Jury selection. Denial of peremptory challenge of black juror, without showing of bad motive, was reversible error per se.

State v. Bol , 2011 VT 99 (Burgess, J.)  

Defendant  appeals from his conviction for giving false information to a police officer and possession of cocaine.  He argues that the trial court erred by preventing his counsel from using a peremptory challenge to strike a black member of the jury pool.  He claims that this error should result in a new trial.  We agree and reverse and remand.

 Today’s holding is narrow: the sole fact that a party moves to strike the only minority juror from the venire is insufficient, by itself, to establish a prima facie case of discriminatory motive.  Even a single additional circumstance could, in a different case, suffice to trigger a legitimate Batson inquiry.  Absent from the instant case was anything additionally noted by the trial court, such as counsel’s tone, demeanor, pattern, past conduct, or other surrounding circumstance, suggestive of a discriminatory motivation behind the peremptory challenge. 

It is settled Vermont law that when a defendant is left with an undesired juror after exhausting his peremptory challenges in response to the trial court’s failure to remove a juror properly challenged for cause, the court’s error is reversible error.   Reversal applies even in the absence of prejudice.   The situation is somewhat askew in the instant case where defendant was not wrongly required to exhaust his peremptory challenges, but was still compelled to abide a juror not to his liking when, but for the court’s error, the juror should have been excused. 

We have long treated the peremptory opportunity to strike some jurors without explanation as a “right essential to the full enjoyment of a respondent’s right to a jury trial” and, accordingly, reverse and remand for retrial when that right is wrongfully denied.   The State posits no reason for a different result here.