State v. Curry

                                     640

 On respondent’s petition for reconsideration filed September 4, and appellant’s
 response to respondent’s petition for reconsideration filed September 30, 2019;
reconsideration allowed, former opinion (

, 

) adhered to
                                  March 4, 2020


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                 ANTHONY LENAIRE CURRY,
                     Defendant-Appellant.
                Washington County Circuit Court
                     C142231CR; A160845
                                 

   Janelle F. Wipper, Judge.
  Ellen F. Rosenblum, Attorney General, and Benjamin
Gutman, Solicitor General, for petition.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Zachary Lovett Mazer, Deputy Public Defender,
Office of Public Defense Services, for response.
  Before Lagesen, Presiding Judge, and DeVore, Judge, and
James, Judge.
   PER CURIAM
   Reconsideration allowed; former opinion adhered to.
Cite as 

 (2020)                                                 641

           PER CURIAM

         The state has petitioned for reconsideration of our
decision in State v. Curry, 

, 

 (2019).
We allow reconsideration to clarify that an ostensible factual error identified by the state does not alter the analysis
in our decision, reject the other arguments made by the
state, and adhere to our decision.

         In Curry, we concluded that the trial court erred
when it overruled defendant’s challenge under Batson v.
Kentucky, 

, 

, 

 (1986),
to the prosecutor’s exercise of a peremptory strike against
an African-American juror, and reversed for that reason.
Curry, 

. In its petition, the state raises
new arguments that bear little resemblance to those made
by the state below or in its appellate brief as to why it is not
inferable that the prosecutor’s exercise of the peremptory
was not impermissibly based on race.1 Those arguments, in
the main, come too late as a matter of appellate procedure.
State v. Schneider, 

, 

,
rev den, 

 (2006) (“We have held many times that a
contention not raised in the brief on appeal will not be entertained for the first time on reconsideration.”). Further, to the
extent the arguments suggest potential nonpretextual justifications for the prosecutor’s strike that were not articulated
by the prosecutor himself, those arguments come too late as
a matter of Batson procedure.
    “A Batson challenge does not call for a mere exercise in
    thinking up any rational basis. If the stated reason does not
    hold up, its pretextual significance does not fade because a
    trial judge, or an appeals court, can imagine a reason that
    might not have been shown up as false.”

Miller-El v. Dretke, 

, 

, 

 (2005).
    1
      For example, the state argues that, because the stricken juror would otherwise have been the alternate, we should not have compared that juror with the
two similarly-situated jurors who were empaneled. But the state itself invited
that very comparison both in the trial court and in its appellate brief. Not once
until its petition for reconsideration did the state suggest that the juror’s status
as an alternate should bear on the analysis.
642                                           State v. Curry

          The state also suggests that reconsideration is warranted because the decision rests on a factual error. The
state points out that the opinion refers to the fact that the
prosecutor did not exercise a peremptory challenge against
Sarah, one of the jurors who was similarly situated to the
juror who was stricken. See Curry, 

.
The state observes that both sides had used up all of their
peremptories by the time that Sarah was seated and, thus,
to the extent that our opinion implies that the prosecutor,
in fact, had a peremptory available to use against Sarah,
it is factually erroneous. Defendant agrees that the record
reflects that all peremptories had been used by the time
Sarah was seated, but argues that that fact does not alter
the ultimate inference that the prosecutor’s reasons for
striking the African-American juror were pretexts for racebased discrimination, and does not otherwise change the
analysis in the opinion. We allow reconsideration to clarify
that, to the extent the opinion might be read to rest specifically on the fact that the prosecutor, in fact, had a peremptory to exercise against Sarah, it does not.
        Reconsideration allowed; former opinion adhered to.