This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




State of Minnesota,



Roberto Gonzalez, Sr.,


Filed November 25, 1997


Schumacher, Judge

Clay County District Court

File No. K096804

Hubert H. Humphrey, III, Attorney General, Paul R. Kempainen, Ass't Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Todd Webb, Clay County Attorney, Clay County Courthouse, 807 North 11th Street, Moorhead, MN 56560 (for respondent)

John M. Stuart, State Public Defender, Sharon E. Jacks, Ass't State Public Defender, 2829 University Street S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Willis, Presiding Judge, Norton, Judge, and Schumacher, Judge.



This appeal is from a conviction for fifth-degree controlled substance offense. Minn. Stat. § 152.025, subd. 2(2)(1994). Appellant Roberto Gonzalez, Sr. argues that the trial court erred in rejecting his Batson challenge to the prosecutor's use of a peremptory strike. We affirm.


Gonzalez was charged, along with his 18-year-old son, with fifth-degree controlled substance offense. Father and son were tried jointly.

The prosecutor exercised a peremptory challenge against the only Hispanic member of the jury venire, one Stephen Lopez. During voir dire, Gonzalez's attorney asked the panel whether anyone recognized any of the names on the list of possible witnesses. Lopez replied that he did not recognize the name but when he saw Steve Bernie, a prospective witness for the state, in the hall he realized he had known him about 12 years ago, but he felt this would not be a problem.

Defense counsel questioned Lopez later about his life and employment, elciting that Lopez had worked at the same company for 16 years, and that he supervised 17 people. Later, in questioning by the prosecutor, Lopez stated that Steve Bernie was "just somebody [he] recognized in the hallway," and not someone with whom he had an "ongoing active acquaintance."

The prosecutor struck Lopez, using the last of his peremptory challenges. Defense counsel raised a Batson challenge. The trial court, after due deliberation, denied the challenge.


This court generally reviews the trial court's decision on a Batson challenge only for clear error, giving deference to the trial court's finding on discriminatory purpose or intent. See State v. McRae, 494 N.W.2d 252, 254 (Minn. 1992) (citing U.S. Supreme Court's statement of standard of review in Hernandez v. New York, 500 U.S. 352, 364-69, 111 S. Ct. 1859, 1869-71 (1991)). The ultimate Batson issue of whether a discriminatory purpose has been shown is an essentially factual determination that typically turns largely on an evaluation by the trial court of credibility. Id.; see also State v. James, 520 N.W.2d 399, 403-04 (Minn. 1994).

The Batson inquiry follows a three-step process, now incorporated into the rules of criminal procedure. First, the party making the Batson challenge must make a prima facie showing that a peremptory challenge was based on race. Second, if a prima facie showing has been made, the burden shifts to the party that made the challenged peremptory strike to articulate a race-neutral explanation for the strike. Finally, if the court determines the explanation is race-neutral, the objecting party has the opportunity to persuade the court that the race-neutral reason was pretextual and that the peremptory strike was made in a purposeful discriminatory manner. Minn. R. Crim. P. 26.02, subd. 6a (3); see also State v. Gaitan, 536 N.W.2d 11, 15 (Minn. 1995).

The trial court here did not consider whether the defense had made a prima facie case, but instead proceeded directly to the second step, in which the prosecutor offered his explanation for the strike. Therefore, the issue of whether there was a prima facie showing is moot. Gaitan, 536 N.W.2d at 15.

The prosecutor stated that in considering his last peremptory strike he had to choose between Lopez and a non-minority prospective juror who knew one of the defense attorneys. The prosecutor said he chose to strike Lopez for one major criteria and one minor criteria. The major reason was that Lopez was acquainted with Steve Bernie. A police officer had observed the meeting in the hall between Lopez and Bernie, and the prosecutor thought there were indications of a friendship or closeness. The secondary reason for striking Lopez, the prosecutor stated, was his being unmarried, living in the same place, the same house, same occupation, indicating Lopez was not fully ingrained [sic] in the community.

The trial court found that the acquaintance between Lopez and Bernie was a race-neutral reason for the peremptory strike and was sufficient to make the peremptory challenge race neutral. We agree.

The supreme court has upheld a peremptory strike of a black juror who lived in the same neighborhood as some of the witnesses. James, 520 N.W.2d at 404. The court stated:

Batson prohibits race-based exercises of peremptory challenges, but not peremptory strikes based on legitimate concerns that a prospective juror might know a key witness or have some connection with people who figure prominently in the case.

Id. If a prospective juror may be struck based on the mere possibility that she might know a witness, then Lopez' actual acquaintance with Bernie is sufficient to sustain the prosecutor's peremptory strike.

The peremptory strike of Lopez is further supported by the fact that the prosecutor also struck a non-minority juror who knew one of the defense attorneys. Cf. State v. Everett, 472 N.W.2d 864, 869 (Minn. 1991) (prosecutor's strike of two white jurors for same reason, youth and inexperience, helped sustain strike of black juror).

Gonzalez argues that the trial court failed to scrutinize the prosecutor's explanation and that the prosecutor's second reason for the strike is so suggestive of a racial stereotype that it undermines the first race-neutral reason. We disagree.

The trial court did more than blindly accept the prosecutor's proffered race-neutral reasons. The court asked the prosecutor for an explanation of why he did not question Lopez more about his acquaintance with Bernie and for a description of Bernie's anticipated testimony. The court did more than determine whether the prosecutor articulated some basis for the challenge, McRae, 494 N.W.2d at 258.

The prosecutor's secondary reasons or "minor criteria" for striking Lopez are unclear to us. Although we find that the secondary reasons do not refer to any stereotype of the Hispanic community, we merely conclude that the trial court did not clearly err in accepting the prosecutor's statement of the primary reason for the strike.

A finding whether there is discriminatory intent typically will turn largely on an evaluation by the trial court of credibility. McRae, 494 N.W.2d at 254 (citing Hernandez, 500 U.S. at 364-69, 111 S. Ct. at 1869-71). This court must apply a clearly erroneous standard of review. Id. We conclude the trial court did not clearly err in accepting the prosecutor's primary reason as race-neutral and sufficient to rebut any inference of discriminatory purpose.