Mills v. State

Battaglia, J. A jury sitting in the Circuit Court for Baltimore City convicted Daniel T. Mills, appellant, of possession of cocaine with intent to distribute as well as simple possession of that drug. The circuit court thereafter sentenced Mills to twelve years' imprisonment, with all but four years suspended, to be followed by three years' probation. Mills then noted this appeal, raising the following issues: I. Whether the trial court erred in holding that the defendant failed to make a prima facie showing of discrimination under Batson v. Kentucky , 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986), based solely on the court's finding that the racial makeup of the seated jury resembled the racial makeup of the jury pool; II. Whether the State failed to present sufficient evidence that the defendant possessed cocaine when there was no evidence that the defendant could see the cocaine in the vehicle in which he was a passenger; and III.

Whether the prosecutor's improper and repeated suggestions in closing argument that the defendant was right-handed, a fact not in evidence, require a new trial. We hold that the trial court erred in aborting Mills's Batson challenge at step one of the inquiry. We further hold that the evidence was sufficient to sustain the convictions and that the claim concerning the prosecutor's comments was not preserved but that, in any event, those comments were not improper. Finally, for reasons we shall explain henceforth, we hold that the appropriate remedy for the court's Batson error is a limited remand for a hearing on Mills's Batson challenge, to determine whether he is entitled to a new trial.

BACKGROUND In the early morning hours of March 21, 2016, Detective Melvin Jones of the Baltimore City Police Department was on "routine patrol" in a marked police cruiser when he observed a blue Chevrolet Cruze traveling westbound on Pulaski Highway near Highland Street in Baltimore City. As the Chevrolet approached a red light and came to a stop, Detective Jones pulled up behind it and, using an onboard electronic database, ran a "random tag check." In doing so, he noticed that its owner, David Fitzgerald, had a suspended driver's license. After pulling alongside the Chevrolet and confirming that Fitzgerald was, in fact, driving, Detective Jones initiated a traffic stop, notifying his dispatcher as he did so. There was one other occupant of that vehicle-Mills, who was sitting in the front passenger seat.

Detective Jones approached the Chevrolet and "made contact with" Fitzgerald. While he was speaking with Fitzgerald, Officers Derek Bowman and Jacob Reed, having heard about the traffic stop from the dispatcher, arrived at the scene, having driven separately in marked police vehicles. As a precaution, Officer Reed parked directly in front of Fitzgerald's Chevrolet to prevent it from moving, while Officer Bowman pulled in behind Detective Jones's vehicle. Officer Reed then approached the passenger side of Fitzgerald's car and began speaking with Mills, asking him "where they were both coming from and where they were going," but Mills sat silently, ignoring the officer's questions and avoiding eye contact.

Meanwhile, an "intoxicated male" bystander "started walking up to" Fitzgerald's vehicle and "yelling something like he knew the individual in the car." Officer Bowman "told him several times" that he needed to "stand to the side." Eventually he heeded that advice and left the scene. Officer Reed, who had been questioning Mills, then asked him to step out of the vehicle and "stand towards the back," where Officer Bowman was then located. After Mills complied with that request, Officer Reed "knelt over and looked under the [front passenger] seat." When he did so, he saw a Glock 9 mm semiautomatic handgun "under the seat." The officer "backed away from" the car and several times said "1030," a code indicating that he intended to arrest Mills. Neither Officer Bowman nor Detective Jones heard that warning, however.

Then, looking at Detective Jones, Officer Reed said, "Gun." Upon hearing the latter exclamation, Mills "took off running northbound on Highland Avenue." Detective Jones and Officer Bowman gave chase, while Officer Reed remained with Fitzgerald's car. The pursuing police officers were joined in the chase by Sergeant Frederick Steigerwald, who was stationed nearby and who had heard about the foot chase over the police radio. Sergeant Steigerwald ultimately found Mills hiding underneath a parked truck, four blocks from the scene of the traffic stop. A search incident to Mills's arrest yielded a "bundle" of cash in his right front pocket, totaling $1,676, as well as two cell phones.

When Fitzgerald's car was searched, Officer Reed recovered, in an open storage compartment in the passenger side door, "a clear plastic bag" containing what was later confirmed to be crack cocaine, lying next to a pair of socks, as well as the aforementioned handgun. A thirteen-count indictment was returned, charging Mills with possession of, and conspiracy to possess, a firearm under sufficient circumstances to constitute a nexus to drug trafficking; three counts of possession of a regulated firearm after conviction of a disqualifying crime; wearing, carrying, and transporting a handgun in a vehicle, and conspiracy to do the same; wearing, carrying, and transporting a handgun on and about the person; possession of ammunition after conviction of a disqualifying crime; possession of, and conspiracy to possess, cocaine with intent to distribute; and possession of, and conspiracy to possess, cocaine. The case proceeded to a jury trial, which began with a Batson challenge that will be discussed more fully. Following various dismissals and grants of motions for judgment of acquittal, five charges were presented to the jury: possession of cocaine with intent to distribute; possession of cocaine; possession of a firearm under sufficient circumstances to constitute a nexus to drug trafficking; possession of a regulated firearm after conviction of a disqualifying crime; and possession of ammunition after conviction of a disqualifying crime.

The jury convicted Mills of both drug offenses and acquitted him of all firearms-related offenses. The court sentenced Mills to a term of twelve years' imprisonment, with all but four years suspended, to be followed by three years' probation, for possession of cocaine with intent to distribute and merged the simple possession count. Mills thereafter noted this timely appeal. ANALYSIS Mills's Batson Challenge Mills contends that the trial court erred in concluding that he did not establish a prima facie case, under Batson , 1 that the State had exercised its peremptory challenges in a racially discriminatory manner.

He further contends that the remedy for that error is a new trial. The State counters that the trial court "properly, if perhaps inartfully, determined that Mills did not establish a prima facie case of 'purposeful' discrimination." In the alternative, the State asks that, if we were to agree with Mills that the trial court erred in determining that Mills did not establish a prima facie case, we order a limited remand so that the court may consider Mills's Batson challenge. In Batson , the Supreme Court held that the prosecution's exercise of peremptory challenges in a racially discriminatory manner violates the Equal Protection Clause of the Fourteenth Amendment. Batson , 476 U.S. 79 , 89, 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986).

Batson and its progeny 2 established a three-step process for resolving a claim of purposeful discrimination in the exercise of peremptory strikes. Initially, the defendant must "make out a prima facie case 'by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.' " Johnson v. California , 545 U.S. 162 , 168, 125 S.Ct. 2410 , 162 L.Ed.2d 129 (2005) (quoting Batson , 476 U.S. at 93 -94 , 106 S.Ct. 1712 ). Then, "[o]nce the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors." Batson , 476 U.S. at 97 , 106 S.Ct. 1712 . Finally, "in light of the parties' submissions, the trial court must determine whether the defendant has shown purposeful discrimination." Snyder v. Louisiana , 552 U.S. 472 , 477, 128 S.Ct. 1203 , 170 L.Ed.2d 175 (2008) (citations and quotations omitted).

At step one, Mills's burden was to "produce some evidence" that the State's peremptory challenges were exercised "on one or more of the constitutionally prohibited bases," in this instance, race. Ray-Simmons v. State , 446 Md. 429 , 436, 132 A.3d 275 (2016) (citing Purkett v. Elem , 514 U.S. 765 , 767, 115 S.Ct. 1769 , 131 L.Ed.2d 834 (1995) (per curiam) ). A "defendant satisfies the requirements of Batson 's first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred." Johnson , 545 U.S. at 170 , 125 S.Ct. 2410 . In the instant case, as jury selection proceeded, the State, in a harbinger of what would later become an issue in this appeal, raised a Batson challenge against the defense, apparently alleging that all of Mills's peremptory strikes had, thus far, been exercised against Caucasians (or, in any event, against all but African-Americans). 3 The following colloquy took place: [THE STATE]: Your Honor, at this time -- (The defendant approached the bench.) [THE STATE]: -- the State is respectfully challenging based on Batson?

THE COURT: Well, I've got to tell you I'm not exactly sure what the race of the -- the gentleman [Juror 2181] who sat down was. [DEFENSE COUNSEL]: And I struck him because he was late. THE COURT: Huh? [DEFENSE COUNSEL]: I couldn't read his number. I don't -- THE COURT: Okay. But I don't know what his -- his race is? [DEFENSE COUNSEL]: I understand.

I'm just telling you why. THE COURT: But I have to make the analysis. You're -- I'm not calling upon you to make the analysis. [DEFENSE COUNSEL]: I understand. THE COURT: All right.

So the record is complete, I was the initial scan indicated that the males constituted 37 percent, which means we ought to have about 4.5 men in the jury, and that the whites accounted for 27 percent, which means that we should have about 3.3 whites on the jury if they just -- the normal shuffle just filled up the jury box. So under those circumstances, considering the fact that at this moment, we have one, two, three, -- three white women and one, two men in the jury box, I don't believe that the statistical scan establishes a prima facie case, so the motion is denied. (Emphasis added.) Notably, the court did not appear to consider the question of discriminatory intent at the level of the individual venirepersons stricken, but instead, as shown by a statistical model that compared the racial and gender composition of the empaneled jury with that of the venire. In any event, after the court denied the State's Batson challenge on that basis, jury selection resumed.

Shortly thereafter, the parties commenced making additional strikes from the box. The State struck Juror 2132, a married, 61-year-old African-American female whose highest attained education level was indicated, "HS OR GED - NA" and whose occupation (as well as that of her spouse) was likewise indicated, "NA." In total (including Juror 2132), the State had made four peremptory strikes against African-American venirepersons. The others stricken by the State included Juror 2119, a single, 64-year-old male with a high school education; Juror 2155, a single, 60-year-old female with a high school education; and Juror 2164, a single, 39-year-old female with a high school education. At that point, the defense raised its own Batson challenge.

In response, the State acknowledged, "I'll concede based on the pattern." The following colloquy then took place: THE COURT: Okay. But the pattern is still consistent. And -- [DEFENSE COUNSEL]: The pattern of strikes is all African/Americans. THE COURT: But the strikes left us with one, two, three, four whites, though I was expecting 3.3.

And as far as males, one, two, three, four, five, when I was expecting 4.5. Nothing the State has done has changed the -- the basic appearance of the way the jury would have looked had we just thrushed the crowd and said "Everyone run up and take a seat." So I'm going to deny the motion, as a prima facie case has not been established yet. [DEFENSE COUNSEL]: Judge, can I just briefly be heard, that I -- I don't think that necessarily the panel jury is the standard. It's whether the State is striking individual jurors because of their race. THE COURT: No. You see, if -- if 75 percent of the people who came in were black females, I would expect that 75 percent of the people who were stricken would be black females.

That's why I do a statistical analysis on how I'm expecting the jury to look and see whether or not actions taken by the parties is taking that out of balance. That I believe is part of what I'm required to do for the initial prima facie showing. It's not just a question of how many strikes you used against a particular group. No matter how that would seem, it depends on how things are.

Because, let's face it, most of the people who came into the room when we called for and ended up getting 57 people, most of the people were black females. (Emphasis added.) With that, the court denied Mills's Batson challenge. 4 The circuit court clearly erred in applying its statistical test for determining whether Mills had set out a prima facie case of racial discrimination by the State in its exercise of peremptory strikes. The Supreme Court has expressly rejected a statistical test at the first step of the Batson analysis, observing that the "Constitution forbids striking even a single prospective juror for a discriminatory purpose"[.]" Snyder v. Louisiana , supra , 552 U.S. at 478 , 128 S.Ct. 1203 (quoting United States v. Vasquez-Lopez , 22 F.3d 900 , 902 (9th Cir. 1994) ). 5 Moreover, had the circuit court applied the proper test-whether the opponent of the strikes had shown "that the totality of the relevant facts gives rise to an inference of discriminatory purpose," Batson , 476 U.S. at 94 , 106 S.Ct. 1712 -it would have been compelled to conclude that Mills had satisfied his initial burden. For example, in Johnson v. California , supra , 545 U.S. 162 , 125 S.Ct. 2410 , the Supreme Court held that, where all three African-American venirepersons had been peremptorily stricken by the prosecution, the inference of discriminatory intent was "sufficient to establish a prima facie case under Batson ." Id. at 173 , 125 S.Ct. 2410 .

In Ray-Simmons v. State , supra , 446 Md. 429 , 132 A.3d 275 , the Court of Appeals concluded that where, at the time the defendants had raised their Batson challenge, "the State had exercised five peremptory challenges, all of which were to remove African American men," the "evidence sufficed to establish a prima facie case of race and gender discrimination." Id. at 443 , 132 A.3d 275 (citations omitted). In Tolbert v. State , 315 Md. 13 , 553 A.2d 228 (1989), the Court of Appeals held that, where the State had exercised its "first four peremptory challenges to strike black individuals," the trial court was entitled to conclude that the defendant had established a prima facie case. Id. at 18 , 553 A.2d 228 . And in Stanley v. State , 313 Md. 50 , 542 A.2d 1267 (1988), where the State had exercised eight of its ten peremptory strikes against African-Americans, the Court of Appeals concluded that "there was enough evidence presented to establish a prima facie case of discrimination against black jurors." Id. at 72-73 , 542 A.2d 1267 .

Given this line of authority, we hold that, where the State had exercised four peremptory strikes, all against African-Americans, and where it had apparently conceded as much below ("I'll concede based on the pattern."), the circuit court clearly erred in ruling that Mills had not established a prima facie case of discriminatory intent. We next consider the appropriate remedy for the circuit court's error. In Ray-Simmons v. State , 446 Md. 429 , 132 A.3d 275 , the Court of Appeals set forth the usual rule: [U]nless it is impossible to reconstruct the circumstances surrounding the peremptory challenges, due perhaps to the passage of time or the unavailability of the trial judge, the proper remedy where the trial court does not satisfy Batson 's requirements is a new Batson hearing in which the trial court must satisfy the three-step process mandated by that case and its progeny. Id. at 447 , 132 A.3d 275 (quoting Edmonds v. State , 372 Md. 314 , 339-40, 812 A.2d 1034 (2002) ).

The Court went on to explain that a "limited remand may be appropriate, for example, where the State was not given an opportunity at trial to explain its reasons for exercising the contested peremptory challenges." Id. (citing Mejia v. State , 328 Md. 522 , 540, 616 A.2d 356 (1992), and Stanley v. State , 313 Md. 50 , 75-76, 542 A.2d 1267 (1988) ). That is precisely what occurred here. We acknowledge that, under some circumstances, a limited remand is not the appropriate remedy for a Batson error.

For instance, the Ray-Simmons Court ordered a new trial because it was "persuaded that it would be impossible to reconstruct a jury that tried and convicted Petitioners almost four years ago." Id. See Chew v. State , 317 Md. 233 , 239, 562 A.2d 1270 (1989) (observing that a new trial is the appropriate remedy for a Batson violation when "the passage of time precludes fair consideration of the relevant issues"); see also Tyler v. State , 330 Md. 261 , 271, 623 A.2d 648 (1993) (remanding for new trial where the State had admitted that its peremptory strikes had been exercised for a discriminatory purpose). In the instant case, however, we are not persuaded that it would be "impossible to reconstruct the circumstances surrounding" the aborted Batson hearing, Ray-Simmons , 446 Md. at 447 , 132 A.3d 275 , given the existence of the juror lists and the relatively brief time that has elapsed since trial in this case. Chew , 317 Md. at 239 , 562 A.2d 1270 (holding that, despite "certain difficulties" that "are inherent in attempting to reconstruct events that occurred a year or more earlier, but where a reasonable possibility exists that reconstruction can be fairly accomplished, the attempt is worth the effort," and a limited remand is "appropriate").

Moreover, the trial court's error denied the State "an opportunity at trial to explain its reasons for exercising the contested peremptory challenges." Ray-Simmons , 446 Md. at 447 , 132 A.3d 275 ; see Mejia , 328 Md. at 540 , 616 A.2d 356 (holding that, where "[l]ess than two years" had elapsed since jury selection had begun, there had not been "a sufficient lapse of time to justify a grant of a new trial without affording the prosecution the opportunity to provide racially neutral reasons for its exercise of the subject peremptory challenge"); accord Stanley , 313 Md. at 75 -76 , 542 A.2d 1267 . For these reasons, we shall order a limited remand for "a new Batson hearing in which the trial court must satisfy the three-step process mandated by that case and its progeny." Ray-Simmons , 446 Md. at 447 , 132 A.3d 275 . See Md. Rule 8-604(d)(1) (permitting a limited remand if an appellate court "concludes that the substantial merits of a case will not be determined by affirming, reversing or modifying the judgment, or that justice will be served by permitting further proceedings"). The procedure to be followed is that outlined in Edmonds , supra , 372 Md. 314 , 812 A.2d 1034 -the circuit court must allow the prosecution an opportunity to set forth