper remedy would h ave bee

n to dismiss t

he venir e and sel ect a new jury

from a panel not previously assoc iated with the case.

The Unite d Stat es Supreme Court has consistently recognized that racially -based juror exclusions affec t and injur e the integrity

of the jus t ice sy stem. See Wood son v. Por

ter Brown Limestone Co. , 916 S.W.2d 896, 902 (Tenn. 1996) (citation omitted). Accordingly , in Batson , 476 U.S. at 89, 106

S. Ct. at 171 9, the Cour t held tha t the equa

l protec tion clau se of the Fourtee nth Am endment

prevents a prosecutor from using pere mptory strikes to challeng e potential jurors "solel y on account of their race."

Batson provides a three step process for the evaluation of racial

discrimination claims in jury selection. First, the defendant must make a prima faci e showing that the prosecutor has exercised peremptory

challenges on the basis of race. Purkett v. E lem , 514 U.S. 765, 767, 115 S. Ct. 1769, 1770 (1995); Batson , 476 U.S. at 96-98, 106 S. Ct. at 1723-24. If the defenda nt satisfies this initial burden, the burden then shifts to the prosecutor to articulate a race- neutral explanation for excluding the venire m

ember in question. Purkett , 514 U.S. at 767, 115 S. Ct. at 1770; Batson , 476 U.S. at 97, 106 S. Ct. at 1723. Third, the trial court must determine whether the defendant has met

his burden of proving purposeful discrimination. Hernande z v. New York , 500 U.S. 352, 359, 111 S. Ct. 1859, 1866 (1993); Batson , 476 U.S. at 98, 106 S. Ct. at 172

4. In making its determ

ination of whether use of a peremptory

challenge was discriminatory, the trial cour tmust articulate specific reasons for eac h of its factual findings. Woodson , 916 S.W.2d at 906. The trial court's findings are imper ative for rarely will a trial record alone provide a legit imat e basi s from which to su bsti tute a n appe llat e court 's opinion for that of the trial cou rt. Thus, on appeal, the trial court's finding that the State e xcused a venire member for race-neutral re a sons will no t be reversed unless it is clearly erroneous. Id. (citation omitted).

In the present case, th e trial c ourt foun d that:

I think there has been – a ccording to what’sbeen sta ted, its shows a neutral basis fo r t he ch al le ng es . A nd I do n’ t s ho w t ha t t he re ’s be en an y purp oseful discrimination, any showing of that – a prima facie show ing of that, in accordance with the Batson case.

And there’s been

reasons for each

of the individuals being excluded. We’ve stated those reasons. Those reasons have been state d on the record. I think they ’re legitima te reas ons.-4- So, my findings will be that there has not been a pr

ima facie sho wing of discrimination. I’m

not going to exclude, number six, Ms. Tracy Price. I’ll call her back to the jury.

From this portio n of the r

ecord, i t could be concluded that the

tr ial c ourt found that the Appellant had n ot made a prima faci e showing of discrimination in accordance with the first prong of the Batson analysis. However, the court would not have required the State's rac e neutral explanation for the challenges had no prima faci e showing been made. Id. at 905. Thus, we assume that the court implicitly found that the Appellant hadsatisfied the first prong of Batson and then p roceed ed with
an analysis of the sec ond and third prongs of Batson . Moreover, altho ugh th e tria l cour t's fi ndin gs are relatively

sparse, we find the record sufficient f rom which to undertake our review.

“In reviewing the prosecutor' s explanat ions, we acknowledg e that ‘ma ny o f the judg

ments made by c ounsel in p icking a jury are pur ely intuitive and based upon inart iculable fact ors.’" State

v. Carroll , 34 S.W.3d 317, 320 (Tenn. Crim. App.), perm. to appeal denied , (Tenn. 2000) (quoting United States v. Bentley -Smith , 2 F.3d 1368, 1374 (5 th Ci r. 19 93 )) . A cc or di ng ly, while subjective
con siderations may

not be susc eptible to

objectiv e rebutt

al or ver ificatio n, they

are per mit ted becaus e of the inherent nature of peremptory challenges, with the understand ing that ul timate Batson findi ngs will largely

turn on the evaluation of the credibility of counsel' s explanations. Id. (citi ng BentleySmith , 2 F.3d at 1374). Notwithstanding, neutral explanations that are based on subjec tiv e
assessme nts, such as the juror's demeanor, must be care fully scrutinized. Id. (citi ng United States

v. Jenkins , 52 F.3d 743, 746 (8 th C ir . 1995); United Sta tes v. She rrills , 929 F.2d 393, 395 (8 th Cir. 1991)). At this step, the crucial inquiry is the fa cial validity of

the prosecu tor's explanation. H ernandez , 500 U.S. at 360, 111 S. Ct. at 1866. Unless a discriminatory intent is inher ent in th e prose cutor 's explanation, the reason offered will be deemed race-neutral. Id

. Indeed, what Batson
means by a

“legit ima te rea son” is not a reason that makes sense, but a reason that does not deny equal protection. Purkett , 514 U.S. at 769, 115 S. Ct. at 1771 (citations omitted).

With these considerations, we conclude that the basi s for the State's use of its peremptory challenges against the four African-Ame rican jurors, ultimately e x cluded from the venire, was sufficie ntly race- neutral

to dispel a

ny indicia of

purposef ul discrim

ination. T

he State provided the court wit h severa

l race- neutral

explanatio ns for the

exercise of the pe remptory challen ges. With regard to Alma Brown, she was challenge d because “[h]er nephew was convicted of murder twelve yearsago.” The reason given for challenging Ter esa Hyman w as “her husband was killed by the police – her ex-husband was killed by the poli ce twelve y ears ago.” L ester Harmon was excused because he “indicated

that he knew something, or he heard something in the media about the case. He couldn’t remember exactly what it was. The State [was] concerned about whether or not he [knew] something, wh ether th at information may [have bee n] used against the State.” Regarding FrancineSledge, the State explained that she was removed from the venire because “[s]he’s worked in rehabilitation, drug and alcohol situations, with teenagers. And I ’m concerned about that there may be sy mpathy for Mr. Sc ott, beca

use of his age.” The State articulated va lid, race-neutral reasons for each of the jurors that it challenged. The trial court then found that the r easons w ere leg

itimate-5-

and non-discriminatory. We find that the trial c ourt’s decision was not clearly erroneous. This issue is without merit.

The Appellant also contends the reseating of Juror Price was imprope r, in that the trial court should have dismissed the entire panel, a nd a new j ury

should hav e been se

lected f rom a panel not previous ly

associated with the case. Although leaving the task of pr

escribing the ap

propria te remedy for the unconstitutional exercise of a peremptory strike to the states, the Supreme Court identified two possible remedies: reseating persons improperly struck and discharging

th e entire venire. Batson , 476 U.S. at 99 n. 24, 106 S. Ct. at 1725 n. 24. In Woodson , 916 S.W .2d at 906-07, our supreme court de termined that the se

lection o f an appr

opriate remedy is best le ft to the discretion of the trial court. For

gu idance the court proposed two alternative reme dies, i.e., the court may exclude the entire venire and begin selection with a new pa nel or the juror should be reseated. Id

. at 907; see also State v. James E. Hatha way , No. 02C01-9702-CR-00082 (Tenn. Crim. App. at Jackson, Dec. 30, 1997) (citi ng Jefferso n v. State , 595 So. 2d 38, 41 (Fla. 19 92); Commonwealth v. Fruchtman , 633 N.E.2d 369, 373 (Mass.), cert. denied , 513 U.S. 9 51, 115 S. Ct. 366 (1994 ); Jones

v. State , 683 A.2d 5 20, 529 (M d. 1996); Ezell v. S tate , 909 P.2d 68, 72 (Okla. Crim. App . 1995) ; State ex rel. Cu rry v. Bowman , 885 S.W.2d 421, 425 (Tex. Crim. App.), cert. denied , 513 U.S. 866, 115 S. Ct. 184 (1994); Coleman v. Hogan , 486 S.E.2d 548, 550 (Va. 1997)). In the present case , the trial court chose the latter method of recourse. We find

this method of reparation quite appropriate. The Batson inquiry

was conducted outside the presence of Juror Price and the other potential jurors and without the

ir knowledge as to the nature of the proceedings. Furthermore, r eseating her allowed
an African-American to remain on the jury . Accordingly , we find no error by the court' s reseating of Juror Price.

CONCLUSION

For t he foregoing rea sons, we affirm the judgments of conviction for the offe n ses o f aggravated

robb ery, two c ounts of especially a ggravated robber

y, and two counts of fir st degree murder.

___________________________________ DAVID G. HAYES, JUDGE