People v. Romero

• Decision Date: 13 October 2022
• Docket Number: Court of Appeals No. 20CA0143
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Phillip ROMERO, Defendant-Appellant.
• Court: Colorado Court of Appeals

523 P.3d 1010

2022 COA 119

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Phillip ROMERO, Defendant-Appellant.

Court of Appeals No. 20CA0143

Colorado Court of Appeals, Division IV.

Announced October 13, 2022

Philip J. Weiser, Attorney General, Erin K. Grundy, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Sarah M. Morris, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE PAWAR

¶ 1 Defendant, Phillip Romero, appeals the judgment of conviction entered on jury verdicts finding him guilty of various criminal offenses and the trial court's determination that he was guilty of five habitual criminal counts. We reverse and remand for retrial because we conclude that the trial court clearly erred by denying Romero's Batson challenge to a prospective juror.

I. Background

¶ 2 During jury selection, the prosecution used a peremptory challenge on Juror F, one of only two Hispanic jurors in the pool. Defense counsel raised a Batson challenge, arguing that the strike was based on Juror F's race.¹ The prosecution responded that it was striking Juror F because he appeared disinterested and did not seem particularly focused on the proceedings. The trial court ultimately overruled defense counsel's Batson challenge despite making findings that undermined the prosecution's proffered justification for the strike.

¶ 3 Romero appeals, arguing that the trial court erred by overruling the Batson challenge, among other things. We agree with his Batson argument, reverse for retrial, and therefore need not address his additional allegations of error.

II. Batson

¶ 4 A peremptory challenge cannot be used to strike a potential juror based on their race. See People v. Beauvais , 2017 CO 34, ¶ 20, 393 P.3d 509. In Batson v. Kentucky , 476 U.S. 79, 96-98, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Supreme Court laid out a three-step process for resolving allegations that a peremptory challenge was based on racial discrimination. First, the objecting party must make a prima facie showing that the strike was based on race. Id. Second, the burden shifts to the striking party to articulate a nondiscriminatory reason for the strike. Id. Third, the trial court must determine whether, in light of the proffered nondiscriminatory reason, the objecting party has met its burden to show purposeful discrimination by a preponderance of the evidence. Id. Although the burden remains on the objecting party at step three, the Supreme Court has described "the critical question" at this stage as whether the trial court believes the striking party's proffered nondiscriminatory reason. Miller-El v. Cockrell , 537 U.S. 322, 338-39, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (At step three, "the critical question" is "the persuasiveness of the prosecutor's justification for his peremptory strike. ... [T]he issue comes down to whether the trial court finds the prosecutor's race-neutral explanations to be credible.").

¶ 5 If a party fails to meet its burden at step one or two, the trial court need not proceed to the next step. However, if the trial court hears the prosecution's proffered nondiscriminatory reason and makes a step-three ruling, any challenge to the court's step-one ruling is moot. See People v. Wilson , 2015 CO 54M, ¶ 12, 351 P.3d 1126.

¶ 6 A trial court's step-three ruling is one of pure fact. See People v. Cerrone , 854 P.2d 178, 191 (Colo. 1993). We therefore review it for clear error. See Beauvais , ¶ 2. This means that we will defer to the court's ultimate ruling on the Batson challenge as long as the record (1) reflects that the court weighed all of the pertinent circumstances and (2) supports the court's conclusion about whether the objecting party proved purposeful discrimination. Id.

¶ 7 A trial court's ultimate step-three ruling need not be supported by explicit findings on the credibility of the striking party's proffered nondiscriminatory reason. Id. at ¶ 32. Instead, to survive clear error review, a step-three ruling must merely find some support in the record. Id. (When reviewing a step-three ruling for clear error, the "central inquiry" is "whether that ruling is without support in the record.").

¶ 8 With this law in mind, we turn to the facts of this case and conclude that the trial court made a step-three ruling that was unsupported by the record.

III. Juror F

¶ 9 Juror F's answers to questions during voir dire were unremarkable. When asked whether he agreed with the notion that evidence of domestic violence must include more than the "benefit of the doubt" given to alleged victims, Juror F responded, "Yeah." This exchange followed.

Prosecutor: Okay. Is there anything else that you think makes us believe that domestic violence happens?

Juror F: Well, I mean, I just feel like people get mad. Like, when people get mad, you know, they're capable of doing things that, you know, you wouldn't do when you're, like, calm. So just, you know, actions, you know.

Prosecutor: Sure. Kind of that human nature, again, with our emotions that can come out.

Juror F: Yeah.

This was the extent of Juror F's questioning during voir dire.

¶ 10 At the end of voir dire, the prosecution used a peremptory challenge against Juror F, and defense counsel objected under Batson , arguing, "I would note that [Juror F] is a minority and part of a protected class. I don't remember him saying much of anything except that DV exists."

¶ 11 The prosecution immediately articulated a nondiscriminatory reason for the strike:

[O]ur reason for striking [Juror F] was due to the fact that he appeared very disinterested and kind of had seemed to have a wandering mind at times when the Court was reading instructions or going over concepts, or that when we were asking questions of everyone, he just didn't seem particularly focused or interested in what was going on.

¶ 12 Defense counsel presented an immediate rebuttal:

This is the very first time anyone's made any record at all about [Juror F] appearing disinterested. I don't — I mean, maybe someone else saw something, but I — I don't remember anything being brought up to the Court. I never saw him falling asleep or not paying attention, and I don't even know what that means, that someone appears disinterested. I mean, I'm sure this is kind of boring for all of them.

¶ 13 The trial court then ruled on the Batson challenge. The court first acknowledged that Juror F appeared to be of Latino heritage, had a Hispanic surname, and did not say anything during voir dire that could be the basis of a challenge for cause. The court then held that defense counsel had not made a prima facie showing that the strike was based on race under step one. But the court nevertheless proceeded to step two, holding that the prosecution had offered a nondiscriminatory reason for the strike. The court then assessed the credibility of that nondiscriminatory reason:

It's one of those reasons that's hard to make an analysis on that, because it's based on nothing more than perception of whether or not somebody appears to be interested or not interested, and that's a very subjective kind of thing.

I'll just simply say I have not seen him seem obviously disinterested. This isn't a situation where the person has fallen asleep or has been focused on a different part of the courtroom that had nothing to do with the trial. I just didn't see anything from Juror [F] that suggests that he was not adequately participating in the trial.

....

And so to the extent that the Court needs to make a finding on the second step, I find they've offered a race-neutral reason, although it's — it's one that's really hard to analyze, because I wasn't paying attention to Juror [F]’s behavior for that kind of an assessment, and so I don't have an independent reading on whether he was truly disinterested or not.

With that, the trial court excused Juror F based on the prosecution's peremptory challenge.

¶ 14 Romero and the prosecution agree, as we do, that by evaluating the credibility of the prosecution's nondiscriminatory reason, the trial court mooted the step-one ruling and any challenge to it. See Wilson , ¶ 12. And we conclude that by evaluating the credibility of the nondiscriminatory reason and then excusing Juror F, the trial court made a complete step-three finding that defense counsel had failed to prove purposeful discrimination by a preponderance of the evidence. The question therefore becomes whether this ruling "is without support in the record." Beauvais , ¶ 32. We conclude that it is unsupported.

¶ 15 Again, the critical question at step three is "the persuasiveness of the prosecutor's justification for his peremptory strike." Miller-El , 537 U.S. at 338-39, 123 S.Ct. 1029. And the record is devoid of anything supporting the prosecutor's proffered reason or the trial court's decision to credit it. Defense counsel argued that he had not observed Juror F exhibit any inattentive or disinterested behavior. Likewise, the trial court explicitly found that it "just didn't see anything from Juror [F] that suggests that he was not adequately participating in the trial."

¶ 16 Moreover, the prosecution did not identify Juror F's actual behavior that gave rise to the subjective impression that he was inattentive or disinterested. The prosecutor's statements that Juror F "appeared very disinterested and kind of had seemed to have a wandering mind" or "just didn't seem particularly focused or interested" are subjective interpretations of observed behavior. But at no point did the prosecution identify the behavior it observed that led to this interpretation. Nor does the record reflect the behavior.

¶ 17 We recognize that the trial court need not make specific findings to support its step-three ruling. Indeed, we may affirm a step-three ruling unsupported by specific findings by concluding that the trial court "implicitly credited" the proffered nondiscriminatory reason. Beauvais , ¶ 53. We also recognize that Beauvais requires us to defer...