State v. Crespin

• Decision Date: 27 May 1980
• Docket Number: No. 4581,4581
• Citation: 612 P.2d 716,1980 NMCA 73,94 N.M. 486
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Eloisa CRESPIN, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 716

612 P.2d 716

94 N.M. 486

STATE of New Mexico, Plaintiff-Appellee, v. Eloisa CRESPIN, Defendant-Appellant.

No. 4581.

Court of Appeals of New Mexico.

May 27, 1980.

[94 NM 486] John B. Bigelow, Chief Public Defender, Martha A. Daly, Appellate Defender, Santa Fe, for defendant-appellant.

Jeff Bingaman, Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

HENDLEY, Judge.

Summary affirmance was proposed by notice filed April 22, 1980. The defendant has filed a timely memorandum opposing affirmance as to one issue and does not oppose affirmance on the other issue.

The defendant claims error in the trial court's refusal to require the State to place on the record its reasons for exercising a peremptory challenge against the only black member of the jury venire. This case raises an issue of first impression in New Mexico.

Generally, the reason underlying a party's exercise of a peremptory challenge is unreviewable since the reasons may, permissibly, relate to matters wholly subjective and unrelated to the legal proceedings. As stated in Swain v. State of Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965):

The essential nature of the peremptory challenge is that it is one exercised without a reason stated, without inquiry and without being subject to the court's control. (Citations omitted.) While challenges for cause permit rejection of jurors on a narrowly specified, provable and legally cognizable basis of partiality, the peremptory permits rejection for a real or imagined partiality that is less easily designated or demonstrable. (Citations omitted.) It is often exercised upon the "sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another," (Citations omitted) upon a juror's "habits and associations," (Citations omitted) or upon the feeling that "the bare questioning (a juror's) indifference may sometimes provoke a resentment," * * * . (Citations omitted.)

In Swain, the Court rejected defendant's assertion that the jury drawn was void due to the prosecutor's exercise of his peremptory challenge against the six black members of the jury venire. In so holding, the Court recognized a presumption that the peremptories were exercised for the proper motive and that "(t)he presumption is not overcome and the prosecutor therefore subjected to examination by allegations that in the case at hand all Negroes were removed from the jury or that they were removed because they were Negroes." (Emphasis added.)

The Supreme Court reached this conclusion because of its concern that a contrary rule would create a challenge which "would no longer be peremptory, each and every challenge being open to examination, either at the time of the challenge or at a hearing afterwards. The prosecutor's judgment underlying each challenge would be subject to scrutiny for reasonableness and sincerity." Swain, supra.

This case is controlled by both the analysis and the concern raised in Swain. The prosecutor challenged only one prospective black juror. Though he was the only black member of the venire, there is nothing to suggest that the peremptory challenge was motivated by any improper consideration. Under the facts of this case, to support his burden of overcoming the presumption of proper purpose, the defendant "must rest his contentions on a factual base which is broader than that presented by his own case alone." United States v. McLaurin, 557 F.2d 1064 (5th Cir. 1977); Morgan v. United States, 564 F.2d 803 (8th Cir. 1977).

Our decision is limited to the facts in this case. Recent United States Supreme Court cases infer that the challenge allowed in Swain may be too limited. See, e.g., Rose v. Mitchell, 443 U.S. 545, 99 S.Ct. 2993, 61 L.Ed.2d 739 (1979); Castenada v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977); Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975); Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972). In addition, a good deal of commentary has been written on the subject. See, e.g., Note, Racial Discrimination in Jury Selection, 41 Albany Law Review 623 (1977); Comment, The Prosecutor's Exercise of the Peremptory Challenge to Exclude Non-White Jurors: A Valued Common Law Privilege in Conflict with the Equal Protection Clause, 46 Univ. Cin. Law Review 554 (1977); Comment, A Case Study of the Peremptory Challenge: A Subtle Strike at Equal Protection and Due Process, 18 St. Louis Univ. Law Journal 662 (1974); Note, Peremptory Challenge Systematic Exclusion of Prospective Jurors on the Basis of Race, 39 Miss. Law Journal 157 (1967); Comment, Swain v. Alabama: A Constitutional Blueprint for the Perpetration of the All White Jury, 52 Va. Law Review 1157 (1966). Recognizing this, we are of the opinion that certain fact situations may arise where the defendant can overcome the presumption based entirely upon the facts of his own case. To hold otherwise would provide no protection...