Edmonds v. State

RAKER, Judge. This case involves the exercise of peremptory challenges under Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986). The principle question raised in the certiorari petition is whether the trial court erred in creating a remedy after finding a Batson violation. Unfortunately, because the trial court failed to make the necessary findings as to purposeful discrimination required by Batson , we are unable to answer the question.

We shall therefore remand the case to the trial court to enable the court to evaluate the credibility of the prosecutor’s race-neutral explanations and to determine whether petitioner carried his burden of proving purposeful discrimination. As a predicate to petitioner’s conclusion that the prosecutor exercised peremptory challenges in violation of the strictures of Batson , he maintains that a uniform policy of exercising a peremptory challenge to all jurors with relatives who have been convicted of a crime, without regard to the particular circumstances of the case, is inherently discriminatory and violates the rubrics of Batson . We do not agree. ³²¹ I. Jerome Maurice Edmonds, petitioner, was indicted by the Grand Jury for Baltimore County for first-degree murder, use of a handgun in the commission of a felony, use of a handgun in a crime of violence, attempted robbery, and conspiracy to commit robbery in the shooting death of a Caucasian youth. The State served Edmonds with a notice of intent to seek the death penalty. 1 The trial commenced on February 6, 2001, in the Circuit Court for Baltimore County.

Petitioner is African American. The trial court conducted voir dire of ninety-nine potential jurors 2 and included in the voir dire the following question: “Is there any member of the jury panel or any member of your immediate family who has been the victim of a crime or, conversely, have you or any member of your immediate family been convicted of a crime?” At the conclusion of the voir dire, forty-two prospective jurors remained, six of whom were African American. Five of the six African-American venirepersons responded to voir dire questions. Juror number 704 indicated that her brother had been murdered by a drug dealer in New York City and that she believed the killer had received leniency because the defendant’s brother was a police officer.

Ms. Ashe, juror number 614, reported that, twenty years ago, her sister had used an alias, and had been convicted of a drug violation. Ms. Ashe stated that she could be impartial. Juror number 56 discussed pressing work obligations. Ms. Smith, juror number 719, believed her nephew had been convicted of attempted murder but thought that he had been treated fairly and that ³²² she could be impartial as a juror.

Ms. Nelson, juror number 66, indicated that she thought she recognized the defendant as someone she knew but then realized she had been mistaken. Defense counsel objected to the State’s- use of peremptory challenges against five potential African-American jurors on the grounds that the strikes were racially discriminatory. 3 When the prosecutor exercised his first two peremptory challenges against African-American women, juror number 56 and Nelson, the defense raised a Batson challenge. The prosecutor explained that he had earlier attempted to strike juror number 56 for cause because of her work obligations and that he challenged Nelson because she had misidentified the defendant. 4 The next African American, Ashe, was acceptable to both parties and was seated. The parties agreed to two more jurors, and, with twelve jurors seated, the court asked whether the jury was acceptable.

The State excused a Caucasian woman, and selection continued. When next asked whether the jury was acceptable, defense counsel exercised additional strikes. 5 The prosecutor then raised a Batson challenge on the grounds that defense counsel had stricken three Caucasian ³²³ prospective jurors. The court overruled the State’s Batson challenge, and defense counsel pointed out that the prosecutor was not consistently striking jurors with prior criminal records or relatives with criminal records because the State seated Ashe. In response, the prosecutor indicated that he would challenge Ashe later because she wore a religious symbol on her ear and her sister had a criminal conviction.

The prosecutor pointed out that previously he struck two Caucasian jurors whose relatives had criminal records. 6 The prosecutor reiterated that uniformly he would strike persons whose relatives had criminal records but that he was not doing so because of race. 7 He assured the court that the jury panel would include African Americans. The jury was acceptable to the State but not to the defense; defense counsel exercised additional strikes. The parties reviewed more jurors and exercised additional peremptory strikes; the State then struck juror number 704, Ashe and Smith. The jury was acceptable to the State, but defense counsel objected because it included only one African American.

The defense argued to the trial court that the State’s use of five strikes against African-American jurors, in a case with a black defendant and white victim, constituted a premeditated effort to remove African Americans from the jury. Significantly, the judge, in response, remarked that he did not “buy the State’s position” that it was going to strike jurors -with relatives convicted of crimes but who stated they could be impartial. ³²⁴ The trial court asked the prosecutor his reasons for striking five African American venirepersons. The following colloquy took place: “THE COURT: Nelson. “PROSECUTOR: Yes. That was the mis-identification.

She thought she knew the Defendant, good, bad or indifferent. “THE COURT: Yes. Bad, indifferent or silly, that’s your reason. “PROSECUTOR: No, my reason is she could have been any race, creed or color, religion, I’m going to strike with a mis-identification. She thought she knew him. “THE COURT: First of all, so the record is clear, she did not misidentify anybody. She came up here on her own and said that initially she thought that maybe she knew Mr. Edmonds but when she got up here she realized that she didn’t know him, and she was perfectly candid about it.

So you may not characterize that as a mis-identification because it was not a misidentification.” “THE COURT: .... What about Ashe, number 614? “PROSECUTOR: Prior criminal record. “THE COURT: She didn’t have. Her family did. “PROSECUTOR: Family, criminal record. “DEFENSE COUNSEL: Twenty years ago, her sister. “PROSECUTOR: Her sister was convicted, had a drug charge. “THE COURT: She thought she had been treated fairly. What about Smith? “PROSECUTOR: Smith. “DEFENSE COUNSEL: What number is that? “PROSECUTOR: For attempted murder. • “THE COURT: What’s that got to do with the price of eggs? “PROSECUTOR: Are you asking the reason why we struck her? ³²⁵ “THE COURT: You say she could not sit because her nephew is in jail? “PROSECUTOR: ...

When asked her to state her — I wrote a question mark next to her — she said she could but her demeanor told me otherwise. 1 think we have a right to strike her. If the question is what she says, we don’t know whether she is, whether she is telling the truth. We don’t know if there is a bias. Demeanor told me she wasn’t even sure if she could be unbiased. “THE COURT: I didn’t notice that.

Her demeanor didn’t tell me that.” Defense counsel then asked the court to seat Smith, but the court did not rule on that proposal. Shortly thereafter, defense counsel requested the court to reseat Nelson: “DEFENSE COUNSEL: Your Honor, may I say that I think Juror Number 66, Ms. Nelson, who was friends with the County Police, and was the one that [the prosecutor] has mischaracterized as misidentifying would perhaps be the most appropriate to reseat. It was inconceivable to me that she was strickeny.. .. “PROSECUTOR: .... We have given race neutral reasons for striking that person. “THE COURT: But I have to agree with you, you know, that part of the deal the Judge has to buy, and the race neutral— “PROSECUTOR: I understand that but more important— “THE COURT: You mischaracterize why you did it, though, why you struck her.

She did not mis-identify anybody, and that was the reason you gave. I’m having trouble with it because it’s — it didn’t happen.” The court reseated Nelson as a juror. 8 Before the jury was sworn, defense counsel objected to the jury as impaneled: ³²⁶ “I asked for the specific replacement of Ms. Nelson believing that it was the most untenable of all the State’s objections but not giving any credence, with no personal rancor toward [the prosecutor], not accepting the neutral, the racial neutrality offered by the State .... I believe that the State has inappropriately created a pattern of striking African Americans and that their allegations of neutrality are insufficient as a matter of law.” The court ruled as follows: “Okay. And so they are who they are.

With regard to the five of the eight that — I guess nine that the State took, I just refuse to accept the reason that the State gave for Nelson. I just specifically reject that reason as being race neutral on its face. That’s why when the defense asked that I put her back on there, I did.” The jury was composed of nine Caucasians, two African Americans, and one South Asian American. The jury convicted Edmonds of felony murder, attempted armed robbery,. and use of a handgun in the commission of a crime of violence.

He was found not guilty of premeditated first-degree murder. The court sentenced Edmonds on the felony murder to life imprisonment, with all but forty-five years suspended, and on the handgun violation, to a term of incarceration of five years "without parole, to be served concurrently. Edmonds noted a timely appeal to the Court of Special Appeals. Before that court, he raised the single issue of whether the trial judge erred in fashioning a remedy for the State’s Batson violation whereby one of the improperly stricken jurors was reseated but others were not.

The State argued that because the trial court explicitly rejected the State’s rationale for excluding Nelson, it implicitly accepted the State’s reasoning respecting the other venirepersons in question. In response to that argument, the intermediate appellate court reasoned: “We do not necessarily accept that contention; but considering the totality of the circumstances, the comments made by the trial judge, and the remedy that ³²⁷ was pursued, the trial judge was correct.” In an unreported opinion, the Court of Special Appeals affirmed, holding that the trial judge did not err in fashioning a remedy for a Batson violation by reseating Nelson. We granted Edmonds’ petition for writ of certiorari to determine whether the trial court properly exercised its discretion in remedying a Batson violation by reseating one improperly stricken juror. We hold that the trial court failed to satisfy the requirements of Batson .

We shall remand the case to the trial court to make a determination, under Batson’s step three, of the credibility of the prosecutor’s reasons for striking Ashe and Smith and therefore whether petitioner carried his burden of proving purposeful discrimination.

II

Petitioner asserts three arguments. First, he argues that, as a matter of law, the prosecutor’s policy of striking jurors whose relatives had been convicted of a crime, without regard to the particular circumstances of the case, is inherently discriminatory and violates the rubrics of Batson . Second, assuming arguendo that the State’s policy was race-neutral, petitioner argues that the trial court found that the reasons given for striking jurors Ashe and Smith were pretextual under Batson’s step three. As such, the trial court’s determination is entitled to deference and therefore is not clearly erroneous.

Finally, petitioner argues that the error in the case lies in the remedy created by the trial court for the Batson violations. Because the trial court found three Batson violations, the reseating of only one juror inadequately remedied the harm. The State argues, in response, that Edmonds waived his objections to the striking of Ashe and Smith by requesting the trial court to reseat only juror Nelson. On the merits, the State does not dispute the trial court’s finding as to Nelson but argues that the trial court implicitly found that Ashe and Smith were struck for race-neutral, non-pretextual reasons, that the court’s finding was not clearly erroneous, and that the ³²⁸ trial court appropriately remedied any harm by seating Nelson.

III

We turn to the State’s argument that petitioner waived his Batson argument. The State contends that because petitioner asked for one remedy and received the relief he requested—the reseating of Nelson—he cannot now challenge the court’s remedial actions. See Klauenberg v. State, 355 Md. 528, 545 , 735 A.2d 1061, 1070 (1999)(holding there are no grounds to appeal when defendant receives the remedy he requested from the trial court). We hold that petitioner did not waive appellate review of his Batson claims.

Petitioner’s comment that Nelson “would perhaps be the most appropriate to reseat” did not constitute a waiver of his other objections. Petitioner objected repeatedly to the State’s exercise of peremptory challenges to exclude African-American venirepersons. Petitioner also asked the court to reseat Smith, but the court did not comply. Furthermore, petitioner excepted to the final composition of the jury and sufficiently pursued the Batson challenges.

See State v. Robinson, 237 Conn. 238 , 676 A.2d 384, 386-87 (1996)(conclud-ing that a party timely raises a Batson objection if the claim is brought to the attention of the trial court before the jury is sworn). He did not waive his claims. See Gilchrist v. State, 340 Md. 606, 617-18 , 667 A.2d 876, 881-82 (1995).

IV

The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution forbids the striking of a venireperson on the basis of race. Batson v. Kentucky, 476 U.S. 79, 89 , 106 S.Ct. 1712, 1719 , 90 L.Ed.2d 69 (1986); Strauder v. West Virginia, 100 U.S. 303, 310 , 25 L.Ed. 664 (1879). Peremptory challenges cannot be exercised to exclude members of a cognizable racial group from a jury. Batson, 476 U.S. at 89 , 106 S.Ct. at 1719 , 90 L.Ed.2d 69 ; Gilchrist v. State, 340 Md. 606, 625 , 667 A.2d 876, 885 (1995). ³²⁹ The underlying purpose of Batson and its progeny is to protect the defendant’s right to a fair trial, to protect the venireperson’s right not to be excluded on an impermissible discriminatory basis, and to preserve public confidence in the judicial system.

Powers v. Ohio, 499 U.S. 400, 404-10 , 111 S.Ct. 1364, 1367-70 , 113 L.Ed.2d 411 (1991); Batson, 476 U.S. at 85-88 , 106 S.Ct. at 1716-18 , 90 L.Ed.2d 69 ; Jones v. State, 343 Md. 584, 592-94 , 683 A.2d 520, 524-25 (1996); Gilchrist, 340 Md. at 620-21 , 667 A.2d at 883 . The United States Supreme Court has outlined a three-step formula for determining whether a peremptory challenge has been exercised in violation of the Equal Protection Clause. 9 See Batson, 476 U.S. at 96-98 , 106 S.Ct. at 1723-24 , 90 L.Ed.2d 69 ; Purkett v. Elem, 514 U.S. 765, 767-68 , 115 S.Ct. 1769, 1770-71 , 131 L.Ed.2d 834 (1995); Hernandez v. New York, 500 U.S. 352, 358-59 , 111 S.Ct. 1859, 1865-66 , 114 L.Ed.2d 395 (1991)(plurality opinion); id. at 372 , 111 S.Ct. at 1873, 114 L.Ed.2d 395 (O’Connor, J., concurring in judgment); Parker v. State, 365 Md. 299, 307-08 , 778 A.2d 1096, 1100-01 (2001); Gilchrist, 340 Md. at 625 , 667 A.2d at 885 . In Whittlesey v. State, 340 Md. 30 , 665 A.2d 223 (1995), we discussed Batson and the three-step process a court must follow in assessing a Batson claim. We said: “When a criminal defendant raises a Batson claim, the trial judge must follow a three-step process.

The burden is initially upon the defendant to make a prima facie showing of purposeful discrimination [step one]. If the requisite showing has been made, ‘the burden shifts to the State to come forward with a neutral explanation for challenging black jurors [step two].’ ‘Finally, the trial court must ³³⁰ determine whether the defendant has carried his burden of proving purposeful discrimination [step three].’ “ Whittlesey, 340 Md. at 46-47 , 665 A.2d at 231 (citations omitted). Once the claimant establishes a prima facie showing of discrimination, step one, the burden shifts to the proponent of the strike to proffer a facially valid, race-neutral explanation, step two. See Purkett, 514 U.S. at 767-68 , 115 S.Ct. at 1770-71 , 131 L.Ed.2d 834 .

An explanation must be race-neutral, but it does not have to be persuasive or plausible. Id., 514 U.S. at 767 , 115 S.Ct. at 1771 , 131 L.Ed.2d 834 . Any reason offered will be deemed race-neutral unless a discriminatory intent is inherent in the explanation. Id. at 768 , 115 S.Ct. at 1771 , 131 L.Ed.2d 834 ; Hernandez, 500 U.S. at 360 , 111 S.Ct. at 1866 , 114 L.Ed.2d 395 .

If the defending party offers a race-neutral reason, the challenging party must demonstrate that the offered explanation merely is a pretext for a discriminatory intent or purpose. The persuasiveness of the proffered justification becomes relevant at step three when the trial court evaluates whether the opponent of the strike has met his or her burden of proving purposeful discrimination. Purkett, 514 U.S. at 768 , 115 S.Ct. at 1771 , 131 L.Ed.2d 834 . A discriminatory purpose may be inferred from the totality of the circumstances and relevant facts.

Hernandez, 500 U.S. at 363 , 111 S.Ct. at 1868 , 114 L.Ed.2d 395 . Among the factors the court may consider to determine whether the proponent intended to discriminate are: the disparate impact of the prima facie discriminatory strikes on any one race; the racial make up of the jury; the persuasiveness of the explanations for the strikes; the demeanor of the attorney exercising the challenge; and the consistent application of any stated policy for peremptory challenges. See id. at 363-64 , 111 S.Ct. at 1868-69, 114 L.Ed.2d 395 ; Harley v. State, 341 Md. 395, 403-04 , 671 A.2d 15, 19 (1996). “[T]he decisive question will be whether counsel’s race-neutral explanation for a peremptory challenge ³³¹ should be believed.” Hernandez, 500 U.S. at 365 , 111 S.Ct. at 1869 , 114 L.Ed.2d 395 (plurality opinion). The ultimate burden of proving that a peremptory challenge was motivated by race always remains with the opponent of the challenge.

Purkett, 514 U.S. at 768 , 115 S.Ct. at 1771 , 131 L.Ed.2d 834 ; Batson, 476 U.S. at 93 , 106 S.Ct. at 1721 , 90 L.Ed.2d 69 ; Gilchrist, 340 Md. at 626 , 667 A.2d at 886 . The trial judge’s findings in evaluating a Batson challenge are essentially factual and accorded great deference on appeal. Harley, 341 Md. at 402 , 671 A.2d at 18 (citing Gilchrist, 340 Md. at 627 , 667 A.2d at 886 ). Whether a reason is race-neutral rests in large part on a credibility assessment of the attorney exercising the peremptory challenge.

Hernandez, 500 U.S. at 364-65 , 111 S.Ct. at 1868-69 , 114 L.Ed.2d 395 . The trial judge is in the best position to assess credibility and whether a challenger has met his burden. Accordingly, on appellate review, we “will not reverse a trial judge’s determination as to the sufficiency of the reasons offered unless it is clearly erroneous.” Gilchrist, 340 Md. at 627 , 667 A.2d at 886 . A trial court has “the duty to determine if the [challenger of the peremptory strikes] has established purposeful discrimination.” Batson, 476 U.S. at 98, 100 , 106 S.Ct. at 1724 , 90 L.Ed.2d 69 ; accord Parker, 365 Md. at 308 , 778 A.2d at 1101 (quoting Purkett, 514 U.S. at 768 , 115 S.Ct. at 1771 , 131 L.Ed.2d 834 ).

A trial court may not rule on a Batson motion without determining whether it credits the strike proponent’s race-neutral explanation for each challenged strike. See, e.g., Barnes v. Anderson, 202 F.3d 150, 156, 157 (2d Cir.1999). If a trial court determines that a reason given for a peremptory challenge is a pretext for purposeful discrimination and upholds a Batson motion, the court has “the discretion to fashion a remedy for a Batson violation that addresses and resolves the specific harm caused by that violation.” Jones, 343 Md. at 602-03 , 683 A.2d at 529 . ³³² V. Turning to the merits of petitioner’s Batson challenge, we note first that step one, whether petitioner has made a prima facie showing that the State’s challenges were racially motivated, is not at issue in this case. The issue is moot because the State offered explanations for its peremptory challenges and the court ruled, in part, on the ultimate question of intentional discrimination.

See Hernandez v. New York, 500 U.S. 352, 359 , 111 S.Ct. 1859, 1866 , 114 L.Ed.2d 395 (1991)(plurality opinion)(holding that once prosecutor makes race-neutral explanation for peremptory challenge and trial court rules on question of intentional discrimination, issue of prima facie case becomes moot); Gilchrist v. State, 340 Md. 606, 628 , 667 A.2d 876, 886 (1995)(same). We turn to step two under Batson to consider whether the State’s reasons for striking jurors Ashe and Smith were inherently discriminatory as a matter of law. We hold that the prosecutor offered race-neutral explanations at step two for striking jurors Ashe and Smith; therefore, the trial court proceeded properly to step three of the analysis. A neutral explanation has been defined as “an explanation based on something other than the race of the juror.

Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race-neutral.” Hernandez, 500 U.S. at 360 , 111 S.Ct. at 1866 , 114 L.Ed.2d 395 (plurality opinion). The question presented is the facial validity of the reasons offered by the State. Whether a reason is persuasive is not relevant at this stage of the inquiry. See Purkett v. Elem, 514 U.S. 765, 767-68 , 115 S.Ct. 1769, 1771 , 131 L.Ed.2d 834 (1995).

The prosecutor’s burden of production under step two is limited. The State had to produce a race-neutral reason, not a believable one. Id. at 768-69 , 115 S.Ct. at 1771 , 131 L.Ed.2d 834 . A trial court meets its obligation under step two by requiring the proponent of the strike to offer a race-neutral explanation for the peremptory challenge. ³³³ Petitioner contends that the State’s reason for exercising peremptory challenges against jurors Ashe and Smith is inherently discriminatory and therefore not facially valid and race-neutral.

The prosecutor challenged jurors Ashe and Smith because they each had a relative who had been convicted of a crime. 10 On its face, this reason is race-neutral. Striking venirepersons who have been convicted of crimes or whose relatives have been convicted of crimes is not inherently discriminatory. Courts throughout the country have accepted as race-neutral reasons the fact that a