Opinion
Case No. 20030096-CA.
Filed June 24, 2004. (Not For Official Publication).
Appeal from the Seventh District, Monticello Department, The Honorable Lyle R. Anderson.
Rosalie Reilly, Monticello, for Appellant.
Mark L. Shurtleff and Jeanne B. Inouye, Salt Lake City, for Appellee.
Before Judges Billings, Greenwood, and Jackson.
MEMORANDUM DECISION
Melvin John Redhorse appeals a conviction of theft, a second-degree felony, in violation of Utah Code Annotated section 76-6-404 (1999). We affirm.
Under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986), "parties in a criminal action are prohibited from engaging in purposeful racial discrimination in exercising peremptory challenges of potential jurors."State v. Higginbotham, 917 P.2d 545, 547 (Utah 1996). The United States Supreme Court has provided district courts with guidance by way of a three-step process:
Under our Batson jurisprudence, once the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step 1), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step 2). If a race-neutral explanation is tendered, the trial court must then decide (step 3) whether the opponent of the strike has proved purposeful racial discrimination.
Id.
Redhorse's brief fails to adequately distinguish between a challenge to the district court's determination that the State had offered a nondiscriminatory explanation (step 2), and its ultimate finding of no discriminatory purpose (step 3). However, Redhorse does not even come close to meeting his appellate burden of challenging the district court's ultimate findings that no discrimination occurred. See State v. Hopkins, 1999 UT 98, ¶ 16, 989 P.2d 1065; Young v. Young, 1999 UT 38, ¶ 30, 979 P.2d 338. Thus, we treat his challenge as a step two issue and consider whether the State offered a legitimate, nondiscriminatory explanation for the strike. We review such challenges for abuse of discretion. See State v. Valdez, 2004 UT App 214, ¶ 17.
The second step [of the Batson analysis] requires" the prosecutor to come forward with a race-neutral explanation for the challenge." This step "does not demand an explanation that is persuasive, or even plausible." So long as the reasons given are "`(1) neutral, (2) related to the case being tried, (3) clear and reasonably specific, and (4) legitimate,'" "`the reasons offered will be deemed race neutral.'"
State v. Cannon, 2002 UT App 18, ¶ 9, 41 P.3d 1153 (citations omitted).
The State offered at least two explanations for the exercise of its strike of Ms. Lee, a person of apparently Native American descent, that satisfy Cannon: (1) "Several of the other jurors I knew or at leas[t] know — have been aware of their families and different things about them, and . . . sometimes when I know someone over someone I don't know, I leave them on."; and (2) "I felt that M[s]. Lee was . . . reserved, meek, not assertive . . . fairly quiet and it's my desire to have someone to be assertive and take a stand . . . I think that serves the prosecution . . . that's the reason for my taking her off."
These explanations are both facially nondiscriminatory because they are "neutral, related to the case being tried, clear and reasonably specific, and legitimate." Id. at ¶ 9 (quotations, citations, and numbering omitted). First both of these explanations are neutral. They have nothing to do with race or gender, nor do they invoke the sorts of invidious stereotypes the law condemns.
Second, they are both reasonably related to the case being tried because they both bear directly on the State's subjective expectations as to the prospective juror's likelihood to "take a stand" and convict Redhorse. See Purkett v. Elem, 514 U.S. 765, 767-68, 115 S.Ct. 1769, 1770-71 (1995) (stating step two "does not demand an explanation that is persuasive, or even plausible" so long as it is gender neutral).
Third, these explanations were clear and reasonably specific. The prosecutor minced no words in explaining that he was better acquainted with the jurors eventually chosen over Ms. Lee, and that he was more comfortable with a "known" than with an "unknown." Further, the explanation that Ms. Lee's demeanor was reserved was tied to actual evidence in the record, as demonstrated by the district court's own observations about her. Redhorse argues that this "disregards cultural differences. There are longer pauses, less volume and more specific responses to questions from Native Americans than Anglos. To disregard these cultural differences and use that difference as a basis to exclude is race[-]specific, not race[-]neutral."
We agree that such an explanation runs the danger of being a pretext for discrimination. In fact, there are a variety of ways such demeanor-based explanations for peremptory strikes may serve to mask impermissible discrimination. It is precisely to uncover the real motivation behind such deceptive explanations that our jurisprudence requires the trial court to examine the evidence of the prosecutor's motives in step three of the Batson analysis. See State v. Higginbotham, 917 P.2d 545, 547 (Utah 1996) (stating "[i]f a race-neutral explanation is tendered, the trial court must then decide (step 3) whether the opponent of the strike has proved purposeful racial discrimination"). A trial court should always beware lest a facially neutral explanation should disguise a sinister motive. But the underlying, actual motive behind the strike is not the issue before us today. Redhorse has challenged only the district court's determination that the explanation was facially neutral, as indeed it was. On its face, the explanation that Ms. Lee was reserved is not "inherently discriminatory." State v. Cannon, 2002 UT App 18, ¶ 10, 41 P.3d 1153; see also Webster's Third New International Dictionary 1931 (1993) (defining "reserved" as "marked by a disposition to be restrained in words and actions . . . checking free expression of knowledge or ideas through caution . . . not open, communicative, or candid"). This trait bears no necessary and inherent link to racial, cultural, or ethnic qualities and had a sufficient basis in the record. See New Mexico v. Aragon, 784 P.2d 16, 21 (N.M. 1989).
Finally, these explanations were not illegitimate. Because the State's step two explanations were not inherently discriminatory, we cannot say the district court abused its discretion. Thus, we affirm the district court's step two ruling.
Redhorse also challenges the district court's denial of his motion for new trial. We review such challenges for abuse of discretion. See State v. Thomas, 830 P.2d 243, 245 (Utah 1992). This court will not overturn a district court's underlying factual finding unless it is found to be clearly erroneous. See id.
Redhorse's motion for a new trial was based on the allegation that two jurors had discussed the case and formed opinions about Redhorse's guilt prior to deliberations, in violation of rule 17(k) of the Utah Rules of Criminal Procedure. The district court held an evidentiary hearing on this matter to hear testimony from the jurors. The court also heard argument on the issue. Based on the evidence presented and on its own observations of witness demeanor and credibility, the district court determined that the allegation was untrue. More specifically, it found Jurors Vigil and Young to be credible, but Juror Warren to be not credible.
In making his challenge, Redhorse has failed to marshal the evidence supporting the district court's underlying findings. See State v. Colwell, 2000 UT 8, ¶ 20, 994 P.2d 177. But even if he had done so, he has not demonstrated that the evidence was insufficient to support the district court's findings. After reviewing the record, we determine that sufficient evidence exists to justify the district court's factual and credibility determinations that no rule 17 violation occurred. Thus, the district court did not abuse its discretion when it denied Redhorse's motion for a new trial.
Affirmed.
I CONCUR: Judith M. Billings, Presiding Judge.
I CONCUR IN THE RESULT: Pamela T. Greenwood, Judge.