Opinion
Court of Appeals No. A-9530.
March 4, 2009.
Appeal from the Superior Court, Third Judicial District, Anchorage, Larry D. Card, Judge, Trial Court No. 3AN-01-05823 CR.
Douglas Moody, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for Appellant. Tamara E. de Lucia, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Enrique T. Blasio, a Hispanic male, was convicted of four counts of second-degree misconduct involving a controlled substance. He challenges his conviction on equal protection grounds under Batson v. Kentucky, claiming that Superior Court Judge Larry D. Card erred in allowing the State to peremptorily strike the only Hispanic juror on his panel, Noe González. We conclude that the record shows that Judge Card accepted the prosecutor's representation that he had peremptorily challenged González for a nondiscriminatory reason. And we conclude that the record supports Judge Card's ruling. We accordingly affirm Blasio's convictions.
AS 11.71.020(a)(1).
476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
During jury selection at Blasio's trial, the parties separately submitted their peremptory challenges in a blind process where neither party could see which jurors the other was challenging. After looking at the preemption sheets, Judge Card called a sidebar to discuss one of the peremptory challenges made by the State, the challenge to juror González. Judge Card noted that González was apparently the only Hispanic on the jury, and sua sponte raised a Batson challenge to the State's use of its peremptory challenge to strike González. (Blasio's attorney stated that she would have made a Batson challenge if Judge Card had not done so.) Judge Card asked the prosecutor to give a nondiscriminatory reason why he peremptorily challenged González. The prosecutor responded that he had challenged González because, when the parties were questioning the jurors, González had indicated that he had been on a jury which had been unable to reach a verdict. Judge Card stated that he was not satisfied with the prosecutor's answer, but he also observed that he had known the prosecutor for a while and stated, "I don't think you have a discriminatory bone in your body." At this point, the prosecutor added that he had also considered the fact that González had long hair in deciding to exercise the peremptory challenge. Judge Card reserved ruling on whether to grant the State's peremptory challenge of González until the following day.
The next day, the prosecutor indicated that the prosecution had considered not only the fact that González sat on a jury which did not reach a verdict, but that the case González had previously sat on was a felony drug case. The prosecutor indicated that he tended to peremptorily challenge men who had long hair and pointed out that he had peremptorily challenged the other prospective male juror who had long hair.
Judge Card pointed out that, based upon the appearance of the jurors and looking at the list of their surnames, it appeared that Mr. González was the only Hispanic in the jury pool. Judge Card had pointed out earlier that the fact that González had been on a jury which was unable to reach a decision was a description that would apply to many people and was not a particularly compelling reason to peremptorily challenge a juror. Judge Card also stated that he was aware of many people who had long hair and were very conservative. But he concluded that Blasio did not have a constitutional right to have a jury with a Hispanic juror and ruled that "the state's concerns are nondiscriminatory." Judge Card therefore found that the State's nondiscriminatory reasons for exercising the peremptory challenge were genuine and not pretexts for discrimination. Blasio appeals.
In 1986, the United States Supreme Court decided Batson v. Kentucky, holding that although "a defendant has no right to a `petit jury composed in whole or in part of persons of his own race,'" he does have a right under the Fourteenth Amendment to the United States Constitution "to be tried by a jury whose members are selected pursuant to nondiscriminatory criteria." The Court set out a three-step process for trial courts to follow in evaluating Batson claims: (1) the defendant must first make a prima facie showing of discrimination; (2) the burden of production then shifts to the State to provide a race-neutral reason for the strike; and (3) the court must then "determine if the defendant has established purposeful discrimination." In the third step, "the decisive question" is often whether the State's "race-neutral explanation for a peremptory challenge should be believed." The burden of persuasion always remains with the defendant.
Batson, 476 U.S. at 85-86, 106 S. Ct. at 1716-17 (quoting Strauder v. West Virginia, 100 U.S. 303, 305, 25 L. Ed. 664 (1880)) (footnotes omitted).
Batson, 476 U.S. at 96-98, 106 S. Ct. at 1723-24; see also Hernandez v. New York, 500 U.S. 352, 358-59, 111 S. Ct. 1859, 1865-66, 114 L. Ed. 2d 395 (1991).
Hernandez, 500 U.S. at 365, 111 S. Ct. at 1869.
Batson, 476 U.S. at 94 n. 18, 106 S. Ct. at 1721 n. 18.
In the present case, it appears that Judge Card was particularly concerned that the State was about to peremptorily challenge the only Hispanic juror in a case where the defendant was Hispanic. He therefore closely examined the State's reasons for exercising a peremptory challenge of this juror. Ultimately, however, Judge Card found that the State's race-neutral reason for exercising the peremptory challenge was genuine. We conclude that Judge Card was not clearly erroneous in reaching this conclusion. We accordingly affirm Blasio's convictions.
The judgment of the superior court is AFFIRMED.
I write separately to emphasize one point concerning Batson challenges. When a Batson challenge is raised and a lawyer is asked to specify their reasons for peremptorily challenging a prospective juror, it does not matter whether the trial judge (or the appellate court) finds the lawyer's reasons convincing or even logical. What matters is whether the lawyer is using the peremptory challenge as a means of racial discrimination.
We explained this point of law in Gottschalk v. State, 36 P.3d 49 (Alaska App. 2001):
[Even if the juror's answers during voir dire] would not lead a reasonable person to question [the juror's] ability to be fair, or to question [the juror's] willingness to follow the judge's instructions . . . [,] that is not the issue under Batson. An attorney's reason for exercising a peremptory challenge need not constitute a reason that would justify a challenge for cause. Indeed, requiring affirmative proof of the prospective juror's inability to be fair would defeat the whole concept of a peremptory challenge. Batson requires only that the attorney honestly base their peremptory challenge on a race-neutral reason — "something other than the race of the juror". [ Hernandez v. New York, 500 U.S. 352, 360; 111 S.Ct. 1856, 1866; 114 L.Ed.2d 395 (1991).]
If the attorney offers a race-neutral explanation for the challenge, and if the attorney is acting in good faith — if the attorney's stated reason for exercising the challenge is not simply a subterfuge for racial discrimination — then the peremptory challenge will survive a Batson objection even if the attorney's reason for the challenge is "not . . . persuasive or even plausible". [ Purkett v. Elem, 514 U.S. 765, 768; 115 S.Ct. 1769, 1771; 131 L.Ed.2d 834 (1995) ( per curiam).]
Gottschalk, 36 P.3d at 53-54 (footnotes replaced with bracketed citations).
In Blasio's case, the prosecutor offered two primary reasons for challenging juror González: the fact that González had previously served on a jury that was unable to reach a verdict, and the fact that González had long hair. The trial judge declared that neither of these reasons was a good one — but the trial judge nevertheless found that the prosecutor's reasons were non-discriminatory (in other words, the prosecutor's offered reasons were not a subterfuge for racial discrimination). This finding is, for Batson purposes, determinative.