Whittlesey v. State

BELL, J., concurring in part and dissenting in part. BELL, Judge, concurring and dissenting. The majority vacates the death penalty sentence imposed upon Michael Whittlesey, the petitioner, and orders a new sentencing hearing, holding that the trial court erred in excluding, as hearsay, certain mitigating evidence offered by the petitioner during the sentencing proceeding. It rejected each and every one of the petitioner’s other challenges it considered.

While I agree that the ruling was error and, thus, the petitioner is entitled to a new sentencing hearing on that account, I also find merit in several of the other challenges, among them the double jeopardy argument and the Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986) contention. Because resolution of the double jeopardy issue implicates the propriety of the capital proceedings themselves and the Batson challenge implicates the integrity of the petitioner’s conviction, even if the capital proceedings were appropriate, which I do not believe to be so, I would, nevertheless, reverse the petitioner’s convictions. I. This is the second time this case has reached this Court. In the first case, Whittlesey v. State, 326 Md. 502 , 606 A.2d 225 (1992) (Whittlesey I), the issue was “whether the Double Jeopardy Clause of the Fifth Amendment to the Constitution of the United States prohibits the prosecution of Michael Whittlesey for the murder of James Rowan Griffin, known as Jamie.” Id. at 504 , 606 A.2d at 226 (footnote omitted).

This Court held that it did not. To reach that conclusion, the majority formulated a “reasonable prosecutor” test, under which a subsequent indictment on a second offense, otherwise barred by the Double Jeopardy Clause of the Fifth Amendment, is not barred if, at the time of prosecution for the ⁸⁹ earlier offense a reasonable prosecutor, having full knowledge of the facts which were known and in the exercise of due diligence should have been known to the police and prosecutor at that time, would not be satisfied that he or she would be able to establish the suspect’s guilt beyond a reasonable doubt. Id. at 525 , 606 A.2d at 236 . The majority did not separately consider the propriety of the State’s trying the petitioner on a premeditated murder theory.

Instead, it adopted the assumption that the prosecution of premeditated murder, although not barred under Blockburger [v. United States, 284 U.S. 299, 304 , 52 S.Ct. 180, 182 , 76 L.Ed. 306, 309 (1932) ], is barred under [Grady v.] Corbin [ 495 U.S. 508, 510 , 110 S.Ct. 2084, 2087 , 109 L.Ed.2d 548, 557 (1990) ]. Whittlesey I, 326 Md. at 526 , 606 A.2d at 237 . In a concurring and dissenting opinion, Judge Eldridge specifically opined that a prosecution premised on the murder being premeditated was not barred by double jeopardy. He reasoned that robbery and premeditated murder are not the same offense under the Blockburger test: “It is equally well-established, however, that a felony such as robbery, rape, or kidnapping, and a wilful, deliberate and premeditated murder (or any species of murder other than felony murder), both arising out of the same transaction, are not deemed the same offense for double jeopardy purposes.” Whittlesey I, 326 Md. at 537 , 606 A.2d at 242 (Eldridge, J., concurring and dissenting), citing, among others, State v. Frye, 283 Md. 709, 716 , 393 A.2d 1372, 1376 (1978), Newton v. State, 280 Md. 260, 269 , 373 A.2d 262, 267 (1977).

Judge Eldridge did not share the majority’s view with respect to felony murder, however. That offense, he believed, was the same offense as the underlying felony. Whittlesey I, 326 Md. at 537 , 606 A.2d at 242 . Therefore, he concluded, in the case before the Court, the prior conviction for robbery precluded a subsequent prosecution for felony murder.

Id. at 542 , 606 A.2d at 244-45 . He also rejected the majority’s reasonable prosecutor test as an appropriate interpretation or extension of the double jeopardy exception recognized in Diaz v. United States, 223 U.S. 442 , 32 ⁹⁰ S.Ct. 250 , 56 L.Ed. 500 (1912). 1 Whittlesey I, 326 Md. at 548 , 606 A.2d at 248 . He pointed out that “[t]he Diaz rationale is that the subsequent prosecution for the greater offense is not barred when a necessary element of the greater offense had not occurred at the time of the earlier prosecution.” Id. at 543 , 606 A.2d at 245 (Eldridge, J., concurring and dissenting). In a dissenting opinion, joined by Judge Chasanow, I, like Judge Eldridge, took the position that felony murder was the same offense as the underlying felony.

Thus, where the underlying felony has been charged and tried, under the Blockburger test, a later prosecution for the greater offense is barred. Id. at 551 , 606 A.2d at 249 (Bell, J., dissenting). I, too, decried as unwarranted, the majority’s expansion of the Diaz exception to cover the situation in which a “reasonable prosecutor” elects to delay prosecution for a greater offense because the “reasonable prosecutor” does not believe that he or she will be able to obtain a conviction. Id. at 564-66 , 606 A.2d at 256-57 .

The Diaz exception, I believed, applied in the narrow situation in which the greater offense could not have been prosecuted prior to the prosecution of the lesser offense because the facts either did not exist or had not been completed or discovered at that time, despite the exercise of due diligence. Id. at 564 , 606 A.2d at 256 . It was clear from my dissenting opinion that I believed that the Diaz exception was not intended to permit the prosecutor to enhance the strength of his or her case; rather, it was intended to ensure that the State had at least one opportunity to prosecute the case. I continue to adhere to those views.

In my dissenting opinion, I neither indulged the majority’s assumption concerning the Grady exception to the Bloekburger test, 2 nor adopted Judge Eldridge’s conclusion that pre ⁹¹ meditated murder did not fall within the Blockburger test. The majority, however, has now concluded, as Judge Eldridge previously had done, see 340 Md. at 75 & n. 14, 665 A.2d at 245 & n. 14 (1995) that a premeditated murder prosecution is not barred by the prior robbery conviction. Thus, the time has come for me to assess whether the majority’s assumption based on the Grady exception to the Blockburger test is sound or whether Judge Eldridge’s analysis is correct. I conclude that the Whittlesey I majority’s assumption was well-founded, although not for the reason it gave.

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides that no person “shall ... be subject for the same offence to be twice put in jeopardy of life or limb.” Federal double jeopardy principles, therefore, are binding in Maryland when determining whether a defendant has been twice placed in jéopardy, Benton v. Maryland, 395 U.S. 784, 794 , 89 S.Ct. 2056, 2062 , 23 L.Ed.2d 707, 716 (1969); State v. Griffiths, 338 Md. 485, 489 , 659 A.2d 876, 878 (1995); Newton v. State, 280 Md. 260, 263 , 373 A.2d 262, 264 (1977); Thomas v. State, 277 Md. 257 , 267 n. 5, 353 A.2d 240 , 246 n. 5 (1976); Jourdan v. State, 275 Md. 495, 506 , 341 A.2d 388, 395 (1975); and see Middleton v. State, 318 Md. 749, 756-57 , 569 A.2d 1276, 1279 (1990), which makes clear that the Maryland common law of double jeopardy provides similar protection. In addition, the Double Jeopardy Clause proscribes both successive prosecution and multiple punishment for the same offense. Department of Revenue of Montana v. Kurth Ranch, — U.S.-,-n. 1, 114 S.Ct. 1937 , 1941 n. 1, 128 L.Ed.2d 767 , 773 n. 1 (1994); United States v. Halper, 490 U.S. 435, 440 , 109 S.Ct. 1892, 1897 , 104 L.Ed.2d 487, 496 ⁹² (1989); United States v. Wilson, 420 U.S. 332, 342-13 , 95 S.Ct. 1013, 1021 , 43 L.Ed.2d 232, 241 (1975); North Carolina v. Pearce, 395 U.S. 711, 717 , 89 S.Ct. 2072, 2076 , 23 L.Ed.2d 656, 664-65 (1969). It is the former prohibition, rather than the latter, which is at issue in this case.

The petitioner was charged in 1982 and convicted in 1984 of the robbery of James Rowan Griffin, the victim. When the victim’s body was discovered in 1990, 3 the petitioner was indicted for premeditated murder. To avoid trial on that charge, the petitioner filed a motion to dismiss the indictment on the grounds of double jeopardy. Thus, the petitioner’s then immediate concern was the avoidance of a successive prosecution.

When confronting the issue of whether the subsequent trial is a successive trial for the same offense, the question to be resolved is whether the offense for which the defendant previously has been tried and convicted and the offense for which it is proposed that he or she subsequently be tried would merge upon conviction, i.e., whether they are deemed the same offense under double jeopardy principles. Newton, 280 Md. at 265 , 373 A.2d at 265 . See also Bynum v. State, 277 Md. 703, 707-08 , 357 A.2d 339, 341-42 , cert. denied, 429 U.S. 899 , 97 S.Ct. 264 , 50 L.Ed.2d 183 (1976). It is well settled in this State, indeed, it was even conceded by the majority in Whittlesey I, 326 Md. at 526 , 606 A.2d at 236-37 , that felony murder and the underlying felony must be deemed the same offense for double jeopardy purposes.

See Newton, 280 Md. at 268 , 373 A.2d at 266 . The rationale underlying that conclusion was discussed in Newton, supra. Addressing the required evidence test, the Court explained: [Ujnder both federal double jeopardy principles and Maryland merger law, the test for determining the identity of ⁹³ offenses is the required evidence test. If each offense requires proof of a fact which the other does not, the offenses are not the same and do not merge.

However, if only one offense requires proof of a fact which the other does not, the offenses are deemed the same, and separate sentences for each offense are prohibited. Id. at 268 , 373 A.2d at 266 . See Blockburger v. United States, 284 U.S. 299, 304 , 52 S.Ct. 180, 182 , 76 L.Ed. 306, 309 (1932). Applying that test, the Court stated: Therefore, to secure a conviction for first degree murder under the felony murder doctrine, the State is required to prove the underlying felony and the death occurring in the perpetration of the felony.

The felony is an essential ingredient of the murder conviction. The only additional fact necessary to secure the first degree murder conviction, which is not necessary to secure a conviction for the underlying felony, is proof of the death. The evidence required to secure a first degree murder conviction is, absent the proof of death, the same evidence required to establish the underlying felony. Therefore, as only one offense requires proof of a fact which the other does not, under the required evidence test the underlying felony and the murder merge.

Newton, 280 Md. at 269 , 373 A.2d at 267 . Having been previously convicted of robbery, one of the enumerated felonies in Maryland Code (1957, 1992 Repl.Vol.), Art. 27, § 410, 4 the petitioner subsequently could not have been charged with first degree murder under a felony murder theory. Whether he is nevertheless chargeable with first ⁹⁴ degree murder under a premeditated murder theory is a matter which must be resolved by reference to the nature of the crime of murder. Murder is a single offense.

Ross v. State, 308 Md. 337, 346 , 519 A.2d 735, 739 (1987). See Art. 27, §§ 407-411 (1957, 1992 Repl.Vol.); Hook v. State, 315 Md. 25, 27-28 , 553 A.2d 233, 234-35 (1989); Huffington v. State, 302 Md. 184, 188 , 486 A.2d 200, 202 (1985), cert. denied, 478 U.S. 1023 , 106 S.Ct. 3315 , 92 L.Ed.2d 745 (1986); Gladden v. State, 273 Md. 383, 389-90 , 330 A.2d 176,180 (1974); Stansbury v. State, 218 Md. 255, 260 , 146 A.2d 17, 20 (1958). In Hook , we pointed out: Homicide is the killing of a human being by a human being. It is culpable when it is felonious.

It is felonious when it is not legally justifiable or excusable. Felonious homicide is either murder or manslaughter. Murder is in the first degree or in the second degree. In Maryland, all murder perpetrated by means of poison, or lying in wait, or by any kind of wilful, deliberate and premeditated killing or committed in the perpetration of, or attempt to perpetrate certain felonies (of which robbery is one) is murder in the first degree.

All other kinds of murder are murder in the second degree. 315 Md. at 27-28 , 553 A.2d at 234-35 . Article 27, §§ 407-410 provide for and define the types of murder that comprise murder in the first degree. Section 407, for example, provides inter alia, that “[a]ll murder which shall be perpetrated ... by any kind of wilful, deliberate and premeditated killing shall be murder in the first degree.” Similarly, § 410 provides that murder committed in the perpetration of [certain enumerated felonies] is murder in the first degree. Section 411, on the other hand, provides that all murder not provided for in §§ 407-410 is murder in the second degree.

In Whittlesey I, the majority pointed out that the aforementioned statutes do not create new crimes; they only divide the common law crime of murder into degrees for the purpose of punishment, 326 Md. at 520 , 606 A.2d at 234 (citing Bruce v. State, 317 Md. 642, 645 , 566 A.2d 103, 104 (1989)). Converse ⁹⁵ ly, murder and manslaughter, are not degrees of felonious homicide; they are distinct offenses, distinguished by the presence of malice aforethought in murder and the absence of malice aforethought in manslaughter. State v. Ward, 284 Md. 189, 195 , 396 A.2d 1041, 1045 (1978). An indictment for first degree murder need not specifically allege the theory under which the State is proceeding. 5 Ross, 308 Md. at 344 , 519 A.2d at 738 .

It is sufficient if the indictment charges murder in the first degree. Id. See also Art. 27 § 616; 6 State v. Williamson, 282 Md. 100, 107-08 , 382 A.2d 588, 592-93 (1978), appeal after remand, 284 Md. 212 , 395 A.2d 496 (1979). Moreover, such an apprisal comports with due process requirements.

Ross, 308 Md. at 345 , 519 A.2d at 739 . Indeed, it has been held that under a murder indictment, four verdicts can be returned: guilty of murder in the first degree; guilty of murder in the second degree; guilty of manslaughter; not guilty. Brown v. State, 44 Md.App. 71 , 78 & n. 5, 410 A.2d 17 , 22 & n. 5 (1979). See also Whittlesey I, 326 Md. at 520 , 606 A.2d at 234 .

In Ross, supra, 308 Md. at 346 , 519 A.2d at 739 , we stated that the State ordinarily must proceed on all available theories in a single prosecution for murder and may not bring seriatim prosecutions for the same offense by alleging separate legal theories. See Huffington, supra, 302 Md. at 189 n. 4, 486 A.2d at 203 n. 4 (“In Maryland the homicide of one person ordinarily gives rise to a single homicide offense, and multiple prosecutions or punishments ⁹⁶ for different homicide offenses, based on the slaying of one person, are generally precluded.”). I repeat, there is only one crime of murder, which, of course, encompasses first degree murder. To be sure, that offense may be proven in several different ways, 7 but they are simply theories of proof; each theory is not itself a separate offense.

Consequently, whatever theory the State might have proceeded on, if successful, the defendant will have been convicted of first degree murder. That defendant may not thereafter be tried for, and convicted of, first degree murder again, even under a different theory. See Ross, 308 Md. at 346 , 519 A.2d at 739 . Because felony murder is the same offense as the underlying felony, and because, in this case, the underlying felony is robbery, it is clear that when he was tried for robbery, the petitioner was placed in jeopardy not only for the robbery, but for felony murder as well.

He was, in other words, placed in jeopardy for first degree murder on a felony murder theory. The State is, therefore, prohibited by the Double Jeopardy Clause of the Fifth Amendment from once again placing him in jeopardy, even using another first degree murder theory. When there is but one prosecution and trial, the State may proceed on both the felony murder theory and the premeditat ⁹⁷ ed murder theory. Frye, 283 Md. at 717 , 393 A.2d at 1376 .

If the jury finds the murder to have been premeditated as well as committed during the course of a felony, separate punishment may be imposed for both murder in the first degree, under the premeditated murder theory, and the underlying felony. See id. at 716 , 393 A.2d at 1376 ; Newton, 280 Md. at 269 , 373 A.2d at 267 . This principle governs because the interest to be vindicated is successive punishment, not successive prosecution. So long as the theory under which the prosecution proceeds and on which it is successful provides a basis for distinguishing the felony and the murder, separate punishments are permissible.

It is only when the underlying felony necessarily is the basis for the murder conviction that successive punishments are unwarranted. Id. at 269 , 373 A.2d at 267 . A different consideration obtains, however, when the issue is successive prosecutions. Simply put, if the act or acts the State seeks to prosecute the defendant for in a successive trial fall within the ambit of that which has been excluded based on the outcome of a prior trial—there can be no subsequent trial.

Indeed, the double jeopardy safeguards against successive prosecutions provide a bulwark against such prosecutorial overreaching. Consequently, the State cannot force a defendant “to defend against the same charge again and again ... in which the [State] may perfect its presentation with dress rehearsal after dress rehearsal.... ” United States v. Dixon, — U.S.-,-, 113 S.Ct. 2849, 2884 , 125 L.Ed.2d 556, 602 (1993) (Souter, J., and Stevens, J., concurring in the judgment and dissenting in part). Thus, as a matter of both law and of pure logic, when there has been a prior conviction for an underlying felony, there necessarily has been a prior prosecution for first degree murder. While the prosecution may desire to proceed later on a different murder theory, it is precluded from doing so.

The cases upon which Judge Eldridge relied for the proposition that a subsequent prosecution for first degree murder on the basis of premeditated murder may be brought notwith ⁹⁸ standing the prior felony conviction are inapposite. In each of those cases there was a single prosecution and the issue to be resolved was whether successive punishment was being imposed for the same offense. There was no issue concerning successive trials for the same offense. Newton, 280 Md. at 265 , 373 A.2d at 265 (“[i]n the instant case, there has been but one prosecution and trial for the felony murder and the underlying felony so that no issue concerning successive trials for the same offense is presented”); Robinson v. State, 249 Md. 200 , 238 A.2d 875 , cert. denied, 393 U.S. 928 , 89 S.Ct. 259 , 21 L.Ed.2d 265 (1968) (single prosecution); Swafford v. State, 498 N.E.2d 1188 (Ind.1986) (same); Commonwealth v. Harper, 346 Pa.Super. 105 , 499 A.2d 331, 337 (1985), appeal denied, 515 Pa. 599 , 528 A.2d 955 (1987) (same); State v. Adams, 418 N.W.2d 618 (S.D.1988) (same); Simpson v. Commonwealth, 221 Va. 109 , 267 S.E.2d 134 (1980) (same); Williams v. Smith, 888 F.2d 28 (5th Cir.1989) (same).

Moreover, in Simpson the court pointed out the significance of the indictment, as I have done, and the fact that it need not specify the theory upon which the State is proceeding. 8 Id. 267 S.E.2d at 138-39 . 9 ⁹⁹ Although United States v. Dixon, which sounded the death knell of Grady v. Corbin 10 and which was decided after Whittlesey I, is a successive prosecution case, it is distinguishable from the instant case. Whereas in this case, applying the required evidence test, the defendant clearly had been previously placed in jeopardy for first degree murder, via the robbery prosecution, therefore precluding the State from seeking another murder prosecution, the critical question to be resolved in Dixon was whether the defendants, 11 in fact, previously had been prosecuted for the offenses for which they were subsequently indicted. Specifically, the double jeopardy issue in Dixon was “whether prosecution for criminal contempt based on violation of a criminal law incorporated into a court order bars a subsequent prosecution for the criminal offense.” — U.S. at-, 113 S.Ct. at 2855 , 125 L.Ed.2d at 567 . Indeed, Justice Scalia, writing for the Court, noted that this issue represented a recent development in American case law.

Id. Because he previously had been placed in jeopardy for first degree murder, via his robbery prosecution and conviction, and the extension of the Diaz exception was unwarranted, see Whittlesey I, 326 Md. at 555-56 , 606 A.2d at 251-52 (Bell, J., dissenting), the petitioner should never have been tried for ¹⁰⁰ first degree murder on any theory. Accordingly, I would reverse the judgment, and dismiss the charges, with prejudice.

II

I agree with the petitioner that the trial court erred in permitting the State to exercise a peremptory challenge to strike a black woman from the venire because of her race. See Batson, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986). Contrary to the State’s and the majority’s position, it is at best unclear whether the trial court ruled that the petitioner failed to establish, as Batson requires, a prima facie case of purposeful and racially discriminatory use of challenges by the State, although it is perfectly clear that it did not effectively do so. A. The Supreme Court, in Batson , departed from the standard articulated in Swain v. Alabama, 380 U.S. 202 , 85 S.Ct. 824 , 13 L.Ed.2d 759 (1965), and held: [A] defendant may establish a prima facie case of purposeful discrimination in [the] selection of the petit jury [based] solely on evidence concerning the prosecutor’s exercise of peremptory challenges at the defendant’s trial.

Batson, 476 U.S. at 96 , 106 S.Ct. at 1723 , 90 L.Ed.2d at 87 . To establish such a case, the defendant must show that the prosecutor exercised peremptory challenges to remove from the venire members of a cognizable racial or ethnic group, whether or not the defendant is a member of that racial or ethnic group. See Gorman v. State, 499 U.S. 971 , 111 S.Ct. 1613 , 113 L.Ed.2d 712 (1991); Powers v. Ohio, 499 U.S. 400 , 111 S.Ct. 1364 , 113 L.Ed.2d 411 (1991); Mejia v. State, 328 Md. 522, 529, n. 3 , 616 A.2d 356 , 358-359 n. 3 (1992). As this Court noted in Stanley v. State, 313 Md. 50, 59 , 542 A.2d 1267, 1271 (1988), establishing a prima facie case is but the first step of the three step process prescribed by Batson for determining whether the State’s use of peremptory challenges is constitutionally permissible.

The other two steps ¹⁰¹ involve requiring the State to offer a neutral explanation for its strikes once a prima facie case of racial discrimination has been made out, id. at 61, 542 A.2d at 1272 , and the trial court’s ultimate determination whether the defendant has proven purposeful discrimination. Hernandez v. New York, 500 U.S. 352, 359 , 111 S.Ct. 1859, 1866 , 114 L.Ed.2d 395, 402 (1991) (plurality opinion, Kennedy, J.); Mejia, 328 Md. at 533 , 616 A.2d at 361 ; Stanley, 313 Md. at 61 , 542 A.2d at 1272 . Once the defendant has established a prima facie case, “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. at 1723 , 90 L.Ed.2d at 88 . Although the State’s explanation need not meet the standard for justifying the exercise of a challenge for cause, the prosecutor is required to give a clear and reasonably specific explanation, constituting legitimate reasons for exercising the challenges, Stanley, 313 Md. at 78 , 542 A.2d at 1280 (quoting Batson , 476 at 98 n. 20, 106 S.Ct. at 1723 n. 20, 90 L.Ed.2d at 88 n. 20), and the explanation must be sufficient to establish that the exclusion does not constitute purposeful and racially discriminatory exclusion of venirepersons.

McCray v. Abrams, 750 F.2d 1113, 1132 (2nd Cir.1984); Booker v. Jabe, 775 F.2d 762, 773 (6th Cir.1985). Finally, the trial court is required to undertake “a sensitive inquiry into such circumstantial and direct evidence of intent as may be available” to determine whether the defendant has satisfied his or her ultimate burden of persuasion. Batson, 476 U.S. at 93 , 106 S.Ct. at 1721 , 90 L.Ed.2d at 85 (quoting Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 , 97 S.Ct. 555 , 50 L.Ed.2d 450 (1977)). In Batson the Court pointed to the existence of a pattern of strikes against black jurors included in the particular venire and statements made by the prosecutor, in exercising his challenges, as illustrative of the types of considerations upon which a court may properly base that determination.

See also Hernandez, 500 U.S. at 359 , 111 S.Ct. at 1866 , 114 L.Ed.2d at 402 (plurality opinion, Kennedy, J.); Mejia, 328 Md. at 533 , ¹⁰² 616 A.2d at 361 (quoting Stanley, 313 Md. at 60-61 , 542 A.2d at 1272 ). B. In establishing a prima facie case, [t]he defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits “those to discriminate who are of a mind to discriminate.” Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. This combination of factors in the impaneling of the petit jury, as in the selection of the venire, raises the necessary inference of purposeful discrimination. Batson, 476 U.S. at 96 , 106 S.Ct. at 1723 , 90 L.Ed.2d at 87 -88 (quoting Avery v. Georgia, 345 U.S. 559, 562 , 73 S.Ct. 891, 892 , 97 L.Ed. 1244 , 1247-1248 (1953)) (citations omitted).

Moreover, in Stanley , we opined, the prima facie showing threshold is not an extremely high one—not an onerous burden to establish____ It simply requires the defendant to prove by a preponderance of the evidence that the peremptory challenges were exercised in a way that shifts the burden of production to the State and requires it to respond to the rebuttable presumption of purposeful discrimination that arises under certain circumstances. Id. 313 Md. at 71 , 542 A.2d at 1277 , citing Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 , 101 S.Ct. 1089, 1094 , 67 L.Ed.2d 207, 215 (1981). We made clear in Stanley that the trial court may not merely state a conclusion that the defendant has failed to make out a prima facie case; it must make specific findings in that regard. Id. at 71 , 542 A.2d at 1277 .

In that case, we held that the trial court had not made the necessary finding. Id. at 70 , 542 A.2d at 1277 . We noted, in that regard, that the ¹⁰³ trial court “did not enumerate the Batson criteria, what matters [it] had observed during jury selection, were there apparent reasons (based on those observations) for striking certain blacks on nonracial grounds, and the like?” Id. In a