People v. Ojeda

487 P.3d 1117

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Ray OJEDA, Defendant-Appellant.

Court of Appeals No. 15CA1517

Colorado Court of Appeals, Division IV.

Announced September 5, 2019

As Modified on Denial of Rehearing October 3, 2019

Philip J. Weiser, Attorney General, Kevin E. McReynolds, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Elizabeth Griffin, Deputy State Public Defender, Elizabeth Porter-Merrill, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE FOX

¶ 1 Defendant Ray Ojeda appeals the judgment of conviction entered on jury verdicts finding him guilty of various charges. He contends that the trial court erred in denying his Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), challenge when the prosecutor removed a Hispanic prospective juror from the venire. Based on the record before us, we agree that the court's denial of Ojeda's Batson challenge was erroneous. Accordingly, we reverse the judgment of conviction and remand for a new trial. Given this disposition, we need not address Ojeda's remaining challenges.

I. Applicable Facts

¶ 2In 2015, after a six-day trial, a jury found Ojeda guilty of attempted first degree murder, second degree kidnapping, and first degree sexual assault for events that occurred in 1997. Ojeda's trial team advanced a mistaken identity defense and strenuously challenged the prosecution's reliance on old evidence.

¶ 3 During jury selection, the prosecutor first attempted to excuse Juror R.P., a Hispanic male seated in the seventh jury position, for cause based on (1) "the content of his questionnaire"; (2) "remarks that he made in open court"; and (3) "his demeanor." She explained that Juror R.P. expressed a "bias" against the criminal justice system and "visibly showed hesitation" when asked whether he could be fair. Defense counsel objected, noting that the prosecutor was mischaracterizing Juror R.P.’s answers, and highlighted Juror R.P.’s disclosure that he could be objective. Defense counsel added that Juror R.P. was one of the few Hispanic males on the venire.

¶ 4 The court then asked the prosecutor to make a further record concerning the for-cause challenge to prospective Juror R.P. and the prosecutor stated,

With regard to what he put on his [juror] questionnaire, I found it to be significant ... he has devoted his career to ... quality of healthcare for individuals. And that, in my mind, very much dovetailed with [being] ... a man of very great conviction .... He gave our system the lowest rating of anyone who has been asked to offer a score. I believe his score was 4. And when I asked him about the linkage between his low confidence in the system and whether or not he could be fair, he visibly showed hesitation. ... [And,] when you look at that in-court behavior against what is clearly his commitment to his job, in terms of serving people of color and what he talked about in terms of the defendant being a person of color — he is himself a person of color — I thought that the totality of the record indicated that he has a distinctive leaning, that he himself said he would have trouble in listening to the evidence.

¶ 5 Defense counsel immediately responded that the prosecutor had "mischaracterized" Juror R.P.’s answers and noted that Juror R.P. had expressly stated that he could set aside his experiences and "be objective" and that he

clearly indicated he would follow the rules given to him by the Court. He's also one of the few Hispanic men on this entire jury panel, and under Batson, I don't know that it's appropriate to exclude him because he's Hispanic and may have something in common with the defendant in his heritage.

¶ 6 The court denied the prosecutor's for-cause challenge, finding that nothing in Juror R.P.’s feelings or life experiences indicated he would not follow the court's rules or reach a verdict based on the evidence. The court also noted that Juror R.P. is "certainly entitled to believe that people of color are not well-served in our criminal justice or medical system. There's nothing in his answers that those feelings of his life experience will affect his judgment in the case, that he won't follow the rules set forth by the Court. There's a completely inadequate record to challenge him in this case." The prosecutor then requested that the court repeat its ruling "with regard to the Batson issue," and the court clarified that it "didn't really reach [that] issue." Instead, the court expressed that it "didn't think it was a founded challenge, regardless of [Juror R.P.’s] personal ethnicity. I just thought that he had attitudes that he was certainly entitled to have, and that there was not anywhere near a sufficient record that they would affect his ability to be a fair juror." The prosecutor did not question Juror R.P. again before later using a peremptory challenge to excuse Juror R.P.

¶ 7 The prosecutor later used her fifth peremptory challenge to excuse Juror R.P. Defense counsel asserted a Batson challenge because he was "obviously concerned about excusing Hispanic males from the jury." In response, the prosecutor first incorporated her previous record on Juror R.P. (from the earlier for-cause challenge), then offered the following explanation:

To be utterly disclosing, we are pursuing a strategy of trying to select jurors who are establishmentarian, let's say, who are in favor of the system that we have. And that's one of the reasons I used a rate-the-system type of device during my voir dire.

[Juror R.P.] gave our system the lowest rating possible — rather, the lowest rating that anyone had given, which was a number 4, which is a matter of some concern.

[T]he jury is going to hear that there were errors on the part of the police department in terms of not having been able to locate the rape kit in this case within the property bureau for a period of years. I anticipate some very vigorous cross-examination of ... a forensic serologist, in particular, and I anticipate that the defense is going to be very strongly attacking the Denver Police Department, the Denver Police Crime Lab, and that it will really build on the statements that have already been made during jury selection that critique the system as a whole as a way to build reasonable doubt in to secure a not guilty verdict.

And so what [Juror R.P.’s] concerns were about the system — and he said, I have a bias against the system. And so the concerns that we have do not relate in any way to the color of the skin or his national origin, but rather to his stated reservations in that regard when we know what the evidence will be and when we are now getting some pretty strong clues about what the defense will be.

¶ 8 The prosecutor continued by noting the racial composition of the jury box and of the group of prospective jurors recently struck by the defense. She then added:

Your Honor, if I could wrap up with two other thoughts that are very strongly informing our desire to exercise a strike as to [Juror R.P.]. He's a polished, educated, and, I believe, persuasive individual. And because of his presentation in that regard, the concern that we have is that the critique of the criminal justice system that he has talked about, he could be very, very strongly persuasive in the jury room. That's race neutral. We see him as a person who could very much persuade others of the reservations that he has. And given what we anticipate by way of the evidence, that is the basis for attempting to eliminate him.

[And] I anticipate the defense is going to make a very strong charge against the validity and reliability of the DNA results. ... And the fact that the defendant is a Latino male, if the jury is persuaded that there is not a DNA connection between ... the forensic evidence in this case and this defendant, it seems to me that the comments that [Juror R.P.] made about having concerns about racial profiling will really come into play in the sense that I think that he may then steer the jury towards a race-based reason why Mr. Ojeda, you know, was charged in the case, and that is because [Juror R.P.] had talked about racial profiling in conjunction with his other considerations. Since I think that's where the defense is going — you know, we have to forecast at this stage of the game, and those are all of the race-neutral reasons why we believe that a strike is constitutional and not racially motivated as to [Juror R.P.].

¶ 9 Defense counsel responded that "[w]ith respect to [Juror R.P.], I think [the prosecutor] made my argument for me. She's concerned about a race-based argument being made by [Juror R.P.] because he's Hispanic." In explaining why the peremptory challenge was based on race-neutral factors, the court stated:

The Court will deny the challenge for cause as to [Juror R.P.], but there are abundant race-neutral reasons for a peremptory to be exercised. First of all, he too is a victim of a sex assault, as is his wife, and he struck the Court as remarkably unconcerned about those events in his own lifetime. His first thought when there was a discussion of the time [it has] taken to bring this case was that the victim had delayed disclosure. He does have an anti-law enforcement bend, so the Court finds there's a sufficient racially neutral basis for the challenge.

¶ 10 Immediately following the court's ruling, the prosecutor supplemented her record by noting that her notes reflected that when Juror R.P. heard the age of the case, he thought something might have gone wrong, which also caused her "particular concern."

II. Law and Review Standard

¶ 11 The Equal Protection Clause of the Fourteenth Amendment forbids a challenge to a potential juror based solely on race. Batson , 476 U.S. at 89, 106 S.Ct. 1712 ; see also People v. Wilson , 2015 CO 54M, ¶ 10 n.4, 351 P.3d 1126. When a party raises a Batson challenge, the trial court engages in a three-step analysis to assess...