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08/26/93 DAVID JEFFERSON v. UNITED STATES

DISTRICT OF COLUMBIA COURT OF APPEALS


August 26, 1993

DAVID JEFFERSON, APPELLANT
v.
UNITED STATES, APPELLEE

Appeal from the Superior Court of the District of Columbia; (Hon. Fred L. McIntyre, Trial Judge)

Before Rogers, Chief Judge, and Terry and King, Associate Judges. Opinion for the court by Associate Judge Terry *fn1. Dissenting opinion by Chief Judge Rogers.

The opinion of the court was delivered by: Terry

I

A. Jury Selection

During the voir dire, after several venire members were excused for cause, counsel began to exercise their peremptory challenges. When defense counsel raised an objection to the government's use of its peremptory strikes, the following Discussion occurred at the bench:

[DEFENSE COUNSEL]: Your Honor, I want to object to the Government's strike. Every strike has been someone of the same race as Mr. Jefferson.

: That's not true.

[DEFENSE COUNSEL]: This gentleman [referring to a juror struck by the prosecutor] hasn't even spoken, to my recollection. It appears to be no pattern other than racial for the strikes.

THE COURT: You think that she's discriminating against Mr. --

[DEFENSE COUNSEL]: That's what I was alleging, Your Honor, yes.

THE COURT: Well, I'm sure she wouldn't do that intentionally.

[DEFENSE COUNSEL]: Well, intentionally or otherwise, he's still the one that gets harmed by it.

: Your Honor, I would note for the record that all of my strikes have not been of the same race, and I would also note that all of counsel's strikes have been of the same race. And if that would be an issue, I would raise it as to counsel. He has struck all white jurors.

THE COURT: Counsel may continue their strikes.

The bench conference ended at this point, and the voir dire resumed.

After jury selection had been completed and the jury had left for lunch, the trial court returned to the issue:

THE COURT: All right. Now, what was the you want to put on the record again the motion that you were trying to make in the court?

[DEFENSE COUNSEL]: Yes, sir. Thank you, Your Honor. Yes. All the strikes of the Government except one strike of Juror 661896 were strikes of people of the same race as Mr. Jefferson. I was unable to determine a pattern based on anything other than race for those strikes since most of those strikes were not people who commented during the voir dire process. And I was objecting to those strikes because appeared to be based on race.

THE COURT: All right. What does the Government have to say?

: First, Your Honor, the Government would note that all of its strikes were not of race . I didn't keep a count of how many were black or how many were white or how many were of whatever race because, frankly, that wasn't the basis of my strikes. I did note, however, that counsel himself struck all white jurors.

[DEFENSE COUNSEL]: I'd like to correct the record.

THE COURT: Just a minute.

: After he raised his issue. But I would note that the fact that they didn't speak doesn't necessarily mean that you struck that person because of race. There's a number of things, the way that a person looked at you, the way that a person might have kept looking at the defendant, which was certainly a basis for some of my strikes. Smiling, appearing to be too friendly with the defendant, or looking too hard at me.

I think most lawyers know that when you're picking a jury, it's just very subtle things that are transmitted to the lawyers in the course of picking the jury, and I just would like to state for the record that race wasn't the basis of me striking these individuals.

THE COURT: Okay. Well, I don't have to resolve that issue right now anyway, but we've got a jury so that may resolve everything. You may raise it again at a later date if you want to.

The issue was not discussed further.

B. The Trial

Mario Etienne was a member of the Rapid Deployment Unit of the Metropolitan Police. He testified that on July 11, 1991, he was assigned to the 2500 block of Pomeroy Road, S.E., prepared to engage in an undercover purchase of narcotics. He walked up to some people playing basketball and asked if anyone was "working." i.e., selling cocaine. One of the basketball players told him "to go up in the parking lot," but when Etienne asked someone in the parking lot whether anyone was working, "that man told no." After leaving the parking lot, however, he saw appellant Jefferson and asked him "if he knew anyone that was working." Jefferson directed the officer back to the parking lot, but when Etienne said he would not go there, *fn2 Jefferson replied that he would go to the lot himself and "get one to come down here and serve you." Jefferson then approached another man, later identified as Barry Johnson, who, along with Jefferson, disappeared out of the officer's sight. Moments later the two returned, and Jefferson handed Officer Etienne a ziplock bag of cocaine. Etienne in exchange gave Jefferson a $20 bill whose serial number he had previously recorded, and Jefferson in turn handed the money to Johnson.

Officer Christopher Coles, who was working under cover with Officer Etienne and was standing about thirty feet away from him when he bought the cocaine, radioed a lookout to an arrest team waiting nearby. Acting on that broadcast, the arrest team stopped two men Jefferson and Johnson whom Etienne later identified as the two that were involved in the drug sale. Officer Reginald Adams, a member of the arrest team, searched Johnson and recovered $200 in cash, which included the pre-recorded $20 bill. *fn3

The defense presented no evidence. In his closing argument, however, defense counsel said to the jury:

If you find some evidence that Mr. Jefferson was enticed, was induced to commit this crime, in other words, he didn't have it on his mind, and was induced by the police to do it, then, if you make that finding, you have to find beyond a reasonable doubt that he wasn't predisposed to commit this crime, except for what the police did.

The court included in its charge to the jury an instruction on entrapment, to which neither party objected.

II

An assertion by counsel that the government is acting in a racially discriminatory manner is very serious and demands the closest possible scrutiny by both the trial court and this court. We agree that the trial court in this case should have examined defense counsel's claim much more carefully. On the present record, however, we conclude that counsel did not make a prima facie showing of a Batson violation. *fn4

Relying on this court's decision in Nelson v. United States, 601 A.2d 582 (D.C. 1991), the government asserts that defense counsel "did not make a record on which his Batson claim can be considered." In Nelson the appellant claimed "that the trial court erred in overruling his objection to the prosecutor's alleged misuse of his peremptory challenges by striking only black persons." Id. at 590. We rejected this argument for the "fundamental reason that the record on appeal fails to establish the racial makeup of either the venire or the jury actually selected, and that under Cobb v. Standard Drug Co., 453 A.2d 110 (D.C. 1982), the responsibility for that failure lies with appellant." Nelson, supra, 601 A.2d at 590. The same thing happened here: counsel for appellant Jefferson failed to establish the racial makeup of either the venire or the jury actually selected.

Jefferson mistakenly believes that he may rely solely on the fact that the prosecutor used nine of her ten peremptory strikes to remove black persons from the venire to support his Batson claim. He is asking us, in effect, to "extrapolate a pattern of discrimination" *fn5 from the number of black venire members who were challenged by the prosecutor as compared with the number of white venire members challenged. We agree with the Maryland Court of Special Appeals that such limited facts -- the number of black persons challenged versus the number of white persons challenged -- can be relevant only when the court also has "knowledge of the percentage of strikes used against a given group also knowledge of the percentage that that group represented of the total venire panel -- or, more precisely, of the percentage that that group represented of the prospective jurors actually called forward to be accepted or challenged." Bailey v. State, supra note 5, 84 Md. App. at 331, 579 A.2d at 778; see United States v. Esparsen, 930 F.2d 1461, 1467 (10th Cir. 1991) ("the number of challenges used against members of a particular race is 'not sufficient to establish or negate a prima facie case'" (citations omitted)), cert. denied, 116 L. Ed. 2d 786, 112 S. Ct. 882 (1992).

Despite the trial court's prompting to develop a record on this issue, defense counsel said only the following:

All the strikes of the Government except one strike of Juror 661896 were strikes of people of the same race as Mr. Jefferson. I was unable to determine a pattern based on anything other than race for those strikes since most of those strikes were not people who commented during the voir dire process. And I was objecting to those strikes because it appeared to be based on race.

This was not enough. It is true that "the burden of establishing a prima facie showing is not onerous and that its primary function is to eliminate the most common nondiscriminatory reasons for the prosecutor's peremptory strikes." Little v. United States, 613 A.2d 880, 885 (D.C. 1992) (citation omitted). But that burden is not met by counsel's mere assertion of a discriminatory purpose. The fact that nine of the prosecutor's ten challenges were directed toward black persons is not sufficient to establish such a purpose, even prima facie. As we observed in Little, "Given the composition of the typical venire in the District of Columbia, 'it is not particularly surprising all of the persons struck by the prosecutor black.'" 613 A.2d at 886 (quoting Nelson, supra, 601 A.2d at 590-591).

Jefferson maintains that he established a prima facie case when his counsel objected to the prosecutor's use of her fifth peremptory challenge "because it excluded a black male who had not answered a single question during voir dire." At this point the prosecutor had exercised four of five challenges against black venire members. The trial court, however, dismissed counsel's assertion and told counsel to continue their strikes. After the jury was in the box, counsel again raised his objection to the prosecutor's use of peremptory challenges, asserting that nine of the government's ten challenges had been directed at black persons, "most" of whom had not said anything during voir dire. *fn6 The court, after listening to a brief response by the prosecutor, determined that the defense had not met its burden of making out a prima facie case.

In Batson the Supreme Court articulated the standards for assessing whether a prima facie case has been established:

To establish such a case, the defendant first must show that he is a member of a cognizable racial group . . . and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the 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 veniremen from the petit jury on account of their race.

476 U.S. at 96 (citations omitted). The determination of whether a prima facie showing has been made is particularly fact-sensitive, Little, supra, 613 A.2d at 885, and the Supreme Court has made clear that trial Judges, because they are "experienced in supervising voir dire," are the ones who "will be able to decide if the circumstances concerning the prosecutor's use of peremptory challenges creates a prima facie case of discrimination against black jurors." Batson, supra, 476 U.S. at 97. *fn7 This court, although noting that "whether a defendant has satisfied the burden of making a prima facie case is a question of law," and thus an issue which we decide de novo, has also recognized that it "must give deference to both the trial court's findings of fact and its ultimate ruling on whether the defendant satisfied the prima facie burden." Little, supra, 613 A.2d at 885 (citing Batson); see United States v. Grandison, 885 F.2d 143, 146 (4th Cir. 1989), cert. denied, 495 U.S. 934, 109 L. Ed. 2d 507, 110 S. Ct. 2178 (1990). *fn8 While it would have been better if the trial Judge here had stated in so many words whether the prima facie burden was met, his Conclusion to that effect can be inferred from his decision to proceed with the trial after hearing the prosecutor's response to defense counsel's Batson claim. On the record before us, we cannot say that such a Conclusion amounted to an abuse of discretion.

This court in Little engaged in a thorough Discussion of the "relevant circumstances" which a trial Judge should consider in determining whether a prima facie case has been established. 613 A.2d at 885-887. It is true that " single strike of a white juror can be a means to conceal (or attempt to conceal) a pattern of striking black jurors. . . ." Id. at 886. Nevertheless, a defendant "is required to 'come forward with facts, not just numbers alone' in making a prima facie showing . . . although the trial court may examine statistical disparities as one factor in assessing the prima facie case." Id. (emphasis in original; citations omitted). Moreover, an inference of discrimination will not likely arise from a mere showing that the prosecution used all of its peremptory challenges to exclude blacks. Id. (citing United States v. Sangineto-Miranda, 859 F.2d 1501, 1521 (6th Cir. 1988)). In Little, where the record with respect to the Batson claim was much more thoroughly developed than in the case at bar, this court held that defense counsel had failed to make a prima facie case. The facts (1) that the defendant was black and six of seven strikes were directed toward black persons, (2) that several black persons were struck who had answered no voir dire questions at all, and (3) that the only white person whom the prosecutor struck had answered a question did not persuade us that the defendant had made a prima facie showing of a Batson violation. *fn9 In the case at bar, the record is by no means as strong as the record in Little, and we see no reason to reach a different result. *fn10

We think it would be imprudent for us to formulate a per se rule for determining whether a prima facie case is established. As we recognized in Little, there are various methods of concealing a pattern of striking black jurors. 613 A.2d at 886. A bright-line rule would be easy to circumvent and would give rise to numerous allegations and suspicions that a prosecutor was attempting to conceal discriminatory challenges. Instead we elect to defer, as the Supreme Court advised in Batson, 476 U.S. at 97, to the assessment of the trial Judge. See United States v. Grandison, supra, 885 F.2d at 146-147. We note, however, that the "favored method" of addressing a Batson claim is for the trial court to rule at each step of the Batson analysis; its failure to do so "deprives this court of the benefit of its factual determinations and the reasons supporting its ultimate holding." United States v. Joe, 928 F.2d 99, 103 (4th Cir.), cert. denied, 112 S. Ct. 71 (1991). We close this portion of our opinion by reiterating what we said in Little :

We caution trial Judges to make a clear record of their reasons for finding or not finding that a defendant has made a prima facie case. The trial court should refer on the record to underlying facts or note the absence of facts either supporting or negating a prima facie case. . . . Where the issue is close, conservation of judicial resources might well justify inquiry of the government attorney as to the reasons for making a strike. . . especially since the prosecutor's burden in rebutting a prima facie case is neither onerous nor time-consuming.

613 A.2d at 887-888 (citations and internal quotation marks omitted).

III

Jefferson asserts that "there was insufficient evidence for the jury to find that was predisposed to distribute cocaine prior to being approached by undercover officers." As Jefferson correctly notes, the Supreme Court, in its most recent case discussing the entrapment defense, has held that when "the defense of entrapment is at issue . . . the prosecution must prove beyond reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents." Jacobson v. United States, 118 L. Ed. 2d 174, 112 S. Ct. 1535, 1540 (1992) (citation omitted). It does not follow, however, that Jacobson supports his argument.

The entrapment defense "centers on. . . a person's preDisposition to commit a crime, and not on the government's conduct." United States v. Whoie, 288 U.S. App. D.C. 261, 263, 925 F.2d 1481, 1483 (1991). Once it is shown that the government "induced" the defendant to engage in criminal activity, it is the government's burden to prove that the defendant was otherwise predisposed to commit the crime. Jacobson, supra, 112 S. Ct. at 1540. Jefferson asserts that the government failed as a matter of law "to adduce evidence to support the jury verdict that was predisposed, independent of the Government's acts and beyond a reasonable doubt, to violate the law. . . ." 112 S. Ct. at 1543. In considering this argument, we view the evidence, as we must, in the light most favorable to the government. E.g., Nelson v. United States, supra, 601 A.2d at 593 (citing cases). Reversal is warranted "only where there is no evidence upon which a reasonable mind could infer guilt," Patterson v. United States, 479 A.2d 335, 338 (D.C. 1984) (citation omitted), which in this case means that reversal is warranted only if there is no evidence that Jefferson was predisposed.

The Supreme Court in Jacobson anticipated the very scenario presented in the instant case:

An agent deployed to stop the traffic in illegal drugs may offer the opportunity to buy or sell drugs, and, if the offer is accepted, make an attest on the spot or later. In such a typical case . . . the entrapment defense is of little use because the ready commission of the criminal act amply demonstrates the defendant's preDisposition.

112 S. Ct. at 1541 (citation omitted). The evidence in this case shows that Jefferson did not hesitate to assist Officer Etienne in obtaining drugs, but readily seized the opportunity to do so. When Etienne encountered Jefferson near the parking lot and asked him "if he knew anyone that was working," i.e., selling drugs, Jefferson immediately responded by referring Etienne to the group of men in the parking lot. When Etienne declined to approach them, Jefferson offered to "get one [of them] to come down here and serve you." True to his word, he promptly went to the parking lot and brought back Barry Johnson, who together with Jefferson completed the sale. In the language of the Supreme Court in Jacobson, such "ready commission of the criminal act amply demonstrates the defendant's preDisposition." Id.

We said many years ago in rejecting a similar claim of entrapment:

Only where creative governmental activity instills the criminal notion in an otherwise innocent individual may the entrapment defense properly lie. A defendant claiming entrapment must be more than unaware of the fact that the subject activity will lead to his arrest; he must be wholly without criminal intent when he joins the police in the commission of a crime.

Williams v. United States, 342 A.2d 367, 369 (D.C. 1975) (emphasis added); see United States v. Russell, 411 U.S. 423, 435-436, 36 L. Ed. 2d 366, 93 S. Ct. 1637 (1973). On the evidence here it is questionable whether the trial court should even have given an entrapment instruction at all. See Mathews v. United States, 485 U.S. 58, 66, 99 L. Ed. 2d 54, 108 S. Ct. 883 (1988) ("evidence that Government agents merely afforded an opportunity or facilities for the commission of the crime insufficient to warrant such an instruction"); Minor v. United States, 623 A.2d 1182, 1187-1188 (D.C. 1993). If this was error, however, it benefited the defense, and Jefferson cannot now complain of it. We hold that there was ample evidence from which the jury could reasonably find that Jefferson was predisposed to participate in the sale of cocaine to Officer Etienne.

Jefferson's conviction is therefore

Affirmed.

ROGERS, Chief Judge, Dissenting: In Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), the Supreme Court made clear that racially discriminatory peremptory strikes are prohibited for several reasons. First, a defendant has a right, under the Equal Protection Clause of the Fourteenth Amendment, to be tried by a jury selected by non-discriminatory means from a venire which is fairly chosen. Batson v. Kentucky, supra, 476 U.S. at 85-87. Second, a discriminatory strike violates the equal protection rights of the individual juror who was unfairly struck, and implies that the juror was not competent to serve. Id. at 87; Little v. United States, 613 A.2d 880, 884 (D.C. 1992) (citing Powers v. Ohio,, 499 U.S. 400, 111 S. Ct. 1364, 1370, 113 L. Ed. 2d 411 (1991)). The defendant has standing to raise an equal protection claim on behalf of the excluded juror. Little, supra, 613 A.2d at 884. Third, discriminatory strikes "undermine public confidence in the fairness of our system of Justice." Batson, supra, 476 U.S. at 87.

To demonstrate a prima facie case of discrimination, the Batson Court instructed that:

the defendant first must show that he is a member of a cognizable racial group. . . and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the defendant is entitled to rely on the fact . . . 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 venire from the petit jury on account of their race. . . .

The trial court should consider all relevant circumstances. For example, a "pattern" of discrimination might give rise to an inference of discrimination. Similarly, the prosecutor's questions and statements during voir dire examination and in exercising [her or] his challenges may support or refute an inference of discriminatory purpose. These examples are merely illustrative.

Batson, supra, 476 U.S. at 96-97 (citation omitted) (emphasis added).

Thus, the Supreme Court did not suggest, or imply, that a prima facie case could only be established by a statistical or mathematical showing. This court has likewise made clear that establishing a prima facie case "is not strictly a numbers game." Little, supra, 613 A.2d at 885. Rather, depending on the nature of the defendant's claim, the requirements for showing a prima facie case may vary. See Part I, (infra).

In Nelson v. United States, 601 A.2d 582 (D.C. 1991), which the majority concludes is essentially dispositive of the instant appeal, see majority opinion at 6, the defendant's sole claim was that "the government had used its peremptory challenges to strike only Black persons" so that the jury was not representative of his peers. 601 A.2d at 590. The holding in Nelson means that a mere assertion that the government has struck only Black persons is alone not normally sufficient to establish a Batson claim, and if the defendant's only supporting contention is that the resulting jury was disproportionately composed, the defendant must show the composition of the venire or jury. See id. at 590. In other words, a defendant must provide the appellate court with a sufficient record to permit the court to evaluate his or her claim. See id. (citing Cobb v. Standard Drug Co., 453 A.2d 110 (D.C. 1982)).

It was the Nelson defendant's emphasis and reliance on the final composition of the jury that made statistics about the jury's or venire's racial composition mandatory in that case. *fn1 See id.

By contrast, appellant does not rely solely on the fact that nine of the government's ten peremptory strikes were directed against Blacks. Instead, he refers to those numbers and also points to other indicia of discriminatory use of peremptory strikes, noting that most of the Blacks struck by the government answered no voir dire questions, that the only white venire member struck by the government did answer such a question, and that the prosecutor offered only vague reasons for her strikes and commented on the race of those struck by the government. Unlike the defendant in Nelson, appellant provided record evidence of these supporting circumstances. Moreover, the record is not as barren of information about the racial composition of the venire and jury as the majority opinion would tend to suggest. See Part II, (infra). In addition, the defendant in Nelson made no claim that a juror's constitutional rights had been violated, while appellant makes both a broad claim that the government used its peremptory strikes to remove Blacks from appellant's jury and a narrower claim that the government violated individual Black jurors' constitutional rights by striking them from the jury because they were Black. Consequently, Nelson's insistence on a numerical showing is not dispositive of this appeal. *fn2

The trial Judge did not make any findings or a ruling in response to the Batson challenge. See Little, supra, 613 A.2d at 887 (trial Judges should make "clear record" of reasons for finding or not finding a prima facie case); cf. Batson, supra, 476 U.S. at 96-98; United States v. Gordon, 817 F.2d 1538, 1541 (11th Cir. 1987), vacated in part on other grounds, 836 F.2d 1312 (11th Cir. 1988), cert. dismissed, 487 U.S. 1265 (1988). The Judge did not determine whether the defense had established a prima facie case that the prosecutor had exercised her peremptory challenges in a racially discriminatory manner, nor whether the prosecutor had provided race neutral explanations. Rather, despite timely Batson objections by defense counsel, the Judge proceeded to trial without conducting further inquiry. *fn3 Hence, the Judge abused his discretion. See Johnson v. United States, 398 A.2d 354, 363 (D.C. 1979) ("failure to exercise choice in a situation calling for choice is an abuse of discretion").

Upon a review of the record, *fn4 particularly in light of the prosecutor's facially suspect comments, the lack of a prima facie case is not so clear that this court can affirm in the absence of trial court findings. See Batson, supra, 479 U.S. at 96-97 ("in deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances"; Court expressing "confidence that trial Judges . . . will be able to decide if the circumstances . . . create[] a prima facie case"); Bailey, supra note 2, 579 A.2d at 776-77 (citing Batson and noting importance of trial court's "feel" of the case); see also Stanley, supra note 3, 542 A.2d at 1277 & n.11. The record does not permit the court to conclude that there was no basis on which the trial Judge could have found that appellant had presented a prima facie case entitling him to the benefit of the rebuttable presumption under Batson. See Stanley, supra note 3, 542 A.2d at 1278 (question is whether "legally mandatory rebuttable presumption was established"). Indeed, on this record, where the facts are undisputed, the court could find as a matter of law that appellant had established a prima facie case. See Little, supra, 613 A.2d at 885 (a "close" case where six of the government's seven peremptory strikes were aimed at Black venire persons at Black defendant's trial, some of those Black venire persons answered no questions, and the only white venire person struck had answered a question; jury contained larger proportion of whites than the venire); Stanley, supra note 3, 542 A.2d at 1277, 1278-79 (and cases cited); see also majority opinion at 11 n.10. At least the court should remand the case to the trial Judge for findings and a ruling; cf. Stanley, supra note 3, 542 A.2d at 1279-80 (limited remand); id. at 1285 (fact that Judge "simply let the matter drop" weighs against limited remand). See Part III, (infra).

I.

The requirements for a prima facie case to raise a Batson claim are not intended to create an insurmountable barrier of exactitude. This is clear in both state and federal court decisions. *fn5 E.g., 543 A.2d at 1271-73 (reviewing procedures required by Batson). The federal circuit courts of appeals have not interpreted Batson to require that the defendant must show the relevant group's representation in the venire or jury. Batson, supra, 476 U.S. at 96; id. at 97 (prosecutor's comments or pattern of strikes may support inference of discrimination, but "these examples are merely illustrative"). See, e.g., Jones v. Ryan, supra note 4, 987 F.2d 960 at 970-71 ("composition and 'random' manner of selecting venire panel are immaterial to a Batson inquiry"; five factors for trial court to employ in assessing whether a defendant has established a prima facie case); *fn6 Moore, supra note 5, 895 F.2d at 485 (prima facie case is "fact-intensive," requires facts, "not just numbers alone"). *fn7

Obviously, information about the relevant group's representation in the venire or jury is relevant and useful. See, e.g., United States v. Sangineto-Miranda, 859 F.2d 1501, 1520 (6th Cir. 1988). *fn8 However, specific statistical information on the racial composition of the jury is not mandatory, partially because there are other ways to show discrimination. *fn9 See Alexander v. Louisiana, 405 U.S. 625, 630, 31 L. Ed. 2d 536, 92 S. Ct. 1221 (1972) (pre-Batson, discrimination in composition of grand jury, "mathematical standards" not set, "factual inquiry is necessary in each case"). The Eighth Circuit Court of Appeals has succinctly observed, in concluding that a prima facie case of discrimination had been established, that:

at oral argument, the Government requested that this court address the necessity of determining the racial composition of a jury panel. We decline to do so. . . . Batson inquiry focuses on whether or not racial discrimination exists in the striking of a Black person from the jury, not on the fact that other Blacks may remain on the jury panel.

United States v. Johnson, 873 F.2d 1137, 1139 n.1, 1140 (8th Cir. 1989), cert. denied, 498 U.S. 924, 112 L. Ed. 2d 257, 111 S. Ct. 304 (1990). *fn10 Clearly, the presence of Blacks on a jury panel does not prevent a defendant from establishing a prima facie case of a Batson violation. *fn11

In Batson, supra, 476 U.S. at 94 n.18, the Supreme Court referred to Title VII disparate treatment cases as describing "prima facie burden of proof rules." Title VII cases indicate that the prima facie case requirement is not unduly burdensome. In the Title VII context, statistics may be useful to determine if the employer exhibits a general pattern of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804-05, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). Likewise, the racial composition of the employer's workforce would be "helpful," but it is not controlling. Id. at 805 n.19. *fn12 Thus, in a Title VII disparate treatment case, the Court stated that:

the plaintiff must prove by a preponderance of the evidence that she . . . was rejected under circumstances which give rise to an inference of unlawful discrimination. The prima facie case . . . eliminates the most common nondiscriminatory reasons for the plaintiff's rejection . . . "raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors."

Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253-54, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981) (citation omitted). *fn13 See also St. Mary's Honor Center v. Hicks, 125 L. Ed. 2d 407, 61 U.S.L.W. 4782, 4783, 113 S. Ct. 2742 (U.S. June 25, 1993); United States Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713, 75 L. Ed. 2d 403, 103 S. Ct. 1478 n.2 (1983) (no reversible error to find discrimination (not merely prima facie case); statistics cited were that only two of twelve employees promoted ahead of plaintiff had any post-high school education and none had college degrees). In International Brotherhood of Teamsters v. United States, 431 U.S. 324, 358, 52 L. Ed. 2d 396, 97 S. Ct. 1843 n.44 (1977), the Court explained that under McDonnell Douglas Corp. v. Green, supra, a plaintiff may establish an inference of discriminatory intent by merely showing that the most common non-discriminatory reasons for the hiring decision (e.g., absence of a vacancy and "absolute or relative lack of qualifications") do not apply.

Therefore, when courts apply a Title VII disparate treatment-type prima facie analysis to Batson claims, a criminal defendant may present a prima facie case of a Batson violation by showing that peremptory strikes against jurors belonging to a relevant group were not based on the most common legitimate reasons for striking jurors, such as bias or answers to voir dire questions. See Little, supra, 613 A.2d at 885 (main function of prima facie case requirement is to "eliminate the most common nondiscriminatory reasons for the prosecutor's peremptory strikes").

II.

Appellant has raised claims of two types of discrimination described in Batson, supra, 476 U.S. at 85-87. He contends that the government impermissibly used its peremptory challenges to discriminate against individual Black persons in the venire and also to attempt to alter the racial balance of the jury that would hear his case by eliminating as many Blacks as possible from the jury panel. At trial, defense counsel objected to individual strikes of Black venire members by the prosecutor as well as to the pattern of strikes against Black venire members. On appeal, appellant maintains that be presented a prima facie case that the prosecutor used peremptory strikes to strike members of the venire solely because they were Black.

The prosecutor exercised all ten of her peremptory strikes, using them to remove one white and nine Black venire members. Six of the Black venire members struck by the prosecutor did not answer a single voir dire question. After the prosecutor indicated her intent to exercise her fifth peremptory strike, defense counsel raised an objection under Batson. The prosecutor's response was that not all of the jurors she struck were of the same race and that defense counsel was striking only white jurors. Defense counsel renewed his objection after the jury was chosen, stating that all but one of the government's peremptory strikes were aimed at Black voir dire members and most of those struck had not answered any voir dire questions. The trial Judge asked, "what does the government have to say?" The prosecutor responded again that not all of her strikes had been aimed at venirepersons of the same race and that defense counsel had struck only white venire members. The trial Judge then remarked that there was no need to "resolve that issue" at that time, and that defense counsel was free to raise the issue again.

While the record presented to the court might have been more detailed, the record is not barren of relevant information. Defense counsel did not provide a statistical breakdown of the composition of the venire and petit jury, but the failure to do so is not necessarily fatal. See supra note 7. In fact, the record makes clear that the prosecutor and defense counsel exhausted the entire venire, so that the trial court almost ran out of venire members. *fn14 Every one of the venire members who remained after challenges for cause was either placed on the jury or removed by peremptory strike. It is, therefore, possible to estimate the racial composition of the venire. *fn15 Even assuming that statistical information about the racial composition of the venire or jury is necessary, those numbers can be estimated.

The record reveals the race of the 19 venire members who were struck by peremptory challenges: 9 Blacks were struck by the prosecutor, 1 white was struck by the prosecutor, and 9 whites were struck by the defense, or a total of 9 Blacks and 10 whites were struck by peremptory challenges. The only other members of the venire, besides those struck for cause or those absent or late, were the 14 actual jurors (12-person jury plus two alternates). Therefore, there was a 33-person venire after the dismissals for cause (19 struck by peremptory challenges, plus 14 seated as the jury). If all 14 jury members were white, the venire had 24 whites and 9 Blacks, making it approximately 27.3 percent Black and 72.7 percent white. If all 14 jury members were Black, the venire had 23 Blacks and 10 whites, and was approximately 69.7 percent Black and 30.3 percent white. *fn16

Therefore, the venire, after challenges for cause, was approximately 27 percent to 70 percent Black, but 90 percent of the prosecutor's strikes were directed at Black venire members. *fn17 In addition to these numbers, the prosecutor's explanations for her strikes were vague and mentioned the race of the venire members struck by defense counsel, the one white venire member struck by the prosecutor answered a question about drug use while most of the Black venire members struck by the prosecutor answered no voir dire questions, and the prosecutor exercised all of her peremptory challenges against the jury panel. *fn18 See Little, supra, 613 A.2d at 886 (prosecutor's "generalized statement of reasons . . . may mask discriminatory motives and thus may contribute to . . . a defendant's attempt to make a prima facie showing"); Id. at 887 (prosecutor passed four times).

III

The charge that the government has discriminated under Batson is a "very serious" one, as the majority acknowledges. See majority opinion at 6. As the Supreme Court has pointed out, it implicates no less than public confidence in the Justice system. See Batson, supra, 476 U.S. at 87. The government must be accorded an opportunity to make a full response to a Batson claim. See Jones v. Ryan, supra note 4, 987 F.2d at 972 ("prosecutor has the burden of providing 'a "clear and reasonably specific" explanation of his [or her] "legitimate reasons" for exercising the challenges"') (quoting Harrison v. Ryan, 909 F.2d 84, 88 (3d Cir.), cert. denied, 498 U.S. 1003 (1990) (citing Batson, supra, 476 U.S. at 98 n.20)). The defense, in turn, should be given an opportunity to respond to the prosecutor's statement of reasons. *fn19 From the record in the instant case, in my view, the court could conclude that appellant had presented a prima facie case on either of his Batson claims. *fn20 Cf. Stanley, supra note 3, 542 A.2d at 1278-79 (citing cases). A limited remand would follow. 542 A.2d at 1279-80. But, at least, on this record, the court should remand the case to the trial court to make findings of fact and a ruling on the defense challenges to the prosecutor's use of peremptory challenges. See 542 A.2d at 1277.

The seriousness of the charge made by defense counsel cannot be ignored by the court; too much is at stake. See majority opinion at 6 (Batson claim "demands the closest possible scrutiny by both the trial court and this court"). As pointed out, moreover, by the Third Circuit Court of Appeals:

if tension exists between the "old tradition" of unconsidered preference for unfettered use of peremptory challenges and the still relatively "young tradition" of meaningful safeguards against invidious application of racial stereotypes, then the latter consideration must prevail. If the former consideration still prevailed, the "price" would be the jeopardizing of the integrity of the judicial process and the stigmatization of venirepersons of color. And such a price would be "too high."

Jones v. Ryan, supra note 4, 987 F.2d at 968 (citing Georgia v. McCollum, supra note 18, 112 S. Ct. at 2358, in turn, citing Edmonson v. Leesville Concrete Co., 114 L. Ed. 2d 660, 111 S. Ct. 2077, 2088 (1991)). Accordingly, I respectfully Dissent.


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