This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




State of Minnesota,



Lamar Erving Henry,


Filed May 18, 1999


Anderson, Judge

Olmsted County District Court

File No. K4972283

Mike Hatch, Attorney General, John Docherty, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Raymond F. Schmitz, Olmsted County Attorney, 151 Fourth Street S.E., Rochester, MN 55904 (for respondent)

John M. Stuart, State Public Defender, Melissa Sheridan, Assistant Public Defender, Room 254, 875 Summit Avenue, St. Paul, MN 55101 (for appellant)

Considered and decided by Amundson, Presiding Judge, Crippen, Judge, and Anderson, Judge.



This appeal is from a judgment of conviction for second-degree assault. See Minn. Stat. § 609.222, subd. 1 (1996) (assault with a dangerous weapon). Because we conclude the district court did not clearly err in rejecting appellant Lamar Henry's Batson challenge and did not abuse its discretion in sentencing appellant to an upward departure, we affirm.


Appellant Lamar Henry was charged with attempted first- and second-degree murder and with second-degree assault. The complaint alleged that appellant fired several shots at Shaiye Jimale, a Somalian refugee, on a Rochester street. Jimale testified that he had been lured outside his girlfriend's house by two acquaintances, then hit on the head and kicked by appellant and another man. When Jimale followed the men to a nearby house and asked why they had "jumped" him, a woman came onto the porch and gave a handgun to appellant, who fired it in Jimale's direction. Jimale testified that appellant fired three or four more shots in his direction before returning the gun to the woman and entering the house.

In jury selection, the prosecutor exercised a peremptory challenge against Marion Kelly, the only African American in the jury venire. During voir dire, Kelly stated that he had a bachelor's degree in criminal justice studies, had been a lay minister at a prison, and had been a mentor at a local high school to a group of African-American students, including students of Somali origin. The prosecutor also elicited from Kelly that he had been a crime victim twice, including one crime he did not report, and that, in his opinion, the criminal justice system displayed some inequity toward people of certain ethnic or socio-economic backgrounds.

Appellant challenged the prosecutor's use of a peremptory strike against Kelly. The prosecutor gave four reasons for striking Kelly: (1) his criminal justice degree and its possible effects on his attitudes; (2) his expressed opinions about the inequities in the criminal justice system; (3) his experience in prison ministry, which could make him "sympathetic towards the defendant"; and (4) his experiences living in a big city with its "callousness" toward crime. The trial court ruled that these reasons were "race neutral" and that appellant had not shown they were a pretext for racial discrimination.

The jury found appellant not guilty of attempted first- and second-degree murder, but guilty of second-degree assault. The trial court sentenced appellant to 54 months, a 50% upward departure, finding that appellant's conduct was significantly more serious than the typical second-degree assault, that it involved a total disregard for the safety of others, placed a number of people at risk, and had a negative impact on the neighborhood in which the shots were fired.



Henry argues that the prosecutor's reasons for striking juror Kelly were a pretext for racial discrimination, in violation of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986). This court gives deference to the trial court's essentially factual determination whether a peremptory challenge was racially discriminatory. State v. McRae, 494 N.W.2d 252, 254 (Minn. 1992). This determination typically revolves largely around an evaluation of credibility and is reviewed under a clearly erroneous standard. Id.; State v. James, 520 N.W.2d 399, 403-04 (Minn. 1994).

The trial court found that Henry had made a prima facie showing of racial discrimination under Batson warranting further analysis. The second and third steps of the three-prong Batson analysis are:

Second, if the requisite [prima facie] showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination.

Hernandez v. New York, 500 U.S. 352, 358-59, 111 S. Ct. 1859, 1866 (1991).

For purposes of the second step of the Batson analysis, reasons offered for a peremptory challenge need only have some "facial validity" free of inherent discrimination in order to be race-neutral. Purkett v. Elem, 514 U.S. 765, 768, 115 S. Ct. 1769, 1771 (1995) (quoting Hernandez, 500 U.S. at 360, 111 S. Ct. at 1866). Kelly's criminal justice degree, prison ministry experience, prior residence in large cities, and opinions about the criminal justice system are all race-neutral reasons.

Kelly's criminal justice degree and his experience in prison ministry are by themselves sufficient race-neutral reasons to support the prosecutor's peremptory challenge. Lack of education has been held to be a valid race-neutral reason. See State v. Gaitan, 536 N.W.2d 11, 16 (Minn. 1995) (prospective Hispanic juror who had ninth grade education in non-English-speaking school system was properly stricken). We see no basis for treating an excess of educational qualification as a suspect reason, particularly when that education is highly relevant to the duties of a juror. Defense counsel's own questioning of Kelly indicates that he himself was concerned about the possible impact of Kelly's criminal justice degree.

Kelly not only had a criminal justice degree, he also had experience in ministering to persons convicted within that system. Although Kelly stated that he remembered little about his coursework and that the criminal justice degree would not affect his opinion of the case, the prosecutor was entitled to evaluate these responses in terms of Kelly's demeanor and exercise a peremptory challenge even if grounds to question Kelly's impartiality were lacking. See generally McRae, 494 N.W.2d at 257 (noting court can consider juror's demeanor, tone, and other factors in assessing prosecutor's peremptory challenge); see also State v. James, 520 N.W.2d at 403 (noting that reason for peremptory challenge need not rise to level of removal for cause).

The prosecutor's questioning of Kelly about his views of the criminal justice system and his prior residence in large cities raise some concerns. But these do not overcome the convincing race-neutral reasons cited by the prosecutor.

An attorney in jury selection should not single out minority jurors for extensive questioning about the fairness of the criminal justice system. See McRae, 404 N.W.2d at 257-58 (concluding that prosecutor's extensive questions about fairness of criminal justice system, directed to African-American juror but not white jurors, were prompted by juror's race and did not support peremptory strike). But the prosecutor here probed Kelly far less than the prosecutor probed the African-American juror in McRae. Moreover, the prosecutor here had other, more substantial race-neutral reasons for the strike, unlike the prosecutor in McRae. See id. at 256 (quoting prosecutor's explanation showing concern about African-American juror's attitude towards criminal justice system as sole basis for strike). We note also that juror Kelly never expressed any of the "callousness" about crime that the prosecutor felt was more common in large cities and that the other jurors were not asked about their experiences in large cities. But this explanation was cumulative to the prosecutor's valid race-neutral reasons.

In the final analysis, the burden of persuasion under Batson remains with, and never shifts from, the party raising the Batson challenge to the peremptory strike. Purkett v. Elem, 514 U.S. at 768, 115 S. Ct. at 1771. Kelly might have been an ideal juror, from a societal perspective, but attorneys are permitted to strike even ideal jurors for strategic reasons as long as those reasons are otherwise permissible. This court cannot apply a presumption that the prosecutor was engaging in purposeful discrimination, nor can we ignore the clearly erroneous standard of review, which recognizes the trial court's superior ability to make the required factual determination. The trial court did not clearly err in upholding the prosecutor's peremptory challenge.


Henry argues that the trial court's 50% upward departure was an abuse of discretion. The trial court has discretion to depart from the presumptive sentence if the offense involves "substantial and compelling circumstances." State v. Yanez, 469 N.W.2d 452, 455 (Minn. App. 1991), review denied (Minn. June 19, 1991). This court reviews a sentencing departure under an abuse-of-discretion standard. State v. Anderson, 463 N.W.2d 551, 553 (Minn. App. 1990), review denied (Minn. Jan. 14, 1991).

In supporting the departure, the trial court characterized the offense as: (1) generally involving more serious conduct than the typical second-degree assault; (2) placing a large number of people at risk; and (3) having a negative impact on the neighborhood "based on [Henry's] total disregard for the safety of those in that neighborhood."

Placing a large number of people at risk is a well-recognized aggravating factor that may support an upward departure. See, e.g., State v. Ford, 539 N.W.2d 214, 230 (Minn. 1995) (holding that placing number of people placed at risk in firing at police officer in restaurant helped support upward departure); State v. McClay, 310 N.W.2d 683, 685 (Minn. 1981) (holding that putting greater number of people in fear than normal aggravated robbery, and thus posing greater-than-normal danger to the safety of others, helped support double departure); State v. Anderson, 463 N.W.2d at 553 (holding that presence of at least six people in residential and commercial area in which defendant fired 13 shots helped support double upward departure).

Steve Schwoch, who was on a ladder working on a nearby house, testified that at least one of appellant's shots was a "wild, random shot" and that he thought he heard bullets from one or two shots "going through leaves" on trees near where he was working. There was evidence, therefore, that Henry not only fired in a residential neighborhood, in the middle of the day, but also that he fired wildly, so as to threaten at least one person completely uninvolved in the confrontation. There was also evidence that police never found any bullets or located any bullet holes, which also showed that the shots were fired wildly.

We conclude that the McClay aggravating factor is sufficient to support the 50% upward departure. We need not decide, therefore, whether a crime's adverse impact on a neighborhood is a proper aggravating factor. We note that the prosecutor submitted affidavits from neighborhood residents primarily to support a departure under McClay, not to develop a new "neighborhood impact" aggravating factor. But we share appellant's concern over basing sentencing departures on "neighborhood impact" that has broader causes than the defendant's criminal conduct alone.

The trial court did not abuse its discretion in departing from the presumptive sentence.