Brashear v. State

GARRITY, Judge. Daniel Timothy Brashear, the appellant, was convicted by a jury (Casula, J., presiding) in the Circuit Court for Prince George’s County of second-degree murder. A thirty-year prison sentence, the maximum allowed by law, was imposed. On appeal, appellant charges that the trial judge erred in the following ways: 1.

He refused to remove a racial epithet from a tape recording which was admitted into evidence; 2. He refused to strike the jury on the theory that the State had used its peremptory challenges in a racially discriminatory manner; 3. He refused to suppress from the evidence a kitchen knife and letter written by the homicide victim; 4. He refused to suppress from the evidence a statement appellant gave the police; 5.

He refused to suppress from the evidence a crumpled letter appellant wrote while he was alone in the interrogation room; and 6. He did not state on the record his reasons for imposing the sentence of thirty years. In addition to these alleged errors committed by the trial judge, appellant also charges that the evidence was insuffi ⁷¹³ cient. We discern no defect in the trial and shall affirm the judgment.

FACTS Around 10:00 p.m. on October 17, 1990, Prince George’s County police officer, Corporal Charles Smith was on motor patrol in the Temple Hills area of the county. As he passed 4424 Beech Road, he observed a woman lying on the ground next to a pay telephone as the appellant was standing nearby holding a baby. Upon determining that the woman, Lisa Lindsey, was unconscious, Corporal Smith had her transported to the hospital. Unfortunately, Ms. Lindsey died the next day.

The medical examiner opined that she had died from two blows to her head. After making a quick examination of Ms. Lindsey, Corporal Smith asked the appellant to explain what had happened. The appellant answered that he had struck Ms. Lindsey, his common law wife, in the course of a domestic argument. Later, in a written statement, the appellant explained that he had struck Ms. Lindsey because she had provoked him by abusing him and their two-month-old son.

Other officers, including Detective Dischinger, arrived at the scene and appellant was placed under arrest. Before he was taken to the police station, however, he was allowed to visit his nearby apartment. He went into his apartment accompanied by Detective Dischinger to procure supplies for the baby. During their short visit in the apartment, the appellant showed the detective a kitchen knife which he said Ms. Lindsey had used when she had attacked him.

The next day another police officer, Officer Bruciak, returned to the apartment and recovered the knife and a letter which Ms. Lindsey had written. Although the appellant elected not to testify or call any witnesses at trial, he introduced several exhibits. Admission of Tape At the time the appellant was apprehended on the street he gave Corporal Smith a tape recording. He explained to the Corporal that, when he was speaking with Ms. Lindsey, he was wearing a voice activated tape recorder and recorded the conversation he had had with her immediately before he struck her.

Corporal Smith took the tape which was ultimately offered as evidence at the trial. The defense was pleased to have the tape admitted into evidence but wanted portions of it redacted. The portions appellant wanted redacted consisted of phrases in which he made racial epithets uncomplimentary to African-Americans. ⁷¹⁴ At a pretrial suppression hearing, defense counsel recited to the court a segment of the tape recording he wanted redacted. We produce here the full segment recited by counsel with the phrases which he requested to be redacted underlined.

Get your fucking ass out of my fucking life and leave me the fuck alone. I am fucking tired of you, and your fucking goddamn nigger kid. I’m tired — she says, Lisa Lindsey says I’m tired of your shit. You don’t care nothing about me.

The Defendant says I’m tired of your phony police reports, and your nigger fucking kid. Get the fuck out. All you have to do is fucking leave to begin with, (emphasis added) Counsel explained that both the appellant and Ms. Lindsey were white, but that Ms. Lindsey had another child by an African-American. The offensive comments were made in reference to that child. 1 Counsel then argued that the emphasized portions of the remarks were racist epithets which would be offensive to a “sophisticated black person.” Counsel noted that since Prince George’s County has an African-American population of slightly over fifty percent, he expected a significant number of that group would be on the jury and form a prejudice against appellant because of the remarks.

The trial judge refused to order the redaction and explained his ruling: THE COURT: As I said before, Mr. Niland, I thought the tape was relevant and I think it was made contemporaneously with the incident that is being presented here today. I feel that every inch, every word of it that was said was relevant. I tell you why. I see in that the beginning of a highly, high-pitched emotional argument, which escalated into where we have mortal wounding of the deceased.

I think it is all relevant. However, if there is a part here — I have listened very intensely and intently. I weighted the prejudice that could come from the racial epithets that were used, but I think the probative far outweighs the prejudice. I think what you have to do is, and I think will help eliminate a lot of that by appropriately framing questions that we can ask the jurors.

We are now asked to decide whether the trial judge committed reversible error when he refused to order the redaction. ⁷¹⁵ In order to answer this question, we have to consider two sub-questions: Were the objectionable phrases relevant? Assuming the phrases were relevant, did their probative value outweigh their prejudicial effect? Bedford v. State, 317 Md. 659, 668 , 566 A.2d 111 (1989) and Jackson v. State, 87 Md.App. 475, 485 , 590 A.2d 177 (1991). A fact is relevant if it “tends to establish or disprove a material fact.” Campbell v. State, 65 Md.App. 498, 508 , 501 A.2d 111 (1985), cert. denied, 305 Md. 599 , 505 A.2d 856 (1986). “Evidence is material if it tends to establish a proposition that has legal significance to the litigation.” Paige v. Manuzak, 57 Md.App. 621, 632 , 471 A.2d 758 , cert. denied, 300 Md. 154 , 476 A.2d 722 (1984).

The trial judge is vested with the discretion to decide whether an item of evidence is relevant. Best v. State, 79 Md. App. 241, 259 , 556 A.2d 701 (1989). In this case, the trial judge concluded that the offensive phrases were relevant because they tended to show the existence of a “high-pitched emotional argument.” This would tend to show appellant’s state of mind, which, in turn, had a bearing on whether he possessed the requisite intent/lack of mitigating circumstances to commit the crime of first-degree murder. We concur with the trial judge’s ruling that the evidence was relevant.

The second, and more difficult, question is whether the prejudicial effect of the evidence outweighed its probative value. The answer to that question involves the exercise of discretion by the trial judge. Hunt v. State, 312 Md. 494, 503-04 , 540 A.2d 1125 (1988). In this case, the trial judge decided that the prejudicial effect could be removed by questioning the jurors.

The jurors were questioned and none responded that the remarks would prejudice him. Under the circumstances, we lack a basis to find error. Peremptory Challenges The question here is whether the jury was improperly composed because several white venirepersons were peremptorily struck from the jury. Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986).

The facts may be simply stated. Appellant is white. The jury panel was approximately fifty percent white and fifty percent black. During the impaneling process, the prosecutor peremptorily challenged six white venirepersons and two black venirepersons.

We must decide whether the prosecutor’s challenge to the six white venirepersons amounted to illegal racial discrimination. ⁷¹⁶ As observed by Judge Moylan in Mejia v. State, 90 Md.App. 31 , 599 A.2d 1207 (1992) (wherein we held that a Hispanic defendant failed to make out a prima facie case of a Batson violation): Although all of the reported appellate decisions in Maryland considering Batson claims have thus far involved peremptory challenges against blacks, the undergirding logic of Equal Protection law, on which Batson rests, compellingly requires that its strictures must also apply to peremptories used against any other cognizable group____ Successful challenges to the use of peremptories have, moreover, been maintained in a number of state courts and lower federal courts with respect to a smorgasbord of cognizable target groups. These have included such groups as whites, Roman v. Alabama, 822 F.2d 214 , 227-228 (2d Cir.1987); ... Gov. of Virgin Islands v. Forte, 865 F.2d 59, 64 (3d Cir.1989); Id. at 35. In Roman, a white defendant, convicted of conspiracy to commit arson, alleged that he had been deprived of a fair trial because of the prosecutor’s use of eight peremptory challenges to exclude white jurors.

The Second Circuit held that a prosecutor’s use of peremptory challenges to prevent whites from sitting on the jury on the basis of their race violated Roman’s Sixth Amendment right to the possibility of a jury reflecting a fair cross section of the community. Id. at 227-228. In Forte , a white male was convicted of having raped a black female. On appeal, the defendant contended that the government’s exercise of its peremptory challenges to remove all white persons from the jury was plain error under Batson .

In recognizing that Forte was a member of a cognizable racial group, the Court stated: Defendants of both groups [white and black] are entitled to trial before juries from which members of their race are not excluded as the result of purposeful discrimination by the prosecutor. We cannot hold that a white defendant convicted by a jury selected in a racially discriminatory manner should be satisfied with the knowledge that it is usually blacks who are unfairly treated and therefore may be denied relief himself____ Thus, we now hold .... that Batson applied to both white and blacks... Id. at 64. When a Batson question arises, the trial judge is required to follow a three-step process.

The Supreme Court outlined the process in Hernandez v. New York, 500 U.S.-, 111 S.Ct. 1859, 1866 , 114 L.Ed.2d 395 (1991), where the Court said: ⁷¹⁷ First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. [Batson v. Kentucky ] Id. [476 U.S.], at 96-97 [ 106 S.Ct., at 1722-1723 ]. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. Id., at 97-98 , 106 S.Ct., at 1723-1724 . Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination.

Id., at 98 , 106 S.Ct., at 1723 . If after applying this test, it is determined that even a single juror was excused for racial reasons, the jury panel will be considered to be defective. Tolbert v. State, 315 Md. 13, 19 , 553 A.2d 228 (1989). In this case, the trial judge ruled that the six excused venirepersons amounted to a prima facie showing that the peremptory challenges were made on the basis of race.

(Step One) He, therefore, required the prosecutor to place on the record race neutral explanations for striking the six jurors. (Step Two) This was done and the following reasons were given: Veniremen Reasons One Martial arts background. Two Uncle convicted of drug offense. Three Long hair, casual dress.

Made eye contact with appellant in manner which suggested sympathy with appellant. Four Retired Air Force Officer. Had served on a court martial. Five Knew a State’s witness.

Six Minister who dealt with domestic issues. (Perceived to be sympathetic to appellant.) ⁷¹⁸ The term “race neutral reason” was defined by the Supreme Court in Hernandez v. New York, supra, at 500 U.S. -, 111 S.Ct. 1866 , to mean “an explanation based on something other than the race of the juror.” The Court went on to explain that a prosecutor’s reason must be accepted as race neutral “unless a discriminatory intent is inherent in the prosecutor’s explanation.” The trial judge ruled that all of the prosecutor’s reasons were race neutral, and on the basis of that finding ruled that the jury composition was proper. Appellant argues that the