[No. 79143-1. En Banc.]
Argued October 11, 2007. Decided April 24, 2008.
[1] Criminal Law Right to Counsel Effective Assistance of Counsel Review Test. The test for evaluating a convicted defendant's claim of ineffective assistance of counsel is whether, after examining the trial record as a whole, it can be concluded that the defendant received effective representation and a fair trial. [2] Jury Selection Peremptory Challenges Race Based Review Deference to Trial Court In General.A trial court's ruling on a criminal defendant's challenge to the State's use of a peremptory challenge to remove a juror of a particular race is accorded great deference on appeal and will not be reversed unless it is clearly erroneous. [3] Criminal Law Right to Counsel Effective Assistance of Counsel Test. A criminal defendant's claim of ineffective assistance of counsel is reviewed to determine whether counsel's performance was deficient and whether the deficient performance was prejudicial to the defense. Deficient performance is representation that falls below an objective standard of reasonableness under professional norms. Deficient performance is not prejudicial unless, but for counsel's deficient performance, there is a reasonable probability that the outcome of the proceeding would have been different. [4] Jury Selection Sentencing Consequences Noncapital Crime. Prospective jurors in a first degree murder case should not be informed during voir dire that the case does not involve the death penalty. [5] Criminal Law Right to Counsel Effective Assistance of Counsel Deficient Performance Sentencing Consequences Noncapital Crime. Defense counsel's representation of a defendant charged with first degree murder in which the State does not seek the death penalty is deficient where counsel informs prospective jurors during voir dire that the case is not a death penalty case and fails to object to similar references made by the trial court and the prosecutor during voir dire. [6] Criminal Law Right to Counsel Effective Assistance of Counsel Prejudice Test. To establish the prejudice element of a claim of ineffective assistance of counsel, it must be shown that counsel's errors were so serious as to deprive the defendant of a fair trial, i.e., a trial with a result that is reliable. [7] Criminal Law Right to Counsel Effective Assistance of Counsel Prejudice Sentencing Consequences Noncapital Crime. A defendant charged with first degree murder in which the State does not seek the death penalty is not prejudiced by defense counsel's informing prospective jurors during voir dire that the case is not a death penalty case or by defense counsel's failure to object to similar statements made by the trial court or the prosecutor during voir dire if the jury actively deliberates the charges and there is abundant evidence of the defendant's guilt. [8] Jury Selection Peremptory Challenges Race Based Validity Equal Protection. The equal protection clause of the Fourteenth Amendment protects a criminal defendant against the State's use of peremptory challenges to exclude members of the defendant's race from the jury venire. [9] Jury Selection Peremptory Challenges Race Based Proof Shifting Burdens of Production Role of Trial Court. A criminal defendant claiming that the State exercised a peremptory challenge to exclude a prospective juror based on race has the initial burden of making a prima facie case of purposeful discrimination by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. If the defendant makes this showing, the burden shifts to the State to come forward with a neutral explanation for challenging the juror. The trial court then has the duty to determine if the defendant has established purposeful discrimination. [10] Jury Selection Peremptory Challenges Race Based Proof Prima Facie Case What Constitutes. A criminal defendant establishes a prima facie case of purposeful discrimination by the State in its exercise of a peremptory challenge to remove a prospective juror of particular race by showing (1) that he or she is a member of a cognizable racial group and (2) that the peremptory challenge and other relevant circumstances raise an inference that the State used the peremptory challenge to exclude the potential juror on account of the juror's race. [11] Jury Selection Peremptory Challenges Race Based Proof Prima Facie Case State Standards. The type and amount of proof necessary for a criminal defendant to establish that the State exercised a peremptory challenge to remove a prospective juror based on race is a matter addressed to the courts of the State. [12] Jury Selection Peremptory Challenges Race Based Proof Single Challenge Inference of Discrimination Discretion of Court. A trial court may find a prima facie case of purposeful discrimination by the State based solely on the State's peremptory dismissal of the only remaining member of a racially cognizable group eligible to serve on the jury but is not required to do so. [13] Jury Selection Peremptory Challenges Race Based Proof Consistent Pattern of Discrimination Necessity. A consistent pattern of official racial discrimination is not a necessary predicate to a finding that the State exercised a peremptory challenge to exclude a prospective juror based on race in violation of the equal protection clause of the Fourteenth Amendment. A single invidiously discriminatory governmental act is not immunized by the absence of such discrimination in the making of other comparable decisions. For evidentiary requirements to dictate that several must suffer discrimination before one could object would be inconsistent with the promise of equal protection to all. [14] Jury Selection Peremptory Challenges Race Based Proof Prima Facie Case Lack of Questioning Before Dismissal. The State's failure to orally question a prospective juror of a racially cognizable group before exercising a peremptory challenge to exclude the juror may be sufficient to establish a prima facie case of purposeful discrimination. [15] Jury Selection Peremptory Challenges Race Based Proof Prima Facie Case Necessity Review. Where the State, at the outset of a criminal trial, offers a race-neutral explanation for the use of a peremptory challenge to remove a prospective juror of a particular race and the trial court rules on the question of racial motivation, there is no need for the defendant challenging the State's use of the peremptory challenge to establish a prima facie case of racial motivation. Under such circumstances, a reviewing court should focus its deferential review on the trial court's ultimate ruling on the question of racial motivation. [16] Jury Selection Peremptory Challenges Race Based Review Deference to Trial Court Basis. A trial court's ruling on the question of racial motivation in the State's use of a peremptory challenge to remove a prospective juror of a particular race is accorded great deference on appeal because evaluation of the prosecutor's state of mind based on demeanor and credibility lies peculiarly within the trial court's province; a reviewing court is not as well positioned as the trial court to make such determinations. [17] Jury Selection Peremptory Challenges Race Based Trial Court's Ruling Prompt Ruling Sufficiency. A trial court may promptly rule on the question of racial motivation in the State's use of a peremptory challenge to dismiss a prospective juror of a particular race so as to avoid substantial disruption of the jury selection process. [18] Jury Selection Peremptory Challenges Race Based Trial Court's Ruling Sufficiency Findings in Favor of State. A trial court's finding that a criminal defendant has set forth a weak prima facie case of racial motivation in the State's use of a peremptory challenge to dismiss a prospective juror of a particular race and its finding that the State's explanation for the juror's dismissal is credible and in accordance with common jury selection considerations may be sufficient to support the court's ruling that there is no racial motivation in the State's use of the peremptory challenge. CHAMBERS, J., concurs by separate opinion; SANDERS, J., ALEXANDER, C.J., and MADSEN, J., dissent by separate opinion; STEPHENS, J., did not participate in the disposition of this case. Nature of Action: Defendants Hicks and Babbs were jointly prosecuted for aggravated first degree murder and, in the alternative, first degree intentional murder and first degree felony murder, with first or second degree robbery as the underlying felony; attempted murder; and unlawful possession of a firearm. Superior Court: After holding two trials as the result of a mistrial on one of the charges, the Superior Court for Pierce County, No. 01-1-02238-7, Thomas Felnagle, J., on April 16, 2004, entered judgments on verdicts finding both defendants guilty of first degree felony murder and attempted murder and finding defendant Hicks guilty of unlawful possession of a firearm. Court of Appeals: The court affirmed the judgments by an unpublished opinion noted at 134 Wn. App. 1026 (2006). Supreme Court: Holding that the defendants were not prejudiced in the first trial by defense counsel's informing the jury that the case did not involve the death penalty or by defense counsel's failure to object to similar statements made by the trial court and the prosecutor, and that the trial court properly denied the defendants' challenge to the State's peremptory dismissal of the only remaining African-American from the jury in the second trial, the court affirms the judgments. Rita J. Griffith-; and David B. Koch- (of Nielsen, Broman & Koch, PLLC), for petitioners. Gerald A. Horne-, Prosecuting Attorney, and Kathleen Proctor-, Deputy, for respondent. Kathryn C. Loring-, Nicholas P. Gellert-, Julia P. Clarke-, Sarah A. Dunne-, and Nancy L. Talner- on behalf of American Civil Liberties Union, amicus curiae. En Banc Ά1 J.M. JOHNSON, J. Phillip Hicks and Rashad Babbs were convicted at two separate trials for the murder of Chica Webber (first trial) and the attempted murder of Jonathan Webber (second trial). We must determine whether their defense counsel was ineffective in informing potential jurors that the case was noncapital and in not objecting to the trial court and prosecution doing the same. We must also decide whether the trial court erred in denying the defendants' Batson Ά2 We hold that under our current precedent, informing the jury that the case is noncapital and failing to object to the trial court and prosecution doing the same, is deficient performance of counsel. In this case, the error was nonprejudicial. We additionally hold that the trial court's denial of the Batson challenge was not clearly erroneous. For reasons stated, we affirm the convictions. FACTS AND PROCEDURAL HISTORY Ά3 On the night of March 21, 2001, two men approached Jonathan Webber and his wife Chica as they were walking from a friend's house and asked the couple if they had drugs. The Webbers told the men that they did not and kept walking. The two men followed the Webbers, demanding several times that they empty their pockets. The Webbers continued walking, and the two men started shooting at them. Jonathan Ά4 After the attack, the shooters ran off through an alley. A search of the area recovered a .22 revolver, a brown glove, a black leather jacket, a knit stocking cap, and a sweatshirt. The sweatshirt had DNA (deoxyribonucleic acid) that later testing found to be consistent with Babbs's DNA. The jacket also contained items linked to Babbs's sister and cousin. Ά5 On the night of the shooting, a man not wearing a jacket pounded on the window of Dana Duncan. Duncan did not know the man, but he convinced her he knew her brother. She gave the man a ride to another part of town. Shortly after Duncan arrived home, she received a thank you call from a cell phone linked to Babbs. Duncan first had difficulty identifying Babbs but eventually testified that Babbs was the man who had come to her window. Ά6 On April 24, 2001, the police arrested Hicks for unrelated drug dealing charges. Hicks made statements implicating himself in the Webber shootings both before and after he was read his Miranda Ά7 For Chica's death, the State charged Hicks and Babbs with aggravated first degree murder and in the alternative, first degree intentional murder and first degree felony murder, with first or second degree robbery as the underlying felony. The State also charged Hicks and Babbs with attempted murder of Jonathan and unlawful firearm possession. Babbs pleaded guilty to the firearm charge before trial. Ά8 At the first trial during voir dire, juror nine expressed concern that her religious beliefs might interfere with her ability to decide the case. When the trial judge asked her to think of an area where her church's teachings might conflict with her jury service, she mentioned capital punishment. After a sidebar with the attorneys, the trial court informed the jury that "[t]his is not a death penalty case. So that issue is one that I suppose could come in conflict with your religious beliefs, but it is not one that is at issue in this case. So that may remove some of your problem." Verbatim Report of Proceedings (VRP) (Apr. 22, 2003) at 74-75. There was no objection on the record from counsel. Juror nine then stated she could follow the law as given to her. Ά9 Later during voir dire, the prosecutor asked juror nine whether she would feel uncomfortable having to make a decision about the guilt or innocence of another human being. The juror responded, "No. I feel I try not to make a mistake, because . . . some people were executed, then they found out they were innocent afterwards." Id. at 155. The prosecutor then confirmed that because capital punishment was not an issue, juror nine was eligible to serve. Ά10 Both the defense and the prosecution referenced the nonapplicability of the death penalty on a few more occasions during voir dire. When counsel for Hicks reminded jurors that the case did not involve the death penalty, the prosecutor objected, and the trial court instructed the venire members that they should not consider punishment except to make them careful. Later, juror 33 said, "I recall it was a law professor that said to me in a conversation we had, he says, 'I'd rather see 10 guilty people on the street than one innocent person in the electric chair.' " VRP (Apr. 23, 2003) at 63-64. Counsel for Babbs responded, "Okay. All right. Again, we are not heading toward the death penalty in this case, but I understand." Id. The juror responded, "Right. Of course." Id. The State dismissed juror 33, but the remaining jurors had all been present for this exchange on the death penalty. Additionally, during closing argument, the trial deputy also alluded to the case being noncapital. Contrasting Hicks's situation with decedent Chica's, she told jurors, "at least he has a life. At least he can choose whether or not he's going to grow old to a ripe old age. He can choose whether he wants to see his friends or his family." VRP (May 12, 2003 ) at 31. Ά11 The jury convicted Hicks and Babbs of first degree felony murder of Chica. The jury also convicted Hicks of the firearm charge. The jury could not reach a verdict on the attempted murder charges. Consequently, after a two day impasse, the trial court declared a mistrial on those charges. Ά12 A second trial was held on the attempted murder charges. During the jury voir dire, counsel for Hicks and Babbs both objected when the State used a peremptory challenge to remove juror nine, the only remaining African-American juror from the venire. (Juror 17, another African-American juror, was challenged for cause because he knew many of the witnesses and thought this knowledge would impact his assessment of their credibility, and juror 54, also African-American, fell ill and did not return.) Defense counsel argued that, because the prosecutor had not asked this juror any questions, [The juror] has a master's in education. Whether it's science or not, people who are educators tend to be non-state type jurors that tend to be more forgiving, nurturing types, that necessarily aren't going to look for reasons to excuse behavior. She also happens to be a social worker, which is another red flag for a prosecutor. . . . . Further, [the juror] also indicated that somebody in her family, either a friend or relative, has been arrested and served time. Id. at 496-97. Ά13 In response, the trial court remarked, "[h]e must have read the same version of the jury selection book that's been on my shelf for years." Id. at 497. The defense counsel reminded the court that the final step of Batson required the trial court's determination. After the prosecution's reiteration of his reasons for the strike, the court said "Okay. The Batson challenge is denied." Id. at 497-98. The jury at the second trial convicted Hicks and Babbs of attempted murder of Jonathan. Ά14 Hicks and Babbs appealed their convictions for first degree felony murder, attempted murder, and unlawful possession of a firearm. They contended that they received ineffective assistance of counsel in their first trial because their attorneys informed the jury that the case was noncapital and failed to object to the trial court and prosecution doing the same, and that this information was prejudicial. Ά15 Additionally, Hicks and Babbs claimed that the trial judge in their second trial erred in denying their Batson challenge. They contended that the judge failed to perform the third step of Batson's three-part analysis. They argued that even though the prosecutor's reasons for excusing the only remaining African-American juror were race-neutral, they were clearly pretextual. Ά16 On appeal, the Court of Appeals affirmed all convictions. Although the court found that the defense counsel's performance was deficient insofar as they did not object to the trial court informing the jury that the case was noncapital, the court held that the error was nonprejudicial because Hicks and Babbs failed to show that the trial outcome would likely have differed. Ά17 The Court of Appeals also upheld the trial court's denial of the Batson challenge. The court did not address whether the trial court properly performed Batson's third step or whether the prosecutor's offered reasons were pretextual. Instead, the court addressed the trial court's finding of a prima facie case. The Court of Appeals held that because defense counsel never established a prima facie case, the trial court did not err in denying the Batson challenge. STANDARD OF REVIEW ANALYSIS A. Defendants Received Effective Assistance of Counsel 1. Precedent in this Court Supports Finding that Counsel's Performance Was Deficient Ά22 In Townsend, we also rejected the argument that revealing this information was part of a legitimate tactic, reasoning that "[t]here was no possible advantage to be gained by defense counsel's failures to object to the comments regarding the death penalty. On the contrary, such instructions, if anything, would only increase the likelihood of a juror convicting the petitioner." Id. at 847. We further noted "if jurors know that the death penalty is not involved, they may be less attentive during trial, less deliberative in their assessment of the evidence, and less inclined to hold out if they know that execution is not a possibility." Id. Ά23 Recently, in State v. Mason, 160 Wn.2d 910, 929, 162 P.3d 396 (2007), we also declined to recognize a distinction between a court or counsel-initiated and a juror-initiated discussion of the inapplicability of the death penalty. Thus, under our precedent, in response to any mention of capital punishment, the trial judge should state generally that the jury is not to consider sentencing. Ά24 Applying both Townsend and Mason, we hold that the defense counsel's performance was deficient insofar as counsel informed the jury that the case was noncapital and failed to object when the trial court and prosecution made similar reference. 2. Counsel's Deficient Performance Was Not Prejudicial [The jurors] have deliberated pretty steadily through two days. They worked pretty much through lunch both times. They did break for lunch, but a shortened lunch, and the presiding juror was pretty clear and pretty adamant, I thought both by what he said and the way he said it, that they were not going to benefit from further deliberation, and we have to remember that they had sent out a question earlier that seemed to indicate that they were already at impasse, and they've had a good bit of time since then to try to break that impasse with no apparent movement whatsoever. VRP (May 14, 2003) at 21. Ά27 Moreover, since Hicks and Babbs were not convicted by the first jury of the most serious charges (aggravated murder concerning Chica and attempted murder concerning Jonathan), the harm feared in Townsend that a jury might be more likely to convict was not manifest. We find defense counsel's deficient performance in this case nonprejudicial. B. The Trial Court's Denial of the Batson Challenge Was Not Clearly Erroneous 1. Federal law governing Batson 2. Washington's Application of Batson a. A Trial Court May in Its Discretion Find a Prima Facie Case Based on Removal of the Sole Remaining Venire Person from a Constitutionally Cognizable Group Ά32 Hicks and Babbs cite decisions from other jurisdictions that have similarly found that striking the sole remaining African-American, Hispanic, or Native American juror may be sufficient for a prima facie case under Batson. Ά33 The Batson Court also declared that "[w]e have confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor's use of peremptory challenges creates a prima facie case of discrimination against black jurors." Id. at 97. Ά35 In a brief in support of the defendants, amicus American Civil Liberties Union emphasizes that this court has found that the Washington Constitution provides greater protection for jury trials than is provided in the federal constitution. See, e.g., City of Pasco v. Mace, 98 Wn.2d 87, 99, 653 P.2d 618 (1982). Article I, section 21 states, "The right of trial by jury shall remain inviolate. . . ." In interpreting "inviolate," this court has relied on Webster's definition: " 'free from change or blemish: PURE, UNBROKEN . . . free from assault or trespass: UNTOUCHED, INTACT.' " State v. Smith, 150 Wn.2d 135, 150, 75 P.3d 934 (2003) (quoting WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1190 (1993)). Ά36 The increased protection of jury trials under the Washington Constitution further supports allowing the trial judge, in his discretion, to find a prima facie case of discrimination when the State removes the sole remaining venire person from a constitutionally cognizable group. b. Whether Defendants Established a Prima Facie Case Is Not Necessary To Decide on Review Ά38 In the instant case, where the trial court found a prima facie case "out of an abundance of caution," the prosecutor offered a race-neutral explanation, and the trial court properly ruled, whether a prima facie case was established does not need to be determined. 5 VRP (Jan. 30, 2004) at 496. A reviewing court should focus its deferential review on the trial court's ultimate ruling on the Batson challenge. The discussion of a prima facie case, supra, is included only to clear up confusion among the lower courts. c. The Trial Court's Denial of the Batson Challenge Was Not Clearly Erroneous CONCLUSION Ά41 Under our current precedent, informing the jury that the case is noncapital and failing to object to the trial court and prosecution doing the same is deficient performance of counsel. If the death penalty is mentioned, a trial judge should state generally that the jury is not to consider sentencing. The error here, however, was nonprejudicial. Additionally, the trial court's denial of the Batson challenge to one juror was not clearly erroneous. We affirm all convictions. C. JOHNSON, OWENS, and FAIRHURST, JJ., and BRIDGE, J. PRO TEM., concur. Ά42 CHAMBERS, J. (concurring) I agree with the majority that it was improper to inform potential jurors that Phillip Hicks and Rashad Babbs did not face the death penalty. However, I do not agree that defense counsel's performance was deficient or fell below professional standards merely because he failed to object when the prosecutor and trial judge did so. See majority at 12. Ά43 We held in State v. Townsend, 142 Wn.2d 838, 846-47, 15 P.3d 145 (2001), that jurors should not be informed during voir dire that a case involved the death penalty. Given our clear statement of the law, it was error for the trial judge to permit the issue of punishment to be addressed in jury selection, and it was, at least technically, an error for trial counsel not to object. Id. at 847. But cf. State v. Mason, 160 Wn.2d 910, 931, 162 P.3d 396 (2007) (Townsend error can be harmless). Ά44 I write separately solely on the issue of whether this technical error on defense counsel's part amounts to deficient performance thus meeting the first element of ineffective assistance of counsel. See State v. Davis, 119 Wn.2d 657, 664-65, 835 P.2d 1039 (1992) ("[f]irst, the defendant must show that counsel's performance was deficient . . . requir[ing] showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment" (alterations in original) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984))). It is an old adage among trial lawyers that when the law is on your side you argue the law, when it is not you argue the facts, and when you have neither you pound the table. While lawyers may not mislead the court, it is not always in the client's best interest to energetically argue every technicality of the law. The real skill in advocacy is not in high flying oratory or in raising every possible objection, but in making the hard decisions as to if, when, and how to argue the facts and the law. Ά45 While we have instructed in Townsend that it is improper to raise the issue of punishment during jury selection, the truth is that for the trial lawyer, jury selection is a mix of science, art, and gut feeling. What is a trial lawyer to do when she has three potential jurors whom she would love to sit on her client's case? The jurors share similar backgrounds, occupations, and experiences with her client, which causes her to believe they will relate to her client. They have made statements during jury selection which lead her to believe they will be sympathetic to the arguments she intends to advance on behalf of her client. But all three have made statements to suggest they are morally opposed to the death penalty. Trial counsel could be reasonably concerned that, if in doubt as to whether or not the case involves capital punishment, the jurors will simply declare that they cannot be fair and impartial. Trial counsel knows the law and knows her duty but could well make a calculated decision that her client has a significantly better chance of acquittal if these jurors are informed that the case is not capital and that they may, in good moral conscience, become a juror. While counsel may not mislead the court as to the law, in such a case counsel should not be faulted for not objecting to the jury being informed that the case does not involve the death penalty. Ά46 While I can follow precedent and enforce the law, I cannot impugn the competence, integrity, or effectiveness of trial counsel in such circumstances. There was no deficient performance of counsel in this case, and thus no need to reach whether any failure should undermine our confidence in the jury's verdict. I concur in result. Ά47 SANDERS, J. (dissenting) We are here challenged in two different settings to ensure the impartiality of a criminal jury. In the first trial, the jury was told by the lawyers and judge the death penalty was not sought, heightening the risk of conviction by a jury which might have been more cautious were the death penalty a prospect. In the second trial, the State removed the only African-American from the jury, creating a jury which entirely excluded anyone of the same race as the defendants. I. Hicks and Babbs were prejudiced by ineffective counsel Ά48 The majority correctly holds Phillip Hicks's and Rashad Babbs's counsel "was deficient insofar as counsel informed the jury that the case was noncapital and failed to object when the trial court and prosecution made similar reference"; Ά49 The majority asserts the defendants did not establish "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." State v. Cienfuegos, 144 Wn.2d 222, 229, 25 P.3d 1011 (2001); see majority at 10-87. However, that is not the test. Rather, "[a] reasonable probability is a probability sufficient to undermine confidence in the outcome." Cienfuegos, 144 Wn.2d at 229 (citing Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). Ά50 One cannot be confident the outcome of the trial would have been the same had the jury not been told the death penalty was not an option. As we held in Townsend, advising the jury the death penalty is off the table "increase[s] the likelihood of a juror convicting the petitioner." State v. Townsend, 142 Wn.2d 838, 847, 15 P.3d 145 (2001). The majority recognizes this danger, as well as the danger jurors may be less attentive, less deliberative, and less inclined to hold out during deliberations, Ά51 Rather the majority speculates defendants were not prejudiced by counsel's mistake because the jury was active in its deliberation, there was an abundance of evidence to support the conviction, and the defendants were not convicted of the most serious charges. Majority at 12-13. But none of this demonstrates the jury was not less attentive or less inclined to hold out during deliberations than they would have been if they were not informed of the noncapital nature of the case. Assuming arguendo the jury was active in its deliberation, it does not prove the deliberation might not have been more active absent counsel's error. That the defendants were convicted only of a less serious charge likewise does not demonstrate the jury might not have acquitted the defendants of all charges but for counsel's error. Ά52 In addition, the majority impermissibly invades the province of the jury when it rests on the alleged abundance of evidence against the defendants. II. The State improperly removed the only African-American juror from the jury Ά53 In addition to refusing to supply a remedy for the defendants' ineffective assistance of counsel, the majority errs when it upholds the trial court's denial of the defendants' Batson Ά54 Batson holds equal protection is denied when the State excludes members of the defendant's race from the venire on the basis of their race. 476 U.S. 79. There the Court developed a three-part test to determine whether the exclusion of a juror is impermissible. First, the defendant must make a prima facie case of purposeful discrimination by the State. Id. at 93-94. Once that showing is made, the burden shifts to the State to provide valid, nondiscriminatory reasons for challenging the juror. Id. at 97. The majority properly holds the first two parts of the Batson test were satisfied. Ά55 The final step Batson requires is the trial court weigh the evidence of discrimination against the reasons presented for dismissing the juror to "determine whether the defendant has carried his burden of proving purposeful discrimination." Hernandez v. New York, 500 U.S. 352, 359, 111 S. Ct. 1859, 114 L. Ed. 2d 395 (1991). " 'An invidious discriminatory purpose may often be inferred from the totality of the relevant facts. . . .' " Id. at 363 (quoting Washington v. Davis, 426 U.S. 229, 242, 96 S. Ct. 2040, 48 L. Ed. 2d 597 (1976)). "A prosecutor's motives may be revealed as pretextual where a given explanation is equally applicable to a juror of a different race who was not stricken by the exercise of a peremptory challenge." McClain v. Prunty, 217 F.3d 1209, 1220 (9th Cir. 2000); see also Snyder v. Louisiana, 552 U.S. ___, 128 S. Ct. 1203, 1211, 170 L. Ed. 2d 175 (2008) ("The implausibility of this explanation is reinforced by the prosecutor's acceptance of white jurors who disclosed conflicting obligations that appear to have been at least as serious as Mr. Brooks'."). Where a proffered reason is shown to be pretextual, it "gives rise to an inference of discriminatory intent." Id. at 1212. Ά56 Here the prosecution provided two separate rationales for exercising a peremptory challenge to remove juror nine. First, the State asserted the juror was an educator and a social worker, which the State believed made her a "nonstate type juror." Ά57 The State's second proffered reason is juror nine's relationship with someone who had served time, which apparently made her a "nonstate type juror" as well. III. Conclusion Ά58 I would reverse the defendants' convictions in the first trial because the defendants' counsel was ineffective, and confidence in the verdict but for the ineffectiveness is undermined. In the second trial, the State failed to present any nonpretextual reason for dismissing juror nine and hence violated Batson. As such, I would reverse all convictions and remand for a new trial. Ά59 I dissent. ALEXANDER, C.J., and MADSEN, J., concur with SANDERS, J.