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IN THE COURT OF APPEALS OF IOWA No. 1-052 / 10-0853 Filed March 7, 2011

STATE OF IOWA, Plaintiff-Appellee, vs. MAMIE LIZZIE KIRK, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Scott County, Paul L. Macek, Judge.

Appeal from convictions of second-degree robbery and first-degree theft. AFFIRMED.

Mark C. Smith, State Appellate Defender, and Robert P. Ranschau, Assistant Appellate Defender, for appellant. Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant Attorney General, Michael J. Walton, County Attorney, and Kelly Cunningham, Assistant County Attorney, for appellee.

Considered by Sackett, C.J., and Potterfield and Mansfield, JJ. Tabor, J., takes no part.

2 POTTERFIELD, J. Mamie Kirk appeals from judgment and sentence entered following a jury trial and verdicts of guilty of the offenses of second-degree robbery and firstdegree theft. She argues the district court erred in denying her Batson1

challenge and her motion for new trial. Because we conclude Kirk did not prove the State struck the juror due to his race, and the verdicts were not contrary to the weight of the evidence, we affirm. I. Background Facts and Proceedings. At approximately 3:15 on September 23, 2009, thirteen-year-old S.B. was walking home from school when she was approached by a group of three males and one female, all African-American and older than S.B. S.B. was nervous because the group was looking at her and whispering. S.B. brought out her cell phone and started to make a call. She had her phone to her ear when the female in the group struck her in the face and pulled her hair. S.B. fell to the ground, her nose bleeding; she dropped her cell phone. S.B. stayed on the ground for a short time and then got up to search for her cell phone. She looked for her cell phone several different times but could not find it. S.B. walked home and then returned to the area of the assault with her mother. On the way, her mother telephoned police. S.B. was interviewed by the police and she later identified two individuals as part of the group that approached her from photographic arrays: Mamie Kirk and Antwon Privett.

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Exclusion of a juror solely for race-based reasons implicates the equal protection clause of the United States Constitution. Batson v. Kentucky, 476 U.S. 79, 89, 106, S. Ct. 1712, 1719, 90 L. Ed. 2d 69, 83 (1986); State v. Griffin, 564 N.W.2d 370, 375 (Iowa 1997).

3 A woman who lived in the area where S.B. was assaulted stated she witnessed the assault through her living room window. She saw Kirk, whom she recognized from the neighborhood, and three males approach S.B. The woman saw Kirk raise her fist and she saw S.B. fall. She also saw Kirk take S.B.s cell phone. The woman identified Kirk and Privett as members of the group involved in the assault from photographic arrays. Another witness came forward while police were on the scene. This man stated he saw a group and S.B. approach each other. He saw the woman from the group grab S.B.s hair and pull her down. He stated he saw S.B. return a couple of times and it appeared she was looking for something. He identified Kirk from a photographic array. Kirk, who is African-American, was charged with robbery in the second degree and theft in the first degree. Jury trial began on March 22, 2010. The State used a peremptory strike against a juror who was born in China, acquired United States citizenship, and learned English as his second language. He has been in the United States for eighteen years, has a Ph.D. in statistics, and works as a statistician for a large corporation. Kirk made a Batson challenge to the States peremptory strike, arguing the strike was racially based. The State

responded its strike was based on the jurors limited ability to speak and understand English and consequent limited ability to participate in jury deliberation. The district court ruled the State had articulated a race-neutral

reason and denied the Batson challenge. At trial, the defense offered the testimony of several persons, all related to Kirk or Privett, who stated Kirk was elsewhere that day. Antwon Privett testified

4 he was at the scene of the assault but the woman who struck S.B. was Monique Hill. In rebuttal, the State called Ms. Hill who denied striking S.B. or taking her cell phone. Ms. Hill was brought into the courtroom and shown to S.B. and the man who witnessed the assault. Neither S.B. nor the man recognized Ms. Hill and both reaffirmed that Kirk was the person who struck S.B. The jury returned guilty verdicts on both counts and Kirk moved for a new trial, arguing the verdicts were contrary to the weight of the evidence. The trial court found the States witnesses credible, the defense witnesses not credible, and denied the new trial motion. Kirk now appeals. II. Batson challenge. Kirk first claims the court erred in overruling her challenge to the States removal of a prospective juror due to his race in violation of Batson and its progeny. This claim is premised on the contention that the State violated Kirks rights under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. See State v. Griffin, 564 N.W.2d 370, 375 (Iowa 1997). Therefore, our review is de novo. State v. Keys, 535 N.W.2d 783, 785 (Iowa Ct. App.1995). In Batson, the United States Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment prohibits a prosecutor from using peremptory strikes to challenge potential jurors solely because of their race or on the assumption they will be unable to impartially consider the States case against a defendant of the same race. Batson, 476 U.S. at 89, 106 S. Ct. at 1719, 90 L. Ed. 2d at 83. It set forth the following three-part analysis for

5 determining whether peremptory challenges or strikes have been exercised impermissibly on the basis of race: First, the defendant must establish a prima facie case of purposeful discrimination by showing that he or she is a member of a cognizable racial group and that the prosecutor has used peremptory challenges to remove prospective jurors of the defendants race,[2] raising an inference that such exclusion is discriminatory. Second, the burden shifts to the State to articulate a race-neutral reason for challenging the jurors. Finally, the trial court must determine whether the defendant has established purposeful discrimination. In other words, the court must decide whether to believe the prosecutors explanation for the peremptory challenges. The trial courts decision in this regard is accorded great deference on appeal. State v. Veal, 564 N.W.2d 797, 806

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