                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
               ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                     WALTER REID BROWN, Appellant.

                             No. 1 CA-CR 13-0608
                              FILED 06-05-2014


           Appeal from the Superior Court in Maricopa County
                        No. CR2012-150393-001
               The Honorable Karen L. O’Connor, Judge

                      REVERSED AND REMANDED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Maricopa County Legal Defender’s Office, Phoenix
By Cynthia D. Beck
Counsel for Appellant
                            STATE v. BROWN
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Andrew W. Gould delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Maurice Portley joined.


G O U L D, Judge:

¶1            Walter Reid Brown (“Defendant”) appeals from his
conviction and sentence for aggravated assault. He argues the court erred
in denying his Batson challenge to the prosecutor’s peremptory strike of a
potential juror. We agree; therefore we reverse Defendant’s conviction
and sentence and remand for a new trial.

           FACTUAL AND PROCEDURAL BACKGROUND

¶2            Defendant was charged with aggravated assault, a
dangerous offense, for driving his car at a police officer. The facts relevant
to this appeal involve the jury selection process.

¶3           To expedite jury selection, the court had only the first 22
venirepersons provide answers to voir dire. The court instructed the
remaining potential jury members to write down any question they would
answer “yes” to and what that answer would be. If, during the course of
voir dire a juror was excused, the court would then call one of the
remaining potential jurors to replace the excused venireperson; that
individual would then provide his or her answers to any of the applicable
questions.

¶4           Juror 24 was called to replace an excused venireperson;
when asked, he indicated he did not have any “yes” answers to the
questions asked during voir dire.       Later, Juror 24 provided his
biographical information in response to the prompts on the back of his
juror number card as follows:

       PROSPECTIVE JUROR 24: Juror number 24. I’m retired and
       I am divorced and I haven’t served on any jury before this.

       THE COURT: Sir, what did you do before you retired? What
       kind of work?

       PROSPECTIVE JUROR 24: I was a medical doctor.


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                            STATE v. BROWN
                           Decision of the Court

       THE COURT: I’m sorry?

       PROSPECTIVE JUROR 24: I was a medical doctor.

       THE COURT: I can’t hear you.1

       PROSPECTIVE JUROR 24: I was a medical doctor, an MD.

       THE COURT: Oh, thank you, medical doctor, thank you.

¶5            When the prosecutor used a peremptory strike to strike
Juror 24, Defendant made a Batson challenge claiming that the only reason
for the strike was that Juror 24 was of Asian descent, and therefore a
member of a minority group. The prosecutor explained the strike was
motivated by concern over whether Juror 24 adequately understood the
English language and could follow the proceedings. The court denied the
Batson challenge and allowed the strike. Defendant was ultimately
convicted and now timely appeals.

                               DISCUSSION

¶6            The Equal Protection Clause of the Fourteenth Amendment
prevents peremptory strikes of prospective jurors based solely upon race.
Batson v. Kentucky, 476 U.S. 79, 89 (1986). Purposeful racial discrimination
in the jury selection process “violates a defendant’s right to equal
protection because it denies him the protection that a trial by jury is
intended to secure.” Id. at 86. Additionally, “denying a person
participation in jury service on account of his race, . . . unconstitutionally
discriminate[s] against the excluded juror” and the community at large.
Id. at 87; Powers v. Ohio, 499 U.S. 400, 406 (1991). The Equal Protection
Clause guarantees the defendant the “right to be tried by a jury whose
members are selected by nondiscriminatory criteria.” Powers, 499 U.S. at
404; State v. Anaya, 170 Ariz. 436, 439, 825 P.2d 961, 964 (App. 1991)
(“Batson has been interpreted as precluding the peremptory challenge of
any cognizable group when the challenge is made for a discriminatory
purpose.”).


1       The record reflects that shortly before Juror 24 ‘s voir dire, counsel
advised the court that there appeared to be a problem with the courtroom
microphone(s), and as a result they were having difficulty hearing the
jurors’ responses.




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                             STATE v. BROWN
                            Decision of the Court

¶7             Regardless of whether the defendant and the excluded juror
are of the same race, “[t]he discriminatory use of peremptory challenges
by the prosecution causes a criminal defendant cognizable injury.”
Powers, 499 U.S. at 411. “This is not because the individual jurors
dismissed by the prosecution may have been predisposed to favor the
defendant.” Id. ”Rather, it is because racial discrimination in the selection
of jurors ‘casts doubt on the integrity of the judicial process’ . . . and places
the fairness of a criminal proceeding in doubt.” Id. (quoting Rose v.
Mitchell, 443 U.S. 545, 556 (1979)); see also State v. Jordan, 171 Ariz. 62, 66,
828 P.2d 786, 790 (App. 1992) (stating that a person of Asian descent is a
member of a cognizable racial group).

¶8              “We review a trial court’s decision regarding the State’s
motives for a peremptory strike for clear error.” State v. Roque, 213 Ariz.
193, 203, ¶ 12, 141 P.3d 368, 378 (2006).             Absent extraordinary
circumstances, “[w]e give great deference to the trial court’s ruling, based,
as it is, largely upon an assessment of the prosecutor’s credibility.” State v.
Cañez, 202 Ariz. 133, 147, ¶ 28, 42 P.3d 564, 578 (2002). However, we will
not defer to a decision that is “so lacking in support in the evidence that to
give it effect would work that fundamental unfairness which is at war
with due process or equal protection.” Hernandez v. New York, 500 U.S.
352, 368 (1991) (internal citations omitted).

I.     Batson Error

¶9           Defendant argues the court committed clear error when it
denied his Batson challenge based on the following record:

       [DEFENDANT]: Judge, the State has struck Juror number 24,
       Mr. Benjamin Licup, he is the man who is the medical
       doctor. He indicates on his bio that he is of Asian descent.
       As I stated earlier, this jury is devoid of any African
       Americans. It has, by my observations, there are two people
       of Hispanic descent and one person of Asian descent and
       that’s Mr. Licup. Judge, I do not see any basis for striking
       Mr. Licup other than the fact that he is a person of a minority
       group and I am challenging the State’s strike on Batson
       versus Kentucky [sic].

       THE COURT: All right. Counsel.

       [PROSECUTOR]: First of all, Your Honor, the juror in
       question is not of the same race or ethnic group as the
       defendant. I would like to note that for the record. And


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                             STATE v. BROWN
                            Decision of the Court

       second of all, my race neutral reason for striking Juror
       number 24 is due to the fact that I have some serious
       concerns about his ability to understand English, legal
       terminology and also keep up with the speed at which trial
       proceeds based on the -- his ability to articulate the English
       language at the time that he was asked multiple questions
       per the jury voir dire.

       THE COURT: All right. Anything further?

       [DEFENDANT]: Yes. Your Honor, in response to that, I’m
       looking at his bio right now, he has been – he’s a medical
       doctor, he has been in Arizona for 35 years. He has been in
       Maricopa County for 12 years. And there has been no --
       there was no indication, when he was asked if anybody had
       any problems with English, written or otherwise, he did not
       respond to that and I don’t think that that qualifies as a race
       neutral reason for striking him.

       THE COURT: Counsel.

       [PROSECUTOR]: Your Honor, regardless of whether he
       indicated or not, my ability to strike him for cause as
       opposed to striking him as a peremptory strike, there’s a
       differentiation in standard and I would rest on the fact that I
       still do not feel comfortable, based on his ability to articulate
       the English language, his ability to understand the complex
       legal terminologies, jury instructions and testimony that
       may be used, including possibly slang terminology and
       lingo, cop talk and all the likes during the duration of this
       trial.

       THE COURT: All right.            The court finds that [the
       prosecutor’s] explanation given for the strike is race neutral
       and the strike will be allowed, all right?

¶10           “A Batson challenge proceeds in three steps: ‘(1) the party
challenging the strikes must make a prima facie showing of
discrimination; (2) the striking party must provide a race-neutral reason
for the strike; and (3) if a race-neutral explanation is provided, the trial
court must determine whether the challenger has carried its burden of
proving purposeful racial discrimination.’“ Roque, 213 Ariz. at 203, ¶ 13,
141 P.3d at 378 (citations omitted). The third step is fact intensive; the trial
court evaluates the credibility of the State’s proffered explanation,


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                             STATE v. BROWN
                            Decision of the Court

considering factors such 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.” Miller–El
v. Cockrell, 537 U.S. 322, 339 (2003); State v. Newell, 212 Ariz. 389, 401, ¶ 54,
132 P.3d 833, 845 (2006). “Implausible or fantastic justifications may (and
probably will) be found to be pretext[ual].” Newell, 212 Ariz. at 401, ¶ 54,
132 P.3d at 845 (quoting Purkett v. Elem, 514 U.S 765, 768 (1995)).
Moreover, if the prosecutor’s race-neutral explanation is unconvincing in
light of all of the circumstances, the explanation itself can suffice to show
Batson error. Snyder v. Louisiana, 552 U.S. 472, 478 (2008).

¶11           Step one of the Batson analysis was satisfied in this case
when the court asked the prosecutor for a race-neutral explanation for the
strike; by asking this question, “the judge implicitly found that
[D]efendant had met his initial burden to make a prima facie case of
intentional discrimination.” State v. Bustamante, 229 Ariz. 256, 261, ¶ 16,
274 P.3d 526, 531 (App. 2012). In addition, the prosecutor’s explanation
that he was concerned about Juror 24’s ability to understand English is a
plausible race-neutral reason under step two of the Batson analysis. See id.
(stating that prosecutor’s belief juror had some language issues was race-
neutral reason for strike).

¶12           The core dispute in this case centers on the third step of the
Batson analysis; whether the prosecutor’s explanation for his strike was
credible. Id. at 260, ¶ 14, 274 P.3d at 530. This third step is fact intensive,
and turns on the issue of counsel’s credibility, “which the trial court is in a
better position to asses than is this [c]ourt.” Newell, 212 Ariz. at 401, ¶ 54,
132 P.3d at 845. “In the typical peremptory challenge inquiry, the decisive
question will be whether counsel’s race-neutral explanation for a
peremptory challenge should be believed.” Hernandez, 500 U.S. at 365.
Absent exceptional circumstances, we will defer to the trial court. Snyder,
552 U.S. at 477.

¶13            The sole explanation the prosecutor offered for striking Juror
24 was his concern over the potential juror’s ability to understand English.
The prosecutor based this concern on Juror 24’s “ability to articulate the
English language at the time that he was asked multiple questions per the
jury voir dire.”

¶14           The defendant “bears the ultimate burden of persuasion that
the prosecutor’s peremptory strike was racially motivated.” Bustamante,
229 Ariz. at 261, ¶ 17, 274 P.3d at 531; see also Miller-El v. Dretke, 545 U.S.
231, 240 (2005) (“[A] defendant may rely on ‘all relevant circumstances’ to


                                       6
                            STATE v. BROWN
                           Decision of the Court

raise an inference of purposeful discrimination.”). It is the defendant’s
responsibility to develop a factual record to support his claim. Id. Here,
in making his Batson challenge, Defendant pointed out that the prosecutor
had struck all minorities from the prospective jury panel. He also objected
to the prosecutor’s proffered reason for striking Juror 24 based on his
difficulty understanding English. Defendant argued that Juror 24 was a
retired medical doctor, had lived in Arizona for 35 years, and he had not
demonstrated any difficulty understanding English during voir dire.

¶15           We recognize that “[i]t is difficult to ascertain from a
transcript the level of a juror’s command of spoken English.” U.S. v.
Murillo, 288 F.3d 1126, 1136 (9th Cir. 2002). However, the record does not
support the prosecutor’s claim that he struck Juror 24 based on his lack of
English proficiency. Juror 24 did not have occasion to speak more than a
sentence or two during voir dire. During voir dire, he simply indicated he
would not have answered “yes” to any of the court’s prior questions.
During his voir dire of the jury, after Juror 24 had been seated as a
replacement for an excused venireperson, the prosecutor asked the panel
if anyone felt they lacked “sufficient knowledge of legal terminology or
the English language.” Juror 24 did not raise his card. Additionally,
when giving his biographical information, the record gives no indication
that Juror 24 was unable to understand or express himself in English.

¶16           The prosecutor did not assert that Juror 24 seemed
disinterested or otherwise disengaged in the proceedings due to an
inability to understand English. See U.S. v. Changco, 1 F.3d 837, 840 (9th
Cir. 1993) (“So long as the prosecutor (or the defendant, for that matter)
can convince the district court that the potential juror who is being struck
in fact has difficulty with English, the justification is race-neutral.”).
Indeed, the court did not make any findings regarding whether the
prosecutor relied on Juror 24’s demeanor in exercising the strike. See
Snyder, 552 U.S. at 479 (stating that deference is appropriate where a judge
makes a finding, but not where “the record does not show that the trial
judge actually made a determination . . .”).

¶17            Finally, we note that Defendant did not require the
assistance of an interpreter; as a result, any concerns the prosecutor had
were not based on Juror 24’s ability, as a bilingual juror, to accept a court
interpreter’s official interpretation of the testimony. See Hernandez, 500
U.S. at 356-57, 372 (finding no Batson error in prosecutor’s strike of
bilingual jurors who hesitated when asked if they could accept the
interpreter’s translation of the testimony).



                                     7
                            STATE v. BROWN
                           Decision of the Court

¶18            Thus, upon examining the record, we do not find any
support for the prosecutor’s conclusion that Juror 24 was unable to
understand English. To the contrary, the record shows that Juror 24 was a
medical doctor who had lived in Arizona for 35 years, and was able to
express himself quite clearly in English during voir dire. The Batson error
in this case is magnified by the fact that the prosecutor struck all minority
venirepersons from the jury. See State v. Hardy, 230 Ariz. 281, 286-87,
¶¶ 12, 15, 283 P.3d 12, 16-17 (2012) (indicating that a pattern of racial
exclusion can be present where all minority jurors are struck); State v.
Belcher, 623 N.E.2d 583, 588 (Ohio Ct. App. 1993) (stating that use of
peremptory challenges to exclude all minority jurors results in an
inference of racial discrimination). Under these circumstances, “[t]he
prosecutor’s proffer of [his] pretextual explanation naturally gives rise to
an inference of discriminatory intent.” Snyder, 552 U.S. at 485 (stating that
if the prosecutor’s race-neutral explanation is unconvincing in light of all
of the circumstances, the explanation itself can show Batson error); Newell,
212 Ariz. at 401, ¶ 54, 132 P.3d at 845 (“[I]mplausible or fantastic
justification may (and probably will) be found to be pretext[ual].”).

II.    Batson Remedy

¶19             We conclude the record supports Defendant’s Batson
challenge as to Juror 24, and the trial court committed clear error in
denying the challenge. Defendant requests we reverse his conviction and
sentence. Our review of the relevant cases indicates that when a court has
committed Batson error at the third step of the analysis, reversal and
remand for new trial is the appropriate remedy. Batson, 476 U.S. at 100
(“If the trial court decides that the facts establish, prima facie, purposeful
discrimination and the prosecutor does not come forward with a neutral
explanation for his action, our precedents require that petitioner’s
conviction be reversed.”); see e.g., People v. Turner, 726 P.2d 102, 112 (Cal.
1986) (reversing judgment where trial court failed to challenge “the
inadequacy of the prosecutor’s reasons”); People v. Kindelan, 572 N.E.2d
1138, 1145 (Ill. App. Ct. 1991) (finding the State’s explanation for striking
juror not credible and reversing and remanding for new trial); State v.
Bryant, 662 N.E.2d 846, 850-51 (Ohio Ct. App. 1995) (reversing and
remanding for new trial when court committed clear error in accepting
State’s explanation as race-neutral).

¶20          Error at this stage of the analysis is distinct from a court’s
determination of whether a defendant has made a prima facie showing of
discrimination, which can be cured by remand for a reconstruction
hearing to complete the Batson inquiry. See Batson, 476 U.S. at 100


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                            STATE v. BROWN
                           Decision of the Court

(“Because the trial court flatly rejected the objection without requiring the
prosecutor to give an explanation for his action, we remand this case for
further proceedings.”); see also J.E.B. v. Alabama, 511 U.S. 127, 129, 146
(remanding for further proceedings when trial court erred in rejecting
defendant’s prima facie showing of discrimination).

                              CONCLUSION

¶21           For the reasons stated above, Defendant’s conviction and
sentence is reversed, and this matter is remanded to the trial court for a
new trial.




                                   :gsh




                                     9
