Morning v. Zapata Protein

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BOB D. MORNING, SR.,
Plaintiff-Appellant,
v.
No. 96-2308
ZAPATA PROTEIN (USA),
INCORPORATED, formerly known as
Zapata Haynie Corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert R. Merhige, Jr., Senior District Judge.
(CA-95-1015)
Argued: October 2, 1997
Decided: October 27, 1997
Before WILKINSON, Chief Judge, RUSSELL, Circuit Judge,
and BOYLE, Chief United States District Judge for the
Eastern District of North Carolina, sitting by designation.
_________________________________________________________________
Affirmed by published opinion. Chief Judge Wilkinson wrote the
opinion, in which Judge Russell and Chief Judge Boyle joined.
_________________________________________________________________
COUNSEL
ARGUED: Jesse Marden Suit, III, RUTTER & MONTAGNA,
L.L.P., Norfolk, Virginia, for Appellant. Albert Davis Bugg, Jr.,
RUMSEY & BUGG, Irvington, Virginia, for Appellee.
_________________________________________________________________
OPINION
WILKINSON, Chief Judge:
Appellant Robert D. Morning advances two grounds for overturn-
ing the jury verdict for appellee Zapata Protein (USA), Inc. on his
Jones Act claim. First, he alleges that Zapata's peremptory strikes of
two potential jurors were impermissibly race-based under Batson v.
Kentucky, 476 U.S. 79 (1986), and Edmonson v. Leesville Concrete
Co., Inc., 500 U.S. 614 (1991) (extending Batson to civil cases).
Because the Batson claim was raised after the jury was sworn and the
venire dismissed, the trial judge refused to consider it. We affirm the
trial court's decision. And, in light of the substantial evidence that
supports the result below, we see no reason to upset the jury's verdict.
I.
Morning worked as a marine engineer aboard the Chesapeake Bay,
a fishing vessel owned and operated by Zapata. On June 5, 1992,
Morning was pulling large drum fish and sharks out of the net. One
large shark came off the gaffing hook he was using, and Morning
stepped backwards to regain his balance. The fish that had been col-
lected on the deck made its surface slippery. Morning slipped and fell
over the fish pump hose that lay on the deck behind him.
Morning filed suit under the Jones Act, 46 App. U.S.C. § 688,
alleging personal injuries. At trial on June 5 and 6, 1996, Morning
maintained that unseaworthy conditions on the Chesapeake Bay had
caused his injuries. Morning acknowledged that slippery conditions
are unavoidable when a fishing vessel is engaged in unloading her
nets. However, he asserted that the fish pump hose on the Chesapeake
Bay was unusually close to the ship's rail, making his work conditions
unsafe. At trial Zapata introduced photographs of its other ships to
demonstrate that the position of the hose on the Chesapeake Bay did
not substantially differ from that on the company's other vessels.
Zapata also produced pictures of the Chesapeake Bay herself, taken
the morning of the accident, that refuted Morning's contention that
the hose was unusually or dangerously close to the rail.
2
The jury in this case was selected from a panel of twenty-four
veniremen that included seven African-Americans. Seven people
were called from the venire to the jury box. Morning exercised two
peremptory challenges, striking two white jurors. Zapata exercised
one peremptory challenge to strike the only black juror in the group
of seven. Three more persons were then called from the venire,
including one black woman. Zapata exercised a second peremptory
strike to remove her. A final individual was called from the venire,
a white woman, whom neither party challenged. The jury was sworn
and the remaining veniremen were excused and left the courtroom.
After the venire was dismissed Morning raised a Batson objection
to Zapata's peremptory strikes. The district court considered this
claim at a sidebar conference. Counsel for Zapata proffered the poten-
tial jurors' intelligence and educational backgrounds as the basis for
its strikes. Morning objected that one white juror had an educational
background similar to the two stricken jurors and a second white juror
had a "weaker" educational background. Zapata responded that the
two black jurors who were stricken had twelfth and eleventh grade
educations, while every serving juror except one had undertaken some
post-high school education. The one exception was a juror who had
obtained her graduate equivalency diploma and worked as a store
supervisor. According to Zapata, this juror thus achieved a higher
level of employment responsibility than either of the stricken black
jurors (one was unemployed, the other a school bus shop aide).
The court then took Morning's Batson motion under advisement.
After the jury returned a verdict for Zapata, the district court denied
the Batson motion as untimely because it was raised after the venire
had been dismissed. The court also rejected Morning's request to
overturn the jury's verdict as contrary to the evidence. Morning now
appeals.
II.
Morning alleges that Zapata's counsel employed peremptory
strikes to exclude black veniremen from the jury in violation of the
Equal Protection Clause, see Batson, 476 U.S. at 89. The district court
did not abuse its discretion in dismissing this claim as untimely.
3
The rule that objections not timely raised are waived is well-
established, see United States v. Socony-Vacuum Oil Co., Inc., 310
U.S. 150, 238-39 (1940), and serves important purposes. A prompt
objection provides an opportunity for prompt error correction, avoid-
ing costly mistrials and unnecessary reversals. See, e.g., Government
of the Virgin Islands v. Forte, 806 F.2d 73, 75 (3d Cir. 1986). Even
if the objector does not initially prevail on a meritorious claim, the
objection will be better preserved for appeal if the trial court compiles
a record while parties' recollections remain fresh. Id. at 76.
This general rule of timeliness is especially pertinent to Batson
challenges. It allows the trial court to rule on what the court has only
recently observed, namely the exercise of a peremptory jury strike.
See United States v. Grandison, 885 F.2d 143, 146 (4th Cir. 1989).
As the trial court noted, if a meritorious Batson challenge is raised
during jury selection, the error is easily remediable: an improper
peremptory strike may simply be disallowed. By contrast, the remedy
for a meritorious objection after dismissal of the venire is to declare
a mistrial and begin proceedings anew. United States v. Joe, 928 F.2d
99, 103 (4th Cir. 1991). Starting over with a new jury panel imposes
burdens on the court, the litigants and the witnesses. The court bears
additional and unnecessary jury costs. See United States v. Allen, 666
F. Supp. 847, 856 (E.D. Va. 1987) ("In this and most other jurisdic-
tions, jury costs have risen, and it is impractical to have a venire of
36 to 50 persons called and paid only to have them excused, and a
new venire called, just because the defense counsel has not made a
timely objection."), aff'd sub nom. United States v. Harrell, 847 F.2d
138 (4th Cir. 1988). And, of course, delay is most inconvenient for
litigants and witnesses. In this case, the parties had flown witnesses
to Virginia for trial and had incurred substantial expert witness fees
and expenses. Furthermore, counsel for both sides had invested much
effort in preparing for trial. Much of this effort might have been
duplicated if a Batson claim had been entertained after the close of
jury selection and trial had been rescheduled before another jury on
another day.
Batson itself left implementation of its holding to each court in the
context of its own jury selection procedure. 476 U.S. at 99. And in
Ford v. Georgia the Court recognized as "sensible" a rule that deemed
untimely a Batson claim "raised for the first time on appeal, or after
4
the jury is sworn, or before its members are selected." 498 U.S. 411,
422-23 (1991). The circuits have taken this cue, requiring Batson
challenges to be raised, at the latest, before the venire is excused. E.g.,
United States v. Parham, 16 F.3d 844, 847 (8th Cir. 1994) ("[A]
Batson objection must be made at the latest before the venire is dis-
missed and before the trial commences."); United States v. Maseratti,
1 F.3d 330, 335 (5th Cir. 1993) ("[T]o be timely, the Batson objection
must be made before the venire is dismissed and before the trial com-
mences."). Some circuits require a timely Batson challenge to be
raised even earlier, during voir dire. See United States v. Cashwell,
950 F.2d 699, 704 (11th Cir. 1992) (Batson objections must occur
during voir dire); Dias v. Sky Chefs, Inc., 948 F.2d 532, 534 (9th Cir.
1991) ("Batson objections must occur as soon as possible, preferably
before the jury is sworn.").
In United States v. Joe, though we did not confront the issue of
timeliness directly, we urged that Batson objections be raised and
ruled on as early as possible. 928 F.2d at 103. We have also deemed
untimely a Batson challenge raised for the first time on appeal. Clark
v. Newport News Shipbuilding and Drydock Co., 937 F.2d 934, 939-
40 (4th Cir. 1991). In light of these precedents, it is a modest and
well-justified step to hold that a Batson challenge raised after the
venire has been excused has been raised too late. Because Morning
did not object to Zapata's exercise of its peremptory strikes until after
this critical point, his objection was untimely, and, like the trial court,
we do not address the merits of his Batson claim.
III.
Morning also asks us to hold that the jury's verdict for Zapata was
unsupported by the evidence. However, the evidence outlined above
supports a verdict for Zapata. There was ample evidence that the fish
pump hose was not improperly situated, and the decks of fishing ves-
sels are slippery by nature. Indeed, if slime on the deck of a fishing
vessel renders it unseaworthy, there must be very few seaworthy fish-
ing vessels afloat. Like the district court, we cannot say "that the ver-
dict is against the clear weight of the evidence or is based upon
evidence which is false or will result in a miscarriage of justice." Gill
v. Rollins Protective Services Co., 773 F.2d 592, 594 (4th Cir. 1985).
We shall therefore affirm.
AFFIRMED
5