State v. Dorado

• Decision Date: 31 May 2019
• Docket Number: No. A-1-CA-35462,A-1-CA-35462
• Citation: State v. Dorado, 444 P.3d 1083 (N.M. App. 2019)
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Javier DORADO, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

444 P.3d 1083

STATE of New Mexico, Plaintiff-Appellee,

v.Javier DORADO, Defendant-Appellant.

No. A-1-CA-35462

Court of Appeals of New Mexico.

Filing Date: May 31, 2019

Certiorari Denied, July 2, 2019, S-1-SC-37712

Released for Publication July 23, 2019

Hector H. Balderas, Attorney General, Santa Fe, NM, John J. Woykovsky, Assistant Attorney General, Albuquerque, NM, for Appellee

Bennett J. Baur, Chief Public Defender, B. Douglas Wood III, Assistant Appellate Defender, Santa Fe, NM, for Appellant

DUFFY, Judge.

{1} A jury convicted Defendant Javier Dorado of assault on a peace officer and disorderly conduct. On appeal, Defendant argues that the State exercised its peremptory challenges in a racially discriminatory manner in violation of Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and his constitutional rights. Detecting no violation, we affirm.

BACKGROUND

{2} Defendant was charged with one count of assault upon a peace officer, contrary to NMSA 1978, Section 30-22-21 (1971), and one count of disorderly conduct, contrary to NMSA 1978, Section 30-20-1(A) (1967). The State was allowed three peremptory challenges and exercised them to strike Potential Jurors Five, Fifteen, and Eighteen—all persons with Hispanic surnames. See Rule 5-606(D)(1)(c) NMRA (providing in relevant part that "the state shall be allowed three (3) challenges"). After the State used its third strike on Potential Juror Eighteen, Defendant’s counsel asked for a reason for the strike. The district court responded to the question, stating, "Well, let me see. Let me see if there is a basis for your request. Okay. [The State used one strike on Potential Juror Five]. They used another one on [Potential Jurors Fifteen and Eighteen]. Two Hispanic males, one Hispanic female." The court told the State it could "address any of the three."

{3} In response, one prosecutor said the State struck Potential Juror Fifteen because "I just didn’t like his general demeanor. It didn’t appear to be favorable to the State. Oftentimes we just go off the instinct based on body language, and that’s why I [asked that Potential Juror Fifteen be stricken]." The State said it struck Potential Juror Eighteen because "he is a young male from Anthony. And while he did not make any—he did not say that he knew [D]efendant, he is from the same area." The State said it struck Potential Juror Five because she was younger, around Defendant’s age, and because she is from Anthony.

{4} The district court observed that the majority of the jury panel at that point was Hispanic and concluded that the peremptory strikes had not been used improperly, to which Defendant’s attorney replied, "Yes, your Honor" without raising further objection or argument. Of the thirteen jury members finally selected, seven were Hispanic. The jury found Defendant guilty of both charges.

DISCUSSION

{5} "It is well established that the [s]tate may not, during the jury selection process, use its peremptory challenges to exclude otherwise unbiased and well-qualified individuals solely on the basis of their race." State v. Martinez , 2002-NMCA-036, ¶ 9, 131 N.M. 746, 42 P.3d 851. "Such invidious discrimination violates the Equal Protection Clause of the United States Constitution and causes harm to the litigants, the community, and the individual jurors who are wrongfully excluded from participation in the judicial process." State v. Salas , 2010-NMSC-028, ¶ 30, 148 N.M. 313, 236 P.3d 32 (internal quotation marks and citation omitted); see U.S. Const. amend. XIV, § 1 ; N.M. Const. art. II, §§ 14, 18.¹ To evaluate whether peremptory challenges have been exercised in a discriminatory manner, our courts have adopted and apply a three-part test based on the United States Supreme Court’s decisions in Batson and Purkett v. Elem , 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995). Our Supreme Court in Salas stated:

First, the opponent of a peremptory challenge bears the burden to establish a prima facie case indicating that the peremptory challenge has been exercised in a discriminatory way (step one). To make a prima facie showing, a party must prove that (1) a peremptory challenge was used to remove a member of a protected group from the jury panel, and (2) the facts and other related circumstances raise an inference that the individual was excluded solely on the basis of his or her membership in a protected group.

If the opponent of the peremptory challenge successfully makes a prima facie showing, then the burden shifts to the proponent of the challenge to come forward with a race or gender-neutral explanation (step two). The second step of this process does not demand an explanation that is persuasive, or even plausible. Rather, the issue is the facial validity of the proffered explanation. Unless a discriminatory intent is inherent in the party’s explanation, the reason offered will be deemed race or gender-neutral. If a race or gender-neutral explanation is tendered, the trial court must then decide (step three) whether the opponent of the strike has proved purposeful racial or gender discrimination. The ultimate burden of persuasion regarding racial or gender motivation rests with, and never shifts from, the opponent of the strike.

Salas , 2010-NMSC-028, ¶¶ 31-32, 148 N.M. 313, 236 P.3d 32 (alterations, internal quotation marks, and citations omitted).

{6} "We review the trial court’s factual findings regarding a Batson challenge using a deferential standard of review, as it is the responsibility of the trial court to (1) evaluate the sincerity of both parties, (2) rely on its own observations of the challenged jurors, and (3) draw on its experience in supervising voir dire." Salas , 2010-NMSC-028, ¶ 33, 148 N.M. 313, 236 P.3d 32 (alteration, internal quotation marks, and citations omitted). "However, we are not required to defer to the district court regarding whether a stated reason for a challenge is constitutionally adequate; therefore, we apply a de novo standard of review to the ultimate question of constitutionality." State v. Bailey , 2008-NMCA-084, ¶ 15, 144 N.M. 279, 186 P.3d 908.

1. Defendant Made a Prima Facie Case of Discrimination

{7} The State argues that Defendant did not make a prima facie case for purposes of step one of the Batson analysis. Accordingly, we consider whether Defendant proved "(1) a peremptory challenge was used to remove a member of a protected group from the jury panel, and (2) the facts and other related circumstances raise an inference that the individual was excluded solely on the basis of his or her membership in a protected group." Salas , 2010-NMSC-028, ¶ 31, 148 N.M. 313, 236 P.3d 32. The State used all three of its peremptory strikes against prospective jurors with Hispanic surnames. It is well settled that "Hispanics are a cognizable group under a Batson challenge." Bustos v. City of Clovis , 2016-NMCA-018, ¶ 33, 365 P.3d 67. In Martinez , we held that the "the prosecution’s use of all three of its peremptory challenges against Hispanics created an inference of discrimination sufficient to support a prima facie case." 2002-NMCA-036, ¶ 30, 131 N.M. 746, 42 P.3d 851. Likewise, in Bailey , we stated that by asking if the state had a legitimate, non-discriminatory reason for its challenges, the district court "implicitly found that [the d]efendant had made a prima facie showing that the [s]tate’s challenges were racially motivated." 2008-NMCA-084, ¶ 17, 144 N.M. 279, 186 P.3d 908 ; see Bustos , 2016-NMCA-018, ¶ 33, 365 P.3d 67 (same). Under the circumstances here, we agree with the district court that Defendant established a prima facie case of discriminatory conduct under the first step of the Batson analysis.

2. The State’s Reasons Were Facially Race-Neutral

{8} Although Defendant argues that "the error in this matter occurred with respect to the third step," he also asks us to "hold that the State ... failed to meet its burden in the second step of the [ Batson analysis]." In particular, Defendant argues that the State "failed to provide a satisfactory race-neutral basis for exercising peremptory strikes against [Potential Juror Five] and [Potential Juror Eighteen] based on their address being in Anthony[,]" and that body language is an unsatisfactory explanation for striking Potential Juror Fifteen. The only inquiry at step two is the "facial validity of the proffered explanation," an issue determined on the basis of whether "a discriminatory intent is inherent" in the explanation. Salas , 2010-NMSC-028, ¶ 32, 148 N.M. 313, 236 P.3d 32 (internal quotation marks and citation omitted). The State’s explanation does not have to be "persuasive, or even plausible[,]" id. (internal quotation marks and citation omitted), but instead "must be sufficiently specific to allow the party challenging the strike to exercise its right to refute the stated reason or otherwise prove purposeful discrimination." Bustos , 2016-NMCA-018, ¶ 41, 365 P.3d 67 (internal quotation marks and citation omitted).

{9} Turning first to Potential Jurors Five and Eighteen, we address whether the State’s reasons for striking these potential jurors—residence and age—were race-neutral or inherently discriminatory. New Mexico has not addressed the question of whether the combination of age and residence is a facially race-neutral reason for exercising a peremptory strike. Other jurisdictions, however, have held that the combination is facially race neutral. See Higginbotham v. State , 207 Ga.App. 424, 428 S.E.2d 592, 593-94 (1993) (affirming exclusion of veniremember "who lived in the same general area as appellant and was of approximately the same age as he" because "[o]bviously, possible affinity between a prospective juror and the very defendant on trial can constitute a neutral and non-racial explanation for the employment of a peremptory strike.... [and i]t was not required that the [s]tate prove that the prospective juror and appellant were personally acquainted" (citations omitted), ...