People v. Davis, 94CA1132

• Decision Date: 11 July 1996
• Docket Number: No. 94CA1132,94CA1132
• Citation: 935 P.2d 79
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jamie L. DAVIS, Defendant-Appellant. . I
• Court: Colorado Court of Appeals

Page 79

935 P.2d 79

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jamie L. DAVIS, Defendant-Appellant.

No. 94CA1132.

Colorado Court of Appeals,

Div. I.

July 11, 1996.

Rehearing Denied Aug. 8, 1996.

Certiorari Denied April 7, 1997.

Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Miles Madorin, Special Assistant Attorney General, Denver, for Plaintiff-Appellee.

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

Opinion by Judge METZGER.

Defendant, Jamie L. Davis, appeals the judgment of conviction entered on a jury verdict finding him guilty of robbery of an at-risk adult. He also appeals the sentence imposed. We affirm.

The facts in this case are not in dispute. On November 19, 1993, the 68-year-old victim was walking away from a shopping mall carrying some paint she had purchased. She carried a purse by a strap looped over her left arm between her elbow and wrist. Defendant followed her surreptitiously until he was directly behind her. Then, he grabbed the purse and, with a quick jerking motion, caused the strap to break. The victim testified that she had felt a "very slight" tug as the strap broke. Defendant then ran away with the purse, but was later stopped by a passerby.

I.

Defendant first contends that the trial court erred in refusing to grant a mistrial based on his allegations that the prosecutor had used a peremptory challenge to excuse a prospective juror based on racial motives. We are not persuaded.

In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Supreme Court established a three-part test to determine when a prosecutor's use of a peremptory challenge violates the Equal Protection Clause. First, the defendant is required to make a prima facie showing that the prosecution has excluded a prospective juror on account of race. Second, if a prima facie case has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for excluding the juror in question. Third, if the prosecutor demonstrates a race-neutral explanation, then the trial court must determine whether the defendant has proved that the prosecutor purposefully discriminated on racial grounds. People v. Cerrone, 854 P.2d 178 (Colo.1993); see also Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991).

A.

If, after the defendant attempts to make a prima facie case of racial discrimination, the prosecutor offers a race-neutral explanation for the peremptory challenge and the trial court rules on the ultimate question of intentional discrimination, the preliminary question whether defendant had made a prima facie showing of racial discrimination becomes moot. Hernandez v. New York, supra; People v. Arrington, 843 P.2d 62 (Colo.App.1992).

Here, after defendant objected to the prosecutor's use of a peremptory challenge to unseat an African-American from the venire, the trial court allowed defendant to attempt to establish a prima facie case of unlawful discrimination. Then, before ruling on whether defendant had succeeded, the trial court allowed the prosecutor to respond. In his response, the prosecutor argued that there was a non-racial justification for the challenge. After allowing defendant to rebut the prosecutor's argument, the trial court ruled that defendant had failed to make a prima facie case, and that the prosecutor had demonstrated a non-racial justification for the peremptory challenge.

Thus, the question whether defendant had established a prima facie case was rendered moot under these circumstances. See Hernandez v. New York, supra; People v. Arrington, supra.

B.

If the defendant succeeds in making a prima facie case, the prosecutor must tender a justification for the strike that is unrelated to the prospective juror's membership in a cognizable racial group. People v. Cerrone, supra; see also Hernandez v. New York, supra.

It is not necessary that the prosecutor's race-neutral justification contain a plausible basis for believing that a particular member of the venire would not be an effective juror. Purkett v. Elem, 524 U.S. ----, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995).

Here, as reasons for excusing the prospective juror, the prosecutor pointed to the juror's strong desire to leave on vacation by noon the following day, the fact that he had been robbed four times at gunpoint, and his having a brother who was an investigator for the public defender's office.

Such reasons do not manifest a clear intent to discriminate. Nor are they inherently discriminatory. Thus, these justifications satisfy the prosecutor's burden of production as to a race-neutral basis for the exclusion of the prospective juror.

C.

After the prosecutor has offered a race-neutral explanation for the challenge, the trial court must determine as a matter of historical fact whether the defendant has established purposeful discrimination. People v. Cerrone, supra; see also Hernandez v. New York, supra.

It is during this part of the Batson process that the persuasiveness of the prosecutor's justification becomes relevant. Thus, "implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination." Purkett v. Elem, supra, 524 U.S. at ----, 115 S.Ct. at 1771, 131 L.Ed.2d at 839.

These are generally questions of fact, and a trial court's findings on such questions are given deference by a reviewing court. People v. Cerrone, supra; see also People v. Gardenhire, 903 P.2d 1165 (Colo.App.1995).

Here, the record supports the trial court's conclusion that a non-racial basis existed for excusing the prospective juror. Moreover, the reasons tendered by the prosecutor were neither implausible nor fantastic. And, we cannot conclude, on this record, that there was any insidious racial discrimination underlying the prosecutor's explanation. Thus, we find no error. People v. Cerrone, supra; see also Hernandez v. New York, supra.

II.

Defendant next contends that the trial court's instructions deprived him of his right to a trial by jury and his right to due process. We disagree.

A.

Defendant argues that the trial court erred in its instruction defining the phrase "by use of force." Specifically, he asserts that the instruction was vague and provided no basis for distinguishing robbery from the lesser offense of theft from a person. We disagree.

The trial court has a duty to instruct the jury properly as to every element of the charged offense, and for the trial court to fail to carry out this duty is error. Chambers v. People, 682 P.2d 1173 (Colo.1984); People v. Atkins, 885 P.2d 243 (Colo.App.1994).

Section 18-4-301(1), C.R.S. (1986 Repl. Vol. 8B) provides that: "A person who knowingly takes anything of value from the person or presence of another by the use of force, threats, or intimidation commits robbery." (emphasis added)

In contrast, § 18-4-401, C.R.S. (1986 Repl Vol. 8B) defines theft as follows:

(1) A person commits theft when he knowingly obtains ... anything of value of another without authorization, or by threat or deception, and:

(a) Intends to deprive the other person permanently of the use or benefit of the thing of value....

....

* * *

(5) Theft from the person of another by means other than the use of force, threat, or intimidation is a class 5 felony without regard to the value of the thing taken. (emphasis added)

Theft from a person as defined in §§ 18-4-401(1) and 18-4-401(5) is intended to cover those thefts involving an invasion of the victim's person of which the victim is unaware, but which are not accomplished through the use of force, threats, or intimidation. People v. Warner, 801 P.2d 1187 (Colo.1990).

Thus, force or fear is the distinguishing element between theft from a person and robbery. See People v. Thomas, 181 Colo. 317, 509 P.2d 592 (1973).

"Force" has generally been defined as "power, violence, compulsion, or constraint exerted upon or against a person or thing; strength or power of any degree that is exercised without justification or contrary to law against a person or thing." People v. Schoondermark, 699 P.2d 411, 416 (Colo.1985) (quoting Webster's Third New International Dictionary 887 (1976)).

There are no Colorado appellate decisions that clearly articulate the nature and extent of the force needed to constitute a robbery in a "purse snatching" case. However, other courts and commentators have examined the meaning of "force" in cases involving facts similar to those presented here. And, as noted in 2 W. LaFave & A. Scott, Jr., Substantive Criminal Law § 8.11(d)(1):

The line between robbery and larceny from the person (between violence and lack of violence) is not always easy to draw. The 'snatching' cases, for instance, have given rise to some dispute.... To remove an article of value, attached to the owner's person or clothing, by a sudden snatching or by stealth is not robbery unless the article in question (e.g., an earring, pin or watch) is so attached to the person or his clothes as to require some force to effect its removal.

In West v. State, 312 Md. 197, 539 A.2d 231 (Md.App.1988), the Maryland Court of Appeals noted the general rule that the mere snatching of a item does not necessarily constitute a robbery. Rather, the snatching, if not accompanied by threat or intimidation, must involve the use of force. The court then held that the "force" element of robbery may be satisfied if there is any injury to the victim's person, or if the victim's resistance to the taking, however slight, is overcome.

The Illinois Supreme Court, in People v. Taylor, 129 Ill.2d 80, 133 Ill.Dec. 466, 541 N.E.2d 677 (Ill.1989), interpreted a robbery statute similar to § 18-4-301(1) to include the snatching of an object attached to the person of another in which force was used to tear or break the attachment. There, the...