Sanchez (Juan) v. State

IN THE SUPREME COURT OF THE STATE OF NEVADA

JUAN VALENZUELA SANCHEZ, No. 66964
Appellant,
vs.
FILED
THE STATE OF NEVADA, JUL 1 4 2016
Respondent.
TRACE K. LINDEMAN
CLER ,OF $UPREME COURT
\
/
ORDER OF REVERSAL AND REMAND BY
DEPUTY
1?(CAIIR4A-

This is an appeal from a judgment of conviction, pursuant to a
jury verdict, of two counts of trafficking in a controlled substance. Eighth
Judicial District Court, Clark County; Stefany Miley, Judge.
Appellant Juan Sanchez asserts seven assignments of error,
including that the district court erred in overruling his objections
pursuant to Batson v. Kentucky, 476 U.S. 79 (1986). For the reasons
below, we agree. 1
During voir dire, the State successfully challenged a
prospective juror, who was African-American, for cause. The State
subsequently used two peremptory challenges on African-American jurors:
prospective juror no. 655 and prospective juror no. 662, the only remaining

1 We note that Sanchez also appeals his conviction based on
sufficiency of the evidence. After considering this claim, we conclude that
it lacks merit. See McNair v. State, 108 Nev. 53, 56, 825 P.2d 571, 573
(1992) (explaining that the standard of review when analyzing the
sufficiency of the evidence "in a criminal case is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a
reasonable doubt") (internal quotations omitted). In light of our decision
in this matter, we need not consider Sanchez's other assignments of error.

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 African-American jurors left on the panel. As a result, Sanchez objected
under Batson and attempted to establish a prima facie case of racial
discrimination. In response and prior to a determination from the district
court, the State initially noted that Batson pertained to "minorities in
general" and that the panel included "several minorities, including several
people of Latino [descent,] which [was] the same as the defendant here."
The State offered its race-neutral reasons for each challenged juror. With
regard to prospective juror no. 655, the State explained "that she had been
accused of a crime, and when she was responding to the questions, [the
State] felt like she still had an attitude in that." The State later clarified
that "she seemed to have an attitude in the tone of her voice" and provided
"very short" answers. 2 With regard to prospective juror no. 662, the State
explained that it challenged her because "she seemed very young" and
uninterested. In particular, the State claimed that during voir dire, she
mentioned she drew a lot but "lack[ed] motivation" to take art classes.
Thus, according to the State, if she "lack[ed] motivation in any other part
of [her] life, [she is] likely to do that here . . . and just not pay attention."

2 The dissent notes that the State did not realize that prospective
juror no. 655 was African-American and that the State believed this juror
exhibited an attitude during voir dire. However, the dissent's emphasis on
this part of the record is misplaced. First, in our analysis, we considered
all relevant circumstances, which included not only the State's questioning
during voir dire but also the district court's failure to conduct a proper
analysis under Batson. Second, the State's claim that it did not realize the
juror was African-American is not a factor negating an inference of racial
discrimination. As discussed below, a sensitive inquiry into the
circumstantial and direct evidence of intent supports a pretext for racial
discrimination.

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 Ultimately, the district court overruled both of Sanchez's
objections. The court summarily determined "that the State has offered a
race-neutral reason for utilizing" its peremptory challenges. Further, the
court noted that while it did not "visibly appear that [there were] other
dark-skinned individuals indicating that [they were] of African-American"
descent, there were "a number of individuals who appear[ed] to be of other
ethnic [descent], such as several seem[ed] to have Latino last names."
Thus, the court concluded that Sanchez's objection was "going to be
denied." 3
The use of peremptory challenges to racially discriminate
violates the Equal Protection Clause. Batson, 476 U.S. at 85. Further,
discriminatory jury selection constitutes structural error and mandates
reversal. Diomampo v. State, 124 Nev. 414, 423, 185 P.3d 1031, 1037
(2008). This court has adopted the three-step Batson analysis, as
enumerated in Purkett v. Elem, 514 U.S. 765, 767-68 (1995). Step one of
the Purkett analysis requires the opponent of the peremptory challenge to

3 The dissent argues that the district court was asked to address and
resolve the third step of Batson, and confirm that the representations made
by the State were "consistent with what was said during voir dire."
However, the dissent's emphasis on this part of the record does not
establish that the district court conducted a proper analysis under Batson.
We have instructed district courts to undertake a sensitive inquiry into
circumstantial and direct evidence of intent, as well as consider all
relevant circumstances. See Conner v. State, 130 Nev., Adv. Op. 49, 327
P.3d 503, 509 (2014), cert. denied, U.S. , 135 S. Ct. 2351 (2015).
Here, the record demonstrates that the district court did neither. The
court's analysis is limited and conclusory, and a significant portion — the
finding that several of the prospective jurors apparently belonged to the
same racial group as Sanchez — is irrelevant and faulty. In fact, the third
step appears to be more of an afterthought, to which only two brief
statements are dedicated, rather than a factor given serious consideration.

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 establish a prima facie case of racial discrimination. Id. at 767. Notably,
a defendant does not need to belong to the same racial group as the
prospective jurors to raise a challenge under Batson. Kaczmarek v. State,
120 Nev. 314, 333, 91 P.3d 16, 29 (2004). For step two, "the burden of
production shifts to the proponent of the strike" to proffer "a race-neutral
explanation" for the challenge. Purkett, 514 U.S. at 767. Finally, step
three provides that based on the race-neutral explanation, the district
court "decide[s] ... whether the opponent of the strike has proved
purposeful racial discrimination." Id. This court has previously advised
"district courts to clearly spell out the three-step analysis" when
conducting a Batson analysis. Kaczmarek, 120 Nev. at 334, 91 P.3d at 30
(internal quotation omitted). A "district court must undertake a sensitive
inquiry into such circumstantial and direct evidence of intent as may be
available and consider all relevant circumstances before ruling on a
Batson objection." Conner v. State, 130 Nev., Adv. Op. 49, 327 P.3d 503,
509 (2014) (internal quotations omitted), cert. denied, U.S. , 135 S.
Ct. 2351 (2015).
With regard to a Batson challenge, this court generally gives
great deference to the district court's decision on the issue of
discriminatory intent. Diomampo, 124 Nev. at 422-23, 185 P.3d at 1036-
37. Thus, we will only reverse if the decision is clearly erroneous.
Kaczmarek, 120 Nev. at 334, 91 P.3d at 30. In our analysis, we consider
"the similarity of answers to voir dire questions given by [minority]
prospective jurors who were struck ... and answers by [nonminority]
prospective jurors who were not struck," as well as "the disparate
questioning by the prosecutors of [minority] and [nonminority] prospective
jurors." Hawkins v. State, 127 Nev. 575, 578, 256 P.3d 965, 967 (2011)

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 (alteration in original) (internal quotations omitted). In evaluating a race-
neutral explanation, implausible or fantastic justifications may (and
probably will) be found to be pretexts for purposeful discrimination."
Purkett, 514 U.S. at 768. Although the proponent "must give a clear and
reasonably specific explanation of his legitimate reasons for exercising the
challenges" and the reason must be "related to the particular case," a
legitimate reason is not necessarily a reason that "makes sense." Id. at
768-69 (internal quotations omitted). Rather, it is merely one "that does
not deny equal protection." Id. at 769. However, "[i]f a prosecutor's
proffered reason for striking a black panelist applies just as well to an
otherwise-similar nonblack [panelist] who is permitted to serve, that is
evidence tending to prove purposeful discrimination." Miller—El v. Dretke,
545 U.S. 231, 241 (2005). We emphasize the importance of this analysis,
as "[c]ompliance with Batson is essential to ensure that defendants receive
a fair trial and to preserve the public confidence upon which our system of
criminal justice depends." Foster v. Chatman, 578 U.S. , 136 S. Ct.
1737, 1760 (2016) (Alito, J., concurring).
Here, we initially note that we need not decide whether
Sanchez established a prima facie case of discrimination because the State
offered its explanations prior to the district court's determination. See
Ford v. State, 122 Nev. 398, 403, 132 P.3d 574, 577 (2006) (stating that
when "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," the step was moot). Further, we
note that the district court's discussion of its decision does not clearly spell
out the three-step analysis, as we have previously advised. Instead, the
district court summarily stated its decision. In addition, the court's

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 comment that several of the prospective jurors belonged to the same racial
group as Sanchez is not relevant to an analysis under Batson. See
Kaczmarek, 120 Nev. at 333, 91 P.3d at 29 (noting "the progress of federal
constitutional law holding that a defendant need not belong to the same
group as the prospective jurors in order to challenge their exclusion on
grounds of discrimination"). Regardless, an independent examination of
the record demonstrates that two Batson violations occurred.
Prospective juror no. 655
Prospective juror no. 655 stated that she previously had been
accused of a crime, but the charges were dropped. When the court asked
prospective juror no. 655 if she could be fair during trial, her response was
transcribed as inaudible. The court immediately replied, "Yes, okay." In
addition, the State did not ask prospective juror no. 655 any questions
during voir dire, nor did it challenge her for cause. This strongly suggests
that her response was in the affirmative.
Two other jurors admitted to being accused of a crime in the
past: prospective juror no. 189 and prospective juror no. 820. 4 Prospective
juror no. 189 was accused of two crimes, but both cases were dismissed.
He was also convicted of a felony; his record was sealed, and all of his civil
rights were restored. When the court questioned whether he could be fair,
he stated, "Oh, absolutely." He again reiterated that he "can be fair in this
case." Soon after, the State asked prospective juror no. 189 if he felt he
was treated fairly by the police and the court system, and he agreed.
When Sanchez questioned prospective juror no. 189 about his past, he

4 We note that the record is unclear as to whether prospective juror
no. 189 and prospective juror no. 820 were minority or nonminority
prospective jurors.

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 responded with the following: "We have laws. I believe in respecting the
laws. If we want to break the laws, even if we disagree with them, I
believe that I am and everyone else should be held accountable if [we are]
found to have broken those laws." He also emphasized that his past "will
absolutely not affect" his deliberations in this case. The State decided not
to use a peremptory challenge on prospective juror no. 189. In addition,
prospective juror no. 820 was accused of a crime in the past. When the
court asked if she could be fair in this case, she replied, "Yes." The State
did not ask any questions of prospective juror no. 820, nor did it use a
peremptory challenge on her. Ultimately, both prospective juror no. 189
and prospective juror no. 820 were selected as jurors in Sanchez's trial.
Prospective juror no. 189 served as the foreperson, while prospective juror
no. 820 appears to have been an alternate juror.
The record demonstrates that the State's explanation for its
peremptory challenge of prospective juror no. 655 was a pretext for racial
discrimination. First, her answers parallel those of other prospective
jurors. When the court asked prospective juror no. 655 if she could be fair
during this trial, her response was transcribed as inaudible. However,
both the response of the district court and the State strongly suggest that
she responded she could be fair. Likewise, as discussed above, two other
prospective jurors responded that they could be fair. Second, we conclude
that there is disparate questioning. The State asked prospective juror no.
189 a series of questions, 5 while the State failed to question prospective

5 The dissent argues that there was not disparate questioning
between prospective juror no. 655 and prospective juror no. 189,
emphasizing that the State only asked prospective juror no. 189 three
questions. It is true that the State asked prospective juror no. 189 three
continued on next page...
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 juror no. 655 at all. Moreover, although the State did not question
prospective juror no. 820 either, the State declined to use a peremptory
challenge against her, nor did it claim that she exhibited the same
"attitude" that prospective juror no. 655 allegedly exhibited. In fact, upon
review of the record, the responses that prospective juror no. 820 gave
were also brief, just as the State claims the responses of prospective juror
no. 655 were. Nevertheless, both prospective juror no. 189 and prospective
juror no. 820 were selected to serve on Sanchez's jury.
Considering all relevant circumstances, the State's reasons to
challenge prospective juror no. 655 evince pretext. If the State was
concerned with prospective juror no. 655's attitude toward the criminal
justice system or her inability to serve fairly on a jury, the State could
have questioned her. The State's failure to do so, combined with its failure
to strike similarly situated jurors and its disparate questioning, raises
suspicion as to discriminatory jury selection. Further, the district court
did not conduct a proper analysis under Batson. In particular, the court
did •not clearly spell out the three-step analysis, and it mistakenly
emphasized that several of the prospective jurors belonged to the same
racial group as Sanchez. Thus, we conclude that the district court erred

...continued
questions, but this nevertheless was three more than what was asked of
prospective juror no, 655. Even though the State claimed that it was
concerned by the attitude that prospective juror no. 655 expressed toward
her criminal history, the State failed to ask a single question about this
subject, or any questions at all. As explained below, if the State was
concerned with prospective juror no. 655's attitude toward the criminal
justice system or her inability to serve fairly on a jury, as it apparently
was about prospective juror no. 189, the State could have questioned her.
Thus, the record demonstrates the existence of disparate questioning.

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 by overruling Sanchez's objection to the State's peremptory challenge, and
this clearly erroneous decision mandates reversal.
Prospective juror no. 662
During voir dire, the district court questioned prospective
juror no. 662 about her employment. She responded that she had been
working for three years at a local theme park, where she ran ticket sales
and the cash register. Thereafter, the State questioned prospective juror
no. 662 about what she does outside of her career. She responded that she
.
`usually just [took] care of' her mother. When the State asked if there
were any groups to which she belonged or certain hobbies that she liked,
she stated that she "[drew] a lot." Finally, the State asked if she took any
art classes, to which she replied that she "lack[ed] the motivation."
The State questioned three other jurors about their hobbies:
prospective juror no. 755, prospective juror no. 705, and prospective juror
no. 714. 6 First, prospective juror no. 755 stated that he "read a lot,"
including such material as "business stuff' and "anything related to HVAC
and energy." When the State asked about what he enjoyed doing for fun,
he stated he was an "[o]utdoors guy" who liked to "be outside" and "stay
active." He mentioned participating in a bowling league, as well as
playing softball. Second, prospective juror no. 705 stated she worked a lot
and was also a student. In her spare time, she "like[d] to run." Then, the
State questioned her about her studies, to which she elaborated that she
was a student of psychology and wanted to pursue social work. Finally,
the State asked prospective juror no. 714 about her hobbies. She stated

6 We
note that the record is unclear as to whether prospective juror
no. 755, prospective juror no. 705, and prospective juror no. 714 were
minority or nonminority prospective jurors.

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 that she was also a student of psychology. She wanted to pursue
psychiatry and thus "spen[t] a lot of time on that." When the State asked
if she wanted to be a psychiatrist, she replied, "Yes."
Again, the record demonstrates that the State's explanation
for its peremptory challenge of prospective juror no. 662 was a pretext for
racial discrimination. Significantly, her answers parallel those of other
prospective jurors. Outside of her employment, prospective juror no. 662
cared for her mother and enjoyed drawing. Likewise, three other
prospective jurors briefly discussed their interests outside of their work or
future career path. Similar to prospective juror no. 662, none of these
jurors suggested that their hobbies have evolved into passions that require
strenuous training or enrollment in courses. In fact, prospective juror no.
714 failed to answer the State's question altogether, only emphasizing
that she studied psychology but declining to mention any interests outside
of her future career path. However, prospective juror no. 662 was the only
juror whose character was doubted. To question prospective juror no.
662's interest in the case, simply because she has not formally been
trained as an artist, in addition to the responsibilities of taking care of her
mother and working at a career for three years that involves the handling
of her company's finances, is an argument that "reeks of afterthought."
Miller-El, 545 U.S. at 246.
Further, if the State was truly concerned that prospective
juror no. 662's lack of motivation to enroll in art classes would somehow
impact her ability to serve fairly on a jury, the State could have questioned
her further Instead, the State simply refused to do so, failing to ask any
additional questions as to this topic. Finally, as we discussed above, the
district court did not conduct a proper analysis under Batson. As the

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 dissent notes, lilt is almost impossible for this court to determine if the
reason for the peremptory challenge is pretextual without adequate
development in the district court." Hawkins v. State, 127 Nev. 575, 579,
256 P.3d 965, 968 (2011). We agree. It is for this very reason that we
determine that the district court failed to develop an adequate record
before ruling on the Batson objection. Instead of conducting a sensitive
inquiry into circumstantial and direct evidence of intent and considering
all relevant circumstances, as we have previously advised, the district
court tacitly agreed with the State's representations without any
significant analysis. Thus, we conclude that the district court erred by
overruling Sanchez's objection to the State's peremptory challenge, and
this clearly erroneous decision mandates reversal.
Considering all relevant circumstances in this case, sufficient
evidence exists to demonstrate a pretext of racial discrimination. In
evaluating the use of peremptory challenges in a racially discriminatory
way, we must ensure that the State and the district court comply with
Batson; otherwise, if we decline to do so, we compromise a defendant's
right to a fair trial and undermine the public confidence upon which our
system of criminal justice depends. As recently emphasized by the United
States Supreme Court, "[t]wo peremptory strikes on the basis of race are
two more than the Constitution allows." Foster v. Chat man, 578 U.S.
136 S. Ct. 1737, 1755 (2016). Accordingly, we

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 ORDER the judgment of conviction REVERSED AND
REMAND this matter to the district court for proceedings consistent with
this order.

C.J.
Parraguirre

CCet f
Douglas

J.

Gibbons

cc: Hon. Stefany Miley, District Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk

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 PICKERING, J., with whom HARDESTY, J., agrees, concurring in part
and dissenting in part:
Batson v. Kentucky, 476 U.S. 79, 96-98 (1986), directs a three-
step analysis to determine whether a peremptory challenge violates the
Equal Protection Clause of the Fourteenth Amendment. "First, a
defendant must make a prima facie showing that a peremptory challenge
has been exercised on the basis of race; second, if that showing has been
made, the prosecution must offer a race-neutral basis for striking the juror
in question; and third, in light of the parties' submissions, the trial court
must determine whether the defendant has shown purposeful
discrimination." Snyder v. Louisiana, 552 U.S. 472, 476-77 (2008)
(internal quotations omitted). Here, the State concedes Sanchez's prima
facie showing, and Sanchez does not creditably deny that the reasons the
State gave for its peremptory challenges qualified as race neutral. See
Purkett v. Elem, 514 U.S. 765, 767-68 (1995) (noting that under Batson,
"once the opponent of a peremptory challenge has made out a prima facie
case of racial discrimination (step one), the burden of production shifts to
the proponent of the strike to come forward with a race-neutral
explanation (step two)," but that "Mlle second step of this process does not
demand an explanation that is persuasive, or even plausible," just one
that is "facial[lyi valid[ I"). Thus, only Batson's third step—purposeful
racial discrimination by the prosecuting attorney—is at issue on this
appeal.
The majority reverses Sanchez's judgment of conviction based
on its finding that the prosecuting attorney engaged in purposeful racial
discrimination when she exercised a peremptory challenge against jurors

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 nos. 655 and 662. "Whether a prosecutor intended to discriminate on the
basis of race in challenging potential jurors is, as Batson recognized, a
question of historical fact." Hernandez v. New York, 500 U.S. 352, 367
(1991). As a question of fact, a district court's finding "on the issue of
discriminatory intent" is binding on the reviewing court unless the product
of "clear error." Conner v. State, 130 Nev., Adv. Op. 49, 327 P.3d 503, 508
(2014), cert. denied, U.S. , 135 S. Ct. 2351 (2015). Under the "clear
error" standard, a reviewing court "will not reverse a lower court's finding
of fact simply because [it] would have decided the [factual dispute]
differently." Snyder, 552 U.S. at 486 (Thomas, J., dissenting) (quoting
Easley v. Cromartie, 532 U.S. 234, 242 (2001)). Rather, "a reviewing court
must ask 'whether, on the entire evidence, it is left with the definite and
firm conviction that a mistake has been committed." Id. at 487 (quoting
Easley, 532 U.S. at 242).
Here, direct evidence that improper racial discrimination
motivated the prosecutor's peremptory challenges of jurors nos. 655 and
662 does not appear. But cf. Foster v. Chatman, 578 U.S. , 136 S. Ct.
1737, 1743 (2016) (reversing as clearly erroneous the Georgia courts'
rejection of a capital defendant's Batson challenge, where the state
prosecutor's file, obtained post-trial pursuant to an open records request,
highlighted every black juror's name, marked each as a "definite NO," and
indicated, "If it comes down to having to pick one of the black jurors, [this
one] might be okay"). Thus, we must determine whether the record before
us contains sufficient circumstantial evidence of unlawful racial
discrimination by the prosecutor to deem the district court's contrary
finding clear error. As proof of the prosecutor's peremptory challenges
were racially motivated, both Sanchez and the majority rely chiefly on

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 comparative juror analysis—comparing the voir dire answers of non-
minority jurors whom the State kept with those of the minority jurors it
challenged, to show the reasons given for the challenges were pretextual.
Compare Ford v. State, 122 Nev. 398, 405, 132 P.3d 574, 578-79 (2006)
(discussing comparative juror analysis), with People v. Lenix, 187 P.3d
946, 964 (Cal. 2008) (noting that "[c]omparative juror analysis is a form of
circumstantial evidence" and that, while "circumstantial evidence may
support a logical conclusion that the disputed fact is
true[,] . . . information may often be open to more than one reasonable
deduction"). Given the "particular care [that] must be taken when relying
on circumstantial evidence," Lenix, 187 P.3d at 964, especially where, as is
the case with juror no. 662, the evidence was not developed or argued in
the district court, I cannot agree that the district court committed clear
error when it rejected the defense's Batson challenges to the prosecutor's
strike of jurors nos. 655 and 662.
A. Juror No. 655
The district court conducted much of the voir dire in this case.
During the court's questioning, two jurors, juror nos. 189 and 655,
disclosed that they had prior criminal histories. The defense and the
prosecution disagreed on what they saw and heard when these jurors were
questioned. To defense counsel, the two jurors appeared indistinguishable
except that juror no. 655 was African-American and juror no. 189 was not;
both had been accused of crimes in the past, with juror no. 189's charge
being more serious. But the prosecutor saw things differently. First, she
expressed surprise at the Batson challenge, stating that she "didn't even
realize that [juror no. 655] was African American." Then, she volunteered
that she struck juror no. 655 yet kept juror no. 189 because, after juror no.

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 655 "indicated that she had been accused of a crime, and when she was
responding to the questions, I felt like she still had an attitude in that,"
while juror no. 189 "went on to elaborate that he now respects—respects
the law. He felt that he was treated very fairly." In response, defense
counsel disputed the prosecutor's observations—"And she [juror no. 655]
had an attitude? . . I noticed no discernible attitude. . I didn't see
anything"—prompting the prosecutor to reiterate, "with [juror no. 655], I
felt that when she was answering Your Honor's questions [about her
criminal history] she was very short, and she seemed to have an attitude
in the tone of her voice."
The district judge deemed the reason the prosecutor gave for
striking juror no. 655 (negative attitude when asked about prior theft
charges) to be "race-neutral," then observed that "a number of individuals
who appear to be of other ethnic d[esc]ent" remained in the venire. The
district judge did not stop there, as the majority suggests. Defense counsel
asked the court to address and resolve the "third part about Batson. . . not
just that there is race-neutral reasons but that the Court also visibly saw
the same thing that the prosecution saw," which the district judge then
did: "what I saw would back up [the] State's contentions. The

'Evidently, juror no. 189 had been convicted of a felony 40 years
earlier, but the conviction was expunged and his civil rights restored; he
also had a more recent domestic violence arrest. The defense describes
juror no. 189 as white and represents that the 24 prospective jurors
qualified by the court's voir dire included only three African-Americans,
while the State represents that the 24 prospective jurors included an
unspecified number of Latinos and other minorities, an assertion the
district court confirmed.

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 representations she [the prosecutor] made are consistent with what was
said during voir dire."
What we have, then, are divergent accounts by the trial
lawyers of how jurors nos. 189 and 655 reacted in voir dire to the judge
questioning them about their criminal histories—with the district court
explicitly endorsing the prosecutor's account. Applying the "clear error"
standard our caselaw and that of the Supreme Court establish, this court
should uphold, not reverse, the district court as to juror 655. Hernandez,
500 U.S. at 369 ("where there are two permissible views of the evidence,
the factfinder's choice between them cannot be clearly erroneous")
(quoting Anderson v. Bessemer City, 470 U.S. 564, 574 (1985)).
A not dissimilar record came before the Supreme Court in
Hernandez, where a state-court defendant raised a Batson challenge to the
prosecution's peremptory strikes against two Latino jurors, which, with
the prosecution's previous for-cause strikes, left the jury without any
Latino or Hispanic members. 2 The defendant in Hernandez, himself a
Latino, argued that the race-neutral reason given for the strikes (that
bilingual jurors might second-guess the court interpreter) was pretextual
and that the New York state courts clearly erred when they held
otherwise. See 500 U.S. at 366-67. Writing for a three-judge plurality, 3

2 TheHernandez opinion notes that it refers to the excluded jurors as
"Latino" because the parties did so in their briefs, though they referred to
them as "Hispanic" in the trial court. 500 U.S. at 355. We do the same.

3 Justices
O'Connor and Scalia concurred, but "believe[d] that the
plurality opinion goes further than it needs to in assessing the
constitutionality of the prosecutor's asserted justification for his
continued on next page . . .

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 Justice Kennedy rejected the proposition that a reviewing court can or
should second-guess a trial court's assessment of the demeanor of the
lawyer exercising the strike in deciding whether the race-neutral reason
given was genuine or a pretext for invidious racial discrimination. Id. at
364. "As with the state of mind of a juror, evaluation of the prosecutor's
state of mind based on demeanor and credibility lies peculiarly within a
trial judge's province." Id. at 365 (internal quotation omitted).
Continuing, Justice Kennedy wrote:
We discern no clear error in the state trial
court's determination that the prosecutor did not
discriminate on the basis of the ethnicity of Latino
jurors.... [W]here there are two permissible
views of the evidence, the factfinder's choice
between them cannot be clearly erroneous. The
trial court took a permissible view of the evidence
in crediting the prosecutor's explanation. Apart
from the prosecutor's demeanor, which of course
we have no opportunity to review, the court could
have relied on the facts that the prosecutor
defended his use of peremptory challenges without
being asked to do so by the judge, that he did not
know which jurors were Latinos, and that the
ethnicity of the victims and prosecution witnesses
tended to undercut any motive to exclude Latinos
from the jury. Any of these factors could be taken
as evidence of the prosecutor's sincerity. The trial
court, moreover, could rely on the fact that only
three challenged jurors can with confidence be
identified as Latinos, and that the prosecutor had

. . . continued

peremptory strikes." Hernandez, 500 U.S. at 372 (O'Connor, J.,
concurring).

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 a verifiable and legitimate explanation for two of
those challenges. Given these factors, that the
prosecutor also excluded one or two Latino
venirepersons on the basis of a subjective criterion
having a disproportionate impact on Latinos does
not leave us with a definite and firm conviction
that a mistake has been committed.
Id. at 369-70 (citation omitted) (internal quotations omitted).
The defense's pretext claim as to juror no. 655 required the
district court to assess the demeanor of both jurors and that of the
prosecutor who exercised the strike against her. See Thaler v. Haynes,
559 U.S. 43, 49 (2010) ("when the explanation for a peremptory challenge
invoke[s] a juror's demeanor, the trial judge's firsthand observations are of
great importance") (alteration in original; internal quotations omitted).
These are fact- and credibility-intensive determinations. And here, as in
Hernandez, the record contains evidence supporting the district court's
determination that the prosecutor did not strike juror no. 655 based on her
race, including that the prosecutor defended her peremptory strike
without being asked to do so, see Hernandez, 500 U.S. at 369, that the
prosecutor did not know juror no. 655 was African-American until after
she exercised the strike, see id.; United States v. Watford, 468 F.3d 891,
913 (6th Cir. 2006) (where the prosecutor represented that he did not
know the struck juror was African-American, "we are hard-pressed, on the
record before us, to find discriminatory intent inherent in the proffered
explanation"), and the district court's acceptance of the prosecutor's
observations about the demeanor of jurors nos. 189 and 655.
The majority cites the prosecutor's "disparate questioning" of
jurors nos. 189 and 655 to support its clear-error finding. Respectfully, I
disagree. As noted, the district court conducted most of the voir dire in
this case. Of the 24 prospective jurors the district court preliminarily
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 qualified, the prosecutor questioned just seven of them, leaving the
remaining 17 in peace. While the prosecutor did question juror no. 189,
she asked him just three questions, not the "series of questions" the
majority depicts. And, the questions asked were benign, more designed to
introduce the prosecutor to the jury or, maybe, to tease out a basis for a
possible for-cause challenge of that juror, than to differentiate a white
juror with a criminal history from an African-American juror with less of
one. In this and in the brevity of the questioning, the prosecutor's voir
dire did not differ much from the defense's similarly limited voir dire. It
evidenced follow-up on a juror with an expunged felony in his background,
not pretext.
B. Juror No. 662
The majority also finds a Batson violation with respect to juror
no. 662. It bases its finding on a comparative juror analysis it undertakes
between juror no. 662, whom the State explained it struck because she
was young and stated that she "lacked motivation," and jurors nos. 705,
714, and 755, whom the majority finds similarly situated to juror no. 662,
except that they were not peremptorily challenged. Of note, the defense
did not make in district court the comparative juror argument the
majority now accepts. Here is the complete transcript of the comparative
juror analysis offered in district court as to juror no. 662:
Defense: I would say, with respect to [juror no.
662], the fact that she's young, there's a number of
young people on the jury of different ethnicity. So
that doesn't matter. That's completely pretextual.
Interested in art, I mean, I don't know what that
has to do with anything regarding her
qualifications to be a juror. I mean, everyone kind
of described things that they do in their lives.

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 And, I think [the prosecutor] said she looked
bored. I mean, [quite] frankly, Judge, most of the
people up there look pretty bored. It's a jury trial.
No one likes to sit on jury duty.
The majority's finding of similarity between juror no. 662, on the one
hand, and jurors nos. 705, 714, and 755, on the other hand, thus depends
entirely on its reading of the voir dire transcript. The district court was
not asked to, and did not, make findings respecting the similarity among
these jurors and whether, given those similarities, the prosecutor's stated
concern about juror no. 662's statement that she "lack[s] motivation" was a
pretext for illegal race discrimination.
"It is almost impossible for this court to determine if the
reason for the peremptory challenge is pretextual without adequate
development in the district court." Hawkins v. State, 127 Nev. 575, 579,
256 P.3d 965, 968 (2011). Especially is this true in the context of
comparative juror evidence sought to be developed for the first time in the
context of a Batson, challenge on appeal. As the California Supreme Court
noted in Lenix, 187 P.3d at 962, "comparative juror evidence is most
effectively considered in the trial court where the defendant can make an
inclusive record, where the prosecutor can respond to the alleged
similarities, and where the trial court can evaluate those arguments based
on what it has seen and heard." Compare United States v. Houston, 456
F.3d 1328, 1338 (11th Cir. 2006) (when comparative juror analysis is
raised for the first time on appeal, the appellate court lacks the "benefit of
the prosecutor's explanation for why he struck the black venire members
rather than the white venire members now alleged to be similarly
situated" and the "benefit of a finding by the trial judge as to the
credibility of such explanations"), with State v. Shipman, 64 A.3d 338, 346
(Conn. App. 2013) (rejecting comparative juror claim made for the first
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 time on appeal where, as here, the races of the relevant venirepersons
were not established in the district court, requiring the reviewing court to
speculate).
This appeal illustrates the hazards of undertaking
comparative juror analysis for the first time on appeal. To begin with, as
the majority notes, ante at 10 n.6, we do not even know "whether
prospective juror no. 755, prospective juror no. 705, and prospective juror
no. 714 were minority or nonminority prospective jurors," given that no
comparative juror argument was made as to them in district court. See
Shipman, 64 A.3d at 346. We also do not know their ages, that of juror no.
662, or that of any other juror (except juror no. 124, aged 20, who was
excused for cause). And, although the majority finds otherwise, the record
suggests fewer similarities than differences between juror no. 662, on the
one hand, and jurors nos. 705, 714, and 755, on the other hand. Thus, voir
dire established that juror no. 662 had been employed at Circus Circus
Adventuredome Theme Park in "ticket sales and the cash register" for
three years; that this was the only job she had held; that apart from
looking after her mom, and liking to draw, she was not married and did
not "have any groups that [she] belong[ed] to or certain hobbies that [she]
like[d] to do"; and that when asked, "Have you ever taken any art
classes," she stated, "No. I lack the motivation." Juror nos. 705, 714, and
755, by contrast, had worked for a number of years; juror nos. 705 and 714
were, in addition to their jobs, attending the College of Southern Nevada
to earn their degrees to pursue careers in social work and psychiatry; and
juror no. 755, a mechanical contractor with a background in HVAC,
professed to spend his time reading journals related to his work. Because
the comparative juror analysis undertaken on this appeal was not made in

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 the district court, we do not know how the district court perceived the
demeanor of and differences among these jurors. What we do know,
though, from the record itself is that the similarities of these jurors is not
so striking that the district court committed clear error in not sua sponte
rejecting the prosecutor's peremptory challenge of juror no. 662 based on
her similarity to juror nos. 705, 714, and 755. While comparative juror
analysis has been undertaken for the first time on appeal in certain
instances, it is inappropriate to do so where, as here, the record is not
adequate to permit meaningful analysis of the comparisons urged.
C. Lack of findings.
As a reviewing court, "we traditionally presume, absent some
indication in the record suggesting otherwise, that trial judges . . . know
the law and apply it in making their decisions." United States v. Vann,
776 F.3d 746, 756 (10th Cir.), cert. denied, U.S. 136 S. Ct. 434
(2015). Despite this rule, the majority faults the district court for not
making more elaborate findings than it did. But the district court's
findings were driven by, and commensurate with, the arguments counsel
made. CI Thaler, 559 U.S. at 49 (reversing and remanding a Court of
Appeals decision finding a state-court Batson violation based on a lack of
express findings by the trial court and noting that neither Batson nor its
progeny supports a "categorical rule" that absent certain findings a
reviewing court should automatically find a Batson violation). As to juror
no. 655, the district judge credited the prosecutor's account, as she was
entitled to do, including that juror no. 655 exhibited a negative attitude
toward the government that juror no. 189 did not. As for juror no. 662, the
district court would have had to be prescient to make comparative juror
findings as to jurors nos. 705, 714, and 755, since comparative juror

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 analysis as to them was not argued in district court. Hawkins, 127 Nev. at
579, 256 P.3d at 967 ("Batson does not impose 'an independent duty on the
trial court to pore over the record and compare the characteristics of
jurors, searching for evidence of pretext, absent any pretext argument or
evidence presented by counsel.") (quoting Johnson v. Gibson, 169 F.3d
1239, 1248 (10th Cir. 1999)). Logically, the record supports that Sanchez
failed to carry his burden of demonstrating to the district court that the
prosecutor's peremptory strikes amounted to purposeful discrimination. It
is inappropriate, I submit, to transform this failure of proof into clear error
by the district court. See Vann, 776 F.3d at 755.
For these reasons, with the exception of footnote 1 of the
majority's order, in which I join, I respectfully dissent.

A")

Pickering

I concur:

tee4-41; , J.
Hardesty

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