Darryl Tolbert v. James H. Gomez, Director William Duncan, Warden Attorney General of the State of California

190 F.3d 985, 99 Daily Journal DAR 8620, 99 Cal. Daily Op. Serv. 6757, 1999 U.S. App. LEXIS 19709, 1999 WL 631507

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 20, 1999
• Docket: 97-55004
• Status: Published

Opinions

Opinion by Judge TROTT; Concurrence by Judge MICHAEL DALY HAWKINS.

TROTT, Circuit Judge:

On December 18, 1992, Tolbert was convicted of first degree robbery. He was sentenced to California state prison for thirteen years. The California court of appeal affirmed his conviction. His petition for rehearing as well as his petition for review before the California Supreme Court were denied. Tolbert, a black African-American male, then filed a federal petition for writ of habeas corpus attacking the prosecutor’s use of a peremptory challenge to remove a black prospective juror. The district court denied his petition, and he appealed. The case was then heard at this panel’s request by an en banc court to resolve a conflict in the law of our circuit, Tolbert v. Page, 182 F.3d 677 (9th Cir.1999) (en bane), and returned to us for a decision on the merits. We now affirm the district court.

I

Background

During voir dire, the prospective black juror at issue reported that both he and his sister had been the victims of theft crimes. He expressed a preference for stricter gun control, and stated he had served as a juror in a case resulting in a hung jury due to lack of sufficient evidence. At the end of the trial court’s questioning, the prospective juror, Edward Robertson, asked if he could speak with the judge. At the bench, Robertson stated:

Oh boy. It is something that I feel strongly about. And in listening to all the questioning that you did of all the jurors and so forth you asked about, you know, how they felt about police and so forth like that, but as I sat there I was curious as to why we did not ask anything about their race. And to me this is a highly charged issue nowadays and it just concerns me whether or not an individual can look at an individual and not have predetermined views as to whether or not a defendant is guilty based on their race or how they personally feel.

Now my personal opinion for myself I am honest. I can ignore this, but put that aside, but I am highly concerned about it. I am dealing with it every day, and it is a very subtle thing, but it is probably American culture. I think you need to bring that out. As long as you are bringing it out and know that it is there then you are okay you can work with it.

The court responded by explaining to Robertson that the case did not concern race and to bring it up would likely confuse prospective jurors. Robertson stated he thought it was important to express his concerns to the judge, but claimed he could be fair in this case. Before returning to his seat, Robertson stated, “Also, I glanced at the jurors to see what the composition of the jury was and it seemed to be between American, Indian, Hispanic, female, male, so I think along those lines it should be adequate.” When asked again whether he could be fair and impartial, Robertson answered, “Yes, I think so.”

The next day, the prosecutor exercised her second peremptory challenge against Robertson. Defense counsel immediately made a Wheeler motion. In California, a Wheeler motion is the procedural equivalent of a federal Batson challenge. See People v. Jackson, 10 Cal.App.4th 13, 12 Cal.Rptr.2d 541, 545 n. 5 (1992) (citing People v. Turner, 42 Cal.3d 711, 230 Cal.Rptr. 656, 659, 726 P.2d 102 (1986)). In support of the motion, counsel pointed out that both defendants were black males, and that the challenged juror, Robertson, was the only black male in the jury venire. The court opined that the challenge was based upon Robertson’s comments at the bench from the day before. The court also stated that counsel would have to make a prima facie showing beyond the fact that the challenged juror was black.

To establish a prima facie case, defense counsel argued that there was nothing wrong with Robertson and that many people would ask questions regarding race issues if given the opportunity. Further, defense counsel argued that Robertson’s remarks could not be separated from the fact of his race, and, therefore, that the prosecution’s challenge violated the Equal Protection Clause. The trial court determined that Robertson’s comments provided a sufficient reason to exercise a peremptory challenge. The court denied the Wheeler motion on the basis that defense counsel had failed to establish a prima facie case of discrimination. The court said,

I don’t think there has been a sufficient showing for prima facie in any case. Based on the responses given by Mr. Robertson yesterday afternoon I would think those would be sufficient reasons to exercise a peremptory, but I don’t think prima facie [sic] has been shown. I will deny the Wheeler motion at this time.

The prosecutor was not asked to justify her removal of Robertson.

II

Discussion

A Batson challenge involves a three-step analysis. First, the movant must make a prima facie showing that the prosecution has engaged in racially discriminatory use of a peremptory challenge. Batson v. Kentucky, 476 U.S. 79, 96-97, 106 S.Ct. 1712, 90 L.Ed.2d 69. Second, once the trial court decides a prima facie case has been established, the burden shifts to the prosecutor to articulate a race-neutral explanation for the challenges. Id. at 97-98, 106 S.Ct. 1712. Third, the trial court must determine whether the defendant has established purposeful discrimination. Id. at 98, 106 S.Ct. 1712. If the defendant fails to establish a prima facie case, the burden does not shift to the prosecution, and the prosecutor is not required to offer an explanation for the challenge. Id. at 96-97, 106 S.Ct. 1712.

A. Elements of a Prima Facie Case

In order to establish a prima facie case of discrimination, the defense must show: (1) the defendant is a member of a cognizable racial group; (2) the prosecution has removed members of such a racial group; and (3) circumstances raise an inference that the challenges were motivated by race. Batson, 476 U.S. at 96, 106 S.Ct. 1712.

In this case, Tolbert has established that he and the challenged juror were African-American, thereby satisfying the first two requirements of a prima facie case.¹ Tol-bert also needed to show, however, that the facts and circumstances raised an inference of prosecutor’s discriminatory motive — the third requirement of a prima facie case.

Tolbert need not have shown that the prosecution engaged in “a pattern of discriminatory strikes against more than one prospective juror.” United States v. Vasquez-Lopez, 22 F.3d 900, 902 (9th Cir.1994). This circuit has held that the striking of only one prospective juror with discriminatory purpose violates the Constitution. Id. (citations omitted). However, the striking of one juror of a cognizable racial group does not by itself raise an inference of discriminatory purpose. Id. Instead, the trial court must consider the totality of relevant circumstances. Id.; United States v. Chinchilla, 874 F.2d 695, 698 (9th Cir.1989). The trial judge, experienced in supervising voir dire, is in the unique position of observing the voir dire firsthand, as well as the prosecutor’s questions and statements during examination, an activity that may support or refute an inference of discriminatory motive. See, e.g., Batson, 476 U.S. at 97, 106 S.Ct. 1712; Johnson v. Campbell, 92 F.3d 951, 953 (9th Cir.1996).

The trial court here ruled that Tolbert had not established a prima facie case of discriminatory purpose. The trial court explicitly concluded that the prosecutor was justified in challenging the prospective juror on the basis of the comments the juror made to the judge the day before. On appeal, Tolbert now contends that the trial court erred, and that the district court, in denying habeas relief, applied the wrong standard of review.

B. Habeas Standard of Review

? as an en banc court, we have now determined that on habeas we review deferentially, not de novo, a state trial court’s ruling on whether a criminal defendant has established a prima facie case of prosecutorial discrimination in the exercise of a peremptory challenge. Tolbert, 182 F.3d at 685. In so doing, we apply the “presumption of correctness” under 28 U.S.C. § 2254(d) (1995) to the state trial court’s determination that Tolbert failed to establish a prima facie case of discrimination. Id.

C. The District Court Correctly Determined that Tolbert Failed to Overcome the Presumption that the State Trial Court Correctly Found No Establishment of a Pri-ma Facie Case of Discrimination

Tolbert contends that Robertson was an unexceptional juror whose answers to questions during voir dire did not substantially differ from those answers offered by jurors who were eventually chosen to sit. Tolbert notes that Robertson’s preference for stricter gun control was shared by three other jurors who sat on the jury, and that Robertson’s past service on a hung jury was an experience shared by another juror eventually chosen. The only strong distinction between Robertson and those jurors left unchallenged was his unusual request to approach the bench in order to express his strong concerns regarding racial prejudice.

Challenging a prospective juror on the basis of his expressed opinions about the judicial system does not violate Batson. United States v. Fike, 82 F.3d 1315, 1320 (5th Cir.1996) (“Batson does not forbid striking a juror who holds a particular opinion about the U.S. justice system. Rather, it forbids striking jurors based on their race.”). In this case, the trial court articulated a reasonable view of the prosecution’s peremptory challenge of Robertson related to his expressed views on the importance of race in the evaluation of individual guilt.

Tolbert argues that striking Robertson on the basis of his opinions on race was equivalent to striking him on the basis of his race. We respectfully disagree. The assumption that race and an opinion on race are inseparable is antithetical to the very type of racial stereotyping that Batson forbids. Tolbert simply has not shown that Robertson’s concern regarding the potential of racist attitudes of juries is “a characteristic that is peculiar to any race.” Purkett v. Elem, 514 U.S. 765, 769, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (quoting EEOC v. Greyhound Lines, Inc., 635 F.2d 188, 190 n. 3 (3d Cir.1980)). Robertson’s views about racial attitudes are shared by many not of his race or belonging to any racial minority. Thus, having failed to establish that Robertson’s opinions about the importance of race was peculiar to his race, or that the opinions stood as a proxy for it, defense counsel did not raise even an inference that the prosecutor’s challenge was based on Robertson’s race, thereby violating the Equal Protection Clause. Accordingly, because nothing in this record vanquishes the presumption of correctness to which the state trial court’s decision is entitled, the district court properly determined that Tolbert had not established a prima facie case of discriminatory use of a peremptory challenge.

AFFIRMED.

1 . Tolbert also argues that his Batson challenge may be characterized as an exclusion of a black male, not simply a black person from the jury venire. The district court held that, even if it were to conclude that “ ‘African-American men' is a cognizable group for Bat-son purposes, that determination would be a new rule which could not be applied retroactively to petitioner’s case.” Whether the cross-section of gender and race proposed by Tolbert constitutes a cognizable class is irrelevant to this case. The district court properly found that the defendant was a member of a cognizable racial group and the prosecution removed another member of this cognizable group. Thus, it is irrelevant whether defendant and the venireperson were also members of another cognizable group, i.e., African-American males.