Appeal form the Superior Court of the District of Columbia; (Hon. Mildred Edwards, Trial Judge)
Before Schwelb and Wagner, Associate Judges, and Belson, Senior Judge.
The opinion of the court was delivered by: Schwelb
SCHWELB, Associate Judge: Andre L. Baxter was convicted by a jury of unlawful possession of cocaine with intent to distribute it, in violation of D.C. Code § 33-541 (a)(1) (1992). On appeal, Baxter contends that the prosecutor peremptorily challenged potential jurors on the basis of age and sex, allegedly in violation of Baxter's constitutional and statutory rights. Cf. Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986). We affirm.
Voir dire in Baxter's second trial *fn1 began on the afternoon of August 21, 1990. After the Judge had dismissed several venire members for cause, the prosecutor used nine of his ten peremptory challenges to strike "young black males" under the age of forty from the venire. Remaining in the jury box were four black men (aged 48, 76, 41, and 56), one of whom was the alternate, seven black women, and two white women. The Judge then excused the jurors for the evening without administering the juror oath.
Outside the presence of the jury, Baxter's counsel stated that
there is one matter, and that is, we would object to the seating of this jury. We noticed that the prosecutor systematically struck any black male who appeared to be under middle-aged. As a result, we now have a jury panel with nine females and there are three black males. One is seventy-five, the other appears to be in his sixties, and the other one middle-aged, who is a registered nurse.
So, if nothing else, for the sake of appeal, we object to the composition of the jury panel. It is not a jury of my client's peers.
I would note that in the middle of the jury selection, there was an opportunity, when the Government struck into the pool and we passed, that we could have stayed with the jury that, at that time, was in the box. We object to the seating of this jury and believe that the jurors that were struck by the Government were because of their race and sex.
In response, the prosecutor offered to provide the court with his reasons for each strike, but the trial Judge elected to deal with the objection on the following day, and recessed court.
The next morning, August 22, 1990, Baxter's counsel reiterated his objection that the prosecutor had used his peremptory challenges against "black males, I guess under the age of forty-five, approximately." At this point the Judge remarked that Baxter's claim was "a little more refined than a Batson challenge outright. It's a claim that [the prosecutor] used peremptory challenges to strike young black males." Agreeing with the court, Baxter's counsel explained that the strikes against young black males were impermissible because, under Batson, " those who were struck, if a pattern is noted, there should be a neutral reason." The Judge expressed reservations regarding this position, stressing that the Constitution did not guarantee a jury comprised of "people of the same racial background, gender and age as the defendant on trial."
The Judge also questioned whether Baxter had established a prima facie case of racially discriminatory strikes under Batson. The prosecutor denied any racial discrimination, noting that in every instance but one, a challenged black venire member had been replaced by another black venire member. The prosecutor also stated his belief that strikes based on age were appropriate, and he acknowledged -- in a commendable display of frankness -- that he had struck members of the jury panel based on age:
I think that a person's age, in jury selection, does not rise to the constitutional equal protection safeguards that are discussed in the Batson case; and to be quite frank, I think that young persons, black or white, male or female, have more permissive attitudes about drugs than other people in our society, and I do try to exclude young people of any race from a jury, particularly people under the age of thirty, because I'm afraid, as a prosecutor, that their attitudes are too permissive, that they will not necessarily follow the law in reaching a verdict.
The Judge rejected defense counsel's challenge to the jury panel. She ruled that Baxter had not established a prima facie case of racially discriminatory strikes. The Judge acknowledged that Baxter's challenge had injected the issues of age and gender into the traditional Batson inquiry, but observed that "one could choose to use one's peremptory challenges to strike young people in some kinds of cases, I think, without running ...