Opinion
No. WD67361
February 26, 2008
Appeal from the Circuit Court of Jackson County, The Honorable Marco Roldan, Judge.
Hy-Vee, Inc., appeals the circuit court's judgment following a jury verdict awarding $212,400 to Doris Kesler-Ferguson on her claims for negligence and premises liability against Hy-Vee. The jury returned a verdict for Hy-Vee on Boyd Ferguson's claim. On appeal, Hy-Vee claims that the circuit court erred in sustaining the Fergusons' challenge under Batson v. Kentucky, 476 U.S. 79 (1986), of Hy-Vee's use of a peremptory strike to remove Venireperson No. 26 from the jury.
Hy-Vee used its three peremptory strikes to remove three African-Americans from the venire panel. In response to the Fergusons' Batson challenge, the circuit court asked Hy-Vee to provide a race-neutral explanation for the strikes. The circuit court found that Hy-Vee's reasons were race-neutral but Hy-Vee's reason for striking Venireperson No. 26 was not valid.
Hy-Vee's explanation for striking Venireperson No. 26 was that he knew Venireperson No. 31. He had dated Venireperson No. 31's friend. The circuit court rejected this explanation. It said:
And to that question, it was only people that responded in the positive to that question that they knew each other. The strike will be denied. There's no other — there's no neutral reason that I can see other than that they know each other. There was nothing negative out of that.
The circuit court impaneled Venireperson No. 26, and the jury rendered a verdict against Hy-Vee. Hy-Vee filed a motion for new trial on the basis that the circuit court erred in upholding the Fergusons' Batson challenge. The circuit court denied the motion. This appeal follows.
Before considering the merits of Hy-Vee's claims on appeal, we consider the Fergusons' request to dismiss Hy-Vee's brief on the ground that it did not comply with numerous technical requirements of briefing. For example, the Fergusons complain that, contrary to Rule 81.12, Hy-Vee provided only a partial transcript of voir dire. The portion of the transcript that Hy-Vee provided, however, allows us to resolve the issues presented, and, although the Fergusons point out other minor technical problems with Hy-Vee's brief, none of them prevent us from understanding Hy-Vee's points or resolving them. We, therefore, deny the Fergusons' motion to dismiss Hy-Vee's appeal. See Keller v. Keller, 224 S.W.3d 73, 79 (Mo.App. 2007) (appellate court should disregard a defective point when it impedes disposition of a case on its merits).
In its four points, Hy-Vee claims that the circuit court erred in sustaining the Fergusons' Batson challenge to Hy-Vee's peremptory strike of Venireperson No. 26 because (1) the circuit court applied the wrong standard that Hy-Vee was required to offer more than a race-neutral explanation for its strike; (2) it misapplied the standard by finding that Hy-Vee's strike was racially motivated; (3) it improperly placed the burden of persuasion on Hy-Vee by requiring Hy-Vee to justify its strike with a race neutral explanation; and (4) the Fergusons did not prove invidious discrimination. Because the four points are interrelated, we combine our discussion of them.
In reviewing a circuit court's decision concerning a Batson challenge, we accord the circuit court great deference because its findings of fact depend largely on its evaluation of credibility. Benedict v. Northern Pipeline Construction, 44 S.W.3d 410, 420 (Mo.App. 2001). We, therefore, will reverse the circuit court's decision only if it is clearly erroneous — that is, only when we are left with the definite and firm conviction that the decision results from a mistake. Id. If, however, the circuit court improperly sustains a Batson challenge so that the striking party's statutory right to peremptorily strike a juror is impaired, the striking party must also show prejudice. See Carter v. Tom's Truck Repair, Inc., 857 S.W.2d 172, 177-78 (Mo. banc 1993). The issue of whether or not the circuit court applied the correct legal standard is a question of law that we review de novo. State v. Davis, 210 S.W.3d 229, 233 (Mo.App. 2006).
Pursuant to Section 494.480.1, RSMo 2000, civil litigants are entitled to strike three jurors peremptorily. The United States Supreme Court has declared that the equal protection clause of the Fourteenth Amendment to the United States Constitution is violated when the courts permit a litigant to use a peremptory strike to remove a venireperson solely on the basis of gender, ethnic origin, or race. United States v. Martinez-Salazar, 528 U.S. 304, 315 (2000). In Edmonson v. Leesville Concrete Company, Inc., 500 U.S. 614, 631 (1991), the Supreme Court extended this prohibition to civil trials. Missouri has adopted a three-step process for such challenges, typically known as Batson challenges:
"First, the [complaining party] must raise a Batson challenge with regard to one or more specific venirepersons struck by [opposing counsel] and identify the cognizable racial group to which the venireperson or persons belong. The [circuit] court will then require the [striking party] to come forward with reasonably specific and clear race-neutral explanations for the strike. Assuming the [striking counsel] is able to articulate an acceptable reason for the strike, the [complaining party] will then need to show that [striking counsel]s proffered reasons for the strikes were merely pretextual and that the strikes were racially motivated."
Bowls v. Scarborough, 950 S.W.2d 691, 700 (Mo.App. 1997) (citation omitted).
After Hy-Vee used a peremptory strike to remove Venireperson No. 26, the Fergusons objected that the strike violated Batson because Venireperson No. 26 was African-American. Hy-Vee concedes that this was sufficient to satisfy the first step of the Batson process. Hence, in the second step, the burden shifted to Hy-Vee to give a race-neutral reason for its strike.
Hy-Vee's attorney explained why he used a peremptory strike to remove Venireperson No. 26: "[He] had an affiliation with No. 31. And, frankly, it was just kind of a toss up there." The attorney added, "[Venireperson No. 26 is] the fellow, Judge, that had a relationship with Juror 31. That made us a little uncomfortable." This explanation was race-neutral and was sufficient to satisfy Hy-Vee's burden in the second step. The circuit court, therefore, should have moved on to the third step in which the burden was on the Fergusons to show that Hy-Vee's explanation was merely pretextual and that race was the motivator for the strike. Id. The circuit court, however, did not move to step three. Instead, it terminated the proceeding at step two because it was not persuaded by Hy-Vee's explanation:
And to that question, it was only people that responded in the positive to that question that they knew each other. The strike will be denied. There's no other — there's no neutral reason that I can see other than that they know each other. There was nothing negative out of that.
This was not the proper standard. Whether or not the circuit court was persuaded by Hy-Vee's reason was irrelevant. Id. at 701. All that mattered was whether or not the explanation was race-neutral. Hy-Vee's reason was race neutral because invidious discriminatory intent was not inherent in its explanation. Id. "It is not until the third step that the persuasiveness of the justification becomes relevant — the step in which the [circuit] court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination." Purkett v. Elem, 514 U.S. 765, 768 (1995). By placing the burden on Hy-Vee in the second step, the circuit court "violate[d] the principle that the ultimate burden of persuasion regarding racial motivations rests with, and never shifts from, the opponent of the strike." Id. Therefore, the circuit court did not follow proper Batson procedure.
In determining the appropriate remedy for this error, we distinguish between a Batson error and a denial or impairment of the right to use a peremptory strike. A Batson error occurs when the circuit court actually removes a venireperson from the venire panel on the basis of race or gender. People v. Bell, 702 N.W.2d 128, 138 (Mich. 2005). Removing a venireperson on this basis is a constitutional error because it violates the venireperson's equal protection rights. Edmonson, 500 U.S. at 618. In contrast, "the right to peremptory [strikes] under Missouri law is founded on statute, and is not constitutional in nature." Rodgers v. Jackson County Orthopedics, Inc., 904 S.W.2d 385, 389 (Mo.App. 1995). "[T]he loss of a peremptory strike does not automatically violate the right to an impartial jury because such challenges are not constitutionally required." In re Care and Treatment of Wadleigh v. State, 145 S.W.3d 434, 441 (Mo.App. 2004). Instead, the improper denial or impairment of a party's right to strike a venireperson peremptorily is reversible error only if the error is prejudicial. Carter, 857 S.W.2d at 177-78.
The circuit court improperly sustained the Fergusons' Batson challenge to Hy-Vee's peremptory strike of Venireperson No. 26. This ruling was not a Batson error, however, because Venireperson No. 26 was not removed from the venire panel and served on the jury. The error, instead, constituted an impairment of Hy-Vee's right to use a peremptory strike; therefore, Hy-Vee must show that the error prejudiced its defense. Id.
Hy-Vee claims that the circuit court's error was prejudicial merely because Venireperson No. 26 sat on the jury and rendered a verdict against Hy-Vee. In support of this proposition, it cites Carter, 857 S.W.2d at 172, in which the Supreme Court said, "[T]o prove the existence of prejudice, the complaining party must show that it exhausted its peremptory challenges and that a prospective juror, who[m] the challenging party would have otherwise stricken, served on the jury." Id. at 178. This language supports Hy-Vee's position. The Supreme Court, however, added, "[T]here is no claim or suggestion from the record that any of the jurors selected was prejudiced to the extent that he or she should have been removed for cause." Id.
We glean from Carter that, to establish prejudice, Hy-Vee had to establish that Venireperson No. 26 was not otherwise qualified to sit on the jury and should have been removed for cause. See also Rodgers, 904 S.W.2d at 388. This requirement is consistent with the underlying purpose of peremptory strikes, which, the United States Supreme Court explained, is "to achieve . . . an impartial jury." Ross v. Oklahoma, 487 U.S. 81, 88 (1988).
Hence, to establish reversible error, Hy-Vee had to show more than that Venireperson No. 26 sat on the jury. It had to show that he was not qualified to serve as a juror and should have been removed for cause. It made no such claim.
Venireperson No. 26 knew Venireperson No. 31, but both said that their acquaintance would not affect their ability to serve as a juror impartially, to speak their minds independently of the other, or to differ with the other's opinion. Hy-Vee, therefore, did not meet its burden of demonstrating prejudice. The circuit court's error did not justify reversing its judgment. We, therefore, affirm the circuit court's judgment.
Patricia A. Breckenridge, Judge, and James M. Smart, Jr., Judge, concur.
Judge Breckenridge was a member of this court when the case was argued and submitted. After later being appointed to the Supreme Court of Missouri, she was assigned as a special judge to continue serving on this panel in resolving this case.