State v. Cruz

• Decision Date: 29 July 1993
• Docket Number: No. CR-89-0093-AP,CR-89-0093-AP
• Citation: 175 Ariz. 395,857 P.2d 1249
• Parties: , 62 USLW 2150 STATE of Arizona, Appellee, v. Robert Charles CRUZ, Appellant.
• Court: Arizona Supreme Court

Page 1249

857 P.2d 1249

175 Ariz. 395, 62 USLW 2150

STATE of Arizona, Appellee, v. Robert Charles CRUZ, Appellant.

No. CR-89-0093-AP.

Supreme Court of Arizona, In Banc.

July 29, 1993.

[175 Ariz. 396] Richard M. Romley, Maricopa County Atty. by Gerald R. Grant, Deputy County Atty., Phoenix, for appellee.

McNally and Robinson by Kevin McNally, Gail Robinson, Frankfort, KY, and Denise I. Young, Arizona Capital Representation Project, Tempe, for appellant.

OPINION

MOELLER, Vice Chief Justice.

STATEMENT OF THE CASE

On New Year's Eve, 1980, three men broke into the Redmond residence in Phoenix and murdered Patrick Redmond and his mother-in-law, Helen Phelps. ¹ They also attempted to murder Patrick Redmond's wife, Marilyn, but she survived. Ultimately, the defendant, Robert Charles Cruz, who was not one of the three men who entered the Redmond residence, was charged with two murders, the attempted murder, and the related crimes of conspiracy to murder, armed robbery, kidnapping, and burglary. ² At his first trial, Cruz was convicted of all charges. On appeal, those convictions were reversed. State v. Cruz I, 137 Ariz. 541, 672 P.2d 470 (1983). Cruz's second and third trials both resulted in hung juries.

At defendant's fourth trial, he was again convicted of all charges. He was sentenced to death on the murder counts and to terms of imprisonment on the other counts. Appeal to this court is required and automatic on the death penalties. See Ariz.R.Crim.P. 31.2(b). Defendant timely appealed the other convictions and sentences. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. § 13-4031. Because constitutional error, properly raised and preserved, occurred during the jury selection process, we reverse and remand for a new trial.

FACTS

A Batson ³ issue is dispositive. We therefore confine our statement of facts to those relevant to that issue. Because of widespread publicity this case had received and the anticipated length of the trial, the trial court had 100 prospective jurors fill out written questionnaires. The plan was to qualify 36 prospective jurors so that 16 jurors, including four alternates, would be available to hear the case after each side exercised its authorized 10 peremptory challenges. After reviewing the completed questionnaires and consulting with counsel, the trial court excused 60 of the prospective jurors for cause. Of the 40 remaining in the pool, three were Hispanic. The defendant Cruz is Hispanic. Some, but not all, of the 40 remaining jurors were questioned individually. Those questioned included the three Hispanics.

After obtaining a panel of qualified jurors, the parties exercised their strikes. The defendant exercised all 10 of his; the state exercised only five of its 10. Two of the three Hispanics on the panel were among the five jurors removed by the state. Because the state did not exercise the balance of its strikes, the third and last Hispanic on the panel was not on the final panel of 16. Had the state exercised seven strikes rather than five, the remaining Hispanic would have been on the final panel unless, of course, the state's sixth or seventh strike was directed at him.

When the state completed its strikes, Cruz immediately objected, claiming that the state's use of its strikes violated Batson, 476 U.S. at 86, 106 S.Ct. at 1717. The trial judge required the state to explain its use of its peremptories. The prosecutor offered the following explanation:

MR. TUROFF [The Prosecutor]: Yes. I--C.S. [Hispanic Juror No. 1], my notes, she was one of the jurors that was brought in for singular confrontation by the Court and counsel. My notes say she's weak, poor contact with me, felt she would be led, and I struc[k] her for those reasons.

And I struc[k] another juror by the name of M.L. [another panelist] for the same reason.

As I recall, H. [Hispanic Juror No. 2] was 18 years old. I don't know if he is Hispanic or what he is. He is 18 years old. He worked from 3:30 to 3:30. He said it may--he may lose his job. He didn't ask his employer whether he would or would not would have lost his job if he were to be off for eight weeks. And his wanting to be the one that may make the difference led me, along with all the others, to where I felt were negatives that led me to strike him.

At one point during the Batson proceedings in the trial court, defense counsel asked permission to question the prosecutor further about his strikes of the two Hispanics. However, that request was withdrawn after the trial court stated:

THE COURT: You can exam[ine] him. I don't know that he's required to answer them, but I'll let you go ahead and ask, if he chooses to answer. I [don't?] know of any procedure that requires him to furnish an answer.

At no point did the prosecutor offer any explanation of his use of only five peremptories. After confirming that R.H., the second Hispanic juror, was indeed Hispanic, the trial court ruled:

The record should reflect that as far as my determination is concerned, I'm going to make a finding the reasons stated by counsel for the state are reasons which are valid and do not go toward reasons based on race or ethnic background and that sort of thing, and those jurors remain stricken....

Thus, no Hispanics sat on the jury that heard the case. Although the record is not conclusive on the point, it suggests that no minority person sat on the final panel.

ISSUE

Under Batson v. Kentucky, does the prosecution overcome a prima facie case of discriminatory use of peremptory challenges by stating a facially neutral, but wholly subjective, reason for using those challenges when the record contains nothing else to support the stated reason?

DISCUSSION

I. General Batson Procedures

Batson held, for the first time, that the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution prohibits the state, in a criminal prosecution, from exercising its peremptory challenges in a racially discriminatory manner. Under Batson, it is no longer necessary to show a pattern of discrimination in other cases as a predicate to enforcing the constitutional prohibition. Cf. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), overruled by Batson, 476 U.S. at 79, 106 S.Ct. at 1712.

Although many state and federal cases since Batson have extended its application, see, e.g., State v. Superior Court, 157 Ariz. 541, 760 P.2d 541 (1988) (white defendant can raise Batson challenge), cert. denied, 499 U.S. 982, 111 S.Ct. 1638, 113 L.Ed.2d 733 (1991); State v. Anaya, 170 Ariz. 436, 441, 825 P.2d 961, 966 (App.1991) (Batson applies to criminal defendant's use of peremptories), the instant case presents a classic Batson situation. This case is a criminal case in which the defendant, a member of a cognizable racial minority, see State v. Jordan, 171 Ariz. 62, 66, 828 P.2d 786, 790 (App.1992) (Batson applies to all ethnic and racial groups); State v. Boston, 170 Ariz. 315, 823 P.2d 1323 (App.1991) (finding Batson violation when state struck an Hispanic woman), challenges the prosecution's peremptory challenges against members of the same cognizable racial minority. We therefore analyze the issue under classic Batson considerations.

Throughout the proceedings in the trial court and here, the state tacitly conceded that defendant presented a prima facie case of discrimination with respect to the two excused Hispanic jurors. At oral argument, this tacit admission was made express. With respect to those two jurors, therefore, we may move directly to the second step in the Batson analysis.

Under Batson, when a defendant makes a prima facie case that the state has exercised its peremptories in a racially discriminatory manner, the burden shifts to the prosecutor to articulate a race-neutral, case-related reason for the strike. Batson. See also Hernandez v. New York, 500 U.S. 352, ----, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395 (1991). The neutral reason need not rise to the level of a challenge for cause. Batson, 476 U.S. at 97-98, 106 S.Ct. at 1723.

In the third step of the Batson analysis, the trial court must determine whether the defendant has carried the ultimate burden of showing that the state's strikes were taken for discriminatory reasons. Hernandez, 500 U.S. at ----, 111 S.Ct. at 1866, 1868. A trial court's finding on this issue is a finding of fact, see State v. Reyes, 163 Ariz. 488, 490, 788 P.2d 1239, 1241 (App.1989), and, on appellate review, will be reversed only if clearly erroneous. Hernandez, 500 U.S. at ----, 111 S.Ct. at 1871.

Before applying these Batson principles to this particular case, we readily acknowledge that Batson has been a rapidly evolving constitutional construct and that, since the time of the trial in this case, many courts have discussed and refined Batson, giving us the benefit of guidance unavailable to the trial court at the time of trial in this case.

II. Untimeliness of One Batson Issue

We first note a Batson issue that we will not consider in this appeal. In post-trial motions, defendant sought to bolster his Batson arguments by presenting, for the first time, evidence of occurrences at his earlier trials. Basically, defendant contended that the prosecution had exercised its strikes in the first trial in a racially discriminatory fashion. That first trial led to the convictions that were reversed in Cruz I on grounds unrelated to jury selection. The defendant then argued, essentially, that because minorities on the second and third juries, which hung, had been among those favoring acquittal, the prosecution was motivated to exercise its strikes discriminatorily in this, the fourth trial. Defendant reurges and expands on these post-trial arguments in this appeal.

We have previously held that Batson challenges must be made before the end of the jury selection process or they will not be considered on appeal. State v. Harris, 157 Ariz. 35, 754 P.2d 1139 (1988). We believe that this rule should...