{ "id": 6141381, "name": "Lee Charles LEWIS v. STATE of Arkansas", "name_abbreviation": "Lewis v. State", "decision_date": "2004-01-07", "docket_number": "CA CR 01-1327", "first_page": "327", "last_page": "334", "citations": [ { "type": "official", "cite": "84 Ark. App. 327" }, { "type": "parallel", "cite": "139 S.W.3d 810" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "325 Ark. 510", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 369183 ], "weight": 2, "year": 1996, "pin_cites": [ { "parenthetical": "holding that defendant's argument that the State failed to provide a racially neutral reason for the removal of a venireperson was not preserved for appeal where it was not presented to the trial court" }, { "parenthetical": "holding that defendant's argument that the State failed to provide a racially neutral reason for the removal of a venireperson was not preserved for appeal where it was not presented to the trial court" } ], "opinion_index": 0, "case_paths": [ "/ark/325/0510-01" ] }, { "cite": "354 Ark. 313", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 36057 ], "weight": 3, "year": 2003, "pin_cites": [ { "parenthetical": "holding that defendant's argument that it was error for the trial court to allow the State to proffer only two race-neutral explanations when three African-Americans were struck from the jury panel was not preserved for review Where defendant failed to raise the argument to the trial court" } ], "opinion_index": 0, "case_paths": [ "/ark/354/0313-01" ] }, { "cite": "354 Ark. 364", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 36026 ], "weight": 5, "year": 2003, "opinion_index": 0, "case_paths": [ "/ark/354/0364-01" ] }, { "cite": "334 Ark. 390", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1655433 ], "weight": 19, "year": 1998, "pin_cites": [ { "page": "399" }, { "page": "297" }, { "page": "400" }, { "page": "297" } ], "opinion_index": 0, "case_paths": [ "/ark/334/0390-01" ] }, { "cite": "82 Ark. App. 376", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141840 ], "weight": 2, "year": 2003, "opinion_index": 0, "case_paths": [ "/ark-app/82/0376-01" ] }, { "cite": "476 U.S. 79", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12787 ], "weight": 3, "year": 1986, "opinion_index": 0, "case_paths": [ "/us/476/0079-01" ] }, { "cite": "386 U.S. 738", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6182629 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/us/386/0738-01" ] } ], "analysis": { "cardinality": 575, "char_count": 11569, "ocr_confidence": 0.747, "pagerank": { "raw": 4.947487136851577e-08, "percentile": 0.3115650758017166 }, "sha256": "e395d6061a06415ed2b1c293dde74817416e4fb76fd4281314e759c0723653a8", "simhash": "1:8f5bdf15474c91e0", "word_count": 1886 }, "last_updated": "2023-07-14T22:52:08.452411+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Gladwin and Griffen, JJ., agree." ], "parties": [ "Lee Charles LEWIS v. STATE of Arkansas" ], "opinions": [ { "text": "Andree Layton Roaf, Judge.\nAppellant Lee Charles Lewis was convicted of possession of cocaine with intent to deliver and possession of marijuana with intent to deliver. Lewis was sentenced to ten years\u2019 imprisonment on the cocaine charge and four years\u2019 imprisonment on the marijuana charge, with the sentences to be served concurrently. Lewis\u2019s counsel previously filed a motion to withdraw, pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3 (j) of the Rules of the Arkansas Supreme Court and Court of Appeals, alleging that an appeal from his convictions would be without merit; however, this court ordered rebriefing in an unpublished opinion entered on November 20, 2002, because counsel failed to abstract and discuss all adverse rulings. Lewis\u2019s counsel then submitted a second Anders brief, which again failed to abstract and discuss all adverse rulings. After reviewing the record, this court found that Lewis\u2019s Batson challenge to the voir dire of the jury may not be wholly frivolous and directed his counsel to rebrief the case on the merits of that issue in an unpublished opinion entered on May 14, 2003. Lewis\u2019s counsel has now submitted a merit brief in accordance with this court\u2019s directive.\nOn appeal, Lewis argues that the trial court erred in overruling his Batson challenge to the State\u2019s peremptory removal of two black venirepersons from the jury panel. Specifically, Lewis argues that the trial court improperly cut off the State\u2019s attempt to give a race-neutral reason for striking one juror and supplied a reason on behalf of the State for the second strike. Because Lewis\u2019s argument concerning the trial court\u2019s improper conduct was not raised below, we affirm.\nBecause Lewis does not challenge the sufficiency of the evidence supporting his convictions, a detailed recitation of the facts underlying those convictions is not necessary. During voir dire, the State used peremptory challenges to strike six black venirepersons from the jury panel. Lewis objected and argued that the State\u2019s use of its peremptory challenges to strike all the remaining black venirepersons from the jury panel was in violation of Batson v. Kentucky, 476 U.S. 79 (1986). After the trial court ruled that Lewis had made a prima facie showing of racial discrimination, the State proceeded to give its racially neutral reasons for exercising each strike. With respect to venirepersons Wright and Harding, the following colloquy occurred:\nState: Ms. Wright yesterday at the end of the trial, her and the Defendant...\nDefense Counsel: The other defendant...\nState: The other defendant who, and that causes me to ...\nCourt: That\u2019s good enough. It\u2019s racial neutral.\nState: Okay. Mr. Harding was related to the Defendant yesterday.\nDefense Counsel: That\u2019s yesterday\u2019s defendant. It\u2019s not anything to do with this case.\nState: It has to do with the same officers and all that.\nDefense Counsel: No.\nState: I believe that he\u2019ll have a bias ...\nDefense Counsel: Doesn\u2019t make any difference.\nState: ... against him.\nCourt: His brother had a relative arrested on a drug related offense.\nState: - Okay.\nCourt: That\u2019s enough. Racial neutral.\nThe trial court ruled that all of the reasons given by the State for striking each venireperson were racially neutral and overruled Lewis\u2019s Batson challenge.\nLewis argues on appeal that the trial judge erred in overruling his Batson challenge to the State\u2019s peremptory removal of blacks from the jury panel. However, before addressing the merits of Lewis\u2019s argument, the sufficiency of his abstract must be discussed. Lewis has failed to abstract any portion of the jury trial. Instead, he has photocopied and placed in his addendum four pages from the transcript, which contain his Batson objection and the State\u2019s race-neutral explanations for the removal of the two black venirepersons that he argues on appeal were improperly struck from the panel. In addition, Lewis has failed to include in his addendum both the judgment and commitment order and his notice of appeal.\nAccording to Ark. Sup. Ct. R. 4-2(a)(5) (2003), an appellant shall include in his brief an abstract or abridgment of the transcript, consisting of such material parts of the testimony of witnesses and colloquies between the court and counsel as are necessary to an understanding of all questions presented to the appellate court for decision. Also, under Rule 4-2(a)(8), the appellant\u2019s brief must include an addendum that contains photocopies of the order or judgment appealed from, as well as the notice of appeal. While the failure to abstract or include materials essential to the understanding of an argument on appeal has in the past been considered a bar to consideration of the merits of the argument, under the revised rule, this court must now allow rebriefing to cure deficiencies in the abstract or addendum. Spears v. State, 82 Ark. App. 376, 109 S.W.3d 139 (2003). Although this court could order rebriefing in this case due the deficiencies in Lewis\u2019s abstract and addendum, because he has included in his addendum the material portions of the colloquy between counsel and the trial court discussing his Batson challenge, we instead address the merits of his argument. We also note that the record reflects that Lewis\u2019s judgment and commitment order was filed on June 29, 2001, and that the notice of appeal was timely filed on July 12, 2001.\nIn Batson v. Kentucky, 476 U.S. 79 (1986), the United States Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution prohibits the State from striking a venireperson as a result of racially discriminatory intent. The Court left it up to the states to develop specific procedures to follow in implementing Batson. Id. Our supreme court has established a three-step process to be used in evaluating Batson claims. MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998). First, the opponent of the peremptory strike must present facts that show a prima facie case of purposeful discrimination. Id. This can be done by showing (1) that the strike\u2019s opponent is a member of an identifiable racial group, (2) that the strike is part of a jury-selection process or pattern designed to discriminate, and (3) that the strike was used to exclude jurors because of their race. Id.\nSecond, if the opponent has established a prima facie case, the burden of producing a racially neutral explanation then shifts to the proponent of the strike. Id. While this explanation must be more than a mere denial of discrimination, the explanation need not be persuasive or even plausible; indeed, it may be silly or superstitious. Id. The reason will be deemed race neutral unless discriminatory intent is inherent in the proponent\u2019s explanation. Id. However, the trial court must not end the Batson inquiry at this stage. Id.\nIn step three, if a race-neutral explanation is given, the trial court must then decide whether the strike\u2019s opponent has proven purposeful discrimination. Id. During this stage, the strike\u2019s opponent must persuade the trial court that the expressed motive of the striking party is not genuine, but rather is the product of discriminatory intent. Id. The opponent may do this by presenting further argument or other proof relevant to the inquiry. Id. If the strike\u2019s opponent chooses not to present additional argument or proof but simply relies on the prima facie case presented, then the trial court has no alternative but to make its decision based on what has been presented to it, including an assessment of credibility. Id. The court in MacKintrush emphasized that \u201cit is incumbent upon the strike\u2019s opponent to present additional evidence or argument, if the matter is to proceed further.\u201d Id. at 399, 978 S.W.2d at 297. It is the opponent\u2019s responsibility to \u201cmove the matter forward at this stage to meet the burden ofpersuasion, not the trial court.\u201d Id. If the strike\u2019s opponent does not present further evidence, no additional inquiry by the trial court is required. Id. However, if the \u201copponent presents additional relevant evidence and circumstances to the trial court for its consideration, then the trial court must consider what has been presented, make whatever inquiry is warranted, and reach a conclusion.\u201d Id. at 400, 978 S.W.2d at 297.\nOnce the party striking jurors offers a race-neutral explanation, and the trial court rules on the ultimate issue of intentional discrimination, the preliminary issue of whether a prima facie case was shown then becomes moot. Holder v. State, 354 Ark. 364, 124 S.W.3d 439 (2003). Appellate courts will reverse a trial court\u2019s ruling on a Batson challenge only when its findings are clearly against the preponderance of the evidence. Id. The trial court is accorded some deference in making Batson rulings because it is in a superior position to observe the parties and to determine their credibility. Id.\nThe issue in this case involves the second step of the Batson procedure. Lewis argues that the State failed in its burden of offering a race-neutral explanation with respect to two of the venirepersons, Wright and Harding. Lewis asserts that it was error and improper for the trial court to \u201ccut off\u2019 the State\u2019s race-neutral explanation as to venireperson Wright and that it was also error for the trial court to assist the State in supplying a race-neutral explanation for its removal of venireperson Harding.\nWe find that Lewis\u2019s arguments are not preserved for appellate review. While we cannot discern what the State was attempting to assert with respect to venireperson Wright, and while the trial court on its own provided an additional reason for striking venireperson Harding, Lewis did not object when the trial court interrupted the State\u2019s race-neutral explanation as to Wright, nor did he object when the trial court itself supplied a race-neutral reason as to Harding. In fact, Lewis failed to offer any additional argument or other proof to rebut the State\u2019s and the trial court\u2019s race-neutral explanations and to show that the State\u2019s motives were not genuine, but were rather the product of discriminatory intent, as is required during the third stage of the Batson process. MacKintrush, supra. The burden of persuasion that there is purposeful discriminatory intent rests with and never shifts from the party opposing the strikes. Holder, supra.\nIt is well-settled that issues raised for the first time on appeal will not be considered. London v. State 354 Ark. 313, 125 S.W.3d 813 (2003). Because Lewis failed to raise to the trial court the arguments concerning the trial court\u2019s conduct that he now makes on appeal, his arguments are not preserved for review. See id. (holding that defendant\u2019s argument that it was error for the trial court to allow the State to proffer only two race-neutral explanations when three African-Americans were struck from the jury panel was not preserved for review Where defendant failed to raise the argument to the trial court); Wooten v. State, 325 Ark. 510, 931 S.W.2d 408 (1996) (holding that defendant\u2019s argument that the State failed to provide a racially neutral reason for the removal of a venireperson was not preserved for appeal where it was not presented to the trial court). Thus, we affirm.\nAffirmed.\nGladwin and Griffen, JJ., agree.", "type": "majority", "author": "Andree Layton Roaf, Judge." } ], "attorneys": [ "John F. Gibson, Jr., for appellant.", "Mike Beebe, Att\u2019y Gen., by: Valerie L. Kelly, Ass\u2019t Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Lee Charles LEWIS v. STATE of Arkansas\nCA CR 01-1327\n139 S.W.3d 810\nCourt of Appeals of Arkansas Division I\nOpinion delivered January 7, 2004\nJohn F. Gibson, Jr., for appellant.\nMike Beebe, Att\u2019y Gen., by: Valerie L. Kelly, Ass\u2019t Att\u2019y Gen., for appellee." }, "file_name": "0327-01", "first_page_order": 351, "last_page_order": 358 }