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State v. Jim10/18/1988
dians sat on the jury.
Defendant argues that we should not rule against him solely on the ground that some members of his race remained on the panel. See generally United States v. Clemons, 843 F.2d 741 (3rd Cir. 1988). We have not done so. Rather, we are not persuaded that the circumstances on which defendant relies permit an inference that the prosecution used its peremptory challenge to exclude Ms. Clah from the jury on account of race. Cf. id. Defendant notes that the prosecutor successfully removed two other jurors for cause, who were Indian or appeared to be Indian, and never questioned Ms. Clah during voir dire. Defendant contends these circumstances, when taken together with the other facts, raise the necessary inference. We disagree.
The fact that the prosecutor removed some other Indian jurors for cause does not support an inference that the prosecutor removed Ms. Clah for an improper reason. Cf. United States v. Chalan (where all other Indian jurors were removed from panel through challenges for cause, there is a substantial risk that the government improperly used its peremptory challenges to remove the remaining Indian juror). There must be other relevant factors to support the inference. See United States v. Clemons.
The fact that the prosecutor failed to question Ms. Clah during voir dire is relevant in evaluating the state's explanation for its challenges. See State v. Goode. We do not think it is sufficient on these facts to support an inference of purposeful discrimination.
Based on the above, we find that defendant failed to establish a prima facie case of discriminatory use of the state's peremptory challenges. Therefore, we need not consider whether the state provided a racially-neutral explanation for the challenge.
(c) Claim of Improper Excusing of Juror for Cause
Defendant also claims the trial court erred in excusing juror Thomas for cause. During voir dire, Ms. Thomas stated that defense counsel was a personal friend and that her sister worked for him. Upon questioning, Ms. Thomas stated that she had not discussed the case with her sister. There was no further questioning of Ms. Thomas. The state moved to disqualify her for cause. The trial court excused Ms. Thomas for cause.
An accused is entitled to trial by an impartial jury. N.M. Const. art II, § 14 (Cum. Supp. 1988). An impartial jury means a jury where each and every one of the twelve is free from any partiality whatsoever. State v. McFall, 67 N.M. 260, 354 P.2d 547 (1960). It is the duty of the trial court to make sure there is a fair and impartial jury. In doing so, it must exercise discretion, and such discretion will not be disturbed unless there is a manifest error or a clear abuse thereof. State v. Cutnose, 87 N.M. 300, 532 P.2d 889 (Ct. App. 1975), overruled on other grounds, State v. McCormack, 100 N.M. 657, 674 P.2d 1117 (1984). The trial court has a great deal of discretion in excusing a juror for cause. State v. Dobbs, 100 N.M. 60, 665 P.2d 1151 (Ct. App. 1983).
Defendant has not shown that the trial court abused its discretion in excusing a potential juror who was acquainted with defense counsel, even though at the time of voir dire she had no knowledge regarding the case. Defendant supports his argument with cases where prospective jurors were not excused for cause based on their acquaintance with defendants. See, e.g., State v. Gilbert, 100 N.M. 392, 671 P.2d 64
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