State v. Henderson
This text of 829 P.2d 1025 (State v. Henderson) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
This case is before us a second time. Defendant, a black man, was convicted of raping, ORS 163.375, and kidnapping, ORS 163.235, a white woman. During voir dire, the prosecutor exercised a peremptory challenge, thereby excusing DuBoise, the only black venireman. Defendant’s attorney objected and requested that a neutral reason be given. The trial court accepted the challenge as made, resulting in an all white jury. Defendant was convicted. On the first appeal, 94 Or App 87, 764 P2d 602, we held that defendant had made a prima facie showing under Batson v. Kentucky, 476 US 79, 96-97, 106 S Ct 1712, 90 L Ed 2d 69 (1986), of purposeful discrimination and remanded the case to the trial court “to determine whether the prosecution had a neutral explanation related to this case, consistent with Batson, for excusing the juror.” 94 Or App at 93. On remand, the trial court conducted a hearing, almost two years after the event, and accepted the Deputy District Attorney’s statements relating to his challenge, from which it concluded that “a neutral explanation has been provided.” The judgment of conviction was reinstated. This appeal followed.
The neutral explanation required to rebut an inference of discrimination transforms what would otherwise be a peremptory challenge, for which no explanation need be given, into something between a peremptory challenge and a challenge for cause. Although the explanation need not rise to the level of cause, a prosecutor’s general assertion that merely denies a discriminatory motive or affirms his good faith will not suffice. Batson v. Kentucky, supra, 476 US at 97. A prosecutor may not assume that a juror will be partial to the defendant solely because the two are of the same race. 1 *454 Rather, he “must articulate a neutral explanation related to the particular case to he tried .” Batson v. Kentucky, supra, 476 US at 98. (Emphasis supplied.)
On remand, the deputy district attorney, by way of argument, not by testimony, explained his reasons for the challenge. They are set out in full in the margin. 2 After *455 stating his personal, subjective reactions to the juror, he stated that he really based his challenge on what other deputy district attorneys had done in previous trials with respect to jurors called during the same term. He explained that his office keeps records of juries for each term and that he had them with him when selecting the jury in this case. The first time that DuBoise had been called in another case, defense counsel had excused him, and the prosecutor had noted: “Black. Liked my cir[cumstantial] evid[ence] example. Seemed intelligent.” Although those comments suggest that DuBoise would have been a good juror for the prosecution, the prosecutor added: “I might have bumped.” He did not say why. The second time that he had been called, DuBoise was challenged by the prosecutor, who noted that he had problems with circumstantial evidence, which appears to be inconsistent with the comment in the earlier case. The third time, although DuBoise was not challenged, the prosecutor noted: “Young black machinist; didn’t really like him; seems aggressive toward state.” DuBoise voted for conviction in that case.
Those records, which had been updated after the trial in this case, were admitted in evidence on remand. They show that the deputy district attorney who presented this case noted his challenge to DuBoise, with only one comment: “See previous trials.” In at least two of those, the prosecutors had made specific notes that DuBoise was black. If he had been challenged, even in part, for that reason, reliance on that history does not present a racially neutral reason. In the only criminal case on which DuBoise sat, which was after he had been challenged by the prosecutor in an earlier trial, he voted for conviction.
The state argues that the deputy district attorney stated that he had also challenged a white female prospective juror in this case for the same reason: that is, because other attorneys in his office had challenged her in previous cases. The record shows that she had been called 6 times during that jury term and had been challenged 5 times by the prosecution *456 and once by the defense. In 4 of those cases, the prosecutor explained that he did not like her or did not trust her. The state argues that the prosecution’s motives were not discriminatory if a white panelist sharing the same characteristics as a black was also challenged. That argument seems to be that, because other prosecutors had had a bad feeling or a subjectively adverse reaction to a white juror whom they had challenged, the prosecutor was free to challenge a black juror in this case because other prosecutors had also challenged that juror, noting that he was black. Even if it can be said that the previous challenges were racially neutral, the reason for the challenge in this case had to be, not only neutral, but “related to the particular case to be tried,” not to some other case. If the prosecutor does that, “[t]he trial court then will have the duty to determine if the defendant has established purposeful discrimination.” Batson v. Kentucky, supra, 476 US at 97.
Given the prosecutor’s explicit statement that he had intended to challenge DuBoise before he asked any questions and that he had asked questions only to “make it not appear obvious that he was going to he challenged,” it is clear that his reason for challenging DuBoise was not related to this case and that the other stated reasons based on his voir dire 3 of DuBoise had no bearing on the challenge.
*457 The burden was on the state on remand to overcome the inference that the reasons for challenging DuBoise were racially motivated and to show that the reasons for the challenge were related to this case. The state failed to sustain its burden.
Reversed and remanded for a new trial.
After Batson was decided, the United States Supreme Court decided Powers v. Ohio,_US_, 111 S Ct 1364, 113 L Ed 2d 411 (1991), and Edmonson v. Leesville Concrete Co., Inc.,_US_, 111 S Ct 2077, 114 L Ed 2d 660 (1991). Although the later cases are not directly relevant to this case, they indicate clearly that the Court, rather than limiting Batson, is extending it to the point where peremptory challenges might be a thing of the past in all cases in which a juror who is a member of a minority group is challenged without cause. In Powers, a white defendant convicted of 2 murders was entitled to make a Batson
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Cite This Page — Counsel Stack
829 P.2d 1025, 112 Or. App. 451, 1992 Ore. App. LEXIS 826, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-henderson-orctapp-1992.