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 1995-12

Ronald Troupe v. Michael T. Groose ( 1995 )


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  •                                 _____________
No. 95-1771EM
_____________
Ronald Troupe,                        *
*
Appellant,           *
*   Appeal from the United States
v.                               *   District Court for the Eastern
*   District of Missouri.
Michael T. Groose,                    *
*
Appellee.            *
_____________
Submitted:   November 15, 1995
Filed: December 11, 1995
_____________
Before RICHARD S. ARNOLD, Chief Judge, and BRIGHT and FAGG, Circuit
Judges.
_____________
FAGG, Circuit Judge.
Ronald Troupe was convicted by a Missouri state jury of kidnapping,
sodomy, and assault of a twelve-year-old boy.        The Missouri Court of
Appeals affirmed Troupe's convictions.     State v. Troupe,
    863 S.W.2d 633 
    (Mo. Ct. App. 1993).      Troupe then brought this federal habeas petition
under 28 U.S.C. § 2254.    The district court denied Troupe's petition, and
we affirm.
Troupe asserts the State improperly used peremptory challenges to
remove black jurors from the venire panel based on their race, in violation
of Batson v. Kentucky,
    476 U.S. 79 
    (1986).      We disagree.   Under Batson,
after a defendant makes a prima facie case of racial discrimination in the
government's use of peremptory challenges, the burden shifts to the
government to offer a race-neutral reason for the strikes.       Purkett v.
Elem,
    115 S. Ct. 1769
    , 1770 (1995); United States v. Carr,
    67 F.3d 171
    , 175
(8th Cir.
1995).   If the government gives a race-neutral reason, the trial court must
decide whether the defendant has proven purposeful racial discrimination
by evaluating the reason's persuasiveness.
    Purkett, 115 S. Ct. at 1770-71
    .
We reverse a trial court's ultimate finding on the discrimination issue
only if the finding is "``not fairly supported by the record.'"
    Id. at 1771 
    (quoting 28 U.S.C. § 2254(d)(8)).
During voir dire, the prosecutor used peremptory challenges to remove
a black juror, Harris, and a black alternate juror, Dougherty, over
Troupe's objections.    At a belated Batson hearing, the prosecutor referred
to the notes she took during voir dire and explained that she struck juror
Harris because he had an offensive demeanor, was "disagreeable and amused
at the whole process," and was uncommunicative.            After the prosecutor
explained her reasons for striking Harris, the trial court found the
prosecutor was not motivated by discriminatory intent.
The    record     supports   the   trial   court's     finding.      Because
discriminatory intent is not inherent in the prosecutor's reasons for
striking Harris, the reasons are race neutral.
    Id. Although a 
    trial court
might be less inclined to believe subjective reasons than objective ones,
see
    id., the trial 
    court chose to believe the prosecutor's race-neutral
justifications, and we defer to the trial court's assessment of the
prosecutor's credibility in this habeas proceeding,
    Batson, 476 U.S. at 98 
    n.21; Marshall v. Lonberger,
    459 U.S. 422
    , 434 (1983).
As for the removal of the alternate black juror, Dougherty,           Troupe
failed to challenge Dougherty's removal in his direct state court appeal,
and thus procedurally defaulted the claim.       Turner v. Delo, No. 95-1231,
    1995 WL 653836
    , at *1-2 (8th Cir. Nov. 8, 1995).         Troupe has not asserted
cause or prejudice to excuse the default, or that our failure to review the
claim would result in a fundamental miscarriage of justice.         Accordingly,
Troupe's
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procedural default prevents us from considering his claim that Dougherty's
removal violated Batson.
    Id. at *2. 
    Last, Troupe contends the Missouri trial court's admission of his
earlier deviate sexual intercourse conviction violates his due process
rights.      In a federal habeas proceeding, we narrowly review alleged due
process violations stemming from a state court conviction.       Anderson v.
Goeke,
    44 F.3d 675
    , 679 (8th Cir. 1995).     We grant habeas relief based on
a    state   court evidentiary ruling only if the alleged error was so
conspicuously bad that it fatally infected the trial and rendered it
fundamentally unfair.
    Id. To meet 
    this standard, the defendant must show
a reasonable probability that the error affected the trial's outcome.
    Id. Having reviewed 
    the record, we find no constitutional violation.    Given
the other evidence at trial,
    see 863 S.W.2d at 636
    , we cannot say the
admission of Troupe's earlier conviction affected the trial's outcome.
We affirm the dismissal of Troupe's habeas petition.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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