State v. Sandoval
| Decision Date | 10 March 1987 |
| Docket Number | No. 9444,9444 |
| Citation | 105 N.M. 696,1987 NMCA 41,736 P.2d 501 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Anthony SANDOVAL, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Defendant appeals multiple convictions for armed robbery and false imprisonment with firearm sentencing enhancement. Defendant initially raised seven issues on appeal including an assertion that the state improperly utilized its peremptory challenges to remove jurors of Hispanic heritage from the jury panel on the basis of their race. We reverse and remand for a new trial.
The prosecutor, by use of peremptory challenge, excluded the only two Hispanic jurors who could have served on the jury. Defendant moved for a mistrial based on the prosecutor's attempt to eliminate all members of defendant's race from the jury. Defendant in this case is of Hispanic background. The jury was selected from a panel of thirty-three prospective jurors. Of the thirty-three panel members, three were Hispanic: Solomon Hernandez, drawn as number one; Jose Lopez, drawn as number fifteen; and Mercy Castillo, drawn as number twenty-nine. The record indicates that the prosecutor, without explanation, struck from the jury venire Mr. Hernandez and Mr. Lopez, the only two Hispanic jurors with a chance of serving on the jury. Ms. Castillo was not directly involved because the numerical order in which she was drawn was high enough so that a jury was chosen before her number was reached.
On appeal, defendant argues that the recent United States Supreme Court decision, Batson v. Kentucky, 476 U.S. ----, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), altered the law applicable to the prosecutor's use of peremptory challenges, thus requiring reversal of defendant's convictions on equal protection grounds.
In Batson, the Supreme Court significantly modified the rules applicable to a prosecutor's use of peremptory challenges in criminal cases and overruled in part its earlier holding in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), concerning the evidentiary burden defendant must meet to establish purposeful discriminatory use of peremptory challenges that exclude members of an accused's racial group from the jury. Under Swain, a defendant was required to show systematic exclusion of jurors based upon race beyond the facts of his own case in order to rebut a presumption that the prosecutor utilized the state's peremptory challenges to obtain a fair and impartial jury.
The Supreme Court in Batson, however, recognized that the Equal Protection Clause of the federal Constitution limits the state's use of peremptory challenges. The Court held that a defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor's exercise of the state's peremptory challenges. Batson states in applicable part:
To establish such a case, the defendant first must show that he is a member of a cognizable racial group, Castaneda v. Partida, supra, 430 U.S., at 494, 97 S.Ct., at 1280, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits "those to discriminate who are of a mind to discriminate." Avery v. Georgia, supra, 345 U.S., at 562, 73 S.Ct., at 892 . Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. This combination of factors in the empanelling of the petit jury, as in the selection of the venire, raises the necessary inference of purposeful discrimination.
Id. --- U.S. at ----, 106 S.Ct. at 1723, 90 L.Ed.2d at 87-88.
The Court in Batson further stated that in deciding whether a defendant has made the requisite showing, the trial court should consider all relevant circumstances, including questions asked and statements made by the prosecutor during voir dire and in exercising the challenges.
Batson specifically cites Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977), to explain the basis of the prima facie case: "Once the defendant has shown substantial underrepresentation of his group, he has made out a prima facie case of discriminatory purpose, and the burden then shifts to the State to rebut that case." Id. at 495, 97 S.Ct. at 1280. In addition, Batson recognizes that a "pattern" of strikes against certain jurors may give rise to the inference of discrimination. --- U.S. at ----, 106 S.Ct. at 1723, 90 L.Ed.2d at 88.
The strict requirement in Swain was also rejected by this court before Batson in State v. Crespin, 94 N.M. 486, 612 P.2d 716 (Ct.App.1980). In Crespin, we noted that post-Swain United States Supreme Court cases infer that the challenge allowed in Swain may be too limited, and "that certain fact situations may arise where the defendant can overcome the presumption based entirely upon the facts of his own case." Id. at 487, 612 P.2d at 717. We held that improper, systematic exclusion by use of peremptory challenges can be shown (1) "by presenting facts beyond the instant case;" or (2) "where the absolute number of challenges in the one case raises the inference of systematic acts by the prosecutor." Id. at 488, 612 P.2d at 718. This court accordingly held that, where the prosecutor challenged only one black member of the jury venire, defendant did not meet his burden of overcoming the presumption of proper purpose. We note that Crespin has been modified by Batson in that a prima facie case may be established by substantial underrepresentation or any other relevant circumstances in addition to the absolute number of challenges in one case.
The state relies on State v. Davis, 99 N.M. 522, 660 P.2d 612 (Ct.App.1983). Davis is not controlling herein, however, because it was grounded in part on a portion of Crespin that has subsequently been modified by Batson. We now follow Batson. See also United States v. Chalan, 812 F.2d 1302 (10th Cir.1987) ().
Defendant complied with the requirements of Batson in order to establish a prima facie case of discriminatory purpose. Defendant made a requisite showing and alerted the trial court to the fact that the prosecutor used his peremptory challenges to remove the only two Hispanic jurors with a chance of serving on the jury. Batson does not require defendant to present evidence of additional circumstances in order to make a prima facie showing of discriminatory purpose. Cf. State v. Davis.
Defendant moved for a mistrial based upon the state's use of peremptory challenges. The following colloquy occurred:
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