134 Nev., Advance Opinion 1 04
IN THE SUPREME COURT OF THE STATE OF NEVADA
JAMES MARLIN COOPER, __No. 72091
Appellant, !TON D
vs. F aTt
THE STATE OF NEVADA,
Respondent. DEC 2 7 2018
CROWN
Hi CL "RIC
Appeal from a judgment of conviction, pursuant 'to a jury
verdict, of two counts of battery constituting domestic violence and two
counts of child abuse, neglect, or endangerment. Eighth Judicial District
Court, Clark County; David B. Barker, Senior Judge?
Reversed and remanded.
Howard Brooks, Public Defender, and Sharon G. Dickinson, Deputy Public
Defender, Clark County,
for Appellant.
Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson,
District Attorney, Steven S. Owens, Chief Deputy District Attorney, and
William C. Rowles, Deputy District Attorney, Clark County,
for Respondent.
BEFORE CHERRY, PARRAGUIRRE and STIGLICH, JJ.
1-Judge Jessie Elizabeth Walsh presided over the trial in this matter,
and Senior Judge David Barker signed the judgment of conviction.
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OPINION
By the Court, STIGLICH, J.:
The use of a peremptory challenge to remove a potential juror
on the basis of race is a violation of the United States Constitution. The
Supreme Court of the United States has outlined a three-part test to help
courts determine whether a peremptory challenge is improperly based on
race, see Batson v. Kentucky, 476 U.S. 79, 96-98 (1986), and this court has
adopted and utilized this test numerous times. In this opinion, we consider
the first step of the test, specifically what evidence satisfies the prima facie
showing of race-based discrimination. Because we conclude the district
court clearly erred when it found that a prima facie showing was not made,
we reverse and remand for a new trial.
FACTS
The State charged appellant James Cooper with two counts of
child abuse, neglect, or endangerment, and one count each of battery
constituting domestic violence committed by strangulation and battery
constituting domestic violence. The charges stemmed from Cooper's
conduct at an apartment he shared with the victim and her two children.
During jury selection, and after for-cause challenges were
resolved, the State exercised two of its five peremptory challenges to remove
prospective Juror No. 217 and prospective Juror No. 274, both African-American women, the same race as Cooper. At the time the State exercised
these strikes, the venire included 23 prospective jurors, 3 of whom were
African American. Cooper objected to the State's challenges pursuant to
Batson v. Kentucky, 476 U.S. 79 (1986), alleging that the two prospective
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jurors indicated they could be fair and that circumstances evinced a pattern
of strikes against African Americans. The State responded that two
African-American males were excused for cause and that Cooper had not
made out a prima facie case of discrimination. The State argued that it only
had to provide its reason for each of the strikes if the district court found a
prima face showing of discrimination. The district court indicated that it
did not think Cooper could make the prima facie showing, that it believed
Cooper's concern was with the racial make-up of the entire venire, and that
it could think of many reasons why the State would want to strike either of
the two prospective jurors. Without a more specific analysis from Cooper,
the district court denied the Batson challenge.
DISCUSSION
The Equal Protection Clause of the United States Constitution
prohibits any party from utilizing a peremptory challenge to strike a juror
based on race. See Diomampo v. State, 124 Nev. 414, 422,
185 P.3d 1031,
1036 (2008). When an objection has been made to the alleged use of a race-based peremptory challenge, the district court must resolve the objection
utilizing a three-part test. See Batson, 476 U.S. at 93-100; Kaczmarek v.
State, 120 Nev. 314, 332-35,
91 P.3d 16, 28-30 (2004). "First, the opponent
of the peremptory strike must make a prima facie showing that a
peremptory challenge has been exercised on the basis of race." Williams v.
State, 134 Nev., Adv. Op. 83, 429 P.3d 301, 305 (2018) (internal quotation
marks omitted). "Second, if that showing has been made, the proponent of
the peremptory strike must present a race-neutral explanation for the
strike." Id. at 306. The third step consists of the district court "heading]
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argument and determin [ing] whether the opponent of the peremptory strike
has proven purposeful discrimination." Id. We afford great deference to the
district court's findings regarding discriminatory intent, and we will not
reverse "unless clearly erroneous." 2 Kaczmarek, 120 Nev. at 334,
91 P.3d at
30.
The case before us involves the first step—the opponent's prima
facie showing that the challenge was race based. "To establish a prima facie
case under step one, the opponent of the strike must show that the totality
of the relevant facts gives rise to an inference of discriminatory purpose."
Watson v. State, 130 Nev. 764, 775,
335 P.3d 157, 166 (2014). We have held
that the standard for establishing a prima facie case "is not onerous and
does not require the opponent of the strike to meet his or her ultimate
burden of proof under Batson." Id. "Rather, the opponent of the strike must
provide sufficient evidence to permit the trier of fact to draw an inference
that discrimination has occurred." Id. (internal quotation marks omitted).
And "an inference" is "a conclusion reached by considering other facts and
deducing a logical consequence from them." Id. (internal quotation marks
omitted).
2 Cooper argues that this court should review the district court's prima
facie determination de novo. However, we decline to consider this argument
as it was not raised until Cooper's reply brief. See Francis v. Wynn Las
Vegas, 127 Nev. 657, 671 n.7,
262 P.3d 705, 715 n.7 (2011) (stating that
arguments raised for the first time in an appellant's reply brief need not be
considered); see also Watson v. State, 130 Nev. 764, 775 n.2,
335 P.3d 157,
166 n.2 (2014) (acknowledging split of authority as to the standard of review
for step one but declining to address the standard of review because the
parties failed to raise the issue).
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There is no one way to satisfy step one. The question is whether
there is evidence, other than the fact that a challenge was used to strike a
member of a cognizable group, establishing an inference of discriminatory
purpose to satisfy the burden of this first step. See Watson, 130 Nev. at 775-
76, 335 P.3d at 166. "For example, a 'pattern' of strikes against black jurors
included in the particular venire might give rise to an inference of
discrimination." Batson, 476 U.S. at 97. But a pattern is not the only way
to satisfy step one. Watson, 130 Nev. at 775-76, 335 P.3d at 166. Other
evidence that may be sufficient includes "the disproportionate effect of
peremptory strikes, the nature of the proponent's questions and statements
during voir dire, disparate treatment of members of the targeted group, and
whether the case itself is sensitive to bias." Id. at 776, 335 P.3d at 167.
Both Cooper and the State agree that African Americans made
up 13.04 percent of the venire (3 of 23). The State used 40 percent of its
peremptory challenges (2 of 5) to remove 67 percent of the African
Americans (2 of 3). See Watson, 130 Nev. at 778, 335 P.3d at 168 (approving
of a method that compares the percentage of "peremptory challenges used
against targeted-group members with the percentage of targeted-group
members in the venire"). While numbers alone may not give rise to an
inference of discriminatory purpose, we conclude that the percentage of
peremptory challenges used against African Americans in this case was
disproportionate to the percentage of African Americans in the venire such
that an inference of purposeful discrimination was shown in this case. Cf.
Fernandez v. Roe, 286 F.3d 1073, 1078 (9th Cir. 2002) (stating prima facie
case established where prosecutor used 29 percent of peremptory challenges
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to remove 57 percent of a targeted group that only comprised 12 percent of
the venire); Turner v. Marshall, 63 F.3d 807, 813-14 (9th Cir. 1995) (holding
prima facie case established where prosecutor used 56 percent of
peremptory challenges to completely remove targeted group that only
comprised 30 percent of the venire), overruled in part on other grounds by
Tolbert v. Page, 182 F.3d 677, 685 (9th Cir. 1999); see also Shirley v. Yates,
807 F.3d 1090, 1101 (9th Cir. 2015) ("The fact that a prosecutor
peremptorily strikes all or most veniremembers of the defendant's race—as
was the case here—is often sufficient on its own to make a prima fade case
at [sffep Mile."). The State's use of two challenges to strike members of a
cognizable group along with the composition of the venire before and after
the strikes suggest not only a pattern but a disproportionate effect resulting
from the challenges. Thus, the totality of the circumstances evinces an
inference of purposeful discrimination. We reach this conclusion
particularly in light of the fact that the burden for step one is not intended
to be onerous or to be clearly demonstrative of purposeful discrimination.
See Watson, 130 Nev. at 775, 335 P.3d at 166. Therefore, the district court
clearly erred when it found that Cooper had not satisfied step one of Batson.
Because the district court concluded that Cooper had not met
his burden under step one, the State correctly averred below that it was not
required to provide an explanation for the peremptory strikes. See Watson,
130 Nev. at 779-80, 335 P.3d at 169. But that choice has consequences if a
reviewing court determines that the district court erred at step one—the
record may be inadequate for the reviewing court to consider step two of the
Batson analysis. Cf. Kaczmarek, 120 Nev. at 334-35,
91 P.3d at 30
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II LIS,
(addressing steps two and three even though the district court did not
adequately articulate its analysis where the record included the State's
reasons for exercising the peremptory challenges and did not demonstrate
any discriminatory motives). Without a record of the State's reasons for the
peremptory strikes, we are left to speculate as to any race-neutral
explanations for striking the two African-American women from the venire.
While the district court said it could "think of a whole host of reasons" for
the State wanting to strike either of the two African-American women, it
did not articulate any of them. 3 More importantly, judicial speculation
about the State's reasons is inconsistent with the Batson framework. As
the Supreme Court has explained, "The Batson framework is designed to
produce actual answers to suspicions and inferences that discrimination
may have infected the jury selection process. The inherent uncertainty
present in inquiries of discriminatory purpose counsels against engaging in
needless and imperfect speculation when a direct answer can be obtained
asking a simple question." Johnson v. California, 545 U.S. 162, 172 (2005)
(considering a case where the trial court did not seek a race-neutral
explanation from the prosecution but instead explained that its own
examination of the record was enough to convince the court that the strikes
3 We note that a district court's comment about possible justifications
for a peremptory challenge, without input from the prosecution, could be
viewed as the court resolving the Batson objection before all evidence and
argument are presented. Cf. Brass v. State, 128 Nev. 748, 753 n.4,
291 P.3d
145, 149 n.4 (2012) (noting this court's concern that the district court's
dismissal of a prospective juror before conducting a Batson hearing could be
indicative of judicial bias as it may show the district court has closed its
mind to the presentation of evidence).
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could be supported with race-neutral explanations). The Court has warned
against "the imprecision of relying on judicial speculation to resolve
plausible claims of discrimination." Id. at 173. Thus, when a Batson
objection is erroneously rejected at step one and the record does not clearly
reflect the State's reasons for its peremptory strikes, whether because the
district court did not inquire into them after ruling against the defendant
on step one or because the State declined to provide its reasons unless the
district court first made a finding of a prima facie case under step one, this
court cannot proceed to steps two and three for the first time on appea1. 4
The silence as to the State's reasons for exercising the two
challenged peremptory strikes is particularly problematic in this case
because the State posed a question with race-based implications during voir
dire: it asked whether any of the veniremembers had strong opinions about
the Black Lives Matter movements The question had, at best, minimal
relevance to the circumstances of this case. 6 See Valdez v. People, 966 P.2d
587, 595 (Colo. 1998) (chastising the prosecutor's reference to the 0.J.
4As we indicated in Watson, when the district court determines that
the defendant has not made the prima facie showing required by Batson's
step one, it can be a good idea for the district court to inquire into the State's
race-neutral reasons to ensure that there is a complete record for appellate
review. See 130 Nev. at 779-80, 335 P.3d at 169 (stating step one of Baston
was not rendered moot where a district court asked the State to articulate
its reasons for the strike "out of an abundance of caution after the court had
determined that [the defendant] failed to make a prima facie case").
sThe Black Lives Matter movement "is a social movement"
established "in response to the perceived mistreatment of African-American
citizens by law enforcement officers." Doe v. Mckesson, 272 F. Supp. 3d 841,
849 (M.D. La. 2017).
6 We do not conclude that this type of question could never be relevant.
Rather, we do not perceive its relevance given the facts in this case.
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Simpson case and questions to prospective jurors regarding race, made
during voir dire, in part because the "case did not have any apparent racial
issues"). The question did not examine an issue apparent in this case, and
the State fails to credibly explain how this question helped expose whether
a prospective juror could "consider and decide the facts impartially and
conscientiously apply the law as charged by the court." Johnson v. State,
122 Nev. 1344, 1354,
148 P.3d 767, 774 (2006) (discussing the purpose of
voir dire). And we are concerned that by questioning a veniremember's
support for social justice movements with indisputable racial undertones,
the person asking the question believes that a "certain, cognizable racial
group of jurors would be unable to be impartial, an assumption forbidden
by the Equal Protection Clause." Valdez, 966 P.2d at 595; see also Batson,
476 U.S. at 89 ("[T]he Equal Protection Clause forbids the prosecutor to
challenge potential jurors solely on account of their race or on the
assumption that black jurors as a group will be unable impartially to
consider the State's case against a black defendant."). The Black Lives
Matter question, coupled with the State's use of 40 percent of its peremptory
challenges (2 of 5) to remove 67 percent (2 of 3) of the veniremembers in a
particular cognizable group that made up just over 13 percent of the venire,
could support a finding of purposeful discrimination.
Having concluded that the district court clearly erred when it
terminated the Batson analysis at step one and that the record does not
clearly support the denial of Cooper's objection, we reverse the judgment of
conviction and remand to the district court for a new tria1. 7 See Diomampo,
7 Cooper raises additional arguments on appeal regarding alleged
error in the proceedings below. We have considered and reject his claim
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Ilia! 11 I I
124 Nev. at 423,
185 P.3d at 1037 (observing that Batson error is
structural).
AlAiscia-a
Stiglich
We concur:
Chufwv
C hc,
J.
Parraguirre
that insufficient evidence supports his convictions. And given our
disposition, we do not reach the merits of his remaining claims.
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