McMiller v. State , 2014 Ark. LEXIS 536 ( 2014 )

Cite as 2014 Ark. 416
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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