People v. Motton

• Decision Date: 19 August 1985
• Citation: 217 Cal.Rptr. 416,704 P.2d 176,39 Cal. 3d 596
• Court: California Supreme Court
• Parties: , 704 P.2d 176 The PEOPLE, Plaintiff and Respondent, v. Edward James MOTTON, Defendant and Appellant. Crim. 24173.

Page 416

217 Cal.Rptr. 416

39 Cal.3d 596, 704 P.2d 176

The PEOPLE, Plaintiff and Respondent, v.Edward James MOTTON, Defendant and Appellant.

Crim. 24173.

Supreme Court of California In Bank.

Aug. 19, 1985.

As Modified on Denial of Rehearing Oct. 3, 1985. ^*

Frank O. Bell, Jr., State Public Defender, under appointment by the Court of Appeal, and Neil Rosenbaum, Deputy State Public Defender, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Thomas A. Brady and Mark S. Howell, Deputy Attys.Gen., for plaintiff and respondent.

Cecil Hicks, Dist. Atty., Orange, Michael R. Capizzi, Asst. Dist. Atty., William W. Bedsworth and Jan J. Nolan, Deputy Dist. Attys., as amici curiae on behalf of plaintiff and respondent.

BROUSSARD, Justice.

Defendant appeals from a conviction for second degree murder.During the selection of the jury, defense counsel objected that the prosecutor was exercising his peremptory challenges to exclude Black women from the jury.Counsel subsequently objected that the prosecutor was excluding Blacks generally.We reverse the judgment on the ground that the trial court erred on both occasions in finding that counsel had not made a prima facie case of discriminatory exclusion.

In People v. Wheeler(1978)22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748, we recognized the danger that peremptory challenges could be employed in a way that would undermine the right to a representative jury.Our opinion distinguished between "specific bias"--defined as "a bias relating to the particular case on trial or the parties or witnesses thereto"(p. 276, 148 Cal.Rptr. 890, 583 P.2d 748)--and "group bias"--as presumption "that certain jurors are biased merely because they are members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds"(id.).We concluded that "the use of peremptory challenges to remove prospective jurors on the sole ground of group bias violates the right to trial by a jury drawn from a representative cross-section of the community...."(Pp. 276-277, 148 Cal.Rptr. 890, 583 P.2d 748.)

We then turned to the question of remedy."If a party believes his opponent is using his peremptory challenges to strike jurors on the ground of group bias alone he must raise the point in timely fashion and make a prima facie case of such discrimination to the satisfaction of the court.First, as in the case at bar, he should make as complete a record of the circumstances as is feasible.Second, he must establish that the persons excluded are members of a cognizable group within the meaning of the representative cross-section rule.Third, from all the circumstances of the casehe must show a strong likelihood that such persons are being challenged because of their group association rather than because of any specific bias."(P. 280, fn. omitted, 148 Cal.Rptr. 890, 583 P.2d 748.)

Once the court determines that a prima facie case has been made, the burden shifts to the other party to show, if he can, that the peremptory challenges were not based on group bias.(P. 281, 148 Cal.Rptr. 890, 583 P.2d 748.)No such showing was attempted in the present case, however, because the court ruled that defendant had failed to present a prima facie case.The correctness of that ruling is the principal issue raised by this appeal.

During the third day of voir dire, the prosecutor exercised a peremptory challenge to dismiss Margaret Jackson, a Black woman, leaving no Blacks on the jury.Counsel objected that the prosecutor had struck all Black female jurors.The court initially disputed the contention, claiming that the defense had challenged Alyce Brown, another Black woman, but the prosecutor acknowledged that he had challenged her.The judge then said, "All right.So your statement of all Black women is accurate.All right.But you excused a Black man."Defense counsel replied that his challenge was based on specific bias, and he was not using color as a basis for exclusion.

The prosecutor then argued that defendant had not made a prima facie showing of discriminatory challenges because the prosecution had passed the jury when Blacks were still seated.The court invited defense counsel to suggest those Black jurors who counsel thought were challenged without a suitable reason.Counsel suggested Marjorie Morrow.The prosecutor said that "she was awfully proper and very stern looking and impressed me as fairly hostile to me."

When defense counsel disputed the prosecutor's characterization of juror Morrow, the judge suddenly changed the subject, and asked him, "What's so magic about Black women?""I can see the race," the judge said, "But now you're going a step further and saying, 'Well, I don't mind getting rid of the Black men.I have been bouncing those myself but Black women....'So I'd like to hear from you what it is about the Black women that has some special quality in it."

Defense counsel replied that the women had been excused "in a group," apparently referring to the concept of group bias as explained in Wheeler.The judge again confused the defendant's duty to present a prima facie case as set out in Wheeler, and the prosecutor's duty to explain the challenges once a prima facie case is established, and asked the prosecutor to explain why he had challenged Alyce Brown.The prosecutor declined to do so until the judge ruled as to whether defendant had made a prima facie showing.

Defense counsel argued that Black women were a cognizable group within the Wheeler rule.The judge rejected that argument: "You can have a cognizable group of people who wear toupees.Actually, everybody that I have been able to detect that wore toupees with respect to jurors have been excused, too; but is there some significance to that....You have got women on the jury.What function does a Black woman fulfill that the White woman doesn't?"

Defendant described the group as one involving a "concurrence of racial and sexual identity" and asserted he had made a prima facie showing.The judge then denied the motion.When counsel asked the grounds for the ruling, she said, "I think it's totally fallacious.I don't even think it's taken seriously....I have listened to each challenge and looked at the jurors as they have been excluded.There were jurors that didn't surprise me a bit ... that I didn't think there was anything racial in it at all, at all."

The next day the prosecutor used a peremptory challenge to excuse Warren Morris, a Black male.Defense counsel again objected, and inquired, "Is the record clear with respect to the situation that there were four Black females, in fact, excused?"The judge replied, "Oh, I doubt very much, because I think the spoken record does not reflect the nationality ... or race of anyone."Counsel suggested it would be appropriate for the record to reflect the challenges, but the judge disagreed: "I don't have any recollection how many.You people said in chambers how many, although yesterday your objection was directed to excusing every Black female.I haven't kept a record of how many Black males that you have excused or haven't excused.I just don't know, and at that point I think that I'll just leave that as a problem for both lawyers to have, to augment it on appeal...."

Counsel stated that all that was required was "a simple head count," and asked for agreement on the number.The judge rejected that suggestion: "No, it's now gone.There is no way I can recapture that, and I'm not about--you people have made statements.I have lived too long to know that attorneys are not always accurate....And I'm not prepared to just guess.I didn't look at them in this case.I made no notation.Now, if there is an appeal by one side or the other, you both will have the responsibility of augmenting the record."

The dialogue continued.Counsel asserted that "[t]he Wheeler case indicates that it's appropriate for the record to be made at this level."The court observed: "Now, if you had made the request prior to the beginning of jury selection, I guess...."Counsel said: "I had no idea the prosecution would challenge that way, your honor.I didn't want to presuppose that."The court: "Well, now, let's just leave off such sanctimonious statements, ... The record will speak for itself as to the questions asked and the answers given and you may augment on appeal the nationality or race of the various people excused."

Defense counsel suggested that the prosecutor might be able to assist in augmenting the record.The court responded: "That's what I was just telling you.I'm not going to let two attorneys put in the record something I can't verify, and I have no distinct recollection....I have no recollection and I will not stand for your categorical statement nor [the district attorney's] categorical statement of how many there are."

In subsequent voir dire, the prosecutor excused another Black woman, Luzinda Perry.The jury as finally selected contained only one Black.^**

Responding to the court's suggestion, defense counsel filed an affidavit asserting that on or before the third day of jury selection five Blacks were peremptorily excused by the prosecutor: Marjorie Morrow, Laura Foster, John-Oliver Richardson, Alyce Brown and Margaret Jackson.The judge marked it "filed without court permission and no motion filed.No action taken."

The case was assigned to another judge for trial.Counsel renewed his Wheeler motion, but the motion was denied on the ground that it had been previously denied by the judge who heard the voir dire.

Defendant now maintains that the court erred in finding that he had not presented a prima facie showing of discriminatory exclusion.His contention raises questions relating to all three elements of a prima facie case as set out in Wheeler: the adequacy of the record; the exclusion of a cognizable group; and the likelihood that persons were challenged because of their membership in such a group.

With regard to...