#26819-a-SLZ

2014 S.D. 36

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

DERRICK SCOTT, Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE SEVENTH JUDICIAL CIRCUIT

PENNINGTON COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE WALLY EKLUND

Judge

* * * *

MARTY J. JACKLEY

Attorney General

PAUL S. SWEDLUND

BETHANNA FEIST

Assistant Attorneys General

Pierre, South Dakota Attorneys for plaintiff 

and appellee. 

PAUL E. PIETZ of

Rensch Law Office, PLC

Rapid City, South Dakota Attorneys for defendant 

and appellant.

* * * *

ARGUED ON APRIL 30, 2014

OPINION FILED 06/25/14
#26819

-1-

ZINTER, Justice

[¶1.] A jury found Derrick Scott guilty of aggravated assault. Scott 

appealed to this Court, arguing that the State’s peremptory strike of a Native 

American veniremember violated the Equal Protection Clause as applied in Batson 

v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). Because the 

circuit court did not perform the third step of the Batson analysis, we remanded for 

the court to perform the missing analysis. See State v. Scott, 2013 S.D. 31, ¶¶ 22-

23, 829 N.W.2d 458, 466-67. On remand, the circuit court, with a new judge 

presiding, performed the third step and found that the State’s peremptory strike 

was not based on purposeful racial discrimination. Scott appeals. We affirm.

Facts and Procedural History

[¶2.] During voir dire, Scott challenged the State’s peremptory strike of a 

Native American veniremember. Scott contended that the State’s strike was 

racially motivated. See Scott, 2013 S.D. 31, ¶ 15, 829 N.W.2d at 465. To refute

Scott’s contention, the State explained that it struck the veniremember because it 

did not get a “good feeling” from the veniremember’s response to a question, and it 

believed that the veniremember had been charged with or investigated for criminal

acts involving threatening behavior. See id. ¶¶ 15, 17. The circuit court rejected 

Scott’s challenge, and Scott appealed. 

[¶3.] In Scott’s first appeal, we held that the first two steps of Batson were 

satisfied—Scott established a prima facie case of purposeful racial discrimination,

and the State responded with facially race-neutral justifications for the strike. See 

id. ¶ 17. However, because the third step had not been addressed by the circuit 
#26819

-2-

court, we remanded. We directed the court to assess the State’s justifications and to 

determine whether Scott satisfied his burden to prove that the State’s peremptory 

strike was racially motivated. See id. ¶¶ 22-23. We recognized that the judge who 

initially presided over Scott’s Batson challenge had left the bench and could not 

conduct the remand proceedings. See id. ¶ 24. Therefore, we remanded for a new 

judge to determine whether it could perform Batson’s third step, and if it could, we 

instructed the judge to enter findings on the matter. Id. ¶ 23. We further 

instructed that “[i]f the newly assigned judge determine[d] that insufficient 

evidence exist[ed] to make the necessary findings, then a new trial must be 

ordered.” Id. ¶ 24.

[¶4.] During the remand hearing, the State introduced documents 

corroborating that the veniremember had been charged with making threats. The 

documents showed that the charge predated Scott’s trial and that the State’s 

attorney who struck the veniremember was the same attorney who had signed the 

amended complaint. Scott objected to this evidence. He argued that because the

evidence had not been presented to the original judge, the remand judge could not 

consider it. The court overruled Scott’s objection. The remand judge considered the

State’s corroborating evidence, the transcript of the prior proceeding, and further 

arguments of counsel. 

[¶5.] The remand court concluded that there was sufficient evidence to find

whether the strike was racially motivated. The court entered a memorandum 

decision and findings, which found that the State’s strike was based on the criminal 

charge rather than race. 
#26819

-3-

Decision

[¶6.] On appeal, Scott argues that the circuit court erred as a matter of law 

in determining that sufficient evidence existed to make findings on purposeful 

racial discrimination. Scott first contends that the remand judge improperly 

considered documentary evidence regarding the criminal charge against the struck 

veniremember because that evidence was not presented to the original trial judge. 

Scott’s contention overlooks our instructions in Scott’s first appeal.

[¶7.] In Scott’s first appeal, we acknowledged that there would be “practical 

difficulties” in remanding his Batson challenge because a new judge would have to 

preside. See id. ¶ 24. Notwithstanding those difficulties, we remanded for a new 

judge “to make specific findings on . . . the validity of the State’s claim that [the 

struck veniremember] had been charged with or investigated for criminal behavior.” 

Id. ¶ 23. Thus, we contemplated an evidentiary hearing to determine the validity of 

the State’s claim that the struck veniremember had a past criminal charge. Had an 

evidentiary hearing not been contemplated, there would have been no reason to 

remand for a new judge to consider the validity of the State’s justification. We

would have decided the issue on the then-existing record. The circuit court did not 

err in considering corroborating evidence of the veniremember’s past criminal 

charge.

[¶8.] Scott next notes that because the remand judge was not present during 

voir dire, the remand judge was unable to observe and assess the demeanor of the 

prosecutor when he gave his justifications for the strike. Therefore, Scott contends 
#26819

-4-

that the remand judge was unable to assess the “credibility” of the State’s 

justifications for striking the veniremember. 

[¶9.] “[T]he critical question in determining whether [Scott] has proved 

purposeful discrimination at step three is the persuasiveness of the [State’s] 

justification for [its] peremptory strike.” See Miller-El v. Cockrell, 537 U.S. 322, 

338-39, 123 S. Ct. 1029, 1040, 154 L. Ed. 2d 931 (2003). And the persuasiveness of 

the State’s justification depends heavily on credibility. See id. at 339 (“At [step 

three], ‘implausible or fantastic justifications may (and probably will) be found to be 

pretexts for purposeful discrimination.’ In that instance the issue comes down to 

whether the trial court finds the prosecutor’s race-neutral explanations to be 

credible.” (quoting Purkett v. Elem, 514 U.S. 765, 768, 115 S. Ct. 1769, 1771, 131 L. 

Ed. 2d 834 (1995) (per curiam))). 

[¶10.] Thus, the credibility of the State’s justifications are at issue, but 

credibility is not based solely on the demeanor of the prosecutor when he offered the 

justifications. While “[c]redibility can be measured by, among other factors, the 

prosecutor’s demeanor[,]” it can also be measured “by how reasonable, or how 

improbable, the explanations are[] and by whether the proffered rationale has some 

basis in accepted trial strategy.” Id.; see also Miller-El v. Dretke, 545 U.S. 231, 241, 

253, 125 S. Ct. 2317, 2325, 2332, 162 L. Ed. 2d 196 (2005) (considering side-by-side 

comparisons of black veniremembers who were struck with white veniremembers 

allowed to serve; the prosecution’s use of jury shuffling; the contrasting questions 

asked of minority and nonminority veniremembers; and the widely known policy of 

the prosecution’s office to exclude minority veniremembers). Scott’s argument fails
#26819

-5-

because it does not recognize that the prosecutor’s demeanor was only one factor,

among many, to consider in determining whether the justifications for the strike

were credible.1

[¶11.] In this case, the remand judge considered highly probative nondemeanor evidence that corroborated one of the State’s race-neutral justifications

for the strike. The State introduced documentary evidence consistent with its claim 

that it struck the veniremember because of a recent criminal charge against her, 

not because of her race. That evidence, an amended complaint and police report,

also established that the State would have had knowledge of the charge when it 

exercised its strike.

[¶12.] The remand judge also noted that the record reflected that of the three 

Native American veniremembers, one was struck by the State, one was struck by 

the defense, and the other served on the jury. We acknowledge that “[a] pattern of 

striking Native Americans is not required for a finding that the State was 

motivated by purposeful discrimination[.]” Scott, 2013 S.D. 31, ¶ 21, 829 N.W.2d at 

 

1. We recognize that demeanor will often be “the best evidence” bearing on the 

credibility of the State’s facially race-neutral justification for its peremptory 

strike. See Thaler v. Haynes, 559 U.S. 43, 49, 130 S. Ct. 1171, 1175, 175 L. 

Ed. 2d 1003 (2010) (per curiam) (“[T]he best evidence of the intent of the 

attorney exercising a strike is often that attorney’s demeanor.” (citing Snyder 

v. Louisiana, 552 U.S. 472, 477, 128 S. Ct. 1203, 1208, 170 L. Ed. 2d 175 

(2008))); Hernandez v. New York, 500 U.S. 352, 365, 111 S. Ct. 1859, 1869, 

114 L. Ed. 2d 395 (1991) (plurality opinion) (“In the typical peremptory 

challenge inquiry, the decisive question will be whether counsel’s raceneutral explanation for a peremptory challenge should be believed. There 

will seldom be much evidence bearing on that issue, and the best evidence 

often will be the demeanor of the attorney who exercises the challenge.”). 

However, as this case demonstrates, best evidence does not mean only 

evidence. The remand judge in this case considered other evidence that was 

highly probative in the discriminatory motive and pretext inquiry.
#26819

-6-

466 (citing United States v. Horsley, 864 F.2d 1543, 1546 (11th Cir. 1989)). But just 

as “a ‘pattern’ of strikes against [minority] jurors included in the particular venire 

might give rise to an inference of discrimination[,]” see Batson, 476 U.S. at 97, 106 

S. Ct. at 1723, a lack of a pattern may support the opposite inference. Thus, pattern 

evidence is not categorically barred from consideration under Batson’s third step. 

[¶13.] A court must consider a “wide variety of evidence” in determining 

whether the opponent of a peremptory strike established a prima facie case of 

purposeful racial discrimination. See Johnson v. California, 545 U.S. 162, 169, 125 

S. Ct. 2410, 2416, 162 L. Ed. 2d 129 (2005); see also Batson, 476 U.S. at 94, 96, 106 

S. Ct. at 1721, 1723. A court must also consider a wide variety of evidence in 

determining whether the opponent carried his ultimate burden to prove purposeful 

racial discrimination. Considering the voir dire and post-voir dire evidence in this 

record, the circuit court did not err in concluding that sufficient evidence existed to 

make a finding regarding purposeful racial discrimination.

[¶14.] Scott, however, also argues that the remand court erred in finding that 

the State’s peremptory strike was not racially motivated. Batson established a 

three-step process for evaluating whether a peremptory strike was racially 

motivated.

First, the defendant must make out a prima facie case by 

showing that the totality of the relevant facts gives rise to an 

inference of discriminatory purpose. Second, once the defendant 

has made out a prima facie case, the burden shifts to the State 

to explain adequately the racial exclusion by offering 

permissible race-neutral justifications for the strikes. Third, [i]f 

a race-neutral explanation is tendered, the trial court must then 

decide . . . whether the opponent of the strike has proved 

purposeful racial discrimination.
#26819

-7-

State v. Guthmiller, 2014 S.D. 7, ¶ 12, 843 N.W.2d 364, 368 (alterations in original) 

(quoting Scott, 2013 S.D. 31, ¶ 16, 829 N.W.2d at 465-66 (quoting Johnson, 545 U.S. 

at 168, 125 S. Ct. at 2416)).

[¶15.] In Scott’s first appeal, we held that the first two steps of Batson were 

satisfied. See Scott, 2013 S.D. 31, ¶ 17, 829 N.W.2d at 466. However, because the 

circuit court did not perform the third step of Batson, we remanded so the court 

could “assess the veracity of the State’s race-neutral reasons and determine 

whether Scott met his burden of proving purposeful discrimination.” See id. ¶¶ 21-

23. 

[¶16.] On remand, the judge found that the State’s peremptory strike was not 

based on purposeful racial discrimination. Usually, we review such a finding for 

clear error. See, e.g., Guthmiller, 2014 S.D. 7, ¶ 11 n.2, 843 N.W.2d at 368 n.2. We 

normally afford great deference to a circuit court’s finding on purposeful racial 

discrimination because race-neutral reasons for peremptory strikes often involve 

issues of demeanor, and the circuit court is specially positioned to make firsthand 

observations that we are unable to review on appeal. See Snyder, 552 U.S. at 477, 

128 S. Ct. at 1208; Cockrell, 537 U.S. at 339-40, 123 S. Ct. at 1041. Therefore, “in 

the absence of exceptional circumstances,” we defer to the circuit court. See Snyder, 

552 U.S. at 477, 128 S. Ct. at 1208 (quoting Hernandez, 500 U.S. at 366, 111 S. Ct. 

at 1870 (plurality opinion)). This case, however, involves exceptional

circumstances.

[¶17.] Here, the trial court’s usual advantage in assessing demeanor through 

firsthand observations is not present because the judge who observed the 
#26819

-8-

veniremembers and the State’s attorney during voir dire could not preside over the 

remand proceedings. Further, the remand judge was in no better position than this 

Court to review the supplementary documentary evidence bearing on credibility. 

Accordingly, we review this case de novo, keeping in mind “that the ultimate 

burden of persuasion regarding racial motivation rests with, and never shifts from, 

the opponent of the strike.” Purkett, 514 U.S. at 768, 115 S. Ct. at 1771 (per 

curiam) (citation omitted).

[¶18.] In this case, the totality of the relevant evidence supports the State’s 

assertion that its peremptory strike was not racially motivated. During the original 

Batson hearing, the State justified its strike by claiming that the veniremember 

had recently been charged with a crime involving threatening conduct. On remand, 

the State produced documentary evidence supporting that claim. Legitimate, 

nonracial trial strategy supported striking such a juror. 

[¶19.] Scott, however, argues that the circuit court erred in conducting the 

third step of Batson because it did not consider the factors addressed in State v. 

Cannon, 41 P.3d 1153 (Utah Ct. App. 2002). Scott contends that, if considered, 

those factors indicate that the State’s justifications were pretextual.2 

[¶20.] Relying on Cannon, Scott first asserts that the State’s failure to show,

or ask questions tending to show, that the struck veniremember was biased against 

the State indicates pretext. Scott’s assertion is misplaced. A showing of bias 

justifies a challenge for cause. See SDCL 23A-20-13.1(12) (“Challenges for cause 

 

2. While this and other courts have identified factors that may be helpful in 

determining pretext, this Court has never ruled that certain factors must be 

considered. 
#26819

-9-

may be taken on [the ground that] . . . [t]he prospective juror has a state of mind 

evincing . . . bias to or against an attorney, . . . [or] the prosecution . . . .”). But the 

State’s race-neutral justification for exercising a peremptory strike “need not rise to 

the level justifying exercise of a challenge for cause.” See Batson, 476 U.S. at 97, 

106 S. Ct. at 1723 (citations omitted). Therefore, the State was not required to 

question the struck veniremember for actual bias.

[¶21.] Scott next asserts that a comparison of the struck veniremember with 

a veniremember seated on the jury indicates pretext. Scott contends that a nonNative American veniremember, who was seated on the jury, was comparable to the 

struck veniremember because the seated juror had been convicted of a crime. A 

side-by-side comparison of struck and seated veniremembers “is an important factor 

in determining whether peremptory challenges are discriminatory[.]” State v. 

Martin, 2004 S.D. 82, ¶ 16, 683 N.W.2d 399, 404; see also Dretke, 545 U.S. at 241, 

125 S. Ct. at 2325 (“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 to be considered at Batson’s

third step.”). “[H]owever, it is not determinative[.]” Martin, 2004 S.D. 82, ¶ 16, 683 

N.W.2d at 404. 

[¶22.] Here, a side-by-side comparison offers limited guidance. The State 

established that the struck veniremember had recently been charged with a crime

involving threatening conduct, and significantly, that veniremember had been 

charged by the same attorney who was prosecuting Scott’s case. In contrast, Scott 

did not establish the seated juror’s offense, when he was convicted, or who 
#26819

-10-

prosecuted his case. Without a better record of similarities, this comparison must 

be viewed with caution. See Snyder, 552 U.S. at 483, 128 S. Ct. at 1211 (“[A] 

retrospective comparison of jurors based on a cold appellate record may be very 

misleading when alleged similarities were not raised at trial. In that situation, an 

appellate court must be mindful that an exploration of the alleged similarities at 

the time of trial might have shown that the jurors in question were not really 

comparable.”). Scott’s comparison also fails to acknowledge the other evidence that 

corroborated the State’s criminal-charge justification, lessening the need to evaluate

side-by-side comparisons. Cf. State v. Mulligan, 2007 S.D. 67, ¶ 38, 736 N.W.2d 

808, 821 (noting that the opponent’s comparison argument “fail[ed] to acknowledge 

that the other reasons stated for striking [veniremembers] were sufficient to sustain 

the trial court’s finding that there was no pretext”). We do not find Scott’s side-byside comparison determinative.

[¶23.] Scott next asserts that the State’s questioning during voir dire

indicated pretext. Scott contends that the State performed only a “perfunctory 

examination” of the struck veniremember and that the questioning was designed to 

single out the veniremember to evoke a certain response. Reviewing the State’s 

questioning, like reviewing side-by-side comparisons, offers little guidance in this 

case. The record reflects that the questioning of all veniremembers was brief, 

limited, and somewhat “perfunctory.” Moreover, the question asked of the struck 

veniremember was also asked of a non-Native American veniremember who was 

struck by the State. While contrasting questions asked of different veniremembers

is a factor to consider, see Dretke, 545 U.S. at 255, 125 S. Ct. at 2333, the record in 
#26819

-11-

this case does not suggest that the State’s questioning was designed to mask a 

racially motivated purpose.

[¶24.] Scott finally argues that the remand court erred because it did not 

address the State’s other justification for striking the veniremember. At the 

original Batson hearing, the State’s other justification was that it did not get a 

“good feeling” from the struck veniremember’s response to a question. A 

justification based solely on a “feeling” may suggest pretext. Were that the State’s 

only justification, it may have been unacceptable, as some courts have concluded for 

similar justifications. See generally Wayne R. LaFave et al., 6 Crim. Proc. § 22.3(d) 

(3d ed. 2013) (“[A] reason which is grounded largely in speculation, hunch, or other 

subjective reaction rather than upon facts is not likely to be deemed acceptable, 

although there are cases in which such reasons have been found sufficient.”). But 

we need not consider that question in this case because the State presented other 

evidence that strongly supported its assertion that its strike was not racially 

motivated. Cf. Mulligan, 2007 S.D. 67, ¶ 38, 736 N.W.2d at 821.

[¶25.] Scott, however, further argues that the remand court erred in 

considering the State’s post-hoc explanations connected to its “feeling” justification.

On remand, the State elaborated on its feeling justification, explaining that its 

feeling was based not only on the veniremember’s response to a question, but also 

on what the State “perceived as [the veniremember’s] lack of interest in the process, 

along with concerns as to whether she was paying attention.” Such post-hoc 

explanations are suspect and must be viewed with caution. That is especially true 

in this case because these explanations were based largely on the veniremember’s 
#26819

-12-

demeanor, a characteristic that was not reviewable by the remand judge or this 

Court. Therefore, in our de novo review, we decline to consider the State’s post-hoc 

explanations regarding the veniremember’s level of interest and attention. 

[¶26.] Batson prohibits a peremptory strike based “solely on account of [a

veniremember’s] race[.]” See 476 U.S. at 89, 106 S. Ct. at 1719. In this case, the 

totality of the relevant evidence indicates that the State’s peremptory strike was 

based on the veniremember’s criminal charge for conduct involving threatening 

behavior. Based on our de novo review, we agree with the remand court that Scott 

failed to carry his burden of proving purposeful racial discrimination. 

[¶27.] Affirmed.

[¶28.] GILBERTSON, Chief Justice, and KONENKAMP, SEVERSON, and 

WILBUR, Justices, concur.