People v. Jenkins

• Decision Date: 23 February 1989
• Citation: 538 N.Y.S.2d 243,145 A.D.2d 225
• Parties: The PEOPLE of the State of New York, Respondent, v. Alexander JENKINS, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 243

538 N.Y.S.2d 243

145 A.D.2d 225

The PEOPLE of the State of New York, Respondent, v. Alexander JENKINS, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

Feb. 23, 1989.

Jonathan R. Walsh, Yorktown Heights, of counsel (Billie Manning with him, on the brief; Paul T. Gentile, New York City, for respondent.

James Cohen, (Leon Mark Weeks and Thomas K. Reilly with him, on the brief), for defendant-appellant.

Before KUPFERMAN, J.P., and SULLIVAN, ROSS, CARRO and SMITH, JJ.

SMITH, Justice.

The pivotal question raised by this appeal concerns the retroactive application of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and whether at trial the defendant made a prima facie showing of purposeful discrimination by the prosecutor in her exercise of peremptory challenges to exclude potential black jurors.

By indictment filed on March 28, 1979, defendant and Ronald Johnson were charged with two counts of attempted murder, first degree, robbery in the first and second degrees, and criminal possession of a weapon. After a joint jury trial both the defendant and co-defendant were convicted of second degree robbery and were sentenced as second felony offenders to imprisonment for terms of six and one-half to thirteen years. Defendant is currently serving his sentence.

The procedural history of this appeal is as follows: The defendant and Ronald Johnson both filed timely notices of appeal. We reversed Johnson's conviction and remanded for a new trial based upon the cumulative effect of three errors by the trial court: (1) in denying Johnson's challenge for cause to a juror whose son was then a police officer, since the charges involved the attempted murder of a police officer and bias by this juror was implied; (2) in charging in connection with Johnson's alibi defense that "you must be satisfied as to the truth of the alibi"; and (3) in excluding photographs of a third person who had allegedly admitted complicity in the crime, in light of Johnson's claim of mistaken identification. People v. Johnson, 89 A.D.2d 506, 452 N.Y.S.2d 53 (1st Dept.1982). Ronald Johnson was retried, convicted and sentenced, on October 26, 1982 (Hecht, J.), as a second felony offender, to an indeterminate term of imprisonment of six and one-half to thirteen years.

On defendant's appeal, assigned appellate counsel filed a five-page brief in this court attacking the testimony of the People's identification witnesses. Jenkins then filed a pro se supplemental brief which was, in essence, the same brief filed by co-defendant Johnson, but which also raised a claim of ineffective assistance of appellate counsel. This court affirmed the defendant's conviction, stating in its memorandum decision that the "cumulative effect of possible errors which required a new trial in People v. Johnson, supra, is thus absent in the present case." People v. Jenkins, 91 A.D.2d 557, 457 N.Y.S.2d 36 (1st Dept. 1982), lv. denied 58 N.Y.2d 975, 460 N.Y.S.2d 1034, 447 N.E.2d 94 (1983). Defendant's subsequent writ of habeas corpus claiming ineffective assistance of counsel was denied by the District Court for the Southern District of New York (Conner, J.) on October 24, 1986. However, the Court of Appeals for the Second Circuit reversed, with direction to issue an order granting the writ unless this court appointed appellate counsel within ninety days of its decision. Jenkins v. Coombe, 821 F.2d 158, 161 (2d Cir.1987) cert. den. 484 U.S. 1008, 108 S.Ct. 704, 98 L.Ed.2d 655 (1988). The Circuit Court concluded that since this court had relieved the defendant's appointed counsel without replacement before submission of the appeal, the defendant was constrained to represent himself despite the clear duty to afford him adequate and effective appellate representation. We assigned appellate counsel for defendant and this appeal followed.

Defendant's primary claim is that the prosecution's use of peremptory challenges to exclude black venirepersons violated his federal and state constitutional equal protection rights. He also argues that the trial court's denial of challenges for cause for prospective jurors who were related to law enforcement officers deprived him of a fair trial, and that its refusal to allow evidence as to the description and photograph of Ronald Smith violated his due process rights.

Batson v. Kentucky, supra, was decided in April 1986, long after this court's December 1982 decision on the defendant's appeal. In Griffith v. Kentucky, however, the Supreme Court held that the holding in Batson should be "applied retroactively to all cases, state or federal, pending on direct review or not yet final ..." 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649, 661 (1987). Because of the procedural history of this appeal, it is clear that this case, in effect, remains on direct appeal.

In Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1879), the Supreme Court held that a state violated the equal protection of the laws when it tried a black defendant before a jury from which blacks had been purposely excluded. The Supreme Court in Batson, supra, re-examined the evidentiary standard it had established in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) for evaluating a criminal defendant's claim that the use of peremptory challenges to exclude members of his race from a petit jury violates the equal protection of the law. It held that the Swain standard, which required proof that a prosecutor had systematically utilized peremptory challenges "in case after case, whatever the circumstances, whatever the crime," to exclude members of a race from the jury (Swain, supra, p. 223, 85 S.Ct. p. 837), placed a crippling burden upon defendants, thereby allowing a prosecutor's use of peremptory challenges to be largely immune from constitutional scrutiny. Batson v. Kentucky, supra, 476 U.S. pp. 92, 93, 106 S.Ct. pp. 1720-21.

The Batson court, overruling Swain, announced that a defendant may establish a prima facie case of purposeful discrimination in the selection of a petit jury solely on evidence concerning the prosecutor's exercise of peremptory challenges at that defendant's trial. Batson, supra, p. 96, 106 S.Ct. pp. 1722-23. The Supreme Court established guidelines for determining a prima facie case of purposeful discrimination. It stated:

To establish such a (prima facie ) case, the defendant first must show that he is a member of a cognizable racial group (citations omitted) and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the defendant is entitled to rely on the fact ... that peremptory challenges constitute a jury selection practice that permits 'those to discriminate who are of a mind to discriminate.' (citation omitted). Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the (black) veniremen from the petit jury on account of their race. This combination of factors in the empaneling of the petit jury ... raises the necessary inference of purposeful discrimination. Batson supra p. 96, 106 S.Ct. p. 1723.

In deciding whether the defendant has made the requisite showing the trial court must consider "all relevant circumstances," including such factors as whether a prosecutor's "pattern" of strikes against black jurors might give rise to an inference of discrimination and whether the district attorney's voir dire statements and questions may support or refute such an inference. Batson supra, pp. 96-97, 106 S.Ct. p. 1723.

Once the defendant makes this prima facie showing, the burden shifts to the People to provide a "neutral explanation" for challenging blacks, which explanation need not rise to the level of justifying the exercise of a challenge for cause. However, a mere statement that the challenge was based upon intuitive judgment that the dismissed persons would be partial to a defendant because of their shared race is not adequate rebuttal. Nor is a mere denial of discriminatory motive or an affirmation of good faith in the exercise of challenges sufficient. Rather, the prosecutor must articulate a racially "neutral explanation" related to the particular case to be tried. The trial court then shall determine whether the defendant has established purposeful discrimination. Batson, supra, p. 98, 106 S.Ct. pp. 1723-24.

The petitioner in Batson was a black man indicted for burglary. The prosecutor peremptorily challenged all four blacks on the panel and defense counsel moved to discharge the resulting all white jury on sixth and fourteenth amendment grounds and requested a hearing. The defendant's motion was denied without a hearing. This issue came before the Supreme Court on Batson's appeal from his subsequent conviction.

Turning to the instant case, the record reveals that the defendant established a prima facie case of purposeful discrimination making it necessary for the prosecutor to come forward with a neutral explanation for the exercise of her peremptory challenges. A review of the facts makes this clear. The record reflects that there were a total of 10 blacks and approximately 37 whites and Hispanic surnamed venireperso questioned by both sides during nine rounds of voir dire, resulting in the selection of eleven white jurors and one black. The one black juror was a Mrs. Bullard, selected in the seventh round.

During this selection process the prosecutor exercised ten peremptory challenges. Seven of these were utilized to remove seven of the total of ten blacks questioned, while only three were used against the total of approximately 37 whites and Hispanics. The striking of most of the blacks and the disproportionate striking of blacks when compared to whites and Hispanics established a pattern of strikes against blacks. The defense counsel jointly exercised twenty challenges, two...