STATE v. BINKLEY

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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. BRADLEY CORWIN BINKLEY Appellant. ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 10/15/2013 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-CR 12-0429 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Yavapai County Cause No. V1300CR201180164 The Honorable Michael R. Bluff, Judge AFFIRMED ________________________________________________________________ Thomas C. Horne, Attorney General Phoenix By Joseph T. Maziarz, Acting Chief Counsel, Criminal Appeals/Capital Litigation Section and Melissa M. Swearingen, Assistant Attorney General Attorneys for Appellee Craig Williams Prescott Valley Attorney for Appellant ________________________________________________________________ G E M M I L L, Judge ¶1 Defendant Bradley Binkley appeals his convictions and sentences for luring a minor for sexual exploitation and attempted tampering with physical evidence. The only issue on appeal its is whether the trial court abused discretion by denying his challenge, pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), to the State s use of peremptory challenges to strike six male jurors. Because the Batson challenge was untimely, and also because the trial court reasonably concluded that the State s reasons for striking the prospective jurors were gender-neutral, we reject Binkley s argument and affirm his convictions and sentences. ¶2 Detective Pam Edgerton of the Yavapai County Sheriff s Office created a profile on Tagged.com under the fictitious name Brenna Fox in March 2011. The profile was posted on an adult only website, and it listed a birth date of June 23, 1991, which made Brenna 19 years old. However, the comments section of the profile indicated that Brenna was actually 13 years old. Brenna was contacted by Binkley on March 26, 2011, and they began corresponding. Binkley started inquiring about sex with Brenna, and she confirmed that she was 13 years old. Binkley was subsequently arrested. During an interview, Binkley was told that his home would be searched for evidence. the warrant was served, Binkley remove items from his house. 2 tried to have his Before neighbor BACKGROUND ¶3 Binkley was indicted on April 8, 2011 on two counts of luring a minor for sexual exploitation ( Count 1 and Count 2 ), class 3 felonies, and one count of attempted tampering with physical evidence ( Count 3 ), a class 1 misdemeanor. Ariz. Rev. Stat. (A.R.S.) § 13-3554, § 13-705, § 13-1001, and § 132809. 1 He sentenced was convicted to the on presumptive all three term of counts. Binkley three-and-a-half was years imprisonment for Count 1 and six months in the county jail for Count 3. For Count 2, the court suspended imposition of sentence and placed him on lifetime probation after his release from prison. Binkley received six months credit for time served in jail prior to sentencing. appeal, and Constitution we have Article Binkley filed a timely notice of jurisdiction VI, section pursuant 9 and to A.R.S. Arizona §§ 12- 120.21(A)(1), 13-4031, and 13-4033(A). ANALYSIS ¶4 held In Batson v. Kentucky, the United States Supreme Court that the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution prohibits the use of peremptory strikes against jurors solely on the basis of race. Batson, 476 U.S. at 89. In J.E.B. v. Alabama ex rel. T.B., 511 1 We cite the current versions of applicable statutes when no revisions material to this decision have occurred since the events in question. 3 U.S. 127, 143, 114 S.Ct. 1419, 1429, 128 L.Ed.2d 89 (1994), the Court held that peremptory challenges cannot be used against jurors on the basis of gender. ¶5 its Binkley argues that the trial court erred and abused discretion when his Batson challenge court did not impanel a new jury. was denied and the He further argues that the State used peremptory challenges to strike jurors in violation of the Equal Protection Clause. Timeliness ¶6 We first examine whether the Batson challenge timely. A Batson challenge is untimely if made after the jury is impaneled and the stricken jurors are excused. was State v. Harris, 157 Ariz. 35, 36 754 P.2d, 1139, 1140 (1988). ¶7 Here, Binkley made the Batson challenge on the second day of trial. The jury was impaneled, prospective jurors were excused, opening statements had been given, and the State had begun its case in chief. The trial court nevertheless allowed both parties to address the Batson issue. Binkley argued that the State made gender discriminatory strikes. In response, the State opposed the challenge because it was untimely and because there were gender-neutral reasons for each of its peremptory strikes. After hearing the State s explanations and Binkley s response, the court denied the Batson challenge as untimely and also because the prosecutor provided gender-neutral reasons for 4 the strikes. We affirm the trial court s untimeliness ruling, and for reasons that follow, we also affirm the trial court s ruling on the merits of Binkley s claim. Gender Neutrality ¶8 We next turn to the court s ruling that the State s proffered reasons for striking jurors were gender-neutral. We will consider whether the strikes were made in violation of the Equal Protection Clause of the Fourteenth Amendment. ¶9 Binkley argues that the State engaged in purposeful discrimination when it exercised all six of its peremptory strikes against male jurors, leaving a jury of nine women and one man. As he did at trial, Binkley argues that women who were kept in the jury pool had similar qualities to men who were stricken by the State, evidencing gender-based discrimination. ¶10 When considering a Batson challenge, we defer to the trial court s finding of fact unless clearly erroneous. State v. Lucas, 199 Ariz. 366, 368, ¶ 6, 18 P.3d 160, 162 (App. 2001). A denial of a Batson challenge will not be reversed unless clearly erroneous. 132 P.3d 833, State v. Newell, 212 Ariz. 389, 400, ¶ 52, 844 (2006). We application of the law de novo. review the trial court s Lucas, 199 Ariz. at 368, ¶ 6, 18 P.3d at 162. ¶11 First, A the Batson challenge defendant must involves make 5 a a three-step prima facie analysis. showing of discrimination. If the showing is made, the burden shifts to the State to provide a neutral explanation for striking jurors. If the State provides a facially neutral reason for the strike, the trial court determines whether established purposeful discrimination. the defendant has Batson, 476 U.S. at 97- 98; Newell, 212 Ariz. at 401; 132 P.3d at 845. ¶12 The first step of a Batson analysis is generally deemed to be moot when the State provides an explanation for its peremptory strikes. Hernandez v. New York, 500 U.S. 352, 352, 111 S.Ct. 1859, 1862, 114 L.Ed.2d. 395 (1991); State v. Garcia, 224 Ariz. 1, 10, ¶ 25, 226 P.3d 370, 379 (2010). After Binkley made the Batson challenge, the State offered to give genderneutral reasons for its peremptory strikes. Thus, we examine whether the State met its burden of showing non-discriminatory reasons for its peremptory strikes. ¶13 We conclude that the State offered reasons for each of its peremptory strikes. gender-neutral The State exercised a peremptory strike on Juror No. 7 because of his occupation as an artist. The prosecutor stated, I know that may sound silly, but I generally don't like jurors who have sort of nonconforming sort of employment sitting on juries, particularly people like artists and that sort of thing. In my experience, sometimes they may be a little more likely to believe what a defendant might have to say, even if what the defendant has to say 6 is something that may not be real credible to the rest of us. ¶14 Next, the prosecutor struck Juror No. 5 because of an appointment that conflicted with trial. During voir dire, Juror No. 5 offered to try to reschedule the appointment, but because the prosecutor had several remaining strikes, he felt it was appropriate to exercise a strike. In addition, the prosecutor indicated that there was another, lesser reason for striking Juror No. 5, which was the prospective juror s low computer skills. ¶15 The prosecutor explained that he struck Juror No. 27 because the juror had been a witness in the past, was a retired executive, currently worked as a substitute teacher, and had low computer skills. ¶16 The prosecutor explained that he exercised a peremptory strike against Juror No. 22 because he previously served on a jury that found somebody not guilty and also had a sibling involved in the criminal justice system. ¶17 Next, the prosecutor struck Juror No. 18 because he failed to disclose a previous conviction, was relatively young, and did not have any children. ¶18 Finally, the prosecutor exercised a strike against Juror No. 16 because he had previously read a newspaper article about the proceedings. 7 ¶19 The basis for a peremptory strike must be more than a denial of improper motive, but it need not be persuasive, or even plausible. Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834 (1995); Hernandez, 500 U.S. at 360 ( Unless a discriminatory intent is inherent in the prosecutor s explanation, the reason offered will be deemed race neutral. ); Lucas, 199 Ariz. at 368; 18 P.3d at 162. ¶20 Here, in his explanation of peremptory challenges, the prosecutor discussed the occupations of two jurors. Juror No. 7 was employed as an artist and Juror No. 27 was a substitute teacher and retired executive. prospective juror s It is appropriate to consider a occupation exercising peremptory challenges. and employment history when State v. Hernandez, 170 Ariz. 301, 305-06, 823 P.2d 1309, 1313-14 (App. 1991); see also United States v. Jackson, 914 F.2d 1050, 1052-53 (8th Cir. 1990). Furthermore, the occupation of an artist is not peculiar to any gender. State v. Brown, 998 S.W.2d 531, 545 (Mo. 1999) (peremptory strike based on a prospective juror s occupation as an artist was sufficiently gender-neutral). The prosecutor explained that, in his experience, artists would be more likely to believe a defendant. This court has held that as long as it is not based upon an improper factor, perceived sympathy on the part of a prospective juror toward a defendant is a legitimate basis for a peremptory strike. Hernandez, 170 Ariz. at 305-06, 8 823 P.2d at 1313-14 (citation omitted); see also State v. Martinez, 196 Ariz. 451, 456 ¶ 17, 999 P.2d 795, 800 (2000) (peremptory strike against a prospective juror whose occupation could possibly make him sympathetic to the defendant was raceneutral). Thus, we find no abuse of discretion in the court s acceptance of the explanation. ¶21 The prosecutor stated that he struck Juror because he had an appointment that conflicted with trial. No. 5 This explanation is sufficiently gender-neutral. ¶22 the The prosecutor explained his strike of Juror No. 22 on basis of prior jury service as well as his sibling s involvement in the criminal justice system. Participation in a prior for acquitting challenge. jury is a valid reason a peremptory Trostle, 191 Ariz. 4, 12, 951 P.2d 869, 877 (1997). Additionally, family criminal involvement is a nondiscriminatory basis to strike a prospective juror. 488, 490-91, States v. 788 P.2d Johnson, 1239, 54 State v. Reyes, 163 Ariz. 1241-42 F.3d 1150, (1989); 1163 see also United (4th Cir. 1995) (prospective juror s husband was involved in criminal activity); United States v. Jackson, 914 F.2d 1050, 1052-53 (8th Cir. 1990) (prospective juror s nephew was incarcerated). The trial court did that not abuse its discretion by concluding the State satisfied the second prong of Batson for Juror No. 5 and Juror No. 22. 9 ¶23 In offering his explanation for Juror No. 18, the prosecutor explained that the prospective juror did not disclose a prior conviction during voir dire, he had no children, and was relatively young. A prospective juror s age and lack of children are neutral reasons for exercising peremptory strikes. State v. Medina, 232 Ariz. 391, 404, ¶ 45-46, 306 P.3d 48, 61 (2013) (upholding peremptory strikes based on prospective jurors youth); State v. Sanderson, 182 Ariz. 534, 540, 898 P.2d 483, 489 (App. 1995) ( Prospective jurors age, marital status and lack of discriminatory employment reasons have supporting been the identified exercise of as non- peremptory strikes. ); Hernandez, 170 Ariz. at 304-05, 823 P.2d at 1312-13 (upholding peremptory strike based on considerations of youth and lack of children). This court has also held that withholding answers during voir dire is a neutral reason that complies with Batson. Reyes, 163 Ariz. at 490-91, 788 P.2d at 1241-42; see also United States v. Brown, 553 F.3d 768, 796 (5th Cir. 2008) (a prospective juror s lack of veracity on the juror form regarding a prior conviction was a legitimate reason for peremptory challenge). When the prosecutor asked Juror No. 18 if he had any problems other than minor traffic problems, the prospective juror failed to disclose a previous conviction. ¶24 No. Finally, the prosecutor explained that he struck Juror 16 because he read a newspaper 10 article about the proceedings. Learning about the case prior to trial is a valid, gender-neutral reason for a peremptory challenge. abuse of discretion prosecutor s in the trial gender-neutral court s We find no acceptance explanation of regarding the this prospective juror. ¶25 Binkley asserts that the State exercised peremptory challenges against Juror No. 5 and Juror No. 27 because they had low computer skills yet did not strike women who had similar computer skills. cite a lack of As detailed above, however, the State did not computer either of these strikes. the men who were to women situated knowledge as the primary basis for Thus, Binkley has not established that removed who from the remained. panel were Moreover, similarly Binkley used peremptory challenges against four men and two women. ¶26 The trial court expressly found that the State offered gender-neutral reasons for its strikes. Because the trial court is in a better position to assess the credibility and validity of the State s reasons, we defer to that finding. 500 U.S. at 364. Hernandez, Furthermore, [b]ecause the Defendant bears the burden to prove purposeful discrimination, this court will not reverse the trial court s determination unless the reasons provided by the State are clearly pretextual. 213 Ariz. 193, 204, ¶ 15, 141 P.3d Accordingly, we discern no reversible error. 11 State v. Roque, 368, 379 (2006). CONCLUSION ¶27 For the foregoing reasons, we affirm the trial court s denial of Binkley s Batson challenge. /s/ _______________________________ JOHN C. GEMMILL, Judge CONCURRING: /s/ ___________________________________ MAURICE PORTLEY, Presiding Judge /s/ ___________________________________ KENT E. CATTANI, Judge 12

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