Brown v. State
| Decision Date | 23 July 2021 |
| Docket Number | No. 81645-COA,81645-COA |
| Citation | 491 P.3d 755 (Table) |
| Court | Nevada Court of Appeals |
| Parties | Ray Charles BROWN, Appellant, v. The STATE of Nevada, Respondent. |
Attorney General/Carson City
Clark County District Attorney
Ray Charles Brown appeals from a judgment of conviction, pursuant to a jury verdict in a capital murder trial, for conspiracy to commit robbery, burglary while in possession of a firearm, first-degree murder with use of a deadly weapon, first-degree kidnapping with use of a deadly weapon, three counts of robbery with use of a deadly weapon, assault with a deadly weapon, and coercion with use of a deadly weapon. Eighth Judicial District Court, Clark County; Michelle Leavitt, Judge.
Three men robbed a Lee's Liquor store in Las Vegas.1 One of the men shot and killed a store employee. Store surveillance cameras captured the entire incident. Police released the footage to the media seeking the public's help in identifying the three men. The shooter was later identified as Brown, who was charged and tried for the robbery-murder.
During jury selection, the venire was comprised of 32 prospective jurors—five of which were African American.2 Each party received nine peremptory strikes. Relevant to this appeal are two Batson3 challenges: one challenge against the State's peremptory strikes of prospective jurors 258 and 246, and an additional challenge to the State's strike of prospective juror 660. All of these jurors were African American, as is Brown.4
Brown's first challenge essentially argued that these strikes showed a pattern of discrimination because the State used the majority of its strikes up to that point against African Americans. Before the district court made a ruling on the first prong, it asked for input from the State. The district court confirmed that the State was moving to step two of the three-part Batson test to provide a race-neutral reason for the strikes.
The State first addressed its strike of juror 246 and explained that he hesitated when asked if he could decide Brown's fate. The State also brought up juror 246's prior experiences with law enforcement, which the juror characterized as unfair. Finally, the State noted that juror 246 had multiple family members serving prison sentences and how he still saw value in having relationships with them. For juror 258, the State argued that she was highly emotional and had significant animus against law enforcement based on her lengthy negative history with law enforcement. Further, her fiance had an altercation with police resulting in him losing a leg.
After the State gave its reasons for the strikes of jurors 246 and 258, the district court did not address the third prong of Batson. Instead, the district court made its ruling:
For the second challenge, Brown again argued that the State engaged in a pattern of discriminatory strikes. He claimed there was a clear pattern because after the State struck juror 660, it had utilized three of its eight strikes against African-American jurors, eliminating 60 percent of the African-American veniremembers. The State again gave a race-neutral reason before the district court made a finding under the first prong. The prosecutor noted that juror 660 gave rambling answers to voir dire questions and randomly admitted, without a pointed question from either party, that he was fired from both the post office and Amazon for getting high while working. Without requesting or hearing any argument under the third prong, the district court summarily denied the challenge under the first prong: "at this time the Court's going to make a determination that the first step hasn't been met and deny the Batson challenge."
The jury was then empaneled5 and trial began. The jury convicted Brown of all counts. At the penalty phase, the jury determined that the mitigating circumstances outweighed the aggravating circumstances and rendered a special verdict of life in prison with the possibility of parole. Brown received an aggregate life sentence with the possibility of parole after 628 months, or 52-1/3 years.
On appeal, Brown argues, among other things,6 that the district court erred in denying his two Batson challenges, warranting reversal and remand for a new trial. Specifically, he claims that the district court erred in its conclusions under the first prong of Batson and failed to provide any findings under the first and third prongs for both of his challenges as required under Williams v. State , 134 Nev. 687, 429 P.3d 301 (2018). Brown concedes that the State satisfied prong two for each challenge. The State counters that Brown failed to prove purposeful discrimination under prong three. Additionally, as to the district court's determination under the third prong, the State curiously contends that the district court gave Brown "substantial time to make his arguments before rendering its ultimate decision," which it claims the court made after carefully reviewing all factors relevant to the third prong.
We review the district court's Batson determination for clear error. Williams , 134 Nev. at 689, 429 P.3d at 306. However, if the district court does not "clearly spell out" its "reasoning and determinations," we afford the district court little deference and review "the cold record ..." Matthews v. State , 136 Nev. 343, 346, 466 P.3d 1255, 1260 (2020) (internal quotation and citation omitted).
Batson v. Kentucky created a three-pronged test for federal and state trial courts to use in determining if a peremptory strike qualifies as illegal discrimination: (1) the Batson challenger "must make a prima facie showing that discrimination based on race [or other cognizable group] has occurred" under "the totality of the circumstances," (2) the burden then shifts to the proponent of the peremptory strike to "provide a race-neutral explanation" for the strike, and (3) "the district court must" provide the challenger with an opportunity to argue against the State's reason to ultimately "determine whether the [challenger] in fact demonstrated purposeful discrimination" on the merits. Diomampo v. State , 124 Nev. 414, 422, 185 P.3d 1031, 1036 (2008) (citing Batson , 476 U.S. at 96-98 ); Williams, 134 Nev. at 692, 429 P.3d at 308. However, when the peremptory proponent offers a race-neutral explanation before the trial court rules on the first step, the first step becomes moot and the trial court must move to the third step. Kaczmarek v. State , 120 Nev. 314, 332, 91 P.3d 16, 29 (2004).
Here, in response to the first Batson challenge, the State gave an explanation before the district court ruled on the first prong. The district court then summarily denied the challenge at the second prong by simply noting that the State had satisfactorily stated its reasons. The record does not show that Brown was permitted to argue under the third prong. See Williams , 134 Nev. at 692, 429 P.3d at 308. For the second challenge, the State again offered a race-neutral explanation under prong two before the district court ruled on the first. This time, however, the district court summarily denied the challenge under the first prong. Accordingly, our focus will be the third prong for the first challenge, and prongs one and three for the second challenge. However, we take this opportunity to note that the district court should provide analysis for each prong in the Batson inquiry. Cooper v. State , 134 Nev. 860, 864 n.4, 432 P.3d 202, 206 n.4 (2018) ().
To meet step one, a challenger must make a prima facie (i.e. threshold) showing of discriminatory intent. Id. at 862, 432 P.3d at 204. This minimal threshold showing is not "onerous," and does not require prevailing on the merits. See id. at 862, 432 P.3d at 205. However, a Batson challenger must do more than point out that a member of a protected class was struck; "something more is required." Watson v. State , 130 Nev. 764, 776, 335 P.3d 157, 166 (2014) (internal quotation marks omitted).
One way to satisfy prong one is by demonstrating a pattern of discriminatory strikes. Williams , 134 Nev. at 690, 429 P.3d at 306. A prima facie pattern can be demonstrated by showing a significant percentage of the proponent's strikes were used against a cognizable group, which only made up a small fraction of the overall venire. See Cooper , 134 Nev. at 862-63, 432 P.3d at 205. For example, the State using "40 percent of its peremptory challenges (2 of 5) to remove 67 percent of the African Americans (2 of 3)" who made up "13.04 percent of the venire (3 of 23)" establishes a prima facie case of racial discrimination. Id. at 862, 432 P.3d at 205.
In this case, the State exercised two of its initial three peremptory strikes, or 66.7 percent, against prospective jurors 246 and 258, and Brown brought his first Batson challenge to these strikes. The figure here (2/3) is a similar figure to that in Cooper (2/5). The African-American venire composition here (15.63 percent) is also similar to that in Cooper (13.04 percent). For the second Batson challenge, the State used its eighth peremptory strike against juror 660, bringing the tally of African-American veniremembers...
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