State v. Papazian

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

KEVIN ERICH PAPAZIAN, Appellant.

No. 1 CA-CR 21-0147
FILED 1-11-2022

Appeal from the Superior Court in Coconino County
No. S0300CR201700273
The Honorable Ted Stuart Reed, Judge

AFFIRMED

COUNSEL

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

Coconino County Public Defender’s Office, Flagstaff
By Brad Bransky
Counsel for Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Maria Elena Cruz and Judge Michael J. Brown joined.

T H U M M A, Judge:

¶1 Defendant Kevin Erich Papazian appeals his convictions and
resulting sentences for threatening or intimidating, disorderly conduct with
a weapon and disorderly conduct. Because Papazian has shown no error,
his convictions and sentences are affirmed.

FACTS AND PROCEDURAL HISTORY

¶2 Papazian faced trial on three counts of aggravated assault,
alleged to have occurred in February 2016 in a Flagstaff-area hospital. At
the end of voir dire, the State used a peremptory challenge against
Prospective Juror M.N., who apparently was the only minority on the
panel.1 Papazian’s counsel challenged the strike under Batson v. Kentucky, 476 U.S. 79 (1986). When asked to justify the strike, the State explained that
M.N. did not respond to questions and was “unwilling[] to follow the law.”

¶3 Based on answers during voir dire, the court found M.N.’s
unwillingness to follow the law was a race-neutral justification for the
State’s strike and denied Papazian’s challenge. The jury later found
Papazian guilty of lesser-included offenses, and the court imposed
sentences. This court has jurisdiction over Papazian’s timely appeal
pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona
Revised Statutes (A.R.S.) sections 12-120.21(A)(1), 13-4031 and 13-
4033(A)(2022).2

1Although Papazian’s trial took place in 2018, effective January 1, 2022, The
Arizona Supreme Court eliminated peremptory challenges in jury selection
for cases governed by the Arizona Rules of Criminal and Civil Procedure.
See Ariz. Sup. Ct. Order No. R-21-0020 (Aug. 30, 2021).

2Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.

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Decision of the Court

DISCUSSION

¶4 Papazian argues the superior court erred by denying his
Batson challenge. When reviewing a ruling on a Batson challenge, this court
defers to the superior court’s findings of fact unless clearly erroneous, but
reviews de novo application of the law. State v. Newell, 212 Ariz. 389, 400-
01 ¶ 52 (2006).

¶5 A Batson challenge “involves three steps: (1) The defendant
must make a prima facie showing of discrimination, (2) the prosecutor must
offer a race-neutral reason for each strike, and (3) the trial court must
determine whether the challenger proved purposeful racial
discrimination.” State v. Medina, 232 Ariz. 391, 404 ¶ 44 (2013) (internal
quotation marks and citations omitted). As applicable here, a decision
regarding the prosecution’s rationale for a peremptory strike is reviewed
for clear error. State v. Roque, 213 Ariz. 193, 203 ¶ 12 (2006), abrogated on other
grounds by State v. Escalante-Orozco, 241 Ariz. 254, 267 ¶¶ 13-14 (2017); see
State v. Bustamante, 229 Ariz. 256, 261 ¶ 16 (App. 2012) (“By asking the
prosecutor for a race-neutral explanation for the strike, the judge implicitly
found that defendant had met his initial burden to make a prima facie case
of intentional discrimination.”).

¶6 The superior court properly denied Papazian’s Batson
challenge because M.N.’s admitted unwillingness to follow the law was a
race-neutral reason for striking him, and Papazian failed to prove the strike
amounted to purposeful discrimination.3 During jury selection, the
prosecutor presented the potential jurors with the following hypothetical:

Let’s say this was a speeding case and the
allegation was that the defendant was going
four miles per hour over the speed limit, which
technically is a violation but probably lots of
folks do that here. . . . And the law was, you
can’t go over even by one mile per hour.

The prosecutor then asked the potential jurors whether they could convict
a defendant if they did not “agree with the law.” M.N. responded: “I think
that it’s a little bit overkill to bring -- to bring a speeding ticket for four miles

3 As part of his argument on appeal, Papazian contends M.N.’s lack of
responsiveness during voir dire was not a proper basis for the court’s
ruling. The record, however, reflects that the court denied the Batson
challenge based on M.N.’s unwillingness to follow the law.

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Decision of the Court

over to court. That seems ridiculous. The fine would be too much anyway.”
The record therefore supports the court’s conclusion under Batson’s second
step that the State struck M.N. for a race-neutral reason, his unwillingness
to follow the law.

¶7 Moving to the third step in the Batson inquiry, Papazian
contends the State’s race-neutral rationale for striking M.N. was pretextual
because the State did not strike Prospective Juror L.G., apparently a non-
minority potential juror, who also indicated an unwillingness to follow the
law when responding to the “speeding case” hypothetical. See State v. Gay, 214 Ariz. 214, 220 ¶ 17 (App. 2007) (“During [Batson’s] third step, the trial
court evaluates the credibility of the state’s proffered explanation”); see also
Snyder v. Louisiana, 552 U.S. 472, 483 (2008) (comparing responses by other
potential jurors when assessing race-neutral explanation provided for
striking a minority potential juror). But the record shows L.G. immediately
clarified that “if the law is the law, [] then it’s the way the law is,” and
expressly affirmed that she would follow the law. Because M.N. made no
similar assurance to following the law, his response to the prosecutor’s
hypothetical substantially differed from L.G.’s response, meaning
Papazian’s pretext argument fails. Cf. Snyder, 552 U.S. at 483. The superior
court did not clearly err in rejecting Papazian’s Batson challenge.

CONCLUSION

¶8 Papazian’s convictions and resulting sentences are affirmed.

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

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