People v. Mendoza
| Decision Date | 11 March 1993 |
| Docket Number | No. 91CA0318,91CA0318 |
| Citation | 860 P.2d 1370 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jesus MENDOZA, Defendant-Appellant. . IV |
| Court | Colorado Court of Appeals |
Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Matthew S. Holman, Asst. Atty. Gen., Denver, for plaintiff-appellee.
David F. Vela, State Public Defender, James A. Henderson, Sp. Deputy State Public Defender, Denver, for defendant-appellant.
Opinion by Judge PLANK.
Defendant, Jesus Mendoza, appeals a judgment of conviction entered upon a jury verdict finding him guilty of second degree murder. We remand for further proceedings.
On the evening of July 17, 1990, the victim, age 14 and allegedly associated with the "Crips" street gang, became involved in an argument with defendant, age 16 and allegedly associated with the rival "Bloods" gang.
In the course of the argument, defendant pulled out a gun, loaded a clip into it, and began firing in several directions. The victim first withdrew behind a pick-up truck, but then moved into the open and taunted the defendant. Defendant fired another shot, fatally wounding the victim.
Defendant, who is Hispanic, contends that the trial court erred by not finding that the prosecution had used its peremptory challenges to discriminate against prospective minority jurors on the basis of race, violating both his and the improperly excused individuals' state and federal constitutional rights. We hold that the trial court's record is insufficient to determine whether the prosecution used its peremptory challenges to discriminate on the basis of race and, thus, remand for further proceedings.
The court employed the strike-method of jury selection. Thirty-five individuals from the venire pool were initially questioned, and eventually thirty-five individuals were passed for cause by the defendant and the prosecutor. Each side was then allowed up to eleven peremptory challenges. After the sixth round of peremptory challenges, the prosecutor had struck five of seven prospective Spanish-surnamed jurors, and the defendant objected that the prosecutor was using his peremptory challenges to discriminate against Hispanics.
Defendant sought both to make a record and for a determination by the court whether the prosecutor was systematically excluding minorities. Rather than making such determination, the court asked the prosecutor to volunteer his reasons for the strikes. After the prosecutor stated his reasons, the court found that there was "no systematic exclusion," and jury selection continued.
Subsequently, with one of his remaining peremptory challenges, the prosecutor excused the one African-American on the panel. No contemporaneous objection was made by the defendant, and the jury was sworn. However, the next day, after the trial began and the first witness had testified, defendant again objected to the alleged systematic exclusion of minorities by the prosecutor based on the challenge to the unidentified African-American. The trial court found that the defendant was "not entitled to raise that."
We first address the defendant's contention that the trial court erred in determining there was no violation of either the defendant's, or the excused Spanish-surnamed panel members' Fourteenth Amendment equal protection rights. We conclude the record is insufficient to determine this question.
The prosecution violates a prospective juror's constitutional right to equal protection whenever he or she is improperly excused from jury service solely on the basis of race; when the defendant is the same race as the excused juror, then the defendant's constitutional right to equal protection is violated as well. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991); Fields v. People, 732 P.2d 1145 (Colo.1987).
Under Batson and its progeny, a court must make two distinct findings to establish whether the prosecution used peremptory challenges to eliminate prospective jurors on the basis of race. First, the court must find that the defendant has established a prima facie case of systematic exclusion. If so, then the burden shifts to the prosecution to show that it did not use its peremptory challenges to excuse any juror on the basis of race. It is important to distinguish between these findings: the first relates to the challenges of the potential jurors in total; the second relates to the challenge of each of the particular jurors excused.
When a trial court does not make all the findings necessary under Batson analysis, the appropriate remedy is to remand for further proceedings. People v. Portley, 857 P.2d 459 (Colo.App.1992).
To establish a prima facie case under Batson, the defendant must belong to a cognizable racial group and must show that the prosecution exercised its peremptory challenges to remove members of a cognizable racial group from the venire. Defendant then must present evidence sufficient to sustain an inference that the prosecution used peremptory challenges to discriminate improperly on the basis of race. In proving this inference, the defendant may rely not only on the facts and context of the particular case, but is also entitled to the benefit of the presumption that, "peremptory challenges constitute a jury selection practice that permits 'those to discriminate who are of a mind to discriminate.' " Batson, 476 U.S. at 96, 106 S.Ct. at 1723, 90 L.Ed.2d at 87, citing Avery v. Georgia, 345 U.S. 559, 562, 73 S.Ct. 891, 892, 97 L.Ed. 1244 (1953).
Batson provides illustrations of possible scenarios which might give rise to such an inference, including a pattern of strikes against a particular group, or the questions and statements made by the prosecution during questioning. It is not necessary for the defendant to prove anything beyond an inference to establish a prima facie case.
Once it is possible reasonably to infer that systematic exclusion has occurred, the burden shifts to the prosecution to present a specific, race neutral explanation for each strike of members of the racial group. The explanation must be rationally related to the trial of the case and be race neutral; the rationale does not have to rise to the level of a challenge for cause. Batson, supra; U.S. v. Wilson, 884 F.2d 1121 (8th Cir.1989), cert. denied, 493 U.S. 827, 110 S.Ct. 92, 107 L.Ed.2d 57 (1989); U.S. v. Chinchilla, 874 F.2d 695 (9th Cir.1989).
If, as here, the prosecution is willing to explain its use of peremptory challenges before the trial court determines whether an inference of systematic exclusion exists, the issue whether the defendant has established a prima facie case of systematic exclusion is moot. In that instance, the trial court has a duty to determine whether the prosecution has met its burden of showing that it used its peremptory challenges for constitutionally permissible considerations. Garrett v. Morris, 815 F.2d 509 (8th Cir.1987) cert. denied, 484 U.S. 898, 108 S.Ct. 233, 98 L.Ed.2d 191 (1987); U.S. v. Lane, 866 F.2d 103 (4th Cir.1989).
Thus, since we hold that a prima facie inference was established by waiver, we are left with the question of whether the trial court properly concluded that the prosecutor's explanations were neutral and specific.
The trial court here simply stated that it "found no pattern of systematic exclusion." This language suggests that the court may have found only that the majority of the explanations were neutral and specific. However, if even one explanation was insufficient, the court should have ruled that the exclusion violated both the defendant's and the prospective juror's equal protection rights. United States v. Battle, 836 F.2d 1084 (8th Cir.1987); United States v. Gordon, 817 F.2d 1538 (11th Cir.1987), cert. denied, 487 U.S. 1265, 109 S.Ct. 28, 101 L.Ed.2d 979 (1988).
As well, the record shows that the trial court may have considered matters not relevant to the prosecution's burden of proof.
First, the prosecution asserted that two Spanish-surnamed individuals remained on the panel and that the prosecutor did not intend to strike them. However, once a prima facie case has been determined or waived, it is not relevant that some members of the excluded group remained on the jury. U.S. v. Clemons, 843 F.2d 741 (3rd Cir.1988).
Second, the trial court found that the exclusion of Spanish-surnamed individuals "cuts both ways" here because the victim was also Hispanic. Such a finding is not material to a determination whether either the defendant's, or the prospective juror's, equal protection rights have been violated. The harm being protected has nothing to do with the bias of the jury; rather, the Batson analysis seeks to prevent a prosecutor from assuming that a bias exists based solely on the race of a prospective juror and, in cases in which the defendant and the excused jurors share the same race, to protect the defendant's right to have members of his or her own race sit on the jury.
Finally, a review of the record also suggests that the trial court did not give the defendant the required opportunity to respond to the explanations given by the prosecutor to show that the explanations were either pretextual or too general in nature. See United States v. Wilson, supra; United States v. Chinchilla, supra.
Hence, we remand the cause for a hearing by the trial court to determine the sufficiency of the prosecutor's explanations for the three Spanish-surnamed individuals that were assertedly improperly excused.
We have considered and find no merit to defendant's contention that his right under the Colo. Const. art. II, § 16 to an impartial jury was violated.
We next address defendant's contention that the trial court erred by holding that he was not entitled to raise a Batson objection to the...
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People v. Mendoza
...the issue of whether the prosecutor's jury selection procedures violated defendant's right to equal protection of the law. People v. Mendoza, 860 P.2d 1370 (1993). However, on certiorari review, our supreme court vacated that judgment and has remanded the case to this court for reconsiderat......