State v. Rosa-Re

2008 UT 53
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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State of Utah, 	No. 20070305
Plaintiff and Respondent,
v.
F I L E D
Dennis Rosa-Re,
Defendant and Petitioner. 	July 29, 2008
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Third District, Salt Lake
The Honorable Paul G. Maughan
No. 051902012
Attorneys: 	Mark L. Shurtleff, Att’y Gen., Christine F. Soltis,
Asst. Att’y Gen., Salt Lake City, for plaintiff
Linda M. Jones, Michael D. Misner, Heather J.
Chesnut, Salt Lake City, for defendant
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On Certiorari to the Utah Court of Appeals
WILKINS, Justice:
¶1 	We are called upon in this case to decide whether the
court of appeals erred in concluding that Petitioner Dennis Rosa-
Re’s Batson challenge was untimely. 	We hold that the court of
appeals did so err, and we remand for a consideration of the
merits of Petitioner’s Batson challenge.
BACKGROUND
¶2 	Dennis Rosa-Re was charged by information with forcible
sexual abuse. 	In March 2006, Rosa-Re’s trial began with jury
selection. 	After the “for cause” challenges, the State and the
defense each subsequently used peremptory challenges to strike
three men and one woman from the panel. 	Just prior to the names
of the jurors being announced, defense counsel requested a
sidebar conference and the following conversation occurred:

1 This number is actually inaccurate. 	After the for-cause
challenges, twenty-one jurors remained.
No. 20070305 	2
DEFENSE: I think given the seriousness of the
charges we’re probably going to need the
record to make a Batson challenge. 	Just
wanted to make everybody aware because of the
sixteen perspective [sic] jurors that we had
left after the for-causes, 1 four were men,
three were stricken by the state.
PROSECUTOR: Come again?
DEFENSE: We had four potential male jurors
and you struck three.
. . .
DEFENSE: So we just need the record.
. . .
THE COURT: Okay, alright, we can do that.
DEFENSE: Okay.
¶3 	Following the sidebar conference, the trial court
announced the names of the jurors. 	Rosa-Re did not object. 	The
trial court then asked each of the parties if this was the jury
they had selected, to which Rosa-Re replied, “Yes, Your Honor.”
The empaneled jurors were then sworn in and Rosa-Re made no
objection. 	The trial court then dismissed the remainder of the
venire, including the purportedly improperly stricken male
jurors. 	Again, Rosa-Re remained silent.
¶4 	After jury selection had been completed and the venire
dismissed, Rosa-Re challenged the composition of the empaneled
jury members, claiming that the prosecutor purposely
discriminated against males in violation of the Fourteenth
Amendment. 	The trial court then asked both the prosecutor and
defense counsel to explain the reasons for their peremptory
strikes. 	After consideration, the trial court stated that “based
upon the reasons given and the conduct of both sides, I don’t
find a violation of Batson and the jury is constituted and the
explanations given satisfy the Court that this jury may proceed.”
¶5 	In March 2006, Rosa-Re went to trial. 	The jury found
him guilty of the forcible sexual abuse charge but acquitted him

3 	No. 20070305
of the child abuse charge. 	Rosa-Re filed an appeal with the
court of appeals, claiming that the trial court erred in
overruling his Batson challenge. 	Refusing to consider the merits
of the Batson challenge, the court of appeals held that Rosa-Re
had failed to timely raise and resolve his objection before the
jury selection process was completed. 	See State v. Rosa-Re, 2007
UT App 91U, paras. 2, 6. 	Rosa-Re subsequently petitioned this
court for review.
STANDARD OF REVIEW
¶6 	“On certiorari, we review the decision of the court of
appeals, and not that of the district court.” 	State v. Valdez
(Valdez II), 2006 UT 39, ¶ 11, 140 P.3d 1219 (internal quotation
marks omitted). 	“Whether [a] Batson challenge was timely raised
is a question of law. 	We review questions of law for
correctness, granting no deference to the legal conclusions of
the court of appeals.” 	Id.
ANALYSIS
¶7 	The right to a fair and impartial jury is a
constitutional cornerstone of our criminal justice system.
However, “[t]he Constitution guarantees a defendant the right to
an impartial jury, not a jury of a particular composition.”
Lafferty v. State, 2007 UT 73, ¶ 15, 175 P.3d 530 (citations
omitted). 	Indeed, either party may exercise peremptory strikes
to remove jurors during jury selection for “virtually any reason,
or for no reason at all.” 	State v. Cannon, 2002 UT App 18, ¶ 6,
41 P.3d 1153. 	A party may not, however, strike prospective
jurors solely on the basis of race or gender. 	See J.E.B. v.
Alabama, 511 U.S. 127, 141-42 (1994) (prohibiting discrimination
in the jury selection process on the basis of gender as a
violation of the Equal Protection Clause of the Federal
Constitution); Batson v. Kentucky, 476 U.S. 79, 84-85 (1986)
(prohibiting discrimination against potential jurors on the basis
of race as a violation of the Equal Protection Clause of the
Federal Constitution); see also Utah Code Ann. § 78-46-3 (2002)
(“A citizen shall not be excluded or exempt from jury service on
account of race . . . [or] sex . . . .”). 	If a criminal
defendant believes the prosecution has peremptorily stricken a
juror because of race or gender, he may raise a Batson objection.
“[A] Batson challenge amounts to a statement that the opposing
litigant’s use of peremptory challenges violates the Fourteenth

2 When raising a Batson challenge, a defendant is not merely
objecting to the prosecutor’s peremptory strike; instead, he is
also objecting to the actual composition of the empaneled jury.
See Valdez II, 2006 UT 39, ¶¶ 17 & n.12, 25, 140 P.3d 1219. 	In
doing this, the defendant is asserting not only his own
constitutional right to be tried by a fairly selected jury, but
is also asserting the constitutional right of the individual
juror who was unfairly excluded from jury service. 	See id. ¶ 17
n.12. 	“[I]f a Batson challenge is found, the improperly excluded
juror can then be reinstated.” 	Id. ¶ 45.
3 We note that this court had not yet decided Valdez II at
the time of Rosa-Re’s trial. 	Instead, the last word on the
timeliness of a Batson objection was the court of appeals’
holding in State v. Valdez (Valdez I), 2004 UT App 214, 95 P.3d
291. 	In Valdez I, the court of appeals concluded that a district
court could consider a Batson challenge that was not raised until
after the jury was sworn and the venire was dismissed if it found
“good cause” to address it under Utah Rule of Civil Procedure
18(c)(2). 	2004 UT App 214, ¶¶ 7-11. 	The court of appeals also
explicitly rejected the State’s proposed rule that a Batson
objection must be raised before the jury is sworn and the venire
is dismissed because such a rule was not “firmly established and
regularly followed” under Utah law. 	Id. ¶ 11.
This court subsequently reversed Valdez I. 	Contrary to the
court of appeals’ reasoning, this court concluded that “it is a
well established principle that Batson challenges must be raised
both before the jury is sworn and before the remainder of the
venire is dismissed . . . .” 	Valdez II, 2006 UT 39, ¶ 26
(emphasis added). 	Because Rosa-Re’s trial occurred prior to
Valdez II, however, we clarify that for the facts of this case
only, we apply the timeliness rule articulated in Valdez I.
No. 20070305 	4
Amendment, and as a result the empaneled jury is improperly
composed.” 	Valdez II, 2006 UT 39, ¶ 25 (emphasis added). 2
¶8 	Under clearly established Utah law, “Batson challenges
must be raised both before the jury is sworn and before the
remainder of the venire is dismissed in order to be deemed
timely.” 3 	Id. ¶ 26. 	This bright line rule is necessary so that
“the trial court is able to fashion a remedy in the event a
Batson violation has occurred.” 	Id. ¶ 44. 	Furthermore,
requiring that a Batson objection be resolved before the jury is
sworn and the venire is dismissed “efficiently allows the trial
court to determine the issues the Batson test is designed to

4 In resolving the merits of a Batson challenge, Utah courts
apply a three-part burden-shifting test to determine whether the
peremptory strike violates the Equal Protection Clause. 	See
Valdez II, 2006 UT 39, ¶ 15. 	First, courts consider whether the
opponent of the purportedly improper strike has established “a
prima facie case of purposeful discrimination in the selection of
the . . . jury.” 	Id. 	“In other words, the challenging party
must ‘produc[e] evidence sufficient to permit the trial judge to
draw an inference that discrimination has occurred.’” 	Id.
(alteration in original) (quoting Johnson v. California, 545 U.S.
162, 170 (2005)).
“[O]nce [the defense] has established a prima facie case,
the burden shifts to the proponent of the peremptory challenges
to rebut the prima facie case by offering neutral,
nondiscriminatory justifications for the peremptory challenges.”
Id. 	Finally, if the State “provides a sufficient explanation for
the peremptory challenges,” the court must then decide whether
the defense “has proven purposeful discrimination.” 	Id.
5 	No. 20070305
resolve.” 4 	Id. ¶ 43. 	Accordingly, we reiterate that a Batson
objection will only be deemed timely if it is raised by counsel
before the jury is sworn and before the venire is dismissed.
Rosa-Re argues that his Batson challenge was timely because
during the sidebar conference, which occurred prior to the
swearing of the jury and the dismissal of the venire, he
referenced Batson in the context of jury selection and noted that
male jurors had been stricken. 	Rosa-Re insists that this
language, while minimal, was enough to put the trial court on
notice that a Batson objection was being raised, and that the
trial court’s failure to act in an expedient manner should not
affect the timeliness of his challenge.
¶9 	The State, on the other hand, contends that Rosa-Re’s
sidebar statements did not amount to a clear and concise
allegation of an equal protection violation because he did not
allege that the prosecutor had intentionally discriminated
against males, nor did he allege that the peremptory strikes
resulted in a constitutionally deficient jury. 	Instead, the
State argues, Rosa-Re only vaguely stated his intention to raise
a Batson challenge at some point in the proceedings. 	Moreover,
the State notes that Rosa-Re did not seek reinstatement of the
wrongfully stricken jurors, but in fact acquiesced in the
composition when he approved the empaneled jury. 	Accordingly,
the State argues that Rosa-Re’s Batson challenge was untimely and
the court of appeals’ decision should be affirmed.

No. 20070305 	6
¶10 	We agree with Rosa-Re that his Batson objection was
timely. 	Rosa-Re raised the objection in accordance with the Utah
Rules of Criminal Procedure, see Utah R. Crim. P. 18(c)(2), and
the case law at the time of the trial. 	See Valdez I, 2004 UT App
214, 95 P.3d 291. 	The objection--raised prior to the jury being
sworn and the venire being dismissed--referenced Batson in the
context of jury selection and noted that the State had stricken
three men. 	In that context, it is simply inconceivable that the
trial court was unaware that defense counsel was raising a Batson
challenge. 	Accordingly, Rosa-Re’s Batson challenge was timely,
and the court of appeals erred in concluding otherwise.
¶11 	The only issue presented on appeal is the narrow
question of whether Rosa-Re’s Batson challenge was timely, and we
decide the instant case strictly on that basis. 	We take this
opportunity, however, to briefly discuss other practical aspects
of the Batson objection.
¶12 	Rosa-Re’s Batson objection was substantively adequate.
During the sidebar conference, defense counsel stated,
I think given the seriousness of the charges
we’re probably going to need the record to
make a Batson challenge. 	Just wanted to make
everybody aware because of the sixteen
perspective [sic] jurors that we had left
after the for-causes, four were men, three
were stricken by the state.
We have already concluded that referencing Batson and gender in
the context of jury selection prior to the swearing of the jury
and the dismissal of the venire was sufficient to satisfy the
timeliness rule and put the trial court on notice of the
objection in this case. 	In the future, however, defense counsel
would be wise to clearly articulate that they are making a Batson
objection and state the basis for that objection. 	Indeed, “a
Batson challenge must be raised in such a manner that the trial
court is able to fashion a remedy in the event a Batson violation
has occurred.” 	Valdez II, 2006 UT 39,
¶ 44. 	Accordingly, going forward, the proponent of a Batson
challenge must clearly articulate that a Batson objection is
being made and that the peremptory strike was purposefully used
to discriminate on the basis of race or gender in violation of
the Equal Protection Clause.
¶13 	Furthermore, inasmuch as Valdez II had not been decided
at the time of Rosa-Re’s trial, we conclude that the trial court
here did not commit error in terms of when it resolved the Batson

5 In this case, the trial court asked, “Is this the jury you
selected?” 	Defense counsel replied, “Yes, Your Honor.” 	In the
future, such acquiescence in the jury selection will be deemed a
waiver of a Batson objection.
7 	No. 20070305
objection. 	At the time of the trial, the trial court simply had
to resolve the motion, which it did. 	See Valdez I, 2004 UT App
214, ¶¶ 10-11 (stating that a trial court could resolve a Batson
challenge even after the jury had been sworn and the venire
dismissed if it found “good cause” to do so under Utah Rule of
Criminal Procedure 18(c)(2)). 	Accordingly, we find no error in
the timing of the trial court’s resolution of the objection. 	We
clarify that in the future, however, trial courts have an
obligation to resolve Batson objections before the jury is sworn
and the venire dismissed. 	Given that the express purpose of
Batson is to correct a constitutionally deficient jury
composition before the jury is actually seated and sworn,
postponing the resolution is inappropriate.
¶14 	Moreover, in the event that the trial court fails to
timely resolve a Batson objection, defense counsel also has an
absolute obligation to notify the court that resolution is needed
before the jury is sworn and the venire dismissed. 	Failure to do
so, or acquiescing in the court’s inaction, 5 will in the future
constitute a waiver of the original objection. 	See Allen v. Lee,
366 F.3d 319, 327-28 (4th Cir. 2004) (holding that a defendant
waives a Batson violation by not objecting to the empaneled
jury); cf. State v. Winfield, 2006 UT 4, ¶ 13, 128 P.3d 1171
(refusing to review the defendant’s claim of jury bias where
defendant “affirmatively represented to the trial court that he
had no objection to the jury panel”).
CONCLUSION
¶15 	We conclude that Rosa-Re’s Batson challenge was timely,
and remand to the court of appeals to review the trial court’s
conclusion that the State’s peremptory challenges were not
discriminatory. 	We also conclude that going forward, trial
courts must resolve Batson challenges before the jury is sworn
and the remainder of the venire is excused. 	Furthermore, we note
that defense counsel has a duty to clearly articulate its initial
Batson objection, as well as an obligation to remind the trial
court that timely resolution is required if it appears that the
trial court may fail to do so. 	If defense counsel acquiesces in
the final jury selection by, for example, indicating that he or
she is satisfied with the empaneled jury, any objection is waived
on appeal. 	Reversed and remanded.

No. 20070305 	8
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¶16 	Chief Justice Durham, Associate Chief Justice Durrant,
Justice Parrish, and Justice Nehring concur in Justice Wilkins’
opinion.