People v. Valdez

• Decision Date: 06 February 1997
• Docket Number: No. 95CA0756,95CA0756
• Citation: 946 P.2d 491
• Parties: 21 Colorado Journal 179 The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jacob R. VALDEZ, Defendant-Appellant. . V
• Court: Colorado Court of Appeals

Page 491

946 P.2d 491

21 Colorado Journal 179

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jacob R. VALDEZ, Defendant-Appellant.

No. 95CA0756.

Colorado Court of Appeals,

Div. V.

Feb. 6, 1997.

As Modified on Denial of Rehearing

May 15, 1997.

Certiorari Granted Nov. 24, 1997.

Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, John J. Krause, Assistant Attorney General, Denver, for Plaintiff-Appellee.

David F. Vela, Colorado State Public Defender, Elizabeth Griffin, Deputy State Public Defender, Denver, for Defendant-Appellant.

Opinion by Judge ROTHENBERG.

Defendant, Jacob R. Valdez, appeals the judgment of conviction entered on a jury verdict finding him guilty of theft from an at-risk adult, attempted theft from an at-risk adult, two counts of second degree burglary, two counts of criminal impersonation, and of being an habitual criminal. We affirm, but remand for correction of the mittimus.

I. Batson

Challenge

Defendant contends that he made out a prima facie showing of racial discrimination based on the prosecutor's use of peremptory challenges against African-American venire members. He bases this contention on: (1) the prosecutor's comments and questions during voir dire; and (2) the statistical pattern of prosecutorial peremptory challenges against African-American venire members.

Alternatively, defendant contends that the issue whether he made out a prima facie case has been mooted by the trial court's findings and by the prosecutor's attempted justification for challenging a venire member. Based on this alternative contention, defendant asserts that the trial court misapplied the Batson process and violated the separation of powers doctrine by assisting the prosecutor in stating race-neutral reasons for two peremptory challenges. We are not persuaded.

A. Batson Standard

Under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), courts use a three-part test to determine whether a prosecutor's peremptory challenge violates the Equal Protection Clause. In step one, the defendant must make a prima facie showing that the prosecutor excluded a prospective juror on account of race. The trial court determines whether such a prima facie showing was made. People v. Cerrone, 854 P.2d 178 (Colo.1993).

If the defendant succeeds in making a prima facie showing, then the court proceeds to step two which requires the prosecutor to state a race-neutral explanation for excluding the prospective juror. See People v. Marion, 941 P.2d 287 (Colo.App.1996). The trial court must afford defendant an opportunity to rebut the prosecutor's race-neutral explanation. See People v. Mendoza, 876 P.2d 98 (Colo.App.1994).

Thereafter, the trial court must make a finding of fact whether defendant proved racial discrimination (step three). People v. Cerrone, supra; People v. Marion, supra.

B. Prima Facie Showing of Discrimination

Defendant asserts the trial court abused its discretion in concluding he had failed to make out a prima facie showing of racial discrimination. According to defendant, such a showing is supported both by the prosecutor's statements and questions during voir dire, and by the pattern of peremptory strikes against African-American venire members. We disagree.

Recent decisions announced by the United States Supreme Court, our supreme court, and divisions of this court have refined the Batson analysis. See Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995); Cerrone v. People, 900 P.2d 45 (Colo.1995); People v. McCoy, 944 P.2d 577 (Colo.App.1996); People v. Marion, supra; People v. Burke, 937 P.2d 886 (Colo.App.1996); People v. Baker, 924 P.2d 1186 (Colo.App.1996); People v. Davis, 935 P.2d 79 (Colo.App.1996); People v. Saiz, 923 P.2d 197 (Colo.App.1995), cert. denied, --- U.S. ----, 117 S.Ct. 715, 136 L.Ed.2d 634 (1997). However, these decisions have not directly addressed the means of proving a prima facie case based on a pattern of peremptory challenges or the prosecutor's comments and questions on voir dire.

Under Batson, a prima facie showing of discrimination requires defendants to show that: (1) the prosecution exercised a peremptory challenge to remove a member of a cognizable racial group from the venire; and (2) the facts and circumstances surrounding the peremptory challenge support an inference that the prosecutor sought to exclude a venire member on account of race. People v. Cerrone, supra; People v. Gardenhire, 903 P.2d 1165 (Colo.App.1995). The defendant need not be a member of the same cognizable group as the challenged venire members. Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991)

The standard of review on the prima facie showing issue is abuse of discretion, and therefore, a reviewing court should defer to the trial court's decision on a Batson challenge. See People v. Gardenhire, supra; see also United States v. Bergodere, 40 F.3d 512 (1st Cir.1994), cert. denied, 514 U.S. 1055, 115 S.Ct. 1439, 131 L.Ed.2d 318 (1995); United States v. Vasquez-Lopez, 22 F.3d 900 (9th Cir.1994), cert. denied, 513 U.S. 891, 115 S.Ct. 239, 130 L.Ed.2d 162 (1994); United States v. Branch, 989 F.2d 752 (5th Cir.1993), cert. denied sub nom. Thompson v. United States, 509 U.S. 931, 113 S.Ct. 3060, 125 L.Ed.2d 742 (1993); United States v. Casper, 956 F.2d 416 (3d Cir.1992); United States v. Moore, 895 F.2d 484 (8th Cir.1990); United States v. Grandison, 885 F.2d 143 (4th Cir.1989), cert. denied, 495 U.S. 934, 110 S.Ct. 2178, 109 L.Ed.2d 507 (1990); People v. Henderson, 142 Ill.2d 258, 154 Ill.Dec. 785, 568 N.E.2d 1234 (1990), cert. denied, 502 U.S. 882, 112 S.Ct. 233, 116 L.Ed.2d 189 (1991); Bailey v. State, 84 Md.App. 323, 579 A.2d 774 (1990) (fn.2); State v. Wright, 78 Wash.App. 93, 896 P.2d 713 (1995); cf. Batson v. Kentucky, supra, 476 U.S. at 97, 106 S.Ct. at 1723, 90 L.Ed.2d at 88 ("We have confidence that trial judges ... will be able to decide if the circumstances concerning the prosecutor's use of peremptory challenges creates a prima facie case of discrimination...."). But see State v. Sledd, 250 Kan. 15, 825 P.2d 114 (1992), cert. denied, 506 U.S. 849, 113 S.Ct. 147, 121 L.Ed.2d 98 (1992); State v. Pharris, 846 P.2d 454 (Utah App.1993).

To the extent that People v. Portley, 857 P.2d 459 (Colo.App.1992) may be read to require a standard of review different from abuse of discretion, we decline to follow it.

1. Cognizable Racial Group

A cognizable racial group is defined on the basis of race. See Fields v. People, 732 P.2d 1145 (Colo.1987).

The venire here included 26 persons. Seven were AfricanAmericans and, therefore, were members of a cognizable racial group. See Fields v. People, supra.

2. Inference of Intentional Discrimination

In order to make a prima facie showing, defendant also was required to show that the facts and circumstances surrounding the prosecution's peremptory challenges created a discriminatory inference.

In this case, the prosecution exercised five of its available seven peremptory challenges, using three to unseat African-American venire members. Defendant's position is that these statistics along with the other circumstances reveal a systematic pattern of exclusion sufficient to make a prima facie showing. We disagree.

In determining whether there is an inference of intentional racial discrimination, relevant factors include: the prosecutor's questions and statements during voir dire, a pattern of challenges against jurors of a particular race, and the disproportionate impact of these peremptory challenges. Batson v. Kentucky, supra.

Under Batson, a systematic pattern of exclusions is neither necessary nor sufficient for making out a prima facie showing. People v. Burke, supra. However, a pattern of exclusions may be part of the totality of circumstances used to determine whether a prima facie showing was made. See United States v. Alvarado, 923 F.2d 253 (2d Cir.1991); Jones v. Ryan, 987 F.2d 960 (3d Cir.1993); United States v. Sangineto-Miranda, 859 F.2d 1501 (6th Cir.1988); Turner v. Marshall, 63 F.3d 807 (9th Cir.1995); Cochran v. Herring, 43 F.3d 1404 (11th Cir.1995), cert. denied, 516 U.S. 1073, 116 S.Ct. 776, 133 L.Ed.2d 728 (1996).

There is no magic number of challenged jurors that will result in a prima facie case. Turner v. Marshall, supra. As one court has noted,

[S]tatistical comparisons are ... a poor way to resolve a Batson challenge.... A battle of the numbers on an appeal is no substitute for the district court's assessment of the conduct of the government at trial.

United States v. Grandison, supra, 885 F.2d at 148.

Applying those principles, the trial court here found no prima facie case regarding the exclusion of two of the African-American venire members because: (1) the juror questionnaire of one challenged venire member stated that he had a family member who had been convicted of a crime; and (2) the second African-American venire member repeatedly had demonstrated a strong desire to avoid jury service. The court also observed that the third African-American venire member challenged by the prosecutor was replaced by another African-American, and that four African-Americans were included in the final jury panel. These findings are supported by the record, and may not be disturbed on review. See People v. Gardenhire, supra.

In addition, because of the particular jury selection system used, the prosecutor knew which jurors would be replacing those excused and he accepted the jury, which included four African-American jurors, without using his last two peremptory challenges. These factors further negate any inference of discrimination. See People v. Saiz, supra; see also United States v. Willie, 941 F.2d 1384 (10th Cir.1991), cert. denied, 502 U.S. 1106, 112 S.Ct. 1200, 117 L.Ed.2d 440 (1992); United States v. Sangineto-Miranda, supra.

Defendant points to the prosecutor's conduct during voir...