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People v. Johnson.

2022 COA 118. No. 19CA0768. Juries—Peremptory Challenges—Batson Challenges—Per Se Approach—Generalized Expert Testimony.

October 13, 2022

Johnson and the victim were in a romantic relationship. They had a physical altercation at the victim’s apartment, and Johnson was charged with first degree burglary, third degree assault, four counts of violation of a protection order, two counts of violation of bond conditions, witness tampering, and attempting to influence a public servant. The prosecutor used a peremptory strike to excuse Juror M, the only Black juror on the panel. Defense counsel challenged the strike under Batson v. Kentucky, 476 U.S. 79 (1986). The trial court confirmed that Juror M was the only person among the first 25 jurors who appeared to be Black but found that Johnson had not established a prima facie case of discrimination at step one of the Batson test. The court stated that even if a prima facie case had been established, the prosecutor satisfied her burden at step two by offering a race-neutral justification for the strike. A jury acquitted Johnson of attempting to influence a public servant but convicted him of the remaining charges.

On appeal, Johnson argued that the trial court erroneously denied his challenge to Juror M. Batson provides a three-step process for evaluating claims of racial discrimination in jury selection. First, the opponent of a peremptory strike must make a prima facie showing that the proponent used the strike against a potential juror because of race. Second, if the opponent establishes a prima facie case, the proponent must provide a race-neutral justification for the strike. Third, if the proponent meets its burden, the opponent may rebut the explanation, and the court must determine whether counsel’s race-neutral explanation should be believed. When a prosecutor offers both a race-based and a race-neutral explanation in response to a Batson challenge, the trial court must apply the “per se” approach and uphold the challenge, because once a discriminatory reason has been provided it taints the entire jury selection process. Here, the trial court erred in finding that Johnson had not established a prima facie case of racial discrimination, but the error is moot because the court proceeded to step two. As to step two, the prosecutor’s initial stated reason for striking Juror M was race based, focusing on Juror M’s questionnaire response that in her experience, law enforcement treats people of different races differently. The prosecutor also offered a race-neutral explanation for opposing the challenge based on Juror M’s response during voir dire that past events are relevant to a particular instance of domestic violence. Applying the per se approach, the court erred at step two by concluding that Juror M’s questionnaire response was an adequate race-neutral reason for the peremptory challenge and sufficient on its own to deny the Batson challenge.

Johnson also contended that the court abused its discretion by admitting generalized domestic violence expert testimony because the testimony did not fit the case facts and was more prejudicial than probative. However, a generalized expert’s testimony does not need to perfectly fit the case facts. Here, a domestic violence expert qualified to opine on victim and offender behavior in domestic violence relationships described common power dynamics in domestic violence relationships and common abuser and victim behavior that might seem counterintuitive to jurors. She also testified about offenders’ minimizing, denying, and blaming behavior, which logically fit with evidence of recorded phone calls showing Johnson belittling and mocking the victim. Accordingly, the record supports the logical connection between the witness’s testimony and this case, and the trial court did not abuse its discretion.

The judgment was reversed and the case was remanded with directions.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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