Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Susan Gaertner, Ramsey County Attorney, Jessica S. McConaughey, Assistant Ramsey County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for Respondent)

John M. Stuart, State Public Defender, Susan J. Andrews, Assistant State Public Defender, Suite 600, 2829 University Avenue Southeast, Minneapolis, MN 55414 (for Appellant)

Tou Vang, 1101 Linden Lane, Faribault, MN 55021 (Pro Se)

Considered and decided by Crippen, Presiding Judge, Lansing, Judge, and Peterson, Judge.

In this appeal from a conviction for first-degree controlled substance offense, appellant Toua Vang argues that the trial court failed to conduct an adequate Batson inquiry into the prosecutor's peremptory challenges of two minority jurors. In a pro se brief, Vang also challenges his sentence. We affirm.

Defense counsel began voir dire by encouraging the prospective jurors to think about cultural differences and the possible effects cultural differences can have on the case. Defense counsel questioned the prospective jurors in depth regarding their opinions about racial differences, the war on drugs, the disproportionate effect of the war on drugs on minorities, and the correlation between drugs and crime.

The prosecutor asked two questions during voir dire. First, she asked whether anyone had a social work background. When no one responded, she asked whether there was anything else that should be disclosed that might bear on whether the jurors could be fair and impartial. The parties then made their peremptory strikes.

Defense counsel made a Batson challenge to the state's first peremptory strike, which was against a Native American woman. The court asked the prosecutor to elaborate on the reasons she struck the Native American juror, N.R. The prosecutor responded:

I recall she said she was a licensed foster care person or she was attempting to obtain her foster care license. The last three cases I tried to the court have been hung. The last case I tried was 11 to 1. And the person who hung out for not guilty was a foster care parent and has a social work background and was a recovering alcoholic. For that reason I struck Ms. [N.R.].

The prosecutor proceeded to explain the other challenged strike, which was against an African-American woman, M.J.:

I also struck Ms. [M.J.], the next strike, because she's a recovering alcoholic. In addition Ms. [M.J.] seemed to be making gestures throughout voir dire. When we sat down after I asked my question, she said something to the woman in the front row about it being a dumb question. She didn't understand what it meant, what social work means and just kind of shook her head.

The trial court responded immediately, before hearing any argument from defense counsel on the issue:

The Court did hear that. As to Ms. [M.J.] I believe you are absolutely correct in striking her. Having overheard her comment and her criticizing of your question when she was conferring with other jurors, it seems to me you had no choice but to strike her. I might have even considered a strike for cause at that late stage of the proceedings had it not been after everybody had passed on that issue.

As to the Native American, I don't believe the defense has met its burden.

Defense counsel disagreed with the characterization of M.J.'s comment by the prosecutor and the court. Counsel noted that M.J. was the only African-American on the panel and said that his understanding of what M.J. had said was that she did not hear the prosecutor's question. Counsel argued that other prospective jurors besides M.J. were recovering alcoholics, and the fact that N.R. was a licensed foster care worker was not an adequate distinction or a valid ground for a strike.

The trial court denied the defense's Batson challenge, stating:

Well, it's the Court's view that after three mistrials if counsel wants to strike based upon a social worker, that is one of those things that some lawyers perhaps would strike any male who wears a bow tie. It might sound irrational -

[PROSECUTOR]: Probably is.

THE COURT: --but that-- if that's something how people act, that's fine.

The court noted that although other prospective jurors were recovering alcoholics, none had had as short a period of sobriety as M.J. The court added that M.J.'s comment about the prosecutor's question

I think was sufficient basis [to strike] and race neutral even if we got past the first stage [of the Batson challenge]. Your challenge is denied.

When defense counsel objected to the court's supplying reasons for the prosecutor, the court explained that it was only adding to the record, and concluded:

She doesn't want the person on the panel because the person made critical comments as to her one of two questions on voir dire. I think that's race neutral, last time I checked. And secondly with respect to the other juror, if she doesn't want a social worker or someone who is working as a foster parent on the jury, that's race neutral. So I've denied [the Batson challenge].

D E C I S I O N

A Batson challenge involves a three-step process:

[O]nce the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step 1), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step 2). If a race-neutral explanation is tendered, the trial court must then decide (step 3) whether the opponent of the strike has proved purposeful racial discrimination.

Purkett v. Elem, 115 S.Ct. 1769, 1770-71 (1995). Once the court proceeds to the second step, as the trial court did here, the issue involved in step one, whether a prima facie case of discrimination was made, becomes moot. State v. Gaitan, 536 N.W.2d 11, 15 (Minn. 1995).

At the second step, the court must determine whether the explanation for the peremptory strike is race neutral. See Hernandez v. New York, 500 U.S. 352, 360, 111 S. Ct. 1859, 1866 (1991) (describing issue as facial validity of explanation, but acknowledging that discriminatory intent may be inherent in explanation). The Supreme Court has narrowed the focus of the second Batson step recently, holding that "[t]he second step of this process does not demand an explanation that is persuasive, or even plausible." Purkett v. Elem, 115 S.Ct. at 1771. The prosecutor need not give a "reason that makes sense, but a reason that does not deny equal protection." Id.

The third step involves an "essentially factual determination" in which considerable deference is given the trial court's finding on discriminatory intent, which will not be reversed unless clearly erroneous. State v. McRae, 494 N.W.2d 252, 254 (Minn. 1992).

Vang does not contend that the prosecutor's reasons for striking M.J. and N.R. were not facially race neutral. He contends that the trial court did not properly evaluate whether the proffered reasons were genuine or only pretexts masking a discriminatory intent.

Vang argues first that the trial court should not have supplied reasons on behalf of the prosecutor to justify the strikes. But the comments that Vang challenges occurred only after the prosecutor offered explanations for each strike. The court was, as it stated, adding to the record its evaluation of the prosecutor's race-neutral reasons rather than making the prosecutor's argument for her. The court's comments, however, do not directly address the third Batson requirement that the court decide whether defense counsel proved purposeful racial discrimination.

The trial court's role is to do more than simply determine whether the prosecutor has articulated some race-neutral reason. McRae, 494 N.W.2d at 258. The supreme court has

stress[ed] the need for trial judges to fulfill their role in reviewing and ruling on the prosecutor's explanation for the challenge. The trial court has a duty to decide if there has been purposeful discrimination. That duty should be carried out explicitly.

State v. Stewart, 514 N.W.2d 559, 564 (Minn. 1994).

The trial court here made no explicit decision that the prosecutor's stated race-neutral reasons were not an attempt to mask a discriminatory intent. The trial court's analysis was flawed, at least in appearance, and this court has stated:

We emphasize that the trial court's inquiry into the legitimacy of the explanations is crucial; otherwise a Batson challenge amounts to a right without a remedy. If no genuine inquiry takes place, nothing prevents the prosecutor from removing jurors on racial grounds by inventing "neutral" reasons to justify the peremptory strike.

State v. Weatherspoon, 514 N.W.2d 266, 269 (Minn. App. 1994), review denied (Minn. June 15, 1994). But the trial court's comments indicate that it found the prosecutor's explanations credible, and as the clearly erroneous standard recognizes, credibility judgments must be made by the fact-finder. McRae, 494 N.W.2d at 254. This court must give considerable deference to the trial court's resolution of the third step of Batson. McRae, 494 N.W.2d at 254. The trial court found credible the prosecutor's explanation that she struck M.J. in part because of a comment M.J. made. Although defense counsel claimed that M.J. had not criticized the prosecutor in talking to another juror, this court has no record from which to resolve that issue. We must defer to the court's finding, based on its own observation, that M.J. made a comment criticizing the prosecutor's question. Having directly observed M.J.'s conduct, it was not necessary for the trial court to question the prosecutor to determine her motive in striking M.J.

As to N.R., the fact that the prosecutor had had bad experiences with jurors who were foster care workers was a race-neutral reason. This does not by itself prove a lack of discriminatory intent, but the prosecutor's question during voir dire had already demonstrated to the court that the prosecutor did not want to have jurors with social work backgrounds.

When the prosecutor asked whether any of the prospective jurors had a background in social work, she did not know who might respond that they had such a background. When no one responded that they had a background in social work, the prosecutor struck a juror who was currently trying to obtain a foster care license, which is related to social work. Again, these events occurred in the presence of the trial court and provided a basis for evaluating the prosecutor's credibility. The court was not required to make a finding on whether the prosecutor had actually had the experiences with foster care workers as jurors that she claimed to have had.

The trial court's Batson analysis should have included an explicit ruling on the prosecutor's explanation for the challenges. But on the record before us, the factual determination that the prosecutor was not motivated by a discriminatory intent was not clearly erroneous.

The court denied Vang's motion for a dispositional departure. This court will reverse a refusal to depart only in a "rare case." State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). Although Vang argues in a pro se brief that the trial court failed to consider mitigating factors that would have supported a probationary sentence, the court imposed a sentence of 60 months, a downward durational departure from the presumptive sentence of 86 months. The court stated explicitly that it was finding Vang unamenable to probation because he had lied to the court on two occasions. The court appears to have fully considered the mitigating factors and whether they justified a dispositional departure. The sentence is not procedurally flawed and does not present the "rare case" warranting a reversal of a refusal to depart.

Affirmed.