State v. Davis

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, v. CLEOPHEUS DAVIS, ) ) Appellee, ) ) ) ) ) ) Appellant. ) ) DIVISION ONE FILED: 01/21/2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CR 08-0608 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2006-156060-001 DT The Honorable Rosa Mroz, Judge AFFIRMED Terry Goddard, Attorney General Phoenix by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section and Susanne Bartlett Blomo, Assistant Attorney General Attorneys for Appellee James J. Haas, Maricopa County Public Defender by Karen M. Noble, Deputy Public Defender Attorneys for Appellant W I N T H R O P, Judge Phoenix ¶1 Cleopheus Davis ( Appellant ) appeals from his convictions and sentences for possession of narcotic drugs and possession of drug paraphernalia. court erred State s in denying peremptory He contends that the trial Batson1 his strikes. For challenge the to following two of the reasons, we charged by affirm. FACTS AND PROCEDURAL HISTORY2 ¶2 On April 16, 2007, Appellant was information with one count of possession or use of narcotic drugs, a class 4 felony, and one count of possession of drug paraphernalia, ( A.R.S. ) §§ a class 13-3408 6 felony. (Supp. See 2009),3 Ariz. 13-3415 Rev. (2001). Stat. These charges stemmed from events occurring on June 2, 2006. ¶3 At counts, trial, the and the court jury found Appellant sentenced Appellant guilty to of both concurrent mitigated terms of eight and three years on the two counts, respectively. 1 See Batson v. Kentucky, 476 U.S. 79 (1986). 2 We view the facts in the light most favorable to sustaining the verdict, and we resolve all reasonable inferences against Appellant. State v. Greene, 192 Ariz. 431, 436, ¶ 12, 967 P.2d 106, 111 (1998). 3 We cite the current version of the statute because revisions material to our analysis have since occurred. 2 no ¶4 We have jurisdiction over Appellant s timely appeal. See Ariz. Const. art. 6, § 9; A.R.S. §§ 12-120.21(A)(1) (2003), 13-4031 (2001), 13-4033(A) (Supp. 2009). ANALYSIS ¶5 his Appellant argues that the trial court erred in denying Batson prospective challenge to juror ( Juror 33 the State s 33 ) peremptory and strikes prospective of juror 40 ( Juror 40 ), apparently the only identified African American venire persons.4 ¶6 We will not reverse a trial court s denial of a Batson challenge unless clearly erroneous. State v. Newell, 212 Ariz. 389, 400, ¶ 52, 132 P.3d 833, 844 (2006). First, a party making a Batson challenge must make a prima facie showing that the strike was based on race. State v. Gay, 214 Ariz. 214, 220, ¶ 17, 150 P.3d 787, 793 (App. 2007). strike strike, must then which provide must be a more The party exercising the race-neutral than a mere explanation denial motive, but need not be persuasive or plausible. race-neutral reason is given, the challenging of Id. for the improper Once a party must persuade the court that the proffered explanation is a pretext for discrimination. Id. We give great deference to the trial 4 The record does not identify the race of other persons on the panel. Although not relevant to our analysis, we also note that Appellant is African American. 3 court s determination pretextual because whether that a court race-neutral is in the explanation best position is to evaluate the prosecutor s sincerity and credibility, as well as the venire panel s behavior. See State v. Canez, 202 Ariz. 133, 147, ¶ 28, 42 P.3d 564, 578 (2002); Gay, 214 Ariz. at 220-21, ¶¶ 17, 19, 150 P.3d at 793-94. ¶7 In this case, at the conclusion of jury selection, defense counsel raised a Batson challenge to the prosecutor s use of peremptory strikes for Juror 33 and Juror 40. Although the trial court did not specifically find that defense counsel had made a prima facie showing that the strikes were based on race, the court asked the prosecutor to articulate race-neutral reasons for striking Juror 33 and Juror 40. In so doing, the court implicitly found that defense counsel had made a prima facie showing under the first step of the Batson analysis. See Gay, 214 Ariz. at 220-21 n.4, ¶ 18, 150 P.3d at 793-94 n.4. ¶8 During jury selection, Juror 33, an unmarried father who had never served on a jury before, described himself as semi-retired and working in the logistics operation for Micro Electronic Center. When the trial court asked, Have you or a close relative or friend of yours ever been arrested, charged or convicted of any crime other than a minor traffic offense? , Juror 33 reported that his youngest brother had been in prison 4 three times, most recently for a drug crime. The following exchange took place: THE COURT: Do you think you can set aside what happened to your brother and judge this case fairly and impartially? [JUROR 33]: truth. I really don t know, to tell you the THE COURT: Okay. If you were sitting in [Appellant s] position, would you want someone such as yourself to be sitting in judgment? [JUROR 33]: I think I would be okay with it. THE COURT: Okay. If you were sitting where the prosecutors are sitting, would you want someone such as yourself to be sitting in judgment? [JUROR 33]: If I was sitting at Mr. THE COURT: If you were sitting over here, you were with the prosecution now. [JUROR 33]: I don t think it would be a problem. THE COURT: You don t think you could be impartial or did you think it would be a problem? [JUROR 33]: Again, it s a tough one to call, really, whether I could be able to stand in judgment or not. THE COURT: Okay. All right. I just want to make sure I m understanding you. Because when I asked you the first time if you were sitting over where [Appellant] is sitting, the defense, would you want someone such as yourself to be sitting in judgment? [JUROR 33]: Yes. THE COURT: You would? So now we re switching to the other side. I want to make sure I understand what 5 your answers were. If you were on the prosecution s side, you re the prosecutor, would you want someone such as yourself to be sitting in judgment? [JUROR 33]: Yes. When challenged, the prosecutor cited Juror 33 s inconsistent statements and initial reluctance to be more sympathetic for the prosecution. herself as Juror 40, who had never sat on a jury, described unmarried, without children, appraisals department of a local bank. question as Juror 33, above, Juror 40 and working in the In response to the same reported that she had been arrested for domestic violence in 2006, but that the situation had been resolved and [e]verything was dropped. When asked, Would you be able to set aside what happened to [you] and judge this case fair and impartial [sic]? , Juror 40 said, Yes. ¶9 cited When explaining her strike of Juror 40, the prosecutor the domestic violence arrest coupled with what the prosecutor asserted was a noticeable smirk that was personally observed not only by myself but other people in the courtroom. Defense counsel said that she had not observed a smirk, but did not reject the possibility that Juror 40 may have smirked when she said, That could be for other reasons if she had a smirk on her face. ¶10 The trial court found that the State s reasons for striking Juror 33 and Juror 40 were race-neutral and denied 6 defense counsel s Batson challenge. We conclude that the trial court did not err in finding the prosecutor s explanations raceneutral and not a pretext for purposeful discrimination. ¶11 With respect to Juror 33, the State s concerns about inconsistent statements may qualify as reasonable race-neutral explanations explanation for is a strike, undercut by unless other the plausibility evidence of of the pretext. See Miller-El v. Dretke, 545 U.S. 231, 248 (2005); Newell, 212 Ariz. at 401-02, ¶ 58, 132 P.3d at 845-46. inconsistent statements, the In addition to Juror 33 s prosecutor also perceived a reluctance to be more sympathetic [to] the prosecution rather than the defense. As long as it is not based on race, perceived sympathy on the part of a prospective juror toward a defendant is a legitimate basis for a peremptory strike. State v. Hernandez, 170 Ariz. 301, 305-06, 823 P.2d 1309, 1313-14 (App. 1991) (concerning prospective juror who might be overly sympathetic to youthful-looking defendant). ¶12 Appellant argues that the trial court inaccurately recalled Juror 33 saying [I] really don t know or I don t know, something to that effect when asked whether he could be fair and impartial. As noted above, however, Juror 33 said, I really don t know, to tell you the truth when asked if he could judge the case fairly and impartially. 7 Furthermore, during the same exchange, Juror 33 said, [I]t s a tough one to call . . . whether I could be able to stand in judgment or not[,] when asked if he could be impartial. A prosecutor s explanation for exercising based a peremptory strike upon concerns about a juror s ability to be fair and impartial need not rise to the level justifying exercise of a challenge for cause. Batson, 476 U.S. at 97; see State v. Purcell, 199 Ariz. 319, 329, ¶ 33, 18 P.3d 113, 123 (App. 2001). Thus, the trial court did not err in finding the State s reason for striking Juror 33 to be raceneutral. ¶13 Regarding Juror 40, mention of her prior arrest for domestic violence exercising a constitutes a peremptory strike. race-neutral reason for See Canez, 202 Ariz. at 146, ¶ 26, 42 P.3d at 577 (mentioning criminal history as raceneutral reason for exercising peremptory strike). Additionally, the prosecution explained to the court, when you asked whether she could be fair and impartial, she sat down with a smirk on her face[.] to feelings [A]lthough it is inappropriate to simply allude about a juror, it factors which reflect attitude. is appropriate to Hernandez, 170 Ariz. at 305, 823 P.2d at 1313 (citations omitted). A smirk could reflect the potential juror s attitude about the proceedings. 8 consider Combined with Juror 40 s prior arrest, the trial court did not err in finding the prosecutor s justifications to be race-neutral. ¶14 Citing Miller-El v. Dretke, 545 U.S. 231, Appellant argues that the prosecutor should have further questioned the two jurors if she was concerned about either potential juror s impartiality or attitude.5 of action, questions peremptory the are a Miller-El While this is the preferable course court requirement strike. did before Moreover, the not a hold that prosecutor prosecutor s follow-up exercises concern a about Juror 40 s attitude tipped off by her smirk had nothing to do with her answers and therefore was something follow-up questions might not clarify. ¶15 Appellant further argues that the State s failure to strike non-African American jurors with the same characteristics as Juror 33 and Juror 40 is proof of the speculative, improper nature of the State s strikes. Specifically, Appellant notes that Juror 43, who was seated as a juror, was like Juror 40 in that they both worked in the banking industry. The State s reason for striking Juror 40, however, had nothing to do with 5 In Miller-El, the Supreme Court of the United States found a prosecutor s explanation for exercising a strike on a potential juror suspicious in part because the prosecutor did not ask follow-up questions on the matter about which he was purportedly concerned. 545 U.S. at 246. 9 her work in the banking industry. Juror 43 had never been arrested. Juror 43 is not strong Moreover, unlike Juror 40, The State s failure to strike evidence that the prosecutor s explanation for striking Juror 40 was pretextual. ¶16 Citing State v. Cruz, 175 Ariz. 395, 399, 857 P.2d 1249, 1253 (1993),6 Appellant asserts that the trial court erred in failing to further scrutinize the State s reasons for striking Juror 33 and Juror 40. subjective First, we do not believe that inconsistent statements, Juror 33 s brother s drug arrests, and observations however, Juror or that, 40 s own arrest, speculation. even if its The reasons constitute State were subjective correctly notes, subjective, the objective verification requirement announced in Cruz has been overruled. ¶17 has See Canez, 202 Ariz. at 146, ¶ 26, 42 P.3d at 577. For the foregoing reasons, we conclude that Appellant failed to discrimination. meet his burden of proving purposeful See State v. Roque, 213 Ariz. 193, 204, ¶ 15, 141 P.3d 368, 379 (2006). The prosecutor offered permissible, race-neutral explanations for striking Juror 33 and Juror 40, 6 In Cruz, the prosecution struck a prospective juror for being weak and appearing easily led subjective reasons. 175 Ariz. at 399, 857 P.2d at 1253. The court said that when the prosecution s reason for striking a juror is facially neutral, but wholly subjective, . . . it must be coupled with some form of objective verification before it can overcome the prima facie showing of discrimination. Id. (citations omitted). 10 and Appellant has not shown the clear error necessary to disturb the trial court s denial of his Batson challenge. CONCLUSION ¶18 We affirm Appellant s convictions and sentences. ____________/S/______________ LAWRENCE F. WINTHROP, Judge CONCURRING: ______________/S/________________ MAURICE PORTLEY, Presiding Judge _____________/S/_________________ MARGARET H. DOWNIE, Judge 11

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