Richards v. State, 83868-COA

• Citation: 83868-COA
• Case Date: November 03, 2022
• Court: Court of Appeals of Nevada

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JEFFREY MICHAEL RICHARDS, Appellant,
v.
THE STATE OF NEVADA, Respondent.

No. 83868-COA

Court of Appeals of Nevada

November 3, 2022

UNPUBLISHED OPINION

ORDER OF AFFIRMANCE

GIBBONS, C.J.

Jeffrey Michael Richards appeals from a judgment of conviction entered pursuant to a jury verdict of two counts of sexual assault of a vulnerable person. Second Judicial District Court, Washoe County; Barry L. Breslow, Judge. Jury Selection

Richards argues the district court erred by denying four of his five Batson^[1] challenges to the State's use of peremptory strikes to remove jurors from the venire.^[2] Richards contends the State struck the four jurors due to race or sexual orientation and the district court failed to conduct an appropriate inquiry into his challenges.

The purpose of a Batson challenge is to ensure that the State does not violate the Equal Protection Clause of the United States Constitution when using peremptory challenges. Id. at 89. It is improper to exercise a peremptory challenge based upon a juror's race, Diomampo v. State, 124 Nev. 414, 422, 185 P.3d 1031, 1036 (2008), or sexual orientation,

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Morgan v. State, 134 Nev. 200, 212, 416 P.3d 212, 224 (2018). In reviewing a Batson challenge, a trial court must engage in the following analysis:

(1) the opponent of the peremptory challenge must make out a prima facie case of discrimination, (2) the production burden then shifts to the proponent of the challenge to assert a neutral explanation for the challenge, and (3) the trial court must then decide whether the opponent of the challenge has proved purposeful discrimination

Ford v. State, 122 Nev. 398, 403, 132 P.3d 574, 577 (2006). We review the district court's decision at the first step for clear error. Cooper v. State, 134 Nev. 860, 863, 432 P.3d 202, 205 (2019). In the third step, "[t]he district court must undertake a sensitive inquiry into such circumstantial and direct evidence of intent as may be available and consider all relevant circumstances before ruling on a Batson objection." Conner v. State, 130 Nev. 457, 465, 327 P.3d 503, 509 (2014) (internal quotation marks omitted). This court gives great deference to the trial court's decision on the ultimate question of discriminatory intent. Diomampo, 124 Nev. at 422-23, 185 P.3d at 1036-37 (2008).

First, the State struck juror Sanchez. Richards objected and contended that the strike was improper because it appeared that Sanchez was Hispanic and there appeared to be no reason other than her race for the State to strike her.

"[T]he mere fact that the State used a peremptory challenge to exclude a member of a cognizable group is not, standing alone, sufficient to establish a prima facie case of discrimination under Batson's first step; something more is required." Watson v. State, 130 Nev. 764, 776, 335 P.3d 157, 166 (2014) (internal quotation marks omitted). Recently, in Barlow v. State, Barlow objected to the State's exercise of four peremptory challenges to strike one African American and three Hispanic veniremembers. 138 Nev., Adv. Op. 25, 507 P.3d 1185, 1197 (2022). The district court denied

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Barlow's Batson challenge. Id. The supreme court affirmed the district court, concluding that "[m]erely identifying minority veniremembers struck by the State does not meet the burden of showing an inference of discriminatory purpose" necessary to satisfy the first step of Batson. Id.

Here, the district court found Richards did not establish a prima facie case of discrimination because the juror's race, standing alone, was insufficient to establish a prima facie case of discrimination. In light of the circumstances in this matter, where Richards failed to demonstrate "something more"-an inference of a discriminatory purpose-the district court did not clearly err by concluding that Richards failed to demonstrate a prima facia case of discrimination, and Richards fails to demonstrate that he is entitled to relief.

Second, the State struck juror Skilling. Richards objected and contended that the strike was improper because it appeared that Skilling was a member of the "LGBTQ" community. Richards requested additional questioning of Skilling to ascertain her sexual orientation, which the district court denied.

The district court noted that it was improper to strike a juror due to the juror's sexual orientation but found that the juror had not identified herself as a member of the LGBTQ community on the record and that questioning of the juror concerning her sexual orientation would not have been appropriate. The district court noted that the subject matter of this case did not present an issue of consequence to the LGBTQ community. Moreover, the district court found Richards did not establish a prima facie case of discrimination because the juror's sexual orientation, standing alone, was insufficient to establish a prima facie case of discrimination. In light of the circumstances in this matter, the district court did not clearly err by concluding that Richards failed to establish a prima facia case of discrimination. See Morgan, 134 Nev. at 212-13, 416 P.3d at 225 (providing

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examples of how an opponent of a strike may establish a prima facie case of discrimination based on sexual orientation). Therefore, Richards is not entitled to relief based on this claim.

Third, the State struck juror Iwuajoku. Richards objected and contended the strike was improper because Iwuajoku was an African American and there appeared to be a pattern of the State striking members of minority groups. The district court concluded that Richards had made a prima facia case of discrimination and requested the State to respond. The State answered that Iwuajoku stated in her juror questionnaire that she was not proficient in the English language and she offered during questioning that there was something that she did not understand. In addition, the State offered that Iwuajoku appeared nervous and uncomfortable being in the courtroom. The State also noted that she laughed when questioned as to whether a person driving a few miles over the speed limit was unlawful and that indicated to the State that she may have difficulties following the law as a juror. The district court found that the State provided race-neutral reasons for use of a peremptory strike on Iwuajoku.

The district court permitted Richards to reply to the State's reasons and ultimately concluded that he did not demonstrate purposeful discrimination. The district court stated that it also noticed Iwuajoku's nervousness and that her nervousness was more pronounced than others it had observed in a courtroom setting. In addition, the district court fovmd that Iwuajoku was noticeably frustrated by the State's questioning concerning a person driving over the speed limit. We conclude the district court conducted a sensitive inquiry into Richards' challenge and Richards fails to demonstrate that the district court erred by concluding that he was not entitled to relief based on this Batson challenge.

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Fourth, the State struck juror Hernandez-Lara. Richards objected and noted that Hernandez-Lara was also Hispanic. The district court concluded that Richards had made a prima facia case of discrimination and requested the State to respond. The State answered that it struck Hernandez-Lara because he had been the...