                   IN THE COURT OF APPEALS OF IOWA

                                   No. 16-0331
                              Filed March 22, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MARQUISE D. MILLER,
    Defendant-Appellant.


________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Stuart P. Werling,

Judge.



      The defendant appeals from his convictions for eluding, theft in the second

degree, and accessory after the fact. REVERSED AND REMANDED.



      Christopher M. Soppe of Pioneer Law Office, Dubuque, for appellant.

      Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant

Attorney General, for appellee.



      Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
                                           2


POTTERFIELD, Presiding Judge.

       Marquise Miller appeals from his convictions for eluding, theft in the

second degree, and accessory after the fact. Miller maintains the State’s use of

two of its peremptory strikes to remove the only two black potential jurors was

racially motivated, in violation of Batson v. Kentucky, 476 U.S. 79, 89 (1986).

The trial court rejected that claim, and on appeal Miller maintains the court’s

ruling was in error.1

       Because a Batson challenge implicates the constitution, we review this

claim de novo. See State v. Griffin, 564 N.W.2d 370, 372 (Iowa 1997) (“We

review the defendant’s constitutional challenges de novo.”).

       The Equal Protection Clause prohibits prosecutors from using peremptory

strikes to remove potential jurors from serving “solely on account of their race.”

Batson, 476 U.S. at 89.

       Under our Batson jurisprudence, once the opponent of a
       peremptory challenge has made out a prima facie case of racial
       discrimination (step one), the burden of production shifts to the
       proponent of the strike to come forward with a race-neutral
       explanation (step two). If a race-neutral explanation is tendered,
       the trial court must then decide (step three) whether the opponent
       of the strike has proved purposeful racial discrimination.

State v. Mootz, 808 N.W.2d 207, 215 (Iowa 2012). To establish a prima facie

case, Miller must show (1) he is a member of a cognizable racial group, (2) the

prosecutor used peremptory challenges to remove a member of a cognizable

racial group from the jury; and (3) the “facts and any other relevant

circumstances raise an inference that the prosecutor used the strike to exclude”


1
 Miller also raises a number of other arguments. Because his first claim is dispositive,
we do not consider the others.
                                         3

the juror on the account of the juror’s race. See Batson, 476 U.S. at 96; see also

Powers v. Ohio, 499 U.S. 400, 416 (1991) (holding the defendant and the

prospective juror do not have to be the same race to qualify for a Batson

challenge). “In determining whether a defendant has established the requisite

showing of purposeful discrimination, the court should consider all relevant

circumstances including, but not limited to, a pattern of strikes against black

jurors, as well as the prosecutor’s questions and statements during voir dire.”

State v. Knox, 464 N.W.2d 445, 448 (Iowa 1990).

       Here, it is undisputed that Miller is black and the prosecutor struck two

potential jurors who were black. The question for the prima facie case is whether

there are circumstances that “raise an inference that the prosecutor used the

strike to exclude” jurors on the account of race.

       The State maintained that it had struck the first of the potential jurors

because she indicated she had a negative experience with law enforcement.

When asked about the details, the potential juror stated that her granddaughter

was killed by an off-duty police officer who was driving sixty miles per hour in a

school zone. When she was asked if it would be difficult for her to serve on a

criminal case, she responded:

               No. It’s just that, if I could have met him and, you know,
       asked him some questions. Why? Why would he go so fast in a
       school zone? He wasn’t ticketed. He wasn’t nothing, and I don’t
       feel that that was right because he should have got a ticket or
       something for going that fast in a school zone. I would be ticketed
       if I were going that fast in a school zone and hit a kid. I probably
       would have went to jail. I know I would have, and it just wasn’t
       right. But I have forgiven him because I had to forgive myself
       before you can forgive anybody, and I forgave the officer that did
       that.
                                        4


The State then moved to strike the juror for cause, and the district court denied

the motion. The State later used a peremptory strike to remove the juror. The

State indicated (while speaking with the juror in chambers) that the facts of this

case—with officers driving at fast speeds in what may be considered dangerous

circumstances—were similar enough to the negative experience the juror had

with law enforcement to concern the State about having the juror empaneled.

This is a race-neutral explanation, and like the district court, we believe the

prosecutor’s stated reason for the use of the challenge.

       Next, we consider whether the State’s use of a peremptory challenge

against the second potential juror was racially motivated.          The following

exchange took place between the prosecutor and the second potential juror

during voir dire:

              Q. Do you know any law enforcement officers? A. Yes.
              Q. Who do you know, ma’am? A. Just one, Officer Lopez.
              Q. And how do you know Marty? A. Through my husband,
       who was friends with him.
              Q. Is there anything about that that would affect your
       impartiality in any way? A. No.
              Q. How do you feel about law enforcement? A. They’re
       okay. There’s always room for improvement.
              Q. Sure. They’ve got a tough job. Wouldn’t you agree? A.
       Mm-hmm.

The State later used a peremptory strike against the juror, and Miller indicated he

was making a Batson challenge. In response, the State said:

              The other strike that the State has exercised is [the second
       potential juror], and that drew very specifically about her very
       pointed comment when I asked the trio of questions about law
       enforcement officers and asked her if she knew any law
       enforcement officers and how she felt. She made a very pointed
       statement to me that there was much room for improvement for
       there.
                                          5


               I mean, obviously, the State is very, very concerned, and just
       with her facial expressions, with how she looked very directly at me
       when she made the comment, I didn’t even follow through with the
       issue of whether or not she had negative experiences because I
       just didn’t want her to prejudice the jury in any way.

Miller’s attorney disagreed with the prosecutor’s characterization of the second

juror’s demeanor or response, stating,

       [T]here was nothing that she said from my recollection that made
       anything—I did not mark on my sheet one way or the other as a
       positive or negative, which meant neutral for me.
              Where if I had thought that she was going to be more—
       better for the Defense, then I would have marked something on my
       sheet, but I did not. And I don’t think her remarks led anyone to
       believe that she would, you know, find one way or the other and did
       not, you know, trust police officers or would not be a fair or impartial
       juror.

The court then denied Miller’s Batson challenge, ruling:

       I believe that Batson requires the State, when the challenge is
       raised, to state articulable grounds separate from race-based
       selections for their reasons for the strike, which the Court finds that
       the State has done. The State has met its burden, so I don’t think
       Batson is a factor in this exercise of the peremptory strike.

       As the Supreme Court has noted, “Race-neutral reasons for peremptory

challenges often invoke a juror’s demeanor (e.g., nervousness, inattention),

making the trial court’s firsthand observations of even greater importance.”

Snyder v. Louisiana, 552 U.S. 472, 477 (2008). “In this situation, the trial court

must evaluate not only whether the prosecutor’s demeanor belies a

discriminatory intent, but also whether the juror’s demeanor can credibly be said

to have exhibited the basis for the strike attributed to the juror by the prosecutor.”

Id. Here, we have an on-the-record dispute between the prosecutor and the

defense attorney about the potential juror’s demeanor, but we do not have any
                                          6


factual or credibility determinations from the district court to clarify the situation—

regarding either the potential juror or the prosecutor.

       Additionally, when the defense attorney indicated she was concerned

about the use of a strike against the second juror because there were no other

potential black jurors, the prosecutor responded, “Batson does not ensure that an

individual has a particular demographic on the panel. The issue is whether or not

the strikes . . . that are exercised are based on race.”         While we agree, in

determining whether the motivation is racially based, we are to rely “on all

relevant circumstances”—including a pattern of striking black jurors. See Miller-

El v. Cockrell, 537 U.S. 322, 331 (2003) (“The prosecutors used their peremptory

strikes to exclude 91% of the eligible African–American venire members. . . .

Happenstance is unlikely to produce this disparity.”); see also Miller-El v. Dretke,

545 U.S. 231, 239–40 (2005) (“Some stated reasons are false, and although

some false reasons are shown up within the four corners of a given case,

sometimes a court may not be sure unless it looks beyond the case at hand.

Hence Batson’s explanation that a defendant may rely on ‘all relevant

circumstances’ to raise an inference of purposeful discrimination.” (citation

omitted)).

       In considering the State’s use of a peremptory strike against the second

juror, we note the State removed the only two potential black jurors—using two of

its six strikes to do so. In explaining its action, the State relied on the juror’s

purported negative response about law enforcement. First, we have concerns
                                           7


about parties using “feelings about law enforcement” as a proxy for race.2 “A

significantly higher percentage of people of color have arrest records due to the

disproportionate number of stops, searches, and arrests of people of color.” Vida

B. Johnson, Arresting Batson: How Striking Jurors Based on Arrest Records

Violates Batson, 34 Yale L. & Pol’y Rev. 387, 389 (Spring 2016). Additionally,

“Black people are more likely to have friends and family who are Black. As a

result, Black jurors are more likely than White jurors to have friends and family

who have been arrested.” Id. The logical next step is that someone who has

been arrested themselves or had someone they care about be arrested is more

likely to have negative views of law enforcement.           Id. at 407.    While using

potential jurors’ response about law enforcement appears to be race-neutral, it is

likely to have a disparate impact on potential black jurors.           See id. at 389

(“Judges and prosecutors then use the existence of prior arrests of the jurors or

the jurors’ friends or family to strike these prospective jurors, in effect producing

juries whose racial compositions are whiter than that of the respective

communities.”); see also Hernandez v. New York, 500 U.S. 352, 376 (1991)

(Stevens, J., dissenting) (“An avowed justification that has a significant

disproportionate impact will rarely qualify as a legitimate, race-neutral reason




2
  According to Gallup, “[c]ombined 2011-2014 data measuring Americans’ confident in
the police shows that 59% of whites have a great deal or quite a lot of confidence in the
police, compared with 37% of blacks.” Frank Newport, Gallup Review: Black and White
Attitudes       Toward        Police,        Gallup       (Aug.         20,       2014),
http://www.gallup.com/poll/175088/gallup-review-black-white-attitudes-toward-
police.aspx.
                                             8


sufficient to rebut the prima facie case because disparate impact is itself

evidence of discriminatory purpose.”).3

       Second, two other nonblack jurors responded with just as negative—if not

more negative—responses to the question about law enforcement, and they

were not struck. One responded, “They’re pretty much all okay. I ran into one

bad one,” while another responded, “[Law enforcement] do a pretty good job” but

then indicated he had “a couple” negative experiences with them. In comparison,

the juror at issue responded that she knew an officer who was friends with her

husband and then stated, “They’re okay. There’s always room for improvement.”

“If a prosecutor’s proffered reason for striking a black panelist applies just as well

to an otherwise similar nonblack who is permitted to serve, that is evidence

tending to prove purposeful discrimination to be considered at Batson’s third

step.” Dretke, 545 U.S. at 241. Additionally, while other jurors were asked if they

had negative experiences with law enforcement, the prosecutor failed to ask the

second juror any additional questions to gain insight into the juror’s reason for

her statement about “room for improvement.” See id. at 246 (citing Ex parte

Travis, 776 So. 2d 874, 881 (Ala 2000) (“[T]he State’s failure to engage in any

meaningful voir dire examination on a subject the State alleges it is concerned

about is evidence suggesting that the explanation is a sham and a pretext for

discrimination.”)).




3
  We note that while many jurisdictions use prospective juror’s criminal history during voir
dire, the Iowa Supreme Court has ruled that prosecutors are generally not allowed to
access and use the jurors’ rap sheets. State v. Bessenecker, 404 N.W.2d 134, 138
(Iowa 1987).
                                         9


      The side-by-side comparison of the response of the stricken black juror

with that of the two nonblack jurors who were eventually empaneled, in addition

to the question relied on by the State, undermines the State’s given reason for

striking the juror. The “Constitution forbids striking even a single prospective

juror for a discriminatory purpose.”    Snyder, 404 N.W.2d at 134.    Thus, we

reverse Miller’s convictions and remand for a new trial.

      REVERSED AND REMANDED.
