People v. Ojeda: Colorado Supreme Court 2022 Opinion
People v. Ojeda: Colorado Supreme Court 2022 Opinion
People v. Ojeda: Colorado Supreme Court 2022 Opinion
2022 CO 7
Petitioner:
v.
Respondent:
Ray Ojeda.
Judgment Affirmed
en banc
February 14, 2021
Ojeda, 2019 COA 137M, 487 P.3d 1117, holding that the trial court erred in denying
Kentucky, 476 U.S. 79 (1986), during the jury selection process. We hold that
because the prosecution offered an explicitly race-based1 reason for striking Juror
R.P., it did not meet its burden of providing a race-neutral explanation for the
strike, as required under step two of the Batson test. Accordingly, we affirm the
shooting a fifteen-year-old girl back in 1997. The victim, who somehow survived,
reported the crime immediately but could not identify the perpetrator. The
investigation eventually stalled out. At some point in time, the Denver Police
Department’s Crime Lab misplaced the victim’s rape kit. Years later, when the
2
police found and retested evidence from the victim’s rape kit, DNA from the
written questionnaire that asked, among other things, whether they, a friend, or a
relative had been the victim of a sexual assault; whether they had friends or
relatives in law enforcement; and whether they or a family member had ever had
that he and his ex-wife had been victims of sexual misconduct or assault, that he
had a friend in law enforcement, and that he or a family member had been “racially
profil[ed].” Because he answered the first question affirmatively, Juror R.P., like
at least a dozen other jurors, was questioned individually by counsel outside the
which he was subjected, as well as his ex-wife’s separate experience, both occurred
the prosecution, that those experiences would not impact his ability to listen to the
2 We use the term “Hispanic” in this opinion (in lieu of Latino) because both the
trial court and the court of appeals used this term.
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evidence or affect his judgment. Neither defense counsel nor the prosecution
¶5 During group voir dire, the prosecutor asked Juror R.P. whether he had a
“response in [his] gut” to the delay in bringing the case to trial. Juror R.P. said that
the delay raised questions: “Maybe the person didn’t disclose for some reason, the
victim? Or maybe there was a mistrial before, or you know, something went
¶6 The prosecutor later asked eight of the prospective jurors to rate the criminal
justice system on a scale of one to ten. Two jurors rated the system a four, three
said it was a five or six, one rated it a six or seven, and two rated the system a nine
or ten. Juror R.P. was one of two jurors who rated the system a four. Later, in
response to a different line of questioning, Juror R.P. indicated that he had “a little
bit of a bias on the system itself,” explaining that he had “worked with
disproportionately filled with people of color and folks with mental disabilities.”
He stated that, while he would try not to let his views affect him as a juror, his
feelings about the system might color the way he “hear[d] and weigh[ed] the
R.P. for cause. She stated that her challenge was based on the content of Juror
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R.P.’s questionnaire, the remarks he made during general voir dire, and his
demeanor. She explained that Juror R.P. expressed “bias” against the criminal
justice system and “visibly showed hesitation” when asked whether he could be
fair.
¶8 As for the questionnaire, the prosecutor observed that Juror R.P. worked in
turned to Juror R.P.’s voir dire comments, focusing on what she characterized as
his “bias against the system.” She construed this comment as an admission by
Juror R.P. that his bias would “impact his ability to listen to both sides.” She then
And I believe that when you look at that in-court behavior against
what is clearly his commitment to his job, in terms of serving people
of color and what he talked about in terms of the defendant being a
person of color—he is himself a person of color—I thought that the
totality of the record indicated that he has a distinctive leaning, that
he himself said he would have trouble listening to the evidence.
R.P.’s statements that he could set his personal experiences aside, follow the rules
provided by the court, and be objective. Defense counsel added that Juror R.P.
was “one of the few Hispanic men on this entire jury panel,” emphasizing that,
under Batson, the prosecutor could not “exclude him just because he’s Hispanic
and may have something in common with the defendant in his heritage.” The
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prosecutor did not dispute defense counsel’s characterization of the basis of her
challenge.
¶10 The district court denied the prosecutor’s challenge for cause, expressly
rejecting the prosecution’s assertion that Juror R.P.’s answers regarding his
feelings or life experiences indicated that he would not follow the court’s rules or
reach a verdict based on the evidence. Specifically, the court found that Juror R.P.
was “certainly entitled to believe that people of color are not well-served in our
criminal justice or medical system.” The court explained: “There’s nothing in his
answers that those feelings o[r] his life experience will affect his judgment in the
case, that he won’t follow the rules set forth by the Court. There’s a completely
inadequate record to challenge him in this case.” It clarified, however, that it had
¶11 Not long thereafter, the prosecutor used a peremptory strike to excuse Juror
R.P. Defense counsel, again, immediately raised a Batson objection, stating that he
was “obviously concerned about excusing Hispanic males from the jury.” Without
waiting for the court to rule on whether defense counsel had made out a prima
facie case of discrimination under the first step of Batson, the prosecutor proceeded
¶12 First, she expressly incorporated her comments related to her earlier for-
cause challenge. Then, she elaborated on those comments, emphasizing the same
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underlying theme. She told the court that Juror R.P. would be a bad juror for the
evidence that the Denver Police Department and the Denver Crime Lab misplaced
the victim’s rape kit for a period of years. She explained that the prosecution
ultimately recovered from the rape kit and was concerned that Juror R.P.’s
reservations about the system might make him more skeptical of the prosecution’s
evidence. The problem, the prosecutor explained after gathering her thoughts,
was that because the “defendant is a Latino male,” and Juror R.P., as a Hispanic
male, had discussed his own concerns about being racially profiled, Juror R.P.
might “steer the jury towards a race-based reason why” Ojeda was “charged in
the case.” The prosecutor added that the jury still included a man of Middle
¶13 Defense counsel responded: “With respect to [Juror R.P.], I think [the
argument being made by [Juror R.P.] because he’s Hispanic.” The court overruled
The Court will deny the challenge for cause as to [Juror R.P.], but there
are abundant race-neutral reasons for a peremptory to be exercised.
First of all, he too is a victim of a sex assault, as is his wife, and he
struck the Court as remarkably unconcerned about those events in his
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own lifetime. His first thought when there was a discussion of the
time [it has] taken to bring this case was that the victim had delayed
disclosure. He does have an anti-law enforcement ben[t], so the Court
finds there’s a sufficient racially neutral basis for the challenge.
¶14 Following the court’s ruling, the prosecutor added that she, too, had “taken
a note” about Juror R.P.’s comments concerning the delay and that they were “of
particular concern.” The jury convicted Ojeda as charged, and the court sentenced
¶15 Ojeda appealed, and a split division of the court of appeals reversed. Judge
Fox, writing for the majority, concluded that the trial court erred in denying
Ojeda’s Batson challenge. Ojeda, ¶ 34, 487 P.3d at 1126. Applying the “substantial
motivating factor” approach to step three of the Batson analysis, Judge Fox
intent. Id. at ¶¶ 25–26, 487 P.3d at 1123–24. Judge Harris specially concurred,
concluding that the prosecution did not meet its burden under step two of the
Batson analysis to state a race-neutral reason for striking Juror R.P. Id. at ¶ 37,
¶16 Judge Hawthorne dissented, concluding that the trial court’s Batson analysis
was inadequate and that People v. Rodriguez, 2015 CO 55, 351 P.3d 423, required the
matter be remanded to the trial court with directions to conduct the three-step
Batson analysis and to make the required factual findings. Ojeda, ¶ 80, 487 P.3d at
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¶17 We granted certiorari3 and affirm on alternate grounds.
II. Analysis
the three-step test set forth in Batson for determining whether a party’s use of a
standards of review that apply to each Batson step before taking a deeper dive into
the cases from the United States Supreme Court and this court that provide the
basic framework for our decision today. Finally, we apply the relevant law to the
3 We granted the People’s petition for certiorari review of the following issues:
1. Whether the court of appeals erred in applying Batson v. Kentucky
by adopting an unprecedented “substantial motivating factor” test
to override the trial court’s conclusion that “abundant race-neutral
reasons” supported a juror strike.
2. Whether the court of appeals erred by creating its own factual
findings when unsatisfied with the trial court’s instead of
remanding for further proceedings as required in People v.
Rodriguez, 2015 CO 55, 351 P.3d 423.
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A. Applicable Law
1. Equal Protection
challenge to a potential juror based solely on race.4 Batson, 476 U.S. at 89; see also
People v. Wilson, 2015 CO 54M, ¶ 10, 351 P.3d 1126, 1131 (explaining that the Equal
Protection Clause prohibits race-based juror strikes). Equal protection also forbids
striking a juror based on the juror’s gender. J.E.B. v. Alabama, 511 U.S. 127, 129
equal protection because it denies the defendant the protection that a trial by jury
is intended to secure: “The very idea of a jury is a body . . . composed of the peers
is, of his neighbors, fellows, associates, persons having the same legal status in
society as that which he holds.” Batson, 476 U.S. at 86 (quoting Strauder v. West
Virginia, 100 U.S. 303, 308 (1879), abrogated by Taylor v. Louisiana, 419 U.S. 522
(1975)). Equal protection also ensures litigants’ and potential jurors’ “right[s] to
jury selection procedures that are free from state-sponsored group stereotypes
rooted in, and reflective of, historical prejudice.” J.E.B., 511 U.S. at 128.
4 For the reasons outlined in footnote one, we use the term “race” expansively to
include Hispanic ethnicity. Batson’s protections unquestionably extend to
Hispanic jurors. See Hernandez v. New York, 500 U.S. 352 (1991).
10
¶20 The harm from discriminatory jury selection reaches beyond that inflicted
on the defendant and the excluded juror to touch the entire community. Juries are
meant to protect life and liberty from wrongful exercises of power; permitting
racial prejudice in jury systems damages both the fact and the perception of justice.
jurors based on race or gender undermine public confidence in the fairness of our
2. Batson v. Kentucky
¶21 To help secure these important rights, the Supreme Court outlined a three-
discriminatory.5
Step One
¶22 At step one, the objecting party must make a prima facie showing that the
peremptory strike was based on the prospective juror’s race. Miller-El v. Cockrell,
537 U.S. 322, 328 (2003) (“Miller-El I”); Wilson, ¶ 10, 351 P.3d at 1131. To raise the
all relevant circumstances. Batson, 476 U.S. at 96. One example of a relevant
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circumstance that the Batson Court suggested is “a ‘pattern’ of strikes” against
members of a cognizable racial group. Id. at 97. But a pattern is not essential to
making a prima facie showing. “The ‘Constitution forbids striking even a single
prospective juror for a discriminatory purpose.’” Foster v. Chatman, 578 U.S. 488,
499 (2016) (quoting Snyder v. Louisiana, 552 U.S. 472, 478 (2008)). “For evidentiary
requirements to dictate that ‘several must suffer discrimination’ before one could
object would be inconsistent with the promise of equal protection to all.” Batson,
476 U.S. at 95–96 (quoting McCray v. New York, 461 U.S. 961, 965 (1983) (Marshall,
J., dissenting from denial of certiorari)). Thus, as long as the totality of the relevant
satisfied his or her step-one burden. Id. at 96; accord Valdez v. People, 966 P.2d 587,
Step Two
¶23 The burden of production then shifts to the proponent of the strike. Batson,
476 U.S. at 97. At step two, the proponent must come forward with a race-neutral
explanation “related to the particular case to be tried.” Id. at 98. Examples include
prospective jurors’ perceived abilities to listen and follow the interpreter, see
Hernandez, 500 U.S. at 356, and a prospective juror’s lack of ties to the community,
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¶24 Step two of the Batson analysis turns on the facial validity of the proponent’s
explanation. Valdez, 966 P.2d at 590. At this step, the striking party’s “explanation
need not rise to the level justifying exercise of a challenge for cause.” Batson,
476 U.S. at 97. All the striking party must do is provide any race-neutral
Elem, 514 U.S. 765, 768 (1995). A race-neutral explanation is “an explanation based
on something other than the race of the juror.” Hernandez, 500 U.S. at 360; see also
People v. Mendoza, 876 P.2d 98, 101 (Colo. App. 1994) (stating that at step two of a
Batson analysis, a prosecutor must offer an explanation for the strike “based on
something other than race”). Nothing more is required for the inquiry to proceed
500 U.S. at 360. This is why a proponent “may not rebut the defendant’s prima
facie case of discrimination by stating merely that he [or she] challenged jurors of
the defendant’s race on the assumption—or his [or her] intuitive judgment—that
they would be partial to the defendant because of their shared race.” Batson,
must determine whether, assuming the proffered reason for the peremptory
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challenge is true, the challenge is based on something other than race, or whether
Step Three
¶27 At step three, after the objecting party has had a chance to rebut the
proponent’s race-neutral explanation, the trial court must decide the ultimate
Batson, 476 U.S. at 98. Under the United States Supreme Court’s recent precedent,
factor test. Flowers v. Mississippi, 139 S. Ct. 2228, 2235, 2244 (2019); Foster, 578 U.S.
at 512–13; Snyder, 552 U.S. at 485. Under this approach, a peremptory strike is
purposely discriminatory for purposes of step three if the strike was “motivated
Purkett, 514 U.S. at 768. As we discussed in Wilson, the trial court’s step-three
ruling should be based on its evaluation of the proponent’s credibility and the
plausibility of his or her explanation. Wilson, ¶¶ 13–14, 351 P.3d at 1132. If the
trial court is convinced, in light of all the evidence, that the proffered reason was
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pretextual and that the proponent’s strike was motivated in substantial part by
discriminatory intent, then it must uphold the Batson challenge. Flowers, 139 S. Ct
¶29 “It is the responsibility of the prosecution to provide its reasons supporting
its peremptory strikes at step two of the Batson analysis, after the trial court rules
that an inference of discrimination exists.” Valdez, 966 P.2d at 592 n.11. For that
strike has occurred, trial courts may not offer up their “own plausible reasons
B. Standards of Review
¶30 “On appeal, each step of the trial court’s Batson analysis is subject to a
separate standard of review.” Rodriguez, ¶ 13, 351 P.3d at 429. Step one is a
“question of legal sufficiency over which the appellate court must have plenary
review.” Valdez, 966 P.2d at 591. As such, we apply de novo review “to a trial
court’s prima facie determination of the Batson analysis.” Id. At step two, the issue
is “the facial validity of the reason articulated by the [proponent].” Id. at 590.
Because this is a question of law, we apply de novo review. Id. Step three requires
the trial court to determine whether the opponent of the strike has satisfied its
fact, we review the trial court’s step-three ruling for clear error. Id.
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C. Application
¶31 We begin with a more detailed examination of the record below and then
turn to Batson and other pertinent cases to guide our consideration of these issues.
Because we conclude that one of the prosecution’s reasons for striking Juror R.P.
was not race-neutral, we hold the trial court erred in overruling Ojeda’s Batson
¶32 To begin, there is no real dispute that Ojeda met his burden as to step one
under Batson. When the prosecutor first attempted to excuse Juror R.P., defense
counsel promptly asserted a Batson objection, noting his concern about excusing
¶33 When shortly thereafter, the prosecution again attempted to excuse Juror
R.P., this time with a peremptory strike, defense counsel renewed his Batson
regarding the challenged peremptory strike. It did not, at any point, argue that
defense counsel failed to set forth a prima facie case. We interpret the
that Ojeda met his burden under step one. We also conclude, based on the
substance of defense counsel’s argument, that Ojeda met his burden in this regard.
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¶34 Next, we turn to step two. As we do so, we review, in greater detail, the
state of the record leading up to the prosecution’s Batson response. Recall that
¶35 After the first Batson challenge, when the prosecutor attempted to excuse
Juror R.P. for cause, she stated that she “found it to be significant” that Juror R.P.
had “devoted his career to . . . a quality of healthcare for individuals.” She told
the court that Juror R.P., “himself a person of color,” appeared to have a distinctive
and his commitment to his career serving people of color. The trial court denied
record to challenge Juror R.P. in this case,” and that “[there was] no indication he
couldn’t follow my instructions and reach a verdict based on the evidence.” The
trial court specifically noted that it did not reach the Batson issue.
¶36 Not long thereafter, the prosecution again sought to excuse Juror R.P., this
argument regarding her challenge for cause. Then, she explained that the
“establishmentarian.” She elaborated that the problem was that the “defendant is
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a Latino male,” and because Juror R.P. had discussed his own concerns about
being racially profiled, Juror R.P., whom she described as a “polished, educated,”
and “persuasive individual,” might then “steer the jury towards a race-based
¶37 Defense counsel again countered that these reasons were overtly race-based:
“With respect to [Juror R.P.], I think [the prosecutor] made my argument for me.
She’s concerned about a race-based argument being made by [Juror R.P.] because
he’s Hispanic.”
¶38 The trial court denied the Batson challenge, identifying three race-neutral
First, that Juror R.P. was a victim of a sex assault, as was his ex-wife, and he seemed
remarkably unconcerned about those events; second, that Juror R.P.’s first thought
when discussing the time it took to get the case to trial was that the victim delayed
disclosure; and, third, that Juror R.P. had an anti-law enforcement bent.
¶39 All three members of the division below, relying on Valdez, concluded that
the trial court improperly supplied its own race-neutral reasons for the
to how the trial court erred in denying Ojeda’s second Batson challenge. See Ojeda,
¶ 13, 487 P.3d at 1121 (majority opinion) (citing Valdez, 966 P.2d at 592 n.11, for the
proposition that a trial court may not supply its own race-neutral reasons for a
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strike); Id. at ¶ 63, 487 P.3d at 1130 (Harris, J., specially concurring) (same); Id. at
¶40 The People argue that all three members of the division erroneously
concluded that the trial court provided its own race-neutral explanation for the
strike. They contend that the trial court’s ruling can, instead, be read to “implicitly
credit” the prosecutor’s explanation. They lean, as they did below, on People v.
Beauvais, 2017 CO 34, 393 P.3d 509, in support of this assertion. We are
unpersuaded.
¶41 In Beauvais, the defendant, who was female, asserted a Batson objection to
arguing that the prosecutor’s reasons for the strikes were pretextual. ¶ 7, 393 P.3d
at 513. After hearing from both attorneys, the trial court found that the defendant
had not established purposeful discrimination. Id. at ¶ 12, 393 P.3d at 515. The
trial court did not make any specific credibility findings about the reasons
proffered by the prosecutor in response to the Batson challenge. See id. On appeal,
the majority of a division of the court of appeals concluded that the record was
insufficient to facilitate review and remanded to the trial court to make specific
striking certain female potential jurors. Id. at ¶ 14, 393 P.3d at 515.
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¶42 We reversed after concluding that an appellate court conducting a clear
error review should defer to the trial court’s step-three ruling “so long as the
record reflects that the trial court weighed all of the pertinent circumstances and
393 P.3d at 519. We viewed the record as sufficient to facilitate review and
prosecution’s reasons and could, thus, survive clear error review. Id. at ¶ 27,
¶43 But here, at step two of the Batson analysis, we apply de novo review. And
here, importantly, the trial court did not implicitly accept the prosecutor’s
explanation. Rather, by supplying its own race-neutral reasons to justify the strike,
¶44 Moreover, by providing its own race-neutral reasons to explain the strike,
the trial court answered the wrong question. The question under Batson is:
Whether the prosecutor actually struck the potential juror based on race. By
supplying its own reasons, the trial court instead answered whether there was
some race-neutral explanation for the strike that could be gleaned from the record
irrespective of the prosecutor’s actual reason for doing so. See Miller-El v. Dretke ,
545 U.S. 231, 252 (2005) (“Miller-El II”) (explaining that the focus is on the striking
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party’s stated reasons, regardless of whether “a trial judge, or an appeals court,
can imagine a reason that might” withstand scrutiny). Thus, the trial court erred
¶45 The People next contend that the trial court’s third justification—that Juror
the trial court but, instead, simply another way of describing the prosecutor’s
argument regarding establishmentarian jurors. Even if this is so, it does not move
the needle here because the inquiry at step two is whether—accepting what the
prosecution said as true—the explanation for the strike was race-neutral or race-
based.
¶46 Applying that standard, we conclude that the prosecution’s explanation was
based in part on Juror R.P.’s race. Here, the thread that runs through the
prosecution’s lengthy explanation was its overtly race-based concern that Juror
R.P.—a polished, educated, persuasive Hispanic man, who the prosecution said
voiced concern about racial profiling—might look to Ojeda who, like him, was a
Hispanic man, and “steer the jury towards a race-based reason why” Ojeda was
“charged in the case.” Judge Harris explained the overtly race-based rationale for
[The prosecutor] explicitly tied Juror R.P.’s race to his views on the
justice system. It was not just that Juror R.P. had concerns about the
system; it was also that he was a person of color, like the defendant,
and the combination of those facts made it more likely that he would
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find a “race-based” reason for the prosecution and then try to
persuade the other jurors to adopt his view.
¶47 At base, part of the prosecution’s explanation boiled down to the suggestion
that Juror R.P. might not give the prosecution a fair shake because of his race. See
Batson, 476 U.S. at 104 (Marshall, J., concurring) (explaining that the exclusion of
Black jurors cannot “be justified by a belief that [B]lacks are less likely than whites
¶48 Though not dispositive here at step two, we also note that, contrary to the
People’s assertions, Juror R.P. (1) did not “talk[] about” the defendant being a
person of color; (2) did not “talk about” or “make comments” regarding his own,
or anyone else’s, “concerns” about racial profiling; (3) did not “inject[] his personal
views about racial profiling”; and (4) did not attribute his views regarding the
justice system to his race. It was the prosecution that focused on the defendant
and Juror R.P. as persons of color and then connected Juror R.P.’s race to his
prosecution misattributed certain statements and views regarding race and racial
profiling to Juror R.P. to argue that he might not consider the prosecution’s case
¶49 On this record, we conclude that the prosecution did not meet its burden at
step two of the Batson analysis to offer a race-neutral reason for striking Juror R.P.
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2. What a Successful Batson Challenge Does Not Say
¶50 Today’s conclusion is not a determination that the prosecutor here harbored
ill will or animosity toward Juror R.P. or Ojeda, let alone all Hispanic people.
Indeed, the objecting party need not show that a race-based strike was motivated
jury selection sometimes springs from overt racism, more often, their use reflects
a misguided but “professional effort to fulfill the lawyer’s obligation to help his or
her client.” See Miller-El II, 545 U.S. at 271 (Breyer, J., concurring). Of course, “the
outcome in terms of jury selection is the same as it would be were the motive less
race is not the same as a finding that the proponent of the strike is racist. And
¶51 This mistaken assumption, in turn, may create a disincentive for sustaining
by the trial court that the person who exercised the strike—be it the prosecutor or
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that the proponent of the strike is also a liar (because of the necessary finding that
the proponent’s explanation for the strike is pretextual). See Beauvais, ¶¶ 84–95,
¶52 Here, we emphasize that our conclusion that the prosecution did not meet
its burden at step two of the Batson analysis is not a determination that the
prosecution harbored any ill will toward Juror R.P., Ojeda, or Hispanic people.
Nevertheless, given our conclusion regarding step two of the Batson analysis,
III. Conclusion
¶53 Because we conclude that the trial court erred at step two by denying
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