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State v. Magee5/6/2005
rt of a pattern of racial strikes. The State used five peremptory challenges of its allotted twelve to excuse three African-American jurors and two white jurors, as well as the additional challenge to strike the potential alternate. Had discrimination been its purpose, the State had seven unused peremptory challenges available, which it could conceivably have used to exclude the three African-American jurors who served on the jury. See Rodriguez, 01-2182 at pp. 9-10, 822 So.2d at 129-130; see also State v. White, 96-0592, p. 8 (La.App. 1st Cir.12/20/96), 686 So.2d 96, 101, where we found the State's use of peremptory challenges against prospective African-American jurors was not a Batson violation where one African-American served on the jury, and the State had six unused peremptory challenges.
We reject the defendant's claim that the State's expressed reasons for striking Climel Young and Kylandis Jackson were pretextual because jurors who either sat on the jury or were not challenged by the State shared similar circumstances with them. The defendant was from Angie. Climel Young lived in Angie. Sherry Seal and Jacqueline Brignac, white jurors who sat on the jury, also lived in Angie. The defendant contends that because all three jurors lived in Angie, the fact that the prosecutor excused the African-American juror, but not the two white jurors, indicates discrimination by the prosecutor. We disagree with that generalization. The fact that a prosecutor excuses one person with a particular characteristic and not another similarly situated person does not in itself show that the prosecutor's explanation was a mere pretext for discrimination. The accepted juror may have exhibited traits which the prosecutor could have reasonably believed would make him desirable as a juror. State v. Collier, 553 So.2d 815, 822 (La: 1989). Furthermore, the main reason given by the prosecutor for excusing Climel Young was that he felt he was not honest. The record shows that Mr. Young was eleven years younger than the defendant, yet he testified that he and the defendant went to high school together, a highly unlikely circumstance.
Similarly, the defendant contends that the prosecutor's challenge of Kylandis Jackson was racially motivated. Ms. Jackson stated she was in school and would find it hard to pay attention as a juror. Toni Taylor, a white venire member, struck by the defense, stated she had become a widow only six days ago and would not be able to "keep mind" on the proceedings. While both jurors expressed some inability to concentrate, the record reveals that Toni Taylor's responses reflected a willingness to participate as a juror, while Ms. Jackson's responses maintained a reluctance to participate as a juror.
Thus, while it appears the potential jurors may ostensibly have been similarly situated, the accepted juror (before she was struck by the defense) clearly exhibited a trait the prosecutor believed would make her desirable as a juror--a willingness to participate as a juror. Based on the entire content of the voir dire, we find that the trial court did not err in denying defendant's Batson challenges as to Mr. Young and Ms. Jackson. This assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 4
In his fourth assignment of error, the defendant avers the trial judge erred in allowing the videotaped interviews of D.H. and G.H. to be introduced. Specifically, the defendant contends that the State did not establish the prerequisites for the introduction of such videotapes pursuant to La. R.S. 15:440.4.
Prior to its amendment by Acts 2004, No. 241, § 1, La. R.S. 15:440.4 provided, in pertinent part:
A. A videotape of a child fourt
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