State v. Reyes

• Decision Date: 26 December 1989
• Docket Number: CA-CR,No. 1,1
• Citation: State v. Reyes, 788 P.2d 1239, 163 Ariz. 488 (Ariz. App. 1989)
• Parties: STATE of Arizona, Appellee, v. Esteban REYES, Appellant. 88-1216.
• Court: Arizona Court of Appeals

Page 1239

788 P.2d 1239

163 Ariz. 488

STATE of Arizona, Appellee, v. Esteban REYES, Appellant.

No. 1 CA-CR 88-1216.

Court of Appeals of Arizona Division 1, Department B.

Dec. 26, 1989.

Review Denied April 17, 1990.

Robert K. Corbin, Atty. Gen. by Jessica G. Funkhouser, Chief Counsel, Criminal Div., and Diane M. Ramsey, Asst. Atty. Gen., Phoenix, for appellee.

Dean W. Trebesch, Maricopa County Public Defender by Paul C. Klapper, Deputy Public Defender, Phoenix, for appellant.

VOSS, Judge.

In this appeal, we consider whether the prosecutor's exercise of peremptory challenges to strike one Black and two Hispanic members from the jury panel was discriminatory in violation of the equal protection clause of the Fourteenth Amendment to the United States Constitution, or the right to an impartial jury under the Sixth and Fourteenth Amendments to the United States Constitution.

Appellant, Esteban Reyes, was convicted by a jury of aggravated assault, and second degree murder. The charges were filed as a result of a fight in the parking lot of a bar, where appellant shot two people, killing one of them.

Appellant is Hispanic. During jury selection, the prosecutor used peremptory challenges to strike one Black and two Hispanic members from the jury panel. Appellant's counsel objected on the grounds that the peremptory strikes were racially motivated. The trial court overruled the objection.

Appellant raises two challenges to the prosecutor's peremptory strikes: 1) that the strikes violated the equal protection clause of the Fourteenth Amendment; and 2) that the strikes violated his right to an impartial jury under the Sixth and Fourteenth Amendments.

The state has no right to exclude any particular cognizable group from a jury panel for discriminatory reasons. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); State v. Superior Court (Gardner), 157 Ariz. 541, 760 P.2d 541 (1988), petition for cert. filed sub nom. Arizona v. Nastro (U.S. Dec. 17, 1988) (No. 88-1037). A trial court must carefully evaluate peremptory challenges, because "[such] challenges constitute a jury selection practice that permits 'those to discriminate who are of a mind to dis criminate.'.' " Batson, 476 U.S. at 96, 106 S.Ct. at 1723 (quoting Avery v. Georgia, 345 U.S. 559, 562, 73 S.Ct. 891, 892, 97 L.Ed. 1244, 1247-48 (1953)).

Under an equal protection analysis, a defendant may contest peremptory strikes against the members of his racial group. Batson, 476 U.S. at 96, 106 S.Ct. at 1722; State v. Bailey, 160 Ariz. 277, 281, 772 P.2d 1130, 1134 (1989). In this case, the state struck two persons with Hispanic surnames from the jury panel. Hispanics are a cognizable racial group for equal protection purposes. Castaneda v. Partida, 430 U.S. 482, 495, 97 S.Ct. 1272, 1280, 51 L.Ed.2d 498, 511 (1977); State v. Acosta, 125 Ariz. 146, 150, 608 P.2d 83, 87 (App.1980).

The state's use of peremptory challenges to strike two Hispanics and the Black member from the jury panel was a potential violation of appellant's right under the Sixth and Fourteenth Amendments to an impartial jury drawn from a cross section of the community. Our supreme court has held that excluding a member of a cognizable group in a discriminatory manner, whether or not the defendant is a member of that cognizable group, violates that defendant's right to a jury taken from a fair cross section of the community. "Any discriminatory exclusion from either the jury panel or the trial jury directly impairs the constitutional right to the opportunity to obtain a jury drawn from a fair cross-section of the community." Gardner, 157 Ariz. at 545, 760 P.2d at 545.

The state, therefore, may not use peremptory challenges to discriminate against any cognizable group, whether or not the defendant is a member of that group. Objections to such challenges present two difficult factual issues: first, determining when the defendant has made a prima facie showing that a peremptory strike of any member of a cognizable group is made for discriminatory reasons, and, second, once a prima facie showing is made, determining whether the prosecutor's stated reasons for the strike are sufficiently neutral to rebut the allegation of discrimination. Batson, 476 U.S. at 94-98, 106 S.Ct. at 1722-23, 90 L.Ed.2d at 86-89. Because the trial court apparently found that appellant made a prima facie showing of discrimination by requesting the prosecutor to state reasons for his strikes, we only consider the latter. See State v. Jackson, 157 Ariz. 589, 592, 760 P.2d 589, 592 (App.1988).

To ensure that no discriminatory intent underlies a facially neutral explanation, a prosecutor is required to state objectively verifiable reasons for a challenged peremptory strike. State v. Tubbs, 155 Ariz. 533, 537, 747 P.2d 1232, 1236 (App.1987).

In framing his Batson objection, defense counsel inquired of the state as to its "reasons for striking [the] specific jurors." In response, there was initial discussion of what minorities remained after the state's peremptory challenges. Our reference to this discussion is necessitated by the dissent's conclusion that "[t]he prosecutor ... struck all members of racial minorities from the panel." While conceding that there was a discussion between the court and counsel, on what minorities remained, the dissent puts some weight on the fact that there was no "finding" that minorities remained. We do not believe that a finding as to remaining minorities is necessary in the instant case, as the prima facie showing is conceded. See Bailey, 160 Ariz. at 281, 772 P.2d at 1134 (racial make-up of final jury panel important consideration in establishing defendant's prima facie showing). In any event, the record supports a conclusion, albeit irrelevant, that minorites remained.

The discussion then moved to the reasons for striking the specific jurors. The prosecutor justified his strike of the Black member of the panel because of his and his family's significant criminal involvement, some of which was not readily disclosed in voir dire. The trial court likewise expressed concern about this panel member's holding back answers. The prosecutor explained striking the Hispanic woman because she appeared "overwhelmed" and "might have trouble following the proceedings," an impression shared by the trial court. The prosecutor also stated that the Hispanic woman appeared to be a "sympathetic type person," and she was pregnant, and therefore, the prosecutor believed, she would have "difficulty finding someone guilty of homicide."

The trial court's concurrence and acceptance of the prosecutor's racially neutral explanations regarding the first two strikes clearly comply with Batson. Bailey, 160 Ariz. at 281, 772 P.2d at 1134. We need not address whether the prosecutor's second proferred basis concerning the Hispanic female was sufficiently race neutral. See Tubbs, 155 Ariz. at 537, 747 P.2d at 1236 ("While it is true that an elusive, intangible explanation for exclusion might not qualify as racially neutral, such is not the case when the explanation is coupled with an objectively verifiable reason.").

The third strike involved an Hispanic male. In explaining the basis for this strike the prosecutor first stated that this panel member "has a sister who is spending time in prison for assault; one of the charges against the defendant." The prosecutor later reasserted this factor as his primary reason for the strike. The prosecutor separately added that because of the panel member's age and appearance (ie: his poor dress), he might be of an economic background such that he would relate sympathetically to the defendant's involvement in a working-class barroom fight.

The trial court did not question the first basis given by the prosecutor for striking the Hispanic male. However, the trial court asked the prosecutor to explain in greater detail his second proferred basis. The prosecutor repeated his impressions and further noted this panel member's job as a grocery clerk. He commented that whereas his explanation might sound like economic discrimination, his real concern was with this panel member's propensity to sympathize with the defendant.

As discussed both above and by the dissent, the trial court correctly found that the first two strikes were without discriminatory intent. In discussing those strikes the trial court twice articulated the test it was applying to the matter before it:

[T]he answers that concerned this Court as to his ability to sit as a fair and impartial juror did not raise questions of race, or minority, or economic status, or any of the Batson categories.

... I certainly did not feel that those reactions had anything to do with race, or minority, or economic status, or any of the other Batson categories.--categories that Batson wished to address.

The trial court then moved to the third strike and stated:

Based upon all of [the Hispanic panel member's] answers, and all of the argument of both counsel, and as to whether or not there's a pattern that's developed here, I cannot find grounds upon which to say that there has been such a pattern as what the Batson case was addressing.

The dissent places great weight on the trial court's use of the term "pattern" in concluding that the trial court articulated and applied the wrong test regarding the third strike. It certainly is correct that a if the trial court only examined whether there was a "pattern of discrimination," then that would be insufficient under Batson. However, a fair and reasonable review of the record demonstrates that the trial court applied the correct test...