State v. Guthmiller

843 N.W.2d 364

2014 S.D. 7

STATE of South Dakota, Plaintiff and Appellee,

v.Richard W. GUTHMILLER, Defendant and Appellant.

No. 26695.

Supreme Court of South Dakota.

Considered on Briefs on Jan. 14, 2014.

Decided Feb. 12, 2014.

Marty J. Jackley, Attorney General, Ann F. Mines, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

John S. Rusch of Rensch Law, Prof. LLC, Rapid City, South Dakota, Attorneys for defendant and appellant.

ZINTER, Justice.

[¶ 1.] A jury found Richard Guthmiller guilty of eight counts of making false or fraudulent sales tax returns. On appeal, Guthmiller argues that the circuit court erred in denying his Batson challenges to three peremptory strikes exercised by the State. He also argues that the court erred in denying his motion for judgment of acquittal. We affirm the circuit court's denial of the motion for judgment of acquittal, but we remand for the court to undertake the required Batson analysis.

Facts and Procedural History

[¶ 2.] In 1995, Richard Guthmiller moved to Rapid City where he worked for automotive body repair businesses. In January 2008, he started his own automotive body repair business. That same month, he applied for and received a sales tax license from the South Dakota Department of Revenue. The Department cancelled his license in October 2008 because Guthmiller indicated on his sales tax return that he was “out of business.” In March 2009, the Department discovered that Guthmiller was still operating his business and informed him that he needed to reapply. Guthmiller reapplied and was reissued a license.

[¶ 3.] While operating his business during eight tax-reporting periods, Guthmiller filed sales tax returns. He reported sales on each return, but he indicated that his sales were exempt. A subsequent investigation led the Department to believe that Guthmiller was filing false or fraudulent returns. Guthmiller was indicted on eight counts of making false or fraudulent sales tax returns in an attempt to defeat or evade the tax in violation of SDCL 10–45–27.3 and SDCL 10–45–48.1(1).¹

[¶ 4.] Guthmiller moved to dismiss the indictment. He claimed that under the terms of the Fort Laramie Treaty of 1868, Rapid City was located in Indian Country. Based on this claim and on his tribal membership, Guthmiller argued that South Dakota did not have authority to tax his Rapid City business. The motion was denied. After Guthmiller's unsuccessful petition for an intermediate appeal before this Court, his case proceeded to trial.

[¶ 5.] During voir dire, Guthmiller's attorney asked the veniremembers for a “show of hands of anybody ... who's partially even in the smallest amount Native American.” Although the record does not reflect the actual number of Native American veniremembers, the circuit court stated that “there [were] at least five identified.” No other questions were asked about race.

[¶ 6.] Following voir dire, the State exercised its peremptory strikes. Guthmiller objected to three of those strikes, arguing that they violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In response, the State tendered its reasons for the strikes. After brief remarks, the circuit court summarily denied Guthmiller's Batson challenges without giving a reason for its decision.

[¶ 7.] During its case-in-chief, the State called the Department employee who investigated Guthmiller. The investigator presented evidence indicating that Guthmiller performed taxable services during each tax-reporting period but failed to remit sales tax. Although Guthmiller ostensibly reported all his gross sales during each period, the investigator also presented evidence indicating that Guthmiller underreported his sales on all returns.

[¶ 8.] Another Department employee provided evidence relating to Guthmiller's knowledge of sales tax laws. The employee testified that she had explained to Guthmillerhow sales tax applied to his business. She testified that she specifically told him “all [his] customers were subject to sales tax unless he was given an exemption certificate.” According to her, Guthmiller seemed to understand her explanation. In addition to her conversations with Guthmiller, the employee testified that she also provided him with publications explaining how sales tax applied to his business.

[¶ 9.] At the close of the State's case-in-chief, Guthmiller moved for judgment of acquittal. He argued that the State had failed to prove that he had the specific intent to defeat or evade sales tax. The circuit court denied the motion.

[¶ 10.] Guthmiller then presented a defense that he lacked the specific intent to defeat or evade sales tax. He testified that he believed Rapid City was located in Indian Country, and therefore, as a tribal member, his sales were exempt from state tax laws. The jury ultimately returned a guilty verdict on all counts.

Decision

[¶ 11.] On appeal, Guthmiller raises two issues. He first argues that the circuit court's Batson analysis was incomplete, thus necessitating remand to allow the court to engage in the missing analysis.²

[¶ 12.] Under Batson and its progeny, a three-step analysis is used to determine whether peremptory strikes were based on purposeful racial discrimination.

First, the defendant must make out a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. Second, once the defendant has made out a prima facie case, the burden shifts to the State to explain adequately the racial exclusion by offering permissible race-neutral justifications for the strikes. Third, [i]f a race-neutral explanation is tendered, the trial court must then decide ... whether the opponent of the strike has proved purposeful racial discrimination. ³

State v. Scott, 2013 S.D. 31, ¶ 16, 829 N.W.2d 458, 465–66 (alteration in original) (quoting Johnson v. California, 545 U.S. 162, 168, 125 S.Ct. 2410, 2416, 162 L.Ed.2d 129 (2005)) (internal citations and quotation marks omitted).

[¶ 13.] In this case, the following dialogue is the entire record of the Batson challenge and the circuit court's analysis.

Defense Counsel: Judge, at this time, the Defense moves to challenge the exclusion of all minorities from the jury pool. Prior to the selection process, there was at least three minorities that were physically identifiable, those being [S.A.], [J.H.] appeared to be black, and [D.B.], who appeared to be black, all of which have been struck.

Ultimately, following the selection process, there appears not to be a single minority on the jury panel, despite the fact that at the beginning of the panel there were several individuals that indicated minority status.

Court: [State].

State: Okay. You had [D.B.]? I did not know that he was a minority. I will give you my reasons for all three, okay?

[D.B.] and [S.A.] each had prior convictions. I had them marked before we came into the jury room [sic]. [S.A.] actually had both. He was convicted and had family members convicted. I didn't have access to Triple I's. I don't know what those crimes are, if egregious or something minor. That was a red flag for me, and so that's why I exercised.

As for [J.H.], [J.H.] I guess concerned us. I didn't have anything marked on him. I was neutral coming in. During voir dire, I did not see him respond to any question. I didn't hear him say a word the entire morning. I didn't even see him shake his head or nod his head during—while I was questioning.

I'm not sure if he gestured or responded while [Defense Counsel] was up there. I did not see that he did. And there were even times, you know, where I asked for assurances, can you follow—can you follow the law? Can you give each side a fair shake? And you could see the entire body of the jury shaking their head except for [S.A.] actually, and [J.H.], who were sitting next to each other, so it was kind of conspicuous. That's why I exercised on those three.

Court: All right. Well, when the question was asked whether there [were] any Native Americans here, I saw at least five hands go up, and I'm not sure if there were more, but I counted five for sure. They were not up very long. They were not identified. I don't know whether or not defense or plaintiffs struck the people that were up. But I know there was at least five identified. And I guess there's two that we don't know anything about.

I'm assuming Mr. Guthmiller is Native American. I don't know what his percentage is. I have no idea. It's not part of the record at this time.

Guthmiller: Under Federal Guidelines, I'm recognized.

Court: I'm just saying. That's my question. But I'm going to deny your motion.

[¶ 14.] The State contends that the circuit court resolved the Batson challenges under step one, finding that Guthmiller had not established a prima facie case. But during the Batson dialogue, the State never claimed that Guthmiller failed to establish his prima facie case. Instead, the State tacitly accepted Guthmiller's prima facie showing and proceeded to step two, explaining its reasons for striking the three minority veniremembers.

[¶ 15.] Thereafter, the court's questions suggested that it may have been considering whether Guthmiller satisfied his prima facie case. But the court did not indicate whether it found that Guthmiller failed to establish his prima facie case or whether he failed to carry his ultimate burden to prove purposeful racial discrimination. The court denied the challenges without analysis or explanation.

[¶ 16.] Under this record, we are unable to determine the circuit court's reason for denying the Batson challenges. We acknowledge that there are no “ ‘magic words' the trial court must use in order to fulfill a Batson analysis.” State v. Ryan, 2008 S.D. 94, ¶ 13, 757 N.W.2d 155, 159. For example, “a trial court implicitly conducts [the required] analysis when it accepts or rejects the State's explanations for use of its peremptory challenges.” Id. (emphasis...