State v. Lucas

18 P.3d 160, 199 Ariz. 366, 341 Ariz. Adv. Rep. 12, 2001 Ariz. App. LEXIS 27
CourtCourt of Appeals of Arizona
DecidedFebruary 13, 2001
Docket1 CA-CR 99-0567
StatusPublished
Cited by46 cases

This text of 18 P.3d 160 (State v. Lucas) 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. Lucas, 18 P.3d 160, 199 Ariz. 366, 341 Ariz. Adv. Rep. 12, 2001 Ariz. App. LEXIS 27 (Ark. Ct. App. 2001).

Opinion

OPINION

GARBARINO, Judge.

¶ 1 The defendant, DeAndre Lavar Lucas, appeals his convictions for attempted sexual assault, sexual abuse of a child under the age of fifteen, and kidnapping. The defendant contends that the trial court erred when, despite defense counsel’s Batson 1 objection, it permitted the prosecutor to peremptorily strike the only African American panel member based on the pretext that he was a “southern male.” We agree and reverse.

¶ 2 On a December evening in 1998, the defendant, who was eighteen years old at the time, attacked the victim, a fourteen-year-old female, and stole her purse and its contents. The victim testified that the defendant had forced her to the ground, attempted to take her purse, touched her breasts, tried to unzip her pants, and choked her until she fainted. She also testified that when she regained consciousness, both the defendant and her purse were gone. Although the defendant admitted that he had attacked the victim, he testified that he was only after the victim’s money and he had made no attempt to kidnap or rape her.

¶ 3 A grand jury indicted the defendant on one count of attempted sexual assault, a class 3 felony and dangerous crime against children, one count of sexual abuse, a class 3 felony and dangerous crime against children, and one count of kidnapping, a class 2 felony and dangerous crime against children. The case proceeded to trial and the jury convicted the defendant as charged.

¶4 The trial court suspended the defendant’s sentence and imposed lifetime probation for the attempted sexual assault and sexual abuse convictions. For the kidnapping conviction, the trial court sentenced the defendant to the presumptive term of seventeen years in prison, with credit for 178 days of pre-sentence incarceration. The defendant filed a timely notice of appeal.

¶ 5 The defendant argues that the State violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution when it peremptorily struck the only African American male juror on the jury panel, in part because he was a southern male. The defendant also urges us to explore his claim that the State’s actions violate the Arizona Constitution. We note that, absent a showing of fundamental error, defense counsel waived any state constitutional violation by failing to raise it at trial. See State v. Eagle, 196 Ariz. 27, 30, ¶ 13, 992 P.2d 1122, 1125 (1998), aff'd, 196 Ariz. 188, 994 P.2d 395, cert. denied, — U.S. — , 121 S.Ct. 102, 148 L.Ed.2d 60 (2000). However, with respect to Batson challenges, even if we were to conclude that the defendant did not waive what he believes to be a state constitutional violation, the protections under our state constitution are no greater than those provided for under the federal constitution. Id. at 31, ¶ 14, 992 P.2d at 1126.

*368 ¶ 6 Turning, then, to the remaining issue, when considering a Batson challenge, we will defer to the trial court’s findings of fact unless clearly erroneous. State v. Harris, 184 Ariz. 617, 618, 911 P.2d 623, 624 (1995). We review de novo the trial court’s application of the law. Ramirez v. Health Partners of S. Ariz., 193 Ariz. 325, 327-28, ¶ 6, 972 P.2d 658, 660-61 (1998) (“Issues involving ... constitutional claims are questions of law subject to this court’s de novo review.”).

¶ 7 In Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam), the United States Supreme Court refined the test for determining whether a juror has been struck for a reason violative of Batson. First, the opponent of the strike must make a prima facie showing of discrimination on the basis of race, gender, or some other protected characteristic. Id. at 767, 115 S.Ct. 1769; J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 144-45, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994). Next, the proponent of the strike must offer a neutral basis for the strike. Purkett, 514 U.S. at 767, 115 S.Ct. 1769. The basis must be more than a mere denial of improper motive, but it need not be “persuasive, or even plausible.” Id. at 768, 115 S.Ct. 1769. After a neutral basis has been offered, the opponent of the strike must persuade the trial court that the proponent’s reason is pretextual and that the strike is actually based on race, gender, or another protected characteristic. Id.

¶ 8 Defense counsel objected to the panel member’s removal on the grounds that he “is the only black male on the entire panel,” “[hje’s educated in the law [and] ... understands the standards,” and “he’s from the south, he understands and knows the stereotypes in which my client’s going to be dealing with.” The prosecutor stated that she wished to remove the venire person because he is a lawyer, and she never allows lawyers on her juries. She also stated that she did not want to have the venire person on the jury because “[h]e’s from the south____I have a problem with males from the south having prejudice against women working,” particularly when they are pregnant, as the prosecutor apparently was at the time of trial. The trial court overruled the defendant’s objection to the State’s strike and concluded that the State’s basis that the panel member was an attorney was proper. The court went on to state, “It’s very seldom that attorneys like to leave an attorney or a judge on a jury panel. And I find that the State’s strike was made for a nondiscriminatory purpose, so I will allow it.” The court did not address the prosecutor’s additional reason for striking the panel member.

¶ 9 The prosecutor offered two grounds for her strike. The first reason given for the strike — that the venire person was an attorney — was a permissible race and gender neutral reason. A neutral explanation for a peremptory strike need not be coupled with some form of objective verification. Eagle, 196 Ariz. at 30, ¶ 11, 992 P.2d at 1125; State v. Henry, 191 Ariz. 283, 286, 955 P.2d 39, 42 (1997); see State v. Trostle, 191 Ariz. 4, 12, 951 P.2d 869, 877 (1997) (refusing to examine “the continued validity of [State v. Cruz, 175 Ariz. 395, 857 P.2d 1249 (1993), and its requirement that explanations be objectively verifiable] in light of ... Purkett’’).

¶ 10 By contrast, the second basis given for the strike — that southern men take a negative view of pregnant women who work — is an unacceptable anecdotal generalization without basis in fact. Cf. Payton v. Kearse, 329 S.C. 51, 495 S.E.2d 205

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Bluebook (online)
18 P.3d 160, 199 Ariz. 366, 341 Ariz. Adv. Rep. 12, 2001 Ariz. App. LEXIS 27, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lucas-arizctapp-2001.