COATS, Chief Judge.Page 2
Enrique T. Blasio, a Hispanic male, was convicted of four counts of second-degree misconduct involving a controlled substance. He challenges his conviction on equal protection grounds under Batson v. Kentucky, claiming that Superior Court Judge Larry D. Card erred in allowing the State to peremptorily strike the only Hispanic juror on his panel, Noe González. We conclude that the record shows that Judge Card accepted the prosecutor's representation that he had peremptorily challenged González for a nondiscriminatory reason. And we conclude that the record supports Judge Card's ruling. We accordingly affirm Blasio's convictions.
AS 11.71.020(a)(1).
476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
During jury selection at Blasio's trial, the parties separately submitted their peremptory challenges in a blind process where neither party could see which jurors the other was challenging. After looking at the preemption sheets, Judge Card called a sidebar to discuss one of the peremptory challenges made by the State, the challenge to juror González. Judge Card noted that González was apparently the only Hispanic on the jury, and sua sponte raised a Batson challenge to the State's use of its peremptory challenge to strike González. (Blasio's attorney stated that she would have made a Batson challenge if Judge Card had not done so.) Judge Card asked the prosecutor to give a nondiscriminatory reason why he peremptorily challenged González. The prosecutor responded that he had challenged González because, when the parties were questioning the jurors, González had indicated that he had been on a jury which had been unable to reach a verdict. Judge Card stated that he was not satisfied with the prosecutor's answer, but he also observed that he had known the prosecutor for a while and stated, "I don't think you have a discriminatory bone in your body." At this point, the prosecutor added that he had also considered the fact that González had long hair in deciding to exercise the peremptory challenge. Judge Card reserved ruling on whether to grant the State's peremptory challenge of González until the following day.
The next day, the prosecutor indicated that the prosecution had considered not only the fact that González sat on a jury which did not reach a verdict, but that the case González had previously sat on was a felony drug case. The prosecutor indicated that he tended to peremptorily challenge men who had long hair and pointed out that he had peremptorily challenged the other prospective male juror who had long hair.
Judge Card pointed out that, based upon the appearance of the jurors and looking at the list of their surnames, it appeared that Mr. González was the only Hispanic in the jury pool. Judge Card had pointed out earlier that the fact that González had been on a jury which was unable to reach a decision was a description that would apply to many people and was not a particularly compelling reason to peremptorily challenge a juror. Judge Card also stated that he was aware of many people who had long hair and were very conservative. But he concluded that Blasio did not have a constitutional right to have a jury with a Hispanic juror and ruled that "the state's concerns are nondiscriminatory." Judge Card therefore found that the State's nondiscriminatory reasons for exercising the peremptory challenge were genuine and not pretexts for discrimination. Blasio appeals.
In 1986, the United States Supreme Court decided Batson v. Kentucky, holding that although "a defendant has no right to a `petit jury composed in whole or in part of persons of his own race,'" he does have a right under the Fourteenth Amendment to the United States Constitution "to be tried by a jury whose members are selected pursuant to nondiscriminatory criteria." The Court set out a three-step process for trial courts to follow in evaluating Batson claims: (1) the defendant must first make a prima facie showing of discrimination; (2) the burden of production then shifts to the State to provide a race-neutral reason for the strike; and (3) the court must then "determine if the defendant has established purposeful discrimination." In the third step, "the decisive question" is often whether the State's "race-neutral explanation for a peremptory challenge should be believed." The burden of persuasion always remains with the defendant.
476 U.S. 79, 106 S. Ct. 1712.
Batson, 476 U.S. at 85-86, 106 S. Ct. at 1716-17 (quoting Strauder v. West Virginia, 100 U.S. 303, 305, 25 L. Ed. 664 (1880)) (footnotes omitted).
Batson, 476 U.S. at 96-98, 106 S. Ct. at 1723-24; see also Hernandez v. New York, 500 U.S. 352, 358-59, 111 S. Ct. 1859, 1865-66, 114 L. Ed. 2d 395 (1991).
Hernandez, 500 U.S. at 365, 111 S. Ct. at 1869.
Batson, 476 U.S. at 94 n. 18, 106 S. Ct. at 1721 n. 18.
In the present case, it appears that Judge Card was particularly concerned that the State was about to peremptorily challenge the only Hispanic juror in a case where the defendant was Hispanic. He therefore closely examined the State's reasons for exercising a peremptory challenge of this juror. Ultimately, however, Judge Card found that the State's race-neutral reason for exercising the peremptory challenge was genuine. We conclude that Judge Card was not clearly erroneous in reaching this conclusion. We accordingly affirm Blasio's convictions.
The judgment of the superior court is AFFIRMED.