State v. Jones

• Decision Date: 30 November 1995
• Docket Number: No. 15902,15902
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Reginald G. JONES, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 891

911 P.2d 891

121 N.M. 383

STATE of New Mexico, Plaintiff-Appellee, v. Reginald G. JONES, Defendant-Appellant.

No. 15902.

Court of Appeals of New Mexico.

Nov. 30, 1995.

Certiorari granted Feb. 16, 1996.

[121 N.M. 386] Appeal from the District Court of Lea County, Larry Johnson, District Judge.

Sammy J. Quintana, Chief Public Defender, Bruce Rogoff, Assistant Appellate Defender, Santa Fe, for Defendant-Appellant.

Tom Udall, Attorney General, Daniel F. Haft, Assistant Attorney General, Santa Fe, for Plaintiff-Appellee.

OPINION

DONNELLY, Judge.

1. Defendant appeals his convictions of armed robbery and attempted armed robbery. On appeal he raises the following issues: (1) whether the prosecution's use of a peremptory challenge to remove the only Black juror who could have served on the twelve-person jury panel requires reversal; (2) whether the trial court erred in denying Defendant's motion for severance; (3) whether the State committed reversible error in failing to disclose a statement made by Defendant; (4) whether the trial court erred in denying Defendant's motion to suppress eyewitness identification; (5) Defendant's claim that the jury was improperly coerced into reaching a verdict; and (6) whether Defendant was denied effective assistance of counsel. We affirm.

FACTUAL BACKGROUND

2. Defendant was arrested and charged with attempted armed robbery of an Allsup's Convenience Store in Hobbs, New Mexico, on November 26, 1993. Shortly after his arrest, Defendant was charged with the commission of a prior armed robbery of another Allsup's Convenience Store six days earlier on November 20, 1993. Defendant entered a plea of "not guilty" to both offenses and the case was set for jury trial on June 13, 1994.

3. During jury selection the prosecution exercised three peremptory challenges striking two Hispanic jurors and one Black juror. The prosecution's second peremptory challenge struck Robert Tyson. Tyson was of the same racial background as Defendant.

4. Of the twenty-nine jurors whose names appeared on the jury panel, only two were Black--Tyson and Edward McBride. When the State exercised its second peremptory challenge to strike Tyson, defense counsel objected and noted that Tyson was the only Black who had a chance of serving on the panel. The other Black, Edward McBride, was chosen as an alternate.

5. After Defendant objected to the State's peremptory challenge of Tyson, the trial court requested that the prosecutor explain the reasons for exercising this challenge. The prosecutor responded that he had challenged Tyson because he had "failed to establish eye contact with the State during questioning" and because he "seemed not to be possessed of a certain degree of assertiveness which the State prefers to have in jurors."

6. The trial court overruled Defendant's objection to the State's peremptory challenge of Tyson, stated that the prosecutor had given a reasonable explanation for exercising its peremptory challenge, and upheld the State's peremptory challenge.

I. THE PEREMPTORY CHALLENGE

7. Defendant, relying in part on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and its New Mexico progeny, argues that the trial court erred in permitting the State's use of a peremptory challenge on Tyson, and asserts that the reasons articulated by the State for the challenge failed to overcome Defendant's prima facie showing that the challenge was racially motivated. In advancing this claim, Defendant also relies on the Equal Protection Clauses of both the New Mexico Constitution and the United States Constitution.

8. In State v. Sandoval, 105 N.M. 696, 699, 736 P.2d 501, 504 (Ct.App.1987), this Court observed that

although a prosecutor ordinarily is entitled to exercise peremptory challenges for any reason as long as that reason is related to his view concerning the outcome of the case to be tried, [the United States Supreme Court, in Batson, 476 U.S. at 89, 106 S.Ct. at 1719 has held,] "the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that [jurors of the same race] as a group will be unable impartially to consider the State's case against [the] defendant."

Similarly, in State v. Gonzales, 111 N.M. 590, 595, 808 P.2d 40, 45 (Ct.App.), cert. denied, 111 N.M. 416, 806 P.2d 65 (1991), this Court recognized that a prosecutor's intentional use of a peremptory challenge to strike a juror for reasons of race violated the defendant's right to an impartial jury guaranteed by Article II, Section 14 of the New Mexico Constitution. The Gonzales Court, relying on Article II, Sections 14 and 18 of the New Mexico Constitution, also held that such provisions preclude the state from using its peremptory challenges to strike jurors in criminal cases because of their gender. Id. at 598, 808 P.2d at 48.

9. In order to make a prima facie showing that a prosecutor's exercise of a peremptory challenge was racially motivated (the first step in the Batson trilogy), Defendant must show that

(1) he is a member of a cognizable racial group; (2) the state has exercised its peremptory challenges to remove members of that group from the jury panel; (3) these facts and any other relevant circumstances raise an inference that the state used its challenges to exclude members of the panel solely on account of their race.

Id. at 596, 808 P.2d at 46 (quoting State v. Goode, 107 N.M. 298, 301, 756 P.2d 578, 581 (Ct.App.), cert. denied, 107 N.M. 308, 756 P.2d 1203 (1988)). Whether Defendant has made a prima facie case of purposeful discrimination constitutes a factual question. State v. Moore, 109 N.M. 119, 126, 782 P.2d 91, 98 (Ct.App.), cert. denied, 109 N.M. 54 781 P.2d 782 (1989). The State concedes that Defendant satisfied the first two steps necessary to establish a prima facie showing that the challenge was racially motivated. It argues, however, that

[e]ven assuming, arguendo, that Defendant satisfied the third element of his prima facie case and ... the first step of the Batson inquiry, [he] nevertheless failed to prove--in the third and final step of the inquiry--that the ... prosecutor's asserted reason for the strike was pretextual and therefore racially motivated.

10. After reviewing the record in light of the test articulated in Batson and Sandoval, we agree with Defendant that his trial counsel made a prima facie showing that the State violated the Equal Protection Clauses of both the New Mexico Constitution and the United States Constitution. See Goode, 107 N.M. at 301, 756 P.2d at 581 (showing that state's challenge had eliminated the only member of the defendant's race from the jury raises inference of racial discrimination). A prima facie showing of discrimination, however, does not terminate the judicial inquiry.

11. Once Defendant has made a prima facie showing of racial discrimination, the prosecution is then required to justify its use of the peremptory challenge by showing that the challenge was grounded upon a specific good-faith, racially neutral reason. Id. As observed in Batson, the explanation given by the prosecution must be facially (1) neutral, (2) related to the case in issue, (3) supported by clear and reasonably specific reasons, and (4) legitimate (the second step in Batson ). Batson, 476 U.S. at 96-98, 106 S.Ct. at 1722-24. Implicit in the holding of Batson, and subsequent New Mexico decisions that have followed in Batson 's wake, is the requirement that the trial court satisfy itself with the legitimacy of the prosecution's explanation. This is the third step in the Batson process. When a prima facie showing of discrimination has been made by the party opposing the challenge, and the other party responds with an explanation which is at least facially neutral, then in the third Batson step the trial court must carefully scrutinize the reason given for the use of the challenge. Any automatic approval of any nonracial explanation for the exercise of a peremptory challenge, irrespective of the legitimacy of such assertion, would undermine the central rationale of Batson that "the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that [jurors of the same ethnic background] as a group will be unable impartially to consider the State's case against [the] defendant." Batson, 476 U.S. at 89, 106 S.Ct. at 1719. A "legitimate reason" is a reason that does not deny equal protection. Purkett v. Elem, --- U.S. ----, ----, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834 (1995) (citing Hernandez v. New York, 500 U.S. 352, 359, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395 (1991)).

12. In evaluating the reasons advanced for the use of a peremptory challenge (the third step), the trial court may not merely accept the State's proffered reasons, but must consider such explanations based on all of the surrounding circumstances and determine whether the reasons advanced are genuine and reasonable. Gonzales, 111 N.M. at 597, 808 P.2d at 47; Goode, 107 N.M. at 302, 756 P.2d at 582. On appeal, we review claims that a peremptory challenge was motivated by race or gender reasons under an abuse of discretion standard. See State v. Arteaga, 257 Kan. 874, 896 P.2d 1035, 1040 (1995). The trial court's determination of whether Defendant has carried his burden of showing that the State has intentionally discriminated on the basis of race or gender is a finding of fact which will not be overturned on appeal if supported by substantial evidence. Gonzales, 111 N.M. at 597, 808 P.2d at 47; Goode, 107 N.M. at 302, 756 P.2d at 582. In determining the validity of the explanation given, the trial court may properly assess whether other venirepersons of a different gender or ethnic background from that of Defendant and the juror in question were struck for the same or similar reasons. Gonzales, 111 N.M. at 596, 808 P.2d at 46; Goode, 107 N.M. at 302, 756...