The People &c.,
Respondent,
v.
Terick James, a/k/a Issac Delay,
Appellant.
The People &c.,
Respondent,
v.
Anthony Jones, a/k/a Ray Anthony
Brown,
Appellant.
2002 NY Int. 159
The issue in both of these cases is whether the Batson (Batson v Kentucky, 476 US 79 [1985]) challenges were appropriately preserved. Because they were not, we affirm the orders of the Appellate Division upholding defendants' convictions. People v James
On October 24, 1996, an off duty corrections officer
observed defendant attempting to break into the officer's car.
Defendant was indicted for attempted criminal possession of a weapon in the second degree. The defense sought to persuade the jury that defendant suffered from a mental defect precluding him from forming the requisite intent. During jury selection, he raised a Batson challenge, arguing that the People's challenge of five of six African-American women was an equal protection violation. In seeking to make out a prima facie case, the defense attorney named four African-American women the prosecutor had previously struck from the panel. The defense then focused on the fifth woman, Bemejam, a social worker and substance abuse counselor, who had been peremptorily challenged, stating:
"Judge, at this time I am making a Batson challenge on behalf of my client. This is now -- Mr. Jaffe [the prosecutor] kicked off Miss Nicholas who is a Black female. Miss Freeman on the last round was a Black female. Alice Newton is a Black female. Jacqueline Accoo is a Black female and now Miss Benejam [sic], and I am asking him to give a reason why he is kicking her off. She said she could be fair. She has no problems. She doesn't have any family in law enforcement. She didn't say much at all."
In response to this challenge, the prosecutor indicated he did
Defendant was convicted of attempted criminal possession of a weapon in the second degree and sentenced to a determinate prison term of six years. On appeal he argued that his equal protection and due process rights were violated by the prosecutor's peremptory challenges and the trial court's disposition. The Appellate Division affirmed with two Justices dissenting. The majority held that the defendant's Batson challenge was to one juror only _- Bemejam, not as to all jurors as the dissenters contended. One of the dissenting Justices granted leave to appeal. We affirm.
People v Jones
On March 9, 1997, defendant Anthony Jones and two other men robbed an individual outside a Manhattan grocery store using a razor. Two weeks later defendant attempted to rob another individual outside the same store. Three store employees chased defendant until the police apprehended him.
Defendant was indicted for one count of robbery in the first degree and one count of robbery in the second degree based on the March 9 incident, and one count of attempted robbery in the third degree based on the March 27 incident.
During jury selection, defendant raised a Batson challenge, arguing that the People struck an African-American female during the first round of jury selection and two African- American males during the fourth round.
In seeking to make out a prima facie case, the defense stated:
"Your Honor, I'll exercise a Batson at this point. Your Honor, let me make the record that on the first panel, your Honor, Mr. Snyder [prosecutor] excluded juror number ten, Francis Tuckedt, a black woman; Wilson Nau, a black man was excused [for cause by the court]. Then in the second panel, a black man, Pierre Noel the People exercised a peremptory. Now another black man, Caviness, People exercise peremptory. At this point I think it's the prosecutor's burden to show that this isn't race based."
The prosecutor explained his reasons for challenging each juror.
As to Caviness, the prosecutor stated that he overheard him
making comments during the defense' voir dire, that when he
struck Tuckedt, he kept another black woman, and finally that
Noel expressed problems with the police in the past.[2]
The court rejected the Batson challenge, stating it "accepts there are non race based reasons for the exercise of peremptories by the People." Thereafter, the defendant made no further objection concerning jury selection.
Defendant was convicted of robbery in the first degree, robbery in the second degree and attempted robbery in the third degree and was sentenced accordingly. On appeal, the Appellate Division rejected defendant's contention that the trial court had improperly failed to mention Tuckedt as part of the Batson challenge, and held that the challenge pertained only to the two male jurors in the fourth round. In affirming the conviction, the court stated:
"It is, however, clear from the
record that no claim as to her was made when she was peremptorily challenged nor during the remainder of questioning in the first pool. Not until questioning the fourth pool of prospective jurors and defendant's objection to the prosecutor's use of a peremptory against Caviness was F.T. mentioned and then only as part of a pattern which, upon closer examination, did not exist. At no time did defendant state that F.T.'s removal from the panel was itself discriminatory. An unarticulated claim is an unpreserved claim."
A Judge of this Court granted leave to appeal, and we now affirm.
Discussion
In making a Batson challenge, the moving party has the
initial burden of establishing that the other side is using
peremptory strikes to remove a cognizable racial
In the second step, after the moving party has established a prima facie case, the non-moving party must give a race neutral reason for each and every person challenged in step one. If a defendant does not specifically question a particular strike, the prosecutor is not required to provide an explanation for it (see People v Manigo, 165 AD2d 660, 662 [1st Dept 1990]). "Although the * * * race neutral reason for exercising a peremptory challenge need not rise to the level of a challenge for cause * * *, it must be legitimate and not merely a pretext for discrimination * * *" (People v Allen, , 86 NY2d 101, 106 [1995])[citations and quotation marks omitted]). Once the prosecutor gives race neutral reasons for peremptory challenges, the issue of whether a prima facie case has been made is moot (Hernandez v New York, 500 US 352, 359 [1991]).
In step three, the moving party may contend that the
Turning to the cases before us, in James, although the defense attorney named four other women in alleging a pattern and a prima facie case, it is clear that the defense challenged only Bemejam when she stated "and now Miss Benejam [sic], and I am asking * * * [the prosecutor] to give a reason why he is kicking her off. She said she could be fair. She has no problems. She doesn't have any family in law enforcement. She didn't say much at all." If defendant intended to challenge all five prospective jurors, as he now alleges for the first time on appeal, rather than solely challenging Bemejam, he should have expressed that contention. Since he did not, this issue is unpreserved.
The defense attorney in Jones, in seeking to make out a
prima facie case, named four individuals, three that the People
struck with peremptory challenges during voir dire and one that
was removed by the court for cause. From the wording used by the
defense, it is clear that he was not challenging all four people.
Thus, defendant did not challenge the court for excusing
The People went on to give an explanation as to why they used all three peremptory challenges. The defendant now contends that the reason given for challenging Tuckedt was pretextual. However, defendant did not assert, at the time of the Batson challenge, that he was including Tuckedt. Even after the People's response, defendant remained silent, an indication that the challenge did not originally include Tuckedt. By accepting the People's explanation without any additional objection at a time that it could have been addressed, defendant failed to preserve a challenge to Tuckedt.
Finally, the exclusion of jurors on the basis of race
continues to plague the judicial system, and courts must be
vigilant in eradicating this problem. The Equal Protection
Clauses of both the Federal Constitution (14th Amendment) and
State Constitution (article I, § 11) prohibit the exclusion of
Accordingly, in each case, the order of the Appellate Division should be affirmed.
1 The prosecutor explained:
"Your Honor, I focused on occupations. I tried to keep off social workers. Miss Accoo, I stated the reason for her already. She believed that her personal beliefs - she can't impose them upon anybody else. I don't think she is someone who should be a juror in my personal opinion. I am trying to keep social workers off the jury. And, Miss Nicholas, she is a nurse. I am trying to keep nurses off the jury. There was a discussion about the medical records that the defendant was prematurely released from a hospital.
"I don't want a nurse - for the following reason. I don't want anybody on the jury who comes in contact with people in the profession, I think there's tension between the people who make decisions about medical issues and those who have to carry them out, and basically my concern in this case is that arguments were made to the jury - to a nurse that this person was so bad and they were let out but never should have been let out. They don't get to make the decision about who stays in and who doesn't. They have to follow someone else's opinion. I bet there's a lot of resentment there. And, they would sympathize with the Defense' position that the defendant has been sick all along and acutely schizophrenic. The doctor made the wrong call and that's why the person is out. It's a mistake. It happens all the time. I think that any nurse - I have a concern with any nurse being on the jury. That went into my decision."
2 The prosecutor explained his reasons for the strikes as follows: First, as to Caviness:
"Most telling for me was when Mr. Smith [defense attorney] was asking Mr. Montalto [another prospective juror] who's roommate is a detective, he was asking him if he thought that it happens sometimes that detectives sometimes pressure confessions out of defendants and I glanced over to Mr. Caviness, he was not even being asked alike [sic], sure they are, sure, yop yop, * * * this is the heart of my case, this is the more serious by far of my two charges and as I've gone over with your Honor and the jury, the only evidence we have is this confession, it's a powerful piece of evidence until it's ripped apart by the theory that it's pressured out of the defendant."
Second as to Ms. Tuckedt:
"[W]hile it's true I did exercise a peremptory as to a black woman in the second row. I chose a black woman, she's the second juror we picked * * *."
Finally, as to Mr. Noel:
"[H]e told me that he had some problems with
police officers in the past and because again
my most important piece of evidence is this
detective and how she treated his [sic]
defendant, I don't think it's wise to pick
someone who may have a problem with police
officers, may be looking for a way to overly
scrutinize the testimony because they have a
problem with police officers."
4 In Batson v Kentucky (476 US 79) [1986], Justice Thurgood Marshall wrote a concurring opinion in which he detailed the limitations of the Batson procedure and argued for the elimination of peremptory challenges. Several Judges of this Court have also questioned the peremptory procedure and called on the Legislature to revisit peremptory challenges (see, People v Hernandez, , 75 NY2d 350 [1990] [Titone, J. concurring; People v Bolling, , 79 NY2d 317 [1992] [Bellacosa, J., joined by Wachtler, C.J. and Titone, J. concurring; People v Brown, , 97 NY2d 500 [2002] [Kaye, C.J. concurring with Wesley, J. and Rosenblatt, J. joining in the concurrence]). I join with those members of this Court, past and present, who urge the Legislature to take a hard look at the issue of peremptory challenges.