STATE v. BUTLER

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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, ) ) Appellee, ) ) v. ) ) ALEX BUTLER, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 08/16/2012 RUTH A. WILLINGHAM, CLERK BY: sls No. 1 CA-CR 11-0622 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2010-167705-001 The Honorable Kristin C. Hoffman, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Aaron J. Moskowitz, Assistant Attorney General Attorneys for Appellee Phoenix Bruce F. Peterson, Maricopa County Office of the Legal Advocate By Frances J. Gray, Deputy Legal Advocate Attorneys for Appellant Phoenix D O W N I E, Judge ¶1 Alex Butler trial appeals court his erred criminal in convictions, resolving his contending the challenge. Batson 1 For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 Butler transportation potential was and jurors charged with trafficking participated theft in in stolen voir of a means property. dire. of Fifty After certain individuals were excused for cause, Jurors 1, 3-13, 15, 17-18, and 20-30 remained subject to peremptory strikes ( jury pool ). ¶3 During voir dire, the court posed the following questions and received the following answers from members of the jury pool: ¢ Have you, a close friend enforcement officer? or relative served as Juror 1: ex-husband in Arizona and California Juror 7: friend in Phoenix Juror 8: served in the Coast Guard Juror 10: two friends in Yuma and one in Phoenix Juror 11: father- and brother-in-law in other states Juror 12: father in another state Juror 20: father and friends Juror 28: brother-in-law in another state 1 Batson v. Kentucky, 476 U.S. 79, 89 (1986). 2 a law ¢ Have you, a close friend or charged, or convicted of a crime? relative been arrested, Juror 1: son convicted of theft Juror 10: [A]ll of my uncles, but I don t know what they were for . . . . Juror 11: three misdemeanor offenses Juror 15: ex-husband convicted of domestic violence Juror 20: years ago husband convicted of stealing motorcycles 20 Jurors 26 and 28: misdemeanor DUI convictions ¢ Have you, a close relative or friend been a crime victim? Jurors 3-9, 12-13, 17, 21, 23, and 27 responded affirmatively. ¶4 In exercising its peremptory strikes, the State struck Juror 10, the only African American in the jury pool. 2 Butler raised a Batson challenge, and the court asked the State its reason for the strike, prompting the following colloquy: [STATE]: [Juror 10] said she had various family members who had been convicted of crimes. THE COURT: I do find that s a race-neutral reason. You can make a record, if you would like. [DEFENSE]: Hold on a second. I would like to look at the rest of the [potential jurors], then. (PAUSE) 2 Butler is African American, but except as disclosed in the parties briefing, the racial composition of the jury pool is unknown. 3 [T]here were two other jurors who were not stricken, number 15. Her ex-husband, domestic violence. And then Number 28, he said he had a misdemeanor DUI, so you got people who are white who have actually -- he actually had a conviction of his own. [Juror 15], a more close associate, her husband -ex-husband had a conviction. [Juror 10] said she had uncles, various, but she couldn t elaborate, it sounded like it was uncles she didn t even know, so that s my record. I don t think that that s a that s good of enough neutral reason, given two other people who are still on the panel. THE COURT: [STATE]: Well, your Honor, I just will say that 28 was convicted, however, it was a misdemeanor. He also stated he had family members with law enforcement and had previously been a victim and it might have been an assumption on my part, but I also assumed that when [Juror 15] said her ex was convicted of [domestic violence], I made the assumption that she was the victim. THE COURT: ¶5 [Does the State] have any response to that? And that was this Court s assumption, also. Juror 10 was excused, and jurors 3, 5, 7, 9, 12, 13, 15, 18, 22, 23, 25, 26, 28, and 30 were seated. Butler guilty as charged. jurisdiction pursuant to The jury found Butler timely appealed. Arizona Revised Statutes We have ( A.R.S. ) sections 12-120.21, 13-4301, and -4033. DISCUSSION ¶6 Courts employ a three-step process whether a peremptory strike violates Batson: 4 in determining (1) the opposing party must make a prima facie showing of discrimination; 3 (2) the proponent must offer a race-neutral basis for the strike; and (3) the opponent must persuade the court that the proffered reason is pretextual and the strike was actually based on race. State v. Lucas, 199 Ariz. 366, 368, ¶ 7, 18 P.3d 160, 162 (App. 2001) (citations omitted). When considering a Batson challenge, we defer to the trial court s findings of fact unless clearly erroneous, but we review the court s application of the law de novo. I. Id. at ¶ 6 (citations omitted). Race-Neutral Basis ¶7 To rebut a prima facie showing of discrimination, the State must give a clear and reasonably specific explanation of its legitimate reasons for exercising a peremptory strike. Purkett v. Elem, 514 U.S. 765, 769 (1995) (internal quotation marks and citations omitted); see also State v. Newell, 212 Ariz. 389, 401, ¶ 54, 132 P.3d 833, 845 (citation omitted) (the State meets its burden by offering a facially valid explanation for the challenge). ¶8 The State s strike of Juror 10 was based on various family members having been arrested, charged, or convicted of a crime. This is a race-neutral reason. See United States v. Vaccaro, 816 F.2d 443, 457 (9th Cir. 1987) (citations omitted) (concerns about the impartiality of a juror due to his habits 3 This prong is not at issue on appeal. 5 and associations is a proper basis for peremptory strike), abrogated on other grounds by Huddleston v. United States, 485 U.S. 681 (1988); State v. Hernandez, 170 Ariz. 301, 305-06, 823 P.2d 1309, 1313-14 (App. 1991) (citations omitted) ( As long as it is not based upon race, perceived sympathy on the part of a prospective juror toward a defendant is a legitimate basis for a peremptory strike. ); cf. State v. Gallardo, 225 Ariz. 560, 565, ¶ 12, 242 P.3d 159, 164 (2010) ( criminal history is a raceneutral reason to strike juror). II. Pre-textual ¶9 The critical question in determining whether a defendant has proven discrimination is the persuasiveness of the prosecutor s justification explanation is credible. and whether the race-neutral Miller-El v. Cockrell, 537 U.S. 322, 338-39 (2003); see also Purkett, 514 U.S. at 768 (there must be a plausible basis for believing impartial will be affected). other things, the a juror s ability to remain Credibility is measured by, among prosecutor s demeanor, how reasonable or improbable the explanations are, and whether the rationale has some basis in accepted trial strategy. Cockrell, 537 U.S. at 339; Newell, 212 Ariz. at 401, ¶ 54, 132 P.3d at 845. We give much deference to the trial court s determination because it 6 is in a better position to assess credibility. 4 Newell, 212 Ariz. at 401, ¶ 54, 132 P.3d at 845. ¶10 Butler argued below that the State s articulated rationale for striking Juror 10 was not a good . . . enough neutral reason because Jurors 15 and 28, both white, were seated despite a more close association to criminality. State immediately distinguished those two jurors, The explaining that a member of Juror 28 s family was a law enforcement officer and that Jurors 15 and 28 had both been crime victims. A prosecutor might perceive such factors as being advantageous to the State. See Cockrell, 537 U.S. at 339 (court may consider whether explanation has some basis in accepted trial strategy). In addition, Juror 10 disclosed that multiple family members ( all of my uncles ) had been charged, arrested, or convicted, further distinguishing her from other members of the jury pool. ¶11 The prosecutor s factual misstatement in describing Juror 28 as a crime victim, and her assumption that Juror 15 had been the victim of her ex-husband s domestic violence, do not show that the stated basis for striking Juror 10 was pretextual. 4 Butler correctly notes that the trial court made no specific finding regarding the third Batson prong. Such a finding would have assisted us in our review. However, by pursuing a legally-sufficient inquiry into the State s peremptory strike and then directing the clerk to seat jurors from the jury pool, the court determined, albeit implicitly, that Butler had not carried his burden of demonstrating racebased discrimination. 7 The trial judge shared the same assumption about Juror 15. Additionally, Butler accepted the State s characterizations of these jurors suggests without that responses. the objection, State and nothing purposefully in misstated the any record juror s See Lamon v. Boatwright, 467 F.3d 1097, 1101 (7th Cir. 2006) ( It follows that Batson and its progeny direct trial judges to assess the honesty not the accuracy of a proffered race-neutral explanation. ). ¶12 Miller-El v. Dretke, 545 U.S. 231 (2005), upon which Butler relies, sought to is strike distinguishable. an In African-American opposed to the death penalty. Dretke, juror Id. at 244. a he prosecutor claimed was When defense counsel noted that the juror had actually expressed unwavering support for the death penalty, the prosecutor suddenly came up with another reason for the strike - specifically, a family member s criminal conviction. the juror. Id. at 243. side-by-side American Id. at 242, 246. On review, the Supreme Court conducted comparisons jurors who The trial court struck were of the struck responses and white from jurors allowed to serve, finding significant differences. 244-45. that the who were Id. at 241, The court concluded there was no good reason to doubt prosecutor s newly-stated reason for African-American juror was anything but a pretext. 46. African- striking the Id. at 245- In the case at bar, the State s articulated reason for the 8 peremptory strike was not an after-thought, and, as previously noted, there were meaningful differences between Juror 10 and the jurors that Butler identified. ¶13 Finally, Butler asserts for the first time on appeal that the same rationale used to strike Juror 10 should have disqualified Juror 26, who had been convicted of misdemeanor DUI. Butler, however, argument below. concedes that he did not make this He therefore cannot rely on it on appeal to show that he satisfied his burden of demonstrating the State s strike was racially motivated. Cf. State v. Bustamante, 229 Ariz. 256, 261, ¶ 17, 274 P.3d 526, 531 (App. 2012) ( In failing to object prospective to the juror s prosecutor s language characterization problems at the time, of this defendant failed to meet his burden to show that this reason was merely a pretext for racial discrimination. ); see also State v. Garza, 216 Ariz. 56, 65, ¶ 3, 163 P.3d 1006, 1015 (2007) (noting that the defendant s failure to raise a Batson challenge deprived the State of the opportunity to give waived the issue on appeal). 9 neutral explanations and CONCLUSION ¶14 For the reasons stated, we affirm Butler s convictions and sentences. /s/ MARGARET H. DOWNIE, Judge CONCURRING: /s/ PETER B. SWANN, Presiding Judge /s/ PATRICIA A. OROZCO, Judge 10

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