Opinion
No. 54112-9-I
Filed: August 1, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 03-1-04989-8. Judgment or order under review. Date filed: 04/02/2004. Judge signing: Hon. Julie a Spector.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, 1511 Third Avenue, Suite 701, Seattle, WA 98101.
Roc Pugh — Informational only (Appearing Pro Se).
Jason Brett Saunders, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Patrick Joseph Preston, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
Three working days before trial was scheduled to begin, and approximately two weeks after the trial court denied his request for new counsel, Rocky Pugh moved to proceed pro se, asserting that he did not trust his attorney, Andrew Stanton, and that he could better represent himself. The trial court denied Pugh's motion as untimely. During jury selection, the court accepted as race-neutral the State's reasons for using peremptory challenges against the only two African-American jurors in the venire. Pugh appeals both rulings. Because Pugh made his pro se request shortly before trial and the record indicates that granting his motion likely would have obstructed the orderly administration of justice, the trial court was within its discretion in denying the motion. Further, the record shows that the State provided at least one legitimate race-neutral reason for excusing each African-American juror. Thus, the trial court correctly found there was no discriminatory purpose. We affirm.
FACTS
On the morning of February 1, 2003, police arrested Rocky Pugh after Kelli Corrado positively identified him as the man who, just minutes earlier, had forcibly entered her apartment, showed her a saw blade, and asked if she had ten dollars which she handed over. The State charged Pugh with one count each of first degree robbery and first degree burglary. The public defender's office assigned Robert Flennaugh as Pugh's attorney. Pugh grew dissatisfied with Flennaugh, and on June 24, 2003, Flennaugh was allowed to withdraw so that Pugh could hire private counsel Bernie Potter and Ed Allen. On August 28, 2003, Potter and Allen moved to withdraw, citing several conflicts and a complete, irreparable breakdown in communications. The trial court granted the motion, and Andrew Stanton was assigned as Pugh's counsel.
The record makes several references to threats Pugh made against Potter and Allen which were revealed during counsels' in camera discussions with the trial court. The record does not include transcripts of the in camera discussions.
Problems developed between Pugh and Stanton, and on November 7, 2003, at the start of one of the omnibus hearings, Pugh unsuccessfully moved for new counsel. During the discussion that followed, Stanton indicated he still needed to interview several police officers, and the court granted his request for another omnibus hearing the following week to find out the status of the interviews. On November 14, the interviews were not finished, and the trial court granted a joint motion to continue the trial date to December 1, 2003, with an omnibus hearing on November 26.
On November 24, 2003, Pugh moved to proceed pro se. When the trial court inquired into his motives, Pugh stated:
Well, the main reason is because I asked you to be rid of Mr. Stanton. I told you I didn't want him as my attorney. That's one of the reasons. And I don't feel safe nor comfortable going to trial with him as my attorney, so therefore I'd rather go and represent myself rather than have someone else railroad me.
Pugh also said that he did not trust Stanton's judgment, that they did not communicate about the case, and that he thought he could do a better job representing himself. Pugh informed the court that he could not be ready for trial by December 1 because he needed three or four weeks to review case law and documents and interview witnesses. Pugh told the court that he had considered going pro se ever since Potter and Allen withdrew from the case over two months earlier. The court denied Pugh's motion as untimely. It relied on several factors: the lengthy time the case had already been on the calendar and the further delay granting the motion would cause, Pugh's delay in making the motion despite considering going pro se for some time, and concern that witnesses, including the victim, would have to be interviewed for a third time.
The trial court also specifically stated that 'if the Appellate Court does have to address this issue at some time I think it would be important for them to take a look at the affidavit with regard to why prior counsel was allowed to withdraw. I think that may be somewhat instructive as to the issues that are arising on this particular case.' In a declaration in support of the motion to withdraw, Potter states that his office had serious conflicts with Pugh that made it 'impossible for our office to continue representation of [Pugh].' If there is an affidavit outlining threats Pugh made or other circumstances, it is not part of the record on appeal.
Because of various scheduling conflicts, the trial was continued again and jury selection did not begin until January 26, 2004. The State used peremptory challenges against the only two African-American members of the venire. Pugh made a Batson challenge, and the State offered its race-neutral reasons for challenging each juror. The trial court accepted the State's reasons, and a jury ultimately convicted Pugh on both counts.
Batson v. Kentucky, 476 U.S. 79, 89, 106 S. Ct. 1712, 1719, 90 L. Ed. 2d 69 (1986).
DISCUSSION
Both the United States and Washington State Constitutions guarantee the right to self-representation. But the Court should grant a motion to proceed pro se only if it is knowingly and intelligently made, unequivocal, and timely. Pugh argues that his request met these requirements. The State asks this Court to affirm either because Pugh's request was equivocal or the trial court correctly denied the motion as untimely. We review a trial court's denial of a motion to proceed pro se for abuse of discretion.
U.S. Const., amend. VI and XIV; Wash. Const., art., I sec. 22.
State v. Breedlove, 79 Wn. App. 101, 106, 900 P.2d 586 (1995).
Id.
I. Unequivocal Request
The State argues that Pugh's request was equivocal because he premised it on dissatisfaction with counsel rather than a desire to represent himself. It also asserts that Pugh only intended to further delay and obstruct the trial. Pugh contends that he moved to proceed pro se because he did not trust Stanton's judgment and truly believed he would be better off representing himself. The trial court did not make an explicit finding about whether Pugh's request was unequivocal, but the record is sufficiently developed to allow fair consideration of this issue on appeal.
'A party may present a ground for affirming a trial court decision which was not presented to the trial court if the record has been sufficiently developed to fairly consider the ground.' RAP 2.5(a).
'Courts should indulge every reasonable presumption against finding that a defendant has waived the right to counsel.' A request to proceed pro se may be made in the alternative to a request for new counsel, but a conditional request must still be unequivocal. The request must be unequivocal viewed in light of the record as a whole.
State v. Vermillion, 112 Wn. App. 844, 851, 51 P.3d 188 (2002) (citing State v. Chavis, 31 Wn. App. 784, 789, 644 P.2d 1202 (1982)), review denied, 148 Wn.2d 1022 (2003).
State v. Stenson, 132 Wn.2d 668, 741, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998).
Id. at 741-42 (citing State v. Luvene, 127 Wn.2d 690, 698-99, 903 P.2d 960 (1995)).
In State v. Luvene, Luvene's attorney requested a continuance despite Luvene's strong objections. Luvene stated that he would represent himself if necessary and went on to express his anger at how long it was taking to get to trial. The court held that Luvene's statement indicated his frustration with the delay in going to trial, not an unequivocal assertion of his right to self-representation.
127 Wn.2d 690, 903 P.2d 960 (1995).
Id.
In State v. Stenson, immediately after the trial court denied Stenson's motion for new counsel, he moved to proceed pro se: "I would formally make a motion then that I be able to allow [sic] to represent myself. I do not want to do this but the court and the counsel that I currently have force me to do this." The trial court denied his motion as untimely, but also found that he did not really want to proceed without counsel. The Washington Supreme Court held that Stenson's request was both conditional and equivocal. It observed that almost all of the discussion between Stenson and the trial judge concerned Stenson's wish for different counsel, and Stenson did not refute the trial court's conclusion that he did not want to proceed without counsel.
132 Wn.2d 668, 739, 940 P.2d 1239 (1997) (alteration in original), cert. denied, 523 U.S. 1008 (1998).
Id. at 740.
Id. at 741.
In State v. Woods, Woods objected to his lawyer's request for a second continuance and said he was prepared to proceed without counsel:
'THE DEFENDANT: Your Honor, you know, I will be I will be prepared to proceed with with this matter here without counsel come October 21st.
THE COURT: All right. You understand you have the right to do that.
THE DEFENDANT: Yes.
THE COURT: Counsel, have you discussed this with your client?
[DEFENSE COUNSEL]: No. We have not discussed that point at all. It's a surprise to me.
THE DEFENDANT: I've I've already consented to one continuance, Your Honor. And they they have done nothing but grossly misuse that time there. And I feel if if they was [sic] granted a second continuance, it it would be treated in the same manner, Your Honor.
THE COURT: All right. Thank you.'
143 Wn.2d 561, 587, 23 P.3d 1046 (alteration in original), cert. denied, 534 U.S. 964 (2001).
The Washington Supreme Court held that Woods' request was as equivocal as that in Luvene because it 'merely revealed the defendant's displeasure with his counsels' request to continue the trial for a lengthy period of time.' Here, Pugh made his pro se request primarily as an alternative to his previous request for new counsel. However, although his request was conditional, the record shows it was also unequivocal. The trial court investigated its concern that Pugh moved to proceed pro se only because the court would not appoint new counsel:
Id.
The Court: What you're telling me, sir, is you're having some problems with counsel that led you to ask me to give you new counsel, and I said no, and now you're saying that you believe you can represent yourself better than Mr. Stanton.
[Pugh]: Due to the relationship and due to the I know this case better than he does, for number one. For number two, I also studied the law, I also know everything that's happened thus far in this courtroom since I've been coming in. . . .
Notably, the trial court did not find that Pugh's request was equivocal and went on to question Pugh about his next steps should he be allowed to proceed pro se. Later in the questioning, Pugh further demonstrated that he was more than willing to represent himself and that he made the request with a full understanding of the consequences of his decision:
[A]ll I'm telling [the court] is that I feel more comfortable with me representing me. I can talk just like I'm talking to you now intelligently. I can speak for myself, you know what I mean. I was I know what happened and what didn't happen concerning this case.
. . . .
Therefore, I know how to attack my strategy and how I want to attack the strategy the way I want to do it[.] . . . And if I don't agree, if I'm not agreeing with [Stanton], and I'm not agreeing with none of his strategies, therefore, I'm going to create my own and come to court with it, be it by win, lose or draw. I'm very aware of what I'm doing.
Pugh's statements indicate that, although the court's refusal to replace Stanton was the catalyst for his request, he truly wanted to represent himself. Stanton was well aware that Pugh was upset about his representation, and he thought Pugh's request was appropriate under the circumstances. He said Pugh had very definite ideas about how to litigate the case and that no attorney would agree with his strategy. Further, Pugh contemplated going pro se long before the trial court refused to replace Stanton with another attorney.
Stanton stated that 'probably the best solution, instead of him disagreeing with his attorneys, is to allow him to go pro se if that's what he wants to do.'
Unlike Stenson, Luvene, or Woods, Pugh did not make his request arbitrarily, reluctantly, or despite a lack of confidence in his ability to represent himself. And unlike Stenson, Pugh's request was not just an impulsive reaction to the court's refusal to appoint new counsel. Pugh did not trust Stanton and had a complete lack of faith in his ability. Pugh could not have made it more clear that if it were a choice between himself and Stanton, he wanted to represent himself and had no problem doing so. Although his request was conditional, it was also a clear and unequivocal assertion of his right to self-representation.
The State contends that Pugh's statements at a later hearing where he declined another chance to ask to proceed pro se demonstrates the equivocal nature of his original request. The following exchange occurred on January 13, 2004:
THE DEFENDANT: . . . I told the court several times that I am going to be forced into trial with someone that I do not even get along with, and he don't really come and talk to me. He hasn't done anything. I have done more on this case than he has. . . . I looked at the law, read the law, I read everything, more than he has done on this case. I want you to believe that.
THE COURT: Are you electing to go pro se, sir?
THE DEFENDANT: I am not electing to do anything. I want to go forward. I am going to file a motion to go pro se. I am not going to change. I was denied going pro se once. I am not going to clean that up; however, I don't feel comfortable going to trial with this attorney.
While Pugh's conduct at this later hearing was certainly equivocal, it demonstrated that the reasons for his original pro se motion remained unchanged and does not change the unequivocal nature of his original request.
II. Timeliness
Pugh argues that the trial court abused its discretion by ruling that his request to proceed pro se was untimely. The State asserts that because Pugh's request came just three days before the trial date, it was within the trial court's discretion to deny the request. A trial court abuses its discretion when its decision is manifestly unreasonable or is based on untenable grounds. An unjustified denial of a defendant's motion to proceed pro se requires reversal.
Stenson, 132 Wn.2d at 701.
Id. at 737 (citing Breedlove, 79 Wn. App. at 111).
In State v. Fritz, we held that the trial court's discretion depends in part on the timeliness of the motion:
The cases which have considered the timeliness of a proper demand for self-representation have generally held: (a) if made well before the trial . . . and unaccompanied by a motion for continuance, the right of self-representation exists as a matter of law; (b) if made as the trial . . . is about to commence, or shortly before, the existence of the right depends on the facts of the particular case with a measure of discretion reposing in the trial court in the matter; and (c) if made during the trial . . . the right to proceed pro se rests largely in the informed discretion of the trial court.
21 Wn. App. 354, 361, 585 P.2d 173 (1978), review denied, 92 Wn.2d 1002 (1979).
In other words, the trial court's discretion 'lies along a continuum that corresponds with the timeliness of the request to proceed pro se.' Here, at the time of Pugh's request, trial was set for December 1, 2003 just three working days later. Pugh also asked for a continuance when he said he needed at least three weeks to prepare. Thus, Pugh's request falls into Fritz's second category because he made it shortly before trial and granting his motion would have required a continuance.
Breedlove, 79 Wn. App. at 107.
Pugh made his request on Monday, November 24. The Thanksgiving holiday fell on Thursday, November 27, and the court was closed on the 27th, 28th and over the weekend.
If the request is made shortly before trial, the trial court must exercise its discretion by balancing the defendant's right to self-representation and society's interest in the orderly administration of justice. The timing of the motion, by itself, is not sufficient reason to deny a request to proceed pro se. Instead, a request made shortly before trial should be denied only if the trial court finds either '(1) that the motion is made for improper purposes, i.e., for the purpose of unjustifiably delaying a trial or hearing, or (2) that granting the request would obstruct the orderly administration of justice.' We conclude the trial court properly denied the motion because granting it would impede the orderly administration of justice. Here, the trial court articulated specific concerns about the timing of Pugh's request:
Id.
Id. at 109.
Id. at 108 (footnote omitted). See also Stenson, 132 Wn.2d at 738 ('Unless a request is made in ample time before the date set for trial, it is incumbent upon the trial court to determine whether the request is made for purposes of delay or to gain tactical advantage, and whether the lateness of the request may hinder the administration of justice.') (citing People v. Mogul, 812 P.2d 705, 708-09 (Colo.App. 1991)).
The record shows that Pugh made his request for proper reasons he did not trust Stanton and genuinely believed he could better represent himself.
[THE COURT:] In this particular case, what we're looking at is a case that's been on the calendar for a considerable period of time. He was arraigned back in February[.] . . . Four different attorneys have handled the matter. At this point in time he's indicated to me he's been thinking about going pro se since August but hasn't brought that to my attention until I denied the motion from Mr. Stanton to be removed as counsel[.] . . . And if the motion is granted, it's undeniably going to delay trial by three or four weeks at a bare minimum. It's going to require extra interviews of witnesses who have already been interviewed twice. All of those reasons go against granting the motion to proceed pro se.
And therefore I'm going to deny the motion. . . .
. . . .
MR. STANTON: And it was denied because it was not timely made?
THE COURT: Untimely made, in essence, and because of that untimeliness a number of other issues arise, including the need for additional witness interviews and the delay for trial.
The record supports all of the reasons the trial court identified in denying Pugh's motion.
Pugh had contentious relationships with all of his attorneys. He apparently even threatened Potter and Allen in such a manner that they requested an immediate withdrawal from the case. Pugh was unhappy with his attorneys' performance, including Stanton's, long before he moved to proceed pro se, and he had contemplated going pro se for a long time. It was clear well before Pugh made his motion that Stanton, like his previous attorneys, would not follow his preferred strategy. And after the trial court denied his request for new counsel on November 7, 2003, Pugh said that from that point forward he would not sign any papers or do anything the court or attorneys asked of him, and would not come to court.
The court let Potter and Allen withdraw after holding an in camera discussion about their specific conflicts with Pugh. At the January 13, 2004 hearing on Stanton's motion to withdraw, Stanton and the trial court held an in camera discussion concerning Pugh's threats against Stanton. After this discussion, the court admonished Pugh on the record:
The court has grave concerns about the safety of Mr. Stanton. . . . This is not the first time that the court has had information concerning the safety of defense counsel.
And, Mr. Pugh, this is directed at you, and I want to make sure you understand me really clearly. So, stop me if you do not understand.
Because of certain threats that have been made, you have an option. This case is going to go forward. I am denying Mr. Stanton's motion to withdraw. He is your attorney of record. This is the fourth attorney you have had. It is the court's understanding that there have been other threats made to prior counsel.
(Emphasis added.)
Pugh said he would need at least three weeks to prepare and 'definitely' needed to interview the witnesses again, including the victim. This meant interviewing witnesses for a third time, clearly a legitimate concern for the court and the administration of justice. And based on Pugh's conduct to that point, there was no reason to think that the additional witness interviews would proceed in an orderly manner, or that trial would only be delayed three to four weeks. Pugh's consistent unruly conduct combined with further delays of the trial were, under the circumstances here, sufficient to overcome Pugh's right to represent himself.
Pugh argues that he is just like the defendant in State v. Vermillion. Vermillion made several unequivocal requests to proceed pro se in the week before trial. He never requested a continuance and said he was prepared to examine witnesses and be held to the same standards as a lawyer. The trial court denied his motions because it believed self-representation was not in Vermillion's best interest. We held that, although the trial court had some discretion because Vermillion made his request shortly before trial, protecting what the court thought was the defendant's best interest was an untenable reason for denying his request to proceed pro se. We also held that Vermillion's request was timely because he had not made his request to delay the trial. Nor was there 'any indication in the record that Mr. Vermillion made the request for the purpose of obstructing the orderly administration of justice. Mr. Vermillion was at all times courteous and respectful to the court.'
112 Wn. App. 844, 51 P.3d 188 (2002).
Id. at 856.
Id. at 857.
Id. at 858.
Id. at 856.
Although Pugh also made an unequivocal request shortly before trial, we distinguish Vermillion easily. Pugh needed at least three weeks to prepare for trial, including interviewing witnesses for a third time. He had been anything but courteous and respectful to the court, and his treatment of his prior and current counsel had already disrupted the orderly administration of justice. Even if he did not make his request for the purpose of obstructing the orderly administration of justice, the record establishes that that is what had already happened and would have continued had the trial court granted the motion. The trial court did not abuse its discretion when it denied Pugh's motion to proceed pro se.
Pugh's conduct only worsened following the pro se motion hearing. At the January 13, 2004 hearing on Stanton's motion to withdraw, the trial court stated that it would sign an order to place Pugh in a 'Hannibal Lecter' chair at trial based on several in camera discussions in which Stanton told the court about Pugh's threats to him. When Pugh asked why he was being placed in the chair, the court stated '[b]ecause of your credible threat that you have made that will undermine the dignity of these proceedings.' After the court declared a recess, Pugh stated 'The court is full of shit[,]' and the court held him in contempt.
III. Batson Challenge
Pugh argues that the trial court erred by accepting as race-neutral the prosecutor's reasons for exercising peremptory challenges against the only two African-American members of the venire. He contends the prosecutor's explanations were pretextual and not race-neutral. The trial court's determination is accorded ''great deference on appeal,' and will be upheld unless clearly erroneous.'
Luvene, 127 Wn.2d at 699 (quoting Hernandez v. New York, 500 U.S. 352, 364, 111 S. Ct. 1859, 1866, 114 L. Ed. 2d 395 (1991)). See also State v. Rhodes, 82 Wn. App. 192, 196-97, 917 P.2d 149 (1996) ('Because the question whether the prosecutor's race-neutral explanation should be believed depends on an evaluation of demeanor and credibility that lies "peculiarly within a trial judge's province," his or her determination 'represents a finding of fact of the sort accorded great deference on appeal.'") (quoting State v. Sanchez, 72 Wn. App. 821, 826, 867 P.2d 638 (1994)).
A prosecutor's use of a race-based peremptory challenge violates the defendant's right to equal protection. Once the defendant makes out a prima facie case of racial motivation, the burden shifts to the State to articulate a race-neutral reason for the peremptory challenge. However, where, as here, the prosecutor offers 'a race-neutral explanation and the trial court rules on the question of racial motivation, the preliminary prima facie case is unnecessary.' Until the U.S. Supreme Court's recent decision in Miller-El v. Dretke, the rule in the federal courts, as in Washington, was that the explanation need not be persuasive or even plausible. After the Miller-El decision, "the prosecutor must give a clear and reasonably specific explanation of his legitimate reasons for exercising the challeng[e]." 'If any facially neutral reason sufficed to answer a Batson challenge, then Batson would not amount to much more than Swain [v. Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d. 759 (1965), overruled by Batson, 476 U.S. 79],' a case the Batson court rejected because it had not provided a valid method for ferreting out discrimination in jury selection.
Luvene, 127 Wn.2d at 699 (citing Batson, 476 U.S. at 89).
Id. (citing Batson, 476 U.S. at 96-98). This shifting burden of proof approach was recently reiterated by the U.S. Supreme Court in Miller-El v. Dretke, U.S., 125 S. Ct. 2317, 2324, L. Ed. 2d. (2005).
Id. (citing Hernandez, 500 U.S. at 359).
U.S., 125 S. Ct. 2317, L. Ed. 2d (2005).
State v. Vreen, 143 Wn.2d 923, 927, 26 P.3d 236 (2001) (citing Purkett v. Elem, 514 U.S. 765, 767-68, 115 S. Ct. 1769, 131 L. Ed. 2d 834 (1995)).
Miller-El, 125 S. Ct. at 2324 (alteration in original) (quoting Batson, 476 U.S. at 98 n. 20).
Id. at 2325.
Pugh is African-American, and the State used peremptory challenges to excuse juror 6, Ms. Howard, and juror 23, Ms. Green the only two African-American members of the 50-person venire. At the conclusion of voir dire, Pugh made a Batson challenge, and the prosecutor articulated his reasons for excusing Howard and Green. He said he excused Howard because she was the only member of the venire with a prior conviction, and he had a general policy of excusing people with prior convictions. He also said Howard reported during questioning that she was consistently mistaken for someone else. He was concerned this could cause her to favor a mistaken identity defense, and that she seemed 'somewhat closed off to the process.' The trial court accepted the race-neutral explanation mainly because Howard was the only juror with a prior conviction. Although we recognize that using prior convictions as a disqualifying factor may have a disparate impact on people of color, we agree with the trial court that the prior conviction is, in the context of a criminal prosecution, a race-neutral basis for excusing Ms. Howard.
Howard stated on her biographical form that she was convicted of misdemeanor theft at age 18.
As to his reasons for excusing Green, the prosecutor said Green was 'not clearly tracking what was going on.' He was also concerned because Green said she would have trouble choosing between two different versions of events, and she seemed 'extremely uncomfortable' in the role of decision-maker. The trial court agreed that Green was uncomfortable:
The prosecutor said Ms. Green shook her head from side to side when responding that she might be uncomfortable.
The [S]tate has offered its reason which appears to be racially neutral in that when asked about the two versions of an incident, or an explanation of a crime, she clearly said she was uncomfortable. I don't think there is any question about it. . . . I don't see anything that indicates that the [S]tate has engaged in a pattern of excusing or using peremptory strikes for purposes of getting rid of African-Americans.
The State asked several jurors, including Green, how they felt about making difficult decisions, knowing they were not involved in sentencing. The exchange with Green went as follows:
[Prosecutor]: Juror Number 23, how do you feel about that? It would be a difficult decision.
[Green]: Well, who decides the sentencing? Do we you said the judge does?
[Prosecutor]: The judge will decide the sentence.
[Green]: But we have to vote on whether he did it or not, right?
[Prosecutor]: Right. Would that be a difficult decision for you in deciding between two different versions?
[Green]: Well, I don't know if I like that necessarily, there being two versions. I wouldn't want to do that, maybe. Might be uncomfortable. I don't know.
When asked the same question, other jurors did not express the same hesitation. Green's responses support the State's concern that she would have had trouble deciding between two versions of an event. We hold that the trial court's rulings on Pugh's Batson challenges were correct and supported by the record.
Other responses included juror 22: 'I feel comfortable with making a decision and going along with what the decision is[,]' and juror 15: 'If all the evidence, you know, comes out and says he is not guilty or guilty, I could go along with that.' Pugh has cited as additional authority the following statement from Miller-El, supra: 'If a prosecutor's proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination. . . .' 125 S. Ct. at 2325. There is no showing that this was the case here.
We affirm.
ELLINGTON and SCHINDLER, JJ., Concur.