author: MAHAN, J.

text:
    Elite KIRAY, Plaintiff-Appellant, v. HY-VEE, INC., and Eric Kearney, Defendants-Appellees.
    No. 04-1716.
    Court of Appeals of Iowa.
    March 29, 2006.

      John S. Allen and Tanya Janulewicz, Student Legal Intern, Iowa City, for appellant.
    Thad J. Collins and Terry J. Abernathy of Pickens, Barnes & Abernathy, Cedar Rapids, for appellees.
    Heard by SACKETT, C.J., and VOGEL and MAHAN, JJ.
   MAHAN, J.

Elite Kiray appeals the district court’s judgment in her action for defamation, false imprisonment, and racial discrimination. She argues the district court erred when it (1) determined a qualified privilege applied to Hy-Vee, Inc. (Hy-Vee) employees’ communications; (2) refused to grant her proposed jury instruction that control over a person’s property can serve to restrain that person; (3) dismissed her discrimination claim; and (4) denied her claim based on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). We affirm.

I. Background Facts and Proceedings

Elite Kiray stopped at the Waterfront Hy-Vee in Iowa City sometime around 9:20 a.m. on May 17, 2001. She first deposited a check at the bank branch located just inside the store, then proceeded to shop for groceries. She purchased a whole catfish, dish soap, and bread. All of her groceries and her' receipt were placed in a Hy-Vee bag. As Kiray proceeded to leave, however, the Sense-O-Matic security system gates located at the front of the store alerted. Though Kiray claims not to have heard the alarm, Hy-Vee Second Assistant Manager Eric Kearney and bank employee Leslie Raker did.

At the time of the incident, Hy-Vee was testing the Sense-O-Matic system to determine whether to install it in other stores. The system had had several false alarms. For example, it had alerted to items that had been purchased at Hy-Vee and failed to deactivate at the check-out, to employee I.D. badges, and to items from other stores that had not been deactivated such as shoes, purses, and other leather goods.

The facts that follow are somewhat disputed. According to Kiray, Kearney walked up behind her and grabbed her grocery bag. He then walked back toward the security gates, away from Kiray and the store’s exit. He directed Kiray to walk through the gates with her purse. He asked Kiray for her purse, and then walked through the gates himself. He placed Kiray’s purse on the bank’s counter, then directed Kiray to walk through the gates with her grocery bag. He took the grocery bag, placed it on the bank’s counter with the purse, and then directed Kiray to walk through the gates. Kearney then told Kiray to wait while he got another employee. Kiray stood by the gates upset and crying. Kearney returned with another Hy-Vee manager, Michelle Patterson. Patterson carried a hand-held scanner wand. She made Kiray remove her shoes to be scanned, then scanned her body. When the alarm did not alert, Patterson walked the grocery bag back through the security gates. The alarm on the gates went off. Patterson then deactivated the tag on the package of catfish. Kearney returned Kiray’s groceries and apologized.

According to Kearney, after he heard the security alarm, he approached Kiray and asked her if there was something in her grocery bag Hy-Vee had failed to deactivate. He never believed she was shoplifting and therefore never accused her of shoplifting. He told Kiray it was not uncommon that an item would fail to deactivate, and that the catfish was the likely culprit. He asked her permission to move her grocery bag back through the gates. When the alarm did not sound, he assured her the same problem had happened before, and asked her permission to move her purse through the gates. When the alarm still did not sound, Kearney told Kiray her shoes or clothing might be activating the alarm. He asked her to walk through the gates without the groceries or her purse. The alarm alerted to Kiray. Because he could still could not find what was causing the alarm to falsely alert, he decided to use the scanner wand. In order to make Kiray more comfortable, he asked Patterson, a female manager, to use the wand. He asked Kiray if she was willing to wait while he retrieved Patterson, and she assented. At some point in her interaction with Kearney, Kiray told him she was not “like those other blacks that steal from [Hy-Vee], she was a Christian from Africa.” Kearney never mentioned race.

While Kearney was locating Patterson, Raker, the bank employee who had waited on Kiray earlier that morning, approached Kiray and told her it was common for the alarms to sound. She explained the many innocent ways Kiray could have set off the alarm. She also explained that Hy-Vee was trying to find whatever had set off the alarm so she would not set off the alarm again at Hy-Vee or at other stores.

Patterson approached Kiray with the wand and asked her to remove her shoes. When the wand did not alert to Kiray’s shoes or clothing, Patterson asked if she could take the grocery bag back through the gates. She explained that if the package was turned the wrong way, the gate might not alert. Kiray consented, and Patterson passed the bag back through the gates. When the alarm sounded, Patterson found and deactivated the catfish package. She gave the groceries back to Ki-ray. She apologized to Kiray explaining that, like they thought, the problem had been Hy-Vee’s. Kiray became very upset. Patterson apologized again. Kearney came back to apologize, and Kiray became emotional and left. At no time did Patterson believe or accuse Kiray of shoplifting. Nor did she mention Kiray’s race.

According to Kiray, she returned to the store a few minutes later to get the name of the cashier whom she had paid for the groceries. Allen Dix, the Hy-Vee Store Director, asked Kiray what had happened. She told Dix she had been accused of stealing and that she did not steal like “those other black people.” Dix observed Kiray was visibly upset, and told her that if she were that upset, “we probably didn’t do our job correctly and we hadn’t handled things right because our goal is not to have the customer leave the store that unhappy.” Dix also apologized.

Kiray brought claims of battery, false imprisonment, defamation, and discrimination against Hy-Vee and Kearney. After jury voir dire, Kiray’s counsel requested a hearing pursuant to Batson v. Kentucky. The following exchange occurred:

Plaintiffs counsel: Your Honor, thank you. This is pursuant to Batson v. Kentucky. There were two African American jurors in the prospective panel. The Defendant struck both of those jurors. I think I don’t need to hear any sort of explanation with respect to Ms. Davis.
I don’t have an issue with — I mean, I think I can understand, I don’t need to hear an explanation with respect to Ms. Davis. But I think under Batson, when the only African American jurors go out on peremptory exercise by a party, there at least has to have some sort of a showing what those bases were, and I didn’t see any for Mr. Grant, frankly.
Court: Mr. Abernathy?
Defense counsel: Well, Mr. Grant started with [sic] was similar to the Plaintiff in this case in that he is not a born citizen in the United States. He also, in response to questions from Plaintiffs counsel, expressed a clear opinion that he did not think the expression equal justice under law that appears before the United States Supreme Court building applied universally in this country, which concerns me as to whether or not he would be fair and impartial.
And Mr. Morgan, who also expressed the same concerns about equal justice, who is not a black party, was also one of my strikes. Those three people, because of their views of our justice system, not because of their race, creed, color, origin, or anything else were three of my four strikes. And my other strike, of course, was also a non-minority-
Plaintiffs counsel: I would just observe that Mr. Chen, I think would have met some of those characteristics, I think he spontaneously offered a critique of — that there was equal justice under the law, although I recognize his views were a little more complex than that, so.
Court: The court notes the record and finds that — and I heard the questioning as well and the response to not only the question to the lawyers and the rationale for the striking of those three witnesses. I guess, that have béen discussed, only two of which are black. If Mr. Morgan is a minority, it’s uncertain from his appearance, it’s not clear, but he expressed some of the same feelings as expressed by the others, so the Court notes the objections under Batson, and it’s overruled. Good enough.

During trial, the battery, false imprisonment, and defamation claims were tried to the jury; the discrimination claim was tried to the bench. The court determined that a qualified privilege applied to the Hy-Vee employees’ communications with regard to the incident, and gave the jury the following instruction:

Instruction No. 16
To establish her slander claim, Plaintiff must prove all of the following propositions:
1. The Defendants made the statements.
2. The Defendants communicated the statements to someone other than the Plaintiff.
3. The statements would reasonably be understood to be an expression which would attack a person’s integrity or moral character.
4. The Defendants acted with knowing or reckless disregard of the truth of the statements.
If the Plaintiff has failed to prove any of these propositions, the Plaintiff is not entitled to damages. If the Plaintiff has proven all of the propositions, then the Plaintiff is entitled to damages in some amount.

With respect to the false imprisonment claim, the court gave the following instructions:

Instruction No. 9
False Imprisonment is the unlawful restraint of an individual’s personal liberty or freedom of movement.
The Plaintiff must prove all of the following propositions:
1. The Plaintiff was detained or restrained against her will.
2. The detention or restraint was done by the Defendants.
3. The detention or restraint was a proximate cause of Plaintiffs damage.
4. The amount of damage.
If the Plaintiff has failed to prove any of these propositions, the Plaintiff is not entitled to damages. If the Plaintiff has proved all of these propositions, the Plaintiff is entitled to damages in some amount.
Instruction No. 10
Detention or restraint against one’s will does not need to be accomplished by physical force or threats of physical force.
It is the fact of detention rather than its length that is relevant.

Kiray also proposed the following instruction:

False Imprisonment — Detention and Restraint — Defined: Physical force, or threats of physical force, are not necessary to prove detention or restraint against one’s will.
The exercise of control over the property of a person by another can serve to restrain the person to whom the property belongs.
A customer can be restrained against his or her will when he or she submits to a store employee’s asserted authority to search a bag or the person.

The court denied the instruction.

The jury found for Hy-Vee on the battery, false imprisonment, and defamations claims. The court granted Hy-Vee’s motion to dismiss the discrimination claim. Kiray’s motion for new trial was also denied. Kiray appeals.

II. Merits

A. Qualified Privilege

Kiray argues that both the statements made by Hy-Vee employees and the dramatic pantomime they created by making her pass through the security gates were defamatory. Hy-Vee argues Kiray failed to present a prima facie case of defamation because Hy-Vee employees never accused her of shoplifting. It points out that Iowa courts have never found dramatic pantomime alone enough to constitute defamation. Further, Hy-Vee argues that even if we do find dramatic pantomime by itself enough to submit a defamation claim to the jury, no such pantomime occurred here.

The trial court submitted the defamation claim to the jury, but determined a qualified privilege attached. As a result, Jury Instruction Number 16, element 4, instructed the jury it could not find defamation unless Hy-Vee had acted with knowing or reckless disregard of the truth of its statements. In other words, in order to find for Kiray, the jury had to find Hy-Vee acted with actual malice. Kiray now argues the qualified privilege instruction should not have been given.

We therefore address two questions: (1) whether the district court was correct in submitting the defamation claim to the jury and (2) whether the district court was correct in instructing the jury as to the qualified privilege. We review both questions for correction of errors at law. Iowa R.App. P. 6.4; Estate of Pearson ex rel. Latta v. Interstate Power and Light Co., 700 N.W.2d 338, 340 (Iowa 2005) (reviewing a challenge to jury instructions).

First, defamation is the invasion of another’s interest in reputation or good name. Taggart v. Drake Univ., 549 N.W.2d 796, 802 (Iowa 1996). It is comprised of the twin torts of libel and slander. Id. To establish a prima facie case of defamation, the “plaintiff must show the defendant (1) published a statement that was (2) defamatory (3) of and concerning the plaintiff.” Id.

In Winckel v. Von Maur, 652 N.W.2d 453 (Iowa 2002) (abrogated on other grounds by Barreca v. Nicholas, 683 N.W.2d 111 (Iowa 2004)), our supreme court reviewed a claim of defamation arising from an incident during which defendant Von Maur accused plaintiff Winckel of shoplifting. Winckel had been browsing at Von Maur when a security guard approached her. Winckel, 652 N.W.2d at 456. The guard led her through the store to the manager’s office, where she was accused of shoplifting not only from Von Maur, but also from other stores. Id. The supreme court concluded that, in addition to basing its defamation award on conversations among store personnel and between store personnel and police, “the jury could also consider the effect of the dramatic pantomime created by plaintiff being marched through the store as a defamatory act.” Id. at 459.

Based on the court’s language in Winck-el, we conclude the district court correctly submitted Kiray’s defamation claim to the jury. Though the record indicates Hy-Vee employees never believed or accused Kiray of shoplifting, under Winckel, the jury may consider a dramatic pantomime a separate and distinct defamatory act. Thus, the district court properly submitted to the jury the issue of whether passing Kiray and her bag through the security gates amounted to a defamatory dramatic pantomime.

Second, a qualified privilege constitutes immunity from liability for defamation. Barreca v. Nicholas, 683 N.W.2d 111, 117 (Iowa 2004). It is found to exist with respect to an otherwise defamatory statement when

(1) the statement was made in good faith; (2) the defendant had an interest to uphold; (3) the scope of the statement was limited to the identified interest; and (4) the statement was published on a proper occasion, in a proper manner, and to proper parties only.

Winckel, 652 N.W.2d at 458. A qualified privilege can be lost if it is abused. Barreca, 683 N.W.2d at 117. Abuse occurs, for example, when a statement is made with actual malice. Id. A statement is made with actual malice when the statement is made with a “knowing or reckless disregard” for the truth. Id. at 121 (discarding the common law wrongful motive standard and adopting by analogy the New York Times v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 726, 11 L.Ed.2d 686, 706 (1964), reckless disregard standard).

Kiray argues Hy-Vee cannot rely upon a qualified privilege. First, Kiray claims that because Hy-Vee employees never believed she was shoplifting, the store had no viable interest to protect. See Winckel, 652 N.W.2d at 459 (indicating uncertainty whether qualified privilege should attach to Von Maur employee’s accusations of theft from other stores). Second, she claims that the statement was received by other shoppers who were improper parties, thus defeating the privilege.

Again, we rely on Winckel. The court in Winckel expressed uncertainty whether statements that Winckel had shoplifted from other stores were imbued with enough interest for a qualified privilege to attach. Id. at 459. It nonetheless concluded the dramatic pantomime whereby Winckel was “marched through the store” did meet the requirements for a qualified privilege instruction. Id. at 459. Kiray relies heavily on the dramatic pantomime in Winckel to persuade us her defamation claim was properly submitted to the jury. As Kiray argues she was “paraded” through the security gates before other patrons with all of her belongings, so too was Winckel marched through Von Maur before other patrons with all of her belongings. Because our supreme court concluded the qualified privilege should have been given in Winckel, we think the district court properly gave it here.

Kiray further argues the jury should have been instructed on the full range of circumstances that could have constituted an abuse of qualified privilege. This, however, is the first time she has raised this objection. As a result, we cannot review it. Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental doctrine of appellate review that issues must ordinarily be both raised and decided by the district court before we will decide them on appeal.”).

B. Additional Instruction on False Imprisonment

Kiray argues the district court erred by refusing to give the jury her proposed instruction on false imprisonment. She claims the jury should have been instructed that “the exercise of control over the property of a person by another can serve to restrain the person to whom the property belongs,” and that “a customer can be restrained against his or her will when he or she submits to a store employee’s asserted authority to search a bag or the person.”

Again, we review challenges to jury instructions for errors at law. Pearson, 700 N.W.2d at 340. We review the court’s refusal to give an instruction for abuse of discretion. Kiesau v. Bantz, 686 N.W.2d 164, 171 (Iowa 2004). A court must give a proposed instruction if the instruction (1) correctly states the law, (2) has application to the case, and (3) is not stated elsewhere in the instructions. Weyerhaeuser Co. v. Thermogas Co., 620 N.W.2d 819, 823 (Iowa 2000). Additionally, the proposed instruction must be supported by both the pleadings and substantial evidence. Beyer v. Todd, 601 N.W.2d 35, 38 (Iowa 1999). In reviewing a proposed instruction, we view the evidence in the light most favorable to the party requesting the instruction. Weyerhaeuser, 620 N.W.2d at 824. If error occurs, however, we will only reverse if it results in prejudice to the party requesting the instruction. Id. “Prejudice results when the trial court’s instruction materially misstates the law, confuses or misleads the jury, or is unduly emphasized.” Anderson v. Webster City Cmty. Sch. Dist., 620 N.W.2d 263, 268 (Iowa 2000).

We conclude the district court properly refused Kiray’s proposed instruction. First, Iowa law on false imprisonment does not support her proposal. In Iowa, “false imprisonment is the unlawful restraint of an individual’s personal liberty or freedom of movement.” Zohn v. Menard, Inc., 598 N.W.2d 323, 326 (Iowa Ct.App.1999). The tort consists of two essential elements: (1) detention and restraint against the individual’s will and (2) the unlawfulness of the detention or restraint. Id. The detention or restraint need not be accomplished through physical force or threats of physical force. Id. at 327. Instead, it can be the result of submission to asserted legal authority. Id. Kiray cannot point to a case where we have specifically determined that one individual’s exercise of control over the property of another can serve to restrain the person to whom the property belongs.

Second, in the Zohn case, upon which Kiray heavily relies, the district court dismissed a claim of false imprisonment where a plaintiff was detained by a store employee for a search of his shoulder bag. The supreme court concluded a fact question existed as to whether the plaintiff had been detained against his will. Id. It did not determine that the customer was restrained against his will when he submitted to a store employee’s authority to search his bag. Instead, the Zohn court remanded the question for the jury’s determination. See id. Here, the court submitted to the jury the question of whether Kiray had been detained against her will. Under Zohn, no more was required.

Finally, the jury instructions pertaining to false imprisonment both sufficiently addressed the issue and correctly reflected the law on false imprisonment in Iowa. The jury was informed that physical force or threat of physical force was not required for a finding of detention or restraint against the will. Jurors were free to determine Kiray was detained against her will for some other reason.

C. Discrimination Claim

Kiray brought her race discrimination claim under Iowa Code section 216.7(l)(a) (2001). The district court dismissed Kiray’s claim for failure to present a prima facie case of discrimination. In its order, the district court concluded:

Based upon the evidence presented at trial, the Court finds that Plaintiff has failed to establish a prima facie case of discrimination. The Court finds that race was not an issue in this encounter with Hy-Vee on the part of the Defendants. Ms. Kiray herself is the only person who raised the issue of her race after she was stopped. There was no evidence that she was selected from a group of people. The Court finds from the evidence, which includes a video of Ms. Kiray leaving the store as she passed through the sensors, that there were no other persons in that immediate vicinity when the sensors sounded. The Court finds Hy-Vee employees had a legitimate non-discriminatory reason for having approached Ms. Kiray as the person closest to the sensors when they sounded and in their attempts to locate the source triggering the sensor.

We review a district court’s ruling on a motion to dismiss for correction of errors at law. Iowa Rule App. P. 6.4. In doing so, we construe the facts in the light most favorable to the nomnoving party. Iowa Coal Mining Co., Inc. v. Monroe County, 555 N.W.2d 418, 438 (Iowa 1996). The moving party is considered to have admitted the truth of all the evidence offered by the nonmoving party, including every favorable inference that fairly and reasonably may be deduced from it. B & B Asphalt Co., Inc. v. T.S. McShane Co., Inc, 242 N.W.2d 279, 284 (Iowa 1976). A motion to dismiss should only be sustained if evidence is insufficient as a matter of law to permit the nonmoving party to recover. Rodgers v. Baughman, 342 N.W.2d 801, 804 (Iowa 1983).

Under Iowa Code section 216.7:

1. It shall be an unfair or discriminatory practice for any owner, lessee, sub-lessee, proprietor, manager, or superintendent of any public accommodation or any agent or employee thereof:
a. to refuse or deny to any person because of race, creed, color, sex, national origin, religion or disability the accommodations, advantages, facilities, services or privileges thereof, or otherwise to discriminate against any person because of race, creed, color, sex, national origin, religion, or disability in the furnishing of such accommodations, advantages, facilities, services, or privileges.

Our civil rights cases are guided by federal law and federal cases. Hulme v. Barrett, 449 N.W.2d 629, 631 (Iowa 1989). We look to the analytical framework used by the federal courts in interpreting federal law, but do not substitute the language of the federal statutes for the language of the Iowa Civil Rights Act. Id. In reviewing this civil race discrimination suit, we use the shifting burden of proof framework outlined in McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), and St. Mary’s Honor Center. v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993).

Under the McDonnell Douglas/Burdine framework:

First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant to articulate some legitimate nondiscriminatory rea- . son for [the defendant’s action]. Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.

Burdine, 450 U.S. at 252-53, 101 S.Ct. at 1093, 67 L.Ed.2d at 214-15 (internal quotations and citations omitted). The ultimate burden of persuading the trier of fact that defendant’s actions were discriminatory remains at all times with the plaintiff. Hicks, 509 U.S. at 511-518, 113 S.Ct. at 2749-54, 125 L.Ed.2d at 418-24; Burdine, 450 U.S. at 253, 101 S.Ct. at 1093, 67 L.Ed.2d at 215.

Because McDonnell Douglas, Burdine, and Hicks are employment discrimination cases, we must adapt the required prima facie case to the factual situation at hand. See McDonnell Douglas, 411 U.S. at 802 n. 13, 93 S.Ct. at 1824 n. 13, 36 L.Ed.2d at 677-78 n. 13 (noting that the facts in discrimination cases will vary, “and the specification ... of the prima facie case required from respondent is not necessarily applicable in every respect to differing factual situations”). Neither Iowa nor the federal courts, however, have adopted a uniform adaptation of the McDonnell Douglas/Burdine framework for race discrimination in public accommodation situations. Kiray urges us to use the prima facie case formulation in Callwood v. Dave & Buster’s, Inc., 98 F.Supp.2d 694 (D.Md.2000) (adapting the McDonnell Douglas prima facie case to a 42 U.S.C. § 1981 proceeding). Under that test, to satisfy a prima facie case of discrimination, plaintiffs must show

(1) they are members of a protected class; (2) they made themselves available to receive and pay for services ordinarily provided by the defendant to all members of the public in the manner in which they are ordinarily provided; and (3) they did not enjoy the privileges and benefits of the contracted for experience under factual circumstances which rationally support an inference of unlawful discrimination in that (a) they were deprived of services while similarly situated persons outside the protected class were not deprived of those services, and/or (b) they received services in a markedly hostile manner and in a manner which a reasonable person would find objectively unreasonable.

Callwood, 98 F.Supp 2d at 707.

The Callwood prima facie case has been adopted by the Second and the Sixth Circuits, along with various other federal district courts. See Lizardo v. Denny’s, Inc., 270 F.3d 94, 101-02 (2d Cir.2001); Christian v. Wal-Mart Stores, Inc., 252 F.3d 862, 870-74 (6th Cir.2001); Thompson v. Southwest Airlines Co., No. Civ. 04-CV-313-SM, 2006 WL 287850 (D.N.H. Feb.6, 2006); Robinson v. State Farm Mut. Auto. Ins. Co., No. 05-CV-70075, 2005 WL 3358856 (E.D.Mich. Dec. 9, 2005); Johnson v. York Simpson Underwood, L.L.C., No. 1:03CV01141, 2005 WL 1378848 (M.D.N.C. June 9, 2005); Brooks v. Collis Foods, Inc., 365 F.Supp.2d 1342, 1354-57 (N.D.Ga.2005); O’Neill v. Gourmet Sys. of Minn., Inc., 213 F.Supp.2d 1012, 1019-21 (W.D.Wis.2002).

The Fourth Circuit, however, declined to adopt the test, finding it inapplicable to a case where there was sufficient comparative evidence showing how the African-American plaintiff was treated differently from similarly situated white individuals. Williams v. Staples, Inc., 372 F.3d 662, 668 n. 5 (4th Cir.2004). The Ninth Circuit thought the Callwood formulation was compelling, but also declined to adopt it in a case where the plaintiff provided sufficient evidence of the defendant’s treatment of similarly situated individuals of a different class. Lindsey v. SLT Los Angeles, L.L.C., 432 F.3d 954, 959-60 (9th Cir.2005). The First Circuit declined to review the third prong of Callwood, determining instead the plaintiffs case would not pass muster even under Callwood’s broader construction. Garrett v. Tandy Corp., 295 F.3d 94, 102 (1st Cir.2002). Other federal district courts have refused to adopt the Callwood test. See Watkins v. Lovley Dev., Inc., No. Civ. 04-211-B-H, 2005 WL 2746664 (D.Me. Oct.24, 2005); Solomon v. Waffle House, Inc., 365 F.Supp.2d 1312, 1325 (N.D.Ga.2004); Sawyer v. Southwest Airlines Co., 243 F.Supp.2d 1257, 1269-70 (D.Kan.2003); Benton v. Cousins Props., Inc., 230 F.Supp.2d 1351, 1370 (N.D.Ga.2002).

In an alternative to the Callwood test, the Fourth Circuit concluded a plaintiff met his prima facie case when he showed (1) he was a member of a protected class; (2) he sought to enter into a contractual relationship with the defendant; (3) he met the ordinary requirements for the contractual relationship; and (4) he was denied the opportunity to enter into the contract with the defendant, even though the defendant afforded such an opportunity to a white customer. Williams, 372 F.3d at 668; cf. Hampton v. Dillard Dep’t Stores, 247 F.3d 1091, 1101-02 (10th Cir.2001) (using similar prima facie case formulation); Morris v. Office Max, Inc., 89 F.3d 411, 413 (7th Cir.1996) (same).

In reviewing claims for racial discrimination in public accommodations, courts recently have followed either the Callwood test or variations of the Williams test. The difference between the two is marked by the circumstantial evidence the plaintiff may use to show discrimination. Under Callwood, the plaintiff may either produce evidence indicating similarly situated individuals outside the protected class were treated differently or show the defendant acted in a markedly hostile manner. Factors relevant to determining what constitutes markedly hostile behavior include conduct that

(1) is so profoundly contrary to the manifest financial interests of the merchant and/or her employees; (2) so far outside of widely accepted business norms; and (3) so arbitrary on its face, that the conduct supports a rational inference of discrimination.

Callwood, 98 F.Supp 2d at 708.

Under Williams, the plaintiff needs to show she was treated differently from similarly situated individuals outside the protected class. The advantage in the Call-wood test is that plaintiffs may still meet the prima facie case for discrimination even if there is little evidence as to how members of the protected class are treated differently from members outside the class. See Burdine, 450 U.S. at 253, 101 S.Ct. at 1094, 67 L.Ed.2d at 215 (noting the burden of establishing the prima facie case should not be onerous). The disadvantage is that many courts have found the “markedly hostile” language of Call-wood to be at best unhelpful and at worst vague. See Watkins, No. Civ. 04-211-B-H; Benton, 230 F.Supp.2d at 1378.

If there was a time to adopt the Call-wood test, this would be the case in which to do it. Kiray presents no evidence of similarly situated individuals. Without guidance from either the Eighth Circuit or our supreme court, however, we are loath to do so. Instead, we conclude Kiray fails to meet the prima facie case under both tests.

First, Kiray fails to meet her burden of proof as to prong 3(a) of the Callwood test and prong 4 of the Williams test: she presents no evidence there were similarly situated individuals outside her protected class who were treated differently. In her direct testimony, Kiray said there were two people who walked out of Hy-Vee in front of her. However, she did not testify to their race. Further, though she presented Hy-Vee’s security logs documenting the number of people stopped by the Sense-o-Matic system and the nature of each incident, there is no evidence showing the race of the individuals stopped.

Second, Kiray fails to meet her burden as to prong 3(b) of the Callwood test. She cannot show that Hy-Vee’s actions were “markedly hostile.” Taking the facts as Kiray relates them, Hy-Vee asked her permission to run her purse and grocery bag through the security gates. She claims Kearney “made reference to black,” but she never testified to what Kearney said. By her own admission, she told Kearney she was “not black from here, I’m a mother.” Kearney and Patterson may not have interacted with Kiray according to Hy-Vee’s customer service instruction, or even as politely as they should have, but there is no indication they acted in a “markedly hostile” manner. See Callwood, 98 F.Supp.2d at 707 (noting “the days of ‘the customer is always right’ are long past, assuming they ever existed at all”).

Because Kiray fails to meet the prima facie case for racial discrimination, we need not explore the next steps in the McDonnell Douglas/Burdine framework. See Hicks, 509 U.S. at 509-11, 113 S.Ct. at 2748-50, 125 L.Ed.2d at 417-19. The district court’s order dismissing Kiray’s discrimination claim is affirmed.

D. Batson Claim

Kiray argues the district court erred when it overruled her Batson objection. She claims Hy-Vee’s peremptory strike of juror Grant was based on his national origin. Hy-Vee argues that Ki-ray’s objection was not preserved. It claims her objection at trial was based on race, not national origin.

In Batson, the Supreme Court ruled that discrimination against jurors based on their race violates the Equal Protection Clause. Batson was applied to civil cases in Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991). Its ruling was extended to discrimination based on gender in J.E.B. v. Alabama, 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994). It also has been extended to discrimination based on Latino ethnicity. Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991).

We conclude Kiray’s Batson objection preserved her argument based on national origin discrimination. First, Kiray’s attorney objected to the defense’s use of peremptory strikes against “African-American” jurors. He never specifically said whether he was objecting to race or national origin. The intersection of race and national origin is a difficult one to parse. It is a question even the Supreme Court has failed to definitively answer. See St. Francis College v. Al-Khazraji, 481 U.S. 604, 610-13, 107 S.Ct. 2022, 2026-28, 95 L.Ed.2d 582, 589-91 (1987). Race, national origin, and ethnicity are all fluid concepts; at varying times in our history they have been considered both the same and different. Id. Kiray objected to the fact the defense struck African-American jurors. In doing so, she got her point across: the defense was exercising peremptory strikes against black jurors. See State v. Williams, 695 N.W.2d 23, 27-28 (Iowa 2005) (finding error preserved “where grounds for a motion were obvious and understood by the trial court and counsel”). Whether the jurors were black because of their race or national origin, we decline to venture a guess. We conclude she sufficiently established her Batson objection.

Second, Hy-Vee answered the Batson objection with two reasons for the strike: (1) Juror Grant was not a born citizen of the United States and (2) his views of justice in this country made the attorney question his ability to be fair and impartial. Kiray’s attorney countered that another juror, Juror Chen, could also have been stricken for the same reasons Juror Grant was stricken. However, he also said he understood Juror Chen’s view of justice was more complicated than Juror Grant’s view. We take Kiray’s attorney’s statements following Hy-Vee’s proffered explanation as an observation that another juror was retained despite his particular national origin. This observation is probative in a Batson analysis, and serves to preserve Kiray’s argument.

Hy-Vee also argues it is unclear whether Batson actually applies to national origin. The Supreme Court has so far declined to directly answer the issue. Id. at 371-72, 111 S.Ct. at 1872-73, 114 L.Ed.2d at 413-14. There are several reasons, however, that lead us to believe that, at least in this situation, it does. First, a party’s ability to strike individual jurors through peremptory challenges “is subject to the commands of the Equal Protection Clause.” Batson, 476 U.S. at 89, 106 S.Ct. at 1719, 90 L.Ed.2d at 82. Under the Court’s equal protection jurisprudence, national origin classifications receive the same strict scrutiny analysis race classifications receive. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313, 320 (1985); Graham v. Richardson, 403 U.S. 365, 372, 91 S.Ct. 1848, 1852, 29 L.Ed.2d 534, 541-42 (1971). Second, in J.E.B., the Court extended Batson to cover gender discrimination in jury selection. J.E.B., 511 U.S. at 146, 114 S.Ct. at 1430, 128 L.Ed.2d at 107-08. In equal protection analysis, however, gender classifications receive a lesser scrutiny than national origin classifications. Compare Cleburne, 473 U.S. at 440, 105 S.Ct. at 3254, 87 L.Ed.2d at 320 (noting classifications based on national origin “are subject to strict scrutiny and will be sustained only if they are suitably tailored to serve a compelling state interest”) with id. at 440-41, 105 S.Ct. at 3254-55, 87 L.Ed.2d at 320-321 (noting classifications based on gender are subject to heightened scrutiny and will be sustained only if they are “substantially related to a sufficiently important governmental interest”). Third, in Hernandez, the Court seemed to use the words ethnicity and race interchangeably. See, e.g., Hernandez, 500 U.S. at 355, 111 S.Ct. at 1864, 114 L.Ed.2d at 403. It also wrote that Batson may extend where a group’s characteristics could be used as a surrogate for race discrimination. Id. at 371-72, 111 S.Ct. at 1872-73, 114 L.Ed.2d at 413-14 (noting specifically that skin color or a particular language proficiency may act as a surrogate for race under an equal protection analysis). Finally, other courts have used Batson to analyze peremptory strikes used against jurors belonging to groups traditionally subjected to discrimination. See Brewer v. Marshall, 119 F.3d 993 (1st Cir.1997) (employing Batson and using “race” and “ethnicity” interchangeably where record was unclear as to whether jurors were black and/or Hispanic); United States v. Taylor, 92 F.3d 1313, 1330 (2d Cir.1996) (using Batson analysis to evaluate peremptory strikes against white, black, and Latino jurors); United States v. Krout, 66 F.3d 1420, 1428-29 (5th Cir.1995) (extending Batson analysis to a juror of “Hispanic ethnicity”); United States v. Canoy, 38 F.3d 893, 897-98 (7th Cir.1994) (extending Batson analysis to a juror of Asian descent). We therefore conclude that, in this situation, Batson extends to national origin.

A Batson analysis is similar to the McDonnell Douglas framework above. Under Batson, Kiray must first make a prima facie case of discrimination. Batson, 476 U.S. at 96, 106 S.Ct. at 1723, 90 L.Ed.2d at 87. The burden then shifts to the Hy-Vee to present a neutral explanation for challenging the jurors. Id. at 97, 106 S.Ct. at 1723, 90 L.Ed.2d at 88. Hy-Vee’s explanation must be deemed neutral unless a discriminatory intent is inherent. Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834, 839 (1995). Once Hy-Vee offered its explanation, the issue of whether Kiray made a prima facie showing is moot. Hernandez, 500 U.S. at 359, 111 S.Ct. at 1866, 114 L.Ed.2d at 405. Our question then, is the final step under the Batson analysis: whether Kiray has carried her burden of proving purposeful discrimination. Id.

In answering Kiray’s Batson objection, Hy-Vee’s attorney said he struck Juror Grant for two reasons. The first reason, that Juror Grant is not a born citizen of the United States, appears to be discriminatory. The second reason, that Juror Grant’s beliefs about justice in this country causes concern about his ability to be impartial, is neutral. The attorney bolstered his second reason by pointing out that he struck a white juror for the very same beliefs. His conclusion, that he struck “three people, because of their views of our justice system, not because of their race, creed, color, origin, or anything else,” also bolsters his neutral reason.

Where it appears there is dual motivation, or both discriminatory and non-discriminatory reasons for striking a juror, the Eighth Circuit has determined the strike does not violate equal protection as long as the strike would have been exercised without the discriminatory reason. Weaver v. Bowersox, 241 F.3d 1024, 1032 (8th Cir.2001). Because our supreme court has not had the opportunity to answer the question, we follow the Eight Circuit’s lead. Hy-Vee only provided two reasons for exercising a strike against Juror Grant. The second, neutral reason, however, was supported with an example of a juror outside the protected class who was struck for the same neutral reason. Further, Hy-Vee denied striking Juror Grant for any discriminatory reason. While that statement, standing alone, would not suffice to satisfy Batson, we conclude that (1) since Hy-Vee provided a neutral explanation and (2) it struck a white juror for the same neutral reason, Hy-Vee would have exercised a strike against Juror Grant regardless of his national origin. We therefore affirm the district court’s ruling denying Kiray’s Batson claim.

III. Conclusion

First, the district court properly submitted Kiray’s defamation claim to the jury. Second, it correctly instructed the jury as to Iowa defamation and false imprisonment law. Third, Kiray has failed to show a prima facie case for race discrimination. Finally, the district court correctly denied Kiray’s Batson objection. The district court ruling is affirmed.

AFFIRMED.

      . The district court characterized Hy-Vee’s motion as a motion for directed verdict. Because this claim was tried to the bench, however, it should have been characterized as a motion to dismiss. Iowa Coal Mining Co., Inc. v. Monroe County, 555 N.W.2d 418, 438 (Iowa 1996). “The misnomer is not material, however, because a motion to dismiss during trial is equivalent to a motion for directed verdict.” Id.

      . When Hulme was decided, civil rights were contained in Iowa Code chapter 601A. Currently, the relevant chapter is 216.

      . In employment discrimination cases, the plaintiffs prima facie case consists of showing ”(i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.” McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824, 36 L.Ed.2d at 677.

      . This analysis is made more difficult because the record does not indicate the national origin of either Juror Grant or Juror Chen.

      . Other than the fact that he is African-American, there is no indication of Juror Grant's national origin.


source: Caselaw Access Project

author: HANSON, Justice.

license: Public Domain

text:
    Justin Brooks STILES, petitioner Appellant, v. STATE of Minnesota, Respondent.
    No. A05-2081.
    Supreme Court of Minnesota.
    June 15, 2006.
    Rehearing Denied July 10, 2006.
    Leslie Joan Rosenberg, Assistant State Public Defender, Minneapolis, MN, for Petitioner.
    Attorney General — Criminal, Saint Paul, MN, Donna J. Wolfson, Assistant County Attorney, Minneapolis, MN, for Respondent.
   OPINION

HANSON, Justice.

This is the second petition for postcon-viction relief filed by appellant Justin Stiles. Stiles was found guilty of two counts of first-degree felony murder under Minn.Stat. § 609.185(3) (1996), and one count of second-degree intentional murder under Minn.Stat. § 609.19, subd. 1(1) (2004), for the killing of Heinz Moorman. We previously affirmed the postconviction court’s denial of Stiles’ first petition for postconviction relief, rejecting Stiles’ claims that the district court erred in failing to submit lesser-included offenses to the jury. Stiles v. State, 664 N.W.2d 315, 319-22 (Minn.2003). In this second post-conviction petition, Stiles asks that we review the same claims in light of State v. Dahlin, 695 N.W.2d 588 (Minn.2005), our recent elucidation of lesser-included offense law. We affirm.

The facts of this case are set forth in detail in our previous Stiles opinion. The pertinent facts for the purposes of this postconviction petition are as follows: On January 8, 1998, Stiles and four friends decided to rob a marijuana dealer, Heinz Moorman. Stiles, 664 N.W.2d at 317. One of them, Brendan Connor, called Moorman to arrange a purchase, the actual purpose of which was to rob Moorman. Id. Two of the men brought guns to effectuate the robbery. Id. During the robbery, Moorman appeared to begin to reach for a gun in his waistband. Id. Stiles and Charlie Seepersaud, another of the five men, then shot Moorman several times, killing him. Id.

Toward the close of trial, Stiles requested that the district court include three lesser-included offenses in the instructions to the jury: second-degree unintentional felony murder, third-degree murder, and first-degree heat-of-passion manslaughter. Id. at 319. The district court “denied the requests because it found there was sufficient evidence of intent to convict of the charged offenses, noting that the testimony indicated Stiles ‘intended to kill [Moor-man] or to do an act that would have that result.’ ” Id. The court instructed the jury only on first-degree felony murder with aggravated robbery as the predicate offense, first-degree felony murder with controlled substance crime as the predicate offense, and second-degree intentional murder. The jury found Stiles guilty of all three charges. Id.

Stiles did not exercise his right to direct appeal. Id. at 319. He did, however, petition for postconviction relief nearly three years after his conviction. In that petition, one of the arguments Stiles raised was that his conviction should be overturned because the district court denied his request to instruct the jury on three lesser-included offenses. Id. The postcon-viction court denied relief, and we affirmed. Id. at 319, 323.

After ruling on Stiles’ previous postcon-viction petition, we decided Dahlin. 695 N.W.2d 588. Dahlin clarified Minnesota law on lesser-included offenses. Id at 593. Stiles subsequently filed a second petition for postconviction relief, this one based on Dahlin. The postconviction court denied Stiles’ second petition without an eviden-tiary hearing.

I.

The postconviction court “may summarily deny a petition when the issues raised in it have previously been decided by [our court] in the same case.” Minn. Stat. § 590.04, subd. 3 (2004). Additionally, in State v. Knaffla we said that “where direct appeal has once been taken, all matters raised therein, and all claims known but not raised, will not be considered upon a subsequent petition for postconviction relief.” 309 Minn. 246, 252, 243 N.W.2d 737, 741 (Minn.1976). A new rule of law, announced after a direct appeal has been completed, may present a claim that was unknown on direct appeal, and thus is not barred by Knaffla. But if a defendant’s conviction was already final at the time the new rule of law was announced, the defendant ordinarily may not take advantage of the new rule because it will not be retroactive. O’Meara v. State, 679 N.W.2d 334, 339 (Minn.2004) (citing Teague v. Lane, 489 U.S. 288, 310-11, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989)).

Stiles argues that Dahlin did not articulate a new rule of law and therefore Dahlin applies retroactively to Stiles’ case. But Stiles further claims that his lesser-included offense arguments are not Knaff-⅛-barred because “the issue that, under Dahlin reversal is required, * * ⅞ was not raised in appellant’s previous appeal and because this basis for relief was unavailable at the time of [Stiles’] appeal.”

We conclude that Stiles cannot prevail either way. If Dahlin is a new rule of law, it does not apply retroactively to Stiles’ case, which was not pending when Dahlin was decided. If Dahlin is not a new rule of law, Stiles’ lesser-included offense claims are barred by Knaffla, because they would have been known at the time of his appeal from the denial of his first postconviction petition, and by Minn. Stat. § 590.04, subd. 3, because Stiles actually argued those claims in his first post-conviction appeal. Accordingly, we decline to decide whether Dahlin announced a new rule of law because that decision is not necessary to the resolution of this appeal. We hold that the postconviction court did not err in denying Stiles’ petition without an evidentiary hearing.

Affirmed.

      . "[A] case is pending until such time as the availability of appeal has been exhausted, the time for a petition for certiorari has elapsed or a petition for certiorari with the Supreme Court has been filed and finally denied;” after that, the case is considered final. O'Meara, 679 N.W.2d at 339. Under Minn. R.Crim. P. 29.03, subd. 3, "[a]n appeal by a defendant from a final judgment of conviction of murder in the first degree shall be taken within 90 days after the final judgment." A judgment is final "when there is a judgment of conviction upon the verdict of a jury or the finding of the court, and sentence is imposed.” Id. We have held that, at least for an executed sentence, if a defendant fails to file a direct appeal, the case becomes final 90 days after the final judgment, even if the defendant subsequently files a postconviction petition. See State v. Blanche, 696 N.W.2d 351, 378 n. 11 (Minn.2005).


author: ANDERSON, PAUL H„ Justice.

text:
    STATE of Minnesota, Respondent, v. Leroy R. PAUL, Appellant.
    No. A05-789.
    Supreme Court of Minnesota.
    June 22, 2006.

      Ann McCaughan, Office of State Public Defender, Minneapolis, MN, for Appellant.
    Michael A. Hatch, State Attorney General, St. Paul, MN, Amy Klobuchar, Hen-nepin County Attorney, Jean E. Burdorf, Assistant County Attorney, Minneapolis, MN, for Respondent.
   OPINION

ANDERSON, PAUL H„ Justice.

On January 21, 2005, a Hennepin County jury found appellant, Leroy Roderick Paul, guilty of first-degree felony murder during a drive-by shooting and second-degree felony murder for the November 7, 2002, shooting death of Fred Williamson. The jury acquitted Paul of first-degree premeditated murder. The district court sentenced Paul to life in prison for first-degree felony murder during a drive-by shooting. Paul raises two issues on appeal: (1) the court erred when it denied his motion to suppress evidence of his custodial interrogation; and (2) he is entitled to a new trial based on alleged prose-cutorial misconduct during closing argument. We affirm.

The legal issues before us focus on Paul’s custodial interrogation and the state’s closing argument, but a summary statement of the facts is necessary to provide the context in which these issues arise. The night before Fred Williamson was killed, appellant Leroy Roderick Paul and his friend Kenneth Spencer spent the evening at a nightclub and then drove in Spencer’s black Chevrolet Tahoe to the north Minneapolis home of a woman they had met at the club. The following morning, Paul drove in Spencer’s Tahoe to attend a pretrial hearing on an unrelated matter. Paul met his girlfriend, Kesha Dent, at the courthouse, and after the hearing the two drove in the Tahoe to a north Minneapolis café. After they parked in front of the café, Paul and Dent encountered Williamson, Bryan Herron, and Antonio Wilson, all of whom had just finished breakfast and were walking toward their vehicle, a Chevrolet Cavalier. Paul and Williamson had been friends for years, but had recently had a falling out. Williamson’s friend, Herron, had also been friends with Paul, and Herron had a child with — and was engaged to — Paul’s sister. Herron ultimately became a key prosecution witness at Paul’s trial.

Williamson approached Paul and the two men got into an argument. Herron testified that during this confrontation, Paul drew a .40 caliber gun out of the waistband of his pants, put a bullet in the chamber, and then put the gun at his side, but did not point it at anyone. Wilson testified that he did not see Paul with a gun during this confrontation. Dent testified that while Paul and Williamson argued, she walked into the café and ordered food for herself and Paul.

After a few minutes, Williamson, Her-ron, and Wilson walked across the street and got into the Cavalier. Herron drove, Williamson rode in the front passenger seat, and Wilson rode in the back seat behind Williamson. While they were driving, Williamson, still agitated from the argument with Paul, reached under the front seat and retrieved a 9 millimeter gun, which he then loaded with one bullet. Herron and Wilson took the gun away from Williamson, and Wilson removed the bullet from the chamber.

As the Cavalier approached a stoplight a few blocks from the café, what witnesses described as a “black truck” pulled up on the passenger side of the Cavalier. Her-ron and Wilson both testified that they thought the black truck was the same vehicle they had seen Paul getting out of at the café. As the black truck pulled even with the Cavalier, the driver of the black truck fired shots into the Cavalier. One shot struck the front passenger door. Another shot hit Williamson, entering his body below the right armpit. Wilson acknowledged on cross examination that he “didn’t see who the shooter was,” but Herron testified that, although he ducked when the first shot was fired, he was “a hundred percent” certain that Paul was the shooter. After the shooting, Herron drove Williamson to the emergency entrance of Henne-pin County Medical Center, where it was determined that Williamson had died.

There was conflicting testimony regarding the specific whereabouts of Paul, Dent, and Spencer on the morning of the murder. Dent testified that while they were outside the café, Paul asked her to go inside to order their food, and then he left, saying that he would be “right back.” Dent testified that Paul did not return, and Spencer picked her up at the café. But Spencer indicated on cross examination that he did not pick up Dent at the café that day. Dent further testified that she met Paul at a home in north Minneapolis, and Dent and Paul then drove in Dent’s car to their Apple Valley apartment. Dent testified that Paul told her that day “that Fred had shot at him, and he had shot back at him, and it was self-defense.” She also testified that Paul told her to tell the police “that [Paul] was with me. He didn’t leave out of my eyesight.” Spencer testified that when he saw Paul around 12:15 p.m. on November 7, Paul told him that “he thought he killed Fred.” Spencer testified that he “started tripping out” upon hearing this statement and asked Paul what he had done to Williamson. Paul then responded that he had not done anything.

At Hennepin County Medical Center, Herron had walked away from the hospital after leaving Williamson at the emergency room. The police obtained a description of Herron from hospital staff and subsequently found Herron walking in the middle of traffic approximately one block from the hospital. When Herron first spoke with the police, he acknowledged being with Williamson, but failed to mention that there had been a third person in the Cavalier at the time of the shooting. Herron said that he could not recall the name of the café where he had eaten breakfast, and described the shooter’s vehicle as a “larger gray vehicle” and “possibly a van.” He also stated that he had no information on the shooter.

The police went to the intersection where the shooting occurred. In the northeast corner of the intersection, the police discovered shattered glass and two .40 caliber Smith & Wesson shell casings that appeared to have been run over by a vehicle. A forensic scientist later concluded that the bullet recovered from Williamson’s body was “most consistent” with .40 caliber ammunition. Personnel from the Minneapolis police department crime lab examined the Cavalier in which Williamson had been riding and found a bullet hole in the front passenger door window frame, a fired bullet, a broken front passenger window, a blood-like substance, two unfired 9 millimeter bullets, and three cell phones.

Two police sergeants were initially assigned to investigate the murder. These investigators visited with Williamson’s family, contacted parole and probation officers, “did some background on [Paul],” processed the Cavalier, and attempted unsuccessfully to locate cooperative witnesses. One year after the shooting, in November 2003, after one of the investigators was transferred to a different unit and the other retired, Sergeant Michael Keefe was assigned to continue the investigation.

In January 2004, Keefe interviewed Herron. At that time, Herron was being held in federal custody in connection with drug and firearm charges. In February 2004, Herron entered into a plea agreement on the federal charges in which he was required to provide “substantial assistance” with the Williamson murder investigation and other cases in exchange for the federal prosecutor’s motion for a downward sentencing departure. Keefe interviewed Herron again in February 2004. Keefe also obtained statements from Dent, Wilson, and Spencer that month. Paul was then arrested on March 8, 2004, on an unrelated warrant for terroristic threats.

Before Paul was taken to the jail, Keefe interrogated him at the police department regarding the Williamson murder and another murder in which Paul was a suspect. The interrogation was videotaped by the police. During this interrogation, Paul denied shooting Williamson, denied knowing Williamson well, denied knowing Williamson’s nickname, denied ever going to the café with Dent, denied ever riding in Spencer’s truck with Dent, identified certain photographs of people related to the investigation, and indicated that he was unable to definitively identify people in other photographs — including Williamson. On March 17, 2004, the state charged Paul by complaint with Williamson’s murder. A grand jury later returned an indictment charging Paul with first-degree premeditated murder and first-degree felony murder while committing the crime of a drive-by shooting.

Before trial, Paul moved to suppress evidence of his custodial interrogation on the basis of a Miranda violation. The district court denied Paul’s motion. Paul’s trial began and the jury was sworn on Tuesday, January 18, 2005. The state called Keefe as a witness, and during his testimony, Keefe described Paul’s statement during his custodial interrogation. During its closing argument, the state made reference to the “world” in which several witnesses lived, and at one point referred to the witnesses as “these people.” Paul did not object to the comments.

The state rested on January 20, 2005, and the defense rested the same day without presenting any witnesses. After deliberating for nearly six hours, the jury found Paul guilty of first-degree felony murder during a drive-by shooting and second-degree murder, but not guilty of first-degree premeditated murder. This direct appeal followed. Paul raises two issues on appeal: (1) the court erred when it denied his motion to suppress evidence of his custodial interrogation, and (2) he is entitled to a new trial based on alleged prose-cutorial misconduct during the state’s closing argument because the state “subtly injected racial issues and distinguished between the jurors’ world and the world of the defendant, victim, and witnesses.”

I.

We first address Paul’s argument that the district court erred when it denied Paul’s motion to suppress evidence of his custodial interrogation based on an alleged Miranda violation. On appeal, Paul argues that during the interrogation he invoked his right to counsel, but Sergeant Keefe failed to terminate the interrogation, and that Paul “eventually succumbed to [Keefe’s] badgering and refusal to let him call an attorney.” The state concedes that Paul invoked his right to counsel, but asserts that Keefe then attempted to terminate the interrogation, after which Paul initiated further discussions with Keefe. The state further asserts that after reiniti-ating the conversation, Paul made an effective waiver of his right to have counsel present for questioning.

After a Rasmussen hearing, the district court reviewed the Scales videotape of Paul’s interrogation and ruled that Paul’s “statement was freely and voluntarily given,” and denied Paul’s motion to suppress his statement. The court made no specific findings of fact regarding the circumstances of Paul’s purported waiver. We review legal conclusions regarding a purported Miranda waiver de novo to determine whether the state has shown by a fair preponderance of the evidence, under the totality of the circumstances, that a suspect’s waiver was knowing, intelligent, and voluntary. State v. Burrell, 697 N.W.2d 579, 591 (Minn.2005).

In Miranda v. Arizona, the United States Supreme Court held that a criminal suspect has the right to counsel during custodial interrogations. 384 U.S. 436, 471, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Fifteen years later, the Court established in Edwards v. Arizona that

an accused, * * * having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.

451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) (emphasis added). We have noted that there are three steps to the Edwards analysis. State v. Munson, 594 N.W.2d 128, 138-39 (Minn.1999). We first determine whether the suspect invoked his right to counsel during a custodial interrogation. Id. Then, if it is shown that a suspect invoked his right to counsel, “courts may admit responses to further questioning only on finding that [the suspect] (a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right invoked.” Id. at 139 (citing Smith v. Illinois, 469 U.S. 91, 95, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984)).

As noted earlier, the parties agree that Paul invoked his right to counsel; therefore, the first step of the Edwards analysis is satisfied. The state argues that after Paul invoked his right to counsel, Keefe honored Paul’s request and attempted to terminate the interrogation, and that Paul initiated further discussions. Our review of the Scales videotape confirms the state’s contention. The following excerpt of the exchange between Keefe and Paul began with the two men seated across from each other in an interrogation room:

MK: And if people were pointing the finger at me, I’d say, wait a minute, let me explain, but before I do it, I’m gonna have to read you your rights, okay? And you know that you have the right to remain silent?
LP: Yeah, I know.
MK: You don’t have to talk to me.
LP: Well, can I use the phone, so I can call my lawyer while we [are] having this conversation?
MK: Um, no. If you want to talk to; you want to talk to a lawyer now or wh..is that what you’re telling me?
LP: Am I, on, you telling me you have something to tell me, I don’t ...
MK: I’m telling you I got to read you your rights, then I’m gonna explain to you what’s going on. Now, you just told me you wanted a phone to call your lawyer? Do you want a lawyer or not?
LP: Yeah, let me call a lawyer.
MK: Well, I’m not gonna; I’m, I’ll just take you to jail. Do you want, do you want, you want a lawyer, is that what you’re saying?
LP: Yeah.
MK: Okay, well, we’re gonna take you to jail right now, then, Leroy. You have a warrant for the terroristic threats and the ...
LP: I don’t know; who put the warrant out? There was never no police report, so how would there be a warrant?
MK: Okay. You have a warrant right now — a felony warrant for terroristic threats and then we’re gonna go over to the county attorney’s office and we’ll, we’re probably gonna charge you for two murders, [Keefe begins closing binder] Fred Williamson’s murder, as well as [another victim’s].
LP: I know I don’t have nothing to do with that.
MK: Okay. Well, so be it. [Keefe places binder on table ]
LP: Okay.
MK: That’s your story. This is your last, that’s your, [Keefe stands up ] that, you had the opportunity, so, your ... [Keefe opens door halfway ]
LP: Opportunity for what? You said you wanted to tell me about some other people? [Keefe opens door all the way ]
MK: Well, I, you said you wanted a lawyer, so now I can’t talk to you. [Keefe has hand on doorknob ]
LP: Okay, let me call my lawyer.
MK: Well, nah, it’s not gonna work that way. [Keefe is standing in doorway ] I don’t have time for you to be calling your lawyer and going through all that. [Keefe takes another step out of room ]
LP: Well, go ahead, read my statement back; let me hear what you have to say. [Keefe leans back into room ]
MK: Well, you told me you wanted a lawyer?
LP: I’m just saying, I don’t have time for this, that’s what I’m trying to tell you.
MK: I’m telling ya, you said you want a lawyer, I can’t talk to you if you know, if you want to get a lawyer.
LP: I told you, let me get a phone call anyway.
MK: If you want a phone call, you’re gonna have to get the phone call from the jail. I’m telling you right now you asked for a lawyer, so.
LP: And then your one officer said I had a warrant for driving; now, you’re telling me that ...
MK: You have a, you have a misdemeanor for driving after revocation, and you also have a felony warrant.
LP: What felony warrant?
MK: For terroristic threats out of Rob-binsdale — I’ve explained that to you.
LP: Em hmm.
MK: And I want to talk to you about these two murders, well, can I ... to give you the opportunity to explain yourself.
LP: ... well, go ahead, talk, let me hear what you have to say. [Keefe steps out, then remains in doorway ]

We are not persuaded by Paul’s argument that the interrogation was never effectively terminated because Keefe did not leave the interrogation room. After Paul invoked his right to counsel, Keefe informed Paul that he would be taken to jail and Keefe gave every indication that he would leave the room as soon as he finished responding to Paul’s questions and comments. Keefe was standing in the open doorway and was not saying or doing anything reasonably likely to elicit an incriminating response. The mere fact that Keefe did not completely leave the interrogation room as the police officers did in State v. Earl, 702 N.W.2d 711, 717 (Minn.2005), does not affect our conclusion that Keefe effectively terminated the interrogation. We conclude that after Paul made his first reference to contacting a lawyer, Keefe asked clarifying questions to confirm that Paul was invoking his right to counsel and terminated the interrogation by limiting his comments to informing Paul that he would be taken to jail.

We next turn to whether Keefe or Paul initiated further discussions. The Supreme Court has held that “interrogation” includes not only express questioning, but also its functional equivalent. Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). The Court stated, “the term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Id. at 301, 100 S.Ct. 1682 (footnote omitted). In determining whether police tactics were likely to elicit an incriminating response, the focus of the inquiry is on the perceptions of the suspect, rather than the intent of the police, and the totality of the circumstances surrounding custody of the suspect must be considered. Id.; State v. Tibiatowski, 590 N.W.2d 305, 309 (Minn.1999). We have stated that “the central question becomes whether the evidence in the record shows that the officers should have known that them conversation was reasonably likely to elicit an incriminating response from [the suspect] or to get [the suspect] to revoke his right to counsel.” Munson, 594 N.W.2d at 142.

In Munson, we held that the state failed to prove that the suspect had initiated further discussions when, immediately after the suspect invoked his right to counsel, the police officer used the phrases: “remember what I said” and “window of opportunity,” both of which referenced the officer’s earlier statement that the suspect had a small window of opportunity to talk to investigators. Id. at 133, 143. In this case, Keefe made no comparable statements after Paul invoked his right to counsel. Rather, Keefe asked clarifying questions to confirm that Paul was invoking his right to counsel, and having concluded that Paul was invoking his right to counsel, Keefe informed Paul that he would be taken to jail.

Paul then asked Keefe questions about his arrest warrant for terroristic threats. When Keefe responded, he confined his remarks to reiterating that Paul was currently under arrest for terroristic threats and would also likely be charged with Williamson’s murder and another murder. Paul replied by denying any involvement with the murders. Despite Paul’s specific reference to the murders, Keefe continued to exercise restraint. He replied, “Okay. Well, so be it,” and put his binder on the table in preparation to stand up and leave the room. Shortly thereafter, Keefe stood up, walked to the door, and opened it. He did not close the door and return to his seat until after Paul had expressly stated that he wanted to continue talking with Keefe.

We conclude that Paul initiated further discussions when he said to Keefe, “I don’t know; who put the warrant out? There was never no police report, so how would there be a warrant?” We also note that Paul’s next statement, “I know I don’t have nothing to do with [the two murders]” would also appear to qualify as an initiation of further discussions. After Paul invoked his right to counsel but before Paul initiated further discussions, Keefe did not say or do anything that qualifies as the functional equivalent of interrogation.

Having concluded that Paul initiated further discussions with Keefe after invoking his right to counsel, the final question is whether Paul then knowingly and intelligently waived his right to have counsel present for questioning. After Paul initiated further discussions, the following exchange occurred:

MK: And I want to talk to you about these two murders, well, can I ... to give you the opportunity to explain yourself.
LP: ... well, go ahead, talk, let me hear what you have to say.
MK: Well, nah, ah, you got to clarify— do you want a lawyer or not? [Steps part way back into room]
LP: Huh?
MK: Do you want a lawyer or not?
LP: Just to talk, go ahead and talk.
MK: Answer the question — do you or
LP: I don’t need no lawyer. I don’t need no lawyer.
MK: You don’t need no lawyer?
LP: Yeah.
MK: So, now you’re willing to talk to me?
LP: Yes.
MK: Alright. [Keefe closes door.] Make sure we’re real clear on this, okay, cuz I need a real clear waiver from ya. [Keefe sits down and picks up binder ] LP: Em hmm.
MK: We’ll do it one more time, okay? You know you have the right to remain silent, right?
LP: Yep.
MK: And you do not have to talk to me. Okay. Anything you say can and will be used against you in court. Do you understand that?
LP: Em hmm (affirmative).
MK: Okay. You have the right to talk to a lawyer now or at any time during questioning. Do you understand that Leroy?
LP: Yeah, I know that.
MK: And if you cannot afford one, one will be appointed for you without costs.
LP: Okay.
MK: Do you understand that?
LP: Yep.
MK: Having those rights in mind, do you want to talk to me right now without your attorney.
LP: Yeah; yes. [Keefe closes binder and leans forward on table ]

During the foregoing exchange, Keefe remained in the open doorway until Paul told Keefe that he wanted to talk with him without a lawyer present. Keefe then returned to his chair. There is no indication that Keefe was exerting pressure on Paul by the use of body language or tone of voice. After Paul stated that he did not want a lawyer, Keefe then read Paul the complete Miranda advisory and Paul indicated that he understood his rights. While informing Paul of his Miranda rights, Keefe placed specific emphasis on Paul’s right to counsel. Moreover, throughout the entire exchange between Keefe and Paul, there are at least 13 times that Keefe (1) asked Paul if he wanted counsel, (2) told Paul he could not talk to him because of Paul’s request for counsel, or (3) in other ways referred to Paul’s right to counsel.

Having considered the totality of the circumstances, we conclude that Paul’s waiver of his right to have counsel present for questioning was knowing, intelligent, and voluntary. We are satisfied that the state has met its burden of proof regarding Paul’s purported waiver. We therefore hold that the district court did not err in admitting Keefe’s testimony regarding the statement Paul made following his waiver.

II.

We next address Paul’s argument that he is entitled to a new trial due to prosecutorial misconduct during the state’s closing argument. Paul argues that “the [state] subtly injected racial issues and distinguished between the jurors’ world and the world of the defendant, victim, and witnesses.” Paul did not object to the alleged misconduct at trial. When a defendant alleges error for the first time on appeal, we apply the plain error doctrine. State v. MacLennan, 702 N.W.2d 219, 235 (Minn.2005) Under the plain error doctrine, there must be (1) error, (2) that is plain, and (3) the error must affect substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn.1998). If these three prongs are met, we then assess whether we should address the error to ensure fairness and the integrity of the judicial proceedings. Id.

We have held that it is improper for the state to appeal to the passions and prejudices of the jury or otherwise seek to distract the jury from its proper role of deciding whether the state has met its burden of proof. See State v. Morton, 701 N.W.2d 225, 236 (Minn.2005). We have repeatedly stated that “it is improper to inject race into a closing argument when race is not relevant.” State v. Cabrera, 700 N.W.2d 469, 474 (Minn.2005); see also State v. Clifton, 701 N.W.2d 793, 799 (Minn.2005); State v. Ray, 659 N.W.2d 736, 747 (Minn.2003).

In Ray, we reviewed the state’s remarks that expressly invited jurors to compare the world of “three young black males in the hood” to the jurors’ world and to suburban neighborhoods. 659 N.W.2d at 746 (“This is not a dispute between a businessman * ⅜ * from Edina and another businessman * * * from Minnetonka. This is a dispute * * * involving three young black males in the hood in North Minneapolis. This is not your environment, this is the Defendant’s environment.”). We noted that “[s]uch an invitation asks the jury to apply racial and socioeconomic considerations that would deny a defendant a fair trial.” Id. at 747. “In cases where race should be irrelevant, racial ⅜ * ⅜ considerations, in particular, can affect a juror’s impartiality and must be removed from courtroom proceedings to the fullest extent possible.” Id. (quoting State v. Varner, 643 N.W.2d 298, 304 (Minn.2002)).

In Clifton, we addressed lengthy remarks made in the state’s closing argument that called on the jury to consider “how different your lives may be from the lives and the lifestyles of many of the people who testified before you and from the victim.” 701 N.W.2d at 799. In that case, the state described the Tangletown neighborhood of the defendant and victim as

a world where people gather on the neighborhood block and hang out. They look for action. They recognize people by sight, know them only by nickname, [do] a little drinking, find some marijuana, smoke a little marijuana, see who is partying, see who’s hanging. I’m not saying that that’s the life of everybody in that area, of course. But there are some folks who do go there and hang out.
It’s a world, at least to some extent, where some people don’t trust the system and don’t call the police when they see somebody with a gun. They don’t run from trouble but almost seem to flirt with it or at least co-exist with it.

Id. We concluded in Clifton that the state’s remarks constituted misconduct because they “were demeaning” and “came close to appealing to passion and prejudice.” Id. at 800. We expressed dismay that the state had disregarded our admonition in Ray to avoid statements that invite “jurors to view a defendant as coming from a different community than themselves.” Id. (quoting Ray, 659 N.W.2d at 747). Nonetheless, we concluded in Clifton that a new trial was not warranted because “unlike Ray, there was no explicit reference to race or use of race to disparage the defendant.” Id.

Here, the state began its closing argument with the following comments:

This is my opportunity to welcome you to the real world. What you’ve seen in the last few days is a world where an argument is sometimes settled with a gun. A world where a young man gets killed in broad daylight while he’s sitting in a car. A world where his friends and other acquaintances won’t tell the authorities what really happened until more than a year later. A world where a family has to wait for over a year to find out that something’s going to happen about their son’s death. Now during jury selection, I told you that you might hear about — from people that you don’t like; people who’s [sic] lifestyles you don’t agree with, aren’t familiar with. You’ve now been introduced to all of that, haven’t you?
⅜ ⅝ :|c ⅜
It certainly wasn’t easy for [Herron] to be here. This is part of the real world that I talked about. Part of our community that doesn’t trust the police.
* ⅝ ⅜ *
Ladies and gentlemen, in these kind of cases, a case where there’s people who have relationships with a defendant, relationships to a defendant, in this real world I’ve described to you, sometimes people don’t want to get involved. And these aren’t people who keep journals, these aren’t people who write a diary, they’re not people who may remember absolutely everything, and I don’t mean to be disparaging in saying that, but you realize that some of these people live in a very different world, and their memories may not be perfect, but they came in here and told you what it was that they saw happened.

Paul argues that the “absence of phrases like ‘young black males’ or ‘the hood’ does not make the [state’s] message any less subtle than that in Ray,” because the defendant, the victim, and all the non-law enforcement witnesses were African American. Paul further argues that “[b]y contrasting the jury’s world to ‘their world,’ the [state] impermissibly invited the jury to take into account racial and/or socioeconomic considerations.” The state responds by asserting that race and socioeconomic status are not the defining characteristics of the “real world” it described, and that the purpose of the remarks was to urge the jury to look beyond their possible lack of understanding of the witnesses’ behavior and to focus instead on the evidence introduced at trial. The state asserts that its “remarks were an attempt to blunt the potential impact of defense counsel’s attack” on the state’s witnesses. Arguably, blunting the potential impact of the defendant’s attempts to undermine the credibility of the state’s witnesses was also the purpose of the inappropriate remarks in Clifton. But here, the state’s remarks were brief — covering approximately two pages of 45 — and the language and imagery used to explain the lack of cooperation of witnesses in this case was considerably less inflammatory.

We conclude that the state’s remarks in this case did not rise to the level of misconduct because the remarks were brief; the jury was not expressly invited to compare their own “world” with the “real world” described; the remarks summarized the evidence in the case; the remarks were not demeaning; there was no mention of race, culture, neighborhoods, or any particular community; and the remarks were apparently intended to address inconsistencies and the lack of cooperation by witnesses — which were a focus of the defense case — rather than to appeal to the passions of the jury. Because we conclude that the state’s remarks did not constitute misconduct, we hold that there was no error, and accordingly, the state’s remarks were not plain error.

Although we find no error here, we take this opportunity to remind attorneys and district courts of the concerns we raised in Clifton and Ray, and encourage attorneys to refrain from using concepts and terms such as different “worlds” or “these people” to refer to the people intimately involved in the case. Such imagery may imply that the people involved with the case are somehow collectively distinguishable from the jurors on an inappropriate basis. If an attorney intends to convey that certain witnesses are credible despite behaving in a way that a juror might not understand, we respectfully suggest that there are other, more appropriate ways to address this concern. Finally, we reaffirm our “strong commitment to rooting out bias, no matter how subtle,” and invite all attorneys participating in the criminal justice system to join this effort. See Cabrera, 700 N.W.2d at 475.

Affirmed.

PAGE and GILDEA, JJ., took no part in the consideration or decision of this matter.

      . Paul’s counsel informed the court at oral argument that Paul withdrew a third issue, regarding the admissibility of recorded telephone calls he made from jail, after briefing.

      . We note that this argument erroneously implies that Miranda guarantees the right to place a telephone call to an attorney on demand, not the right to discontinue questioning until counsel is present. See Miranda v. Arizona, 384 U.S. 436, 471, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . In State v. Scales, 518 N.W.2d 587, 592 (Minn.1994), we held that "all custodial interrogation including any information about rights, any waiver of those rights, and all questioning shall be electronically recorded where feasible and must be recorded when questioning occurs at a place of detention.”

      . The racial makeup of the jury is not clear on appeal. During arguments regarding motions in limine, defense counsel described the jurors as "predominantly white,” and the state noted that “we have a good number of African-American and other minority people on the jury.”