BRANDON D. ROBERTS, Appellant (Defendant),
THE STATE OF WYOMING, Appellee (Plaintiff).
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.
BURKE, C.J., and HILL [*] , DAVIS, FOX, and KAUTZ, JJ.
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
Did the district court clearly err by allowing the State to
exercise a peremptory challenge to exclude an African
American from the jury?
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
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.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.
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.
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.
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
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.
district court immediately proceeded with a second
[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 ...