People v. O'Shaughnessy

• Decision Date: 15 April 2010
• Docket Number: No. 06CA1228.,06CA1228.
• Citation: 275 P.3d 687
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Michael P. O'SHAUGHNESSY, Defendant–Appellant.
• Court: Colorado Court of Appeals

275 P.3d 687

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

v.Michael P. O'SHAUGHNESSY, Defendant–Appellant.

No. 06CA1228.

Colorado Court of Appeals, Div. VII.

April 15, 2010.

John W. Suthers, Attorney General, Jennifer A. Berman, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Elisabeth Hunt White, Boulder, Colorado, for Defendant–Appellant.

Opinion by Judge MILLER.

Defendant, Michael P. O'Shaughnessy, appeals the judgment of conviction and consecutive sentences entered on jury verdicts finding him guilty of attempted first degree murder with a deadly weapon, attempted aggravated robbery, second degree assault, false imprisonment, reckless endangerment, and a violent crime sentence enhancer. We affirm the judgment, vacate the sentence in part, and remand the case for resentencing.

I. Background

The victim testified that defendant approached her with a hunting knife as she finished loading groceries into her van and told her to get inside. She sat down in the driver's seat, but turned so that she could kick him as he began stabbing her with the knife. Defendant told the victim she was going to die, and stabbed her four times in the throat, once in the leg, and once on her hand. He then demanded money. She said she did not have any money and turned to look for her purse; when she turned back, defendant was gone. The entire incident took place in under one minute.

Defendant contends that the trial court erred in denying his Batson objection when the prosecution struck three Hispanic members of the venire; that the trial court should have instructed the jury on the affirmative defense of abandonment with regard to the crimes of attempted murder and attempted aggravated robbery; that his convictions of attempted first degree murder and second degree assault must merge under principles of double jeopardy; and that the trial court erred in imposing consecutive sentences. We agree only with regard to sentencing.

II. Analysis

A. Batson Objection

We reject defendant's contention that the trial court erred in denying his Batson objection to the prosecution's use of peremptory strikes against three Hispanic members of the venire.

Under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Equal Protection Clause of the Fourteenth Amendment forbids a prosecutor to exclude potential jurors solely on account of their race or on the assumption that minority jurors will not impartially consider the prosecution's case against a member of their own race. Batson, 476 U.S. at 89, 106 S.Ct. 1712. Batson outlines three steps for evaluating claims of racial discrimination in jury selection: (1) the defendant must establish a prima facie case of discrimination; (2) the prosecution must give a race-neutral reason for its peremptory strike; and (3) the court must determine whether the defendant has proved discrimination by a preponderance of the evidence. Id. at 93–98, 106 S.Ct. 1712; Valdez v. People, 966 P.2d 587, 589 (Colo.1998).

Defendant challenges the trial court's application of step three only. Typically, the decisive question at this step is “whether counsel's race-neutral explanation for a peremptory challenge should be believed.” Hernandez v. New York, 500 U.S. 352, 365, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (plurality opinion); accord id. at 375, 111 S.Ct. 1859 (O'Connor, J., concurring, joined by Scalia, J.) (if “the trial court believes the prosecutor's nonracial justification, and that finding is not clearly erroneous, that is the end of the matter”). As evidence bearing on that issue is likely to be limited,

the best evidence often will be the demeanor of the attorney who exercises the challenge. As with the state of mind of a juror, evaluation of the prosecutor's state of mind based on demeanor and credibility lies “peculiarly within a trial judge's province.”

Id. at 365, 111 S.Ct. 1859 (quoting Wainwright v. Witt, 469 U.S. 412, 428, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985)); see also Snyder v. Louisiana, 552 U.S. 472, 477, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008). “Because a reviewing court is not as well positioned as the trial court to make such credibility determinations, we review a trial court's decision at step three only for clear error.” People v. Robinson, 187 P.3d 1166, 1173–74 (Colo.App.2008). Thus, in the absence of exceptional circumstances, we defer to the trial court's finding. Snyder, 552 U.S. at 477, 128 S.Ct. 1203; Robinson, 187 P.3d at 1173–74.

1. Lack of Specific Findings Under Step Three

As an initial matter, we reject defendant's argument that the trial court failed to make any findings beyond step two of the Batson inquiry. After the prosecutor offered his reasons for the strikes, the trial court asked defense counsel whether he cared to offer rebuttal. Following defense counsel's remarks, the court stated:

[T]he Court at this point in time is satisfied that the prosecution has articulated with respect to [Prospective Juror S] there was a race-neutral reason for her excusal.... Whether it's right or wrong, I think it's a race-neutral reason. And so the Court is going to find it to be a valid reason for her excusal.

Likewise, the Court's satisfied that the prosecution articulated reasons for [Prospective Juror M] and [Prospective Juror T's] excusal.... Here again, impressions are subjective but it's a race-neutral reason. So I note the objection. I overrule it.

Defendant contends that the trial court's findings merely acknowledge that the prosecution met its burden at step two and that the trial court was required to rule explicitly on whether the race-neutral reasons given for the strikes were believable. We disagree. In Robinson, the trial court ruled on a Batson objection using similar language: “The Court finds that ... the D.A. has stated an articulable non-racial [basis] for his peremptory, which is the standard. So the motion for, I guess, reinstating Ms. [V.] into the jury is denied.” 187 P.3d at 1171. A division of this court affirmed, noting that “[t] he district court obviously (albeit implicitly) found the prosecutor's stated reasons credible.” Id. at 1174. Based on our review of the record before us, we reach the same conclusion here.

2. Specific Objections

a. Prospective Juror T

The prosecutor explained his peremptory strike of Prospective Juror T as follows:

My ... race-neutral basis for excusing [Prospective Juror T] is throughout my voir dire she was rolling her eyes, indicating that she wasn't too happy to be here which was confirmed when I did excuse her, her actions.

In considering this statement, the trial judge noted that although he could not see Prospective Juror T during voir dire, impressions from body language are subjective.

As the Supreme Court recently held, Batson does not require the rejection of a demeanor-based explanation for a peremptory challenge merely because the trial judge did not personally observe the relevant aspect of the prospective juror's demeanor. Thaler v. Haynes, ––– U.S. ––––, –––– – ––––, 130 S.Ct. 1171, 1174–75, 175 L.Ed.2d 1003 (2010). The Court thus rejected the argument, raised here by defendant, that its decision in Snyder requires a trial court to “specifically credit” a prosecutor's demeanor-based reason to overcome a Batson objection.

In Snyder, the prosecutor gave two ostensibly race-neutral reasons for a peremptory strike, one based on demeanor and the other not. 552 U.S. at 478–479, 128 S.Ct. 1203. The trial court denied defense counsel's Batson objection without stating which of the two reasons it considered valid. On review, the Supreme Court held that “deference is especially appropriate where a trial judge has made a finding that an attorney credibly relied on demeanor in exercising a strike.” Id. at 479, 128 S.Ct. 1203. However, because the record was unclear as to which of the two reasons the trial court had credited, and because the Supreme Court found the second reason to be a pretext, the Court held that it could not presume the trial court had ruled on a proper basis. Id. at 485, 128 S.Ct. 1203.

Here, in contrast, the only reason the prosecutor gave for striking Prospective Juror T was based on her demeanor. Thus, there is no question that the trial court's acceptance of the prosecutor's explanation is entitled to deference on review. It is immaterial, then, that the trial judge did not see Prospective Juror T roll her eyes, and nothing in the record contradicts the prosecutor's statements about her demeanor. We therefore conclude that it was not clear error for the trial court to accept the prosecutor's race-neutral explanation for the peremptory strike of Prospective Juror T.

b. Prospective Juror S

The prosecutor stated that he struck Prospective Juror S because

she works for Arapahoe House. She does a lot of counseling. She's sympathetic to people. I'm assuming she may be sympathetic to people that are on drugs and there may be testimony elicited in this case that the defendant may have been under the influence of drugs which might mean she might not hold him responsible for his behavior.

Defense counsel argued that several white jurors not challenged by the prosecution were “of the same background,” and pointed to one juror who was a therapist with a master's degree in social work, one who headed an early childhood education program, one who was a speech language pathologist, and another who was a speech therapist. Defense counsel asserted that these jurors were like Prospective Juror S because they “may have empathetic situations.”

On appeal, defendant contends that the prosecution's failure to strike jurors who were similarly situated to Prospective Juror S and its failure to question her specifically about whether her background would make her unduly sympathetic to a defendant who was on drugs requires us to conclude that the reason given for her excusal was pretextual. We disagree.

The Supreme Court has said:

If a prosecutor's proffered reason for...