State v. Katzorke

• Decision Date: 06 November 1990
• Docket Number: No. 2,CA-CR,2
• Citation: State v. Katzorke, 810 P.2d 597, 167 Ariz. 599 (Ariz. App. 1990)
• Parties: The STATE of Arizona, Appellee, v. Gene Edward KATZORKE, Appellant. 89-0260.
• Court: Arizona Court of Appeals

Page 597

810 P.2d 597

167 Ariz. 599

The STATE of Arizona, Appellee, v.Gene Edward KATZORKE, Appellant.

No. 2 CA-CR 89-0260.

Court of Appeals of Arizona Division 2, Department A.

Nov. 6, 1990.

Reconsideration Denied Dec. 28, 1990.

Review Denied May 21, 1991.

[167 Ariz. 600] Robert K. Corbin, The Atty. Gen. by Jessica Gifford Funkhouser and Bruce M. Ferg, Tucson, for appellee.

Susan A. Kettlewell, Pima County Public Defender by Frank P. Leto, Tucson, for appellant.

OPINION

LIVERMORE, Presiding Judge.

Defendant was convicted of negligent homicide and negligent child abuse for the death of his wife's nine-month-old child.Because of an error in the jury selection process, we reverse.

The prosecutor used a peremptory challenge to remove the only black juror.Defense counsel objected, citing Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69(1986), a case holding that a minority defendant could object on equal protection grounds to a prosecutor's use of peremptory challenges to strike jurors of the defendant's race, and demanded an explanation for the exclusion of the sole black juror.The trial judge refused, apparently on the ground that defendant, a Hispanic, had no standing to object to the exclusion of jurors from differing races.

Batson, by its terms, appears to require that the defendant be of the same cognizable racial group as the stricken juror.In State v. Superior Court, 157 Ariz. 541, 760 P.2d 541(1988), our supreme court avoided that requirement and granted standing to challenge racially motivated exclusions of jurors to a defendant of a different race, by premising that result on the sixth amendment right to an impartial jury.But that interpretation of the federal constitution was subsequently rejected in Holland v. Illinois, 493 U.S. 474, 110 S.Ct. 803, 107 L.Ed.2d 905(1990).

Accordingly, it was error in this case not to inquire into potential racial motivation for the use of peremptory challenges only if the equal protection clause itself protects against such exclusion regardless of the defendant's race.For the reasons stated by Justice Kennedy, concurring in Holland, we believe that it does.Justice Kennedy noted that racially motivated exclusion violates the juror's constitutional rights, and then went on to state:

Many of the concerns expressed in Batson, a case where a black defendant objected to the exclusion of black jurors, support as well an equal protection claim by a defendant whose race or ethnicity...