1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 Opinion Number: _______________

3 Filing Date: NOVEMBER 23, 2015

4 NO. 33,405

5 ART BUSTOS, Personal Representative

6 for the ESTATE OF JUVENTINO HERNANDEZ, 

7 Deceased, ODILIA PALMA DE CEBALLOS, Wife,

8 DENISE ALEJANDRA CEBALLOS-PALMA, Daughter,

9 individually, and ODILIA PALMA DE CEBALLOS, as Parent

10 and Next Friend of GUADALUPE CEBALLOS-PALMA and

11 SARAH CEBALLOS-PALMA, Minor Children,

12 Plaintiffs-Appellants,

13 v.

14 CITY OF CLOVIS, CLOVIS POLICE DEPARTMENT,

15 OFFICERS DOUG FORD, ERIC MULLER, and

16 DAVID BRYANT, Individually and in their official

17 capacities,

18 Defendants-Appellees.

19 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY

20 Albert J. Mitchell Jr., District Judge

21 Lindsey Law Firm, L.L.C.

22 Daniel R. Lindsey

23 Clovis, NM

24 for Appellants
1 Beall & Biehler

2 Gregory L. Biehler

3 Gianna M. Mendoza

4 Albuquerque, NM 

5 for Appellees
1 OPINION

2 VIGIL, Chief Judge.

3 {1} This case requires us to revisit the requirements for imposing joint and several

4 liability on the original tortfeasor when there are successive tortfeasors. We conclude

5 that the district court erred in granting summary judgment on Plaintiffs’ wrongful

6 death claim after ruling as a matter of law that joint and several liability does not

7 apply in this case. 

8 {2} In addition, we agree with Plaintiffs that Defendants’ use of peremptory

9 challenges resulted in the unconstitutional exclusion of Hispanics from the jury, and

10 the defense verdicts on the claims that were tried must therefore be set aside. See

11 Batson v. Kentucky, 476 U.S. 79, 85 (1986) (holding that racial discrimination in the

12 jury selection in a criminal case offends the Equal Protection Clause of the United

13 States Constitution); Edmonson v. Leesville Concrete Co., 500 U.S. 614, 616 (1991)

14 (holding that a private litigant in a civil case may not use peremptory challenges to

15 exclude jurors on account of their race). 

16 {3} Finally, we summarily address Plaintiffs’ remaining arguments. 

17 I. BACKGROUND

18 A. Facts
2

1 {4} Juventino Ceballos Hernandez, a Mexican national with a wife and three

2 children, came to the United States with a valid visa to Clovis, New Mexico. Mr.

3 Hernandez stayed with friends, Cruz and Petra Chavez, their three children, and

4 Cruz’s brother Ivan.

5 {5} About one month later, Mr. Hernandez suffered from some type of episode. He

6 was eating with the Chavez family and began yelling and pounding his fists on the

7 table. Petra went next door to ask her neighbor, who speaks English, to call for help.

8 The neighbor called 911 telling the dispatcher that Mr. Hernandez was going “crazy”

9 and to please send help.

10 {6} Officers Bryant and Muller arrived at the Chavez’s residence. They knocked

11 and yelled, “police” but did not receive an answer. They heard banging and yelling,

12 which made Officer Bryant want to investigate the possibility of a crime. The door

13 was open, so Officer Bryant stepped inside, with Officer Muller just behind him.

14 Officer Bryant saw Mr. Hernandez sitting at the table eating, banging on the table,

15 and yelling. Mr. Hernandez turned around to face the officers, smiled, waved, and

16 then continued eating, banging on the table, and yelling. However, he was not

17 harming anything or anybody, and no violence was taking place. Mr. Hernandez did

18 not respond to questions Officer Bryant yelled at him in English, and although Officer
3

1 Bryant knew that Mr. Hernandez spoke Spanish, Officer Bryant continued to yell at

2 Mr. Hernandez.

3 {7} Suddenly, and without provocation,Mr. Hernandez ran toward the officers and

4 punched or hit them. Officer Bryant arrested Mr. Hernandez for battery on a police

5 officer, took him into police custody, and intended to take him to jail. The officers

6 handcuffed Mr. Hernandez, but when they started taking him out the door, Mr.

7 Hernandez kicked the door, and they all fell to the floor. Officers Bryant and Muller

8 held Mr. Hernandez down on the floor until Officers Ford and Longley arrived. The

9 officers were able to get Mr Hernandez outside after putting him in ankle cuffs and

10 securing the ankle cuffs to the handcuffs behind him by attaching a strap or a dog

11 leash between the ankle cuffs and the handcuffs.

12 {8} With Mr. Hernandez “hogtied” in this manner, the four officers carried or

13 dragged Mr. Hernandez outside. Once outside of the home, Mr. Hernandez was

14 dragged down the driveway, and he suffered abrasions on his thighs. When a witness

15 saw the officers dragging Mr. Hernandez across the rough driveway on his thighs, she

16 “was horrified by what they did, because it was like they were laughing like they had

17 won.” Plaintiffs presented expert testimony that restraining Mr. Hernandez with the

18 hogtie violated police standards of care under the circumstances.
4

1 {9} When the ambulance arrived, Mr. Hernandez was in the middle of the driveway

2 on his stomach. His hands were held behind him by the handcuffs, and his legs were

3 bent at the knees, sticking up in the air. Mr. Hernandez’s thighs were abraded from

4 being dragged across the rough pavement, and he had blood coming from his mouth.

5 The EMTs put Mr. Hernandez on a long backboard face down and loaded him onto

6 the stretcher. On the backboard, the EMTs secured Mr. Hernandez with spider straps.

7 Spider straps have two points at the top, two points at the bottom, and three straps

8 across the middle that hook on each side. Officer Bryant rode in the ambulance with

9 Mr. Hernandez as he was under arrest and in police custody. Mr. Hernandez arrived

10 at the emergency room lying face down on the backboard with the handcuffs and

11 ankle cuffs fastened, in addition to the spider straps. His hands and feet were tied

12 together behind his back, his feet crossed.

13 {10} Dr. Thibodeau was in charge of Mr. Hernandez’s treatment at the hospital, and

14 she made the decision to keep Mr. Hernandez restrained with his hands and feet

15 bound together behind his back. Her plan was to keep Mr. Hernandez face down and

16 in the restraints until he was calm and then remove the restraints. In order to calm Mr.

17 Hernandez as quickly as possible, and get him out of the shackles, Dr. Thibodeau

18 provided him with medications to chemically calm him down. 
5

1 {11} After the medications were administered, Mr. Hernandez quit breathing. A

2 nurse who was with him called a code blue, and the officers went into the room and

3 removed the restraints. The hospital staff resuscitated Mr. Hernandez, however, he

4 suffered brain damage and was in a vegetative state for the next seven months. His

5 family returned him to Mexico where he subsequently died.

6 B. Procedural History

7 {12} The estate of Mr. Hernandez and his family (Plaintiffs) filed suit against the

8 City of Clovis, the individual police officers, the hospital, and Dr. Thibodeau. Claims

9 were made for wrongful death, negligent infliction of emotional distress, loss of

10 consortium, battery, excessive force under 42 U.S.C. § 1983 (2012), and medical

11 malpractice. Prior to trial, the hospital and Dr. Thibodeau settled the medical

12 malpractice claims with the family and had no further involvement in the case. We

13 therefore refer to the City of Clovis and the individual police officers herein as

14 Defendants. Prior to trial the district court also granted summary judgment in favor

15 of Defendants on the wrongful death claim and dismissed the claim for negligent

16 infliction of emotional distress. 

17 {13} The parties went to trial on the battery, excessive force, negligence, and loss

18 of consortium claims. The district court granted Defendants a directed verdict on the

19 battery, and the jury found for Defendants on the remaining claims.
6

1 {14} Plaintiffs appeal raising eleven issues but only brief five. The issues briefed

2 are: (1) whether summary judgment was properly granted on the wrongful death

3 claim; (2) whether defense counsel’s peremptory strikes resulted in the

4 unconstitutional exclusion of Hispanics from the jury; (3) whether the directed verdict

5 on the battery claim was properly granted; (4) whether there was error in excluding

6 the testimony of Plaintiffs’ expert witness on hedonic damages; and (5) whether the

7 verdict should be set aside due to defense counsel’s statements during voir dire. We

8 address the first two issues separately and summarily address the remaining issues,

9 including those that were not briefed.

10 II. SUMMARY JUDGMENT ON THE WRONGFUL DEATH CLAIM

11 {15} Plaintiffs’ wrongful death claim was based upon New Mexico tort law and for

12 a violation of constitutional rights under 42 U.S.C. § 1983.The district court granted

13 Defendants’ motion for summary judgment on the basis that “liability on the part of

14 the officers ends when Mr. Hernandez was delivered to the [e]mergency [r]oom.” We

15 reverse on the New Mexico tort law claim and affirm on the federal claim. 

16 A. Standard of Review

17 {16} “Summary judgment is appropriate where there are no genuine issues of

18 material fact and the movant is entitled to judgment as a matter of law.” Self v. United

19 Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. “On appeal
7

1 from the grant of summary judgment, we ordinarily review the whole record in the

2 light most favorable to the party opposing summary judgment to determine if there

3 is any evidence that places a genuine issue of material fact in dispute.” City of

4 Albuquerque v. BPLW Architects & Eng’rs, Inc., 2009-NMCA-081, ¶ 7, 146 N.M.

5 717, 213 P.3d 1146. We review summary judgment de novo and we resolve all

6 reasonable inferences in favor of the non-movant and view the pleadings, affidavits,

7 depositions, answers to interrogatories, and admissions in a light most favorable to

8 a trial on the merits. See Romero v. Philip Morris Inc., 2010-NMSC-035, ¶ 7, 148

9 N.M. 713, 242 P.3d 280. We do so because New Mexico courts “view summary

10 judgment with disfavor, preferring a trial on the merits.” Id. ¶ 8. “To determine which

11 facts are material, the court must look to the substantive law governing the dispute.”

12 Id. ¶ 11 (internal quotation marks and citation omitted). In this case, multiple

13 tortfeasor liability and 42 U.S.C. § 1983 are the substantive law governing the

14 wrongful death claim.

15 B. Multiple Tortfeasor Liability

16 {17} Under New Mexico’s pure comparative fault rules, “when concurrent

17 tortfeasors negligently cause a single, indivisible injury... each tortfeasor is severally

18 responsible for its own percentage of comparative fault for that injury.” Payne v.

19 Hall, 2006-NMSC-029, ¶ 11, 139 N.M. 659, 137 P.3d 599 (emphasis in original);
8

1 Gulf Ins. Co. v. Cottone, 2006-NMCA-150, ¶ 20, 140 N.M. 728, 148 P.3d 814. Other

2 rules apply when successive tortfeasors negligently cause separate, divisible injuries.

3 {18} “As an exception to the general rule of several liability, the successive

4 tortfeasor doctrine imposes joint and several liability on the original tortfeasor for the

5 full extent of both injuries, those caused by both the original tortfeasor and the

6 successive tortfeasor.”Payne, 2006-NMSC-029, ¶ 13. For this exception to apply, the

7 first injury is caused by the original tortfeasor and that injury causally leads to a

8 second, distinct injury (or a distinct enhancement of the first injury), which is caused

9 by a second tortfeasor. Id. ¶ 12. “The original tortfeasor is responsible for both

10 injuries because it is foreseeable as a matter of law that the original injury, such as

11 that suffered from a car accident, may lead to a causally-distinct additional injury,

12 such as when the original injury requires subsequent medical treatment, negligently

13 administered at a hospital.” Id. ¶ 13; see also Gulf Ins. Co., 2006-NMCA-150, ¶ 20

14 (discussing elements of successive tortfeasor liability that are required to impose joint

15 and several liability). In order for this narrow exception to comparative negligence

16 to apply, the original injury must be “caused by the negligence of the original

17 tortfeasor, which is then followed by a second or enhanced injury caused by the

18 second tortfeasor.” Payne, 2006-NMSC-029, ¶ 15. Thus, when the elements of

19 negligence, causation, and a distinct original injury are found, the original tortfeasor
9

1 may be held jointly and severally liable for the subsequent or enhanced injury as well.

2 Id.; Gulf Ins. Co., 2006-NMCA-150, ¶ 20. 

3 {19} In granting summary judgment, the district court found that “[t]he evidence

4 does not support Plaintiffs’ theory that the injuries the police allegedly caused Mr.

5 Hernandez necessitated the allegedly negligent medical care administered to Mr.

6 Hernandez in the emergency room.” We disagree. Viewing the evidence in the light

7 most favorable to Plaintiffs, as we must, we conclude that Plaintiffs presented

8 evidence pointing to genuine issues of material fact on whether Defendants are jointly

9 and severally liable for the death of Mr. Hernandez. Specifically, there are issues of

10 material fact as to whether negligence of Defendants caused Mr. Hernandez to suffer

11 personal injuries and whether it was foreseeable that those injuries required medical

12 attention. 

13 {20} Officer Bryant originally arrested Mr. Hernandez, intending to take him to jail.

14 When efforts to take himout of the house in handcuffs failed, the officers hogtied Mr.

15 Hernandez and carried or dragged him outside where he was dragged down the

16 driveway and the ambulance was called. Expert testimony was presented by Plaintiffs

17 that this violated accepted police practices. Mr. Hernandez was lying hogtied face

18 down on the driveway with abrasions on his thighs from being dragged on the

19 pavement and he was bleeding from the mouth when the ambulance arrived. A jury
10

1 could very well conclude that it was foreseeable to the officers that Mr. Hernandez

2 would receive treatment for these injuries at the emergency room. The evidence also

3 supports a finding that Mr. Hernandez received negligent medical treatment at the

4 emergency room, resulting in a cardiac arrest and death—separate and distinct

5 injuries from those he received in the process of being arrested. 

6 {21} Under the circumstances, it was up to the jury to decide, under appropriate

7 instructions, whether Defendants were jointly and severally liable for the injuries and

8 death suffered by Mr. Hernandez. See Payne, 2006-NMSC-029, ¶ 42 (“[If] causation

9 of an original injury is contested, then it would not be appropriate for the trial judge

10 to make this determination in place of the jury.”). We therefore reverse the summary

11 judgment granted in favor of Defendants on Plaintiffs’ wrongful death claim that is

12 premised upon joint and several liability. 

13 3. Liability Under 42 U.S.C. § 1983

14 {22} The district court also concluded that the alleged negligent treatment

15 administered at the emergency room “is the superseding cause” of Mr. Hernandez’s

16 cardiac arrest and related injuries, and because no reasonable jury could find that the

17 conduct of the police officers “was the proximate cause” of his cardiac arrest and

18 injuries, Defendants were entitled to summary judgment on the 42 U.S.C. § 1983

19 claim. Plaintiffs have not provided us with any authority demonstrating that summary
11

1 judgment was improperly granted on this claim on this basis. We therefore affirm. See

2 State v. Godoy, 2012-NMCA-084, ¶ 5, 284 P.3d 410 (“Where a party cites no

3 authority to support an argument, we may assume no such authority exists.”); State

4 ex rel. Office of State Eng’r v. Lewis, 2007-NMCA-008, ¶ 74, 141 N.M. 1, 150 P.3d

5 375 (citing cases stating that a party must submit argument and authority in order to

6 present an issue for review on appeal, that we will not address a contention not

7 supported by authority, and that an issue is abandoned upon a failure to present

8 argument or authority). 

9 III. THE BATSON CHALLENGE

10 {23} In Batson, the United States Supreme Court held that racial discrimination in

11 selecting a jury in a criminal case violates the Equal Protection Clause of the United

12 States Constitution. 476 U.S. at 85. Racial discrimination not only violates the right

13 of the defendant, it also unconstitutionally discriminates against the excluded juror,

14 and undermines public confidence in the fairness of our system of justice. Id. at 86-

15 87. Batson was subsequently extended to civil cases in Edmonson, 500 U.S. at 616-

16 17, and in J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 129 (1994), the Supreme

17 Court held that “gender, like race, is an unconstitutional proxy for juror competence

18 and impartiality.” Discrimination in jury selection causes individualized and

19 structural harm.
12

1 Discrimination in jury selection, whether based on race or on gender,

2 causes harm to the litigants, the community, and the individual jurors

3 who are wrongfully excluded from participation in the judicial process.

4 The litigants are harmed by the risk that the prejudice that motivated the

5 discriminatory selection of the jury will infect the entire proceedings.

6 The community is harmed by the State’s participation in the

7 perpetuation of invidious group stereotypes and the inevitable loss of

8 confidence in our judicial system that state-sanctioned discrimination in

9 the courtroom engenders.

10 Id. at 140 (citation omitted). 

11 Thus, when even a single juror is stricken for racial reasons, reversible error is

12 committed regardless of whether the jury that is chosen is actually fair and unbiased

13 or retains its “representative” character, because equal protection has been violated.

14 See State v. Gerald B., 2006-NMCA-022, ¶ 30, 139 N.M. 113, 129 P.3d 149; State

15 v. Gonzales, 1991-NMCA-007, ¶ 17, 111 N.M. 590, 808 P.2d 40, modified on other

16 grounds by State v. Dominguez, 1993-NMCA-042, 115 N.M. 445, 853 P.2d 147.

17 {24} Following Edmonson, we for the first time in New Mexico, hold that the

18 Batson approach applies to civil cases. In this case, the district court allowed

19 Defendants to use peremptory strikes against Hispanics from the jury with the result

20 that the jury that decided the case had no Hispanics. We are therefore squarely

21 confronted with Plaintiffs’ argument that the jury selection violated Batson. We first

22 describe the procedure which a district court must follow when a Batson challenge
13

1 is made during jury selection, set forth our standard of review, then apply that

2 analysis to the facts before us.

3 A. Procedure for Deciding a Batson Claim

4 {25} In Edmonson, the Supreme Court stated that the same approach described in

5 Batson for determining the existence of racial discrimination in the jury selection of

6 criminal cases also applies in civil cases. Edmonson, 500 U.S. at 631. Our precedent

7 in applying Batson in criminal cases is well developed. A three-part test is utilized.

8 {26} First, the opponent of a peremptory challenge has the burden to establish a

9 prima facie case “indicating that the peremptory challenge has been exercised in a

10 discriminatory way[.]” State v. Salas, 2010-NMSC-028, ¶ 31, 148 N.M. 313, 236

11 P.3d 32. To establish a prima facie case the challenging party must show that “(1) a

12 peremptory challenge was used to remove a member of a protected group from the

13 jury panel, and (2) the facts and otherrelated circumstancesraise an inference that the

14 individual was excluded solely on the basis of his or her membership in a protected

15 group.” Id. 

16 {27} Second, if a prima facie showing is made, the burden then shifts to the

17 proponent of the challenge to come forward with a race or gender-neutral explanation

18 for the challenge. Id. ¶ 32. This does not require a persuasive or even plausible

19 explanation. Id. While a mere denial of a discriminatory motive is not sufficient, State
14

1 v. Jones, 1997-NMSC-016, ¶ 3, 123 N.M. 73, 934 P.2d 267, as long as a

2 discriminatory intent is not inherent in the explanation, the reason offered is deemed

3 to be neutral. Salas, 2010-NMSC-028, ¶ 32. If the explanation offered is not neutral,

4 then a finding of purposeful discrimination may be made without any further showing

5 by the opponent to the challenge. Jones, 1997-NMSC-016, ¶ 3. 

6 {28} Third, if a neutral explanation is tendered, the district court then determines

7 whether the opponent of the strike has proved purposeful discrimination. Salas, 2010-

8 NMSC-028, ¶ 32. In this regard, the burden of persuasion on discrimination never

9 shifts from the opponent of the strike. Id. 

10 B. Standard of Review

11 {29} We review a district court’s factual findings on a Batson challenge under a

12 deferential standard of review. Id. ¶ 33. In making its factual findings, the district

13 court has a responsibility to “ (1) evaluate the sincerity of both parties, (2) rely on its

14 own observations of the challenged jurors, and (3) draw on its experience in

15 supervising voir dire. ” Id (internal quotation marks and citation omitted). 

16 {30} However, the Batson issue ultimately is a constitutional one which we review

17 de novo. See Salas, 2010-NMSC-028, ¶ 33. While factual, the issue is also one of

18 policy to be decided de novo because the ultimate constitutional question relates to

19 conduct. Our review is therefore similar to that invoked in instances in which there
15

1 exist mixed questions of law and fact requiring this Court, as a policy matter, to

2 review de novo issues that involve abstract legal doctrine and evaluative judgments

3 but which are also inherently factual, such as issues of constitutional reasonableness.

4 See State v. Attaway, 1994-NMSC-011, ¶¶ 6-10, 117 N.M. 141, 870 P.2d 103;

5 Randall H. Warner, All Mixed Up About Mixed Questions, 7 J. App. Prac. & Process

6 101, 102 (2005). 

7 {31} The standard of review analysis in Gerald B., 2006-NMCA-022, ¶ 36, is

8 incomplete insofar as it states that “we review the action of the trial court under a

9 deferential standard[,]” if by that statement, Gerald B. means that the ultimate

10 question of constitutional neutrality is not reviewed de novo. While Batson indicates

11 that a district court’s findings are to be given “great deference,” Batson, 476 U.S. at

12 98 n.21, this does not eliminate de novo review of the constitutional propriety of the

13 peremptory challenges. The conclusion as to the constitutional propriety of the

14 peremptory challenges is still reviewed de novo. See Jones, 1997-NMSC-016, ¶ 11

15 (stating that “an appellate court need not defer to a trial court on whether a reason is

16 constitutionally adequate”); Bailey, 2008-NMCA-084, ¶ 15 (same).

17 C. Analysis

18 {32} Plaintiffs argue that equal protection was violated when the district court erred

19 in allowing Defendants to use peremptory strikes against three Hispanic prospective
16

1 jurors and a prospective alternate juror. Defendants respond by arguing that Plaintiffs

2 cannot establish a prima facie case of discrimination and did not overcome

3 Defendants’ racially-neutral reasons for striking the prospective jurors.

4 {33} We first note that Hispanics are a cognizable group under a Batson challenge.

5 State v. Guzman, 1994-NMCA-149, ¶ 19, 119 N.M. 190, 889 P.2d 225. Secondly,

6 because the district court required Defendants to offer a race-neutral explanation for

7 the strikes at issue, we conclude that the district court found that Plaintiffs made a

8 prima facie case of discrimination against Hispanics. See Bailey, 2008-NMCA-084,

9 ¶ 17 (observing that because the district court asked if the state had a race-neutral

10 reason for its challenges, “[t]he district court therefore implicitly found that

11 [d]efendant had made a prima facie showing that the State’s challenges were racially

12 motivated”). 

13 {34} Defendants used three of their five peremptory challenges against prospective

14 jurors with Hispanic surnames, with two of those five challenges exercised against

15 prospective jurors with Anglo surnames. Defendants also used their one peremptory

16 strike against a prospective juror with a Hispanic surname. Plaintiffs objected on

17 Batson grounds to Defendants’ peremptory challenges against those with Hispanic

18 surnames. The court required Defendants to explain the reasons for their peremptory

19 challenges of jurors with Hispanic surnames. When the district court polled the jury
17

1 at the conclusion of trial, there were no Hispanics on the jury. There is not any

2 dispute over whether Plaintiffs established a prima facie case of discriminatory

3 conduct in the exercise of peremptory challenges.

4 {35} We therefore determine whether Defendants satisfied their burden of providing

5 a racially-neutral explanation for each peremptory strike. See Gerald B., 2006-

6 NMCA-022, ¶ 32 (concluding that because the state proceeded past the first step of

7 the Batson analysis without questioning whether there was a prima facie showing,

8 and the district court made findings on discrimination, it was proper to determine on

9 appeal whether the state satisfied its burden to articulate a racially neutral explanation

10 for its peremptory challenge); see also Hernandez v. New York, 500 U.S. 352, 359

11 (1991) (plur. opn. of Kennedy) (“Once a prosecutor has offered a race-neutral

12 explanation for the peremptory challenges and the trial court has ruled on the ultimate

13 question of intentional discrimination, the preliminary issue of whether the defendant

14 had made a prima facie showing becomes moot.”). We independently review defense

15 counsel’s explanations to determine if they were constitutionally adequate. See

16 Gerald B., 2006-NMCA-022, ¶ 28 (concluding that because a constitutional question

17 is presented, we apply de novo review to the race-neutral explanations given for

18 peremptory strikes).

19 1. Juror No. 26
18

1 {36} On her juror questionnaire, Juror No. 26 identified herself as a Hispanic who

2 speaks Spanish and English. Defendants used their first peremptory challenge to

3 strike her from the jury. Plaintiffs objected, stating that Defendants asked her no

4 questions in voir dire and asserting that there was no basis for the strike. Responding

5 to the district court’s request for a racially-neutral explanation, counsel stated that

6 “she is a nursing home caregiver.” Plaintiffs’ counsel challenged the reason as

7 insufficient, but the district court ruled that the strike had a “reasonable basis.”

8 Subsequently, when Defendants accepted another juror to sit on the jury, Plaintiffs

9 argued that she was also a caregiver, but defense counsel failed to strike her. See

10 Guzman, 1994-NMCA-149, ¶ 20 (stating that when the same factors that were

11 identified to strike Hispanics were not applied to strike Anglos, the explanation was

12 not race-neutral). The juror who was accepted worked as an x-ray technician at the

13 time of the trial. An x-ray technician manipulates medical imagery equipment in order

14 to take pictures of the internal structures of the body. In contrast, a nursing home

15 caregiver typically provides assistance to patients in aspects of daily living.

16 Moreover, an x-ray technician may see her patients only once to capture an image

17 while a nursing home caregiver may have daily interactions with her patients. We

18 therefore agree with the district court that there is a distinction between the two

19 occupations and affirm that Defendants’ explanation was sufficiently race-neutral. 
19

1 {37} Plaintiffs also argue for the first time on appeal that another juror who was

2 chosen had experience as a caregiver. This juror’s questionnaire states that at the time

3 of trial she worked in retail at Goodwill and her past jobs included “working with

4 people with disabilities[.]” We agree with Defendants that because Plaintiffs did not

5 argue the similarity of the jobs between the juror who was stricken and the juror who

6 sat, Plaintiffs cannot now make that argument for the first time on appeal. “To

7 preserve an issue for review on appeal, it must appear that appellant fairly invoked

8 a ruling of the trial court on the same grounds argued in the appellate court.”

9 Woolwine v. Furr’s, Inc., 1987-NMCA-133, ¶ 20, 106 N.M. 492, 745 P.2d 717.

10 2. Juror No. 27

11 {38} Defendants used their third peremptory strike to remove Juror No. 27, who self12 identified himself as “Mexican” on his juror questionnaire. Plaintiffs objected to the

13 strike and when the district court asked for an explanation, defense counsel stated,

14 “there are other people on this jury who are further down the line that I’d like.”

15 Defense counsel had not asked any individual questions of this juror, and Plaintiffs’

16 counsel asserted this was not a sufficient reason. The district court nevertheless

17 allowed the strike on the basis of the explanation given by defense counsel. We do

18 not defer to the district court’s determination in regard to Defendants’ explanation of
20

1 the challenge; instead under de novo review we hold that the district court’s

2 determination was erroneous. 

3 {39} Defendants repeat on appeal that their underlying rationale for the challenge

4 to Juror No. 27 “was that they had to sacrifice [Juror No. 27] so they could reach

5 another juror who they believed would be favorable toward[] them.” This underlying

6 rationale is acceptable in the usual exercise of peremptory challenges where a prima

7 facie case of discriminatory conduct has not been established. Absent a prima facie

8 case of discriminatory conduct, striking jurors tending to or perceived to be

9 sympathetic with the opposing party’s case, in hopes of getting a juror who is not so

10 predisposed, has always been considered fair game and a virtually unchallengeable

11 prerogative of counsel. Defendants’ underlying rationale is not acceptable when a

12 party has established a prima facie case of discriminatory conduct in the exercise of

13 peremptory challenges. If a discriminatory intent is inherent in the reason for the

14 challenge, the reason is not race-neutral. See Salas, 2010-NMSC-028, ¶ 32. 

15 {40} Batson warned that the party making the strike does not rebut a prima facie

16 case of discrimination “merely by denying that he had a discriminatory motive or

17 affirming his good faith in making individual selections.” Batson, 476 U.S. at 98

18 (alterations, internal quotation marks, and citation omitted). Instead, the party making

19 the strike “must give a clear and reasonably specific explanation of his legitimate
21

1 reasons for exercising the challenges.” Id. n.20 (internal quotation marks and citation

2 omitted). “This warning was meant to refute the notion that a prosecutor could satisfy

3 his burden of production by merely denying that he had a discriminatory motive or

4 by merely affirming his good faith.” Purkett v. Elem, 514 U.S. 765, 769 (1995) (per

5 curiam); see Miller-El v. Dretke, 545 U.S. 231, 239 (2005) (reiterating that the

6 striking party ‘must give a clear and reasonably specific explanation of his legitimate

7 reasons for exercising the challenge’ (quoting Batson, 545 U.S. n.20)); State v.

8 Goode, 1988-NMCA-044, ¶ 9, 107 N.M. 298, 756 P.2d 578 (stating that the party

9 excusing jurors “must articulate a neutral explanation related to the particular case,

10 giving a clear, concise, reasonably specific legitimate explanation for excusing those

11 jurors”). 

12 {41} The reason must be sufficiently specific to allow the party challenging the

13 strike to exercise its right “to refute the stated reason or otherwise prove purposeful

14 discrimination.” Jones, 1997-NMSC-016, ¶ 3. It must also be sufficiently specific to

15 enable the district court to determine whether the opponent of the strike has proved

16 purposeful discrimination and, therefore, to safeguard equal protection. See Goode,

17 1988-NMCA-044, ¶ 9 (“[T]he trial court may not merely accept the state’s proffered

18 explanations, but has a duty to examine them and decide whether they are genuine

19 and reasonable.”). As more fully explained by State v. Giles, 754 S.E.2d 261, 265
22

1 (S.C. 2014), in order for the explanation to be legally sufficient at the second step of

2 the Batson analysis, the explanation

3 must be clear and reasonably specific such that the opponent of the

4 challenge has a full and fair opportunity to demonstrate pretext in the

5 reason given and the trial court to fulfill its duty to assess the plausibility

6 of the reason in light of all the evidence with a bearing on it. Reasonable

7 specificity is necessary because comparison to other members of the

8 venire for purposes of a disparate treatment analysis, which is often used

9 at the third step of the Batson process to determine if purposeful

10 discrimination has occurred, is impossible if the proponent of the

11 challenge provides only a vague or very general explanation. The

12 explanation given may in fact be implausible or fantastic, as noted in

13 Purkett, but it may not be so general or vague that it deprives the

14 opponent of the challenge of the ability to meet the burden to show, or

15 the trial court of the ability to determine whether, the reason given is

16 pretextual. The proponent of the challenge must provide an objectively

17 discernible basis for the challenge that permits the opponent of the

18 challenge and the trial court to evaluate it.

19 Id.

20 Thus, numerous cases have concluded there was error at the second step of the Batson

21 analysis where the reasons proffered for striking a juror were not sufficiently “clear

22 and specific” in providing a factual basis for a court to review for legitimacy. See

23 Moeller v. Blanc, 276 S.W. 3d 656, 662-63; 666 (Tex. Ct. App. 2008) (collecting

24 cases and concluding that “obscure and vague” explanations for striking a juror are

25 insufficient). 
23

1 {42} What obviously overly tips the propriety balance of Defendants’ peremptory

2 challenge of Juror No.27 toward a discriminatory pattern is Defendants’ having

3 exercised their peremptory challenges against Hispanic-surnamed jurors in a manner

4 that appears to have assured that no Hispanic-surnamed person would sit on the jury,

5 and, as well, that the jury would not consist of a sufficient number of Hispanic jurors

6 who might be prone to favor Plaintiffs. Defendants’ actions had to have raised an

7 eyebrow when, after the game was played, the field was laid bare of Hispanic jurors

8 and the only basis for challenging Juror No. 27 was that Defendants wanted to have

9 a juror that they believed would be favorable toward them. 

10 {43} While Defendants’ explanation of this challenge was race-neutral on its face,

11 more was required. See Giles, 754 S.E.2d at 263, 265-66. Defendants did not examine

12 the stricken jurors on voir dire in an effort to uncover information that would lead

13 Defendants to be concerned about juror predisposition. There may have been proper,

14 race-neutral reasons why Defendants wanted another juror “further down the line”,

15 but the record before us fails to disclose what those reasons might have been. We are

16 therefore left without constitutionally permissible, race-neutral reasons for striking

17 Juror No. 27. “If . . . general assertions were accepted as rebutting a defendant’s

18 prima facie case, the Equal Protection Clause would be but a vain and illusory

19 requirement.” Batson, 476 U.S. at 98 (internal quotation marks and citation omitted).
24

1 Under the totality of circumstances, one can reasonably read Defendants’ explanation

2 to really say, “we struck [Juror No. 27] because, being Hispanic, he likely would

3 favor Plaintiffs, and we preferred finding a non-Hispanic juror instead who would

4 likely favor Defendants.” We therefore hold that the district court erred in allowing

5 Defendants to strike Juror No. 27.

6 3. Juror No. 36

7 {44} Defendants had previously attempted to strike Juror No. 36 for cause because

8 they were worried her non-treated asthma would cause delay if she had an asthma

9 attack during the trial. The district court denied the strike for cause. Defense counsel

10 then used a peremptory challenge, and Plaintiffs’ counsel objected, alerting the court

11 that this would be the third potential Hispanic juror struck by Defendants.

12 Defendants gave their explanation and the court allowed the strike, reasoning that

13 “it’s an appropriate use of a peremptory to challenge a juror that you attempted to

14 challenge for cause and were unable to get it done[.]”

15 {45} Plaintiffs argue that because Defendants were unable to strike Juror No. 36 for

16 cause does not give rise to the appropriate use of a peremptory strike. We disagree.

17 Race-neutral reasons for peremptory strikes do not need to rise to the same level

18 needed to justify a challenge for cause. State v. Sandoval, 1987-NMCA-041, ¶ 15,

19 105 N.M. 696, 736 P.2d 501. Here, Defendants proffered a plausible race-neutral
25

1 explanation; potential delay of trial from a potential juror’s medical condition. We

2 therefore affirm the district court’s determination that a sufficient race-neutral

3 explanation was given for striking Juror No. 36. 

4 4. Juror No. 40

5 {46} After the jury was picked, Juror Nos. 40 and 41 were next in line for selection

6 as alternate jurors and both of them were Hispanic. When Defendants struck Juror

7 No. 40, Plaintiffs objected, arguing this was the fourth Hispanic stricken, indicating

8 a pattern, and when asked by the district court for an explanation for the strike,

9 counsel responded that he was stricken because he was unemployed.

10 {47} Defendants urge us to conclude that because no alternate juror was called to

11 deliberate on the case, that the harmless error standard is appropriate to apply. We

12 reject this suggestion. If a prospective juror is stricken because of race, equal

13 protection is violated, and the verdict must be reversed, notwithstanding that juror did

14 not deliberate on the case. Likewise, if a prospective alternate juror is stricken

15 because of race, equality is violated, whether or not that juror actually deliberates on

16 the case. In both circumstances, the harm to our society and system of justice is

17 identical, and it does not matter whether the jury that actually decided the case is

18 ‘representative’ or unbiased. Our Constitution does not allow for such discrimination

19 in the selection of our juries in civil or criminal cases.
26

1 {48} Nevertheless, we conclude that Defendants’ explanation that Juror No. 40 was

2 stricken because he was unemployed is sufficiently race-neutral in the circumstances

3 of this case. Anticipating this conclusion, Plaintiffs for the first time on appeal

4 suggest this was a pretext because one of the jurors who was actually seated was also

5 unemployed. Because this was not brought to the attention of the district court, we

6 do not consider it further. Woolwine, 1987-NMCA-133, ¶ 20. 

7 {49} When viewed in the total selection process, Defendants’ challenges indicate a

8 pattern of conduct and a motive to keep Hispanics off of the jury. Cumulatively, the

9 challenges teeter on the edge of impropriety. The challenges carried a suspicious

10 motivation of ridding the jury of Hispanics, leaving a distinct overview of distrust

11 creating a prima facie case. When looking at the totality of the proceedings, it is

12 reasonable to conclude that Defendants’ explanation of the challenge to Juror No. 27

13 was not race-neutral and was pretextual.

14 {50} Defendants nevertheless argue that their five peremptory strikes should not

15 give rise to an inference of discriminatory intent because they also struck Anglo16 surnamed jurors, indicating exclusion based on non-racial factors, and also because

17 Plaintiffs exercised their five peremptory strikes against jurors with Anglo surnames,

18 indicating a pattern of discrimination against jurors with Anglo surnames. These

19 arguments do not change things. Defendants’ actions are at issue here, not Plaintiffs’
27

1 actions. Defendants’ actions create strong inferences of discriminatory intent. While

2 Plaintiffs’ actions may as well, neither Defendants nor the district court raised a

3 Batson issue in that regard.

4 {51} The jury selection in this case violated Batson. The remedy for such a violation

5 in a criminal case is a new trial. Guzman, 1994-NMCA-149, ¶ 20. The same remedy

6 applies in a civil case. See, e.g., Woodson v. Porter Brown Limestone Co., 916 S.W.

7 2d 896, 907 (Tenn. 1996); Moeller, 276 S.W. 3d at 666; Davis v. Fisk Elec. Co., 268

8 S.W. 3d 508, 526 (Tex. 2008). The verdict of the jury is reversed and the case is

9 remanded to the district court for a new trial. 

10 IV. REMAINING ARGUMENTS

11 {52} Plaintiffs contend that the district court erred in directing the verdict of the jury

12 in Defendants’ favor on the battery claim against the individual police officers. We

13 agree. Looking at the facts recited herein alone, and they were not the only facts

14 offered in support of the claim, we conclude that the district court erred. See

15 Selmeczki v. N.M. Dep’t of Corr., 2006-NMCA-024, ¶ 29, 139 N.M. 122, 129 P.3d

16 158 (“It is black-letter law that causing an offensive touching, even indirectly to

17 another’s clothing and not resulting in injury, is the tort of battery.”); Restatement

18 (Second) of Torts § 18 (1965) (stating that an actor is liable for battery if “(a) he acts

19 intending to cause a harmful or offensive contact with the person of the other or a
28

1 third person, or an imminent apprehension of such a contact, and (b) an offensive

2 contact with the person ofthe other directly or indirectly results”);see also Strickland

3 v. Roosevelt Cnty. Rural Elec. Coop., 1980-NMCA-012, ¶ 14, 94 N.M. 459, 612 P.2d

4 689 (“[D]irected verdicts are not favored and should be granted only when the jury

5 could not reasonably and legally reach any other conclusion.”).

6 {53} Defendants argue for the first time on appeal that an intentional tort such as

7 battery does not survive the death of a decedent when the death is unrelated to the

8 tort. We do not address this argument, as it was not presented to the district court. See

9 Woolwine, 1987-NMCA-133, ¶ 20.

10 {54} We do not address the remaining issues raised by Plaintiffs because those

11 issues may not reoccur at the re-trial. In addition, those issues identified as issues

12 Nos. 5, 6, 7, 8, 10, and 11 in Plaintiffs’ brief in chief were not briefed, and we do not

13 address them. See In re Adoption of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676

14 P.2d 1329 (stating that issues that are unsupported by any cited authority will not be

15 addressed on appeal and that the appellate court will not do this research for counsel).

16 V. CONCLUSION

17 {55} The summary judgment and jury verdict in favor of Defendants are reversed,

18 and the cause is remanded to the district court for a new trial in accordance with this

19 Opinion. 
29

1 {56} IT IS SO ORDERED.

2 _______________________________

3 MICHAEL E. VIGIL, Chief Judge

4 WE CONCUR:

5 _________________________________

6 JONATHAN B. SUTIN, Judge

7 _________________________________

8 RODERICK T. KENNEDY, Judge