                                            No. 04-3555
                                      File Name: 05a0476n.06
                                         Filed: June 7, 2005

                              UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT

JOSEPH SMITH,                                         )
                                                      )
       Plaintiff-Appellant,                           )
                                                      )
v.                                                    )       On Appeal from the United States
                                                      )       District Court for the Northern
JANICE R. YARROW, et al.,                             )       District of Ohio
                                                      )
       Defendants-Appellees.                          )
                                                      )




       Before: MARTIN and ROGERS, Circuit Judges; FORESTER, Chief District Judge.*



       Joseph Smith, an Ohio prisoner proceeding pro se, appeals a district court judgment entered
upon a jury’s verdict for the defendant in this civil rights action filed pursuant to 42 U.S.C. § 1983.
This case has been referred to a panel of the court pursuant to Rule 34(j)(1), Rules of the Sixth
Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed.
R. App. P. 34(a).
       On July 20, 2000, Smith filed his complaint in the district court against Janice Yarrow and
eight other prison employees. Smith alleged, inter alia, that the defendants were deliberately
indifferent to his hernia, violating his Eighth Amendment right to be free from cruel and unusual
punishment, and that the defendants retaliated against him for exercising his constitutional rights.
The defendants filed a motion for summary judgment as to all of the claims in Smith’s second
amended complaint, and in September 2001, the district court granted the motion in its entirety.
Smith appealed, and a panel of this court affirmed the district court’s judgment with the exception

       *
        The Honorable Karl S. Forester, United States Chief District Judge for the Eastern District
of Kentucky, sitting by designation.
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of Smith’s Eighth Amendment claim against Yarrow, which this court remanded to the district court.
See Smith v. Yarrow, No. 01-4033, 2003 WL 22400730, at *15 (6th Cir. Oct. 20, 2003)
(unpublished). The case ultimately was tried before a jury over a span of three days. The jury
returned a verdict in favor of Yarrow, and the district court entered judgment accordingly. This
timely appeal followed.
       On appeal, Smith asserts that the district court erred: (1) in finding that the defendant’s use
of peremptory challenges to strike two potential, black jurors during voir dire was not performed
for discriminatory reasons; and (2) in failing to seize notes taken by a juror during the trial. Smith
also has filed an irregular motion to remove the attorney representing Yarrow on appeal. Yarrow
responds that Smith’s failure to produce the trial transcript precludes meaningful appellate review
of the two issues raised on appeal and that, even if the claims are reviewable, they lack merit.
       “Whether a party exercised its peremptory challenges in a discriminatory manner is a finding
of fact, which we review under the clearly erroneous standard.” United States v. Bartholomew, 310
F.3d 912, 919 (6th Cir. 2002). “A factual finding will only be clearly erroneous when the reviewing
court is left with the definite and firm conviction that a mistake has been committed.” United States
v. Johnson, 242 F.3d 707, 709 (6th Cir. 2001). The district court’s findings on whether a party
exercised a strike for a discriminatory reason are accorded significant deference because the
determination rests largely upon an assessment of the credibility of the party offering the
nondiscriminatory explanation. Hernandez v. New York, 500 U.S. 352, 365 (1991). “Deference is
necessary because a reviewing court, which analyzes only the transcripts from voir dire, is not as
well positioned as the trial court is to make credibility determinations.” Miller-El v. Cockrell, 537
U.S. 322, 339 (2003).
       By failing to provide a transcript, we are left with no basis on which to find the district
court’s rulings clearly erroneous. Because Smith “urge[s] on appeal that a finding . . . is contrary
to the evidence,” i.e., that the evidence supports the conclusion that the defendant exercised her
peremptory challenges based upon discriminatory reasons, he had a duty to “include in the record
a transcript of all evidence relevant to that finding,” Fed. R. App. P. 10(b)(2), or if a transcript was
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unavailable, a prepared statement from his recollection served upon the opposing party and
submitted to the district court for settlement and approval. Fed. R. App. P. 10(c). Without a
transcript, this court cannot verify that Smith made a proper objection, preserving the issue for
appeal or examine the explanation, if any, the district court may have provided for its decision on
the record. Because a trial court’s “finding of the absence of discriminatory intent is ‘a pure issue
of fact,’ ” Miller-El, 537 U.S. at 339 (quoting Hernandez, 500 U.S. at 364), the record provided on
appeal does not allow for a review of this claim, and therefore, the issue is waived.
       Turning to the second issue, Smith argues for the first time on appeal that the district court
erred by not confiscating a juror’s notes that she took during trial. “This court has repeatedly held
that it will not consider arguments raised for the first time on appeal unless our failure to consider
the issue will result in a plain miscarriage of justice.” Lepard v. NBD Bank, 384 F.3d 232, 236 (6th
Cir. 2004) (internal quotation omitted); see also United States v. Smith, 393 F.2d 687, 689 (6th Cir.
1968). The decision whether to allow jurors to take notes during trial and whether the notes may
be used during deliberations is left to the sound discretion of the trial judge. United States v.
Johnson, 584 F.2d 148, 158 (6th Cir. 1978) (listing supporting cases).
       The judgment is affirmed.
