                              Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE                                         NEWS RELEASE #057


FROM: CLERK OF SUPREME COURT OF LOUISIANA



The Opinions handed down on the 19th day of October, 2016, are as follows:




PER CURIAM:



2015-K -0995      STATE OF LOUISIANA v. JOHNNY LEE HARRIS (Parish of St. Landry)

                  The primary distinction between Nelson and the present case is
                  that there was a substantially stronger showing of discriminatory
                  effect in Nelson. Regarding Batson steps two and three, however,
                  the cases are indistinguishable. As in Nelson, the district court
                  here dismissed defendant’s proffered reasons for two strikes
                  although they were facially race-neutral.    As in Nelson, it is
                  clear the district court merged the steps of the Batson analysis
                  which improperly shifted the burden of proof to defense counsel—
                  the   proponent  of    the  strike.   The  record  unquestionably
                  demonstrates the district court never made a finding that the
                  race-neutral reasons offered by counsel were pretextual. Although
                  none of the proffered reasons appear to inherently violate equal
                  protection, the court nonetheless rejected them for no specific
                  reason (other than that Duplechain indicated she could fairly
                  serve as a juror). The court erred thus in putting the burden of
                  persuasion on the defendant. See State v Green, 655 So. 2d 272,
                  290 (La. 1995).    Batson makes clear that the burden is on the
                  opponent of the strike to show purposeful discrimination. See
                  Batson, 476 U.S. at 94, 106 S.Ct. at 1721.
                  REVERSED AND REMANDED.
10/19/16

                         SUPREME COURT OF LOUISIANA


                                      NO. 2015-K-0995

                                 STATE OF LOUISIANA

                                           VERSUS

                                 JOHNNY LEE HARRIS


           ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
                THIRD CIRCUIT, PARISH OF ST. LANDRY


PER CURIAM:

       Johnny Lee Harris was charged with the attempted armed robbery of

Wayne Duplechain committed on May 25, 2009. He pleaded not guilty and

proceeded to trial. During voir dire (and immediately following defense

counsel’s Batson1 challenge), the state opposed counsel’s exercise of a

peremptory challenge to strike juror Joanne Guidroz (a white female) 2 with

the comment: “Since you made one, I’ll make one.” After noting that the

defense used three of five challenges to strike white female jurors, the court


1
  In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed .2d 69 (1986), the United
States Supreme Court held that “the Equal Protection Clause forbids the prosecutor to
challenge potential jurors solely on account of their race or on the assumption that black
jurors as a group will be unable impartially to consider the State’s case against a black
defendant.” Id., 476 U.S. at 89, 106 S.Ct. at 1719.
2
  In Georgia v. McCollum, 505 U.S. 42, 59, 112 S.Ct. 2348, 2359, 120 L.Ed.2d 33
(1992), the United States Supreme Court held that “the Constitution prohibits a criminal
defendant from engaging in purposeful discrimination on the ground of race in the
exercise of peremptory challenges.” Id., 505 U.S. at 59, 112 S.Ct. at 2359. William and
Ella McCollum, who were white, were charged with committing several counts of assault
and battery on Jerry and Myra Collins, who were African Americans, and the defense
“had indicated a clear intention to use peremptory strikes in a racially discriminatory
manner, arguing that the circumstances of their case gave them the right to exclude
African–American citizens from participating as jurors in the trial.” Id., 505 U.S. at 45,
112 S.Ct. at 2351. In State v. Knox, 609 So.2d 803, 806 (La. 1992) (per curiam), this
court found that “the McCollum decision extends to the circumstance at issue in this case
where . . . a black defendant allegedly exercised, or expressed the intention of exercising,
racially based peremptory challenges against white prospective jurors.”
asked counsel to provide reasons for striking Guidroz and counsel

responded, “She has a son who’s convicted of a crime and also her spouse

works for Slemco and I felt that she would be very conservative.” The court

then denied the state’s “reverse-Batson” challenge and voir dire continued.

      When the defense exercised a peremptory challenge to strike Carolyn

Duplechain, the state again opposed the strike on the ground that Duplechain

is a white female. Defense counsel immediately volunteered that Duplechain

indicated she knew the assistant district attorney prosecuting the case and

she lived next door to a sheriff’s deputy. The court disallowed the strike:

“[S]he also clearly said it would not affect her at all. In this particular case, I

don’t think that’s sufficient basis for the peremptory challenge.”

      The defense then exercised a peremptory challenge to strike Kandace

Quebedeaux (who is also a white female), to which the state objected:

“Same thing.” Counsel, again unprompted, volunteered the following as

race-neutral justification for striking her:

      All right; she is—she was bonded with [the prosecutor], she
      said she was a runner, [the prosecutor] said, “Oh well, I’m also
      a runner” and they had a little laughing, giggling connection
      going on there. I figured she was bonding with him as a runner
      and I’m exercising that challenge.

The court responded “Denied” and the defense noted its objection to the

denial of its peremptory strikes of Duplechain and Quebedeaux. Duplechain

and Quebedeaux were the eleventh and twelfth jurors.

      The jury found Harris guilty as charged of attempted armed robbery

and the district court sentenced him to 30 years imprisonment at hard labor.

The court of appeal affirmed the conviction and sentence. State v. Harris,

14-0997 (La. App. 3 Cir. 3/18/15) (unpub’d). A majority of the panel

rejected Harris’s claim that the trial court erred by granting the state’s

                                               2
“reverse-Batson” challenges regarding jurors Duplechain and Quebedeaux.

After examining the jurisprudence, and in particular State v. Nelson, (La.

3/13/12), 85 So.3d 21, the majority found no error in those rulings:

      After a thorough review of the record, we find no error by the
      trial court. Regarding Duplechain, the trial court stated reasons
      for ruling as it did. Further, despite only stating one word, the
      trial court clearly considered and rejected Defendant’s stated
      reasons for attempting to strike juror Quebedeaux. The trial
      court’s rulings are entitled to deference, and we cannot say that
      its rulings were unreasonable.

Harris, 14-0997, p. 7. Chief Judge Thibodeaux dissented:

      A trial court’s ruling is not entitled to deference if there is legal
      error. The legal error is transparent in this case, and the
      majority does not recognize it. Batson v. Kentucky, 476 U.S. 79,
      106 S.Ct. 1719 (1986), has existed for nearly thirty years, and
      courts are still struggling to properly apply its procedural
      dictates. This case is such an example.

      The majority recognizes what is clear in the jurisprudence—that
      the first two steps of the Batson analysis can be conflated. Since
      the trial court instructed defense counsel to provide race-neutral
      reasons for the strikes at issue, it can be treated as having found
      prima facie discrimination. However, the trial court’s analysis
      skipped the third stage of Batson. The majority likewise does
      so. It is clear from State v. Bourque, 12-1350 (La.App. 3 Cir.
      6/5/13), 114 So.3d 642, writ denied, 13-1598 (La. 3/14/14), 134
      So.3d 1187, and State v. Nelson, 10-1724 (La. 3/13/12), 85
      So.3d 21, that an omission of the third stage is error.

      The trial court did not conduct the third step of the Batson
      analysis and, thus, did not comply with the requirements
      explained in Nelson and Bourque. Pursuant to those cases, the
      conviction and sentence should be vacated and the case
      remanded for a new trial.

      The majority conveniently oversimplifies the legal application
      of Batson, Nelson, and Bourque by relying on the trial court’s
      rejection of Defendant’s proffered race-neutral reasons for
      strking juror Quebedeaux. However, the trial court’s
      observations and credibility assessments are not at issue. The
      problem is that the third step of the Batson analysis was omitted
      in this case. In focusing on the trial court’s rejection of
      Defendant’s reasons, the majority improperly shifts the burden
      of proof to Defendant “without conducting an analysis of any of
      the considerations indicative of purposeful discrimination.”
      State v. Nelson, 10-1724 (La. 3/13/12), 85 So.3d 21, 33. That is

                                           3
         exactly what happened in this case. Why that is not recognized
         is inexplicable.

Harris, 14-0997, pp. 8–9 (Thibodeaux, C.J., dissenting) (footnote omitted).

The dissent’s assessment of the law and application here is correct.

Therefore, we grant the appellant’s application to reverse the court of appeal,

and we find for the reasons that follow that the district court erred in its

handling of the state’s “reverse-Batson” challenge. The conviction and

sentence are vacated and the matter is remanded to the district court for

further proceedings.

         The United States Supreme Court in Batson v. Kentucky, 476 U.S. 79,

106 S.Ct. 1712, 90 L.Ed.2d 69, provided a three-step process for

determining when a strike is discriminatory. This year the court reiterated

those steps in Foster v. Chapman, 578 U.S. ___, 136 S.Ct. 1737, 195

L.Ed.2d 1 (2016):

         First, [the opponent of the strike] must make a prima facie
         showing that a peremptory challenge has been exercised on the
         basis of race; second, if that showing has been made, [the
         proponent of the strike] must offer a race-neutral basis for
         striking the juror in question; and third, in light of the parties’
         submissions, the trial court must determine whether [the
         opponent of the strike] has shown purposeful discrimination.

Id., 136 S.Ct. at 1747 (quoting Snyder v. Louisiana, 552 U.S. 472, 476–77,

128 S.Ct. 1203, 1207, 170 L.Ed.2d 175 (2008) with internal quotation marks

and brackets omitted). The court in Foster engaged in a record-intensive

inquiry into the prosecution’s proffered race-neutral reasons for striking

black jurors to determine whether the state court erred in Batson’s step three.

         In the present case, the district court never reached step three. After

defense counsel volunteered reasons for striking Duplechain, 3 the district


3
    The United States Supreme Court in Hernandez v. New York, 500 U.S. 352, 359, 111
                                             4
court found them to be inadequate justifications for dismissing a juror,

particularly one the court found had been questioned and rehabilitated on the

defense’s concerns, and thus the court essentially treated the challenge like

one for cause. The court, however, made no determination whether the state

had carried its burden of proving purposeful discrimination. In State v.

Nelson, 10-1724 (La. 3/13/12), 85 So.3d 21, this court was presented with a

similar problem. The district court there rejected the co-defendants’ race-

neutral reasons for nine strikes, finding that the co-defendants had not

overcome the strong numerical prima facie showing made by the state. The

court of appeal affirmed, rejecting the co-defendants’ claim that the district

court erred in shifting the burden to them to prove a lack of discriminatory

intent in Batson’s step three:

       While the [court of appeal] pointed out defendants reasons for
       exercising their peremptory challenges were facially race-
       neutral, the court found no manifest error in the trial court’s
       determination of discriminatory intent. The court found the trial
       judge’s decisions were carefully considered, and despite an
       “occasional misstatement” by the trial judge during the course
       of the lengthy argument, the record did not support defendants’
       assertion that the trial judge placed on them the burden of
       proving a lack of discriminatory intent. The court reasoned that
       nearly all of the proffered reasons for excusing the re-seated
       jurors had no basis in the record, and the State ably pointed this
       out to the trial court, thus satisfying their burden of proof under
       the third step of the Batson analysis.

Nelson, 10-1724, p. 6, 85 So.3d at 27 (citations omitted). This court

disagreed:

       In a procedure that confounded steps two and three of Batson,
       we find the trial court erred in two respects. First, the trial court
       refused to accept the race-neutral reasons offered by
       defendants, and instead placed the burden on the defendants to

S.Ct. 1859, 1866, 114 L.Ed.2d 395 (1991), found that “[o]nce the [proponent of a
peremptory strike] has offered a race-neutral explanation for the peremptory challenge
and the trial court has ruled on the ultimate question of intentional discrimination, the
preliminary issue of whether the [opponent of the strike] had made a prima facie showing
becomes moot.”
                                               5
      rebut the State's prima facie showing of discrimination. Second,
      and most significantly, the trial court declined to find that
      defense counsel engaged in purposeful discrimination but
      instead found that discriminatory effect alone constituted
      Batson error.

Nelson, 10-1724, p. 9, 85 So.3d at 29. This court further noted:

      In step three of the Batson analysis, the court must then
      determine whether the objecting party has carried his burden of
      proving purposeful discrimination. Miller–El v. Dretke, 545
      U.S. 231, 125 S.Ct. 2317, 2331–32, 162 L.Ed.2d 196 (2005);
      Batson, 476 U.S. at 98, 106 S.Ct. 1712. This final step involves
      evaluating “the persuasiveness of the justification” proffered by
      the striking party, but “the ultimate burden of persuasion
      regarding racial motivation rests with, and never shifts from,
      the opponent of the strike.” Purkett, 514 U.S. at 768, 115 S.Ct.
      1769.

      In Purkett, the Supreme Court warned against “combining
      Batson’s second and third steps into one, requiring that the
      justification tendered at the second step be not just neutral but
      also at least minimally persuasive.” Purkett, 514 U.S. at 768,
      115 S.Ct. 1769. Instead, the Court noted “[i]t is not until the
      third step that the persuasiveness of the justification becomes
      relevant—the step in which the trial court determines whether
      the opponent of the strike has carried his burden of proving
      purposeful discrimination.” Id. The Court explained that
      blurring the Batson stages can impermissibly shift the burden
      onto the proponent of the strike:

             But to say that a trial judge may choose to
             disbelieve a silly or superstitious reason at step
             three is quite different from saying that a trial
             judge must terminate the inquiry at step two when
             the race-neutral reason is silly or superstitious. The
             latter violates the principle that the ultimate burden
             of persuasion regarding racial motivation rests
             with, and never shifts from, the opponent of the
             strike.

      Id.

Nelson, 10-1724, pp. 15–16, 85 So.3d at 32.

      The primary distinction between Nelson and the present case is that

there was a substantially stronger showing of discriminatory effect in

Nelson. Regarding Batson steps two and three, however, the cases are


                                          6
indistinguishable. As in Nelson, the district court here dismissed defendant’s

proffered reasons for two strikes although they were facially race-neutral.4

As in Nelson, it is clear the district court merged the steps of the Batson

analysis which improperly shifted the burden of proof to defense counsel—

the proponent of the strike. The record unquestionably demonstrates the

district court never made a finding that the race-neutral reasons offered by

counsel were pretextual. Although none of the proffered reasons appear to

inherently violate equal protection, the court nonetheless rejected them for

no specific reason (other than that Duplechain indicated she could fairly

serve as a juror). The court erred thus in putting the burden of persuasion on

the defendant. See State v. Green, 655 So.2d 272, 290 (La. 1995). Batson

makes clear that the burden is on the opponent of the strike to show

purposeful discrimination. See Batson, 476 U.S. at 94, 106 S.Ct. at 1721.



REVERSED AND REMANDED




4
  Cf. State v. Scott, 04-1312 (La.1/19/06), 921 So.2d 904 (State’s justification for striking
a prospective African-American juror, that she had a son the same age as defendant and
would feel sympathy for defendant’s mother, was sufficiently neutral to survive a Batson
challenge), cert. denied, 549 U.S. 858, 127 S.Ct. 137, 166 L.Ed.2d 100; State v. Wilson,
40,767 (La. App. 2 Cir. 8/23/06), 938 So.2d 1111 (Prosecutor offered legitimate, race-
neutral reason for striking African-American juror when it argued that juror was a
minister’s wife and might hesitate to impose the death penalty), writ denied, 06-2323 (La.
4/20/07), 954 So.3d 159, cert. denied, 552 U.S. 917, 128 S.Ct. 275, 169 L.Ed.2d 201;
State v. Parker, 04-1017 (La. App. 5 Cir. 3/29/05), 901 So.2d 513 (When accepted by the
trial judge, the lodging of a peremptory challenge based on a juror’s body language does
not violate Batson), writ denied, 05-1451 (La. 1/13/06), 920 So.2d 235; State v. Woods,
97-0800 (La. App. 1 Cir. 6/29/98), 713 So.2d 1231 (Prospective juror’s mistaken belief
that prosecutor had represented prospective juror in a lawsuit was a legitimate, race-
neutral justification for state’s peremptory strike), writ denied, 98-3041 (La. 4/1/99), 741
So.2d 1281.
                                                 7
