State v. Harris

• Decision Date: 09 November 2012
• Docket Number: No. 20100080.,20100080.
• Citation: 721 Utah Adv. Rep. 16,289 P.3d 591,2012 UT 77
• Parties: STATE of Utah, Plaintiff and Appellee, v. Antoine Darnell HARRIS, Defendant and Appellant.
• Court: Utah Supreme Court

289 P.3d 591

721 Utah Adv. Rep. 16

2012 UT 77

STATE of Utah, Plaintiff and Appellee,

v.Antoine Darnell HARRIS, Defendant and Appellant.

No. 20100080.

Supreme Court of Utah.

Nov. 9, 2012.

Mark L. Shurtleff, Att'y Gen., Christine F. Soltis, Asst. Att'y Gen., Melanie M. Serassio, Salt Lake City, for appellee.

Joan C. Watt, Jaqueline R. Hopkinson, Salt Lake City, for appellant.

Justice LEE, opinion of the Court:

¶ 1 Antoine Harris was charged with two counts of assault in January 2008. He appeared for a jury trial in October 2009 and was subsequently convicted of a class B misdemeanor assault. Harris now appeals, claiming that his jury was assembled in a manner inconsistent with the requirements of the Equal Protection Clause of the Fourteenth Amendment. We disagree and accordingly affirm.

I

¶ 2 In December 2007, Amber Wardle and Sarah Michel spent the day shopping. After their spree, the pair decided to return to Wardle's apartment, which she shared with her then-boyfriend, Antoine Harris. Wardle indicated to Michel that she wanted Harris to move out and that she wanted Michel there during the confrontation.

¶ 3 Soon after they arrived at Harris's apartment, a fight erupted between Wardle and Harris. During the course of their spat, Harris told Wardle that she should stop hanging out with Michel. After hearing this from the other room, Michel stepped into the bedroom to confront Harris. Michel and Harris exchanged barbs, and Michel informed Wardle that she was leaving because she was angry at Harris.

¶ 4 According to Michel, before she could reach the front door of the apartment, Harris shut the door and locked it. Harris then pushed her up against the door and started to choke her. In the midst of this tussle, Michel hurled a highly charged racial slur at Harris and told him to let her go. Michel stated that Harris eventually released her, but shortly afterward it appeared to her that he was going to hit Wardle. Michel testified that she intervened, at which point Harris jumped on top of her and began to choke her again.

¶ 5 Harris's version of events was somewhat different. He testified at trial that instead of locking Michel in the apartment, he in fact had attempted to usher her out of the house when she suddenly attacked him. In an attempt to defend himself, Harris grabbed Michel by the neck and pushed her away. It was at this point that Michel used the racial epithet, which Harris admitted infuriated him; thus provoked, Harris conceded that he started to choke Michel.

¶ 6 In the midst of the skirmish, Michel told Wardle to get help. Wardle ran out of the apartment, prompting Harris to leave Michel and chase after Wardle. The police ultimately arrived and catalogued Michel's injuries. Based on their accounts and Michel's injuries, Harris was charged with one count of aggravated assault, a third-degree felony,^FN1 and one count of domestic violence assault, a class B misdemeanor.^FN2

¶ 7 Harris appeared for a one-day jury trial on October 28, 2009. The trial court conducted standard jury selection, assembling a venire and conducting voir dire. After several members of the jury venire were dismissed for cause, the court invited trial counsel to exercise their peremptory strikes. As counsel deliberated, the judge passed the time by reading aloud an excerpt from an article entitled “Do You Swear that You Will Well and Truly Try?” ^FN3

¶ 8 After the peremptory strikes were completed and submitted to the judge, the court asked defense counsel whether he “pass[ed] the jury for cause.” Defense counsel replied, “I think we need to approach the bench,” and immediately added, “Oh, we do pass for cause, yes.” The following sidebar ensued:

DEFENSE COUNSEL: The concern we have is Juror Number 3 was struck by the State. He's the only minority on the jury, so (inaudible) want a Batson challenge on this, she needs to justify why she (inaudible) the only minority on the jury.

COURT: All right, do you have a reason for that?

PROSECUTOR: Yeah, (inaudible).

COURT: Alright, why don't we put that on the record during the break?

DEFENSE COUNSEL: Okay, I just wanted to inform you of that (inaudible). ^FN4

¶ 9 The court then announced the names of the selected jurors. It asked both the prosecutor and defense counsel “is that the jury you have selected?” Both responded in the affirmative, stating “it is, your honor.” Without further objection by defense counsel, the remainder of the venire was dismissed, including Juror Number 3, and the jury was sworn. During the subsequent recess, the court noted that defense counsel had “ask[ed] to approach the bench on a Batson challenge” and invited counsel to “make that on the record now.” Defense counsel then made the following record:

[B]ased on the state's taking off Juror No. 3, who clearly was the only minority on the jury, as I looked through ... my notes on his answers, there's nothing in there that would indicate any reason to take him off the jury other than the fact that he was 27 years old and was obvious[ly] ... of the Asian race and so I think the State has to justify why they took that person off the jury.

¶ 10 The court then asked the prosecutor to explain his strike, to which he responded:

[W]hen I was watching [Juror No. 3] during the time that [the judge] was reading the story to the jurors, he was not paying attention. He kept putting his head down, he wasn't listening and that concerns me when someone doesn't want to pay attention. I also noted in my notes that he kept looking at me funny and so any time I get a bad feeling from a juror and if they're not paying attention, initially I was going to leave him on and then he just wasn't paying attention. He has to pay attention during the jury trial.

I had concerns about (inaudible) [another juror] as well but the defense had struck her. I didn't know if she would have any problems with her or anything but ... the defense struck her as number four, but she was actually paying attention and listening to what [the court] had to say and [Juror No. 3] was not paying attention.

¶ 11 After the prosecutor's response, the court confirmed that Harris was not Asian but was a minority, and then asked if there was “[a]nything else [they] need[ed] to put on the record.” Defense counsel replied:

Judge, I guess my response to that is, it's hard for somebody to tell if somebody is paying attention. People have different ways of paying attention and this is a smaller room (inaudible) reading to them or talking to them and so the fact that somebody is looking around or something, I don't think is necessarily they're not paying attention. So I don't think that's sufficient, but just so the record is clear.

The court responded to this last statement, saying “Thank you. Alright. We'll recess for about 10 minutes,” to which defense counsel replied, “Thank you, Your Honor.”

¶ 12 With that, the trial proceeded. At the conclusion of the State's case-in-chief, the court dismissed the simple assault charge based on insufficient evidence. Following its deliberation, the jury convicted Harris of a class B misdemeanor assault, a lesser-included offense of the initial charge of aggravated assault. Harris appealed.

II

[1] ¶ 13 Harris challenges his conviction on the ground that “the State's use of a peremptory challenge to strike the only member of a racial minority group from the jury venire violated the Equal Protection Clause of the Fourteenth Amendment.” Harris's argument rests on the prohibition of racial discrimination in jury selection laid out in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Under Batson, parties generally “may exercise peremptory strikes to remove jurors during jury selection for virtually any reason, or for no reason at all.” State v. Rosa–Re, 2008 UT 53, ¶ 7, 190 P.3d 1259 (internal quotation marks omitted). That general rule is qualified, however, by the proposition that “parties in a criminal action may not discriminate against potential jurors by exercising peremptory challenges solely on the basis of race.” ^FN5 For the reasons set forth below, we conclude that Harris failed to timely preserve his Batson challenge, the trial court did not err when it did not make findings or rule on the Batson challenge, and Harris's ineffective assistance of counsel claim based on his counsel's failure to timely preserve his Batson challenge fails under Strickland.

A

[2] ¶ 14 Harris contends that his Batson challenge was both timely raised and erroneously rejected. Whether Harris's challenge was timely is a question of law that we review for correctness.^FN6 For the reasons discussed below, we conclude that Harris's challenge was untimely.

[3] ¶ 15 A properly made Batson challenge involves three steps. The challenging party must first make a “prima facie case of purposeful discrimination in the selection of the petit jury.” State v. Valdez, 2006 UT 39, ¶ 15, 140 P.3d 1219. Once the Batson objection has been raised and clearly articulated, “the burden shifts to the proponent of the peremptory challenges to rebut the prima facie case by offering neutral, nondiscriminatory justifications for the peremptory challenges.” Id. “Finally, if the proponent provides a sufficient explanation for the peremptory challenges, the trial court must determine whether the opponent of the peremptory challenges has proven purposeful discrimination.” Id.

[4] [5] ¶ 16 It is not enough, however, for a party to raise a Batson challenge and expect opposing counsel and the court to complete the heavy lifting. A Batson challenge “must be raised in such a manner that the trial court is able to fashion a remedy in the event a Batson violation has occurred.” Id. ¶ 44. This prerequisite entails not only specificity in the substance of the challenge, but also a critical timing element: The objecting party must raise and press his challenge “before the jury is sworn and the venire dismissed.” Rosa–Re, 2008 UT 53, ¶ 14, 190 P.3d 1259.

[6] ¶ 17 This timing element is not drawn arbitrarily....