Peo v. Witherspoon

19CA0820 Peo v Witherspoon 10-21-2021 COLORADO COURT OF APPEALS Court of Appeals No. 19CA0820 El Paso County District Court No. 18CR3767 Honorable Jill M. Brady, Judge The People of the State of Colorado, Plaintiff-Appellee, v. Calil Jamari Witherspoon, Defendant-Appellant. JUDGMENT AFFIRMED Division I Opinion by JUDGE DAILEY Dunn and Kuhn, JJ., concur NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 21, 2021 Philip J. Weiser, Attorney General, Hanna Bustillo, Assistant Attorney General Fellow, Denver, Colorado, for Plaintiff-Appellee Megan A. Ring, Colorado State Public Defender, Elyse Maranjian, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant 1 ¶ 1 Defendant, Calil Jamari Withersp oon, appeals the judgment of conviction entered on jury verdicts finding him guilty of attempt ed first degree assault, menacing, an d prohibited use of a weapon. He contends that the trial court (1) cl early erred by denying his claim under Batson v. Kentucky , 476 U. S. 79 (1986), challenging the prosecution’s use of a peremptory strike on a prospective juror, and (2) erred in not merging his convict ion for prohibited use of a weapon into his conviction for at tempted first degree assault. We discern no reversible error and th erefore affirm. I. Background ¶ 2 The charges in this case were bas ed on Witherspoon’s act of firing a gunshot in the presence of his ex-girlfriend. The key disputed issue at trial was wheth er Witherspoon intended to shoot her, or instead fired the gunshot to scare her. ¶ 3 The jury acquitted Witherspoon on the most serious charge of attempted first degree murder, but convicted him of the remaining charges. II. The Batson Claim ¶ 4 Witherspoon’s Batson claim is based on the prosecutor’s use of a peremptory challenge to excus e prospective juror T.D. 2 ¶ 5 As voir dire began, fourteen pros pective jurors were seated in the jury box and the remaining fif ty-one prospective jurors were seated in the courtroom gallery. T.D. was prospective juror number 28, with thirteen other prospectiv e jurors seated before her in the gallery. ¶ 6 T.D. identified herself as African- American on the written juror questionnaire. In the space on t hat questionnaire for jurors to provide any comments they “feel a re important,” T.D. wrote, “[t]h e wait to enter the courthouse was exemly long and it freezing cold outside and enhaling 2nd hand sm oke.” ¶ 7 During voir dire, the only comm ents T.D. made were in the following exchange with defense co unsel, after counsel had asked the venire members what their d efinition of a child was (which was presumably based on the fact that Witherspoon was in his late teenage years at the time of the cri me): Defense Counsel: [T.D.,] [a]ny t houghts, opinions? T.D.: My opinion of a child is onc e he can’t be on my income tax, they are not a chi ld. Defense Counsel: I think that’s wh at my parents said too. 3 T.D.: But I will have to listen to t he whole thing, and the prosecution would have to prove that the person is guilty. ¶ 8 After some prospective jurors w ere dismissed for cause, the parties began using their perempto ry challenges. When defense counsel used her sixth and final pe remptory challenge, it was T.D.’ s turn to take that empty seat in the jury box. The prosecutor, t hen exercised a peremptory challenge on T.D. ¶ 9 Defense counsel raised a Batso n challenge, arguing, [T.D.] self-identified on the jury qu estionnaire as African-American. She’s also a pparently African-American. And the pros ecution did not ask [T.D.] one question during jury questioning. When the defense as ked her a question, the only responses she h ad was, I think kids are kids until they g et off my income tax, and that she would ha ve to listen to the whole story. There are simil ar white women of her age who have not be en exercised for challenge. ¶ 10 The prosecutor responded, She wrote in her questionnaire tha t she was upset about the wait to get into t he courthouse and the secondhand smoke and th at it was cold. Her whole demeanor all day looks like we’ve been putting her out, sour lo ok on her face. The only time she cracked a smile and seemed engaged was when she mad e the joke about a kid is not a kid when th ey are not on your taxes anymore. Other than that she just 4 gave body language. The whol e time shelooked like she was not happy to be here. ¶ 11 In response, defense counsel disp uted the prosecutor’s characterization of T.D.’s demean or. According to defense counsel, she had a better view than the pr osecutor of T.D. during voir dire, T.D. had been “been listening and paying attention,” and T.D. mad e a “joke” in response to the question about the definition of a child. Defense counsel also argued that if the prosecutor had a concern about T.D.’s demeanor, the prosec utor should have questioned T.D. on that issue, but did not ask T. D. any questions. ¶ 12 The court denied Witherspoon’s Ba tson challenge, explaining its ruling as follows: [E]ven saying that [the] defense h as made out a prima facie case that the prosec ution struck [T.D.] because of her race, I think t hat [the prosecutor] has provided a credibl e race-neutral reason for striking [T.D. ] The Court would note that [the pro secutor] has given the reason that [T.D.] expr essed what I’m characterizing as sort of a sour attitude toward the system or process earlier in her jury questionnaire by indicating that she didn’t like having to wait in line or the smell of secondhand smoke, and [the pros ecutor] observed that [T.D.] was disengaged f rom the process and that’s why she struck her, not on the basis of race. 5 So it’s up to me to determine whether or not I believe counsel has raised a n eutral explanation for peremptory chall enge. The best evidence often will be the dem eanor of the attorney who exercises the challeng e[.] . . . The critical question becomes th e persuasiveness of the prosecutor’s justification for the peremptory challenge. And I’m persuaded by [the prosecutor’s] off ered reason. The court is to gauge the prosecuto r’s credibility by evaluating her demea nor, how reasonable or improbable the explanations are and by whether the proffered rational e has some basis in accepted trial strat egy. So again, I would find that [the pro secutor] has given race-neutral reasons that I find to be credible, and so I deny the chall enge. ¶ 13 After the final jury was selected, the parties made a further record regarding the prosecutor’s peremptory challenge of T.D. Th e defense argued that even if the pro secutor sincerely believed that T.D. was not happy to be there an d had a “sour look” on her fac e, that could be based on unconsciou s internalization of racial stereotypes. The prosecutor argu ed that there were other minorities on the final jury who she did not exercise peremptory challenges on, and that she exercised her challen ge on T.D. in part because she wanted prospective juror D.A. to serv e on the jury (D.A. was the 6 final juror seated after the prosecutor chose not to use any more peremptory challenges). A. Applicable Law and Standard o f Review ¶ 14 “Equal justice under law requires a criminal trial free of racial discrimination in the jury selection process.” Flowers v. Mississi ppi , 588 U.S. ___ , ___, 139 S. Ct. 222 8, 2242 (2019). Under Batson and its progeny, a prosecutor may not discriminate on the basis of race when exercising peremptory chall enges of prospective jurors. Flowers , 588 U.S. at ___, 139 S. Ct. at 2234. ¶ 15 Trial courts use a three-step analy sis to determine whether a prosecutor exercised a peremptory challenge because of a prospective juror’s race. Peopl e v. Wilson , 2015 CO 54M, ¶ 10 (citing Batson , 476 U.S. at 96-98 ). First, the defendant must make a prima facie showing that the pro secutor struck a prospective jur or on the basis of race. Id. If the def endant does so, the prosecutor must proffer a race-neutral reas on for excusing the prospective juror. Id. After the prosecutor do es so and the defendant is given a chance to rebut the prosecutor’s expl anation, the trial court determines, at the third step, whet her the defendant has established purposeful discrimina tion by the prosecutor. Id. 7 ¶ 16 Here, Witherspoon challenges only the trial court’s ruling at the third step that the prosecutor’s race-neutral reason for striking T.D. was credible, and not a pret ext for discrimination. “The inquiry at step three requires the tr ial court to decide whether to believe [the prosecutor’s] race-neut ral explanation for a peremptory challenge.” Id. at ¶ 13. “‘[T]he best evidence often will be the demeanor of the attorney who exercises the challenge,’ evaluation of which lies ‘peculiarly within a trial judge’s province.’” Id. (quoting Hernandez v. New York , 500 U.S. 352, 365 (1991)). We therefor e review the trial court’s factual det ermination at step three only for clear error. Id. ; see also Flow ers , 588 U.S. at ___, 139 S. Ct. at 2244 (“[T]he appellate standard of r eview of the trial court’s factual determinations in a Batson hearin g [is] ‘highly deferential.’” (quotin g Snyder v. Louisiana , 552 U.S. 472, 479 (2008))). B. Analysis ¶ 17 In contending that the trial court clearly erred at step three in denying his Batson challenge, Wit herspoon first argues that the record does not support that T.D. was “disengaged” during voir dir e. However, the record also does not i ndicate that the contrary is t rue. 8 ¶ 18 More importantly, though, to fr ame the disputed issue as T.D.’s level of “engagement” does n ot encapsulate the nuances of the parties’ arguments regarding T.D.’s demeanor. The prosecutor’ s expressed reasons for exercising th e peremptory was that T.D. was “upset” about the wait to get int o the courthouse, “looked like sh e was not happy” to be there, and h ad a “sour look on her face.” Defense counsel’s response that T.D. was “listening and paying attention” is not inconsistent wit h the prosecutor’s claim that T.D. looked like she “was not happy” to be there and had a “sour look” on her face. The same is true of T.D. ’s statement about a child being on her income taxes. ¶ 19 Certainly, if the trial court had ma de an express finding about T.D.’s demeanor, we would have a better record to evaluate the parties’ arguments on appeal. See Thaler v. Haynes , 559 U.S. 43, 48 (2010) (“[W]here the explanatio n for a peremptory challenge is based on a prospective juror’s dem eanor, the judge should take into account, among other things, any observations of the juror that t he judge was able to make during th e voir dire .”). ¶ 20 But the trial court did expressly fin d that the prosecutor’s stated reasons for exercising the p eremptory challenge were 9 credible, thus implicitly crediting t he prosecutor’s explanation. W e have no basis to question that credibilit y determination. See id. at 47-49 (a trial court may accept a p rosecutor’s demeanor-based explanation for exercising a peremp tory challenge even if the tr ial court did not observe or could not recall the prospective juror’s demeanor); Snyder , 552 U.S. at 479 (“[D]eference is especially appropriate where a trial judge ha s made a finding that an attorney credibly relied on demeanor in ex ercising a strike.”). ¶ 21 On a related point, Witherspoon as serts that other prospective jurors also appeared to be disenga ged during voir dire, and he argues that T.D. was similarly situ ated to those prospective jurors in terms of their level of engagem ent. Here too, though, the prospective jurors’ level of “engagem ent” — for example, whether they raised their hand to respond t o questions posed generally to their section of the courtroom gall ery — was a distinct issue from T.D.’s particular (alleged) demeano r of being “not happy” to be th ere and having a “sour look” on her f ace. The record does not disclos e any other prospective jurors havin g those particular (alleged) attributes. 10 ¶ 22 Witherspoon also emphasizes that if the prosecutor had concerns about T.D.’s demeanor, she should have posed questions to T.D. on that issue, but failed to do so. He relies on People v. Collins , 187 P.3d 1178 (Colo. App. 2008), and People v. Gabler , 958 P.2d 505 (Colo. App. 1997), for the proposition that when a prosecutor does not question a pr ospective juror about the facts related to the reason for the per emptory challenge, it suggests pretext. But the peremptory challeng es in those cases related to substantive information about the prospective jurors, not their demeanor. In Collins , the pros ecutor was faulted for not asking a prospective juror about “her husb and’s domestic violence case.” 187 P.3d at 1183 . And in Gabl er , the prosecutor was faulted for not asking one prospective juror about “frequently watch[ing] Court TV,” and for not asking another pro spective juror about whether she would be “biased against polic e because her friend had been arrested” and “distracted by work r esponsibilities.” 958 P.2d at 508. Those are substantive conc erns, not demeanor-based concerns, and we are not aware of any authority indicating that the prosecutor was required to questio n T.D. about her demeanor before exercising a peremptory cha llenge on that basis. 11 ¶ 23 Further, Witherspoon argues that the prosecutor’s explanation that she wanted prospective juror D.A. to serve on the jury was pretextual because D.A. served onl y as the jury alternate. We are unpersuaded. Although a jury alt ernate might ultimately be excused before deliberations begin, a prosecutor may justifiably place importance on the initial deci sion of who serves in that r ole, and that does not show pretext. ¶ 24 Finally, it is certainly relevant t hat two other prospective jurors who identified as African-Am erican on their juror questionnaires ultimately served o n the jury (prospective juror A.R. identified solely as African-America n, while prospective juror S.C. identified as both African-American and American Indian), and that the prosecutor accepted the seat ed jury without using all of her peremptory challenges. See Peopl e v. Farbes , 973 P.2d 704, 706 (Colo. App. 1998) (“[R]emoval from t he venire of all or most of the members of the identified group” i ndicates discriminatory intent.). ¶ 25 On this record, we discern no cl ear error in the trial court’s decision to credit the prosecutor’s s tated reasons and deny Witherspoon’s Batson challenge. 12 III. The Merger Issue ¶ 26 Witherspoon also contends that his conviction for prohibited use of a weapon is a lesser includ ed offense of, and therefore mu st be merged into, his conviction for a ttempted first degree assault. We disagree. A. Standard of Review ¶ 27 Whether convictions for different offenses merge is a question of law that we review de novo. Pa ge v. People , 2017 CO 88, ¶ 6 . B. Analysis ¶ 28 Under section 18-1-408(1)(a), C.R. S. 2021, a defendant may not be convicted of two offenses if one is included in the other, as defined in section 18-1-408(5). Sec tion 18-1-408(5) lists three ways in which an offense is “included” in another. ¶ 29 Witherspoon argues that subsectio n 18-1-408(5)(c) applies here (but does not argue that subs ections (5)(a) or (5)(b) apply). Subsection 18-1-408(5)(c) provid es that one offense is “included” in another if it “differs” from the oth er offense “only in the respect that a less serious injury or risk of inju ry to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission.” Id. 13 ¶ 30 Witherspoon was convicted of prohi bited use of a weapon under section 18-12-106(1)(b), C.R .S. 2021, which criminalizes discharging a firearm recklessly or with criminal negligence. ¶ 31 Witherspoon was also convicted of attempted first degree assault under section 18-3-202(1)(a), C.R.S. 2021, and section 18-2-101, C.R.S. 2021, for attempti ng to cause serious bodily injury to the victim by means of a deadly weapon, with the intent to cause serious bodily injury to her. ¶ 32 The issue is how those two offense s “differ.” § 18-1-408(5)(c). There are four relevant questions to consider:  Do they differ in the first way sp ecified in section 18-1-408(5)(c): “a less serious inj ury or risk of injury to the same person, property, or pu blic interest”?  Do they differ in the second way s pecified in 18-1-408(5)(c): “a lesser kind of cul pability”?  Do they differ in both of those way s?  And do they differ in any ot her ways? ¶ 33 Witherspoon contends that the two offenses differ in both of the ways specified in section 18-1 -408(5)(c), but not in any other ways, and therefore merger is r equired under that subsection. 14 ¶ 34 His contention fails for two reasons . First, after the parties completed the briefing in this ap peal, a division of this court issu ed its opinion in People v. Pellegrin , 2021 COA 118 . There, the division engaged in a thorough analysis an d concluded that section 18-1-408(5)(c) applies “only wher e the lesser offense differs in th e degree of injury or risk of injury or in the kind of culpability, but not both.” Pellegrin , ¶ 68. We agree wit h the division’s analysis and conclusion. See also People v. Pa lmer , 944 P.2d 634, 639 (Colo. App. 1997) (concluding that mena cing is not a lesser included offense of second degree assault under section 18-1-408(5)(c) “because the offenses differ with respect to both the culpability required and the injury or risk of in jury required”), rev’d on other grounds , 964 P.2d 524 (Colo. 1998 ). ¶ 35 Witherspoon concedes that prohibit ed use of a weapon differs from attempted first degree assault both in the degree of injury or risk of injury and in the kind of cul pability. We agree, so his claim necessarily fails under Pellegrin . ¶ 36 The second reason Witherspoon’s c ontention fails is that, as the People argue, the two offenses a t issue differ in a third way not specified in section 18-1-408(5)(c): who is victimized by each 15 offense. Witherspoon’s conviction for attempted first degree assault pertained to the particular victim in this case. However, the off ense of prohibited use of a weapon does not require any particular person to be victimized by the con duct. ¶ 37 That makes this case similar to Pe ople v. Clary , in which a division of this court held that r eckless driving is not a lesser included offense of vehicular homi cide or vehicular assault, becaus e reckless driving creates a more gen eralized risk of injury to anyone in the vicinity, whereas both vehic ular homicide and vehicular assault have specific victims. See 950 P.2d 654, 658-59 (Colo. A pp. 1997). ¶ 38 Section 18-1-408(5)(c) specifies that it applies where the two offenses differ “only” in one of the t wo enumerated ways: “a less serious injury or risk of injury t o the same person, property, or public interest” or “a lesser kind of culpability.” Id. (emphasis added). Here, because one offens e requires a specific victim, but the other offense does not requir e any victim at all, section 18-1-408(5)(c) does not apply. 16 ¶ 39 We therefore conclude that the tr ial court not err by declining to merge Witherspoon’s convictions for prohibited use of a weapon and attempted first degree assault. IV. Disposition ¶ 40 The judgment is affirmed. JUDGE DUNN and JUDGE KUHN con cur.