This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-926

 

State of Minnesota,

Respondent,

 

vs.

 

Darryl Shane Murphy,

Appellant.

 

Filed May 24, 2005

Affirmed

Kalitowski, Judge

 

Mille Lacs County

File No. K9-03-906

 

Mike Hatch, Attorney General, Kristen M. Olsen, Assistant Attorney General, 1200 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2130; and

 

Jan Kolb, Mille Lacs County Attorney, Mille Lacs County Courthouse, 635 Second Street Southeast, Milaca, MN 56353 (for respondent)

 

John M. Stuart, State Public Defender, Marie Wolf, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Kalitowski, Presiding Judge; Klaphake, Judge; and Poritsky, Judge.*

 

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant, Darryl Murphy, challenges his conviction of second-degree felony murder.  Appellant was convicted on January 21, 2004—after a jury trial—and was later sentenced to 180 months in prison, the presumptive sentence for his crime.  Appellant argues that the district court erred in ruling that (1) Mille Lacs County’s jury selection system does not systematically exclude Native Americans; and (2) the state had valid, race-neutral reasons for using a peremptory challenge to strike the one potential juror who identified himself as Native American.  Appellant also argues that the district court’s failure to depart downward from the presumptive sentence was error.  We affirm.

D E C I S I O N

I.

 

            1.         Composition of Jury Pool

            Appellant argues that because he was convicted by a jury that did not represent a fair cross section of his community, his conviction should be overturned.  Under the Sixth Amendment, criminal defendants are entitled to trial by a jury selected from a “fair cross section” of their community.  See Taylor v. Louisiana, 419 U.S. 522, 527, 95 S. Ct. 692, 696 (1975).  But this requirement “does not guarantee a criminal defendant a jury of a particular composition or one that mirrors the community.”  State v. Williams, 525 N.W.2d 538, 542 (Minn. 1994) (citing Taylor, 419 U.S. at 538, 95 S. Ct. at 701-02).

            The United States Supreme Court, in Duren v. Missouri, 439 U.S. 357, 364-67, 99 S. Ct. 664, 668-70 (1979), articulated a three-part test for determining whether a defendant has made a prima facie showing of a violation of the “fair cross section” requirement.  The defendant must show that

(1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.

 

  Id. at 365, 99 S. Ct. at 668.  And the Minnesota Supreme Court has stated that

the key part of the showing required of a defendant challenging a venire on Sixth Amendment grounds should be that over a significant period of time—panel after panel, month after month—the group of eligible jurors in question has been significantly underrepresented on the panels and that this results from “systematic exclusion,” that is, unfair or inadequate selection procedures used by the state rather than, e.g., a  higher percentage of “no shows” on the part of people belonging to the group in question. 

 

Williams, 525 N.W.2d at 543.  The Williams court also noted that, in Duren, “the defendant established systematic underrepresentation by showing that ‘a large discrepancy occurred not just occasionally, but in every weekly venire for a period of nearly a year . . . .’”  Id. (quoting Duren, 439 U.S. at 366, 99 S. Ct. at 669).  

            Here, while appellant acknowledges that this is “a very difficult standard to meet,” he argues that he made a prima facie showing because “Mille Lacs County knew that its selection procedures resulted in a consistently low number of American Indians and that it did nothing to rectify the situation.”  The state argues that, while there may be room for improvement in Mille Lacs County’s selection process, appellant did not meet his burden of establishing a prima facie case before the district court and, accordingly, the district court’s determination should be affirmed.  We agree.

            The record indicates that Mille Lacs County receives a list of 2,000 prospective jurors from the Secretary of State’s office on a yearly basis.  This list is generated randomly from lists of Mille Lacs County registered voters and “people who have driver’s licenses.”[1]  Every three months a computer program randomly generates a list of 250 names from the master list—and those 250 people are considered the jury pool for that three-month period.  The county then sends a summons to each of the 250 people on the list.  Each person who returns the summons and is not disqualified by age or residence is then entered into the system as a qualified juror.  As the Mille Lacs County Court Administrator testified, “from there our computer program will pick at random however many jurors we request for a particular trial.”  

            In answering questions from the district court regarding the presence of Native Americans on juries in the county, the court administrator testified that (1) he had been the court administrator for four years; (2) it is common that Native Americans have a minimal presence on some panels; (3) in his estimation 50 or 60% of panels would not have a Native American representative; and (4) there are no procedures designed to systematically exclude Native Americans from jury panels. 

            The jury manager for Mille Lacs County also testified.  She stated that she was not surprised by the lack of Native American representation in this particular jury pool because, on many of the questionnaires returned to her, Native Americans state that “they don’t have a driver’s license so they can’t get here.”  And people who indicate they do not have a driver’s license are generally excused from serving.  The jury manager testified further that, in this 250-person jury pool, there were 112 qualified jurors—i.e., 112 people “who agreed that they could serve and offered no types of reasons” that they could not attend.  Of the 112 qualified jurors, 111 were white and one was Native American.  Finally, the jury manager testified that, of the 118 people who returned forms but could not serve for one reason or another, all of those were white.  The remainder of the jury pool did not return the questionnaires. 

            As stated above, the Sixth Amendment “does not guarantee a criminal defendant a jury of a particular composition or one that mirrors the community.”  Williams, 525 N.W.2d at 542.  And, while appellant’s arguments that he satisfied the first two parts of the Duren test are persuasive, on this record, he did not—and could not—satisfy the third part of the test.  This record cannot support the conclusion that a group of eligible jurors has been significantly underrepresented over a significant period of time.  While the testimony of the Mille Lacs County officials indicates that a problem may exist with underrepresentation of Native Americans on juries in the county, the record does not support a finding of “systematic exclusion” under Williams.

            Notwithstanding this conclusion, we urge county officials to review county procedures, including its transportation policy, to attempt to better achieve juries that represent a fair cross section of the community.  See id. at 544 (noting that the fact “[t]hat the underrepresentation is not the result of systematic exclusion does not justify complacency or satisfaction with the inclusiveness of the system”).

2.         Batson Challenge

            Appellant also challenges the district court’s denial of his Batson challenge, contending that the state’s proffered reasons for striking the one juror that identified himself as partially Native American were pretextual.  See Batson v. Kentucky, 476 U.S. 79, 86, 106 S. Ct. 1712, 1717 (1986) (stating that the Equal Protection Clause of the Constitution bars the state from exercising a peremptory strike on the basis of a prospective juror’s race).  This court reviews a Batson challenge for clear error, and we affirm unless the record or the applicable law does not support the district court’s ruling.  State v. Reiners, 664 N.W.2d 826, 830-31, 834 n.3 (Minn. 2003).  The existence of racial discrimination in a peremptory challenge “is a factual determination that is to be made by the district court and should be given great deference on review.”  Id. at 830.   

            The Supreme Court, in Batson, established a three-pronged test for trial courts to determine if a peremptory strike was based on racial discrimination.  Batson, 476 U.S. at 96-98, 106 S. Ct. at 1723.  First, the opponent of the strike must make a prima facie showing that the peremptory strike was used to remove a member of a racial minority.  Reiners, 664 N.W.2d at 831.  Second, if a prima facie showing is made, the proponent of the strike must offer a race-neutral explanation.  Id.  And third, if a race-neutral explanation is given, the trial court considers the parties’ arguments and decides whether the opponent of the strike has proved that purposeful racial discrimination has occurred.  Id. 

            Appellant first argues that the district court failed to conduct a proper Batson analysis because the court asked the state to provide a race-neutral reason for excluding A.K. immediately after appellant’s counsel stated that he thought A.K. was Native American.   But our review of the record indicates that the court adhered to the three-step Batson analysis.  And, while the court expressed some trepidation as to whether appellant could make a prima facie showing regarding A.K., it nonetheless performed the full analysis.  See State v. Everett, 472 N.W.2d 864, 868-69 (Minn. 1991) (stating that a prima facie case is established by showing (1) that a member of a racial minority has been peremptorily excluded and (2) that circumstances of the case raise an inference that the exclusion was based on race).

            The state was then required to proffer a race-neutral reason for its peremptory strike.  Reiners, 664 N.W.2d at 832.  Here, the state offered three:  (1) A.K.’s financial and transportation issues; (2) A.K.’s prior DWI conviction and his residual negative feelings about it; and (3) A.K.’s responses to questions “about the slot limits and treaty negotiations” between the Mille Lacs Reservation and the State of Minnesota.  The district court found that only the first two of the state’s proffered race-neutral reasons for striking A.K. were valid, but that, on those two reasons, appellant failed to meet his burden of proving those reasons were a pretext for purposeful racial discrimination.

            Specifically, the district court found that A.K.’s financial issues were “weighing on his mind and . . . there’s obviously a certain degree of reluctance on his part,” and “[t]hat is a valid consideration by itself in exercising a peremptory challenge.”  The court also stated, with regard to A.K.’s DWI conviction, that A.K. “was maybe the only, if not only one of one or two that expressed a strong feeling that . . . the process did not work as it should.”  Further, the district court found that although not a basis for a challenge for cause, the state’s concerns regarding A.K.’s prior convictions were a valid consideration in support of an exercise of its peremptory strike.  In conclusion, the court stated, “I believe that the—that defendant has failed to prove that the elimination of the juror was purposeful racial discrimination and not as a result of these two other valid considerations.”

            Appellant now argues that the district court’s analysis was fatally simplistic.  But discriminatory intent is not a presumed reason for a peremptory strike; discrimination must be inherent in the proponent’s “race neutral” explanation for the strike.  State v. McDonough, 631 N.W.2d 373, 385 (Minn. 2001).  And for a Batson challenge to prevail, the challenger must meet the burden of proving purposeful discrimination.  Id.  On this record, we conclude that the district court’s reasoning was sound, and appellant failed to set forth a convincing argument that the state engaged in purposeful racial discrimination when it exercised its peremptory strike and eliminated A.K. from the jury.  Further, “[w]here the proponent’s explanation of a peremptory challenge is race-neutral, and there is no evidence from which to infer an intent to discriminate, the Batson objection must be overruled.”  Reiners, 664 N.W.2d at 834.

            Finally, it is well settled that “considerable deference must be given by a reviewing court to the [district] court’s finding on the issue of intent because the finding typically will turn largely on an evaluation by the trial court of credibility.”  State v. Greenleaf, 591 N.W.2d 488, 500 (Minn. 1999).  Accordingly, we affirm the district court’s denial of appellant’s Batson challenge.

II.

Appellant argues that the district court erred when it refused to depart downward from the presumptive sentence.  But the decision to depart from the sentencing guidelines rests within the district court’s discretion and will not be reversed absent a clear abuse of that discretion.  State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).  And it is a rare case that warrants reversal of the refusal to depart.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).  On these facts, we cannot say the district court abused its discretion in refusing to depart.

            Affirmed.