State v. Anaya

• Decision Date: 19 September 1991
• Docket Number: CA-CR,No. 2,2
• Citation: State v. Anaya, 825 P.2d 961, 170 Ariz. 436 (Ariz. App. 1991)
• Parties: , 60 USLW 2250 The STATE of Arizona, Appellee, v. Urbano Carnero ANAYA, Appellant. 90-0110.
• Court: Arizona Court of Appeals

Page 961

825 P.2d 961

170 Ariz. 436, 60 USLW 2250

The STATE of Arizona, Appellee, v.Urbano Carnero ANAYA, Appellant.

No. 2 CA-CR 90-0110.

Court of Appeals of Arizona Division 2, Department B.

Sept. 19, 1991.

Review Denied March 17, 1992.

[170 Ariz. 438] Grant Woods, Atty. Gen. by Paul J. McMurdie and Bruce M. Ferg, Tucson, for appellee.

Dunscomb & Shepherd, P.C. by Denice R. Shepherd, Tucson, for appellant.

OPINION

ROLL, Presiding Judge.

DefendantUrbano Carnero Anaya appeals from his convictions for aggravated assault and endangerment.Because a co-defendant failed to offer a racially neutral explanation for his exercise of peremptory challenges resulting in the exclusion of two black venirepersons, we vacate the judgment of guilt and remand this matter to the trial court for further proceedings.

FACTS

On May 8, 1989, deputies from the Pima County Sheriff's Office responded to a call and discovered defendant Anaya and co-defendantPaul Morris on a Tucson street pointing firearms at each other.

After Anaya was advised of his Miranda rights, he agreed to answer questions of Deputy James Lukasky.Anaya stated that he and Morris had quarrelled and that both eventually produced firearms.Anaya said that Morris possessed a 9 mm. handgun and Anaya obtained a shotgun.Anaya told the deputy that he would have shot Morris had law enforcement officers not arrived.Co-defendant Morris made racial slurs toward a black detective.

PROCEDURAL HISTORY

Anaya and Morris were indicted for aggravated assault and endangerment.The state moved for severance of the defendants' trials based upon Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476(1968).Both Anaya and co-defendant Morris opposed severance and their cases were tried jointly.At trial, both defendants testified, blaming each other for causing the situation.Both asserted that they were acting in self-defense.

The jury found Anaya guilty of aggravated assault and endangerment, both of a dangerous nature.Morris was found guilty of attempted aggravated assault and endangerment, also of a dangerous nature.Both defendants timely appealed and the state's motion to consolidate the appeals was granted.Morris died in prison, however, and we address only Anaya's appeal.

ISSUES

Anaya argues that (1)the trial court erred in overruling his objection to Morris's use of peremptory challenges to strike two black venirepersons, (2) prosecutorial misconduct deprived him of a fair trial, (3)the trial court erroneously instructed the jury on the lesser-included offense of attempted aggravated assault, and (4)the trial court erred in not conducting a suppression hearing regarding his post-arrest statements.

PEREMPTORY CHALLENGES

Anaya, an Hispanic, argues that the trial court erred when it failed to require Morris to offer a racially neutral explanation for peremptory challenges to two black venirepersons.Our standard of review of this question of law is de novo.United States v. De Gross, 913 F.2d 1417, 1420(9th Cir.1990).¹

Anaya timely objected to Morris's peremptory challenge of the two venirepersons.The trial judge expressed doubt regarding the power of the court to force Morris's attorney to disclose his reasons for exercising the strikes.When the trial court questioned the challenges, Morris's attorney replied that Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69(1986), applied to prosecutors only and stated, "I don't think I am under an obligation to make a record on that point."The trial court then permitted Morris to strike the two black venirepersons.Accordingly, this court has no express indication as to the reasons why Morris's attorney excluded the two black venirepersons from the jury.

Batson and Progeny.

In Batson, the Supreme Court held that a prosecutor could not exercise a peremptory challenge resulting in the exclusion of a prospective juror of the same race as the defendant, absent a racially neutral reason for the challenge.Thereafter, the Supreme Court extended Batson by ruling that a criminal defendant, regardless of race, may challenge a prosecutor's racially based peremptory challenge.Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411(1991).See alsoState v. Katzorke, 167 Ariz. 599, 810 P.2d 597(App.1990)(anticipating Powers ).Batson has been interpreted as precluding the peremptory challenge of any cognizable group when the challenge is made for a discriminatory purpose.De Gross, supra(Batson prohibits peremptory challenges on the basis of gender);Hernandez, 170 Ariz. 301, 823 P.2d 1309.In Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660(1991), the Supreme Court held that Batson applies to the exercise of peremptory challenges by a private litigant in a civil action.Whether Batson applies to the exercise of a peremptory challenge by a criminal defendant is a question of first impression in Arizona.

State Action.

In order for a party's exercise of a peremptory challenge to violate the equal protection clause of the United States Constitution, exercise of the challenge must constitute state action.Edmonson, 500 U.S. at ----, 111 S.Ct. at 2082, 114 L.Ed.2d at 673.Whether conduct constitutes state action involves a two step analysis: (1) does the claimed constitutional deprivation arise from a right or privilege having state authority as its source; and (2) can the party exercising the right be fairly characterized as a state actor.Id. at ---- - ----, 111 S.Ct. at 2082-2083, 114 L.Ed.2d at 673-674.A majority of the Supreme Court has concluded that because the government provides the forum for the exercise of peremptory challenges, a civil litigant's exercise of such challenges constitutes state action.Id. at ---- - ----, 111 S.Ct. at 2084-2085, 114 L.Ed.2d at 674-675.

In Polk County v. Dodson, 454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d 509(1981), the Supreme Court ruled that a public defender's representation of an indigent defendant does not constitute action "under color of state law" for purposes of a civil rights claim brought pursuant to 42 U.S.C. § 1983, in a lawsuit alleging inadequate representation.In Justice O'Connor's dissent in Edmonson, 500 U.S. at ----, 111 S.Ct. at 2094, 114 L.Ed.2d at 688, she stated:

At a minimum then, the Court must concede that

Dodson stands for the proposition that a criminal defense attorney is not a state actor when using peremptory strikes on behalf of a client....

Justice Scalia, in his Edmonson dissent, disagreed, stating that logically the rationale of Edmonson must also apply to criminal litigation.Id. at ----, 111 S.Ct. at 2095, 114 L.Ed.2d at 689.In People v. Kern, 75 N.Y.2d 638, 656-57, 554 N.E.2d 1235, 1245, 555 N.Y.S.2d 647, 657(1990), the New York Court of Appeals articulated why the exercise of peremptory challenges by a criminal defendant constitutes state action:

A defendant's right to exercise the challenges is conferred by State statute * * *.The jurors are summoned for jury service by the State * * *, sit in a public courtroom and are subject to voir dire at the direction of the State, and, although defense counsel exercises the peremptory challenge and advises the Judge of the decision, it is the Judge, with the full coercive authority of the State, who enforces the discriminatory decision by ordering the excused juror to leave the courtroom escorted by uniformed court officers or Deputy Sheriffs.The jurors do not know whether it is the Judge, the prosecutor or the defense attorney who has excused them, and the inference is inescapable to both the excluded jurors and the public that it is the State that has ordered the jurors to leave.When these jurors are so excluded solely because of their race, the State cannot ignore its role in the discrimination against them.

Because the Supreme Court has ruled that the exercise of peremptory challenges by a non-government party in a civil trial constitutes "state action," Edmonson, we believe the conclusion is inescapable that co-defendant Morris's use of peremptory challenges constituted state action.

Violation of Venireperson's Rights.

In Batson, the Supreme Court stated that the harm caused by the racially motivated exercise of a peremptory challenge is visited upon both the defendant and the prospective juror.Batson, 476 U.S. at 87, 106 S.Ct. at 1718, 90 L.Ed.2d at 81.The equal protection clause protects a prospective juror from being excluded from jury service on account of race.Powers, 499 U.S. at ----, 111 S.Ct. at 1370, 113 L.Ed.2d at 424.Nor is the harm visited upon a venireperson by the racially motivated exercise of a peremptory challenge diminished because the challenge was made by a defense attorney rather than a prosecutor.State v. McCollum, 261 Ga. 473, 476, 405 S.E.2d 688, 691(1991)(Benham, J., dissenting).

Standing.

The Supreme Court has articulated the test for determining whether a party has standing to raise a venireperson's claim that opposing counsel has misused a peremptory challenge: (1) has the litigant suffered an injury in fact; (2) does the litigant have a "close relation to the third party"; and (3) does some hindrance exist to the third-party's ability to vindicate their interests.Edmonson, 500 U.S. at ----, 111 S.Ct. at 2087, 114 L.Ed.2d at 679;Powers, 499 U.S. at ---- - ----, 111 S.Ct. at 1370-1371, 113 L.Ed.2d at 425-426.In Powers, a majority of the Supreme Court concluded that a criminal defendant has standing to raise a venireperson's claim of impermissible exclusion.In Edmonson, a majority of the Supreme Court concluded that a private litigant in a civil action had standing to raise the claims of two venirepersons excluded from jury service by virtue of opposing counsel's exercise of peremptory challenges.Edmonson, 500 U.S. at ----, 111 S.Ct. at 2087, 114 L.Ed.2d at 679.We conclude that Anaya has standing to raise the excluded venirepersons' claims.

Batson Applies to Co-defendant's...