Craig v. Carlson

• Citation: 161 P.3d 648
• Decision Date: 25 June 2007
• Docket Number: No. 06SC99.,06SC99.
• Parties: Carla CRAIG and Dennis Craig, Petitioners v. Hillis G. CARLSON, M.D., Respondent.
• Court: Supreme Court of Colorado

161 P.3d 648

Carla CRAIG and Dennis Craig, Petitioners v. Hillis G. CARLSON, M.D., Respondent.

No. 06SC99.

Supreme Court of Colorado, En Banc.

June 25, 2007.

Jim Leventhal, Benjamin Sachs, Leventhal, Brown & Puga, P.C., Denver, CO, Attorneys for Petitioners.

Craig A. Sargent, Johnson, McConaty & Sargent, P.C., Glendale, CO, Attorneys for Respondent.

Justice BENDER delivered the Opinion of the Court.

Introduction

Two judges were assigned to Petitioners Carla and Dennis Craig's medical malpractice case against Respondent Dr. Hillis Carlson. One judge conducted the trial ("trial court") and the other conducted the pre-trial and post-trial motions ("successor court"). During the course of jury selection, the Craigs objected that Carlson was exercising his peremptory challenges discriminatorily to remove women from the jury in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Carlson responded that Batson does not apply to cases of gender discrimination and furthermore, that he had not realized that he had used his first four strikes to eliminate women from the jury. The trial court overruled the plaintiffs' Batson objection based on its erroneous conclusion that Batson does not apply to gender discrimination. As a result, it never conducted a Batson hearing.

In ruling on the Craigs' motion for a new trial, the successor court concluded that the trial court erred when it stated that Batson does not apply to gender discrimination. It also concluded that the Craigs had established a prima facie case of gender discrimination, thus shifting the burden to Carlson to give a nondiscriminatory reason for exercising the peremptory challenges.

The successor court conducted a Batson hearing approximately three months after the trial. At this hearing it heard argument from counsel and reviewed the juror questionnaires and the transcripts of the jury selection. Carlson provided several nondiscriminatory reasons for striking each of the four female jurors. Facts in the juror questionnaires and the record of jury selection supported Carlson's reasons for striking all four of the female jurors. Only Carlson's assertion that the third stricken juror nodded her head in agreement with another juror's statements was not reviewable from the record available to the successor court. Carlson, however, offered additional reasons for striking that juror that the juror questionnaires confirm.

At the conclusion of the hearing, the successor court concluded that Carlson met his burden to articulate a gender-neutral explanation for exercising the four peremptory strikes against women and that the Craigs did not meet their burden of proving gender discrimination. Hence, the successor court denied the motion for a new trial.

The Craigs appealed this decision and the court of appeals affirmed the successor court's holding. The court of appeals held that a successor court has discretion to rule on a Batson issue in a post-trial motion for a new trial. It reasoned that a successor court could, in this case, remedy the trial court's error in failing to conduct a Batson hearing by conducting such a hearing itself after the conclusion of the trial. We granted certiorari to review the unpublished court of appeals decision, Craig v. Carlson, No. 04CA0142, 2005 WL 2305020 (Colo.App. Sept.22, 2005).

We conclude a successor court may decide Batson issues when it conducts a post-trial Batson hearing at which it can assess the peremptory challenger's credibility when providing his nondiscriminatory reasons for striking specific jurors, and the trial transcripts and juror questionnaires sufficiently confirm the existence of the peremptory challenger's proffered reasons. If the court cannot make the determination from the record, however, the successor court does not have discretion to conduct the Batson analysis, and the case must be remanded for a new trial.

Our review of the record indicates that the successor court was able to conduct its own Batson analysis in this case. The successor court held a hearing only three months after the trial at which it heard argument from both of the parties. The successor court's review of the trial record of jury selection and the juror questionnaires confirmed at least one of Carlson's proffered nondiscriminatory reasons for striking each of the female jurors. Thus, the successor court did not abuse its discretion when it conducted the Batson analysis. Hence, we affirm the judgment of the court of appeals.

I. Facts and Procedural History

The Craigs filed a medical malpractice case against Dr. Carlson, alleging that he was negligent in failing to properly examine and diagnose Mrs. Craig with rectal cancer. Prior to trial, the Craigs filed a motion to expedite the trial because of Mrs. Craig's terminal illness.

The court granted the Craigs' motion to expedite the trial and as a result, assigned the trial portion of the case to a visiting senior judge. The judge who initially had been assigned to the Craigs' case handled the pre-trial and post-trial motions. As a result of this dual assignment, both judges ruled on the Craigs' objection that Carlson used his peremptory challenges to discriminate against women during jury selection in violation of Batson, 476 U.S. at 79, 106 S.Ct. 1712. The trial court rejected the Craigs' Batson challenge as inapplicable, but the successor court found that Batson applied and conducted a Batson hearing.

The trial court addressed the Craigs' Batson objection during jury selection after Carlson used the first four of his five peremptory challenges to eliminate women from the panel. The Craigs argued that Carlson's challenges violated Batson's prohibition against discriminatory jury selection because he was striking jurors on the basis of gender. The trial court erroneously ruled that Batson does not apply to gender discrimination and concluded that Carlson's peremptory challenges were proper without conducting a Batson hearing.

After the jury returned a verdict in favor of Carlson and the judgment entered, the Craigs filed a motion for a new trial restating their Batson challenge. Pursuant to the court's initial case management order, the successor court ruled on the motion for a new trial instead of the trial court. The successor court made two preliminary findings. First, it found that the trial court erred when it concluded that Batson did not apply to gender discrimination. Second, it found that the Craigs had made a prima facie showing of gender discrimination. Hence, the question became whether Carlson could proffer a nondiscriminatory reason for striking the female jurors.

The successor court scheduled a "brief hearing per Batson" to determine whether the Craigs could establish gender discrimination in jury selection. Approximately three months after the trial's conclusion, the successor court held a Batson hearing at which it reviewed the transcripts of jury selection and juror questionnaires and heard argument from the parties.

The transcript of the jury selection contains Carlson's initial response at trial to the Craigs' Batson objection. Initially, Carlson questioned the Craigs' peremptory strikes: "He got rid of two women, at least, and three men ... the same rationale applies. Why is he getting rid of men?" He then argued that Batson only applies to challenges based on ethnicity, not gender. Carlson also stated that he had not realized he was striking women only. Neither party provided further argument at this time due to the trial court's erroneous conclusion that Batson does not apply to gender discrimination.

At the hearing conducted by the successor court, Carlson provided at least one nondiscriminatory reason for striking each of the four female prospective jurors. As support for each nondiscriminatory reason, Carlson referenced either the juror's testimony as reflected in the trial transcript of jury selection or the juror's answer on the jury questionnaire.¹ (Juror L.S.: wrote negligent doctors must be punished; Juror D.A.: father had colon cancer; Juror K.M.: friend had colon cancer and is cured; Juror S.L.: mother died of lung cancer). The only nondiscriminatory reason not supported by the record or juror questionnaires was one of the reasons Carlson offered for his third strike, Juror K.M.

Carlson stated that he eliminated K.M. in part based upon her agreement with Juror L.S. (the first stricken juror) when she was talking about not making assumptions and that doctors should have a report confirming the diagnosis before relying on the diagnosis of specialists. He could not, however, remember whether K.M. indicated this agreement with a nod of the head, a raised hand, or a smile. It was at this point that he admitted "that's the only thing in my notes that probably won't be reflected on the jury questionnaire or in the transcript." In addition to this reason, Carlson also stated that he struck K.M. because she had a friend with colon cancer, a fact confirmed in K.M.'s juror questionnaire.

The Craigs contested the reasons Carlson offered for striking the female jurors as being pretextual, arguing that if Carlson's explanation were true, other male jurors should have been struck instead because their answers during jury selection raised greater concern. The Craigs' main argument, however, focused on Carlson's elimination of K.M. The Craigs argued that the successor court was unable to adequately assess one of the reasons Carlson proffered for striking her because that judge was not present at trial, that there was no record to support what occurred, and that the court thus could not "evaluate the credibility of what [Carlson] is saying as far as the nod goes:"

If, in fact, as [Carlson] claims, she had nodded in agreement with [L.S.], why didn't he ask questions about it? Nobody asked questions about it. There's no record to support that whatsoever.

The Craigs argued that only the trial court could conduct the B...