State v. Jordan

828 P.2d 786, 171 Ariz. 62, 109 Ariz. Adv. Rep. 48, 1992 Ariz. App. LEXIS 69
CourtCourt of Appeals of Arizona
DecidedMarch 26, 1992
Docket1 CA-CR 90-606
StatusPublished
Cited by12 cases

This text of 828 P.2d 786 (State v. Jordan) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Jordan, 828 P.2d 786, 171 Ariz. 62, 109 Ariz. Adv. Rep. 48, 1992 Ariz. App. LEXIS 69 (Ark. Ct. App. 1992).

Opinions

[64]*64OPINION

TAYLOR, Judge.

Walter Raymond Jordan, Jr. (“defendant”) timely appeals his convictions and sentences for two counts of kidnapping and two counts of first degree murder. For the reasons stated below, we affirm the convictions and the sentences as modified herein.

PROCEDURAL HISTORY

Defendant was indicted on two counts of kidnapping and two counts of first degree murder. Each murder count alleged premeditation and that the homicide occurred in the commission of a felony. The State also filed a sentencing-enhancement allegation of dangerousness. Following a jury trial, defendant was convicted on two counts of first degree murder under a felony murder theory and two counts of kidnapping, class 2 dangerous offenses. Defendant received consecutive life sentences on the first degree murder convictions. Defendant also received consecutive aggravated twenty-one-year sentences on the kidnapping convictions, with these sentences to be served concurrently with the life sentences. Defendant filed a timely notice of appeal.

FACTS

On the evening of June 5, 1989, defendant, his brother Chris Jordan (“Chris”), and Frank Lewis (“Lewis”), were drinking at the Westward Tavern Bar in Phoenix, Arizona. Doris McCleese (“McCleese”) was a bartender there and a friend of all three men. Defendant and Chris were temporarily living in her trailer. Also at the bar that evening were the victims, William Kerr (“Kerr”) and Bob Hawley (“Hawley”).

According to testimony presented at trial, Hawley made a derogatory remark about McCleese and a fight ensued. Defendant, Chris, and Lewis squared off against Kerr and Hawley. The latter two were knocked to the floor and then hit, kicked, and stomped by the other three. The testimony is somewhat conflicting regarding the subsequent events.

Rose Wright (“Wright”), a bar patron, testified that defendant obtained a rope from his truck and that the hands and feet of Kerr and Hawley were tied. Chris and Lewis dragged the victims by their feet from the bar to defendant’s truck. She also testified that defendant gave a knife to Chris and told him to cut Hawley’s throat if he moved. According to Wright, defendant then told her, “You don’t know me and you didn’t see nothing.” She testified that defendant and Chris exchanged T-shirts because Chris’s shirt was bloody. Defendant then went back into the bar to talk to McCleese. When Wright left, Lewis and Chris were gone as well as defendant’s truck. Wright testified, however, that defendant was still in the bar.

McCleese testified that during the fight, defendant went to get the rope from his truck but did not use it to tie up Kerr and Hawley. She said that Lewis dragged the victims to the truck by their feet. She stated she did not see a knife in the bar that evening. She also testified that after defendant and Chris exchanged T-shirts, Chris stayed in the bar with her while defendant and Lewis left in the truck. When the two returned to the bar about an hour later, defendant told her that the. victims throats were cut and that Kerr had been hit in the head with a tire iron. She further testified that defendant threatened to kill her if she reported the crimes.

The two victims were found in a canal on lower Buckeye Road. Blood samples taken from the back of defendant’s pickup truck and the tire iron found in the truck matched the blood types of the victims. The medical examiner determined that the cause of death for both victims was multiple stab wounds.

Detective Shorts of the Maricopa County Sheriff’s Department interviewed defendant after he was arrested and given Miranda warnings. Defendant admitted being involved in the brawl but said that at the end of the fight the victims walked out of the bar. Defendant raises the following issues on appeal:

1. Did the court err in finding that defendant failed to make a prima facie [65]*65case that the State’s peremptory strike of an Oriental juror had a discriminatory purpose?

2. Did the trial court err in admitting certain photographs of each victim?

3. Is defendant entitled to presentence incarceration credit?

DISCUSSION

Peremptory Strike of Minority Juror

A prospective juror on the venire was of Asian descent. The State used a peremptory challenge to strike her from the jury panel. Defendant, a white male, objected, citing Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and requested that the court require the State to explain the basis for its strike. The court denied the request, inviting defendant to make a motion meeting the requirements of Batson when he had “a legal basis, a legal justification” for doing so. The court further stated: “[Ujnder the circumstances of this case, I do not find that there is a reasonable basis for believing that the exercise of the peremptory challenge was in any way or might reasonably be considered to have been in any way related to the race of the juror.”

On appeal, defendant argues that the court erred by not requiring the prosecutor to identify race-neutral reasons for the peremptory strike. Defendant argues that this denial violated the Equal Protection Clause of the Fourteenth Amendment and the defendant’s right to an impartial jury under the Sixth and Fourteenth Amendments to the United States Constitution. The State responds with two arguments. First, the juror was not from a “cognizable” group under Batson. Second, the defendant failed to present a prima facie case of purposeful discrimination.

In Batson, the Supreme Court held that the equal protection clause forbids the State from excluding potential jurors from a jury panel for racially discriminatory reasons. Id. at 89, 106 S.Ct. at 1719. A defendant alleging impermissible exclusion, however, must first make a prima facie showing of purposeful racial discrimination. Id. at 93, 106 S.Ct. at 1721. To establish a prima facie case,

the defendant first must show that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits “those to discriminate who are of a mind to discriminate.” Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. This combination of factors in the empaneling of the petit jury, as in the selection of the venire, raises the necessary inference of purposeful discrimination.

Id. at 96, 106 S.Ct. at 1723 (citations omitted). Upon this requisite showing, the burden shifts to the State to come forward with a racially neutral explanation for the exclusion. Id. at 97, 106 S.Ct. at 1723.

The Supreme Court expanded Bat-son in Powers v. Ohio, — U.S.-, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). In Powers,

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State v. Jordan
828 P.2d 786 (Court of Appeals of Arizona, 1992)

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Bluebook (online)
828 P.2d 786, 171 Ariz. 62, 109 Ariz. Adv. Rep. 48, 1992 Ariz. App. LEXIS 69, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-jordan-arizctapp-1992.