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               SUPREME COURT OF ARKANSAS
                                      No.   CR14-347

                                                 Opinion Delivered   October 9, 2014

KEVIN McMILLER                                   APPEAL FROM THE JEFFERSON
                              APPELLANT          COUNTY CIRCUIT COURT
                                                 [NO. CR-12-291]
V.
                                                 HONORABLE JODI RAINES
STATE OF ARKANSAS                                DENNIS, JUDGE
                                 APPELLEE
                                                 AFFIRMED.



                  JOSEPHINE LINKER HART, Associate Justice

       A Jefferson County jury convicted Kevin McMiller of capital murder, aggravated

residential burglary, kidnapping, and rape. He was sentenced by the jury to life without

parole for capital murder and life sentences for the other offenses, all to be served

consecutively in the Arkansas Department of Correction. His sole argument on appeal is

that the circuit court erred in denying his objection to the State’s use of peremptory

challenges in violation of the law promulgated in Batson v. Kentucky, 476 U.S. 79 (1986).

Our jurisdiction is pursuant to Arkansas Supreme Court Rule 1-2(a)(2) (2013). We affirm.

       It was established at trial through the testimony of D.O., the seventeen-year-old

victim of the kidnapping and rape, and through McMiller’s confession that on March 22,

2012, McMiller perpetrated the above-referenced crimes. Because McMiller does not

challenge the sufficiency of the evidence, only a brief recitation of the facts is necessary.

After D.O., McMiller’s girlfriend, acceded to her mother’s entreaty to break up with him,

McMiller tried repeatedly, but unsuccessfully, to contact D.O. by phone. He then took one
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of his mother’s kitchen knives and went to the residence that D.O. shared with her mother,

Shirley Owney. When McMiller overheard Shirley Owney disparage him, McMiller leaped

through a bedroom window into the residence. He caught Owney in the kitchen and

repeatedly stabbed her, causing her death. McMiller then put the knife to D.O.’s throat and

forced her to accompany him to a deserted house where he raped her.

       In his only argument on appeal, McMiller asserts that the circuit court erred in

denying his Batson challenge. He contends that there was purposeful discrimination in that

“of the eight strikes used by the State, six [sic] were strikes of black potential jurors,” which

resulted in him, an African American, being tried by an all-white jury.

       During voir dire, of the eight peremptory challenges made by the State, five of the

jurors struck were African Americans. McMiller asserted, at trial and on appeal, that this

demonstrated a pattern of systematic discrimination. While the circuit court made no

finding of systematic discrimination, upon McMiller’s assertion of a Batson violation, the

State volunteered race-neutral explanations for its challenges. The State noted that during

questioning, Venoit Morgan and Lois Reed expressed doubt about their ability to sit in

judgment over someone, and following a denial of its motion to strike them for cause, it

used peremptory challenges to remove them from the jury. Further the State claimed that

it struck Theresa Helms because she would “not interact” and was young and unemployed.

The State explained that it struck Catha Hicks because she had deadlines on her job and her

mind was “not in the courtroom.” The State further asserted that Hicks said she could not

judge and that her husband and her son had previously been charged with felony offenses.


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 The State stated that Sterling Linton II was struck because he did not respond or have any

interaction during questioning. One other African American juror was drawn from the

venire, but she was struck by the defense. The circuit court noted that it was not asked to

rule whether the use of peremptory strikes established a systematic effort to exclude African

Americans from the panel. Nonetheless, the circuit court did find that the State gave a

reasonable race-neutral explanation for its strikes and denied McMiller’s Batson challenge.1

       Batson v. Kentucky held that the State in a criminal case may not use its peremptory

strikes to exclude jurors solely on the basis of race. Jackson v. State, 375 Ark. 321, 290

S.W.3d 574 (2009). At trial, a three-step process is required to effectuate the dictates of

Batson and its progeny. Id. First, the opponent of the peremptory strikes must present facts

to make a prima facie case of purposeful discrimination. Id. Second, upon a showing of a

prima facie case of systematic discrimination, the State is required to give a race-neutral

explanation for the strikes. Id. Third, the circuit court must decide whether the opponent

of the strike has proved purposeful discrimination. Id. On appeal, we will not reverse a

circuit court’s findings on a Batson objection unless the decision is clearly against the

preponderance of the evidence. Id. Some deference is accorded the circuit court in making

this decision because it has the opportunity to observe the parties and determine their

credibility. London v. State, 354 Ark. 313, 125 S.W.3d 813 (2003).

       At trial, McMiller essentially conceded that two of the strikes, Venoit Morgan and


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         When the State offered a race-neutral explanation for its strikes, it rendered moot the
circuit court’s failure to make an initial determination whether defendant had made a prima
facie showing of discriminatory intent. London v. State, 354 Ark. 313, 125 S.W.3d 813 (2003).

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Lois Reed, were valid because they followed unsuccessful challenges for cause after both

potential jurors expressed doubt about their ability to sit in judgment over someone.

Likewise, McMiller does not challenged the validity of the State’s rationale for their

challenge on appeal. However, McMiller does argue that the reasons the State offered for

challenging Helms, Hicks, and Litton, were not valid.

       McMiller asserts that it was improper for the State to strike Helms because she was

young and unemployed and did not respond to questioning. However, we note that the

State further justified its strike by asserting that it also struck Nicholas Prater, a white man,

who, like Helms, was also young and unemployed. Given that similarly situated venire

persons of different races were treated the same, we cannot say that the circuit court’s

decision that this explanation was race-neutral was clearly against the preponderance of the

evidence. Jackson v. State, supra.

       Regarding the State’s use of a peremptory challenge to remove Hicks from the jury,

at trial, the State claimed that its decision to strike Hicks was because she had deadlines on

her job and “her mind just was not in the courtroom.” Additionally, the State noted and

her husband and son had previously been charged with felony offenses. McMiller neither

refutes these reasons nor argues that the reasons given by the State are not race-neutral

explanations. Accordingly, we cannot say that the circuit court clearly erred in finding that

the State’s explanation for striking Hicks was race-neutral.

       Finally, we cannot say that the circuit court clearly erred in failing to find that the

strike of Sterling Linton II, violated Batson. As noted, the State’s race-neutral reason for the


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strike was that Linton did not respond or have any interaction during questioning, and he

was just “staring off into space.” On this issue, we defer to the circuit court as the arbiter

of credibility as it was in a superior position to observe both Linton’s interaction and the

prosecutor’s demeanor in asserting its race-neutral reason. We hold that the circuit court did

not clearly err in denying McMiller’s Batson challenge.

      Pursuant to Arkansas Supreme Court Rule 4-3(i) (2013), the record has been

reviewed for all objections, motions, and requests that were decided adversely to McMiller

and no prejudicial error has been found.

      Affirmed.

      Potts Law Office, by: Gary W. Potts, for appellant.

      Dustin McDaniel, Att’y Gen., by: Kent G. Holt, Ass’t Att’y Gen., for appellee.




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