People v. Lucero

• Decision Date: 24 April 2014
• Citation: People v. Lucero, 2014 COA 53, 353 P.3d 874 (Colo. App. 2014)
• Docket Number: 12CA0801
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Donald Roy LUCERO, Defendant–Appellant.
• Court: Colorado Court of Appeals

353 P.3d 874

2014 COA 53

The PEOPLE of the State of Colorado, Plaintiff–Appellee

v.Donald Roy LUCERO, Defendant–Appellant.

Court of Appeals No. 12CA0801

Colorado Court of Appeals, Div. II.

Announced April 24, 2014

Rehearing Denied May 29, 2014

John W. Suthers, Attorney General, Gabriel P. Olivares, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee

Robert S. Berger, P.C., Robert S. Berger, Denver, Colorado, for Defendant–Appellant

Opinion

Opinion by JUDGE RICHMAN

¶ 1 Defendant, Donald Roy Lucero, appeals the judgment of conviction entered on jury verdicts finding him guilty of violating the Colorado Organized Crime Control Act, conspiracy, burglary, and three counts of theft.

¶ 2 This case involves a single issue: whether the trial court erred in finding that defendant did not establish a prima facie case of discrimination under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), after the People waived the use of a peremptory strike, thereby excluding from the jury a potential juror with a Hispanic surname. We conclude that the court did not err and therefore affirm the conviction.

I. Background

¶ 3 On the first day of trial, twenty-two potential jurors were seated in the jury box for voir dire. The court stated that there would be no alternate jurors, and the People and defendant would each have five peremptory challenges. The court asked preliminary questions, and then the People and defense counsel spoke with the prospective jurors for thirty minutes. Both defendant and the People passed the twenty-two person venire for cause.

¶ 4 Although the jurors were assigned to seats one through twenty-two, peremptory challenges were to be used against jurors in seats one through twelve only, with replacements taken in order from seats thirteen to twenty-two, a process known as the “struck jury” system. The court explained:

At the end of that time, I'm going to ask each side to dismiss or give them the opportunity to dismiss five people. So five plus five is 10, 22 minus 10, the 12 people that are left over are going to be our jurors.

Juror P., the only potential juror with a Hispanic surname, was seated in the twenty-second chair.

¶ 5 Nothing in the record indicates that the People used their challenges against anyone with a Hispanic surname. The People and defendant each struck two potential jurors. The People waived their third peremptory challenge and accepted the panel. Defendant exercised his third challenge, giving the People another opportunity to exercise a peremptory challenge; they again accepted the panel. Defendant exercised his fourth challenge, and the People exercised their third peremptory to strike the replacement juror. Defendant exercised his fifth challenge, and the People exercised their fourth challenge to strike that replacement juror. The People then accepted the panel again. Because the People did not exercise their fifth challenge, Juror P. was not on the final jury panel and was excused.

¶ 6 The court inquired whether the parties had any objection pursuant to Batson. Defense counsel indicated that he had a problem with how the peremptory challenges had been used. The court clarified that defense counsel was referring to Juror P.

¶ 7 The following discussion ensued:

The Court: You have a Batson [ ] challenge to the way the peremptories were used?

Defense: Well, Judge, [defendant] just feels there is [sic] no Hispanics present in the jury, and that there was one Hispanic that was let go. He just wanted me to bring that up, that he should have been empanelled also.

...

Prosecutor: Your Honor, I didn't exercise any challenges to Mr. P. I take that as being an objection to the veneer [sic] as it exists. I don't think there is a requirement that if you are a Hispanic and you are the defendant, that you are entitled to a certain amount of Hispanic jurors, only that you're entitled to a fair cross-examination [sic] of the community of his peers. I believe he has received a fair cross-section of the community of his peers.

The Court: I do believe that Batson or Wheeler has to do with the systematic exclusion of someone for an impermissible reason, race, religion, something along those lines.

What we're talking about here, if I understand, is that [defendant] is Hispanic. That he feels Mr. P should not have been left out of the jury because he's Hispanic.

However, Mr. P is juror Number 22. He did not—strike that. There were no jurors with Hispanic surnames who were struck by the district attorney. I believe the folks who were struck were N, W, and then they passed, passed and then L.

Do you disagree with that [defense counsel]?

Defense : No, Judge.

The Court: He said, no, he does not disagree with that. Therefore, I don't see any systematic exclusion for an improper purpose. So I will deny the objection, and we'll accept the panel as it is.

¶ 8 The court ruled that the defense had not established a prima facie case of discrimination because the People had not exercised a strike to exclude Juror P. On appeal, defendant contends that the trial court erred by ruling that he failed to establish a prima facie showing of racial discrimination during the jury selection process. We disagree.

II. Applicable Law and Standard of Review

¶ 9 The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution prohibits the use of racial discrimination in the exercise of peremptory challenges. Miller–El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005) ; Batson, 476 U.S. 79, 106 S.Ct. 1712 ; Valdez v. People, 966 P.2d 587, 589 (Colo.1998) ; People v. Vieyra, 169 P.3d 205, 210 (Colo.App.2007).

¶ 10 “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). “In that process, the defendant is required first to make a prima facie showing that the State has excluded potential jurors on account of race.” Id . Only if the objecting party establishes a prima facie case does the burden shift to the proponent of the strike to come forward in the second step with a race-neutral explanation for the challenge. If a race-neutral reason is articulated, the trial court, in the third and final step, must determine whether the opponent of the strike has nonetheless proved purposeful racial discrimination. Valdez, 966 P.2d at 589–90.

¶ 11 We review de novo a trial court's ruling of whether a defendant has established a prima facie showing that the other party excluded a potential juror because of race. Vieyra, 169 P.3d at 210.

III. Analysis

¶ 12 The United States Supreme Court has not addressed defendant's contention that a waiver of a peremptory strike by the People can give rise to a prima facie showing that a juror was excluded because of race, gender, or ethnic background. Nor have the appellate courts of our state ruled on whether the People's failure to use a peremptory challenge can give rise to a prima facie claim of discrimination under Batson . Defendant cites no authority to support his contention.

¶ 13 Nonetheless, several federal and state courts have addressed this specific issue. Some have concluded that the waiver of a peremptory strike does not give rise to a prima facie case of discrimination for purposes of a Batson challenge. See United States v. Tiggett, 219 Fed.Appx. 163 (3d Cir.2007) (unpublished); State v. Amerson, 259 S.W.3d 91 (Mo.Ct.App.2008) ; Mayes v. Texas, 870 S.W.2d 695, 699 (Tex.Ct.App.1994).

¶ 14 The rule that emerges from other cases, however, is that although waiver of a peremptory challenge, without more, is insufficient to establish a prima facie case of discrimination under Batson, waiver, accompanied by something more, can support a prima facie case. See United States v. Esparza–Gonzalez, 422 F.3d 897 (9th Cir.2005) ; State v. Paleo, 200 Ariz. 42, 22 P.3d 35, 37 (2001).

¶ 15 For the reasons discussed below, we find the reasoning of the latter cases persuasive and therefore apply the rule that emanates from them to this case.

A. Waiver of Peremptory Challenge Does Not Support a Prima Facie Batson Challenge

¶ 16 Cases which conclude that the People's waiver of a peremptory challenge cannot give rise to a prima facie case of discrimination are founded on the rationale that inaction by the People cannot amount to discrimination.

¶ 17 In Mayes, 870 S.W.2d at 699, the prosecutor deliberately refrained from using seven remaining peremptory strikes against white venirepersons. As a result, three remaining African–American venirepersons were precluded from being included on the twelve-member panel. The defendant argued that “because of the State's inaction, qualified African–American venirepersons were strategically prevented from serving on the ultimate jury panel.” Id. (emphasis in original). Deeming that contention “ludicrous,” the court concluded that it was “not prepared to hold that [a defendant] may sustain a Batson challenge by proof of the State's non-use of peremptory challenges.” Id . (emphasis in original); see also Rodriguez v. State, No. 07–02–0004–CR, 2002 WL 31165112, at *3 (Tex.Ct.App. Sept. 30, 2002) (holding that “the State has no duty to use all of its strikes merely because there are minority members on the panel further down the list”).

¶ 18 The Missouri Court of Appeals expanded on the rationale expressed in Mayes in Amerson, 259 S.W.3d at 94. There, the defendant contended on appeal that “the State's waiver of its last peremptory challenge, which resulted in the exclusion of [an African–American] and other qualified venirepersons from the jury due solely to their random numerical placement on the venire” violated Batson, and deprived the defendant and the excluded venireperson of equal protection. Id . Because the asserted error had not been preserved, the court reviewed for plain error.

¶ 19 The opinion notes that Batson and its progeny apply when a potential juror is removed for an impermissible reason. Thus,...