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People v. Ojeda: Colorado Court of Appeals 2019 Ruling
People v. Ojeda: Colorado Court of Appeals 2019 Ruling
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
September 5, 2019
2019COA137M
The majority agrees that the trial judge cannot supply its own
the majority reverses the judgment and remands for a new trial.
the trial court for it to conduct the three-step Batson analysis and
make the required factual findings as the trial court’s prior Batson
Ojeda made a prima facie showing that the peremptory strike was
Plaintiff-Appellee,
v.
Ray Ojeda,
Defendant-Appellant.
Division IV
Opinion by JUDGE FOX
Harris, J., specially concurs
Hawthorne, J., dissents
Megan A. Ring, Colorado State Public Defender, Elizabeth Griffin, Deputy State
Public Defender, Elizabeth Porter-Merrill, Deputy State Public Defender,
Denver, Colorado, for Defendant-Appellant
OPINION is modified as follows:
record before us, we agree that the court’s denial of Ojeda’s Batson
I. Applicable Facts
Juror R.P., a Hispanic male seated in the seventh jury position, for
that he made in open court”; and (3) “his demeanor.” She explained
1
that Juror R.P. expressed a “bias” against the criminal justice
that Juror R.P. was one of the few Hispanic males on the venire.
2
himself said he would have trouble in listening
to the evidence.
R.P. had expressly stated that he could set aside his experiences
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
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
prosecutor then requested that the court repeat its ruling “with
3
regard to the Batson issue,” and the court clarified that it “didn’t
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
4
anyone had given, which was a number 4,
which is a matter of some concern.
the jury box and of the group of prospective jurors recently struck
when Juror R.P. heard the age of the case, he thought something
might have gone wrong, which also caused her “particular concern.”
Batson, 476 U.S. at 89; see also People v. Wilson, 2015 CO 54M,
struck the prospective juror on the basis of race. Id. Second, the
Id.
¶ 12 At step three, the trial court must assess the striking party’s
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
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
8
nothing to satisfy the prosecutors’ burden of stating a racially
only for clear error.” Id. We will “set aside a trial court’s factual
the record shows that the trial court failed to adequately conduct a
III. Analysis
reasons for striking Juror R.P. See Beauvais, ¶ 9; see also Batson,
9
476 U.S. at 98 (requiring the prosecutor to “articulate a neutral
Elem, 514 U.S. 765, 770 (1995) (Stevens, J., dissenting) (recognizing
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
Juror R.P. surmised the age of the case might be attributed to the
with the second reason the court offered, the prosecutor did not
Batson challenge.
10
approaches to the issue: (1) the per se approach; (2) a mixed-motive
approaches.
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
11
[in]sufficient rebuttal under the second prong of Batson.”). Thus,
saved.
showing that the same action would have been taken in the absence
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,
F.3d 1507, 1531-32 (8th Cir. 1995); Jones v. Plaster, 57 F.3d 417,
12
Gattis, 278 F.3d at 233. Thus, a challenge under the mixed-motive
persuasive.
814-15 (9th Cir. 2010) (quoting Snyder, 552 U.S. at 1212). “To
Unlike the mixed-motive approach, this approach does not allow the
13
Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977) (noting that the
have reached the same decision not to rehire a teacher who engaged
Hous. Dev. Corp., 429 U.S. 252, 271 (1977) (plaintiffs failed to carry
Batson context). The United States Supreme Court does not appear
14
Tharpe v. Sellers, 583 U.S. __, 138 S. Ct. 545 (2018), it indicated
habeas corpus proceeding regarding his claim that the Georgia jury
juror who was biased against him and had voted for the death
opinions about blacks. Id. at __, 138 S. Ct. at 546-49. The Court
did not hold that the affidavit alone (demonstrating racial animus)
15
animus is shown even though the evidence also shows that such
standard offers the most flexibility and is the one Colorado should
decision in State v. Ornelas, 330 P.3d 1085 (Idaho Ct. App. 2014),
16
if the prosecutor supplied a gender-neutral reason to strike Juror
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
593 F.3d at 814-15, the Ornelas court inquired whether the strike
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
17
purposeful discrimination, as articulated in the third Batson step.
Id.
R.P.’s views about the criminal justice system, Juror R.P.’s views
See State v. McRae, 494 N.W.2d 252, 257 (Minn. 1993) (concluding
black men); People v. Mallory, 993 N.Y.S.2d 609, 612 (N.Y. App. Div.
Ananaba v. State, 755 S.E.2d 225, 227 (Ga. Ct. App. 2014)
18
with law enforcement officers was a race-neutral reason). Where
the clear focus of the prosecutor in striking Juror R.P. was Juror
¶ 27 The trial court aptly recognized that Juror R.P. was “entitled to
justice” system, noting that his answers did nothing to indicate that
“those feelings of his life experience will affect his judgments in the
evidence.” The trial court heard nothing from Juror R.P. to suggest
19
“trouble listening to the evidence” is precisely what Batson warned
against:
Batson, 476 U.S. at 97. And, as discussed below, the reasons the
cases.
Collins, 187 P.3d 1178, 1183 (Colo. App. 2008) (reversing where
20
in denying the prosecutor’s for-cause challenge. See Foster v.
Chatman, 578 U.S. __, __, 136 S. Ct. 1737, 1749 (2016) (The
grounding in fact.”).
———————————————————————
1 The trial court’s first supplied reason to strike Juror R.P. — his
lack of concern over his prior experience with sexual assault — is
irrelevant, see People v. Rodriguez, 2015 CO 55, ¶ 15 n.5, where the
prosecutor did not adopt it. As to Juror R.P.’s experience with
sexual assault, the prosecutor was well aware of that experience
from R.P.’s juror questionnaire and did not rely upon it in seeking
to excuse him. Moreover, Juror K.P. was deemed to be a suitable
juror even though his questionnaire disclosed that his daughter
was the victim of “incest, sexual assault, or inappropriate sexual
behavior.” The prosecutor never explained why Juror K.P.’s
background was deemed acceptable but Juror R.P.’s would not be.
See Miller-El v. Dretke, 545 U.S. 231, 241 (2005) (If the proffered
reason for striking a black panelist applies equally to “an otherwise-
similar nonblack who is permitted to serve, that is evidence tending
to prove purposeful discrimination.”). Notably, the record discloses
that both parties had earlier accepted Juror R.P.’s and Juror K.P.’s
similar assurances that their prior experiences with sexual assault
would not affect their judgment in this case.
21
a 1997 crime would not be tried until 2015, the record discloses
follows:
Bishop, 959 F.2d 820, 826 (9th Cir. 1992) (concluding that the
reason offered — that the juror lived in a high crime area plagued
on other grounds, United States v. Nevils, 598 F.3d 1158, 1167 (9th
Cir. 2010); Rector v. State, 444 S.E.2d 862, 864-65 (Ga. Ct. App.
him that the juror was thumbing her nose at society; the court
rejected the excuse, noting that the gold tooth had “nothing to do
N.E.2d 1108, 1111 (Ind. 2004) (concluding that the reason provided
23
member of one[’]s own in the community” — was not facially
race-neutral).
this case to the trial court to make additional findings of fact and
and where the trial court itself earlier acknowledged that Juror R.P.
case.”
expressed views similar to the views of, or had similar attributes as,
24
• First, regarding the prosecutor’s objection that Juror R.P. was
like Juror R.P., revealed that she worked in the health field as
a nurse. See Reynoso v. Hall, 395 F. App’x 344, 349 (9th Cir.
25
proffered race-neutral reasons for striking nonwhite potential
that the juror struck was too “emphatic” and finding that there
Juror R.P. occupied the seventh seat of the initial jury pool.
Of the first thirteen jurors seated — before any were struck — three
were Hispanic (occupying seats four, seven, and nine), and the
from jury service before the first and only Hispanic was seated.
Clause. Lancaster v. Adams, 324 F.3d 423, 434 (6th Cir. 2003)
26
disproportionately struck Hispanics from the jury box even though
Batson, 476 U.S. at 87; see Georgia v. McCollum, 505 U.S. 42, 49
(1992). “The need for public confidence in our judicial process and
196 (Colo. 1993) (Scott, J., dissenting) (quoting McCollum, 505 U.S.
criminal justice system by way of the jury panel.” Id. (Scott, J.,
Snyder, 552 U.S. at 478); see also Powers v. Ohio, 499 U.S. 400,
27
fairness of a criminal proceeding in doubt.” (quoting Rose v.
Valdez, 966 P.2d at 592 n.11 (a trial court may not interject its own
that the trial court erred in denying the Batson challenge at issue
here.
IV. Conclusion
28
JUDGE HARRIS, specially concurring.
conclude that this right was violated, I agree with Judge Fox that
system, he would likely persuade other jurors that the police had
29
qualify as race-neutral. Hernandez v. New York, 500 U.S. 352, 360
(1991).
I. Applicable Facts
crime immediately, but she could not identify the perpetrator and
the case went cold. Years later, the police retested evidence from
the victim’s rape kit; DNA from the vaginal swab matched Ojeda.
¶ 40 Juror R.P. disclosed that he and his ex-wife had been victims
30
individually by counsel. He explained that the “inappropriate
¶ 41 Later, during group voir dire, the prosecutor asked eight of the
one to ten. Two jurors rated the system a nine or ten, but of the
other six jurors, two rated it a four, three gave it a five or six, and
one rated it a six or seven. Juror R.P. gave the system a score of
views affect him as a juror, his feelings about the system might
color the way he “hear[d] and weigh[ed] the evidence in the case.”
31
Juror R.P. said that the delay raised questions: “Maybe the person
didn’t disclose for some reason, the victim? Or maybe there was a
¶ 43 The prosecutor challenged Juror R.P. for cause. She said that
his demeanor.
Next, she turned to Juror R.P.’s voir dire comments, focusing on his
admission that his bias would “impact his ability to listen to both
sides” and said that he “visibly showed hesitation” about his ability
various grounds. Then he noted that Juror R.P. was “one of the few
Batson, the prosecutor could not “exclude him just because he’s
him in this case.” The court clarified, however, that it had not
the court on whether Ojeda had made out a prima facie case of
33
¶ 48 First, she expressly incorporated her comments related to her
would hear that the police had misplaced the victim’s rape kit and
discussed his own concerns about being racially profiled, Juror R.P.
“charged in the case.” The prosecutor also noted that the jury still
34
¶ 49 Defense counsel disputed that the prosecutor’s reasons were
reasons given by the prosecutor. Juror R.P. and his ex-wife were
both victims of sexual assault, the court said, and Juror R.P.
his own lifetime.” As well, Juror R.P.’s “first thought” when the
prosecutor asked about the delay in bringing the case to trial “was
that the victim had delayed disclosure.” And then there was Juror
R.P.’s “anti-law enforcement ben[t],” which the court did not explain
35
final ruling on Ojeda’s Batson objection. Following the court’s
ruling, the prosecutor added that she, too, had “taken a note” about
Juror R.P.’s comments concerning the delay and that they were “of
particular concern.”
course of action “at least in part ‘because of,’ not merely ‘in spite of,’
York, 500 U.S. 352, 360 (1991) (quoting Pers. Adm’r v. Feeney, 442
587, 590 (Colo. 1998). Thus, the second step of the process does
Hernandez, 500 U.S. at 360. The reason need only be race neutral.
than the race of the juror.” Id.; see also People v. Mendoza, 876
P.2d 98, 101 (Colo. App. 1994) (at step two of Batson analysis,
Easterling, 648 F.3d 380, 388 (6th Cir. 2011). Still, the prosecutor
III. Analysis
A.
38
¶ 58 Ojeda argues that the district court clearly erred at step three
of the Batson analysis. And Judge Fox persuasively credits his view
of the record. But in my view, the district court did not conduct a
Beauvais, ¶ 23.
¶ 60 So, in the typical third step case, the prosecutor has explained
the strike by asserting, for example, that the juror has a mustache
and a beard, see Purkett, 514 U.S. at 769, or that the juror would
39
evidence that these are not the true reasons for the strike and,
¶ 61 But here, the prosecutor did not claim that she had struck
during voir dire; she claimed she struck Juror R.P. because, as a
person of color who had some concerns about the criminal justice
system, he was likely to rally the jury around a theory of the case —
defendant, too, was Hispanic. And defense counsel did not argue
that the proffered reason for the strike was false and merely a
the trial court did not determine that the prosecutor’s reason was
objection.
40
¶ 62 Therefore, like Judge Fox, I see no reason to remand to the
360.
B.
that the trial court cannot supply its own race-neutral reasons for
the prosecutor’s strike. See Valdez, 966 P.2d at 592 n.11. That
juror based on race? See Miller-El v. Dretke, 545 U.S. 231, 252
41
¶ 64 Relying on Beauvais, the People contend that the court’s
reliance on its own race-neutral reasons for the strike does not
grounds for striking Juror R.P., the court “implicitly credited” the
(Indeed, the reasons were so closely tied that the court prefaced its
cause.”) The trial court did not accept the prosecutor’s reasons,
———————————————————————
2 In People v. Beauvais, 2017 CO 34, the defendant raised a Batson
objection after the prosecutor exercised all of his peremptory strikes
against female jurors. Id. at ¶ 6. The trial court considered all of
the prosecutor’s proffered reasons and determined that while the
reasons were “not strong,” the defendant had not carried her
burden to show purposeful discrimination. Id. at ¶ 12. On appeal,
a majority of a division of this court remanded, concluding that, in
the absence of specific credibility findings, it could neither
42
reasons and determined that, even setting aside the proffered
Thus, I read the trial court’s oral ruling as a finding, and a fairly
explicit one, that the prosecutor’s explanation was not race neutral
———————————————————————
adequately review the prosecutor’s reasons nor infer that the trial
court had credited the demeanor-based reasons. Id. at ¶ 16. The
supreme court reversed. It held that specific credibility findings are
unnecessary to affirm a step three ruling, whether the proffered
reasons are demeanor-based or non-demeanor-based. Instead, it
instructed, an appellate court conducting a clear error review
should defer to a trial court’s ultimate Batson ruling “so long as the
record reflects that the trial court weighed all of the pertinent
circumstances and supports the court’s conclusion” regarding
purposeful discrimination. Id. at ¶ 32.
43
inquiry at this second step is the same — accepting what the
race-based?
offered multiple independent reasons for the strike. She did not
say, for instance, that Juror R.P. had a mustache, lacked a science
concerns about the criminal justice system, Juror R.P. was likely to
“steer the jury toward a race-based reason why Mr. Ojeda,” who
44
prospective juror because she had a bad experience with law
part and rev’d in part on other grounds, 2018 CO 90. And here, if
the prosecutor had said only that the strike was based on Juror
agree that the reason was race neutral. People of all races have
R.P.’s race to his views on the justice system. It was not just that
Juror R.P. had concerns about the system; it was also that he was a
for the prosecution and then try to persuade the other jurors to
45
R.P.’s status as “a person of color” and his so-called
other.” In those cases, I agree with the People that the juror’s
not the juror, attributes the juror’s worldview to his or her race, or
links the juror’s race and worldview to the defendant’s race, then
neutral. See, e.g., United States v. Bishop, 959 F.2d 820, 822-26
because she lived in Compton and therefore likely believed that the
where the juror had not expressed any view of the police); see also
46
likely than whites to consider fairly or sympathetically the State’s
did not meet her burden at step two of the Batson analysis to
C.
animus. A defendant need not show that the race-based strike was
47
harbored ill will or prejudice toward Juror R.P. or any other person
of color.
account of their race.” 476 U.S. at 89. The notion that jurors of a
Neal v. Delaware, 103 U.S. 370, 393-94 (1880). But more often, a
help his or her client.” Dretke, 545 U.S. at 271 (Breyer, J.,
concurring).
jurors from the jury. But if the accused is a new mother, the
48
assume that black male jurors are likely to have had bad
experiences with police officers and strike them from the jury in any
same as it would be were the motive less benign.” Id. at 271. And
a sexist, and the black prosecutor who strikes black male jurors is
49
I suspect that trial judges hesitate to sustain Batson challenges,
go unchecked.
IV. Conclusion
striking Juror R.P. was based in part on his race. I do not conclude
Nonetheless, because the result is the same, I agree with Judge Fox
50
JUDGE HAWTHORNE, dissenting.
majority and concurrence decide this case given the record before
And that’s because the trial court’s Batson analysis was inadequate
Ojeda “ma[d]e a prima facie showing that the peremptory strike was
51
case to the trial court with directions that it conduct the three-step
Batson analysis and make the required factual findings. See id. at
I. Relevant Facts
grounds: (1) “the content of his questionnaire”; (2) “his remarks that
he made in open court”; and (3) “his demeanor.” She explained that
Juror R.P. had expressed a “bias” against the system and “visibly
52
And that, in my mind, very much dovetailed
with his — he’s not a forceful speaker in the
sense that he raises his voice, but he is a man
of very great conviction. And what he talked
about is that he had — he used the word
“bias” against the system. He gave our system
the lowest rating of anyone who has been
asked to offer a score. I believe his score was
4.
R.P. was also one of the few Hispanic males on the prospective jury
and that counsel didn’t “know that it’s appropriate to exclude him
53
just because he’s Hispanic and may have something in common
then requested that the court repeat its ruling “with regard to the
Batson issue,” and the court clarified that it “didn’t really reach
there was not anywhere near a sufficient record that they would
54
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.
55
¶ 86 The prosecutor continued by noting the racial composition of
the jury box and of the group of prospective jurors recently struck
56
in the case, and that is because he talked
about that — [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.].
supplemented her record by noting that she had in her notes that
when Juror R.P. heard the age of the case, he thought something
might have gone wrong, which also caused her “particular concern.”
57
II. The Batson Analysis
case depends upon whether the trial court completed the Batson
way, the threshold question is: Did the trial court make sufficient
that the prosecutor struck Juror R.P. because of his race? Id. I
58
Instead, I’ll only reiterate what I believe is most relevant to this
case.
prima facie showing that the peremptory strike was based on the
step one, the burden is on the defendant and the trial court should
Rodriguez, ¶ 13.
burden shifts at step two to the striking party — here, the People —
59
required for the inquiry to proceed to step three.” Id. But again,
the trial court should make a record stating whether the prosecutor
added).
Dretke, 545 U.S. 231, 252 (2005); see Hernandez v. New York, 500
U.S. 352, 378 (1991) (“[T]he Court has imposed on the defendant
60
¶ 96 The trial court’s ruling at step three “should be based on its
reason does not hold up, its pretextual significance does not fade
because a trial judge . . . can imagine a reason that might not have
appellate court should defer, reviewing only for clear error.” Id.
61
here largely will turn on evaluation of credibility, a reviewing court
U.S. at 98 n.21.
¶ 101 I begin with Batson’s step one, where Ojeda “must make a
prima facie showing that the peremptory strike was based on” Juror
excusing Hispanic males from the jury.” At that point, the trial
for the strike. And after she did so, the trial court again should
62
counsel if he had “anything further?” Defense counsel promptly
being made by [Juror R.P.] because he’s Hispanic.” The court then
¶ 102 Although our review at steps one and two is de novo, we’re
aren’t any factual findings because the court’s Batson analysis was
the trial court and make factual findings of our own. Under those
that point, we can properly proceed with our de novo review. See
id. at ¶¶ 2, 13.
¶ 103 Finally, at step three, our review of the court’s ruling “as to the
should defer, reviewing only for clear error.” Id. at ¶ 13. This is
63
[or her] explanation.” Id. at ¶ 12; see also Wilson, ¶ 13 (“The
¶ 104 But again, the trial court’s step-three analysis was inadequate.
Unlike at steps one and two, the court did make some findings at
striking Juror R.P.: (1) that R.P. and his wife were not only sexual
surmised the age of the case might have been because of the
the second reason after the court made its Batson ruling, neither
strike[] at issue.” Valdez, 966 P.2d at 592 n.11; see also Dretke,
64
545 U.S. at 252 (“The Court of Appeals’s and the dissent’s
that the trial court never evaluated the validity of the prosecutor’s
¶ 105 So, arguably, the only mention the court made to a reason
65
exhibited the basis for the strike attributed to
the [prospective] juror by the prosecutor.”
(2008)); see also Wilson, ¶ 18 (“Only the trial court can assess
trial court’s shoes and, relying on the cold record, say whether the
¶¶ 17-18 (where the trial court didn’t make the necessary findings
tell whether the prosecutor struck [the juror] because of her race”).
The need for the trial court’s factual findings at each step is made
three judges on this court are divided about how to interpret the
prosecutor’s words.
V. Conclusion
¶ 107 I believe that the proper remedy is for us to remand the case to
66
analysis and make the required factual findings at each step. The
dissent.
67
The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
September 5, 2019
2019COA137
The majority agrees that the trial judge cannot supply its own
the majority reverses the judgment and remands for a new trial.
the trial court for it to conduct the three-step Batson analysis and
make the required factual findings as the trial court’s prior Batson
Ojeda made a prima facie showing that the peremptory strike was
Plaintiff-Appellee,
v.
Ray Ojeda,
Defendant-Appellant.
Division IV
Opinion by JUDGE FOX
Harris, J., specially concurs
Hawthorne, J., dissents
Megan A. Ring, Colorado State Public Defender, Elizabeth Griffin, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant Ray Ojeda appeals the judgment of conviction
record before us, we agree that the court’s denial of Ojeda’s Batson
I. Applicable Facts
Juror R.P., a Hispanic male seated in the seventh jury position, for
that he made in open court”; and (3) “his demeanor.” She explained
1
that Juror R.P. expressed a “bias” against the criminal justice
that Juror R.P. was one of the few Hispanic males on the venire.
2
himself said he would have trouble in listening
to the evidence.
R.P. had expressly stated that he could set aside his experiences
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
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
prosecutor then requested that the court repeat its ruling “with
3
regard to the Batson issue,” and the court clarified that it “didn’t
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
4
anyone had given, which was a number 4,
which is a matter of some concern.
the jury box and of the group of prospective jurors recently struck
when Juror R.P. heard the age of the case, he thought something
might have gone wrong, which also caused her “particular concern.”
Batson, 476 U.S. at 89; see also People v. Wilson, 2015 CO 54M,
struck the prospective juror on the basis of race. Id. Second, the
Id.
¶ 12 At step three, the trial court must assess the striking party’s
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
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
8
nothing to satisfy the prosecutors’ burden of stating a racially
only for clear error.” Id. We will “set aside a trial court’s factual
the record shows that the trial court failed to adequately conduct a
III. Analysis
reasons for striking Juror R.P. See Beauvais, ¶ 9; see also Batson,
9
476 U.S. at 98 (requiring the prosecutor to “articulate a neutral
Elem, 514 U.S. 765, 770 (1995) (Stevens, J., dissenting) (recognizing
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
Juror R.P. surmised the age of the case might be attributed to the
with the second reason the court offered, the prosecutor did not
Batson challenge.
10
approaches to the issue: (1) the per se approach; (2) a mixed-motive
approaches.
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
11
[in]sufficient rebuttal under the second prong of Batson.”). Thus,
saved.
showing that the same action would have been taken in the absence
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,
F.3d 1507, 1531-32 (8th Cir. 1995); Jones v. Plaster, 57 F.3d 417,
12
Gattis, 278 F.3d at 233. Thus, a challenge under the mixed-motive
persuasive.
814-15 (9th Cir. 2010) (quoting Snyder, 552 U.S. at 1212). “To
Unlike the mixed-motive approach, this approach does not allow the
13
Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977) (noting that the
have reached the same decision not to rehire a teacher who engaged
Hous. Dev. Corp., 429 U.S. 252, 271 (1977) (plaintiffs failed to carry
Batson context). The United States Supreme Court does not appear
14
Tharpe v. Sellers, 583 U.S. __, 138 S. Ct. 545 (2018), it indicated
habeas corpus proceeding regarding his claim that the Georgia jury
juror who was biased against him and had voted for the death
opinions about blacks. Id. at __, 138 S. Ct. at 546-49. The Court
did not hold that the affidavit alone (demonstrating racial animus)
15
animus is shown even though the evidence also shows that such
standard offers the most flexibility and is the one Colorado should
decision in State v. Ornelas, 330 P.3d 1085 (Idaho Ct. App. 2014),
16
if the prosecutor supplied a gender-neutral reason to strike Juror
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
593 F.3d at 814-15, the Ornelas court inquired whether the strike
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
17
purposeful discrimination, as articulated in the third Batson step.
Id.
R.P.’s views about the criminal justice system, Juror R.P.’s views
See State v. McRae, 494 N.W.2d 252, 257 (Minn. 1993) (concluding
black men); People v. Mallory, 993 N.Y.S.2d 609, 612 (N.Y. App. Div.
Ananaba v. State, 755 S.E.2d 225, 227 (Ga. Ct. App. 2014)
18
with law enforcement officers was a race-neutral reason). Where
the clear focus of the prosecutor in striking Juror R.P. was Juror
¶ 27 The trial court aptly recognized that Juror R.P. was “entitled to
justice” system, noting that his answers did nothing to indicate that
“those feelings of his life experience will affect his judgments in the
evidence.” The trial court heard nothing from Juror R.P. to suggest
19
“trouble listening to the evidence” is precisely what Batson warned
against:
Batson, 476 U.S. at 97. And, as discussed below, the reasons the
cases.
Collins, 187 P.3d 1178, 1183 (Colo. App. 2008) (reversing where
20
in denying the prosecutor’s for-cause challenge. See Foster v.
Chatman, 578 U.S. __, __, 136 S. Ct. 1737, 1749 (2016) (The
grounding in fact.”).
———————————————————————
1 The trial court’s first supplied reason to strike Juror R.P. — his
lack of concern over his prior experience with sexual assault — is
irrelevant, see People v. Rodriguez, 2015 CO 55, ¶ 15 n.5, where the
prosecutor did not adopt it. As to Juror R.P.’s experience with
sexual assault, the prosecutor was well aware of that experience
from R.P.’s juror questionnaire and did not rely upon it in seeking
to excuse him. Moreover, Juror K.P. was deemed to be a suitable
juror even though his questionnaire disclosed that his daughter
was the victim of “incest, sexual assault, or inappropriate sexual
behavior.” The prosecutor never explained why Juror K.P.’s
background was deemed acceptable but Juror R.P.’s would not be.
See Miller-El v. Dretke, 545 U.S. 231, 241 (2005) (If the proffered
reason for striking a black panelist applies equally to “an otherwise-
similar nonblack who is permitted to serve, that is evidence tending
to prove purposeful discrimination.”). Notably, the record discloses
that both parties had earlier accepted Juror R.P.’s and Juror K.P.’s
similar assurances that their prior experiences with sexual assault
would not affect their judgment in this case.
21
a 1997 crime would not be tried until 2015, the record discloses
follows:
Bishop, 959 F.2d 820, 826 (9th Cir. 1992) (concluding that the
reason offered — that the juror lived in a high crime area plagued
on other grounds, United States v. Nevils, 598 F.3d 1158, 1167 (9th
Cir. 2010); Rector v. State, 444 S.E.2d 862, 864-65 (Ga. Ct. App.
him that the juror was thumbing her nose at society; the court
rejected the excuse, noting that the gold tooth had “nothing to do
N.E.2d 1108, 1111 (Ind. 2004) (concluding that the reason provided
23
member of one[’]s own in the community” — was not facially
race-neutral).
this case to the trial court to make additional findings of fact and
and where the trial court itself earlier acknowledged that Juror R.P.
case.”
expressed views similar to the views of, or had similar attributes as,
24
• First, regarding the prosecutor’s objection that Juror R.P. was
like Juror R.P., revealed that she worked in the health field as
a nurse. See Reynoso v. Hall, 395 F. App’x 344, 349 (9th Cir.
25
proffered race-neutral reasons for striking nonwhite potential
that the juror struck was too “emphatic” and finding that there
Juror R.P. occupied the seventh seat of the initial jury pool.
Of the first thirteen jurors seated — before any were struck — three
were Hispanic (occupying seats four, seven, and nine), and the
from jury service before the first and only Hispanic was seated.
Clause. Lancaster v. Adams, 324 F.3d 423, 434 (6th Cir. 2003)
26
disproportionately struck Hispanics from the jury box even though
Batson, 476 U.S. at 87; see Georgia v. McCollum, 505 U.S. 42, 49
(1992). “The need for public confidence in our judicial process and
196 (Colo. 1993) (Scott, J., dissenting) (quoting McCollum, 505 U.S.
criminal justice system by way of the jury panel.” Id. (Scott, J.,
Snyder, 552 U.S. at 478); see also Powers v. Ohio, 499 U.S. 400,
27
fairness of a criminal proceeding in doubt.” (quoting Rose v.
Valdez, 966 P.2d at 592 n.11 (a trial court may not interject its own
that the trial court erred in denying the Batson challenge at issue
here.
IV. Conclusion
28
JUDGE HARRIS, specially concurring.
conclude that this right was violated, I agree with Judge Fox that
system, he would likely persuade other jurors that the police had
29
qualify as race-neutral. Hernandez v. New York, 500 U.S. 352, 360
(1991).
I. Applicable Facts
crime immediately, but she could not identify the perpetrator and
the case went cold. Years later, the police retested evidence from
the victim’s rape kit; DNA from the vaginal swab matched Ojeda.
¶ 40 Juror R.P. disclosed that he and his ex-wife had been victims
30
individually by counsel. He explained that the “inappropriate
¶ 41 Later, during group voir dire, the prosecutor asked eight of the
one to ten. Two jurors rated the system a nine or ten, but of the
other six jurors, two rated it a four, three gave it a five or six, and
one rated it a six or seven. Juror R.P. gave the system a score of
views affect him as a juror, his feelings about the system might
color the way he “hear[d] and weigh[ed] the evidence in the case.”
31
Juror R.P. said that the delay raised questions: “Maybe the person
didn’t disclose for some reason, the victim? Or maybe there was a
¶ 43 The prosecutor challenged Juror R.P. for cause. She said that
his demeanor.
Next, she turned to Juror R.P.’s voir dire comments, focusing on his
admission that his bias would “impact his ability to listen to both
sides” and said that he “visibly showed hesitation” about his ability
various grounds. Then he noted that Juror R.P. was “one of the few
Batson, the prosecutor could not “exclude him just because he’s
him in this case.” The court clarified, however, that it had not
the court on whether Ojeda had made out a prima facie case of
33
¶ 48 First, she expressly incorporated her comments related to her
would hear that the police had misplaced the victim’s rape kit and
discussed his own concerns about being racially profiled, Juror R.P.
“charged in the case.” The prosecutor also noted that the jury still
34
¶ 49 Defense counsel disputed that the prosecutor’s reasons were
reasons given by the prosecutor. Juror R.P. and his ex-wife were
both victims of sexual assault, the court said, and Juror R.P.
his own lifetime.” As well, Juror R.P.’s “first thought” when the
prosecutor asked about the delay in bringing the case to trial “was
that the victim had delayed disclosure.” And then there was Juror
R.P.’s “anti-law enforcement ben[t],” which the court did not explain
35
final ruling on Ojeda’s Batson objection. Following the court’s
ruling, the prosecutor added that she, too, had “taken a note” about
Juror R.P.’s comments concerning the delay and that they were “of
particular concern.”
course of action “at least in part ‘because of,’ not merely ‘in spite of,’
York, 500 U.S. 352, 360 (1991) (quoting Pers. Adm’r v. Feeney, 442
587, 590 (Colo. 1998). Thus, the second step of the process does
Hernandez, 500 U.S. at 360. The reason need only be race neutral.
than the race of the juror.” Id.; see also People v. Mendoza, 876
P.2d 98, 101 (Colo. App. 1994) (at step two of Batson analysis,
Easterling, 648 F.3d 380, 388 (6th Cir. 2011). Still, the prosecutor
III. Analysis
A.
38
¶ 58 Ojeda argues that the district court clearly erred at step three
of the Batson analysis. And Judge Fox persuasively credits his view
of the record. But in my view, the district court did not conduct a
Beauvais, ¶ 23.
¶ 60 So, in the typical third step case, the prosecutor has explained
the strike by asserting, for example, that the juror has a mustache
and a beard, see Purkett, 514 U.S. at 769, or that the juror would
39
evidence that these are not the true reasons for the strike and,
¶ 61 But here, the prosecutor did not claim that she had struck
during voir dire; she claimed she struck Juror R.P. because, as a
person of color who had some concerns about the criminal justice
system, he was likely to rally the jury around a theory of the case —
defendant, too, was Hispanic. And defense counsel did not argue
that the proffered reason for the strike was false and merely a
the trial court did not determine that the prosecutor’s reason was
objection.
40
¶ 62 Therefore, like Judge Fox, I see no reason to remand to the
360.
B.
that the trial court cannot supply its own race-neutral reasons for
the prosecutor’s strike. See Valdez, 966 P.2d at 592 n.11. That
juror based on race? See Miller-El v. Dretke, 545 U.S. 231, 252
41
¶ 64 Relying on Beauvais, the People contend that the court’s
reliance on its own race-neutral reasons for the strike does not
grounds for striking Juror R.P., the court “implicitly credited” the
(Indeed, the reasons were so closely tied that the court prefaced its
cause.”) The trial court did not accept the prosecutor’s reasons,
———————————————————————
2 In People v. Beauvais, 2017 CO 34, the defendant raised a Batson
objection after the prosecutor exercised all of his peremptory strikes
against female jurors. Id. at ¶ 6. The trial court considered all of
the prosecutor’s proffered reasons and determined that while the
reasons were “not strong,” the defendant had not carried her
burden to show purposeful discrimination. Id. at ¶ 12. On appeal,
a majority of a division of this court remanded, concluding that, in
the absence of specific credibility findings, it could neither
42
reasons and determined that, even setting aside the proffered
Thus, I read the trial court’s oral ruling as a finding, and a fairly
explicit one, that the prosecutor’s explanation was not race neutral
———————————————————————
adequately review the prosecutor’s reasons nor infer that the trial
court had credited the demeanor-based reasons. Id. at ¶ 16. The
supreme court reversed. It held that specific credibility findings are
unnecessary to affirm a step three ruling, whether the proffered
reasons are demeanor-based or non-demeanor-based. Instead, it
instructed, an appellate court conducting a clear error review
should defer to a trial court’s ultimate Batson ruling “so long as the
record reflects that the trial court weighed all of the pertinent
circumstances and supports the court’s conclusion” regarding
purposeful discrimination. Id. at ¶ 32.
43
inquiry at this second step is the same — accepting what the
race-based?
offered multiple independent reasons for the strike. She did not
say, for instance, that Juror R.P. had a mustache, lacked a science
concerns about the criminal justice system, Juror R.P. was likely to
“steer the jury toward a race-based reason why Mr. Ojeda,” who
44
prospective juror because she had a bad experience with law
part and rev’d in part on other grounds, 2018 CO 90. And here, if
the prosecutor had said only that the strike was based on Juror
agree that the reason was race neutral. People of all races have
R.P.’s race to his views on the justice system. It was not just that
Juror R.P. had concerns about the system; it was also that he was a
for the prosecution and then try to persuade the other jurors to
45
R.P.’s status as “a person of color” and his so-called
other.” In those cases, I agree with the People that the juror’s
not the juror, attributes the juror’s worldview to his or her race, or
links the juror’s race and worldview to the defendant’s race, then
neutral. See, e.g., United States v. Bishop, 959 F.2d 820, 822-26
because she lived in Compton and therefore likely believed that the
where the juror had not expressed any view of the police); see also
46
likely than whites to consider fairly or sympathetically the State’s
did not meet her burden at step two of the Batson analysis to
C.
animus. A defendant need not show that the race-based strike was
47
harbored ill will or prejudice toward Juror R.P. or any other person
of color.
account of their race.” 476 U.S. at 89. The notion that jurors of a
Neal v. Delaware, 103 U.S. 370, 393-94 (1880). But more often, a
help his or her client.” Dretke, 545 U.S. at 271 (Breyer, J.,
concurring).
jurors from the jury. But if the accused is a new mother, the
48
assume that black male jurors are likely to have had bad
experiences with police officers and strike them from the jury in any
same as it would be were the motive less benign.” Id. at 271. And
a sexist, and the black prosecutor who strikes black male jurors is
49
I suspect that trial judges hesitate to sustain Batson challenges,
go unchecked.
IV. Conclusion
striking Juror R.P. was based in part on his race. I do not conclude
Nonetheless, because the result is the same, I agree with Judge Fox
50
JUDGE HAWTHORNE, dissenting.
majority and concurrence decide this case given the record before
And that’s because the trial court’s Batson analysis was inadequate
Ojeda “ma[d]e a prima facie showing that the peremptory strike was
51
case to the trial court with directions that it conduct the three-step
Batson analysis and make the required factual findings. See id. at
I. Relevant Facts
grounds: (1) “the content of his questionnaire”; (2) “his remarks that
he made in open court”; and (3) “his demeanor.” She explained that
Juror R.P. had expressed a “bias” against the system and “visibly
52
And that, in my mind, very much dovetailed
with his — he’s not a forceful speaker in the
sense that he raises his voice, but he is a man
of very great conviction. And what he talked
about is that he had — he used the word
“bias” against the system. He gave our system
the lowest rating of anyone who has been
asked to offer a score. I believe his score was
4.
R.P. was also one of the few Hispanic males on the prospective jury
and that counsel didn’t “know that it’s appropriate to exclude him
53
just because he’s Hispanic and may have something in common
then requested that the court repeat its ruling “with regard to the
Batson issue,” and the court clarified that it “didn’t really reach
there was not anywhere near a sufficient record that they would
54
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.
55
¶ 86 The prosecutor continued by noting the racial composition of
the jury box and of the group of prospective jurors recently struck
56
in the case, and that is because he talked
about that — [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.].
supplemented her record by noting that she had in her notes that
when Juror R.P. heard the age of the case, he thought something
might have gone wrong, which also caused her “particular concern.”
57
II. The Batson Analysis
case depends upon whether the trial court completed the Batson
way, the threshold question is: Did the trial court make sufficient
that the prosecutor struck Juror R.P. because of his race? Id. I
58
Instead, I’ll only reiterate what I believe is most relevant to this
case.
prima facie showing that the peremptory strike was based on the
step one, the burden is on the defendant and the trial court should
Rodriguez, ¶ 13.
burden shifts at step two to the striking party — here, the People —
59
required for the inquiry to proceed to step three.” Id. But again,
the trial court should make a record stating whether the prosecutor
added).
Dretke, 545 U.S. 231, 252 (2005); see Hernandez v. New York, 500
U.S. 352, 378 (1991) (“[T]he Court has imposed on the defendant
60
¶ 96 The trial court’s ruling at step three “should be based on its
reason does not hold up, its pretextual significance does not fade
because a trial judge . . . can imagine a reason that might not have
appellate court should defer, reviewing only for clear error.” Id.
61
here largely will turn on evaluation of credibility, a reviewing court
U.S. at 98 n.21.
¶ 101 I begin with Batson’s step one, where Ojeda “must make a
prima facie showing that the peremptory strike was based on” Juror
excusing Hispanic males from the jury.” At that point, the trial
for the strike. And after she did so, the trial court again should
62
counsel if he had “anything further?” Defense counsel promptly
being made by [Juror R.P.] because he’s Hispanic.” The court then
¶ 102 Although our review at steps one and two is de novo, we’re
aren’t any factual findings because the court’s Batson analysis was
the trial court and make factual findings of our own. Under those
that point, we can properly proceed with our de novo review. See
id. at ¶¶ 2, 13.
¶ 103 Finally, at step three, our review of the court’s ruling “as to the
should defer, reviewing only for clear error.” Id. at ¶ 13. This is
63
[or her] explanation.” Id. at ¶ 12; see also Wilson, ¶ 13 (“The
¶ 104 But again, the trial court’s step-three analysis was inadequate.
Unlike at steps one and two, the court did make some findings at
striking Juror R.P.: (1) that R.P. and his wife were not only sexual
surmised the age of the case might have been because of the
the second reason after the court made its Batson ruling, neither
strike[] at issue.” Valdez, 966 P.2d at 592 n.11; see also Dretke,
64
545 U.S. at 252 (“The Court of Appeals’s and the dissent’s
that the trial court never evaluated the validity of the prosecutor’s
¶ 105 So, arguably, the only mention the court made to a reason
65
exhibited the basis for the strike attributed to
the [prospective] juror by the prosecutor.”
(2008)); see also Wilson, ¶ 18 (“Only the trial court can assess
trial court’s shoes and, relying on the cold record, say whether the
¶¶ 17-18 (where the trial court didn’t make the necessary findings
tell whether the prosecutor struck [the juror] because of her race”).
The need for the trial court’s factual findings at each step is made
three judges on this court are divided about how to interpret the
prosecutor’s words.
V. Conclusion
¶ 107 I believe that the proper remedy is for us to remand the case to
66
analysis and make the required factual findings at each step. The
dissent.
67