STATE v. CURRY (2020)

The state has petitioned for reconsideration of our decision in State v. Curry, 298 Or. App. 377, 447 P.3d 7 (2019). We allow reconsideration to clarify that an ostensible factual error identified by the state does not alter the analysis in our decision, reject the other arguments made by the state, and adhere to our decision.

In Curry, we concluded that the trial court erred when it overruled defendant’s challenge under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d. 69 (1986), to the prosecutor’s exercise of a peremptory strike against an African-American juror, and reversed for that reason. Curry, 298 Or. App. at 379-80, 447 P.3d 7. In its petition, the state raises new arguments that bear little resemblance to those made by the state below or in its appellate brief as to why it is not inferable that the prosecutor’s exercise of the peremptory was not impermissibly based on race.¹ Those arguments, in the main, come too late as a matter of appellate procedure. State v. Schneider, 204 Or. App. 710, 713-14, 131 P.3d 842, rev. den., 341 Or. 392, 143 P.3d 544 (2006) (“We have held many times that a contention not raised in the brief on appeal will not be entertained for the first time on reconsideration.”). Further, to the extent the arguments suggest potential nonpretextual justifications for the prosecutor’s strike that were not articulated by the prosecutor himself, those arguments come too late as a matter of Batson procedure.

“A Batson challenge does not call for a mere exercise in thinking up any rational basis. If the stated reason does not hold up, its pretextual significance does not fade because a trial judge, or an appeals court, can imagine a reason that might not have been shown up as false.”

Miller-El v. Dretke, 545 U.S. 231, 252, 125 S. Ct. 2317, 162 L. Ed. 2d. 196 (2005).

The state also suggests that reconsideration is warranted because the decision rests on a factual error. The state points out that the opinion refers to the fact that the prosecutor did not exercise a peremptory challenge against Sarah, one of the jurors who was similarly situated to the juror who was stricken. See Curry, 298 Or. App. at 386, 447 P.3d 7. The state observes that both sides had used up all of their peremptories by the time that Sarah was seated and, thus, to the extent that our opinion implies that the prosecutor, in fact, had a peremptory available to use against Sarah, it is factually erroneous. Defendant agrees that the record reflects that all peremptories had been used by the time Sarah was seated, but argues that that fact does not alter the ultimate inference that the prosecutor’s reasons for striking the African-American juror were pretexts for racebased discrimination, and does not otherwise change the analysis in the opinion. We allow reconsideration to clarify that, to the extent the opinion might be read to rest specifically on the fact that the prosecutor, in fact, had a peremptory to exercise against Sarah, it does not.

Reconsideration allowed; former opinion adhered to.

FOOTNOTES

1.   For example, the state argues that, because the stricken juror would otherwise have been the alternate, we should not have compared that juror with the two similarly-situated jurors who were empaneled. But the state itself invited that very comparison both in the trial court and in its appellate brief. Not once until its petition for reconsideration did the state suggest that the juror’s status as an alternate should bear on the analysis.

PER CURIAM