Elliott v. State

HOLLANDER, Judge. Kellie McCullough, the estranged wife of Andre Jerome Elliott, appellant, suffered multiple stab wounds when she was attacked by appellant on February 5, 2006. Mr. Elliott was subsequently indicted on a variety of charges, including attempted first-degree murder of Ms. McCullough. Following a jury trial in the Circuit Court for Montgomery County in July 2007, appellant was convicted of attempted second-degree murder, in violation of Md.Code (2002, 2006 Supp.), § 2-206 of the Criminal Law Article (“C.L.”); first-degree burglary, in violation of C.L. § 6-202; and first-degree assault, in violation of C.L. § 3-202.

The court sentenced appellant to a total term of fifty years’ incarceration. 1 ⁶⁹⁹ This appeal followed. Appellant poses four questions, 2 ■which we quote: 1. Did the trial court err in empaneling the jury after the State admitted that it had exercised peremptory challenges on the impermissible basis of gender? 2. Did the trial court err in refusing to continue the trial to remedy the prejudice arising from the State’s last-minute and incomplete production of evidence required to be disclosed under Maryland Rule 4—263(b)? 3.

Did the trial court err in refusing to dismiss the indictment or afford other relief to remedy the State’s bad-faith failure to preserve evidence? 4. Did the trial court err in refusing to clarify the jury’s confusion about the intent requirement of attempted murder? For the reasons set forth below, we conclude that the State improperly exercised its peremptory challenges. Therefore, we shall vacate the judgment and remand for a new trial.

Accordingly, we decline to address Questions Two and Four, as they are not likely to recur. For the benefit of the parties and the court, however, we shall address the third question. FACTUAL AND PROCEDURAL BACKGROUND 3 Elliott and McCullough were married in August 2004. In June 2005, after the parties had already separated, McCul ⁷⁰⁰ lough purchased a house in Germantown.

About “two or three months” later, McCullough told Elliott that he could “stay” at her house until he could “get [himjself together.” He later refused to leave. Accordingly, on January 3, 2006, McCullough gave Elliott thirty days’ notice to vacate her house. On January 27, she obtained a temporary protective order against Elliott because he was volatile, abusive, and had threatened to kill her. She obtained a final protective order on February 3, 2006.

At around 7:17 a.m. on Sunday, February 5, 2006, Elliott left a voice message for McCullough, stating that he needed to talk to her. McCullough testified that she “got out of the bed” at around 8 a.m. that morning. She soon heard banging coming from downstairs; “immediately” she “knew” it was Elliott. She retreated to the bathroom, but Elliott “kicked through the door” and started stabbing her.

McCullough screamed, hoping the neighbors would hear her. With her hand, she tried to block the knife. Nevertheless, Elliott stabbed her hand and then stabbed her wrist, where the knife was stuck until Elliott yanked it free. Elliott also stabbed McCullough in the chest.

Blood was everywhere. 4 ⁷⁰¹ McCullough testified that when she “woke up” the knife was still in her chest. She pulled it out and slid to the bottom of the stairs, where she was able to reach her cell phone. She called 911, and told the dispatcher she had been stabbed. But, McCullough did not recall whether she mentioned that it was her husband who had stabbed her.

She lay on the floor, which was covered in glass, and was in and out of consciousness. When the police arrived, McCullough identified Elliott as the person who had stabbed her. She also indicated that he had been wearing a blue or black crew neck shirt, a coat, boots, and “a New York hat.” The prosecutor asked: “Who is the person who did this to you?” McCullough responded: “Andre Elliott.” She also identified the knife used during the attack and a New York Yankees hat recovered from appellant’s car. On cross-examination, McCullough confirmed that “[t]here was a diary that was in [her] apartment that was taken ... [a]nd sometime after the incident ... given back.” She also agreed that she received “a copy or copies of the diary” from Detective Ana Erazo, and was not instructed to preserve the material.

McCullough subsequently “discarded the diary” and “shredded the copies.... ” Defense counsel did not ask about the contents of the diary. 5 Shortly after 8 a.m. on February 5, 2006, Patrol Officer John Chucoski responded to McCullough’s 911 call. The front door of the house was locked, but some of the windows were ⁷⁰² shattered. The police found McCullough “lying in a pool of blood. There was large amounts of blood on her, on the ground below her and coming down the stairs and on the walls.” Officer Chucoski noted that there was also blood in the bedroom, where a knife was found on the floor.

He described McCullough as upset and in pain. Another officer asked McCullough who assaulted her, and she responded that “it was her husband, Andre Elliott.” Forensic Specialist Collette Sarns-Gaunt of the Montgomery County Police Department Forensic Services Section collected evidence from the house, including a kitchen knife, approximately eight inches long, found in the master bedroom, and “a diary or a journal located ... next to the bed .... in the master bedroom.” Sarns-Gaunt testified that she took the diary because “diaries usually speak to the person’s state of mind.” Moreover, she explained that she believed she “had arrived on what was going to become a homicide,” and “felt that [the diary] was important if the victim did not survive.” She read parts of the diary and gave a copy of it to the lead investigator, Detective Erazo. Sarns-Gaunt also collected “a bathrobe with suspected blood,” as well as swabs, of blood from the inside of the front door and where the victim lay just inside the front door. She explained that she “swab[s] blood mostly because blood is not usually present, so it seems out of place----” Ms. Sarns-Gaunt also assisted in searching Elliott’s car.

Among other items, the police seized a New York Yankees hat. Detective Kenneth Halter testified about the message left on Ms. McCullough’s voice mail at 7:17 a.m. on February 5, 2006. He claimed he was familiar with Elliott’s voice, and identified the voice on the message as Elliott’s. After the attack, he played the message for Ms. McCullough; she identified Elliott’s voice.

Forensic Specialist Kimberly Clements testified that the knife found in the victim’s bedroom was examined for fingerprints; no latent prints of value were found. Forensic Biolo ⁷⁰³ gist Erin Farr testified that the DNA profiles from the knife blade and the handle matched McCullough’s DNA, not Elliott’s DNA. She explained that the DNA from the blood on the knife could “mask or overpower ... the DNA from something of a lesser amount,” i.e., the testing would only detect the DNA from the blood without detecting “some other kind of DNA.” After the State rested, appellant moved “for a judgment of acquittal on the first degree attempted murder charge” and “second degree, lesser included attempted murder.” He alleged that the evidence of premeditation and specific intent to kill was insufficient for those charges, and submitted as to the other counts. The court denied the motion.

Appellant called Detective Ana Erazo, who worked for the Montgomery County Police Department’s Family Crimes Division and was the lead detective on the case. She stated that the blood on the diary was not tested for Elliott’s DNA. Detective Erazo received two copies of the diary from Ms. Sarns-Gaunt, but she did not read the diary. Once the decision was made to return the diary to McCullough, Detective Erazo retrieved the original and returned it to the victim on March 6, 2006.

Erazo returned the copies to McCullough on April 27, 2006. Detective Erazo did not direct Ms. McCullough to preserve either the diary or the copies. She testified that her understanding of the significance of the diary was that it may have been useful if Ms. McCullough had not survived; because she survived, the diary was no longer needed. The following colloquy is relevant: [APPELLANT’S COUNSEL]: And in investigations in the Family Crime[s] Division do you sometimes obtain copies of or originals of victim diaries? [ERAZO]: No. ⁷⁰⁴ [APPELLANT’S COUNSEL]: Are you aware whether there’s a standard practice in the Family Crimes Division as to what to do when you do obtain a copy of a victim diary? [ERAZO]: No....

We don’t ... have that I’m aware of in my unit within the Family Crimes. You’ve got to understand the Family Crimes has several different sections. And they’re all very different crimes. Erazo testified that she did not discuss the diary with McCullough.

Although the diary “came up during one of the meetings that we had within my division with the State’s Attorney’s Office,” no one informed her of its contents. And, as noted, Erazo claimed that she “didn’t read it.” On cross-examination, the prosecutor asked Erazo about her “understanding of the significance of the journal.” The detective replied: “We thought the victim was going to die and that would’ve been a good piece of evidence to have.” She maintained that the State returned the diary “[b]ecause the victim ... survived.” The following exchange is relevant: [PROSECUTOR]: [Y]ou need to investigate a case with a mind towards the State prosecuting its case if the victim does not want to testify. [ERAZO]: That’s correct. [PROSECUTOR]: And forensic evidence can be important in a case to show what happened, especially if the victim does not testify, is that correct? [ERAZO]: Yes. [PROSECUTOR]: And that could include evidence of a journal [or] DNA evidence if the victim does not testify, is that correct? [ERAZO]: Yes. On redirect, appellant’s counsel asked Erazo whether the State had a meeting on March 22, 2006, “to consider what evidence to use if there was no victim cooperation.” Erazo responded in the affirmative. The following ensued: ⁷⁰⁵ [APPELLANT’S COUNSEL]: Now you’d agree with me that the reason that victim diaries can be important for example in homicide cases is because it might give you some leads about the crime that was committed, correct? [ERAZO]: Yes. [APPELLANT’S COUNSEL]: It might tell you who did it, correct? [ERAZO]: In other cases, yes.

Appellant did not testify. The defense rested and “renewed] it’s [sic] motion for judgment ... for the reasons previously stated and on the evidence submitted.” The court again denied the Motion. With regard to jury instructions, the court denied appellant’s request for a spoliation instruction, pointing out that defense counsel never asked McCullough what she wrote in the diary, and observing that “there really isn’t any evidence of spoiliation [sic] in this case.” Defense counsel responded that the blood spatter on the diary was “an additional reason ... why we think that the spoiliation [sic] instruction ought to be given.” The court ruled: “Well, you’re not going to get it for that reason. There was blood everywhere in this case and a substantial amount of it was tested.” In closing argument, defense counsel pointed out inconsistencies between McCullough’s testimony and that of other witnesses, and argued: “She can’t keep it straight, ladies and gentlemen, and those are the symptoms of a mistaken witness that’s not telling the truth.

She’s wrong.” Moreover, he noted that no DNA evidence linked appellant to the crime. According to defense counsel, it was “common sense in a case like this you would read the diary of a victim,” yet the State had returned the diary and copies of it to McCullough, who “discarded” the diary and “destroyed” the copies. He contended that the State’s “explanation for why they returned this diary doesn’t hold water. ...” We shall include additional facts in our discussion. ⁷⁰⁶ DISCUSSION I. Appellant contends that the “court erred by failing to remedy the constitutional violations arising from the State’s gender-based exercise of its challenges.” As Elliott observes, the State “exercised the first six of seven strikes against men,” and, in total, “exercised eight of its nine peremptory strikes (88.8%) against men.... ” 6 Moreover, appellant twice objected to the State’s peremptory challenges against men. Relying on Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986), and its progeny, he argues: “The trial court erred in empaneling a jury over objection after the State’s admitted exercise of peremptory challenges on the impermissible basis of gender.” Before reviewing the parties’ contentions in detail, we pause to review what transpired below with respect to jury selection.

After the State had exercised seven of its ten allotted strikes, 7 the following ensued at the bench: [DEFENSE COUNSEL]: ... I’m not certain, but I believe the State used six of its seven ... strikes on men.... [T]he issue I’m raising is whether they’ve used a disproportionate number of those strikes on men. I believe it may be ⁷⁰⁷ six out of seven but I would need to consult the official records. I just don’t want to waive the issue, Your Honor.

That’s all. THE COURT: Very well. I’ll consider that an objection. Overruled.

Twelve jurors and two alternates were seated. The following colloquy transpired at the bench, before the jury was sworn: 8 [DEFENSE COUNSEL]: I just want to preserve the issue of using strikes on men ... THE COURT: Is there any specific reason[?] [DEFENSE COUNSEL]: I believe they used all but one of their strikes on men. 1 would have to look at my notes to verify that. [PROSECUTOR]: I’d actually like to respond to that point. THE COURT: Yes, Go ahead, Madam State. [PROSECUTOR]: First of all, they have to show a pattern of discrimination and they haven’t.

And I would also like to say that they used most of their strikes on women[ 9 ] and then when we started using our strikes, we had a panel of men and felt the need to balance out the jury. So if we did use more strikes on men, it would be because we wanted a balanced jury, ivhich I believe we have. I guess it’s more men than women on the jury now. THE COURT: Yes.

Okay. Very well. [PROSECUTOR]: Thank you. THE COURT: Thank you. [DEFENSE COUNSEL]: Thank you, Your Honor. (Emphasis added.) ⁷⁰⁸ According to appellant, the State “proffer[ed] a patently gender-based explanation for its strikes against men” and “admitted that it was striking men because they were men” which “was not gender-neutral, as required by Batson” He argues that by its “admitted exercise of peremptory challenges on the impermissible basis of gender .... • the State violated [the] constitutional mandates” of the United States Constitution and Articles 24 and 26 of the Maryland Declaration of Rights.

Pointing to “[t]he State’s unfounded suggestion that defense counsel exercised gender-based strikes,” appellant notes that “the State never raised a Batson objection.” Moreover, he characterizes as “astounding” the “State’s suggestion that one party’s constitutional violation justifies another party’s constitutional violation.... ” In his view, the State’s “motive” to create a gender-balanced jury “does not cure” the State’s Batson violation. Appellant posits that “[t]he appropriate remedy for the State’s Batson violation” is to “set aside his conviction.” In his view, “a limited remand to determine whether a permissible rationale for the strikes existed is not appropriate,” because there is no question whether the State had a gender-neutral rationale; “the State admitted that its peremptory strikes were gender-based.” The State counters that “Elliott failed to perfect his challenge to the State’s use of peremptory strikes and he also acquiesced to the trial court’s empaneling the jury without having ruled as to each challenged juror.” Elaborating, the State observes that, “after the State responded, during the second exchange, to Elliott’s stated belief that ‘[the State] used all but one of [its] strikes on men,’ Elliott did nothing but say thank you to the judge.” In its view, appellant failed to ensure “that the trial court considered his objection under the Batson three-part test as to each challenged juror. Elliott, in effect, acquiesced to the court’s tacit action to overrule his numbers objection and has no basis for appealing those actions now.” ⁷⁰⁹ Alternatively, the State claims that “the remedy of granting a new trial is not warranted when a limited remand would permit the trial court to conduct a proper hearing on the parties’ respective claims of gender discrimination in the use of peremptory strikes.” According to the State: “Each party should be required to show, as to each challenged juror, their respective prima facie case of alleged gender discrimination in juror selection,” and “the State should be permitted to articulate its reasons for striking a juror.... ” In its view, “a limited remand would permit the trial court an opportunity to consider fully and properly, under the three-part test, the objection raised as to each challenged juror after the other (or striking) party has articulated its basis for exercising a strike against the juror.” Further, the State argues that even though it “stated a preference for a balanced jury, the State should be permitted the opportunity to demonstrate to the trial court whether it had legitimate permissible reasons for striking a particular juror.” In this regard, the State maintains that if it struck a juror “for both permissible and impermissible reasons it would be up to the trial court to determine if the strike was appropriate or not. 1 In his reply, appellant insists that he preserved his Batson challenge because “the defense objected twice on Batson grounds, and ... the trial court twice considered, and twice rejected, the challenge.” He reiterates that his objection to the State’s exercise of its nine strikes “established a prima facie case because it demonstrated a pattern sufficient to support an inference of discrimination,” in violation of federal and State law. Moreover, he argues that because “the State volunteered its explanation” for striking jurors, “the question whether a prima facie case of impermissible motivation has been established was moot.” In that circumstance, argues appellant, “the defense no longer needed to prove that the State’s strikes were gender-based once the State admitted that to be true.” ⁷¹⁰ In addition, referring to defense counsel’s “thank you” remark, appellant claims that, “when defense counsel objects and is heard on a jury-based challenge, ultimate acceptance of or acquiescence to the empaneling of the jury does not result in waiver.” He maintains that “counsel’s ‘thank you’ merely indicated counsel’s obedience to the court’s overruling of the Batson objection.” In the alternative, he asks this Court to “exercise its discretion to review the Batson challenge for plain error.” Preliminarily, we are satisfied that there is no merit to the State’s contention that appellant failed to preserve his Batson challenge.

We explain. Maryland Rule 4-323(c), governing objections to nonevidentiary rulings, provides, in part: “For purposes of ... appeal of any ... ruling or order, it is sufficient that a party, at the time the ruling or order is made or sought, makes known to the court the action that the party desires the court to take or the objection to the action of the court.” Here, the record reflects that appellant twice objected on Batson grounds, and the trial court twice rejected his challenge. Notably, “[a] Batson objection is timely if the defendant makes it no later than when the last juror has been seated and before the jury has been sworn.” Stanley and Trice v. State, 313 Md. 50, 69 , 542 A.2d 1267 (1988). That is precisely what occurred here. 10 We also reject the State’s claim of waiver by acquiescence.

First, as appellant points out, “[t]he suggestion that counsel risks waiving objections by maintaining a courteous and professional dialogue with the court is at odds with the legal profession’s standards of conduct.” See Md. Rules of Profl ⁷¹¹ Conduct, Preamble § 9 (lawyer must “zealously ... protect and pursue a client’s legitimate interests ... while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system”). Second, although defense counsel thanked the court after it heard argument on the State’s use of its jury strikes, defense counsel’s response “ Vas merely obedient to the court’s ruling and obviously [was] not a withdrawal of the prior [Batson] objection. ...’” Ingoglia v. State, 102 Md.App. 659, 664 , 651 A.2d 409 (1995) (concluding that “acceptance” of venire panel did not waive earlier challenge to court’s refusal to pose a particular voir dire question) (citation omitted); see Miles v. State, 88 Md.App. 360, 377 , 594 A.2d 1208 (concluding that defense counsel’s statement, “ ‘my client and I are satisfied with the selection process,’ ” did not waive prior objections regarding voir dire, cert. denied, 325 Md. 94 , 599 A.2d 447 (1991)). Notably, in contrast to Gilchrist v. State, 340 Md. 606, 618 , 667 A.2d 876 (1995), in which the defendant’s “attorney said that the second jury panel was ‘acceptable,’ ” defense counsel did not affirmatively represent that the jury was acceptable. We turn to the merits.

In the landmark case of Batson v. Kentucky, 476 U.S. 79, 89 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986), the Supreme Court examined peremptory challenges and held that “the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race[.]” To the contrary, a “defendant [has] the right to be tried by a jury whose members are selected pursuant to non-discriminatory criteria.” Id. at 85-86 , 106 S.Ct. 1712 . The underlying purpose of Batson and its progeny is to protect the parties’ right to a fair trial; the venire person’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, 406-09 , 111 S.Ct. 1364 , 113 L.Ed.2d 411 (1991). 11 ⁷¹² In Tyler v. State, 330 Md. 261 , 623 A.2d 648 (1993), the Court of Appeals extended the rationale of Batson to sex-based peremptory strikes as a matter of State constitutional law. It said, id. at 270, 623 A.2d 648 : The equality of rights under law, without regard to gender, bestowed by Art. 46 of the Maryland Declaration of Rights, flowing through the equal protection guarantees of Art. 24 of the Maryland Declaration of Rights to Batson v. Kentucky, 467[476] U.S. 79, 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986), prohibits the State in a criminal prosecution from using peremptory challenges so as to exclude a person from service as a juror because of that person’s sex.

Subsequently, in J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 , 114 S.Ct. 1419 , 128 L.Ed.2d 89 (1994), the Supreme Court reached the same result. It determined that the Equal Protection clause “forbids peremptory challenges on the basis of gender,” because “gender, like race, is an unconstitutional proxy for juror competence and impartiality.” Id. at 129-30, 114 S.Ct. 1419 , 128 L.Ed.2d 89 . In evaluating a claim that peremptory challenges were exercised in an impermissibly discriminatory manner, trial courts must follow a three-step process.

See Miller-El v. Cockrell, 537 U.S. 322, 328-29 , 123 S.Ct. 1029 , 154 L.Ed.2d 931 (2003); Purkett v. Elem, 514 U.S. 765, 767 , 115 S.Ct. 1769 , 131 L.Ed.2d 834 (1995); Hernandez v. New York, 500 U.S. 352, 358 , 111 S.Ct. 1859 , 114 L.Ed.2d 395 (1991); Parker v. State, 365 Md. 299, 308 , 778 A.2d 1096 (2001); Whittlesey v. State, 340 Md. 30, 46-47 , 665 A.2d 223 (1995), cert. denied, 516 U.S. 1148 , 116 S.Ct. 1021 , 134 L.Ed.2d 100 (1996). The Court explained in Gilchrist, 340 Md. at 625-26 , 667 A.2d 876 (some citations omitted): ⁷¹³ First, the complaining party has the burden of making a prima facie showing that the other party has exercised its peremptory challenges on an impermissibly discriminatory basis, such as race or gender.... Second, once the trial court has determined that the party complaining about the use of peremptory challenges has established a prima facie case, the burden [of production] shifts to the party exercising the peremptory challenges to rebut the prima facie case by offering race-neutral explanations for challenging the excluded jurors. The “explanation must be neutral, related to the case to be tried, clear and reasonably specific, and legitimate.” Stanley v. State, 313 Md. 50, 78 , 542 A.2d 1267, 1280 (1988).

The reason offered need not rise to the level of a challenge for cause. “At this step of the inquiry, the issue is the facial validity of the ... explanation.” Hernandez v. New York, 500 U.S. 352, 360 , 111 S.Ct. 1859, 1866 , 114 L.Ed.2d 395, 406 (1991). It is insufficient, however, for the party making the peremptory challenges to “merely deny[ ] that he had a discriminatory motive or ... merely affirm[ ] his good faith.” Purkett v. Elem, [ 514 U.S. at 769 ,] 115 S.Ct. at 1771 . Finally, the trial court must “determine[ ] whether the opponent of the strike has carried his burden of proving purposeful discrimination.” [Id. at 768,] 115 S.Ct. at 1771 . This includes allowing the complaining party an opportunity to demonstrate that the reasons given for the peremptory challenges are pretextual or have a discriminatory impact.

It is at this stage “that the persuasiveness of the justification becomes relevant....” [Id.] “At that stage, implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination.” [Id.] As noted, the first step requires the party claiming discrimination in the jury selection process to make “a prima facie case of purposeful discrimination by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” Batson, 476 U.S. at 93-94 , 106 S.Ct. 1712 . The “[r]elevant circumstances that ‘might give rise to or support or refute’ such showing include ‘a “pattern” of ⁷¹⁴ strikes against ... jurors [of the cognizable group] in the particular venire....”’ Mejia v. State, 328 Md. 522, 533 , 616 A.2d 356 (1992) (citation omitted). The fact that the persons struck are members of a cognizable group may be sufficient for a prima facie case, depending on “how, if at all, the State responded to the proffer or assertion” that the persons struck were members of that group. Id. at 534 , 616 A.2d. 356 .

Once the party challenging the use of peremptory strikes makes the requisite prima facie showing, the burden shifts in the second step to the striking party to articulate a neutral explanation for the exercise of the strikes. Purkett, 514 U.S. at 767 , 115 S.Ct. 1769 . Although “each strike,” and the reason given for it, “must be examined in light of the circumstances under which it was exercised, including an examination of the explanations offered for other strikes,” Chew v. State, 317 Md. 233, 245 , 562 A.2d 1270 (1989), the Fourth Circuit has explained that “Batson ... does not require individualized explanations for peremptory strikes.... [A] court may ... find that the prosecutor has complied with Batson based on an overall explanation that is found satisfactory as to each of the challenged strikes.” Evans v. Smith, 220 F.3d 306, 314 (4th Cir.2000) (emphasis added). The third step “includes allowing the complaining party an opportunity to demonstrate that the reasons given for the peremptory challenges are pretextual or have a discriminatory impact.” Gilchrist, 340 Md. at 626 , 667 A.2d 876 ; see Parker, 365 Md. at 309 , 778 A.2d 1096 . “mile the complaining party [bears] the ... burden of proving unlawful discrimination,” the trial court makes the ultimate determination as to whether the stated reasons were pretexts for discrimination.

Gilchrist, 340 Md. at 626-27 , 667 A.2d 876 . Because the trial court’s assessment of a Batson claim is factually intensive, we defer to its factual determination. Id. at 627, 667 A.2d 876 . Such findings will not be overturned unless they are clearly erroneous.

Hernandez, 500 U.S. at 364-65, 369 , 111 S.Ct. 1859 , 114 L.Ed.2d 395 ; Harley v. State, 341 Md. 395, 402 , 671 A.2d 15 (1996) (per curiam); Gilchrist, ⁷¹⁵ 340 Md. at 627, 667 A.2d 876 ; Brogden v. State, 102 Md.App. 423, 433 , 649 A.2d 1196 (1994). Nevertheless, if “the relevant facts are not in dispute,” the appellate court “may exercise [its] independent constitutional judgment to determine what should be concluded from those facts.” Mejia, 328 Md. at 539 , 616 A.2d 356 ; see Stanley, 313 Md. at 71 , 542 A.2d 1267 . The State asserts that, “[e]xcept for merely stating the numbers, [appellant] articulated no other relevant facts, that in their totality, would demonstrate a discriminatory purpose by the State in exercising its peremptory strikes.” It relies on Ball v. Martin, 108 Md.App. 435, 457 , 672 A.2d 143 , cert. denied, 342 Md. 472 , 677 A.2d 565 (1996). In Ball, 108 Md.App. at 439 , 672 A.2d 143 , after defense counsel struck the only African-American venireperson, the plaintiff asserted a race-based Batson challenge.

Following a Batson hearing, the court overruled the objection. Id. at 440, 672 A.2d 143 . Then, the plaintiff stated: “I’m going to put one more thing on the record.... [A]ll of his strikes were of women.” Id. The court did not hold another Batson hearing or otherwise address the plaintiffs assertion.

Id. On appeal, the plaintiff challenged, inter alia, the court’s failure to address the gender-based challenge. Id. at 438, 672 A.2d 143 . This Court held that the plaintiff “waived any gender-based objection for failure to raise it.” Id. at 457 , 672 A.2d 143 .

Quoting from Johnson v. Nadwodny, 55 Md.App. 227, 238 , 461 A.2d 67 (1983), the Ball Court explained, 108 Md.App. at 457 , 672 A.2d 143 : “[T]he judge did not expressly deny the motion and procedurally we find that the judge was never asked to rule upon the motion.... [I]t is the responsibility of the movant to bring them to the attention of the trial judge prior to the conclusion of the trial.... [W]e ... consider that she has waived her rights to have a ruling on it.” See also Johnson v. Commonwealth, 259 Va. 654 , 529 S.E.2d 769, 780-81 (Va.) (“The fact that the prosecution has excluded African-Americans by using peremptory strikes does not itself establish ... a prima facie case under Batson . A defendant also must identify facts and circumstances that raise an infer ⁷¹⁶ ence that potential jurors were excluded based on their race.”) (citations omitted), cert. denied, 531 U.S. 981 , 121 S.Ct. 432 , 148 L.Ed.2d 439 (2000). In our view, the State’s reliance on Ball is misplaced. The defendant in Ball never responded to the plaintiffs allegation that he used his strikes against women.

Here, the State responded, acknowledging that the reason for its strikes was, indeed, gender-based; it sought to create a gender-balanced jury. Mejia, 328 Md. 522 , 616 A.2d 356 , is informative with respect to the import of undisputed facts in the context of a Batson challenge. In that case, the defendant was convicted of attempted rape and second degree assault by a jury that was empaneled after the court overruled his challenge to the State’s exercise of a peremptory strike. Id. at 525 , 616 A.2d 356 .

The defendant had alleged in his challenge that the defendant was Hispanic and the potential juror whom the State struck was the only Hispanic person in the venire. Id. at 528 , 616 A.2d 356 . The Court of Appeals “granted certiorari to consider what proof a moving party is required to produce to establish a prima facie case of purposeful discrimination against Hispanics.” Id. at 525 , 616 A.2d 356 . Noting that “neither the State nor the court expressed any disagreement with the petitioner’s proffer of the preliminary fact that a venireperson was the only Hispanic in the venire,” the Court concluded that “a prima facie showing of that fact was made.” Id. at 539 , 616 A.2d 356 .

Further, it determined that the defendant made a pnma facie case of purposeful discrimination because the State struck the only Hispanic person in the venire. Id. However, because the trial court overruled the defendant’s Batson challenge “without affording the prosecution the opportunity to provide racially neutral reasons” for its strike, the Court ordered a limited remand for the trial court to perform the proper Batson analysis. 12 Id. at 540-41, 616 A.2d 356 . ⁷¹⁷ We agree with appellant that “the first prong of Batson,” which requires a prima facie showing of an improper peremptory challenge, is not at issue. This is because, in response to appellant’s challenge, the State immediately volunteered its gender-based reason for its strikes.

That concession relieved appellant of the obligation to prove that the State’s strikes were gender-based. As the Court recognized in Edmonds v. State, 372 Md. 314, 332 , 812 A.2d 1034 (2002), once the State “offered explanations for its peremptory challenges,” the first prong of Batson was “moot” and therefore “not at issue.” See also Hernandez, 500 U.S. at 369 , 111 S.Ct. 1859 , 114 L.Ed.2d 395 (recognizing that where prosecutor defended strikes without prompting, court had no occasion to rule and “preliminary issue of ... prima facie showing [was] moot”); Gilchrist, 340 Md. at 628 , 667 A.2d 876 (same). Alternatively, we agree with appellant that he satisfied the first prong “by pointing to a pattern—eight of nine strikes used against men—sufficient to support an inference of intentional discrimination.” As to the second prong of Batson , which required the State to provide a neutral reason for its strike, unrelated to race or gender, we again agree with appellant, who argues: “[T]he State’s unambiguous admission that it exercised eight of its nine peremptory challenges because the challenged jurors were men and it preferred women to fill the remaining spaces so as to obtain a ‘balancefd] jury’ ... directly violated Batson’s second requirement because it was not gender-neutral[.]” The question, then, is whether the State’s desire to obtain a gender-balanced jury violated Batson and its progeny. We agree with appellant that the State’s objective, however well intentioned, “was no more permissible than would be the exercise of a peremptory strike against a black prospective juror in order to ensure that the jury reflected the racial make-up of the community as a whole.” See Heather K. Gerken, Second-Order Diversity, 118 Harv.

L.Rev. 1099, 1114 (2005) (stating that “Batson prohibits using peremptory chai ⁷¹⁸ lenges” to “remedy ... gender imbalances on individual juries”). In United States v. Nelson, 277 F.3d 164, 207-12 (2d Cir.), cert. denied, 537 U.S. 835 , 123 S.Ct. 145 , 154 L.Ed.2d 54 (2002), the United States Court of Appeals for the Second Circuit underscored that efforts to balance the composition of a jury nonetheless violate Batson , because such conduct requires exclusion of prospective jurors on a prohibited basis (i.e., religion or race). In Nelson , the defendant was acquitted on state criminal charges, and was later charged with federal hate crimes related to the fatal stabbing of a Jewish man. Id. at 170-72 .

The federal trial court believed that the state trial had resulted in an acquittal “ ‘because the ... jury did not represent the community,’ ” and decided that it would empanel a representative jury. Id. at 171-72 (quoting district court). Therefore, it replaced an excused African-American juror with another African-American juror, rather than the Caucasian first alternate, and it replaced another empaneled Caucasian juror with a Jewish juror, also selected out of order from the alternate list. Id. at 172 .

The court justified its action by reference to its desire for a balanced jury. Id. The Second Circuit held that the exclusion of jurors based on race or religion was an “error ... made plain by the reasoning [of] Batson,” that “could not constitutionally have been achieved at the instigation of the parties.” Id. at 207 . Of import here, it also said: “[Although the motives behind the district court’s race-and religion-based jury selection procedures were undoubtedly meant to be tolerant and inclusive rather than bigoted and exclusionary, that fact cannot justify the district court’s race-conscious actions.” Id.

As appellant points out, the Supreme Court “has signaled that use of a peremptory strike for the purpose of gender-balancing would not be constitutionally tolerable.” He cites Rice v. Collins, 546 U.S. 333 , 126 S.Ct. 969 , 163 L.Ed.2d 824 (2006), to support his assertion. There, the record seemed to suggest that “one of the prosecutor’s aims in striking [the juror] was achieving gender balance on the jury,” id. at 340 , ⁷¹⁹ 126 S.Ct. 969 and the Supreme Court observed that the trial court “correctly, disallowed any reliance on that ground.” 13 Id. at 336 , 126 S.Ct. 969 . In our view, the State’s explanation does not pass muster under Batson . The State had the burden of providing a gender-neutral explanation for its strikes.

It failed to do so. Instead, it remarked that “when [the State] started using [its] strikes,” there was “a panel of men,” and it felt the “need to balance out the jury.” By striking men to reduce the number of men on the jury, “a discriminatory intent [was] inherent in the prosecutor’s explanation,” and that explanation could not be deemed gender-neutral. Hernandez, 500 U.S. at 360 , 111 S.Ct. 1859 . “No matter how noble [the State’s] intentions, such a strategy would offend Batson.... ” United States v. Stephens, 421 F.3d 503, 524 (7th Cir.2005) (Kanne, J., dissenting). See Nelson, 277 F.3d at 207-12 (noting that “jurymandering” violates Batson).

Therefore, the court erred in denying appellant’s challenge to the empaneling of the jury. 14 ⁷²⁰ We must next determine whether to remand for a Batson hearing. Tyler, 330 Md. 261 , 623 A.2d 648 , provides guidance. In that case, the defense “challenged the composition of the jury” on the grounds of race and gender. Id. at 267 , 623 A.2d 648 .

Although the trial court refused to consider the gender grounds, the prosecutor “acknowledged his purpose,” stating: “ T was trying to get ... more men....’” Id. at 268 , 623 A.2d 648 . The trial court denied the Batson challenge, ruling that the prosecutor “has not unconstitutionally or impermissibly used his peremptory [challenges] based on race[.]” Id. The jury convicted Tyler. Id.

On appeal, Tyler alleged a violation of his equal protection rights based on the court’s denial of his Batson challenge. Id. at 263, 623 A.2d 648 . The State “conceded that ‘[t]here is no doubt that the prosecutor did strike women jurors on the basis of their gender....’” Id. at 268 , 623 A.2d 648 . The Court observed that “the trial judge flatly rejected defense counsel’s objections to the prosecutor’s peremptory challenges based on gender discrimination without requiring' the prosecutor to explain his conduct,” as required under Batson.

Id. at 270-71, 623 A.2d 648 . It declared that, “under Maryland constitutional law, the State may not use peremptory challenges to exclude potential jurors because of their gender.” Id. at 266 , 623 A.2d 648 . The Tyler Court recognized that “the prosecutor’s remarks in explaining his use of peremptory challenges with respect to race made perfectly clear that his use of peremptory challenges to exclude women from the jury were gender motivated and, therefore, contrary to Maryland constitutional law.” 15 Id. ⁷²¹ at 271, 623 A.2d 648 . The Court concluded: “In the face of what the prosecutor said at trial, he is not entitled to come forward at this time in an attempt to present a neutral explanation for challenging women jurors.

Tyler [is] entitled to a new trial without further ado.” Id. In Mejia, 328 Md. at 540-41 , 616 A.2d 356 , as we have seen, the Court ordered a limited remand because the State was not afforded an opportunity to explain the basis of its strikes. That is not the situation here. Here, the prosecutor stated that, “when we started using our strikes, we had a panel of men and felt the need to balance out the jury.” The prosecutor added: “[W]e wanted a balanced jury.” Because the State acknowledged its gender-based motives, a limited remand is neither necessary nor appropriate.

The State is not entitled to a second chance to provide a gender-neutral explanation. Rather, Elliott is “entitled to a new trial without further ado.” Tyler, 330 Md. at 271 , 623 A.2d 648 .

II

Upon retrial, the issue pertaining to the diary is likely to arise again. Therefore, we shall address it for the benefit of the parties and the court. Referring to the diary, appellant argues: “The trial court erred in refusing to dismiss the indictment based on the State’s intentional non-preservation of evidence.” We pause to review additional facts. On August 11, 2006, appellant filed a request for discovery.

He sought “discovery and inspection [of][a]ny material or information tending to negate the guilt of the Defendant as to any offense charged,” and made a “specific demand,” inter alia, for “[a]ll evidence going to the lack of credibility of any government witness.. .. ” At a hearing on December 27, ⁷²² 2006, appellant moved to compel the production of the diary-recovered at the scene. The court denied the motion, because the diary no longer “exist[ed],” in that it had “been thrown away” by the victim. Thereafter, appellant moved for sanctions on February 28, 2007, alleging: The