State v. Hernandez
| Decision Date | 22 August 1991 |
| Docket Number | No. 1,CA-CR,1 |
| Citation | 823 P.2d 1309,170 Ariz. 301 |
| Parties | STATE of Arizona, Appellee, v. Antonio G. HERNANDEZ, Appellant. 90-1009. |
| Court | Arizona Court of Appeals |
Antonio G. Hernandez, the defendant, was convicted by a jury of first degree murder and sentenced to life imprisonment without possibility of release until he serves twenty-five years. The defendant timely appealed his conviction and sentence. We affirm the judgment.
On the night of June 30, 1987, the defendant was drinking at the Roadhouse Bar in El Mirage with Ricky Alcantar, Daniel Moreno Carrizosa and Hector Mendoza. 1 Jewl Briggs also was there. Alcantar told the defendant and the others that Briggs was a "narc," a narcotics law enforcement agent. When Briggs left the bar, Carrizosa, Mendoza and the defendant, who was carrying a black Luger Tec-9 nine millimeter machine pistol, followed him. The defendant and Briggs argued and then, approximately 100 yards from the bar, the defendant shot Briggs several times. Briggs was begging the defendant not to shoot and the defendant was ready to leave when Carrizosa asked for the gun to kill Briggs so that Briggs would not be able to identify his assailants. Instead, the defendant killed Briggs.
At trial, Michael Villareal testified that he was at the Roadhouse Bar that evening and saw the defendant, Carrizosa and Mendoza there. Villareal also noticed a gun in the waistband of the defendant's pants. Someone told Villareal that others were going to beat up Briggs and so Villareal asked the bartender to have Briggs leave before something happened. Villareal then saw the bartender speak to Briggs and Briggs leave. Shortly thereafter, the defendant, Carrizosa and Mendoza followed Briggs outside. Villareal went to the door and observed Briggs and the men arguing. He then saw gunfire and Briggs fall.
Mendoza testified that he saw the defendant put a gun in his pants and heard Alcantar tell the defendant in the bar that Briggs was a "narc." Mendoza saw the defendant and Carrizosa leave the bar and he left immediately after them. Outside, he heard the defendant and Briggs exchange words, and saw the defendant shove and then shoot Briggs. When the defendant said "Let's go," Carrizosa responded, in Spanish, "No, kill him so he won't talk" and asked for the gun. 2 The defendant instead kept it, saying "I already shot him three times; I'll do it" and fired again, killing Briggs. The three men then left the scene.
Later that night, the defendant unexpectedly visited an acquaintance, Ralph Chayrez. As Chayrez subsequently drove the defendant by the Roadhouse Bar at the defendant's request, Chayrez noticed that the defendant carried a black Tec-9 machine pistol.
At trial, the defendant argued that either Carrizosa or Mendoza had shot Briggs, and that Villareal and Mendoza were lying.
On appeal, the defendant raises the following issues:
(1) whether the trial court committed reversible error in permitting the prosecution to use a peremptory strike to remove the only Hispanic panelist;
(2) whether the trial court committed reversible error by admitting hearsay as evidence; and
(3) whether the prosecutor committed misconduct during closing arguments.
After conducting the voir dire of the jury venire, counsel exercised their peremptory strikes. Defense counsel objected to the prosecutor's strike of Virginia Carrillo, the only Hispanic person, citing Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). At the trial court's request, the prosecutor gave the following reasons for striking Carrillo: (1) concern that she had an unstable employment history as she had lived in the county for nine years but had been employed for only six months as a file clerk; (2) her overly-enthusiastic response to the court during voir dire; (3) concern that she might be unduly sympathetic to the defendant because of her age of 41, her lack of children, the defendant's youthful appearance, and her secondary employment as a massage therapist; and (4) concern that the combination of her day job as a clerk and her evening employment as a massage therapist, which she had not disclosed until questioned by the court, resulted in her working too many hours to be an alert and effective juror.
The trial court observed that Carrillo's response was "quite enthusiastic, more so than any juror I have seen in quite awhile," and found that the prosecutor's speculation as to her sympathies was not racially related. It also noted that there had been no Batson problems with the three juries selected for the codefendant's trials by the same prosecutor. The motion then was denied.
The issue was renewed in the defendant's motion for new trial. The trial court once more concluded that Carrillo had been struck for "trial-related reasons" not associated with race. It remarked again upon Carrillo's singularly "extraordinary enthusiasm and apparent desire to be on this jury," finding that this reason alone would have supported a peremptory strike of her.
The defendant maintains that the prosecutor's reasons were insufficient to justify the trial court's conclusions, comparing Carrillo's answers to those of other venire members to show discrepancies between the prosecutor's strike of Carrillo and not of other jurors.
The state may not exclude any particular cognizable group from a jury panel for discriminatory reasons. Batson, 476 U.S. at 96, 106 S.Ct. at 1722; State v. Reyes, 163 Ariz. 488, 489, 788 P.2d 1239, 1240 (App.1989). Hispanic persons constitute a cognizable group for this purpose. Reyes, 163 Ariz. at 490, 788 P.2d at 1241, citing Castaneda v. Partida, 430 U.S. 482, 495, 97 S.Ct. 1272, 1280, 51 L.Ed.2d 498 (1977). In evaluating an objection to a peremptory challenge, the trial court first must determine whether the defendant has made a prima facie showing that a peremptory strike of any member of a cognizable group has been made for discriminatory reasons. Batson, 476 U.S. at 94-98, 106 S.Ct. at 1721-1723; State v. Boston, no. 1 CA-CR 89-1273 (App.1991), slip op. at 3; Reyes, 163 Ariz. at 490, 788 P.2d at 1241. If a prima facie showing is made, the burden shifts to the state to explain the challenge with a neutral reason, one more than an affirmation of good faith or an assumption that the challenged juror would be partial to the defendant because of a shared identification. Batson, id.; see Reyes, id., citing State v. Tubbs, 155 Ariz. 533, 537, 747 P.2d 1232, 1236 (App.1987). The court then must determine whether the prosecutor's stated reasons for the strike constitute a sufficiently neutral explanation or whether the defendant indeed has shown purposeful discrimination. Batson, 476 U.S. at 94-98, 106 S.Ct. at 1721-1723; Boston, slip op. at 3; Reyes, id.
The trial court, by requesting that the prosecutor state his reasons for the peremptory strike, apparently found that the defendant had made a prima facie showing of discrimination. Reyes, 163 Ariz. at 490, 788 P.2d at 1241. Therefore, we need only consider whether the reasons given by the prosecutor for the strike constituted a sufficiently neutral rebuttal. Id.
This court gives great deference to a trial court's finding that a prosecutor's reasons for a peremptory strike were nondiscriminatory because such a finding turns on an evaluation of credibility. State v. Jackson, 157 Ariz. 589, 593, 760 P.2d 589, 593 (App.1988); see Tubbs, 155 Ariz. at 538, 747 P.2d at 1237. The trial court's decision on this issue is a finding of fact which will not be set aside unless clearly erroneous. United States v. Hughes, 911 F.2d 113, 114-15 (8th Cir.1990); United States v. Alston, 895 F.2d 1362, 1366-67 (11th Cir.1990); United States v. Ruiz, 894 F.2d 501, 506-7 (2d Cir.1990); United States v. Clemmons, 892 F.2d 1153, 1155 (3rd Cir.), cert. denied, 496 U.S. 927, 110 S.Ct. 2623, 110 L.Ed.2d 644 (1990); United States v. Power, 881 F.2d 733, 739 (9th Cir.1989). A prosecutor's reasons for the exercise of a peremptory strike need not rise to the level necessary to support a strike for cause. Batson, 476 U.S. at 97, 106 S.Ct. at 1723; Power, id. at 740.
One of the reasons that the prosecutor gave for striking Carrillo was that she had an unstable employment history. It is appropriate to consider a prospective juror's work history in exercising peremptory challenges. United States v. Jackson, 914 F.2d 1050, 1052-53 (8th Cir.1990) (); Haynes v. State, 103 Nev. 309, 316-17, 739 P.2d 497, 502 (1987) ().
The defendant argues that there were other persons on the venire with limited recent employment histories whom the prosecutor did not strike. The dynamics of the jury selection process make it difficult, if not impossible, on a written appellate record to evaluate or compare the challenge of one prospective juror with the retention of another person who on paper appears to be substantially similar. People v. Johnson, 47 Cal.3d 1194, 1221, 255 Cal.Rptr. 569, 579, 767 P.2d 1047, 1057 (1989). This is particularly so because the retention of a prospective juror normally does not provoke a discussion of that juror in contrast to the situation when a prospective juror is challenged. We agree with the trial court that consideration of Carrillo's work history was proper.
The prosecutor stated that Carrillo's overly-enthusiastic response to the court was another reason that he struck her from the jury. The trial court also noted this uncommon...
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