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In a split decision, an Arkansas appellate court has thrown out the conviction and 100-year sentence of a shooting defendant because of issues related to jury selection and race.

Shelby Jamal Davis, 24, was found guilty by a Miller County jury of aggravated robbery and four counts of battery. Witnesses testified that Davis shot an unarmed man in both arms and both legs in the parking lot of a Texarkana, Ark., apartment complex after robbing him.

The jury sentenced Davis to 40 years for robbery and 20 years on each of the battery counts. Those terms they recommended to run concurrently. The jury also found that Davis used a firearm in commission of the offense. That finding led to additional 15-year terms which by law had to run consecutively to the 40-year term, meaning Davis received a 100-year sentence.

Five of the eight Arkansas Appeals Court justices who weighed in on the case agreed that Davis' convictions and resulting sentence should be thrown out and a new trial ordered. Three justices disagreed, holding a dissenting opinion that they would affirm.

At trial, the state used five of its strikes to eliminate potential jurors who were African American. Three African American panel members were ultimately seated on the jury. The defense objected during jury selection that the state appeared to be violating established case law precedent which makes it unlawful to strike jurors based on race.

The state provided the court with race-neutral reasons for the strikes, which the trial judge accepted.

The majority agreed with the defense's argument that the court did not properly apply all three steps outlined in Batson, the U.S. Supreme Court case which led to the creation of the steps used to analyze race-based challenges during jury selection.

"Our focus is solely on whether a constitutionally mandated process was correctly followed—not whether the conclusion at the end of a correctly applied process is sufficiently supported by the record. The two things are not one and the same," the majority opinion states. "Here, we agree with Davis that the circuit court seems to have believed that it had to accept the State's race-neutral reasons at their face values, which is contrary to Supreme Court precedent."

The higher court found that the trial judge might have disallowed one or more of the state's strikes of African Americans on the jury panel if it had applied the rules appropriately. A change in the makeup of the jury could have altered the outcome of the case.

"In other words, the court thought its hands were tied because the prosecutor had given a race-neutral reason; but the prevailing Supreme Court precedents place no such binding upon a circuit court's power or judgment," the opinion states. "All this is to say that we are persuaded the circuit court was concerned with the prosecution's course during jury selection. And though facially race-neutral reasons were given for five of the six peremptory strikes the State exercised against African Americans, the court held that it was bound to accept the reasons (even irrational ones) when it was not so bound. Moreover, the court flatly rejected a for-cause strike when the State tried to exclude an African American venire member after it had exhausted its allotted peremptory strikes. The tone of that rejection further informs our conclusion that the court may well have denied one or more of the State's peremptory challenges had the court believed the Federal Constitution empowered it to reject a race-neutral reason as being a pretext for intentional discrimination."

Three appellate court justices disagreed with the majority, arguing in a dissenting opinion that once a Batson objection is made, the onus to prove the race-neutral reason given by the state is just a cover for a race-motivated strike shifts to the defense.

"Failure of the strike's opponent to present more evidence or more additional relevant proof is fatal to a Batson objection. In the present case, I do not believe that appellant Davis met his burden of going forward at the third step of the Batson procedure with respect to any of the jurors challenged by the State, for which the State had provided race-neutral explanations," the dissenting opinion states. "Here, Davis failed in his burden of moving the matter forward to the third step of the Batson process. For this reason, I cannot assign error to the trial court's application of the Batson criteria or its denial of Davis's Batson challenges."

Because the majority of the Arkansas Court of Appeals found the case should be reversed, Davis is likely to receive a new trial.

Aggravated robbery is punishable by 10 to 40 years or life in prison. Each of the four counts of battery, one for each of the victim's bullet wounds, is punishable by five to 20 years or life.

If a jury finds again that Davis used a firearm during the commission of battery, Davis faces up to 15 additional years on each count of battery. Any time assessed for the firearm enhancement must be served consecutively to any time received on a count of battery alone.

Davis rejected an offer during his first trial to plead guilty and accept a 40-year term.

llarowe@texarkanagazette.com

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