Donelson v. Fritz

• Decision Date: 21 November 2002
• Docket Number: No. 01CA0777.,01CA0777.
• Citation: 70 P.3d 539
• Parties: Sammuel C. DONELSON, Plaintiff-Appellant, v. Brad C. FRITZ, Defendant-Appellee.
• Court: Colorado Court of Appeals

70 P.3d 539

Sammuel C. DONELSON, Plaintiff-Appellant, v. Brad C. FRITZ, Defendant-Appellee.

No. 01CA0777.

Colorado Court of Appeals, Div. IV.

November 21, 2002.

Leventhal, Brown & Puga, P.C., James E. Puga, Anthony Viorst, Denver, CO, for Plaintiff-Appellant.

Pryor, Johnson, Montoya, Carney & Karr, P.C., Robert W. Carney, Elizabeth C. Moran, Englewood, CO, for Defendant-Appellee.

Opinion by Judge VOGT.

In this action for damages arising out of an automobile accident, plaintiff, Sammuel C. Donelson, appeals the judgment entered on a jury verdict in favor of defendant, Brad C. Fritz. We affirm.

Defendant ran a red light and struck a car. That car, in turn, hit plaintiff's car. Plaintiff sued to recover damages for his injuries. The jury found that plaintiff had not incurred medical expenses in excess of the $2,500 statutory threshold and accordingly returned a verdict for defendant.

I. Batson Issues

Plaintiff first contends that the trial court erred in failing to sustain his challenges to defendant's exclusion of jurors on account of race, gender, and disability. We disagree.

A. Race

The Equal Protection Clause of the Fourteenth Amendment prohibits the use of peremptory challenges to discriminate against potential jurors based on race. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); Valdez v. People, 966 P.2d 587 (Colo.1998). This prohibition is applicable in civil as well as criminal cases. Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991); Middleton v. Beckett, 960 P.2d 1213 (Colo. App.1998). Batson outlines a three-step process for evaluating claims of racial discrimination in jury selection. The first step requires that the challenging party make a prima facie showing that the other party excluded a potential juror because of race. The prima facie standard is not high and requires only evidence sufficient to raise an inference that discrimination occurred. Further, this issue generally becomes moot once the court has gone through the second and third steps in the Batson analysis. Valdez v. People, supra.

If the challenging party establishes a prima facie case, the burden shifts to the proponent of the challenged strike to come forward with a race-neutral explanation for it. Although that burden cannot be satisfied merely by denying a racially discriminatory motive, the explanation need not be persuasive or even plausible as long as it is facially race-neutral. Valdez v. People, supra.

If a race-neutral reason is tendered, then the trial court advances to the third and final step, in which it must determine whether the opponent of the strike has proven purposeful racial discrimination. The opponent must have the opportunity to rebut the proponent's race-neutral explanation by showing, for example, that it is pretext. The court must then determine, on the basis of all the evidence before it, whether it can find by a preponderance of the evidence that one or more potential jurors were excluded because of race. Valdez v. People, supra.

On appeal, we review de novo the trial court's ruling on steps one and two of the Batson analysis. However, we afford deference to its ultimate resolution of a Batson challenge in step three, reversing only for clear error. Valdez v. People, supra.

When plaintiff, who is African-American, objected to defendant's peremptory challenge to a Spanish-surnamed juror, the trial court found that a prima facie Batson showing had been established and invited defendant to state a race-neutral basis for the exercise of his peremptory challenge. In response, defendant stated that the challenged juror worked with a small company and had expressed concern about having to be at the trial. Further, the juror had only a high school education, was single, and had characterized himself as a buyer.

Arguing that defendant's reasons were pretextual, plaintiff pointed out that defendant had challenged other minorities as well, that defendant had spent no time on voir dire to explore the juror's biases, and that nothing in the challenged juror's responses suggested that he favored one party or the other. The trial court denied plaintiff's challenge.

We agree with the trial court that defendant's explanation for the strike was facially race-neutral. Further, the trial court's ultimate resolution of the Batson challenge was not clearly erroneous. The juror had expressed concern about whether his employer could afford to pay him for work while he was not there. When he was reminded that the employer was obligated to do so, he had responded that his own work was going to sit there until I get back. The reference to the juror as a buyer related to questioning of the venire by counsel to determine whether they would characterize themselves as spenders or savers, a characterization which was apparently perceived as indicative of their willingness to award significant damages. Moreover, the record does not indicate that defendant's questioning of this juror was perfunctory in comparison to his questioning of other members of the venire.

Plaintiff argues on appeal that defendant's reasons were pretextual because other jurors who were not challenged also had scheduling conflicts, had only a high school education, and were single. However, plaintiff did not make this argument to the trial court and thus has not preserved it for appeal. See Valdez v. People, supra

(a claim that an excused juror was similarly situated to other jurors must be raised in argument to trial court so that it can be tested and determined as a factual matter by that court).

In sum, we conclude that the trial court did not err in denying plaintiff's Batson challenge based on race.

B. Gender

We further conclude that plaintiff is not entitled to relief based on defendant's asserted exclusion of a juror on the basis of gender.

The principles announced in Batson also apply to gender-based discrimination in jury selection. See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994)

; Valdez v. People, supra, 966 P.2d at 589 n. 7.

At trial, plaintiff objected to defendant's peremptory challenge to a Spanish-surnamed woman, arguing, as he had argued in regard to the juror discussed above, that the challenge evidenced racial discrimination. Defense counsel responded that he had her down as a spender and that, like plaintiff, she was a public school district employee. Plaintiff countered that the juror had expressed the same views regarding damages as other members of the panel and that defendant had not taken time to explore her biases. The trial court found no discrimination based on race and denied the challenge.

In his posttrial motion for judgment notwithstanding the verdict or for a new trial, plaintiff argued for the first time that the removal of this juror was impermissible gender discrimination. He based his contention on a statement made off the record by defense counsel, before the parties made their record on the Batson issues, that he was merely trying to remove women from the jury.

In his written response to the posttrial motion, defendant's counsel conceded that he did state that he would prefer male jurors, which has been disapproved under J.E.B. v. Alabama, but then stated that the juror had other characteristics and experiences that led him to dismiss her regardless of gender. The trial court denied the posttrial motion without comment.

While a concession by counsel that he removed a juror based on gender could establish a Batson violation in other circumstances, we decline to conclude, on this record, that plaintiff is entitled to a new trial on this basis.

When the exclusion of this juror was initially challenged as impermissible racial discrimination, defendant gave a facially race-neutral explanation for excluding her, and the trial court found that her exclusion was not based on racial discrimination. That finding is not clearly erroneous. Although plaintiff's posttrial motion indicates that he was aware, at the time of the on-the-record colloquy regarding this juror, that defense counsel had stated a preference for male jurors, plaintiff did not at that time cite defense counsel's statement as evidence of gender discrimination. Thus, he did not give the trial court a timely opportunity to determine, as a factual matter and on the basis of the entire record, whether defendant's exclusion of the juror was based on gender discrimination. See Valdez v. People, supra.

Although plaintiff argues on appeal that we should adopt a rule that a single discriminatory explanation taints the entire jury selection process regardless of the genuineness of other explanations for the strike, he did not raise that argument in the trial court, either at trial or in his posttrial motion. Therefore, the issue is not preserved for appeal. See Estate of Stevenson v. Hollywood Bar & Cafe, Inc., 832 P.2d 718 (Colo. 1992)

. Moreover, even if we were to view a nonpreserved Batson issue as cognizable under a plain error standard of review in a civil case, we would find no plain error on this record. See Hidalgo v. Fagen, Inc., 206 F.3d 1013 (10th Cir.2000)(trial court's failure sua sponte to find gender discrimination where defendant's counsel stated that he preferred male jurors to female ones did not rise to level of plain error in civil case).

C. Disability

We also do not agree that the trial court erred in rejecting plaintiff's Batson challenge to defendant's exclusion of two jurors based on their disabilities.

Plaintiff alleged that the accident left him with pain and permanent injuries, required him to cut back on his previous work-related and personal activities, and exacerbated his pre-existing medical problems. During voir dire, defendant used peremptory challenges to remove from the jury a white female nurse with disabling rheumatoid arthritis and a black man who was disabled on account of a hip condition.

When plaintiff...