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State v. Latour12/13/2005
llowed the challenge, relying in part on the defendant's explanation.
By December 10, 2003, eleven males and one female had been impaneled to serve as jurors, and two females and one male had been selected to serve as alternates. That day, both the state and the defendant exercised one peremptory challenge against prospective alternate male jurors, and the defendant, after being required by the court to state a gender neutral reason, exercised a challenge to a prospective alternate female juror, L.W. With one more alternate juror to select, the defendant questioned another female venireperson, K.N., against whom he also tried to exercise a peremptory challenge. Without any instigation by the state, the court required the defendant to provide a "gender neutral explanation . . . ." Over objection, the defendant provided two reasons, the primary one being that he personally had sensed some hostility from K.N. The state disagreed with the defendant's perceptions of K.N. and claimed that the defendant's reason was pretextual. The trial court agreed with the state. Although the court accepted the defendant's explanation as to his feelings about K.N., it did not consider that explanation to be "a valid reason" to exclude K.N. from the panel. Accordingly, the court disallowed the peremptory challenge, and K.N. was seated as a fourth alternate juror. On January 6, 2004, two of the alternate jurors were selected by drawing lots to replace excused jurors. K.N. was not one of those alternates chosen. It is the trial court's disallowance of the defendant's peremptory challenge to K.N. that forms the basis of this appeal.
On appeal, the defendant first contends that the trial court unnecessarily engaged in the first step of the Batson analysis when concluding that the state had established a prima facie case of gender discrimination. He acknowledged both that he failed to object to this alleged procedural flaw and that this determination would not constitute a significant impropriety had the court not thereafter determined that the defendant's reasons for striking K.N. were not sufficient. It is the conclusion by the trial court--that the defendant's reason, although genuine and nondiscriminatory, was not adequate--that he claims was improper. Specifically, the defendant claims that, as long as the trial court found the defendant's reason for his efforts to excuse K.N. to be honest and credible, the court should not have disallowed his peremptory challenge. In other words, because the defendant had provided a reason that was nondiscriminatory, which the trial court credited, the court improperly required K.N. to be seated as an alternate juror. The defendant further claims that this impropriety is not subject to a harmless error analysis like most constitutional violations, but instead was a structural error, necessitating that the judgment of conviction be reversed and that he be given a new trial.
The state responds that, even if the trial court had believed that the defendant thought venireperson K.N. had indeed been hostile toward him, the court nevertheless properly determined, based in part on the number of female venirepersons the defendant had removed already, that the stated reason for the challenge was pretextual. The state also maintains that, even if the trial court improperly rejected the defendant's exercise of his challenge, the impropriety was harmless in light of the fact that K.M. remained an alternate juror and never was called to serve. Even if we were to assume, arguendo, that the trial court improperly required K.M. to be seated, we agree with the state that the impropriety is subject to a harmless error analysis and that, because K.N. remained an alternate, the error was harmle
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