Peo v. Witherspoon
Peo v. Witherspoon
Peo v. Witherspoon
Opinion
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 Witherspoon, appeals the judgment of
conviction entered on jury verdicts finding him guilty of attempted
first degree assault, menacing, and prohibited use of a weapon. He
contends that the trial court (1) clearly 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 conviction for prohibited use of a
weapon into his conviction for attempted first degree assault. We
discern no reversible error and therefore affirm.
I. Background
¶ 2
The charges in this case were based on Witherspoon’s act of
firing a gunshot in the presence of his ex-girlfriend. The key
disputed issue at trial was whether 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 excuse prospective juror T.D.
2
¶ 5
As voir dire began, fourteen prospective jurors were seated in
the jury box and the remaining fifty-one prospective jurors were
seated in the courtroom gallery. T.D. was prospective juror number
28, with thirteen other prospective jurors seated before her in the
gallery.
¶ 6
T.D. identified herself as African-American on the written juror
questionnaire. In the space on that questionnaire for jurors to
provide any comments they “feel are important,” T.D. wrote, “[t]he
wait to enter the courthouse was exemly long and it freezing cold
outside and enhaling 2nd hand smoke.”
¶ 7
During voir dire, the only comments T.D. made were in the
following exchange with defense counsel, after counsel had asked
the venire members what their definition of a child was (which was
presumably based on the fact that Witherspoon was in his late
teenage years at the time of the crime):
Defense Counsel: [T.D.,] [a]ny thoughts,
opinions?
T.D.: My opinion of a child is once he can’t be
on my income tax, they are not a child.
Defense Counsel: I think that’s what my
parents said too.
3
T.D.: But I will have to listen to the whole
thing, and the prosecution would have to prove
that the person is guilty.
¶ 8
After some prospective jurors were dismissed for cause, the
parties began using their peremptory challenges. When defense
counsel used her sixth and final peremptory challenge, it was T.D.’s
turn to take that empty seat in the jury box. The prosecutor, then
exercised a peremptory challenge on T.D.
¶ 9
Defense counsel raised a Batson challenge, arguing,
[T.D.] self-identified on the jury questionnaire
as African-American. She’s also apparently
African-American. And the prosecution did
not ask [T.D.] one question during jury
questioning. When the defense asked her a
question, the only responses she had was, I
think kids are kids until they get off my
income tax, and that she would have to listen
to the whole story. There are similar white
women of her age who have not been exercised
for challenge.
¶ 10
The prosecutor responded,
She wrote in her questionnaire that she was
upset about the wait to get into the courthouse
and the secondhand smoke and that it was
cold. Her whole demeanor all day looks like
we’ve been putting her out, sour look on her
face. The only time she cracked a smile and
seemed engaged was when she made the joke
about a kid is not a kid when they are not on
your taxes anymore. Other than that she just
4
gave body language. The whole time shelooked
like she was not happy to be here.
¶ 11
In response, defense counsel disputed the prosecutor’s
characterization of T.D.’s demeanor. According to defense counsel,
she had a better view than the prosecutor of T.D. during voir dire,
T.D. had been “been listening and paying attention,” and T.D. made
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 prosecutor should have questioned T.D.
on that issue, but did not ask T.D. any questions.
¶ 12
The court denied Witherspoon’s Batson challenge, explaining
its ruling as follows:
[E]ven saying that [the] defense has made out
a prima facie case that the prosecution struck
[T.D.] because of her race, I think that [the
prosecutor] has provided a credible
race-neutral reason for striking [T.D.]
The Court would note that [the prosecutor] has
given the reason that [T.D.] expressed 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 prosecutor]
observed that [T.D.] was disengaged from 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 neutral
explanation for peremptory challenge. The
best evidence often will be the demeanor of the
attorney who exercises the challenge[.] . . .
The critical question becomes the
persuasiveness of the prosecutor’s justification
for the peremptory challenge. And I’m
persuaded by [the prosecutor’s] offered reason.
The court is to gauge the prosecutor’s
credibility by evaluating her demeanor, how
reasonable or improbable the explanations are
and by whether the proffered rationale has
some basis in accepted trial strategy.
So again, I would find that [the prosecutor] has
given race-neutral reasons that I find to be
credible, and so I deny the challenge.
¶ 13
After the final jury was selected, the parties made a further
record regarding the prosecutor’s peremptory challenge of T.D. The
defense argued that even if the prosecutor sincerely believed that
T.D. was not happy to be there and had a “sour look” on her face,
that could be based on unconscious internalization of racial
stereotypes. The prosecutor argued that there were other minorities
on the final jury who she did not exercise peremptory challenges on,
and that she exercised her challenge on T.D. in part because she
wanted prospective juror D.A. to serve 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 of Review
¶ 14
“Equal justice under law requires a criminal trial free of racial
discrimination in the jury selection process.” Flowers v. Mississippi,
588 U.S. ___, ___, 139 S. Ct. 2228, 2242 (2019). Under Batson and
its progeny, a prosecutor may not discriminate on the basis of race
when exercising peremptory challenges of prospective jurors.
Flowers, 588 U.S. at ___, 139 S. Ct. at 2234.
¶ 15
Trial courts use a three-step analysis to determine whether a
prosecutor exercised a peremptory challenge because of a
prospective juror’s race. People 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 prosecutor struck a prospective juror
on the basis of race. Id. If the defendant does so, the prosecutor
must proffer a race-neutral reason for excusing the prospective
juror. Id. After the prosecutor does so and the defendant is given a
chance to rebut the prosecutor’s explanation, the trial court
determines, at the third step, whether the defendant has
established purposeful discrimination 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 pretext for discrimination. “The
inquiry at step three requires the trial court to decide whether to
believe [the prosecutor’s] race-neutral 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 therefore
review the trial court’s factual determination at step three only for
clear error. Id.; see also Flowers, 588 U.S. at ___, 139 S. Ct. at
2244 (“[T]he appellate standard of review of the trial court’s factual
determinations in a Batson hearing [is] ‘highly deferential.’” (quoting
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, Witherspoon first argues that the
record does not support that T.D. was “disengaged” during voir dire.
However, the record also does not indicate that the contrary is true.
8
¶ 18
More importantly, though, to frame the disputed issue as
T.D.’s level of “engagement” does not encapsulate the nuances of
the parties’ arguments regarding T.D.’s demeanor. The prosecutor’s
expressed reasons for exercising the peremptory was that T.D. was
“upset” about the wait to get into the courthouse, “looked like she
was not happy” to be there, and had a “sour look on her face.”
Defense counsel’s response that T.D. was “listening and paying
attention” is not inconsistent with 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 made 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 explanation for a peremptory challenge is
based on a prospective juror’s demeanor, the judge should take into
account, among other things, any observations of the juror that the
judge was able to make during the voir dire.”).
¶ 20
But the trial court did expressly find that the prosecutor’s
stated reasons for exercising the peremptory challenge were
9
credible, thus implicitly crediting the prosecutor’s explanation. We
have no basis to question that credibility determination. See id. at
47-49 (a trial court may accept a prosecutor’s demeanor-based
explanation for exercising a peremptory challenge even if the trial
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 has made a finding that an attorney
credibly relied on demeanor in exercising a strike.”).
¶ 21
On a related point, Witherspoon asserts that other prospective
jurors also appeared to be disengaged during voir dire, and he
argues that T.D. was similarly situated to those prospective jurors
in terms of their level of engagement. Here too, though, the
prospective jurors’ level of “engagement” — for example, whether
they raised their hand to respond to questions posed generally to
their section of the courtroom gallery — was a distinct issue from
T.D.’s particular (alleged) demeanor of being “not happy” to be there
and having a “sour look” on her face. The record does not disclose
any other prospective jurors having 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 prospective juror about the facts
related to the reason for the peremptory challenge, it suggests
pretext. But the peremptory challenges in those cases related to
substantive information about the prospective jurors, not their
demeanor. In Collins, the prosecutor was faulted for not asking a
prospective juror about “her husband’s domestic violence case.”
187 P.3d at 1183. And in Gabler, the prosecutor was faulted for not
asking one prospective juror about “frequently watch[ing] Court
TV,” and for not asking another prospective juror about whether
she would be “biased against police because her friend had been
arrested” and “distracted by work responsibilities.” 958 P.2d at
508. Those are substantive concerns, not demeanor-based
concerns, and we are not aware of any authority indicating that the
prosecutor was required to question T.D. about her demeanor
before exercising a peremptory challenge 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 only as the jury alternate. We are
unpersuaded. Although a jury alternate might ultimately be
excused before deliberations begin, a prosecutor may justifiably
place importance on the initial decision of who serves in that role,
and that does not show pretext.
¶ 24
Finally, it is certainly relevant that two other prospective
jurors who identified as African-American on their juror
questionnaires ultimately served on the jury (prospective juror A.R.
identified solely as African-American, while prospective juror S.C.
identified as both African-American and American Indian), and that
the prosecutor accepted the seated jury without using all of her
peremptory challenges. See People v. Farbes, 973 P.2d 704, 706
(Colo. App. 1998) (“[R]emoval from the venire of all or most of the
members of the identified group” indicates discriminatory intent.).
¶ 25
On this record, we discern no clear error in the trial court’s
decision to credit the prosecutor’s stated 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 included offense of, and therefore must
be merged into, his conviction for attempted 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. Page 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). Section 18-1-408(5) lists three ways
in which an offense is “included” in another.
¶ 29
Witherspoon argues that subsection 18-1-408(5)(c) applies
here (but does not argue that subsections (5)(a) or (5)(b) apply).
Subsection 18-1-408(5)(c) provides that one offense is “included” in
another if it “differs” from the other offense “only in the respect that
a less serious injury or risk of injury 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 prohibited 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 attempting 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 offenses “differ.” § 18-1-408(5)(c).
There are four relevant questions to consider:
Do they differ in the first way specified in section
18-1-408(5)(c): “a less serious injury or risk of injury to
the same person, property, or public interest”?
Do they differ in the second way specified in
18-1-408(5)(c): “a lesser kind of culpability”?
Do they differ in both of those ways?
And do they differ in any other 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 required under that subsection.
14
¶ 34
His contention fails for two reasons. First, after the parties
completed the briefing in this appeal, a division of this court issued
its opinion in People v. Pellegrin, 2021 COA 118. There, the division
engaged in a thorough analysis and concluded that section
18-1-408(5)(c) applies “only where the lesser offense differs in the
degree of injury or risk of injury or in the kind of culpability, but not
both.” Pellegrin, ¶ 68. We agree with the division’s analysis and
conclusion. See also People v. Palmer, 944 P.2d 634, 639 (Colo.
App. 1997) (concluding that menacing 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 injury required”), rev’d on other
grounds, 964 P.2d 524 (Colo. 1998).
¶ 35
Witherspoon concedes that prohibited 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 culpability. We agree, so his claim
necessarily fails under Pellegrin.
¶ 36
The second reason Witherspoon’s contention fails is that, as
the People argue, the two offenses at 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 offense
of prohibited use of a weapon does not require any particular
person to be victimized by the conduct.
¶ 37
That makes this case similar to People v. Clary, in which a
division of this court held that reckless driving is not a lesser
included offense of vehicular homicide or vehicular assault, because
reckless driving creates a more generalized risk of injury to anyone
in the vicinity, whereas both vehicular homicide and vehicular
assault have specific victims. See 950 P.2d 654, 658-59 (Colo. App.
1997).
¶ 38
Section 18-1-408(5)(c) specifies that it applies where the two
offenses differ “only” in one of the two enumerated ways: “a less
serious injury or risk of injury to the same person, property, or
public interest” or “a lesser kind of culpability.” Id. (emphasis
added). Here, because one offense requires a specific victim, but
the other offense does not require any victim at all, section
18-1-408(5)(c) does not apply.
16
¶ 39
We therefore conclude that the trial 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 concur.
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