People v. Johnson

549 P.3d 985

2024 CO 35

The PEOPLE of the State of Colorado, Petitioner,

v.Raeaje Resshaud JOHNSON, Respondent.

Supreme Court Case No. 22SC852

Supreme Court of Colorado.

June 3, 2024

Certiorari to the Colorado Court of Appeals, Court of Appeals Case No. :19CA768

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

Attorneys for Respondent: The Law Firm of Tanja Heggins, P.C., Tanja Heggins, Denver, Colorado

Attorneys for Amici Curiae ACLU of Colorado, Roderick and Solange MacArthur Jus- tice 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 MÁRQUEZ, JUSTICE GABRIEL, JUSTICE HART, JUSTICE SAMOUR, and JUSTICE BERKENKOTTER joined.

JUSTICE HOOD delivered the Opinion of the Court.

[1] ¶1 The Equal Protection Clause prohibits excluding prospective jurors from jury service based on their race. More simply: "A person’s race simply is unrelated to his [or her] fitness as a juror." Valdez v. People, 966 P.2d 587, 589 (Colo. 1998) (alteration in original) (quoting Batson v. Kentucky, 476 U.S. 79, 87, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)).

¶2 Although the Supreme Court’s three-step Batson framework helps courts enforce equal protection rights in jury selection, it is not always clear when a peremptory strike is based on a juror’s race. Consider, for example, the problem we confront today: A prosecutor explained that her peremptory strike against a Black potential juror was based in part on the juror’s written statement in a questionnaire that law enforcement had been disrespectful to her or those close to her based on race. Was the prosecutor’s strike race-neutral under Batson’s second step? Under the circumstances here, we say yes. Therefore, we reverse the judgment of the court of appeals to the contrary and remand for further proceedings consistent with this opinion.

I. Facts and Procedural History

¶3 Raeaje Resshaud Johnson was charged with one count each of first degree burglary, third degree assault, violation of bail bond conditions, tampering with a witness or victim, and attempting to influence a public servant; and three counts of violation of a protection order for conduct related to a domestic violence incident. A jury pool was assembled for his trial. The potential jurors filled out a written questionnaire before the attorneys selected the jury.

¶4 At the end of the attorneys’ questioning of the potential jurors, the prosecutor exercised a peremptory strike against Juror M. Defense counsel challenged this strike under Batson as violating equal protection. The prosecutor explained that the strike was based on (1) Juror M’s questionnaire response in which she described "many" instances when law enforcement had been "disrespectful due to certain racial identities," and (2) Juror M’s statements that she would wonder about a defendant’s past actions in domestic violence cases. The court sustained the strike and excused Juror M.

¶5 The jury acquitted Johnson of attempting to influence a public servant and convicted him of the remaining counts.

¶6 On appeal, Johnson alleged numerous trial errors, including the trial court’s denial of his Batson challenge to the prosecutor’s peremptory strike of Juror M. People v. Johnson, 2022 COA 118, 523 P.3d 992. The division determined that the prosecutor had offered both race-based and race-neutral reasons for the strike. Id. at ¶ 6, 523 P.3d at 997. To resolve whether the strike demonstrated purposeful discrimination, the division adopted a "per se" approach. Id. at ¶ 7, 523 P.3d at 997. Under this approach, a raceneutral reason won’t save an otherwise improper strike from a Batson challenge. People v. Ojeda, 2019 COA 137M, ¶ 18, 487 P.3d 1117, 1122 ("Ojeda I"). The division therefore concluded that the trial court had erred by denying Johnson’s Batson challenge to the prosecutor’s strike of Juror M, reversed his convictions, and remanded for a new trial. Johnson, ¶ 1, 523 P.3d at 996.

¶7 We agreed to review this decision.¹

II. Analysis

¶8 We begin by explaining the constitutional context in which Batson arose. We then outline the Supreme Court’s three-step Batson framework. After noting the different standards of review applicable to each step of Batson, we review what occurred here. Lastly, we consider whether a court should use a per se or a substantial-motivating-factor approach to resolve Batson challenges when the striking party offers both race-based and race-neutral reasons.

A. Criminal Trial Rights

[2, 3] ¶9 "The due process clauses of the United States and Colorado constitutions guarantee every criminal defendant the right to a fair trial." Morrison v. People, 19 P.3d 668, 672 (Colo. 2000); see also U.S. Const. amends. VI, XIV; Colo. Const. art. II, §§ 16, 25. An essential component of this guarantee is the right to an impartial jury. Morrison, 19 P.3d at 672; accord Howard-Walker v. People, 2019 CO 69, ¶ 23, 443 P.3d 1007,1011.

[4] ¶10 To ensure an impartial jury, courts "must exclude from the jury persons who are prejudiced or biased as well as those who are ‘unwilling or unable to accept the basic principles of criminal law and to render a fair and impartial verdict based upon the evidence admitted at trial and the court’s instructions.’ " Marko v. People, 2018 CO 97, ¶ 20, 432 P.3d 607, 613 (quoting Morrison, 19 P.3d at 672); see also § 16-10-103(l)(j), C.R.S. (2023). Voir dire helps counsel identify potential bias and helps the court to exclude jurors who may threaten a defendant’s fair-trial rights. See People v. Rodriguez, 914 P.2d 230, 260 (Colo. 1996), as modified on denial of reh’g (Apr. 15, 1996); Vigil v. People, 2019 CO 105, ¶ 24, 455 P.3d 332, 338 ("[T]he ultimate aim of jury selection is to produce an unbiased and impartial jury.").

¶11 Colorado law provides two ways a party may excuse a potential juror. Crim. P. 24. First, a party may challenge a juror "for cause" by providing any of the statutorily provided bases for disqualification, which generally relate to implied or actual conflicts of interest or the juror’s inability to be fair and impartial. Crim. P. 24(b)(1); § 16-10-103(1); see also Flowers v. Mississippi, 588 U.S. 284, 293, 139 S.Ct. 2228, 204 L.Ed.2d 638 (2019). Second, a party may use a peremptory strike, which allows the party to excuse a potential juror for almost any reason—"no questions asked." Flowers, 588 U.S. at 293, 139 S.Ct. 2228; see also Crim. P. 24(d); § 16-10-104, C.R.S. (2023).

[5] ¶12 But the Equal Protection Clause sometimes interposes questions as it seeks "to eliminate all official state sources of invidious racial discrimination in the States." Loving v. Virginia, 388 U.S. 1, 10, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). It "protects not just defendants, but the jurors themselves." Miller-El v. Dretke, 545 U.S. 231, 270, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005) (Breyer, J., concurring). After all, "[o]ther than voting, serving on a jury is the most substantial opportunity that most citizens have to participate in the democratic process." Flowers, 588 U.S. at 293, 139 S.Ct. 2228. And although "[d]efendants are harmed … when racial discrimination in jury selection compromises the right of trial by impartial jury, … racial minorities are harmed more generally, for prosecutors drawing racial lines in picking juries establish ‘state-sponsored group stereotypes rooted in, and reflective of, historical prejudice.’" Miller-El, 545 U.S. at 237–38, 125 S.Ct. 2317 (citation omitted) (quoting J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 128, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994)).

[6] ¶13 Under the Equal Protection Clause, a defendant is therefore "entitled ‘to require that the State not deliberately and systematically deny to members of his race the right to participate as jurors in the administration of justice.’ " Washington v. Davis, 426 U.S. 229, 239, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) (quoting Alexander v. Louisiana, 405 U.S. 625, 628–29, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972)). This protection can sometimes clash with a party’s "blanket discretion to peremptorily strike prospective jurors for any reason," Flowers, 588 U.S. at 293, 139 S.Ct. 2228, because it prohibits a party from using a peremptory strike to excuse a juror based on race or gender. See J.E.B., 511 U.S. at 128–29, 114 S.Ct. 1419; People v. Beauvais, 2017 CO 34, ¶ 20, 393 P.3d 509, 516.

¶14 But parties often rely on intuition or "gut feelings" in choosing a jury. This can sometimes bring false stereotypes or even unconscious bias into play. See Miller-El, 545 U.S. at 252, 125 S.Ct. 2317; Batson, 476 U.S. at 106-07, 106 S.Ct. 1712 (Marshall, J., concurring); see also Antony Page, Batson’s Blind-Spot: Unconscious Stereotyping and the Peremptory Challenge, 85 B.U. L. Rev. 155, 207–10 (2005). It also allows parties to use peremptory strikes to cloak purposeful discrimination. For these reasons, they have long been controversial. Miller-El, 545 U.S. at 266–67, 125 S.Ct. 2317 (Breyer, J., concurring) ("The only way to ‘end the racial discrimination that peremptories inject into the jury-selection process’ … [is] to ‘elimina[e] peremptory challenges entirely.’ " (second alteration in original) (quoting Batson, 476...