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People v. Romero.

2022 COA 119. No. 20CA0143. Juries—Peremptory Challenges—Batson Challenges.

October 13, 2022

Romero was charged with various criminal offenses. During jury selection, the prosecution used a peremptory challenge on Juror F, one of two Hispanic jurors in the pool. Defense counsel raised a challenge under Batson v. Kentucky, 476 U.S. 79 (1986), arguing that the strike was based on Juror F’s race. The prosecution responded that it was striking Juror F because he appeared disinterested and unfocused on the proceedings. Defense counsel stated that he observed no inattentive or disinterested behavior, and the trial court made explicit findings that it did not observe anything from Juror F suggesting that he was inadequately participating in the trial. The trial court overruled the Batson challenge. Romero was convicted as charged and found guilty of five habitual criminal counts.

On appeal, Romero argued that the trial court erred by overruling his Batson challenge. Batson’s three-step process for determining whether a peremptory challenge was based on racial discrimination requires first that the objecting party make a prima facie showing that the strike was based on race. Second, if the objecting party meets this burden, the burden shifts to the striking party to articulate a nondiscriminatory reason for the strike. Third, if the striking party meets its burden, the trial court must determine whether, given the proffered nondiscriminatory reason, the objecting party met its burden to show purposeful discrimination by a preponderance of the evidence. If a party fails to meet its burden at steps one or two, the trial court need not proceed to the next step. But if the trial court hears the prosecution’s proffered nondiscriminatory reason and makes a step-three ruling, any challenge to the court’s step-one ruling is moot. Here, by evaluating the credibility of the prosecution’s nondiscriminatory reason, the trial court mooted the step-one ruling and any challenge to it, and by then excusing Juror F, the trial court completed a step-three finding that defense counsel had failed to prove purposeful discrimination. The only record support for the trial court’s step-three ruling was the prosecution’s step-two unexplained and unsupported subjective impression, which is enough to satisfy step two but cannot, by itself, constitute sufficient record support for a step-three ruling denying a Batson challenge. Therefore, the trial court clearly erred, the error was structural, and automatic reversal was required.

The judgment of conviction was reversed and the case was remanded for retrial.

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

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