State v. Ross

• Decision Date: 09 March 2021
• Docket Number: No. 1 CA-CR 19-0214,1 CA-CR 19-0214
• Parties: STATE of Arizona, Appellee, v. Jermon ROSS, Appellant.
• Court: Arizona Court of Appeals

250 Ariz. 629

483 P.3d 251

STATE of Arizona, Appellee,

v.Jermon ROSS, Appellant.

No. 1 CA-CR 19-0214

Court of Appeals of Arizona, Division 1.

FILED March 9, 2021

THUMMA, Judge:

¶1 The State used a peremptory strike against Prospective Juror 15, the only African American potential juror on the panel. Defendant Jermon Ross, who also is African American, objected under Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The State offered two grounds for the strike: (1) Prospective Juror 15 was "extremely inarticulate" and (2) Prospective Juror 15 had "blessed" Ross when entering the courtroom, by making the sign of the cross with his cane and saying "good luck, or nod[ing] good luck" to Ross. Ross disputed both explanations, arguing neither was supported by record evidence. The court rejected the "extremely inarticulate" explanation as unsupported by record evidence. The "blessing" explanation also was unsupported by record evidence. The court, however, accepted the "blessing" explanation as race-neutral, denied Ross’ Batson challenge and dismissed Prospective Juror 15.

¶2 With Prospective Juror 15 dismissed, the jury was seated and later found Ross not guilty of some serious felony offenses and guilty of others. The court sentenced Ross to lengthy prison terms.

¶3 Ross argues the rejection of the State's "extremely inarticulate" explanation was an implicit finding that the explanation was a pretext for racial discrimination, rendering the "blessing" explanation unconstitutionally tainted under State v. Lucas , 199 Ariz. 366, 18 P.3d 160 (App. 2001). In the alternative, Ross argues there was no record evidence supporting the "blessing" explanation, meaning the court erred in denying his Batson challenge because the State provided no proper race-neutral explanation for the strike.

¶4 Although it found the "extremely inarticulate" explanation unsupported by record evidence, the superior court did not find that explanation was race-based. Thus, the court's rejection of the "extremely inarticulate" explanation did not, under Lucas , taint the "blessing" explanation. But because the superior court could not properly rely on a disputed avowal describing purported in-courtroom physical conduct by a prospective juror as the basis for the "blessing" explanation, there was no record evidence allowing the court to conclude it was a race-neutral explanation for the strike. Accordingly, because the State provided no proper race-neutral explanation, the superior court erred in denying the Batson challenge and striking Prospective Juror 15. As a result, Ross’ convictions and sentences are vacated, and this matter is remanded for a new trial.

FACTS AND PROCEDURAL HISTORY

¶5 The State tried 16-year-old Ross as an adult on three counts of armed robbery, three counts of kidnapping, two counts of aggravated assault, and one count of endangerment for robbing a teenage couple with a baby and shooting another 16-year-old.

¶6 During voir dire, Prospective Juror 15 answered standard questions asked of all potential jurors, addressing his employment, marital and familial status and prior jury service. The superior court asked clarifying questions about his jury service. The transcript from that brief exchange is short and unremarkable. The parties did not ask any follow up questions of Prospective Juror 15. Although they asked specific questions of other potential jurors, the parties did not ask Prospective Juror 15 any questions when given the opportunity to do so. The parties did not challenge Prospective Juror 15 for cause and, after voir dire, the parties passed the panel (which included Prospective Juror 15) for cause.

¶7 After the State used a peremptory strike against Prospective Juror 15, the only African American potential juror, Ross raised a Batson challenge. Outside the presence of the potential jurors, the State then offered its two explanations, both of which it argued were race neutral.

¶8 In offering the "extremely inarticulate" explanation, the State claimed Prospective Juror 15 "had a very difficult time discussing his prior jury service or even what he did for a living." "Given the other jurors we have on the panel," the State continued, Prospective Juror 15's "personality .. wasn't going to mesh well with the other jurors. The other jurors are more articulate in their presentation of just about every aspect of it." The State added Prospective Juror 15 would not "be able to follow along with the complex arguments that are going to be made with regard to selfdefense and ... justification."

¶9 Ross countered that the State's explanation was insufficient. Ross noted that Prospective Juror 15's prior jury service, where he was foreperson, showed he was able to serve as a juror. Ross added: "I'm not sure why he's not going to mesh well with the other jurors, but, again, we believe this is a race-based challenge that's inappropriate." In rejecting the State's "extremely inarticulate" explanation, the court found the evidentiary record did not show Prospective Juror 15 was inarticulate. While noting he spoke "at his own pace" and "was a little slow in his answers," the court found there was nothing unusual about Prospective Juror 15's responses. Thus, the court concluded the "extremely inarticulate" explanation was unsupported by record evidence, meaning it did not constitute a proper race-neutral explanation for the State's strike.

¶10 Turning to the "blessing" explanation, the State avowed that when Prospective Juror 15 first "walked into the courtroom, he blessed the defendant. He took his cane and made the cross sign at [Ross] and said good luck, or nodded good luck, and then went and took his seat." The court interrupted, asking if anyone else saw the actions described and sought clarification. In response, the State again avowed that Prospective Juror 15 "came in right at the entrance, he took the cane that he uses to walk with, he went like this and mouthed good luck, and then went and took his seat." This avowal by the State, made as the trial day was ending just before 5:00 p.m., referred to an event that would have occurred when the potential jurors first entered the courtroom before 11:00 a.m. that same day.

¶11 At the time of the purported blessing, there were at least ten other trial participants in the courtroom, not counting any of the approximately 100 potential jurors. The court asked whether any of those ten or so trial participants saw the blessing. No one had, including other individuals at counsel table for the State. Ross’ counsel disputed the avowal, stating "we didn't see that." The State had not mentioned the issue during voir dire and there was no evidence in the record of the blessing. The State had not challenged Prospective Juror 15 for cause. The courtroom audio-visual recording did not capture the location where Prospective Juror 15 was standing when the incident would have occurred.

¶12 After noting an attorney is "an officer of this court," the superior court quickly added it "would be deeply troubled" if Prospective Juror 15 blessed Ross while walking into the courtroom. The court noted such conduct "would [implicate] a cause strike." The court added, however, "I'd give the same courtesy to any other officer of the court that I'd be giving to [the attorney avowing to the blessing], which is if he saw something like that, that would be a race-neutral reason." The court continued:

Simply in terms of the reference that [the attorney avowing to the blessing] made, if that is, in fact, something that he saw, and I take it you all observe these jurors and use that information in making your preliminary [sic] strikes, that's something undoubtedly [the State] would have used in making this strike, so, again the Batson challenge is respectfully denied.

¶13 The empaneled jury, which did not include Prospective Juror 15, found Ross not guilty of both counts of armed robbery, but found him guilty of attempted armed robbery, kidnapping, aggravated assault, and endangerment.

¶14 Ross moved for a new trial, again challenging the denial of his Batson challenge. At oral argument on the motion, the attorney who avowed to the blessing said "[m]y observations were my observations." The court denied Ross’ motion, cautioning it would be "better for future reference" if the State had raised the issue "in the morning or right before lunch," which would have allowed the issue to be addressed with Prospective Juror 15 during voir dire. After finding the disputed avowal about the "blessing" was "credible," the court concluded "the peremptory strike, in my view, was based on nonracially based reasoning." The court added that, had the court not accepted the avowal, "then that juror likely would have remained on the jury because I didn't think there was another reason, to my liking, that would have satisfied Batson ."

¶15 The court sentenced Ross to concurrent prison terms, the longest of which was 13.5 years, on six of the seven convictions, and a mandatory consecutive prison term of 10 calendar years for the seventh conviction. This court has jurisdiction over Ross’ timely appeal pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes (A.R.S.) §§ 12-120.21(A)(1), 13-4031 and 13-4033(A) (2021).¹

DISCUSSION

¶16 The denial of a Batson challenge is reviewed for clear error, with issues of law reviewed de novo. State v. Newell , 212 Ariz. 389, 400 ¶ 52, 132 P.3d 833, 844 (2006) (citing cases). The superior court is in the best position to assess credibility, meaning an appellate court grants "great deference" to that court's credibility findings in addressing an explanation offered for a strike. See Batson , 476 U.S. at 98 n.21, 106 S.Ct. 1712.

I. The Batson Standard.

¶17 The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution bars exercising a peremptory strike based on a juror's race. Batson , 476 U.S. at 89, 106 S.Ct. 1712. A Batson challenge...