Yazzie v. State

• Decision Date: 01 June 2021
• Docket Number: S-19-0200,S-20-0251
• Citation: 2021 WY 72
• Parties: STEWART ROY YAZZIE, Appellant (Defendant), v. THE STATE OF WYOMING, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

2021 WY 72

STEWART ROY YAZZIE, Appellant (Defendant), v. THE STATE OF WYOMING, Appellee (Plaintiff).

S-19-0200

S-20-0251

SUPREME COURT, STATE OF WYOMING

APRIL TERM, A.D. 2021

June 1, 2021

Appeal from the District Court of Campbell County

The Honorable Michael N. Deegan, Judge

Representing Appellant:

Office of the Public Defender: Diane M. Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; Professor Lauren McLane, Faculty Director, Andrew Sickenberger, Student Director, Stormi Chrest, Student Intern, Andrea Griena, Student Intern, and Nathan Yanchek, Student Intern, of the Defender Aid Clinic, University of Wyoming, College of Law. Argument by Mr. Yanchek.

Representing Appellee:

Bridget L. Hill, Attorney General; Jenny L. Craig, Deputy Attorney General; Joshua C. Eames, Senior Assistant Attorney General; Timothy P. Zintak, Senior Assistant Attorney General. Argument by Mr. Zintak.

Before DAVIS, C.J., and FOX, KAUTZ, and GRAY, JJ., and CONDER, D.J.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.

FOX, Justice.

[¶1] A jury found Stewart Yazzie guilty of conspiracy to commit aggravated robbery after the State used two peremptory challenges to strike the only minority jurors in the venire. Mr. Yazzie's trial counsel did not question the State's use of its peremptory challenges. Instead, his appellate counsel filed a W.R.A.P. 21 motion asserting Mr. Yazzie's trial attorney provided ineffective assistance of counsel when he failed to raise a challenge under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The district court denied that motion, and we affirm.

ISSUES

[¶2] We rephrase the issues:

I. Can a Batson claim not raised at the trial court be raised on direct appeal?

II. Is the failure to raise a Batson challenge structural error when it is brought in the context of an ineffective assistance of counsel claim?

III. Did the district court correctly rule that trial counsel was not ineffective when he failed to raise a Batson challenge?

IV. Did the district court have a duty to raise Batson on its own under the facts of this case?

FACTS

[¶3] Mr. Yazzie is a member of the Navajo tribe. By the time the State and the defense had passed the jury for cause, there remained 31 jurors in the venire. Two of them, Juror #59 and Juror #116, were "visibly minorities." Juror #59 was Hispanic, and Juror #116 was Native American. The State used two of its peremptory challenges to strike those jurors resulting in a jury that appeared to consist entirely of Caucasians. The jury found Mr. Yazzie guilty of conspiracy to commit aggravated robbery. Mr. Yazzie appealed and then filed a W.R.A.P. 21 motion asserting he received ineffective assistance of counsel.

[¶4] Mr. Yazzie's trial counsel filed an affidavit explaining that he did not "raise a Batson challenge regarding the strike of [Juror #116 and Juror #59] because I did not think the challenge would be successful." He believed a successful Batson challenge required a showing of a "continuous pattern of discrimination," which the Wyoming Public Defender's office could not show.

[¶5] The prosecuting attorney testified at the Rule 21 hearing that he had no knowledge whether Mr. Yazzie or the two jurors were members of a minority. He explained he struck Juror #59 because he:

A. . . . responded affirmatively to [defense counsel's] question of whether people wanted to be here or not, and he said he did not want to be here. And more concerning, he said "I'm the only one that's willing to say it." Implying that other people did not want to be there and did not want to serve on the jury.

Q. And you thought this would be adverse to you in this case?

A. I think it would be adverse to the process of justice generally, not just the State.

[¶6] He listed several reasons for striking Juror #116, the juror identified as Native American:

Q. Okay. Let's talk a little bit about [Juror #116]. Why did you strike [Juror #116]?

A. There were a couple of reasons. This case was going to be about witness credibility, weighing the evidence, those types of things.

I think the value of having a spouse, having children, and having a job that interacts with the public on a regular basis is all going to help that. [Juror #116] didn't have any of those. He was single, he didn't have any children. He had a stock position, a stockman's position where he was putting cans on the shelf at night at Albertson's. And then when he appeared at the voir dire, he advised he was an industrial cleaning services person. So there was also my concern that he was -- he also had just recently changed jobs.

I believe I asked in my normal voir dire whether anybody has a reason to have their mind be wandering, or to have some issue going on outside of the hearing. His continued job or new job, especially if I was in his situation I would be concerned about making sure I continued to appear at my job and maintain that, so that was concerning it was a new job.

Additionally, in reviewing the paperwork, and I don't have specific information that I recall this, but what jumped out at me is that he advised that he was a resident of Campbell County for four years on his questionnaire, but advised it was six years at the time he was in the jury, or in the jury panel voir dire process.

In addition, the State's attorney noted that Juror #116 indicated on his juror questionnaire that he or a family member had been a complainant, defendant, or witness in a criminal case.

[¶7] Mr. Yazzie argued that those reasons applied to several other jurors and therefore could not survive a Batson challenge. The district court found, however, that the State's proffered race-neutral reasons for striking the two jurors were credible. Mr. Yazzie appealed that ruling, and that appeal was consolidated with his original appeal.

DISCUSSION

[¶8] Peremptory challenges, though not required by the constitution, "traditionally have been viewed as one means of assuring the selection of a qualified and unbiased jury." Batson, 476 U.S. at 91, 106 S.Ct. at 1720. A peremptory challenge, unlike a challenge for cause, does not require persuading the judge of a prospective juror's bias or other disqualification. Compare Wyo. Stat. Ann. § 7-11-103 and § 7-11-105. "The essential nature of the peremptory challenge is that it is one exercised without a reason stated, without inquiry and without being subject to the court's control." Swain v. Alabama, 380 U.S. 202, 220, 85 S.Ct. 824, 836, 13 L.Ed.2d 759 (1965) (citations omitted), overruled on other grounds by Batson, 476 U.S. 79, 106 S.Ct. 1712. The conflict that Batson was intended to address lies in the intersection of the inscrutability of the peremptory challenge and the constitutional right to equal protection of the laws. Batson, 476 U.S. at 89, 106 S.Ct. at 1719.

[¶9] The Supreme Court has recognized since 1880 that "the State denies a [B]lack defendant equal protection of the laws when it puts him on trial before a jury from which members of his race have been purposefully excluded." Batson, 476 U.S. at 85, 106 S.Ct. at 1716 (citing Strauder v. West Virginia, 10 Otto 303, 100 U.S. 303, 25 L.Ed. 664 (1880), abrogated by Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975)). The Court addressed discrimination in the selection of the jury venire in a series of cases after Strauder. See, e.g., Neal v. Delaware, 13 Otto 370, 103 U.S. 370, 397, 26 L.Ed. 567 (1880); Martin v. Texas, 200 U.S. 316, 321, 26 S.Ct. 338, 339, 50 L.Ed. 497 (1906); Norris v. Alabama, 294 U.S. 587, 599, 55 S.Ct. 579, 584, 79 L.Ed. 1074 (1935); Akins v. Texas, 325 U.S. 398, 403, 65 S.Ct. 1276, 1279, 89 L.Ed. 1692 (1945); Thiel v. S. Pacific Co., 328 U.S. 217, 223-24, 66 S.Ct. 984, 987-88, 90 L.Ed. 1181 (1946); Carter v. Jury Comm'n of Greene Cnty., 396 U.S. 320, 330, 90 S.Ct. 518, 523-24, 24 L.Ed.2d 549(1970). In Swain, 380 U.S. 202, 85 S.Ct. 824, the Court took on the application of equal protection to the State's use of peremptory challenges, establishing a rule that required a defendant to prove that the prosecutor repeatedly struck Black jurors over a series of cases to establish an equal protection violation. In Batson, the Court recognized that "interpretation of Swain has placed on defendants a crippling burden of proof," and it adopted a new framework for establishing an equal protection violation in the use of peremptory strikes. Id. at 92, 106 S.Ct. at 1721.

[¶10] A Batson challenge is a three-step process. Pickering v. State, 2020 WY 66, ¶ 15, 464 P.3d 236, 245 (Wyo. 2020) (citing Batson, 476 U.S. at 89, 106 S.Ct. at 1719).

First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race; second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question; and third, in light of the parties' submissions, the trial court must determine whether the defendant has shown purposeful discrimination.

Pickering, 2020 WY 66, ¶ 15, 464 P.3d at 245 (emphasis omitted) (quoting Foster v. Chatman, 578 U.S. at —, 136 S.Ct. 1737, 1747, 195 L.Ed.2d 1 (2016)). The "burden of persuasion rests with, and never shifts from, the opponent of the strike." Johnson v. California, 545 U.S. 162, 171, 125 S.Ct. 2410, 2417, 162 L.Ed.2d 129 (2005) (citation omitted).

[E]ven if the State produces only a frivolous or utterly nonsensical justification for its strike, the case does not end-it merely proceeds to step three. The first two Batson steps govern the production of evidence that allows the trial court to determine the persuasiveness of the defendant's constitutional claim. It is not until the third step that the persuasiveness of the justification becomes

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