Supreme Court of Louisiana

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #005

FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 30th day of January, 2018, are as follows:

PER CURIAM:

2016-K -1836 STATE OF LOUISIANA v. LARRY BROUSSARD, JR. AKA LARRY JAMES

Snyder and are

BROUSSARD, JR. AKA LARRY J. BROUSSARD, JR. (Parish of Vermilion) 

The state’s claim that a reviewing court should truncate the 

analysis of a Batson claim because a trial court erred in finding 

the defense carried its burden of production under Batson’s first 

step is contrary to the jurisprudence. Furthermore, it is 

inconsistent with the purpose of the Batson framework, which “is 

designed to produce actual answers to suspicions and inferences 

that discrimination may have infected the selection process.” 

Johnson, 545 U.S. at 172, 125 S.Ct. at 2418. The state’s 

remaining argument regarding the ultimate outcome of the Batson 

inquiry runs afoul of Snyder v. Louisiana, 522 U.S. 472, 128 

S.Ct. 1203, 170 L.Ed.2d 175 (2008), which is dispositive here. A

reviewing court should not presume that the trial judge credited

a demeanor-based reason from a trial court’s silence and the

particular circumstances in here strikingly 

similar. While we are mindful that a trial court’s determination 

as to purposeful discrimination rests largely on credibility 

evaluations and is therefore entitled to great deference, Batson, 

476 U.S. at 98 n.21, 106 S.Ct. at 1724, we note that the trial 

court rejected the state’s first proffered reason and we cannot 

presume the trial court accepted the state’s demeanor-based 

proffered reason. Therefore, we find that the court of appeal 

correctly applied Snyder to vacate the conviction and sentence 

and remand to the trial court for further proceedings. The court 

of appeal’s decision is affirmed.

AFFIRMED. 

CLARK, J., dissents for the reasons assigned by Justice Genovese. 

HUGHES, J., dissents for the reasons assigned by Genovese, J. 

GENOVESE, J., dissents and assigns reasons.
01/30/18

SUPREME COURT OF LOUISIANA

No. 2016-K-1836

STATE OF LOUISIANA

VERSUS

LARRY BROUSSARD, JR.

AKA LARRY JAMES BROUSSARD, JR.

AKA LARRY J. BROUSSARD, JR.

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,

THIRD CIRCUIT, PARISH OF VERMILION

PER CURIAM

Defendant Larry Broussard, Jr. was convicted of aggravated flight from an 

officer. During voir dire, defense counsel challenged, pursuant to Batson v. 

Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, the state’s use of a 

backstrike against an African-American female prospective juror from the first 

panel. Specifically, defense counsel noted that the state had not previously 

challenged this prospective juror for cause and stated without further elaboration 

that “it seems like she’s one of two potential black jurors.”

In response to the trial court’s request for a race-neutral reason for the 

backstrike, the state ultimately gave two. The state first claimed—based on the 

prospective juror’s occupation as a housekeeper and her (otherwise unspecified) 

reactions to the questions asked—that she was not intelligent enough to be a juror. 

After the trial court resoundingly rejected the state’s characterization of the 

prospective juror’s intelligence (“there’s been absolutely nothing presented to the 

Court to suggest that she’s unintelligent in any way or has any inability to follow 
2

the law”), the state then claimed she was inattentive during the questioning of the 

second panel. After hearing this second reason, the trial court inquired as to how 

many challenges the state had exercised against prospective jurors who were 

African Americans. After hearing that the state had struck two of three AfricanAmerican prospective jurors (thereby accepting one), the trial court denied the 

Batson challenge without explanation.

In a split-panel decision, the court of appeal reversed, with the majority 

finding a Batson violation in the state’s exclusion of the backstruck prospective 

juror, and thereby deeming a second assignment of error moot. State v. Broussard, 

16-0230 (La. App. 3 Cir. 9/28/16), 201 So.3d 400. The majority rejected the state’s 

argument that defendant failed to carry his burden of establishing a prima facie 

case of purposeful discrimination in Batson’s first step. The majority noted that the 

trial court demanded a race-neutral reason despite the state’s protest that the 

defense had not made a prima facie showing, and therefore the majority found 

“that the trial court concluded a prima facie case existed when it ordered the State 

to respond to the Batson challenge and that the burden then shifted to the State to 

establish a race-neutral reason for the back strike of [the prospective juror].” 

Broussard, 16-0230, p. 9, 201 So.3d at 406.

The majority also found that “[i]t is not clear on what the trial court based its 

denial of the Batson challenge.” Broussard, 16-0230, p. 10, 201 So.3d at 406. The 

majority then noted that the trial court rejected the state’s first proffered reason, i.e. 

that the prospective juror was unintelligent, and the majority further found there 

was nothing in the record supporting the state’s assessment of the prospective 

juror’s intelligence. Citing Snyder v. Louisiana, 552 U.S. 472, 128 S.Ct. 1203, 170 

L.Ed.2d 175 (2010), the majority also declined to presume the trial court credited 

the state’s demeanor-based proffered reason, i.e. that the prospective juror was 
3

inattentive, and the majority found no indication of inattentiveness could be 

discerned from the transcript of voir dire.1 Therefore, the court of appeal vacated 

the conviction and sentence and remanded to the trial court for further proceedings.

The state contends that the court of appeal erred in failing to recognize that 

defendant was never required to make a prima facie showing of purposeful 

discrimination in Batson’s first step. The state also contends that, even if a prima 

facie showing was made, both of its reasons for backstriking the prospective juror, 

i.e. her lack of intelligence and attention, were racially neutral, and the trial court 

never found that they were pretexts for purposeful discrimination. Therefore, the 

state claims that the trial court did not abuse its discretion in denying the Batson

challenge. We disagree.

In Johnson v. California, 545 U.S. 162, 170, 125 S.Ct. 2410, 2417, 162 

L.Ed.2d 129 (2005), the Supreme Court emphasized that:

We did not intend the first step to be so onerous that a defendant 

would have to persuade the judge-on the basis of all the facts, some of 

which are impossible for the defendant to know with certainty-that the 

challenge was more likely than not the product of purposeful 

discrimination. Instead, a defendant satisfies the requirements of 

Batson’s first step by producing evidence sufficient to permit the trial 

judge to draw an inference that discrimination has occurred.

In addition, the Supreme Court has found, “Once a prosecutor has offered a raceneutral explanation for the peremptory challenges and the trial court has ruled on 

the ultimate question of intentional discrimination, the preliminary issue of 

whether the defendant had made a prima facie showing becomes moot.” 

Hernandez v. New York, 500 U.S. 352, 359, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 

 1 Furthermore, it should be noted that our independent review of the record shows that

not only is there no indication that the prospective juror was inattentive, there is some indication 

the prospective juror was in fact attentive. The state accepted the prospective juror after 

questioning her in the first panel. Evidently, the state saw no inattentiveness on her part during 

voir dire of the first panel. Although she was not part of the second panel, the state nonetheless 

directed a question at the prospective juror at issue here during voir dire of the second panel. She 

answered fully. She did not ask to have the question repeated or otherwise give any indication 

she had not been paying attention.
4

395 (1991).

The rule of Hernandez has not been limited in the Fifth Circuit to those 

situations in which the government volunteers a race-neutral reason, as contrasted 

with those in which the trial court demands that the government provide one. In 

each scenario, the preliminary issue of whether defendant had made a prima facie 

showing is moot. See, e.g., United States v. Williams, 264 F.3d 561, 571 (5th Cir. 

2001) (“The district court then asked the Government to provide a race-neutral 

justification for striking the prospective jurors. Where, as here, the prosecutor 

tenders a race-neutral explanation for his peremptory strikes, the question of 

Defendant’s prima facie case is rendered moot and our review is limited to the 

second and third steps of the Batson analysis.”) (citing United States v. Broussard, 

987 F.2d 215, 220 n.4 (5th Cir. 1993) (declining to decide whether defendant had 

established prima facie case of racial discrimination, where district court required 

explanation for peremptory strikes)); see also United States v. Forbes, 816 F.2d 

1006, 1010 (5th Cir. 1987) (“[A]ppellate review should not become bogged down 

on the question of whether the defendant made a prima facie showing in cases 

where the district court has required an explanation.”).

Likewise, this court has found that “[a] trial judge may . . . effectively 

collapse the first two stages of the Batson procedure, whether or not the defendant 

established a prima facie case of purposeful discrimination, and may then perform 

the critical third step of weighing the defendant’s proof and the prosecutor’s raceneutral reasons to determine discriminatory intent.” State v. Jacobs, 99-0991, p. 8 

(La. 5/15/01), 803 So.2d 933, 941. This court has also stated:

If the trial judge had not found there was a prima facie case of 

purposeful discrimination, there was no necessity to call for 

explanation of the challenges. Of course, the trial judge may have 

believed there was not a prima facie showing, but still required an 

explanation as a precaution in the event the appellate court determined 
5

there was a prima facie showing.

State v. Collier, 553 So.2d 815, 819 n.5 (La. 1989). 

The state’s claim that a reviewing court should truncate the analysis of a 

Batson claim because a trial court erred in finding the defense carried its burden of 

production under Batson’s first step is contrary to the jurisprudence above. 

Furthermore, it is inconsistent with the purpose of the Batson framework, which 

“is designed to produce actual answers to suspicions and inferences that 

discrimination may have infected the selection process.” Johnson, 545 U.S. at 172, 

125 S.Ct. at 2418.

The state’s remaining argument regarding the ultimate outcome of the 

Batson inquiry runs afoul of Snyder v. Louisiana, 522 U.S. 472, 128 S.Ct. 1203, 

170 L.Ed.2d 175 (2008), which is dispositive here. In Snyder, the Supreme Court 

stated:

On appeal, a trial court’s ruling on the issue of discriminatory intent 

must be sustained unless it is clearly erroneous. See Hernandez v. New 

York, 500 U.S. 352, 369, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) 

(plurality opinion); id., at 372, 111 S.Ct. 1859 (O’Connor, J., joined 

by Scalia, J., concurring in judgment). The trial court has a pivotal 

role in evaluating Batson claims. Step three of the Batson inquiry 

involves an evaluation of the prosecutor’s credibility, see 476 U.S., at 

98, n. 21, 106 S.Ct. 1712, and “the best evidence [of discriminatory 

intent] often will be the demeanor of the attorney who exercises the 

challenge,” Hernandez, 500 U.S., at 365, 111 S.Ct. 1859 (plurality 

opinion). In addition, race-neutral reasons for peremptory challenges 

often invoke a juror’s demeanor (e.g., nervousness, inattention), 

making the trial court’s firsthand observations of even greater 

importance. In this situation, the trial court must evaluate not only 

whether the prosecutor’s demeanor belies a discriminatory intent, but 

also whether the juror’s demeanor can credibly be said to have 

exhibited the basis for the strike attributed to the juror by the 

prosecutor. We have recognized that these determinations of

credibility and demeanor lie “‘peculiarly within a trial judge’s 

province,’” ibid. (quoting Wainwright v. Witt, 469 U.S. 412, 428, 105 

S.Ct. 844, 83 L.Ed.2d 841 (1985)), and we have stated that “in the 

absence of exceptional circumstances, we would defer to [the trial 

court],” 500 U.S., at 366, 111 S.Ct. 1859 (plurality opinion).

Snyder, 552 U.S. at 477, 128 S.Ct. at 1207–08. In Snyder, as here, the prosecutor 
6

offered two race-neutral reasons, one of which was based on the prospective 

juror’s demeanor. Regarding the demeanor-based reason, the trial court in Snyder, 

just as the trial court here,2 did not make an explicit determination. The Snyder

court found:

With respect to the first reason, the Louisiana Supreme Court was 

correct that “nervousness cannot be shown from a cold transcript, 

which is why ... the [trial] judge’s evaluation must be given much 

deference.” 942 So.2d, at 496. As noted above, deference is especially 

appropriate where a trial judge has made a finding that an attorney 

credibly relied on demeanor in exercising a strike. Here, however, the 

record does not show that the trial judge actually made a 

determination concerning Mr. Brooks’ demeanor. The trial judge was 

given two explanations for the strike. Rather than making a specific 

finding on the record concerning Mr. Brooks’ demeanor, the trial 

judge simply allowed the challenge without explanation. It is possible 

that the judge did not have any impression one way or the other 

concerning Mr. Brooks’ demeanor. Mr. Brooks was not challenged 

until the day after he was questioned, and by that time dozens of other 

jurors had been questioned. Thus, the trial judge may not have 

recalled Mr. Brooks’ demeanor. Or, the trial judge may have found it 

unnecessary to consider Mr. Brooks’ demeanor, instead basing his 

ruling completely on the second proffered justification for the strike.

For these reasons, we cannot presume that the trial judge credited the 

prosecutor’s assertion that Mr. Brooks was nervous.

Snyder, 552 U.S. at 479, 128 S.Ct. at 1209 (emphasis added).

The U.S. Supreme Court in Thaler v. Haynes, 559 U.S. 43, 48–49, 130 S.Ct. 

1171, 1174–75, 175 L.Ed.2d 1003 (2010), retreated somewhat from Snyder:

. . . [W]here the explanation for a peremptory challenge is based on a 

prospective juror’s demeanor, the judge should take into account, 

among other things, any observations of the juror that the judge was 

able to make during the voir dire. But Batson plainly did not go 

further and hold that a demeanor-based explanation must be rejected if 

the judge did not observe or cannot recall the juror’s demeanor.

Nor did we establish such a rule in Snyder. In that case, the judge who 

presided over the voir dire also ruled on the Batson objections, and 

thus we had no occasion to consider how Batson applies when 

different judges preside over these two stages of the jury selection 

process. Snyder, 552 U.S., at 475–478, 128 S.Ct. 1203. The part of 

Snyder on which the Court of Appeals relied concerned a very 

 2 The trial court in the present case, after being informed of the number of challenges the 

state had exercised against African Americans, simply stated, “All right. I’m going to deny the 

Batson challenge on that.” 
7

different problem. The prosecutor in that case asserted that he had 

exercised a peremptory challenge for two reasons, one of which was 

based on demeanor (i.e., that the juror had appeared to be nervous), 

and the trial judge overruled the Batson objection without explanation. 

552 U.S., at 478–479, 128 S.Ct. 1203. We concluded that the record 

refuted the explanation that was not based on demeanor and, in light 

of the particular circumstances of the case, we held that the 

peremptory challenge could not be sustained on the demeanor-based 

ground, which might not have figured in the trial judge’s unexplained 

ruling. Id., at 479–486, 128 S.Ct. 1203. Nothing in this analysis 

supports the blanket rule on which the decision below appears to rest.

The opinion in Snyder did note that when the explanation for a 

peremptory challenge “invoke[s] a juror’s demeanor,” the trial judge’s 

“firsthand observations” are of great importance. Id., at 477, 128 S.Ct. 

1203. And in explaining why we could not assume that the trial judge 

had credited the claim that the juror was nervous, we noted that, 

because the peremptory challenge was not exercised until some time 

after the juror was questioned, the trial judge might not have recalled 

the juror’s demeanor. Id., at 479, 128 S.Ct. 1203. These observations 

do not suggest that, in the absence of a personal recollection of the 

juror’s demeanor, the judge could not have accepted the prosecutor’s 

explanation. Indeed, Snyder quoted the observation in Hernandez v. 

New York, 500 U.S. 352, 365, 111 S.Ct. 1859, 114 L.Ed.2d 395 

(1991) (plurality opinion), that the best evidence of the intent of the 

attorney exercising a strike is often that attorney’s demeanor. See 552 

U.S., at 477, 128 S.Ct. 1203.

Haynes, 559 U.S. at 48–49, 130 S.Ct. at 1174–75 (footnote omitted).

However, Snyder’s guiding principle remains intact that a reviewing court 

should not presume that the trial judge credited a demeanor-based reason from a 

trial court’s silence, and the particular circumstances in Snyder and here are 

strikingly similar. While we are mindful that a trial court’s determination as to 

purposeful discrimination rests largely on credibility evaluations and is therefore 

entitled to great deference, Batson, 476 U.S. at 98 n.21, 106 S.Ct. at 1724, we note 

that the trial court rejected the state’s first proffered reason and we cannot presume 

the trial court accepted the state’s demeanor-based proffered reason.3 Therefore, 

 3 The state, in contrast, concedes in its brief that the trial court rejected the state’s 

characterization of the prospective juror as inattentive. See State’s brief, p. 10 (“In this instances, 

while the trial court did not agree with the prosecutor’s reasoning that the prosective juror ‘. . . 

does not appear to be as intelligent as I would like to see on a juror” or even that she was 

inattentive, . . . .”) (citations to the record omitted) (emphasis added). While that concession is 
8

we find that the court of appeal correctly applied Snyder to vacate the conviction 

and sentence and remand to the trial court for further proceedings. The court of 

appeal’s decision is affirmed.

AFFIRMED

 

not born out by the record, which shows the trial judge made no explicit determination regarding 

inattentiveness, the concession was nonetheless made by the state, which is bound by it, and it 

provides an additional reason to reject the state’s arguments.
01/30/18

SUPREME COURT OF LOUISIANA

NO. 2016-K-1836

STATE OF LOUISIANA

VERSUS

LARRY BROUSSARD, JR.

AKA LARRY JAMES BROUSSARD, JR.

AKA LARRY J. BROUSSARD. JR. 

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,

THIRD CIRCUIT, PARISH OF VERMILION 

CLARK, J., dissents for the reasons assigned by Justice Genovese.
1

01/30/18

SUPREME COURT OF LOUISIANA

No. 2016-K-1836

STATE OF LOUISIANA

VERSUS

LARRY BROUSSARD, JR.

AKA LARRY JAMES BROUSSARD, JR.

AKA LARRY J. BROUSSARD, JR.

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,

THIRD CIRCUIT, PARISH OF VERMILION

Hughes, J., dissents for the reasons assigned by Genovese, J.
01/30/18

SUPREME COURT OF LOUISIANA

NO. 2016-K-1836

STATE OF LOUISIANA

VERSUS

LARRY BROUSSARD, JR.

AKA LARRY JAMES BROUSSARD, JR.

AKA LARRY J. BOURSSARD, JR.

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,

THIRD CIRCUIT, PARISH OF VERMILION

GENOVESE, J., dissents and assigns reasons. 

I would reverse the ruling of the court of appeal and reinstate defendant’s 

conviction and sentence.

In my view, the court of appeal erred in its application of Batson v. Kentucky, 

106 S.Ct. 1712, 476 U.S. 79 (1986). Merging steps two and three of the Batson

analysis impermissively shifted the burden of proof to the proponent of the strike. 

See State v. Harris, 15-0995 (La. 10/19/16), 217 So.3d 255, 259-260 (citing Purkett 

v. Elem, 115 S.Ct. 1769, 1771, 514 U.S. 765, 768 (1995); State v. Nelson, 10-1724,

10-1726 (La. 3/13/12), 85 So.3d 21, 32). The State articulated race-neutral reasons

for the exercise of its peremptory challenge. It is not until the third step of Batson

that the persuasiveness of the race-neutral reason becomes relevant. Harris, 217 

So.3d at 259 (citing Purkett, 115 S.Ct. at 1771, 514 U.S. at 768; Nelson, 85 So.3d at 

32). The question is whether the defendant’s proof, when weighed against the 

State’s proffered “race-neutral” reasons, is strong enough to persuade the trier-offact that discriminatory intent is present. State v. Green, 94-0887 (La. 5/22/95), 655 

So.2d 272, 290. Defendant offered no facts or circumstances supporting an 

inference that the State exercised its strikes in a discriminatory manner. Of the three 
prospective black jurors, one was seated, the second was peremptorily challenged 

after the State’s challenge for cause was denied, and the third became the subject of 

defendant’s Batson challenge. Defendant’s proof, when weighed against the State’s 

race-neutral reasons, was not sufficient to prove the existence of purposeful 

discriminatory intent. Id.