People v. Collins

• Decision Date: 29 May 2008
• Docket Number: No. 06CA1173.,06CA1173.
• Citation: 187 P.3d 1178
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Michah Tyron COLLINS, Defendant-Appellant.
• Court: Colorado Court of Appeals

187 P.3d 1178

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Michah Tyron COLLINS, Defendant-Appellant.

No. 06CA1173.

Colorado Court of Appeals, Div. III.

May 29, 2008.

Rehearing Denied July 3, 2008.

John W. Suthers, Attorney General, Jennifer A. Berman, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Douglas K. Wilson, Colorado State Public Defender, Elizabeth Griffin, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge JONES. J

Defendant, Michah Tyron Collins, appeals the judgment of conviction entered on jury verdicts finding him guilty of attempt to commit first degree burglary, possession of a weapon by a previous offender, and a crime of violence. We reverse and remand the case for further proceedings.

I. Background

On an early morning, the victim awoke to noises outside of his house. He heard a loud bang at the back door and went to check on the noise. He saw two masked men outside the door, one of whom pushed open the door with a shotgun barrel. The victim managed to slam the door shut and called 911.

Two police officers arrived shortly thereafter. They saw a man running from the back of the house toward the street. One of the officers ordered the man to stop, but the man turned around and ran toward the house's backyard. The officers searched the area and found defendant hiding in a shed one block from the victim's house. One of the officers identified defendant as the man he had seen when he arrived at the victim's house.

The People charged defendant with criminal attempt to commit first degree burglary, possession of a weapon by a previous offender, and a crime of violence. A jury found defendant guilty on all counts. The court sentenced defendant to two concurrent sentences of ten years and eighteen months in the custody of the Department of Corrections.

II. The Batson Objection

Defendant contends the district court clearly erred in overruling his Batson objection to the prosecutor's peremptory strike against Ms. S., an African-American potential juror. We agree.

A. District Court Proceedings

Following voir dire, the prosecutor used his first peremptory strike against Ms. S., the only African-American potential juror on the panel at the time. Defendant's counsel objected, pointing out that there were only two African-American jurors in the venire, and Ms. S. was one of them. The court treated the objection as one pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

The prosecutor offered the following reasons for striking Ms. S.: (1) "she didn't respond to anything"; (2) "she had her arms crossed during the entire voir dire"; (3) she did not bring up the fact that her husband was a defendant in a domestic violence case (a fact the prosecutor had learned from a juror questionnaire) when he asked whether any of the potential jurors had a relative or friend who had been accused of a crime; (4) she slept through part of defense counsel's voir dire; and (5) "she's a nurse." The following exchange then took place:

[DEFENDANT'S COUNSEL]: I would point out, for the record, if you look at her right now, it was the same demeanor she had when I was doing mine, she was not asleep, she's wearing glasses.

[PROSECUTOR]: She was asleep, I sat there and watched her.

[COURT]: I didn't.

[DEFENDANT'S COUNSEL]: I will tell the Court that the same body language is exhibited on at least 15 of the 34 jurors. Most importantly, she did respond to all the questions, she was at least forthcoming on the answer sheet about her being a victim.

The prosecutor did not deny defendant's counsel's statements about the other potential jurors' body language. Instead, the prosecutor told the court, "I'm more than willing to substitute, if this is race based, I'm willing to substitute Mr. [B.] for Ms. [S.], and Mr. [B.] is an African-American male. If you want a race neutral reason, I'm more than happy to have him on my jury." The court responded, "It's not how it works."

The district court then sustained defendant's Batson objection, stating:

Here's what I'm going to do then, at this point, with regard to what you have given me, [prosecutor], I can't find this is a clear and reasonably specific explanation, a legitimate reason. I think you would have brought up to me various information — wait a minute, let me make a ruling. I don't have enough to indicate she slept through it, arms crossed, nurse, I don't think it makes it.

The prosecutor made a further record on his stated reasons, reiterating that Ms. S. had not responded well to him, she had not laughed at his jokes, she crossed her arms and legs, she had slept, and she had not responded to his question whether anyone had a relative or friend accused of a crime. The court remained unpersuaded, however, and ruled: "At this time, I'm going to find there is not clear and reasonable, specific explanation for excluding this prospective juror, at least at this point in time."

When Mr. B. joined the jury panel, the prosecutor accepted the panel and requested a bench conference. The prosecutor renewed his peremptory strike against Ms. S., proffering the following rationale:

Mr. [B.] is on the jury, there's no race-related issue in this case, and I think I'm going to tell the Court, my biggest concern, she did not respond well to me and she was sleeping, which indicates she's not going to pay attention in this case.

The court then decided to deny defendant's Batson objection, stating:

Just looking at something here, there was a U.S. Supreme Court case which held that an individual had been stricken because he had long, unkempt hair, mustache and beard.... It sounds to me that if it was a person that appeared that way, they said that Step Two [of the Batson analysis] is not very high.

I'm also obligated to consider the totality of the circumstances. I have to say, I think, at this point, at the outset, [the] People's first challenge was a black juror, the only one seated up there, okay, so, of course, that heightens my concern....

....

But you also, which also was a suggestion to me that there was a reason for that, and now I see you have no problem with Mr. [B.]. I cannot see, at this point, for the record, their effort to challenge Ms. [S.] was racially motivated in this case, and I think I'm obligated to consider all facts and circumstances.

...

I'm going to find, by preponderance of the evidence, that the decision to exclude Ms. [S.] was not motivated by racial — or because of her race. Again, I'm considering the totality of the circumstances, which I think were not present at the initial challenge.

Defendant's counsel made a further record that the prosecutor's reasons for striking Ms. S. from the jury panel applied to many of the other potential jurors, and that there was a nurse on the panel whom the prosecutor had not challenged.

Defendant's counsel subsequently used a peremptory strike against Mr. B.

B. Applicable Law

The use of peremptory challenges to purposefully discriminate against jurors of a protected class violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 146, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994); Batson, 476 U.S. at 89, 106 S.Ct. 1712; Craig v. Carlson, 161 P.3d 648, 653 (Colo.2007). "Purposeful racial discrimination in selection of the venire violates a defendant's right to equal protection because it denies him the protection that a trial by jury is intended to secure." Batson, 476 U.S. at 86, 106 S.Ct. 1712. "Although a defendant has no right to a `petit jury composed in whole or in part of persons of [the defendant's] own race,' he or she does have the right to be tried by a jury whose members are selected by nondiscriminatory criteria." Powers v. Ohio, 499 U.S. 400, 404, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991) (citation omitted) (quoting Strauder v. West Virginia, 100 U.S. 303, 305, 25 L.Ed. 664 (1879)).

"`Discriminatory purpose' ... implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker ... selected ... a particular course of action at least in part `because of,' not merely `in spite of,' its adverse effects upon an identifiable group." Hernandez v. New York, 500 U.S. 352, 360, 111 S.Ct. 1859 114 L.Ed.2d 395 (1991) (plurality opinion) (quoting Personnel Adm'r v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979)); see id. at 372-73, 111 S.Ct. 1859 (O'Connor, J., concurring).

"Batson outlines a three-step process for evaluating claims of racial discrimination in jury selection under the Equal Protection Clause." People v. Cerrone, 854 P.2d 178, 185 (Colo.1993) (citing Hernandez, 500 U.S. at 358-59, 111 S.Ct. 1859 (plurality opinion), and Batson, 476 U.S. at 93-98, 106 S.Ct. 1712); accord Snyder v. Louisiana, ___ U.S. ___, ___, 128 S.Ct. 1203, 170 L.Ed.2d 175 (Mar. 19, 2008); Purkett v. Elem, 514 U.S. 765, 767, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995); Valdez v. People, 966 P.2d 587, 589 (Colo.1998). The opponent of a peremptory strike must make out a prima facie case of racial discrimination. If the opponent of the strike does so, the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation. If the proponent of the strike meets that burden, the trial court must decide whether the opponent of the strike has proved purposeful racial discrimination. Snyder, ___ U.S. at ___, 128 S.Ct. 1203; Purkett, 514 U.S. at 767, 115 S.Ct. 1769; Hernandez, 500 U.S. at 358-59, 111 S.Ct. 1859 (plurality opinion); Hernandez, 500 U.S. at 375, 111 S.Ct. 1859 (O'Connor, J., concurring); Batson, 476 U.S. at 96-98, 106 S.Ct. 1712. "[T]he ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike." Purkett, 514 U.S. at 768, 115 S.Ct. 1769; accord Valdez, 966 P.2d at 589.

Here, defenda...