State v. Aziakanou

• Decision Date: 30 September 2021
• Docket Number: No. 20180284,20180284
• Citation: 498 P.3d 391
• Parties: STATE of Utah, Appellee, v. Ayayai AZIAKANOU, Appellant.
• Court: Utah Supreme Court

498 P.3d 391

STATE of Utah, Appellee,

v.Ayayai AZIAKANOU, Appellant.

No. 20180284

Supreme Court of Utah.

Heard October 9, 2020

Filed September 30, 2021

Sean D. Reyes, Att'y Gen., Jeffrey S. Gray, Asst. Solic.Gen., Paul S. Fuller, Salt Lake City, for appellee

Debra M. Nelson, McCaye Christenson, David P.S. Mack, Salt Lake City, for appellant

Justice Petersenauthored the opinion of the Court, in which Chief Justice Durrant, Associate Chief Justice Lee, Justice Himonas, and Justice Pearce joined.

Justice Petersen, opinion of the Court:

INTRODUCTION

¶1 A jury convicted Ayayai Aziakanou of distribution of or arranging to distribute a controlled substance.Aziakanou, who is African American, alleges that the State violated his right to equal protection under the law during jury selection when it used a peremptory strike to remove the only person of color from the jury pool.Aziakanou challenged the strike under Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69(1986), which prohibits purposeful discrimination during jury selection.But his challenge was denied by the trial court.He now appeals, reiterating his Batson challenge and arguing that the evidence supporting his conviction was insufficient.We affirm.

BACKGROUND¹

¶2 Two law enforcement officers set up surveillance near Pioneer Park in Salt Lake City.The officers observed "a group of individuals in the park ... smoking spice."²Aziakanou and another man left the group and set up a lawn chair in the park.

¶3 The officers watched as Aziakanou approached a person on the sidewalk and, after a brief discussion, led the person over to his companion on the lawn chair.The person gave the companion money in exchange for a "clear canister[ ] filled with a green, leafy substance."After the exchange, the person left.The officers did not stop the person who purchased the canister.

¶4 The officers continued to observe Aziakanou and his companion for thirty to forty-five minutes.During that time, the officers observed two more transactions.After the third transaction, "it looked like [the companion] and Aziakanou were gathering their things, as if they were leaving the area."The officers stopped the third buyer and retrieved two canisters, an empty one and the one purchased from Aziakanou's companion containing the leafy green substance.

¶5 The officers returned to the park and arrested Aziakanou and his companion.They retrieved another empty canister at the park.Both canisters were sent for forensic analysis, which confirmed the leafy substance was spice.The State charged Aziakanou with distribution of or arranging to distribute a controlled substance, a third-degree felony.

¶6The case was set for a one-day jury trial.During jury selection, the court asked the jury pool if any of them had been "victims of drug cases."Juror 13 raised his hand and said, "Yeah.I'm not sure what you mean by a victim of a drug case. ...I haven't been—I have been stopped illegally on occasion. ...For suspicion with the profiling, but other than that ... no."

¶7 Another question posed by the court during voir dire³ was whether any of the potential jurors would "give a witness who is a law enforcement officer more or less credibility just because they are a police officer."No one indicated that would be a problem.The court then asked whether anyone had "any feelings about your interaction with law enforcement officers that would impact your ability to sit in this case where law officers are witnesses."No one indicated it would affect their ability to serve.

¶8 After the initial questions, only one juror, Juror 23, was struck for cause because he expressed "hate for substance."The court, addressing counsel, inquired about Juror 13, because he"had an addiction, he talked about being profiled."⁴The prosecutor answered, "I thought he'd be one to talk to."Defense counsel agreed, "That's what I was thinking, too.We may want to follow up."

¶9The court called up Juror 13 for an individual voir dire .It first asked Juror 13 to explain his prior reference to "experiences that you've had, and that you felt like you were being profiled."Juror 13 said, "I would say it's—it's happened more than once.I would have to say at least five times in my lifetime, just being pulled over for—for no reason."When asked where these events occurred, he answered, "It happened a few times here. ...And then elsewhere, too."The court asked, "[W]hen you say no reason ...—did they tell you a reason, or did you feel like there was no reason?"Juror 13 responded, "I felt like it was no—there was no reason."He further explained:

I could tell you one specific time when I was a minor. ...I was—me and my friends, we were at a party, many of us were at a party at a park, and all of our cars were lined up in the parking lot.As we were leaving the party, everyone got in their cars to leave, as did I, except I was the only person ... [w]ho got boxed in by the patrol car, so I got chosen, the only Brown person out of everyone else to be singled out ... and blocked and Breathalyzed for drinking, but I—I mean, I wasn't drinking or doing anything.

Juror 13 then said that was "one experience, and then there's been others, too."In response, the court asked:

In this case where police are going to testify, where it concerns drug behavior, and undoubtedly at least some kind of interaction between police and a person, and it's obvious that the defendant here is not Caucasian, would that—your experiences impact your ability to sit in this case as a fair and impartial judge?

And Juror 13 responded:

I don't think so.I think that ... the presentation from the lawyers would give us the facts, and if the person is guilty, then we will see that they're guilty.If they're innocent, we'll be—we'll see that they're innocent.So I would wait to see what presentation I see before making any decision.

¶10 After concluding the individual voir dire , neither party moved the court to remove Juror 13 for cause.Once the jury pool was recongregated in the courtroom, the court inquired, "If you were a party, either as the plaintiff, the prosecutor, or as the defendant, would you be fully satisfied to have your case tried by a person of your present attitude and frame of mind toward this case?"No one raised their hand.The court followed up by asking whether anyone had "any personal considerations or concerns that may interfere with your ability to objectively sit and hear the evidence to be presented, or to fairly and impartially consider the evidence, deliberate, and render a verdict in this case."Again, no one in the pool raised their hand.

¶11The court then gave the parties the opportunity to use their peremptory challenges and, during a sidebar, the State struck Juror 13.The court then excused the jury pool briefly and defense counsel raised a challenge under Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69(1986), arguing the State's strike of Juror 13 was motivated by discriminatory intent.Defense counsel argued that Juror 13

explained himself well that there—that, despite those experiences, that he would be able to let the facts stand or fall as they may, and that he would judge what happened or didn't happen based on what he hears in this court.But I think the effect of his removal, and he's, I would note, the only person of color even—well, on the entire panel, but of—that even had a chance of sitting on this jury.I think it's a common experience for people of color to have had such experiences where they feel like they have been singled out without justification, and I think the effect of his removal means that, at least in this case, people of color aren't allowed to sit.

But there may be some other explanation for the state's decision on that, but it seems that, based on his answers, all of his answers in voir dire , that he indicated a willingness to be fair, to listen fairly and impartially, and there were no other responses, I don't think, to any of the questions the Court put to him that would've seemed to have impacted his ability to sit as a juror in this case.

¶12The court asked defense counsel to elaborate on his argument "as far as the initial showing of some kind of an intent to exclude a particular class of folks."Defense counsel asserted that "our client obviously is ... African American.He's a person of color. ...[And] the only person of color potentially to be seated on this jury was excused."Defense counsel noted that while he did not know the reason Juror 13 was excused, he did not "have to supply that reason" to the court.But then defense counsel observed that it seemed as though Juror 13 "was removed because ... he had encounters with the police that ... he considered to be profiling, and he was a person of color."

¶13The court concluded that defense counsel made "an insufficient showing that is required for the answer."Then the court stated:

I show that [Juror 13]—and I—no one asked about his nationality, and I can't even tell it from the name, whether he is Hispanic or Middle Eastern.I don't know.But he is darker complected, and clearly of another—not just a Caucasian race.He is the only person, as far as I could tell on the panel, that really seems to be of any other nationality other than Caucasian.

¶14 Although it had determined defense counsel made an insufficient showing to continue the Batson inquiry, the court nevertheless asked the State to explain why it struck Juror 13.The prosecutor responded:

When questioned, I felt like he answered those correctly, so I agree with defense counsel, that's why after initially considering to move for cause, his answers I didn't think—I didn't think had enough to move for cause.But ... I didn't feel he could be impartial based on some of these things.He stood for when he thought he'd been victimized, he wanted more clarification.He also did refer to profiling.There were some issues where I doubted his ability to try the case and

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