State v. Lowmaster

OPINION FOLEY, Judge. Appellant Keith Lowmaster was convicted of assault in the second degree, Minn. Stat. § 609.222 (1984), for assaulting his wife with an ax. On appeal, he claims the prosecutor unfairly used a peremptory challenge on a Native American Indian ven-ireperson, that the court erred in ruling that his prior convictions were admissible for impeachment purposes, that the evidence was insufficient to prove he did not act in self-defense and that the court erred in imposing the presumptive guidelines sentence. We affirm. FACTS Appellant returned home on Saturday, August 81, 1985, at approximately 5:00 p.m. after a two night absence. His wife Rose was very upset with him and suspected that he was seeing another woman. Two friends who had spent the day with Rose were at the house when appellant returned. When appellant arrived, he walked up to the back door. He had been drinking. Rose yelled at him and told him to stay out, but appellant pushed the door open and entered. Rose continued to yell and began pushing appellant against the kitchen counter. She hit him several times but appellant just smiled. Rose noticed several hickeys on appellant’s neck and became very angry. She accused him of infi-dellity and pulled down his pants. While Rose called the police, appellant went into the living room, removed a ceremonial dancing ax from the wall and began swinging it around. Rose testified that appellant had swung an ax at her in the past. She grabbed a knife. Rose jabbed at appellant with the knife from a distance of four to five feet away. He swung the ax and hit her in the arm. At trial, appellant did not testify but claimed self-defense through the testimony of Rose and the two friends who were visiting her at the time of the incident. Appellant was convicted of assault in the second degree and sentenced to 60 months imprisonment. This appeal followed the denial of post-trial motions. ISSUES 1. Did the trial court err in determining that the prosecutor did not discriminate in using a peremptory challenge to strike a Native American Indian venireperson from the jury panel? 2. Did the trial court abuse its discretion in ruling that appellant’s prior convictions were admissible for impeachment purposes? 3. Does the evidence support the jury’s verdict that appellant did not act in self-defense and that he was guilty of assault? 4. Did the trial court abuse its discretion in imposing the presumptive guidelines sentence on appellant? ANALYSIS I In his motion for a new trial appellant claimed that the prosecutor was guilty of discrimination in using a peremptory challenge to strike the only Native American Indian venireperson from the jury panel. In Batson v. Kentucky, - U.S. -, 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986), a case decided one week before this trial, the United States Supreme Court announced a new test for determining whether there has been purposeful discriminatory selection of the venire based on the prosecutor’s exercise of peremptory challenges: To establish such a case, the defendant first must show that he is a member of a cognizable racial group * * * and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits “those to discriminate who are of a mind to discriminate.” * * * Finally, the *17 defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. This combination of factors in the empanelling of the petit jury, as in the selection of the venire, raises the necessary inference of purposeful discrimination. In deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances. For example, a “pattern” of strikes against black jurors included in the particular venire might give rise to an inference of discrimination. Similarly, the prosecutor’s questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose. These examples are merely illustrative. We have confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor’s use of peremptory challenges creates a prima facie case of discrimination against black jurors. Once the defendant makes a prima fa-cie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors. Though this requirement imposes a limitation in some cases on the full peremptory character of the historic challenge, we emphasize that the prosecutor’s explanation need not rise to the level justifying exercise of a challenge for cause. * * * But the prosecutor may not rebut the defendant’s prima facie case of discrimination by stating merely that he challenged jurors of the defendant’s race on the assumption — or his intuitive judgment — that they would be partial to the defendant because of their shared race. * * * Nor may the prosecutor rebut the defendant’s case merely by denying that he had a discriminatory motive or “affirming his good faith in individual selections.” [citation omitted] If these general assertions were accepted as rebutting a defendant’s prima facie case, the Equal Protection Clause “would be but a vain and illusory requirement.” [citation omitted] The prosecutor therefore must articulate a neutral explanation related to the particular case to be tried. The trial court then will have the duty to determine if the defendant has established purposeful discrimination. Id., at -, 106 S.Ct. at 1723-24 (citations omitted) (footnotes omitted). Here, the venireperson was struck because of the prosecutor’s belief that her occupational training as a home-health aid would make her more sympathetic to appellant’s claim of self-defense. The trial court, after reviewing Batson and hearing the arguments of counsel on the issue, concluded that there was no “systematic exclusion of persons of Indian race or any inappropriate exclusions” in the jury selection. While it is not entirely clear that the trial court applied the “purposeful discrimination” standard of Batson , from our review it appears that the prosecutor articulated a neutral explanation related to the case. We conclude that appellant did not establish purposeful discrimination. II In pretrial proceedings the trial court ruled that appellant could be impeached by prior felony convictions for arson and unauthorized use of a motor vehicle. Under the factors set out in State v. Jones, 271 N.W.2d 534 (Minn.1978) we find no abuse of discretion. See State v. Graham, 371 N.W.2d 204, 208-09 (Minn.1985). III The record supports the jury’s verdict. The State proved that appellant did not act in self-defense when he assaulted his wife with an ax. Appellant retrieved the ax while his wife was on the telephone. He swung it around before she grabbed a knife. The jury could have determined that appellant was the aggressor, that he made no effort to retreat or to avoid the danger. Further, the jury could easily have concluded that appellant used more *18 force than was necessary in defending himself from his wife’s assaults with the knife. IV Based on a severity level VI offense and a criminal history of 6, appellant was sentenced to 60 months imprisonment. Ordinarily, a reviewing court will not interfere with a presumptive guidelines sentence and reverse a refusal to depart only in rare cases. State v. Kindem, 313 N.W.2d 6, 7 (Minn.1981). Only a rare case would warrant reversal of a refusal to depart. Id. This is not that rare case. We find no abuse of discretion in the trial court’s refusal to depart. DECISION Affirmed. CRIPPEN, J., dissents.