People v. Gabler

Decision Date28 November 1997
Docket NumberNo. 96CA1117,96CA1117
Citation958 P.2d 505
Parties97 CJ C.A.R. 2961 The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Victor Arnold GABLER, Defendant-Appellant. . IV
CourtColorado Court of Appeals

Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, John J. Krause, Assistant Attorney General, Denver, for Plaintiff-Appellee.

David F. Vela, Colorado State Public Defender, Julie Iskenderian, Deputy State Public

Defender, Denver, for Defendant-Appellant.

Opinion by Judge ROY.

Asserting error in the use of peremptory challenges, defendant, Victor Arnold Gabler, appeals from a judgment of conviction entered upon a jury verdict finding him guilty of felony theft. We reverse and remand for a new trial.

Defendant was apprehended by department store security guards after being observed removing three bedskirts from the linen department and leaving the store with them without paying. The sole issue at trial was whether the merchandise taken was of sufficient value that the theft constituted a felony, or of a lesser value making the theft only a misdemeanor.

Defendant contends that the trial court erred in denying his objections to the prosecution's use of peremptory challenges to excuse two African-American prospective jurors. We agree.

The use of peremptory challenges to exclude prospective jurors because of their race violates the Equal Protection Clause. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); People v. Cerrone, 854 P.2d 178 (Colo.1993); § 13-71-104, C.R.S.1997.

In Batson, the Supreme Court outlined a three-part test for determining whether a peremptory challenge constitutes purposeful discrimination against a cognizable group.

First, the defendant must make a prima facie showing that the prosecution used a peremptory challenge to exclude the prospective juror because of race. Batson v. Kentucky, supra. While the excluded juror must be a member of a cognizable group, the defendant need not be. Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). The facts and circumstances surrounding the use of peremptory challenges can raise the inference that the challenges were used to exclude potential jurors because of their race. People v. Portley, 857 P.2d 459 (Colo.App.1992).

Second, if the defendant satisfies the first part of the test, then the burden shifts to the prosecution to state a race-neutral explanation for the challenge. Batson v. Kentucky, supra. At this point, the prosecution's reasons need not be persuasive or even plausible, Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995), and the trial court must accept the proffered reasons as true. Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). Only if the prosecutor's discriminatory intent is inherent in the explanation will it not be deemed race-neutral. Purkett v. Elem, supra. The defendant must be given an opportunity to rebut the prosecutor's explanation. Batson v. Kentucky, supra.

Third, once the prosecution articulates a race-neutral explanation, the trial court must decide whether the defendant has proved purposeful racial discrimination. Batson v. Kentucky, supra; People v. Cerrone, supra. At this point the plausibility of the prosecutor's race-neutral explanation becomes relevant, such that incredible explanations "may (and probably will) be found to be pretexts for purposeful discrimination." Purkett v. Elem, supra, 514 U.S. at 768, 115 S.Ct. at 1771, 131 L.Ed.2d at 839.

After the prosecution used two of its five peremptory challenges to excuse white jurors, it accepted the jury as then constituted which was entirely white. The defense then continued exercising its peremptory challenges which resulted in two African-Americans joining the panel. Defendant, who is white, objected to the prosecution's peremptory challenges as to the two African-American jurors.

The two African-American jurors were questioned briefly by the court and defense counsel. The prosecutor, without questioning either juror, then used two of his remaining peremptories to challenge them both.

Defendant's objections to the prosecution's peremptory challenges were heard at unreported bench conferences that were reconstructed in summarized form by the trial court after the jury was impaneled. From those reconstructed summaries, it would appear that when defense counsel objected to each challenge, in turn, the trial court, without ruling that defendant had made the requisite prima facie showing that the challenge was based on race, inquired of the prosecutor the reason for each challenge.

As to the first prospective juror, the prosecutor replied that he feared that, because the prospective juror frequently watched Court TV, he would hold the prosecutor to a higher standard of proof. Defense counsel, who had inquired of the juror, responded that the juror had stated "specifically that he did not feel his viewing Court TV would affect his ability to judge the evidence impartially." The trial court then found that there was "a rational reason for excusing [prospective juror] beyond his racial status," and permitted the challenge.

As to the second prospective juror, the prosecutor replied that he was concerned that she would be distracted by work responsibilities and that she might be biased against police because her friend had been arrested. The trial court found that "there was again a rational reason for excusing the juror other than racial reasons...."

With respect to the first step in the Batson analysis, we note that the trial court made no express finding that defendant had made a prima facie showing of discrimination with respect to either juror. The fact, however, that the trial court proceeded through the remaining steps of the Batson analysis and ruled on the ultimate issue renders moot any question as to the prima facie showing of discrimination. Hernandez v. New York, supra.

With respect to the second step in the Batson test, whether the prosecutor's explanations for excusing the potential jurors were race-neutral, our review is de novo. United States v. Kunzman, 54 F.3d 1522 (10th Cir.1995); People v. Marion, 941 P.2d 287 (Colo.App.1996).

After taking into account the fact that, at this stage, the prosecution's reasons need not be persuasive or even plausible and we must accept the proffered reasons as true, we...

To continue reading

Request your trial
20 cases
  • People v. Hinojas-Mendoza, Court of Appeals No. 03CA0645 (CO 7/28/2005)
    • United States
    • Colorado Supreme Court
    • July 28, 2005
    ...the third step when supported by the record); People v. Chou, 981 P.2d 668 (Colo. App. 1999). Defendant's reliance on People v. Gabler, 958 P.2d 505 (Colo. App. 1997), is misplaced. In that case, after accepting a jury without racial minorities, the prosecution immediately used two perempto......
  • People v. Beauvais
    • United States
    • Colorado Court of Appeals
    • October 23, 2014
    ...defendant proved intentional discrimination, and we review the trial court's ruling in that regard for clear error." People v. Gabler, 958 P.2d 505, 508 (Colo.App.1997) (citation omitted).B. Analysis ¶ 8 At the conclusion of voir dire, the prosecutor used five of the six allotted peremptory......
  • People v. Johnson
    • United States
    • Colorado Court of Appeals
    • October 13, 2022
    ...to a non-Black juror who served, then this evidence tends to prove purposeful discrimination in step three. See People v. Gabler , 958 P.2d 505, 508 (Colo. App. 1997) ("A prosecutor's disparate treatment of prospective jurors who, but for their race, have similar and allegedly objectionable......
  • People v. Wilson
    • United States
    • Colorado Court of Appeals
    • October 11, 2012
    ...such that incredible explanations ‘may (and probably will) be found to be pretexts for purposeful discrimination.’ " People v. Gabler, 958 P.2d 505, 507 (Colo.App.1997) (quoting Purkett, 514 U.S. at 768, 115 S.Ct. 1769 ). ¶ 14 To determine whether the prosecutor's explanation is credible, c......
  • Request a trial to view additional results
1 books & journal articles
  • Criminal Law
    • United States
    • Colorado Bar Association Colorado Lawyer No. 51-4, April 2022
    • Invalid date
    ...Cir. 1993) (peremptory strike against the only Native American juror on the venire established prima facie case) 23. People v. Gabler, 958 P2d 505, 508 (Colo. App. 1997) ("The record reveals that the prosecutor did not question either prospective juror at all during voir dire, which raises ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT