State v. Flores

2015 UT App 88_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
ARMANDO FLORES,
Defendant and Appellant.
Amended Opinion1
No. 20120438-CA
Filed April 16, 2015
Third District Court, Salt Lake Department
The Honorable Robert P. Faust
No. 101908899
Joanna E. Landau, Attorney for Appellant
Sean D. Reyes and Christopher D. Ballard, Attorney for Appellee
JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which
JUDGE STEPHEN L. ROTH and SENIOR JUDGE RUSSELL W. BENCH
concurred.2
VOROS, Judge:
¶1 Armando Flores served for five years as a leader of a West
Valley City church congregation. In 2012, he was convicted of
1. This Amended Opinion replaces the Opinion in Case No.
20120438-CA issued on September 11, 2014.
2. The Honorable Russell W. Bench, Senior Judge, sat by special
assignment as authorized by law. See generally Utah Code Jud.
Admin. R. 11-201(6).
State v. Flores
sexual battery and unlawful detention for acts committed on a
member of his congregation. Flores appeals his convictions,
arguing that the trial court erred by prohibiting voir dire
questions intended to uncover potential jurors’ religious biases.
Flores also argues that the State used its peremptory challenges
improperly during voir dire, violating his rights under the Equal
Protection Clause. We affirm.
BACKGROUND3
Allegations of Sexual Abuse
¶2 Armando Flores served as the branch president of a small
LDS Church congregation in West Valley City.4 In August 2009,
Flores invited T.H., a sixteen-year-old member of his
congregation who was also a family friend, to speak with him
alone in his office. After their conversation, Flores grabbed her
and ‚touched *her+ breasts.‛ At first T.H. did not tell anyone
about the incident because she ‚didn’t think anyone would
believe *her+.‛
3. ‚On appeal, we review the record facts in a light most
favorable to the jury’s verdict and recite the facts accordingly.
We present conflicting evidence only as necessary to understand
issues raised on appeal.‛ State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d
346 (citations and internal quotation marks omitted).
4. A branch president oversees a small congregation of members
of The Church of Jesus Christ of Latter-day Saints (the LDS
Church). The LDS Church describes a branch president as ‚the
presiding priesthood leader‛ in a branch. See The Church of
Jesus Christ of Latter-day Saints, Branch Guidebook, at 4 (2001),
available at https://www.lds.org/bc/content/shared/content/
english/pdf/language-materials/31179_eng.pdf.
20120438-CA 2 2015 UT App 88State v. Flores
¶3 In December 2009, after a New Year’s Eve party, Flores
invited T.H. into a small, dark room at the church building
where Flores’s congregation met. Flores followed T.H. into the
room, closed the door, and again touched her breasts. In
addition, Flores gripped T.H.’s left arm with his right hand, and
when he heard someone in the hall, he covered her mouth with
his hand until the person passed. When Flores took his hand off
T.H.’s mouth, she ran out of the room.
¶4 The State charged Flores with one count of forcible sexual
abuse based on the August 2009 incident and a second count of
forcible sexual abuse and one count of kidnapping based on the
December 2009 incident. All are second-degree felonies.5 At trial,
the court also instructed the jury on the lesser included offenses
of sexual battery, lewdness, and unlawful detention.6
5. A person commits forcible sexual abuse if that person
touches the breast of a female . . . with intent to
cause substantial emotional or bodily pain to any
person or with the intent to arouse or gratify the
sexual desire of any person, without the consent of
the other.
Utah Code Ann. § 76-5-404(1) (LexisNexis 2008).
A person commits kidnapping if that person
intentionally or knowingly, without authority of
law, and against the will of the victim . . . detains
or restrains the victim for any substantial period of
time . . . [or] detains or restrains a minor without
the consent of the minor’s parent or legal guardian
or the consent of a person acting in loco parentis, if
the minor is 14 years of age or older but younger
than 18 years of age . . . .
Id. § 76-5-301.
6. A person commits sexual battery, a class A misdemeanor,
if the person under circumstances not amounting
to [a more serious sex crime], intentionally touches,
(continued...)
20120438-CA 3 2015 UT App 88State v. Flores
Voir Dire
¶5 During jury voir dire, Flores requested that the trial court
ask the prospective jurors about their religious affiliation. When
the judge declined, defense counsel explained that jurors’
religious affiliation may cause them to improperly weigh the
testimony of certain witnesses:
[T]he reason for that request is just due to the fact
that a number of our witnesses are LDS, two of
them are LDS clergy, the defendant himself was
former LDS clergy. My request is based on finding
out the affiliation of jurors so that we could gauge
(…continued)
whether or not through clothing, . . . the breast of a
female, and the actor’s conduct is under
circumstances the actor knows or should know will
likely cause affront or alarm to the person touched.
Utah Code Ann. § 76-9-702(3) (LexisNexis Supp. 2009).
A person commits lewdness, a class B misdemeanor for
most first-time offenders, when the person, under circumstances
not amounting to a more serious sex crime,
performs . . . under circumstances which the
person should know will likely cause affront or
alarm to, on, or in the presence of another who is
14 years of age or older . . . an act of sexual
intercourse or sodomy . . . [or] any other act of
lewdness.
Id. § 76-9-702(1), (2).
A person commits unlawful detention, a class B
misdemeanor, if the person ‚intentionally or knowingly, without
authority of law, and against the will of the victim, detains or
restrains the victim‛ under circumstances not amounting to a
more serious kidnapping crime. Id. § 76-5-304(1), (3) (LexisNexis
2008).
20120438-CA 4 2015 UT App 88State v. Flores
whether they would be impacted by the testimony,
have any prejudices or preconceived notions based
on that fact.
Though the trial court refused to ask prospective jurors about
their religious affiliations, it did ask a question designed to test
their ability to properly weigh testimony by religious leaders:
[Y]ou need to judge the credibility of a clergy
member or religious leader the same way that you
would judge any other witness regardless of that
person’s position in the community. The question
is, do any of you feel that you would be unable to
follow that direction . . . and not be able to sit as a
fair and impartial juror in this case?
No prospective jurors indicated that they would be unable to
properly judge the credibility of a church leader serving as a
witness.
Peremptory Strikes
¶6 The State used all four of its peremptory strikes against
male potential jurors. Flores challenged the State’s strikes under
Batson v. Kentucky, arguing that the State’s use of peremptory
strikes violated the Equal Protection Clause. See 476 U.S. 79(1986). The trial court invited the prosecutor to ‚articulate on the
record *her+ reasons‛ for each of her four strikes. The prosecutor
explained that she struck the first potential juror because she
feared his participation would create a basis for appeal, the
second potential juror because of his age and lack of ‚life
experience,‛ the third potential juror because of a ‚domestic
violence history,‛ and the fourth potential juror because he
seemed ‚offput‛ by the case.
¶7 Flores conceded that the State articulated a viable reason
for excluding the first potential juror, but he argued that the
State’s justifications for the other strikes did not constitute
satisfactory nondiscriminatory explanations. However, the trial
20120438-CA 5 2015 UT App 88State v. Flores
court found that the State had ‚articulated *a+ legitimate basis for
the reasons for *its+ strikes‛ and thus denied Flores’s Batson
challenge. The jury consisted of five men and three women.
¶8 At trial, both parties called witnesses who were members
of the LDS Church. T.H.’s parents, both LDS, testified for the
prosecution. Flores’s witnesses included the stake president who
oversaw Flores’s service as branch president, the branch
president who replaced Flores, a young-women’s leader from
his branch, and Flores himself.
¶9 The jury acquitted Flores of the charged felonies, each of
which carried a prison term of one-to-fifteen years. Instead, the
jury convicted him of two lesser included misdemeanors: one
count of forcible sexual abuse and one count of unlawful
detention, carrying jail terms of zero-to-one year and zero-to-six
months, respectively.
ISSUES ON APPEAL
¶10 Flores first contends that the trial court erred by
preventing him from questioning the jurors at voir dire about
their religious beliefs.
¶11 Second, Flores contends that the trial court erred in
denying his Batson challenge.
¶12 Finally, Flores contends that, taken together, the voir dire
restrictions and Batson determination constitute cumulative
error, undermining confidence in the verdict.
ANALYSIS
I. Voir Dire
¶13 Flores contends that ‚the trial court abused its discretion
in restricting voir dire on LDS religious affiliation and related
20120438-CA 6 2015 UT App 88State v. Flores
bias.‛ The jurors’ ‚religion was relevant,‛ Flores argues, because
Flores was a former LDS branch president, the victim was a
former member of his branch, seven of the ten trial witnesses
testified to their LDS religious affiliation, and all of the alleged
acts transpired in an LDS Church building. In response, the State
argues that ‚religion was not particularly relevant in this case‛
and that, ‚even if it were, it would not have created bias in favor
of one side over the other.‛7
¶14 The Utah Constitution guarantees that no person
‚shall . . . be incompetent as a . . . juror on account of religious
belief or the absence thereof.‛ Utah Const. art. I, § 4; see also Utah
Code Ann. § 78B-1-103(2) (LexisNexis 2008) (‚A qualified citizen
may not be excluded from jury service on account
of . . . religion . . . .‛). But juror competence and juror bias are
separate considerations. Therefore, while ‚it is ordinarily
inappropriate to inquire into venire members’ religious beliefs
during voir dire,‛ inquiries into religion may be appropriate
when the case presents ‚the possibility of actual bias stemming
from religious beliefs.‛ Depew v. Sullivan, 2003 UT App 152, ¶ 13,
71 P.3d 601; see also, e.g., State v. Ball, 685 P.2d 1055, 1060 (Utah
1984) (holding that asking a potential juror whether ‚his
abstention from the drinking of alcohol has a religious basis is
not prohibited by the Utah constitution‛).
¶15 Voir dire examination serves two purposes: ‚the detection
of actual bias . . . and the collection of data to permit informed
exercise of the peremptory challenge.‛ State v. Piansiaksone, 954
P.2d 861, 867 (Utah 1998) (citation and internal quotation marks
omitted). ‚*T+he obligation to impanel an impartial jury lies in
the first instance‛ with trial judges, who ‚must rely largely‛ on
their ‚immediate perceptions.‛ Rosales-Lopez v. United States, 451
7. Flores also contends that if we reject this claim as unpreserved,
his trial counsel was ineffective for failing to preserve it. Because
we address the claim on its merits, we need not address the
alternative ineffectiveness claim.
20120438-CA 7 2015 UT App 88State v. Flores
U.S. 182, 189 (1981). Appellate courts therefore typically accord
trial courts ‚ample discretion in determining how best to
conduct‛ voir dire. Id.; see also Taylor v. State, 2007 UT 12, ¶ 70,
156 P.3d 739. ‚*T+rial judges are not compelled to permit every
question that . . . might disclose some basis for counsel to favor
or disfavor seating a particular juror.‛ Piansiaksone, 954 P.2d at
868. But ‚trial courts should be permissive in allowing voir dire
questions and should exercise their discretion in favor of
allowing counsel to elicit information from prospective jurors.‛
Id.
¶16 The nature of the voir dire questioning determines the
scope of the trial court’s discretion. ‚That discretion is strictly
limited where the questions are directly related to bias and
prejudice, but increases as the directness of that relation
decreases or, in some instances, where the question unduly
intrudes upon the privacy of the jurors.‛ Id. Thus, questions that
‚directly search for questionable attitudes among jurors deserve
more favorable treatment by trial courts.‛ Piansiaksone, 954 P.2d
at 868. Moreover, a trial court’s ‚failure to ask questions in a
particular manner‛ does not constitute error as long as the trial
court’s substitute questions covered ‚the relevant subject area of
potential bias.‛ Id. at 867.
¶17 Here, Flores urged the trial court to ask the jurors to state
‚their individual religious affiliation.‛ Defense counsel
explained,
‚*A+ number of our witnesses are LDS, two of them
are LDS clergy, [and] the defendant himself was
former LDS clergy. My request is based on finding
out the affiliation of jurors so that we could gauge
whether they would be impacted by the testimony,
have any prejudices or preconceived notions based
on that fact.‛
The trial court denied this request and instead asked the entire
panel a question targeting impartiality: whether the panel
members could ‚judge the credibility of a clergy member or
20120438-CA 8 2015 UT App 88State v. Flores
religious leader the same way that [they] would judge any other
witness.‛
¶18 We conclude that the question requested by defense
counsel was ‚not phrased in a manner calculated to uncover
potential bias pertinent to the facts of this case.‛ State v. Burke,
2011 UT App 168, ¶ 74, 256 P.3d 1102. It was, rather, one that
would ‚require multiple inferential steps or follow-up questions
to elucidate real or possible bias.‛ Piansiaksone, 954 P.2d at 868.
While the proposed question ‚may have eventually led to
indications‛ of religious bias, it ‚would have required several
additional questions or inferences before reaching even an
indication of latent bias.‛ Id.
¶19 We understand that the events of this case took place
within a church context. Many of the trial witnesses were
members or leaders of the LDS Church. Flores and the victim
met because they were members of the same LDS branch. Both
sides planned to call LDS Church members as witnesses—in fact,
the defense called three LDS Church leaders (in addition to
Flores himself) as witnesses. On these facts, the religious
affiliation of a juror without more does not indicate bias. As the
State argues, ‚*e+ven assuming that a juror who belonged to the
LDS Church might favor her fellow members, knowing that the
juror was LDS would not have indicated whether that juror
would be more likely to favor the prosecution’s LDS witnesses
or the defense’s.‛
¶20 Flores argues that ‚if a juror was agnostic or atheist,
Flores might have followed up about bias against organized
religion that might make the juror discredit the testimony of
clergy or religious witnesses.‛ But this argument reveals that the
requested voir dire question was one that would ‚require
multiple inferential steps or follow-up questions to elucidate real
or possible bias.‛ State v. Piansiaksone, 954 P.2d 861, 868 (Utah
1998).
¶21 As noted above, a trial court’s discretion ‚increases as the
directness of [the relationship between the question and bias]
20120438-CA 9 2015 UT App 88State v. Flores
decreases or, in some instances, where the question unduly
intrudes upon the privacy of the jurors.‛ Id. Here, the proposed
question was not directly related to bias and had some potential
to intrude upon the privacy of the potential jurors. Moreover,
while declining to ask each panel member’s religious affiliation,
the trial court did ask a general question targeting their attitudes
toward clergy. Accordingly, we hold that the trial court did not
exceed its discretion in refusing to ask the proposed question.
II. Batson Challenge
¶22 Flores next contends that the trial court erred in denying
his Batson challenge, because the State’s peremptory strikes were
motivated by purposeful gender-based discrimination. In
response, the State contends that Flores ‚has not shown that the
prosecutor’s explanations for her strikes were gender-based.‛
¶23 ‚The harm from discriminatory jury selection extends
beyond that inflicted on the defendant and the excluded juror to
touch the entire community.‛ Batson v. Kentucky, 476 U.S. 79, 87
(1986). Discriminatory selection procedures ‚undermine public
confidence in the fairness of our system of justice‛ and act as ‚a
stimulant‛ to prejudices that impede the ‚equal justice which the
law aims to secure.‛ Id. at 87–88 (citation and internal quotation
marks omitted). Batson itself applied only to race-based
discrimination in criminal trials. But in 1991 the United States
Supreme Court extended its reach to civil proceedings, Edmonson
v. Leesville Concrete Co., 500 U.S. 614, 631 (1991), and in 1994 the
Court extended Batson to gender-based discrimination, J.E.B. v.
Alabama ex rel. T.B., 511 U.S. 127, 128–29 (1994).
¶24 Batson aims to produce ‚actual answers to suspicions and
inferences that discrimination may have infected the jury
selection process.‛ Johnson v. California, 545 U.S. 162, 172 (2005).
In pursuit of those answers, a defendant may rely on the
prosecutor’s exercise of peremptory challenges against members
of the protected groups to support a claim of purposeful
discrimination. Batson, 476 U.S. at 96. To test a defendant’s
Batson claim, the trial court must oversee a three-stage process.
20120438-CA 10 2015 UT App 88State v. Flores
In the first stage, ‚a defendant must make a prima facie showing
that a peremptory challenge has been exercised‛ on an
impermissible basis, such as race or gender. Miller-El v. Cockrell,
537 U.S. 322, 328 (2003). The ‚pattern of strikes‛ might be
enough to make this prima facie showing, as might ‚a
prosecutor’s comments and statements.‛ United States v. Johnson,
No. 12-3229, 2014 WL 2854996, at *3 (7th Cir. June 24, 2014).
¶25 In the second stage, the prosecution must offer a
legitimate—in this case gender-neutral—basis for striking the
juror in question. See Cockrell, 537 U.S. at 328. ‚*T+he prosecutor
must give a clear and reasonably specific explanation of his
legitimate reasons for exercising *the+ challenges.‛ Batson, 476
U.S. at 98 n.20 (citation and internal quotation marks omitted).
But while a ‚Batson challenge does not call for a mere exercise in
thinking up any rational basis,‛ Miller-El v. Dretke, 545 U.S. 231,
252 (2005), the prosecutor’s gender-neutral explanation need not
be ‚persuasive, or even plausible,‛ Purkett v. Elem, 514 U.S. 765,
768 (1995) (per curiam).
¶26 In the third stage, ‚the trial court must determine whether
the defendant has shown purposeful discrimination.‛ Cockrell,
537 U.S. at 328–29. To do so, the trial court assesses whether the
contested strikes were ‚motivated in substantial part by
discriminatory intent.‛ Snyder v. Louisiana, 552 U.S. 472, 485
(2008). ‚*I+mplausible or fantastic justifications may (and
probably will) be found to be pretexts for purposeful
discrimination.‛ Purkett, 514 U.S. at 768. While the third stage
requires the trial court to evaluate the credibility of the
prosecutor’s justification, ‚the ultimate burden of persuasion
regarding [discriminatory] motivation rests with, and never
shifts from, the opponent of the strike.‛ Id.¶27 Though the justifications provided in Batson’s second
stage inform the trial court’s determination in the third, the two
stages must be kept distinct. The prosecutor’s ability to articulate
a neutral basis for a peremptory challenge does not guarantee
third-stage vindication. ‚When there is reason to believe that
there is a racial motivation for [a] challenge, neither the trial
20120438-CA 11 2015 UT App 88State v. Flores
courts nor [the appellate courts] are bound to accept at face
value a list of neutral reasons that are either unsupported in the
record or refuted by it.‛ Johnson v. Vasquez, 3 F.3d 1327, 1331 (9th
Cir. 1993). Conversely, the prosecutor’s inability to articulate a
logical basis for a peremptory challenge does not doom the
prosecutor to a finding of purposeful discrimination. As the
Ninth Circuit Court of Appeals explained, ‚*A prosecutor’s+
reasons may not be logical, but that’s what peremptory
challenges are all about. They are often founded on nothing
more than a trial lawyer’s instinct about a prospective juror.‛
United States v. Thompson, 827 F.2d 1254, 1260 (9th Cir. 1987). So
although ‚it can sometimes be hard to say what the reason *for
exercising a peremptory challenge+ is,‛ once a defendant alleges
purposeful discrimination, prosecutors must ‚simply . . . state
[those] reasons as best [they] can and stand or fall on the
plausibility of the reasons *given+.‛ Dretke, 545 U.S. at 252.
¶28 Proving purposeful discrimination under Batson presents
a formidable enough task in the trial court. But once a trial court
has stamped its approval on a prosecutor’s peremptory
challenges, mounting a successful Batson challenge on appeal
verges on the impossible.8 The reason lies in the standard of
8. The United States Supreme Court ‚consistently and repeatedly
has reaffirmed that racial discrimination by the State in jury
selection offends the Equal Protection Clause.‛ Miller-El v.
Dretke, 545 U.S. 231, 238 (2005). But the Court has also
recognized ‚the practical difficulty of ferreting out
discrimination in selections discretionary by nature.‛ Id.Batson’s critics bemoan the toothlessness of the system the
Court has devised to combat discrimination in jury selection.
One observed that our ‚current framework makes it exceedingly
difficult for judges to reject even the most spurious of
peremptory strikes.‛ Jeffrey Bellin & Junichi P. Semitsu,
Widening Batson’s Net to Ensnare More Than the Unapologetically
Bigoted or Painfully Unimaginative Attorney, 96 Cornell L. Rev.
1075, 1077 (2011). Another noted that Purkett v. Elem allows
(continued...)
20120438-CA 12 2015 UT App 88State v. Flores
review: a trial court’s Batson determination rests on factual
findings that ‚largely . . . turn on evaluation of credibility,‛ and
we give those findings ‚great deference.‛ Batson, 476 U.S. at 98
n.21. Accordingly, we will not set aside a trial court’s
determination regarding discrimination during jury selection
absent clear error. State v. Higginbotham, 917 P.2d 545, 548 (Utah
1996).
¶29 The prosecutor here used her four peremptory strikes to
remove four men from the jury pool. For the purposes of this
opinion, we refer to them as Jurors 1, 2, 3, and 4. Because the
‚exclusion of even one juror for impermissible reasons harms
that juror and undermines public confidence in the fairness of
the system,‛ we examine each strike individually. See J.E.B. v.
Alabama ex rel. T.B., 511 U.S. 127, 142 n.13 (1994).
A. Waiver of Challenge to Juror 1
¶30 Flores waived his Batson challenge to Juror 1 below.
Before his Batson challenge, Flores had moved unsuccessfully to
exclude Juror 1 for cause. The prosecutor struck Juror 1 to
foreclose an appellate challenge: ‚If it turns out defense counsel
is forced to use a peremptory strike to excuse someone who . . .
should have been excused for cause, that’s a basis for an appeal.‛
Defense counsel responded, ‚I understand that there’s a
rationale for *the prosecutor’s striking Juror 1+.‛
¶31 Failure to pursue a Batson objection after opposing
counsel has ‚offered a legitimate, nondiscriminatory
explanation‛ waives the Batson challenge to the strike in
(…continued)
prosecutors to ‚offer any reason at all‛ for exercising a
peremptory strike, ‚no matter how ‘silly or superstitious’—as
long as it is race neutral.‛ Nancy S. Marder, Batson Revisited, 97
Iowa L. Rev. 1585, 1593 (2012) (quoting Purkett v. Elem, 514 U.S.
765, 768 (1995) (per curiam)).
20120438-CA 13 2015 UT App 88State v. Flores
question. Davis v. Baltimore Gas & Elec. Co., 160 F.3d 1023, 1027–
28 (4th Cir. 1998); accord Hopson v. Fredricksen, 961 F.2d 1374,
1376–77 (8th Cir. 1992); United States v. Rudas, 905 F.2d 38, 39 (2d
Cir. 1990). That happened here. We therefore conclude that
Flores waived his Batson challenge to the prosecution’s strike of
Juror 1.
B. The Three Remaining Strikes
¶32 After guiding the parties through the first two Batson
stages, the trial court found that the State had ‚articulated *a+
legitimate basis for the reasons for their strikes,‛ then denied
Flores’s Batson challenge. The trial court implied the
intermediary steps: that Flores failed to demonstrate a
discriminatory motive and thus failed to carry his ‚ultimate
burden of persuasion.‛ See Purkett v. Elem, 514 U.S. 765, 768
(1995) (per curiam). We ask only whether the trial court clearly
erred by finding that Flores failed to demonstrate a
discriminatory motive for any of the three remaining strikes.
Higginbotham, 917 P.2d at 548.
1. Juror 2
¶33 The prosecutor struck Juror 2 as young and
inexperienced. She explained that other jurors had ‚had more
extensive involvement in family and career.‛ Juror 2, by
comparison, seemed to be ‚someone who wouldn’t bring a lot of
experience.‛ Flores argued during jury selection and again on
appeal that Utah Code section 78B-1-103(2) prohibits excluding
citizens from jury service on account of age. Flores also argues
that ‚the prosecutor proffered no explanation why youth or
inexperience in family or career were relevant to this case.‛
¶34 Both arguments fail. Utah Code section 78B-1-103
prohibits excluding qualified citizens from jury service based on
age. But it does not guarantee that a qualified panel member will
survive voir dire, which subjects each potential juror to strikes
for cause and peremptory strikes. And though Batson forbids
parties from basing peremptory strikes on race or gender, it
20120438-CA 14 2015 UT App 88State v. Flores
offers potential jurors no protection from peremptory strikes
based on age.
¶35 Further, despite defense protestations, the prosecutor was
not obliged to explain ‚why youth or inexperience in family or
career were relevant to this case.‛ Though Batson’s second step
requires prosecutors to provide a ‚legitimate reason‛ for each
challenged strike, ‚*w+hat *Batson+ means by a ‘legitimate reason’
is not a reason that makes sense, but a reason that does not deny
equal protection.‛ Purkett, 514 U.S. at 769. Even if we agreed that
striking Juror 2 based on his age and experience ‚made no
sense,‛ the prosecutor’s reason qualified as legitimate because it
did not deny equal protection. The trial court considered Flores’s
evidence of discrimination and the State’s proffered explanation,
then found the State’s motives legitimate. That finding does not
constitute clear error. We therefore affirm the trial court’s
decision with respect to the prosecution’s strike of Juror 2.
2. Juror 3
¶36 The prosecutor struck Juror 3 because ‚he was involved
in a protective order hearing a couple of years ago‛ and a
‚domestic violence history‛ was not part of ‚the makeup‛ she
sought in potential jurors. During jury selection, Flores argued
that the prosecutor’s reason for striking Juror 3 was pretextual.
On appeal, Flores argues that under State v. Jensen, peremptory
strikes based on a potential juror’s past involvement with
protective orders are gender-based and thus discriminatory. See
2003 UT App 273, 76 P.3d 188.
¶37 During voir dire, the trial court asked the potential jurors
if they had ‚ever been called to testify as a witness in a civil or
criminal case.‛ Juror 3 raised his hand and stated that he had
been called as a witness in a civil protective-order case several
years before.
¶38 Though the mention of a protective order during voir dire
superficially links the present case to Jensen, Jensen differs from
this case in a critical way. In Jensen, the prosecutor struck three
20120438-CA 15 2015 UT App 88State v. Flores
men from the venire. Id. ¶ 2. During voir dire, each man had
mentioned past involvement with protective-order cases. Id. The
prosecutor referred to that involvement in explaining her
decision to strike the men. Id. She continued, ‚*L+ogically I
assumed that usually [men involved in protective-order cases]
would be on defendant’s side,‛ because men were ‚more than
likely‛ the respondents in protective-order cases. Id. The trial
court found the prosecutor’s explanation gender-neutral and
denied Jensen’s Batson challenge. Id. But this court reversed,
concluding ‚as a matter of law that the prosecution did not
provide a gender-neutral explanation for the two strikes in
question.‛ Id. ¶ 15. We emphasized that the prosecutor’s
explanation relied on a gender stereotype: men are more likely
than women to be respondents in protective-order cases because,
presumably, men are more prone to commit domestic violence.
Id. ¶ 16. We concluded that ‚any use of gender in the jury
selection process‛ violates the equal protection clause. Id. ¶¶ 16–
17.
¶39 Though the prosecutor here explained that she sought to
exclude jurors who had been ‚involved in a protective-order
hearing,‛ she did not link involvement with protective-order
cases to Juror 3’s gender. During voir dire, Juror 3 stated only
that he had served as a witness in a protective-order case. Unlike
the prosecutor in Jensen, the prosecutor here expressed no
further assumptions about Juror 3’s role in the protective-order
case based on his gender.
¶40 The relationship between a juror’s involvement in a
protective-order hearing and the issues in this case remains
unclear: as the prosecutor acknowledged, ‚domestic violence
would not have been *at issue+ in this case.‛ But as we explained
above, Batson’s second step does not require a reason that makes
sense. It requires only ‚a reason that does not deny equal
protection.‛ Purkett v. Elem, 514 U.S. 765, 769 (1995) (per curiam).
Unlike the prosecutor in Jensen, the prosecutor here did not link
protective orders and gender. Her reason thus did not deny
Juror 3 equal protection of the law. The trial court therefore did
not clearly err by finding the State’s reasoning legitimate.
20120438-CA 16 2015 UT App 88State v. Flores
Accordingly, we affirm the trial court’s decision with respect to
the prosecution’s strike of Juror 3.9
3. Juror 4
¶41 The prosecutor struck Juror 4 because she felt ‚there was
something unsettling for him about being‛ a juror in Flores’s
case. She acknowledged that she did not know ‚if it was the
particular subject matter‛ that appeared to trouble Juror 4 ‚or
just being *in court+ as a juror altogether.‛ The prosecutor
seemed to base her concerns on Juror 4’s expressions or
demeanor: ‚I have been watching the faces of the jurors during
jury selection and I don’t pretend to be able to accurately read
faces but just the expression that I’ve seen on him, I was
concerned about his level of—felt that he was somewhat offput
by the case.‛ After Flores argued that her rationale ‚could be
said in every single case with respect to every single juror,‛ the
prosecutor countered, ‚This is jury selection. We have
peremptories for a reason and sometimes I do get to just react on
my gut level to a potential juror.‛
¶42 Flores may well be correct about the prosecutor’s
explanation for striking Juror 4—the explanation could feasibly
be used ‚in every single case with respect to every single juror.‛
But that objection runs to Batson, not to the trial court’s ruling
here. And despite the fears Flores expresses, we disagree that
‚there would never be a remedy under Batson‛ if a fungible
9. Flores further argues that the prosecutor’s reason for striking
Juror 3 was pretextual, as evidenced by the prosecutor’s failure
to strike a female juror ‚with actual domestic violence
experience.‛ But the trial court was in the best position to gauge
whether the reason was pretextual, and the court found no
pretext. We defer to that judgment unless the pretext is clear.
State v. Higginbotham, 917 P.2d 545, 548 (Utah 1996). That the
prosecutor failed to strike a female juror who shared this one
characteristic does not make the pretext clear.
20120438-CA 17 2015 UT App 88State v. Flores
subjective explanation allows the prosecutor to pass through
Batson’s second stage.
¶43 In practice, a prosecutor’s vague explanation will in some
cases overcome a Batson challenge. In other cases, it will not. The
outcome depends on whether the evidence provided by the
Batson challenger in stage one, weighed in context against the
prosecutor’s explanation in stage two, convinces the trial court
that the prosecutor’s strikes were based on purposeful
discrimination. See Snyder v. Louisiana, 552 U.S. 472, 485 (2008).
Unless the prosecutor expressly acknowledges basing her strike
on race or gender, no stage-two rationale necessarily dooms the
prosecutor to stage-three defeat. As the United States Supreme
Court explained in Miller-El v. Dretke, ‚peremptories are often
the subjects of instinct, and it can sometimes be hard to say what
the reason *for exercising a peremptory+ is.‛ 545 U.S. 231, 252
(2005). If a prosecutor chooses to base a peremptory challenge on
subjective factors, she will ‚stand or fall on the plausibility of the
reasons‛ given. Id.¶44 Because trial courts view ‚strikes made solely on ‘gut
instinct’ or the demeanor of a juror . . . more suspiciously,‛ those
courts are more likely to reject such a vague explanation for a
strike. See State v. Rosa-Re, 2008 UT App 472, ¶ 8 n.3, 200 P.3d
670. But the task of gauging the plausibility of a prosecutor’s
explanation falls primarily on the trial court. Appellate courts
may on occasion conclude as a matter of law that a prosecutor
did not provide a gender-neutral explanation in the second
Batson stage. See State v. Jensen, 2003 UT App 273, ¶ 15, 76 P.3d
188. Or appellate courts may conclude that the proffered
nondiscriminatory reasons for a strike ‚are so far at odds with
the evidence that pretext is the fair conclusion.‛ See Dretke, 545
U.S. at 234. But because a Batson determination turns largely on
the evaluation of credibility, we accord the trial court’s Batson
findings ‚great deference.‛ Batson v. Kentucky, 476 U.S. 79, 98
n.21 (1986).
¶45 Here, though the prosecutor relied in part on her gut
reaction to justify striking Juror 4, her rationale did not deny
20120438-CA 18 2015 UT App 88State v. Flores
Juror 4 equal protection and is not ‚so far at odds with the
evidence that pretext is the fair conclusion.‛ See Dretke, 545 U.S.
at 234. We therefore defer to the trial court’s assessment of the
prosecutor’s credibility and its conclusion that Flores failed to
meet his ‚ultimate burden of persuasion regarding
*discriminatory+ motivation.‛ See Purkett, 514 U.S. at 768. We
thus affirm the trial court’s decision with respect to the
prosecution’s strike of Juror 4.
III. Cumulative Error
¶46 Finally, Flores contends that the trial court’s alleged errors
during jury selection undermine confidence in the verdict and
thus constitute cumulative error. We will reverse under the
cumulative-error doctrine only if the cumulative effect of several
errors undermines our confidence that a fair trial was had. State
v. Dunn, 850 P.2d 1201, 1229 (Utah 1993). But the cumulative-
error doctrine cannot be applied here. Flores ‚has failed to show
that any of the trial court’s actions amount to error,‛ much less
that the cumulative effect of any errors should undermine our
confidence in the verdict. See State v. Killpack, 2008 UT 49, ¶ 56,
191 P.3d 17.
CONCLUSION
¶47 The trial court’s decision to limit Flores’s religious-
affiliation voir dire questioning does not constitute an abuse of
discretion. And the trial court did not clearly err in denying the
Batson challenge. We therefore affirm.
ON PETITION FOR REHEARING
¶48 After issuance of our opinion in this case, Flores filed a
petition for rehearing raising two issues. We deny the petition
for rehearing for reasons explained below.
20120438-CA 19 2015 UT App 88State v. Flores
¶49 First, the Petition for Rehearing asserts that our opinion
impermissibly relies on ‚semantics.‛ We do not believe it does.
We can only review the trial court’s refusal to ask the question
Flores requested. And although the trial court invited Flores to
‚be more detailed about the specific question,‛ Flores repeated
that he wanted the trial court to ask prospective jurors’
‚religious affiliation.‛ The trial court declined to ask the
question, perhaps because the question seemed to approach the
prohibition contained in article I, section 4 of our constitution, or
perhaps because defense counsel himself stated that a Utah
statute ‚does prohibit strikes based on religious affiliation.‛ See
Utah Code Ann. § 78B-1-103(2) (LexisNexis 2008) (‚A qualified
citizen may not be excluded from jury service on account
of . . . religion . . . .‛).
¶50 In any event, the trial court explored Flores’s expressed
concern—one shared by the prosecution—that jurors might give
more or less weight to the testimony of LDS clergy members:
Also, there will be, it’s anticipated that there
are going to be members of religious organizations
or clergy, religious leaders who are testifying at
this trial. I previously have given you an
instruction that you should judge the credibility of
witnesses of law enforcement the same way that
you would weigh the testimony of any other
witnesses regardless of their job or position in the
community. The same question applies with
respect to clergy or other religious leaders. Do you
need—you need to judge the credibility of a clergy
member or religious leader the same way that you
would judge any other witness regardless that
person’s position in the community. The question
is, do any of you feel that you would be unable to
follow that direction as it relates to religious
leaders or clergy and not be able to sit as a fair and
impartial juror in this case? If so, please raise your
hand.
20120438-CA 20 2015 UT App 88State v. Flores
We do not agree that the trial court’s inquiry amounted to
nothing more than the ‚stark little exercise‛ condemned in State
v. Saunders, 1999 UT 59, ¶ 34, 992 P.2d 951.10 Flores contends that
in not asking prospective jurors their religious affiliation the trial
court abused its discretion. ‚An abuse of discretion occurs if the
. . . court’s actions are inherently unfair or if we conclude that no
reasonable [person] would take the view adopted by the . . .
court.‛ State v. Arguelles, 2003 UT 1, ¶ 101, 63 P.3d 731 (alteration
in original) (citations and internal quotation marks omitted).
Under this standard, and on the record before us, we cannot
agree that the trial court abused its discretion.
¶51 The Petition for Rehearing also takes issue with our
statement that ‚mounting a successful Batson challenge on
appeal verges on the impossible.‛ Supra ¶ 28. Flores does not
contend that the opinion misstates the principles to be applied in
a Batson case in Utah, nor does it. Nor does our characterization
suggest that appellate Batson challenges never succeed.
Obviously, they sometimes do. See, e.g., Miller-El v. Dretke, 545
U.S. 231, 266 (2005); State v. Valdez, 2004 UT App 214, ¶ 30, 95
P.3d 291, rev’d on other grounds, 2006 UT 39, 140 P.3d 1219.
Finally, to the extent Flores seeks to distinguish Utah law from
federal law on this question, we see no basis for the distinction
here. Flores’s appeal alleges a Batson violation, not a violation of
the Utah Constitution separate from Batson, J.E.B., and their
progeny. No state constitutional claim was before us on this
appeal. See State v. Worwood, 2007 UT 47, ¶ 19, 164 P.3d 397.
¶52 The petition for rehearing is accordingly denied.
____________
10. ‚Although the lead opinion in State v. Saunders, 1999 UT 59,
992 P.2d 951, is a plurality opinion, a reading of all the justices’
opinions in that case reveals that we cite herein only to portions
of the lead opinion that enjoyed majority support.‛ Depew v.
Sullivan, 2003 UT App 152, ¶ 11 n.3, 71 P.3d 601.
20120438-CA 21 2015 UT App 88