People v. Marion

• Citation: 941 P.2d 287
• Decision Date: 29 November 1996
• Docket Number: No. 94CA1151,94CA1151
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Kenneth E. MARION, Defendant-Appellant. . III
• Court: Court of Appeals of Colorado

Page 287

941 P.2d 287

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Kenneth E. MARION, Defendant-Appellant.

No. 94CA1151.

Colorado Court of Appeals Div. III.

Nov. 29, 1996.

Rehearing Denied Jan. 9, 1997.

Certiorari Denied Aug. 4, 1997.

Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, John J. Krause, Assistant Attorney General, Denver, for Plaintiff-Appellee.

David F. Vela, Colorado State Public Defender, Ellen K. Eggleston, Deputy State Public Defender, Denver, for Defendant-Appellant.

Opinion by Judge ROTHENBERG.

Defendant, Kenneth Marion, appeals the judgment of conviction entered on a jury verdict finding him guilty of two counts of possession of a controlled substance. We affirm.

While defendant was driving his car, two police officers saw him throw an object out the window. They stopped him and, following the stop, they found a handbag containing cocaine in the car and also found marijuana in the trunk.

Defendant was not charged with possession of the marijuana. However, he was convicted of possession of the cocaine.

I.

Defendant first contends the trial court allowed the prosecutor to use a peremptory challenge to excuse a prospective juror based on racial motives. We are not persuaded.

Under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), courts apply a three-part test to determine whether a peremptory challenge constitutes purposeful discrimination against a cognizable group in violation of the Equal Protection Clause.

In step one, the defendant is required to make a prima facie showing that the prosecution has excluded a prospective juror based on race. The facts and circumstances surrounding the peremptory challenge may give rise to an inference of purposeful racial discrimination. People v. Portley, 857 P.2d 459 (Colo.App.1992). A "discriminatory purpose" used in this context means that the prosecutor selected a particular course of action partly because of its adverse effects on an identifiable group. Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991); People v. Baker, 924 P.2d 1186 (Colo.App.1996) (peremptory challenge not race-based merely because counsel asked race-related questions during voir dire).

Once defendant makes a prima facie showing that purposeful discrimination on account of race occurred during the jury selection process, the burden then shifts to the prosecutor to articulate a race-neutral explanation for the peremptory challenge (step two). People v. Cerrone, 854 P.2d 178 (Colo.1993).

At this stage, the court must assume the prosecutor's proffered reasons for the peremptory challenge are true. Hernandez v. New York, supra. Importantly, the prosecutor's explanation in this second stage need not be persuasive, or even plausible. The Supreme Court recently stated in Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834, 839 (1995) that: "Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race[-]neutral." See People v. Davis, 935 P.2d 79 (Colo.App. 1996).

Step three occurs after the prosecution has articulated a race-neutral justification for the peremptory strike. The defendant must be given some opportunity to respond to the prosecutor's explanation and to prove purposeful racial discrimination, and the trial court thereafter must decide whether the opponent of the challenge has proved purposeful racial discrimination. People v. Cerrone, supra; People v. Mendoza, 876 P.2d 98 (Colo.App.1994).

At this third stage, the persuasiveness of the prosecutor's justification is relevant. People v. Davis, supra. "Implausible or fantastic justifications [by the prosecutor] 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; see also People v. Baker, supra.

Whether the prosecutor's explanation was race-neutral is reviewed de novo. United States v. Kunzman, 54 F.3d 1522 (10th Cir.1995).

A.

Here, the prosecutor stated the following reasons for challenging an African-American prospective juror:

[The challenged venire member] was not as forthcoming or didn't volunteer as much information, when I asked him questions, as did the other jurors. And that goes to his rapport with me, personally, and my abilities to persuade him and have him listen to the evidence in the light most favorable--favorable to my position. He did not make as much eye contact with me....

Secondly ... [the challenged venire member] was asked to speak up a couple of times as it related to me.... I think that this Court can take notice that he was one of the least enthused jurors. He had to be asked to speak up .... [W]hen he gave answers, they were very cryptic and short, and that caused me concern as well. I don't want people being on my jury that aren't enthused about it, frankly.

[T]hirdly, when I asked about the cases being proved beyond a reasonable doubt and what that was, and a hundred percent, and some of the other jurors ... said that--that the fact that the guy's shoes were a different color would mean not guilty, well not only did [the challenged venire member] say that ... he didn't think it could be proven to a hundred percent, but he nodded his head along with [another prospective juror], saying, Yeah, that could cause me concern, that would be a reasonable doubt.

In an example that I tried to paint very much in favor of guilty [sic], the other jurors, several of them, shook their heads, as if meaning no, that wouldn't be a reasonable doubt. [The challenged venire member] agreed with [another prospective juror] on that issue, and they both caused me concern to that extent....

The way he answered questions, his demeanor as a juror concerned me. (emphasis added)

Defendant contends that the prosecutor's justification for challenging the prospective juror was a pretext for racial discrimination because it was based on a subjective assessment of demeanor. According to defendant, because the record contains no objective evidence verifying the prosecutor's justification, the trial court abused its discretion in finding the peremptory challenge was race-neutral. We disagree.

A trial court's finding on discriminatory intent involves a determination whether the prosecutor's explanation for the peremptory challenge is race-neutral or merely is a pretext for racial discrimination. See Hernandez v. New York, supra. This task can be difficult when the prosecutor's justification for the challenge is based on a subjective assessment of the prospective juror's demeanor. See generally M. Raphael & E. Ungvarsky, Excuses, Excuses: Neutral Explanations Under Batson v. Kentucky, 27 U. Mich. J.L. Ref. 229 (1993); Note, Batson's Invidious Legacy: Discriminatory Juror Exclusion and the "Intuitive" Peremptory Challenge, 78 Cornell L.Rev. 336 (1993).

Batson places special confidence in the trial court's ability to distinguish the legitimate racially neutral explanation from the sham reason. Daniels v. State, 768 S.W.2d 314 (Tex.App.1988). Thus, deference is given to the trial court's factual finding whether the prosecutor intended to discriminate on the basis of race. People v. Cerrone, supra; People v. Davis, supra.

In Hernandez v. New York, supra, the United States Supreme Court addressed an analogous situation in which a prosecutor's justification for a peremptory challenge included concerns about the demeanor of several prospective jurors. The prosecutor had challenged prospective jurors who were bilingual and whose verbal and non-verbal responses during voir dire indicated that they might have difficulty putting aside their knowledge of Spanish and relying on a translator's version of testimony spoken in Spanish.

While cautioning that the blanket exclusion of bilingual venire members may violate equal protection, a plurality of the Court nevertheless upheld as race-neutral the prosecutor's justification of peremptory challenges partly based on "the hesitancy in [the prospective jurors'] answers and their lack of eye contact." Hernandez v. New York, supra (fn.1) (plurality opinion, Kennedy, J.). The Court deferred to the trial court's finding of non-discrimination based largely on its ability to assess the demeanor and credibility of the prosecutor.

Thus, Hernandez permits peremptory challenges to be justified partly on the basis of the prosecutor's assessment of prospective jurors' demeanor. However, courts throughout the country have differed in the degree of deference accorded to trial court findings of non-discrimination where the record lacks any objective evidence supporting the prosecutor's proffered explanation.

For example, where a prosecutor used five of his ten peremptory challenges to strike five of the six African-Americans from the panel, a Texas court was reluctant to accept the trial court's finding of non-discrimination based on a prosecutor's subjective assessment of a juror's demeanor. The prosecutor cited inattentiveness and failure to make eye contact, among other reasons. Daniels v. State, supra.

Similarly, in State v. Cruz, 175 Ariz. 395, 857 P.2d 1249 (1993), the court held that a prosecutor's facially neutral but wholly subjective reason for exercising peremptory challenges must be coupled with some objective verification to overcome a prima facie showing of discrimination. It stated:

Such verification could come from the words of the prospective juror .... [or] could also be accomplished by a prosecutor's statement concerning the facts upon which the subjective conclusion is based. This would assist the trial court in determining whether the proffered reason was truly neutral or merely pretextual ... [T]he objective verification could be the trial court's own observations, made on the record, which might show that the prosecutor's subjective conclusion was...