People v. Beauvais , 405 P.3d 269 ( 2014 )

Opinion by

JUDGE POX

¶ 1 Defendant Heather Beauvais appeals the judgment of conviction entered on a jury verdict finding her guilty of stalking. We remand the ease to the trial court with directions that it make additional findings concerning Beauvais’s challenge under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

I. Background

¶ 2 Beauvais was charged with extortion and three counts of stalking after she repeatedly called, emailed, and sent text messages to a man she had met on the Internet. The jury found. Beauvais guilty of one count of stalking under section 18-3-602(l)(c), C.R.S. 2014. Beauvais now contends that the trial court committed reversible error in the jury selection process. She also .contends that section 18—3—602(1)(c) is unconstitutional.

II. Batson Challenge

¶ 3 Beauvais first contends that the trial court clearly erred by failing to sustain her Batson challenge to the prosecution’s use of peremptory challenges to excuse potential jurors on account of their gender. We conclude that the record is insufficient to all us to determine whether the trial court’s ruling was clearly erroneous, and therefore remand the matter to the trial court for additional findings.

A. Applicable Law and Standard of Review . -

¶ 4 Batson reaffirmed that purposeful racial discrimination in jury selection violates a defendant’s rights under the Equal Protection Clause of the Fourteenth Amendment. 476 U.S. at 86-87, 106 S.Ct. 1712; see Fields v. People, 732 P.2d 1145, 1155 (Colo.1987) (applying Batson). The Equal Protection Clause also prohibits gender discrimination in jury selection. See J.E.B. v. Alabama, 511 U.S. 127, 131, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994) (applying Batson to prohibit gender discrimination in jury selection); People v. Gandy, 878 P.2d 68, 70 (Colo.App.1994) (applying J.E.B.).

¶ 5 Accordingly, the prosecution may not use peremptory challenges to “purposefully discriminate” against potential jurors due to either race or gender. See People v. Collins, 187 P.3d 1178, 1181 (Colo.App.2008). Where a criminal defendant claims the prosecution used its peremptory challenges to excuse potential jurors on the basis of gender, the defendant bears the burden of showing purposeful discrimination. Cf. Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (“[T]he ultimate burden of persuasion regarding racial motivation [for exercising peremptory challenges] rests with, and never shifts from, the opponent of the strike.”).

¶ 6 Courts evaluate claims of discriminatory jury selection using the three-step analysis set forth in Batson:

(1) First, the defendant must make a pri- . ma facie showing that the state used its peremptory challenges to exclude potential jurors due -to their gender. See 476 U.S. at 93-97, 106 S.Ct. 1712.

(2) Next, if the -defendant makes that showing, the burden shifts to the'prosecution to articulate a gender-neutral reason for excluding the jurors in question. Id. at 97, 106 S.Ct. 1712.

(3) Finally, if the state can articulate a gender-neutral explanation for its challenges, then the trial court must give the defense an opportunity to challenge that explanation, before determining whether the defendant has carried her burden of proving purposeful discrimination.

People v. Saiz, 923 P.2d 197, 206 (Colo.App.1995); see also People v. Cerrone, 854 P.2d 178, 186 (Colo.1993).

¶7 Beauvais challenges the trial court’s determination at the third Batson step. At step three, the trial court' must review all the evidence to decide “whether the opponent of the strike has shown, by a preponderance of evidence, that the proponent of the strike sought to exclude a potential juror because ’ of a discriminatory reason.” Collins, 187 P.3d at 1182. “The 'decisive question” at this step is whether counsel’s gender-neutral explanation for a peremptory challenge “should be believed.” Id; see also Snyder v. Louisiana, 552 U.S. 472, 477, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008), In answering that question, the court may consider, among other factors, “the proponent’s demeanor, how reasonable or improbable the proponent’s explanations are, and whether the proffered rationale has some basis in accepted trial strategy.” Collins, 187 P.3d at 1182. The trial court is in a far better position than a reviewing court to make such credibility determinations. Id Therefore, “we defer to the trial court’s factual finding as to whether the defendant proved intentional discrimination, and we review the trial court’s ruling in that regard for clear error.” People v. Gabler, 958 P.2d 505, 508 (Colo.App.1997) (citation omitted).

B. Analysis

¶ 8 At the conclusion of voir dire, the prosecutor used five of the six allotted peremptory challenges to excuse females from the panel of potential jurors.¹ Defense counsel used all six peremptory challenges to dismiss male potential jurors from the panel. The final jury 'consisted of nine male jurors; three female jurors; and one alternate juror, a female. • Defense counsel raised a Batson objection, and the trial court determined that the defense had established a prima facie case of discriminatory jury selection. The prosecutor initially expressed surprise that Batson prohibited gender discrimination in jury selection, saying, “I [have] only heard [Batson] argued in terms of race neutral causes for peremptory challenges. So I’ve never heard it in terns of gender.” The prosecutor then gave the following'gender-neutral explanations for the challenges:

Jüror No. 1, [S.B.], looked disinterested during the questioning. She offered no — she never raised her hand for any issue. Never nodded when another juror spoke and oftentimes was looking away from me during my questioning looking at her watch. She appeared to me to be young and had no kids.

Juror No. 4, [L.G.], during the period when we were waiting for the remainder of the jurors to come back she was in the back of the courtroom and she was coughing heavily. I don’t know if she was sick. She never indicated on the record that she was sick. But that was the impression I got. Her husband is in the legal field. She Has two daughters. One of which she said was stalked. I think it is inappropriate to have someone whose family member so closely alleged to have been a victim of the same crime that we’re charging here. Juror No. 6, [K.G.] is in college. Is currently attending college. • Has no kids. Appeared to be yotmg.And it sounds as ■though she had a relationship with a'large amount of law enforcement officers from [her] community....

Juror No. 10, [A.B.], is also in college. Appeared to me to be young. Does not have any kids and did hot expand on any of her comments when asked specifically about what we had spoken with prior to her getting on the panel. She seemed deadpan to me and gave no detailed explanations of why she was saying yes and no. Juror No. 23, [J.T.], also currently in college. Attending classes'. She also appeared young. Appeared disinterested. Did not volunteer any answers to my questions, although I tried to make eye contact with her to engage her in conversation. She never raised her hand or volunteered any information.

¶ 9 The court took a brief recess to consider the issue, and then denied the Batson challenge. Because there is insufficient information in the record to determine whether the court’s ruling was clearly erroneous, we must remand the matter to the trial court.

¶ 10 The record reveals that the prosecutor used two peremptory challenges to excuse women, S.B. and J.T., whom it had failed to question during voir dire. In Gabler, a division of this-court explained that a prosecutor’s failure to question potential jurors of a protected class before excusing them “raises the inference of purposeful discrimination.” 958 P.2d at 508.

¶ 11 Moreover, here, the prosecutor’s questions to the other challenged prospective jurors revealed little, if anything, that would form the basis for a peremptory challenge under “accepted trial strategy.” See Collins, 187 P.3d at 1182. A.B., L.G., and K.G. all stated that they would listen to the evidence presented at trial and render a verdict based on that evidence and the court’s instructions. Nevertheless, the prosecutor excused all three women for reasons that seem largely unrelated to the issues in the case, We acknowledge that, in explaining its peremptory challenges after a Batson objection, the prosecution need not provide an explanation that would justify a challenge for cause. See Cerrone, 854 P.2d at 189. .But “implausible or fantastic justifications” for a peremptory strike are generally not sufficient to overcome an inference of purposeful discrimination,, Purkett, 514 U.S. at 768, 115 S.Ct. 1769.

¶ 12 Some of the- reasons the prosecutor offered for excusing female potential jurors — that they were young, had no children, failed to volunteer answers to questions posed to the panel, had connections to law enforcement officers, and had personally witnessed or experienced stalking — applied equally to many male potential jurors in tlje venire:

• Juror L.C. stated that he had been stalked;

• Juror M.K. said that his uncle had been a stalking victim;

• Juror K.N. was young and had no children;

• Juror J.S. was young and childless;

• Juror J.G. had friends in law enforcement.

Yet," the prosecutor did not challenge any of the above male potential jurors.² “A prosecutor’s disparate treatment of prospective jurors who, but for their race [or gender], have similar and allegedly objectionable experiences, is pretextual.” Gabler, 958 P.2d at 508. Thus, this prosecutor’s different treatment of jurors whose only notable difference was gender suggests that the prosecutor used peremptory challenges to discriminate based on gender.

¶ 13 Significantly, several male jurors who seemed to express bias against the prosecution were kept on the panel, while female jurors who. stated they could be fair and impartial were excused. For example, one male juror, K.N., remained on the panel even after revealing that he had recently spent eighty-five days in jail. When asked about his experience, K.N. said that he felt he had been treated unfairly by a Denver police officer, and that he was- “tender, when it comes to sentencing” — powerful evidence that he might harbor anti-prosecution bias. J.S., another male juror, also referenced a bad experience with law enforcement, but the prosecutor exercised four peremptory challenges before the defense finally struck J.S. from the panel; And, perhaps most notably, after the trial court denied the prosecution’s for-cause challenge to R.S., a male potential juror who had expressed bias against the prosecution,³ the prosecutor did not use a peremptory challenge to excuse R.S.- The juror remained on the panel and ultimately deliberated with the rest of the jury. While peremptory challenges may sometimes be exercised based on guesses, hunches, and gut feelings about how certain potential jurors might decide a case, that the prosecutor was willing to have these three men serve oil the jury — instead of women who, during voir dire, evinced a greater affinity for the prosecution — suggests that the prosecutor used peremptory challenges to excuse potential jurors based on their gender.

¶ 14 Furthermore, the prosecutor’s stated reasons for excusing the female potential jurors were inconsistent. The prosecutor claimed that he dismissed S.B., K.G., and A.B., in part, because they had no children. But later, when explaining why L.G. was dismissed, the prosecutor stated, “[s]he has two daughters.” The prosecutor then added that one of L.G.’s daughters had been stalked, and said, “it is inappropriate to have someone [on the jury] whose family member [is] alleged to have been a victim of the same crime we’re charging here.” It was defense counsel, however, who excused the two male potential jurors who had personal experiences related to stalking.

¶ 15 The prosecutor’s decision to waive the last peremptory challenge also suggests discriminatory intent, because, had he exercised that challenge, the next juror to be seated on the panel would have been a woman. Recently, in People v. Lucero, 2014 COA 53, 353 P.3d 874, a division of this court held that the “inaction” of waiving a peremptory challenge, the exercise of which would have brought to the panel a juror of a particular race or gender, supports an inference of discriminatory intent when other evidence shows that the prosecutor may have discriminated against that particular race or gender. Id. at ¶ 33.

¶ 16 In Snyder, a prosecutor used a peremptory strike in a capital murder case to excuse an African-American prospective juror who had survived a challenge for cause. 552 U.S. at 477, 128 S.Ct. 1203. When the defense objected on Batson grounds, the prosecutor offered two race-neutral reasons for excusing the potential juror: (1) he looked nervous during questioning; and (2) he was a . student teacher, so he might find the defendant guilty of a lesser offense to avoid the death penalty phase ,of the trial and miss fewer classes. Id. at 478-79, 128 S.Ct. 1203. The second explanation was refuted by the record: the trial court contacted the potential juror’s supervisor, who explained that the potential juror would be excused from class for a week for his jury service. Id. at 481, 128 S.Ct. 1203. After learning of that conversation, the potential juror expressed no further concern about serving on the jury. Id, Thus, the Court inferred that the prosecutor’s second reason was pretextual. Because the trial court made no findings regarding the first reason — the prospective juror’s alleged nervous demeanor — the Court refused to presume that the judge had credited the first reason. Id. at 485, 128 S.Ct. 1203. Therefore, “the Court concluded that the adverse inference created by the use of the pretextual reason was not overcome by the first reason,” and it reversed the defendant’s. conviction. Collins, 187 P.3d at 1183 (discussing Snyder),

¶ 17 A division of this court adopted Sny-dePs reasoning in Collins, 187 P.3d 1178. In Collins, the prosecutor articulated five race-neutral reasons for excusing an African-American prospective juror with a peremptory challenge: (1) she did not respond to questions; (2) she had her arms crossed during voir dire; (3) she did not reveal that her husband had once been accused of a crime; (4) she had slept through part of voir dire; and (5) she was a nurse. Id. at 1180. Three of those reasons were refuted by the record: the juror responded to every question the prosecutor posed to her; the prosecutor never asked the prospective jurors whether they had relatives who had been accused of a crime; and the prospective juror' was a program assistant at a hospital, not a nurse. Id. at 1183. Thus, the Collins division concluded that the prosecutor’s reasons were pretextual. Id. Because the trial court did not make findings crediting the remaining reasons— which focused on the juror’s body language and demeanor — the division held that it could not presume the trial court found them to be credible. Id. Therefore, the division determined that the trial court clearly erred by denying the defendant’s Batson challenge. Id. at 1184.

¶ 18 Here, as in Snyder and Collins, the record refutes several of the prosecutor’s explanations for excusing potential jurors. The record contradicts the prosecutor’s claims that he dismissed female potential jurors because they had no children, failed to volunteer answers to questions posed to the panel, had connections to law enforcement officers, and had personally witnessed or experienced stalking: several males on the panel had those same characteristics, and the prosecutor did not even attempt to excuse them. Thus, following the- holdings of Snyder, 552 U.S. at 485, 128 S.Ct.1203, and Collins, 187 P.3d at 1183, we can infer that the prosecutor’s stated reasons for dismissing the challenged jurors were pretextual. And, as in Snyder and Collins, the trial court did not specifically credit the prosecutor’s demeanor-based reasons for dismissing the female potential jurors, and thus we cannot presume the trial court found them to be credible. See also United States v. McAllister, 693 F.3d 572, 581 (6th Cir.2012) (concluding that the trial court did not conduct a constitutionally sufficient Batson analysis where it did not explicitly analyze the prosecutor’s credibility vis-á-vis the proffered explanations for dismissing a prospective juror — the trial court’s truncated analysis essentially combined Batson steps two and three).

¶ 19 Unlike in Snyder and Collins, however, not all of the prosécutor’s remaining justifications for excusing potential jurors were based on demeanor or body language. The prosecutor claimed that each' of the potential jurors he had excused was either young, sick, or a college student. These justifications are objectively verifiable and could potentially form the basis of a legitimate peremptory challenge. But the trial court made no findings regarding the potential jurors’ ages or health, and there is nothing in the record to show whether the trial court believed that the prosecutor sought to excuse any of them because they were college students. Therefore, we cannot determine whether the trial court conducted a complete Batson analysis. Accordingly, we must remand the case for additional proceedings.

¶20 On remand, the trial court should conduct the third step of the Batson analysis. It should make specific findings crediting or discrediting the prosecutor’s justifications for excusing female potential jurors because they were young,' sick, or students. If the court finds these gender-neiitral justifications to be credible, the conviction shall stand affirmed. If the court determines that the prosecutor’s stated justifications for excusing any of the female potential jurors should not be believed, it should vacate the judgment of conviction and grant Beauvais a new trial.

III. Constitutionality of Stalking Statute

¶ 21 Beauvais next challenges the constitutional validity of section 18-3-602(l)(c). She argues that the subsection is unconstitutional on its face and as applied to the facts of this case.

¶ 22 The parties disagree as to whether this issue was preserved for appellate review. Because the issue is likely to arise on remand, we exercise our discretion to address Beauvais’s facial challenge in the interest of judicial economy, regardless of whether the issue was preserved. See People v. Houser, 2013 COA 11 ¶ 35, 337 P.3d 1238 (“[W]e conclude that this court may, as a matter of discretion, take up an unpreserved'- challenge to the constitutionality of a statute, but only where doing so would clearly further judicial economy.”). We conclude that the statute is constitutionally valid on its face. However, because Beauvais’s as-applied challenge requires a fact-intensive analysis which is more properly the province of the trial court, we decline to address it here,

A, Standard of Review

¶ 23 We review the constitutionality of a statute de novo. Hinojos-Mendoza v. People, 169 P.3d 662, 668 (Colo.2007). Statutes are presumed to be constitutional. People v. Hickman, 988 P.2d 628, 634 (Colo. 1999). The party challenging a statute’s validity “has the burden of proving unconstitutionality beyond a reasonable doubt.” People v. Janousek, 871 P.2d 1189, 1195 (Colo.1994).

B. Analysis

¶ 24 Beauvais argues that section 18 — 3— 602(l)(e), the stalking statute, is, on its face, unconstitutionally vague and overbroad. The Colorado Supreme Court and another division of this court have both concluded that a prior substantially identical version of this statute was neither unconstitutionally vague nor overbroad. See People v. Cross, 127 P.3d 71, 78 (Colo.2006); People v. Richardson, 181 P.3d 340, 343-45 (Colo.App.2007).⁴ We adopt the reasoning of. Cross and Richardson, and therefore reject Beauvais’s facial challenge to section 18-3-602(l)(c),

IV. Conclusion

¶ 25 The ease is remanded for further proceedings consistent with this opinion.

JUDGE ASHBY concurs. JUDGE BERNARD concurs in part, specially concurs in part, and dissents in part.

1 . The prosecutor accepted the panel as constituted aftér exercising the fourth peremptory challenge, and again after the defense's fifth peremptory challenge. When the defense used its sixth and final peremptory challenge to dismiss a male juror, a female juror was called into the jury box to replace the dismissed juror. The prosecutor then used a fifth peremptory challenge to dismiss the replacement juror.

2 . The defense dismissed males L.C., M.K., and J.S. before the prosecutor accepted the panel as constituted. K.N. and J,G„ both males, ultimately served on the jury.-

3 . R.S. said that he had been treated unfairly by a police officer, and confessed that his experience might affect his judgment in deciding the case. Though the court, never expressly stated that it denied the challenge for cause, it did not dismiss the juror from the panel, and the prosecutor never requested an express ruling on the for-cause challenge.

4 . The prior version of the statute, former section 18-9-111 (4)(b)(III), was moved, without substantive alteration, in 2010.- See Ch. 88, sec. 1, § 18-3-602(l)(c), 2010 Colo. Sess, Laws 294.