#26819-a-SLZ

2014 S.D. 36

                            IN THE SUPREME COURT
                                    OF THE
                           STATE OF SOUTH DAKOTA

                                   ****
STATE OF SOUTH DAKOTA,                      Plaintiff and Appellee,

      v.

DERRICK SCOTT,                              Defendant and Appellant.


                                   ****

                  APPEAL FROM THE CIRCUIT COURT OF
                    THE SEVENTH JUDICIAL CIRCUIT
                  PENNINGTON COUNTY, SOUTH DAKOTA

                                   ****

                     THE HONORABLE WALLY EKLUND
                                Judge

                                   ****

MARTY J. JACKLEY
Attorney General

PAUL S. SWEDLUND
BETHANNA FEIST
Assistant Attorneys General
Pierre, South Dakota                        Attorneys for plaintiff
                                            and appellee.


PAUL E. PIETZ of
Rensch Law Office, PLC
Rapid City, South Dakota                    Attorneys for defendant
                                            and appellant.



                                   ****
                                            ARGUED ON APRIL 30, 2014
                                            OPINION FILED 06/25/14
#26819

ZINTER, Justice

[¶1.]        A jury found Derrick Scott guilty of aggravated assault. Scott

appealed to this Court, arguing that the State’s peremptory strike of a Native

American veniremember violated the Equal Protection Clause as applied in Batson

v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). Because the

circuit court did not perform the third step of the Batson analysis, we remanded for

the court to perform the missing analysis. See State v. Scott, 2013 S.D. 31, ¶¶ 22-

23, 829 N.W.2d 458, 466-67. On remand, the circuit court, with a new judge

presiding, performed the third step and found that the State’s peremptory strike

was not based on purposeful racial discrimination. Scott appeals. We affirm.

                            Facts and Procedural History

[¶2.]        During voir dire, Scott challenged the State’s peremptory strike of a

Native American veniremember. Scott contended that the State’s strike was

racially motivated. See Scott, 2013 S.D. 31, ¶ 15, 829 N.W.2d at 465. To refute

Scott’s contention, the State explained that it struck the veniremember because it

did not get a “good feeling” from the veniremember’s response to a question, and it

believed that the veniremember had been charged with or investigated for criminal

acts involving threatening behavior. See id. ¶¶ 15, 17. The circuit court rejected

Scott’s challenge, and Scott appealed.

[¶3.]        In Scott’s first appeal, we held that the first two steps of Batson were

satisfied—Scott established a prima facie case of purposeful racial discrimination,

and the State responded with facially race-neutral justifications for the strike. See

id. ¶ 17. However, because the third step had not been addressed by the circuit


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court, we remanded. We directed the court to assess the State’s justifications and to

determine whether Scott satisfied his burden to prove that the State’s peremptory

strike was racially motivated. See id. ¶¶ 22-23. We recognized that the judge who

initially presided over Scott’s Batson challenge had left the bench and could not

conduct the remand proceedings. See id. ¶ 24. Therefore, we remanded for a new

judge to determine whether it could perform Batson’s third step, and if it could, we

instructed the judge to enter findings on the matter. Id. ¶ 23. We further

instructed that “[i]f the newly assigned judge determine[d] that insufficient

evidence exist[ed] to make the necessary findings, then a new trial must be

ordered.” Id. ¶ 24.

[¶4.]        During the remand hearing, the State introduced documents

corroborating that the veniremember had been charged with making threats. The

documents showed that the charge predated Scott’s trial and that the State’s

attorney who struck the veniremember was the same attorney who had signed the

amended complaint. Scott objected to this evidence. He argued that because the

evidence had not been presented to the original judge, the remand judge could not

consider it. The court overruled Scott’s objection. The remand judge considered the

State’s corroborating evidence, the transcript of the prior proceeding, and further

arguments of counsel.

[¶5.]        The remand court concluded that there was sufficient evidence to find

whether the strike was racially motivated. The court entered a memorandum

decision and findings, which found that the State’s strike was based on the criminal

charge rather than race.


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                                        Decision

[¶6.]        On appeal, Scott argues that the circuit court erred as a matter of law

in determining that sufficient evidence existed to make findings on purposeful

racial discrimination. Scott first contends that the remand judge improperly

considered documentary evidence regarding the criminal charge against the struck

veniremember because that evidence was not presented to the original trial judge.

Scott’s contention overlooks our instructions in Scott’s first appeal.

[¶7.]        In Scott’s first appeal, we acknowledged that there would be “practical

difficulties” in remanding his Batson challenge because a new judge would have to

preside. See id. ¶ 24. Notwithstanding those difficulties, we remanded for a new

judge “to make specific findings on . . . the validity of the State’s claim that [the

struck veniremember] had been charged with or investigated for criminal behavior.”

Id. ¶ 23. Thus, we contemplated an evidentiary hearing to determine the validity of

the State’s claim that the struck veniremember had a past criminal charge. Had an

evidentiary hearing not been contemplated, there would have been no reason to

remand for a new judge to consider the validity of the State’s justification. We

would have decided the issue on the then-existing record. The circuit court did not

err in considering corroborating evidence of the veniremember’s past criminal

charge.

[¶8.]        Scott next notes that because the remand judge was not present during

voir dire, the remand judge was unable to observe and assess the demeanor of the

prosecutor when he gave his justifications for the strike. Therefore, Scott contends




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that the remand judge was unable to assess the “credibility” of the State’s

justifications for striking the veniremember.

[¶9.]        “[T]he critical question in determining whether [Scott] has proved

purposeful discrimination at step three is the persuasiveness of the [State’s]

justification for [its] peremptory strike.” See Miller-El v. Cockrell, 537 U.S. 322,

338-39, 123 S. Ct. 1029, 1040, 154 L. Ed. 2d 931 (2003). And the persuasiveness of

the State’s justification depends heavily on credibility. See id. at 339 (“At [step

three], ‘implausible or fantastic justifications may (and probably will) be found to be

pretexts for purposeful discrimination.’ In that instance the issue comes down to

whether the trial court finds the prosecutor’s race-neutral explanations to be

credible.” (quoting Purkett v. Elem, 514 U.S. 765, 768, 115 S. Ct. 1769, 1771, 131 L.

Ed. 2d 834 (1995) (per curiam))).

[¶10.]       Thus, the credibility of the State’s justifications are at issue, but

credibility is not based solely on the demeanor of the prosecutor when he offered the

justifications. While “[c]redibility can be measured by, among other factors, the

prosecutor’s demeanor[,]” it can also be measured “by how reasonable, or how

improbable, the explanations are[] and by whether the proffered rationale has some

basis in accepted trial strategy.” Id.; see also Miller-El v. Dretke, 545 U.S. 231, 241,

253, 125 S. Ct. 2317, 2325, 2332, 162 L. Ed. 2d 196 (2005) (considering side-by-side

comparisons of black veniremembers who were struck with white veniremembers

allowed to serve; the prosecution’s use of jury shuffling; the contrasting questions

asked of minority and nonminority veniremembers; and the widely known policy of

the prosecution’s office to exclude minority veniremembers). Scott’s argument fails


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because it does not recognize that the prosecutor’s demeanor was only one factor,

among many, to consider in determining whether the justifications for the strike

were credible. 1

[¶11.]         In this case, the remand judge considered highly probative non-

demeanor evidence that corroborated one of the State’s race-neutral justifications

for the strike. The State introduced documentary evidence consistent with its claim

that it struck the veniremember because of a recent criminal charge against her,

not because of her race. That evidence, an amended complaint and police report,

also established that the State would have had knowledge of the charge when it

exercised its strike.

[¶12.]         The remand judge also noted that the record reflected that of the three

Native American veniremembers, one was struck by the State, one was struck by

the defense, and the other served on the jury. We acknowledge that “[a] pattern of

striking Native Americans is not required for a finding that the State was

motivated by purposeful discrimination[.]” Scott, 2013 S.D. 31, ¶ 21, 829 N.W.2d at


1.       We recognize that demeanor will often be “the best evidence” bearing on the
         credibility of the State’s facially race-neutral justification for its peremptory
         strike. See Thaler v. Haynes, 559 U.S. 43, 49, 130 S. Ct. 1171, 1175, 175 L.
         Ed. 2d 1003 (2010) (per curiam) (“[T]he best evidence of the intent of the
         attorney exercising a strike is often that attorney’s demeanor.” (citing Snyder
         v. Louisiana, 552 U.S. 472, 477, 128 S. Ct. 1203, 1208, 170 L. Ed. 2d 175
         (2008))); Hernandez v. New York, 500 U.S. 352, 365, 111 S. Ct. 1859, 1869,
         114 L. Ed. 2d 395 (1991) (plurality opinion) (“In the typical peremptory
         challenge inquiry, the decisive question will be whether counsel’s race-
         neutral explanation for a peremptory challenge should be believed. There
         will seldom be much evidence bearing on that issue, and the best evidence
         often will be the demeanor of the attorney who exercises the challenge.”).
         However, as this case demonstrates, best evidence does not mean only
         evidence. The remand judge in this case considered other evidence that was
         highly probative in the discriminatory motive and pretext inquiry.

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#26819

466 (citing United States v. Horsley, 864 F.2d 1543, 1546 (11th Cir. 1989)). But just

as “a ‘pattern’ of strikes against [minority] jurors included in the particular venire

might give rise to an inference of discrimination[,]” see Batson, 476 U.S. at 97, 106

S. Ct. at 1723, a lack of a pattern may support the opposite inference. Thus, pattern

evidence is not categorically barred from consideration under Batson’s third step.

[¶13.]       A court must consider a “wide variety of evidence” in determining

whether the opponent of a peremptory strike established a prima facie case of

purposeful racial discrimination. See Johnson v. California, 545 U.S. 162, 169, 125

S. Ct. 2410, 2416, 162 L. Ed. 2d 129 (2005); see also Batson, 476 U.S. at 94, 96, 106

S. Ct. at 1721, 1723. A court must also consider a wide variety of evidence in

determining whether the opponent carried his ultimate burden to prove purposeful

racial discrimination. Considering the voir dire and post-voir dire evidence in this

record, the circuit court did not err in concluding that sufficient evidence existed to

make a finding regarding purposeful racial discrimination.

[¶14.]       Scott, however, also argues that the remand court erred in finding that

the State’s peremptory strike was not racially motivated. Batson established a

three-step process for evaluating whether a peremptory strike was racially

motivated.

             First, the defendant must make out a prima facie case by
             showing that the totality of the relevant facts gives rise to an
             inference of discriminatory purpose. Second, once the defendant
             has made out a prima facie case, the burden shifts to the State
             to explain adequately the racial exclusion by offering
             permissible race-neutral justifications for the strikes. Third, [i]f
             a race-neutral explanation is tendered, the trial court must then
             decide . . . whether the opponent of the strike has proved
             purposeful racial discrimination.


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State v. Guthmiller, 2014 S.D. 7, ¶ 12, 843 N.W.2d 364, 368 (alterations in original)

(quoting Scott, 2013 S.D. 31, ¶ 16, 829 N.W.2d at 465-66 (quoting Johnson, 545 U.S.

at 168, 125 S. Ct. at 2416)).

[¶15.]       In Scott’s first appeal, we held that the first two steps of Batson were

satisfied. See Scott, 2013 S.D. 31, ¶ 17, 829 N.W.2d at 466. However, because the

circuit court did not perform the third step of Batson, we remanded so the court

could “assess the veracity of the State’s race-neutral reasons and determine

whether Scott met his burden of proving purposeful discrimination.” See id. ¶¶ 21-

23.

[¶16.]       On remand, the judge found that the State’s peremptory strike was not

based on purposeful racial discrimination. Usually, we review such a finding for

clear error. See, e.g., Guthmiller, 2014 S.D. 7, ¶ 11 n.2, 843 N.W.2d at 368 n.2. We

normally afford great deference to a circuit court’s finding on purposeful racial

discrimination because race-neutral reasons for peremptory strikes often involve

issues of demeanor, and the circuit court is specially positioned to make firsthand

observations that we are unable to review on appeal. See Snyder, 552 U.S. at 477,

128 S. Ct. at 1208; Cockrell, 537 U.S. at 339-40, 123 S. Ct. at 1041. Therefore, “in

the absence of exceptional circumstances,” we defer to the circuit court. See Snyder,

552 U.S. at 477, 128 S. Ct. at 1208 (quoting Hernandez, 500 U.S. at 366, 111 S. Ct.

at 1870 (plurality opinion)). This case, however, involves exceptional

circumstances.

[¶17.]       Here, the trial court’s usual advantage in assessing demeanor through

firsthand observations is not present because the judge who observed the


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veniremembers and the State’s attorney during voir dire could not preside over the

remand proceedings. Further, the remand judge was in no better position than this

Court to review the supplementary documentary evidence bearing on credibility.

Accordingly, we review this case de novo, keeping in mind “that the ultimate

burden of persuasion regarding racial motivation rests with, and never shifts from,

the opponent of the strike.” Purkett, 514 U.S. at 768, 115 S. Ct. at 1771 (per

curiam) (citation omitted).

[¶18.]         In this case, the totality of the relevant evidence supports the State’s

assertion that its peremptory strike was not racially motivated. During the original

Batson hearing, the State justified its strike by claiming that the veniremember

had recently been charged with a crime involving threatening conduct. On remand,

the State produced documentary evidence supporting that claim. Legitimate,

nonracial trial strategy supported striking such a juror.

[¶19.]         Scott, however, argues that the circuit court erred in conducting the

third step of Batson because it did not consider the factors addressed in State v.

Cannon, 41 P.3d 1153 (Utah Ct. App. 2002). Scott contends that, if considered,

those factors indicate that the State’s justifications were pretextual. 2

[¶20.]         Relying on Cannon, Scott first asserts that the State’s failure to show,

or ask questions tending to show, that the struck veniremember was biased against

the State indicates pretext. Scott’s assertion is misplaced. A showing of bias

justifies a challenge for cause. See SDCL 23A-20-13.1(12) (“Challenges for cause


2.       While this and other courts have identified factors that may be helpful in
         determining pretext, this Court has never ruled that certain factors must be
         considered.

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#26819

may be taken on [the ground that] . . . [t]he prospective juror has a state of mind

evincing . . . bias to or against an attorney, . . . [or] the prosecution . . . .”). But the

State’s race-neutral justification for exercising a peremptory strike “need not rise to

the level justifying exercise of a challenge for cause.” See Batson, 476 U.S. at 97,

106 S. Ct. at 1723 (citations omitted). Therefore, the State was not required to

question the struck veniremember for actual bias.

[¶21.]        Scott next asserts that a comparison of the struck veniremember with

a veniremember seated on the jury indicates pretext. Scott contends that a non-

Native American veniremember, who was seated on the jury, was comparable to the

struck veniremember because the seated juror had been convicted of a crime. A

side-by-side comparison of struck and seated veniremembers “is an important factor

in determining whether peremptory challenges are discriminatory[.]” State v.

Martin, 2004 S.D. 82, ¶ 16, 683 N.W.2d 399, 404; see also Dretke, 545 U.S. at 241,

125 S. Ct. at 2325 (“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.”). “[H]owever, it is not determinative[.]” Martin, 2004 S.D. 82, ¶ 16, 683

N.W.2d at 404.

[¶22.]        Here, a side-by-side comparison offers limited guidance. The State

established that the struck veniremember had recently been charged with a crime

involving threatening conduct, and significantly, that veniremember had been

charged by the same attorney who was prosecuting Scott’s case. In contrast, Scott

did not establish the seated juror’s offense, when he was convicted, or who


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prosecuted his case. Without a better record of similarities, this comparison must

be viewed with caution. See Snyder, 552 U.S. at 483, 128 S. Ct. at 1211 (“[A]

retrospective comparison of jurors based on a cold appellate record may be very

misleading when alleged similarities were not raised at trial. In that situation, an

appellate court must be mindful that an exploration of the alleged similarities at

the time of trial might have shown that the jurors in question were not really

comparable.”). Scott’s comparison also fails to acknowledge the other evidence that

corroborated the State’s criminal-charge justification, lessening the need to evaluate

side-by-side comparisons. Cf. State v. Mulligan, 2007 S.D. 67, ¶ 38, 736 N.W.2d

808, 821 (noting that the opponent’s comparison argument “fail[ed] to acknowledge

that the other reasons stated for striking [veniremembers] were sufficient to sustain

the trial court’s finding that there was no pretext”). We do not find Scott’s side-by-

side comparison determinative.

[¶23.]       Scott next asserts that the State’s questioning during voir dire

indicated pretext. Scott contends that the State performed only a “perfunctory

examination” of the struck veniremember and that the questioning was designed to

single out the veniremember to evoke a certain response. Reviewing the State’s

questioning, like reviewing side-by-side comparisons, offers little guidance in this

case. The record reflects that the questioning of all veniremembers was brief,

limited, and somewhat “perfunctory.” Moreover, the question asked of the struck

veniremember was also asked of a non-Native American veniremember who was

struck by the State. While contrasting questions asked of different veniremembers

is a factor to consider, see Dretke, 545 U.S. at 255, 125 S. Ct. at 2333, the record in


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this case does not suggest that the State’s questioning was designed to mask a

racially motivated purpose.

[¶24.]       Scott finally argues that the remand court erred because it did not

address the State’s other justification for striking the veniremember. At the

original Batson hearing, the State’s other justification was that it did not get a

“good feeling” from the struck veniremember’s response to a question. A

justification based solely on a “feeling” may suggest pretext. Were that the State’s

only justification, it may have been unacceptable, as some courts have concluded for

similar justifications. See generally Wayne R. LaFave et al., 6 Crim. Proc. § 22.3(d)

(3d ed. 2013) (“[A] reason which is grounded largely in speculation, hunch, or other

subjective reaction rather than upon facts is not likely to be deemed acceptable,

although there are cases in which such reasons have been found sufficient.”). But

we need not consider that question in this case because the State presented other

evidence that strongly supported its assertion that its strike was not racially

motivated. Cf. Mulligan, 2007 S.D. 67, ¶ 38, 736 N.W.2d at 821.

[¶25.]       Scott, however, further argues that the remand court erred in

considering the State’s post-hoc explanations connected to its “feeling” justification.

On remand, the State elaborated on its feeling justification, explaining that its

feeling was based not only on the veniremember’s response to a question, but also

on what the State “perceived as [the veniremember’s] lack of interest in the process,

along with concerns as to whether she was paying attention.” Such post-hoc

explanations are suspect and must be viewed with caution. That is especially true

in this case because these explanations were based largely on the veniremember’s


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demeanor, a characteristic that was not reviewable by the remand judge or this

Court. Therefore, in our de novo review, we decline to consider the State’s post-hoc

explanations regarding the veniremember’s level of interest and attention.

[¶26.]       Batson prohibits a peremptory strike based “solely on account of [a

veniremember’s] race[.]” See 476 U.S. at 89, 106 S. Ct. at 1719. In this case, the

totality of the relevant evidence indicates that the State’s peremptory strike was

based on the veniremember’s criminal charge for conduct involving threatening

behavior. Based on our de novo review, we agree with the remand court that Scott

failed to carry his burden of proving purposeful racial discrimination.

[¶27.]       Affirmed.

[¶28.]       GILBERTSON, Chief Justice, and KONENKAMP, SEVERSON, and

WILBUR, Justices, concur.




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