The opinion
Wolff, J.,
dissenting.
{¶ 103} I respectfully dissent.
{¶ 104} As stated by the majority, the Supreme Court has set forth a three-step inquiry when the state’s peremptory challenge has been challenged under
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Batson.
First, the defendant must set forth a prima facie case of discrimination. Next, the prosecutor must state a race-neutral explanation for striking the juror in question. “Although the prosecutor must present a comprehensible reason, ‘[t]he second step of this process does not demand an explanation that is persuasive, or even plausible’; so long as the reason is not inherently discriminatory, it suffices.”
Rice v. Collins
(2006), 546 U.S. 333 , 126 S.Ct. 969, 973-974 , 163 L.Ed.2d 824 , quoting
Purkett v. Elem,
514 U.S. 765, 767-768 , 115 S.Ct. 1769 , 131 L.Ed.2d 834 . The prosecutor need not establish that the juror could be stricken for cause.
Batson,
476 U.S. at 99, 106 S.Ct. 1712 , 90 L.Ed.2d 69 . Third, the court must determine whether the defendant met his burden of proving intentional discrimination. This final step involves evaluating “the persuasiveness of the justification” proffered by the prosecutor, but “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. 1769 , 131 L.Ed.2d 834 .
{¶ 105} In resolving the third prong, the Supreme Court has made clear that the ultimate issue is whether the trial court believed that the prosecutor exercised the peremptory challenge for a nondiscriminatory reason. “Credibility can be measured by, among other factors, the prosecutor’s demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.”
Miller-El v. Cockrell
(2003), 537 U.S. 322, 339 , 123 S.Ct. 1029 , 154 L.Ed.2d 931 . As the court noted in
Hernandez v. New York
(1991), 500 U.S. 352 , 111 S.Ct. 1859 , 114 L.Ed.2d 395 : “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. As with the state of mind of a juror, evaluation of the prosecutor’s state of mind based on demeanor and credibility lies ‘peculiarly within a trial judge’s province.’ ” Id. at 365 , 111 S.Ct. 1859 , 114 L.Ed.2d 395 , quoting
Wainwright v. Witt
(1985), 469 U.S. 412, 428 , 105 S.Ct. 844 , 83 L.Ed.2d 841 .
{¶ 106} In reviewing whether the prosecutor’s explanation is worthy of belief, courts have often looked to the behavior of the prosecutor prior to the exercise of the challenge. Contrast
State v. White
(1999), 85 Ohio St.3d 433, 436 , 709 N.E.2d 140 (state fought to keep one black juror but sought to excuse another who opposed the death penalty), with
Miller-El v. Dretke
(2005), 545 U.S. 231 , 125 S.Ct. 2317 , 162 L.Ed.2d 196 (discriminatory intent demonstrated by the use of peremptory challenges to strike 91 percent of eligible black jurors, by the state’s failure to strike comparable white jurors, the shuffling of the venire panel, using different questioning for black jurors, and evidence of a general policy to exclude black venire members).
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{¶ 107} Moreover, the Supreme Court has not required a trial court to find intentional discrimination when the prosecutor’s suspicions are not substantiated by the record. In
Collins ,
a habeas case, the prosecutor asserted as one of her reasons for striking Juror 16 that she believed that the juror, as a young and single citizen with no ties to the community, might be too tolerant of the crime with which the defendant was charged. On appeal, the court of appeals had stated that the prosecutor’s proffered reason was unsupportable because Juror 16 had replied affirmatively when asked whether she believed that the crime with which respondent was charged should be illegal and disclaimed any other reason that she could not be impartial. The Supreme Court reversed the court of appeals, stating:
{¶ 108} “That the prosecutor claimed to hold such concerns despite Juror 16’s
voir dire
averments does not establish that she offered a pretext. It is not unreasonable to believe the prosecutor remained worried that a young person with few ties to the community might be less willing than an older, more permanent resident to impose a lengthy sentence for possessing a small amount of a controlled substance. * * * Even if the prosecutor was overly cautious in this regard, her wariness of the young and the rootless could be seen as race neutral, for she used a peremptory strike on a white male juror, Juror 6, with the same characteristics.” “Viewing the [appellate] panel majority’s concerns together, the most generous reading would suggest only that the trial court had reason to question the prosecutor’s credibility regarding Juror 16’s alleged improper demeanor. That does not, however, compel the conclusion that the trial court had no permissible alternative but to reject the prosecutor’s race-neutral justifications and conclude [the defendant] had shown a
Batson
violation. Reasonable minds reviewing the record might disagree about the prosecutor’s credibility, but on habeas review that does not suffice to supersede the trial court’s credibility determination.”
Collins,
546 U.S. 333 , 126 S.Ct. at 975 , 163 L.Ed.2d 824 .
{¶ 109} In the case before us, the ultimate issue was whether the state’s attempt to peremptorily challenge Reynolds was race-based. The state’s peremptory challenge was based upon a suspicion that Reynolds would be hostile to the state because she might have been among a group of African-Americans who protested the prosecutor’s failure to prosecute someone who had struck four children with an SUV. Reynolds had stated during voir dire that her child had been struck by an SUV. The prosecutor stated: “I think this [referring to Reynolds] is one of the families * * * but I * * * can’t remember.”
{¶ 110} In my view, the concern expressed by the state in the instant case was not that Reynolds could not fairly consider its case against four African-American defendants because she also is African-American. Rather, the prosecutor articulated a racially neutral selection criterion related to the juror’s view
*713
concerning the outcome
of
the case to be tried when he offered his belief that, based on the juror’s earlier response that her daughter had been the victim of a crime when she was “run over by an SUV,” the juror might have an animus against the state for not prosecuting the person who was responsible, which many people in the community apparently did. The reason was sufficiently particular to this juror to avoid the general discriminatory racial attitudes that
Batson
condemns. The possibility that Reynolds was one of the protestors was enough to make out a race-neutral explanation for the exercise of the peremptory challenge, thus satisfying the second prong in
Batson .
{¶ 111} It was the defendant’s burden, however, to prove that purposeful racial discrimination was behind the peremptory challenge of Reynolds. See
Purkett,
supra. Considering this burden, I agree with the majority that the trial court failed to adequately perform its gatekeeping duties. In light of the fact that the four codefendants were African-American and the jury pool was predominantly Caucasian, the trial court ideally should have cautioned the attorneys to discuss in a sidebar the potential use of a peremptory challenge against an African-American potential juror prior to such a challenge. If this had been done, the court could have easily had Reynolds questioned further about her possible participation in the protests without her being aware of which party — the state or one of the defendants — desired more information. The state then could have determined whether its concerns were allayed prior to any public request to excuse Reynolds. Suffice it to say, this is not what happened.
{¶ 112} Although complicated somewhat by the public nature of the state’s peremptory challenge, it would have been a simple matter to reopen questioning of Reynolds, as requested by the defense after the state’s use of the peremptory challenge, to determine whether Reynolds had been among the protestors. I agree with the majority that the trial court erred in sustaining the prosecutor’s objection to that request and in apparently finding from its own recollection that Reynolds was, in fact, one of the protestors.
{¶ 113} I disagree with the majority, however, that the defendant established purposeful race discrimination due to the prosecutor’s lack of certainty and supporting evidence that Reynolds was one of the protestors. The trial court, which was familiar with the protests, found the prosecutor’s reason to be credible and sincere. In other words, the court concluded that the prosecutor had a genuine nondiscriminatory motive. In my judgment, the trial court properly relied upon its recollection of the circumstances of the protests in determining whether the state’s proffered reason for exercising the peremptory challenge was sincere. In finding the
Batson
challenge to be without merit, the trial court satisfied its obligation under the third
Batson
prong to determine whether the prosecutor had exercised the peremptory challenge for a discriminatory reason.
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{¶ 114} In determining whether the trial court committed
reversible
error by not permitting further questioning of Reynolds, the question is whether the defendants would have likely proven purposeful racial discrimination if further questioning of Reynolds — had it taken place — revealed that Reynolds had not been one of the protestors. In my judgment, that information would not have proven purposeful racial discrimination but only that the prosecutor’s suspicion that Reynolds would be a hostile juror was unfounded. The same might be said for the concerns of the prosecutors in
Purkett
and
Collins .
Although the prosecutors in those cases ostensibly challenged the prospective jurors based on readily apparent characteristics (hair length, age, and lack of ties to the community), the prosecutors’ belief that these prospective jurors would be hostile to its case, based on those characteristics, was hardly less speculative than in the situation now before us. In other words, the mere fact that Reynolds was not one of the protestors would not have demonstrated that the peremptory challenge was a pretext for purposeful racial discrimination.
Collins,
supra.
{¶ 115} The trial court’s conclusion that the prosecutor exercised the peremptory challenge for a nondiscriminatory reason — given the information known at that time — was sufficient to withstand the
Batson
challenge. The trial court’s determination of the prosecutor’s credibility is entitled to substantial deference.
{¶ 116} I would find the trial court’s error harmless, overrule the first assignment of error, and affirm the judgment.