Ford v. State

Decision Date27 April 2006
Docket NumberNo. 43310.,43310.
Citation132 P.3d 574
PartiesTerrence Gerrard FORD, Appellant, v. The STATE of Nevada, Respondent.
CourtNevada Supreme Court

Philip J. Kohn, Public Defender, and Sharon G. Dickinson, Deputy Public Defender, Clark County, for Appellant.

George Chanos, Attorney General, Carson City; David J. Roger, District Attorney, and James Tufteland, Chief Deputy District Attorney, Clark County, for Respondent.

Before DOUGLAS, BECKER and PARRAGUIRRE, JJ.

OPINION

PER CURIAM.

A jury convicted appellant Terrence Gerrard Ford of one count of conspiracy to commit robbery and one count of robbery with the use of a deadly weapon. During jury selection at Ford's trial, the State used peremptory challenges to exclude three African-American prospective jurors from the jury. Ford objected to their exclusion under Batson v. Kentucky,1 arguing that the State exercised its peremptory challenges based on race. The district court disagreed and overruled Ford's objection. On appeal, among other issues, Ford assigns error to the district court's ruling on his Batson objection.2

We conclude that the district court did not err by overruling Ford's Batson objection. Under the recent United States Supreme Court decision in Miller-El v. Dretke,3 a court must look at the totality of the jury-selection process to determine whether the prosecutor's stated reasons for a particular peremptory challenge are pretext for discrimination. We conclude that the district court's finding that the State's reasons for exercising its peremptory challenges was not a pretext for discrimination is supported by the record of the jury-selection process. We therefore affirm Ford's conviction.

FACTS

Ford's conviction was based on his robbery of a Del Taco drive-through with an accomplice who brandished a gun. Eric Tanguma was working one night at a Del Taco drive-through window when two men on foot approached the window. One man demanded money and the other man pointed a gun at Tanguma. Tanguma thought it was a joke because he knew the man who demanded money from high school six years earlier, and that same person had come into the Del Taco a couple of weeks earlier and had chatted with Tanguma.

After the robbery, the police interviewed Tanguma, and he told them that he recognized one of the robbers from high school4 and that he had seen and talked to that same person in the Del Taco recently. Tanguma, however, could not remember the man's name. A week after the robbery, Tanguma met with a Las Vegas Metropolitan Police Department (LVMPD) detective to look through high-school yearbooks to ascertain the name of the person he recognized as one of the robbers. While looking through yearbooks, Tanguma found the person's picture — the man's name was Terrence Ford.

During jury selection at Ford's trial, the State used its peremptory challenges to exclude three African-American prospective jurors: Juror Wit, Juror And, and Juror Bri. Ford's counsel objected to the State's use of its peremptory challenges as discriminatory under Batson.

With regard to Juror Wit, the State explained that it excluded her because she had been arrested for domestic violence. Although the charges were dropped and Juror Wit stated that she would be impartial, the State felt that she would have difficulty evaluating this case based solely upon one person's word. The State indicated domestic violence cases frequently rely upon the testimony of one witness and was concerned that Juror Wit, having experienced a dismissal in her own case, might be unable to convict someone without some evidence beyond the victim's testimony.

As to Juror And, the State explained that she stated that her brother had been convicted of assault and battery after a jury trial, but the victim in that case was untruthful when testifying. The prosecutor also recounted that Juror And thought that her brother was treated unfairly, although she stated that she could remain impartial to deliberate in Ford's case. The State argued that her answers during voir dire evidenced a distrust of the jury system, which was why it excluded her.

With respect to Juror Bri, the State argued that he was also arrested and charged with domestic violence, to which he pleaded guilty. The State indicated that it excluded him for the same reasons it excluded Juror Wit. The State also explained that Juror Bri had stated that he thought he was treated unfairly and that he was really the victim in his case, although he maintained that he could remain impartial. The State contended that Juror Bri's history was evidence that he would have trouble remaining impartial.

Finally, the State noted that it had not excluded two other African-American jurors. In response to the State's explanations, Ford's counsel asserted that other, non-African-American prospective jurors on the panel had been arrested or had family who had been arrested, but the State did not exclude those people. Ford's counsel also argued that each of the jurors that the State excluded maintained that they would be impartial. In reply, the State argued that the only crimes involving other jurors were DUIs, which are different situations than domestic violence, for which Juror Wit and Juror Bri were arrested. Also, the State contended that each of the other jurors who were linked to crimes stated that they or their family were treated fairly, whereas Juror And and Juror Bri stated that they felt the proceedings in their cases were unfair. Based on these arguments, the district court found the State's reasons race-neutral and overruled Ford's Batson objection.

After deliberation, the jury returned a guilty verdict for Ford on both counts: conspiracy to commit robbery and robbery with use of a deadly weapon. The district court sentenced Ford to a 24-to-60-month sentence for conspiracy, a concurrent 48-to-180-month sentence for robbery, and a consecutive 48-to-180-month sentence for the deadly weapon enhancement.

DISCUSSION

Ford raises several issues on appeal; however, we focus on the issue of whether the district court erred in overruling Ford's Batson objection to discuss the application of Miller-El to Batson analyses. After the State used three of its four peremptory challenges to exclude African-American prospective jurors, Ford lodged a Batson objection, arguing that the State's use of peremptory challenges was discriminatory.

When ruling on a Batson objection, the trial court should engage in the following three-step analysis: (1) the opponent of the peremptory challenge must make out a prima facie case of discrimination, (2) the production burden then shifts to the proponent of the challenge to assert a neutral explanation for the challenge, and (3) the trial court must then decide whether the opponent of the challenge has proved purposeful discrimination.5

Under the first step, the trial court should consider the totality of the circumstances in determining whether the opponent of the peremptory challenge has made a prima facie showing of discrimination.6 This step is moot, however, where, as here, the State gave its reasons for its peremptory challenges before the district court determined whether the opponent of the challenge made a prima facie showing of discrimination.7

Under step two, the State's neutral reasons for its peremptory challenges need not be persuasive or even plausible.8 Where a discriminatory intent is not inherent in the State's explanation, the reason offered should be deemed neutral.9 In this case, the prosecutor stated that she felt the excluded jurors would "have a distrust of the system just based on their experiences and what they pointed out to the Court in being arrested." Specifically, with regard to Juror Wit and Juror Bri, the prosecutor explained that they had been arrested for domestic violence. The prosecutor described domestic violence cases as one-person's-word-against-another situations, which would be the case here: Tanguma's word against Ford's. In addition, the prosecutor stated that even though Juror Bri had pleaded guilty in his case, he testified during voir dire that he thought he was treated unfairly because he felt he was the victim. The prosecutor also explained that Juror And exhibited a distrust of the jury system because, even though a jury had convicted her brother, Juror And testified during voir dire that the victim in his case lied and her brother was treated unfairly. We conclude that the district court did not err in finding that the State's reasons for excluding the three African-American prospective jurors in this case were facially neutral.

In step three, the persuasiveness of the State's explanation is relevant.10 The district court must determine whether the opponent of the peremptory challenge has met the burden of proving purposeful discrimination.11 An implausible or fantastic justification by the State may, and probably will, be found to be pretext for intentional discrimination.12 In Miller-El, the United States Supreme Court addressed the "practical difficulty of ferreting out discrimination" in peremptory challenges.13

Ford argues that based on the analysis in Miller-El, the district court failed to delve deeply enough into the reasons given by the State for excluding the three African-American prospective jurors. Ford contends that the State's explanations exhibit an intent to discriminate for two reasons: (1) a comparison of the State's reasons for its peremptory challenges with voir dire responses from jurors who served on the jury demonstrates that the State's reasons were a pretext for discrimination, and (2) a comparison of questions the State asked of the three excluded African-American prospective jurors with the questions the State asked of prospective jurors who served on the jury evidences an intent to discriminate.

Miller El involved the use of peremptory challenges by Texas prosecutors in a death penalty case. During jury selection at Miller-El's trial, the prosecutors used...

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