Announced September 25, 2014
El Paso County District Court No. 08CR281 Honorable Robert L. Lowrey, Judge
John W. Suthers, Attorney General, Matthew S. Holman, First Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Rebecca R. Freyre, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
¶ 1 Defendant, Mark Alton Friend, appeals the trial court's judgment of conviction entered on jury verdicts finding him guilty of (1) first degree murder – victim under the age of twelve, position of trust; (2) child abuse causing death; (3) child abuse causing death – pattern of conduct; (4) two counts of child abuse causing serious bodily injury; and (5) child abuse causing serious bodily injury – pattern of conduct. We affirm in part, vacate in part, and remand for correction of the mittimus.
¶ 2 At approximately 2:00 a.m. on January 15, 2008, the police were dispatched to Friend's apartment because M.B., the daughter of Friend's girlfriend, C.H., was no longer breathing. The police administered CPR on M.B. to no avail and a paramedic ultimately transported her to the hospital. The police subsequently notified M.B.'s biological father, A.B., that his daughter had been admitted to the hospital. The next day, a doctor informed A.B. that his daughter was legally brain dead. A.B. decided to remove her from life support, and she later died.
¶ 3 As part of their investigation, an officer and Detective Thrumston, who later testified at trial, interviewed Friend. Although Friend did not disclose much during the interviews at his apartment, he later revealed in a separate videotaped interview with Detective Thrumston that he had hit M.B. on several occasions. He told her that he had popped M.B. in the back of the head so hard that she hit the bed face forward and sprung back and also hit her head on the carpet which covered a cement floor. He stated that he then picked M.B. up, threw her on the bed, took her clothes off, and told her she had to take a bath. He also said that when she began to vomit and later became unresponsive, he threw water on her to revive her.
¶ 4 Further, he stated that a few days before M.B.'s death, he had shoved M.B. into a door, and she hit the back of her head so hard that her feet left the ground. She then vomited her dinner and eventually fell to the floor and became unresponsive. Friend then placed her in the bathtub and splashed water on her face to help her regain consciousness.
¶ 5 In addition, Friend told Detective Thrumston that he had held M.B.'s head underwater in the bathtub until bubbles came out and that he had flicked M.B. in the vagina with his finger.
¶ 6 Based on these statements, the People charged Friend with the offenses noted above, and the jury convicted him of all charges. The court then sentenced Friend to life in prison without the possibility of parole for his murder conviction and ordered concurrent sentences on the remaining convictions. Friend now appeals.
II. Batson Challenge
¶ 7 Friend contends that the trial court erred in concluding that he had to be of the same race or cognizable group as that of an excused juror to make a challenge under Batson v. Kentucky, 476 U.S. 79 (1986). He also argues that the prosecution did not provide race-neutral grounds for excusing Juror H, and that the court did not address the third prong of the Batson analysis to determine whether Friend successfully rebutted the race-neutral grounds. We agree with Friend that he need not be of the same race or cognizable group to make a Batson challenge, but disagree with his remaining contentions.
A. Standard of Review
¶ 8 A Batson analysis involves a three-step process, noted below, and the standard of review we apply depends on the specific step of the analysis at issue. Valdez v. People, 966 P.2d 587, 590-91 (Colo. 1998). We review a trial court's ruling on steps one and two of a Batson challenge de novo and the court's decision on step three for clear error. Id. at 590. Unlike the first two steps, the third step presents a question of fact as to which the trial court is in the best position to determine the demeanor of the attorney who exercises the challenge. People v. O'Shaughnessy, 275 P.3d 687, 691 (Colo.App. 2010), aff'd, 2012 CO 9. As a result, we generally defer to the trial court's finding on the third step of the Batson analysis. Id.
¶ 9 Batson, 476 U.S. at 89 and Powers v. Ohio, 499 U.S. 400 (1991), established that under the Equal Protection Clause of the Fourteenth Amendment, a prosecutor may not exclude potential jurors solely because of their race. Valdez, 966 P.2d at 589; O'Shaughnessy, 275 P.3d at 690. Batson outlines three steps for evaluating claims of racial discrimination in jury selection: (1) the defendant must establish a prima facie case of discrimination; (2) if the defendant does so, the prosecution must give a race-neutral reason for its peremptory strike; and (3) the court must determine whether the defendant has proven discrimination by a preponderance of the evidence. Valdez, 966 P.2d at 589; O'Shaughnessy, 275 P.3d at 690.
¶ 10 To raise a Batson challenge, the defendant and the excused prospective juror need not be of the same cognizable racial group. Powers v. Ohio, 499 U.S. 400, 415 (1991).
¶ 11 Here, Friend made a Batson challenge when the prosecutor used a peremptory challenge to excuse Juror H, an African-American. The prosecutor asserted that Friend could not make a Batson challenge because he was not African-American. The trial court agreed and concluded that the challenged juror and the defendant had to be of the same race.
¶ 12 We conclude that the trial court improperly held that Friend lacked standing to make a Batson challenge. See id.
¶ 13 In the alternative, the court engaged in a Batson analysis, which we now review. Because the parties do not dispute that Friend satisfied step one of the Batson analysis, we review only steps two and three.
¶ 14 At step two, the prosecutor's explanation must be "based on something other than the race of the juror, " and will be deemed race neutral so long as the prosecutor's explanation lacks an inherently discriminatory intent. Hernandez v. New York, 500 U.S. 352, 360 (1991) (plurality opinion); People v. Robinson, 187 P.3d 1166, 1172 (Colo.App. 2008).
¶ 15 If the prosecutor offers a race-neutral explanation for excusing a prospective juror, the trial court must then proceed to step three of the Batson analysis. Robinson, 187 P.3d at 1173. At step three, the court must determine whether the defendant has established purposeful discrimination. Id. Purposeful discrimination means that the prosecutor strikes a prospective juror "because of" the juror's race. People v. Collins, 187 P.3d 1178, 1181 (Colo.App. 2008). While engaging in a Batson analysis, the court must consider all relevant evidence, both direct and circumstantial. Id.
¶ 16 Further, while the trial court should provide defense counsel with an opportunity to rebut the prosecutor's stated reasons before ruling on a Batson challenge, we do not reverse a trial court's ruling unless such a denial prejudices the defendant. See Robinson, 187 P.3d at 1174 (affirming the trial court's denial of defendant's Batson challenge even though the court did not ask defense counsel if he wanted to offer a rebuttal, because there was no indication in the record that defense counsel requested an opportunity to rebut the prosecutor's stated reasons for striking a prospective juror).
¶ 17 Here, the prosecutor moved to excuse Juror H because she was not paying much attention during voir dire; she did not remember a fellow prospective juror even though that juror had recognized her; she had had a bad experience with law enforcement; and she had responded to defense counsel's questions without showing any emotion. The court found that those reasons were race neutral and denied Friend's Batson challenge without giving his counsel the opportunity to rebut the prosecutor's assertions. The record does not indicate that Friend's counsel asked the court for an opportunity to rebut the prosecutor's explanations.
¶ 18 Therefore, we conclude that the trial court's ruling was proper. With respect to step two, the prosecutor provided several race-neutral reasons for excusing Juror H. As to step three, while the court should have provided Friend's counsel with an opportunity to rebut the prosecutor's stated reasons, as in Robinson, Friend was not prejudiced, given the lack of any objection.
¶ 19 Contrary to Friend's contention, the court also reached the third step of the Batson analysis. Based on the prosecutor's reasons, the court found that the peremptory challenge was not pretextual. Instead, the court stated that the prosecution's reasons "all make sense and are legitimate. I can't find any racial bias in those answers that the People have given." Because step three involves a question of fact, absent a showing of clear error, we defer to the trial court's finding and conclude that the court's denial of Friend's Batson challenge was proper.
III. Denial of Challenges for Cause
¶ 20 Friend next contends that the trial court should have granted his challenges for cause to two prospective jurors, Juror C and Juror W, who were later removed by peremptory challenges. According to Friend, these two jurors had expressed hesitance about their abilities to decide the case based on the evidence presented, and, as a result, the court erred in not rehabilitating them. We disagree.
A. Standard of Review
¶ 21 We review a trial court's denial of a challenge for cause for an abuse of discretion, while examining the entire voir dire of the prospective juror. See § 16-10-103, C.R.S. 2013; Carrillo v. People, 974 P.2d 478, 486 (Colo. 1999); People v. Hancock, 220 P.3d 1015, 1016 (Colo.App. 2009). Because the trial court is in the best position to determine a prospective juror's credibility, demeanor, and sincerity in explaining his or her state of mind, we defer to its ruling on a challenge for cause. Hancock, 220 P.3d at 1016.
¶ 22 Even if the trial court abuses its discretion, however, reversal is required only when a defendant demonstrates that a biased juror actually sat on the jury. See People v. Marciano, 2014 COA 92, ¶ 10. When an allegedly biased juror is not impaneled, the defendant cannot establish prejudice. See People v. Novotny, 2014 CO 18, ¶¶ 2, 27 (abandoning the automatic reversal rule set forth in People v. Macrander, 828 P.2d 234, 243 (Colo. 1992)); People v. Richardson, 2014 COA 50, ¶ 38; see also People v. Wise, 2014 COA 83, ¶ 28.
¶ 23 Due process requires a fair trial, which necessarily includes the right to challenge a juror for cause. People v. Wilson, 114 P.3d 19, 21 (Colo.App. 2004). To protect a defendant's right to a fair trial with an impartial jury, a trial court must excuse biased persons from the jury. Id.; see § 16-10-103(1)(j) (stating the court must sustain challenges for cause where "[t]he existence of a state of mind in the juror evinc[es] enmity or bias toward the defendant or the state"); see also Crim. P. 24(b)(1)(X).
¶ 24 Here, even if the trial court abused its discretion in denying Friend's challenges for cause, the two prospective jurors, Juror C and Juror W, did not sit on the jury. Further, Friend has not alleged that any of the actual jurors was biased. Thus, Friend cannot establish prejudice under Novotny. See Wise, ¶ ...