A-1-CA-35462 | Omnilex

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Court of Appeals of New Mexico
Filed 5/31/2019 11:09 AM

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

. . Court of Appeals of New Mexico
Opinion Number: Filed 5/31/2019 11:09 AM

Filing Date: May 31, 2019 Al. we z |
Mark Reynolds

No. A-1-CA-35462
STATE OF NEW MEXICO,

Plaintiff-Appellee,

JAVIER DORADO,
Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF DONA ANA COUNTY
Fernando R. Macias, District Judge

Hector H. Balderas, Attorney General

Santa Fe, NM

John J. Woykovsky, Assistant Attorney General
Albuquerque, NM

for Appellee

Bennett J. Baur, Chief Public Defender

B. Douglas Wood III, Assistant Appellate Defender
Santa Fe, NM

for Appellant

OPINION
DUFFY, Judge.
{1} A jury convicted Defendant Javier Dorado of assault on a peace officer and
disorderly conduct. On appeal, Defendant argues that the State exercised its
peremptory challenges in a racially discriminatory manner in violation of Batson v.
Kentucky, 476 U.S. 79 (1986), and his constitutional rights. Detecting no violation,
we affirm.
BACKGROUND
2} Defendant was charged with one count of assault upon a peace officer,
contrary to NMSA 1978, Section 30-22-21 (1971), and one count of disorderly
conduct, contrary to NMSA 1978, Section 30-20-1(A) (1967). The State was
allowed three peremptory challenges and exercised them to strike Potential Jurors
Five, Fifteen, and Eighteen—all persons with Hispanic surnames. See Rule 5-
606(D)(1)(c) NMRA (providing in relevant part that “the state shall be allowed three
(3) challenges”). After the State used its third strike on Potential Juror Eighteen,
Defendant’s counsel asked for a reason for the strike. The district court responded
to the question, stating, “Well, let me see. Let me see if there is a basis for your
request. Okay. [The State used one strike on Potential Juror Five]. They used another
one on [Potential Jurors Fifteen and Eighteen]. Two Hispanic males, one Hispanic

female.” The court told the State it could “address any of the three.”

33 In response, one prosecutor said the State struck Potential Juror Fifteen
because “I just didn’t like his general demeanor. It didn’t appear to be favorable to
the State. Oftentimes we just go off the instinct based on body language, and that’s
why I [asked that Potential Juror Fifteen be stricken].” The State said it struck
Potential Juror Eighteen because “the is a young male from Anthony. And while he
did not make any—he did not say that he knew [D]efendant, he is from the same
area.” The State said it struck Potential Juror Five because she was younger, around
Defendant’s age, and because she is from Anthony.

{44 The district court observed that the majority of the jury panel at that point was
Hispanic and concluded that the peremptory strikes had not been used improperly,
to which Defendant’s attorney replied, “Yes, your Honor” without raising further
objection or argument. Of the thirteen jury members finally selected, seven were
Hispanic. The jury found Defendant guilty of both charges.

DISCUSSION

{5} “It is well established that the [s]tate may not, during the jury selection
process, use its peremptory challenges to exclude otherwise unbiased and well-
qualified individuals solely on the basis of their race.” State v. Martinez, 2002-
NMCA-036, 9 9, 131 N.M. 746, 42 P.3d 851. “Such invidious discrimination
violates the Equal Protection Clause of the United States Constitution and causes

harm to the litigants, the community, and the individual jurors who are wrongfully

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excluded from participation in the judicial process.” State v. Salas, 2010-NMSC-
028, 7 30, 148 N.M. 313, 236 P.3d 32 (internal quotation marks and citation
omitted); see U.S. Const. amend. XIV, § 1; N.M. Const. art. I], §§ 14, 18.' To
evaluate whether peremptory challenges have been exercised in a discriminatory
manner, our courts have adopted and apply a three-part test based on the United
States Supreme Court’s decisions in Batson and Purkett v. Elem, 514 U.S. 765
(1995). Our Supreme Court in Sa/as stated:

First, the opponent of a peremptory challenge bears the burden to
establish a prima facie case indicating that the peremptory challenge
has been exercised in a discriminatory way (step one). To make a prima
facie showing, a party must prove 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.

If the opponent of the peremptory challenge successfully makes a prima
facie showing, then the burden shifts to the proponent of the challenge
to come forward with a race or gender-neutral explanation (step two).
The second step of this process does not demand an explanation that is
persuasive, or even plausible. Rather, the issue is the facial validity of
the proffered explanation. Unless a discriminatory intent is inherent in
the party’s explanation, the reason offered will be deemed race or
gender-neutral. If a race or gender-neutral explanation is tendered, the
trial court must then decide (step three) whether the opponent of the
strike has proved purposeful racial or gender discrimination. The

' Defendant does not argue that the New Mexico Constitution provides
broader protection against allegedly discriminatory peremptory challenges than the
United States Constitution, nor do we address this question here.

—

ultimate burden of persuasion regarding racial or gender motivation
rests with, and never shifts from, the opponent of the strike.

Salas, 2010-NMSC-028, §§ 31-32 (alterations, internal quotation marks, and
citations omitted).

{6} “We review the trial court’s factual findings regarding a Batson challenge
using a deferential standard of review, as it is the responsibility of the trial court 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.” Salas,
2010-NMSC-028, { 33 (alteration, internal quotation marks, and citations omitted).
“However, we are not required to defer to the district court regarding whether a
stated reason for a challenge is constitutionally adequate; therefore, we apply a de
novo standard of review to the ultimate question of constitutionality.” State v. Bailey,
2008-NMCA-084, 4 15, 144 N.M. 279, 186 P.3d 908.

1. Defendant Made a Prima Facie Case of Discrimination

{7} The State argues that Defendant did not make a prima facie case for purposes
of step one of the Batson analysis. Accordingly, we consider whether Defendant
proved “(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.” Salas, 2010-NMSC-028, 4 31. The State used all
three of its peremptory strikes against prospective jurors with Hispanic surnames. It
is well settled that “Hispanics are a cognizable group under a Batson challenge.”
Bustos v. City of Clovis, 2016-NMCA-018, § 33, 365 P.3d 67. In Martinez, we held
that the “the prosecution’s use of all three of its peremptory challenges against
Hispanics created an inference of discrimination sufficient to support a prima facie
case.” 2002-NMCA-036, § 30. Likewise, in Bailey, we stated that by asking if the
state had a legitimate, non-discriminatory reason for its challenges, the district court
“implicitly found that [the dJefendant had made a prima facie showing that the
[s]tate’s challenges were racially motivated.” 2008-NMCA-084, 4 17; see Bustos,
2016-NMCA-018, 4 33 (same). Under the circumstances here, we agree with the
district court that Defendant established a prima facie case of discriminatory conduct
under the first step of the Batson analysis.

2. The State’s Reasons Were Facially Race-Neutral

{8} Although Defendant argues that “the error in this matter occurred with respect
to the third step,” he also asks us to “hold that the State . . . failed to meet its burden
in the second step of the [Batson analysis].” In particular, Defendant argues that the
State “failed to provide a satisfactory race-neutral basis for exercising peremptory

strikes against [Potential Juror Five] and [Potential Juror Eighteen] based on their

address being in Anthony[,]” and that body language is an unsatisfactory explanation
for striking Potential Juror Fifteen. The only inquiry at step two is the “facial validity
of the proffered explanation,” an issue determined on the basis of whether “a
discriminatory intent is inherent” in the explanation. Salas, 2010-NMSC-028, 4 32
(internal quotation marks and citation omitted). The State’s explanation does not
have to be “persuasive, or even plausible[,]” id. (internal quotation marks and
citation omitted), but instead “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.” Bustos, 2016-NMCA-018, § 41 (internal
quotation marks and citation omitted).

{9} Turning first to Potential Jurors Five and Eighteen, we address whether the
State’s reasons for striking these potential jurors—residence and age—were race-
neutral or inherently discriminatory. New Mexico has not addressed the question of
whether the combination of age and residence is a facially race-neutral reason for
exercising a peremptory strike. Other jurisdictions, however, have held that the
combination is facially race neutral. See Higginbotham v. State, 428 S.E.2d 592,
593-94 (Ga. Ct. App. 1993) (affirming exclusion of veniremember “who lived in the
same general area as appellant and was of approximately the same age as he”
because “[o]bviously, possible affinity between a prospective juror and the very

defendant on trial can constitute a neutral and non-racial explanation for the

employment of a peremptory strike. ... [and i]t was not required that the [s]tate
prove that the prospective juror and appellant were personally acquainted” (citations
omitted), abrogated on other grounds as recognized by King v. State, 447 S.E.2d
645, 650 (Ga. Ct. App. 1994); People v. Smith, 630 N.E.2d 1068, 1085 (Ill. App. Ct.
1994) (affirming exclusion of a veniremember “because of her age and because she
lived on the south side of the city, where the crime occurred” as race-neutral); State
v. Lewis, 2017-Ohio-7480, 96 N.E.3d 1203, at § 33 (affirming peremptory strike
when the state explained the strike based on the veniremember being “close in age
to the age of these defendants” and being from a neighborhood that, based on the
prosecutor’s prior experience, tended to favor the defense (internal quotation marks
and citation omitted)); State v. Garris, 714 S.E.2d 888, 898 (S.C. Ct. App. 2011)
(affirming peremptory strike of juror when the stated reason was “because [the
potential juror] was close in age to [the defendant] and was from [the same city as
the defendant]; therefore, the solicitor assumed that the juror and [the defendant]
went to school together”).

{10} Here, the State exercised peremptory strikes to remove Potential Jurors Five
and Eighteen because they were close in age to Defendant and lived in the same
small city as Defendant. Based on the prosecutor’s statement to the district court—
“while [Potential Juror Eighteen] did not say he knew . . . [D]efendant, he is from

the same area”—the State expressed some concern that these potential jurors might

know Defendant or have an affinity toward him. The State argues on appeal that “it
is reasonable to infer that similarly aged people in such a small town may have gone
to the same small school—and so might have some familiarity or connection—even
if there was no ‘personal or professional relationship’ that would require disclosure
during voir dire.” We agree based on these facts that the State’s reason for striking
these jurors was facially race-neutral and not inherently prejudicial. See, e.g.,
Higginbotham, 428 S.E.2d at 594 (“We cannot condemn the prosecutor’s reluctance
to gamble on the significance of the proximity of residence and nearness in age.”
(alteration, internal quotation marks, and citation omitted)).

(11}_ The State’s justification here, based on its overarching concern that potential
Jurors may have some affiliation with Defendant, distinguishes this case from those
cited by Defendant in which veniremembers’ places of residence were used as a
surrogate for racial stereotypes and socioeconomic status. In United States v. Bishop,
959 F.2d 820 (9th Cir. 1992), overruled on other grounds by United States v. Nevils,
598 F.3d 1158, 1167 (9th Cir. 2010), for example, the court held that the prosecutor’s
strikes based on the veniremember’s address in Compton ultimately “reflected and
conveyed deeply ingrained and pernicious stereotypes” because the prosecutor’s
justification for the strikes conveyed an assumption that members of the community
shared collective experiences of violence and feelings regarding the police based on

their race and socioeconomic status. Bishop, 959 F.2d at 822, 825. Similarly, in Ex

Parte Bird, 594 So. 2d 676, 682-83 (Ala. 1991), the court determined that the
prosecutor’s strike based on a veniremember’s street address was not an acceptable
race-neutral reason because the prosecutor had not asked the veniemember any
questions on voir dire, the allegation that the veniremember lived in a “high crime”
area failed to demonstrate any relevance to the case, and may also “serve to eliminate
from jury service those individuals living at the lower end of the socioeconomic
scale.” Id. at 682. In these cases, the prosecutors’ use of peremptory strikes based on
address were held invalid because they sanctioned underlying, discriminatory
purposes founded upon the characteristics and assumed beliefs of the communities
in which the veniremembers lived. The prosecutor’s strikes in this case related to
concerns of affinity and were relevant to the specific facts of this case, and
consequently, do not demonstrate discriminatory intent similar to Bishop and Ex
Parte Bird.

123} Turning next to Potential Juror Fifteen, the State’s explanation for striking this
juror was based on his body language and demeanor. Our Supreme Court has held
that body language is a facially neutral reason for a peremptory strike. See State v.
Begay, 1998-NMSC-029, ff 13, 15, 125 N.M. 541, 964 P.2d 102. In Begay, the state
explained that it exercised a peremptory strike against a Native American
veniremenber “because she was not very responsive on the jury questionnaire and

had displayed unfavorable body language.” /d. § 13. Our Supreme Court found no

error where the district court accepted this as facially valid. Jd. § 15. Similarly, in
State v. Jones, 1997-NMSC-016, 94, 123 N.M. 73, 934 P.2d 267, our Supreme Court
concluded that the district court did not err in ruling that the state’s use of a
peremptory strike against a prospective juror for “failure to make eye contact and
lack of assertiveness” was racially neutral, id. ¥ 5, although noting that “subjective
judgments . . . are particularly susceptible to the kind of abuse prohibited by
Batson{[.]” Id. J 4 (internal quotations marks and citation omitted). The Jones court
observed that “[m]any of the judgments made by counsel in picking a jury are purely
intuitive and based upon inarticulable factors. Therefore, while subjective
considerations might not be susceptible to objective rebuttal or verification, . . . they
are permitted because of the inherent nature of peremptory challenges, with the
understanding that ultimate Batson findings largely will turn on evaluation of
credibility of counsel’s explanations.” /d. § 4 (alterations, internal quotations marks,
and citations omitted). In light of Begay and Jones, the State’s explanation that it
exercised the strike against Potential Juror Fifteen based on body language and
demeanor is not inherently discriminatory. Because the State’s reasons for
challenging these jurors were racially neutral and specific, we see no error in the

second step of the Batson analysis.

3. Defendant Failed to Show That the State’s Challenges Were Purposefully
Discriminatory

{13} Because we hold that the State came forward with facially race-neutral
reasons for its peremptory strikes, we move on to the third step of the Batson
analysis. “A peremptory challenge that is found to be valid on its face stands unless
the defendant comes forward with a refutation of the stated reason—e.g., by
challenging its factual basis—or proof of purposeful discrimination by the
prosecutor.” Begay, 1998-NMSC-029, § 14. Where the defendant does not “come
forward with evidence showing the prosecutor’s explanation was without basis in
fact or that the prosecutor purposefully discriminated against the juror based on
race[,]” a district court does not err in finding that a peremptory challenge is valid
and not discriminatory. Id.; see State v. Chavez, 2009-NMCA-089, 4 5, 146 N.M.
729, 214 P.3d 794 (“Insofar as [the d]efendant failed to demonstrate the prosecutor’s
explanation was without basis in fact or that the prosecutor purposefully
discriminated against the juror based on race, we uphold the district court’s ruling.”).
{143 While we have recognized several ways in which a defendant can show

purposeful discrimination,” in this case Defendant’s counsel did not challenge the

? See, e.g., State v. Wilson, 1994-NMSC-009, ¥ 28, 116 N.M. 793, 867 P.2d
1175 (stating that purposeful discrimination may be shown based on “the extent of
voir dire of the excluded jurors, whether the explanation is related to the particular
case, and whether a past pattern of challenges against members of a particular racial
group exists”); Bustos, 2016-NMCA-018, ¥ 49 (concluding, in light of total selection
process, the defendants’ challenges established a “pattern of conduct and a motive

prosecutor’s explanations or otherwise make any argument or showing that the State
purposefully discriminated in its use of peremptory strikes. See Begay, 1998-NMSC-
029, 7 15 (upholding the district court’s ruling that the state’s peremptory challenge
was proper where “the prosecutor’s explanation was accepted by the [district] court
as facially valid[,] . . . [and the dJefendant’s counsel neither challenged the
prosecutor’s professed reason for striking [the prospective juror] nor otherwise
showed that the prosecutor intentionally discriminated”). The district court informed
counsel for both sides that it did not believe there was a basis for Defendant’s
challenge to the State’s peremptory strikes, to which Defendant’s attorney
responded, “Yes, your honor.” Under these circumstances, and given Defendant’s
failure to carry his burden of proving purposeful discrimination under Batson, the
district court did not err in ruling that the State’s peremptory challenges were proper.
CONCLUSION

415} For the foregoing reasons, we affirm.

6 ITISSO ORDERED.

to keep Hispanics off of the jury”); State v. Guzman, 1994-NMCA-149, J 19, 119
N.M. 190, 889 P.2d 225 (finding a Batson violation where the same factors that were
identified to strike Hispanics were not applied to strike Anglos); State v. Goode,
1988-NMCA-044, ¢ 14, 107 N.M. 298, 756 P.2d 578 (stating that a prosecutor’s
proposed reason for striking a juror may also be pretextual when the prosecutor
strikes jurors for a reason that does not appear to be related to the case).

1
WE CONCUR:
2 3
M. MONICA ZAMORA, Chief Judge
4 5
JENNIFER L. ATTREP, Judge
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May 31, 2019- State of New Mexico v. Javier Dorado, No. A-1-CA-35462

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