State v. Holder

• Decision Date: 15 October 1987
• Docket Number: No. CR-87-0104-PR,CR-87-0104-PR
• Citation: 745 P.2d 141,155 Ariz. 83
• Parties: STATE of Arizona, Appellee, v. Martley Leroy HOLDER, Appellant.
• Court: Arizona Supreme Court

Page 141

745 P.2d 141

155 Ariz. 83

STATE of Arizona, Appellee, v. Martley Leroy HOLDER, Appellant.

No. CR-87-0104-PR.

Supreme Court of Arizona, In Banc.

Oct. 15, 1987.

Robert K. Corbin, Atty. Gen. by William J. Schafer III, Paul J. McMurdie, Asst. Attys. Gen., Phoenix, for appellee.

John M. Antieau, Phoenix, for appellant.

MOELLER, Justice.

FACTS AND ISSUES

Defendant Martley LeRoy Holder was charged with theft by knowingly possessing a stolen pickup truck. At trial, he represented himself with the aid of court-appointed advisory counsel. After voir dire examination of the jury panel, both the prosecutor and the defendant passed the panel. After the court discharged the excess jurors from the panel, each side exercised six peremptory challenges, leaving ten jurors on the panel. Without objection, those ten were sworn in as trial jurors. At the end of the trial, two alternates were selected by lot and excused without objection. The remaining eight jurors returned a verdict of guilty. The defendant then admitted two prior convictions which had been alleged by the state. At sentencing, he received an aggravated sentence.

After his conviction and sentencing, the United States Supreme Court announced its decision in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In that opinion, the Court held that a criminal defendant could use the facts and circumstances of his individual case to make a prima facie showing that the state was violating his equal protection rights by using peremptory challenges systematically to exclude members of the defendant's race from the jury. 476 U.S. at ----, 106 S.Ct. at 1722-23, 90 L.Ed.2d at 87. In his appeal to the court of appeals, defendant contended that he was entitled to raise Batson for the first time on appeal, that Batson applied to his case, and that the record established a prima facie showing of the discriminatory exercise of peremptories. The court of appeals agreed with the defendant and remanded to the trial court for a hearing to determine whether the prosecution could now meet its burden of providing a racially neutral explanation for the exercise of its peremptory challenges. State v. Holder, 155 Ariz. 80, 745 P.2d 138 (App.1987).

The state petitioned this court for review, and the defendant cross-petitioned. We accepted review of two issues raised in the state's petition:

1) Whether the court of appeals erred by concluding that a Batson claim can be raised for the first time on appeal; and

2) Whether the court of appeals erred by concluding that the record on appeal demonstrated a prima facie case of prosecutorial discrimination under Batson.

We have jurisdiction under Ariz. Const. art. 6, § 5(3), and A.R.S. § 12-120.24. Since we arrive at different conclusions than did the court of appeals, we vacate

[155 Ariz. 85] those portions of its opinion dealing with Batson issues.

RETROACTIVITY AND FAILURE TO OBJECT AT TRIAL

The question of whether a constitutional principle is "retroactive" is a question distinct from the question of whether a defendant must timely assert the principle in order to receive its benefits. While the Supreme Court has twice considered the retroactivity of Batson, it has not considered whether a defendant may successfully raise a Batson issue for the first time on appeal. Addressing retroactivity, the Court held in Allen v. Hardy, 478 U.S. 255, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986), that Batson was not available to defendants whose direct appeals were final at the time Batson was announced. In Griffith v. Kentucky, --- U.S. ----, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), the Court held, again addressing the issue of retroactivity, that Batson applied to defendants whose appeals had not become final by the time of the Batson decision. ¹ When the instant case was being briefed in the court of appeals, Griffith had not yet been decided, and the state urged in its brief that Batson should not be applied retroactively. The court of appeals correctly noted that the retroactivity issue was settled by Griffith. Since the defendant here falls within the Griffith ambit, the question then becomes whether he should be permitted to raise the Batson issue for the first time on appeal. The court of appeals held that he could do so. We disagree.

Absent fundamental error, error is usually considered to be waived on appeal unless it was objected to at trial. State v. Henley, 141 Ariz. 465, 687 P.2d 1220 (1984). This principle also applies to constitutional error. See State v. Magallanes, 110 Ariz. 235, 517 P.2d 505 (1973). Only fundamental error, that is, error which goes to the very foundation of the case, may be raised for the first time on appeal. State v. Burton, 144 Ariz. 248, 697 P.2d 331 (1985).

In considering whether a Batson issue may be raised for the first time on appeal, we note first that the ruling in Batson itself was that the requirement of a racially neutral explanation from the prosecutor was triggered by a timely objection in the trial court. The defendants in both Allen and Griffith had also made timely objections, although the Batson case had not yet been decided. Allen, 478 U.S. at ----, 106 S.Ct. at 2879, 92 L.Ed.2d at 203; Griffith, 479 U.S. at ----, 107 S.Ct. at 710, 711, 93 L.Ed.2d at 654-655.

While the Court has not directly addressed the issue of Batson as fundamental error, in discussing the retroactivity issue, the Court in Allen stated:

Significantly, the new [Batson ] rule joins other procedures that protect a defendant's interest in a neutral factfinder. Those other mechanisms existed prior to our decision in Batson, creating a high probability that the individual jurors seated in a particular case were free from bias. Accordingly, we cannot say that the new rule has such a fundamental impact on the integrity of factfinding as to compel retroactive application.

478 U.S. at ----, 106 S.Ct. at 2881, 92 L.Ed.2d at 205 (emphasis added).

At least one federal circuit court has noted this passage and held that a Batson challenge does not involve fundamental error and is waived if a timely objection is not made. Virgin Islands v. Forte, 806 F.2d 73, 76-77 (3d Cir.1986). See also United States v. Erwin, 793 F.2d 656, 667 (5th Cir.1986). In addition, several state appellate courts have held that a Batson challenge must be made in a timely fashion or it is waived. Ford v. State, 180 Ga.App. 807, 350 S.E.2d 816 (1986); People v. Holder, 153 Ill.App.3d 884, 106 Ill.Dec. 700, 506 N.E.2d 407 (1987); Weekly v. State, 496 N.E.2d 29 (Ind.1986). We conclude that a Batson issue does not present fundamental error and a failure to raise it cannot be excused on that ground.

However, our holding that fundamental error is not involved does not end our inquiry. The court of appeals did not hold that the Batson issue presented fundamental error. Instead, it held that the defendant's failure to raise the issue in the trial court could be excused under the "novelty" doctrine of Reed v. Ross, 468 U.S. 1, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984). In Reed, the Supreme Court considered whether, for federal habeas corpus purposes, there had been excusable cause for failure of a defendant to raise a constitutional claim in his state court appeal. The Court stated:

[We] hold that where a constitutional claim is so novel that its legal basis is not reasonably available to counsel, a defendant has cause for his failure to raise the claim in accordance with applicable state procedures.

486 U.S. at 16, 104 S.Ct. at 2910, 82 L.Ed.2d at 15.

Whether Reed is applicable at all in our situation is questionable since, in Reed, the Court was considering a federal habeas corpus standing issue and was dealing with a constitutional principle which, unlike Batson, had been held to be fully retroactive. However, even assuming that a Reed analysis is appropriate here, we find that the issue under consideration fails the novelty test of Reed. The record in this case shows that, throughout the trial court proceedings, the defendant claimed to be concerned about the racial composition of the jury. Nevertheless, he made no objection or record which would have permitted the trial court, the court of appeals or this court to address the issue or correct the problem if one was found. The lack of a Batson decision on the books did not prevent Batson, Allen or Griffith from timely raising the issue in their trials. To us, it would be anomalous indeed to hold that the defendant in this case can invoke Batson although he never raised it at his trial, while Allen, who anticipated Batson and did raise it at his trial, cannot.

Further, on the novelty issue, it is appropriate to note that some state courts have been applying Batson -like decisions for a number of years. See, e.g., People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (1978); State v. Neil, 457 So.2d 481 (Fla.1984); Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499 (1979). Indeed, prior to the trial in this...