Petition for Writ of Certiorari — Alonzo Cortez Johnson, Petitioner v. William "Chris" Rankins, Warden

APPENDIX “A”

Opinion and Order filed August 8, 2023 (N.D. Okla.)

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

ALONZO CORTEZ JOHNSON,

Petitioner,

Case No. 16-CV-433-TCK-CDL

¥.

WILLIAM “CHRIS” RANKINS, Warden,!

Ne Ne Ne Se ee ey ee ae Nee!

Respondent.

OPINION AND ORDER

The United States Court of Appeals for the Tenth Circuit remanded this case for further

proceedings as to Petitioner Alonzo Cortez Johnson’s claim that he is in state custody in violation

of the United States Constitution because the prosecution violated the Fourteenth Amendment’s

Equal Protection Clause, as interpreted in Batson v. Kentucky, 476 U.S. 79 (1986), by exercising

peremptory strikes in a racially discriminatory manner to excuse prospective jurors. Johnson v.

Martin, 3 F 4th 1210, 1217, 1225, 1235-36 (10th Cir. 2023), cert. denied, 142 S. Ct. 1189, 212 L.

Ed. 2d 55 (2022), and cert. denied, 142 S. Ct. 1350, 212 L. Ed. 2d 55 (2022). For the reasons

discussed below, the Court concludes that it would be impossible and unsatisfactory to hold a

meaningful Batson reconstruction hearing. The Court therefore conditionally grants Johnson’s

petition for writ of habeas corpus as to the Batson claim and directs Respondent to release Johnson

from state custody unless the State grants Johnson a new trial within 120 days from the entry of

this Opinion and Order.

' Johnson presently is incarcerated at the Great Plains Correctional Center (GPCC) in

Hinton, Oklahoma. Dkt. 70, at 7. The Court therefore substitutes the GPCC’s acting warden,

William “Chris” Rankins in place of Rick Whitten as party Respondent. Rule 2(a), Rules

Governing Section 2254 Cases in the United States District Courts. The Clerk of Court shall note

this substitution on the record.

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L. Background

More than a decade ago, a Tulsa County jury convicted Johnson of first-degree murder and

conspiracy to commit murder for his role in a murder-for-hire plot that resulted in the killing of

Neal Sweeney, a prominent Tulsa business man. Johnson, 3 F 4th at 1217; Dkt. 8, at 10-12; Dkt.

12, at 4-92 Johnson’s case proceeded to trial in 2012, and the jury found hirn guilty of first-degree

murder and conspiracy to commit murder and recommended a life sentence for each conviction.

id. at 8. The trial court sentenced Johnson accordingly and ordered that he serve the life sentences

consecutively. Jd. The Oklahoma Court of Criminal Appeals (OCCA) affirmed Johnson’s

judgment and sentence in 2014. fd. at 9. Two years later, the OCCA affinned the state district

court’s denial of Johnson’s application for postconviction relief. Jd.

Johnson then filed a petition for writ of habeas corpus, under 28 U.S.C. § 2254, asserting

seven claims: (1) a Batson claim; (2) a Confrontation Clause claim challenging the admission of

recorded statements; (3) a due process claim challenging the sufficiency of the evidence; (4) a due

process claim challenging the admission of gruesome photographs and testimony; (5) a due process

claim alleging juror misconduct; (6) a claim that the trial court’s evidentiary rulings violated his

constitutional right to present a defense; and (7) a due process claim alleging that cumulative errors

rendered the trial fundamentally unfair. Dkt. 1; Dkt. 8, at 2-4. In 2019, this Court denied Johnson’s

petition for writ of habeas corpus as to all seven claims, entered judgment in Respondent’s favor,

and declined to issue a certificate of appealability. Dkts. 23, 24.

Johnson appealed, and the Tenth Circuit granted a certificate of appealability to consider

four of his claims: (1) the Batson claim; (2) the gruesome-evidence claim; (3) the juror-misconduct

claim; and (4) the cumulative-error claim. Johnson, 3 F Ath at 1217. The Tenth Circuit affirmed

2 Unless otherwise noted, the Court’s citations refer to the CM/ECF header pagination.

bo

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the denial of habeas relief as to the latter three claims, reversed the denial of habeas relief as to the

Batson claim, and remanded for further proceedings as to the Batson claim. fd. at 1235-36.

Tl. Discussion

Johnson’s sole remaining claim is that the prosecution violated the Fourteenth Amendment,

as interpreted in Batson, by exercising five of six peremptory strikes in a racially discriminatory

manner to excuse minority prospective jurors. But the threshold question for this Court is whether

the passage of time since Jobnson’s 2012 trial or any other circumstances make it either impossible

or unsatisfactory to conduct a meaningful evidentiary hearing on Johnson’s Batsen claim.

Johnson, 3 F Ath at 1210. The Court’s consideration of this question proceeds in four parts. First,

the Court discusses the legal framework for assessing a Batson claim. Second, the Court discusses

Johnson’s claim as it was raised and ruled upon at trial. Third, the Court discusses the OCCA’s

rejection of the Batson claim, this Court’s denial of habeas relief as to that claim, and the Tenth

Circuit’s reversal and remand for further proceedings as to that claim. Fourth, and finally, the

Court discusses the feasibility of holding a Batson hearing in this case over a decade after

Johnson’s trial.

A. Legal framework

“Batson held that the ‘Equal Protection Clause prohibits the prosecution’s use of

peremptory challenges to exclude potential jurors on the basis of their race.’” Johnson, 3 F.4th at

1219 (quoting Saiz v. Ortiz, 392 F.3d 1166, 1171 (0th Cir. 2004)). Barson established a threestep, burden-shifting framework for trial courts to consider a claim that a prosecutor has used

peremptory challenges in a racially discriminatory manner. Afiller-El v. Cockrell, 537 U.S. 322,

328 (2003).

First, a defendant must make a prima facie showing that a peremptory challenge

has been exercised on the basis of race. Second, if that showing has been made,

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the prosecution must offer a race-neutral basis for striking the juror in question.

Third, in light of the parties’ submissions, the trial court must determine whether

the defendant has shown purposeful discrimination.

dd, at 328-29 Gnternal citations omitted). At the second step, the proffered nondiscriminatory

reason need not be “persuasive, or even plausible.” Purkett v. Elem, 514 U.S. 765, 768 (1995).

Rather, “{ujniess a discriminatory intent is inherent in the prosecutor’s explanation, the reason

offered will be deerned race neutral.” Jd (quoting Hernandez v. New York, 500 U.S. 352, 360

(1991) (plurality opinion)). At the third step, “the persuasiveness of the justification becomes

relevant” because the third step requires the trial court to assess whether the opponent of the strike

has met bis or her burden to show purposeful diserimination. Id See also Purkett, 514 U.S. at

768 (noting that “the ultimate burden of persuasion regarding racial motivation rests with, and

never shifts from, the opponent of the strike”).

Appellate courts considering a Batson clair apply this same framework and, like the trial

court, must consider “all of the circumstances that bear upon the issue of racial animosity” in

determining, at the third step, whether the opponent of the strike has shown purposeful

discrimination. Sayder v. Louisiana, $52 U.S. 472, 478 (2008). But an appellate court must give

atrial court’s factual “findings great deference” and sustain the trial court’s “ruling on the issue of

discriminatory intent ... unless it is clearly erroneous.” Flowers v. Mississippi, 139 8. Ct. 2228,

2244 (2019). This is so because trial courts play a “pivotal role” in discerning discriminatory

intent at Batson’s third step—the step that requires the trial court to assess the credibility of the

prosecutor’s stated reasons for striking a prospective juror—based on the trial court’s “firsthand

observations” of the demeanor of both the prosecutor and the prospective juror who has been

stricken. Snyder, $52 U.S. at 477; see also Flowers, 139 S. Ct. at 2243 (“[T]he job of enforcing

Batson rests first and foremost with trial judges.”).

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Federal courts considering a Batson claim on habeas review also apply the three-step

framework, but a federal habeas court reviewing a state court’s factual findings and its ultimate

decision regarding a Batson claim must view those findings and the state court’s decision with

even more deference than an appellate court. See Collins, 346 U.S. at 343-44 (Breyer, J.,

concurring) (discussing Batson and noting that “considerations of federalism require federal

habeas courts to show yet further deference to state-court jadgments”). A federal habeas court’s

review of a Batson claim is guided by 28 U.S.C. § 2254(d)(2)’s requirement that the state-court’s

factual determination must be unreasonable considering the evidence presented in state court and

by 28 U.S.C, § 2254(e)(1)’s presumption that a state court’s factual findings are presumed correct

absent clear and convincing evidence to the contrary. Grant v. Royal, 886 F.3d 874, 949-50 (0th

Cir. 2018).

B. Johnson’s Batson challenge at trial

At trial, the State was represented by two prosecutors from the Tulsa County District

Attorney’s Office, Tim Harris and Doug Drurnomond, and Johnson was represented by defense

attorney Mark Lyons. Dkt. 13-24, Tr. Trial vol. 1, at 16.2 Tulsa County District Court Judge Tom

Gillert, who is now retired, presided over Johnson’s trial. Dkt. 66, at 9. According to Lyons,

Johnson’s trial “was racially charged from the beginning” because Johnson is African American,

and he conspired with other minorities (three African Americans and one Pakistani) to murder a

“prominent white man.” Dkt. 67, at 15. During fury selection, Harris exercised the State’s first

six peremptory challenges in the following order: (1} Dr. Tawil, (2) Professor Dickens, (3) Ms.

Aramburo de Wassom, (4) Ms. L. Wilson, (5) Ms. Carranza, and (6) Ms. Martinez. Dit. 13-25,

> When citing original transcripts of state court proceedings, the Court refers to the

CM/ECF header pagination followed by the original pagination, in brackets, if the original page

number differs from the CM/ECF header pagination.

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Tr. Trial vol. 2, at 179-82 [219-22].

After Harris used his second peremptory challenge to strike Professor Dickens, the trial

court—without any Batson challenge from Johnson—immediately asked for a “race neutral

reason.” Dkt. 13-25, at 180 [220]. Drummond responded, “Judge, he has a Ph.D, we’re concerned

about him being a professor of liberal arts. It’s been my practice to not keep those type of educated

people, Ph.D.’s in liberal arts, on the jury. We think they’re too exacting at times, too liberal.” Jd.

The trial court then stated, “Well, Pl determine there’s a race neutral reason. There are other

prospective African Americans on the fury.” fd.

After Harris exercised the State’s sixth peremptory challenge to excuse Ms. Martinez,

Johnson raised a Batson challenge:

MR. LYONS: Your Honor, I'd like to point out at this point that ] think

every peremptory challenge by the State so far except Ms. Wilson has been of a

minority, Dr. Tawil, Ms. Carranza, Ms. Aramburo de Wassom, Ms. [Martinez], and

Mr. Dickens. And there’s a pattern here, Your Honor, of striking all minorities off

this jury.*

THE COURT: Well, { don’t think that this establishes a pattern. Again, in

terms of - - Ms. Martinez, | won’t state their reasons for them, but Ms. Martinez

was patently ~ - she was hardly involved in the process. Ms. Carranza has indicated

she has difficulty with English, Ms. Aramburo de Wassom told us the same. 50 1

do not see a pattern here. And we’ll note your exception.

Id. at 181-82 [221-22]. Harris waived the State’s seventh peremptory challenge then attempted to

exercise its eighth challenge to excuse Ms. Williams. Jd. at 182-83 [222-23]. This time, without

any objection from Johnson or any request from the trial court for a race-neutral reason, Harris

explained:

MR. HARRIS: Judge, the State of Oklahoma would excuse Ms. Williarns.

Tunderstand she’s African American, but our race neutral reason for her is she’s a

* In listing the five prospective jurors stricken by the State, Lyons twice referred to Ms.

Carranza. In context, however, it appears Lyons intended to refer to Ms. Martinez the second time.

Dkt. 13-25, at 181 [221].

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pastor. I think pastors traditionally are very, very forgiving, have trouble with

judgment. She’s worked with drug addicts and counseled them in the past showing

the State of Oklahoma a propensity towards treatment rather than judgment. For

those reasons - -

THE COURT: Well, you would have effectively eliminated all the African

Americans and I’m not going to do that.

MR. BARRIS: Okay.

THE COURT: So you can exercise some other challenge if you choose.

Dkt. 13-25, at 182-84 [223-24]. Harris then used his eighth peremptory challenge to excuse Ms.

Nichols and waived the State’s ninth peremptory challenge. Jd. at 184 [224]. It appears there were

three prospective jurors who could have served as alternate jurors: Ms. Sweet, Ms. Malsam, and

Ms. Ismert. Id. at 184-86 [224-26]. Harris used a peremptory challenge to excuse Ms. Ismert. Id.

at 185 [225]. Johnson did not raise a Batson challenge when Harris excused either Nichols or

Ismert. fd. at 184-85 [224-25],

C, State appellate and federal habeas rulings on the Batson claim

Johnson raised a Batson claim on direct appeal, reasserting his view that the “prosecutor

systematically removed minorities from the jury,” and the OCCA rejected it. Johnson, 3 F Ath at

1220. The OCCA found no Batson violation, reasoning, in relevant part, (1) “that the trial court’s

determination that the State’s explanations for excusing each of the minority jurors were legitimate

race-neutral reasons is not clearly against the logic and effects of the facts presented,” and (2) that

Johnson “ultimately failed to establish purposeful discrimination on the part of the State.” Dkt.

12-4, at 3.5 When Johnson reasserted his Batson claim in his federal habeas petition, this Court

5 Johnson also raised his Batson claim in his application for postconviction relief, but the

state district court and the OCCA concluded that consideration of that claim on postconviction

review was barred by res judicata. Johnson, 3 F 4th at 1220.

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reviewed that claim within the confines of § 2254(d) and denied habeas relief. Dit. 23, at 3-7.

The Tenth Circuit reversed this Court’s decision as to the Batson claun. First, the Tenth

Circuit concluded that this Court “erred by treating his Batson claim as aimed at the third step of

Batson.” Johnson, 3 F 4th at 1222-23. Next, the Tenth Circuit concluded that § 2254(d) did not

bar habeas relief because the OCCA’s decision was (1) based on an unreasonable determination

of the facts and (2) involved an unreasonable application of Batson. id. at 1223-25. As to the first

point, the Tenth Circuit reasoned that the OCCA “expressly approved of the trial court’s

determination that the prasecutor’s ‘explanations for excusing each of the minority jurors were

legitimate race-neutral reasons,” even though the “record plainly shows that the trial court only

determined that one explanation offered by the prosecutor for excusing one minority juror

[Dickens] was a legitimate race-neutral reason” before the trial court then offered “its own reasons

for the strikes, speculating as to what the prosecutor’s reasons might have been.” Jd at 1223

(emphases in original). As to the second point, the Tenth Circuit reasoned, “to the extent that the

OCCA considered the trial court’s sua sponte speculation about potential race-neutral reasons as

part of the Batson analysis, doing so was an unreasonable application of Batson” because Batson’ s

second step requires a trial court to “ask the prosecutor to provide reasons, rather than merely

speculating about what such reasons might be.” Ja. at 1224.

Reviewing the Batson claim de novo, the Tenth Circuit determined, at Batson’s first step,

that Johnson “made a prima facie showing of racial discrimination” based on the prosecution’s

§ Section 2254(d) imposes preconditions to federal habeas relief. Fry v. Pliler, $51 U.S.

112, 119 (2007). Specifically, a federal court “shall not” grant habeas relief as to a federal claim

that was adjudicated on the merits in state court unless the petitioner first shows that the state

court’s adjudication of that claim resulted in a decision that either “(1) was contrary to, or involved

an unreasonable application of, clearly established Federal law, or (2) was based on an

unreasonable determination of the facts in light of the evidence presented in the State court

proceeding.” 28 U.S.C. § 2254(d); Hancock v. Trammell, 798 F.3d 1002, 1010 (10th Cir. 2015).

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“clear pattern of strikes against five of six minority jurors.” dd at 1225-27. In making that

determination, the Tenth Circuit rejected the State’s contention “that there is no inference of

discrimination here because Johnson ‘did not even make a record as to the races’ of each of the

jurors at issue,” noted that “neither the trial court nor the prosecutor objected to defense counsel’s

representation that the prosecutor had used five of six strikes against minorities,” and concluded

that “the absence of a record as to the specific racial makeup of the five minority jurors is not fatal

to Johnson’s prima facie case of discrimination.” fd. Ultimately, the Tenth Circuit concluded that

the trial court erred at Batsan’s second step because instead of asking the prosecution to provide

race-neutral reasons for each strike, the trial court “relfied] instead on its own speculation as to

what might have been the prosecutor’s reasons.” Jd. at 1227 (alteration added) (quoting Paulino

vy. Castro, 371 F.3d 1083, 1092 (9th Cir. 2004)).

But the Tenth Circuit further concluded that the trial court’s error did “not automatically

entitle Johnson to habeas relief’ because “the State has never presented evidence of the

prosecutor’s actual, nondiscriminatory reasons for striking the five minority jurors.” fd The Tenth

Circuit thus determined that the appropriate remedy was to remand the case for a “Batson

reconstruction hearing.” Jd. “A Batson reconstruction hearing is ‘an evidentiary hearing that takes

place somef[]time after the trial, where the prosecutor testifies to [his or] her actual reasons for

striking the venire{|members in question, or the State presents circumstantial evidence of those

reasons.” Jd. (alterations in original) (quoting Paulino v. Harrison, 542 F.3d 692, 700 (9th Cir.

2008)). However, the Tenth Circuit expressly stated that “[b]efore conducting such a hearing, [this

Court] should consider whether the passage of over eight years since Johnson’s trial or any other

circumstances have made such an inquiry ‘impossible or unsatisfactory.” Jd. (quoting Jordan v.

Lefevre, 206 F.3d 196, 202 (2d Cir. 2000)). The Tenth Circuit instructed that if this Court

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“concludes that a Batson reconstruction hearing is impossible or unsatisfactory, it must grant

habeas relief in the form of an order that Johnson be released from custody unless the State grants

him a new trial within 120 days from the entry of the district court’s order.” Jd.

D. Feasibility of a Batson reconstruction hearing

While the Tenth Circuit did not elaborate on the criteria for determining whether a Batson

reconstruction hearing would be impossible or unsatisfactory, the propriety of holding such a

hearing is within the discretion of this Court. Jordan, 206 F.3d at 202. After the Tenth Circuit

issued its mandate, this Court directed the parties to brief the issues that must be addressed on

remand. Dkt. 48. On consideration of those briefs (Dkts. 49, 50), the Court determined that it was

necessary to expand the record so that this Court could adequately assess whether it would be

possible or satisfactory to reconstruct a Batson hearing. The Court thus directed the parties to

engage in discovery and develop a record that would be sufficient for this Court to make that

assessment. id. After the close of discovery, each party submitted a post-discovery brief, along

with supporting exhibits. Dkts. 66, 67.’ The parties strongly disagree as to whether the passage

of time or any other circumstances render it impossible or unsatisfactory to reconstruct a Batson

hearing.

Johnson objects to a reconstruction hearing on three grounds. First, he contends a hearing

would be unsatisfactory because the State has forfeited or waived its right to a Batson hearing.

Dkt. 67, at 11-13. Specifically, Johnson contends that “[a]ilowing the State to manufacture post

7 Respondent’s exhibits include an affidavit from an agent with the Oklahoma Attorney

General's office, the prosecutors’ contemporaneous notes from jury selection, documentary

evidence establishing the racial makeup of all 33 members of the fury pool, and transcripts of the

depositions of both prosecutors who represented the State at trial, Johnson’s trial counsel, and the

trial judge. Dkts. 66-1 through 66-6. Johnson also submitted the transcripts of the same four

depositions. Dkts. 67-1 through 67-4.

10

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hoc reasons for its racially discriminatory strikes over eleven years after the fact seems

fundamentally unfair to Johnson.” Jd at 12. Second, he contends the Supreme Court has never

“recognized that [a] ‘reconstruction hearing’ is a legitimate legal mode of analysis to salvage a

Batson claim when an error is found at any of the three steps” and that the Supreme Court has been

critical of federal courts that rely on a prosecutor’s “after-the-fact explanations for strikes” in

assessing Batson claims. See id. at 14 (quoting Mfiller-El v. Dretke, 545 U.S. 231, 252 (2005), for

the proposition that the validity of a challenged strike “must ‘stand or fall’ on the plausibility of

the explanation given for it at the time”). Third, he contends that even if Supreme Court precedent

permits Batson reconstruction hearings, the depositions submitted by both parties demonstrate

testimony that a Batson hearing “cannot be reconstructed under the facts and circumstances of this

case.” Jd. at 15, 21-25.

Respondent counters that a reconstruction hearing is “undeniably feasible” in this case.

Dkt. 66, at 41. Respondent contends the evidence that “was unearthed during discovery” shows

that, despite the passage of time, Respondent would be able to (1) present direct evidence of the

prosecution’s actual reasons for exercising the State’s peremptory challenges through Harris’s

testimony, (2) present circumstantial evidence of those reasons through conternporaneous notes

created by both prosecutors regarding jury selection and testimony from Drummond and Judge

Gillert, and (3) establish the racial and ethnic makeup of the jury pool. Jd. at 34-40.

Having carefully considered the transcripts of voir dire, the parties’ post-discovery briefs

and supporting exhibits, and applicable law, the Court concludes that it would be both impossible

and unsatisfactory to reconstruct a meaningful Batson hearing in this case. As previously

discussed, the Tenth Circuit determined that Johnson made a prima facie showing that a pattern of

discrimination existed based on the prosecution’s decisions to strike five prospective jurors:

i

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(1) Dr. Tawil, who self-identifies as white, was born in Syria, speaks Arabic as his first language,

and speaks English fluently; (2) Professor Dickens, who self-identifies as African American,

speaks English as his first language, and speaks Spanish proficiently; (3) Ms. Aramburo de

Wassom, who is identified on her driver’s license as white, self-identifies as Mexican, speaks

Spanish as her first language, and had been speaking English for 15 years at the time of trial; (4)

Ms. Carranza, who is identified as white on her driver’s license and, according to the transeript

from voir dire, speaks English as a second language; and (5} Ms. Martinez, who self-identifies as

white and speaks English as her first language. Dkt. 66-1, at 2-3, 5-6; Dkt. 13-25, at 12 [52].* Any

reconstruction hearing would therefore require this Court to focus, at step two, on ascertaining the

State’s proffered reasons for excusing these five jurors, and, at step three, on determining whether,

under all relevant circumstances, those reasons are either plausible or pretext for purposeful

discrimination. Id. at 1227-28,

Arguably, it would not be impossible or unsatisfactory to reconstruct that portion of a

Batson hearing that pertains to step two. At trial, the prosecution provided a reason for striking

one of these five jurors: Professor Dickens. Johnson, 3 F.4th at 1219. Drummond explained that

the prosecution was “concerned about [Dickens] being a Professor of Liberal Arts” and that,

generally, the prosecution “does not keep those type of educated people,” i-e., those who have

Ph.D.s in Liberal Arts, on the jury. fd. Through his sworn deposition testimony, Harris provided

§ An agent with the Oklahoma Attorney General’s office obtained driver’s license

information for all members of the jury pool and contacted all members of the jury pool to ascertain

their self-identified races and/or ethnicities and their languages but was unable to contact Ms.

Carranza, Dkt. 66-1, at 1. Twenty-nine prospective jurors were white, three were black or African

American; and one was American Indian. Jd. at 1-6. It does not appear, either from the original

or the expanded record, that Ms. Martinez identifies herself as anything other than white.

However, at trial the State did not object when Johnson identified Martinez as a minority and the

Tenth Circuit considered Martinez a minority at Batson’s step one. Johnson, 3 F.4th at 1220 n.6.

12

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additional reasons for striking Dickens’ and provided reasons for excusing the four remaining

minority jurors. Dkt. 66-5, Respondent also provided this Court with contemporaneous notes both

prosecutors made during jury selection and documentary evidence regarding the races of all 33

members of the jury pool, and in some instances, the ethnicities of prospective jurors.’° Dkts. 66-

1, 66-2. As Respondent contends, these exemplify the types of evidence that courts may consider

when attempting to reconstruct a Batson hearing. See Dkt. 66, at 30-32 (citing cases).

But it would be both impossible and unsatisfactory to reconstruct that portion of a Batson

hearing that pertains to Batsen’s third step. Even assuming without deciding that Harris’s stated

reasons for striking each minority juror subject to the Batson challenge are his actual reasons for

the strikes-——i.e., that those proffered reasons are untainted by Harris’s thorough review of

transcripts of voir dire!'—this Court cannot sufficiently reconstruct all relevant circumstances in

a way that would permit this Court to meaningfully apply Batson’s third step. At that step, this

Court would be obligated to decide, based on all “relevant circumstances that bear upon the issue

° Harris testified that, after preparing for his deposition, he remembered additional reasons

for striking Dickens. Specifically, he testified that “[Dickens] also said that he likes to use his

cornmunication ability teaching to help college students find their way, their way in Itfe. And I

looked at that and said, you know what, that’s tantamount to doing social work. Very admirable,

okay, but not necessarily what I wanted in a juror.” Dkt. 66-5, at 18. Harris further recalled that

he was concerned when defense counsel asked if Dickens “recognize[d] the difference between

not guilty and innocent” and Dickens, an English professor, responded, “absolutely.” Jd. Harris

explained that this response was concerning because, in Harris’s view, “most people would

struggle with the difference between innocent and not guilty.” fa.

‘© Twenty-nine prospective jurors were white; three were black or African American; and

one was American Indian. Ja. at 1-6.

Harris testified that he “probably, from beginning to end, went over [the transcripts of

voir dire] three full times” and that “for some of the individuals highlighted in this appeal, spent

extra time looking at their responses to [his] questions and Mr. Lyons’ questions, making notes of

pages in the transcript that [he] thought supported [his] position of race neutral strikes.” Dkt. 66-

5, at 8.

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of racial discrimination,” Flowers, 139 S. Ct. at 2243, whether Johnson has met his “ultimate

burden of showing purposeful discrimination,” Jonson, 3 F.4th at 1228. However, the Court in

this case must attempt to reconstruct those circumstances as they existed at the time the Batson

challenge was made—more than ten years ago. Moreover, the Court must assess the real intent

for the peremptory strikes, and Johnson-—-who carries the burden of persuasion at each step-—

should be permitted to offer evidence to rebut the stated reasons for excusing minority jurors. See

Hardcastle v. Horn, 368 F.3d 246, 259-60 (3d Cir. 2004) (explaining that after prosecutor asserts

race-neutral reasons for peremptory challenges, defendant raising Batson challenge “should be

afforded the opportunity to show any weaknesses he may find with the justifications for the

strikes”). Critically though, Harris’s stated reasons for striking two prospective jurors, rely, in

part, on circumstances that cannot be reconstructed. For exarnple, Harris testified that he primarily

excused Dr. Tawil based on Harris’s perception that comments between Tawil and Dr. V. Wilson

regarding whether they knew each other while both attended medical school at Wake Forest

signaled to Harris that there might be “trouble in paradise” between these two prospective jurors.

Dkt. 66-5, at 17.!" Harris also cited his “visual observation” of Dr. Tawil’s “facial expression” in

response to a question frorn Johnson’s attorney and explained that Tawil’s expression led Harris

to believe that Tawil was prejudging the evidence in Johnson’s favor and did not “like the State.”

id. Similarly, Harris testified that he exercised the State’s sixth peremptory challenge against Ms.

When Respondent’s counsel asked Harris to explain his reasons for exercising the State’s

fourth peremptory challenge against Ms. L. Wilson, Harris testified be could “definitely”

remember his reason as “the Wilson/Tawil combo” and explained that his “impression of her is

she was upset with the fact that Dr. Tawil did not recognize her as bis attending physician” and

her “employment at St. John Hospital” and the possibility that she might know Harris’s wife, who

is also a doctor at St. John Hospital. Dkt. 66-5, at 19. Respondent’s counsel clarified that she had

asked about the strike against Ms. L. Wilson, not Dr. V. Wilson, the latter of whom was part of

the “Tawil/Wilson combo” and was excused by Johnson, not the State, fd.

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Case 4:16-cv-00433-TCK-CDL Document 71 Filed in USDC ND/OK on 08/08/23 Page 15 of 18

Martinez because she had previously been called for jury duty, had served as a furor one time, and,

in his view, her “attitude from the get-go” and her “tone” “telegraphed” to Harris that Martinez

did not want to serve on the jury. Dkt. 66-5, at 20-21. Harris also testified that, “other times in

the trial, [Martinez] wasn’t even paying attention to some of the other stuff that was going on”

leading Harris to think, “okay, you have to get involved in this.” Jd These “[dJemeanor-based

explanations for a strike are particularly susceptible to serving as pretexts for discrimination.”

Harris v. Hardy, 680 F.3d 942, 965 (7th Cir. 2012); ef Students for Fair Admissions, Inc. y.

President and Fellows of Harvard College, 143 S.Ct. 2141, 2190-91 Gune 29, 2023} (Thomas, J.,

concurring) (recognizing that is “error for a court to defer to the views of an alleged discriminator

while assessing claims of racial discrimination” and explaining that “judicial skepticism is vital”

because “[h]istory has repeatedly shown that purportedly benign discrimination may be pernicious,

and discriminators may go to great lengths to hide and perpetuate their unlawful conduct”). And

the circumstances for assessing the plausibility of these demeanor-based explanations for a strike

are particularly impossible to reconstruct at an evidentiary hearing that takes place over ten years

Case 4:16-cv-00433-TCK-CDL Document 71 Filed in USDC ND/OK on 08/08/23 Page 16 of 18

after the trial.'? Regardless of how credible this Court might find Harris’s hearing testimony about

his memory of the facial expressions or attitudes of prospective jurors who were stricken over ten

years ago, this Court’s firsthand observation of Harris’s responses to questions from counsel on

direct and cross-examination at a hearing over a decade after the trial is no fair substitute for the

trial court’s “firsthand observations” of both (1) Harris’s demeanor at trial as he explained (or in

this case should have explained) in real time why he was striking a prospective juror and (2) the

prospective juror’s demeanor. See Smyder, 552 US. at 477 (“[RJace-neutral reasons for

peremptory challenges often invoke a juror’s demeanor (e.g., nervousness, inattention), making

the trial court’s firsthand observations of even greater importance”), Hernandez, 500 U.S. at 365

(stating that the “evaluation of the prosecutor’s state of mind based on demeanor and credibility

3 To be fair, when the trial judge improperly supplied the State’s reason for dismissing

Ms. Martinez, the trial court stated that Martinez was “hardly involved in the process.” Johnson,

3 F.4th at 1222. On one hand, the trial court’s comment could be viewed as evidence from 2012

that supports Harris’s reason for excusing Martinez that he first identified in 2023. On the other

hand, given the passage of time since the trial and Harris’s testimony that he extensively reviewed

trial transcripts to prepare for his deposition, the trial court’s comment could be viewed as creating

the basis for Harris’s memory of his reason for striking Martinez. See Dkt. 66-5, at 8 (Harris

testifying that he “probably, from beginning to end, went over [the transcripts of voir dire] three

full times” and that “for some of the individuals highlighted in this appeal, spent extra time looking

at their responses to my questions and Mr. Lyons’ questions, making notes of pages in the

transeript that [ thought supported my position of race neutral strikes”); Sanchez v. Roden, 808

F.3d 85, 93 (1st Cir. 2015) (Thompson, J., concurring) (noting that “[w]hen defense counsel first

raised a Batson challenge in state court way back in September of 2006, the trial judge was ready

with an immediate (and inappropriate) response” and that “it should come as no surprise that nearly

eight years later, when finally called upon to explain why he struck that particular juror, the

prosecutor seized upon the juror’s ‘youth’” and “[i]n doing so, the prosecutor did nothing more

than parrot back the trial judge’s unprompted suggestion”). This provides a prime example of why

it is both impossible and unsatisfactory to reconstruct a Batson hearing in this case.

16

Case 4:16-cv-00433-TCK-CDL Document 71 Filed in USDC ND/OK on 08/08/23 Page 17 of 18

lies peculiarly within a trial judge’s province”)."4 Put simply, it would both impossible and

unsatisfactory to reconstruct a Batson hearing in this case because this Court can neither

reasonably expect Johnson to “show any weaknesses” in Harris’s demeanor-based justifications

for striking at least two minority jurors nor meaningfully assess whether these same justifications

are plausible “in light of all of the relevant facts and circumstances” or, instead, are merely pretext

for purposeful discrimination. Flowers, 139 8. Ct. at 2243.

Th. Conchision

For the reasons stated, the Court concludes it would be both impossible and unsatisfactory

to reconstruct a Batson hearing in this case. As directed by the Tenth Circuit, the Court therefore

conditionally grants Johnson’s petition for writ of habeas as to the Batson claim and directs

Respondent to release Johnson from state custody unless the State grants him a new trial within

120 days from the entry of this Opinion and Order. Jonson, 3 F 4th at 1227.

IT IS THEREFORE ORDERED that Johnson’s petition for writ of habeas corpus (Dkt.

1) is conditionally granted as to the Batson claim asserted in ground one.

IT IS FURTHER ORDERED that Respondent shall release Johnson from state custody

unless the State grants Johnson a new trial within 120 days from the entry of this Opinion and

Order.

4 Notably, Johnson’s trial attorney, Mark Lyons testified through his deposition that he

raised a Batson challenge at trial because the prosecutors made a “series of peremptory strikes on

jurors that were all minorities” and that he felt it “was obvious” from the “atmosphere in the

courtroom’ and the “derneanor of the assistant district attorneys” that the strikes were purposeful

and discriminatory. Dkt. 67-1, at 25. Again, in an ordinary case, courtroom atmosphere and the

demeanor of the prosecutors would be highly relevant to a trial court’s evaluation of purposeful

discrimination at Batson’s third step. But it would be difficult, if not impossible for this Court to

fairly reconstruct these circumstances in this case through a decades-later evidentiary hearing.

m

Case 4:16-cv-00433-TCK-CDL Document 71 Filed in USDC ND/OK on 08/08/23 Page 18 of 18

IT IS FURTHER ORDERED that Respondent shall file a status report no later than 30

days after the entry of this Opinion and Order, and every 30 days thereafter, until the 120-day

period expires or the State complies with the conditional grant of relief, whichever occurs first.

Respondent shall file a notice of compliance no later than 14 days after the State complies with

the conditional grant of relief.

IT IS FURTHER ORDERED that the Clerk of Court shall note the substitution of

William “Chris” Rankins, Acting Warden, in place of Rick Whitten as party Respondent.

IT IS FURTHER ORDERED that a separate judgment shall be filed in this matter.

DATED this 8th of August 2023.

—_——oooo

es eee

TERENCE C, KERN

United States District Judge

18

APPENDIX “B”

Tenth Circuit Opinion filed June 11, 2024

Appellate Case: 23-5095 Document: 010111063437 Date Filed: 06/11/2024 Page: 1

FILED

United States Court of Appeals

PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS June 11, 2024

FOR THE TENTH CIRCUIT Seer ape

erk of Court

ALONZO CORTEZ JOHNSON,

Petitioner - Appellee,

v. No. 23-5095

(D.C. No. 4:16-CV-00433-TCK-CDL)

WILLIAM “CHRIS” RANKINS, (N.D. Okia.)

Respondent - Appellant.

Appeal from the United States District Court

for the Northern District of Oklahoma

(D.C. No. 4:16-CV-00433-TCK-CDL)

Tessa L. Henry, Assistant Attorney General (Gentner F. Drummond, Attorney

General, with her on the brief), Oklahoma Office of the Attorney General,

Oklahoma City, OK, for the Respondent - Appellant.

James L. Hankins, Law Office of James L. Hankins, Edmond, OK, for the

Petitioner - Appellee.

Before PHILLIPS, MORITZ, and EID, Circuit Judges.

PHILLIPS, Circuit Judge.

In 2021, a panel of this court reviewed state prisoner Alonzo Cortez

Johnson’s petition for federal habeas relief under 28 U.S.C. § 2254. Johnson v.

Martin, 3 F.4th 1210, 1216 (10th Cir. 2021), cert. denied, 142 8. Ct. 1350

Appellate Case: 23-5095 Document: 010111063437 Date Filed: 06/11/2024 Page: 2

(2022). Johnson (a Black man) asserted that he was being held in violation of

his constitutional rights because the state court had failed to follow the

appropriate procedural steps under Batson v. Kentucky, 476 U.S. 79 (1986). We

reviewed Johnson’s Batson claim de novo and agreed that the state court had

bungled Batson’s procedural framework after Johnson alleged that the

prosecutor had exercised peremptory strikes based on race. Johnson, 3 F.4th at

1225-27. To remedy this error, we remanded the case with instruction for the

district court to hold a Batson reconstruction hearing if doing so would not be

impossible or unsatisfactory. Jd. at 1227. Otherwise, we ordered the court to

grant Johnson conditional habeas relief, unless the state granted him a new trial

within 120 days. ld.

On remand, the district court granted Johnson conditional habeas relief

because it decided that holding a Batson reconstruction hearing would be “both

impossible and unsatisfactory.” Johnson v. Rankins, — F. Supp. 3d. —, 2023

WL 5055491, at *6 (N.D. Okla. Aug. 8, 2023). That is the decision on review:

Did the district court abuse its discretion in assessing that a Batson

reconstruction hearing would be “impossible or unsatisfactory” in this case?

We conclude that, yes, this was an abuse of discretion, and so we reverse and

remand to the district court to hold a Batson reconstruction hearing.

BACKGROUND

Johnson was convicted of first-degree murder and conspiracy to commit

first-degree murder in Oklahoma state court. Those facts are laid out in this

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court’s prior opinion. See Johnson, 3 F.4th at 1217. After his conviction,

Johnson exhausted his state remedies for postconviction relief to no avail. He

next sought federal habeas relief from the district court under § 2254. The

district court denied Johnson’s § 2254 petition and his request for a certificate

of appealability (COA). Johnson then sought a COA from this court, which we

granted in part. 28 U.S.C. § 2253(c)(1){A). The partially granted COA allowed

Johnson to appeal the district court’s denial of his Batson claim.!

We reviewed Johnson’s Batson claim under the confines of the

Antiterrorism and Effective Death Penalty Act (AEDPA). AEDPA erects a

procedural hurdle that a state prisoner must clear before a federal court may

resolve his claim on the merits. 28 U.S.C. § 2254(d). Johnson had to show

either that the state court’s decision “was contrary to, or involved an

unreasonable application of, clearly established Federal law” or that the state

court had made “an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” Jd. Johnson showed that the

Oklahoma Court of Criminal Appeals (OCCA) had failed in both respects.?

' The COA was also granted for Johnson’s claims alleging the unfair

introduction of gruesome evidence at trial, juror misconduct, and cumulative

error. Those issues were resolved in this court’s previous opinion. Johnson v.

Martin, 3 F.4th 1210, 1228-36 (10th Cir. 2021), cert. denied, 142 8. Ct. 1350

(2022).

? First, the OCCA relied on an unreasonable factual determination by

“purport[ing] to approve the trial court’s acceptance of the prosecutor’s

multiple race-neutral reasons for his strikes,” when in fact “the trial court

(footnote continued)

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Johnson, 3 F 4th at 1224-25. Because the OCCA proceedings resulted in “an

unreasonable application of Batson” and an “unreasonable factual

determination to reject Johnson’s Batson challenge,” we proceeded to review de

novo Johnson’s Batson claim. Id.

Batson establishes a tripartite burden-shifting framework for courts to

detect racial discrimination in the exercise of peremptory challenges. 476 U.S.

at 96-98. First, the defendant bears the burden to make a prima facie case that

prospective jurors have been excluded based on their race. Flowers vy.

Mississippi, 588 U.S. 284, 298 (2019); see Johnson v. California, 545 U.S. 162,

168 (2005) (stating that a prima facie case is established “by showing that the

totality of the relevant facts gives rise to an inference of discriminatory

purpose” (citation omitted)). Second, if that showing is made, the burden shifts

to the prosecution to provide a race-neutral reason for the objected-to strike(s).

Flowers, 588 U.S. at 298. Third, the court “determine[s] whether the

prosecutor’s stated reasons were the actual reasons or instead were a pretext for

discrimination.” Id.

Johnson’s habeas petition alleged that the trial court had erred at

Batson’s second step: the trial judge never prompted the state to give race-

neutral justifications for six peremptory strikes that Johnson challenged. During

accepted only one such reason... and merely speculated as to the other[s].”

Johnson, 3 F.4th at 1224. Second, “the OCCA’s reliance on the trial court’s sua

sponte speculation about the prosecutor’s reasons was an unreasonable

application of Batson.” Id. at 1225.

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voir dire, Johnson asserted a Batson challenge after the state’s sixth peremptory

strike. Of the state’s previous five strikes—excluding prospective jurors Tawil,

Dickens, de Wassom, Wilson, and Carranza—Johnson perceived that four were

minorities. Johnson calculated that those strikes, plus the sixth strike against

prospective juror Martinez (another perceived minority), created “a pattern...

of striking all minorities off th[e] jury.” App. vol. I, at 229. At that point, the

trial judge jumped in. Jd. Preemptively reading the Batson tea leaves, the trial

judge stated that he saw no discriminatory pattern in the state’s strikes because

Martinez was “hardly involved in the process” and Carranza and de Wassom

both spoke English as their second language.? Jd. at 229-30.

Petitioning this court for habeas relief, Johnson alleged that the trial

court’s erroneous application of Batson violated his Fourteenth Amendment

rights under the Equal Protection Clause. Johnson, 3 F.4th at 1216, 1219; see

Powers v. Ohio, 499 U.S. 400, 404 (1991) (“Although a defendant has no right

to a petit jury composed in whole or in part of persons of the defendant’s own

race, he... does have the right to be tried by a jury whose members are

selected by nondiscriminatory criteria.” (cleaned up)). Johnson contended that

> The trial judge asked the state to give a race-neutral reason for only one

of its strikes: the second one against juror Dickens—one of the few Black

prospective jurors in the venire pool. App. vol. I, at 228. The state obliged,

explaining that Dickens’s Ph.D. raised “concern[s|” about his potential to be

“too exacting.” /d. But the state never volunteered any race-neutral reasons for

the other five stricken jurors, after the trial judge had interjected with his own.

See id. at 229-30. Johnson never objected to the trial judge’s interjection or his

not asking the state for race-neutral explanations.

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the state’s lopsided exercise of peremptory strikes toward venirepersons of

color satisfied his burden at Batson step one, yet the trial court never proceeded

to step two. Johnson, 3 F.4th at 1219-20, 1222-23. We agreed that Johnson’s

initial showing was “more than sufficient to require [the] trial court to proceed

to step two of the Batson procedure.” Id. at 1226-27. Because it never did, we

established that the trial court had misapplied Batson. Id. at 1227.

But that error wasn’t enough to entitle Johnson to habeas relief. Jd. Due

to the trial court’s lapse at Batson step two, “the State ha[d] never presented

evidence of the prosecutor’s actual, nondiscriminatory reasons for striking the

five minority jurors.” Jd. Thus, no court had ever evaluated those reasons to

determine if the strikes were racially motivated and therefore if Johnson’s

constitutional rights had been violated. See id.; see also Hernandez v. New

York, 500 U.S. 352, 360 (1991) (“Proof of racially discriminatory intent or

purpose is required to show a violation of the Equal Protection Clause.”). So

we decided that the appropriate remedy was to reverse the district court’s

denial of Johnson’s habeas petition and to remand for the district court to hold

a Batson reconstruction hearing, giving the state a chance to satisfy its

obligations at Batson step two. Id. Given “the passage of over eight years since

Johnson’s trial,” we remanded on an “impossible or unsatisfactory” standard.

Id. That is, we directed the district court to hold the Batson reconstruction

hearing only if the court determined that doing so would not be “impossible or

unsatisfactory.” Jd. If the court decided otherwise, we instructed, then the court

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should instead grant Johnson habeas relief conditional on the state’s not

granting him a new trial within 120 days. Id.

On remand, the district court surmised that it would be premature “to

decide whether a hearing will be impossible or unsatisfactory” because the

court “lack{ed] the circumstantial information necessary to contextualize the

prosecutor’s stated reasons for the challenged strikes.” App. vol. VII, at 2047.

For example, the court balked at the record’s missing information about the

racial makeup of the venire pool, “much less, the race of five of the six jurors

the prosecutors attempted to strike.” d. To fill in these gaps, the court ordered

the parties to conduct discovery that would facilitate the court’s

“reconstruct[ing] the relevant circumstances bearing on the prosecutor’s use of

peremptory strikes at the time they were made.” Jd. at 2050.

The parties completed discovery and filed supplemental briefs with the

district court. Discovery comprised the state’s contemporaneous, handwritten

notes from voir dire; the prospective jurors’ driver’s licenses; an affidavit from

the Oklahoma Attorney General’s Office with information about each juror’s

self-identified race, ethnicity, and English-language proficiency; secondarysource research on the meaning of “race”; and depositions conducted with nowretired Judge Tom Gillert (then state trial judge), now-Judge Doug Drummond

(then assistant prosecutor), Mark Lyons (defense attorney), and Tim Harris

(lead prosecutor).

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Despite this evidence, the district court concluded that “it would be

impossible and unsatisfactory to hold a meaningful Batson reconstruction

hearing.” Johnson, 2023 WL 5055491, at *1. The court acknowledged that,

“lajrguably,” proceeding to Batson’s second step would not be “impossible or

unsatisfactory” considering the evidence adduced during discovery. Id. at *6.

But the court concluded that moving to Batson’s third step would be

impossible. /d. at *7. Because even if Harris’s “stated reasons” for each

disputed strike were his “actual reasons,” the court reasoned that it could not

“sufficiently reconstruct all relevant circumstances in a way that would permit

[the court] to meaningfully apply Batson’s third step.” Jd. On that basis, the

district court entered judgment granting Johnson conditional habeas relief,

according to our remand instructions. Jd. at *8.

William “Chris” Rankins, proceeding in his official capacity as Acting

Warden of the Great Plains Correctional Center, timely appealed the judgment

on behalf of the state. Exercising jurisdiction under 28 U.S.C. §§ 1291 and

2253, we reverse and remand.*

STANDARD OF REVIEW

We review the district court’s decision to deny an evidentiary hearing for

an abuse of discretion. See Marquez v. City of Albuquerque, 399 F.3d 1216,

4 This court granted a motion by the appellant to stay pending appeal the

district court’s order that conditionally granted Johnson habeas relief and

ordered his release from state custody unless the state granted him a new trial.

8

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1224 (10th Cir. 2005). Of that ilk is the decision to hold a Batson

reconstruction hearing. See, e.g., Dolphy v. Mantello, 552 F.3d 236, 240 (2d

Cir, 2009).

DISCUSSION

Our focus here is singular. We consider whether the district court abused

its discretion in declining to hold a Batson reconstruction hearing under an

“impossible or unsatisfactory” standard. Johnson, 3 F.4th at 1227 (quoting

Jordan v. Lefevre, 206 F.3d 196, 202 (2d Cir. 2000)). Principally, this standard

asks the district court to consider whether the “passage of time” or “other

circumstances” would inhibit the court’s ability to hold a reconstruction

hearing. See id. (quoting same); see also Snyder v. Louisiana, 552 U.S. 472,

486 (2008) (ascertaining that, “more than a decade after petitioner’s trial,”

there was no “realistic possibility” of reconstructing the “subtl[ties]”

surrounding the prosecutor’s motives to strike); United States v. McMath, 559

F.3d 657, 666 (7th Cir. 2009) (remanding “for the district judge to make

findings of fact” on the Batson issue, unless “the passage of time preclude[d]

the district court from [doing so]”); Riley v. Taylor, 277 F.3d 261, 294 (3d Cir.

2001) (recognizing that a new trial may be appropriate in lieu of a

reconstruction hearing depending on “the passage of time” (citation omitted)).

The merits of Johnson’s Batson claim do not weigh on this narrow issue. Our

previous opinion establishes as law of the case (1) that Johnson satisfied

Batson’s first step by making a prima facie case of racially motivated

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peremptory strikes and (2) that the district court erred when it failed to

formally conduct Batson’s second step. Johnson, 3 F.4th at 1226-27; see

United States v. Trent, 884 F.3d 985, 994 (10th Cir. 2018) (“Under the law of

the case doctrine, when a court decides upon a rule of law, that decision should

continue to govern the same issues in subsequent stages in the same case.”

(cleaned up)). Those issues being resolved, we pick this case up where we left

off: the possibility of holding a Batson reconstruction hearing on this case

record. Johnson, 3 F.4th at 1227. Having studied the record, we conclude that

the court abused its discretion in deciding that a reconstruction hearing would

be “impossible and unsatisfactory.” Johnson, 2023 WL 5055491, at *1. The

discovery conducted at the district court’s behest yielded sufficient information

for the court to hold a Batson reconstruction hearing at step two.

To start, the state acquired data about the racial and ethnic identities of

all venirepersons, which the district court sought specifically in its discovery

order. The state gathered the driver’s licenses of all 33 venirepersons and

telephoned most of them (some were unreachable) to ask about their selfidentified race, ethnicity, and English-language proficiency. This investigation

revealed that, of the 33 venirepersons, three were Black, one was Native

American, and the remainder were white, according to their driver’s licenses.

Of those listed as “White” on their driver’s licenses, a few identified with other

racial or ethnic identities. App. vol. VIII, at 2101-06. For the six stricken

jurors, the state obtained the following information:

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