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12/15/93 PEDRO TURSIO v. UNITED STATES

December 15, 1993

PEDRO TURSIO, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Robert I. Richter, Trial Judge)

Before Ferren and Schwelb, Associate Judges, and Belson, Senior Judge.

The opinion of the court was delivered by: Ferren

FERREN, Associate Judge: Appellant was convicted of second degree murder while armed. D.C. Code §§ 22-2403, -3202 (1989 & Supp. 1993). Before the jury was sworn, defense counsel moved for dismissal of the indictment, asserting that the government had used its peremptory challenges in a discriminatory manner violating Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986). The trial court denied the motion. After trial, defense counsel moved for a new trial on Batson grounds in the interests of Justice pursuant to Super. Ct. Crim. R. 33. Once again, the court denied the motion, concluding that the original Batson motion had not been timely filed. The trial court continued with the hearing, however, electing to decide -- in the event it had erred on the timeliness issue -- whether the prosecutor had offered sufficient race-neutral reasons to explain his peremptory challenges and thereby rebut what the court found to be a prima facie showing of racial discrimination. The court concluded that the prosecutor had not intentionally struck the jurors because of their race and, therefore, that appellant's constitutional rights under Batson had not been violated. We review appeals from the judgment and from the denial of appellant's motion for a new trial. We agree with appellant's Batson claim, reverse, and remand for a new trial.

I.

Factual Background

Appellant, a Latino *fn1 man, was charged with second degree murder while armed for stabbing Nathaniel Green, a black man. The stabbing occurred after a fight between Latino and black men at a meal truck line in the Mount Pleasant area. The government's primary witness was Thomas Guiles, a black man, who witnessed the stabbing. Guiles identified appellant two weeks later at another soup kitchen and called the police to arrest him.

Two white women, however, repudiated Guiles's identification testimony. Barbara Gottlieb testified that she had seen the assailant when he ran in front of her car. She described the assailant as a Latino man in his upper-thirties, who was heavy-set, several inches taller than she, with shoulder-length, straight black hair. She denied that appellant was the assailant. Susan Kranyik testified that she had seen the assailant from her fourth floor apartment window. Her description of the assailant was similar to the description Gottlieb gave. When asked whether appellant could have been the assailant, Kranyik responded, "He doesn't look at all like the person that I saw that did the stabbing."

Jury Selection

The venire from which appellant's jury was selected contained fifty potential jurors. Thirteen were white, and thirty-seven were black. None was Latino. Pursuant to Super. Ct. Crim. R. 24, each side received ten peremptory challenges. The trial court decided to seat two alternate jurors, so the court gave each side one more peremptory strike.

The prosecutor used ten of his peremptory strikes and "passed" on the eleventh. He used nine of the ten to eliminate all the whites from the regular jury. Only one white was left: as an alternate.

After the lunch break but before the jury was sworn, defense counsel moved to dismiss the indictment or, in the alternative, to select a new jury. Counsel asserted that the prosecutor "exercised every single one of his challenges to strike a non-black person from the jury with the possible exception of one person that he struck from the panel" and that this pattern was significant given the racially-charged nature of the case and the different races of the witnesses. The prosecutor responded that defense counsel's contention was "outrageous" and that non-blacks remained on the jury. He commented that some of the police officers in the case were Hispanic and white and that defense counsel had "exercised her challenges to strike every black male but one on the jury panel." *fn2 The prosecutor then recounted why he had struck two potential jurors. He explained that one juror had expressed concern that the ten years she lived in South America might render her more sympathetic to a Hispanic defendant, and another juror had indicated that she spoke Spanish and might not follow the court interpreter's translation if it interfered with her own understanding.

The trial court denied defense counsel's motion without requesting further explanation from the prosecutor. The court found that the motion was untimely because "no objections were made as the strikes were going on." Furthermore, the court stated that even if the motion were timely, Batson did not address striking non-blacks from the jury, and, even if it did, the prosecutor exercised his peremptory challenges for "reasons apart from sheer race." For purposes of the record, the court noted, "The jury of twelve are eleven black women and one black man."

The Motion for a New Trial

Defense counsel renewed appellant's Batson claim in a motion for a new trial in the interests of Justice pursuant to Super. Ct. Crim. R. 33. In the government's written opposition to the motion, the prosecutor provided ...


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