Roberts v. State

• Decision Date: 27 February 2018
• Docket Number: S-17-0112
• Citation: 411 P.3d 431
• Parties: Brandon D. ROBERTS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

411 P.3d 431

Brandon D. ROBERTS, Appellant (Defendant),

v.The STATE of Wyoming, Appellee (Plaintiff).

S-17-0112

Supreme Court of Wyoming.

February 27, 2018

Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; David E. Westling, Senior Assistant Appellate Counsel. Argument by Mr. Westling.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Christyne M. Martens, Senior Assistant Attorney General; Darrell D. Jackson, Faculty Director, Prosecution Assistance Program, Saige N. Smith, Student Director, Kevin A. Haugland, Student Intern. Argument by Mr. Haugland.

Before BURKE, C.J., and HILL^* , DAVIS, FOX, and KAUTZ, JJ.

FOX, Justice.

[¶1] Brandon D. Roberts appeals his conviction for driving while under the influence (DWUI). Mr. Roberts claims that the district court denied him equal protection by allowing the State to peremptorily challenge a potential juror based on race. Because the record supports the validity of only one of the prosecutor's race-neutral reasons for his peremptory challenge, and does not show that the district court would credit this reason alone, we remand for a new Batson hearing.

ISSUE

[¶2] Did the district court clearly err by allowing the State to exercise a peremptory challenge to exclude an African American from the jury?

FACTS

[¶3] Mr. Roberts, an African American, was arrested in Cheyenne, Wyoming, and charged with DWUI under Wyo. Stat. Ann. § 31-5-233(b)(i). After a 11//2-day trial, the jury returned a guilty verdict. The DWUI conviction was his fourth in less than ten years, constituting a felony for which the district court sentenced him to three to five years incarceration.¹

[¶4] Our inquiry is limited to the jury selection process, during which the State exercised a peremptory challenge to dismiss from the panel Juror 364, an African American woman.² Of 31 prospective jurors on the panel, 2 were African American. The prosecutor exercised his second peremptory challenge to remove the first African American, to which there was no objection. The prosecutor then exercised his fourth peremptory challenge to reject the second African American, Juror 364, to which defense counsel objected, prompting the district court to hold a side-bar conference:

[DEFENSE]: I do have concerns with the State's most recent strike as she is the last remaining person of African American descent. I understand why the first lady was struck of African American decent [sic], why she was selected by the prosecutor to be struck, but the second one I fail to see how that is based ...

THE COURT: [Prosecutor].

[PROSECUTOR]: Her demeanor throughout was negative. She doesn't want to sit on the jury. One time she did answer, she expressed doubt as to whether this was alcohol—or a DUI. Her expressions seemed to—her facial expressions were more—she was kind of nodding. She was grimacing. My recollection is that she did not want to sit on the jury.

THE COURT: [Defense counsel].

[DEFENSE]: Those words were not spoken by her.

THE COURT: What response are you expecting from the Court?

[DEFENSE]: Just that it be done for the record.

THE COURT: I will allow the State—is it Number 346 [sic]—seat number is it—17, [Juror 364].

[DEFENSE]: Thank you, Your Honor.

Defense counsel was correct that Juror 364 had not spoken the words attributed to her by the prosecutor. In fact, we can find no record of Juror 364 speaking during voir dire.

[¶5] Following jury selection, the jury was sworn in, the unselected venirepersons were released, and each party presented opening statements. Before the State presented evidence, while the jury was out of the courtroom, defense counsel requested that "the prosecutor's and my jury selection notes be submitted to the Court and sealed, not seen by other parties to preserve the issue of the Batson challenge I raised regarding [Juror 364] as a best practice method of preserving the record." The State objected, claiming that the notes were protected work product. The district court took the request under advisement, but there is no record that it ever ruled on the request. The attorney notes are not in the record.

[¶6] The State then presented its case in chief. After the State rested, the district court, on its own motion, announced to counsel that it would conduct a full hearing on the Batson challenge:

I do think it's important for the defendant's benefit, if for no other reason, and so that we've created a full record, we conduct a full Batson analysis—or I conduct a full Batson analysis .... And if the defendant were to make a prima facie showing, the State would have to provide I think in a little bit more detail than has been done to date a neutral explanation for the exercise of the peremptory challenges so that I can make the decision that I need to make.

The district court immediately proceeded with a second Batson hearing:

[DEFENSE]: Your Honor, on this entire panel there were two members of what it appeared to be African American decent [sic]. Mr. Roberts is African American himself. The first lady who was challenged, peremptorily challenged by the State was ...

THE COURT: [Other juror].

[DEFENSE]: Thank you, Your Honor. When [the other juror] did speak she spoke that she knew Mr. Roberts from growing up with him. She also gave a lot of vocal answers for the State to base their peremptory strike on her.

The issue I have is with the juror who was seated in Seat 17, Juror Number 364 .... She was the only other juror who appears to be of African American decent [sic], and she was the second person—it was the State's fourth peremptory strike and [the other juror] was the second. Then she was the only—the State struck two of the only two African American people who were on as a potential juror.

[Juror 364] in her vocalization response to questions seemed to only vocalize the question, "What is buzzed driving?" That doesn't seem that that can indicate that that in and of itself is—she did not vocalize anything that seemed to indicate that her being struck is based on anything other than her race.

....

THE COURT: Thank you, [Defense counsel]. [Prosecutor].

[PROSECUTOR]: The neutral reasons that the State would rely upon as laid forth earlier at the bench conference would be that the demeanor of the second juror struck, [Juror 364], throughout the case she was crumpling her face, she continued to wear a hat throughout the proceedings, Your Honor, when clearly outside the courtroom it says no hats.

[¶7] At this point, the district court explained that it had allowed Juror 364 to wear a hat during jury selection due to a dermatological condition. The prosecutor replied:

[PROSECUTOR]: Certainly my only joinder to that, and I thank you for putting it on the record, was counsel was not informed of that so I had no idea of that. In any event, looking at that in addition to the one prominent question that defense counsel always put out is that she wanted to make clear that this was not a controlled substance versus alcohol DUI. It's that fine line drawing that concerned the State going, well, if she can draw this fine line and say, yeah, I want some more proof, that sends a red flag to the State. She might be uncomfortable with the bright line of a .08 as the state law in Wyoming.

It's for those neutral reasons, Your Honor, that the State struck [Juror 364].

And to further supplement the record when it comes to her demeanor, I noticed her arms were crossed, that she was shifting, that she—except for that one question, she was really silent. And I did notice, though, when talking about the law enforcement question that she did make a crumpled face at that time as well when I was talking about, "How do people feel about law enforcement?" And there were some expressions of distrust of law enforcement. Those would be the neutral reasons the State would offer.

[¶8] The district court overruled the Batson challenge, providing the following analysis:

I accept [the prosecutor's] explanation for the exercise of that particular peremptory challenge. I think it's completely understandable that the State would have concern based on [Juror 364's] expression of her own concerns, reservations about what she would refer to as a "bright line."

In addition to that I couldn't see [Juror 364]. She was in the second row and she's not the tallest of individuals and so I could not see her face very much of the time. I did not notice the facial expressions that [the prosecutor] would describe, but I will accept as accurate and credible [the prosecutor's] assessment of [Juror 364] that he was concerned about her demeanor and also concerned about her expression of—her reservations and concerns, as I said, about the law, the law being that bright line. And I do believe as a result of that the State properly exercised a peremptory challenge on [Juror 364] for neutral reasons and that the use of that particular peremptory challenge was not pretextual.

[¶9] The transcript reveals, and the State concedes, that Juror 364 never expressed that she "want[ed] some more proof"—the assertion that allegedly caused the prosecutor to believe she might be uncomfortable with the "bright line" of the DWUI law. Nor had she asked the question, "What is buzzed driving?," as reported by defense counsel. Juror 364 never spoke at all.

DISCUSSION

[¶10] The peremptory challenge—that is, a party's removal of a potential juror without showing cause—lies at the heart of jury selection in the American trial. With roots in English common law, the "persistence of peremptories and their extensive use demonstrate the long and widely held belief that peremptory challenge is a necessary part of trial by jury." Swain v. Alabama , 380 U.S. 202, 219, 85 S.Ct. 824, 835, 13 L.Ed.2d 759 (1965), overruled on other grounds by Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). "The function of the challenge is not only to eliminate extremes of...