City and County of Denver District Court No. 12CR1205 Honorable John W. Madden IV, Judge
John W. Suthers, Attorney General, Kevin E. McReynolds, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Law Firm of Michelle Lazar, Michelle L. Lazar, Denver, Colorado, for Defendant-Appellant
¶ 1 Defendant Heather Beauvais appeals the judgment of conviction entered on a jury verdict finding her guilty of stalking. We remand the case to the trial court with directions that it make additional findings concerning Beauvais's challenge under Batson v. Kentucky, 476 U.S. 79 (1986).
¶ 2 Beauvais was charged with extortion and three counts of stalking after she repeatedly called, emailed, and sent text messages to a man she had met on the Internet. The jury found Beauvais guilty of one count of stalking under section 18-3-602(1)(c), C.R.S. 2014. Beauvais now contends that the trial court committed reversible error in the jury selection process. She also contends that section 18-3-602(1)(c) is unconstitutional.
II. Batson Challenge
¶ 3 Beauvais first contends that the trial court clearly erred by failing to sustain her Batson challenge to the prosecution's use of peremptory challenges to excuse potential jurors on account of their gender. We conclude that the record is insufficient to all us to determine whether the trial court's ruling was clearly erroneous, and therefore remand the matter to the trial court for additional findings.
A. Applicable Law and Standard of Review
¶ 4 Batson reaffirmed that purposeful racial discrimination in jury selection violates a defendant's rights under the Equal Protection Clause of the Fourteenth Amendment. 476 U.S. at 85-87; see Fields v. People, 732 P.2d 1145, 1155 (Colo. 1987) (applying Batson). The Equal Protection Clause also prohibits gender discrimination in jury selection. See J.E.B. v. Alabama, 511 U.S. 127, 131 (1994) (applying Batson to prohibit gender discrimination in jury selection); People v. Gandy, 878 P.2d 68, 70 (Colo.App. 1994) (applying J.E.B.).
¶ 5 Accordingly, the prosecution may not use peremptory challenges to "purposefully discriminate" against potential jurors due to either race or gender. See People v. Collins, 187 P.3d 1178, 1181 (Colo.App. 2008). Where a criminal defendant claims the prosecution used its peremptory challenges to excuse potential jurors on the basis of gender, the defendant bears the burden of showing purposeful discrimination. Cf. Purkett v. Elem, 514 U.S. 765, 768 (1995) ("[T]he ultimate burden of persuasion regarding racial motivation [for exercising peremptory challenges] rests with, and never shifts from, the opponent of the strike.").
¶ 6 Courts evaluate claims of discriminatory jury selection using the three-step analysis set forth in Batson:
(1) First, the defendant must make a prima facie showing that the state used its peremptory challenges to exclude potential jurors due to their gender. See 476 U.S. at 93-97.
(2) Next, if the defendant makes that showing, the burden shifts to the prosecution to articulate a gender-neutral reason for excluding the jurors in question. Id. at 97.
(3) Finally, if the state can articulate a gender-neutral explanation for its challenges, then the trial court must give the defense an opportunity to challenge that explanation, before determining whether the defendant has carried her burden of proving purposeful discrimination.
People v. Saiz, 923 P.2d 197, 206 (Colo.App. 1995); see also People v. Cerrone, 854 P.2d 178, 185 (Colo. 1993).
¶ 7 Beauvais challenges the trial court's determination at the third Batson step. At step three, the trial court must review all the evidence to decide "whether the opponent of the strike has shown, by a preponderance of evidence, that the proponent of the strike sought to exclude a potential juror because of a discriminatory reason." Collins, 187 P.3d at 1182. "The decisive question" at this step is whether counsel's gender-neutral explanation for a peremptory challenge "should be believed." Id.; see also Snyder v. Louisiana, 552 U.S. 472, 477 (2008). In answering that question, the court may consider, among other factors, "the proponent's demeanor, how reasonable or improbable the proponent's explanations are, and whether the proffered rationale has some basis in accepted trial strategy." Collins, 187 P.3d at 1182. The trial court is in a far better position than a reviewing court to make such credibility determinations. Id. Therefore, "we defer to the trial court's factual finding as to whether the defendant proved intentional discrimination, and we review the trial court's ruling in that regard for clear error." People v. Gabler, 958 P.2d 505, 508 (Colo.App. 1997) (citation omitted).
¶ 8 At the conclusion of voir dire, the prosecutor used five of the six allotted peremptory challenges to excuse females from the panel of potential jurors. Defense counsel used all six peremptory challenges to dismiss male potential jurors from the panel. The final jury consisted of nine male jurors; three female jurors; and one alternate juror, a female. Defense counsel raised a Batson objection, and the trial court determined that the defense had established a prima facie case of discriminatory jury selection. The prosecutor initially expressed surprise that Batson prohibited gender discrimination in jury selection, saying, "I [have] only heard [Batson] argued in terms of race neutral causes for peremptory challenges. So I've never heard it in terms of gender." The prosecutor then gave the following gender-neutral explanations for the challenges:
Juror No. 1, [S.B.], looked disinterested during the questioning. She offered no — she never raised her hand for any issue. Never nodded when another juror spoke and oftentimes was looking away from me during my questioning looking at her watch. She appeared to me to be young and had no kids.
Juror No. 4, [L.G.], during the period when we were waiting for the remainder of the jurors to come back she was in the back of the courtroom and she was coughing heavily. I don't know if she was sick. She never indicated on the record that she was sick. But that was the impression I got. Her husband is in the legal field. She has two daughters. One of which she said was stalked. I think it is inappropriate to have someone whose family member so closely alleged to have been a victim of the same crime that we're charging here.
Juror No. 6, [K.G] is in college. Is currently attending college. Has no kids. Appeared to be young. And it sounds as though she had a relationship with a large amount of law enforcement officers from [her] community . . . .
Juror No. 10, [A.B.], is also in college. Appeared to me to be young. Does not have any kids and did not expand on any of her comments when asked specifically about what we had spoken with prior to her getting on the panel. She seemed dead pan to me and gave no detailed explanations of why she was saying yes and no. Juror No. 23, [J.T.], also currently in college. Attending classes. She also appeared young.
Appeared disinterested. Did not volunteer any answers to my questions, although I tried to make eye contact with her to engage her in conversation. She never ...