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
...