                                                   Supreme Court

                                                   No. 2011-92-C.A.
                                                   (P1/09-1896AG)


    State                     :

     v.                       :

Dana Gallop.                  :




NOTICE: This opinion is subject to formal revision before publication in
the Rhode Island Reporter. Readers are requested to notify the Opinion
Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence,
Rhode Island 02903, at Tel. 222-3258 of any typographical or other
formal errors in order that corrections may be made before the opinion is
published.
                                                                Supreme Court

                                                                No. 2011-92-C.A.
                                                                (P1/09-1896AG)


                   State                      :

                     v.                       :

               Dana Gallop.                   :


              Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

                                          OPINION

       Justice Flaherty, for the Court. After a disc jockey’s performance at a Providence

nightclub concluded, the din of the attendees milling about in the street outside the club was

punctuated by the sound of gunfire. The shots killed one man and injured another. The

defendant, Dana Gallop, was charged with several crimes arising out of the shooting. A jury

eventually convicted him of a number of offenses, and he appealed. Before this Court, the

defendant argues that the trial justice erred when he denied a motion to suppress out-of-court and

in-court identifications that the defendant argues were unconstitutionally suggestive. He further

argues that the trial justice should not have permitted the state to use peremptory challenges that

he contends violated the Equal Protection Clause of the United States Constitution. For the

reasons set forth in this opinion, we affirm the judgment of conviction.




                                               -1-
                                                I

                                        Facts and Travel

       On the night of December 13, 2008, a disc jockey of some repute with the stage name

Kid Capri was performing at Passions, a nightclub in Providence. The audience included many

individuals from the Boston, Massachusetts area, such as defendant Dana Gallop and Anthony

Parrish, who hailed from different parts of the Dorchester section of Boston. London Hardy,

another man from the Boston area, also attended the concert. The concert ended, and the club

began to empty around two o’clock in the morning on December 14. After the show, the streets

outside the club were teeming with people.

       Shamair Barboza, a woman who had grown up in Dorchester, was a close friend of

Parrish and knew of Gallop. She testified that neighborhood groups with which the two men

associated did not get along. As Barboza stood outside Passions, she saw Parrish and his friends

walking towards defendant. Barboza said she saw defendant raise his sweatshirt as Parrish

approached him, remove a gun from the waistband of his pants, and fire at Parrish. A medical

examiner later determined that a bullet entered the middle of Parrish’s back and that the resulting

wound caused Parrish’s death.

       Hardy also attended the Kid Capri show with his girlfriend and several friends. After the

show ended, Hardy was standing on the street talking to his girlfriend and her friends as they sat

in a stopped car. Hardy later testified that he heard three or four gunshots and then told the

women that he had been shot. Once they realized that he was serious, the women assisted him

into the car. An officer detailed to the concert checked on Hardy, and paramedics then attended

to his injuries. Hardy underwent surgery and recovered. Hardy testified that he did not know

who shot him and that he was not acquainted with defendant.



                                               -2-
       When the shooting occurred, Nakia Green occupied the driver’s-side rear seat of the car

next to which Hardy was standing. Green later testified that she viewed the shooter for five to

ten seconds from a distance of eight or ten feet in a well-lit area. Green said that the shooter was

a light-skinned black, Hispanic, or Cape Verdean man, about five feet, nine or five feet, ten

inches tall, 170 pounds, with braids and a prominent nose. 1

       Ultimately, a police investigation led to defendant’s arrest and to his being charged with

several crimes. Specifically, he was charged with (1) murder, (2) assault with a dangerous

weapon, (3) commission of a crime of violence while armed, (4) commission of a crime of

violence through the use of a firearm, (5) unlicensed possession of a firearm, and (6) possession

of a firearm by a person previously convicted of a crime of violence. Prior to trial, the attorney

general notified defendant that, if he were convicted, the attorney general would seek an

additional sentence under the habitual-offender statute, G.L. 1956 § 12-19-21.

       The defendant was convicted of all counts except commission of a crime of violence

while armed, which the state had dismissed before trial pursuant to Rule 48(a) of the Superior

Court Rules of Criminal Procedure. The trial justice sentenced defendant to two consecutive life

sentences, plus a twenty-year sentence to be served consecutively to the second life sentence.

The defendant also received two ten-year sentences to run concurrently with the first life

sentence. Finally, pursuant to the habitual-offender statute, the trial justice sentenced defendant

to an additional twenty years, to be served after the other sentences and to be served without the

possibility of parole. The defendant filed a timely notice of appeal. We will provide additional

facts where necessary to expatiate upon the issues before us.




1
 At trial, the parties stipulated that around the time of the shooting, defendant was six feet tall
and weighed 210 pounds.
                                               -3-
                                                II

                                         Identifications

       The defendant argues that the admission of a witness identification was impermissible

because the photographic array displayed to the witness was unduly suggestive and because the

witness did not have an independently reliable recollection of observing the shooter.

       After the shooting, Providence police began an investigation that first led Det. Daniel

O’Connell to Rhode Island Hospital, where paramedics had brought London Hardy and Anthony

Parrish. Although Barboza and some other friends of Parrish were present at the hospital at that

time, none of them provided the detective with a statement. At the Providence police station,

however, Hardy’s acquaintance Green gave a statement to Det. Michael Fallon.

       On December 22, Green agreed to view a photographic array. After traveling to Boston,

O’Connell provided Green with a form containing photo-lineup instructions, which both she and

O’Connell signed. 2 The form instructed a potential eyewitness that the “group of photos may or

may not” include a photo of the suspect. Additionally, it informed its reader that “photographs

may not always depict the true complexion of a person. It may be lighter or darker than shown

in the photo.”

       Later, at a suppression hearing, both Green and O’Connell described the process by

which Green made her selection. O’Connell said that he arranged six photographs in two rows

of three and then had Green approach the table on which the photos had been displayed. Green

said that she used a “process of elimination” to make her ultimate selection. She said that she

eliminated the photos of two “darker-skinned people” first. Green then removed the photos

2
  The Superior Court file arrived in this Court without the photo array that Green viewed. The
file was remanded to locate the missing exhibit. When the exhibit was not located, the parties
filed copies of the photographs pursuant to Article I, Rule 10(e) of the Supreme Court Rules of
Appellate Procedure.
                                               -4-
depicting men whose jawlines did not resemble the shooter. Between the two remaining photos,

Green chose a single photo, the back of which she and O’Connell signed. 3 The photo that Green

selected depicted defendant. O’Connell testified that, during the photo-array procedure, Green

did not exhibit any uncertainty and made her selection in approximately thirty seconds. 4

       After selecting one of the six photographs in the array, Green walked the detectives to

their car. As O’Connell was inserting the photo pack into a file that had been in the police car,

the file opened up to a Boston police department booking sheet for defendant. The booking

sheet included both a front-view and, notably, a profile photograph of defendant.            Green

previously had not seen the document, but when she viewed it, she said, “That’s him right there.

Why didn’t you show me that picture? That’s a much better picture.” Green elaborated during

the hearing on the motion to suppress, explaining that it was a better photo because of the

inclusion of a profile photo and because of the fact that it was “not as white-washed.”

       The hearing also included testimony about the photo array shown to Barboza.              On

December 16, 2009, O’Connell had an opportunity to speak to Barboza. Barboza had not spoken

to police at the hospital on the night of the shooting the prior December, but O’Connell testified

that, when he spoke to her in December 2009, Barboza offered remarkable detail of the shooting.

She also agreed to view a photo array.




3
  Green’s and O’Connell’s accounts differ regarding how many photos she initially eliminated.
According to O’Connell’s suppression-hearing testimony, Green rejected three photos initially
and then another before finally identifying one photo between the remaining two.
4
  During the suppression hearing, Green testified that, at that time, she did not recognize the
shooter in the photographs but that she recalled the photograph that she had previously selected.
She also identified defendant as the shooter, although she said that “[she] couldn’t be 90 percent.
[She] couldn’t be sure.” The only differences she noted were that defendant was heavier and had
a different hairstyle. Green also identified defendant at trial, again noting his hair and weight as
the only differences.
                                               -5-
       O’Connell gave Barboza the same photo-lineup instruction form and showed her a

photographic array. From the photographs that Barboza viewed, she selected one depicting

defendant. According to O’Connell, she chose that photo “without hesitation.”

       Following the suppression hearing, the trial justice determined that the photo arrays

shown to Green and Barboza were “exceedingly fair” and that they were “about as fair an

example of photo-spreads as [he had] seen in a long, long time.” Although he concluded that the

photo arrays were not unnecessarily suggestive, the trial justice also considered whether the

witnesses had “independent recollections of the evening in question.” Specifically, the trial

justice observed that Green said that she had been only ten feet away from the shooter and that

she had a clear, well-illuminated view. He also stated that Green had methodically chosen

defendant’s photograph with confidence. For Barboza, the trial justice was persuaded that she

had an independent recollection because she had known defendant for years and because the

shooter’s face was clearly visible to her at the time in question.

       Moreover, the trial justice was satisfied that the exposure of defendant’s booking sheet to

Green had been accidental. Green’s identification was, according to the trial justice, confident

and without hesitation, so the trial justice determined that Green’s chance viewing of the booking

sheet was “of no moment.”

       The trial justice denied the motion to suppress, permitted testimony about the witnesses’

out-of-court identifications, and allowed the witnesses to make in-court identifications. The

defendant argues on appeal that the trial justice erred when he denied the motion to suppress

Green’s out-of-court and in-court identifications of defendant. 5




5
 Gallop does not challenge the admissibility of the out-of-court identification by Shamair
Barboza, although he says that he disputes the reliability of that identification.
                                                -6-
                                                A

                                      Standard of Review

       This Court reviews motions to suppress eyewitness identifications under a clearly

erroneous standard. State v. Patel, 949 A.2d 401, 410 (R.I. 2008). In making this determination,

“we assess the available evidence in the light most favorable to the state.” Id. (quoting State v.

Texter, 923 A.2d 568, 573 (R.I. 2007)).

                                                B

                                           Discussion

       The evaluation of the propriety of an identification procedure requires a two-step

analysis. State v. Brown, 42 A.3d 1239, 1242 (R.I. 2012) (citing Texter, 923 A.2d at 573-74).

First, the trial justice must determine “whether the procedure used in the identification was

unnecessarily suggestive.” Id. (quoting Texter, 923 A.2d at 574). We have more precisely

delineated the bounds of acceptable suggestiveness by saying that an identification procedure

must have been “so impermissibly suggestive as to give rise to a very substantial likelihood of

irreparable misidentification” to be inadmissible. State v. Gatone, 698 A.2d 230, 235 (R.I. 1997)

(quoting Simmons v. United States, 390 U.S. 377, 384 (1968)).

       If, and only if, the photographic array was unnecessarily suggestive is the second step of

the analysis implicated. See Brown, 42 A.3d at 1242. Then, the trial justice must “determin[e]

‘whether in the totality of the circumstances the identification was nonetheless reliable.’” Id. at

1242-43 (quoting Texter, 923 A.2d at 574).          The factors to be considered in making this

determination are

               “[T]he opportunity of the witness to view the criminal at the time
               of the crime, the witness’[s] degree of attention, the accuracy of
               the witness’[s] prior description of the criminal, the level of
               certainty demonstrated by the witness at the confrontation, and the

                                               -7-
               length of time between the crime and the confrontation.” Patel,
               949 A.2d at 411 (quoting State v. Parker, 472 A.2d 1206, 1209
               (R.I. 1984)).

If the trial justice concludes that the identification has independent reliability, then it will be

admissible notwithstanding the suggestiveness of the procedure employed. See id. at 410, 412;

State v. Imbruglia, 913 A.2d 1022, 1030 (R.I. 2007).

       For the first step of the analysis, the assessment of a photographic array requires us to

“compare the physical characteristics of each individual featured in the display to the general

description of the suspect given to the police by the [witness].” Brown, 42 A.3d at 1243 (quoting

Gatone, 698 A.2d at 235). “[T]he images constituting a photographic array need not be ‘look-

alikes,’ but rather need only possess similar general characteristics.” Imbruglia, 913 A.2d at

1029 (citing Gatone, 698 A.2d at 236).

       In this case, defendant contends that the men shown in the photographs in the array did

not match the description of the suspect given by Green. Specifically, he argues that none of the

photographs depicts an individual with a large nose and only three of the photographs show men

who could be described as light-skinned black, Hispanic, or Cape Verdean. We disagree; the

photographs in the array portrayed men who “possess[ed] similar general characteristics” to the

suspect described by Green. See Imbruglia, 913 A.2d at 1029.

       In Gatone, 698 A.2d at 236, we “independently examined” the photographic array and the

testimony about its presentation to the witness, and we held that the individuals depicted were

the same race described by the witness, “appear[ed] to be similar in age,” and “possess[ed]

similar physical characteristics.” Similarly, we affirmed the denial of a motion to suppress an

identification in a case in which the witness described the suspect as “dark-skinned” and “black”

and the array included a number of photographs that fit that description. Brown, 42 A.3d at



                                               -8-
1243-44; see also Imbruglia, 913 A.2d at 1029-30 (upholding the denial of a motion to suppress

based on the array containing photos of six white men of similar ages with similar facial hair).

Here, we conclude that the individuals depicted in the photographs all have hairstyles, skin tone,

and facial features that are sufficiently similar so that they did not create a likelihood of

misidentification.

       The instructions that police provided to Green before she reviewed the photographs

further persuade us that the photographic array did not create “a very substantial likelihood of

irreparable misidentification.” See Gatone, 698 A.2d at 235 (quoting Simmons, 390 U.S. at

384). Green was informed that “photographs may not always depict the true complexion of a

person” and that the “group of photos may or may not” include a picture of the perpetrator of the

crime. Those instructions mitigated the risk that Green would choose a photo without realizing

that there may have been some level of distortion in the subjects’ complexions or that she might

choose a photo simply because she believed she was expected to do so. See Imbruglia, 913 A.2d

at 1029-30 (affirming the denial of a motion to suppress after the trial justice relied, in part, on

the “disclaimer document” shown to the witness).

       We do not agree with defendant’s argument that the manner in which the array was

displayed to Green makes it unconstitutionally suggestive. The defendant contends that the

simultaneous rather than sequential display of the photographs renders the array unconstitutional.

As we noted when we considered a show-up identification and determined that it had been

constitutional, “[i]t is important to note that in these situations the main issue before the court is

the reliability of the suggestive identification itself, not its relative reliability as compared to a

lineup or other less suggestive type of identification.” State v. Turner, 561 A.2d 869, 871 (R.I.

1989) (citing Neil v. Biggers, 409 U.S. 188, 199-200 & n.6 (1972)). The procedure employed



                                                -9-
here also must be evaluated on its own merit and not in comparison with a proposed or

theoretical procedure. Even in State v. Henderson, 27 A.3d 872, 901 (N.J. 2011), on which

Gallop heavily relies and in which the New Jersey Supreme Court considered hundreds of

scientific studies on memory and eyewitness identification, the court concluded that the science

regarding simultaneous versus sequential procedures was inconclusive.

       The defendant also maintains that O’Connell’s awareness of the identity of the suspect

made his administration of the display of the photographs impermissibly suggestive. O’Connell

testified that he laid out the photographs while Green was across the room and then had her

approach and view them, so we cannot say that his administration of the array created a

substantial likelihood of misidentification. 6

       We hold that the lineup procedure employed in this case was not unnecessarily

suggestive. Accordingly, we need not engage in the second step of the analysis, requiring a

determination of whether the witness’s independent recollection might permit the admission of

her identification even if it had followed an impermissibly suggestive procedure. 7



6
  Gallop also emphasizes the recommendations contained in the final report of the Rhode Island
Task Force to Identify & Recommend Policies & Procedures to Improve the Accuracy of
Eyewitness Identifications, which was created pursuant to G.L. 1956 § 12-1-16. One particular
recommendation that defendant cites is the suggestion that the administrator of a photographic
array be unaware of the identity of the suspect or conduct the array in a way that prevents the
administrator from knowing the position of the suspect’s photograph in the arrangement. First,
we note that the final report was issued on December 27, 2010, after the witnesses in this case
had made their identifications, the trial justice had denied the motion to suppress, and the jury
had convicted defendant. Additionally, while we of course see the benefit of using “best
practices” in the administration of photographic arrays, we cannot say that the failure to do so
necessarily renders an identification procedure constitutionally deficient. See State v. Turner,
561 A.2d 869, 871 (R.I. 1989) (explaining the need to evaluate each procedure individually and
not relatively).
7
  The defendant also argues that the display of Gallop’s booking sheet to Green confirmed her
selection. Although witnesses testified about this incident during the suppression hearing,
defendant did not contend in the Superior Court that this “confirmatory feedback” rendered
either Green’s selection from the photographic array or later in-court identification of defendant
                                                 - 10 -
                                                 III

                                          Batson Challenges

          During the jury empanelment, the state used peremptory challenges to two African-

American prospective jurors. The defendant contends that the trial justice erred when he allowed

the state to strike these two jurors. 8

          The first, juror number 148, worked as a part-time legal secretary for a Providence law

firm. Although the juror worked for a lawyer who practiced family law, the office’s other

attorney is a prominent criminal-defense attorney. The juror also had earned a criminal-justice

degree.

          The state used one of its peremptory challenges to excise this juror from the panel. The

trial justice asked whether there was an objection, and defense counsel responded that he had not

“heard anything to disqualify her based on her answers.” The trial justice responded by noting

that the juror was an African-American woman who “certainly fit[] into the Batson category,”

and he asked for the state’s race-neutral reason to challenge her. The prosecutor said that her

degree in criminal justice could cause other jurors to “rely on her expertise in an inappropriate


inadmissible. Additionally, the trial justice found that the display of defendant’s booking sheet
was accidental, which is supported by the record. In our opinion, the accidental display of
defendant’s booking sheet did not make Green’s identifications inadmissible. Cf. State v.
Gatone, 698 A.2d 230, 237 (R.I. 1997) (“It is well settled that an accidental encounter between a
witness and a defendant that is not contrived by the police or the prosecution will not mandate
suppression of the witness’s subsequent in-court identification.”).
8
  Before either juror had been challenged, a different minority juror was excused for cause. At
that time, the trial justice informed the parties,
                 “I want the record to reflect that this man was an African-
                 American, maybe Liberian—I’m not sure, but certainly a person of
                 color. There are a couple others on the jury as well. If any lawyer
                 intends to excuse, [or] challenge, any minority [member] of this
                 jury, I want to know about it ahead of time in case there’s an
                 objection from the other side. That includes the defense intention
                 to challenge, because the [s]tate can object to that just as much as
                 the defense can object to the [s]tate’s challenge.”
                                                - 11 -
way.” As an additional reason, the state said that the juror’s work as a legal secretary in a law

firm that includes a criminal-defense attorney made her “inherently defense-oriented.” Defense

counsel offered no further objection to the prosecutor’s proffered reasons. The trial justice

considered whether the state offered a “credible, rational reason” and determined that it had. He

thus allowed the challenge.

       The second juror at issue, number 100, was among the first jurors seated in the jury box.

It appears from the record that, when her name was initially called, the juror’s response of “here”

was not heard by the sheriff, who repeated the judge’s instruction to respond. During voir dire,

juror number 100 informed the court that she was unemployed and that she had last worked ten

years earlier. When asked how she supported herself, the juror responded that she “live[d] at

home with [her] family. Mother and brother.”

       Juror 100 also was challenged by the state. The prosecutor offered her reasons: the juror

had been inattentive and had been unemployed for a significant period of time. The defendant

objected but without any elaboration whatsoever. The trial justice said

               “I’m satisfied that this is a clearly [race] neutral reason, and I’m
               satisfied that it is a rational one, reasonable one. And I credit the
               excuse offered by the [s]tate and do not find it to be a violation of
               Batson.”

As he had with regard to juror number 148, the trial justice excused juror number 100.

       Before this Court, Gallop contends that each of these jurors was struck from the panel on

the basis of her race, violating Batson v. Kentucky, 476 U.S. 79 (1986). Therefore, defendant

argues, he was denied equal protection of the law under the United States Constitution.




                                              - 12 -
                                                A

                                      Standard of Review

       Because of the nature of the inquiry in a Batson analysis, a trial justice’s decision is

“accorded great deference.” State v. Pona, 66 A.3d 454, 472 (R.I. 2013) (Pona II) (quoting State

v. Price, 706 A.2d 929, 935 (R.I. 1998)). Thus, the “ruling on the issue of discriminatory intent

must be sustained unless it is clearly erroneous.” Id. (quoting Snyder v. Louisiana, 552 U.S. 472,

477 (2008)).

                                                B

                                           Discussion

       “The Equal Protection Clause of the Fourteenth Amendment to the United States

Constitution ‘guarantees the defendant that the [s]tate will not exclude members of his [or her]

race from the jury venire on account of race[.]’” Pona II, 66 A.3d at 472 (quoting State v. Pona,

926 A.2d 592, 601 (R.I. 2007) (Pona I)). The United States Supreme Court has “delineated a

tripartite test for determining whether a criminal defendant has been denied equal protection of

the laws by the state’s use of a peremptory challenge.” Pona I, 926 A.2d at 601 (citing Batson,

476 U.S. at 96-98).

       First, a defendant is required to “establish a prima facie case of purposeful

discrimination[.]” Pona II, 66 A.3d at 472 (quoting Pona I, 926 A.2d at 601). This step of the

analysis will become moot if the trial justice moves beyond it to consider the second and third

steps. See State v. Austin, 642 A.2d 673, 678 (R.I. 1994) (citing Hernandez v. New York, 500

U.S. 352, 359 (1991) (plurality opinion) (“Once a prosecutor has offered a race-neutral

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




                                              - 13 -
of intentional discrimination, the preliminary issue of whether the defendant had made a prima

facie showing becomes moot.”)).

       The second step of a Batson analysis requires “the prosecution to articulate its race-

neutral reason(s) for challenging that particular juror.” Pona II, 66 A.3d at 472 (quoting Price,

706 A.2d at 935). The reason offered “need not rise to the level justifying exercise of a

challenge for cause.” Pona I, 926 A.2d at 602 (quoting Batson, 476 U.S. at 97). During the

second step, “the issue is the facial validity of the prosecutor’s explanation.” Id. (quoting

Hernandez, 500 U.S. at 360).

       The third step of the Batson test requires the trial justice “to determine whether the

defendant has carried his or her burden of proving purposeful discrimination.” Pona II, 66 A.3d

at 472 (quoting Price, 706 A.2d at 935). This determination is the “decisive question”: “whether

counsel’s race-neutral explanation for a peremptory challenge should be believed.” Id. (quoting

Price, 706 A.2d at 935). “[T]he best evidence often will be the demeanor of the attorney who

exercises the challenge.” Id. (quoting Price, 706 A.2d at 935).

       Here, defendant contends that the state’s challenges of jurors number 148 and 100

violated Batson. Because the trial justice considered the race-neutral reasons and ultimately

ruled on the challenges, the question of whether defendant established a prima facie case is moot.

See Pona II, 66 A.3d at 473 (citing Pona I, 926 A.2d at 607). Gallop argues, however, that the

prosecutor’s reasons for exercising those challenges were pretextual and hid the true motivation:

the prospective jurors’ race.

       Regarding juror number 148, we have little difficulty concluding that the trial justice’s

decision that the challenges were exercised for race-neutral reasons was not clearly erroneous.

An attorney’s genuine belief that a juror’s experience might cause him or her to favor the



                                              - 14 -
opposing party would certainly qualify as race neutral. 9 Nothing raised by defendant at trial or

apparent from the record leads us to conclude that the reason was pretextual. See Pona II, 66

A.3d at 473 (“The prosecutor’s reason was not facially implausible or unpersuasive so as to

compel a finding that it was pretextual.” (citing Austin, 642 A.2d at 678)).

        The defendant points to juror number 148’s assurances that neither her criminal-justice

degree nor her employment in the same office as a criminal-defense attorney would compromise

her ability to follow the trial justice’s instructions or be an impartial juror. A juror’s ability to be

impartial despite experience that might suggest otherwise is an appropriate concern when

contemplating excusing the juror for cause. As we said above, however, a peremptory challenge

may be based on a reason that does not rise to the level of a challenge for cause. See Hernandez,

500 U.S. at 362-63 (“While the reason offered by the prosecutor for a peremptory strike need not

rise to the level of a challenge for cause, * * * the fact that it corresponds to a valid for-cause

challenge will demonstrate its race-neutral character.”). We are therefore of the firm opinion that

the challenge to juror number 148 was not unconstitutional.

        The defendant attacks the excusal of juror number 100 by contending that her alleged

inattentiveness is not supported by the record and that other, nonminority jurors also were not

employed at the time of voir dire but that they were not challenged. Gallop also contends that

unemployment is not a race-neutral reason at all because minorities are more likely to be

unemployed. Neither of these arguments, however, was made to the trial justice at the time he

was considering the propriety of the peremptory challenge. Rather, the prosecutor said that she

would be challenging the juror and immediately offered her race-neutral reasons. Defense

counsel, when prompted, said merely, “I object to that, Your Honor.”

9
 Indeed, defendant subsequently used a peremptory challenge to excuse a prospective juror who
had previous law-enforcement experience.
                                                 - 15 -
       In Pona I, 926 A.2d at 610, we recognized that comparative juror analysis has “practical

utility * * * at uncovering pretext,” but we nonetheless declined to consider such an argument

that was made for the first time on appeal. “[T]he ultimate burden of persuasion regarding the

racial motivation rests with, and never shifts from, the opponent of the [peremptory] strike.” Id.

at 608-09 n.15 (quoting Purkett v. Elem, 514 U.S. 765, 768 (1995)). Gallop failed to meet this

burden because he offered only a general objection to the state’s reasons and he offered nothing

as to how the juror had been attentive or how the proffered reasons were equally applicable to

nonminority jurors and therefore pretextual. Accordingly, we have no difficulty in holding that

the challenge to juror number 100 did not violate the Equal Protection Clause.

                                               IV

                                          Conclusion

       For the foregoing reasons, the judgment of conviction is affirmed. The papers shall be

remanded to the Superior Court.




                                              - 16 -
                           RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:       State v. Dana Gallop.

CASE NO:             No. 2011-92-C.A.
                     (P1/09-1896AG)

COURT:               Supreme Court

DATE OPINION FILED: May 2, 2014

JUSTICES:            Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

WRITTEN BY:          Associate Justice Francis X. Flaherty

SOURCE OF APPEAL:    Providence County Superior Court

JUDGE FROM LOWER COURT:

                     Associate Justice Robert D. Krause

ATTORNEYS ON APPEAL:

                     For State: Lauren S. Zurier
                                Department of Attorney General

                     For Defendant: Janice M. Weisfeld
                                    Office of the Public Defender
