State v. Jackson, 1

• Decision Date: 29 March 1988
• Docket Number: CA-CR,No. 1,1
• Citation: State v. Jackson, 760 P.2d 589, 157 Ariz. 589 (Ariz. App. 1988)
• Parties: STATE of Arizona, Appellee, v. Clarence A. JACKSON, Appellant. 11724.
• Court: Arizona Court of Appeals

Page 589

760 P.2d 589

157 Ariz. 589

STATE of Arizona, Appellee, v. Clarence A. JACKSON, Appellant.

No. 1 CA-CR 11724.

Court of Appeals of Arizona Division 1, Department D.

March 29, 1988.

Redesignated as Opinion and

Publication Ordered May 5, 1988.

Review Denied Sept. 20, 1988.

[157 Ariz. 590] Robert K. Corbin, Atty. Gen. by William J. Schafer III, Chief Counsel, Crim. Div. and Paul J. McMurdie, Asst. Atty. Gen., Phoenix, for appellee.

Dean W. Trebesch, Maricopa County Public Defender by Spencer D. Heffel, Deputy Public Defender, Phoenix, for appellant.

MEMORANDUM DECISION

CONTRERAS, Judge.

Appellant was convicted by a jury of two counts of sale of a narcotic drug, class 2 felonies, committed while on parole. He was sentenced to the minimum term of 15.75 years on each count, sentences to run concurrently. On appeal, appellant raises three issues:

(1) Did the court err by permitting the prosecutor to peremptorily strike two black persons on the jury panel?

(2) Was it error for the trial court to deny appellant's motion for mistrial following prior bad act testimony?

(3) Did the trial court abuse its discretion in denying appellant's motion for a one-day continuance?

We affirm. Briefly, the facts most favorable to sustaining the verdict, State v. Harrison, 111 Ariz. 508, 533 P.2d 1143 (1975), follow.

While working in an undercover capacity, police officers were approached by appellant who asked whether the officers were looking for some "rock" (street term for cocaine). The officers responded affirmatively. Appellant then entered the officers' vehicle and directed them to the location of his connection. Upon arrival, appellant took $50 from one of the officers and then went into an apartment complex at that location. Approximately five minutes later, appellant returned and gave the officers the cocaine. Appellant told the officers that he made his living "selling cocaine all day and all night along Monroe." One of the officers gave appellant his pager number, and approximately one week later appellant contacted the officer. Appellant said he had "rocks" to sell and wanted to know if the officer was interested in purchasing them. The officer indicated he was and arranged to meet appellant at a street location. At the meeting, appellant approached the officers and was given $50. Five minutes later, appellant returned to the undercover officers telling them to "check this out" (the cocaine). The officers asked appellant if he had any more and appellant said he did. The other undercover officer gave appellant $50 and appellant obtained cocaine for this officer. Lab tests performed on the "rocks" indicated the substance to be cocaine in a usable quantity.

Appellant testified at trial. He denied the transactions took place as described. Although he admitted he met with the undercover officers, he claimed that a Carl Fox told him the officers were Fox's brothers and were looking for drugs. He stated he helped Fox get the cocaine by going with Fox into a black neighborhood. He explained that Fox was white and feared for his life and wanted to be accompanied by appellant. Appellant stated he was "paid with drugs from Carl Fox" for his efforts. Appellant also admitted four prior felony convictions while testifying. The jury returned verdicts of guilt and the trial court later found appellant was on parole when he committed these offenses. Appellant timely appealed. We have jurisdiction pursuant to A.R.S. §§ 13-4031 and -4033.

DID THE COURT ERR BY PERMITTING THE PROSECUTOR TO PEREMPTORILY STRIKE TWO BLACK PERSONS ON THE JURY PANEL?

The record demonstrates that the appellant is black. The prosecutor exercised two of his peremptory challenges to strike two of the three black persons on the jury panel. Defense counsel objected to the strikes and the following colloquy took place:

THE COURT: ... Counsel, you have an objection to some of the strikes made by the state.

MS. WISDOM: Well, my understanding of the law, Your Honor, is that the prosecutor needs to show that he did not systematically use his strikes to remove black members of the jury for the reason that they are black.

THE COURT: Okay. You have me at kind of a disadvantage. I think that Mrs. Randolph and Ms. Dorsey--

MS. WISDOM: No, sir, Ms. Lovett.

MR. McMURDIE: That's correct.

THE COURT: Okay, counsel, could you explain your strikes of the two jurors in question?

MR. McMURDIE: Certainly, Your Honor.

Concerning Ms. Lovett, it was my impression watching her during the voir dire process--First of all, I question her extreme age, young age, being nineteen, also she seemed distracted during the proceedings, kept looking down and away. And also, given her responses, it was my impression that she wasn't a particularly bright juror. Those are my reasons for striking her.

....

Concerning Ms. Randolph, I had some problems with her age, not on the young side, but on the other side, being somewhat elderly, seventy-three. And also she seemed distracted, and for the same reason, she didn't seem like a particularly bright juror. Those are my reasons.

The trial court made comments tending to substantiate the reasons articulated by the prosecutor.

Appellant contends he established a prima facie case under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and therefore the burden shifted to the prosecutor to articulate neutral explanations for its peremptory strikes and that the explanations given were insufficient. He asserts the only logical conclusion is that the prosecutor struck the black jurors on account of their race. Appellant points to the prosecutor's statement that each of the two jurors didn't seem "particularly bright" as indications of a racial motive.

The state argues appellant failed to establish a prima facie showing in the trial court. As the state correctly points out, the mere fact that a prosecutor exercised peremptory challenges against veniremen of a defendant's race does not necessarily establish a prima facie case. State v. Holder, 155 Ariz. 83, 745 P.2d 141 (1987). The supplemented record shows that the state peremptorily struck only two of the three black jurors on the panel. As our supreme court stated in Holder:

The court of appeals noted that the defendant here is black and that he claims that two members of his race were stricken from the jury by the state. From this alone, the court concluded that a prima facie case of prosecutorial discrimination had been established. Under Batson, the totality of the circumstances of the particular case must be examined to determine whether an inference of misconduct by the state has been established. In some instances, striking two members of a defendant's race, particularly if they are the only two, may be enough to support a finding of prima facie discrimination. However, we do not read Batson as requiring such a finding every time two members of a minority are stricken from a jury being selected to try a member of the same minority. (Emphasis added.)

Holder, 155 Ariz. at 87, 745 P.2d at 145. The state notes that many courts have determined no prima facie showing is made when the government excuses some but not all of the veniremen of the same race as defendant. See, e.g., United States v. Montgomery, 819 F.2d 847, 851 (8th Cir.1987); United States v. Dennis, 804 F.2d 1208 (11th Cir.1986) cert. denied, 481 U.S. at ----, 107 S.Ct. 1973-74, 95 L.Ed.2d 814. While we agree with these propositions, the trial court requested the prosecutor to explain his strikes and we therefore discuss the reasons articulated.

In Batson v. Kentucky, the Supreme Court stated:

Although a prosecutor ordinarily is entitled to exercise permitted peremptory challenges 'for any reason at all, as long as that reason is related to his view concerning the outcome' of the case to be tried, (cites omitted) the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant.

476 U.S. at 89, 106 S.Ct. at 1718-19, 90 L.Ed.2d at 82-3. The Batson court stated that a prosecutor's explanation need not rise to the level of justification to exercise a challenge for cause. But a prosecutor may not rebut a defendant's prima facie case merely by denying that he had a discriminatory motive. He must articulate reasons which satisfy a trial judge that his motive was not racial. Batson, 476 at 96-97, 106 S.Ct. at 1723, 90 L.Ed.2d at 88. The difficulty courts face in this area is determining whether the reasons given by a prosecutor are true or valid, rather than fictitious reasons designed to mask discriminatory motives.

In this case, after the prosecutor stated his reasons, the trial court responded:

THE COURT: I tend to agree with you as to the second juror, Counsel, and that is, at age 73, although she does appear to be--she didn't appear to be senile in any way, nor do I mean to indicate that Ms. Randolph doesn't appear to be a bright and articulate lady, I did have the feeling that when we were going through voir dire that her age may have had an effect on her ability to perhaps pay close attention to what was happening.

However, I would disagree with you as to the other juror, mainly because of her young age. First of all, I don't think people should be struck simply because of their age. However, as you well know, many of these folks come in here, not just--not just people of her age--we're talking about Ms. Lovett now.

MR. McMURDIE: That's correct, Your Honor.

THE COURT: But they are nervous, and I would imagine that a 19 year-old coming into a courtroom for the first time in her life and having to sit before a judge would tend to be somewhat nervous and tend to appear to be not paying attention.

However, I don't feel--even though I don't agree with you as to her abilities as a juror, I think that your reasoning for...