People v. Portley, 90CA0859

• Citation: 857 P.2d 459
• Decision Date: 17 December 1992
• Docket Number: No. 90CA0859,90CA0859
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Patrick PORTLEY, Defendant-Appellant. . III
• Court: Court of Appeals of Colorado

Page 459

857 P.2d 459

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Patrick PORTLEY, Defendant-Appellant.

No. 90CA0859.

Colorado Court of Appeals Div. III.

Dec. 17, 1992.

Rehearing Denied Jan. 28, 1993.

Certiorari Denied Aug. 30, 1993.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John J. Krause, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, State Public Defender, Patrick J. Mulligan, Deputy State Public Defender, Denver, for defendant-appellant.

Opinion by Judge METZGER.

Defendant, Patrick Portley, appeals the judgment of conviction entered on a jury verdict finding him guilty of second degree kidnapping, first degree sexual assault, first degree burglary, first degree aggravated motor vehicle theft, and attempted aggravated robbery. We affirm and remand with directions.

On the evening of November 16, 1988, just after two teenaged employees had finished closing an Aurora sandwich shop, defendant approached them in the parking lot, said, "Don't move, I've got a gun," and forced them back into the building. Defendant first ordered the young man victim to lie face down on the floor and then took the young woman victim to the back of the shop. He commanded her to open the safe, but she was unable to do so because of her fear and nervousness.

Defendant then took her outside to her car, forced her to drive to a vacant field, threatened her with the gun, and then repeatedly sexually assaulted her.

Several days later, defendant was arrested while driving the victim's car. Thereafter, both victims selected the defendant from photographic lineups. Additionally, the young woman victim identified the defendant from a voice lineup.

At trial, before commencement of voir dire, the trial court indicated its desire to seat two alternate jurors. The court determined that alternate No. 1 would sit in chair No. 8 and alternate No. 2 would sit in chair No. 14. Counsel for both sides acquiesced in this procedure.

Each potential juror was randomly given a number, and then, upon challenge, was replaced by the next juror on the numerical list. After all challenges for cause had occurred, the prosecutor exercised his first peremptory challenge to the white juror in chair No. 14, the second alternate position. This automatically moved the lone potential black juror, who had been given the next available juror number, from the venire into that seat. The prosecutor used four other peremptory challenges to remove individuals who were seated in the 12 chairs for non-alternate jurors.

I.

Relying on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) and its progeny, defendant first contends the trial court erred in refusing to require the prosecutor to justify his allegedly racially discriminatory use of a peremptory challenge during jury selection. Defendant argues that this refusal violated his right to equal protection of the laws. We conclude that a remand for further proceedings is necessary for resolution of this issue.

Batson sets forth the controlling standard by which to determine whether a prosecutor has exercised his or her peremptory challenges to exclude potential jurors solely on the basis of race, in violation of the Equal Protection clause of the Fourteenth Amendment.

As relevant here, defendant must show purposeful discrimination in the selection of the petit jury to establish a violation of equal protection. To do this, he is required to make a prima facie showing that the totality of relevant facts gives rise to an inference of purposeful discrimination by the prosecutor. The prosecutor must then rebut this inference with a neutral explanation for his or her exercise of peremptory challenges regarding the particular case. Finally, the trial court, considering the totality of circumstances, must determine whether defendant has established purposeful discrimination. Batson v. Kentucky, supra.

As relevant here, to establish a prima facie case of purposeful discrimination, defendant must show that he is a member of a cognizable racial group and that the prosecution exercised its peremptory challenges to remove members of a cognizable racial group from the venire. Batson v. Kentucky, supra; see also Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). A prima facie showing is made if these facts and other relevant circumstances raise an inference that the prosecutor used his or her peremptory challenges to exclude venirepersons from the petit jury on account of race. Batson v. Kentucky, supra.

While the Supreme Court noted its confidence in a trial court's ability to determine the existence of purposeful discrimination, the standard of review here is not whether the trial court abused its discretion in ruling on defendant's objections to the prosecutor's exercise of his peremptory challenge. Rather, the trial court is required to determine whether defendant has established purposeful discrimination, and the relevant initial inquiry is whether the totality of relevant facts give rise to an inference of a discriminatory purpose. Batson v. Kentucky, supra.

Before the jury was sworn, the defendant made a timely objection and the following colloquy occurred.

[DEFENSE COUNSEL]: There is one other issue before the court actually swears the jury.

I would object based on the fact that there was only one black person that could have been seated as a juror in the panel.

[The Deputy District Attorney] conducted his strikes in a fashion so that the one specific black female, which was the only black juror, was actually seated in the alternate chair that the court predesignated prior to the jury being seated.

I think that it is clearly a situation where my client is not getting a jury of his peers and I believe it's in violation of Colorado v. Fields as well as a United States Supreme Court case Batson.

THE COURT: Any response, [Deputy District Attorney]?

[DEPUTY DISTRICT ATTORNEY]: Judge, I don't think counsel stated a ground for any action by the court here, so, no, I would have no response.

THE COURT: It does not appear to the court from the manner in which the jurors were picked at random or moved into their chairs at random that there is such a pattern of challenges that would constitute exclusion of a minority.

She may in fact ultimately be an active deliberating juror or she may be excused, but the court will deny any [sic] the request for any relief because she has been seated in the second alternate chair.

Defense counsel later moved for a mistrial on the same basis; this motion was also denied on the same grounds.

Defendant is black. Therefore, having shown that he is a member of a cognizable racial group, defendant has met the first prong of the Batson test.

The determination whether defendant met the second prong of Batson, establishing whether the prosecutor exercised his peremptory challenges to remove members of a racial group from the venire, requires a more complicated analysis.

The People argue that defendant failed to make out a prima facie case for two reasons. First, they contend that, because only one black juror was involved, no "pattern" of discrimination has been shown. We reject this assertion.

The number of jurors involved is not critical to establishing an equal protection claim. See United States v. David, 803 F.2d 1567 (11th Cir.1986). As the court explained in United States v. Chalan, 812 F.2d 1302, 1314 (10th Cir.1987), in holding that a single peremptory challenge was sufficient to establish the claim:

[Peremptory challenges] ... are subject to abuse in part because normally the Government need not state the reasons for its action. If all of the jurors of defendant's race are excluded from the jury, we believe that there is a substantial risk that the Government excluded the jurors because of their race. Our holding helps to avert that risk by requiring the Government to explain the reasons for its challenges when no members of a defendant's race are left on the jury.

This analysis has been adopted in other opinions dealing with the issue of the effect of peremptory challenges against the sole prospective juror who is a member of a racially cognizable group. See United States v. Cloyd, 819 F.2d 836 (8th Cir.1987); Brown v. State, 762 P.2d 959 (10th Cir.1988); United States v. Horsley, 864 F.2d 1543 (11th Cir.1989); Mitchell v. State, 295 Ark. 341, 750 S.W.2d 936 (1988); Pearson v. State, 514 So.2d 374 (Fla.App.1987); Commonwealth v. Harris, 409 Mass. 461, 567 N.E.2d 899 (1991); State v. Henderson, 94 Or.App. 87, 764 P.2d 602 (1988). See generally Annotation, Use of Peremptory Challenge to Exclude From Jury Persons Belonging to a Class or Race, 79 A.L.R.3d 14 (1977).

Therefore, we disagree with the trial court's implicit determination that Batson requires challenges to be exercised against more than one prospective juror. Rather, we adopt the rule announced in United States v. Chalan, supra, and hold that if no members of a cognizable racial group are left on a jury as a result of the prosecutor's exercise of peremptory challenges, a defendant has met the second prong of the Batson test. See also Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991); Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991); Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992).

Second, the People assert that defendant has failed to make out a prima facie case because the black juror was neither challenged nor excluded. Under the circumstances here, we disagree.

In People v. Baker, 558 N.Y.S.2d 44, 45, 163 A.D.2d 188 (A.D. 1 Dept.1990), the prosecutor exercised his peremptory challenges to strike all black potential jurors. This left an all white jury, except for the second alternate, who was black. The court held "the inclusion of one lone black alternate juror does not negate the prima facie...