November 23, 2015 – Art Bustos , Personal Representative for the Estate of Juventino Hernandez, Deceased, Odilia Palma De Ceballos, Wife, Denise Alejandra Ceballos-Palma, Daughter, individually, and Odilia Palma De Ceballos, as parent and Next Frient of Guadalupe Ceballos-Palma and Sara Ceballos-Palma, Minor Children v. City of Clovis, Clovis Police Department, Officers Doug Ford, Eric Muller, and David Bryant, individually and in their official capacities, No. 33,405

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: NOVEMBER 23, 2015

NO. 33,405

ART BUSTOS, Personal Representative

for the ESTATE OF JUVENTIINO HERNANDEZ,

Deceased, ODILIA PALMA DE CEBALLOS, Wife,

DENISE ALEJ ANDRA CEBALLOS-PALMA, Daughter,
individually, and ODILIA PALMA DE CEBALLOS, as Parent
and Next Friend of GUADALUPE CEBALLOS-PALMA and
SARAH CEBALLOS-PALMA, Minor Children,

Plaintiffs-A ppellants,
V.

CITY OF CLOVIS, CLOVIS POLICE DEPARTMENT,
OFFICERS DOUG FORD, ERIC MULLER, and
DAVID BRYANT, Individually and in their official
Capacities,

Defendants-A ppellees.

APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
Albert J. Mitchell Jr., District Judge

Lindsey Law Firm, L.L.C.
Daniel R. Lindsey
Clovis, NM

for Appellants

Beall & Biehler
Gregory L. Biehler
Gianna M. Mendoza
Albuquerque, NM

for Appellees

OPINION
VIGIL, Chief Judge.
{1} 	This case requires us to revisit the requirements for imposing joint and several
liability on the original tortfeasor when there are successive tortfeasors. We conclude
that the district court erred in granting summary judgment on Plaintiffs’ wrongful
death claim after ruling as a matter of law that joint and several liability does not
apply in this case.
{2} 	In addition, we agree with Plaintiffs that Defendants’ use of peremptory
challenges resulted in the unconstitutional exclusion of Hispanics from the jury, and
the defense verdicts on the claims that were tried must therefore be set aside. See
Batson v. Kentucky, 476 U.S. 79, 85 (1986) (holding that racial discrimination in the
jury selection in a criminal case offends the Equal Protection Clause of the United
States Constitution); Edmonson v. Leesville Concrete Co., 500 U.S. 614, 616 (1991)
(holding that a private litigant in a civil case may not use peremptory challenges to
exclude jurors on account of their race).
{3} 	Finally, we summarily address Plaintiffs’ remaining arguments.
I. 	BACKGROUND
A. 	Facts

2
{4} 	Juventino Ceballos Hernandez, a Mexican national with a wife and three
children, came to the United States with a valid visa to Clovis, New Mexico. Mr.
Hernandez stayed with friends, Cruz and Petra Chavez, their three children, and
Cruz’s brother Ivan.
{5} 	About one month later, Mr. Hernandez suffered from some type of episode. He
was eating with the Chavez family and began yelling and pounding his fists on the
table. Petra went next door to ask her neighbor, who speaks English, to call for help.
The neighbor called 911 telling the dispatcher that Mr. Hernandez was going “crazy”
and to please send help.
{6} 	Officers Bryant and Muller arrived at the Chavez’s residence. They knocked
and yelled, “police” but did not receive an answer. They heard banging and yelling,
which made Officer Bryant want to investigate the possibility of a crime. The door
was open, so Officer Bryant stepped inside, with Officer Muller just behind him.
Officer Bryant saw Mr. Hernandez sitting at the table eating, banging on the table, and
yelling. Mr. Hernandez turned around to face the officers, smiled, waved, and then
continued eating, banging on the table, and yelling. However, he was not harming
anything or anybody, and no violence was taking place. Mr. Hernandez did not
respond to questions Officer Bryant yelled at him in English, and although Officer

3
Bryant knew that Mr. Hernandez spoke Spanish, Officer Bryant continued to yell at
Mr. Hernandez.
{7} 	Suddenly, and without provocation, Mr. Hernandez ran toward the officers and
punched or hit them. Officer Bryant arrested Mr. Hernandez for battery on a police
officer, took him into police custody, and intended to take him to jail. The officers
handcuffed Mr. Hernandez, but when they started taking him out the door, Mr.
Hernandez kicked the door, and they all fell to the floor. Officers Bryant and Muller
held Mr. Hernandez down on the floor until Officers Ford and Longley arrived. The
officers were able to get Mr Hernandez outside after putting him in ankle cuffs and
securing the ankle cuffs to the handcuffs behind him by attaching a strap or a dog
leash between the ankle cuffs and the handcuffs.
{8} 	With Mr. Hernandez “hogtied” in this manner, the four officers carried or
dragged Mr. Hernandez outside. Once outside of the home, Mr. Hernandez was
dragged down the driveway, and he suffered abrasions on his thighs. When a witness
saw the officers dragging Mr. Hernandez across the rough driveway on his thighs, she
“was horrified by what they did, because it was like they were laughing like they had
won.” Plaintiffs presented expert testimony that restraining Mr. Hernandez with the
hogtie violated police standards of care under the circumstances.

4
{9} 	When the ambulance arrived, Mr. Hernandez was in the middle of the driveway
on his stomach. His hands were held behind him by the handcuffs, and his legs were
bent at the knees, sticking up in the air. Mr. Hernandez’s thighs were abraded from
being dragged across the rough pavement, and he had blood coming from his mouth.
The EMTs put Mr. Hernandez on a long backboard face down and loaded him onto
the stretcher. On the backboard, the EMTs secured Mr. Hernandez with spider straps.
Spider straps have two points at the top, two points at the bottom, and three straps
across the middle that hook on each side. Officer Bryant rode in the ambulance with
Mr. Hernandez as he was under arrest and in police custody. Mr. Hernandez arrived
at the emergency room lying face down on the backboard with the handcuffs and
ankle cuffs fastened, in addition to the spider straps. His hands and feet were tied
together behind his back, his feet crossed.
{10} 	Dr. Thibodeau was in charge of Mr. Hernandez’s treatment at the hospital, and
she made the decision to keep Mr. Hernandez restrained with his hands and feet bound
together behind his back. Her plan was to keep Mr. Hernandez face down and in the
restraints until he was calm and then remove the restraints. In order to calm Mr.
Hernandez as quickly as possible, and get him out of the shackles, Dr. Thibodeau
provided him with medications to chemically calm him down.

5
{11} 	After the medications were administered, Mr. Hernandez quit breathing. A
nurse who was with him called a code blue, and the officers went into the room and
removed the restraints. The hospital staff resuscitated Mr. Hernandez, however, he
suffered brain damage and was in a vegetative state for the next seven months. His
family returned him to Mexico where he subsequently died.
B. 	Procedural History
{12} 	The estate of Mr. Hernandez and his family (Plaintiffs) filed suit against the
City of Clovis, the individual police officers, the hospital, and Dr. Thibodeau. Claims
were made for wrongful death, negligent infliction of emotional distress, loss of
consortium, battery, excessive force under 42 U.S.C. § 1983 (2012), and medical
malpractice. Prior to trial, the hospital and Dr. Thibodeau settled the medical
malpractice claims with the family and had no further involvement in the case. We
therefore refer to the City of Clovis and the individual police officers herein as
Defendants. Prior to trial the district court also granted summary judgment in favor
of Defendants on the wrongful death claim and dismissed the claim for negligent
infliction of emotional distress.
{13} 	The parties went to trial on the battery, excessive force, negligence, and loss of
consortium claims. The district court granted Defendants a directed verdict on the
battery, and the jury found for Defendants on the remaining claims.

6
{14} 	Plaintiffs appeal raising eleven issues but only brief five. The issues briefed are:
(1) whether summary judgment was properly granted on the wrongful death claim; (2)
whether defense counsel’s peremptory strikes resulted in the unconstitutional
exclusion of Hispanics from the jury; (3) whether the directed verdict on the battery
claim was properly granted; (4) whether there was error in excluding the testimony
of Plaintiffs’ expert witness on hedonic damages; and (5) whether the verdict should
be set aside due to defense counsel’s statements during voir dire. We address the first
two issues separately and summarily address the remaining issues, including those that
were not briefed.
II. 	SUMMARY JUDGMENT ON THE WRONGFUL DEATH CLAIM
{15} 	Plaintiffs’ wrongful death claim was based upon New Mexico tort law and for
a violation of constitutional rights under 42 U.S.C. § 1983.The district court granted
Defendants’ motion for summary judgment on the basis that “liability on the part of
the officers ends when Mr. Hernandez was delivered to the [e]mergency [r]oom.” We
reverse on the New Mexico tort law claim and affirm on the federal claim.
A. 	Standard of Review
{16} 	“Summary judgment is appropriate where there are no genuine issues of
material fact and the movant is entitled to judgment as a matter of law.” Self v. United
Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. “On appeal

7
from the grant of summary judgment, we ordinarily review the whole record in the
light most favorable to the party opposing summary judgment to determine if there is
any evidence that places a genuine issue of material fact in dispute.” City of
Albuquerque v. BPLW Architects & Eng’rs, Inc., 2009-NMCA-081, ¶ 7, 146 N.M.
717, 213 P.3d 1146. We review summary judgment de novo and we resolve all
reasonable inferences in favor of the non-movant and view the pleadings, affidavits,
depositions, answers to interrogatories, and admissions in a light most favorable to a
trial on the merits. See Romero v. Philip Morris Inc., 2010-NMSC-035, ¶ 7, 148 N.M.
713, 242 P.3d 280. We do so because New Mexico courts “view summary judgment
with disfavor, preferring a trial on the merits.” Id. ¶ 8. “To determine which facts are
material, the court must look to the substantive law governing the dispute.” Id. ¶ 11
(internal quotation marks and citation omitted). In this case, multiple tortfeasor
liability and 42 U.S.C. § 1983 are the substantive law governing the wrongful death
claim.
B. 	Multiple Tortfeasor Liability
{17} 	Under 	New 	Mexico’s 	pure 	comparative 	fault 	rules, 	“when 	concurrent
tortfeasors negligently cause a single, indivisible injury... each tortfeasor is severally
responsible for its own percentage of comparative fault for that injury.” Payne v. Hall,
2006-NMSC-029, ¶ 11, 139 N.M. 659, 137 P.3d 599 (emphasis in original); Gulf Ins.

8
Co. v. Cottone, 2006-NMCA-150, ¶ 20, 140 N.M. 728, 148 P.3d 814. Other rules
apply when successive tortfeasors negligently cause separate, divisible injuries.
{18} 	“As an exception to the general rule of several liability, the successive
tortfeasor doctrine imposes joint and several liability on the original tortfeasor for the
full extent of both injuries, those caused by both the original tortfeasor and the
successive tortfeasor.” Payne, 2006-NMSC-029, ¶ 13. For this exception to apply, the
first injury is caused by the original tortfeasor and that injury causally leads to a
second, distinct injury (or a distinct enhancement of the first injury), which is caused
by a second tortfeasor. Id. ¶ 12. “The original tortfeasor is responsible for both
injuries because it is foreseeable as a matter of law that the original injury, such as that
suffered from a car accident, may lead to a causally-distinct additional injury, such as
when 	the 	original 	injury 	requires 	subsequent 	medical 	treatment, 	negligently
administered at a hospital.” Id. ¶ 13; see also Gulf Ins. Co., 2006-NMCA-150, ¶ 20
(discussing elements of successive tortfeasor liability that are required to impose joint
and several liability). In order for this narrow exception to comparative negligence to
apply, the original injury must be “caused by the negligence of the original tortfeasor,
which is then followed by a second or enhanced injury caused by the second
tortfeasor.” Payne, 2006-NMSC-029, ¶ 15. Thus, when the elements of negligence,
causation, and a distinct original injury are found, the original tortfeasor may be held

9
jointly and severally liable for the subsequent or enhanced injury as well. Id.; Gulf Ins.
Co., 2006-NMCA-150, ¶ 20.
{19} 	In granting summary judgment, the district court found that “[t]he evidence
does not support Plaintiffs’ theory that the injuries the police allegedly caused Mr.
Hernandez necessitated the allegedly negligent medical care administered to Mr.
Hernandez in the emergency room.” We disagree. Viewing the evidence in the light
most favorable to Plaintiffs, as we must, we conclude that Plaintiffs presented
evidence pointing to genuine issues of material fact on whether Defendants are jointly
and severally liable for the death of Mr. Hernandez. Specifically, there are issues of
material fact as to whether negligence of Defendants caused Mr. Hernandez to suffer
personal injuries and whether it was foreseeable that those injuries required medical
attention.
{20} 	Officer Bryant originally arrested Mr. Hernandez, intending to take him to jail.
When efforts to take him out of the house in handcuffs failed, the officers hogtied Mr.
Hernandez and carried or dragged him outside where he was dragged down the
driveway and the ambulance was called. Expert testimony was presented by Plaintiffs
that this violated accepted police practices. Mr. Hernandez was lying hogtied face
down on the driveway with abrasions on his thighs from being dragged on the
pavement and he was bleeding from the mouth when the ambulance arrived. A jury

10
could very well conclude that it was foreseeable to the officers that Mr. Hernandez
would receive treatment for these injuries at the emergency room. The evidence also
supports a finding that Mr. Hernandez received negligent medical treatment at the
emergency room, resulting in a cardiac arrest and death—separate and distinct injuries
from those he received in the process of being arrested.
{21} 	Under the circumstances, it was up to the jury to decide, under appropriate
instructions, whether Defendants were jointly and severally liable for the injuries and
death suffered by Mr. Hernandez. See Payne, 2006-NMSC-029, ¶ 42 (“[If] causation
of an original injury is contested, then it would not be appropriate for the trial judge
to make this determination in place of the jury.”). We therefore reverse the summary
judgment granted in favor of Defendants on Plaintiffs’ wrongful death claim that is
premised upon joint and several liability.
3. 	Liability Under 42 U.S.C. § 1983
{22} 	The 	district 	court 	also 	concluded 	that 	the 	alleged 	negligent 	treatment
administered at the emergency room “is the superseding cause” of Mr. Hernandez’s
cardiac arrest and related injuries, and because no reasonable jury could find that the
conduct of the police officers “was the proximate cause” of his cardiac arrest and
injuries, Defendants were entitled to summary judgment on the 42 U.S.C. § 1983
claim. Plaintiffs have not provided us with any authority demonstrating that summary

11
judgment was improperly granted on this claim on this basis. We therefore affirm. See
State v. Godoy, 2012-NMCA-084, ¶ 5, 284 P.3d 410 (“Where a party cites no
authority to support an argument, we may assume no such authority exists.”); State
ex rel. Office of State Eng’r v. Lewis, 2007-NMCA-008, ¶ 74, 141 N.M. 1, 150 P.3d
375 (citing cases stating that a party must submit argument and authority in order to
present an issue for review on appeal, that we will not address a contention not
supported by authority, and that an issue is abandoned upon a failure to present
argument or authority).
III. 	THE BATSON CHALLENGE
{23} 	In Batson, the United States Supreme Court held that racial discrimination in
selecting a jury in a criminal case violates the Equal Protection Clause of the United
States Constitution. 476 U.S. at 85. Racial discrimination not only violates the right
of the defendant, it also unconstitutionally discriminates against the excluded juror,
and undermines public confidence in the fairness of our system of justice. Id. at 86-87.
Batson was subsequently extended to civil cases in Edmonson, 500 U.S. at 616-17,
and in J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 129 (1994), the Supreme Court
held that “gender, like race, is an unconstitutional proxy for juror competence and
impartiality.” Discrimination in jury selection causes individualized and structural
harm.

12
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 (citation omitted).
Thus, when even a single juror is stricken for racial reasons, reversible error is
committed regardless of whether the jury that is chosen is actually fair and unbiased
or retains its “representative” character, because equal protection has been violated.
See State v. Gerald B., 2006-NMCA-022, ¶ 30, 139 N.M. 113, 129 P.3d 149; State v.
Gonzales, 1991-NMCA-007, ¶ 17, 111 N.M. 590, 808 P.2d 40, modified on other
grounds by State v. Dominguez, 1993-NMCA-042, 115 N.M. 445, 853 P.2d 147.
{24} 	Following Edmonson, we for the first time in New Mexico, hold that the Batson
approach applies to civil cases. In this case, the district court allowed Defendants to
use peremptory strikes against Hispanics from the jury with the result that the jury that
decided the case had no Hispanics. We are therefore squarely confronted with
Plaintiffs’ argument that the jury selection violated Batson. We first describe the
procedure which a district court must follow when a Batson challenge is made during

13
jury selection, set forth our standard of review, then apply that analysis to the facts
before us.
A. 	Procedure for Deciding a Batson Claim
{25} 	In Edmonson, the Supreme Court stated that the same approach described in
Batson for determining the existence of racial discrimination in the jury selection of
criminal cases also applies in civil cases. Edmonson, 500 U.S. at 631. Our precedent
in applying Batson in criminal cases is well developed. A three-part test is utilized.
{26} 	First, the opponent of a peremptory challenge has the burden to establish a
prima facie case “indicating that the peremptory challenge has been exercised in a
discriminatory way[.]” State v. Salas, 2010-NMSC-028, ¶ 31, 148 N.M. 313, 236 P.3d
32. To establish a prima facie case the challenging party must show that “(1) a
peremptory challenge was used to remove a member of a protected group from the
jury panel, and (2) the facts and other related circumstances raise an inference that the
individual was excluded solely on the basis of his or her membership in a protected
group.” Id.
{27} 	Second, if a prima facie showing is made, the burden then shifts to the
proponent of the challenge to come forward with a race or gender-neutral explanation
for the challenge. Id. ¶ 32. This does not require a persuasive or even plausible
explanation. Id. While a mere denial of a discriminatory motive is not sufficient, State

14
v. Jones, 1997-NMSC-016, ¶ 3, 123 N.M. 73, 934 P.2d 267, as long as a
discriminatory intent is not inherent in the explanation, the reason offered is deemed
to be neutral. Salas, 2010-NMSC-028, ¶ 32. If the explanation offered is not neutral,
then a finding of purposeful discrimination may be made without any further showing
by the opponent to the challenge. Jones, 1997-NMSC-016, ¶ 3.
{28} 	Third, if a neutral explanation is tendered, the district court then determines
whether the opponent of the strike has proved purposeful discrimination. Salas, 2010-
NMSC-028, ¶ 32. In this regard, the burden of persuasion on discrimination never
shifts from the opponent of the strike. Id.
B. 	Standard of Review
{29} 	We review a district court’s factual findings on a Batson challenge under a
deferential standard of review. Id. ¶ 33. In making its factual findings, the district
court has a responsibility to “ (1) evaluate the sincerity of both parties, (2) rely on its
own observations of the challenged jurors, and (3) draw on its experience in
supervising voir dire. ” Id (internal quotation marks and citation omitted).
{30} 	However, the Batson issue ultimately is a constitutional one which we review
de novo. See Salas, 2010-NMSC-028, ¶ 33. While factual, the issue is also one of
policy to be decided de novo because the ultimate constitutional question relates to
conduct. Our review is therefore similar to that invoked in instances in which there

15
exist mixed questions of law and fact requiring this Court, as a policy matter, to
review de novo issues that involve abstract legal doctrine and evaluative judgments
but which are also inherently factual, such as issues of constitutional reasonableness.
See State v. Attaway, 1994-NMSC-011, ¶¶ 6-10, 117 N.M. 141, 870 P.2d 103; Randall
H. Warner, All Mixed Up About Mixed Questions, 7 J. App. Prac. & Process 101, 102
(2005).
{31} 	The standard of review analysis in Gerald B., 2006-NMCA-022, ¶ 36, is
incomplete insofar as it states that “we review the action of the trial court under a
deferential standard[,]” if 	by that statement, Gerald B. means that the ultimate
question of constitutional neutrality is not reviewed de novo. While Batson indicates
that a district court’s findings are to be given “great deference,” Batson, 476 U.S. at
98 n.21, this does not eliminate de novo review of the constitutional propriety of the
peremptory challenges. The conclusion as to the constitutional propriety of the
peremptory challenges is still reviewed de novo. See Jones, 1997-NMSC-016, ¶ 11
(stating that “an appellate court need not defer to a trial court on whether a reason is
constitutionally adequate”); Bailey, 2008-NMCA-084, ¶ 15 (same).
C. 	Analysis
{32} 	Plaintiffs argue that equal protection was violated when the district court erred
in allowing Defendants to use peremptory strikes against three Hispanic prospective

16
jurors and a prospective alternate juror. Defendants respond by arguing that Plaintiffs
cannot establish a prima facie case of discrimination and did not overcome
Defendants’ racially-neutral reasons for striking the prospective jurors.
{33} 	We first note that Hispanics are a cognizable group under a Batson challenge.
State v. Guzman, 1994-NMCA-149, ¶ 19, 119 N.M. 190, 889 P.2d 225. Secondly,
because the district court required Defendants to offer a race-neutral explanation for
the strikes at issue, we conclude that the district court found that Plaintiffs made a
prima facie case of discrimination against Hispanics. See Bailey, 2008-NMCA-084,
¶ 17 (observing that because the district court asked if the state had a race-neutral
reason for its challenges, “[t]he district court therefore implicitly found that
[d]efendant had made a prima facie showing that the State’s challenges were racially
motivated”).
{34} 	Defendants used three of their five peremptory challenges against prospective
jurors with Hispanic surnames, with two of those five challenges exercised against
prospective jurors with Anglo surnames. Defendants also used their one peremptory
strike against a prospective juror with a Hispanic surname. Plaintiffs objected on
Batson grounds to Defendants’ peremptory challenges against those with Hispanic
surnames. The court required Defendants to explain the reasons for their peremptory
challenges of jurors with Hispanic surnames. When the district court polled the jury

17
at the conclusion of trial, there were no Hispanics on the jury. There is not any dispute
over whether Plaintiffs established a prima facie case of discriminatory conduct in the
exercise of peremptory challenges.
{35} 	We therefore determine whether Defendants satisfied their burden of providing
a racially-neutral explanation for each peremptory strike. See Gerald B., 2006-
NMCA-022, ¶ 32 (concluding that because the state proceeded past the first step of
the Batson analysis without questioning whether there was a prima facie showing, and
the district court made findings on discrimination, it was proper to determine on
appeal whether the state satisfied its burden to articulate a racially neutral explanation
for its peremptory challenge); see also Hernandez v. New York, 500 U.S. 352, 359
(1991) (plur. opn. of Kennedy) (“Once a prosecutor has offered a race-neutral
explanation for the peremptory challenges and the trial court has ruled on the ultimate
question of intentional discrimination, the preliminary issue of whether the defendant
had made a prima facie showing becomes moot.”). We independently review defense
counsel’s explanations to determine if they were constitutionally adequate. See Gerald
B., 2006-NMCA-022, ¶ 28 (concluding that because a constitutional question is
presented, we apply de novo review to the race-neutral explanations given for
peremptory strikes).
1. 	Juror No. 26

18
{36} 	On her juror questionnaire, Juror No. 26 identified herself as a Hispanic who
speaks Spanish and English. Defendants used their first peremptory challenge to strike
her from the jury. Plaintiffs objected, stating that Defendants asked her no questions
in voir dire and asserting that there was no basis for the strike. Responding to the
district court’s request for a racially-neutral explanation, counsel stated that “she is a
nursing home caregiver.” Plaintiffs’ counsel challenged the reason as insufficient, but
the district court ruled that the strike had a “reasonable basis.” Subsequently, when
Defendants accepted another juror to sit on the jury, Plaintiffs argued that she was also
a caregiver, but defense counsel failed to strike her. See Guzman, 1994-NMCA-149,
¶ 20 (stating that when the same factors that were identified to strike Hispanics were
not applied to strike Anglos, the explanation was not race-neutral). The juror who was
accepted worked as an x-ray technician at the time of the trial. An x-ray technician
manipulates medical imagery equipment in order to take pictures of the internal
structures of the body. In contrast, a nursing home caregiver typically provides
assistance to patients in aspects of daily living. Moreover, an x-ray technician may see
her patients only once to capture an image while a nursing home caregiver may have
daily interactions with her patients. We therefore agree with the district court that
there is a distinction between the two occupations and affirm that Defendants’
explanation was sufficiently race-neutral.

19
{37} 	Plaintiffs also argue for the first time on appeal that another juror who was
chosen had experience as a caregiver. This juror’s questionnaire states that at the time
of trial she worked in retail at Goodwill and her past jobs included “working with
people with disabilities[.]” We agree with Defendants that because Plaintiffs did not
argue the similarity of the jobs between the juror who was stricken and the juror who
sat, Plaintiffs cannot now make that argument for the first time on appeal. “To
preserve an issue for review on appeal, it must appear that appellant fairly invoked a
ruling of the trial court on the same grounds argued in the appellate court.” Woolwine
v. Furr’s, Inc., 1987-NMCA-133, ¶ 20, 106 N.M. 492, 745 P.2d 717.
2. 	Juror No. 27
{38} 	Defendants used their third peremptory strike to remove Juror No. 27, who self-
identified himself as “Mexican” on his juror questionnaire. Plaintiffs objected to the
strike and when the district court asked for an explanation, defense counsel stated,
“there are other people on this jury who are further down the line that I’d like.”
Defense counsel had not asked any individual questions of this juror, and Plaintiffs’
counsel asserted this was not a sufficient reason. The district court nevertheless
allowed the strike on the basis of the explanation given by defense counsel. We do not
defer to the district court’s determination in regard to Defendants’ explanation of the

20
challenge; instead under de novo review we hold that the district court’s determination
was erroneous.
{39} 	Defendants repeat on appeal that their underlying rationale for the challenge to
Juror No. 27 “was that they had to sacrifice [Juror No. 27] so they could reach another
juror who they believed would be favorable toward[] them.” This underlying rationale
is acceptable in the usual exercise of peremptory challenges where a prima facie case
of discriminatory conduct has not been established. Absent a prima facie case of
discriminatory conduct, striking jurors tending to or perceived to be sympathetic with
the opposing party’s case, in hopes of getting a juror who is not so predisposed, has
always been considered fair game and a virtually unchallengeable prerogative of
counsel. Defendants’ underlying rationale is not acceptable when a party has
established a prima facie case of discriminatory conduct in the exercise of peremptory
challenges. If a discriminatory intent is inherent in the reason for the challenge, the
reason is not race-neutral. See Salas, 2010-NMSC-028, ¶ 32.
{40} 	Batson warned that the party making the strike does not rebut a prima facie case
of discrimination “merely by denying that he had a discriminatory motive or affirming
his good faith in making individual selections.” Batson, 476 U.S. at 98 (alterations,
internal quotation marks, and citation omitted). Instead, the party making the strike
“must give a clear and reasonably specific explanation of his legitimate reasons for

21
exercising the challenges.” Id. n.20 (internal quotation marks and citation omitted).
“This warning was meant to refute the notion that a prosecutor could satisfy his
burden of production by merely denying that he had a discriminatory motive or by
merely affirming his good faith.” Purkett v. Elem, 514 U.S. 765, 769 (1995) (per
curiam); see Miller-El v. Dretke, 545 U.S. 231, 239 (2005) (reiterating that the striking
party ‘must give a clear and reasonably specific explanation of his legitimate reasons
for exercising the challenge’ (quoting Batson, 545 U.S. n.20)); State v. Goode, 1988-
NMCA-044, ¶ 9, 107 N.M. 298, 756 P.2d 578 (stating that the party excusing jurors
“must articulate a neutral explanation related to the particular case, giving a clear,
concise, reasonably specific legitimate explanation for excusing those jurors”).
{41} 	The reason must be sufficiently specific to allow the party challenging the strike
to exercise its right “to refute the stated reason or otherwise prove purposeful
discrimination.” Jones, 1997-NMSC-016, ¶ 3. It must also be sufficiently specific to
enable the district court to determine whether the opponent of the strike has proved
purposeful discrimination and, therefore, to safeguard equal protection. See Goode,
1988-NMCA-044, ¶ 9 (“[T]he trial court may not merely accept the state’s proffered
explanations, but has a duty to examine them and decide whether they are genuine and
reasonable.”). As more fully explained by State v. Giles, 754 S.E.2d 261, 265 (S.C.

22
2014), in order for the explanation to be legally sufficient at the second step of the
Batson analysis, the explanation
must be clear and reasonably specific such that the opponent of the
challenge has a full and fair opportunity to demonstrate pretext in the
reason given and the trial court to fulfill its duty to assess the plausibility
of the reason in light of all the evidence with a bearing on it. Reasonable
specificity is necessary because comparison to other members of the
venire for purposes of a disparate treatment analysis, which is often used
at the third step of the Batson process to determine if purposeful
discrimination has occurred, is impossible if the proponent of the
challenge provides only a vague or very general explanation. The
explanation given may in fact be implausible or fantastic, as noted in
Purkett, but it may not be so general or vague that it deprives the
opponent of the challenge of the ability to meet the burden to show, or
the trial court of the ability to determine whether, the reason given is
pretextual. The proponent of the challenge must provide an objectively
discernible basis for the challenge that permits the opponent of the
challenge and the trial court to evaluate it.
Id.
Thus, numerous cases have concluded there was error at the second step of the Batson
analysis where the reasons proffered for striking a juror were not sufficiently “clear
and specific” in providing a factual basis for a court to review for legitimacy. See
Moeller v. Blanc, 276 S.W. 3d 656, 662-63; 666 (Tex. Ct. App. 2008) (collecting
cases and concluding that “obscure and vague” explanations for striking a juror are
insufficient).
{42} 	What obviously overly tips the propriety balance of Defendants’ peremptory
challenge of Juror No.27 toward a discriminatory pattern is Defendants’ having

23
exercised their peremptory challenges against Hispanic-surnamed jurors in a manner
that appears to have assured that no Hispanic-surnamed person would sit on the jury,
and, as well, that the jury would not consist of a sufficient number of Hispanic jurors
who might be prone to favor Plaintiffs. Defendants’ actions had to have raised an
eyebrow when, after the game was played, the field was laid bare of Hispanic jurors
and the only basis for challenging Juror No. 27 was that Defendants wanted to have
a juror that they believed would be favorable toward them.
{43} 	While Defendants’ explanation of this challenge was race-neutral on its face,
more was required. See Giles, 754 S.E.2d at 263, 265-66. Defendants did not examine
the stricken jurors on voir dire in an effort to uncover information that would lead
Defendants to be concerned about juror predisposition. There may have been proper,
race-neutral reasons why Defendants wanted another juror “further down the line”, but
the record before us fails to disclose what those reasons might have been. We are
therefore left without constitutionally permissible, race-neutral reasons for striking
Juror No. 27. “If . . . general assertions were accepted as rebutting a defendant’s prima
facie case, the Equal Protection Clause would be but a vain and illusory requirement.”
Batson, 476 U.S. at 98 (internal quotation marks and citation omitted). Under the
totality of circumstances, one can reasonably read Defendants’ explanation to really
say, “we struck [Juror No. 27] because, being Hispanic, he likely would favor

24
Plaintiffs, and we preferred finding a non-Hispanic juror instead who would likely
favor Defendants.” We therefore hold that the district court erred in allowing
Defendants to strike Juror No. 27.
3. 	Juror No. 36
{44} 	Defendants had previously attempted to strike Juror No. 36 for cause because
they were worried her non-treated asthma would cause delay if she had an asthma
attack during the trial. The district court denied the strike for cause. Defense counsel
then used a peremptory challenge, and Plaintiffs’ counsel objected, alerting the court
that this would be the third potential Hispanic juror struck by Defendants. Defendants
gave their explanation and the court allowed the strike, reasoning that “it’s an
appropriate use of a peremptory to challenge a juror that you attempted to challenge
for cause and were unable to get it done[.]”
{45} 	Plaintiffs argue that because Defendants were unable to strike Juror No. 36 for
cause does not give rise to the appropriate use of a peremptory strike. We disagree.
Race-neutral reasons for peremptory strikes do not need to rise to the same level
needed to justify a challenge for cause. State v. Sandoval, 1987-NMCA-041, ¶ 15, 105
N.M. 696, 736 P.2d 501. Here, Defendants proffered a plausible race-neutral
explanation; potential delay of trial from a potential juror’s medical condition. We

25
therefore affirm the district court’s determination that a sufficient race-neutral
explanation was given for striking Juror No. 36.
4. 	Juror No. 40
{46} 	After the jury was picked, Juror Nos. 40 and 41 were next in line for selection
as alternate jurors and both of them were Hispanic. When Defendants struck Juror No.
40, Plaintiffs objected, arguing this was the fourth Hispanic stricken, indicating a
pattern, and when asked by the district court for an explanation for the strike, counsel
responded that he was stricken because he was unemployed.
{47} 	Defendants urge us to conclude that because no alternate juror was called to
deliberate on the case, that the harmless error standard is appropriate to apply. We
reject this suggestion. If a prospective juror is stricken because of race, equal
protection is violated, and the verdict must be reversed, notwithstanding that juror did
not deliberate on the case. Likewise, if a prospective alternate juror is stricken because
of race, equality is violated, whether or not that juror actually deliberates on the case.
In both circumstances, the harm to our society and system of justice is identical, and
it does not matter whether the jury that actually decided the case is ‘representative’ or
unbiased. Our Constitution does not allow for such discrimination in the selection of
our juries in civil or criminal cases.

26
{48} 	Nevertheless, we conclude that Defendants’ explanation that Juror No. 40 was
stricken because he was unemployed is sufficiently race-neutral in the circumstances
of this case. Anticipating this conclusion, Plaintiffs for the first time on appeal suggest
this was a pretext because one of the jurors who was actually seated was also
unemployed. Because this was not brought to the attention of the district court, we do
not consider it further. Woolwine, 1987-NMCA-133, ¶ 20.
{49} 	When viewed in the total selection process, Defendants’ challenges indicate a
pattern of conduct and a motive to keep Hispanics off of the jury. Cumulatively, the
challenges teeter on the edge of impropriety. 	The challenges carried a suspicious
motivation of ridding the jury of Hispanics, leaving a distinct overview of distrust
creating a prima facie case. When looking at the totality of the proceedings, it is
reasonable to conclude that Defendants’ explanation of the challenge to Juror No. 27
was not race-neutral and was pretextual.
{50} 	Defendants nevertheless argue that their five peremptory strikes should not give
rise to an inference of discriminatory intent because they also struck Anglo-surnamed
jurors, indicating exclusion based on non-racial factors, and also because Plaintiffs
exercised their five peremptory strikes against jurors with Anglo surnames, indicating
a pattern of discrimination against jurors with Anglo surnames. These arguments do
not change things. Defendants’ actions are at issue here, not Plaintiffs’ actions.

27
Defendants’ actions create strong inferences of discriminatory intent. While Plaintiffs’
actions may as well, neither Defendants nor the district court raised a Batson issue in
that regard.
{51} 	The jury selection in this case violated Batson. The remedy for such a violation
in a criminal case is a new trial. Guzman, 1994-NMCA-149, ¶ 20. The same remedy
applies in a civil case. See, e.g., Woodson v. Porter Brown Limestone Co., 916 S.W.
2d 896, 907 (Tenn. 1996); Moeller, 276 S.W. 3d at 666; Davis v. Fisk Elec. Co., 268
S.W. 3d 508, 526 (Tex. 2008). The verdict of the jury is reversed and the case is
remanded to the district court for a new trial.
IV. 	REMAINING ARGUMENTS
{52} 	Plaintiffs contend that the district court erred in directing the verdict of the jury
in Defendants’ favor on the battery claim against the individual police officers. We
agree. Looking at the facts recited herein alone, and they were not the only facts
offered in support of the claim, we conclude that the district court erred. See Selmeczki
v. N.M. Dep’t of Corr., 2006-NMCA-024, ¶ 29, 139 N.M. 122, 129 P.3d 158 (“It is
black-letter law that causing an offensive touching, even indirectly to another’s
clothing and not resulting in injury, is the tort of battery.”); Restatement (Second) of
Torts § 18 (1965) (stating that an actor is liable for battery if “(a) he acts intending to
cause a harmful or offensive contact with the person of the other or a third person, or

28
an imminent apprehension of such a contact, and (b) an offensive contact with the
person of the other directly or indirectly results”); see also Strickland v. Roosevelt
Cnty. Rural Elec. Coop., 1980-NMCA-012, ¶ 14, 94 N.M. 459, 612 P.2d 689
(“[D]irected verdicts are not favored and should be granted only when the jury could
not reasonably and legally reach any other conclusion.”).
{53} 	Defendants argue for the first time on appeal that an intentional tort such as
battery does not survive the death of a decedent when the death is unrelated to the tort.
We do not address this argument, as it was not presented to the district court. See
Woolwine, 1987-NMCA-133, ¶ 20.
{54} 	We do not address the remaining issues raised by Plaintiffs because those issues
may not reoccur at the re-trial. In addition, those issues identified as issues Nos. 5, 6,
7, 8, 10, and 11 in Plaintiffs’ brief in chief were not briefed, and we do not address
them. See In re Adoption of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329
(stating that issues that are unsupported by any cited authority will not be addressed
on appeal and that the appellate court will not do this research for counsel).
V. 	CONCLUSION
{55} 	The summary judgment and jury verdict in favor of Defendants are reversed,
and the cause is remanded to the district court for a new trial in accordance with this
Opinion.

29
{56} 	IT IS SO ORDERED.
_______________________________
MICHAEL E. VIGIL, Chief Judge
WE CONCUR:
_________________________________
JONATHAN B. SUTIN, Judge
_________________________________
RODERICK T. KENNEDY, Judge