People v. Ojeda

          City and County of Denver District Court No. 13CR4235 Honorable Kenneth M. Laff, Judge.

          Philip J. Weiser, Attorney General, Kevin E. McReynolds, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Megan A. Ring, Colorado State Public Defender, Elizabeth Griffin, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

          OPINION

          FOX JUDGE.

         ¶ 1 Defendant Ray Ojeda appeals the judgment of conviction entered on jury verdicts finding him guilty of various charges. He contends that the trial court erred in denying his Batson v. Kentucky, 476 U.S. 79 (1986), challenge when the prosecutor removed a Hispanic prospective juror from the venire. Based on the record before us, we agree that the court's denial of Ojeda's Batson challenge was erroneous. Accordingly, we reverse the judgment of conviction and remand for a new trial. Given this disposition, we need not address Ojeda's remaining challenges.

         I. Applicable Facts

         ¶ 2 In 2015, after a six-day trial, a jury found Ojeda guilty of first degree murder, second degree kidnapping, and first degree sexual assault for events that occurred in 1997. Ojeda's trial team advanced a mistaken identity defense and strenuously challenged the prosecution's reliance on old evidence.

         ¶ 3 During jury selection, the prosecutor first attempted to excuse Juror R.P., a Hispanic male seated in the seventh jury position, for cause based on (1) "the content of his questionnaire"; (2) "remarks that he made in open court"; and (3) "his demeanor." She explained that Juror R.P. expressed a "bias" against the criminal justice system and "visibly showed hesitation" when asked whether he could be fair. Defense counsel objected, noting that the prosecutor was mischaracterizing Juror R.P.'s answers, and highlighted Juror R.P.'s disclosure that he could be objective. Defense counsel added that Juror R.P. was one of the few Hispanic males on the venire.

         ¶ 4 The court then asked the prosecutor to make a further record concerning the for-cause challenge to prospective Juror R.P. and the prosecutor stated,

With regard to what he put on his [juror] questionnaire, I found it to be significant . . . he has devoted his career to . . . quality of healthcare for individuals. And that, in my mind, very much dovetailed with [being] . . . a man of very great conviction . . . . He gave our system the lowest rating of anyone who has been asked to offer a score. I believe his score was 4. And when I asked him about the linkage between his low confidence in the system and whether or not he could be fair, he visibly showed hesitation. . . . [And, ] when you look at that in-court behavior against what is clearly his commitment to his job, in terms of serving people of color and what he talked about in terms of the defendant being a person of color - he is himself a person of color - I thought that the totality of the record indicated that he has a distinctive leaning, that he himself said he would have trouble in listening to the evidence.

         ¶ 5 Defense counsel immediately responded that the prosecutor had "mischaracterized" Juror R.P.'s answers and noted that Juror R.P. had expressly stated that he could set aside his experiences and "be objective" and that he

clearly indicated he would follow the rules given to him by the Court. He's also one of the few Hispanic men on this entire jury panel, and under Batson, I don't know that it's appropriate to exclude him because he's Hispanic and may have something in common with the defendant in his heritage.

         ¶ 6 The court denied the prosecutor's for-cause challenge, finding that nothing in Juror R.P.'s feelings or life experiences indicated he would not follow the court's rules or reach a verdict based on the evidence. The court also noted that Juror R.P. is "certainly entitled to believe that people of color are not well-served in our criminal justice or medical system. There's nothing in his answers that those feelings of his life experience will affect his judgment in the case, that he won't follow the rules set forth by the Court. There's a completely inadequate record to challenge him in this case." The prosecutor then requested that the court repeat its ruling "with regard to the Batson issue," and the court clarified that it "didn't really reach [that] issue." Instead, the court expressed that it "didn't think it was a founded challenge, regardless of [Juror R.P.'s] personal ethnicity. I just thought that he had attitudes that he was certainly entitled to have, and that there was not anywhere near a sufficient record that they would affect his ability to be a fair juror." The prosecutor did not question Juror R.P. again before later using a peremptory challenge to excuse Juror R.P.

         ¶ 7 The prosecutor later used her fifth peremptory challenge to excuse Juror R.P. Defense counsel asserted a Batson challenge because he was "obviously concerned about excusing Hispanic males from the jury." In response, the prosecutor first incorporated her previous record on Juror R.P. (from the earlier for-cause challenge), then offered the following explanation:

To be utterly disclosing, we are pursuing a strategy of trying to select jurors who are establishmentarian, let's say, who are in favor of the system that we have. And that's one of the reasons I used a rate-the-system type of device during my voir dire.

[Juror R.P.] gave our system the lowest rating possible - rather, the lowest rating that anyone had given, which was a number 4, which is a matter of some concern.

[T]he jury is going to hear that there were errors on the part of the police department in terms of not having been able to locate the rape kit in this case within the property bureau for a period of years. I anticipate some very vigorous cross-examination of . . . a forensic serologist, in particular, and I anticipate that the defense is going to be very strongly attacking the Denver Police Department, the Denver Police Crime Lab, and that it will really build on the statements that have already been made during jury selection that critique the system as a whole as a way to build reasonable doubt in to secure a not guilty verdict.

And so what [Juror R.P.'s] concerns were about the system - and he said, I have a bias against the system. And so the concerns that we have do not relate in any way to the color of the skin or his national origin, but rather to his stated reservations in that regard when we know what the evidence will be and when we are now getting some pretty strong clues about what the defense will be.

         ¶ 8 The prosecutor continued by noting the racial composition of the jury box and of the group of prospective jurors recently struck by the defense. She then added:

Your Honor, if I could wrap up with two other thoughts that are very strongly informing our desire to exercise a strike as to [Juror R.P.]. He's a polished, educated, and, I believe, persuasive individual. And because of his presentation in that regard, the concern that we have is that the critique of the criminal justice system that he has talked about, he could be very, very strongly persuasive in the jury room. That's race neutral. We see him as a person who could very much persuade others of the reservations that he has. And given what we anticipate by way of the evidence, that is the basis for attempting to eliminate him.

[And] I anticipate the defense is going to make a very strong charge against the validity and reliability of the DNA results. . . . And the fact that the defendant is a Latino male, if the jury is persuaded that there is not a DNA connection between . . . the forensic evidence in this case and this defendant, it seems to me that the comments that [Juror R.P.] made about having concerns about racial profiling will really come into play in the sense that I think that he may then steer the jury towards a race-based reason why Mr. Ojeda, you know, was charged in the case, and that is because [Juror R.P.] had talked about racial profiling in conjunction with his other considerations. Since I think that's where the defense is going - you know, we have to forecast at this stage of the game, and those are all of the race-neutral reasons why we believe that a strike is constitutional and not racially motivated as to [Juror R.P.].

         ¶ 9 Defense counsel responded that "[w]ith respect to [Juror R.P.], I think [the prosecutor] made my argument for me. She's concerned about a race-based argument being made by [Juror R.P.] because he's Hispanic." In explaining why the peremptory challenge was based on race-neutral factors, the court stated:

The Court will deny the challenge for cause as to [Juror R.P.], but there are abundant race-neutral reasons for a peremptory to be exercised. First of all, he too is a victim of a sex assault, as is his wife, and he struck the Court as remarkably unconcerned about those events in his own lifetime. His first thought when there was a discussion of the time [it has] taken to bring this case was that the victim had delayed disclosure. He does have an anti-law enforcement bend, so the Court finds there's a sufficient racially neutral basis for the challenge.

         ¶ 10 Immediately following the court's ruling, the prosecutor supplemented her record by noting that her notes reflected that when Juror R.P. heard the age of the case, he thought something might have gone wrong, which also caused her "particular concern."

         II. Law and Review Standard

         ¶ 11 The Equal Protection Clause of the Fourteenth Amendment forbids a challenge to a potential juror based solely on race. Batson, 476 U.S. at 89; see also People v. Wilson, 2015 CO 54M, ¶ 10 n.4. When a party raises a Batson challenge, the trial court engages in a three-step analysis to assess the claim of racial discrimination. Wilson, ¶ 10. First, the opponent of the peremptory strike must allege a prima facie case showing that the striking party struck the prospective juror on the basis of race. Id. Second, the burden shifts to the striking party to provide a race-neutral explanation for excusing the prospective juror. Id. The opponent is then given the opportunity to rebut the striking party's explanation. Id.

         ¶ 12 At step three, the trial court must assess the striking party's actual subjective intent and the plausibility of its nondiscriminatory explanations to determine whether the opponent has sufficiently established purposeful discrimination. Id.; see also Miller-El v. Dretke, 545 U.S. 231, 252 (2005). If the opponent's "stated reason does not hold up, its pretextual significance does not fade because a trial judge . . . can imagine a reason that might not have been shown up as false." Miller-El, 545 U.S. at 252.

         ¶ 13 Significantly, it is improper for a trial court to "sua sponte offer[] its own plausible reasons behind the peremptory strike[] at issue[.]" Valdez v. People, 966 P.2d 587, 592 n.11 (Colo. 1998); see also Miller-El, 545 U.S. at 252 ("The Court of Appeals's and the dissent's substitution of a reason for eliminating [the juror] does nothing to satisfy the prosecutors' burden of stating a racially neutral explanation for their own actions."); People v. Rodriguez, 2015 CO 55, ¶ 15 n.5 (concluding that the trial court never evaluated the validity of the prosecutor's justification because it based its ruling on a different race-neutral explanation than the one offered by the prosecution).

         ¶ 14 We review steps one and two of a Batson challenge de novo. Rodriguez, ¶ 13. But, the trial court's conclusion at step three is "an issue of fact to which an appellate court should defer, reviewing only for clear error." Id. We will "set aside a trial court's factual findings only when they are so clearly erroneous as to find no support in the record." People v. Beauvais, 2017 CO 34, ¶ 22. If the record shows that the trial court failed to adequately conduct a Batson analysis, the appropriate procedure is to remand the case for more detailed findings by the trial court. Rodriguez, ¶ 21.

         III. Analysis

         ¶ 15 In addressing the Batson challenge at issue, the trial court did not, as it should have, explicitly evaluate the prosecutor's proffered reasons for striking Juror R.P. See Beauvais, ¶ 9; see also Batson, 476 U.S. at 98 (requiring the prosecutor to "articulate a neutral explanation related to the particular case to be tried"); Purkett v. Elem, 514 U.S. 765, 770 (1995) (Stevens, J., dissenting) (recognizing that the prosecutor's explanation must relate to the case at issue). Instead, the court sua sponte offered two race-neutral reasons to justify striking Juror R.P.: (1) that Juror R.P. and his wife were not only sexual assault victims themselves, but that Juror R.P. seemed "remarkably unconcerned" about those life experiences; and (2) that Juror R.P. surmised the age of the case might be attributed to the victim's delayed disclosure. Although the prosecutor later agreed with the second reason the court offered, the prosecutor did not initially offer either reason as a basis for her peremptory strike.

         ¶ 16 Before more closely examining the prosecutor's reasons for the strike, it is useful to look to those jurisdictions that have encountered race-based and race-neutral reasons supporting a Batson challenge.

         A. Multiple Justifications for a Peremptory Strike

         ¶ 17 Jurisdictions examining race-based and race-neutral reasons supporting a Batson challenge have generally considered three approaches to the issue: (1) the per se approach; (2) a mixed-motive approach; and (3) the substantial motivating factor approach. Neither the United States Supreme Court nor Colorado's Supreme Court has adopted a governing approach. See Snyder v. Louisiana, 552 U.S. 472, 485 (2008) (not deciding whether mixed-motive analysis applies in a Batson context); Rodriguez, ¶ 15 n.5 (while the trial court had based its ruling on a different race-neutral explanation than the one the prosecution offered, the Colorado Supreme Court did not elaborate on how it would evaluate peremptory challenges where multiple reasons - race-based and race-neutral - are offered). I provide a brief overview of the three approaches. ¶ 18 The per se approach provides that a "a racially discriminatory peremptory challenge in violation of Batson cannot be saved because the proponent of the strike puts forth a non-discriminatory reason." State v. Shuler, 545 S.E.2d 805, 811 (S.C. 2001); see also State v. King, 572 N.W.2d 530, 535 (Wis. Ct. App. 1997) ("[W]here the challenged party admits reliance on a prohibited discriminatory characteristic . . . a response that other factors were also used is [in]sufficient rebuttal under the second prong of Batson."). Thus, under the per se approach, an improper juror challenge cannot be saved.

         ¶ 19 Under the mixed-motive approach, "[o]nce the claimant has proven improper motivation, dual motivation analysis is available to the person accused of discrimination to [challenge the issue] by showing that the same action would have been taken in the absence of the improper motivation that the claimant has proven." Howard v. Senkowski, 986 F.2d 24, 27 (2d Cir. 1993); see also Gattis v. Snyder, 278 F.3d 222, 232-35 (3d Cir. 2002); Wallace v. Morrison, 87 F.3d 1271, 1274-75 (11th Cir. 1996); United States v. Darden, 70 F.3d 1507, 1531-32 (8th Cir. 1995); Jones v. Plaster, 57 F.3d 417, 420-22 (4th Cir. 1995). Stated differently,

after the defendant makes a prima facie showing of discrimination, the state may raise the affirmative defense that the strike would have been exercised on the basis of the []neutral reasons and in the absence of the discriminatory motive. If the state makes such a showing, the peremptory challenge survives constitutional scrutiny.

Gattis, 278 F.3d at 233. Thus, a challenge under the mixed-motive approach may be saved if the state's race-neutral reason is persuasive.

         ¶ 20 Under the substantial motivating factor approach, the proper inquiry is "whether the prosecutor was 'motivated in substantial part by discriminatory intent.'" Cook v. LaMarque, 593 F.3d 810, 814-15 (9th Cir. 2010) (quoting Snyder, 552 U.S. at 1212). “To determine whether race was a substantial motivating factor - that is, whether the defendant has shown ‘purposeful discrimination' at Batson's third step - the trier of fact must evaluate ‘the persuasiveness of the justification[s]' offered by the prosecutor.” Id. Unlike the mixed-motive approach, this approach does not allow the prosecutor to argue that he would have challenged the juror even absent the discriminatory basis. See Kesser v. Cambra, 465 F.3d 351, 376 (9th Cir. 2006) (Berzon, J., concurring).

         ¶ 21 The per se approach is the most faithful to the principles outlined in Batson, but the mixed-motive approach is, arguably, consistent with United States Supreme Court equal protection precedent in non-Batson contexts. See, e.g., Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977) (noting that the district court should have determined whether the board of education could show by a preponderance of evidence that it would have reached the same decision not to rehire a teacher who engaged in constitutionally protected speech in the absence of the teacher's protected conduct); see also Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 271 (1977) (plaintiffs failed to carry their burden of showing that a discriminatory purpose was a substantial motivating factor in an agency's decision to deny a rezoning application). But see Lisa M. Cox, Note, The "Tainted Decision-Making Approach": A Solution for the Mixed Messages Batson Gets from Employment Discrimination, 56 Case W. Res. L. Rev. 769, 782-89 (2006) (describing the civil law origin of mixed-motive analysis and arguing it should not be extended in the Batson context). The United States Supreme Court does not appear poised to adopt the per se standard in Batson cases. The Supreme Court mentioned - without adopting - the substantial motivation standard in Snyder in 2008, 552 U.S. at 485, and more recently, in Tharpe v. Sellers, 583 U.S., 138 S.Ct. 545 (2018), it indicated skepticism about a per se rule.

         ¶ 22 In Tharpe, a black defendant moved to reopen his federal habeas corpus proceeding regarding his claim that the Georgia jury that convicted him of murdering his sister-in-law included a white juror who was biased against him and had voted for the death penalty because he was black. Id. at ___, 138 S.Ct. at 546-47. In returning the matter to the court of appeals, the majority thought it debatable whether the defendant had shown prejudice even after producing an affidavit from the white juror that expressed racist opinions about blacks. Id. at ___, 138 S.Ct. at 546-49. The Court did not hold that the affidavit alone (demonstrating racial animus) required a per se finding that supported defendant's petition, much less an automatic reversal of his death sentence. Id. The white juror later recanted the contents of his first affidavit. Id. It is unclear how much this recantation factored into the Court's observation regarding the defendant's showing of prejudice. But, it appears from Tharpe that a judgment of conviction need not be automatically, and always, set aside whenever discriminatory animus is shown even though the evidence also shows that such animus may not have been the determinative factor ultimately leading to the conviction.

         B. Discussion and Application of the "Substantial Motivating Factor" Approach

         ¶ 23 Recognizing the inherent risk in predicting what the Supreme Court may do, in my view, the substantial motivating factor standard offers the most flexibility and is the one Colorado should adopt. Of course, most of the above-referenced cases pre-date the Supreme Court's 2008 Snyder decision and the 2018 Tharpe decision. Thus, the reasoning of the pre-Snyder and pre-Tharpe opinions is not as helpful as is the Idaho Court of Appeal's 2014 decision in State v. Ornelas, 330 P.3d 1085 (Idaho Ct. App. 2014), which I find persuasive.

         ¶ 24 Ornelas read Snyder as setting "a guideline that a peremptory strike violates the Equal Protection Clause when the strike is 'motivated in substantial part by discriminatory intent.'" Id. at 1094 (quoting Synder, 552 U.S. at 485). In Ornelas, the government did not challenge that Ornelas made a prima facie showing under Batson. Id. The court thus proceeded to determine if the prosecutor supplied a gender-neutral reason to strike Juror 24, a female. Id. The prosecutor, admitting he wanted a woman on the panel, also offered that he struck Juror 24 because she was young, lacked life experience, and had a child near the victim's age. Id. at 1091. The appellate court accepted the last three reasons as gender-neutral. Id. Adopting the Ninth Circuit's approach in Cook, 593 F.3d at 814-15, the Ornelas court inquired whether the strike was "motivated in substantial part by discriminatory intent." Ornelas, 330 P.3d at 1093 (quoting Cook, 593 F.3d at 814-15). The Ornelas court noted that Juror 24's gender could have substantially motivated the decision to strike her, but ultimately opted to remand for the trial court to supplement the record. Id. at 1097.

         ¶ 25 Ornelas held that when analyzing a Batson challenge where permissible and impermissible reasons are provided, the court should determine if the peremptory strike was motivated in substantial part by discriminatory intent. See id. at 1094. If the peremptory strike was motivated in substantial part by discriminatory intent, the challenger meets his burden of showing purposeful discrimination, as articulated in the third Batson step. Id.

         ¶ 26 Here, although the prosecutor claimed concern with Juror R.P.'s views about the criminal justice system, Juror R.P.'s views were inextricably linked to being a Hispanic male who had experienced racial profiling, as he disclosed in his questionnaire. See State v. McRae, 494 N.W.2d 252, 257 (Minn. 1993) (concluding that the prosecutor failed to articulate a race-neutral basis supported by the record for excluding a black prospective juror who expressed doubt about a system that disproportionately affects black men); People v. Mallory, 993 N.Y.S.2d 609, 612 (N.Y.App.Div. 2014) (holding that the People failed to offer a race-neutral reason for a peremptory strike where the prosecutor explicitly referenced race in explaining his reasons for challenging one of the prospective jurors and where the prospective juror responded by stating "that '[s]ometimes' police officers unfairly target minorities"). But cf. Ananaba v. State, 755 S.E.2d 225, 227 (Ga.Ct.App. 2014) (concluding that the use of peremptory challenges on three African-American venire members because of their prior bad experiences with law enforcement officers was a race-neutral reason). Where the clear focus of the prosecutor in striking Juror R.P. was Juror R.P.'s perception that the criminal justice system disproportionately affects people of color and those with mental disabilities, it is impossible not to conclude that the strike at issue was substantially motivated by Juror R.P.'s race. See Batson, 476 U.S. at 106 (Marshall, J., concurring) (noting that "'seat-of-the-pants instincts' may often be just another term for racial prejudice").

         ¶ 27 The trial court aptly recognized that Juror R.P. was "entitled to believe that people of color are not well-served in our criminal justice" system, noting that his answers did nothing to indicate that "those feelings of his life experience will affect his judgments in the case, that he won't follow the rules . . . There's no indication he couldn't follow my instructions and reach a verdict based on the evidence." The trial court heard nothing from Juror R.P. to suggest that having experienced racial profiling himself would affect his ability to decide a case with no allegations of profiling based on the evidence presented. The prosecution's concern that R.P. and defendant are "person[s] of color" would somehow lead R.P. to have "trouble listening to the evidence" is precisely what Batson warned against:

[T]he prosecutor may not rebut the defendant's prima facie case of discrimination by stating merely that he challenged jurors of defendant's race on the assumption - or his intuitive judgment - that they would be partial to the defendant because of their shared race.

Batson, 476 U.S. at 97. And, as discussed below, the reasons the prosecutor articulated on the record are not the sort of race-neutral explanations the Supreme Court contemplated in Batson and later cases.

         ¶ 28 Attributing "a distinctive leaning" to Juror R.P., as this prosecutor did, because of his life experiences perpetuates the race-based stereotypes Batson eschewed. To the extent the prosecutor suggested that Juror R.P. "would have trouble in listening to the evidence," the record soundly refutes that claim. See People v. Collins, 187 P.3d 1178, 1183 (Colo.App. 2008) (reversing where "[a]t least three of the race-neutral reasons articulated by the prosecutor are affirmatively refuted by the record[]"). Juror R.P. repeatedly reiterated that he would listen to all the evidence and follow the court's instructions. The trial court recognized as much in denying the prosecutor's for-cause challenge. See Foster v. Chatman, 578 U.S. ___, ___, 136 S.Ct. 1737, 1749 (2016) (The Supreme Court's "independent examination of the record" revealed that "much of the reasoning provided by [the prosecution had] no grounding in fact.").

         ¶ 29 The prosecutor adopted the second reason the trial court supplied in allowing Juror R.P. to be struck related to his response to the delay issue.^[1] Although the court and the prosecution remembered only one reason Juror R.P. offered in speculating why a 1997 crime would not be tried until 2015, the record discloses that Juror R.P. offered several logical reasons - and never indicated he would not accept other explanations - for the delayed proceedings presented during trial. The operative questioning is as follows:

[PROSECUTOR to R.P.]: Did you hear the year in which this ...