NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

i - 2023 KA 0794 STATE OF LOUISIANA

VERSUS i U ERNEST L. GOVERNOR

DA TE OF JUDGMENT: FEB 2 3 2024

ON APPEAL FROM THE EIGHTEENTH JUDICIAL DISTRICT COURT PARISH OF IBERVILLE, STATE OF LOUISIANA NUMBER 425- 21, DIVISION D

HONORABLE ELIZABETH A. ENGOLIO, JUDGE

Antonio M. " Tony" Clayton Counsel for Appellee District Attorney State of Louisiana Terri Russo Lacy Assistant District Attorney Plaquemine, Louisiana

Gwendolyn K. Brown Counsel for Appellant Baton Rouge, Louisiana Ernest L. Governor

BEFORE: GUIDRY, C.J., CHUTZ, AND LANIER, JJ.

Disposition: CONVICTION AND SENTENCE AFFIRMED.

CHUTZ, J.

The defendant, Ernest L. Governor, was charged by grand jury indictment with second degree murder, a violation of La. R.S. 14: 30. 1( A)( 1), and he pled not

guilty. After a trial by jury, the defendant was found guilty as charged. The defendant was subsequently sentenced to life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. The defendant now

appeals, assigning error to the trial court' s denial of his Batson' challenges to

peremptory strikes exercised by the State. For the following reasons, we affirm the conviction and sentence.

STATEMENT OF FACTS

On March 29, 2021, at the Elayn Hunt Correctional Center, the defendant

used a homemade knife to stab to death a fellow inmate, Reynault Danos. The

confrontation took place in Danos' s cell and was captured by video surveillance.

The Duty Warden, Colonel Donald Johnson, received an emergency phone call from the supervisor on shift, alerting him of the incident. When Colonel Johnson arrived at the tier, he found Danos on the floor of his cell, deceased.

BATSON CHALLENGES

The defendant asserts that the trial court erred in overruling his Batson challenges to the State' s use of peremptory strikes against nine African- American prospective jurors. In assignment of error number two, the defendant argues that

the trial court, in determining that the State' s reasons for the strikes were race neutral, erroneously applied the three- step analysis outlined in Batson.

An equal protection violation occurs if a party exercises a peremptory challenge to excuse a prospective juror on the basis of that person' s race. See

Batson, 476 U.S. at 96- 97, 106 S. Ct. at 1723. In Batson, 476 U.S. at 93- 98, 106

S. Ct. at 1721- 24, the United States Supreme Court adopted a three- step analysis to

have been infringed by impermissible discriminatory practices. First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race neutral explanation for striking the juror(s) in question. Finally, the trial court must determine whether the

defendant has carried his burden of proving purposeful discrimination. State v. Jackson, 2016- 1565 ( La. App. 1st Cir. 10/ 12/ 17), 232 So. 3d 628, 632, writ denied, 2017- 1944 ( La. 5/ 25/ 18), 243 So. 3d 566.

To establish a prima facie case, the defendant must show: ( 1) the striking

party' s challenge was directed at a member of a cognizable group; ( 2) the

challenge was peremptory rather than for cause; and ( 3) relevant circumstances sufficient to raise an inference that the prosecutor struck the venire person on

account of his being a member of that cognizable group. State v. Nelson, 2010- 1724 ( La. 3/ 13/ 12), 85 So.3d 21, 29. In determining whether a prima facie showing of purposeful discrimination has been demonstrated, Batson instructs that the trial

court should consider all relevant facts, including any pattern of strikes by the prosecutor against African-American jurors and any questions or statements by the prosecutor during voir dire examination or in exercising his challenges which may support or refute an inference of purposeful discrimination. See Jackson, 232

So. 3d at 632.

If a defendant makes a prima facie showing of discrimination in the use of peremptory challenges, the burden then shifts to the State to offer racially -neutral reasons for the use of the peremptory challenges. A neutral explanation for the challenge may be something less than a justification of a challenge for cause, but must be something more than the prosecutor' s assumption or intuition that the juror will be partial to the defendant solely because of the prospective juror' s race.

The neutral explanation must be one which is clear, reasonably specific, legitimate, and related to the particular case at bar. After the prosecutor has presented reasons

for his use of a peremptory challenge that on their face are racially neutral, the trial court must assess the weight and credibility of the explanation in order to determine whether there was purposeful discrimination in the use of the challenge.

The ultimate burden of persuasion is on the defendant. State v Kitts, 2017- 0777

La. App. 1st Cir. 5/ 10/ 18), 250 So. 3d 939, 962, writ denied, 2018- 00872 ( La. 1/ 28/ 20), 291 So. 3d 1057.

The mere invocation of Batson when minority prospective jurors are peremptorily challenged in the trial of a minority defendant does not present sufficient evidence to lead to an inference of purposeful discrimination. State v

Battley, 2022- 0940 ( La. App. 1st Cir. 7/ 6/ 23), 371 So. 3d 94, 101. The State, in presenting race -neutral reasons for its excusal of prospective jurors, need not present an explanation that is persuasive, or even plausible; unless a discriminatory intent is inherent in the striking party' s explanation, the reason offered will be deemed race neutral. A reviewing court owes the trial court' s evaluations of discriminatory intent great deference and should not reverse them unless they are clearly erroneous. Jackson, 232 So. 3d at 632- 33.

Herein, the defendant' s Batson challenges were raised during backstrikes, which occurred after voir dire, challenges for cause, and peremptory challenges of three panels of prospective jurors. The defense attorney specifically noted that the majority of the State' s strikes had been of African-American potential jurors. The parties stipulated that nine of the ten potential jurors excused by backstrikes exercised by the State were African American, with the other being a Caucasian male.2 Based on the stipulation, the trial court determined that the defendant met

Ii his initial burden and the State was required to provide race -neutral reasons for the

strikes.

The State offered the following race -neutral reasons for striking African- American prospective jurors. As to the first strike at issue, Ivan Hamilton, the State

noted that Hamilton took issue with the intent to inflict great bodily harm, as opposed to the intent to kill, being sufficient under the law to prove second degree murder. Regarding the second prospective juror at issue, Tomeka Huff, the State noted that her brother had been convicted of robbery. The State said that the third prospective juror, Joyce Price, indicated that she had some unarticulated personal

feelings that she would suppress during the trial. Regarding Tonya Williams, the fourth prospective juror at issue, the State specified that she is from the St. Gabriel

area, where the offense took place, and had concerns with her response regarding the burden of proof.3 The State then noted that the fifth potential juror at issue, Heidi Godchaux, had a sister who was the victim of a stabbing. As to Cheryl

Schexnayder, the sixth prospective juror at issue, the State specified that she

worked for the Department of Public Safety and Corrections for thirty years in a setting that housed criminal inmates, was from St. Gabriel, and knew one of the defense attorneys. The State noted that the seventh potential juror at issue,

Nakashia Snowten, knew one of the defense attorneys and had a brother in jail for

second degree murder. Regarding the eighth potential juror, Genesis Bouvay, the State noted that her father had a long prison record.

The defense attorney challenged the State' s given reasons, contending the State was required to give " a just cause" for striking the African-American potential jurors and failed to provide a valid reason for any of the strikes. While

the trial court denied the defendant' s Batson challenges.

In his appeal brief, the defendant notes that the State failed to provide an

explanation for its strike of one of the nine African-American prospective jurors.

The defendant further notes that the State accepted Caucasian jurors who lived in

the area and/ or had relatives who were victims of crimes or worked in law

enforcement. Thus, the defendant argues the trial court' s analysis on step three of the Batson test was inadequate, contending that a proper analysis would have led the court to find that some of the State' s proffered reasons appeared to be

pretextual.

Regarding the defendant' s argument on appeal that the State failed to provide a race neutral reason for one of the strikes against an African- American

prospective juror, the defendant failed to bring this to the trial court' s attention or re -urge his Batson challenge as to that specific juror. Further, while the State may have failed to strike some non -African- American potential jurors that shared traits

with stricken jurors, that alone would not show that the explanations for excusing the other prospective jurors were a mere pretext for discrimination. Although the

defendant now names specific jurors accepted by the State, the defendant did not name these jurors or make this argument below in asserting his Batson challenge.

The accepted jurors may have exhibited traits that the State reasonably could have believed would have made these individuals desirable as jurors. State v Drake,

2010- 1518 ( La. App. 1st Cir. 3/ 25/ 11), 2011 WL 1103422, at * 7 ( unpublished),

writ denied, 2011- 0838 ( La. 11/ 18/ 11), 75 So. 3d 450. As the defendant failed to Ri give the trial court a chance to address these circumstances, these arguments were

not properly preserved for appeal. See Jackson, 232 So.3d at 634.

We also note that it appears the defendant heavily relied on bare statistics to support a prima facie case of race discrimination. However, a pattern of strikes is

only one of the factors that may be considered in making this fact -intense determination. Kitts, 250 So. 3d at 962. While Batson cites a " pattern of strikes" as

an example of the type of evidence that can give rise to an inference of

discrimination, another equally significant example cited in Batson is the voir dire.

See United States v. Bergodere, 40 F. 3d 512, 517 ( 1 st Cir. 1994), cert. denied, 514

U.S. 10559 115 S. Ct. 14399 131 L.Ed.2d 318 ( 1995) ( citing voir dire colloquy between a prospective juror and attorneys which reflected " a legitimate,

nondiscriminatory reason why conscientious counsel might desire to exclude the juror from further service"). In this case, the prosecutor' s reasons were based on

verbal exchanges with the potential jurors at issue during voir dire.

We reiterate that the prosecutor' s explanations need not rise to the level of a

challenge for cause. Based on our review of the voir dire, we find that the State' s

race -neutral explanations were reasonable, and that the proffered rationales had

some basis in accepted trial strategy. See Jackson, 232 So.3d at 634. Regarding the law, Hamilton expressed reservations about a life sentence being imposed in a case where the defendant " got angry and at the time wanted to hurt someone but not

necessarily kill them." Price initially stated that she could not let her personal feelings come into play, as the jury would be required to live by the law, she believes in the law, she follows the law, and she ultimately agreed that the

applicable burden of proof was " okay" with her. However, Price intermediately stated, " the jurors have to firmly believe that the attorneys have presented their case to a hundred percent to the law." When then asked to repeat the given

percentage, she reiterated, "[ a] hundred percent." Williams similarly indicated that she did not have a problem with serving on a murder trial involving a possible life sentence, stating, "[ a] s far as -- the way that I look at it is if it' s proven to, as you said, a reasonable doubt then if that is the sentence that' s what it is." She then

added, "[ i] f the crime was committed and that' s what is proven then that' s what it

is."

Regarding the potential jurors' backgrounds, Huff stated her brother was

arrested for robbery when he was sixteen years old, and Godchaux stated that her sister had been stabbed to death in 2006 and that she herself had been stabbed in

the incident as well. Williams, Schexnayder, and Snowten lived in St. Gabriel, and

Snowten knew the defense attorney, as did Schexnayder. As the State indicated,

Schexnayder further had a lengthy history of working in law enforcement. Finally, as the State indicated, Bouvay stated that her father had been in and out of prison since before she was born and was released again that year.

Based on the State' s articulated reasons as a whole and our independent

review of the voir dire, we find the defendant failed to establish purposeful

discrimination in this case. The transcript does not reveal any evidence that the use of peremptory strikes by the State was motivated by impermissible considerations.

See Jackson, 232 So. 3d at 635. Further, we find no error in the trial court' s

application of the three- step Batson analysis. Thus, the assignments of error are without merit.

DECREE

For these reasons, we affirm the conviction and sentence of defendant -

appellant, Ernest Governor.

CONVICTION AND SENTENCE AFFIRMED.

N.