State v. Donaghy

• Decision Date: 08 December 2000
• Docket Number: No. 99-405.,99-405.
• Citation: 769 A.2d 10
• Parties: STATE of Vermont v. Kenneth DONAGHY
• Court: Vermont Supreme Court

769 A.2d 10

STATE of Vermont v. Kenneth DONAGHY

No. 99-405.

Supreme Court of Vermont.

December 8, 2000.

Kyle C. Sipples, Caledonia County Deputy State's Attorney, St. Johnsbury, for Plaintiff-Appellee.

Robert Appel, Defender General, Anna Saxman, Appellate Attorney, and Seth

Carey, Law Clerk (on the Brief), Montpelier, for Defendant-Appellant.

Present: AMESTOY, C.J., DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

DOOLEY, Justice.

Defendant Kenneth Donaghy appeals from his conviction of domestic assault under 13 V.S.A. § 1042. He seeks a new trial on the grounds that: (1) the evidence was insufficient to prove the element of "attempt" beyond a reasonable doubt, and (2) the trial court failed to properly consider his challenge, under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), to the prosecutor's pattern of gender-based peremptory jury challenges. On the second point, defendant argues that the trial court failed to make findings, required by Batson, on whether he had established a prima facie case, and then failed to perform the final two steps mandated by Batson. We hold that defendant established a prima facie case of intentional discrimination that was not properly considered by the trial court. We therefore remand for a Batson hearing to determine whether there was gender discrimination in the jury selection, and if so, to grant a new trial. We otherwise affirm.

During jury selection, defense counsel objected to the prosecutor's pattern of peremptory strikes, alleging they were based on gender. The prosecutor had used his first four strikes to remove men from the venire that contained ten women and eleven men. Defense counsel objected after these four strikes and asked that the prosecutor provide a nondiscriminatory reason for his challenges pursuant to Batson. The court replied, "We're not going to interrupt this jury draw for that kind of objection. We will select this jury and we'll deal with that issue later." At the start of the next round of strikes, the venire consisted of nine men and twelve women. The prosecutor passed twice, then struck a woman and two more men. Defense counsel renewed his objection. The court again responded that the objection would be dealt with later. The final jury, including two alternates, consisted of eight men and six women.

Before trial, the court held a hearing to consider cross-motions to strike the jury panel due to gender discrimination in the exercise of peremptory challenges by both sides. In totality, the argument on these motions, as well as the prosecution's oral motion to strike the jury panel because of prejudicial newspaper publicity, fills less than six transcript pages and probably took less than ten minutes. Defense counsel went first, arguing that the incidence of challenges of men by the prosecution made a prima facie showing of gender discrimination, and requested as relief "that the court commence J.E.B. proceedings, [and] force the State to provide entirely gender-neutral reasons for peremptories...."¹

At that point, the judge addressed the prosecutor by name: "Mr. Sipples?" The prosecutor responded:

before we get to the merits of either of the motions that were filed, we should address the prejudice that's resulted from the filing of motions and the subsequent press attention that's been given thereto; and on that basis I don't think we're in a position where we could proceed with a trial because the jury has been irrevocably tainted because of press that has taken place as a result of these motions.

The prosecutor went on to claim that selected jurors had read the newspaper articles, and he also accused defense counsel of intentionally generating the press attention to make the prosecution look bad in the eyes of the jury. He concluded: "I think we would have to strike the jury based on that before we get to any of the J.E.B. issues."

At the conclusion of the hearing, the court denied both motions to strike, concluding that "the end result ended up with a jury being reasonably well-balanced" and that the defendant could not complain "when eight out of the fourteen jurors selected are male." The court concluded that the gender make-up of the jury was fair, and that jurors would render a verdict based on the evidence and not what they read in newspapers. The ruling came so abruptly that neither party responded to the argument of the other, and neither side addressed the prosecution's Batson challenge to the defense's use of its peremptory strikes. Defendant went to trial and was convicted of domestic assault; defendant now appeals.²

Defendant argues on appeal that the evidence was insufficient to convict him of the element of attempt, an element in the information by which he was charged and an alternative element in the domestic assault statute. Alternatively, he argues that he should receive a new trial because he raised a prima facie case of gender discrimination in jury selection, which the State failed to rebut.

We begin with defendant's claim that the State failed to establish the element of "attempt." Defendant was convicted of domestic assault pursuant to 13 V.S.A. § 1042, which states in pertinent part: "Any person who attempts to cause... bodily injury to a family or household member ... shall be imprisoned not more than one year or fined not more than $5,000.00, or both." (Emphasis added.) Defendant raised the insufficiency of the evidence at trial by way of a motion for a judgment of acquittal at the close of the evidence, which was denied. We review the denial of a motion for acquittal pursuant to V.R.Cr.P. 29 to determine "`whether, taking the evidence in the light most favorable to the state and excluding modifying evidence, the state has [produced] evidence fairly and reasonably tending to show the defendant guilty beyond a reasonable doubt.'" State v. Fanger, 164 Vt. 48, 51, 665 A.2d 36, 37 (1995) (quoting Reporter's Notes, V.R.Cr.P. 29).

We have held that an "`attempt consists not only of an intent to commit a particular crime, but ... some overt act designed to carry out such intent.'" State v. Curtis, 157 Vt. 629, 631, 603 A.2d 356, 357 (1991) (quoting State v. Hudon, 103 Vt. 17, 20, 151 A. 562, 564 (1930)). The evidence at trial showed that the victim, defendant's estranged wife, was working on the roof of a small wooden shed and that defendant drove his truck into the shed at 20-30 miles an hour. The impact caused the shed to shift on its base several inches. She testified that she lost her balance and then caught herself so that she did not fall. It was therefore possible for the jury to conclude, beyond a reasonable doubt, that defendant attempted to cause some bodily injury to the victim by intentionally plowing his truck into the shed while she was on the roof, but was unsuccessful because the shed was sturdily built. Such conduct satisfies the requirement that an attempt include an "overt act" in addition to intent to harm. The evidence was sufficient to support the conviction for domestic assault.

We next turn to defendant's argument that he is entitled to a new trial because of gender discrimination in jury selection. The United States Supreme Court has held that the use of peremptory strikes to remove potential jurors based solely on race violates the Fourteenth Amendment's Equal Protection Clause. Batson, 476 U.S. at 89, 106 S.Ct. 1712. The Court extended its holding to include discrimination on the basis of gender in J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 129, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994), concluding that "gender, like race, is an unconstitutional proxy for juror competence and impartiality." The Court reasoned in J.E.B. that discrimination during jury selection harms the litigants, the community, and the juror who is wrongly excluded. Id. at 140, 114 S.Ct. 1419. Although the harm to the litigants is present in every case, the potential for harm to the community, in the form of increased cynicism towards the judicial system, is "particularly acute in cases where gender-related issues are prominent." Id. Because this case involves the gender-related issue of domestic violence, we review it with a keen eye to preventing state-sanctioned discrimination.

Batson provided a three-part test for determining whether a party exercised a peremptory strike in a discriminatory manner. First, the party alleging improper use of a peremptory challenge must present prima facie evidence that intentional discrimination has taken place. Batson, 476 U.S. at 96-97, 106 S.Ct. 1712. Second, if the moving party establishes a prima facie case, the burden shifts to the party who exercised the challenge to provide a race-neutral, or here gender-neutral, explanation for the challenge. Id. at 97-98, 106 S.Ct. 1712; see J.E.B., 511 U.S. at 130-31, 114 S.Ct. 1419. Although this explanation need not be one that would justify a successful challenge for cause, the challenging party may not rebut the prima facie case merely by denying a discriminatory motive. Batson, 476 U.S. at 97-98, 106 S.Ct. 1712. If an explanation is proffered, the court then must decide whether the reasons given are merely pretexts for discrimination and whether the party alleging a violation has proven intentional discrimination. Id. at 98, 106 S.Ct. 1712.

We first consider whether defendant made a prima facie showing that discrimination had occurred. Under Batson and its progeny, when evaluating whether a challenger has made out a prima facie case, a court should look to (1) whether a peremptory challenge was "exercised against a member of a constitutionally cognizable group," and (2) whether this fact, considered together with "any other relevant circumstances," raises an inference that the party exercising the strike did so in order to exclude the venire person on account of race or gender. United States v. De Gross, 960 F.2d 1433, 1442 (9th Cir.1992). The "other relevant circumstances" include, but are not limited to,...