United States v. Arkeefe Sherrills A/K/A Keith Foster, 929 F.2d 393 (8th Cir. 1991). · Go Syfert
United States v. Arkeefe Sherrills A/K/A Keith Foster, 929 F.2d 393 (8th Cir. 1991). Cases Citing This Book View Copy Cite
G Cite
cited 3× by 2 distinct cases, last quoted 1994 · …particularly susceptible to the kind of abuse prohibited by batson. at p. 395
59 citation events (17 in the last 25 years) across 14 distinct courts.
Treatment trajectory · 1991 → 2026 · click a year to view as-of
1991 2008 2026
Top citers, strongest first. 31 distinct citers. How cited ↗
discussed Cited "but see" United States v. Emmanuel Jones (2×) also: Cited as authority (rule)
8th Cir. · 2001 · signal: but see · confidence high
But see United States v. Sherrills, 929 F.2d 393, 395 (8th Cir.1991) (indicating “a prosecutor’s explanation of challenges on the grounds of inattentiveness deserves careful scrutiny by the district court, and special care by counsel to fully develop the record concerning the specific behavior” because determining whether such general assertions are accurate “requires subjective judgments that are particularly susceptible to the kind of abuse prohibited by Batson ”).
discussed Cited "but see" United States v. Emmanuel Jones (2×) also: Cited as authority (rule)
8th Cir. · 2001 · signal: but see · confidence high
But see United States v. Sherrills, 929 F.2d 393, 395 (8th Cir. 1991) (indicating "a prosecutor's explanation of challenges on the grounds of inattentiveness deserves careful scrutiny by the district court, and special care by counsel to fully develop the record concerning the specific behavior" because determining whether such general assertions are accurate "requires subjective judgments that are particularly susceptible to the kind of abuse prohibited by Batson").
cited Cited as authority (rule) State of Tennessee v. Robert Allison Franklin
Tenn. Crim. App. · 2018 · confidence medium
App. 2000) (citing United States v. Jenkins, 52 F.3d 743, 746 (8th Cir. 1995); United States v. Sherrills, 929 F.2d 393, 395 (8th Cir. 1991)).
discussed Cited as authority (rule) United States v. Allen
8th Cir. · 2011 · confidence medium
We have observed that some race-neutral explanations, such as inattentiveness, require “subjective judgments that are particularly susceptible to the kind of abuse prohibited by Batson.” United States v. Sherrills, 929 F.2d 393, 395 (8th Cir.1991).
discussed Cited as authority (rule) Patti Zakour v. Ut Medical Group, Inc., & Scott Craig, M.D. (2×) also: Cited "see, e.g."
Tenn. · 2007 · confidence medium
Brown v. Kelly, 973 F.2d 116, 121 (2d Cir. 1992) (citing United States v. Sherrills, 929 F.2d 393, 395 (8th Cir. 1991)).
discussed Cited as authority (rule) Zakour v. UT Medical Group, Inc. (2×) also: Cited "see, e.g."
Tenn. · 2007 · confidence medium
Brown v. Kelly, 973 F.2d 116, 121 (2d Cir.1992) (citing United States v. Sherrills, 929 F.2d 393, 395 (8th Cir.1991)).
discussed Cited as authority (rule) Lewis v. Bennett
W.D.N.Y. · 2006 · confidence medium
In Messiah v. Duncan, 435 F.3d 186, 200 (2d Cir.2006), the Second Circuit found no pretext with respect to the prosecutor’s striking of juror reported to have been reading a newspaper, noting that “[a] prosecutor may reasonably have qualms about a panelist who fails to pay attention during voir dire.” See also United States v. Rudas, 905 F.2d 38 (2d Cir.1990) (“In addition, the Government’s concern about a juror’s inattentiveness [struck juror “was or appeared to be sleeping” during voir dire] is a good reason for its exercising a peremptory challenge.”) (citing United States…
cited Cited as authority (rule) State v. Carroll
Tenn. Crim. App. · 2000 · confidence medium
See United States v. Jenkins, 52 F.3d 743, 746 (8th Cir.1995); United States v. Sherrills, 929 F.2d 393, 395 (8th Cir.1991).
discussed Cited as authority (rule) State v. Hobley
La. · 1999 · confidence medium
We concluded the quantity of the evidence did not impermissibly shift the jury's focus from its primary function of determining the appropriate sentence for the offense and the offender. [5] The trial court here expressed doubt as to the clear and convincing nature of the confession alone, but it believed that our decision in Hamilton was controlling. [6] In United States v. Sherrills, 929 F.2d 393, 395 (8th Cir.1991), the court acknowledged that the trial court's observations are extremely critical in judging inattentiveness, which involves "subjective judgments that are particularly suscepti…
cited Cited as authority (rule) State v. Calvin Scott
Tenn. Crim. App. · 1999 · confidence medium
Id. (citing United States v. Jenkins, 52 F.3d 743, 746 (8th Cir. 1995); United States v. Sherrills, 929 F.2d 393, 395 (8th Cir. 1991)).
discussed Cited as authority (rule) State v. Jones
N.M. · 1997 · confidence medium
While it is true that explanations based on subjective judgments such as these “are particularly susceptible to the kind of abuse prohibited by Batson," United States v. Sherrills, 929 F.2d 393, 395 (8th Cir.1991), it is equally true that “[j]ury selection is inherently subjective,” United States v. Wallace, 32 F.3d 921, 925 (5th Cir.1994). “[M]any of the judgments made by counsel in picking a jury are purely intuitive and based upon inarticulable factors.” United States v. Bentley-Smith, 2 F.3d 1368, 1374 (5th Cir. 1993).
cited Cited as authority (rule) United States v. James William Jenkins, Jr., Also Known as Diamond, United States of America v. Diamond Level Coleman, United States of America v. Reevious G. Henderson, Also Known as Dexter Henderson
8th Cir. · 1995 · confidence medium
United States v. Sherrills, 929 F.2d 393, 395 (8th Cir.1991).
cited Cited as authority (rule) United States v. Jenkins
8th Cir. · 1995 · confidence medium
United States v. Sherrills, 929 F.2d 393, 395 (8th Cir.1991).
discussed Cited as authority (rule) United States v. Frederick E. Scott, United States of America v. Joe J. Richard (2×) also: Cited "see"
8th Cir. · 1994 · confidence medium
We have noted concern in this circuit over the use of “subjective judgments” to explain the exercise of peremptory strikes because such judgments are “particularly susceptible to the kind of abuse prohibited by Batson.” United States v. Sherrills, 929 F.2d 393, 395 (8th Cir.1991), quoted in Reynolds, 931 F.2d at 513.
discussed Cited as authority (rule) Taylor v. State
Ala. Crim. App. · 1994 · confidence medium
This difficulty is compounded by the need to compare the attentiveness of the challenged venire members with those who were not challenged." United States v. Sherrills, 929 F.2d 393, 395 (8th Cir.1991).
cited Cited as authority (rule) State v. Holloway
Mo. Ct. App. · 1994 · confidence medium
Metts, 829 S.W.2d at 587 [2], quoting U.S. v. Sherrills, 929 F.2d 393, 395 (8th Cir.1991).
discussed Cited as authority (rule) Hatten v. State
Miss. · 1993 · confidence medium
United States v. Sherrills, 929 F.2d 393, 395 (8th Cir.1991) (inattentiveness may not be pretextual where venireman incorrectly responded to question, however "[d]etermining who is and who is not attentive requires subjective judgments that are particularly susceptible to the kind of abuse prohibited by Batson . ...
discussed Cited as authority (rule) United States v. Robert E. Johnson, United States of America v. Charles Edwin Nottingham, United States of America v. Dee Dee Romo, A/K/A Deidre Harrell, United States of America v. Gerald Lee Carroll
10th Cir. · 1993 · confidence medium
United States v. Todd, 963 F.2d 207, 211 (8th Cir.1992) (inattentiveness is race neutral); Moore v. Keller Ind., Inc., 948 F.2d 199, 202 (5th Cir.1991) (same), cert. denied, --- U.S. ----, 112 S.Ct. 1945 , 118 L.Ed.2d 550 (1992); United States v. Sherrills, 929 F.2d 393, 395 (8th Cir.1990) (same); United States v. Roberts, 913 F.2d 211, 214 (5th Cir.1990) (same), cert. denied sub. nom., --- U.S. ----, 111 S.Ct. 2264 , 114 L.Ed.2d 716 (1991); United States v. Lance, 853 F.2d 1177, 1181 (5th Cir.1988) (same); see also Barfield v. Orange County, 911 F.2d 644, 648 (11th Cir.1990) (hostile facial e…
discussed Cited as authority (rule) United States v. Johnson
10th Cir. · 1993 · confidence medium
United States v. Todd, 963 F.2d 207, 211 (8th Cir.1992) (inattentiveness is race neutral); Moore v. Keller Ind., Inc., 948 F.2d 199, 202 (5th Cir.1991) (same), cert. denied, — U.S. -, 112 S.Ct. 1945 , 118 L.Ed.2d 550 (1992); United States v. Sherrills, 929 F.2d 393, 395 (8th Cir.1990) (same); United States v. Roberts, 913 F.2d 211, 214 (5th Cir.1990) (same), cert. denied sub. nom., — U.S. -, 111 S.Ct. 2264 , 114 L.Ed.2d 716 (1991); United States v. Lance, 853 F.2d 1177, 1181 (5th Cir.1988) (same); see also Barfield v. Orange County, 911 F.2d 644, 648 (11th Cir.1990) (hostile facial express…
cited Cited as authority (rule) United States v. Swinney
8th Cir. · 1992 · confidence medium
United States v. Sherrills, 929 F.2d 393, 395 (8th Cir.1991).
discussed Cited as authority (rule) State v. Davis
Mo. Ct. App. · 1992 · confidence medium
Such a “reason” requires a subjective judgment on the part of the State’s attorney that is “particularly susceptible to the kind of abuse prohibited by Batson." U.S. v. Sherrills, 929 F.2d 393, 395 (8th Cir.1991).
discussed Cited as authority (rule) United States v. Alan R. Todd
8th Cir. · 1992 · confidence medium
See United States v. Hoelscher, 914 F.2d 1527, 1540-41 (8th Cir.1990), cert. denied, — U.S. —, 111 S.Ct. 971 , 112 L.Ed.2d 1057 , and cert. denied, — U.S. —, 111 S.Ct. 2240 , 114 L.Ed.2d 482 (1991) (relatives with drug problems sufficient race neutral reason); United States v. Sherrills, 929 F.2d 393, 394-95 (8th Cir.1991) (inattentiveness sufficient race neutral reason); United States v. Lance, 853 F.2d 1177, 1181 (5th Cir.1988) (demeanor sufficient race neutral reason).
cited Cited as authority (rule) State v. Metts
Mo. Ct. App. · 1992 · confidence medium
U.S. v. Sherrills, 929 F.2d 393, 395 (8th Cir.1991).
cited Cited "see" United States v. Ellison
8th Cir. · 2010 · signal: see · confidence high
See United States v. Sherrills, 929 F.2d 393, 395 (8th Cir.1991); see also Reynolds v. Benefield, 931 F.2d 506 , 513 (8th Cir.1991); United States v. Maxwell, 473 F.3d 868, 872 (8th Cir.2007).
cited Cited "see" State v. Miller
Mo. Ct. App. · 2005 · signal: see · confidence high
See Metts, 829 S.W.2d at 587 (quoting U.S. v. Sherrills, 929 F.2d 393, 395 (8th Cir.1991)).
discussed Cited "see" Larry Brown v. Walter Kelly, Superintendent, Attica Correctional Facility (2×) also: Cited "see, e.g."
2d Cir. · 1992 · signal: see · confidence high
See Sherrills, 929 F.2d at 395 .
examined Cited "see" Reynolds v. Benefield (3×) also: Cited "see, e.g."
unknown court · 1991 · signal: see · confidence high
See 929 F.2d at 395 .
examined Cited "see" Reynolds ex rel. Estate of Reeves v. Benefield (3×) also: Cited "see, e.g."
unknown court · 1991 · signal: see · confidence high
See 929 F.2d at 395 .
discussed Cited "see, e.g." Bryant v. Speckard
W.D.N.Y. · 1996 · signal: see also · confidence medium
See also, United States v. Scott, 26 F.3d 1458, 1466 (8th Cir.) (voicing concern “over the use of ‘subjective judgments’ to explain the exercise of peremptory strikes because such judgments are ‘particularly susceptible to the kind of abuse prohibited by Batson.’ ” (quoting United States v. Sherrills, 929 F.2d 393, 395 (8th Cir.1991))), cert. denied sub nom.
discussed Cited "see, e.g." George McCrory v. Robert J. Henderson, Superintendent, Auburn Correctional Facility, Hon. Robert Abrams, Attorney General of the State of New York
2d Cir. · 1996 · signal: see, e.g. · confidence medium
See, e.g., United States v. Sherrills, 929 F.2d 393, 395 (8th Cir.1991)(juror inattentiveness may be valid race-neutral reason); Barfield v. Orange County, 911 F.2d 644, 648 (11th Cir.l990)(hostile facial expressions can provide legally sufficient basis for use of peremptory challenge), cert. denied, 500 U.S. 954 , 111 S.Ct. 2263 , 114 L.Ed.2d 715 (1991); Forbes, 816 F.2d at 1010-11 (finding that prosecutor’s use of peremptory challenge to excuse black juror because “[h]e sensed by her posture and demeanor that she was hostile to being in court” was not based on race).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Appellee,
v.
Arkeefe SHERRILLS A/K/A Keith Foster, Appellant
89-2824.
Court of Appeals for the Eighth Circuit.
Mar 28, 1991.
929 F.2d 393
Richard Banks, Clayton, Mo., for appellant., Steven Holtshouser, Asst. U.S. Atty., St. Louis, for appellee.
Beam, Gibson, John, Magill.
Cited by 35 opinions  |  Published
JOHN R. GIBSON, Circuit Judge.

Arkeefe Sherrills was convicted of possessing more than five grams of cocaine base with intent to distribute, 21 U.S.C. § 841(a)(1) (1988), and sentenced to eighty-seven months in prison. On appeal, he argues that the government improperly used its peremptory strikes to eliminate blacks from the jury in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). He also argues that the district court [1] improperly allowed an expert to testify on redirect examination about an error in his earlier testimony, and that the conviction should be reversed because the prosecutor misstated the evidence in her closing argument. We affirm the conviction.

The venire for this case included six blacks out of a total of 33 people. One black was struck for cause. The government then attempted to use peremptory strikes to eliminate the other five blacks from the jury. The district court determined that there was a prima facie case of impropriety under Batson v. Kentucky, and required the government to come forward with a neutral explanation for its challenges. See 476 U.S. at 97, 106 S.Ct. at 1723. The prosecutor stated that she had challenged three of the blacks because they were inattentive. She stated that the first of these three had incorrectly answered that she had served as the foreperson on a previous jury. After the court explained the meaning of “foreperson,” that venire-woman quickly corrected her answer. The second of these three had failed to answer a voir dire question about whether any one on the venire had any relatives who worked for the government, though his juror form showed his wife was a postal service employee. The third failed to answer a question about whether any venire member worked for the government, though his form showed he was a postal service employee. He did, however, give that information when venire members were asked if any of their relatives worked for the government.

The prosecutor stated that she challenged the next black because she had never been employed. The propriety of this challenge is moot because the woman encountered the defendant’s girl friend during a break in the voir dire and was removed for cause as a result of their conversation.

The prosecutor stated that she challenged the sixth black on the panel because he was unemployed and she viewed this as indicating a lack of stability.

The court accepted the government’s explanation of the three challenges on the grounds of inattentiveness. However, it disallowed the challenge of the sixth black on the grounds of unemployment and reinstated the challenged venireman to the jury.

Therefore, the question before us is whether the district court was clearly erro[*395] neous in concluding that the government’s three strikes on the avowed grounds of “inattentiveness” were exercised for racially neutral reasons. United States v. Jackson, 914 F.2d 1050, 1052 (8th Cir.1990).

Sherrills argues that the term “inattentiveness” is too subjective and not susceptible to proof. Further, he argues that the prosecutor’s claim that a person was inattentive cannot be refuted without a complete record of the voir dire, such as a video tape, in order to determine whether white venire members were similarly inattentive.

We have in the past considered inattentiveness or inability to follow the evidence to be a valid, racially neutral basis for exercising peremptory challenges. United States v. Hoelscher, 914 F.2d 1527, 1541 (8th Cir.1990), cert. denied, — U.S. —, 111 S.Ct. 971, 112 L.Ed.2d 1057 (1991); United States v. Davis, 871 F.2d 71, 72 (8th Cir.1989); United States v. Rodrequez, 859 F.2d 1321, 1325 (8th Cir.1988), cert. denied, 489 U.S. 1058, 109 S.Ct. 1326, 103 L.Ed.2d 594 (1989). Accord, United States v. Roberts, 913 F.2d 211, 214 (5th Cir.1990).

We are, however, concerned about the generality of such an explanation as inattentiveness for the striking of venire members. Determining who is and is not attentive requires subjective judgments that are particularly susceptible to the kind of abuse prohibited by Batson. There is the additional problem that judging attentiveness requires observations of demeanor that will often not be reflected by the written record. This difficulty is compounded by the need to compare the attentiveness of the challenged venire members with those who were not challenged.

These factors make the district court’s observations particularly crucial. We believe a prosecutor s explanation of challenges on the grounds of inattentiveness deserves careful scrutiny by the district court, and special care by counsel to fully develop the record concerning the specific behavior by venire members motivating counsel to make a peremptory challenge based on inattentiveness.

On the record before us, however, we can only conclude that there was support for the challenges made, and Sherrills has not demonstrated that the district court’s ruling was clearly erroneous. [2]

We have considered Sherrills’ other arguments and conclude they have no merit. Permitting the expert to explain the mistake in his own testimony was well within the district court’s discretion, and Sherrills’ attorney made very good use of the mistake in recross examination. As to the closing argument, Sherrills complains that no evidence supported the prosecutor’s statement that “there is no humanly way possible that a single individual could ingest two grams and certainly not four grams a day.” This was an inference that the prosecutor drew during the course of her argument from the evidence of the weight of a dosage unit of crack, and was within the district court’s discretion to allow. Sherrills also complains of the prosecutor’s incorrect statement that no pipe was found in the house where Sherrills was arrested. The prosecutor argued that if Sherrills had been so heavily addicted that he possessed 26 grams of crack for his personal use, he would have been smoking incessantly and would not have gone anywhere without a pipe. Sherrills did not object to the misstatement at trial, and in the light of the overwhelming evidence against Sherrills, this argument was at[*396] most harmless error. See United States v. Kragness, 830 F.2d 842, 871 (8th Cir.1987).

The conviction is affirmed.

1

. The Honorable William L. Hungate, United States District Judge for the Eastern District of Missouri.

2

. Sherrills has called to our attention a number of cases arising from the Eastern District of Missouri, before and after Batson, stating that the United States Attorney’s office there makes a practice of discriminatory use of peremptory challenges. United States v. Johnson, 721 F.Supp. 1077 (E.D.Mo.1989), aff'd, 905 F.2d 222 (8th Cir.1990), cert. denied, — U.S. —, 111 S.Ct. 304, 112 L.Ed.2d 257 (1990). We have affirmed the district court's decision in Johnson, and we need not comment further on these cases. We are troubled, however, by the government’s reliance on dicta of the district court in Johnson, a decision which openly criticizes Batson. It should not be necessary for us to say that district courts, district attorneys and this court must follow Batson.