Bueno-Hernandez v. State

• Decision Date: 08 September 1986
• Docket Number: No. 86-35,A,BUENO-HERNANDE,86-35
• Citation: 724 P.2d 1132
• Parties: Luis Raulppellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 1132

724 P.2d 1132

Luis Raul BUENO-HERNANDEZ, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 86-35.

Supreme Court of Wyoming.

Sept. 8, 1986.

Leonard Munker and Martin McClain, State Public Defenders, Julie D. Naylor, Appellate Counsel, PDP and Gerald M. Gallivan, Director, and Jeffrey W. Hedger, Student Intern, of the Wyoming Defender Aid Program, for appellant.

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen. and John W. Renneisen and Sylvia Lee Hackl, Sr. Asst. Attys. Gen., for appellee.

Before THOMAS, C.J., and BROWN, CARDINE, URBIGKIT and MACY, JJ.

MACY, Justice.

Appellant Luis Raul Bueno-Hernandez was found guilty by a jury of attempted second-degree sexual assault in violation of §§ 6-1-301(a) and 6-2-303(a)(v), W.S.1977, and sentenced to not less than 18 months nor more than four years in the Wyoming State Penitentiary.

We affirm.

Appellant raises the following issues on appeal:

"I. WHETHER THE PROSECUTION'S USE OF ITS PEREMPTORY CHALLENGES AMOUNTED TO SYSTEMATIC EXCLUSION OF AN ETHNIC GROUP FROM THE JURY IN VIOLATION OF APPELLANT'S RIGHT TO HAVE THE JURY REPRESENT A CROSS SECTION OF THE COMMUNITY AS CLOSELY AS POSSIBLE.

"II. WHETHER APPELLANT'S CONFESSION SHOULD HAVE BEEN DECLARED INADMISSIBLE BY THE TRIAL COURT BECAUSE IT WAS NOT VOLUNTARY.

"III. WHETHER THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR A NEW TRIAL FOR NEWLY DISCOVERED EVIDENCE.

"IV. WHETHER APPELLANT SHOULD HAVE BEEN CHARGED AND TRIED FOR A VIOLATION OF WYO.STAT. § 14-3-105 (1977) INSTEAD OF A VIOLATION OF WYO.STAT. § 6-1-301(a) (1977) AND § 6-2-303(a)(v) (1977)."

On the night of August 22, 1985, a nine-year-old girl was spending the night at her next-door neighbor's house. After watching a movie, the girl went to sleep on the couch in the living room. During the night, she was awakened when a man's hand reached up from the floor and began fondling her. She looked over the edge of the couch and saw appellant, her next-door neighbor's brother, lying on the floor between the couch and the coffee table. She got up to tell someone, but, upon looking back and seeing that appellant was asleep, she lay back down on the couch. Later, she was again awakened by appellant's touches. Several days later, the child told her parents what had happened, and appellant was arrested.

I

Appellant is a Mexican national. During voir dire, three members of the venire who were apparently of Mexican-American heritage were excluded from the jury by the prosecutor through the use of peremptory challenges. In chambers, prior to trial, appellant moved for a mistrial on the ground that the prosecutor's systematic exclusion of Mexican-Americans violated appellant's right to a fair and impartial jury. The trial court denied the motion, noting that no questions were asked of the venire members to establish that they were in fact Mexican-Americans. The court noted further that it was not prepared to take judicial notice of a Mexican-American background solely from the fact that the excluded venire members had Spanish surnames. Appellant now raises the claim before this Court that he was denied a fair and impartial jury by the prosecutor's use of peremptory challenges to exclude Mexican-Americans.

The test for determining whether peremptory challenges have been improperly used to exclude minorities from a jury was most recently articulated by the United States Supreme Court in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). ¹ There the Supreme Court held that although a defendant has no right to a petit jury composed in whole or in part of persons of his own race, the state may not purposefully exclude members of the defendant's race solely because of race. When challenging the jury selection process, the burden is on the defendant to prove the existence of purposeful racial discrimination.

"[A] defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury [by showing first] that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the defendant is entitled to rely on the fact * * * that peremptory challenges constitute a jury selection practice that permits 'those to discriminate who are of a mind to discriminate.' Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. This combination of factors * * * raises the necessary inference of purposeful discrimination.

* * *

* * *

"Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging [the] jurors. * * * [T]he prosecutor's explanation need not rise to the level justifying exercise of a challenge for cause. But the prosecutor may not rebut the defendant's prima facie case of discrimination by stating merely that he challenged jurors of the defendant's race on the assumption--or his intuitive judgment--that they would be partial to the defendant because of their shared race. * * * Nor may the prosecutor rebut the defendant's case merely by denying that he had a discriminatory motive or 'affirming his good faith in individual selections.' " Batson v. Kentucky, 106 S.Ct. at 1723 (citations omitted).

In the present case, it is undisputed that appellant is a member of a cognizable racial group. However, during voir dire no questions were asked to establish the race of the challenged venire members. Therefore, the only fact tending to show that members of appellant's race were excluded from the jury is that three of those challenged had Spanish surnames. Because appellant did not request that the voir dire be recorded, he can point to no other relevant circumstances which raise the inference that the prosecutor used his peremptory challenges to exclude venire members because of their race.

As the United States Supreme Court has said:

"We have confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor's use of peremptory challenges creates a prima facie case of discrimination * * *." Batson v. Kentucky, 106 S.Ct. at 1723.

In the present case, the trial court apparently was not persuaded that, because of Spanish surnames or other circumstances, a prima facie case of purposeful discrimination existed.

Even assuming that this Court were to find appellant had established a prima facie case of purposeful discrimination, the prosecutor offered a sufficient neutral explanation for challenging the venire members to refute appellant's claim. In chambers, following appellant's motion for a mistrial, the prosecutor responded as follows:

"[T]he first [juror] challenged by the State * * * is known to our office through Mr. Green who had a history of dealing with her at Legal Services as has also Mr. Tristani. After discussing her in great length we unanimously decided she would not be an appropriate Juror in this case even though she does have a four and a half year old daughter.

"As to the next Juror * * * we knew there might also be a bias against our office because Dennis Grant in our office has sued him for collection * * *.

"Finally, * * * the last individual challenged by the State * * * is known to our office to be * * * anti-law enforcement."

Thus, the prosecutor offered a specific neutral explanation for exercising his peremptory challenges. He did not merely state that he challenged the jurors on the presumption that they could not be impartial because of their shared race, nor did he merely deny a discriminatory motive or affirm his good faith in individual selections. In each case, the challenged juror was known to him or his office and, on the basis of that knowledge, the prosecutor had a specific reason, unrelated to the juror's ethnicity, for exercising a peremptory challenge.

Under these circumstances and absent any record of the voir dire proceedings, we find that appellant has failed to establish the existence of purposeful discrimination.

II

On August 29, 1985, appellant was interviewed by Detective John Mugg of the Laramie County sheriff's office and Officer Arwin Olson of the Pine Bluffs police department. James Lucero was present as interpreter. Before the questioning began, Miranda warnings were read to and interpreted for appellant. When appellant indicated that he understood his rights and was willing to talk, the officers began questioning him about what occurred on the night of August 22, 1985. At first appellant denied even touching the child, but approximately half way through the interview he admitted that what the child said was true. He described touching the child underneath her clothes. He said he attempted to have intercourse with her but was unable to penetrate her because she was too young. He described inserting his finger into the child's vagina and then going into the bathroom to masturbate. Each of these statements was consistent with the child's version of what happened.

On October 9, 1985, appellant filed a motion to suppress his statements on the grounds that they were not voluntarily or intelligently given. Following a hearing on the motion prior to trial, the trial court issued the following decision letter:

"The defendant testified that he is 26 years old, he is a Mexican national * * * and had been in Pine Bluffs, Wyoming, for approximately six weeks prior to his arrest. * * * The defendant was educated in public schools in Mexico through the sixth grade. He does not understand, nor does he speak, the English language. He is unable to write the English language and is not literate in it.

The defendant stated * * * that he understands the nature of the charge and understands that the maximum sentence that could be...