Roberts v. State

         Appeal from the District Court of Laramie County The Honorable Catherine R. Rogers, Judge

          Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; David E. Westling, Senior Assistant Appellate Counsel. Argument by Mr. Westling.

          Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Christyne M. Martens, Senior Assistant Attorney General; Darrell D. Jackson, Faculty Director, Prosecution Assistance Program, Saige N. Smith, Student Director, Kevin A. Haugland, Student Intern. Argument by Mr. Haugland.

          Before BURKE, C.J., and HILL ^[*] , DAVIS, FOX, and KAUTZ, JJ.

          FOX, Justice.

         [¶1] Brandon D. Roberts appeals his conviction for driving while under the influence (DWUI). Mr. Roberts claims that the district court denied him equal protection by allowing the State to peremptorily challenge a potential juror based on race. Because the record supports the validity of only one of the prosecutor's race-neutral reasons for his peremptory challenge, and does not show that the district court would credit this reason alone, we remand for a new Batson hearing.

         ISSUE

         [¶2] Did the district court clearly err by allowing the State to exercise a peremptory challenge to exclude an African American from the jury?

         FACTS

         [¶3] Mr. Roberts, an African American, was arrested in Cheyenne, Wyoming, and charged with DWUI under Wyo. Stat. Ann. § 31-5-233(b)(i). After a 1½-day trial, the jury returned a guilty verdict. The DWUI conviction was his fourth in less than ten years, constituting a felony for which the district court sentenced him to three to five years incarceration.^[1]

         [¶4] Our inquiry is limited to the jury selection process, during which the State exercised a peremptory challenge to dismiss from the panel Juror 364, an African American woman.^[2]Of 31 prospective jurors on the panel, 2 were African American. The prosecutor exercised his second peremptory challenge to remove the first African American, to which there was no objection. The prosecutor then exercised his fourth peremptory challenge to reject the second African American, Juror 364, to which defense counsel objected, prompting the district court to hold a side-bar conference:

[DEFENSE]: I do have concerns with the State's most recent strike as she is the last remaining person of African American descent. I understand why the first lady was struck of African American decent [sic], why she was selected by the prosecutor to be struck, but the second one I fail to see how that is based . . .

THE COURT: [Prosecutor].

[PROSECUTOR]: Her demeanor throughout was negative. She doesn't want to sit on the jury. One time she did answer, she expressed doubt as to whether this was alcohol --or a DUI. Her expressions seemed to -- her facial expressions were more -- she was kind of nodding. She was grimacing. My recollection is that she did not want to sit on the jury.

THE COURT: [Defense counsel].

[DEFENSE]: Those words were not spoken by her.

THE COURT: What response are you expecting from the Court?

[DEFENSE]: Just that it be done for the record.

THE COURT: I will allow the State -- is it Number 346 [sic] -- seat number is it -- 17, [Juror 364].

[DEFENSE]: Thank you, Your Honor.

         Defense counsel was correct that Juror 364 had not spoken the words attributed to her by the prosecutor. In fact, we can find no record of Juror 364 speaking during voir dire.

         [¶5] Following jury selection, the jury was sworn in, the unselected venirepersons were released, and each party presented opening statements. Before the State presented evidence, while the jury was out of the courtroom, defense counsel requested that "the prosecutor's and my jury selection notes be submitted to the Court and sealed, not seen by other parties to preserve the issue of the Batson challenge I raised regarding [Juror 364] as a best practice method of preserving the record." The State objected, claiming that the notes were protected work product. The district court took the request under advisement, but there is no record that it ever ruled on the request. The attorney notes are not in the record.

         [¶6] The State then presented its case in chief. After the State rested, the district court, on its own motion, announced to counsel that it would conduct a full hearing on the Batson challenge:

I do think it's important for the defendant's benefit, if for no other reason, and so that we've created a full record, we conduct a full Batson analysis -- or I conduct a full Batson analysis . . . . And if the defendant were to make a prima facie showing, the State would have to provide I think in a little bit more detail than has been done to date a neutral explanation for the exercise of the peremptory challenges so that I can make the decision that I need to make.

         The district court immediately proceeded with a second Batson hearing:

[DEFENSE]: Your Honor, on this entire panel there were two members of what it appeared to be African American decent [sic]. Mr. Roberts is African American himself. The first lady who was challenged, peremptorily challenged by the State was . . .

THE COURT: [Other juror].

[DEFENSE]: Thank you, Your Honor. When [the other juror] did speak she spoke that she knew Mr. Roberts from growing up with him. She also gave a lot of vocal answers for the State to base their peremptory strike on her.

The issue I have is with the juror who was seated in Seat 17, Juror Number 364 . . . . She was the only other juror who appears to be of African American decent [sic], and she was the second person -- it was the State's fourth peremptory strike and [the other juror] was the second. Then she was the only --the State struck two of the only two African American people who were on as a potential juror.

[Juror 364] in her vocalization response to questions seemed to only vocalize the question, "What is buzzed driving?" That doesn't seem that that can indicate that that in and of itself is -- she did not vocalize anything that seemed to indicate that her ...