State v. Aziakanou

2021 UT 57IN THE
SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH,
Appellee,
v.
AYAYAI AZIAKANOU,
Appellant.
No. 20180284
Heard October 9, 2020
Filed September 30, 2021
On Direct Appeal
Third District, Salt Lake
The Honorable Paul B. Parker
No. 171911262
Attorneys:
Sean D. Reyes, Att’y Gen., Jeffrey S. Gray, Asst. Solic. Gen., Paul S.
Fuller, Salt Lake City, for appellee
Debra M. Nelson, McCaye Christenson, David P.S. Mack,
Salt Lake City, for appellant
JUSTICE PETERSEN authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE, JUSTICE
HIMONAS, and JUSTICE PEARCE joined.
ASSOCIATE CHIEF JUSTICE LEE authored a concurring opinion.
JUSTICE HIMONAS authored a concurring opinion, in which
CHIEF JUSTICE DURRANT, JUSTICE PEARCE, and JUSTICE PETERSEN
joined.
JUSTICE PETERSEN, opinion of the Court:
INTRODUCTION
¶1 A jury convicted Ayayai Aziakanou of distribution of or
arranging to distribute a controlled substance. Aziakanou, who is
African American, alleges that the State violated his right to equal
STATE V. AZIAKANOU
Opinion of the Court
protection under the law during jury selection when it used a
peremptory strike to remove the only person of color from the
jury pool. Aziakanou challenged the strike under Batson v.
Kentucky, 476 U.S. 79 (1986), which prohibits purposeful
discrimination during jury selection. But his challenge was denied
by the trial court. He now appeals, reiterating his Batson challenge
and arguing that the evidence supporting his conviction was
insufficient. We affirm.
BACKGROUND1
¶2 Two law enforcement officers set up surveillance near
Pioneer Park in Salt Lake City. The officers observed “a group of
individuals in the park . . . smoking spice.”2 Aziakanou and
another man left the group and set up a lawn chair in the park.
¶3 The officers watched as Aziakanou approached a person
on the sidewalk and, after a brief discussion, led the person over
to his companion on the lawn chair. The person gave the
companion money in exchange for a “clear canister[] filled with a
green, leafy substance.” After the exchange, the person left. The
officers did not stop the person who purchased the canister.
¶4 The officers continued to observe Aziakanou and his
companion for thirty to forty-five minutes. During that time, the
officers observed two more transactions. After the third
transaction, “it looked like [the companion] and Aziakanou were
gathering their things, as if they were leaving the area.” The
officers stopped the third buyer and retrieved two canisters, an
empty one and the one purchased from Aziakanou’s companion
containing the leafy green substance.
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1 “On appeal from a jury verdict, we view the evidence and all
reasonable inferences in the light most favorable to that verdict
and recite the facts accordingly. We present conflicting evidence
when necessary to provide a full and fair understanding of the
issues on appeal.” State v. Scott, 2020 UT 13, ¶ 5 n.3, 462 P.3d 350(citation omitted).
2 Spice is a synthetic cannabinoid. See Carter v. Lehi City, 2012
UT 2, ¶ 45 n.33, 269 P.3d 141 (explaining that it is illegal to
possess, manufacture, and deal synthetic cannabinoids such as
spice in Utah).
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¶5 The officers returned to the park and arrested Aziakanou
and his companion. They retrieved another empty canister at the
park. Both canisters were sent for forensic analysis, which
confirmed the leafy substance was spice. The State charged
Aziakanou with distribution of or arranging to distribute a
controlled substance, a third-degree felony.
¶6 The case was set for a one-day jury trial. During jury
selection, the court asked the jury pool if any of them had been
“victims of drug cases.” Juror 13 raised his hand and said, “Yeah.
I’m not sure what you mean by a victim of a drug case. . . . I
haven’t been—I have been stopped illegally on occasion. . . . For
suspicion with the profiling, but other than that . . . no.”
¶7 Another question posed by the court during voir dire3 was
whether any of the potential jurors would “give a witness who is
a law enforcement officer more or less credibility just because they
are a police officer.” No one indicated that would be a problem.
The court then asked whether anyone had “any feelings about
your interaction with law enforcement officers that would impact
your ability to sit in this case where law officers are witnesses.”
No one indicated it would affect their ability to serve.
¶8 After the initial questions, only one juror, Juror 23, was
struck for cause because he expressed “hate for substance.” The
court, addressing counsel, inquired about Juror 13, because he
“had an addiction, he talked about being profiled.”4 The
prosecutor answered, “I thought he’d be one to talk to.” Defense
counsel agreed, “That’s what I was thinking, too. We may want to
follow up.”
¶9 The court called up Juror 13 for an individual voir dire. It
first asked Juror 13 to explain his prior reference to “experiences
that you’ve had, and that you felt like you were being profiled.”
__________________________________________________________
3 Voir dire is the “preliminary examination of a prospective
juror by a judge or lawyer to decide whether the prospect is
qualified and suitable to serve on a jury.” Voir dire, BLACK’S LAW
DICTIONARY (11th ed. 2019).
4 Juror 13 did not say he had an addiction. Rather, during voir
dire, he said he had people in his life, “an uncle, a cousin, a friend,
[who] struggled with addiction, but . . . [it] doesn’t affect [him]
personally.”
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STATE V. AZIAKANOU
Opinion of the Court
Juror 13 said, “I would say it’s—it’s happened more than once. I
would have to say at least five times in my lifetime, just being
pulled over for—for no reason.” When asked where these events
occurred, he answered, “It happened a few times here. . . . And
then elsewhere, too.” The court asked, “[W]hen you say no
reason. . .—did they tell you a reason, or did you feel like there
was no reason?” Juror 13 responded, “I felt like it was no—there
was no reason.” He further explained:
I could tell you one specific time when I was a
minor. . . . I was—me and my friends, we were at a
party, many of us were at a party at a park, and all
of our cars were lined up in the parking lot. As we
were leaving the party, everyone got in their cars to
leave, as did I, except I was the only person . . .
[w]ho got boxed in by the patrol car, so I got chosen,
the only Brown person out of everyone else to be
singled out . . . and blocked and Breathalyzed for
drinking, but I—I mean, I wasn’t drinking or doing
anything.
Juror 13 then said that was “one experience, and then there’s been
others, too.” In response, the court asked:
In this case where police are going to testify, where
it concerns drug behavior, and undoubtedly at least
some kind of interaction between police and a
person, and it’s obvious that the defendant here is
not Caucasian, would that—your experiences
impact your ability to sit in this case as a fair and
impartial judge?
And Juror 13 responded:
I don’t think so. I think that . . . the presentation
from the lawyers would give us the facts, and if the
person is guilty, then we will see that they’re guilty.
If they’re innocent, we’ll be—we’ll see that they’re
innocent. So I would wait to see what presentation I
see before making any decision.
¶10 After concluding the individual voir dire, neither party
moved the court to remove Juror 13 for cause. Once the jury pool
was recongregated in the courtroom, the court inquired, “If you
were a party, either as the plaintiff, the prosecutor, or as the
defendant, would you be fully satisfied to have your case tried by
a person of your present attitude and frame of mind toward this
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case?” No one raised their hand. The court followed up by asking
whether anyone had “any personal considerations or concerns
that may interfere with your ability to objectively sit and hear the
evidence to be presented, or to fairly and impartially consider the
evidence, deliberate, and render a verdict in this case.” Again, no
one in the pool raised their hand.
¶11 The court then gave the parties the opportunity to use
their peremptory challenges and, during a sidebar, the State
struck Juror 13. The court then excused the jury pool briefly and
defense counsel raised a challenge under Batson v. Kentucky, 476
U.S. 79 (1986), arguing the State’s strike of Juror 13 was motivated
by discriminatory intent. Defense counsel argued that Juror 13
explained himself well that there—that, despite
those experiences, that he would be able to let the
facts stand or fall as they may, and that he would
judge what happened or didn’t happen based on
what he hears in this court. But I think the effect of
his removal, and he’s, I would note, the only person
of color even—well, on the entire panel, but of—that
even had a chance of sitting on this jury. I think it’s a
common experience for people of color to have had
such experiences where they feel like they have been
singled out without justification, and I think the
effect of his removal means that, at least in this case,
people of color aren’t allowed to sit.
But there may be some other explanation for the
state’s decision on that, but it seems that, based on
his answers, all of his answers in voir dire, that he
indicated a willingness to be fair, to listen fairly and
impartially, and there were no other responses, I
don’t think, to any of the questions the Court put to
him that would’ve seemed to have impacted his
ability to sit as a juror in this case.
¶12 The court asked defense counsel to elaborate on his
argument “as far as the initial showing of some kind of an intent
to exclude a particular class of folks.” Defense counsel asserted
that “our client obviously is . . . African American. He’s a person
of color. . . . [And] the only person of color potentially to be seated
on this jury was excused.” Defense counsel noted that while he
did not know the reason Juror 13 was excused, he did not “have
to supply that reason” to the court. But then defense counsel
observed that it seemed as though Juror 13 “was removed because
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STATE V. AZIAKANOU
Opinion of the Court
. . . he had encounters with the police that . . . he considered to be
profiling, and he was a person of color.”
¶13 The court concluded that defense counsel made “an
insufficient showing that is required for the answer.” Then the
court stated:
I show that [Juror 13]—and I—no one asked about
his nationality, and I can’t even tell it from the name,
whether he is Hispanic or Middle Eastern. I don’t
know. But he is darker complected, and clearly of
another—not just a Caucasian race. He is the only
person, as far as I could tell on the panel, that really
seems to be of any other nationality other than
Caucasian.
¶14 Although it had determined defense counsel made an
insufficient showing to continue the Batson inquiry, the court
nevertheless asked the State to explain why it struck Juror 13. The
prosecutor responded:
When questioned, I felt like he answered those
correctly, so I agree with defense counsel, that’s why
after initially considering to move for cause, his
answers I didn’t think—I didn’t think had enough to
move for cause. But . . . I didn’t feel he could be
impartial based on some of these things. He stood
for when he thought he’d been victimized, he
wanted more clarification. He also did refer to
profiling. There were some issues where I doubted
his ability to try the case and be fair and impartial
during the process. He answered the questions
correctly. I didn’t strike him for cause because I
didn’t think so. But I can make, based on my
observations of him, the way he’s interacting, the
way he’s shaking his head, or nodding, making faces
during some of the questions, I didn’t—I didn’t feel
comfortable with him as being a juror.
Defense counsel responded:
I watched him, too . . . . [I]f there’s something
specific about his gestures or his face making, or
something like that, I didn’t notice that . . . . But I
think that it’s—I don’t know that it’s a race neutral
reason to strike someone who says they think
they’ve been the victim of racial profiling when
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they’re . . . as he indicated, the only Brown person
stopped during that incident he described in the
park with his friends as a juvenile, and other times
that he’s been stopped. . . . I think that’s the problem
that Batson tries to address.
If there’s more than that, if he was, like, making
sounds, or acting like he generally disagreed, or
something like that, . . . I didn’t see any of that. I
didn’t get that at all. But those would’ve been
reasons for cause, I think, if that was the case, but I
don’t think there’s anything demonstrable that he
did other than indicate . . . his ability to be fair in this
case, and set those things aside, and judge it based
on the evidence that’s presented.
¶15 The court observed that “the issue rises or falls on this
idea of him saying that he felt like he had been stopped in some
kind of profiling, and whether or not that amounts to a race
neutral explanation.” Defense counsel concurred with that
statement. The court then asked the prosecutor, “[I]sn’t the real
thing . . . the statement that [Juror 13] made that he felt like he had
been . . . stopped repeatedly, I believe he said about five times for
profiling . . . . Was that part of the reasons . . . . [f]or your striking
him?”
¶16 The prosecutor answered,
[A]ll my witnesses are law enforcement witnesses.
And reading between the lines . . . . I think he has an
issue with law enforcement. It’s not Batson. . . . This
is not about his race. This is about his—me believing
that he’s not going to give law enforcement
testimony the same credibility as if Mr. Aziakanou
testifies. It’s the same thing we do with all jurors,
figuring out, you know, we read between the lines.
¶17 Defense counsel countered that it appeared “that the
reason being given is the reason that is common to many people
of color” and that Juror 13’s answers “indicated that he would not
hold that against anyone.”
¶18 The court then decided:
I am going to overrule the Batson challenge, not only
because I don’t show any evidence of any systemic
efforts to exclude any particular set of persons from
the panel, but also the explanation I think is race
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STATE V. AZIAKANOU
Opinion of the Court
neutral. Not including what his nationality is or not,
the idea that his explanation that he has been
repeatedly stopped by the police, and that he feels
that that is profiling, I think is sufficient for the state
to have been concerned in a case that we have where
the police are again going to be . . . an issue.
¶19 Juror 13 was dismissed and the jury was seated. At trial,
the State presented as witnesses the two officers involved in the
surveillance and arrest of Aziakanou. The officers described the
events they observed, including Aziakanou approaching three
individuals and leading them to his companion, from whom they
purchased spice.
¶20 After the State rested its case, Aziakanou moved for a
directed verdict, arguing the State presented insufficient evidence
that he intended a drug transaction to occur. The trial court
denied the motion, concluding there was enough evidence
presented to sustain a conviction. The court explained that “it
really is a question of whether or not the jury and reasonable
minds could find the defendant guilty of the crime” and that the
State presented “specific enough evidence that there was a pattern
where the defendant would go out and approach people on the
sidewalk, bring them over, they would at least walk together over,
and then a drug transaction occurred.” The court also noted the
“spice found on at least one of the people that were stopped, and
some spice containers found in the area where the defendant and
his companion were located,” supported its denial of the motion.
Aziakanou rested without presenting a defense and the jury
found him guilty.
¶21 Aziakanou appealed, arguing the trial court erred in
denying his Batson challenge and his motion for a directed verdict,
and the case was poured over to the court of appeals. After
briefing and oral argument before the court of appeals, the court
certified the case to us.
¶22 We exercise jurisdiction under Utah Code section
78A-3-102(3)(b).
STANDARDS OF REVIEW
¶23 On appeal, Aziakanou argues the trial court erroneously
overruled his Batson challenge. A Batson challenge involves a
three-step inquiry, each with a different standard of review.
Batson v. Kentucky, 476 U.S. 79, 96–98 (1986) (articulating the three-
step inquiry). First, the defendant must “make out a prima facie
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case of purposeful discrimination by showing that the totality of
the relevant facts gives rise to an inference of discriminatory
purpose.” Id. at 93–94. A trial court’s determination on this point
is reviewed under an abuse of discretion standard. State v. Alvarez,
872 P.2d 450, 456 (Utah 1994).
¶24 At the second step of a Batson challenge, “the burden
shifts to the State to come forward with a neutral explanation for
challenging [the] jurors.” Batson, 476 U.S. at 97. This step is
reviewed for correctness. See Hernandez v. New York, 500 U.S. 352,
359 (1991) (plurality opinion) (explaining that this determination
is “a matter of law”).
¶25 Finally, the trial court must “determine if the defendant
has established purposeful discrimination.” Batson, 476 U.S. at 98.
“[T]he trial court’s decision on the ultimate question of
discriminatory intent represents a finding of fact of the sort
accorded great deference on appeal” because this “finding ‘largely
will turn on [an] evaluation of credibility.’” Hernandez, 500 U.S. at364–65 (citation omitted). Thus, we will not reverse the “trial
court’s finding on the issue of discriminatory intent unless [we
are] convinced that its determination was clearly erroneous.” Id. at
369.
¶26 Aziakanou also alleges the trial court erred in denying his
motion for a directed verdict based on insufficient evidence. “We
review a trial court’s ruling on a motion for directed verdict for
correctness.” State v. Gonzalez, 2015 UT 10, ¶ 21, 345 P.3d 1168.
ANALYSIS
I. BATSON CHALLENGE
¶27 We first address Aziakanou’s contention that the trial
court erred when it denied his Batson challenge. To put
Aziakanou’s Batson argument in context, we draw upon a helpful
description of the jury selection process from the United States
Supreme Court.
First, a group of citizens in the community is
randomly summoned to the courthouse on a
particular day for potential jury service. Second, a
subgroup of those prospective jurors is called into a
particular courtroom for a specific case. The
prospective jurors are often questioned by the judge,
as well as by the prosecutor and defense attorney.
During that second phase, the judge may excuse
certain prospective jurors based on their answers.
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Opinion of the Court
Third, the prosecutor and defense attorney may
challenge certain prospective jurors. The attorneys
may challenge prospective jurors for cause, which
usually stems from a potential juror’s conflicts of
interest or inability to be impartial. In addition to
challenges for cause, each side is typically afforded a
set number of peremptory challenges or strikes.
Flowers v. Mississippi, 139 S. Ct. 2228, 2238 (2019).
¶28 Peremptory strikes “traditionally may be used to remove
any potential juror for any reason—no questions asked.” Id. They
have long been used in the United States and date back to the
common law. Id. But for much of our country’s history, “the
freedom to exercise peremptory strikes for any reason meant that
‘the problem of racial exclusion from jury service’ remained
‘widespread’ and ‘deeply entrenched.’” Id. at 2239 (citation
omitted).
¶29 So in Batson v. Kentucky, 476 U.S. 79 (1986), the Supreme
Court made clear that the use of a peremptory strike based on the
race of the potential juror is a violation of the Equal Protection
Clause of the Fourteenth Amendment to the U.S. Constitution.
The Court established a three-part inquiry to determine whether a
peremptory strike was used in a discriminatory manner.5 Id. at
96–98. First, the person challenging the peremptory strike must
establish a prima facie case of discrimination. Id. at 96. If the
challenger meets the prima facie threshold, the burden shifts to
the proponent of the strike to provide a facially race-neutral
reason for removing the juror. Id. at 97. The trial court then must
determine whether the challenger of the strike established that it
was exercised with a discriminatory purpose. Id. at 98. “[T]he
burden is, of course, on the defendant who alleges discriminatory
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5 Batson has since been extended to apply to “defendant[s] of
any race,” regardless of whether “the defendant and the excluded
juror are of different races, . . .to gender discrimination, to a
criminal defendant’s peremptory strikes, and to civil cases.”
Flowers v. Mississippi, 139 S. Ct. 2228, 2243 (2019) (citations
omitted).
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selection of the venire[6] to prove the existence of purposeful
discrimination” Id. at 92. (citation omitted) (internal quotation
marks omitted); see also State v. Valdez, 2006 UT 39, ¶ 15 n.10, 140
P.3d 1219 (“[T]he ultimate burden of persuasion in a Batson
challenge rests with the opponent of the peremptory
challenges.”).
¶30 Aziakanou’s argument focuses almost entirely on step
two of the analysis: the requirement that the prosecutor provide a
facially race-neutral explanation for the challenged peremptory
strike. He asserts that the prosecutor struck Juror 13 because Juror
13 had been racially profiled. And Aziakanou argues that as a
matter of law, a potential juror’s experience with racial profiling
does not qualify as a race-neutral reason for a peremptory strike.
He argues that the State therefore violated his right to equal
protection under the Fourteenth Amendment. Although
Aziakanou focuses on step two, we must address each step of the
Batson analysis.
A. Step One
¶31 A defendant seeking to challenge a peremptory strike
based on alleged discrimination must first make a prima facie
showing of “purposeful discrimination in selection of the petit
jury.” Batson, 476 U.S. at 96. “The mere fact that the subject of the
peremptory strike is a minority member does not establish a
prima facie case.” State v. Colwell, 2000 UT 8, ¶ 18, 994 P.2d 177.
But the opponent of a peremptory strike need not prove
purposeful discrimination at this point. This initial burden is
satisfied by producing “evidence sufficient to permit the trial
judge to draw an inference that discrimination has occurred.”
Johnson v. California, 545 U.S. 162, 170 (2005).
¶32 After the State used a peremptory strike to remove Juror
13, Aziakanou raised a Batson challenge. To make a prima facie
showing of discrimination, defense counsel asserted that, “[I]t
seem[ed] . . . [Juror 13] was removed because—because he had
encounters with the police that maybe were—that he considered
to be profiling, and he was a person of color.” Counsel
emphasized that Juror 13’s responses in voir dire demonstrated,
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6A venire is a “panel of persons selected for jury duty and
from among whom the jurors are to be chosen.” Venire, BLACK’S
LAW DICTIONARY (11th ed. 2019).
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Opinion of the Court
“despite those experiences [with racial profiling], that he would
be able to let the facts stand or fall as they may, and that he would
judge what happened or didn’t happen based on what he hears in
this court.” He elaborated that “our client obviously is . . . a
person of color” and “the only person of color potentially to be
seated on this jury was excused.”
¶33 The trial court acknowledged that Juror 13 appeared to be
the only person of color among the jury pool but determined
defense counsel made “an insufficient showing that is required for
the answer.” Nevertheless, the court then asked the prosecutor for
“an explanation.”
¶34 Both parties agree that, although the trial court said
Aziakanou failed to satisfy step one of Batson, the court’s step-one
determination is rendered moot because the court proceeded to
the second step of the inquiry and asked the prosecutor to provide
a race-neutral explanation for the strike. Hernandez v. New York,
500 U.S. 352, 359 (1991) (plurality opinion) (“Once a prosecutor
has offered a race-neutral explanation for the peremptory
challenges and the trial court has ruled on the ultimate question of
intentional discrimination, the preliminary issue of whether the
defendant had made a prima facie showing becomes moot.”).
¶35 Accordingly, we do not assess whether the court abused
its discretion in determining that Aziakanou failed to make a
prima facie showing of discrimination sufficient to satisfy step
one. However, we emphasize that a defendant need not prove
purposeful discrimination at this stage of a Batson challenge. It is
sufficient to show that the “totality of the relevant facts gives rise
to an inference of discriminatory purpose.” Batson, 476 U.S. at 94.
B. Step Two
¶36 The core of Aziakanou’s argument on appeal is that the
trial court erred at step two of the Batson analysis because a
potential juror’s experience with racial profiling is, as a matter of
law, not a race-neutral explanation for a peremptory strike.7
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7 The State argues that the issue Aziakanou raises has already
been decided by the United States Supreme Court in Felkner v.
Jackson, asserting that the Court held that striking a venireperson
who may “still harbor[] . . . animosity” toward law enforcement
based on experiences of racial profiling was race-neutral. 562 U.S.
594, 595 (2011) (per curiam). We disagree that Felkner resolves this
(continued . . .)
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However, we disagree with Aziakanou’s characterization of the
prosecutor’s explanation of his peremptory strike. And we agree
with the trial court that the prosecutor’s proffered reasons were
facially race neutral.
¶37 Once the party challenging a peremptory strike makes a
prima facie case of discrimination, the proponent of the strike
must provide a facially race-neutral reason for the strike.
Hernandez, 500 U.S. at 358–59. This is “an explanation based on
something other than the race of the juror. At this step of the
inquiry, the issue is the facial validity of the prosecutor’s
explanation. Unless a discriminatory intent is inherent in the
prosecutor’s explanation, the reason offered will be deemed race
neutral.” Id. at 360.
¶38 Step two “does not demand an explanation that is
persuasive, or even plausible.” Purkett v. Elem, 514 U.S. 765, 768
(1995) (per curiam) (explaining that the proponent’s reason may
be even “silly or superstitious” at step two, but if it is facially
race-neutral, the step-two requirement has been met). And “[t]he
explanation given ‘need not rise to the level justifying exercise of a
challenge for cause.’” Colwell, 2000 UT 8, ¶ 22 (quoting Batson, 476
U.S. at 97). But it is insufficient for the proponent to “merely
case for two reasons. First, as we will explain, we disagree with
Aziakanou’s assertion that the prosecutor here struck Juror 13
because he had been racially profiled. So we do not decide the case
on that basis. And second, it is not clear that Felkner directly
addressed this question. In Felkner, defense counsel raised a Batson
challenge after the prosecutor struck two Black potential jurors. Id.One person was struck because the prosecutor thought the
potential juror may “still harbor[] . . . animosity” toward law
enforcement because between “the ages of 16 to 30 years old, he
was frequently stopped by California police officers because—in
his view—of his race and age.” Id. In its recitation of the facts, the
Court characterized this as “a race-neutral explanation.” Id.Notably, this language was not part of the court’s legal
analysis. It appeared only in the recitation of facts. Further, the
Court’s analysis focused on Batson step three, and it does not
appear that the defendant raised an argument regarding step two.
Accordingly, we do not view Felkner as resolving whether a
potential juror’s prior experience with racial profiling is, as a
matter of law, a race-neutral reason for a peremptory strike.
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Opinion of the Court
deny[] that he had a discriminatory motive or . . . merely affirm[]
his [or her] good faith.” Purkett, 514 U.S. at 769.
¶39 In Hernandez v. New York, the State struck two Latinos8
who spoke Spanish from the jury pool. 500 U.S. at 356. Upon a
Batson challenge, the prosecutor explained that he “fe[lt] very
uncertain that they would be able to listen and follow the
interpreter” because both “looked away from [him] and said with
some hesitancy that they would try, not that they could” accept
the court “interpreter as the final arbiter of what was said by each
of the [Spanish-speaking] witnesses.” Id. The Supreme Court
accepted this as a race-neutral reason sufficient to satisfy Batson
step two. Id. at 361.
¶40 In accepting this explanation, the Supreme Court
explained that “[i]n evaluating the race neutrality of an attorney’s
explanation, a court must determine whether, assuming the
proffered reasons for the peremptory challenges are true, the
challenges violate the Equal Protection Clause as a matter of law.”
Id. at 359. The Court explained that “[t]he prosecutor’s articulated
basis for these challenges divided potential jurors into two classes:
those whose conduct during voir dire would persuade him they
might have difficulty in accepting the translator’s rendition of
Spanish-language testimony and those potential jurors who gave
no such reason for doubt.” Id. at 361. The Court concluded that
each class could include both Latinos and non-Latinos. Id.¶41 In Purkett v. Elem, the Supreme Court upheld as facially
race-neutral the strike of two Black potential jurors because one
“had long hair hanging down shoulder length, curly, unkempt
hair” and “a mustache and a goatee type beard” and the other
also had “a mustache and goatee type beard,” which the
prosecutor described as “suspicious.” 514 U.S. at 766. The Court
explained that Batson’s “second step . . . does not demand an
explanation that is persuasive, or even plausible.” Id. at 768. It
found that the Eighth Circuit “erred by combining Batson’s second
and third steps into one, requiring that the justification tendered
__________________________________________________________
8 The Supreme Court noted that the parties used the term
“Latino” in their briefs to the Court, so the Court used that term
“in deference to the terminology preferred by the parties before
the Court.” Hernandez v. New York, 500 U.S. 352, 355 (1991)
(plurality opinion).
14
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at the second step be not just neutral but also at least minimally
persuasive” because “[i]t is not until the third step that the
persuasiveness of the justification becomes relevant.” Id.¶42 Aziakanou asserts that the State struck Juror 13 because
Juror 13 had been racially profiled. And his primary argument on
appeal is that this is not a race-neutral explanation “because racial
profiling only applies to people of color.” However, Aziakanou
does not accurately characterize the State’s reason for the strike.
The prosecutor did not state that he was striking Juror 13 because
he had been racially profiled. Rather, the prosecutor explained
that he struck Juror 13 because he “didn’t feel [Juror 13] could be
impartial” to the State’s law enforcement witnesses. The State
gave a number of reasons for this concern, including because
Juror 13 had “stood for when he thought he’d been victimized, he
wanted more clarification”; he “refer[red] to profiling”; and “the
way he’s interacting, the way he’s shaking his head, or nodding,
making faces during some of the questions.”
¶43 The trial court then directly asked the prosecutor if he
was striking Juror 13 because he had experienced racial profiling.
The court asked,
[I]sn’t the real thing . . . the statement that [Juror 13]
made that he felt like he had been . . . stopped
repeatedly, I believe he said about five times for
profiling . . . . Was that part of the reasons . . . . [f]or
your striking him?
In response, the prosecutor did not accept the court’s
characterization, instead answering,
[A]ll my witnesses are law enforcement witnesses.
And reading between the lines . . . . I think he has an
issue with law enforcement. It’s not Batson. . . . This
is not about his race. This is about his—me believing
that he’s not going to give law enforcement
testimony the same credibility as if Mr. Aziakanou
testifies.
¶44 Thus, the prosecutor’s explanation was not that he struck
Juror 13 because he had experienced racial profiling, but because
these prior negative experiences with law enforcement, in
combination with Juror 13’s demeanor during voir dire, caused the
prosecutor to believe that Juror 13 had a negative view of the
police and may not credit the testimony of the State’s law
enforcement witnesses. As in Hernandez, the prosecutor’s
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STATE V. AZIAKANOU
Opinion of the Court
explanation divided the jury pool into two groups: those whose
answers and demeanor during voir dire caused the prosecutor to
believe they had a negative view of law enforcement and would
not credit his witnesses’ testimony, and those whose answers and
demeanor suggested they would be impartial toward (or possibly
favor) the State’s law enforcement witnesses. See Hernandez, 500
U.S. at 361. On its face, this explanation is not based on the race of
a prospective juror but on the particular juror’s prior experience
with and views toward law enforcement. See id. at 361.
Accordingly, we reject Aziakanou’s characterization of the
explanation given by the State and his argument that the
explanation was not race-neutral as a matter of law.
¶45 To be clear, this is not the end of the Batson inquiry. This
explanation satisfies step two because on its face, it is “something
other than . . . race.” Id. at 360. However, as we will discuss, if
Aziakanou were to show at step three that there were similarly
situated white jurors whom the State treated differently—for
example, white jurors who described prior negative interactions
with the police or indicated a dim view of law enforcement in
some way, but were not stricken by the State—that could provide
evidence of purposeful discrimination.
¶46 Aziakanou argues that the State did not satisfy step two
for two additional reasons. First, he argues that the prosecutor’s
explanation was not clear, reasonably specific, or legitimate9
__________________________________________________________
9 We used similar language in State v. Cantu, in which we held
that the proponent of a peremptory strike must give an
explanation that is “(1) neutral, (2) related to the case being tried,
(3) clear and reasonably specific, and (4) legitimate.” 778 P.2d 517,
518 (Utah 1989) (citation omitted). Given the Supreme Court’s
holding in Purkett v. Elem, 514 U.S. 765 (1995) (per curiam), the
State asks us to clarify these requirements. In Purkett, the Supreme
Court explained that the “related to the particular case to be tried”
requirement “was meant to refute the notion that a prosecutor
could satisfy his [or her] burden of production by merely denying
that he had a discriminatory motive or by merely affirming his [or
her] good faith” and that the “legitimate reason” requirement “is
not a reason that makes sense, but a reason that does not deny
equal protection.” Id. at 768–69 (citation omitted). As we are
bound by Supreme Court case law related to Batson and its
progeny, we take the opportunity to clarify that the step two
(continued . . .)
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because the prosecutor did not give specific details about Juror
13’s body language, defense counsel did not see Juror 13 making
faces or gesturing, and the prosecutor did not move to strike Juror
13 for cause. But the Supreme Court has made clear that the
explanation given at step two “need not rise to the level justifying
exercise of a challenge for cause.” Batson, 476 U.S. at 97.
¶47 And questions about the believability or persuasiveness
of the State’s explanation are not relevant in step two of the Batson
analysis. The Supreme Court has instructed that when evaluating
whether an explanation is race-neutral, a court “assum[es] the
proffered reasons for the peremptory challenges are true” and
analyzes whether those reasons “violate the Equal Protection
Clause as a matter of law.” Hernandez, 500 U.S. at 359. The Court
has explained that “[i]t is not until the third step that the
persuasiveness of the justification becomes relevant.” Purkett, 514
U.S. at 768. Accordingly, at step two, we assume the truth of the
prosecutor’s explanation that he struck Juror 13 because he
believed Juror 13 would not be impartial toward the State’s
witnesses—not because of Juror 13’s race, but because of his past
negative experiences with law enforcement and demeanor during
jury selection.
¶48 Finally, Aziakanou argues that it is “a common
experience” for people of color to be subject to racial profiling,
and therefore peremptory strikes on this basis disproportionately
impact racial minorities. Again, we clarify that we are not holding
that it is race-neutral to strike potential jurors because they have
been racially profiled. We hold only that the explanation given by
the State here was race neutral. See supra ¶¶ 36–44.
¶49 However, we understand Aziakanou’s point more
broadly to be that striking jurors for reasons associated with past
negative experiences with the police disproportionately impacts
racial minorities. For purposes of step two of Batson, the Supreme
requirement is mere facial validity. It can be absurd, “silly,”
“superstitious,” id. at 768, or even “frivolous or utterly
nonsensical,” Johnson v. California, 545 U.S. 162, 171 (2005). Once
the proponent of the strike offers a facially race-neutral reason for
the strike, the inquiry moves to step three and factors—like
whether the explanation is related to the case or if it is
legitimate—may become relevant. Purkett, 514 U.S. at 769.
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STATE V. AZIAKANOU
Opinion of the Court
Court has held that disparate impact is not determinative. In
Hernandez, the Court recognized that striking Spanish-speaking
jurors “might well result in the disproportionate removal of
prospective Latino jurors.”500 U.S. at 361. But the Court held that
was insufficient to make it a “per se violation of the Equal
Protection Clause.” Id. And it explained that while disparate
impact should be given “appropriate weight” in assessing
discriminatory intent in step three, “it will not be conclusive in the
preliminary race-neutrality step of the Batson inquiry.” Id. at 362.
The Court has made clear that
“[d]iscriminatory purpose” . . . implies more than
intent as volition or intent as awareness of
consequences. It implies that the decisionmaker . . .
selected . . . a particular course of action at least in
part “because of,” not merely “in spite of,” its
adverse effects upon an identifiable group.
Id. at 360 (second, third, and fourth alterations in original)
(citation omitted).10
¶50 Accordingly, we agree with the trial court that the State
provided a race-neutral explanation for its peremptory strike of
Juror 13. This does not end the Batson inquiry. The analysis now
proceeds to step three.
C. Step Three
¶51 Aziakanou next claims that the trial court clearly erred in
its determination that he did not prove purposeful discrimination.
We disagree.
¶52 At step three of the Batson inquiry, the burden shifts back
to the party challenging the strike to convince the trial court that,
despite the proponent’s race-neutral explanation, the proponent
struck the potential juror with discriminatory intent. Batson, 476
U.S. at 98. At this stage, “[t]he trial court must consider the
__________________________________________________________
10 See also State v. Sanders, 933 N.W.2d 670, 679 (Wis. Ct. App.
2019) (“That [two Black venirepersons were struck after they]
alleged that their prior experiences with law enforcement may
have involved discriminatory intent does not detract from the
prosecutor’s legitimate, nondiscriminatory concern about
potential bias against the State’s case in this wholly unrelated
proceeding.”).
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prosecutor’s race-neutral explanations in light of all of the
relevant facts and circumstances, and in light of the arguments of
the parties” and then “determine whether the prosecutor’s
proffered reasons are the actual reasons, or whether the proffered
reasons are pretextual and the prosecutor instead exercised
peremptory strikes on the basis of race.” Flowers, 139 S. Ct. at2243–44. The trial court is afforded great deference in this
determination because it is “a pure issue of fact” and “largely will
turn on [an] evaluation of credibility.” Hernandez, 500 U.S. at 364–
65 (citation omitted).
¶53 At this step, the court may consider any relevant facts.
The Supreme Court recently identified examples of evidence a
party raising a Batson challenge may rely on:
 statistical evidence about the prosecutor’s use
of peremptory strikes against black
prospective jurors as compared to white
prospective jurors in the case;
 evidence of a prosecutor’s disparate
questioning and investigation of black and
white prospective jurors in the case;
 side-by-side comparisons of black prospective
jurors who were struck and white prospective
jurors who were not struck in the case;
 a prosecutor’s misrepresentations of the
record when defending the strikes during the
Batson hearing;
 relevant history of the State’s peremptory
strikes in past cases; or
 other relevant circumstances that bear upon
the issue of racial discrimination.
Flowers, 139 S. Ct. at 2243. These enumerated factors are not
exhaustive, nor are they required in every case. We also note that
even though disparate impact is not dispositive at step two, it is
relevant to the trial court’s decision at step three. Hernandez, 500
U.S. at 363. “[A]n invidious discriminatory purpose may often be
inferred from the totality of the relevant facts, including the fact, if
it is true, that the [classification] bears more heavily on one race
than another.” Id. (alterations in original) (citation omitted). So
“[i]f a prosecutor articulates a basis for a peremptory challenge
that results in the disproportionate exclusion of members of a
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STATE V. AZIAKANOU
Opinion of the Court
certain race, the trial judge may consider that fact as evidence that
the prosecutor’s stated reason constitutes a pretext for racial
discrimination.” Id.¶54 Here, the trial court did not explicitly state that it was
moving to step three of the analysis—likely because Aziakanou’s
arguments to the trial court focused entirely on step two.
However, the court provided the following reasons for its final
decision to overrule Aziakanou’s Batson objection: (1) there was
no evidence of systematic efforts to exclude people of color from
the venire, (2) the prosecutor’s reasoning was race-neutral, and
(3) the prosecutor was justified in being concerned about whether
Juror 13 would impartially consider his witnesses’ testimony.11
¶55 Regarding the first point, we agree with Aziakanou that
the trial court erroneously concluded that evidence of a systematic
effort to exclude persons of color from the jury pool was
necessary. The Supreme Court explicitly rejected this assertion in
Batson. 476 U.S. at 92–93. A party bringing a Batson challenge need
not offer proof of systematic efforts of racial discrimination in the
use of a peremptory strike. Id. at 93–96. They may rely on the facts
and circumstances present in the instant case. Id. at 95.
Accordingly, we do not defer to the trial court’s reasoning on this
point.
¶56 And the trial court’s second reason relates back to step
two. Once the prosecutor offered his race-neutral reason for the
strike, the analysis should have then focused on whether that
facially race-neutral reason was pretextual. However, Aziakanou
did not make any such arguments to the trial court or put forth
any new facts relevant to the step three analysis, such as those
suggested by the Supreme Court in Flowers. See supra ¶¶ 14–17.
Accordingly, the court’s reasoning here is a reiteration of its step
two analysis, and we do not give it weight with respect to step
three.
¶57 We grant deference to the last reason the trial court
provided. The court said,
__________________________________________________________
11 It appears the court may have conflated steps two and three
of the Batson inquiry. Although it is the movant’s burden to
establish a violation of Batson, we emphasize the necessity for trial
courts to clearly walk through each step of their analysis for a
clear record on appeal.
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Not including what [Juror 13’s] nationality is or not,
the idea that his explanation that he had been
repeatedly stopped by the police, and that he feels
that that is profiling, I think is sufficient for the state
to have been concerned in a case that we have where
the police are again going to be—the question for the
stop, what the circumstances are going to be an issue
....
It appears the court credited the prosecutor’s explanation that
Juror 13’s repeated encounters with law enforcement, considered
in conjunction with the nature of the case before it and Juror 13’s
body language, justifiably caused the prosecutor to worry that
Juror 13 would not credit the State’s law enforcement witnesses at
trial. The court was within its discretion to believe the
prosecutor’s explanation. See Hernandez, 500 U.S. at 369 (“The trial
court took a permissible view of the evidence in crediting the
prosecutor’s explanation.”). And the Supreme Court has
instructed “that ‘[w]here there are two permissible views of the
evidence, the factfinder’s choice between them cannot be clearly
erroneous.’” Id. (alteration in original) (citation omitted).
¶58 Importantly, Aziakanou did not make arguments to the
trial court related to step three, and he has mostly ignored this
argument on appeal. Instead, his briefing as to step three
reiterates his step-two argument—that the prosecutor’s reason for
the strike was based on Juror 13’s experience being racially
profiled, which is not race-neutral as a matter of law. But, as
explained above, once the trial court determined the explanation
was race-neutral, to prevail on his Batson challenge Aziakanou
had “an absolute obligation” to bring to the trial court evidence of
the State’s purposeful discrimination. State v. Harris, 2012 UT 77,
¶ 17, 289 P.3d 591. He did not. Instead, he argued that a person’s
experience being racially profiled is not a race-neutral reason for a
peremptory strike; in other words, he focused on step two.
¶59 To the extent that Aziakanou has argued that the trial
court erroneously applied step three, he focuses on what the State
could have done: if the prosecutor thought Juror 13 could not
remain impartial, “he could have questioned the juror about it”; if
Juror 13 had indeed been shaking his head and making faces, the
prosecutor could have struck him for cause. But neither option is
required to overcome a Batson challenge. In fact, the Supreme
Court has said just the opposite: the proponent of the strike need
not give a reason that rises to the level of a strike for cause. Batson,
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STATE V. AZIAKANOU
Opinion of the Court
476 U.S. at 97. And neither party is required to ask specific
questions of potential jurors they suspect might harbor bias
against their case or witnesses. This is the point of a peremptory
strike. To be sure, evidence of disparate questioning of the venire
can be relevant to the trial court’s step-three analysis. But because
the party raising the Batson challenge carries the burden of
persuasion, it is their duty to bring that evidence to the trial
court’s attention. Aziakanou did not do so.
¶60 The first time Aziakanou has proffered such an argument
is in his reply brief. He argues there that the prosecutor did not
voir dire a white potential juror who had expressed being “a victim
of the [justice] system’s treatment of drug crimes.” But Aziakanou
did not make this argument to the trial court, so that court did not
have the opportunity to consider this factual assertion when
assessing the prosecutor’s explanation. Accordingly, this
argument is both unpreserved and waived. See State v. Johnson,
2017 UT 76, ¶¶ 15–16, 416 P.3d 443 (explaining that “[w]hen a
party fails to raise and argue an issue in the trial court, it has
failed to preserve the issue” and that “[w]hen a party fails to raise
and argue an issue on appeal, or raises it for the first time in a
reply brief, that issue is waived”).
¶61 Given the deferential standard with which we must
apply the trial court’s step-three determination, and the argument
and evidence that was before the trial court, Aziakanou has not
established that the court clearly erred when it overruled his
Batson challenge.
II. SUFFICIENCY OF THE EVIDENCE
¶62 Next, Aziakanou contends the trial court erred when it
denied his motion for a directed verdict. He argues the State failed
to present evidence that he took active steps in furtherance of
arranging to distribute or distributing a controlled substance.
Aziakanou claims there was no evidence of statements he made to
the buyers about purchasing spice and whether, even if he had the
requisite intent, “his conduct ‘would, or would be likely to’ lead
to any kind of distribution.” (Citation omitted.) He further claims
the evidence against him was “so inconclusive or inherently
improbable that reasonable minds must have entertained a
reasonable doubt” that he committed the crime, such that the jury
must have “take[n] speculative leaps” to arrive at its verdict.
(Citation omitted.) (Internal quotation marks omitted.) We
disagree. There was sufficient circumstantial evidence for a jury to
22
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convict Aziakanou of distribution of or arranging to distribute a
controlled substance.
¶63 “A conviction not based on substantial reliable evidence
cannot stand.” State v. Robbins, 2009 UT 23, ¶ 14, 210 P.3d 288(citation omitted). On appeal, we view “the evidence and all
reasonable inferences that may fairly be drawn therefrom in the
light most favorable to the jury verdict.” Id. (citation omitted). We
will reverse a jury verdict only if “the evidence is sufficiently
inconclusive or inherently improbable such that reasonable minds
must have entertained a reasonable doubt that the defendant
committed the crime for which he or she was convicted.” Id.(citation omitted). And “a conviction can be based on sufficient
circumstantial evidence.” State v. Brown, 948 P.2d 337, 344 (Utah
1997). Where a conviction is based on circumstantial evidence, we
must
determine (1) whether there is any evidence that
supports each and every element of the crime
charged, and (2) whether the inferences that can be
drawn from that evidence have a basis in logic and
reasonable human experience sufficient to prove
each legal element of the offense beyond a
reasonable doubt. A guilty verdict is not legally
valid if it is based solely on inferences that give rise
to only remote or speculative possibilities of guilt.
Id. (citation omitted).
¶64 The jury convicted Aziakanou of distribution of or
arranging to distribute a controlled substance, namely, spice.
Under Utah law, “it is unlawful for a person to knowingly and
intentionally . . . distribute a controlled . . . substance, or to . . .
arrange to distribute a controlled . . . substance.” UTAH CODE
§ 58-37-8(1)(a)(ii).
¶65 Aziakanou asserts there was no evidence that he
intended a drug transaction to occur. He also argues there was no
evidence he made statements to the buyers about purchasing
spice. It is true that the State did not offer direct evidence of
statements Aziakanou made during the observed transactions.
But direct evidence is not required to sustain a conviction. A jury
may rely on “all reasonable inferences” that can be drawn from
the evidence at trial. See Robbins, 2009 UT 23, ¶ 14 (citation
omitted).
23
STATE V. AZIAKANOU
Opinion of the Court
¶66 The State’s only witnesses at trial were the officers who
surveilled and arrested Aziakanou. Each officer testified that they
observed Aziakanou approach passersby on three separate
occasions and lead them to his companion. And both officers
testified that Aziakanou watched the transaction that then took
place, specifically the exchange of money for canisters of spice.
This evidence is not inconclusive or inherently improbable.
Rather, from this evidence a reasonable inference can be drawn
that Aziakanou sought out buyers and led them to his companion
to complete a drug transaction. And this is not a scenario in which
it could have been a coincidental, one-off occurrence. The officers
watched as Aziakanou repeated the process two more times. It
was reasonable for the jury to infer from the circumstances that
Aziakanou knowingly or intentionally arranged for the
distribution of or distributed a controlled substance. Thus, the
trial court did not err in denying his motion for a directed verdict.
CONCLUSION
¶67 We conclude that the trial court did not err in denying
Aziakanou’s Batson challenge. But we reiterate the importance of a
clear analysis of each step of the Batson inquiry. We also conclude
there was sufficient evidence to support Aziakanou’s conviction.
Accordingly, we affirm.
¶68 However, although Aziakanou has not prevailed on his
Batson challenge, he has raised an important issue: that
peremptory strikes based on the concern that potential jurors will
be biased against law enforcement witnesses due to past negative
experiences with the police may lead to the disproportionate
removal of persons of color from juries. Yet Batson is aimed only
at purposeful discrimination. It does not reach peremptory
practices that result in the disproportionate removal of racial
minorities from juries unless the practice was intended to have
such a consequence. And it does not address the impact of
implicit bias on jury selection. When the Supreme Court decided
Batson, Justice Marshall concurred, but argued separately that the
opinion would not end the discriminatory use of peremptory
strikes in part because of the “difficult burden” faced by trial
courts in assessing and “second-guess[ing]” the reasons given for
a peremptory strike and because the opinion did not reach what
Justice Marshall termed “unconscious racism.” Batson v. Kentucky,
476 U.S. 79, 105–06 (1986) (Marshall, J., concurring).
¶69 The U.S. Supreme Court has observed that discrimination
during jury selection not only harms the defendant on trial, but
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also those who are denied this opportunity of civic participation.
Id. at 87. And even where a Batson violation has not occurred, the
disproportionate removal of racial minorities from juries—
whether it is due to peremptory strike criterion that disparately
impact persons of color, implicit bias, or some other factor—
erodes confidence in the justice system and weakens the very
notion of a fair trial by an impartial jury. Id. These are important
concerns that deserve attention and an earnest search for
solutions.12
__________________________________________________________
12 We therefore refer this issue to our advisory committee on
the rules of criminal procedure. Specifically, the committee should
consider whether and how our criminal rules could (1) address
the concerns identified in paragraphs sixty-eight through sixty-
nine of this opinion and (2) give trial courts guidance in applying
Batson. We note that other states have addressed these matters
through procedural rules or other enactments. See WASH. GEN. R.
37; CAL. CIV. PRO. CODE § 231.7 (West 2021); MINN. R. CRIM. P.
26.02(7)(2); see also State v. Holmes, 221 A.3d 407, 412 (Conn. 2019)
(creating a “Jury Selection Task Force” to consider “measures
intended to promote the selection of diverse jury panels”); State v.
Andujar, 254 A.3d 606, 631(N.J. 2021) (directing a “Judicial
Conference on Jury Selection” to convene and “make
recommendations for proposed rule changes” to address “the
nature of discrimination in the jury selection process”); Sponsor
Memo, 2021 N.Y. S.B. 6066 (as before the S. Rules Comm., June 10,
2021) (proposing “[a]n act to repeal section 270.25 of the criminal
procedure law” relating to “abolishing peremptory challenges of
jurors in criminal cases”). In identifying these rules, we do not
intend to express an opinion on their content.
25
STATE V. AZIAKANOU
ASSOCIATE CHIEF JUSTICE LEE, concurring
JUSTICE HIMONAS, concurring
ASSOCIATE CHIEF JUSTICE LEE, concurring:
¶70 Justice Himonas raises important questions about a
judge’s sua sponte role in detecting and foreclosing race-based uses
of a peremptory challenge under Batson v. Kentucky, 476 U.S. 79(1986). See infra ¶¶ 80–84. Such questions, however, are not
presented for resolution in a case in which the defendant objected
to the prosecution’s use of a peremptory strike and we have no
briefing on the nature and extent of a judge’s sua sponte role in this
process. This role can better be explored through our rulemaking
process.
JUSTICE HIMONAS, concurring:
¶71 Our constitution promises a right not to be excluded from
jury service on the basis of race, and it is a right that, in and of
itself, protects the legitimacy of our judicial system and promotes
the constitutional right of a defendant to an impartial jury. But the
right not to be excluded from a jury on account of race is not self-
enforcing—it must be enforced. And when it is not enforced, the
judicial process is compromised and our justice system becomes
complicit in the social inequities of racism.
¶72 I write separately only to drive home the point that trial
courts have the power, if not the duty, to raise Batson challenges
sua sponte. Such a challenge serves as a paradigmatic example of
where and how trial courts can work to eradicate racism in the
courts.
¶73 In a criminal trial, the defendant enjoys a panoply of
constitutional protections, including Fourth Amendment rights to
freedom from unreasonable search and seizure, Fifth Amendment
rights to due process, and Sixth Amendment rights to assistance
of counsel and the ability to confront one’s accuser. U.S. CONST.
amends. IV–VI. Typically, the onus is on defense counsel to raise
constitutional challenges on behalf of their clients, and this makes
sense—the criminal defendant is the one in the room who stands
to lose most when they are, say, precluded from confronting a
witness or forced to testify.
¶74 Among a defendant’s other constitutional rights is the
right to be tried before an impartial jury “drawn from a fair cross
section of the community.” Taylor v. Louisiana, 419 U.S. 522, 527
(1975). Supreme Court jurisprudence, including the holding in
Batson v. Kentucky, 476 U.S. 79 (1986), enforces this right.
26
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¶75 In Batson the Court held that “the Equal Protection Clause
forbids the prosecutor to challenge potential jurors solely on
account of their race or on the assumption that black jurors as a
group will be unable impartially to consider the State’s case
against a black defendant.” Id. at 89. But while Batson spoke
specifically to a defendant’s Equal Protection rights, it certainly
raised the question of whether the potential jurors also enjoyed a
right to be free from purposeful discrimination in jury selection.
¶76 The answer is yes, plain and simple.
¶77 In Powers v. Ohio, the Supreme Court expanded on its
Batson holding, ruling that a defendant may object to the race-
based exclusion of jurors, regardless of the defendant’s own race.
499 U.S. 400, 415–16 (1991). In so doing, the court explained that
an individual juror “possess[es] the right not to be excluded from
[a jury] on account of race.” Id. at 409. In rejecting the Ohio Court
of Appeals’ holding that the challenged juror must be of the same
race as the defendant, the Supreme Court stated that Batson was
“designed to serve multiple ends” and is not limited to situations
in which the defendant is harmed by discriminatory removal of
jurors of the same race. Id. at 406 (quoting Allen v. Hardy, 478 U.S.
255, 259 (1986) (per curiam)) (citation omitted) (internal quotation
marks omitted). Of these “multiple ends,” the Court focused on
the following: First, regardless of harm to the defendant, jury
service is a valuable right to citizens. As the Court wrote,
“The jury system postulates a conscious duty of
participation in the machinery of justice. . . . One of
its greatest benefits is in the security it gives the
people that they, as jurors actual or possible, being
part of the judicial system of the country can prevent
its arbitrary use or abuse.”
....
Indeed, with the exception of voting, for most
citizens the honor and privilege of jury duty is their
most significant opportunity to participate in the
democratic process.
Id. at 406–07 (first alteration in original) (quoting Balzac v. Porto
Rico, 258 U.S. 298, 310 (1922)).
¶78 Second, discrimination in jury selection is harmful to the
justice system as a whole, and therefore to the defendant. Id. at
412–13. “The overt wrong, often apparent to the entire jury panel,
27
STATE V. AZIAKANOU
JUSTICE HIMONAS, concurring
casts doubt over the obligation of the parties, the jury, and indeed
the court to adhere to the law throughout the trial of the cause.”
Id. at 412. The Court noted that “[b]oth the excluded juror and the
criminal defendant have a common interest in eliminating racial
discrimination from the courtroom” and that “[a] venireperson
excluded from jury service because of race suffers a profound
personal humiliation” and thus “may lose confidence in the court
and its verdicts, as may the defendant if his or her objections
cannot be heard.” Id. at 413–14.
¶79 And third, jurors are unlikely to pursue their own rights
because they face significant barriers to doing so:
Potential jurors are not parties to the jury selection
process and have no opportunity to be heard at the
time of their exclusion. Nor can excluded jurors
easily obtain declaratory or injunctive relief when
discrimination occurs through an individual
prosecutor’s exercise of peremptory challenges. . . .
[because] it would be difficult for an individual juror
to show a likelihood that discrimination against him
at the voir dire stage will recur. And, there exist
considerable practical barriers to suit by the
excluded juror because of the small financial stake
involved and the economic burdens of litigation.
Id. at 414–15 (citations omitted). Ultimately, the court held that
these “multiple ends” give a third party (often the defendant)
standing to raise a Batson challenge on behalf of the juror to
vindicate the juror’s right to not be excluded on account of race. Id.
at 406, 415.
¶80 But it isn’t just the defendant and the excluded juror who
share a “common interest in eliminating racial discrimination
from the courtroom”—indeed, the judiciary shares in that interest
as well. See id. at 413; id. at 415 (“The Fourteenth Amendment's
mandate that race discrimination be eliminated from all official
acts and proceedings of the State is most compelling in the judicial
system.”) As such, courts also have the ability to raise third-party
Batson challenges. To this end, states have interpreted the
reasoning in Powers as justification for Batson challenges sua sponte
by the courts. The Supreme Court of Illinois, for example, cited
Powers in its holding that a trial court, like a defendant, has
standing to raise a Batson issue sua sponte. People v. Rivera, 852
N.E.2d 771, 781–82, 784–85, 791 (Ill. 2006). In addition to the harms
28
Cite as: 2021 UT 57JUSTICE HIMONAS, concurring
to the defendant and the integrity of the judicial system writ large,
as well as the barriers faced by wrongfully excluded jurors in
raising a claim of discrimination, the Rivera court found that the
court has a closer relationship to the jury than does the defendant,
thus giving the court third-party standing. Id. at 784–85. The
Rivera court listed several other jurisdictions with consistent
holdings, id. at 785, including New Jersey, Hitchman v. Nagy, 889
A.2d 1066 (N.J. Super. Ct. App. Div. 2006), Michigan, People v. Bell,
702 N.W.2d 128 (Mich. 2005), Washington, State v. Evans, 998 P.2d
373 (Wash. Ct. App. 2000), Indiana, Williams v. State, 669 N.E.2d
1372 (Ind. 1996), Maryland, Brogden v. State, 649 A.2d 1196 (Md.
Ct. Spec. App. 1994), and Alabama, Lemley v. State, 599 So.2d 64(Ala. Crim. App. 1992). However, the Rivera court was also careful
to note that raising a Batson challenge sua sponte is appropriate
only when a prima facie case of discrimination is “abundantly
clear.” Rivera, 852 N.E.2d at 785, 791.13
__________________________________________________________
13 Additional support for a court’s ability to raise Batson
challenges sua sponte comes from the Supreme Court’s opinion in
Georgia v. McCollum, 505 U.S. 42 (1992). There, the Court found
that Batson challenges may be raised against criminal defendants
exercising purposefully discriminatory peremptory challenges
because peremptory challenges inherently “perform a traditional
function of the government” and thus constitute state action
subject to the Equal Protection Clause. Id. at 52–55. The Court
noted that,
[a]s the representative of all its citizens, the State is
the logical and proper party to assert the invasion of
the constitutional rights of the excluded jurors in a
criminal trial. Indeed, the Fourteenth Amendment
forbids the State to deny persons within its
jurisdiction the equal protection of the laws.
Id. at 56. And, of course, the “State” to which the McCollum Court
refers includes the judiciary. Thus, “if a court allows jurors to be
excluded because of group bias, ‘[it] is [a] willing participant in a
scheme that could only undermine the very foundation of our
system of justice—our citizens’ confidence in it.’” Id. at 49–50
(alterations in original) (quoting State v. Alvarado, 534 A.2d 440,
442 (N.J. Super. Ct. Law Div. 1987)).
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STATE V. AZIAKANOU
JUSTICE HIMONAS, concurring
¶81 The Supreme Court of Pennsylvania took Rivera’s holding
even further, suggesting that U.S. Supreme Court dicta may place
an affirmative duty on a trial court to raise a Batson issue sua
sponte “after observing a prima facie case of purposeful
discrimination by way of peremptory challenges.” Commonwealth
v. Carson, 741 A.2d 686, 695, 696 n.6 (Pa. 1999) (noting, however,
that such an affirmative duty may require an extensive record
developed at voir dire to facilitate appellate review), abrogated on
other grounds by Commonwealth v. Freeman, 827 A.2d 385 (Pa. 2003).
¶82 And though courts have largely eschewed imposing an
affirmative duty on courts to raise a Batson challenge sua sponte
(wrongfully so in my view), the power of a court to do so is, as
noted above, clearly recognized.14
¶83 Our own Code of Judicial Conduct further cements the
power, if not the obligation, of a trial court to raise a Batson
challenge sua sponte. Rule 2.3(C) provides:
A judge shall take reasonable measures to require
lawyers in proceedings before the court to refrain
__________________________________________________________
14 The Supreme Court of Wyoming, for example, noted as
recently as this year that “trial judges possess the primary
responsibility to enforce Batson and prevent racial discrimination
from seeping into the jury selection process,” even if there is no
affirmative duty to raise such an objection. Yazzie v. State, 487 P.3d
555, 565 (Wyo. 2021) (quoting Flowers v. Mississippi, 139 S. Ct.
2228, 2243 (2019)). And in Flowers v. Mississippi, the Supreme
Court remarked that “the job of enforcing Batson rests first and
foremost with trial judges. America’s trial judges operate at the
front lines of American justice. In criminal trials, trial judges
possess the primary responsibility to enforce Batson and prevent
racial discrimination from seeping into the jury selection process.”
139 S.Ct. at 2243 (citation omitted). Flowers specifically discussed a
trial judge’s responsibility in terms of “consider[ing] the
prosecutor’s race-neutral explanations in light of all of the
relevant facts and circumstances” in ruling on a Batson objection.
Id. However, the “responsibility to enforce Batson” certainly
encompasses sua sponte objections when necessary and
appropriate to “prevent racial discrimination” from pervading a
trial. See id.30
Cite as: 2021 UT 57JUSTICE HIMONAS, concurring
from manifesting bias or prejudice . . . based upon
attributes including but not limited to race, sex, [or]
gender . . . against parties, witnesses, lawyers, or
others.
UTAH CODE JUD. CONDUCT 2.3(C) (emphasis added). This rule
would require, for example, that a judge appropriately admonish
a lawyer for using a racial epithet during a proceeding in order to
dispel bias and prejudice from the court room. I find it impossible
to imagine that this rule would not apply with equal or greater
force to a racially motivated peremptory challenge in which a
juror’s constitutional right has been violated.
¶84 In sum, given this continuing jurisprudence, I take this
time today to remind all of us who toil in Utah’s courts of our
responsibility to preserve our citizens’ confidence in our system of
justice. When purposeful discrimination in jury selection is a clear
possibility, justice will be best served by a court’s sua sponte
objection. Certainly, raising a Batson challenge in the appropriate
context won’t violate the Utah Code of Judicial Conduct; rather, it
will serve to buttress the justice system we judges have sworn an
oath to preserve. Going forward, I urge our courts to keep a
watchful eye for clear threats to the judiciary’s integrity,
particularly as they concern peremptory challenges. This
commitment will uphold this branch of government while
simultaneously dismantling the discriminatory structures that
serve only to undermine it.
31