Paul Louis FIELDS, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
No. 84SC382.
Supreme Court of Colorado, En Banc.
Feb. 17, 1987.
Rehearing Denied March 9, 1987.
732 P.2d 1145
Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Maureen Phelan, Asst. Atty. Gen., Denver, for respondent.
DUBOFSKY, Justice.
We granted certiorari to review the decision of the court of appeals in People v. Fields, 697 P.2d 749 (Colo.App.1984), affirming the conviction of the defendant, Paul Louis Fields, of one count of first degree murder and two counts of attempted first degree murder. The court of appeals upheld the district court‘s refusal to consider the defendant‘s argument that the prosecutor was using his peremptory challenges in an unconstitutional manner to exclude Spanish-surnamed persons from the jury panel. We hold that a prosecutor‘s use of peremptory challenges systematically to exclude Spanish-surnamed persons from a jury deprives a defendant of the right to trial by an impartial jury guaranteed by the sixth amendment to the federal constitution and
I.
In August, 1980, the defendant began employment as a security guard at an Aurora K-Mart store. Jay Davis was the director of security for the store, and Doug Clunie was the immediate supervisor of the defendant and Davis. The store‘s manager was Anthony Butera. The defendant, who is black, testified at trial that he had a good working relationship with Davis and Butera and that his working relationship with Clunie initially had been good. However,
On March 19, 1981, the day after the district manager went to the store and discussed the name-calling incidents with Butera and Davis, the defendant was told that Butera had his time card and that he should go to Butera‘s office where Clunie and Davis joined Butera and the defendant. Butera told the defendant that his employment was terminated. The defendant responded by pulling a gun from his pocket and shooting Davis and Clunie; the defendant also fired toward Butera, but the shots missed him. Clunie died as a result of his wounds, and Davis was permanently injured.
The defendant was tried in the Arapahoe County District Court. During voir dire, after the prosecution had exercised six of its ten allotted peremptory challenges,1 the defendant moved for a mistrial and for quashing of the jury panel on the ground that the prosecution was using its peremptory challenges systematically to exclude minority group members from the jury panel. In support of his motion, the defendant noted that the prosecution had exercised its second, fourth, and sixth peremptory challenges against Spanish-surnamed persons. The prosecution did not respond to the motion, which was denied by the court without discussion except to note that the defendant had exercised his fourth peremptory challenge to excuse the only remaining Spanish-surnamed panel member.
The jury finally seated did not have any black or Spanish-surnamed jurors. After the jury returned guilty verdicts against the defendant, he moved for a new trial, again raising the issue of the prosecution‘s use of peremptory challenges. The court denied the motion, and the defendant appealed to the court of appeals.
The court of appeals decided that the district court did not err in refusing to consider the defendant‘s claim that the prosecution had exercised its peremptory challenges in an unconstitutional manner. In so holding, the court of appeals relied on Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), in which the United States Supreme Court held that a defendant could not establish a violation of the equal protection clause of the fourteenth amendment solely on the basis of the prosecutor‘s use of peremptory challenges at the defendant‘s trial. The court of appeals declined the defendant‘s invitation to hold that the jury selection procedure implicated the sixth amendment or state constitutional provisions.2
II.
Swain v. Alabama, relied on by the court of appeals and the People, involved a challenge by a black defendant in a rape trial to the selection of the jury. The defendant pointed out that the six black people available for jury service in his case were all struck by the prosecutor through the use of what were, in effect, peremptory challenges, and the case was tried to an all-white jury. The defendant alleged that the systematic striking of blacks from the jury venire constituted purposeful discrimination in violation of the equal protection clause of the fourteenth amendment to the United States Constitution.
The presumption in any particular case must be that the prosecutor is using the State‘s challenges to obtain a fair and impartial jury to try the case before the court. The presumption is not overcome and the prosecutor therefore subjected to examination by allegations that in the case at hand all Negroes were removed from the jury or that they were removed because they were Negroes.
Id. at 222, 85 S.Ct. at 837. The Court, however, suggested that the presumption of propriety in the use of peremptory challenges might be overcome by proof of a “prosecutor‘s systematic use of peremptory challenges against Negroes over a period of time.” Id. at 227, 85 S.Ct. at 839.
The Wheeler approach to allegations of unconstitutional use of peremptory challenges was adopted basically intact by the supreme courts of Delaware, Riley v. State, 496 A.2d 997 (Del.1985), cert. denied, --- U.S. ---, 106 S.Ct. 3339, 92 L.Ed.2d 743 (1986), Massachusetts, Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499 (1979), cert. denied 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979), and New Jersey, State v. Gilmore, 103 N.J. 508, 511 A.2d 1150 (1986).4 In State v. Neil, 457 So.2d 481 (Fla.1984), the Supreme Court of Florida adopted a modified version of the Wheeler approach.5 The New Mexico Court of Appeals also held that in a proper case a defendant, employing the Wheeler method of proof, could make out a violation of the New Mexico state constitution based on the prosecutor‘s use of peremptory challenges. State v. Crespin, 94 N.M. 486, 612 P.2d 716 (App.1980). In Booker v. Jabe, 775 F.2d 762 (6th Cir.1985) (cert. granted sub nom. Michigan v. Booker, --- U.S. ---, 106 S.Ct. 3289, 92 L.Ed.2d 705 (1986) and McCray v. Abrams, 750 F.2d 1113 (2d Cir.1984) cert. denied 461 U.S. 961, 103 S.Ct. 2438, 77 L.Ed.2d 1322 (1983), 756 F.2d 277 (2d Cir.1985) (en banc denial of reconsideration), cert. granted --- U.S. ---, 106 S.Ct. 3289, 92 L.Ed.2d 705 (1986) (judgments vacated and cases remanded for further consideration in light of Allen v. Hardy, --- U.S. ---, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986), which held that Batson v. Kentucky, --- U.S. ---, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), is not to be applied retroactively to convictions that were final before Batson decided), two United States courts of appeals held that a claim of violation of the sixth amendment to the federal constitution could be established on the basis of the use of peremptory challenges to exclude jurors on racial grounds in a particular trial.
The defendant urges us to follow the Wheeler line of cases by holding that the prosecutor‘s use of his peremptory challenges to exclude Spanish-surnamed persons from a jury panel solely on the basis of presumed group characteristics violates the right to trial by an impartial jury guaranteed by the sixth amendment to the federal constitution6 and by
III.
After this case was briefed and argued, the United States Supreme Court issued its
The People, in their list of supplemental authorities, cite Batson, emphasizing the Court‘s determination that in order to make out a prima facie equal protection violation based on the use of peremptory challenges a “defendant first must show that he is a member of a cognizable racial group ... and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant‘s race.” 106 S.Ct. at 1723. The People appear to be suggesting that the equal protection analysis employed in Batson is not applicable to the facts of this case where a black defendant is protesting the exclusion of Spanish-surnamed jurors. It is true that cases in which jury selection procedures have been found to violate equal protection, the defendants and the improperly excluded jurors were almost invariably members of the same group. Perhaps out of recognition of this fact, some commentators have noted that “[u]nder the Strauder ... equal protection approach, the constitutional challenge can be made only by a defendant who is a member of the excluded class....” W. LaFave and J. Israel, Criminal Procedure, ch. 21, § 21.2 at 709 (1984) (footnote omitted).9
The validity of this statement as a matter of constitutional doctrine depends on the definition of the equal protection right recognized in cases such as Strauder and Batson. In both of these cases, the Court observed that a defendant is denied equal protection where discriminatory jury selection practices deprive him of the opportunity to have a jury that includes “persons having the same legal status in society as that which he holds.” Batson, 106 S.Ct. at 1717 (quoting Strauder, 100 U.S. at 308). Under equal protection doctrine the right to be tried before a jury of one‘s peers is not so clearly undermined where the excluded jurors are not members of the same group as the defendant.10 However,
The question whether the equal protection clause prohibits the exclusion of jurors of one group in the trial of a defendant of a different group need not be resolved here because it is clear that regardless of whether the allegations of the defendant in this case would support an equal protection challenge, the issue raised by the defendant in his petition for certiorari and upon which we granted review is whether the prosecution‘s use of peremptory challenges violated the defendant‘s right to a trial by an impartial jury under the sixth amendment to the federal constitution and
Under both federal and state constitutions, the right to an impartial jury includes the right to a jury drawn from a representative or fair cross-section of the community. Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975); Aurora by and on behalf of People v. Rhodes, 689 P.2d 603 (Colo.1984); People v. Moody, 630 P.2d 74 (Colo.1981); People v. Sepeda, 196 Colo. 13, 581 P.2d 723 (1978). The court in Taylor gave the following reasons for finding the fair cross-section requirement fundamental to the impartial jury guarantee of the sixth amendment:
The purpose of a jury is to guard against the exercise of arbitrary power—to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps over-conditioned or biased response of a judge. Duncan v. Louisiana, 391 U.S. [145] at 155-156 [88 S.Ct. 1444, 1450-1451, 20 L.Ed.2d 491 (1968)]. This prophylactic vehicle is not provided if the jury pool is made up of only special segments of the populace or if large, distinctive groups are excluded from the pool. Community participation in the administration of the criminal law, moreover, is not only consistent with our democratic heritage but is also critical to public confidence in the fairness of the criminal justice system.... “Trial by jury presupposes a jury drawn from a pool broadly representative of the community as well as impartial in a specific case.... [T]he broad representative character of the jury should be maintained, partly as assurance of a diffused impartiality and partly because sharing in the administration of justice is a phase of civic responsibility.” Thiel v. Southern Pacific Co., 328 U.S. 217, 227 [66 S.Ct. 984, 989, 90 L.Ed. 1181] (1946) (Frankfurter, J., dissenting).
In McCray v. Abrams, 750 F.2d at 1131, the United States Court of Appeals for the Second Circuit articulated a sixth amendment standard for voir dire:
[I]n order to establish a prima facie violation of his right to the possibility of a fair cross section in the petit jury, the defendant must show that in his case, (1) the group alleged to be excluded is a cognizable group in the community, and (2) there is a substantial likelihood that the challenges leading to this exclusion have been made on the basis of the individual venirepersons’ group affiliation rather than because of any indication of a possible inability to decide the case on the basis of the evidence presented.13
The Second Circuit justified the application of the cross-section requirement to the petit jury on the basis that “[i]f there is a Sixth Amendment requirement that the venire represent a fair cross-section of the community it must logically be because it is important that the defendant have the chance that the petit jury will be similarly constituted.... [T]he Amendment simply prohibits the state‘s systematic elimination of the possibility of such a carry-over.” 750 F.2d at 1128-29. See also Booker v. Jabe, 775 F.2d at 771. Relying on McCray, the New Jersey Supreme Court in Gilmore, 511 A.2d at 1160, held that the right to an impartial jury entails the guarantee that the state‘s use of peremptory challenges does not restrict unreasonably the possibility that the petit jury will comprise a representative cross-section of the community. See also Wheeler, 148 Cal.Rptr. at 903, 583 P.2d at 762 (“[A] party is constitutionally entitled to a petit jury that is as near an approximation of the ideal cross-section of the community as the process of random draw permits.“).
The peremptory, made without giving any reason, avoids trafficking in the core of truth in most common stereotypes.... Common human experience, common sense, psychosociological studies, and public opinion polls tell us that it is likely that certain classes of people statistically have predispositions that would make them inappropriate jurors for particular kinds of cases. But to allow this knowledge to be expressed in the evaluative terms necessary for challenges for cause would undercut our desire for a society in which all people are judged as individuals and in which each is held reasonable and open to compromise.... Instead we have evolved in the peremptory challenge a system that allows the covert expression of what we dare not say but know is true more often than not.
Id. at 1735-1736. The chief justice concluded that there is no middle ground between a challenge for cause that has to be explained and a peremptory challenge that does not. Id. at 1739. Justice Marshall, concurring in Batson, would eliminate peremptory challenges entirely. 106 S.Ct. 1712, 1726 (Marshall, J., concurring). He observed that the inherent potential of peremptory challenges to distort the jury process by permitting the exclusion of jurors on racial grounds should not be countenanced and that use of peremptory challenges by both prosecutors and defendants should be eliminated. Id. at 1728-1729.
The majority in Batson adopted an intermediate position, described more fully in Part IV, infra. The Batson court described Swain as accommodating the prosecutor‘s historical privilege of peremptory challenge free of judicial control and the constitutional prohibition on exclusion of persons from jury service on account of race. Id. at 1720. To preserve the peremptory nature of the prosecutor‘s challenges, the court in Swain declined to scrutinize the prosecutor‘s actions in a particular case by relying on a presumption that the challenges were exercised properly. Id. The effect of Swain was to place “on defendants a crippling burden of proof” and leave prosecutors’ peremptory challenges “largely immune from constitutional scrutiny.” Id. at 1720-1721. To subject the prosecutor‘s exercise of peremptory challenges to more effective review under the equal protection clause, the court in Batson concluded that a “defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury
Fourteenth Amendment” as having involved “such groups as blacks, women, and Mexican-Americans.” Lockhart v. McCree, --- U.S. ---, 106 S.Ct. 1758, 1765, 90 L.Ed.2d 137 (1986) (citations omitted).
State supreme courts relying primarily on state constitutional provisions have identified groups distinguished on racial, religious, ethnic or similar grounds, Wheeler, 148 Cal.Rptr. at 902, 583 P.2d at 761; Soares, 387 N.E.2d at 515 n. 29 and 516 n. 33; Gilmore, 511 A.2d at 1158-1159, n. 3. Colorado‘s constitution does not contain a provision comparable to those in the California, Massachusetts and New Jersey constitutions. However,
Batson places limits on the exercise of peremptory challenges when a defendant raises a prima facie equal protection claim. The only reason we can perceive for not placing similar limits on the exercise of peremptory challenges when the defendant raises a prima facie impartial jury claim is that the impartial jury claim may be made by a defendant who would not be entitled to raise the issue under equal protection analysis because the excluded jurors are not members of the same group as the defendant.18 Given the concern voiced by the United States Supreme Court in Batson that “public respect for our criminal justice system and the rule of law will be strengthened if we ensure that no citizen is disqualified from jury service because of his race,” id. at 1724, and given our limited application of the term cognizable group in this case, we believe that recognition of the defendant‘s right to establish a prima facie case that the prosecutor‘s exercise of peremptory challenges to exclude Spanish-surnamed persons denied him an impartial jury will not limit significantly the fair exercise of peremptory challenges. Accordingly, contrary to the ruling of the court of appeals, we conclude that a prosecutor‘s purposeful, discriminatory and systematic exercise of peremptory challenges in a given case to exclude from the jury panel Spanish-surnamed persons solely on the basis of presumed group characteristics violates the sixth amendment to the United States Constitution and
We reiterate that the right to a jury comprising a fair cross-section of the community does not require that each petit jury mirror the demographic composition of the community or that any particular jury actually contain members of the defendant‘s own group. Taylor, 419 U.S. at 538, 95 S.Ct. at 701; People v. Moody, 630 P.2d at 79; People v. Sepeda, 581 P.2d at 727. The right to trial by an impartial jury does guarantee that the possibility of a petit jury in a given case representing a fair cross-section of the community will not be limited arbitrarily by the discriminatory and systematic use of peremptory challenges.
IV.
The question that we next address concerns the framework for analyzing claims of unconstitutional use of peremptory challenges in a given case. In resolving this question we have the benefit of the procedure developed in Wheeler and followed in subsequent cases, including Batson.
[T]he party may show that his opponent has struck most or all of the members of the identified group from the venire, or has used a disproportionate number of peremptories against the group. He may also demonstrate that the jurors in question share only this one characteristic—their membership in the group—and that in all other respects they are as heterogeneous as the community as a whole. Next the showing may be supplemented when appropriate by such circumstances as the failure of his opponent to engage the same jurors in more than desultory voir dire, or indeed to ask them any questions at all. Lastly ... the defendant need not be a member of the excluded group in order to complain of a violation of the representative cross section rule; yet if he is, and especially if in addition his alleged victim is a member of the group to which the majority of the remaining jurors belong, these facts may also be called to the court‘s attention.
(footnote omitted).19 See also Batson, 106 S.Ct. at 1722-1723.
After the defendant has presented evidence supporting a claim of unconstitutional discrimination in the use of peremptory challenges, the trial court must determine whether the evidence is sufficient to establish a prima facie case. If the court decides that a prima facie case has been made out, the burden then shifts to the state to rebut the inference that the jurors were excluded solely because of group membership. The prosecutor need not provide reasons for excluding the jurors that would justify a challenge for cause. Instead, the prosecutor must articulate reasons for the exercise of the disputed challenges that are unrelated to membership in a cognizable group and rea-
V.
The final question that must be decided concerns the applicability of the principles and procedures discussed above to the facts of the case before us. The People suggest that the conviction should be affirmed because the record of the voir dire presents sufficient nondiscriminatory reasons for which the prosecutor might have dismissed the three Spanish-surnamed jurors. As an alternative position, the People argue that the case should be remanded to the district court in order to permit the prosecutor to articulate his reasons for dismissing these jurors. The defendant, while conceding that a remand for further hearing would be acceptable, urges that a new trial is the most appropriate remedy.
We acknowledge the recognition in Wheeler, 148 Cal.Rptr. at 906, 583 P.2d at 764, that trial judges are in the best position to evaluate a prosecutor‘s explanation of reasons for exercising peremptory challenges because of their knowledge of local prosecutors and conditions as well as “their powers of observation, their understanding of trial techniques, and their broad judicial experience;” we believe, however, that the record here is sufficient for us to determine that the defendant failed to establish a prima facie case of unconstitutional discrimination in the use of peremptory challenges. See United States v. Andrade, 788 F.2d 521, 524-525 (8th Cir.1986), cert. denied --- U.S. ---, 107 S.Ct. 462, 93 L.Ed.2d 408 (1986). The persons excluded from the jury are Spanish-surnamed and thus members of a cognizable group, but our review of the voir dire convinces us that the circumstances do not support the defendant‘s argument that there is a strong likelihood that the jurors were excused solely because of their membership in the group.
In this case, the district court asked preliminary questions of the prospective jurors and then both the People and defense counsel asked numerous questions. In response to these questions, prospective juror Barela, against whom the People exercised their second peremptory challenge, stated that he had a friend who recently had been charged with murder. Although the case had been resolved, Barela had known his friend for many years and found it difficult to think his friend could have committed a murder. The People exercised their fourth peremptory challenge against prospective juror Abeyta. Abeyta was employed as a high school counselor at Abraham Lincoln High School. The People exercised their sixth peremptory challenge against prospective juror Gutierrez, who in response to the prosecutor‘s question, “Have you formed an opinion about the defendant‘s guilt?” responded, “No,” but that he had been in situations where he had almost been fired from his job and felt very badly about it. He stated, “I felt like killing somebody you know.” In response to another question, he indicated that he empathized with the defendant and that when “someone hurts your feelings, you feel like defending yourself ... because you should have a little respect, too.” He also stated that when someone gets mad, “you can do anything ... five minutes later you‘ll be sorry.”
When the defendant‘s counsel moved for a mistrial on the basis of the People‘s exercise of peremptory challenges against Spanish-surnamed prospective jurors, the court responded that the defendant had removed one of the Spanish-surnamed jurors, prospective juror Pacheco. The defendant‘s counsel responded that he had challenged Pacheco because at age forty-five Pacheco claimed never to have heard or seen any racial discrimination or have been in a fight and to not recall ever being in an argument. In a self-defense case, according to defense counsel, that sort of juror was unacceptable.
Judgment affirmed.
LOHR, J., specially concurs.
VOLLACK, J., specially concurs in the result only, and ERICKSON, J., joins in the special concurrence.
LOHR, Justice, specially concurring.
I agree with the result reached by the majority. As detailed in part V of the majority opinion, the record does not support a contention that the prosecution peremptorily challenged Spanish-surnamed venirepersons for discriminatory reasons. Under these circumstances, it is unnecessary to address the difficult constitutional issues discussed in detail in the majority opinion, and I think it inadvisable to do so. See People v. Fields, 697 P.2d 749, 761 (Colo.App.1984) (Kelly, J., specially concurring).
VOLLACK, Justice, specially concurring in the result only:
I agree with the majority‘s decision to affirm the judgment of the court of appeals, upholding the defendant‘s conviction of first degree murder and attempted first degree murder. I write separately, however, because I believe it is unnecessary for us, given the facts of this case, to adopt the Wheeler approach and hold that the discriminatory use of peremptory challenges by a prosecutor violates the sixth amendment to the federal constitution and article II, section 16, of the Colorado Constitution. In light of the ultimate holding of the majority, namely, that the defendant could not establish a prima facie case under either the sixth amendment right to an impartial jury, or the equal protection clause of the fourteenth amendment, it is unnecessary to adopt an approach which leaves issues unresolved and contains open-ended interpretations of key principles.
I.
The unpopularity of the Swain case prompted a few state courts to interpret the sixth amendment and their state constitutional provisions on the right to an impartial jury as preventing the discriminatory use of peremptory challenges. E.g., People v. Wheeler, 22 Cal.3d 258, 583 P.2d 748, 148 Cal.Rptr. 890 (1978); Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979). However, the majority of courts have rejected this interpretation. E.g., United States v. Clark, 737 F.2d 679 (7th Cir.1984); Willis v. Zant, 720 F.2d 1212 (11th Cir.1983), cert. denied, 467 U.S. 1256, 104 S.Ct. 3546, 3548, 82 L.Ed.2d 849, 851 (1984); United States v. Whitfield, 715 F.2d 145 (4th Cir.1983); United States v. Childress, 715 F.2d 1313 (8th Cir.1983), cert. denied, 464 U.S. 1063, 104 S.Ct. 744, 79 L.Ed.2d 202 (1984); Weathersby v. Morris, 708 F.2d 1493 (9th Cir.1983), cert. denied, 464 U.S. 1046, 104 S.Ct. 719, 79 L.Ed.2d 181 (1984); State v. Wiley, 144 Ariz. 525, 698 P.2d 1244 (1985); State v. Stewart, 225 Kan. 410, 591 P.2d 166 (1979); State v. Sims, 639 S.W.2d 105 (Mo.App. 1982); Nevius v. State, 101 Nev. 238, 699 P.2d 1053 (1985); Commonwealth v. Henderson, 497 Pa. 23, 438 A.2d 951 (1981); State v. Ucero, 450 A.2d 809 (R.I. 1982); State v. Grady, 93 Wis.2d 1, 286 N.W.2d 607 (1979). The California Supreme Court, in People v. Wheeler, was reacting to what it viewed as an almost impossible burden of proof under Swain‘s interpretation of the equal protection clause, which required a defendant to show that the prosecutor systematically used peremptory challenges against a racial group over an extended period of time. With the advent of Batson v. Kentucky, --- U.S. ---, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), which overrules Swain, such an impossible burden no longer exists.
I believe the Wheeler analysis adopted by the majority rests on a faulty premise that equates impartiality with representativeness. If a jury must be cross-sectional, i.e., representative, to be impartial, then it must be cross-sectional in every case. However, virtually all the courts that follow Wheeler subscribe to the proposition that there is
no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population. Defendants are not entitled to a jury of any particular composition, but the jury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof.
Taylor v. Louisiana, 419 U.S. 522, 538, 95 S.Ct. 692, 702, 42 L.Ed.2d 690 (1975) (citation omitted). Wheeler and its progeny subscribe to the notion that impartiality is achieved through the mixing of a variety of views on the jury itself, and that the way to achieve impartiality is through the representation of that variety on a petit jury so that views associated with group membership can mix and, if antagonistic, cancel each other out. Wheeler, 22 Cal.3d at 266-67, 583 P.2d at 754-55, 148 Cal.Rptr. at 896; Soares, 377 Mass. at 480-83, 387 N.E.2d at 512-13. This premise, that particular groups have particular views and thus must be represented on a jury for that jury to be impartial, continues the stereotypical thinking that Wheeler seeks to eliminate, i.e., the conception of group bias. If members of groups think in a particular way, then it would be the obligation of both the prosecution and the defense to remove groups unfavorable to their side.
I disagree with the majority‘s statement that the ideal impartial jury is one where its members are different from each other and individually indifferent. Maj. op. at 1153 n. 14. Ideally, group membership should not be a consideration for the making of an impartial jury.
The sixth amendment analysis as adopted by the majority is a double-edged sword for the defendant. Although the sixth amendment affords protection only to the defendant, there is nothing in its language or its history to suggest that the state may not protect itself from jurors who are partial to the defense. S. Saltzburg & M. Powers, Peremptory Challenges and The Clash Between Impartiality and Group Representation, 41 Md.L.Rev. 337, 354 (1982). The Wheeler approach, based on the California Constitution, recognizes the ability to challenge the use of peremptories on the part of the prosecution as well as the defense. 22 Cal.3d at 281 n. 28, 583 P.2d at 765 n. 28, 148 Cal.Rptr. at 906 n. 28. “The state, no less than a defendant, is entitled to an
Thus, according to the unique provisions of the California Constitution as interpreted in Wheeler, either side can violate the fair cross-section requirement. This could prove very problematic for the defense, for whom the right to peremptory challenges is of great importance because they are so personally involved in the result of the trial and, therefore, are usually given more peremptory challenges than is the government. United States v. Newman, 549 F.2d 240, 250 n. 8 (2d Cir.1977).1 I cannot endorse the adoption of an analysis which requires proportional representation on juries because it would carry the divisive implication that without such a system of proportional representation, juries would be unable to be impartial. See Ristaino v. Ross, 424 U.S. 589, 596 n. 8, 96 S.Ct. 1017, 1021 n. 8, 47 L.Ed.2d 258 (1976); Note, The Defendant‘s Right to Object to Prosecutorial Misuse of the Peremptory Challenge, 92 Harv.L.Rev. 1770, 1777 n. 53 (1979). This would conflict with the long established principle that a petit jury need not mirror the community to be considered impartial. Taylor, 419 U.S. at 538, 95 S.Ct. at 702.
II.
My primary concern with the majority‘s sixth amendment analysis is the definition of “cognizable groups” or “distinctive groups,” which, under the sixth amendment, are those groups that “are sufficiently numerous and distinct” so that if they are systematically excluded from the jury venires, “the sixth amendment fair cross-section requirement cannot be satisfied.” Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979) (quoting Taylor, 419 U.S. at 531, 95 S.Ct. at 698). I do not object to the majority‘s holding that spanish-surnamed persons are a cognizable group. (Maj. op. at 1153). However, I do object to the phrasing used by the majority in defining “cognizable group:” “[W]e believe that a group is legally cognizable if it is defined on the basis of race, national origin, religion or sex.” (Maj. op. at 1153-1154 n. 15.) The use of the words “we believe,” coupled with their location in a footnote, fails to provide sufficient guidance for compliance with this opinion and leaves “cognizable group” subject to interpretation.
In State v. Gilmore, 103 N.J. 508, 511 A.2d 1150 (1986), cited by the majority, the New Jersey Supreme Court stated that “at minimum, cognizable groups include those defined on the basis of religious principles, race, color, ancestry, national origin, and sex.” 511 A.2d at 1159 n. 3 (emphasis added). As the majority here, the Gilmore court found it unnecessary to determine the scope of “cognizable group” definitively.
Because I believe that the majority‘s definition of “cognizable group” is vague and because the facts of this case clearly do not require it, I would not adopt the majority‘s sixth amendment analysis and embracement of Wheeler.
I am authorized to state that ERICKSON, J., joins in this special concurrence.
Notes
In my view, there is simply nothing ‘unequal’ about the State using its peremptory challenges to strike blacks from the jury in cases involving black defendants, so long as such challenges are also used to exclude whites in cases involving white defendants, Hispanics in cases involving Hispanic defendants, Asians in cases involving Asian defendants, and so on.
Batson, 106 S.Ct. at 1744 (Rehnquist, J., dissenting).