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State v. Prasertphong9/2/2003
97).
A request by the trial court for an explanation of a peremptory strike is an implicit finding that a prima facie case of discrimination has been made. Trostle, 191 Ariz. at 12, 951 P.2d at 877; State v. Hernandez, 170 Ariz. 301, 304, 823 P.2d 1309, 1312 (App. 1991). Because the court made such a request here, Batson's first factor was satisfied and the burden then shifted to the State to come forward with a race-neutral explanation. Purkett v. Elem, 514 U.S. 765, 767 (1995). This second factor "does not demand an explanation that is persuasive, or even plausible." Id. at 768. Rather, all that is required is "facial validity of the prosecutor's explanation. Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral." Hernandez v. New York, 500 U.S. 352, 360 (1991) (plurality opinion). It is not until step three "that the persuasiveness of the justification becomes relevant--the step in which the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination." Purkett, 514 U.S. at 768 (citations omitted). "At that stage, implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination." Id.; see also Miller-El v. Cockrell, 123 S.Ct. 1029, 1040 (2003).
Here, the State claimed to have struck the juror because she preferred not to sit on the jury, explaining that she "tried every which way she could think of to get off the jury." This reason is facially race neutral. Therefore, under the third Batson factor, the trial court had to determine whether this reason was pretextual and actually based on race. Batson, 476 U.S. at 96-98; see also Purkett, 514 U.S. at 767; Hernandez, 500 U.S. at 358-59; Trostle, 191 Ariz. at 12, 951 P.2d at 877. The trial court did not expressly rule on this factor.
Nevertheless, the prosecutor offered several examples of the juror's statements that led him to believe that she did not want to serve. A strike based upon a juror's reluctance to serve is non-discriminatory. See State v. Sanderson, 182 Ariz. 534, 540, 898 P.2d 483, 489 (App. 1995). We defer to the trial court's implicit finding that the State's reason for striking this juror was non-discriminatory. Therefore, the trial court's denial of Prasertphong's Batson challenge was not clearly erroneous.
VIII.
Prasertphong next asserts the following five points of error with regard to jury instructions given at trial: (a) the trial court erred in declining to instruct on theft as a lesser included offense of armed robbery; (b) the court's mere presence instruction was incomplete; (c) the court erred in not instructing regarding "late joiners"; (d) the court erred by giving an incomplete accomplice instruction; and (e) the court gave an unconstitutional reasonable doubt instruction. We review a trial court's denial of a requested jury instruction for an abuse of discretion. State v. Bolton, 182 Ariz. 290, 309, 896 P.2d 830, 849 (1995). Review of whether an instruction correctly stated the law is de novo. State v. Orendain, 188 Ariz. 54, 56, 932 P.2d 1325, 1327 (1997).
A.
Prasertphong requested a jury instruction on theft as a lesser included offense of armed robbery, which the trial court refused. He argued that his statement to the police, as well as the evidence, supported his theory that he was merely present at the scene and had no intent to rob or kill anyone at the Pizza Hut. Thus, he maintains an instruction on the lesser included offense of theft was required.
Arizona Rule of Criminal Procedure 23.3 requires courts to instruct juries on offenses "ne
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