State v. Palmer

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

MATTHEW MARSHALL PALMER, Appellant.

No. 1 CA-CR 18-0812
FILED 7-7-2020

Appeal from the Superior Court in Mohave County
No. S8015CR201701502
The Honorable Richard Weiss, Judge Retired

REMANDED

COUNSEL

Arizona Attorney General's Office, Phoenix
By Jana Zinman
Counsel for Appellee

Mohave County Legal Advocate, Kingman
By Jill Evans
Counsel for Appellant
 STATE v. PALMER
Decision of the Court

MEMORANDUM DECISION

Acting Presiding Judge James B. Morse Jr. delivered the decision of the
Court, in which Judge Diane M. Johnsen1 and Judge D. Steven Williams2
joined.

M O R S E, Judge:

¶1 Matthew Palmer appeals his convictions and sentences for
two counts of aggravated assault. He argues the trial court erred in denying
his challenge to the State's peremptory strike of an African-American
prospective juror under Batson v. Kentucky, 476 U.S. 79, 89 (1986). We agree
that the trial court improperly considered the order of the prosecutor's
peremptory strikes and, given the ambiguity of the remainder of the
explanation for its decision to uphold the strike, we remand this matter for
further proceedings.

FACTS AND PROCEDURAL BACKGROUND

¶2 In July 2018, Palmer was convicted of two counts of
aggravated assault against a detention officer that occurred in October 2017
while he was being held in the Mohave County Jail. The facts relevant to
the appeal are limited to what Palmer asserts were improprieties in the jury
selection process at his trial.

1 Judge Johnsen was a sitting member of this Court when the matter
was assigned to this panel of the Court. She retired effective February 28,
2020. In accordance with the authority granted by Article 6, Section 3, of
the Arizona Constitution and pursuant to A.R.S. § 12-145, Chief Justice of
the Arizona Supreme Court has designated Judge Johnsen as a judge pro
tempore in the Court of Appeals, Division One, for the purpose of
participating in the resolution of cases assigned to this panel during her
term in office.

2 Judge Williams replaces the Honorable Kenton D. Jones, who was
originally assigned to this panel. Judge Williams has read the briefs and
reviewed the record.

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¶3 During jury selection, jurors were asked to provide
background information about themselves. On this point, the record
contains the following exchange:

THE COURT: . . . And we have a clipboard, and on that
clipboard there's a number of questions.

The first one deals with your address. We don't need to know
the number of the street or your house number, apartment
number, or street number. All we need to know is what town
you're from, like Kingman, Bullhead, Lake Havasu, any of the
other towns in Mohave County.

If you're retired, let us know what occupation you retired
from. If your spouse is retired, let us know what occupation
your spouse may have retired from.

And if you've ever served on a jury before, tell us about when
and where that may have been, what the outcome of that case
may have been and whether or not you were the foreperson
of that jury panel.

And, [Prospective Juror 1], you're in the hot seat, so you get
to go first. If you would please stand and answer those
questions.

But you might be looking for your glasses, are you?

PROSPECTIVE JUROR [1]: I was looking for a pen.

THE COURT: I don't know that you need a pen.

PROSPECTIVE JUROR [1]: Yeah.

THE COURT: I think it's just on the top there. Oh, you don't
need a pen.

PROSPECTIVE JUROR [1]: Okay.

THE COURT: It's just the question in that glassy type
envelope. So right there. Just right there.

PROSPECTIVE JUROR [1]: Oh, just right here.

THE COURT: Yeah, that's it.

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PROSPECTIVE JUROR [1]: Oh, okay.

¶4 From this exchange, it appears Prospective Juror 1 believed
she was being asked to write down her responses to the questions listed on
the clipboard. After the trial court clarified she was to answer the questions
orally, Prospective Juror 1 provided all the requested information without
incident or apparent confusion. She stated her name, the city in which she
resided, that she was retired, recently divorced and had no children, that
her ex-spouse's retirement or occupation was "[n]othing," and that she
previously served as a juror, but was not the foreperson, in a civil case in
California in which a defense verdict was rendered. Prospective Juror 1
separately stated there was "[n]othing at all" from her experience serving as
a juror in the California civil case that would affect her ability to be a fair
and impartial juror.

¶5 After the jury panel was passed for cause, the State used a
peremptory strike against Prospective Juror 1. After Palmer challenged the
strike as race-based under Batson, the trial court asked the prosecutor to
provide a reason for striking Prospective Juror Number 1, whom it noted
was "the only person of African-American [race] on the panel, and probably
the only one on a panel in Mohave County for years." The prosecutor
responded:

The State's reason for striking that juror was not based on her
race or ethnicity. The State's biggest reason for striking that
juror was in part due to her confusion in following the jury
instructions initially. That concerned the State given the
complexity of the jury instructions that she will receive at the
end of the case. So it was for those reasons that the State used
its [peremptory] strike.

¶6 The trial court sought clarification:

THE COURT: All right. So what was the confusion? When
she got the clipboard?

[THE PROSECUTOR]: Yes, Your Honor.

THE COURT: And so thereafter didn't [Prospective Juror 1]
answer the questions?

[THE PROSECUTOR]: She did answer the questions, Your
Honor. Again, it comes down to we have six strikes, and the
State, wanting to make sure that we get the best jury panel

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that will be the most fair and impartial and is able to follow
directions clearly is the State's biggest concern. So it was for
that reason that we used a strike.

THE COURT: All right. So you didn't think that that was just
[Prospective Juror 1] being nervous and being the first one to
go and not necessarily understanding it? And hasn't that
happened to most number ones?

[THE PROSECUTOR]: That's possible, Your Honor. And
certainly if that's the case, that's the case. However, again, as
we're narrowing down the strikes the State is using, the State
is becoming more and more picky about which jurors are left
on the panel, so the State decided to strike [Prospective Juror
1].

THE COURT: And do you know in your strikes whether or
not she was the first one you struck —

[THE PROSECUTOR]: No.

THE COURT: — or the second, third, fourth, fifth, sixth.

[THE PROSECUTOR]: I believe she was the fourth, Your
Honor. The fourth or fifth.

¶7 Defense counsel's observations of Prospective Juror 1 also
differed from the prosecutor's.

Judge, obviously, I think the record should reflect that the
lady was I think clearly African-American, and to the best of
my knowledge, there were no other African-Americans in the
courtroom. We did have a couple Hispanic gentlemen. I
believe perhaps one Hispanic lady.

[Prospective Juror 1] — as you mentioned, was the very first
juror, and she was handed a clipboard. The [c]ourt did
instruct her to go ahead and read off that and give some
instruction and basically to read off the particular clipboard
the information as requested. She said there was no pen there.
I think she was confused because she's never sat on the jury, I
don't think, about she was supposed to fill something out.

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The [c]ourt made it clear that, no, I just want you to answer
the questions on the clipboard. After about 10 seconds, she
figured it out from the [c]ourt's instruction and did that.

And I didn't see [Prospective Juror 1] demonstrate any other
confusion during jury instruction at all.

Her answers were clear, were thoughtful. She even made —
even cracked up about her ex-husband. She was asked what
her ex-husband did for a living. Basically[,] she said nothing
with a chuckle, which got a chuckle out of the jury. The lady
seemed engaged and intelligent and certainly could handle
the jury instructions.

Everybody else had the benefit of seeing her go first, and so
when they were handed the clipboard, they knew what to do.
She had no one before her. If that's the only reason the State
has got, again, I would — respectfully with counsel, I don't
believe counsel is a racist. I'm not making that claim, of
course, at all. I'm just saying I think this lady deserves to stay
on the jury if that's the only reason.

When asked if she had anything further to add, the prosecutor responded:

Not really, Your Honor. Again, the State used its
[peremptory] strike to strike [Prospective Juror 1], not
because of her race or ethnicity, but based on the observations
that the State made and the State's end goal of trying to get
the most fair and impartial jury panel at the end of the day.

¶8 The trial court allowed the preemptive strike to stand,
reasoning:

Well, the [c]ourt may agree that a fourth or fifth strike
probably takes it out of at some level whether it's race or
ethnicity based.

The [c]ourt really is in a different position than counsel for the
State and their interpretation of events might be different than
what the [c]ourt's interpretation of the events may have been
about whether there was any confusion that occurred.

One of [Prospective Juror 1's] other answers indicated that she
did serve on I believe it was a civil jury back in California

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sometime ago. I believe she is a qualified juror, and when you
deal with [peremptory] strikes, it could be any reason as long
as it's not based on race or ethnicity.

The [c]ourt is not swayed that the strike of [Prospective Juror
1] was not [sic] based on race or ethnicity but for a reason
independent of that, whether the [c]ourt agrees with the
assumptions of the State or not.

¶9 Prospective Juror 1 was dismissed, the jury was seated and
sworn, and Palmer was ultimately found guilty of two counts of aggravated
assault. The trial court sentenced Palmer as a non-dangerous, non-
repetitive offender to concurrent terms of imprisonment, the longer of
which was eleven years, and credited him with 393 days of presentence
incarceration. Palmer timely appealed, and we have jurisdiction pursuant
to A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).

DISCUSSION

¶10 The sole issue presented on appeal is whether the trial court
erred in denying Palmer's Batson challenge to the State's peremptory strike
of Prospective Juror 1.

I. Standard of Review.

¶11 "When reviewing a trial court's ruling on a Batson challenge,
we defer to its factual findings unless clearly erroneous, but review its legal
determinations de novo." State v. Gay, 214 Ariz. 214, 220, ¶ 16 (App. 2007).
And, in reviewing a Batson challenge, "all of the circumstances that bear on
the issue of racial animosity must be consulted." Snyder v. Louisiana, 552
U.S. 472, 478 (2008).

II. Batson Challenges Generally.

¶12 "The Equal Protection Clause of the Fourteenth Amendment
prevents peremptory strikes of prospective jurors solely based upon race."
Gay, 214 Ariz. at 220, ¶ 17 (citing Batson, 476 U.S. at 89). "Purposeful racial
discrimination in selection of the [jury] violates a defendant's right to equal
protection because it denies him the protection that a trial by jury is
intended to secure." Batson, 476 U.S. at 86. "Jury selection is the primary
means by which a court may enforce a defendant's right to be tried by a jury
free from ethnic, racial, or political prejudice, or predisposition about the
defendant's culpability." Powers v. Ohio, 499 U.S. 400, 411-12 (1991)
(citations omitted). "Racial discrimination in selection of jurors harms not

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only the accused whose life or liberty they are summoned to try[,]" but also
"undermine[s] public confidence in the fairness of our system of justice."
Batson, 476 U.S. at 87. "Exclusion of a single juror in violation of Batson
requires a new trial." State v. Cruz, 175 Ariz. 395, 400 (1993) (collecting
cases).

¶13 Batson sets forth a three-step process to determine if a
peremptory strike violates equal protection. Gay, 214 Ariz. at 220, ¶ 17.

¶14 "First, the party challenging the strike must make a prima
facie showing that the strike was based on race." Id. There is no dispute
that Palmer made that showing.

¶15 In the second step, "the burden shift[s] to the prosecutor to
give a race-neutral basis" for striking the prospective juror. State v. Newell, 212 Ariz. 389, 401, ¶ 54 (2006). That explanation "must be more than a mere
denial of improper motive, but it need not be 'persuasive, or even
plausible.'" State v. Lucas, 199 Ariz. 366, 368, ¶ 7 (App. 2001) (quoting Purkett
v. Elem, 514 U.S. 765, 768 (1995) (per curiam)). Here, the prosecutor satisfied
her burden under the second step of Batson by offering a facially race-
neutral basis for striking Prospective Juror 1 — her purported inability to
follow the assertedly complex jury instructions she would receive at the end
of this case based upon her display of confusion "[w]hen she got the
clipboard."

¶16 In the third and final step of Batson, "the party challenging the
strike must persuade the trial court that the proffered race-neutral
explanation is pretextual" for purposeful racial discrimination. Gay, 214
Ariz. at 220, ¶ 17; see also Snyder, 552 U.S. at 484-85. This third step is
significant because "the trial court evaluates the credibility of the [S]tate's
proffered explanation[.]" Gay, 214 Ariz. at 220, ¶ 17 (emphasis added). In
evaluating the credibility of proffered explanations, the court is required "to
evaluate the sincerity of the prosecutor as well as the behavior of the jurors"
by "considering such factors as the prosecutor's demeanor; . . . how
reasonable, or how improbable, the explanations are; and . . . whether the
proffered rationale has some basis in accepted trial strategy." Id. at 220-21,
¶¶ 17, 19 (quoting Miller-El v. Cockrell (Miller-El I), 537 U.S. 322, 339 (2003)).

¶17 Where, as here, the prosecutor's explanation rests entirely on
the observations that the prosecutor made about a prospective juror, "the
trial court must evaluate not only whether the prosecutor's demeanor belies
a discriminatory intent, but also whether the juror's demeanor c[ould]
credibly be said to have exhibited the basis for the strike attributed to the

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[prospective] juror by the prosecutor." Snyder, 552 U.S. at 477. Because
"race-neutral reasons for peremptory challenges often invoke a
[prospective] juror's demeanor (e.g., nervousness, inattention)," the "court's
firsthand observations [are] of even greater importance." Id. To be sure, the
third step of Batson may require trial judges to make uncomfortable and
unpleasant inquires so as to uncover counsel's true reasons for
peremptorily striking a juror. State v. Porter, 248 Ariz. 392, 397, ¶ 14 (App.
2020). Nevertheless, "'if Batson is to be given its full effect, trial courts must
make precise and difficult inquires to determine if the proffered reasons for
a peremptory strike are the race-neutral reasons they purport to be, or if
they are merely a pretext for that which Batson forbids' . . . ." Id. (quoting
Coombs v. Diguglielmo, 616 F.3d 255, 264 (3d Cir. 2010)).

¶18 Ultimately, whether the explanation for a peremptory strike
is a pretext for racial discrimination is a question of fact. Hernandez v. New
York, 500 U.S. 352, 364-65 (1991) (plurality opinion). But while the "'trial
court is in a better position to assess' credibility than we are, [and] its
'finding at this step is [thus] due much deference,'" Gay, 214 Ariz. at 220, ¶
17 (quoting Newell, 212 Ariz. at 401, ¶ 54), "[d]eference does not by
definition preclude relief," Miller-El I, 537 U.S. at 340. Such findings may be
set aside if "clearly erroneous." Newell, 212 Ariz. at 400, ¶ 52; see also State v.
Hernandez, 170 Ariz. 301, 304-05 (App. 1991) (collecting cases). A finding is
clearly erroneous if "the reviewing court on the entire evidence is left with
[a] definite and firm conviction that a mistake has been committed." State
v. Lupe, 181 Ariz. 211, 213 (App. 1994) (quoting State v. Burr, 126 Ariz. 338,
339 (1980)).

III. Batson Applied.

¶19 The trial court here found that the peremptory strike of
Prospective Juror 1 — the only African-American on the panel and, as the
court observed, "probably the only one on a panel in Mohave County for
years" — was not racially motivated. See supra ¶¶ 5, 8. But, reviewing the
entire record, and particularly the court's explanation for its finding that the
prosecutor struck the juror for a race-neutral reason, we are left with a
definite and firm conviction that the trial court erred in evaluating whether
the strike was for a race-neutral reason and remand for further factfinding.

¶20 First, the trial court considered the prosecutor's use of the
State's "fourth or fifth" peremptory strike against Prospective Juror 1 as
evidence that the prosecutor's explanation was not "race or ethnicity based."
This was error. Arizona law permits the State to exercise up to six
peremptory strikes in criminal trials when the offense charged is not

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punishable by death. Ariz. R. Crim. P. 18.4(c)(1)(B). The timing of the
State's strike is irrelevant; any strike made with discriminatory intent
violates a defendant's constitutional rights. See Foster v. Chatman, 136 S.Ct.
1737, 1747 (2016) (citing Snyder, 552 U.S. at 478).

¶21 On this record, the trial court's error in attributing significance
to the order of strikes requires remand because the trial court's statements
and firsthand observations demonstrate that it had reservations about the
prosecutor's explanation for striking Prospective Juror 1. See Hernandez, 500
U.S. at 367 ("The credibility of the prosecutor's explanation goes to the heart
of the equal protection analysis[.]"). To support the strike, the prosecutor
cited Prospective Juror 1's "confusion in following the jury instructions
initially" — referring to the moment "[w]hen she got the clipboard" — as a
basis for inferring she would be unable to follow directions "given the
complexity of the jury instructions that she w[ould] receive at the end of the
case." But the trial court stated it was "really in a different position than
counsel for the State and their interpretation of events," particularly as to
"whether there was any confusion that [in fact] occurred." As the trial court
noted, Prospective Juror 1's momentary nervous confusion about whether
she was to respond orally or in writing to the initial questions of the panel
was typical of "most number ones." Consistent with the court's
interpretation of events, we cannot conclude that the trial court would have
accepted the prosecutor's stated reason without attributing weight to the
order of the prosecutor's strikes.

¶22 Moreover, remand is necessary because the record does not
show the trial court found the prosecutor's reasoning sincere but erroneous.
See, e.g., Aleman v. Uribe, 723 F.3d 976, 980-84 (9th Cir. 2013) (affirming a
finding of no purposeful discrimination where the prosecutor honestly but
mistakenly attributed a troublesome comment by another juror to a
Hispanic juror); Lamon v. Boatwright, 467 F.3d 1097, 1099, 1102 (7th Cir. 2006)
(affirming a finding of no purposeful discrimination when the prosecutor
struck "the only black member of the venire" because "even if possibly
mistaken," the prosecutor honestly believed that further questioning of the
juror would have been futile given his initial vague and unforthcoming
responses to questions); State v. Gonzalez-Sandoval, 431 P.3d 850, 854-62
(Kan. 2018) (affirming a finding of no purposeful discrimination where the
prosecutor "honestly but mistakenly believe[d]" that a juror with a Hispanic
surname had not been candid during voir dire "about having been a witness
or having been interviewed by law enforcement[,]" only to later find out
and volunteer to the court that the proffered reasons were untrue).

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¶23 In contrast to the aforementioned cases, here, the trial court's
explanation for upholding the peremptory strike suggests it failed to
properly apply and understand its role in the third step of Batson. The court
explained that "when you deal with [peremptory] strikes," the State can
offer "any reason as long as it's not based on race or ethnicity . . . whether
the [c]ourt agrees with the assumptions of the State or not." But a
prosecutor's mere advancement of a reason unrelated to race or ethnicity is
insufficient to defeat a Batson challenge. In the third step of Batson, it is the
court's duty to evaluate the credibility of the asserted race-neutral
explanation in determining whether the explanation is sincere or merely a
ruse masking discriminatory motive. See Gay, 214 Ariz. at 220-21, ¶¶ 17, 19.
Here, the court's statement contains a confusing double negative and is
amenable to conflicting interpretations about whether the court accepted or
rejected the State's explanation. We presume that in allowing the strike, the
court must have accepted the sincerity of the State's proffered reason. See
State v. Ramirez, 178 Ariz. 116, 128 (1994) ("[T]he trial court is presumed to
know and follow the law."). But our review of the record provides little
comfort and, at a minimum, the court did not perform its duty under Batson
when it allowed the timing of the challenged strike to influence its decision.
This is especially true where the court's observations did not directly
support the prosecutor's explanation.

¶24 In a footnote in its answering brief, the State asserts the fact
that the prosecutor did not strike other minority jurors from the panel
evinces a nondiscriminatory motive. To be sure, the record suggests there
may have been "a couple Hispanic gentlemen . . . perhaps one Hispanic
lady," in the jury pool. Nevertheless, the State cannot satisfy its obligation
to provide a legitimate race-neutral explanation solely by pointing to the
existence of other minorities it did not strike from the jury pool. See Hardy,
230 Ariz. at 285, ¶ 12. "[T]he Constitution forbids striking even a single
prospective juror for a discriminatory purpose." Snyder, 552 U.S. at 478
(quoting United States v. Vasquez-Lopez, 22 F.3d 900, 902 (9th Cir. 1994)).

¶25 The State also cites several cases from other jurisdictions
suggesting a prospective juror's confusion or inability to understand
questions can constitute valid non-race-based reasons to exercise a
peremptory strike. State v. Hodge, 726 A.2d 531, 547 (Conn. 1999) ("A
prosecutor may challenge a juror who appears unable to understand
questions or who demonstrates confusion.") (collecting cases); State v.
Carter, 96 N.E.3d 1046, 1064-66, ¶¶ 49-51, 57-59 (Ohio Ct. App. 2017). But
in those cases, either: 1) the prosecutor and the trial court observed the same
behavior or demeanor that supported the court's nondiscriminatory
finding, Carter, 96 N.E.3d at 1064-65, ¶¶ 50-51; see also Hernandez, 170 Ariz.

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at 304-05; or, 2) the record clearly illustrated the prospective juror's
problematic responses to questions about the applicable law or the
applicable standard of proof, or inability to follow the instructions
faithfully, Hodge, 726 A.2d at 546-48; Carter, 96 N.E.3d at 1064-65, ¶¶ 50-51;
see also State v. Decker, 239 Ariz. 29, 31-32, ¶¶ 5-11 (App. 2016) (finding the
trial court did not err by denying a defendant's Batson challenge where
"[t]he judge confirmed the prosecutor's observation [that the juror failed] to
follow the court's instructions [to remain outside the courtroom during a
break] and implicitly found credible the prosecutor's account of [the juror's]
dozing and inattentiveness[.]"). Neither of these scenarios applies here.

¶26 In sum, the trial court erred in fulfilling its duty in the third
step of Batson by considering the timing of the prosecutor's peremptory
strike of Prospective Juror 1 as evidence of a nondiscriminatory motive. As
a result, and given the ambiguity of the remainder of the court's explanation
for its decision to uphold the strike, we must remand so the trial court may
apply Batson without attributing significance to the order of the
prosecution's strikes. See Porter, 248 Ariz. at 400, ¶ 22. On remand, if the
trial court rejects the State's explanation or is unable "to make reliable, fully
informed findings under the Batson framework," the trial court must vacate
Palmer's convictions and hold a new trial. Id.

CONCLUSION

¶27 We remand for further proceedings consistent with this
decision.

AMY M. WOOD • Clerk of the Court
FILED: AA

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