NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE

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IN THE 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

STATE OF ARIZONA , Appellee
,

v

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FREDERICK DION FORD , Appellant

.
No. 1 CA

- CR 16

- 0652

Appeal from the Superior Court in Maricopa County

No. CR2013

- 450766

- 001 The Honorable Michael W. Kemp
, Judge

AFFIRMED

COUNSEL
Arizona Attorney General’s Office , Phoenix By Joseph T. Maziarz Counsel for Appellee

Office of the Legal Advocate
, Phoenix By Consuelo M. Ohanesian C ounsel for Appellant FILED 8-31-2017STATE v. FORD Decision of the Court

2 MEMORANDUM DECISION
Presiding Judge James P. Beene delivered the decision of the Court, in which J udge Kent E. Cattani and Judge Peter B. Swann joined.

B E E N E , Judge:

¶1 Frederick Di on Ford (“Ford”) appeals his conviction and sentence for second

- degree murder. For th e following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Ford shot another man twice, once in the face and once in the back of the head, killing him. He was indicted on one count of second

degree murder and one count of misconduct involving weapons. 1 After a jury trial, Ford was convicted of second

- degree murder and sentenced to 22 years’ imprisonment. He timely appealed, raising one issue regarding the jury selection process. We have jurisdiction pursuant to Arizona Revised Statutes sections 12

– 12 0.21(A)(1), 13

– 4031, and

– 4 033(A)(1) (2017).

DISCUSSION

¶3 Ford argues that the State’s use of a peremptory strike of a prospective juror violate d his Fourteenth Amen dment Equal Protection rights.

¶4 During voir dire , prospective jurors, including jurors 9, 66, and 11, stated that serving on the jury would cause them financial hardship. Juror 9 stated that he worked from 4 a.m. until 6 p.m. and could not afford to miss work to sit as a ju ror. Juror 66, an office manager, stated he had no replacement at work, an d was one of only a f ew employees who spoke English. Juror 66 was also concerned he would face retaliation for serving on a jury, and his employer made no provisions for employee jury service. Juror 11, who is black, stated she works full

- time to pay for school. The court dismissed jurors 9 and 66 for cause without objection. However, the court did not d ismiss juror 11 for cause; the S tate exercised a peremptory strike to dismiss her

.

1 The misconduct involving weapons charge was severed from the second

- degree murder charge and is not part of this appeal or decision.STATE v. FORD Decision of the Court

3 ¶5 Ford objected to the State’s peremptory strike of juror 11 on the gro und that she was the only black member of the venire panel. The superior court then asked the State for a race

- neutral reason for the challenge. The State explained that it struck juror 11 because she expressed similar concerns to jurors 9 and 66; that i s, she was worried about the financial hardship of serving on a jury. Ford was given an opportunity to respond to the State’s reasoning, and did so . He argued juror 11 stated she would face financial difficulties because the trial would last at least six days and she would miss work. But that she said this was only the case if she
was not reimburse d by t he court for her service. Nevertheless, t he superior court accepted the race

- neutral basis presented by the State and overruled Ford’s objection. A jury was then empaneled.

¶6 Use of peremptory strikes to exclude jurors based on their race violate s the Fourteenth Amendment’s Equal Protection Clause. See Batson v. Kentucky , 476 U.S. 79, 89 (1986). The trial court follows a three

- step analysis to determine whether a peremptory strike violates Batson

. State v. Escalante

- Orozco , 241 Ariz. 254, 271, ¶ 35 (2017) (Petition for Certiorari Filed (NO. 17

- 90), July 18, 2017)

. First, a defendant must make a prima facie showing that the strike was racially discriminatory. Id. Second, if the showing is made, the prosecutor must provide a race

- neutral reason for the strike. Id. Finally, if the prosecutor provides a facially race

- neutral rationale, the burden shifts to the defense to prove the peremptory strike rested on purposeful discrimination. State v. Newell , 212 Ariz. 389, 401, ¶ ¶ 54

- 55 (2006)

. We will uphold the trial court ’ s ruling unless it was clearly

erroneous. Escalante

- Orozco , 241 Ariz. at 271, ¶ 35.

¶7 Here, after Ford objected to the peremptory strike of juror 11,
t he superior court asked the State to present a race

- neutral reason for the challenge, and by doing so implicitly f ound a prima facie case for racial discrimination . This request trigger ed the second step of the Batson p rocess. See Newell
, 212 Ariz. at 401, ¶ 54 (2006) ( “The first step of the Batson analysis is complete when the trial court requests an explanation for the peremptory strike .” ). The State explained that, like jurors 9 and 66, juror 11 was facing potential financial hardship , and was struck for that reason. After giving Ford an opportunity to respond, the court overruled his objection, finding that the State established a valid basis for striking juror 11.

¶8 T he State met its burden of presenting a race

- neutral reason for striking a minority juror. There is no direct or circumstantial evidence
, only Ford’s inference, that the State based i t s peremptory strike on purposeful racial discrimination

. See Ne well , 212 Ariz. at 402 , ¶ 58 (m ere inference by defense that peremptory strike was result of purposeful racialSTATE v. FORD Decision of the Court

4 discrimination insufficient to satisfy burden of persuasion). Ford argues that because jurors 9 and 66 had far more serious financial concerns than juror 11, the State’s perem ptory strike was based on a pretextual concern. Whether the prosecutor’s exercise of the strike was pretextual was a question of fact and credibility to be resolved by the trial court. See id. at 401, ¶ 54 (“This third step is fact intensive and will tur n on issues of credibility which the trial court is in a better position to assess than is this Court.”). The superior court determined there was a non

- discriminatory reason for the State’s p er emptory strike of juror 11. Because the “trial court is in a better position to assess” credibility than this court, its “finding at this step is due much deference.” Id

. There is no support in the record for Ford’s assertion that t he State’s p er emptory strike regarding juror 11 was pretextual. T he court did not err by denying Ford’s Batson challenge to juror 11

.
CONCLUSION

¶9 For the foregoing reason s , we affirm Ford’s conviction and
sentence

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