People v. Baker

• Decision Date: 25 July 1996
• Docket Number: No. 94CA1809,94CA1809
• Citation: 924 P.2d 1186
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Sheland D. BAKER, Defendant-Appellant. . I
• Court: Colorado Court of Appeals

Page 1186

924 P.2d 1186

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Sheland D. BAKER, Defendant-Appellant.

No. 94CA1809.

Colorado Court of Appeals,

Div. I.

July 25, 1996.

Rehearing Denied Aug. 29, 1996.

Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, John J. Krause, Assistant Attorney General, Denver, for Plaintiff-Appellee.

David F. Vela, Colorado State Public Defender, C. Keith Pope, Deputy State Public Defender, Denver, for Defendant-Appellant.

Opinion by Judge METZGER.

Defendant, Sheland D. Baker, appeals the judgment of conviction entered on a jury verdict finding him guilty of contributing to the delinquency of a minor. He also appeals the sentence imposed. We reverse and remand with directions.

Defendant was charged with multiple offenses based on allegations that he had a sexual relationship with the 12-year-old victim and had smoked marijuana with her.

During the voir dire examination of potential jurors, the following colloquy occurred between defendant's trial attorney and a potential juror:

[Defense counsel]: And ... I guess I need to ask a question, and that is, [defendant] is my client ... He is black. You are also. Do you feel as though black people in a situation like this are treated more harshly than other people?

[The juror]: Number one, I resent--I don't like that statement, him being black and my being black. I don't know what that has to do with this.

[Defense counsel]: Okay. Well, I think that's a fair thing to say, and I guess what I'm saying is, does this reflect your community? Does the numbers in this jury panel reflect your community, the numbers in our community?

[The juror]: I don't understand what you're saying.

[Defense counsel]: Does--out of the number of jurors that are sitting in this panel does one black person represent the numbers that live in this community?

[The juror]: Possibly so. I'm the only one in my neighborhood.

[Defense counsel]: Well, I guess what I'm trying to get at here is, if you found yourself sitting in--over here at this table .... and accused of doing something, would you be concerned that the color of your skin would be an issue in the case.

[The juror]: I wouldn't be.

[Defense counsel]: Okay. You're not concerned about it? You're not concerned about it at this juncture either as relates to you being a juror on this case.

[The juror]: No.

[Defense counsel]: Do you think you would look at [defendant's] conduct more harshly, less harshly, or about the same?

[The juror]: Would I look at his--

[Defense counsel]: Well, would you--would you evaluate [defendant's] conduct the same? Would you hold him to a higher standard or the same standard?

[The juror]: The same standard. I mean, he--he's a human being, he's not--I don't look at him as a color.

[Defense counsel]: Okay. Well, that's fine, and I appreciate that. I didn't mean to insult you. I just--basically, I'm trying to--my concern is not only are we talking about a sexual assault on a child we're talking about a black man that's accused of doing this, accused of doing this to someone who's non-black, okay. Does that make a difference?

[The juror]: Not necessarily.

[Defense counsel]: Do you--but do you think it has a difference?

[The juror]: I don't know. I haven't heard any of the evidence or anything. Anything....

Later, trial counsel sought to use a peremptory challenge to excuse the prospective juror. The prosecutor objected, and after hearing arguments from both sides, the trial court ruled that, because the juror in question was the only African-American venire member, and because trial counsel had raised racial questions during voir dire, the peremptory challenge was race-based and thus prohibited.

Following trial, defendant was found guilty of contributing to the delinquency of a minor. He was found not guilty of each of two counts of sexual assault in the second degree and on one of two counts of sexual assault on a child. Because the jurors were unable to agree on a verdict for the second count of sexual assault on a child, it was dismissed.

I.

Initially, we reject defendant's contention that, as a matter of law, it cannot be deemed unlawful racial discrimination for him to use a peremptory challenge to unseat a potential juror who is a member of the same racial group as he. Defendant asserts that it would be absurd and irrational to conclude that an African-American defendant harbors racial prejudice against other African-Americans. He argues that the only prohibited racial stereotype addressed by Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) and its progeny is the presumption that persons of the same race will "stick together" and support a defendant (or victim) of their own racial group. We are not persuaded.

Batson did not limit its prohibition of race based peremptory challenges to those founded on a prejudicial belief that jurors will be partial to parties of their own race. Rather, the Court has recognized that "race prejudice stems from various causes and may manifest itself in different forms." Powers v. Ohio, 499 U.S. 400, 416, 111 S.Ct. 1364, 1374, 113 L.Ed.2d 411, 429 (1991); see also People v. Cerrone, 854 P.2d 178 (Colo.1993)(fn.16).

To the contrary, the majority opinion in Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992) specifically concludes that any racial discrimination in the jury selection process violates the rights of the excluded jurors and fundamentally undermines the integrity of the judicial process.

In addressing the precise issue raised by defendant, the Indiana Court of Appeals affirmed a trial court's denial of an African-American defendant's attempted use of a peremptory challenge to unseat the only venire member of the same race, reasoning that:

In Batson the [Supreme Court] observed that the discriminatory use of peremptory challenges harms the prospective jurors and undermines the public confidence in the fairness of our system of justice. Consequently, a juror may not be denied the right to participate in jury service based merely on the juror's race or ethnic identity. It is of no consequence that the challenged prospective juror is of the same race as or ethnic identity as the challenger. The question is whether the peremptory challenge is being used to remove a prospective juror on prohibited grounds ....

Currin v. State, 638 N.E.2d 1319, 1322 (Ind.App.1994). (emphasis added). We agree with and adopt that reasoning as our own. See also Ezell v. State, 909 P.2d 68 (Okla.Cr.1995) (holding that it was racially discriminatory for an African-American defendant to use a peremptory challenge to unseat a juror of the same race).

We are unpersuaded by defendant's prediction that prohibiting race-based peremptory challenges of venire members who are of the same race as the challenging party will leave "every peremptory challenge in every case ... subject to a Batson objection." Rather, we view the procedural requirements listed in Batson and refined in Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991), and Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) as adequate to resolve the issues. To the extent that additional procedures are required, "[i]t remains for the trial courts to develop rules, without unnecessary disruption of the jury selection process, to permit legitimate and well-founded objections to the use of peremptory challenges as a mask for racial prejudice." Powers v. Ohio, supra, 499 U.S. at 416, 111 S.Ct. at 1374, 113 L.Ed.2d at 429.

II.

Courts must use a three-part analysis to determine when a peremptory challenge violates the Equal Protection Clause. First, the party objecting to the peremptory challenge must make a prima facie showing that the proponent of the peremptory challenge seeks to exclude a prospective juror based on race. Second, if a prima facie showing has been made, the burden shifts to the proponent to articulate a race-neutral explanation for excluding the juror in question. Third, if the proponent demonstrates a race-neutral explanation, then the trial court must determine whether the objecting party has proved that the peremptory challenge is based on purposeful racial discrimination. Hernandez v. New York, supra; People v. Cerrone, supra.

A.

Defendant argues that the prosecutor failed to make out a prima facie case of racial discrimination. We disagree.

Defense counsel attempted to use a peremptory challenge to strike the only venire member of a cognizable racial group. This was sufficient. See People v. Portley, 857 P.2d 459 (Colo.App.1992).

B.

In evaluating the race neutrality of an attorney's explanation, a court must determine whether, assuming the proffered reasons for the peremptory challenges are true, the challenges violate the Equal Protection Clause as a matter of law. Hernandez v. New York, supra.

At this stage, it is not necessary that the race-neutral justification contain even a plausible basis for believing that a particular member of the venire would not be an effective juror. Purkett v. Elem, supra. Thus, unless a discriminatory intent is inherent in the proponent's explanation, the reason offered will be deemed race-neutral. Hernandez v. New York, supra; see also Cerrone v. People, 900 P.2d 45 (Colo.1995).

In this context, " 'discriminatory purpose ... implies more than intent as volition or intent as awareness of consequences. It implies that the [proponent of the challenge] ... selected ... a particular course of action at least in part 'because of,' not merely 'in spite of,' its adverse effects on an identifiable group.' " Hernandez v. New York, supra, 500 U.S. at 360, 111 S.Ct. at 1866, 114 L.Ed.2d at 406 (quoting Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 2296, 60 L.Ed.2d 870, 887-888 (1979)).

Here, trial counsel justified his challenge as follows:

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