This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
State of Minnesota,
Freddie Louis Dillard,
Affirmed in part and reversed in part
Ramsey County District Court
File No. K4001040
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, Suite 315, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)
John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Shumaker, Presiding Judge, Crippen, Judge, and Schumacher, Judge.
On appeal from his conviction, appellant claims that the prosecutor was improperly permitted to exclude an African-American juror. Because the state identified race-neutral reasons for the exclusion and because appellant did not prove purposeful discrimination, we affirm. We also find no merit in appellant’s challenge to the trial court’s scope-of-impeachment ruling or its refusal to depart from sentencing guidelines. Consistent with both parties’ wishes, we vacate appellant’s sentence for engaging in prostitution with a child.
Appellant was arrested and charged after driving a 15-year-old girl to a hotel, giving her $200, asking her to be a prostitute, and attempting to have sex with her. A jury found appellant guilty, and the court sentenced him concurrently to 158 months for solicitation to practice prostitution, 48 months for engaging in prostitution with a child, and 108 months for kidnapping.
During jury selection, the prosecutor exercised a peremptory strike against one of the two African Americans on the venire panel. Appellant challenged the strike under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986). The prosecutor stated that: (1) defense counsel had represented the juror’s son-in-law and had attended the juror’s daughter’s wedding; and (2) the juror stated that she thought the justice system had not treated a brother-in-law, who had been convicted of rape, fairly, but that she could be fair and impartial in this case. The trial court found the prosecutor’s reasons for the strike race neutral and upheld the strike.
Whether the exercise of a peremptory challenge shows racial discrimination is a factual determination that turns largely on the trial court’s evaluation of credibility. State v. James, 520 N.W.2d 399, 403-04 (Minn. 1994) (quoting State v. McRae, 494 N.W.2d 252, 254 (Minn. 1992)). The trial court is entitled to great deference in its determination of whether the prosecutor’s response is genuine. Id. at 404. The clearly erroneous standard of review applies to this factual determination. Id.
In Batson, the Supreme Court established a three-step process to determine whether a peremptory challenge is motivated by discriminatory intent. 476 U.S. at 96-98, 106 S. Ct. at 1723-24. First, the defendant must make a prima facie showing that the challenge was exercised on the basis of race. Id. at 96, 106 S. Ct. at 1723. Second, when such a prima facie showing has been made, the burden shifts to the prosecutor to articulate a race-neutral reason for the challenge. Id. at 97, 106 S. Ct. at 1723. Finally, if the prosecutor establishes a race-neutral reason for the challenge, the trial court must determine whether there has been purposeful discrimination. Id. at 98, 106 S. Ct. at 1724.
In this case, the first step in the Batson analysis is satisfied because a prima facie showing becomes moot when the trial court decides the ultimate question of intentional discrimination. State v. Martin, 614 N.W.2d 214, 222 (Minn. 2000).
As to the second step, the prosecutor gave two race-neutral reasons for striking the African-American juror. First, the juror knew the defense counsel from his representation of the juror’s son-in-law and his attendance at her daughter’s wedding. A prosecutor’s explanation does not have to be reasonable, persuasive, or even plausible; it needs only to be race neutral. Martin, 614 N.W.2d at 222; Purkett v. Elem, 514 U.S. 765, 767-68, 115 S. Ct. 1769, 1771 (1995). Here, the prosecutor’s explanation was entirely reasonable. And unless a discriminatory intent is inherent in the explanation, the reason offered will be deemed race neutral. Hernandez v. New York, 500 U.S. 352, 360, 111 S. Ct. 1859, 1866 (1991); McRae, 494 N.W.2d at 254.
Second, the juror believed that her brother-in-law had been wrongly prosecuted for rape and that the police coerced the victim into falsely claiming he raped her. A relative’s involvement in the criminal justice system will by itself provide a race-neutral explanation. State v. Weatherspoon, 514 N.W.2d 266, 268-69 (Minn. App. 1994) (juror’s brother accused of drug sales), review denied (Minn. June 15, 1994); Martin, 614 N.W.2d at 222 (juror’s brother convicted of criminal sexual conduct); State v. Greenleaf, 591 N.W.2d 488, 500-01 (Minn. 1999) (juror’s wife on probation for welfare fraud).
Appellant further complains that the juror would have been fair, despite her disagreement with her brother-in-law’s prosecution. But under Batson, the prosecutor’s explanation does not have to rise to a level that justifies striking for cause. 476 U.S. at 97, 106 S. Ct. at 1723; Weatherspoon, 514 N.W.2d at 270.
As to the third Batson-analysis step, the trial court properly found no purposeful discrimination in the prosecutor’s peremptory strike. Appellant argues that striking jurors for their views on the “system” when they have stated that they can be fair should be deemed pretextual and overshadow any other alleged reasons. But the prosecutor did not question the juror about her views on the justice system generally, asking only about her brother-in-law’s experience. Moreover, appellant put forth no evidence that the prosecutor had a discriminatory purpose.
Nevertheless, appellant argues that the prosecutor did not need to question the juror so extensively about her views on the criminal justice system because the juror’s prior contact with defense counsel would have been adequate grounds for striking her. Appellant points out that, if the prosecutor’s articulated reason for striking a minority juror would result in a disproportionate exclusion of members of a certain race, the trial court may use that factor in determining whether even a facially valid reason was a pretext. McRae, 494 N.W.2d at 254. But in McRae, a Batson violation occurred because the prosecutor: (1) exaggerated the juror’s actual answers; (2) repeatedly provided an invitation for the juror to find fault with the system; (3) failed to ask any previous jurors questions about the system; and (4) thought the juror might acquit based upon race. Id. at 257. Here, none of these circumstances is present and in fact the prosecutor struck only one minority juror, leaving two others on the panel.
Appellant further suggests that this court “should adopt the principle that when a prosecutor provides more than one reason for the strike, if either reason is discriminatory, the strike should be overruled.” But “the task of extending law falls to the supreme court or the legislature, * * * it does not fall to this court.” Tereault v. Palmer, 413 N.W.2d 283, 286 (Minn. App. 1987), review denied (Minn. Dec. 18, 1987). In any event, both reasons for the strike were nondiscriminatory: the juror’s prior acquaintance with defense counsel and the juror’s belief that her brother-in-law had been wrongfully prosecuted.
Appellant also asks this court to “analyze the propriety of the strike under the Minnesota equal protection clause, art. 1, sec. 2, which provides more protection than the federal clause.” Minnesota’s rational-basis test, unlike the federal standard, requires a “reasonable connection between the actual, and not just the theoretical, effect of the challenged classification and the statutory goals.” State v. Russell, 477 N.W.2d 886, 889 (Minn. 1991). But it is not the province of this court to “make * * * a dramatic change in the interpretation of the Minnesota Constitution” where the supreme court has not done so. Minnesota State Patrol Troopers Ass’n ex rel. Pince v. State, Dep’t of Pub. Safety, 437 N.W.2d 670, 676 (Minn. App. 1989) (quoting State v. Herbst, 395 N.W.2d 399, 404 (Minn. App. 1986)), review denied (Minn. May 24, 1989). And even under an actual-purpose test, appellant’s challenge would evidently fail because the prosecutor put forth two actual reasons for striking the juror.
The prosecutor’s reasons for striking the juror were both nondiscriminatory and rational, and the trial court did not err in denying appellant’s Batsonchallenge.
During pretrial motions, appellant moved to preclude impeachment with his prior convictions if he chose to testify. The trial court permitted examination on three prior convictions: (1) attempted offering of a forged check (1993); (2) attempted aiding and abetting theft in excess of $2,500 (1992); and (3) offering a forged check (1992). Appellant did not testify.
A trial court’s ruling on the impeachment of a witness by prior conviction is reviewed, as are other evidentiary rulings, under a clear-abuse-of-discretion standard. State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998). The trial court’s decision will not be reversed absent a clear abuse of discretion. State v. Graham, 371 N.W.2d 204, 209 (Minn. 1985).
A prior conviction that is less than ten years old may be used to impeach a witness if the crime: (1) was a felony, and its probative value outweighs its prejudicial effect; or (2) involved dishonesty or false statement, regardless of punishment. Minn. R. Evid. 609(a), (b). The rule permits a court to admit a prior conviction involving dishonesty or false statement without balancing the probative value against the prejudicial effect. State v. Bettin, 295 N.W.2d 542, 545 (Minn. 1980). Here, two of appellant’s prior convictions were for forgery, an offense typically recognized as involving “dishonesty or false statement” for purposes of rule 609(a)(2). State v. Kruse, 302 N.W.2d 29, 31 (Minn. 1981). Also, the aiding-and-abetting-theft conviction was actually a theft by swindle under Minn. Stat. § 609.52, subd. 2(4) (2000), which is also admissible under rule 609(a)(2). State v. Norris, 428 N.W.2d 61, 71 (Minn. 1988). Thus, appellant’s three prior convictions were admissible, and appellant made no showing of special circumstances to prevent their use. The trial court had broad discretion to exclude prior convictions and in fact did exclude two of appellant’s other prior convictions.
Before sentencing, appellant moved for a downward departure, arguing that: (1) the guidelines overstated the seriousness of his conduct; (2) the victim voluntarily participated; and (3) he was amenable to probation. The trial court denied the motion.
The trial court may depart from the presumptive sentence if the individual case involves substantial and compelling circumstances. Minn. Sent. Guidelines II.D.; State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). “Substantial and compelling circumstances are those circumstances that make the facts of a particular case different from a typical case.” State v. Peake, 366 N.W.2d 299, 301 (Minn. 1985). A downward durational departure is justified if the defendant’s conduct is “significantly * * * less serious than that typically involved in the commission of the crime.” State v. Cox, 343 N.W.2d 641, 643 (Minn. 1984). Only in a “rare” case will a reviewing court reverse a trial court’s imposition of the presumptive sentence. Kindem, 313 N.W.2d at 7.
Appellant argues that his showing of remorse, his good behavior over the past six years, and his cooperation with court orders prove that he is amenable to probation. Respondent points out that appellant has a criminal-history score of seven, based on eight prior felony convictions, and thus he would be a poor candidate for probation. Even if a defendant is particularly amenable to treatment in a probationary setting, the sentencing court is not required to depart dispositionally from the guidelines. State v. Evenson, 554 N.W.2d. 409, 412 (Minn. App. 1996), review denied (Minn. Oct. 29, 1996).
Alternatively, appellant contends that his conduct was less harmful than a typical solicitation to practice prostitution because appellant treated the victim well, used no force, and the victim never tried to leave the car or the hotel room. But the mere existence of a mitigating factor does “not obligate the court to place defendant on probation or impose a shorter term than the presumptive term.” State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984). Here, the court found that the victim’s behavior was irrelevant to appellant’s culpability. The court reasoned that appellant’s behavior, and not the victim’s, was at issue in sentencing and appropriately considered appellant’s criminal history.
Appellant argues that he was improperly sentenced for two offenses in violation of Minn. Stat. § 609.035, subd. 1 (1996). The statute permits punishment only for one offense among those based on the same conduct. Id. Appellant argues and respondent agrees that the conduct that constituted soliciting prostitution and engaging in prostitution was the same and that appellant’s 48-month sentence for engaging in prostitution with a child should be vacated. We reverse imposition of this sentence.
Affirmed in part and reversed in part.
Dated: November 15, 2001