State v. Rayford, A19-0818

State of Minnesota, Respondent, v. DaJuan Wendell Webster Rayford, Appellant.

A19-0818

STATE OF MINNESOTA IN COURT OF APPEALS

April 27, 2020

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2018).

Affirmed in part, reversed in part, and remanded

Larkin, Judge

Hennepin County District Court

File No. 27-CR-18-16931

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Sarah J. Vokes, Assistant County Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Davi E. Axelson, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge; Worke, Judge; and Florey, Judge.

UNPUBLISHED OPINION

LARKIN, Judge

Appellant challenges his convictions for two driving-while-impaired (DWI) offenses, arguing that the district court erred by rejecting his challenge to the state's exercise of a peremptory strike during voir dire and by entering a judgment of conviction for each offense. Because the district court did not err in ruling on the state's exercise of the peremptory challenge, we affirm in part. But because caselaw permits only one conviction for the two DWI offenses in this case, we reverse one of the convictions and remand for the district court to vacate that conviction.

FACTS

In July 2018, respondent State of Minnesota charged appellant DaJuan Wendell Webster Rayford with felony first-degree DWI—alcohol concentration of 0.08 or more, felony first-degree DWI—driving under the influence of alcohol, and gross misdemeanor driving after cancellation. An October 2018 jury trial on the charges resulted in a mistrial.

The case was retried in January 2019. The jury venire consisted of 24 prospective jurors. On the juror-profile list, 20 venire members self-identified as white, three self-identified as black or African American, and one self-identified as two or more races. The state exercised a peremptory strike against venire member L, who had self-identified as two or more races. Rayford challenged the state's peremptory strike, and the district court rejected his challenge.

The jury found Rayford guilty as charged, and the district court entered a judgment of conviction for each offense. The district court sentenced Rayford to serve 51 months inprison for DWI—alcohol concentration of 0.08 or more and a concurrent term of 365 days for driving after cancellation. The district court did not sentence the offense of DWI—driving under the influence of alcohol.

Rayford appeals.

DECISION

I.

Rayford contends that the district court erred by denying his challenge to the state's peremptory strike of venire member L, which was based on Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986). "In Batson v. Kentucky, the United States Supreme Court held that the exclusion of prospective jurors through peremptory challenges is subject to the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution." State v. Harvey, 932 N.W.2d 792, 810 (Minn. 2019) (citing Batson, 476 U.S. at 89, 106 S. Ct. at 1719). A peremptory challenge that is used against a prospective juror based on the juror's race "denies equal protection both to the prospective juror, because it denies [him] the right to participate in jury service, and to the defendant, because it violates his right to be tried by a jury made up of members selected by nondiscriminatory criteria." Id. at 810-11 (quotation omitted).

The Batson Court articulated a three-step process for determining whether a peremptory challenge was motivated by racial discrimination. Id. at 811; see also State v. Carridine, 812 N.W.2d 130, 136 (Minn. 2012) ("To determine whether a peremptory strike was discriminatory, we apply the three-step test articulated by the United States Supreme Court in Batson v. Kentucky."); Minn. R. Crim. P. 26.02, subd. 7(3) (adopting the Batsonthree-step process). First, a defendant must establish a prima facie case of purposeful discrimination by showing "(1) that a member of a protected racial group has been peremptorily excluded from the jury and (2) that circumstances of the case raise an inference that the exclusion was based on race." State v. Blanche, 696 N.W.2d 351, 364-65 (Minn. 2005). A district court "should consider all relevant circumstances in deciding whether an inference of discrimination might exist." Id. at 365. Second, if the objecting party establishes a prima facie case of racial discrimination, "the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation." Id. at 364 (quotation omitted). Third, "[i]f a race-neutral explanation is tendered, the [district] court must then decide . . . whether the opponent of the strike has proved purposeful discrimination." Id. at 364-65 (quotation omitted).

The existence of racial discrimination in the use of a peremptory challenge is a factual determination. State v. Diggins, 836 N.W.2d 349, 355 (Minn. 2013). This court gives "great deference to the district court's [Batson] ruling and will uphold the ruling unless it is clearly erroneous." Id. (quotation omitted). This deference recognizes "that the record may not reflect all of the relevant circumstances that the court may consider." State v. Pendleton, 725 N.W.2d 717, 724 (Minn. 2007).

In district court, Rayford argued that he had made a prima facie showing of purposeful discrimination because although "[t]here [were] other people of color on the [jury] panel . . . they [were] all female" and the state had stricken venire member L, "the single black man on [the] jury panel." Rayford also argued that the state had not stricken a white juror who, like L, had expressed concern about the believability of a witness in acase with only one witness. The state countered that three black jurors had been seated on the jury and that, therefore, Rayford had not met his burden of proving a prima facie case.

The Minnesota Supreme Court has "consistently held [that] the mere removal of a member of a racial group does not necessarily establish a prima facie case [of discrimination]—an inference of racial discrimination based on the surrounding circumstances is also required." State v. Onyelobi, 879 N.W.2d 334, 348 (Minn. 2016). For example, an inference of racial discrimination can be drawn upon "proof of disproportionate impact upon the racial group, [such as when] the prosecutor totally excluded all blacks from the venire." State v. Moore, 438 N.W.2d 101, 107 (Minn. 1989).

Conversely, the Minnesota Supreme Court has relied on the inclusion of other jurors of color on the jury to conclude that there was no inference of discrimination. See, e.g., Harvey, 932 N.W.2d at 815 (concluding that the district court properly considered "that one African-American venire member had already been seated" on the jury); State v. Wilson, 900 N.W.2d 373, 382 (Minn. 2017) (determining that there was no inference of discrimination in part because "the State accepted one black juror"); Onyelobi, 879 N.W.2d at 348 (noting that because the defendant did not identify any other circumstance raising an inference of discrimination, it was significant that a minority venire member was selected before the state struck a person of color); State v. White, 684 N.W.2d 500, 507 (Minn. 2004) (concluding that defendant had not established a prima facie case in part because a minority member "had already been accepted as a juror and eventually, she would serve as the foreperson of the jury").

In ruling that Rayford failed to make a prima facie case, the district court reasoned that two other jurors "who identified as African American" had been selected for the jury, that "neither of them were struck," and that the exclusion was therefore not based on race. The district court's reasoning was consistent with caselaw. See Harvey, 932 N.W.2d at 815 ("The fact that an African-American was seated on the jury was a proper consideration at step one of the Batson analysis.").

But an inference of discrimination can be drawn from "other surrounding circumstances, such as the prosecutor's questions in voir dire, the stated reasons for exercising the peremptory challenge, or established past patterns of racial discrimination in the current jury's selection." Onyelobi, 879 N.W.2d at 345 (quotation omitted). Rayford argues that the state's peremptory strike of venire member L raised an inference of discrimination because the state did not strike two other jurors who expressed similar concerns about the believability of a witness in a case with only one witness. The district court rejected that argument, reasoning that venire member L was the "only person who really fully developed that line of questioning from the State" because Rayford objected and "cut off" the state's line of questioning on that topic. Because the views of the other two prospective jurors were not fully explored as a result of Rayford's objection, we cannot say that the district court erred by concluding that the circumstances did not raise an inference of discrimination.

Again, the district court's ruling on a Batson challenge is entitled to "great deference" and will not be reversed unless it was clearly erroneous. Diggins, 836 N.W.2d at 355. The district court rejected Rayford's Batson challenge at the first step of theanalysis, relying on a consideration that the supreme court has consistently recognized as proper. The district court did not err in concluding that Rayford failed to make a prima facie showing of racial discrimination and that his Batson challenge therefore failed.¹

II.

Rayford contends that the district court erred by entering a judgment of conviction for each DWI offense because they "arose from a single act and are criminalized under different subdivisions of the same statute." The state agrees.

"Upon prosecution for a crime, the actor may be convicted of either the crime charged...