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State v. Curry

Court of Appeals of Oregon

July 3, 2019

STATE OF OREGON, Plaintiff-Respondent,
ANTHONY LENAIRE CURRY, Defendant-Appellant.

          Argued and submitted November 29, 2017

          Washington County Circuit Court C142231CR; Janelle F. Wipper, Judge.

          Zachary Lovett Mazer, Deputy Public Defender, argued the cause for appellant. Also on the opening and reply briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services. Anthony Lenaire Curry fled the supplemental and supplemental reply briefs pro se.

          Jacob Brown, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case Summary:

         Defendant, a black male, appeals his conviction for multiple sex offenses against a minor white female. Among those summoned as potential jurors for defendant's trial were three unemployed college students. Two were white and one was black. After each was passed for cause, the two white students were empaneled and the black student was stricken by the prosecutor's exercise of a peremptory challenge. Defendant objected under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), arguing that it was inferable that the prosecutor was excluding the one black juror based on race, given the races of defendant and the victim. Held: Under the comparative juror analysis, as applied in Snyder v. Louisiana, 552 U.S. 472, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008), the court erred in overruling defendant's Batson objection. On this record, it is implausible to think that the prosecutor's articulated reason for exercising the peremptory strike against the black juror was anything other than pretextual [298 Or.App. 378] because the prosecutor's stated reason-that the black juror was a young, unemployed college student-applied with equal force to the two seated white jurors.

         Reversed and remanded.

         [298 Or.App. 379] LAGESEN, P. J.

         Faced with criminal charges, defendant, who is black, opted to exercise his state and federal constitutional rights to a jury trial. Among those summoned as potential jurors for defendant's case were three college students home for the summer. Each was passed for cause-that is, determined to be capable of deciding this case fairly and impartially in accordance with the law. Robert and Sarah, who are white, were empaneled as jurors. Fitsum, who is black-and the sole African-American in the jury pool that day-was not empaneled after the prosecutor exercised a peremptory strike against him and the trial court overruled defendant's objection under Batson v. Kentucky, 476 U.S. 79, 85, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The question before us is whether, under the "comparative juror" analysis adopted by the Supreme Court in Miller-El v. Dretke, 545 U.S. 231, 241, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005), and applied in Snyder v. Louisiana, 552 U.S. 472, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008), and Flowers v. Mississippi, ___ US ___, ___ S Ct ___, ___ L.Ed.2d ___, 2019 WL 2552489 (June 21, 2019), the court erred in overruling defendant's Batson objection. Although Snyder and Miller-El have both been on the books for more than a decade, this case appears to present the first opportunity for our court to consider a trial court's ruling on a Batson challenge under the comparative juror analysis.[1] We conclude that, under that analysis, the trial court erred when it overruled defendant's Batson objection and, further, [298 Or.App. 380] that the error is one that requires reversal. We therefore reverse and remand.[2]

         I. BACKGROUND

         A. Applicable Law

         The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution provides that no state "shall deny to any person within its jurisdiction the equal protection of the laws." That clause affords a litigant the right not to have potential jurors of the same race excluded from the jury on account of race. Batson, 476 U.S. at 85. It also affords a litigant the right not to have potential jurors of the same gender excluded from the jury on account of gender. J.E.B. v. Alabama, 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994).

         In the context of a jury trial, the Equal Protection Clause does not protect the rights of litigants alone. It also protects the rights of each citizen who makes the sacrifice of time and often money demanded by a summons for jury duty. Every potential juror who shows up at the courthouse for jury service has "the right not to be excluded from [a jury] on account of race." Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). And every potential juror has the right not to be excluded from a jury on account of gender. J.E.B., 511 U.S. at 145-46.

         The recognition and respect of those rights by lawyers acting on behalf of the state is critical to the just and fair functioning of our judicial system.[3] As the Supreme Court has told us:

[298 Or.App. 381] "Discrimination in jury selection, whether based on race or on gender, causes harm to the litigants, the community, and the individual jurors who are wrongfully excluded from participation in the judicial process. The litigants are harmed by the risk that the prejudice that motivated the discriminatory selection of the jury will infect the entire proceedings. The community is harmed by the State's participation in the perpetuation of invidious group stereotypes and the inevitable loss of confidence in our judicial system that state-sanctioned discrimination in the courtroom engenders."

Id. at 140 (internal citation omitted). Thus, starting in 1879 with Strauder v. West Virginia, 100 U.S. 303, 10 Otto 303, 25 L.Ed. 664 (1879), the Court has attempted to eradicate racial discrimination in the selection of jurors and, more recently, has taken steps toward eliminating gender discrimination in that process. However, safeguarding against the unconstitutional discriminatory exclusion of jurors has not been easy: "The rub has been the practical difficulty of ferreting out discrimination in selections discretionary by nature, and choices subject to myriad legitimate influences, whatever the race of the individuals on the panel from which jurors are selected." Miller-El, 545 U.S. at 238. As a result, over time, the Court has intensified the scrutiny given to a prosecutor's exercise of a peremptory strike alleged to be impermissibly discriminatory. See id. at 238-40 (discussing evolution of Supreme Court precedent).

         The Court's decision in Batson established the three-step process by which a litigant may challenge the exercise of a peremptory strike of a juror as impermissibly race- (or, after J.E.B., gender-) based. To bring a Batson challenge, a litigant must make a prima facie showing that a peremptory strike was based on race or gender. The standard for making a prima facie showing is not high. A litigant does so "by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred." Johnson v. California, 545 U.S. 162, 170, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005) (rejecting claim that prima facie Batson showing required demonstration that it was [298 Or.App. 382] more likely than not that discrimination occurred). One way a criminal defendant may make a prima facie case is by demonstrating that "the totality of the relevant facts about a prosecutor's conduct during the defendant's own trial" allows for an inference of discrimination. Miller-El, 545 U.S. at 239 (internal quotation marks omitted). "'Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging *** jurors' within an arguably targeted class." Id. (quoting Batson, 476 U.S. at 97). If the state does so, then the trial court must, after consulting "all of the circumstances that bear on racial animosity," determine whether the defendant has shown purposeful discrimination by the state. Snyder, 552 U.S. at 478.

         Although the adoption of the Batson framework made it easier for a criminal defendant to challenge a prosecutor's exercise of a peremptory strike than it had been under the Court's prior case law, the framework "came with a weakness of its own owing to its very emphasis on the particular reasons a prosecutor might give." Miller-El, 545 U.S. at 239-40. That is because some race (or gender) neutral reasons supplied by prosecutors are false or pretextual:

"If any facially neutral reason sufficed to answer a Batson challenge, then Batson would not amount to much more than [the prior precedent]. Some stated reasons are false, and although some false reasons are shown up within the four corners of a given case, sometimes a court may not be sure unless it looks beyond the case at hand."

Id. at 240. Thus, as the Court emphasized in Miller-El, a court reviewing a Batson challenge must consult "'all relevant circumstances.'" Id. (quoting Batson, 476 U.S. at 96-97). As we read the Court's decisions, the assessment of "all relevant circumstances" includes, among other things, conducting a comparative juror analysis-at least when the record is adequate to do so-to determine whether a prosecutor's proffered race neutral reason for excluding a minority juror "applies just as well to an otherwise-similar [nonminority] who is permitted to serve." Id. at 241. If it does, "that is evidence tending to prove purposeful discrimination to be considered at Batson's third step." [298 Or.App. 383] Id.[4]; Flowers, ___ US at ___, ___ S Ct at ___, 2019 WL 2552489 at *15 ("Comparing prospective jurors who were struck and not struck can be an important step in determining whether a Batson violation occurred.").

         Under Powers, a criminal defendant has standing to raise a Batson challenge not only to protect his own Fourteenth Amendment rights but also to protect the Fourteenth Amendment rights of potential jurors. 499 U.S. at 415. That is largely because "[t]he discriminatory use of peremptory challenges by the prosecution causes a criminal defendant cognizable injury, and the defendant has a concrete interest in challenging the practice," and because wrongfully excluded jurors have no other easy way to vindicate their own rights. Id. at 411-15.

         Snyder illustrates the comparative juror analysis and how that analysis can reveal purposeful discrimination by a prosecutor in the exercise of a peremptory strike. There, the Court applied a comparative juror analysis (although the trial court had not done so) to determine that the prosecutor's exercise of a peremptory strike against a black juror was discriminatory and that the trial court, therefore, erred by overruling the defendant's Batson objection. At issue was the prosecutor's peremptory strike of Brooks, who was a college senior attempting to complete student-teaching obligations. In response to the defendant's Batson objection, the prosecutor offered two race neutral reasons for the strike: (1) that Brooks "looked very nervous * * * throughout the questioning"; and (2) that, because Brooks was a student teacher, "he might, to go home quickly, come back with guilty of a lesser verdict so there wouldn't be a penalty phase." Snyder, 552 U.S. at 478. The trial court summarily rejected the defendant's Batson challenge and allowed the peremptory strike. Id. at 479. The Louisiana Supreme Court affirmed the trial court's rejection of the defendant's Batson challenge.

         [298 Or.App. 384] The Supreme Court determined that the Louisiana courts had erred. It first concluded that the trial court's ruling could not be sustained on the ground that the prosecutor's peremptory strike had been based on Brooks's demeanor because "the record [did] not show that the trial judge actually made a determination concerning Mr. Brooks' demeanor." Id. Absent a "specific finding on the record concerning Mr. Brooks' demeanor," the Court could not "presume that the trial judge credited the prosecutor's assertion that Mr. Brooks was nervous," and, thus, could not sustain the trial court's rejection of the defendant's Batson challenge based on demeanor findings.[5] Id.

         As to the prosecutor's second articulated reason for striking Brooks, the Court determined that it was implausible and pretextual, when considered against the record as a whole. The Court first observed that the prosecutor's expressed fear that Brooks, to avoid a potential conflict with his student-teaching obligations, would be inclined to return a verdict on a lesser-included offense to eliminate the need for a penalty phase, was "highly speculative," because the defendant's trial was expected to be short, and because Brooks's school had informed the court that it did not think Brooks's jury service on a trial that length would interfere with Brooks's school obligations. Id. at 482-83.

         The Court then conducted a comparative juror analysis, determining that "[t]he implausibility of [the prosecutor's second] explanation [was] reinforced by the prosecutor's acceptance of white jurors who disclosed conflicting obligations that appear to have been at least as serious as Mr. Brooks'." Id. at 483. The Court noted that one white juror who the prosecutor did not strike, Laws, had expressed concerns about family and work obligations that "seem[ed] substantially more pressing than Mr. Brooks' [concerns]." Id. at 483-84. That, to the Court, suggested that the prosecutor's explanation as to Brooks was pretextual: "If the prosecution [298 Or.App. 385] had been sincerely concerned that Mr. Brooks would favor a lesser verdict than first-degree murder in order to shorten the trial, it is hard to see why the prosecution would not have had at least as much concern regarding Mr. Laws." Id. at 484. So did the fact that the prosecutor did not exercise a peremptory strike against another white juror who also had expressed concerns about how the trial would interfere with his work obligations. Id. at 484. Thus, the Court concluded, "[t]he prosecution's proffer of this pretextual explanation naturally gives rise to an inference of discriminatory intent." Id. at 485. Accordingly, the Court held that "the trial court committed clear error in its ruling on a Batson objection" and reversed. Id. at 474.

         B. Factu ...

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