                             IN THE SUPREME COURT OF THE STATE OF NEVADA


                     JUAN VALENZUELA SANCHEZ,                               No. 66964
                     Appellant,
                     vs.
                                                                                         FILED
                     THE STATE OF NEVADA,                                                JUL 1 4 2016
                     Respondent.
                                                                                       TRACE K. LINDEMAN
                                                                                    CLER ,OF $UPREME COURT
                                                                                            \
                                                                                            /
                                       ORDER OF REVERSAL AND REMAND                 BY
                                                                                          DEPUTY
                                                                                              1?(CAIIR4A-

                                  This is an appeal from a judgment of conviction, pursuant to a
                     jury verdict, of two counts of trafficking in a controlled substance. Eighth
                     Judicial District Court, Clark County; Stefany Miley, Judge.
                                  Appellant Juan Sanchez asserts seven assignments of error,
                     including that the district court erred in overruling his objections
                     pursuant to Batson v. Kentucky,     476 U.S. 79 (1986). For the reasons
                     below, we agree. 1
                                  During voir dire, the State successfully challenged a
                     prospective juror, who was African-American, for cause. The State
                     subsequently used two peremptory challenges on African-American jurors:
                     prospective juror no. 655 and prospective juror no. 662, the only remaining


                           1 We  note that Sanchez also appeals his conviction based on
                     sufficiency of the evidence. After considering this claim, we conclude that
                     it lacks merit. See McNair v. State, 108 Nev. 53, 56, 825 P.2d 571, 573
                     (1992) (explaining that the standard of review when analyzing the
                     sufficiency of the evidence "in a criminal case is whether, after viewing the
                     evidence in the light most favorable to the prosecution, any rational trier
                     of fact could have found the essential elements of the crime beyond a
                     reasonable doubt") (internal quotations omitted). In light of our decision
                     in this matter, we need not consider Sanchez's other assignments of error.

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                 African-American jurors left on the panel. As a result, Sanchez objected
                 under Batson and attempted to establish a prima facie case of racial
                 discrimination. In response and prior to a determination from the district
                 court, the State initially noted that Batson pertained to "minorities in
                 general" and that the panel included "several minorities, including several
                 people of Latino [descent,] which [was] the same as the defendant here."
                 The State offered its race-neutral reasons for each challenged juror. With
                 regard to prospective juror no. 655, the State explained "that she had been
                 accused of a crime, and when she was responding to the questions, [the
                 State] felt like she still had an attitude in that." The State later clarified
                 that "she seemed to have an attitude in the tone of her voice" and provided
                 "very short" answers. 2 With regard to prospective juror no. 662, the State
                 explained that it challenged her because "she seemed very young" and
                 uninterested. In particular, the State claimed that during voir dire, she
                 mentioned she drew a lot but "lack[ed] motivation" to take art classes.
                 Thus, according to the State, if she "lack[ed] motivation in any other part
                 of [her] life, [she is] likely to do that here . . . and just not pay attention."




                       2 The  dissent notes that the State did not realize that prospective
                 juror no. 655 was African-American and that the State believed this juror
                 exhibited an attitude during voir dire. However, the dissent's emphasis on
                 this part of the record is misplaced. First, in our analysis, we considered
                 all relevant circumstances, which included not only the State's questioning
                 during voir dire but also the district court's failure to conduct a proper
                 analysis under Batson. Second, the State's claim that it did not realize the
                 juror was African-American is not a factor negating an inference of racial
                 discrimination. As discussed below, a sensitive inquiry into the
                 circumstantial and direct evidence of intent supports a pretext for racial
                 discrimination.

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                               Ultimately, the district court overruled both of Sanchez's
                objections. The court summarily determined "that the State has offered a
                race-neutral reason for utilizing" its peremptory challenges. Further, the
                court noted that while it did not "visibly appear that [there were] other
                dark-skinned individuals indicating that [they were] of African-American"
                descent, there were "a number of individuals who appear[ed] to be of other
                ethnic [descent], such as several seem[ed] to have Latino last names."
                Thus, the court concluded that Sanchez's objection was "going to be
                denied." 3
                               The use of peremptory challenges to racially discriminate
                violates the Equal Protection Clause.    Batson, 476 U.S. at 85. Further,
                discriminatory jury selection constitutes structural error and mandates
                reversal.     Diomampo v. State, 124 Nev. 414, 423, 185 P.3d 1031, 1037
                (2008). This court has adopted the three-step         Batson analysis, as
                enumerated in Purkett v. Elem, 514 U.S. 765, 767-68 (1995). Step one of
                the Purkett analysis requires the opponent of the peremptory challenge to

                      3 The dissent argues that the district court was asked to address and
                resolve the third step of Batson, and confirm that the representations made
                by the State were "consistent with what was said during voir dire."
                However, the dissent's emphasis on this part of the record does not
                establish that the district court conducted a proper analysis under Batson.
                We have instructed district courts to undertake a sensitive inquiry into
                circumstantial and direct evidence of intent, as well as consider all
                relevant circumstances. See Conner v. State, 130 Nev., Adv. Op. 49, 327
                P.3d 503, 509 (2014), cert. denied, U.S. , 135 S. Ct. 2351 (2015).
                Here, the record demonstrates that the district court did neither. The
                court's analysis is limited and conclusory, and a significant portion — the
                finding that several of the prospective jurors apparently belonged to the
                same racial group as Sanchez — is irrelevant and faulty. In fact, the third
                step appears to be more of an afterthought, to which only two brief
                statements are dedicated, rather than a factor given serious consideration.

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                    establish a prima facie case of racial discrimination.   Id. at 767. Notably,
                    a defendant does not need to belong to the same racial group as the
                    prospective jurors to raise a challenge under Batson. Kaczmarek v. State,
                    120 Nev. 314, 333, 91 P.3d 16, 29 (2004). For step two, "the burden of
                    production shifts to the proponent of the strike" to proffer "a race-neutral
                    explanation" for the challenge.   Purkett, 514 U.S. at 767. Finally, step
                    three provides that based on the race-neutral explanation, the district
                    court "decide[s] ... whether the opponent of the strike has proved
                    purposeful racial discrimination." Id. This court has previously advised
                    "district courts to clearly spell out the three-step analysis" when
                    conducting a Batson analysis. Kaczmarek, 120 Nev. at 334, 91 P.3d at 30
                    (internal quotation omitted). A "district court must undertake a sensitive
                    inquiry into such circumstantial and direct evidence of intent as may be
                    available and consider all relevant circumstances before ruling on a
                    Batson objection." Conner v. State, 130 Nev., Adv. Op. 49, 327 P.3d 503,
                    509 (2014) (internal quotations omitted), cert. denied, U.S. , 135 S.
                    Ct. 2351 (2015).
                                 With regard to a Batson challenge, this court generally gives
                    great deference to the district court's decision on the issue of
                    discriminatory intent. Diomampo, 124 Nev. at 422-23, 185 P.3d at 1036-
                    37. Thus, we will only reverse if the decision is clearly erroneous.
                    Kaczmarek, 120 Nev. at 334, 91 P.3d at 30. In our analysis, we consider
                    "the similarity of answers to voir dire questions given by [minority]
                    prospective jurors who were struck ... and answers by [nonminority]
                    prospective jurors who were not struck," as well as "the disparate
                    questioning by the prosecutors of [minority] and [nonminority] prospective
                    jurors."   Hawkins v. State, 127 Nev. 575, 578, 256 P.3d 965, 967 (2011)

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                  (alteration in original) (internal quotations omitted). In evaluating a race-
                  neutral explanation, implausible or fantastic justifications may (and
                  probably will) be found to be pretexts for purposeful discrimination."
                  Purkett, 514 U.S. at 768. Although the proponent "must give a clear and
                  reasonably specific explanation of his legitimate reasons for exercising the
                  challenges" and the reason must be "related to the particular case," a
                  legitimate reason is not necessarily a reason that "makes sense."          Id. at
                  768-69 (internal quotations omitted). Rather, it is merely one "that does
                  not deny equal protection."      Id. at 769. However, "[i]f a prosecutor's
                  proffered reason for striking a black panelist applies just as well to an
                  otherwise-similar nonblack [panelist] who is permitted to serve, that is
                  evidence tending to prove purposeful discrimination." Miller—El v. Dretke,
                  545 U.S. 231, 241 (2005). We emphasize the importance of this analysis,
                  as "[c]ompliance with Batson is essential to ensure that defendants receive
                  a fair trial and to preserve the public confidence upon which our system of
                  criminal justice depends."     Foster v. Chatman, 578 U.S. , 136 S. Ct.
                  1737, 1760 (2016) (Alito, J., concurring).
                               Here, we initially note that we need not decide whether
                  Sanchez established a prima facie case of discrimination because the State
                  offered its explanations prior to the district court's determination.        See
                  Ford v. State, 122 Nev. 398, 403, 132 P.3d 574, 577 (2006) (stating that
                  when "the State gave its reasons for its peremptory challenges before the
                  district court determined whether the opponent of the challenge made a
                  prima facie showing of discrimination," the step was moot). Further, we
                  note that the district court's discussion of its decision does not clearly spell
                  out the three-step analysis, as we have previously advised. Instead, the
                  district court summarily stated its decision. In addition, the court's

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                  comment that several of the prospective jurors belonged to the same racial
                  group as Sanchez is not relevant to an analysis under Batson. See
                  Kaczmarek, 120 Nev. at 333, 91 P.3d at 29 (noting "the progress of federal
                  constitutional law holding that a defendant need not belong to the same
                  group as the prospective jurors in order to challenge their exclusion on
                  grounds of discrimination"). Regardless, an independent examination of
                  the record demonstrates that two Batson violations occurred.
                  Prospective juror no. 655
                               Prospective juror no. 655 stated that she previously had been
                  accused of a crime, but the charges were dropped. When the court asked
                  prospective juror no. 655 if she could be fair during trial, her response was
                  transcribed as inaudible. The court immediately replied, "Yes, okay." In
                  addition, the State did not ask prospective juror no. 655 any questions
                  during voir dire, nor did it challenge her for cause. This strongly suggests
                  that her response was in the affirmative.
                               Two other jurors admitted to being accused of a crime in the
                  past: prospective juror no. 189 and prospective juror no. 820. 4 Prospective
                  juror no. 189 was accused of two crimes, but both cases were dismissed.
                  He was also convicted of a felony; his record was sealed, and all of his civil
                  rights were restored. When the court questioned whether he could be fair,
                  he stated, "Oh, absolutely." He again reiterated that he "can be fair in this
                  case." Soon after, the State asked prospective juror no. 189 if he felt he
                  was treated fairly by the police and the court system, and he agreed.
                  When Sanchez questioned prospective juror no. 189 about his past, he

                        4 We note that the record is unclear as to whether prospective juror
                  no. 189 and prospective juror no. 820 were minority or nonminority
                  prospective jurors.

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                 responded with the following: "We have laws. I believe in respecting the
                 laws. If we want to break the laws, even if we disagree with them, I
                 believe that I am and everyone else should be held accountable if [we are]
                 found to have broken those laws." He also emphasized that his past "will
                 absolutely not affect" his deliberations in this case. The State decided not
                 to use a peremptory challenge on prospective juror no. 189. In addition,
                 prospective juror no. 820 was accused of a crime in the past. When the
                 court asked if she could be fair in this case, she replied, "Yes." The State
                 did not ask any questions of prospective juror no. 820, nor did it use a
                 peremptory challenge on her. Ultimately, both prospective juror no. 189
                 and prospective juror no. 820 were selected as jurors in Sanchez's trial.
                 Prospective juror no. 189 served as the foreperson, while prospective juror
                 no. 820 appears to have been an alternate juror.
                               The record demonstrates that the State's explanation for its
                 peremptory challenge of prospective juror no. 655 was a pretext for racial
                 discrimination. First, her answers parallel those of other prospective
                 jurors. When the court asked prospective juror no. 655 if she could be fair
                 during this trial, her response was transcribed as inaudible. However,
                 both the response of the district court and the State strongly suggest that
                 she responded she could be fair. Likewise, as discussed above, two other
                 prospective jurors responded that they could be fair. Second, we conclude
                 that there is disparate questioning. The State asked prospective juror no.
                 189 a series of questions, 5 while the State failed to question prospective



                       5 The dissent argues that there was not disparate questioning
                 between prospective juror no. 655 and prospective juror no. 189,
                 emphasizing that the State only asked prospective juror no. 189 three
                 questions. It is true that the State asked prospective juror no. 189 three
                                                                    continued on next page...
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                 juror no. 655 at all. Moreover, although the State did not question
                 prospective juror no. 820 either, the State declined to use a peremptory
                 challenge against her, nor did it claim that she exhibited the same
                 "attitude" that prospective juror no. 655 allegedly exhibited. In fact, upon
                 review of the record, the responses that prospective juror no. 820 gave
                 were also brief, just as the State claims the responses of prospective juror
                 no. 655 were. Nevertheless, both prospective juror no. 189 and prospective
                 juror no. 820 were selected to serve on Sanchez's jury.
                             Considering all relevant circumstances, the State's reasons to
                 challenge prospective juror no. 655 evince pretext. If the State was
                 concerned with prospective juror no. 655's attitude toward the criminal
                 justice system or her inability to serve fairly on a jury, the State could
                 have questioned her. The State's failure to do so, combined with its failure
                 to strike similarly situated jurors and its disparate questioning, raises
                 suspicion as to discriminatory jury selection. Further, the district court
                 did not conduct a proper analysis under Batson. In particular, the court
                 did •not clearly spell out the three-step analysis, and it mistakenly
                 emphasized that several of the prospective jurors belonged to the same
                 racial group as Sanchez. Thus, we conclude that the district court erred


                 ...continued
                 questions, but this nevertheless was three more than what was asked of
                 prospective juror no, 655. Even though the State claimed that it was
                 concerned by the attitude that prospective juror no. 655 expressed toward
                 her criminal history, the State failed to ask a single question about this
                 subject, or any questions at all. As explained below, if the State was
                 concerned with prospective juror no. 655's attitude toward the criminal
                 justice system or her inability to serve fairly on a jury, as it apparently
                 was about prospective juror no. 189, the State could have questioned her.
                 Thus, the record demonstrates the existence of disparate questioning.

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                 by overruling Sanchez's objection to the State's peremptory challenge, and
                 this clearly erroneous decision mandates reversal.
                 Prospective juror no. 662
                                 During voir dire, the district court questioned prospective
                 juror no. 662 about her employment. She responded that she had been
                 working for three years at a local theme park, where she ran ticket sales
                 and the cash register. Thereafter, the State questioned prospective juror
                 no. 662 about what she does outside of her career. She responded that she
                 .
                     `usually just [took] care of' her mother. When the State asked if there
                 were any groups to which she belonged or certain hobbies that she liked,
                 she stated that she "[drew] a lot." Finally, the State asked if she took any
                 art classes, to which she replied that she "lack[ed] the motivation."
                                 The State questioned three other jurors about their hobbies:
                 prospective juror no. 755, prospective juror no. 705, and prospective juror
                 no. 714. 6 First, prospective juror no. 755 stated that he "read a lot,"
                 including such material as "business stuff' and "anything related to HVAC
                 and energy." When the State asked about what he enjoyed doing for fun,
                 he stated he was an "[o]utdoors guy" who liked to "be outside" and "stay
                 active." He mentioned participating in a bowling league, as well as
                 playing softball. Second, prospective juror no. 705 stated she worked a lot
                 and was also a student. In her spare time, she "like[d] to run." Then, the
                 State questioned her about her studies, to which she elaborated that she
                 was a student of psychology and wanted to pursue social work. Finally,
                 the State asked prospective juror no. 714 about her hobbies. She stated

                          6 We
                            note that the record is unclear as to whether prospective juror
                 no. 755, prospective juror no. 705, and prospective juror no. 714 were
                 minority or nonminority prospective jurors.

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                     that she was also a student of psychology. She wanted to pursue
                     psychiatry and thus "spen[t] a lot of time on that." When the State asked
                     if she wanted to be a psychiatrist, she replied, "Yes."
                                 Again, the record demonstrates that the State's explanation
                     for its peremptory challenge of prospective juror no. 662 was a pretext for
                     racial discrimination. Significantly, her answers parallel those of other
                     prospective jurors. Outside of her employment, prospective juror no. 662
                     cared for her mother and enjoyed drawing. Likewise, three other
                     prospective jurors briefly discussed their interests outside of their work or
                     future career path. Similar to prospective juror no. 662, none of these
                     jurors suggested that their hobbies have evolved into passions that require
                     strenuous training or enrollment in courses. In fact, prospective juror no.
                     714 failed to answer the State's question altogether, only emphasizing
                     that she studied psychology but declining to mention any interests outside
                     of her future career path. However, prospective juror no. 662 was the only
                     juror whose character was doubted. To question prospective juror no.
                     662's interest in the case, simply because she has not formally been
                     trained as an artist, in addition to the responsibilities of taking care of her
                     mother and working at a career for three years that involves the handling
                     of her company's finances, is an argument that "reeks of afterthought."
                     Miller-El, 545 U.S. at 246.
                                 Further, if the State was truly concerned that prospective
                     juror no. 662's lack of motivation to enroll in art classes would somehow
                     impact her ability to serve fairly on a jury, the State could have questioned
                     her further Instead, the State simply refused to do so, failing to ask any
                     additional questions as to this topic. Finally, as we discussed above, the
                     district court did not conduct a proper analysis under Batson.         As the

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                  dissent notes, lilt is almost impossible for this court to determine if the
                  reason for the peremptory challenge is pretextual without adequate
                  development in the district court."    Hawkins v. State, 127 Nev. 575, 579,
                  256 P.3d 965, 968 (2011). We agree. It is for this very reason that we
                  determine that the district court failed to develop an adequate record
                  before ruling on the Batson objection. Instead of conducting a sensitive
                  inquiry into circumstantial and direct evidence of intent and considering
                  all relevant circumstances, as we have previously advised, the district
                  court tacitly agreed with the State's representations without any
                  significant analysis. Thus, we conclude that the district court erred by
                  overruling Sanchez's objection to the State's peremptory challenge, and
                  this clearly erroneous decision mandates reversal.
                              Considering all relevant circumstances in this case, sufficient
                  evidence exists to demonstrate a pretext of racial discrimination. In
                  evaluating the use of peremptory challenges in a racially discriminatory
                  way, we must ensure that the State and the district court comply with
                  Batson; otherwise, if we decline to do so, we compromise a defendant's
                  right to a fair trial and undermine the public confidence upon which our
                  system of criminal justice depends. As recently emphasized by the United
                  States Supreme Court, "[t]wo peremptory strikes on the basis of race are
                  two more than the Constitution allows." Foster v. Chat man, 578 U.S.
                  136 S. Ct. 1737, 1755 (2016). Accordingly, we




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                              ORDER the judgment of conviction REVERSED AND
                REMAND this matter to the district court for proceedings consistent with
                this order.




                                                                               C.J.
                                                  Parraguirre


                                                           CCet   f
                                                  Douglas




                                                                                J.




                                                  Gibbons




                cc:   Hon. Stefany Miley, District Judge
                      Clark County Public Defender
                      Attorney General/Carson City
                      Clark County District Attorney
                      Eighth District Court Clerk




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                   PICKERING, J., with whom HARDESTY, J., agrees, concurring in part
                   and dissenting in part:
                               Batson v. Kentucky, 476 U.S. 79, 96-98 (1986), directs a three-
                   step analysis to determine whether a peremptory challenge violates the
                   Equal Protection Clause of the Fourteenth Amendment. "First, a
                   defendant must make a prima facie showing that a peremptory challenge
                   has been exercised on the basis of race; second, if that showing has been
                   made, the prosecution must offer a race-neutral basis for striking the juror
                   in question; and third, in light of the parties' submissions, the trial court
                   must determine whether the defendant has shown purposeful
                   discrimination."    Snyder v. Louisiana, 552 U.S. 472, 476-77 (2008)
                   (internal quotations omitted). Here, the State concedes Sanchez's prima
                   facie showing, and Sanchez does not creditably deny that the reasons the
                   State gave for its peremptory challenges qualified as race neutral.       See
                   Purkett v. Elem, 514 U.S. 765, 767-68 (1995) (noting that under Batson,
                   "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)," but that "Mlle second step of this process does not
                   demand an explanation that is persuasive, or even plausible," just one
                   that is "facial[lyi valid[ I"). Thus, only Batson's third step—purposeful
                   racial discrimination by the prosecuting attorney—is at issue on this
                   appeal.
                               The majority reverses Sanchez's judgment of conviction based
                   on its finding that the prosecuting attorney engaged in purposeful racial
                   discrimination when she exercised a peremptory challenge against jurors

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                  nos. 655 and 662. "Whether a prosecutor intended to discriminate on the
                  basis of race in challenging potential jurors is, as Batson recognized, a
                  question of historical fact."   Hernandez v. New York,    500 U.S. 352, 367
                  (1991). As a question of fact, a district court's finding "on the issue of
                  discriminatory intent" is binding on the reviewing court unless the product
                  of "clear error." Conner v. State, 130 Nev., Adv. Op. 49, 327 P.3d 503, 508
                  (2014), cert. denied, U.S. , 135 S. Ct. 2351 (2015). Under the "clear
                  error" standard, a reviewing court "will not reverse a lower court's finding
                  of fact simply because [it] would have decided the [factual dispute]
                  differently."     Snyder, 552 U.S. at 486 (Thomas, J., dissenting) (quoting
                  Easley v. Cromartie, 532 U.S. 234, 242 (2001)). Rather, "a reviewing court
                  must ask 'whether, on the entire evidence, it is left with the definite and
                  firm conviction that a mistake has been committed."      Id. at 487 (quoting
                  Easley, 532 U.S. at 242).
                                  Here, direct evidence that improper racial discrimination
                  motivated the prosecutor's peremptory challenges of jurors nos. 655 and
                  662 does not appear. But cf. Foster v. Chatman, 578 U.S. , 136 S. Ct.
                  1737, 1743 (2016) (reversing as clearly erroneous the Georgia courts'
                  rejection of a capital defendant's Batson challenge, where the state
                  prosecutor's file, obtained post-trial pursuant to an open records request,
                  highlighted every black juror's name, marked each as a "definite NO," and
                  indicated, "If it comes down to having to pick one of the black jurors, [this
                  one] might be okay"). Thus, we must determine whether the record before
                  us contains sufficient circumstantial evidence of unlawful racial
                  discrimination by the prosecutor to deem the district court's contrary
                  finding clear error. As proof of the prosecutor's peremptory challenges
                  were racially motivated, both Sanchez and the majority rely chiefly on

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                comparative juror analysis—comparing the voir dire answers of non-
                minority jurors whom the State kept with those of the minority jurors it
                challenged, to show the reasons given for the challenges were pretextual.
                Compare Ford v. State, 122 Nev. 398, 405, 132 P.3d 574, 578-79 (2006)
                (discussing comparative juror analysis), with People v. Lenix, 187 P.3d
                946, 964 (Cal. 2008) (noting that "[c]omparative juror analysis is a form of
                circumstantial evidence" and that, while "circumstantial evidence may
                support a logical conclusion that the disputed fact is
                true[,] . . . information may often be open to more than one reasonable
                deduction"). Given the "particular care [that] must be taken when relying
                on circumstantial evidence," Lenix, 187 P.3d at 964, especially where, as is
                the case with juror no. 662, the evidence was not developed or argued in
                the district court, I cannot agree that the district court committed clear
                error when it rejected the defense's Batson challenges to the prosecutor's
                strike of jurors nos. 655 and 662.
                            A.    Juror No. 655
                            The district court conducted much of the voir dire in this case.
                During the court's questioning, two jurors, juror nos. 189 and 655,
                disclosed that they had prior criminal histories. The defense and the
                prosecution disagreed on what they saw and heard when these jurors were
                questioned. To defense counsel, the two jurors appeared indistinguishable
                except that juror no. 655 was African-American and juror no. 189 was not;
                both had been accused of crimes in the past, with juror no. 189's charge
                being more serious. But the prosecutor saw things differently. First, she
                expressed surprise at the Batson challenge, stating that she "didn't even
                realize that [juror no. 655] was African American." Then, she volunteered
                that she struck juror no. 655 yet kept juror no. 189 because, after juror no.

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                  655 "indicated that she had been accused of a crime, and when she was
                  responding to the questions, I felt like she still had an attitude in that,"
                  while juror no. 189 "went on to elaborate that he now respects—respects
                  the law. He felt that he was treated very fairly." In response, defense
                  counsel disputed the prosecutor's observations—"And she [juror no. 655]
                  had an attitude? . . I noticed no discernible attitude. . I didn't see
                  anything"—prompting the prosecutor to reiterate, "with [juror no. 655], I
                  felt that when she was answering Your Honor's questions [about her
                  criminal history] she was very short, and she seemed to have an attitude
                  in the tone of her voice."
                               The district judge deemed the reason the prosecutor gave for
                  striking juror no. 655 (negative attitude when asked about prior theft
                  charges) to be "race-neutral," then observed that "a number of individuals
                  who appear to be of other ethnic d[esc]ent" remained in the venire. The
                  district judge did not stop there, as the majority suggests. Defense counsel
                  asked the court to address and resolve the "third part about Batson. . . not
                  just that there is race-neutral reasons but that the Court also visibly saw
                  the same thing that the prosecution saw," which the district judge then
                  did: "what I saw would back up [the] State's contentions. The



                         'Evidently, juror no. 189 had been convicted of a felony 40 years
                  earlier, but the conviction was expunged and his civil rights restored; he
                  also had a more recent domestic violence arrest. The defense describes
                  juror no. 189 as white and represents that the 24 prospective jurors
                  qualified by the court's voir dire included only three African-Americans,
                  while the State represents that the 24 prospective jurors included an
                  unspecified number of Latinos and other minorities, an assertion the
                  district court confirmed.



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                        representations she [the prosecutor] made are consistent with what was
                        said during voir dire."
                                      What we have, then, are divergent accounts by the trial
                        lawyers of how jurors nos. 189 and 655 reacted in voir dire to the judge
                        questioning them about their criminal histories—with the district court
                        explicitly endorsing the prosecutor's account. Applying the "clear error"
                        standard our caselaw and that of the Supreme Court establish, this court
                        should uphold, not reverse, the district court as to juror 655.   Hernandez,
                        500 U.S. at 369 ("where there are two permissible views of the evidence,
                        the factfinder's choice between them cannot be clearly erroneous")
                        (quoting Anderson v. Bessemer City, 470 U.S. 564, 574 (1985)).
                                      A not dissimilar record came before the Supreme Court in
                        Hernandez, where a state-court defendant raised a Batson challenge to the
                        prosecution's peremptory strikes against two Latino jurors, which, with
                        the prosecution's previous for-cause strikes, left the jury without any
                        Latino or Hispanic members. 2 The defendant in Hernandez, himself a
                        Latino, argued that the race-neutral reason given for the strikes (that
                        bilingual jurors might second-guess the court interpreter) was pretextual
                        and that the New York state courts clearly erred when they held
                        otherwise.    See 500 U.S. at 366-67. Writing for a three-judge plurality, 3




                              2 TheHernandez opinion notes that it refers to the excluded jurors as
                        "Latino" because the parties did so in their briefs, though they referred to
                        them as "Hispanic" in the trial court. 500 U.S. at 355. We do the same.

                              3 Justices
                                      O'Connor and Scalia concurred, but "believe[d] that the
                        plurality opinion goes further than it needs to in assessing the
                        constitutionality of the prosecutor's asserted justification for his
                                                                    continued on next page . . .

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                     Justice Kennedy rejected the proposition that a reviewing court can or
                     should second-guess a trial court's assessment of the demeanor of the
                     lawyer exercising the strike in deciding whether the race-neutral reason
                     given was genuine or a pretext for invidious racial discrimination.   Id. at
                     364. "As with the state of mind of a juror, evaluation of the prosecutor's
                     state of mind based on demeanor and credibility lies peculiarly within a
                     trial judge's province."     Id.   at 365 (internal quotation omitted).
                     Continuing, Justice Kennedy wrote:
                                         We discern no clear error in the state trial
                                  court's determination that the prosecutor did not
                                  discriminate on the basis of the ethnicity of Latino
                                  jurors.... [W]here there are two permissible
                                  views of the evidence, the factfinder's choice
                                  between them cannot be clearly erroneous. The
                                  trial court took a permissible view of the evidence
                                  in crediting the prosecutor's explanation. Apart
                                  from the prosecutor's demeanor, which of course
                                  we have no opportunity to review, the court could
                                  have relied on the facts that the prosecutor
                                  defended his use of peremptory challenges without
                                  being asked to do so by the judge, that he did not
                                  know which jurors were Latinos, and that the
                                  ethnicity of the victims and prosecution witnesses
                                  tended to undercut any motive to exclude Latinos
                                  from the jury. Any of these factors could be taken
                                  as evidence of the prosecutor's sincerity. The trial
                                  court, moreover, could rely on the fact that only
                                  three challenged jurors can with confidence be
                                  identified as Latinos, and that the prosecutor had


                     . . . continued

                     peremptory strikes."       Hernandez, 500 U.S. at 372 (O'Connor,         J.,
                     concurring).



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                            a verifiable and legitimate explanation for two of
                            those challenges. Given these factors, that the
                            prosecutor also excluded one or two Latino
                            venirepersons on the basis of a subjective criterion
                            having a disproportionate impact on Latinos does
                            not leave us with a definite and firm conviction
                            that a mistake has been committed.
                Id. at 369-70 (citation omitted) (internal quotations omitted).
                            The defense's pretext claim as to juror no. 655 required the
                district court to assess the demeanor of both jurors and that of the
                prosecutor who exercised the strike against her.      See Thaler v. Haynes,
                559 U.S. 43, 49 (2010) ("when the explanation for a peremptory challenge
                invoke[s] a juror's demeanor, the trial judge's firsthand observations are of
                great importance") (alteration in original; internal quotations omitted).
                These are fact- and credibility-intensive determinations. And here, as in
                Hernandez, the record contains evidence supporting the district court's
                determination that the prosecutor did not strike juror no. 655 based on her
                race, including that the prosecutor defended her peremptory strike
                without being asked to do so, see Hernandez, 500 U.S. at 369, that the
                prosecutor did not know juror no. 655 was African-American until after
                she exercised the strike, see id.; United States v. Watford, 468 F.3d 891,
                913 (6th Cir. 2006) (where the prosecutor represented that he did not
                know the struck juror was African-American, "we are hard-pressed, on the
                record before us, to find discriminatory intent inherent in the proffered
                explanation"), and the district court's acceptance of the prosecutor's
                observations about the demeanor of jurors nos. 189 and 655.
                            The majority cites the prosecutor's "disparate questioning" of
                jurors nos. 189 and 655 to support its clear-error finding. Respectfully, I
                disagree. As noted, the district court conducted most of the voir dire in
                this case. Of the 24 prospective jurors the district court preliminarily
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                qualified, the prosecutor questioned just seven of them, leaving the
                remaining 17 in peace. While the prosecutor did question juror no. 189,
                she asked him just three questions, not the "series of questions" the
                majority depicts. And, the questions asked were benign, more designed to
                introduce the prosecutor to the jury or, maybe, to tease out a basis for a
                possible for-cause challenge of that juror, than to differentiate a white
                juror with a criminal history from an African-American juror with less of
                one. In this and in the brevity of the questioning, the prosecutor's voir
                dire did not differ much from the defense's similarly limited voir dire. It
                evidenced follow-up on a juror with an expunged felony in his background,
                not pretext.
                               B.    Juror No. 662
                               The majority also finds a Batson violation with respect to juror
                no. 662. It bases its finding on a comparative juror analysis it undertakes
                between juror no. 662, whom the State explained it struck because she
                was young and stated that she "lacked motivation," and jurors nos. 705,
                714, and 755, whom the majority finds similarly situated to juror no. 662,
                except that they were not peremptorily challenged. Of note, the defense
                did not make in district court the comparative juror argument the
                majority now accepts. Here is the complete transcript of the comparative
                juror analysis offered in district court as to juror no. 662:
                               Defense: I would say, with respect to [juror no.
                               662], the fact that she's young, there's a number of
                               young people on the jury of different ethnicity. So
                               that doesn't matter. That's completely pretextual.
                               Interested in art, I mean, I don't know what that
                               has to do with anything regarding her
                               qualifications to be a juror. I mean, everyone kind
                               of described things that they do in their lives.


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                             And, I think [the prosecutor] said she looked
                             bored. I mean, [quite] frankly, Judge, most of the
                             people up there look pretty bored. It's a jury trial.
                             No one likes to sit on jury duty.
                 The majority's finding of similarity between juror no. 662, on the one
                 hand, and jurors nos. 705, 714, and 755, on the other hand, thus depends
                 entirely on its reading of the voir dire transcript. The district court was
                 not asked to, and did not, make findings respecting the similarity among
                 these jurors and whether, given those similarities, the prosecutor's stated
                 concern about juror no. 662's statement that she "lack[s] motivation" was a
                 pretext for illegal race discrimination.
                             "It is almost impossible for this court to determine if the
                 reason for the peremptory challenge is pretextual without adequate
                 development in the district court."    Hawkins v. State, 127 Nev. 575, 579,
                 256 P.3d 965, 968 (2011). Especially is this true in the context of
                 comparative juror evidence sought to be developed for the first time in the
                 context of a Batson, challenge on appeal. As the California Supreme Court
                 noted in Lenix, 187 P.3d at 962, "comparative juror evidence is most
                 effectively considered in the trial court where the defendant can make an
                 inclusive record, where the prosecutor can respond to the alleged
                 similarities, and where the trial court can evaluate those arguments based
                 on what it has seen and heard."      Compare United States v. Houston, 456
                 F.3d 1328, 1338 (11th Cir. 2006) (when comparative juror analysis is
                 raised for the first time on appeal, the appellate court lacks the "benefit of
                 the prosecutor's explanation for why he struck the black venire members
                 rather than the white venire members now alleged to be similarly
                 situated" and the "benefit of a finding by the trial judge as to the
                 credibility of such explanations"), with State v. Shipman, 64 A.3d 338, 346
                 (Conn. App. 2013) (rejecting comparative juror claim made for the first
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                  time on appeal where, as here, the races of the relevant venirepersons
                  were not established in the district court, requiring the reviewing court to
                  speculate).
                                This appeal illustrates the hazards of undertaking
                  comparative juror analysis for the first time on appeal. To begin with, as
                  the majority notes, ante at 10 n.6, we do not even know "whether
                  prospective juror no. 755, prospective juror no. 705, and prospective juror
                  no. 714 were minority or nonminority prospective jurors," given that no
                  comparative juror argument was made as to them in district court.        See
                  Shipman, 64 A.3d at 346. We also do not know their ages, that of juror no.
                  662, or that of any other juror (except juror no. 124, aged 20, who was
                  excused for cause). And, although the majority finds otherwise, the record
                  suggests fewer similarities than differences between juror no. 662, on the
                  one hand, and jurors nos. 705, 714, and 755, on the other hand. Thus, voir
                  dire established that juror no. 662 had been employed at Circus Circus
                  Adventuredome Theme Park in "ticket sales and the cash register" for
                  three years; that this was the only job she had held; that apart from
                  looking after her mom, and liking to draw, she was not married and did
                  not "have any groups that [she] belong[ed] to or certain hobbies that [she]
                  like[d] to do"; and that when asked, "Have you ever taken any art
                  classes," she stated, "No. I lack the motivation." Juror nos. 705, 714, and
                  755, by contrast, had worked for a number of years; juror nos. 705 and 714
                  were, in addition to their jobs, attending the College of Southern Nevada
                  to earn their degrees to pursue careers in social work and psychiatry; and
                  juror no. 755, a mechanical contractor with a background in HVAC,
                  professed to spend his time reading journals related to his work. Because
                  the comparative juror analysis undertaken on this appeal was not made in

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                   the district court, we do not know how the district court perceived the
                   demeanor of and differences among these jurors. What we do know,
                   though, from the record itself is that the similarities of these jurors is not
                   so striking that the district court committed clear error in not sua sponte
                   rejecting the prosecutor's peremptory challenge of juror no. 662 based on
                   her similarity to juror nos. 705, 714, and 755. While comparative juror
                   analysis has been undertaken for the first time on appeal in certain
                   instances, it is inappropriate to do so where, as here, the record is not
                   adequate to permit meaningful analysis of the comparisons urged.
                               C.     Lack of findings.
                               As a reviewing court, "we traditionally presume, absent some
                   indication in the record suggesting otherwise, that trial judges . . . know
                   the law and apply it in making their decisions."      United States v. Vann,
                   776 F.3d 746, 756 (10th Cir.), cert. denied,        U.S. 136 S. Ct. 434
                   (2015). Despite this rule, the majority faults the district court for not
                   making more elaborate findings than it did. But the district court's
                   findings were driven by, and commensurate with, the arguments counsel
                   made.   CI Thaler, 559 U.S. at 49 (reversing and remanding a Court of
                   Appeals decision finding a state-court Batson violation based on a lack of
                   express findings by the trial court and noting that neither Batson nor its
                   progeny supports a "categorical rule" that absent certain findings a
                   reviewing court should automatically find a Batson violation). As to juror
                   no. 655, the district judge credited the prosecutor's account, as she was
                   entitled to do, including that juror no. 655 exhibited a negative attitude
                   toward the government that juror no. 189 did not. As for juror no. 662, the
                   district court would have had to be prescient to make comparative juror
                   findings as to jurors nos. 705, 714, and 755, since comparative juror

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                analysis as to them was not argued in district court. Hawkins, 127 Nev. at
                579, 256 P.3d at 967 ("Batson does not impose 'an independent duty on the
                trial court to pore over the record and compare the characteristics of
                jurors, searching for evidence of pretext, absent any pretext argument or
                evidence presented by counsel.") (quoting Johnson v. Gibson, 169 F.3d
                1239, 1248 (10th Cir. 1999)). Logically, the record supports that Sanchez
                failed to carry his burden of demonstrating to the district court that the
                prosecutor's peremptory strikes amounted to purposeful discrimination. It
                is inappropriate, I submit, to transform this failure of proof into clear error
                by the district court. See Vann, 776 F.3d at 755.
                             For these reasons, with the exception of footnote 1 of the
                majority's order, in which I join, I respectfully dissent.

                                                                  A")




                                                     Pickering

                I concur:


                            tee4-41;          , J.
                Hardesty




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