KONENKAMP, Justice.
[¶ 1.] Defendant was convicted of aggravated assault. On appeal, he alleges multiple errors in his trial. We affirm all issues but one. On that issue, we remand for further proceedings on a potential Batson violation.
[¶ 2.] At 2:30 a.m. on July 16, 2011, Officer Evan Harris responded to a 911 call near North Maple Street in Rapid City. On arriving, he saw a shirtless man, Derrick P. Scott, pulling a woman, Theda Mesteth, across the parking lot. Mesteth began waving her hands at the officer and pulled away from Scott. On approaching Scott, the officer noticed blood smears across his chest and arms. Scott was handcuffed and seated in the patrol car.
[¶ 3.] Mesteth was lying nearby. Her face was swollen and covered in blood. Concerned that her cheekbones were broken, the officer did not attempt to move her. He tried to keep her calm while awaiting medical assistance. In the meantime, Officer Michael Shyne arrived and photographed Mesteth's injuries. An ambulance took her to the hospital.
[¶ 4.] Earlier that evening, according to trial testimony, Wenona De'Sersa came
[¶ 5.] Around 2:00 a.m., Mesteth and Scott got into an argument: Scott had used Mesteth's phone to call another woman. Mesteth grabbed the phone from Scott's hands and picked up her son. As she walked out of the living room and into the kitchen, Scott followed. De'Sersa testified that Scott wrapped his arms around Mesteth's neck in a chokehold, causing her baby to slide down her body and onto the floor. De'Sersa tried to stop Scott, but he punched her on the side of her head. Scott continued his chokehold until Mesteth went limp. De'Sersa's nephew grabbed the baby, retreated to a bedroom, and locked the door. Scott dropped Mesteth, who fell unconscious to the kitchen floor, and ran after his son.
[¶ 6.] Scott yelled for his son and kicked the door, but ultimately came back to the kitchen. He grabbed Mesteth by the hair and punched her twenty times, by De'Sersa's count. He then dragged Mesteth outside through the entryway and continued to punch her. De'Sersa followed begging Scott to stop. He punched De'Sersa in the chest. Scott continued to punch and kick Mesteth until the police arrived.
[¶ 7.] At the hospital, an emergency room nurse, Robin Johnson, attended to Mesteth. Johnson noted that Mesteth's face was "really swollen, black and blue on the right side," and that she was complaining of pain in her jaw and face, saying it hurt at the level of 10 on a scale of 1 to 10, with 10 being the most painful. Johnson also noted that Mesteth had slurred speech, but specifically observed that it was not similar to that of an intoxicated person. Mesteth told Johnson that she was punched and choked until she became unconscious.
[¶ 8.] Mesteth had been placed in a cervical collar. After a CT scan revealed no head injuries, Johnson removed the collar. With the collar gone, Johnson noticed a pool of blood beneath Mesteth's upper shoulder area, caused by an apparent stab wound. Mesteth also had a laceration behind her ear. Both wounds received stitches. Mesteth suffered neither broken bones nor brain injuries. She remained in the hospital for three days.
[¶ 9.] Mesteth did not testify at trial, but Scott was nonetheless convicted by a jury of aggravated assault. He then admitted to being a habitual offender, and the circuit court sentenced him to eleven years in the penitentiary. Scott appeals asserting that the court (1) abused its discretion when it allowed improper questioning during the State's voir dire, (2) allowed a Batson violation when the State exercised a preemptory challenge of a Native American juror, (3) abused its discretion when it admitted certain photographic evidence, (4) abused its discretion when it permitted a domestic violence expert to testify, (5) violated his right of confrontation by restricting his cross examination of the emergency room nurse, and (6) erred when it denied a judgment of acquittal for insufficient evidence to sustain the verdict.
[¶ 10.] Scott argues that the State's questions during jury selection implanted notions in the prospective jurors' minds that would not later be supported by the evidence. According to Scott, the State went beyond asking potential jurors whether they would be able to convict Scott if Mesteth did not testify or whether they would be biased because Mesteth might not testify. In Scott's view, the State sought to "educate" potential jurors on reasons why victims of domestic violence might not testify, and thereby persuade them to the State's viewpoint and test its trial strategy of not calling Mesteth as a witness.
[¶ 11.] When this issue arose during voir dire, Scott timely objected, and the court took a short recess to address it. Scott contended in chambers that the State's questions were an attempt to speculate with potential jurors why Mesteth would not testify. In response, the State asserted that "this is a point to educate the jury." The court replied, "No, it's not to educate the jury. It's to get a fair and impartial jury." The court directed the State to keep its questions general, "no different than how do people perceive and have an attitude about alcohol. If there's an idea that this may be domestic violence, do people have a misperception or a prejudice towards that and that's what you want to get [for] a fair and impartial jury."
[¶ 12.] Back in court, the State asked the following questions:
[¶ 13.] Prospective jurors may be properly questioned about their attitudes on certain types of evidence, but it is improper to present them with hypothetical facts and ask them to commit to a decision based on those facts. State v. Moeller, 2000 S.D. 122, ¶ 50, 616 N.W.2d 424, 441 (citation omitted). Counsel cannot "stak[e] out" juror commitments, except to obtain a promise that they will remain attentive and follow the court's instructions. See id. ¶ 53. In deciding whether questions exceed the proper scope of voir dire, courts can look to whether they: (1) seek to uncover biases, prejudgments, or prejudices; (2) attempt to ascertain impartiality and qualifications; or (3) undertake to entrap, influence, or obtain a pledge on issues expected to arise in trial. See SDCL 23A-20-13.1; State v. Fool Bull, 2009 S.D. 36, ¶ 44, 766 N.W.2d 159, 169; see also State v. Iromuanya, 282 Neb. 798, 806 N.W.2d 404, 425 (2011); Commonwealth v. Bridges, 563 Pa. 1, 757 A.2d 859, 872 (2000), abrogated in part by Commonwealth v. Freeman, 573 Pa. 532, 827 A.2d 385 (2003).
[¶ 14.] Some of the State's questions here might have touched a fine line — especially in suggesting why the victim might not testify, knowing that no evidence on the question would be offered at trial. But, on the whole, the questions probed the minds of potential jurors to determine whether they had predispositions about a case involving domestic violence and a victim who might not testify for some unknown reason. These questions did not evince an attempt to entrap, influence, commit, or obtain a pledge from prospective jurors. Thus, we find no
[¶ 15.] Scott next argues that the circuit court applied the wrong legal standard when it overruled his claim that the State violated Batson in striking a Native American juror. During jury selection, when the State struck Juror Laroche, Scott objected, contending that it was done solely because she is Native American. The State denied the claim, and the following exchange took place, outside the hearing of the jury:
[¶ 16.] The test to determine whether a Batson violation has occurred is well-settled:
Johnson v. California, 545 U.S. 162, 168, 125 S.Ct. 2410, 2416, 162 L.Ed.2d 129 (2005).
[¶ 17.] Here, Scott established a prima facie case for purposeful discrimination in the preemptory strike of Juror Laroche, a Native American. See Owen, 2007 S.D. 21, ¶ 45, 729 N.W.2d at 369. In response, the State offered the race-neutral explanation that it did not get a good "feeling" from Juror Laroche when she answered the State's one question, and that Juror Laroche had been charged with or investigated for threatening behavior. The first two Batson steps were met.
[¶ 18.] The third step requires the court to determine whether Scott established purposeful discrimination. Indeed, the Supreme Court stated that "[i]t is not until the third step that the persuasiveness of the justification becomes relevant — the step in which the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination." Johnson, 545 U.S. at 171, 125 S.Ct. at 2418 (quoting Purkett, 514 U.S. at 768, 115 S.Ct. at 1771). This step is pivotal in the Batson evaluation. Snyder v. Louisiana, 552 U.S. 472, 477, 128 S.Ct. 1203, 1208, 170 L.Ed.2d 175 (2008). A court's findings are afforded great deference, as the analysis depends highly on credibility. United States v. Maxwell, 473 F.3d 868, 872 (8th Cir.2007).
[¶ 19.] In the third step, the Batson inquiry cannot be a "farcical ritual," meaning that a trial court should not supinely accept "any purportedly race-neutral reason that a skilled attorney can conjure up in response to a Batson challenge," but must decide if the reason offered for the strike was "merely a pretext designed to mask the improper consideration of race to exclude" a juror. Coombs v. Diguglielmo, 616 F.3d 255, 261 n. 5 (3d Cir.2010) (citations omitted); see Miller-El, 545 U.S. at 251-52, 125 S.Ct. at 2331-32.
[¶ 20.] But the circuit court here never reached the third step and thus made no findings on whether the State was motivated by discriminatory intent based on all the evidence. Rather, it disposed of Scott's challenge by ruling that "we only have one person here, ... not ... a pattern here. It's just one." In the circuit court's view, the fact that one Native American juror was removed was insufficient, because "there hasn't been a pattern of striking jurors of any certain categories in this."
[¶ 21.] A pattern of striking Native Americans is not required for a finding that the State was motivated by purposeful discrimination when it struck one Native American prospective juror. See United States v. Horsley, 864 F.2d 1543, 1546 (11th Cir.1989). Under Batson, the circuit court had the duty to assess the veracity of the State's race-neutral reasons and determine whether Scott met his burden of proving purposeful discrimination. See Snyder, 552 U.S. at 477, 128 S.Ct. at 1208.
[¶ 22.] Because the circuit court failed to complete its Batson-mandated analysis, the question becomes what relief is required. A Batson violation usually
[¶ 23.] We remand to the circuit court to determine if Scott proved that the State was motivated by purposeful discrimination. The court is directed to make specific findings on the basis for the State's "feeling" toward Juror Laroche and the validity of the State's claim that Juror Laroche had been charged with or investigated for criminal behavior. If the court finds no racial motivation, the judgment will stand affirmed, subject to Scott's right to appeal this finding. If the court concludes that Scott proved purposeful discrimination or the court is unable to reach a conclusion because of the passage of time, Scott's conviction should be vacated and a new trial ordered. See Rutledge, 648 F.3d at 562.
[¶ 24.] We cannot remand to Circuit Court Judge Thorstenson, who presided here, because she has since left the bench to take another judicial position. In similar circumstances, other courts have remanded to a new judge to complete the required Batson analysis. See People v. Davis, 368 Ill.App.3d 17, 305 Ill.Dec. 848, 856 N.E.2d 653, 655 (2006). We are well aware of the "practical difficulties" this may present. See State v. Cannon, 41 P.3d 1153, 1158 (Utah Ct.App.2002). If the newly assigned judge determines that insufficient evidence exists to make the necessary findings, then a new trial must be ordered.
[¶ 25.] Over objection, the circuit court admitted exhibits #2-6, which were photographs taken of Mesteth by Officer Shyne at the scene. Scott argued that they did not show Mesteth's actual injuries and were designed to inflame the jury. What the photos depict is, in a word, gruesome: Mesteth lying on her back, in obvious distress, her face black and blue, extremely swollen, and spattered with blood. One particularly graphic photo shows an up-close view of the blood pooling in her ear and another of a bleeding laceration. In a bench discussion on the record, the court ruled that "they did portray what the witness had described. We had the officer describing it. We also had the last witness, De'Sersa, describing it, and if it will assist in the verbal descriptions of those objects, I find them to be relevant[.]"
[¶ 26.] "Photographs are admissible `(1) when they portray anything that a witness may describe, and (2) when they assist in a verbal description of objects or conditions and are relevant to some material issue.'" State v. Hart, 1998 S.D. 93, ¶ 21, 584 N.W.2d 863, 867 (quoting State v.
[¶ 27.] On appeal, Scott asserts that the court failed to specifically weigh the probative value of the photos against their prejudicial effect. In objecting to the photos on the basis that they were inflammatory, defense counsel properly invoked the balancing test in SDCL 19-12-3 (Rule 403). When photographic evidence is challenged for its prejudicial effect, the court "`must weigh the probative value of the photographs in resolving a material issue as against the danger of prejudice to the [objecting party] through needless arousals of the passions of the jurors.'" State v. Woodfork, 454 N.W.2d 332, 337 (S.D.1990) (citation omitted).
[¶ 28.] Nothing in the record indicates that the court specifically weighed the probative value of the photos against their prejudicial effect. Yet Scott directs us to no authority that when admitting or denying photographic evidence a court must conduct the balancing test on the record. See Owen, 2007 S.D. 21, ¶ 17, 729 N.W.2d at 363. Our precedent requires only an on-the-record balancing test for "other acts evidence." Id. And although it would be helpful for appellate review, SDCL 19-12-3 (Rule 403) "does not explicitly require a finding by the trial judge that probative worth is outweighed by countervailing factors." See 22A Fed. Prac. & Proc. Evid. § 5224 (2d ed. 2012).
[¶ 29.] Moreover, Scott directs us to no specific prejudice warranting reversal in admitting the photographs without weighing the probative value against its prejudicial effect. See Fool Bull, 2008 S.D. 11, ¶ 10, 745 N.W.2d at 385. He does not dispute the relevancy of the photos. Indeed, they were highly relevant. Scott was charged with causing or attempting to cause "serious bodily injury ... under circumstances manifesting extreme indifference to the value of human life[.]" SDCL 22-18-1.1(1). These photos surely augment the proof of that charge. They depict Mesteth's condition moments after Scott had brutally beaten her. True, the photos are gruesome, but the charged crime is itself gruesome. Although the circuit court did not articulate the balancing test called for by SDCL 19-12-3 (Rule 403), we are satisfied that the court did not abuse its discretion in admitting the photographs.
[¶ 30.] The remaining issues — admitting domestic violence expert testimony, restricting the scope of defense cross-examination of the emergency room nurse, and denying a motion for a judgment of acquittal on insufficiency of the evidence — lack sufficient merit for discussion.
[¶ 31.] Affirmed in part and remanded for further proceedings.
[¶ 32.] GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and WILBUR, Justices, concur.
