Jefferson County District Court No. 08CR3480. Honorable Tamara S. Russell, Judge.
John W. Suthers, Attorney General, Gabriel P. Olivares, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
Robert S. Berger, P.C., Robert S. Berger, Denver, Colorado, for Defendant-Appellant.
Casebolt and Ashby, JJ., concur.
[¶1] Defendant, Donald Roy Lucero, appeals the judgment of conviction entered on jury verdicts finding him guilty of violating the Colorado Organized Crime Control Act, conspiracy, burglary, and three counts of theft.
[¶2] This case involves a single issue: whether the trial court erred in finding that defendant did not establish a prima facie case of discrimination under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), after the People waived the use of a peremptory strike, thereby excluding from the jury a potential juror with a Hispanic surname. We conclude that the court did not err and therefore affirm the conviction.
[¶3] On the first day of trial, twenty-two potential jurors were seated in the jury box for voir dire. The court stated that there would be no alternate jurors, and the People and defendant would each have five peremptory
challenges. The court asked preliminary questions, and then the People and defense counsel spoke with the prospective jurors for thirty minutes. Both defendant and the People passed the twenty-two person venire for cause.
[¶4] Although the jurors were assigned to seats one through twenty-two, peremptory challenges were to be used against jurors in seats one through twelve only, with replacements taken in order from seats thirteen to twenty-two, a process known as the " struck jury" system. The court explained:
At the end of that time, I'm going to ask each side to dismiss or give them the opportunity to dismiss five people. So five plus five is 10, 22 minus 10, the 12 people that are left over are going to be our jurors.
Juror P., the only potential juror with a Hispanic surname, was seated in the twenty-second chair.
[¶5] Nothing in the record indicates that the People used their challenges against anyone with a Hispanic surname. The People and defendant each struck two potential jurors. The People waived their third peremptory challenge and accepted the panel. Defendant exercised his third challenge, giving the People another opportunity to exercise a peremptory challenge; they again accepted the panel. Defendant exercised his fourth challenge, and the People exercised their third peremptory to strike the replacement juror. Defendant exercised his fifth challenge, and the People exercised their fourth challenge to strike that replacement juror. The People then accepted the panel again. Because the People did not exercise their fifth challenge, Juror P. was not on the final jury panel and was excused.
[¶6] The court inquired whether the parties had any objection pursuant to Batson. Defense counsel indicated that he had a problem with how the peremptory challenges had been used. The court clarified that defense counsel was referring to Juror P.
[¶7] The following discussion ensued:
The Court : You have a Batson  challenge to the way the peremptories were used?
Defense : Well, Judge, [defendant] just feels there is [sic] no Hispanics present in the jury, and that there was one Hispanic that was let go. He just wanted me to bring that up, that he should have been empanelled also.
. . .
Prosecutor : Your Honor, I didn't exercise any challenges to Mr. P. I take that as being an objection to the veneer [sic] as it exists. I don't think there is a requirement that if you are a Hispanic and you are the defendant, that you are entitled to a certain amount of Hispanic jurors, only that you're entitled to a fair cross-examination [sic] of the community of his peers. I believe he has received a fair cross-section of the community of his peers.
The Court : I do believe that Batson or Wheeler has to do with the systematic exclusion of someone for an impermissible reason, race, ...