People v. Austin

549 P.3d 977

2024 CO 36

The PEOPLE of the State of Colorado, Petitioner

v.Sterling Dwayne AUSTIN, Respondent

Supreme Court Case No. 23SC75

Supreme Court of Colorado.

June 3, 2024

Certiorari to the Colorado Court, of Appeals, Court of Appeals Case No. 19CA1355

Attorneys for Petitioner: Philip J. Weiser, Attorney General John T. Lee, First Assistant Attorney General Joshua J. Luna, Assistant Attorney General Denver, Colorado

Attorneys for Respondent: Shulman Chase LLC Joseph Chase Denver, Colorado

Attorneys for Amici Curiae ACLU of Colorado, Roderick and Solange MacArthur Justice Center, Fred T. Korematsu Center for Law and Equality, Colorado Hispanic Bar Association, Asian Pacific American Bar Association of Colorado, South Asian Bar Association of Colorado, and Sam Cary Bar Association: Nelson Mullins Riley & Scarborough LLP Mark T. Clouatre Blake A. Gansborg Christina Lehm Denver, Colorado Timothy R. Macdonald Sara Neel Emma Mclean-Riggs Denver, Colorado Robert. S. Chang Seattle, Washington

Attorneys for Amici Curiae Colorado Women’s Bar Association, Colorado Lesbian Gay Bisexual Transgender Bar Association, and Colorado Office of the Alternate Defense Counsel: Johnson & Klein, PLLC Gail K. Johnson Boulder, Colorado

En Banc

JUSTICE HOOD delivered the Opinion of the Court, in which CHIEF JUSTICE BOATRIGHT, JUSTICE MÁRQUEZJUSTICE GABRIEL, JUSTICE HART, JUSTICE SAMOUR, and JUSTICE BERKENKOTTER joined.

JUSTICE HOOD delivered the Opinion of the Court.

¶1 This opinion serves as a companion to People v. Johnson, 2024 CO 35, 549 P.3d 985 ("Johnson II"), which we also announce today. Because our decision in Johnson, II, the lead case, contains a detailed discussion of the law governing equal protection and discrimination in jury selection under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), we do not repeat it here. See Johnson II, ¶¶ 9–22. And, consistent with our reasoning in Johnson II, we reverse the judgment of the court of appeals, which held that the prosecution violated Sterling Dwayne Austin’s rights under Batson, People v. Austin, No. 19CA1355, ¶ 7 (Dec. 22, 2022), and remand the case for further proceedings consistent with this opinion.

I. Facts and Procedural History

¶2 Austin was convicted of first degree murder for killing his girlfriend. He maintains that she died of a drug overdose.

¶3 Austin’s first trial ended in a mistrial when the jurors were unable to reach a unanimous verdict. Before jury selection in the second trial resulting in the conviction at issue now, Austin asked the court to use a special questionnaire that included questions about implicit bias and race, "[d]ue to concerns of implicit and explicit bias affecting the outcome of this case." The court, denied the request.

¶4 At the end of the attorneys’ questioning of the potential jurors, the prosecutor used a peremptory strike to excuse Juror 32. Austin raised a Batson challenge to that strike, which the court denied. Juror 32 was excused.

¶5 On appeal, Austin raised four issues. Austin, ¶ 6. The division addressed only one of them, concluding that the trial court’s erroneous denial of Austin’s Batson challenge as to Juror 32 entitled Austin to a new trial. Id. at ¶ 7.

¶6 We agreed to review this decision.¹

II. Analysis

[1–6] ¶7 As we explain in Johnson II, a criminal defendant’s constitutional right to a fair trial before an impartial jury prohibits trial counsel from striking jurors based on race or gender.² ¶¶ 9–17. Accordingly, when one party objects to the other party’s peremptory strike of a juror, the court must determine whether the strike was made with a discriminatory purpose under the three-step Batson framework. Id. at ¶¶ 18–20; see Batson, 476 U.S. at 93-97, 106 S.Ct. 1712.

A. Batson

[7, 8] ¶8 Under Batson, the opposing party must make a prima facie showing that the strike was made with a discriminatory purpose. See Johnson II, ¶ 18; People v. Madrid, 2023 CO 12, ¶ 32, 526 P.3d 185, 193. The striking party can then rebut the inference of discrimination by providing a facially race- or gender-neutral reason for the strike. See Johnson II, ¶ 19; Valdez v. People, 966 P.2d 587, 590 (1998). Lastly, the trial court weighs " ‘all of the circumstances that bear upon the issue of purposeful discrimination" to determine whether the objecting party has carried her burden of proving a discriminatory purpose. Madrid, ¶ 34, 526 P.3d at 193 (quoting People v. Beauvais, 2017 CO 34, ¶ 23, 393 P.3d 509, 517); accord Johnson II, ¶ 20.

[9, 10] ¶9 Each step of the Batson framework is subject to a separate standard of review. People v. Rodriguez, 2015 CO 55, ¶ 13, 351 P.3d 423, 429. We review steps one and two de novo. People v. Owens, 2024 CO 10, ¶ 79, 544 P.3d 1202, 1222. "But we review the trial court’s ultimate step-three conclusion, regarding ‘whether the objecting party proved purposeful discrimination by a preponderance of the evidence,’ for clear error." Johnson II, ¶ 21 (quoting Beauvais, ¶ 2, 393 P.3d at 512). Accordingly, we will defer to the trial court’s conclusion as to purposeful discrimination so long as the record (1) reflects that the trial court weighed all the pertinent circumstances and (2) supports the trial court’s conclusion. People v. Ojeda, 2022 CO 7, ¶ 42, 503 P.3d 856, 865 ("Ojeda II").

[11] ¶10 If we conclude that the trial court erroneously denied the Batson challenge, we must reverse for a new trial. See Owens, ¶ 80, 544 P.3d at 1222. But if the record is insufficient to allow for appellate review, "the appropriate procedure is to remand the case for more detailed findings by the trial court." Craig v. Carlson, 161 P.3d 648, 654 (Colo. 2007); Johnson II, ¶ 22.

B. Additional Facts: Jury Selection at Austin’s Trial

¶11 During voir dire, counsel engaged in three discussions with Juror 32: twice during the prosecutor’s voir dire and once during defense counsel’s. The prosecutor’s first exchange with Juror 32 was about credibility:

[PROSECUTOR]: How do you determine somebody’s credibility?

JUROR [32]: I would base it more on history. So based on the background maybe, based on what the acts were of that person. So I can’t say, well, I know everything about the law because I have no history with studying the law. So I think history and background or who you are, who you present as you are as a person.

[PROSECUTOR]: So maybe some background information?

JUROR [32]: Yes.

[PROSECUTOR]: What they do, who they are?

JUROR [32]: Absolutely. Along with evidence as well. I mean, if the evidence showed that I was enrolled in law school and I’m saying that I went there, the evidence is there.

¶12 Later, the prosecutor and Juror 32 had a similar exchange about police officer credibility:

[PROSECUTOR]: When we’re talking about police officers, can you judge their credibility as you would any other witness in this case?

JUROR [32]: Can you judge—no. So I guess if the question is can I be fair, yes. Again, I’m with [the previous juror]. Not every, you know, police officer is the same. However, if the evidence shows otherwise, then that’s how I can go about judging my credibility with that police officer only.

So I would have to see evidence. You know, if your evidence is you are showing me—like in a traffic stop, if you are showing me that you believe otherwise, then, yes, I’m going to judge you because you are showing me. But if you are not showing me—there is no evidence, then, no. I believe that everyone is a good person until proven otherwise.

[PROSECUTOR]: Okay.

JUROR [32]: Police officers are.

¶13 Later, defense counsel asked the jury panel if "anybody here ever felt like they were the victim of racial prejudice before?" Several jurors raised their hands. After calling on some of the other jurors, defense counsel turned to Juror 32:

[DEFENSE]:[Juror 32], tell us more about your experience.

JUROR [32]: Sure. About three years ago, I got stopped on Arapahoe Road with expired tags on my license plates. Once the officer came up and checked my driver’s license and registration, he kept looking at my driver’s license and saying, Are you sure you live around here when I was a block away from my house. And I said, yes, and he said, Is this your car, and I said, Yes, it’s registered to me, that’s my driver’s license, this is me. And he just kept saying things to make me feel uncomfortable because of, you know, my obvious race.

[DEFENSE]: Okay.

JUROR [32]: He proceeded. He goes and sits in his car. I was a block away from my house, and I was going to my daughter’s middle school at that time, and she had a performance. And I said, Okay, it’s expired tags, I’m not aware, you know, I’m running late to the performance. He went and sat there for [thirty] minutes, came back, I was late.

When I got my tickets for expired plates, I was not fighting the fact that I didn’t have expired plates, but I showed him on my ticket he checked the race was white. And I said, I’m not white, can you please, you know, correct it, and he kind of just gave me a dirty look and said, Here you go, I hope you’re not late to your daughter’s performance, and kind of just walked away. And it made me feel like—well, one, it made me question why are they putting white on my ticket after not only do I have four names that should give it away that I’m, you know, that I am another race, and after the fact that I told him, you know, why were they not corrected, like what are they trying to hide by them checking white on a ticket. It just took me back to projects that I used to do in high school with racial profiling and the Denver Police Department ["DPD"].

[DEFENSE]:Okay. Okay.

JUROR [32]: But, I mean, it often happens to me where I’m always asked at my daughter’s school as well, Are you sure you live here, are you sure, you know, you have this nice house and this nice car, because I live in a predominantly white neighborhood.

[DEFENSE]: Okay. … Tell us more about your experiences with you said projects in school as far as DPD goes and issues with...