2011-756, State of New Hampshire v. Mohamed Ouahman

Michael A. Delaney

undisputed. The defendant was indicted for the kidnapping and robbery of two The following facts are drawn from the record or are otherwise

No. 2011-756 Hillsborough-northern judicial district

the State’s use of its peremptory challenges to strike male jurors. We affirm. On appeal, he argues that the trial court erred by overruling his objection to see RSA 633:1, I(d) (2007), and two counts of robbery, see RSA 636:1 (2007). defendant, Mohamed Ouahman, was convicted of two counts of kidnapping, CONBOY, J. After a jury trial in Superior Court ( Garfunkel, J.), the

and orally, for the defendant. ___________________________ Brianna M. Sinon, assistant appellate defender, of Concord, on the brief THE SUPREME COURT OF NEW HAMPSHIRE

general, on the brief and orally), for the State.

to press. Errors may be reported by E-mail at the following address:

editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as privately at the clerk’s bench. See p. 2 The parties then took turns exercising their three peremptory challenges

that point, the jury panel consisted of six women and eight men.

“Batson Following the State’s third peremptory strike, the defendant raised a

This process continued until fourteen jurors were seated in the jury box. At witnesses. the juror for cause. If found qualified by the court, the juror was then seated. further by the court. The parties were also given the opportunity to challenge

his Batson

more skeptical of a police officer’s testimony than the testimony of other predicated on federal law only. See the jury box. If the juror answered affirmatively, the juror was questioned

On appeal, the defendant contends that the trial court erred by denying

counts, and this appeal followed.

(1989). unsuccessful in striking for cause. That juror had indicated that he might be State v. Hartford, 132 N.H. 580, 583 State ultimately struck three men, one of whom the State had been Federal Constitution, or both. Accordingly, we construe his argument as preliminary questions. If the juror answered negatively, the juror was seated in the challenged juror; if not found qualified, another name was drawn. The Notably, he does not specify whether he relies on the State Constitution, the indicated whether the juror had a “yes” answer to any of the court’s male jurors. He argues that this denial violated his equal protection rights. names of all twenty-nine potential jurors. As each name was drawn, the juror challenge to the State’s use of peremptory challenges to strike only

consisted of nine women and five men. The defendant was convicted of all overruled the defendant’s objection without explanation. The final jury panel given and the information in their questionnaire[s].” The trial court then male jurors. She also stated, “I based my challenges on the responses they’ve The prosecutor responded that she had not noticed that she had stricken only U.S. 127, 130-31 (1994) (forbidding peremptory challenges based on gender). another potential juror from the venire. If found qualified, that juror replaced by Powers v. Ohio, 499 U.S. 400 (1991); J. E. B. v. Alabama ex rel. T. B., 511 forbids State from challenging juror solely on account of race), overruled in part The court clerk then randomly drew names from a box containing the on gender. See Batson v. Kentucky, 476 U.S. 79 (1986) (Equal Protection Clause challenge,” arguing that the State was improperly striking jurors based

As each juror was stricken, the court clerk randomly selected the name of

thirteen men. dire. The venire consisted of twenty-nine potential jurors: sixteen women and of witnesses and asking a series of questions for purposes of preliminary voir men. During jury selection, the trial court began by reading to the venire a list p. 3 State v. Taylor 3

make a prima

made the necessary prima gender-based discrimination. erroneously and prematurely ended the Batson (step 3) whether the opponent of the strike has proved purposeful neutral explanation is tendered, the trial court must then decide member of the protected category. See In order to establish a prima id. category, the nature of the crime, and whether the defendant or the victim is a Additional factors include the number of potential jurors in the protected erroneous, Taylor to explain the basis for the strike.” Id 596, 620 (3d Cir. 2011) (quotation omitted) (challenges based on race). exercising his challenges.” Lark v. Pennsylvania Dept. of Corrections, 645 F.3d the prosecutor’s questions and statements during voir trial court’s action as an implicit determination that the defendant failed to dire examination and in inquiry, “the prosecutor’s pattern of peremptory strikes is significant[,] as are

consider all relevant circumstances in determining whether a defendant has inference of impermissible discrimination.” Id. “[T]he trial court should explanation for its strikes. He further maintains that the trial court Batson, “a defendant must point to facts and circumstances that raise an forward with a gender-neutral explanation (step 2). If a gender- facie case of gender discrimination under The defendant argues that he established a prima

, 142 N.H. at 10.

521 F.3d 110, 115 (1st Cir. 2008), which we will uphold unless it is clearly intentional discrimination before the party exercising the challenge is required facie showing of discrimination, see United States v. Girouard,

denied the defendant’s challenge without further explanation. We interpret the provide a gender-neutral explanation for its strikes; instead, the court simply showing. We acknowledge that the trial court did not require the State to

discrimination and that the State failed to come forward with a gender-neutral burden of production shifts to the proponent of the strike to come facie case of gender prima facie case of gender-based discrimination (step 1), the . at 10 (quotation omitted).

party alleging gender discrimination must make a prima facie showing of Batson, 142 N.H. 6, 9-10 (1997) (quotation and brackets omitted). “[A] challenges[] is subject to the commands of the Equal Protection Clause.”

Once the opponent of a peremptory challenge has made out a

discrimination under Batson, courts employ a three-step inquiry: , 476 U.S. at 89. When a defendant objects on the basis of gender

“[T]he State’s privilege to strike individual jurors through peremptory defendant’s Batson

p. 4 would strike male jurors. See and eight men. Thus, there was actually a higher likelihood that the State peremptory challenges could be exercised. That panel consisted of six women Accordingly, we hold that the trial court did not err in denying the

failed to establish a prima

impartial verdict.” United States v. Bergodere animus; instead, it reflects a concern for the “juror’s ability to reach a fair and trial court resulted in the seating of only fourteen jurors against whom the

male jurors be excused for cause because he agreed, on voir we conclude that the trial court’s implicit determination that the defendant challenges, the State unsuccessfully requested that one of the three stricken of gender-based discrimination. First, prior to exercising its peremptory

support an inference of discrimination. See

testimony of other witnesses. Striking that juror does not reflect gender-based discriminatory reasons is low. However, the selection process utilized by the erroneous. than men, the probability of the State striking three men for non- discrimination. “Although an inference of discrimination may facie case of gender discrimination was not clearly maintains that because the qualified venire members contained more women undercut where both the defendant and the alleged victim were males). Thus, 673 (Utah Ct. App. 2008) (Batson Furthermore, here, two other relevant factors weigh against an inference challenge to the striking of male jurors was

two men. Under these circumstances, the striking of only male jurors does not 1994). Also, the defendant, a male, was charged with robbing and kidnapping

possible he would be more skeptical of a police officer’s testimony than the

just numbers alone.” Id. at 11 (quotation omitted). advances a Batson argument ordinarily should come forward with facts, not members.” Taylor, 142 N.H. at 10 (citations omitted). “A defendant who prosecution’s use of a limited number of peremptory challenges removing group cognizable group, such an inference does not automatically spring from the number of peremptory strikes that the prosecutor directs at members of a

Nor is the sole fact that the State used all three of its peremptory To support his argument, the defendant observes that of the twenty (2011). (2d Cir. 2010), cert of gender discrimination. We disagree.. denied sub nom. Paris v. United States, 131 S. Ct. 1622

peremptory strikes to remove men from the jury supports at least an inference Here, the defendant argues that the State’s use of all of its allotted p. 5 5

Affirmed

respect to each step on the record.” Id

implicated, we . . . direct [the] trial courts to carefully follow each of Batson DALIANIS, C.J., and HICKS, LYNN and BASSETT, JJ., concurred.

brief, are deemed waived. State v. King, 162 N.H. 629, 633 (2011). All other issues the defendant raised in his notice of appeal, but did not

further urge the courts to clearly articulate their findings and conclusions with three steps.” People v. Knight, 701 N.W.2d 71 p. 5 5, 724 (Mich. 2005). “[W]e

equal protection rights], as well as the societal and judicial interests no explanation for its ruling. “Because of the importance of [a defendant’s