Defense Must Make Batson Objections: Court Not Required to Sua Sponte Control Misconduct
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
Many people in the general public, especially those among the more politically conservative persuasion, have the misconception that lawyers and some judges look for ways to free criminals “on technicalities.” Nothing could be further from the truth. To the contrary, many courts are diligent, almost to the point of being dangerous to constitutional liberties, in reducing the ability of offenders to have fair, open, and unfettered access to the courts.
It is difficult to trace who first uttered the phrase “every man should have his day in court” but it has become an almost obsolete concept to virtually every convicted inmate (almost all of whom are indigent) housed in the nation’s prison systems. It seems today that the only people who truly enjoy unfettered access to the courts are those with the attorneys, money, and resources necessary to open the doors to the hallways of justice. The remaining lost souls face big-brother legalese, procedural obstacles, time bars, filing limitations, harmless errors, and a host of other post-conviction devices designed to make their convictions final and to close off any efforts to prove actual innocence or the claims of unfair trial.
That’s what happened to Constantino Carrera.
A November 6, 2012 decision by an en banc Ninth Circuit Court of Appeals denying Carrera federal habeas corpus relief underscores this point. The saga of Carrera’s struggle to gain access to the courts is both tortuous and illustrative—not just because access was virtually shut off to him at every turn, but because the serious issue of prosecutorial misconduct got swept under the rug in a seemingly never-ending judicial shuffle he encountered. We will attempt to explain this journey with decisions by the Ninth Circuit and the California Supreme Court.
What happened in the Imperial 400 Motel in Mojave, California during the night of April 7, 1982 was horrific. The bodies of Jack and Carol Hayes, discovered on the morning of April 8, spoke to that horror. In living quarters adjacent to the motel’s office, Carol Hayes’s fully dressed body revealed she had been stabbed to death with between 20 to 30 penetrating blows while Jack Hayes partially clad body (t-shirt and undershorts) revealed he had been stabbed to death with 14 or 15 wounds. The stab wounds were large, including one in the head of Jack which was inflicted with such force that the knife blade broke leaving three inches of blade embedded in his skull. Approximately $238 was stolen from the couple during the robbery.
Carrera and an associate, Ramiro Ruiz, were arrested without a warrant on April 12. Carrera was 20 years old at the time; Ruiz, 17 years of age. Both men were charged with the murder/robbery of the Hayes’s. They were also charged with felony murder-robbery and “multiple-murder special circumstances.” The charges made Carrera death penalty eligible but not Ruiz because of his juvenile age.
A number of friends and associates figured prominently in the investigation. There was some sort of gathering of these individuals, including Mike Santana (age 19) and Teresa F. (age 14) who were later charged “accessories” in the murder of the Hayes’s. This “get together” occurred during the afternoon of April 7. Also present at this social gathering was Efrain Carrera, Constantino’s younger brother. The group of friends drank beer and smoked marijuana. Apparently Constantino, Ruiz and Santana ingested a small amount of LSD to top off the booze and weed. Some of the group parted ways. Carrera, Ruiz and Santana later joined another group of friends at Santana’s sister house (Carmen Valadez). Present at this gathering were Teresa, Tina and Sherry H. (both 12 years of age), Carrera’s older sister, Maria Nunez, and Patience S. (age 15).
All these individuals, except Ruiz, provided law enforcement and prosecution officials with conflicting information and testimony about Carrera’s and Ruiz’s movements that night. Some said the two men left the party together sometime between 8:30 and 9:00 p.m. and returned around 10:00 p.m. while others said the duo did not leave until 9:00 or 10:00 p.m. Efrain said Ruiz left the party alone at 8:30 p.m., and his brother and Tina left about 15 minutes later. Efrain added that Carrera and Tina returned together “later that evening” while Ruiz returned alone about 10:30 or 11:00 p.m.
Carrera’s version of the events was similar, although it varied in time as to when the events occurred. Law enforcement and prosecution officials, however, determined they had compiled enough information to place Carrera and Ruiz away from the party during the time the Hayes’s were murdered.
The California Supreme Court describes the thrust of the State’s case as follows:
“Teresa and Santana testified, as did defendant (Carrera), and Tina and Sherry H., that the six of them left Carmen’s house in Ruiz’s car after getting a jump start from Patience S.’s boyfriend. Teresa and Santana both also testified that Ruiz stopped the car in a deserted area a little while later, that defendant, Ruiz and Santana got out, and that defendant and Ruiz changed their clothes. The two also said that, after dropping off Tina and Sherry H. at their home, Ruiz stopped the car at a liquor store.
“Teresa testified that Santana and Ruiz went into the store, while she and defendant remained outside in the car. At this time, defendant told her what had happened that evening. Defendant told her that he had ‘messed up his whole life’ and that he ‘had stabbed someone.’ Defendant said he and Ruiz had gone to the Imperial 400 Motel to get some money that was owed Ruiz, who had formerly worked there. Ruiz stabbed the woman at the motel many times; defendant said that he cut her on the arm when he saw her reaching for something. Defendant also told her that the man came out ‘and they hit him with scissors in the head.’ Santana and Ruiz then came back to the car from the store, and the four drove to a motel. When Santana and Ruiz again left the car to rent rooms, defendant told Teresa that ‘a knife broke off in the lady’s neck, in the throat.’ Two rooms were rented at this motel. Defendant and Santana spent the night in one of the rooms; Ruiz and Teresa shared the other.
“Santana’s testimony differed somewhat from Teresa’s. According to Santana, defendant and Ruiz went into the liquor store while he remained in the car with Teresa. He agreed, however, that he and Ruiz rented the motel rooms while defendant and Teresa remained in the car. Santana testified that defendant told him about the events at the Imperial 400 Motel while they were in the room they shared. Defendant told Santana that he and Ruiz went to the motel to rob it and that Ruiz stabbed the lady a couple of times. Defendant said he cut her once on the wrist when she reached for a telephone and then froze while Ruiz continued to stab her. Ruiz then walked into a room where the man was sleeping and stabbed him. The man got up and hit Ruiz, but Ruiz continued to stab him until he fell down. Defendant also told Santana that while Ruiz was stabbing the people, ‘the knife broke and he went inside the kitchen and got another knife.’ Santana further testified that he saw defendant and Ruiz divide more than $100 and that some of the money had specks of blood on it.
“Despite the conflict over who went into the liquor store with Ruiz, the testimony of Teresa and Santana coincided on three main points. Defendant and Ruiz planned to rob the Imperial 400 Motel, defendant cut Carol Hayes on the arm when she reached for something, and both victims were stabbed many times. Defendant’s account of the events placed the greater portion of responsibility for the murders on Ruiz.”
No one will probably ever know precisely what happened before, during, and after the Hayes’s were killed, or what role Carrera and Ruiz played in those events. For example, there was significant conflict as to what clothing and shoes the two men wore; where it was disposed of; and in what manner. What is clear is that Carrera and Ruiz were responsible for the murder of the Hayes’s.
State prosecutors had a lot of information, although some of it questionable and conflicting, about the brutal murders of the Hayes’s. They had two primary principals who actually planned the robbery of the couple and one seemed more responsible than the other in carrying out the murders. The first problem prosecutors faced was that the more culpable offender—17-year-old Ruiz—was not eligible for the death penalty. So prosecutors directed their attention and resources to securing a death penalty against Carrera. It really did not matter as to what extent he may have participated the killing of the couple. He was there at the motel when the killings took place; he took part in the robbery by accepting some of the money taken from the couple. Under the felony-murder doctrine, that made him as guilty as though he had personally stabbed the couple to death.
The second problem the prosecution faced was the fact that crime was Hispanic-on-white. The jury would hear conflicting testimony from mostly Hispanic witnesses. The prosecutors likely feared Hispanic jurors might not be as inclined to send a Hispanic defendant to his death based on such testimony. To get around this problem, prosecutors elected to pursue a strategy to keep all, or certainly most, potential Hispanic jurors off the jury that would ultimately decide the case.
This shameful prosecutorial strategy evolves from our nation’s sordid history of slavery, emancipation, and post-civil war racial segregation. By law or custom, blacks, or any other minority class, before the 1970s were excluded from grand and petit jury duty. In fact, women did not gain the right to serve on juries in death penalty cases until the 1970s—e.g., Louisiana in 1973. Ultimately, the U.S. Supreme Court would hand down a host of cases, beginning in the 1960s, which essentially held that a criminal defendant has a constitutional right to be indicted and tried by jurors representing a fair cross section of the community. Put simply, an individual could not be systematically excluded from jury service based solely on race or gender.
These Supreme Court decisions had an immediate impact on the death penalty. Minorities and women were not as inclined to impose the death penalty, unless it involved serious aggravating circumstances, while white males would more likely vote for the death penalty, especially for minority defendants. The death penalty, they believed (and many still do), was not only a legitimate but a necessary social response to any minority offender who killed, or even attacked, a white person. For example, between 1930 and 1967, 455 men were executed in this country for rape—402 of them were black, almost all of whom had raped white women. In fact, some states, like Virginia, never executed a white man for rape.
To resolve the social and political tension created by the Supreme Court’s dictate that a criminal jury represent a fair cross section of the community, state legislatures passed laws that gave prosecutors unlimited challenges for cause for jurors who indicated they could not return a vote for the death penalty. While the Supreme Court ruled that the unfettered challenges for cause in capital cases went too far, the court nonetheless upheld the right of prosecutors to exclude potential jurors who stated they could not under any circumstances return a death penalty verdict.
The social and political tension continued when prosecutors confirmed their fears that potential minority jurors would not automatically return a death penalty verdict in minority-on-white murder cases. While most of these minority jurors believed in the death penalty, they found it “unfair” in cases where they perceived the decision to go after the death penalty was based solely on the general practice of a District Attorney’s office to secure this penalty in minority-on-white crimes.
To circumvent this problem and continue the practice of having primarily white, pro-death penalty juries decide minority-on-white murder cases, prosecutors began using their 12 statutory peremptory challenges, which could be used for any reason without cause, in conjunction racially motivated but legally arguable challenges for cause, during voir dire to keep minorities off juries in minority-on-white crimes. That’s what the prosecution did in Carrera’s case. The prosecutor “peremptorily challenged 75 percent of the Hispanic surname venirepersons” while, by contrast, he peremptorily challenged just “26 percent of the white, non-Hispanic surnamed venirepersons.”
The prosecution pursued this racially-motivated strategy despite the fact that the California Supreme Court had five years earlier, in People v. Wheeler, declared this practice unconstitutional under that state’s constitution. The U.S. Supreme Court joined the California Supreme Court with its own decision, Batson v. Kentucky, that held the practice of using peremptory challenges to strike prospective jurors based solely on race also violated the Federal constitution.
Wheeler, like Batson, requires a timely objection by defense counsel and a prima facie showing of “group bias.” Prior to voir dire, Carrera’s defense attorney filed a motion to quash the venire because there were “insufficient procedures” in place to “ensure a panel that reflected the ethnic and racial diversity of Kern County.” The defense motion was made before the racial makeup of the venire panel was even known. When the panel was in fact chosen, it showed that between 11 and 14 members of the panel “had Hispanic surnames” and at least four members were black. Based on this information, defense counsel withdrew her motion to quash. And while the prosecutor used peremptory challenges to exclude six of 8 Hispanic venirepersons, the remaining two did serve on the jury.
A prima facie showing of group bias under Wheeler has three elements:
- The defense should make as complete of record of the circumstances as it feasible;
- The defense must establish that the persons excluded are members of a cognizable group within the meaning of the representative cross-section rule; and
- From all the circumstances of the case the defense must show a strong likelihood that such persons are being challenged because of their group association rather than of any specific bias.
Carrera’s defense counsel abandoned any effort to establish any of these three elements—a signal to the prosecution that perhaps it could get away with any strategy necessary to secure a death penalty verdict. This included the use of three jailhouse informants who gave conflicting testimony about what Carrera told them concerning his participation in the robbery/murder of the Hayes’s. In fact, the prosecution elected to use one of the informants even though the informant had access to Carrera’s legal papers when Carrera left his cell to go out on the prison yard. The California Supreme Court in fact called this informant’s testimony “questionable.”
Following his conviction and after being sentenced to death, Carrera raised the issue of the prosecutor’s conduct as well as the trial court’s handling of the trial. The California Supreme Court took note of each of these issues set forth below:
- Use of Tainted Testimony. Carrera’s “first objection is that the prosecutor presented testimony from Santana that contradicted testimony the same prosecutor had elicited from Santana at the separate trial of Ruiz a few weeks before. Defendant asserts that Santana’s testimony was false on at least one of the occasions and that his conviction cannot stand due to the attendant corruption of the fact-finding process.”
- Improper Direct Examination. Carrera objected that “the prosecutor asked questions of two witnesses that assumed the existence of prejudicial facts not then or later placed in evidence.”
- Abusive Cross-examination. “The prosecutor’s cross-examination of defendant was marked by multiple objections from defense counsel on the grounds that the questions were argumentative or based on prejudicial facts not in evidence.
- Closing Argument. Carrera “also contends that the prosecutor committed misconduct during closing argument by again asserting as proven facts on which no evidence had been introduced: (1) that defendant might have attempted to escape in order to confront and threaten witnesses; (2) that defendant made four separate admissions to four separate people that he and Ruiz killed the couple; (3) that the female victim ‘had her wrist cut off’ during the attack; (4) that defendant threatened to stab Teresa’s brother and had others ‘beat up witnesses” to silence them; (5) that defendant’s concern with being seen as a ‘snitch’ showed he was part of a ‘gang’ or had a ‘gang mentality’; (6) that the victims were tortured; (7) that the killings were premeditated; and (8) that the defendant asked Santana, ‘Have you ever killed before?’ – implying that he might previously have murdered someone.”
- Trial Court Errors. Carrera argued that the trial court “permitted, exacerbated or failed to cure the impact of the above instances of alleged prosecutorial. He briefly asserts … that the prosecutor’s misconduct was so pervasive that the court on its own motion should have either admonished the jury to disregard the questions and closing argument or granted a mistrial.”
Let us be clear about one thing: based exclusively on the actions of the prosecutor during closing argument, we believe there was egregious misconduct in the Carrera case. We also believe that from the outset, the prosecution had a singular overriding objective: secure a death penalty verdict against Carrera. This was evidenced by the prosecution’s deliberate strategy of removing from the jury pool as many prospective Hispanic jurors as possible. Race, no matter how slight, should never be a factor in either the decision to pursue, or the efforts to secure, the death penalty, especially in light of that penalty’s corrupt, insidious history in American criminal justice.
Further, while we appreciate that the nature and circumstances in a case like Carrera’s can be daunting, if not overwhelming, for a court-appointed attorney, Carrera’s appointed attorney failed him at virtually every step of the proceedings. First, defense counsel filed, and then withdrew, the motion to quash. Counsel thereafter did not make a Wheeler objection. This precluded this issue from being heard on direct appeal to the California Supreme Court.
The recent en banc decision by the Ninth Circuit underscores the impact of this failure. Carrera argued before the federal appeals court that counsel’s failure to make the Wheeler objection satisfied both the deficiency and prejudice components necessary to establish an ineffective assistance of counsel claim under the U.S. Supreme Court decision in Strickland v. Washington. As pointed out by the Ninth Circuit, to establish an ineffective assistance claim based on the failure to make the Wheeler objection, Carrera had to show he would have likely succeeded in getting his conviction reversed by the California Supreme Court on direct appeal because of the prosecution’s decision to exclude potential jurors with Hispanic surnames before he could satisfy the “prejudice” component of Strickland. Put briefly, it is not enough for a state prisoner do show that his counsel was deficient; he must show that the deficiency prejudiced him to the extent that there is a “reasonable probability” no jury would have found him guilty absent the deficient performance.
Folks, for an indigent state prisoner (particularly from a minority group) to satisfy both components of the Strickland standard, it is tantamount to finding an needle and threading it in the middle of the proverbial hay stack on the flatbed of an 18-wheeler doing 80 mph down the interstate in 20-degree weather. In the Carrera case, it meant that because the prosecution seated two jurors with Hispanic surnames, he could did not establish a Strickland claim based on the failure to make a Wheeler objection. That is the law. We cannot argue that the Ninth Circuit misapplied Strickland. We cannot even argue that Carrera’s conviction would have been reversed on direct appeal had the Wheeler objection been made at trial because we do not know enough about the facts of the case to draw that conclusion.
But we can argue that counsel had a professional duty to make the Wheeler objection. We comfortably reach this conclusion because Carrera’s attorney also failed to object to the following instances of alleged prosecutorial misconduct: use of tainted testimony; improper direct examination; abusive cross-examination; and improper closing argument. This also precluded these misconduct issues from being heard on direct appeal under California law. Counsel on appeal argued that the trial court should have controlled this prosecutorial misconduct, but as the California Supreme Court pointed out: “… a trial court has no sua sponte duty to control prosecutorial misconduct.”
We can say with a firm belief that Constantino Carrera did not receive a fair trial, and while his death sentence was ultimately vacated, the serious constitutional errors that undermined his right to a fair and impartial trial were shuffled away from any meaningful consideration because appointed counsel failed to make timely objections. Thus the denial of Carrera’s right to a fair trial was not only caused by the prosecution’s misconduct but also by his defense attorney’s failure to timely object.
The Constantino Carrera case exemplifies that far from being liberal bastions of constitutional relief for “convicted criminals,” courts at both the state and federal level—even courts with “liberal” reputations, like those is California—will go out of their way to uphold a constitutionally infirm state conviction. This is why defense counsel must be ever mindful, ever diligent in making timely objections at every stage of the criminal proceedings based on perceived or real errors. The trial courts have no sua sponte duty to do it for them. The failure to do so will result in the judicial outcomes reached in the Carrera case.
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
John Floyd id Board Certified in Criminal Law by the Texas Board of Legal Specialization