State of Arizona v. Keyaira Porter

IN THE
SUPREME COURT OF THE STATE OF ARIZONA
STATE OF ARIZONA,
Appellee,
v.
KEYAIRA PORTER,
Appellant,
No. CR-20-0147-PR
Filed July 22, 2021
Appeal from the Superior Court in Maricopa County
The Honorable Monica S. Garfinkel, Judge Pro Tempore
No. CR2017-137407-001
AFFIRMED
Opinion of the Court of Appeals, Division One
248 Ariz. 392 (App. 2020)
VACATED
COUNSEL:
Mark Brnovich, Arizona Attorney General, Brunn (Beau) W. Roysden, III,
Solicitor General, Michael T. O’Toole (argued), Chief Counsel, Criminal
Appeals Section, Linley Wilson, Deputy Solicitor General/Chief of
Criminal Appeals, Phoenix, Attorneys for State of Arizona
James J. Haas, Maricopa County Public Defender; Mikel Steinfeld (argued),
Deputy Public Defender, Phoenix, Attorneys for Keyaira Porter
Jared G. Keenan, Phoenix, Attorney for Amicus Curiae American Civil
Liberties Union Foundation of Arizona and Arizona Attorneys for Criminal
Justice; and Daniel A. Arellano, Ballard Spahr LLP, Phoenix, Attorneys for
Amicus Curiae Los Abogados Hispanic Bar Association Inc.
STATE V. PORTER
Opinion of the Court
JUSTICE LOPEZ authored the opinion of the Court, in which CHIEF
JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER, JUSTICES BOLICK
and BEENE, and JUDGE ECKERSTROM* joined **.
JUSTICE LOPEZ, opinion of the Court:
¶1 We consider whether, when a Batson challenge is raised, a trial
court must make express findings on the credibility of a demeanor-based
justification for a peremptory strike when a non-demeanor-based
justification is also offered and there is no evidence that either justification
is pretextual. We hold that no such express finding requirement exists
under federal or Arizona law.
BACKGROUND
¶2 Keyaira Porter, an African American, was charged with
aggravated assault of a police officer and resisting arrest. During jury
selection, the prosecutor used peremptory strikes to remove the only
African American venire members: Prospective Jurors 2 and 20. Porter
raised a challenge under Batson v. Kentucky, 476 U.S. 79 (1986). The
prosecutor responded that she struck Prospective Juror 2 because (1) the
juror’s brother had been convicted of aggravated assault—similar to the
crime charged in this case—and (2) she “did not seem to be very sure” with
her responses as to whether her brother’s conviction would impact her
ability to be impartial. The prosecutor struck Prospective Juror 20 because
she had been the foreperson in a previous criminal case in which the jury
acquitted the defendant. In response, Porter only addressed the
prosecutor’s explanation as to Prospective Juror 2 and emphasized that,
when answering the voir dire questions, Prospective Juror 2 said her
brother was treated fairly, his experience would not influence her decision-
making as a juror, and she could follow the rules provided by the court.
The trial court considered the arguments and denied the Batson challenge,
*Justice Montgomery is recused from this matter. Pursuant to article 6,
section 3 of the Arizona Constitution, Hon. Peter Eckerstrom, Judge of the
Court of Appeals Division Two, was designated to sit in this matter.
**Although Justice Andrew W. Gould (Ret.) participated in the oral
argument in this case, he retired before issuance of this opinion and did not
take part in its drafting.
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STATE V. PORTER
Opinion of the Court
reasoning that the prosecutor had articulated “reasonable” race-neutral
explanations for its peremptory strikes.
¶3 The jury acquitted Porter of aggravated assault but convicted
her of resisting arrest. Porter appealed, arguing that the prosecutor’s
disparate treatment of jurors and the failure to conduct voir dire on the
topic of prior jury service revealed the prosecutor’s discriminatory intent in
jury selection. In a split opinion, the court of appeals remanded the case
and directed the trial court to either (1) make the necessary findings relative
to Prospective Juror 2, as required by Snyder v. Louisiana, 552 U.S. 472 (2008),
or (2) if it could not reconstruct the record, vacate Porter’s conviction and
retry the case. State v. Porter, 248 Ariz. 392, 394 ¶ 1 (App. 2020). The
majority reasoned that although the trial court concluded that the proffered
justifications were race-neutral, it did not expressly determine whether
those justifications were credible, particularly in light of the pattern of
strikes against minority jurors. Id. The dissent concluded that neither
Snyder nor Arizona law require trial courts to make express findings
concerning demeanor-based explanations. Id. at 403–04 ¶¶ 37–40
(McMurdie, J., dissenting).
¶4 We granted review to determine whether federal or state
Batson jurisprudence requires a trial court to expressly address a demeanor-
based justification when two race-neutral reasons are offered, the non-
demeanor-based one is explicitly deemed credible, and there is no finding
that the remaining demeanor-based justification is pretextual. This is a
recurring issue of statewide importance. We have jurisdiction under article
6, section 5(3) of the Arizona Constitution.
DISCUSSION
¶5 As an initial matter, we note that the court of appeals resolved
this appeal on the basis that the trial court failed to make specific findings
regarding the demeanor-based explanation even though Porter did not
raise this issue in the trial court or on appeal, and even though the parties
did not brief or argue this issue. We remind our appellate court that,
“[a]lthough [they] may choose to address issues the parties fail to address
in the briefs, they should heed the principles underlying the waiver
doctrine intended ‘to prevent the court from deciding cases with no
research assistance or analytical input from the parties.’” State v. Robertson,
249 Ariz. 256, 258–59 ¶ 9 (2020) (internal citation omitted) (quoting Meiners
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STATE V. PORTER
Opinion of the Court
v. Indus. Comm’n, 213 Ariz. 536, 538–39 ¶ 8 n.2 (App. 2006)). “Although we
do not ordinarily consider issues not raised in the trial court or court of
appeals, if good reason exists, this court may and will entertain such
questions as the rule is jurisprudential rather than substantive.” State v.
Hernandez, 244 Ariz. 1, 3–4 ¶ 10 (2018) (quoting Jimenez v. Sears, Roebuck &
Co., 183 Ariz. 399, 406 n.9 (1995)). Here, good reason exists to address the
identified issue in order to clarify whether, when a Batson challenge is
raised, our trial courts are required to make express findings concerning a
demeanor-based justification for a peremptory strike.
¶6 We will not reverse a court’s ruling on a Batson challenge
unless it is clearly erroneous, State v. Escalante-Orozco, 241 Ariz. 254,
271 ¶ 35 (2017), abrogated on other grounds by State v. Escalante, 245 Ariz. 135(2018), and we afford great deference to trial court findings in this context,
see Miller-El v. Cockrell, 537 U.S. 322, 340 (2003); Batson, 476 U.S. at 98 n.21
(“Since the trial judge’s findings in the context under consideration here
largely will turn on evaluation of credibility, a reviewing court ordinarily
should give those findings great deference.”); State v. Smith, 250 Ariz. 69, 86
¶ 62 (2020) (to similar effect).
I.
¶7 We first consider whether federal Batson jurisprudence
requires express findings that the prosecutor’s race-neutral reasons were
credible and non-pretextual.
¶8 The court of appeals here determined that “[t]he trial court
denied the Batson challenge without expressly addressing either the
demeanor-based explanation or the racially disproportionate impact of the
strikes” and held that Snyder required the court “to make explicit findings
on those two points.” Porter, 248 Ariz. at 394 ¶ 1. We disagree with the
court of appeals’ interpretation of Snyder.
¶9 We begin with a brief review of Batson’s analytical
framework. The state may exercise peremptory challenges to “assur[e] the
selection of a qualified and unbiased jury,” Batson, 476 U.S. at 91, subject to
the commands of the Equal Protection Clause, U.S. Const. amend. XIV.
Thus, the state may not consider race in jury selection, and it engages in
unconstitutional discrimination when it denies a citizen participation in
jury service on account of race. Batson, 476 U.S. at 91.
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STATE V. PORTER
Opinion of the Court
¶10 A Batson challenge involves three steps:
[O]nce the opponent of a peremptory challenge has made out
a prima facie case of racial discrimination (step one), the
burden of production shifts to the proponent of the strike to
come forward with a race-neutral explanation (step two). If a
race-neutral explanation is tendered, the trial court must then
decide (step three) whether the opponent of the strike has
proved purposeful racial discrimination.
Purkett v. Elem, 514 U.S. 765, 767 (1995); see also State v. Medina, 232 Ariz. 391,
404 ¶ 44 (2013) (same).
¶11 Step one of the Batson framework—establishing a case of
prima facie racial discrimination—may be satisfied by a pattern of strikes
against minority jurors. Batson, 476 U.S. at 97. Step two—proffering a race-
neutral explanation—may be satisfied by an offer of any facially race-
neutral explanation for the strikes. Purkett, 514 U.S. at 768. At step three,
the trial court must evaluate the credibility of the striking party’s proffered
explanation to determine whether the reasons are pretexts for purposeful
discrimination. See Snyder, 552 U.S. at 484–85; State v. Gay, 214 Ariz. 214,
220 ¶ 17 (App. 2007). To make this determination at step three, the court
may consider the prosecutor’s demeanor, the juror’s demeanor, the
reasonableness or improbability of the explanations, and whether the
proffered rationale has some basis in accepted trial strategy. Gay, 214 Ariz.
at 220–21 ¶¶ 17, 19 (citing Cockrell, 537 U.S. at 339); see also Snyder, 552 U.S.
at 477 (noting that the prosecutor’s demeanor is the best evidence at step
three). “Comparison of stricken and non-stricken jurors’ characteristics, as
well as comparison of how the prosecutor questioned those jurors, may
[also] be relevant.” Porter, 248 Ariz. at 397 ¶ 14 (citing Flowers v. Mississippi,
139 S. Ct. 2228, 2244, 2246–51 (2019)).
¶12 The crux of this case concerns whether Snyder requires trial
courts to make express findings on the credibility of a demeanor-based
justification in response to a Batson challenge. Here, the court of appeals
interpreted Snyder to hold that when a trial court is presented with two
explanations for a strike, and one is based on a prospective juror’s
demeanor, an appellate court may not presume that the trial court credited
the demeanor-based explanation simply because it denied the Batson
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STATE V. PORTER
Opinion of the Court
challenge. Consequently, it reasoned that a trial court must always make
explicit findings on demeanor-based justifications, and a “conclusory
statement that there was no purposeful discrimination [is] not sufficient.”
Id. at 399 ¶ 21. We disagree. The court of appeals extended Snyder beyond
its jurisprudential reach.
¶13 At Batson’s third step, as discussed, the trial court must
determine whether the prosecutor’s proffered reasons were a pretext for
purposeful discrimination. Supra ¶ 11. If the peremptory strike is based on
a juror’s demeanor, the trial court must evaluate whether the juror’s
demeanor can credibly serve as the basis for the strike. Snyder, 552 U.S.
at 477. However, Snyder does not require a trial court to make specific,
explicit findings concerning demeanor-based justifications when it credits
another race-neutral reason. In Snyder, the prosecutor offered two
explanations for a peremptory strike: work hardship (non-demeanor-
based) and nervousness (demeanor-based). Id. at 478. The Supreme Court
concluded that the non-demeanor-based justification was clearly
pretextual, given the stricken juror’s lack of an actual work conflict and the
significant number of other jurors who were retained despite their concerns
that jury service would interfere with their work obligations. Id. at 479–83.
The Court, however, could not determine whether the trial court
considered or accepted the second, demeanor-based reason because it
simply allowed the peremptory challenge without explanation. Id. The
uncertainty attendant this unique circumstance led the Court to conclude
that, because the passage of years did not allow the trial court to make an
express finding on the demeanor-based justification on remand, the trial
court committed clear error in rejecting the Batson challenge. Id. at 486.
¶14 The rule we elicit from Snyder is that appellate courts may not
uphold a Batson ruling based on a demeanor-based justification when a
non-demeanor-based justification is clearly pretextual and the trial court
did not clarify which explanation it found credible in denying a Batson
challenge. In other words, the lack of an express finding regarding the
prosecutor’s demeanor-based explanation is consequential only if the
record clearly indicates that the other proffered reason was pretextual.
Accordingly, we join the Supreme Court, the majority of federal courts, and
the court of appeals’ dissent in concluding that Snyder’s express-finding
requirement is inapplicable in cases where a demeanor-based and a non-
demeanor-based justification are offered and neither is clearly pretextual.
See, e.g., Davis v. Ayala, 576 U.S. 257, 274–75 (2015) (reasoning that if the non-
6
STATE V. PORTER
Opinion of the Court
demeanor-based reason for a strike is sufficient, an appellate court need not
consider an additional demeanor-based reason for a strike); Thaler v.
Haynes, 559 U.S. 43, 47–49 (2010) (reasoning that none of the Court’s clearly
established precedent created an obligation on a trial court to make express
findings of a juror’s demeanor); United States v. Thompson, 735 F.3d 291, 299
(5th Cir. 2013) (considering a similar argument, emphasizing that Snyder’s
holding “depended on its conclusion that the prosecution’s second reason
for the strike was ‘suspicious,’ ‘implausib[le],’ and ‘pretextual,’” and
agreeing with other circuits that Snyder does not require a trial court to
make such record findings); Porter, 248 Ariz. at 403–04 ¶¶ 37–39
(McMurdie, J., dissenting).
II.
¶15 We next consider whether Arizona’s Batson jurisprudence
requires express findings that the prosecutor’s race-neutral reasons were
credible and non-pretextual.
¶16 First, we reject the court of appeals’ reasoning that Arizona
law requires express findings of all proffered peremptory strike
justifications in light of the holding in State v. Lucas that an impermissible,
non-race-neutral justification taints a race-neutral reason for the strike. 199
Ariz. 366, 369 ¶¶ 11–13 (App. 2001). In Lucas, the prosecutor offered two
grounds to strike the only African American panel member: (1) the
prospective juror was an attorney, and (2) southern men have a negative
view of pregnant women who work. Id. at 368 ¶¶ 9–10. The first
justification was a permissible race- and gender-neutral reason, whereas the
second was a prohibited anecdotal generalization about men. Id. Lucas held
that “‘[o]nce a discriminatory reason has been uncovered—either inherent
or pretextual—this reason taints’ any other neutral reason for the strike,”
requiring reversal. Id. at 369 ¶ 11 (quoting Payton v. Kearse, 495 S.E.2d 205,
210 (S.C. 1998)). We need not address Lucas’ fundamental premise that a
race-neutral justification for a strike does not remedy a discriminatory
reason, as Lucas is inapplicable here because the trial court did not find a
proscribed discriminatory reason for a peremptory strike. See, e.g., State v.
Butler, 230 Ariz. 465, 475–76 ¶ 43 (App. 2012) (similarly distinguishing Lucas
where the only justifications for the peremptory strikes were race-neutral).
¶17 Second, we decline Porter’s request, based on Williams v. State,
to implement a rule in which trial courts must make explicit determinations
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STATE V. PORTER
Opinion of the Court
at each step of Batson. See 429 P.3d 301, 308–09 (Nev. 2018). Although
Williams implored trial courts to “spell out their reasoning and
determinations” at each Batson step, it implicitly recognized that explicit
findings may not, in fact, be required in every instance when it stated that
the outcome of the case would have been different if demeanor had been
the only explanation offered. See id. at 306, 309. And, as in Snyder, it
emphasized that a trial court must make an explicit credibility
determination on a demeanor-based strike when the other proffered
explanation appears implausible. Id. at 309. To the extent that Williams
suggests that trial courts are always required to make explicit findings at
Batson’s third step, we reject it as inconsistent with Arizona law.
¶18 Indeed, “[Arizona] precedent allows [appellate courts] to
defer to an implicit finding that a reason was non-discriminatory even
when the trial court did not expressly rule on the third Batson factor,” Smith,
250 Ariz. at 88 ¶ 73 (cleaned up) (quoting State v. Prasertphong, 206 Ariz. 70,
87 ¶¶ 63–64 (2003)); see also State v. Canez, 202 Ariz. 133, 147 ¶ 28 (2002)
(affirming the court’s implicit finding under step three in denying the
Batson challenge); State v. Lynch, 238 Ariz. 84, 104 ¶ 70 (2015) (same), which
the court of appeals in Porter acknowledged, see 248 Ariz. at 397 ¶ 16 (“[T]he
trial court need not make detailed findings addressing all the evidence
before it, and, in Arizona, may even conduct the entire step-three analysis
implicitly in some cases.” (internal citation omitted) (internal quotation
marks omitted)); see also Medina, 232 Ariz. at 404 ¶ 45 (reasoning that the
trial court, by requesting explanations for the prosecution’s peremptory
strikes, implicitly found at Batson’s first step that a prima facie showing of
racial discrimination had been made). In other words, the court may satisfy
the requirement—to evaluate whether the juror’s demeanor can credibly be
said to have exhibited the basis for the strike—by denying a Batson
challenge and thereby implicitly finding that the proffered justifications are
genuine and non-pretextual. See Smith, 250 Ariz. at 87 ¶ 67, 88 ¶¶ 72–73.
¶19 Accordingly, as with federal law, Arizona’s Batson
jurisprudence does not require trial courts to make explicit findings on
demeanor-based justifications when a non-demeanor-based justification is
offered and there is no evidence that either justification is pretextual.
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STATE V. PORTER
Opinion of the Court
III.
¶20 Porter also argues that the trial court erred when it
purportedly failed to conduct a comparative analysis of Prospective Jurors
2 and 20 and other non-minority jurors. The trial court did, however, note
that the prosecutor struck not only Prospective Juror 20, but also two non-
minority jurors, for reasons related to prior jury service. Moreover, Porter
did not object in the trial court to its purported failure to conduct a
comparative juror analysis.
¶21 “Comparing prospective jurors who were struck and not
struck can be an important step in determining whether a Batson violation
occurred.” Flowers, 139 S. Ct. at 2248; see also Miller-El v. Dretke, 545 U.S.
231, 241 (2005). However, courts are not required to employ a comparative
analysis when reviewing Batson claims, see Medina, 232 Ariz. at 404–
05 ¶¶ 48–49 (rejecting the argument that a comparative juror analysis is a
constitutionally required aspect of Batson review), and this Court
“decline[s] to do so when the similarities between peremptorily stricken
jurors and those remaining on the panel were not raised at trial,” id. at
405 ¶ 48. Indeed, we have ruled that the failure to properly object to a
Batson issue cannot be cured, even under fundamental error review:
We have previously held that Batson challenges must be made
before the end of the jury selection process or they will not be
considered on appeal. State v. Harris, 157 Ariz. 35 (1988). We
believe that this rule should also be applied to the untimely
presentation of evidence to support Batson arguments
otherwise properly raised. This limitation on Batson rights
passes constitutional muster, see Allen v. Hardy, 478 U.S. 255,
259 (1986) (new rule doesn’t have fundamental impact
warranting retroactive application); Virgin Islands v. Forte, 806
F.2d 73, 76–77 (3d Cir. 1986) (not fundamental error; waived
if not timely raised), and we adhere to it.
State v. Cruz, 175 Ariz. 395, 398 (1993). Notably, the Supreme Court has
warned that “a retrospective comparison of jurors based on a cold appellate
record may be very misleading when alleged similarities were not raised at
trial.” Snyder, 552 U.S. at 483.
9
STATE V. PORTER
Opinion of the Court
¶22 Porter’s failure to raise this issue in the trial court deprived
the prosecutor of the opportunity to distinguish allegedly similarly situated
jurors and divested the trial court of the occasion to conduct an in-depth
comparison of the jurors. Consequently, Porter waived this issue. See, e.g.,
Smith, 250 Ariz. at 88 ¶ 71 (finding waiver of comparative analysis claim in
similar circumstances); Escalante-Orozco, 241 Ariz. at 272 ¶ 37 (same); State
v. Garza, 216 Ariz. 56, 65 ¶ 31 (2007) (defendant waives Batson challenges by
failing to object at trial); Medina, 232 Ariz. at 405 ¶ 49 (same).
IV.
¶23 We now apply our Batson analysis to this case. We find that
the trial court did not clearly err in denying Porter’s Batson challenge.
¶24 Here, after the parties completed their peremptory strikes,
Porter raised a Batson challenge, requesting that the prosecutor provide
reasonable and legitimate reasons for striking the only two African
American prospective jurors. At Batson’s second step, the trial court heard
the prosecutor’s explanations. The prosecutor’s reasons for striking
Prospective Juror 2—because her brother had been convicted of aggravated
assault and she was uncertain whether it would affect her impartiality—
and Prospective Juror 20—because she had been the foreperson in a
previous criminal case in which the jury acquitted the defendant—were
objectively race-neutral and recognized as legitimate bases for peremptory
strikes. See, e.g., State v. Reyes, 163 Ariz. 488, 491–92 (App. 1989) (upholding
peremptory strike of juror whose sister was in prison for assault—one of
the charges against the defendant in the case—as race-neutral and non-
pretextual); State v. Trostle, 191 Ariz. 4, 12 (1997) (finding the prosecutor’s
explanation—that the juror was struck because he had previously served
on a criminal jury that returned not guilty verdicts—to be “a facially
objective basis for a peremptory challenge, unrelated to race or gender”).
¶25 At step three, the trial court considered the prosecutor’s
explanations, the parties’ other strikes, and the court’s notes, and found that
the prosecutor’s justifications for striking both Prospective Jurors 2 and 20
were “reasonable” and not made with purposeful discriminatory intent. In
fact, the trial court stated that it was reasonable for the prosecutor to want
to eliminate one juror whose close family member was convicted of an
offense similar to the charge in this case, and another who may have a
stronger personality or be more willing to acquit a defendant. In light of
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STATE V. PORTER
Opinion of the Court
these express credibility findings, we must assume that the trial court
implicitly determined that the demeanor-based justification concerning
Prospective Juror 2’s impartiality was likewise not pretextual. See Stevenson
v. Stevenson, 132 Ariz. 44, 46 (1982) (“[O]n appeal the court must assume
that the trial court found every fact necessary to support its judgment and
must affirm if any reasonable construction of the evidence justifies the
decision.”).
¶26 Neither the Supreme Court nor this Court requires explicit
findings at Batson’s third step when two justifications—one demeanor-
based and one not—are given, neither are clearly pretextual, and the non-
demeanor-based reason is expressly deemed credible by the trial court.
Thus, the trial court here satisfied its obligations under federal and Arizona
Batson jurisprudence.
¶27 We emphasize the importance of context in evaluating a
Batson challenge. Key factors to consider include a pattern of striking all
minority prospective jurors, the prosecutor’s disparate questioning of
jurors, side-by-side comparisons of struck and non-struck jurors, the
prosecutor’s misrepresentations of the record, and the relevant history of
the prosecutor’s peremptory strikes in past cases. See Flowers, 139 S. Ct. at
2243. We also express our confidence that trial judges—who are in a better
position to discern the intent and demeanor of prosecutors and jurors—are
uniquely situated to determine whether peremptory challenges are being
used to discriminate against minority jurors. See, e.g., Batson, 476 U.S. at 97;
Snyder, 552 U.S. at 477; Hernandez v. New York, 500 U.S. 352, 365 (1991).
Although express findings are not required, we encourage trial courts to
make them as they will bolster their rulings and facilitate review on appeal.
Taken together, on this record, we find that the trial court did not clearly
err.
CONCLUSION
¶28 For the reasons set forth above, we vacate the court of appeals’
opinion and affirm the trial court’s denial of Porter’s Batson challenge.
11