State v. Vandyke

235

Argued and submitted December 30, 2021; conviction on Count 2 reversed and

remanded, remanded for resentencing, otherwise affirmed March 9; petition for

review denied July 7, 2022 (370 Or 56)

STATE OF OREGON,

Plaintiff-Respondent,

v.

KYLE WAYNE VANDYKE,

Defendant-Appellant.

Deschutes County Circuit Court

17CR07565; A171426

507 P3d 339

Beth M. Bagley, Judge.

Sarah De La Cruz, Deputy Public Defender, argued the

cause for appellant. Also on the briefs was Ernest G. Lannet,

Chief Defender, Criminal Appellate Section, Office of Public

Defense Services.

Jennifer S. Lloyd, Assistant Attorney General, argued

the cause for respondent. Also on the brief were Ellen F.

Rosenblum, Attorney General, and Benjamin Gutman,

Solicitor General.

Before Tookey, Presiding Judge, and Aoyagi, Judge, and

Armstrong, Senior Judge.

PER CURIAM

Conviction on Count 2 reversed and remanded; remanded

for resentencing; otherwise affirmed.

Aoyagi, J., concurring.

236 State v. Vandyke

PER CURIAM

Defendant was convicted of attempted assault of a

public safety officer (Count 2), driving under the influence of

intoxicants (Count 3), resisting arrest (Count 4), interfering

with a peace officer (Count 5), reckless endangerment with

a motor vehicle (Count 6), and reckless driving (Count 7).

Counts 2 through 5 were tried to a jury, while Counts 6 and 7

were tried to the court. On appeal, defendant raises four

assignments of error, which we address in reverse order.

Third and fourth assignments of error. Defendant

contends that the trial court erred by instructing the jury

that it could return nonunanimous guilty verdicts and by

accepting a nonunanimous guilty verdict on Count 2. The

giving of the instruction was error. See Ramos v. Louisiana,

590 US ___, 140 S Ct 1390, 206 L Ed 2d 583 (2020) (hold-

ing that, under the Sixth Amendment, a criminal defendant

may be convicted of a serious offense only by unanimous

verdict). We therefore reverse defendant’s conviction on

Count 2. However, we reject defendant’s argument as to the

convictions for which the jury returned unanimous verdicts.

See State v. Kincheloe, 367 Or 335, 339, 478 P3d 507 (2020),

cert den, ___ US ___, 141 S Ct 2837, 210 L Ed 2d 951 (2021)

(holding that same instruction was harmless where jury

returned unanimous verdicts).

Second assignment of error. Defendant challenges

the denial of his motion to suppress. The trial court con-

cluded that exigent circumstances justified a police officer

reaching through the doorway of defendant’s home to grab

defendant’s arm and pull him outside. Having reviewed the

record and the pertinent authorities, we reject the second

assignment of error on the merits without written discussion.

First assignment of error. Defendant challenged

one of the prosecutor’s peremptory strikes under Batson v.

Kentucky, 476 US 79, 106 S Ct 1712, 90 L Ed 2d 69 (1986). He

contends that the trial court erred in overruling his Batson

objection.

Resolving a Batson objection has three steps. First,

defendant was required to make a prima facie showing that

the peremptory strike was based on race, a standard that is

Cite as 318 Or App 235 (2022) 237

“not high.” State v. Curry, 298 Or App 377, 381-82, 447 P3d 7

(2019), adh’d to on recons, 302 Or App 640, 461 P3d 1106

(2020). Once that showing was made, second, the burden

shifted to the state to provide a race-neutral explanation

for the peremptory strike. Id. If the state met that burden,

then, third, the trial court had to “ ‘consult all of the cir-

cumstances that bear on racial animosity’ ” and determine

whether defendant had “shown purposeful discrimination

by the state.” Id. (quoting Snyder v. Louisiana, 552 US 472,

478, 128 S Ct 1203, 170 L Ed 2d 175 (2008)).

We review a trial court’s determination that a

peremptory strike was not the product of purposeful racial

discrimination as a question of fact. Curry, 298 Or App

at 389. We will reverse only if the court committed “clear

error.” Snyder, 552 US at 477 (“On appeal, a trial court’s rul-

ing on the issue of discriminatory intent must be sustained

unless it is clearly erroneous.”).

Here, the prosecutor used a peremptory strike to

remove a Hispanic1 man, whom defendant contends was the

only person of color on the jury panel and which resulted in

defendant (who is Native American) being tried by an all-

white jury. Defendant made a Batson objection to the strike.

In response, the prosecutor explained that he preferred

jurors with “executive level, managerial-level” work experi-

ence for this case. The Hispanic man worked at McDonalds,

and the prosecutor used other peremptory strikes to remove

a hairdresser and another McDonalds employee. The trial

court found that the prosecutor’s proffered reason was not a

pretext for purposeful racial discrimination. Accordingly, it

overruled defendant’s Batson objection.

On appeal, defendant contends that the trial court

erred. He argues that, “although the prosecutor’s stated rea-

son appeared to be facially race-neutral, it was a pretext for

racial discrimination because it disproportionately affects

racial minorities and is not related to the facts or issues in

this case.” He further argues that the prosecutor’s expla-

nation does not hold up when one compares the Hispanic

man to white jurors who were not stricken and when one

1

Both parties describe the stricken juror as “Hispanic,” so we use that term.

238 State v. Vandyke

considers the prosecutor’s lack of questioning regarding

managerial experience. Ultimately, defendant argues that,

on this record, the court could not find that the state estab-

lished a race-neutral reason for striking the Hispanic man.

The state responds that the court correctly over-

ruled the Batson objection, because the prosecutor provided

a race-neutral explanation for the strike, “specifically, the

prosecutor’s belief that jurors who had management-level job

experience would be more willing to ‘hold someone account-

able for their behavior’ than a juror who lacked that experi-

ence.” The state argues that the trial court’s finding that the

explanation was not a pretext for purposeful discrimination

is binding, because it is supported by the record, and that

the court did not clearly err by crediting the prosecutor’s

explanation.

We agree with the state that, under the standard

established in Batson, and given our standard of review,

the trial court did not err. Batson permits a trial court to

reject a facially race-neutral reason for exercising a peremp-

tory strike only if it finds the stated reason to be a pretext

for purposeful racial discrimination. If the reason given is

facially race-neutral, and the trial court determines that it

is not a pretext for purposeful discrimination (on a record

that allows that finding), then a Batson objection will fail,

even if the stated reason has a disproportionate effect based

on race. In this case, the prosecutor provided a race-neutral

explanation for the challenged strike, the trial court found

that the reason given was not a pretext for purposeful racial

discrimination, and the record permits that finding.

We also are unpersuaded by defendant’s arguments

regarding comparative-juror analysis and the prosecutor’s

lack of questioning regarding managerial experience. As

to the former, defendant did not make a comparative-juror

argument to the trial court, the trial court did not engage

in such an analysis, and we cannot meaningfully engage in

such an analysis for the first time on appeal on this record.

See Curry, 298 Or App at 382 (recognizing that an appel-

late court may engage in comparative-juror analysis for the

first time on appeal, but only if the record allows for it). The

voir dire transcript frequently does not identify the specific

Cite as 318 Or App 235 (2022) 239

prospective juror answering a question, instead identifying

some speakers only as “prospective juror.” We cannot engage

in a meaningful comparative analysis on that record. As for

the latter argument, the prosecutor did not specifically ask

prospective jurors about their managerial experience, but

he had information about their employment history, and

defense counsel asked about accountability and asked for a

show of hands as to who had “been in a managerial role at

work.” The prosecutor therefore had that information at the

time that he exercised his peremptory strikes.

Accordingly, we reject the first assignment of error.2

Conviction on Count 2 reversed and remanded;

remanded for resentencing; otherwise affirmed.

AOYAGI, J., concurring.

I agree with the majority’s disposition and reason-

ing. I write separately to draw attention to the fact that,

with the passage of time, the procedural mechanism crafted

in Batson v. Kentucky, 476 US 79, 106 S Ct 1712, 90 L Ed

2d 69 (1986), to root out racial discrimination in jury

selection—specifically in the use of peremptory strikes—

has proven demonstrably not up to the task. Whatever other

means may exist to get at the problem,1 it is critical to keep

in mind that discrimination in jury selection has long been

recognized by the United States Supreme Court as a prob-

lem of constitutional magnitude. It therefore deserves ongo-

ing constitutional attention.

2

We note that defendant’s argument is confined to the federal consti-

tution and Batson. Defendant has not made any argument under the Oregon

Constitution.

1

For example, in 2018, Washington State adopted a court rule that created a

new procedure for challenging peremptory strikes that differs from Batson’s pro-

cedure. The rule applies to all jury trials and is intended “to eliminate the unfair

exclusion of potential jurors based on race or ethnicity.” Wash GR 37 (court rule);

see also State v. Curry, 298 Or App 377, 389, 447 P3d 7 (2019), adh’d to on recons,

302 Or App 640, 461 P3d 1106 (2020) (noting the Washington rule and positing

that it might be appropriate for the Oregon Council on Court Procedures or the

Oregon legislature to consider a similar rule); State v. Holmes, 334 Conn 202,

205-06, 221 A3d 407, 411 (2019) (affirming rejection of Batson challenge under

existing case law, but “refer[ring] the systemic concerns about Batson’s failure to

address the effects of implicit bias and disparate impact to a Jury Selection Task

Force, appointed by the Chief Justice, to consider measures intended to promote

the selection of diverse jury panels in [Connecticut’s] courthouses”).

240 State v. Vandyke

It is long-established that, under the Equal Protec-

tion Clause of the United States Constitution, “a litigant

has the right not to have potential jurors of the same race

excluded from the jury on account of race” and, further, that

“[e]very potential juror who shows up at the courthouse for

jury service has ‘the right not to be excluded from [a jury]

on account of race.’ ” State v. Curry, 298 Or App 377, 381-82,

447 P3d 7 (2019), adh’d to on recons, 302 Or App 640, 461

P3d 1106 (2020) (discussing Batson; quoting Powers v. Ohio,

499 US 400, 409, 111 S Ct 1364, 113 L Ed 2d 411 (1991)).

By “requiring trial courts to be sensitive to the racially dis-

criminatory use of peremptory challenges, [Batson] enforces

the mandate of equal protection and furthers the ends of

justice.” Batson, 476 US at 99.

Faced with the unconstitutionality of peremptory

challenges being used in a racially discriminatory manner,

the Supreme Court set out in Batson to establish a proce-

dural mechanism to detect and prevent such discrimina-

tion. Ultimately, the Court settled on a three-step, burden-

shifting procedure that allows “prompt rulings on objections

to peremptory challenges without substantial disruption of

the jury selection process.” Hernandez v. New York, 500 US

352, 358, 111 S Ct 1859, 114 L Ed 2d 395 (1991). In short,

“once the opponent of a peremptory challenge has made out

a prima facie case of racial discrimination (step one), the

burden of production shifts to the proponent of the strike

to come forward with a race-neutral explanation (step two).

If a race-neutral explanation is tendered, the trial court

must then decide (step three) whether the opponent of the

strike has proved purposeful racial discrimination.” Purkett

v. Elem, 514 US 765, 767, 115 S Ct 1769, 131 L Ed 2d 834

(1995) (emphasis added).

The focus on purposeful discrimination dates back

to 1880. In Strauder v. State of West Virginia, 100 US 303,

305, 25 L Ed 664 (1880), the Court reversed the defendant’s

criminal conviction after trial by an all-white jury, where a

state statute expressly allowed only “white male persons” to

serve as jurors. The Court framed the issue as whether, in

seating a jury by whom a “colored man” is to be tried, “all

persons of his race or color may be excluded by law, solely

because of their race or color, so that by no possibility can

Cite as 318 Or App 235 (2022) 241

any colored man sit upon the jury.” Id. After describing

the historical context for and purposes of the Fourteenth

Amendment—with a focus on the rampant and habitual

discrimination based on race that existed at the time—the

Court held that it violated equal protection to exclude all

nonwhite men from juries. Id. at 306-10.

Over the next century, the Court “consistently and

repeatedly reaffirmed” the constitutional principle from

Strauder in “numerous decisions.” Batson, 476 US at 84

(internal quotation marks omitted). In doing so, the Court

generally spoke in terms of “purposeful” discrimination

of the sort seen in Strauder in 1880. In 1965, the Court

described Strauder as standing for the principle that,

“[a]lthough a Negro defendant is not entitled to a jury con-

taining members of his race, a State’s purposeful or deliberate

denial to Negroes on account of race of participation as jurors

in the administration of justice violates the Equal Protection

Clause.” Swain v. Alabama, 380 US 202, 203-04, 85 S Ct 824,

13 L Ed 2d 759 (1965) (emphasis added). In 1986, in Batson,

the Court similarly described Strauder as providing “that

the State denies a black defendant equal protection of the

laws when it puts him on trial before a jury from which mem-

bers of his race have been purposefully excluded.” Batson, 476

US at 85 (emphasis added). That narrow articulation of the

constitutional principle was then directly incorporated into

the Batson procedure. See id. at 97-98.

At the same time, the Court has spoken in broad

terms about the need to eliminate racial discrimination in

jury selection. Batson describes Strauder as the beginning

of the Court’s “unceasing efforts to eradicate racial discrim-

ination in the procedures used to select the venire from

which individual jurors are drawn.” Id. at 85. And, in 2019,

the Court stated that the United States Constitution “for-

bids striking even a single prospective juror for a discrim-

inatory purpose.” Flowers v. Mississippi, 588 US ___, ___,

139 S Ct 2228, 2242, 204 L Ed 2d 638 (2019).

Yet, the Court continues to apply the procedure

adopted in Batson, which focuses only on purposeful dis-

crimination. See id. In Flowers, the Court gave this descrip-

tion of Batson, its purpose, and its effect:

242 State v. Vandyke

“Equal justice under law requires a criminal trial

free of racial discrimination in the jury selection process.

Enforcing that constitutional principle, Batson ended the

widespread practice in which prosecutors could (and often

would) routinely strike all black prospective jurors in cases

involving black defendants. By taking steps to eradicate

racial discrimination from the jury selection process, Batson

sought to protect the rights of defendants and jurors, and

to enhance public confidence in the fairness of the criminal

justice system. Batson immediately revolutionized the jury

selection process that takes place every day in federal and

state criminal courtrooms throughout the United States.

“In the decades since Batson, this Court’s cases have vig-

orously enforced and reinforced the decision, and guarded

against any backsliding. Moreover, the Court has extended

Batson in certain ways. A defendant of any race may raise

a Batson claim, and a defendant may raise a Batson claim

even if the defendant and the excluded juror are of different

races. Moreover, Batson now applies to gender discrimina-

tion, to a criminal defendant’s peremptory strikes, and to

civil cases.”

Id. at ___, 139 S Ct at 2242-43 (internal citations omitted).

There is no question that Batson was groundbreak-

ing in its effort to craft a procedural mechanism to address

the constitutional problem of racial discrimination in jury

selection, specifically as related to peremptory challenges.

There is also no question that the fundamental principle ani-

mating Batson—and the long line of Supreme Court cases

from Strauder to Flowers—is rock solid. The challenge, as is

so often the case, is in the application. See Batson, 476 US

at 89-90 (“The principles announced in Strauder never have

been questioned in any subsequent decision of this Court.

Rather, the Court has been called upon repeatedly to review

the application of those principles to particular facts.”). Even

groundbreaking approaches may become outdated.

In the 35 years since Batson was decided, let alone

the nearly 150 years since Strauder was decided, our under-

standing of racial discrimination—including what drives it,

how it functions, and what would need to be done to eradicate

it—has significantly changed and deepened. For example,

as explicit bias has become less socially acceptable, the role

of implicit bias has become much better understood. Unlike

Cite as 318 Or App 235 (2022) 243

purposeful discrimination, implicit bias is “unconscious

discrimination” that “occurs, almost inevitably, because of

normal cognitive processes that form stereotypes.” Anthony

Page, Batson’s Blind-Spot: Unconscious Stereotyping and

the Peremptory Challenge, 85 BUL Rev 155, 180 (2005). Yet

Batson’s procedure for rooting out racial discrimination in

peremptory challenges remains fixed on “purposeful dis-

crimination.” Batson, 476 US at 85.

Premised on the assumption that racism is inten-

tional, the Batson procedure is extremely ill-suited to address-

ing implicit bias. It takes aim at deliberate racism, while

allowing very little to be done about the exercise of peremp-

tory challenges by lawyers who do not mean to discriminate

based on race but who may do so unconsciously—to the same

ultimate effect of unconstitutionally removing jurors based

on race. As one commentator has put it, “If the Batson proce-

dure’s goal is to eliminate racial and gender discrimination

in the selection of juries, then the crucial question regarding

that discrimination should not be whether the attorney was

consciously discriminating—this article assumes that most

attorneys act in good faith—but rather whether the attorney

would have challenged the potential juror but for the juror’s

race or gender.” Page, 85 BUL Rev at 159-60.

Unless reimagined, Batson will never live up to

its stated purpose of “eradicat[ing] racial discrimination”

in jury selection. Batson, 476 US at 85. It will not even

come close. Moreover, because of how Batson is framed,

we will continue to hamstring the ability of trial courts to

effectively address racial discrimination in jury selection,

keeping them in an artificial position where they can only

address an equal-protection problem if they can say—and

are willing to say—that a lawyer and officer of the court is

engaging in purposeful racial discrimination. Any efforts to

address implicit bias within the existing Batson framework

run straight into that reality.2

2

In this case, the prosecutor’s explanation for the challenged strike was a

preference for jurors with “executive level, managerial-level” job experience, who

he believed would be more willing to “hold someone accountable for misbehavior”

than a juror who lacked that experience. As defendant argues, given socioeco-

nomic realities in our country, that type of facially race-neutral explanation is

likely to have a disparate effect on potential jurors who are not white, and it could

244 State v. Vandyke

I am far from the first person to recognize this prob-

lem. When Batson was decided, Justice Marshall wrote a

concurrence in which he anticipated that Batson would “not

end the illegitimate use of the peremptory challenge” and

noted that trial courts are “ill equipped to second-guess”

the facially race-neutral reasons that may be provided for

striking a juror. Batson, 476 US at 105-06 (Marshall, J., con-

curring). He also pointed out the risk of implicit bias among

both lawyers and judges, stating that “[a] prosecutor’s own

conscious or unconscious racism may lead him easily to the

conclusion that a prospective black juror is ‘sullen,’ or ‘dis-

tant,’ a characterization that would not have come to his

mind if a white juror had acted identically,” and that “[a]

judge’s own conscious or unconscious racism may lead him

to accept such an explanation as well supported.” Id. at 106.

Thus, “[e]ven if all parties approach the Court’s mandate [in

Batson] with the best of conscious intentions, that mandate

requires them to confront and overcome their own racism on

all levels—a challenge I doubt all of them can meet.” Id.

Twenty years later, Justice Breyer made similar

observations—with the benefit of two decades of watching

Batson being applied—in Miller-El v. Dretke, 545 US 231,

266, 125 S Ct 2317, L Ed 2d 196 (2005) (Breyer, J., concur-

ring). Justice Breyer described how Miller-El demonstrated

the “practical problems of proof” created by the Batson pro-

cedure. Id. at 267. He also observed that, despite the promise

of Batson, the “use of race- and gender-based stereotypes in

the jury-selection process seems better organized and more

systematized than ever before.” Id. at 270 (discussing arti-

cles and studies). He identified the third step of Batson as

particularly problematic, in that it “asks judges to engage in

the awkward, sometimes hopeless, task of second-guessing

a prosecutor’s instinctive judgment—the underlying basis

for which may be invisible even to the prosecutor exercising

the challenge.” Id. at 267-68.

Some state courts have also acknowledged Batson’s

shortcomings. Most notably, in 2013, the Washington Supreme

also potentially reflect implicit bias. When the procedure designed to ensure

equal protection targets only purposeful discrimination, however, the court is

unable to even ask the right questions to get to implicit bias.

Cite as 318 Or App 235 (2022) 245

Court pointed to “a growing body of evidence [that] shows that

racial discrimination remains rampant in jury selection”—

in part because Batson “recognizes only ‘purposeful dis-

crimination,’ whereas racism is often unintentional, insti-

tutional, or unconscious”—and concluded that Batson pro-

cedures are not “robust enough to effectively combat race

discrimination in the selection of jurors.” State v. Saintcalle,

178 Wash 2d 34, 35-36, 309 P3d 326, 335 (2013). That led

the court to eventually modify the Batson procedure, first in

City of Seattle v. Erickson, 188 Wash 2d 721, 391 P3d 1124

(2017), and then again in State v. Jefferson, 192 Wash 2d 225,

429 P3d 467 (2018). In Jefferson, 192 Wash 2d at 229-30, the

court essentially replaced the third Batson step with a new

inquiry into “whether an objective observer could view race

or ethnicity as a factor in the use of the peremptory strike”;

if so, the strike must be denied, and appellate review is

de novo. When Jefferson was decided, Washington had

already adopted General Rule 37, creating new peremptory-

challenge procedures by court rule. Jefferson, 192 Wash 2d

at 243; see also 318 Or App at 239 n 1 (Aoyagi, J., concurring)

(discussing Washington rule). However, that court rule was

not in effect at the time of the defendant’s trial in Jefferson,

so the court proceeded to address the issue as a constitu-

tional question. Jefferson, 192 Wash 2d at 249.

Finally, commentators have levelled their own crit-

icisms at the limitations of the Batson procedure, including

expressing concern that it may actually worsen the effect of

implicit bias. See Judge Mark W. Bennett, Unraveling the

Gordian Knot of Implicit Bias in Jury Selection: The Problems

of Judge-Dominated Voir Dire, the Failed Promise of Batson,

and Proposed Solutions, 4 Harv L & Policy Rev 149, 150

(2010) (The “judge-dominated voir dire and the Batson chal-

lenge process are well-intentioned methods of attempting to

eradicate bias from the judicial process, but they actually

perpetuate legal fictions that allow implicit bias to flour-

ish.”); see also, e.g., Willamette University College of Law

Racial Justice Task Force, Remedying Batson’s Failure to

Address Unconscious Juror Bias in Oregon, 57 Willamette L

Rev 85 (2021); Lauren McLane, Our Lower Courts Must Get

In ‘Good Trouble, Necessary Trouble,’ and Desert Two Pillars

of Racial Injustice—Whren v. United States and Batson v.

246 State v. Vandyke

Kentucky, 20 Conn Pub Int L J 181 (2021); Jeffrey Bellin &

Junichi P. Semitsu, Widening Batson’s Net to Ensnare More

Than the Unapologetically Bigoted or Painfully Unimagina-

tive Attorney, 96 Cornell L Rev 1075 (2011); Page, 85 BUL

Rev at 155.

While others have already called out Batson’s fail-

ure to account for implicit bias, that does not mean that we

should not continue to call it out. “[S]triking even a single

prospective juror for a discriminatory purpose” violates the

Equal Protection Clause. Flowers, 588 US at ___, 139 S Ct

at 2242. That is true whether the discriminatory purpose

arises from explicit bias, implicit bias, or any other kind of

bias. Moreover, while other approaches to addressing the

problem are laudatory, a constitutional problem deserves

constitutional attention. It is hardly unprecedented to revisit

a procedure designed to effectuate a constitutional protec-

tion. Indeed, Batson itself “replaced the ‘ “crippling burden” ’

of proof previously required under Swain v. Alabama when

attempting to prove a racially motivated strike.” Jefferson,

192 Wash 2d at 231 (quoting Saintcalle, 178 Wash 2d at

43-44 (quoting Batson, 476 US at 92-93)).

Something that the United States Supreme Court

said over 80 years ago remains true today: “For racial dis-

crimination to result in the exclusion from jury service of

otherwise qualified groups not only violates our Constitution

and the laws enacted under it but is at war with our basic

concepts of a democratic society and a representative gov-

ernment.” Smith v. State of Texas, 311 US 128, 130, 61 S Ct

164, 85 L Ed 84 (1940). The time has come to revisit the pro-

cedural mechanism created in Batson, update it in light of

our society’s improved understanding of how racial discrim-

ination occurs, and recommit to eradicating racial discrimi-

nation in jury selection as required by the Equal Protection

Clause.

I respectfully concur.