State v. Reyes ( 1989 )

KLEINSCHMIDT, Judge,

dissenting.

I dissent because I am unwilling, on this record, to accord the deference the majority does to the trial judge’s finding that the state’s use of one of its peremptory challenges was proper. It appears to me that, in considering the challenge to the Hispanic male member of the panel, the trial judge may have been influenced by an extraneous factor—the absence of a pattern of discrimination by the state in the exercise of peremptory challenges.

The principle established in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), is so important, and so difficult to implement, that it behooves us to resolve the doubts this record raises in favor of the defendant. In so saying, I do not imply that this trial judge took a cavalier approach to the defendant’s objection to the peremptory challenges. Indeed, I am satisfied that he made a conscientious effort to implement Batson but simply applied a wrong standard in reaching his decision.

I agree with the majority that the record supports the judge’s ruling concerning two other members of the panel, the Black male and the Hispanic woman. With regard to the latter, I question whether it would have been proper to allow the challenge if the prosecutor’s assessment that she was a “sympathetic type person” was all that supported it. The judge specifically agreed, however, with the prosecutor’s belief that this panel member might have a difficult time following the proceedings. That was enough to support a peremptory challenge.

With respect to the Hispanic male, one of the reasons the prosecutor gave for striking him from the panel was that he was of a lower economic class. I have a doubt as to whether membership in a particular socio-economic class is a legitimate reason for the exercise of a peremptory challenge. In State v. Gardner, 157 Ariz. 541, 760 P.2d 541, petition for cert. filed sub nom. Arizona v. Nastro, 57 U.S.L.W. 3456 (U.S. Dec. 17, 1988) (No. 88-1037), our supreme court, predicating its holding on an interpretation of the sixth amendment guarantee to an impartial jury, broadly forbade the use of a peremptory challenge to exclude any substantial and identifiable class of citizens from the jury for discriminatory reasons. Id. at 546, 760 P.2d at 546 (emphasis added); but see Sands v. Cunningham, 617 F.Supp. 1551 (D.C.N.H.1985).

In any event, it cannot be denied that the fact that this panel member had a sister in prison for assault would have been an acceptable reason to strike him. That does not end the inquiry, however, because the judge did not indicate that this was the reason he was overruling the defendant’s objection, and more importantly, the judge apparently misunderstood how Batson objections should be weighed. He said:

Based upon all of Mr. Garcia’s answers, and all of the arguments of both counsel, and as to whether or not there’s a pattern that’s developed here, I cannot find grounds upon which to say that there has been such a pattern as what the Batson case was addressing.

There are two problems with the judge’s explanation. First, it is unsupported by the record. The prosecutor, from all we can tell and for whatever reason, struck all members of racial minorities from the panel. It is true that he mentioned that two remaining members of the panel might be Hispanic, but this was never pursued and there was no finding to that effect.

Second, and more important, no pattern of impermissible strikes is necessary to a finding that a particular strike is improper. Indeed, there will be many cases in which no pattern can be discerned because there will only be one member of a racial minority group on the panel. The judge might have meant that since he saw no pattern of discrimination, he believed the prosecutor’s explanation for why he struck the Hispanic male. It is not clear, however, that this is what the judge did mean.

Batson must not become a dead letter. There is no room for confusion when a court weighs the reasons the state gives for exercising strikes against cognizable groups. I would reverse and remand for a new trial.