Opinion
Court of Appeals No. A-10879 Trial Court No. 3AN-09-12202 CR No. 5964
07-24-2013
ZAKEE ASMAR SALEEM, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: John N. Page III, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecution and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.
MEMORANDUM OPINION
AND JUDGMENT
Appeal from the Superior Court, Third Judicial District, Anchorage, Phillip R. Volland, Judge.
Appearances: John N. Page III, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecution and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Smith, Superior Court Judge.
Sitting by assignment made pursuant to article IV, section 11 of the Alaska Constitution and Administrative Rule 23(a).
SMITH, Judge.
Zakee Asmar Saleem was convicted of promoting prostitution in the second degree. On appeal, Saleem argues that his Fourteenth Amendment right to equal protection of the law was violated when the trial court allowed the prosecutor to use a peremptory challenge of a juror over Saleem's Batson objection. Saleem also argues that there was insufficient evidence that he managed, supervised, or controlled a prostitution enterprise to convict him. We conclude that the trial judge adequately explained his decision to deny the Batson challenge and did not commit error in denying the challenge. We further conclude that, viewing the evidence most favorably to upholding the verdict, the jury heard sufficient evidence to convict Saleem.
Factual and procedural background
In October 2009, Anchorage Police Officer Christopher Nelson arranged to meet with Celestine Theisen, a woman he suspected was working as a prostitute. The two agreed on prices and services. They then met at an apartment at the agreed-upon time, and Theisen was arrested for prostitution.
While Theisen and Officer Nelson were in the apartment, Detective Randy Adair contacted Saleem, who was sitting in a car outside the apartment. Detective Adair identified himself as a police officer and recorded his conversation with Saleem. Saleem admitted he was waiting for Theisen. He also said he had "a lot of models" and that he was a "talent coordinator or manager, however you want to call it."
Saleem was indicted for promoting prostitution in the second degree. At the start of his trial, during jury voir dire, the prosecutor exercised a peremptory challenge to excuse a juror named Kristina Melvin. Saleem objected on the basis of Batson v. Kentucky, arguing that the prosecutor's challenge was improper because it was based on Melvin's race. The prosecutor responded that she had challenged Melvin because of her young age and her responses during voir dire. The prosecutor noted that Melvin had talked about "bringing a young perspective and trying to make people see it from some other way." She said she viewed this statement as potentially expressing Melvin's belief that the type of conduct at issue in this case "could be okay depending on what ... lifestyle they were living." The trial judge denied the Batson challenge and excused the juror.
AS 11.66.120(a)(1) provides that a person commits this offense if the person "manages, supervises, controls, or owns, either alone or in association with others, a prostitution enterprise other than a place of prostitution."
476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
The jury convicted Saleem, and he now appeals.
The trial judge properly denied Saleem's Batson challenge
Saleem challenges the trial judge's decision to deny the Batson challenge He claims the judge committed legal error by failing to analyze whether the prosecutor's race-neutral explanation for exercising the peremptory challenge of Melvin was credible. Saleem argues that if the judge had conducted this required analysis, and had compared Melvin to other jurors whom the prosecutor failed to challenge — in particular, to another young juror who, he argues, expressed views similar to Melvin's — the judge would have concluded that the prosecutor's explanation for why she challenged Melvin was really a pretext for discrimination.
In Batson, the United States Supreme Court set forth the three stages that must be followed in evaluating whether the prosecutor has exercised a peremptory challenge based on an impermissible discriminatory motive. First, the defendant must demonstrate that "the totality of the relevant facts gives rise to an inference of discriminatory purpose." Once this showing has been made, the burden shifts to the State to provide a non-discriminatory reason for the challenge. The trial court must then "determine if the defendant has established purposeful discrimination." This third step requires the court to evaluate the credibility of the prosecutor's explanation — to determine "whether the asserted reason is believable or pretextual."
Id. at 93-94, 106 S. Ct. at 1721.
Id. at 94, 106 S. Ct. at 1721.
Id. at 98, 106 S. Ct. at 1724.
Snyder v. Louisiana, 552 U.S. 472, 477, 128 S. Ct. 1203, 1208, 170 L. Ed. 2d 175 (2008).
United States v. Rutledge, 648 F.3d 555, 560 (7th Cir. 2011).
Only the third step of the Batson analysis is at issue here. Saleem claims that the trial judge omitted that stage of the analysis by simply declaring that the State had articulated a non-discriminatory purpose for exercising the peremptory challenge, and then failing to make the necessary finding as to whether the prosecutor's explanation was credible. He argues that the trial judge must make an explicit ruling as to the credibility of the State's explanation, and must set forth explicit reasons for that ruling.
A trial court need not "recite a particular formula of words" when ruling on the third Batson prong. But it is helpful for the trial court to articulate its reasons for that ruling. As the First Circuit explained in United States v. Perez :
Dolphy v. Mantello, 552 F.3d 236, 239 (2d Cir. 2009); see also Lampley v. Anchorage, 159 P.3d 515, 520 (Alaska App. 2007) (affirming denial of Batson challenge based on credibility finding implicit in trial court's ruling).
35 F.3d 632, 636 (1st Cir. 1994).
Indicating these findings on the record has several salutary effects. First, it fosters confidence in the administration of justice without racial animus. Second, it eases appellate review of a trial court's Batson ruling. Most importantly, it ensures that the trial court has indeed made the crucial
credibility determination that is afforded such great respect on appeal.
We conclude that, in this case, the trial judge's findings were sufficient for purposes of appellate review. The judge declared that the State had the burden "to show a nondiscriminatory reason," and he found that the State had "done that." Contrary to Saleem's claim, the judge did not simply evaluate whether the prosecutor had offered a non-discriminatory reason for the peremptory challenge. Rather, the judge expressly found that the prosecutor had shown a non-discriminatory purpose, thereby implicitly finding that the prosecutor's offered purpose was not a pretext.
When Saleem's attorney raised his Batson objection at trial, he observed that the prosecutor had not challenged another young juror. The attorney argued that this other young juror had given answers in voir dire that were very similar to Melvin's and that, to the extent the prosecutor argued otherwise, she had misrepresented the record. On appeal, Saleem argues that the trial judge's failure to explicitly address this argument demonstrates that he never reached the third stage of the Batson analysis. He argues that this Court should therefore independently assess the credibility of the prosecutor's explanation based, in part, on a comparison between these two jurors.
As we just explained, the record does not support Saleem's claim that the trial judge never ruled on the credibility of the prosecutor's reason for challenging Melvin. Our review is therefore limited to whether the trial court clearly erred in finding that the prosecutor's explanation was credible. Contrary to Saleem's assertions, the record demonstrates that there were meaningful differences in the two jurors' responses in voir dire.
See Hernandez v. New York, 500 U.S. 352, 369, 111 S. Ct. 1859, 1871, 114 L. Ed. 2d 395 (1991).
The issues before the trial judge were whether the prosecutor set forth a non-discriminatory reason and whether the reason was offered in good faith. The fact that the prosecutor's reason for challenging the juror might lack objective merit, or might be based on a misunderstanding of the juror's responses, is not significant except insofar as those facts may reflect on the overall credibility of the proffered reason.
We explained this point of law in Gottschalk v. State :
36 P.3d 49, 53-54 (Alaska App. 2001) (quoting Purkett v. Elem, 514 U.S. 765, 768, 115 S. Ct. 1769, 1771, 131 L. Ed. 2d 834 (1995) (per curiam)).
An attorney's reason for exercising a peremptory challenge need not constitute a reason that would justify a challenge for cause. ... If the attorney offers a race-neutral explanation for the challenge, and if the attorney is acting in good faith - if the attorney's stated reason for exercising the challenge is not simply a subterfuge for racial discrimination - then the peremptory will survive a Batson objection even if the attorney's reason for the challenge is "not ... persuasive or even plausible."
Based on our review of the record, the trial judge's determination that the prosecutor was credible was not clearly erroneous.
The verdict was supported by sufficient evidence
In order to convict Saleem of second-degree promoting prostitution under AS 11.66.150(2), the State had to prove that he "manage[d], supervise[d], control[led], or own[ed], either alone or in association with others, a prostitution enterprise other than a place of prostitution." There was no dispute at trial that Theisen worked for "Blue Passion" and that Blue Passion was a "prostitution enterprise" within the meaning of this statute. The State based its case on its contention that Saleem "managed" or "supervised" Blue Passion.
AS 11.66.120(a)(1).
Saleem asserts that the evidence produced at trial did not prove beyond a reasonable doubt that he met either of these criteria. He argues that the evidence at best demonstrated that he was "a low-level operative who took no part in managing or supervising a prostitution enterprise."
The terms "manage" and "supervise" are not defined by the statute and neither party asked for these terms to be defined to the jury. Neither party suggests that some technical definition is required that is specific to the statute. To the contrary, both parties tailored their arguments to the common understanding of these terms, by which "manage" means "to direct or control" and "supervise" means "to direct and watch over the work and performance of others."
Webster's Second New Riverside University Dictionary at 721 (1994).
Id. at 1134.
Saleem's claim here rests on a view of the evidence that most favors his position. Viewing the evidence in the light most favorable to the verdict, as we must, Saleem's comments to Detective Adair provided sufficient evidence for the jury to conclude that Saleem managed or supervised Blue Passion. In particular, at one point, Saleem called himself a "manager" and a "talent coordinator." He told Adair that he brought in "girls" to determine if they would be appropriate to be hired by Blue Passion. Four of the girls were "his," in the sense that he had recruited them to work at Blue Passion. He received a portion of the girls' profits. He bailed one of the girls out of jail after she was arrested. And he was responsible for helping the girls if something went wrong while they were with a client. Given the common meanings of "manage" or "supervise," this evidence would, if believed, support a conclusion beyond a reasonable doubt that Saleem was guilty of promoting prostitution in the second degree.
See Hoekzema v. State, 193 P.3d 765, 767 (Alaska App. 2008).
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Conclusion
The judgment of the superior court is AFFIRMED.