People v. Johnson

• Decision Date: 13 October 2022
• Docket Number: Court of Appeals No. 19CA0768
• Citation: 523 P.3d 992,2022 COA 118
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Raeaje Resshaud JOHNSON, Defendant-Appellant.
• Court: Colorado Court of Appeals

523 P.3d 992

2022 COA 118

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Raeaje Resshaud JOHNSON, Defendant-Appellant.

Court of Appeals No. 19CA0768

Colorado Court of Appeals, Division VI.

Announced October 13, 2022

Philip J. Weiser, Attorney General, Frank R. Lawson, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Tanja Heggins, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE FREYRE

¶ 1 Defendant, Raeaje Resshaud Johnson, appeals his multiple convictions, asserting his trial contained an error under Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), erroneous jury instructions, improper expert testimony, prosecutorial misconduct, and an erroneous sentence. As a matter of first impression, we hold that when a prosecutor offers both a race-based and a race-neutral explanation in response to a Batson challenge, the trial court must apply the "per se" approach and uphold the challenge because once a discriminatory reason has been provided, this reason taints the entire jury selection process. Applying that approach here, we conclude that the trial court erred by denying Johnson's attorney's Batson challenge, reverse his convictions, and remand for a new trial. Because it may arise on remand, we address and reject Johnson's challenge to the admission of the expert's testimony. But we need not address his remaining issues.

I. Background

¶ 2 Johnson and the victim were in a romantic relationship, despite an April 2018 protection order that precluded him from contacting her. On May 19, 2018, the two made dinner plans for 9 p.m. at the victim's apartment. Johnson arrived late and intoxicated at 1 a.m.

¶ 3 The victim let Johnson inside and angrily accused him of cheating on her. The argument became physical when the victim scratched and punched Johnson, and Johnson took her to the ground. The victim eventually pushed Johnson out of the apartment and closed and locked the door. They continued yelling through the door, while Johnson pounded on it. Ultimately, Johnson kicked the door open. He grabbed the victim, threw her to the floor, grabbed her by her hair, and threw her onto a couch. He then slapped her with an open hand. The victim scratched and bit Johnson to get away, fled the apartment, and called 911. She watched Johnson throw some of her personal property from her apartment's third floor balcony to the parking lot. Fearing Johnson would come to the parking lot, the victim drove Johnson's car from the lot and met the police at a nearby intersection.

¶ 4 The victim told the police about the altercation, but by the time officers reached the apartment, Johnson was gone. An officer encountered Johnson while en route to another call and arrested him. Johnson had the victim's keys at the time of arrest. The People charged Johnson with first degree burglary, third degree assault, four counts of violation of a protection order, two counts of violation of bond conditions, witness tampering, and attempting to influence a public servant. A jury acquitted him of attempting to influence a public servant but convicted him of the remaining charges. The trial court sentenced him to three years in the custody of the Department of Corrections, followed by a four-year sentence to probation.

II. Batson

¶ 5 Johnson first contends that the trial court erroneously denied his attorney's Batson challenge to Juror M, the only Black juror on the panel. He argues that the court erred at several points in Batson ’s three-step inquiry for evaluating claims of racial discrimination in jury selection. Specifically, he argues that the trial court erred by (1) finding that he failed to establish a prima facie case of racial discrimination; (2) finding that the prosecutor provided a race-neutral reason for the challenge; and (3) concluding that there was no purposeful discrimination at step three. We first conclude that any error at step one is moot because the court immediately proceeded to step two.

¶ 6 Next, we conclude that the court erred at step two by finding that the prosecutor's reliance on Juror M's questionnaire response was race neutral and sufficient on its own to deny the Batson challenge. But we also conclude that the prosecutor's alternative basis for opposing the challenge — Juror M's response during voir dire to a question concerning domestic violence — constitutes a race-neutral explanation.

¶ 7 Finally, we adopt the "per se" approach to resolving a Batson challenge when the party opposing it offers both race-based and race-neutral reasons, and conclude that the court erred by denying the challenge. In doing so, we acknowledge, but respectfully disagree with, the "substantial motivating factor" approach followed by Judge Fox in People v. Ojeda , 2019 COA 137M, ¶ 23, 487 P.3d 1117 ( Ojeda I ), aff'd on other grounds , 2022 CO 7, 503 P.3d 856 ( Ojeda II ).

A. Additional Facts

¶ 8 Before jury selection began, all potential jurors completed a written questionnaire. As relevant here, question number eight asked, "Have you, a member of your family, or a close friend had a particularly good or bad experience with a police officer? If yes, describe." Juror M responded, "Yes. Many cases where cops are disrespectful due to certain racial identities." Question number ten asked, "Do you believe there is any reason why you cannot be a fair and impartial juror? If yes, please give your reasons." Juror M responded, "No, I would be great." Neither the court nor the parties asked Juror M about her response to question eight.

¶ 9 During voir dire, the prosecutor asked the jurors about alcohol use and its role in domestic violence. One juror explained his belief that alcohol causes an intoxicated person to act like a different person from their sober self. The prosecutor followed up by asking, "So, do you think that if you heard evidence that someone had assaulted another person, and that they were drunk when they did it, ... in your mind, would that person be less responsible than if they were sober?" The juror responded no.

¶ 10 The prosecutor then asked Juror M the same question, and the following colloquy occurred:

JUROR M: Just kind of what he said, as well, because, you know, if domestic violence is still happening sober, and it just worsens when there is alcohol involved, they are both still responsible. Like, if it doesn't happen, and then there is alcohol involved now, that might — I don't know — trigger the domestic violence or whatever.

PROSECUTOR: Okay. What if you were told that you were not going to know about anything in the past, and you had to look at what happened right here? Would that be difficult for you?

JUROR M: Yeah, definitely.

PROSECUTOR: Okay. So, understanding we all want to know everything about the whole context, but ... when it's a criminal trial, you get to hear about what happened on this day. Would you be able to look at something in isolation and not wonder or speculate about things that happened before if you were given the law that told you that you had to do that?

JUROR M: I mean, I will definitely wonder, but I'll try to think of the present.

¶ 11 Later, the prosecutor used a peremptory strike to excuse Juror M and defense counsel raised a Batson challenge:

DEFENSE COUNSEL: Judge, I'm raising Batson as to [Juror M]. ... [S]he is the only juror that was in the presumptive panel that looked to be of African-American in nature and ethnically speaking.

Additionally, ... I guess that I am alleging a case of racial prejudice and racial bias.

PROSECUTOR: I guess as a threshold question this is tantamount to an accusation of picking jurors based on race.

I think it is clear, based on her questionnaire alone — Ms. [M] talked about how law enforcement was disrespectful. She talked about how people of different races were treated differently in her experience with law enforcement. She also talked a lot about how she would want to know about the past, and it's a matter of wondering, and how the past is relevant in terms of talking about domestic violence. I think because of her answers in her questionnaire, there is more than enough reason for the People to have dismissed her.

DEFENSE COUNSEL: I have [Juror M's] questionnaire in front of me. She says that she is a member of the Black Students Alliance. She says that in her answer to question eight that there are many cases where police officers are disrespectful to certain people due to their racial identities.

It's clear, based on her questionnaire, that she's experienced racism in the past. I believe she's experiencing racism as a juror by taking her off this panel for Mr. Johnson, who is an African-American male.

I saw nothing she said to the District Attorney or to me during our jury selection that would indicate that she would not be fair to the Prosecution. It's quite the opposite. She actually mentioned things that would perhaps be prejudicial to Mr. Johnson, and that she understood why people would make things up in a domestic violence case.

She was agreeing with the woman who was sitting next to her, saying the same things, and that person just happens to be not African-American, so I am alleging a case of purposeful discrimination.

THE COURT: You said that she said the same things as a Juror sitting right next to her?

I assume you are referring to Juror No. 5, and I don't recall at all, in terms of [Juror M's] comments about wanting to know what happened in the past.

So are there different statements that you are saying they had similar remarks regarding?

DEFENSE COUNSEL: Yes. So she was essentially saying that she was agreeing with the juror next to her that ... domestic violence cases are complicated, and that she would perhaps want to get a broader picture of what happened.

And then instead of questioning her further and perhaps trying to establish a challenge for cause or something like that, [the prosecutor] actually said — but, you know, you are okay with not knowing those things, and the juror,

...