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Card v. United States

District of Columbia Court of Appeals


June 28, 2001; Opinion Vacated December 22, 2004

JAVIER CARD , JEROME EDWARDS, ANTOINE W. RICE, APPELLANTS,
v.
UNITED STATES, APPELLEE.

Before Terry, Steadman and Ruiz, Associate Judges.

The opinion of the court was delivered by: Steadman, Associate Judge

Appeals from the Superior Court of the District of Columbia

Hon. Herbert B. Dixon, Jr., Trial Judge

Argued January 11, 2000

During jury selection in a murder trial in 1993, one potential juror, a 33-year-old African-American male, had close cropped hair and was wearing a white shirt and bow tie. He was Juror 333. The prosecutor exercised one of his peremptory strikes against this juror out of expressed concern that the juror might be a follower of Louis Farrakhan. The principal issue on appeal is whether this exclusion was constitutionally discriminatory on the basis of religion in violation of the doctrine of Batson v. Kentucky, 476 U.S. 79 (1986).

We agree with the government that, because this potential reversible error was not fairly presented to the trial court, we can review only for "plain error." At the time, the Batson principle had been applied only to race discrimination, and indeed to this day the Supreme Court has not determined whether it extends to religion-related strikes. We can find no plain error here. In addition, although we do not condone the prosecutor's dilatory discovery compliance, we reject appellants' numerous assertions of reversible trial error and accordingly affirm the bulk of the convictions. We remand for the limited purpose of resentencing based on merged convictions.

I. Factual Summary

This appeal stems from one of the lengthiest criminal trials in the history of the District of Columbia Superior Court. *fn1 It ended in the defendants' convictions on numerous counts of murder and other crimes. A detailed recitation of the facts, rather than elucidating the case, would serve only to obscure the issues on appeal. We therefore turn to a general description of the underlying events, and direct attention to the substantive discussions infra, wherein necessary particulars of the case and the trial are discussed.

The evidence adduced by the government at trial showed the following. Throughout the 1980's and 90's, appellant Card operated an illegal drug business with his partner, James Murray, in Southeast Washington. On October 28, 1990, Murray was murdered. The day after the murder, Card sought revenge, gathering loyal followers to avenge Murray's brutal demise. Convinced that Murray had been killed by a rival drug dealer named Billy Ray Tolbert, Card and his cohorts lured Tolbert to a Southeast apartment. Once there, Card and several of his followers -- including appellants Edwards and Rice -- participated in binding Tolbert's hands, feet, and mouth with duct tape, and repeatedly beating him. When Tolbert attempted to escape by jumping through the glass of a closed second story window, Card decided to kill Tolbert. Tolbert was shot several times at point blank range by Edwards and Card, among others. His body was then dropped out the window and eventually deposited in Tolbert's car, where it was later found. In the days following the murder, Card, Edwards, Rice, and others took pains to obstruct the investigation of Tolbert's murder, all the while continuing to seek revenge from other drug dealers who they suspected murdered Murray.

Forty-two witnesses testified on behalf of the government. Most important, for purposes of this appeal, were the following: Kalvin Bears, who testified that Card had admitted murdering Tolbert; Ida Stanford, who also testified that Card had acknowledged the details of the murder; Metropolitan Police Detective James Bradley, who testified regarding Edwards' inculpatory statements to police; Fred Johnson, who testified that he witnessed Card and others conspire to kill Tolbert, that on the night of the murder he heard Tolbert questioned repeatedly by Card, and that he heard the shots that killed him; Lewis Yancey, who testified that he supplied Card with guns used in the murder; and James Craille, who testified that Card had organized meetings with the appellants and other followers at which Tolbert's murder was planned, had supplied guns for the conspiracy, had lured Tolbert to the ambush, and had participated in the shooting. The defense strategy at trial was essentially to attack the credibility of these and the other witnesses. None of the appellants testified on his own behalf.

Card was convicted on seven counts, including conspiracy to commit murder (D.C. Code § 22-2401), felony murder (kidnaping) while armed (D.C. Code §§ 22-2401, -3202), and premeditated murder while armed (D.C. Code §§ 22-2401, -3202). Both Rice and Edwards were convicted on several counts, including kidnaping while armed (D.C. Code §§ 2101,-3202) and felony murder (kidnaping) while armed. All three were sentenced to lengthy prison terms, and now appeal.

II. Batson Challenge

A. Religious Discrimination

Appellants contend that the prosecutor violated the federal constitution by using a peremptory strike to exclude a juror solely on the grounds of his suspected religious affiliation, *fn2 and that the trial court committed per se reversible error *fn3 by allowing the strike. Appellants rely on Batson, supra, in which the U.S. Supreme Court held that a prosecutor's exclusion of even a single juror based on race, a classification subject to strict scrutiny, violates equal protection. *fn4 This holding was extended to a juror's gender, a classification subject to intermediate scrutiny, in J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994). Like race, religion is a classification subject to strict scrutiny. See Employment Div. v. Smith, 494 U.S. 872, 886 n.3 (1990). However, neither this court nor the Supreme Court has ever considered whether a peremptory strike based on religious affiliation violates the Constitution. See Davis v. Minnesota, 511 U.S. 1115 (1994) (denying certiorari on this precise issue). The government contends that since this argument was not fairly presented to the trial court, our review should be limited to plain error. We address this scope of review issue first.

"In our jurisprudential system, trial and appellate processes are synchronized in contemplation that review will normally be confined to matters appropriately submitted for determination in the court of first resort." Miller v. Avirom, 127 U.S. App. D.C. 367, 369-70, 384 F.2d 319, 321-22 (1967). "Objections must be made with reasonable specificity; the judge must be fairly apprised as to the question on which he [or she] is being asked to rule." Hunter v. United States, 606 A.2d 139, 144 (D.C.), cert. denied, 506 U.S. 991 (1992). Accordingly, we have long applied the rule that "[q]uestions not properly raised and preserved during the proceedings under examination, and points not asserted with sufficient precision to indicate distinctly the party's thesis, will normally be spurned on appeal." Womack v. United States, 673 A.2d 603, 612 (D.C. 1996) (quoting Miller, supra, 127 U.S. App. D.C. at 369-70, 384 F.2d at 321-22) (emphasis in original), cert. denied, 519 U.S. 1156 (1997).

Taking into account all the facts and circumstances, we conclude that appellants failed to raise a constitutional challenge to the prosecutor's religious-affiliation-based strike with sufficient precision to fairly apprise the trial court of the constitutional question before it. The somewhat complicated facts bearing on that question are as follows.

Jury selection in the instant case took place in 1993, at a time when neither this court nor the Supreme Court had applied Batson to any category other than race. Each side was given twenty-four peremptory strikes, which they began to exercise on a Wednesday morning after a month of jury selection. By lunchtime, the prosecution had used six strikes, three of them against black males under thirty years of age. Using this fact as evidence of a prima facie case, and arguing that the three young black male defendants would not be able to get a "jury of their peers," appellants' counsel *fn5 made a Batson objection to the exclusion of "black jurors and in particular young black male jurors." Under Batson, "once the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step 1), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step 2). If a race-neutral explanation is tendered, the trial court must then decide (step 3) whether the opponent of the strike has proved purposeful racial discrimination." Purkett v. Elem, 514 U.S. 765, 767 (1995). Accordingly, the trial court asked the prosecutor to offer explanations for the three challenged strikes. The prosecutor did so, stating, in part, that he typically sought jurors who were employed or in school. The trial court concluded that there was no Batson violation, and the peremptory strike process resumed.

The government completed its peremptory strikes on Wednesday afternoon, exercising three more of them to eliminate black male jurors. These jurors were ages twenty-two, thirty-three, and thirty-six, respectively, and two of them were employed. The second of these strikes was of Juror 333. At the end of the day, counsel renewed the Batson objection, arguing that the prosecutor's strikes of employed black males exposed the race-neutral explanation he had given earlier for striking black males as a mere "pretext" for racial discrimination. Argument on this point continued into the Thursday morning session. Throughout, defense counsel consistently stressed that the objection was not to any particular strike but rather to systematic exclusion of black males "overall" and the "net effect of the entire pattern and practice." As an example, however, counsel cited stricken Juror 333 as a good citizen with whom the "only thing wrong . . . is that he is a young, black man."

After some debate about inclusion of the thirty-three and thirty-six year-old jurors in the "young black male" category, resolved in favor of inclusion by the trial court, the court asked the prosecutor to explain the three most recent strikes of young black males. As to Juror 333, *fn6 a thirty-three year old employed black male and the subject of the only strike at issue in this appeal, the prosecutor explained that he had stricken Juror 333 because, although there was "no indication on the record" of his religious or political affiliation, the fact that Juror 333 had close cropped hair and was wearing a white shirt and bow tie suggested to him that Juror 333 might have an "affiliation with those people who follow Louis Farrakhan who could not be fair to the Government." *fn7

The explanations complete, the trial court turned its attention back to defense counsel. Appellants' counsel urged that the Batson inquiry be extended to black women, which the court overruled finding no prima facie case, but counsel made no mention whatsoever of the prosecutor's explanation for striking Juror 333. As to the existing Batson challenge, the trial court ruled that it had found no "racially based systematic exclusions of young, black males from the jury." The court reasoned that all but one of the strikes, i.e. the strike of Juror 333, were based on race-neutral "facts, observations, and information and responses obtained during the voir dire." Although it found no such objective basis for the strike of Juror 333, referring to the justification of that strike as "less than acceptable" and being based solely on the prosecutor's "gut feeling," the court concluded that one strike based on "gut feeling" did not establish systematic exclusion, nor was it race-based. At the same time, the trial court expressed understanding for the prosecutor's concern about jury nullification by a Farrakhan follower based on its own experience with jurors refusing to convict .

The peremptory strike process then continued, apparently because some defense strikes remained at the time of the renewed Batson challenge. Once complete, counsel again "renewed" the Batson challenge, this time on the ground that Juror 1, who had since been seated, had closely cropped hair and had worn a bow tie on both days of the peremptory strike process. When the trial court asked how the Batson objection could be renewed when the prosecutor had not stricken Juror 1, counsel clarified the theory as being that the prosecutor's stated basis for striking Juror 333 (i.e. affiliation to Louis Farrakhan) was really just a "pretext" for striking young black males. Counsel explained that the prosecutor had stricken Juror 333 but not Juror 1, "another person in the exact same situation with close cropped hair, bow tie, unemployed but just older. It was clearly age vs. age, sex, and race." The trial court responded, "Counsel, I have already heard the Batson challenges with respect to all of the jurors that were struck." Soon thereafter, the court asked all counsel whether there was "any reason" not to excuse the unselected voir dire panelists, and counsel unanimously indicated there was not. The unselected panelists were dismissed, and the court addressed the selected jury regarding scheduling and such, then dismissed them for lunch. The jury had not yet been sworn.

At this point, appellants' counsel indicated that there were still issues concerning jury selection. They referred to the previous Batson objection to strikes of young black males and offered the opinion that two Wednesday morning strikes of unemployed young black males were "improper." However, the paramount issue, as stated by counsel, was the prosecutor's inability to offer "what I believe that the court perceived as a proper explanation" for striking Juror 333. That counsel then made the following statement, which we quote almost in its entirety since appellants' Batson claim rests on it:

[The prosecutor] stated that his gut reaction and the court accepted it and I believe that the court indicated something to the effect of yes, he had close cropped hair and he did have a bow tie and that we had juries --cases before which ended in 11 to 1, basically a hung jury. Your honor, Juror Number 1 . . . has close cropped hair. He has a bow tie. He had a bow tie on yesterday . . . . Your honor, that undercuts [the prosecutor's] argument. He is saying that he struck the Juror because he is Muslim and I think first of all, that's improper. It is improper and I was also shocked when the court condoned that statement, your honor. What the court is suggesting is that people of the Muslim religion or the Muslim practice cannot be fair and impartial. Your honor, I was shocked that the court joined in that comment. [The prosecutor] represents the government and those may be his personal thoughts. But, your honor, that's not a proper -- I objected when there were jurors here who were sexist towards the female lawyers and the female defendant calling the female lawyers "Honey." I also objected strenuously when we had the one juror who we believed exhibited certain racial attitudes and I certainly would object to any suggestion that a person who belongs to a certain religious group since the First Amendment and the freedom of expression and the freedom of association, freedom of religion, that there is some suggestion that they cannot be a part of this jury process. In addition to that, my client is a practicing Muslim and on numerous occasions during pretrial matters, he has, in fact, wore [sic] his cap. Your honor, regrettably, I have to say that's an opinion that the court possesses that is derived outside of this courtroom. Your honor, regrettably, I would ask that the entire panel be stricken because I think that the explanation that [the prosecutor] gave as to 333 was improper . . . . Your honor, [the prosecutor] simply struck him because he was a young, black male similar in age to Mr. Rice, Mr. Edwards, and Mr. Card and I rejected that explanation by [the prosecutor] and I don't think that it's a proper one in light of [the other juror with a bow tie] and also your honor, regrettably, I have to object to the court's comment about that and joining in with [the prosecutor] that there is some suggestion that people of the Muslim religion cannot be fair and impartial.

Other defense counsel agreed, commenting that the prosecutor's stated reason was "reprehensible" and constituted "discrimination" against "an entire segment of the black population." Appellants' counsel continued to argue racial discrimination, however, and the only arguably substantive comment made regarding the constitutionality of a religion-based strike was one counsel's statement, "We sit up in this court and we say hum, that man looks like he belongs to a suspect category without even having established that the suspect category in and of itself would be enough to exclude someone from jury duty . . . . I just do not understand how the court can affirm that way of thinking."

It is abundantly clear from this record that defense counsel found the prosecutor's explanation for the strike morally offensive. *fn8 Nonetheless, we cannot agree with appellants that it was unreasonable for the trial court to interpret counsel's argument as essentially renewing the existing Batson objection, i.e. "systematic exclusion" of blacks in general and young black males in particular, and that discrimination on the basis of race was the ultimate constitutional issue.

First of all, defense counsel had not objected to the prosecutor's stated reason for striking Juror 333 at the time of the strike, remaining silent even when the trial court soon thereafter indicated that it had now "heard the Batson challenges with respect to all the jurors that were struck." Although this fact did not necessarily render counsel's final Batson objection untimely, see Tursio v. United States, 634 A.2d 1205, 1210 (D.C. 1993) ("Batson motion will be timely when made at any time before the jury is sworn"), it did put a greater onus on defense counsel to be clear if they intended to raise an entirely new and distinct Batson-like claim, i.e. discrimination based on religious affiliation.

Second, at the time of the final objection, the only "new" information was that a juror of similar appearance had been seated, thereby creating a basis for a "pretext" argument in relation to the racial discrimination charge. The court, therefore, had no reason to focus on this issue as a basis for a religious discrimination claim.

Third, although counsel did refer generally to the First Amendment, they never mentioned equal protection or provided any legal argument whatsoever for extending Batson beyond race. Admittedly, this omission might not be as important today, post-J.E.B., where the Supreme Court has already extended the relevant doctrine to other protected classes. However, in 1993 Batson was limited solely to race. Appellants' failure to elucidate the novel manner in which they allegedly proposed that the court apply the reasoning of Batson was therefore critical.

Finally, it is important to recognize the structure of the Batson inquiry in this case, especially since it was pre-J.E.B. Defense counsel, to the extent they raised a prima facie Batson objection to exclusion based on religious affiliation, did so in the context of a continuing argument regarding the trial court's determination of whether the prosecutor's reasons for the peremptory strike were sufficiently race-neutral under the traditional race-based Batson analysis. Again, this understandably masked defense counsel's alleged attempt to raise a new and distinct constitutional challenge under Batson-like reasoning, especially since counsel concluded the argument by reiterating the sentiment that the prosecutor "simply struck [Juror 333] because he was a young, black male similar in age to Mr. Rice, Mr. Edwards, and Mr. Card." As a practical matter, it seems apparent that the trial court did not understand, and fairly so, that it was being presented with a new and completely distinct legal challenge to the constitutional propriety of a strike based on religious affiliation, given that the court made no comment whatsoever on the issue.

In Baxter v. United States, 640 A.2d 714 (D.C. 1994), we emphasized the importance of apprising the trial court of the precise legal argument upon which objections to juror strikes are based. Only then will the trial court be in the position to address the issue squarely, make any necessary further investigation and findings, and take corrective action as may be appropriate. In Baxter, the defendant on appeal sought to establish that improper strikes had been made on the basis of age and sex discrimination. Id. at 717. This court concluded that even though the trial court had commented on the propriety of age discrimination, the issue simply had not been sufficiently differentiated from the race-based Batson ground or exclusion of "young black males" argued to the trial court to preserve it for appeal. Id. Since the appellant in Baxter "did not raise the allegations of age and gender discrimination with the reasonable specificity necessary to fairly apprise the trial judge of those objections," *fn9 we reviewed only for plain error. Id. A like situation is presented here.

The necessity for a particularly demanding standard requiring counsel to articulate clearly the parameters of a given Batson-like challenge, especially on a novel ground not previously addressed, is demonstrated here. The voir dire process itself in this trial occupied a full month. The trial itself took an additional five months. Plainly, it was imperative that any problems with the composition of the jury should, if at all possible, be resolved prior to the commencement of the trial since any error of a Batson type mandates reversal without regard to any actual trial prejudice to a defendant. See supra note 3. Furthermore, for example, if counsel's objection based on religious discrimination had been front and center, the opportunity could have been afforded to examine at the time, in further detail, an issue that now splits appellants and prosecution; viz., whether in fact what is presented here is religious discrimination or simply political discrimination, arguably governed by a different test. (The prosecutor here never used any phrase plainly religious in nature, speaking only of the followers of a particular individual.) Likewise, more clearly alerted to the nature of the new problem, the trial court could have directed a more focused inquiry into the actual factual situation vis-a-vis the juror's affiliations, if any, and his actual views, religious or otherwise, vis-a-vis those of Louis Farrakhan. *fn10 The venire panel had already been dismissed, with the consent of all counsel, by the time any real objection was raised even peripherally subject to interpretation as religion-based. Thus, defense counsel had even greater reason and need to alert the trial court that their theory of systematic exclusion of young black males was now being superseded or supplemented by a completely different theory, focused upon a single juror and on a theory of religious discrimination involving First Amendment considerations.

Given all the circumstances here, we simply cannot conclude that anything more than the bare bones of the finely hewn religion-based argument now made to us on appeal was fairly presented to the trial court. As a result, the trial court was not alerted to the necessity of closely considering this entirely distinct basis of claiming constitutional discrimination. Absent such "reasonable specificity," we review for plain error. See Baxter, supra, 714 A.2d at 717; Hunter, supra, 606 A.2d at 144; see also United States v. Chandler, 12 F.3d 1427, 1431-32 (7th Cir. 1994) (stating that "[o]nly by pressing a claim of purposeful, racial discrimination -- that is, by requesting the trial court to rule on whether the defendant has established purposeful, racial discrimination -- does a defendant preserve a Batson claim for appellate review" and holding that defense counsel did not make specific enough Batson challenge when she merely asked prosecutor to explain why he wanted to strike a black venireperson); Hopson v. Fredericksen, 961 F.2d 1374, 1378 (8th Cir. 1992) (holding that defendant did not properly preserve Batson challenge for appeal because he did not "request the trial judge to articulate her reasons on the record for overruling the Batson objection"); State v. Shaw, 14 S.W.3d 77, 83-84 (Mo. Ct. App. 1999) ("To preserve a Batson challenge, a timely and specific objection must be made at trial . . . [especially where] two distinct classifications are involved: race and gender. Batson addresses only impermissible strikes based upon race; J.E.B. v. Alabama ex rel. T.B., on the other hand, addresses the gender counterpart. Therefore, a generic reference to Batson, without more, is insufficient to preserve a claim of error based upon a gender-motivated peremptory strike.") (emphasis added); cf. United States v. Humphrey, 208 F.3d 1190, 1204 (10th Cir. 2000) (applying plain error to argument based on legal theory not raised to trial court and stating, "[W]e think it beyond argument that where, as here, the trial testimony arguably supports suppression of the evidence on a legal basis different from that argued in the motion to suppress, the defendant must object at trial and inform the trial court of the new legal basis for excluding the evidence.") (emphasis in original).

Applying plain error, appellants' argument must fail since it was not "obvious and readily apparent" in 1993 that Batson applied to any category other than race, let alone religious affiliation specifically. Baxter, supra, 640 A.2d at 718 (holding that trial court did not commit plain error since it was not well-settled in this jurisdiction in 1993 whether Batson applied to age or sex); *fn11 see also Stafford, supra, 136 F.3d at 1114 ("The constitutional status of peremptory challenges based on religion is unsettled, and this is enough to show that the judge's error . . . , if it was error, was not a plain error.")

B. Racial Discrimination

Appellants also rather briefly argue that the denial of their traditional race-based Batson objection was erroneous because the prosecutor failed to give a legitimate, non-discriminatory reason for the peremptory strike (step 2 of the Batson challenge) or because it was pretextual (step 3). We begin by noting that "the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike." Purkett, supra, 514 U.S. at 768. Moreover, we give "great deference" to a trial court's findings with regard to discriminatory intent. See Evans v. United States, 682 A.2d 644, 651 (D.C. 1996). In the Batson context, "the trial court's decision on the ultimate question of discriminatory intent represents a finding of fact of the sort accorded great deference on appeal." Hernandez v. New York, 500 U.S. 352, 363 (1991 (plurality opinion, citing Batson). See Washington Metro. Area Transportation Auth. v. Jeanty, 718 A.2d 172, 180 n.14 (D.C. 1998) ("This finding by the judge [that the prosecution's peremptory strikes were non-discriminatory] turned on his on-the-scene assessment of counsel's credibility, and we are in no position to second-guess a determination which was obviously informed by the judge's observation of counsel's demeanor."). A successful race-based Batson challenge requires a finding that a strike was the result of "racially discriminatory intent or purpose"; racially disproportionate impact is not enough. Hernandez v. New York, supra, 500 U.S. at 359-60 (plurality) (citation omitted); id. at 372-73 (O'Connor, J., concurring). "Batson does not require that a prosecutor justify a jury strike at the level of a for-cause challenge. It also does not require that the justification be unrelated to race. Batson requires only that the prosecutor's reason for striking a juror not be the juror's race." *fn12 Id. at 375 (emphasis in original).

When faced with appellants' argument, the trial court ruled that the prosecutor's "gut" reaction to the concerns raised by the juror's appearance -- "the bow tie, the close cropped hair, and other issues" --was credible, and not race-based. *fn13 The court drew on its own practical experience, stating:

This court is personally aware that there have been several jury trials in this court where there have been 11 to 1 hung juries for the very same reason mentioned by [the prosecutor]. As a matter of fact, this Court tried one of those cases.

Appellants argue that a white man dressed like Juror 333 would not have been stricken. The trial court could reasonably conclude that this did not automatically translate into the requisite racially discriminatory intent or purpose, given the apparently limited composition of the group in question. In the recent case of United States v. Blanding, 2001 U.S. App. LEXIS 9862 (4th Cir. 2001), defense counsel for a black defendant struck a white juror whose car had a Confederate flag bumper sticker. The juror had disclaimed "anything having to do with the sentiment," but defense counsel said that nonetheless he was concerned about it. The trial court's ruling that the stated reason was a pretext for purposeful racial discrimination (each of defense counsel's strikes had been of white jurors) was reversed by the appellate court. That court held that the inference that defense counsel had drawn was a "permissible, persuasive, race-neutral inference in the context of a peremptory challenge under the Equal Protection Clause." See also United States v. Hinton, 94 F.3d 396, 397 (7th Cir. 1996) (striking juror because he wore a "Malcolm X" hat was a race-neutral reason; "[t]he prosecutor's focus was on a perceived militant anti-government aspect of Malcolm X, not his race"); United States v. Payne, 962 F.2d 1228, 1233 (6th Cir.), cert. denied, 506 U.S. 1033 (1992) (striking juror because of association with "black activist groups" was not a race-based reason); see also State v. Pepper, 855 S.W.2d 500, 503 (Mo. Ct. App. 1993) (striking black postal worker based on political beliefs inferentially held by all postal workers was a race-neutral explanation).

To be sure, further inquiry could have been made of the juror. However, the Supreme Court made it clear in a per curiam summary reversal that the prosecutor's explanation need not be "persuasive or even plausible. . . . . [T]he issue is the facial validity of the prosecutor's explanation. " Purkett, supra, 514 U.S. at 765. At this second stage of the Batson inquiry, the issue is not whether the reason makes sense but whether on its face, it denies equal protection. Id. at 769 It is not until the third step that the persuasiveness of the justification may become relevant - the step where the trial court must determine the genuineness of the explanation and where an "implausible or fantastic" explanation may well be found a pretext for purposeful discrimination. Id. at 768. That is not the case before us. In sum, on this record, we cannot depart from the "great deference" granted to the trial court and to its effective determination that the strike, based upon an inferred allegiance to Louis Farrakhan, related to a genuine race-neutral concern regarding the potential juror's desire to hamstring any possible conviction.

III. Alleged Trial Errors

A. Giglio, Brady, and Jencks Act Violations

Appellants next contend that the prosecutor committed various Brady, *fn14 Giglio, *fn15 and Jencks Act *fn16 violations by failing to adequately disclose evidence. Brady and Giglio require the government to disclose evidence which is both exculpatory to a defendant and material to guilt or innocence, including "[e]vidence that an accused can use to impeach a government witness," Brown v. United States, 726 A.2d 149, 156 n.3 (D.C. 1999), cert. denied, 528 U.S. 1130 (2000), and prohibit prosecutors from knowingly putting forth false testimony, Bruce v. United States, 617 A.2d 986, 992 (D.C. 1992), cert. denied, 507 U.S. 1042 (1993).

Even assuming nondisclosure, however, the evidence is not "material" and reversal is not warranted "absent a further showing that `disclosure of the suppressed evidence to competent counsel would have made a different result reasonably probable,'" Farley v. United States, 694 A.2d 887, 889 (D.C. 1997) (quoting Kyles v. Whitley, 514 U.S. 419, 441 (1995)) (exculpatory evidence under Brady), aff'd after remand, 767 A.2d 225 (2001); United States v. Huddleston, 194 F.3d 214, 222 (1st Cir. 1999) (impeachment evidence under Giglio), or unless "`the false testimony could . . . in any reasonable likelihood have affected the judgment of the jury,'" McNeil v. United States, 465 A.2d 807, 810 (D.C. 1983) (quoting Giglio, supra, 405 U.S. at 154). "In this context, `[a] "reasonable probability" is a probability sufficient to undermine confidence in the outcome.'" Farley, supra, 694 A.2d at 889 (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). We evaluate the materiality of the evidence at issue on a cumulative basis. Kyles, supra, 514 U.S. at 436. However, delayed disclosure of exculpatory or impeachment evidence (as opposed to an outright failure to disclose) will require reversal only if an appellant establishes prejudice from the delay itself. See Bellanger v. United States, 548 A.2d 501, 503 & n.6 (D.C. 1988) (citing United States v. Ingraldi, 793 F.2d 408, 411-12 (1st Cir. 1986) (due process requirements met where Brady material disclosed after beginning of trial, if accused not prejudiced in preparing and presenting his case)); see also Norris v. Schotten, 146 F.3d 314, 334 (6th Cir.), cert. denied, 525 U.S. 935 (1998) (Brady does not generally apply to "a tardy disclosure" but rather to "a complete failure to disclose").

On the other hand, the Jencks Act relates to statements made by government witnesses, regardless of their exculpatory nature or value as impeachment material.

The Jencks Act imposes an affirmative duty upon the government to preserve statements of its witnesses and, on motion of the defendant, to disclose and produce those statements. The Act defines "statement" as either "a written statement made by [a] witness and signed or otherwise adopted or approved by [the witness]" or a "recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by [a] witness and recorded contemporaneously with the making of [the] oral statement." McGriff v. United States, 705 A.2d 282, 287 (D.C. 1997) (quoting 18 U.S.C. § 3500(e)(1) & (2)), cert. denied, 523 U.S. 1086 (1998).

A violation of this act will not result in automatic sanctions; rather, "the administration of the Jencks Act must be entrusted to the `good sense and experience' of the trial judges subject to `appropriately limited review of appellate courts.'" Id. (quoting United States v. Augenblick, 393 U.S. 348, 355(1969)) (other internal quotations and citations omitted). "Even though the Jencks Act provides for sanctions when the statement of a witness is not produced, the choice of a sanction is entirely within the trial court's discretion, as is the decision whether to impose any sanction at all. We will not reverse a trial court ruling under the Jencks Act unless that discretion has been abused." Id.

1. Delayed Disclosure

Over the term of the lengthy trial, appellants raised numerous claims under these doctrines. The trial court carefully examined each claimed violation, and, where necessary, took steps to either sanction the prosecution or rectify the alleged inequity. On more than several occasions, the trial court held hearings to determine the extent of any violations, and whether or not sanctions would follow. On two occasions, the trial court sanctioned the prosecutor for discovery violations and informed the jury of the sanctions and the reasons behind them -- namely, that the prosecutor had failed to disclose evidence as required by law. *fn17 In the relatively rare instances where the trial court ruled that alleged Brady or Giglio material need not be disclosed, appellants were nevertheless not prejudiced because the jury was in fact apprised of claimed exculpations and the witnesses' motives to lie. Although much of the material requested by the appellants was not disclosed initially, the majority of the requested material was turned over to appellants during trial. More importantly, appellants were able to employ those truantly disclosed materials in their cross-examinations of the relevant witnesses. *fn18 Taken togther, these factors rebut the necessary demonstration that appellants were prejudiced, or that the court abused its discretion. Looking at the claims of abuse in this light, we find no reversible error.

Of the numerous claimed violations, the majority represented late disclosure of Brady and Giglio material. Appellants' counsel were able to exploit this material as part of their defense, and they are unable to show reversible prejudice arising from the tardy disclosure -- they point to no difference earlier disclosures would have made in their respective cases, with the exception of their opening arguments. Where, as here, the defense was able to eventually use Brady evidence to cross-examine government witnesses, the requisite prejudice is lacking, and we will not disturb the trial court's ruling. *fn19 See Edelen v. United States, 627 A.2d 968, 972 (D.C. 1993) ("[T]he trial judge was on the scene. He was in a far better position than we are to assess the atmospherics of the case and to determine whether, given all that had occurred, [the] defense was appreciably prejudiced by any delay in the [Brady] disclosure . . . ."); see also, e.g., United States v. Scarborough, 128 F.3d 1373, 1376 (10th Cir. 1997) ("As long as ultimate disclosure is made before it is too late for the defendant[] to make use of any benefits of the evidence, Due Process is satisfied.") (internal quotations omitted).

Appellants nevertheless argue that the cumulative effect of such "last minute" disclosures undermined the credibility of the prosecutor. This, they argue, indirectly impinged upon the prosecutor's assurances that certain witnesses were not parties to extensive agreements with the government, who in turn gave false testimony against appellants. Appellants, however, misstate their argument by relying on the cumulative effect the alleged Brady violations had on the prosecutor's credibility. As Kyles makes clear, the relevant inquiry is whether the cumulative effect of suppressed Brady evidence raises a reasonable probability that disclosure would have produced a different result, not whether a prosecutor's repeatedly late disclosures under Brady might otherwise affect the prosecutor's credibility on other matters. 514 U.S. at 421-22. The prosecutor's credibility is not Brady evidence. Without a demonstration of how the late disclosure of the evidence prejudiced their case, the prosecutor's consistently late disclosures cannot form the basis for reversal.

2. Nondisclosure

Appellants also point to other situations where alleged Brady, Giglio, and Jencks material was not disclosed at all during trial. We need not delve too deeply into a discussion of whether or not the various materials should have been disclosed under either Brady or Giglio because appellants have failed to demonstrate the reasonable probability of a different outcome flowing from that evidence.

First, appellants claim that the government was required to produce material relating to the government's favorable treatment of witness Kalvin Bears in exchange for his testimony. *fn20 After a bench conference on the issue, the trial court denied the Giglio motion of appellants' counsel, as well as the request to hold a hearing as to whether Bears' conviction for utterance was dismissed as a direct result of the prosecutor's intervention. Notwithstanding the trial court's denial, the jury heard substantial evidence of the favorable treatment the government gave Bears, and thus the potential motive to fabricate, as well as his extensive criminal record and prior history of drug abuse.

On direct examination, Bears admitted that he was arrested nine times, and convicted five times, including convictions for armed robbery, and possession of cocaine with intent to distribute. *fn21 He also testified to both using and distributing illegal substances, and that he was a crack addict at the time of the relevant events. *fn22 Bears informed the jury that he had recently been arrested on one charge of possession of cocaine with intent to distribute (PWID), one charge of attempted PWID, and one charge of carrying a pistol without a license, that he had pleaded guilty to the charges, and that he faced a mandatory minimum five year sentence up to a maximum of life in prison. He further admitted that the sentencing had been put off, and that he had entered into a limited use immunity agreement with the government in exchange for testifying. *fn23 That agreement was entered into evidence.

On cross-examination, Bears denied that the government agreed not to charge him in the murder plot. However, he admitted that he had been informed by the government that he could have been charged, but after he agreed to testify in this case, charges were never brought against him. Likewise, Bears denied that he was placed in a halfway house, rather than prison, as a result of his testifying, but nevertheless admitted that he was incarcerated prior to his involvement with the government and was in fact placed in a halfway house where he received weekend passes, on the basis of an unopposed release motion after he testified before the grand jury. Bears also admitted that he escaped from the halfway house but was never charged with a crime for that action. *fn24

Bears was cross-examined with the aid of a transcript demonstrating that the prosecutor in this case appeared at Bears' sentencing on his then-pending charges, and that another prosecutor, at another sentencing hearing, indicated that Bears may have been forced into a plea. He was cross-examined on the basis of another transcript wherein, at a sentencing hearing for the PWID and pistol charges, Bears' attorney represented in open court that because of his cooperation in this case, he might make a motion to withdraw his plea. Furthermore, Bears admitted that, after testifying before the grand jury, he was arrested for uttering (stealing a check), that following the arrest he had called the prosecutor in this case, and that the charge was subsequently dropped ("no papered"). He was cross-examined extensively regarding his possible bias arising from this treatment. While disclosure of the allegedly explicit deals, if they indeed existed, was required by Brady and Giglio, the presentation of the witness to the jury demonstrated something far less than an unblemished facade. The jury was markedly exposed to the witness's potential for bias and lack of credibility. See Johnson v. United States, 537 A.2d 555, 559-60 (D.C. 1988) ("In light of . . . both the jury's and defense counsel's independent awareness of the circumstances implying the witness' bias and questionable credibility, we find no reasonable probability that disclosure of the [alleged Brady material] would have affected the outcome of appellant's trial."); Hawthorne v. United States, 504 A.2d 580, 592 (D.C.) (in evaluating an alleged Giglio violation, "[w]e . . . may consider the fact that [the witness's] credibility was successfully undermined in other ways"), cert. denied, 479 U.S. 992 (1986).

Second, appellants claim that relevant Giglio and Brady material was not produced with respect to government witness Ida Stanford. Specifically, they contend that the government intervened on behalf of Stanford to reduce a mandatory twenty year sentence on an unrelated charge to probation, among other claims. *fn25 However, in light of the trial testimony, appellants fail to adequately demonstrate a reasonable probability that such disclosures undermine the verdict.

Like Bears, the jury was informed of Stanford's extensive criminal past, including her involvement in drugs and arms and her role as a "very large drug dealer in this town." She also admitted that she had lied under oath in a previous trial. She testified further that she had entered an agreement with the government, whereby her cooperation would be reported to the sentencing judge in her pending case. She stated that, based on the subsequent report from the government regarding her cooperation, "the [sentencing] Judge [could] disregard my guidelines and not sentence me to the mandatory 20 years." She explained that the government was not required to file a guidelines departure letter on her behalf, and that if one was filed, the sentencing judge need not follow it. However, she admitted that if she broke the terms of her agreement "the departure letter provision" would be "annulled."

After she testified, Stanford did receive a departure letter and was sentenced to only five years of probation. Appellants argue that the failure to disclose the post-testimony departure violated Giglio in light of the evidence that the government had pre-committed itself to assist the witness. However, Stanford was cross-examined extensively on the issue of the government's involvement in her pending sentencing, including the fact that her sentencing was continued until after her testimony in this case. The trial court found that the post-testimony departure letter given by the government represented nothing more than a strategic decision to forego action until after her testimony. In any event, we fail to find the necessary prejudice in any difference between an admitted perjurer and drug dealer who faces the possibility of a departure letter being sent on her behalf in light of her testimony, and an admitted perjurer and drug dealer who is guaranteed a departure letter prior to testifying. *fn26 See Johnson, supra, 537 A.2d at 559-60; Hawthorne, supra, 504 A.2d at 592. *fn27 Moreover, the mere fact that a departure letter was, in fact, sent after her testimony does not indicate that Stanford was lying, but rather supports her version of the agreement.

Likewise, appellants have failed to articulate any reversible prejudice from the other claims of failure to disclose required discovery material. Appellants used a dismissed motion for sanctions against the prosecutor to cross-examine Lewis Yancey regarding an alleged meeting with the prosecutor outside the presence of his attorney. Even though an audio tape of Yancey indicating that the gun used by Card may have belonged to someone else was not disclosed, appellants fail to address how the ownership of the murder weapon was material to any issue in the case. With regard to witness James Craille, although his prior inconsistent statements were not revealed, Craille nevertheless testified that he had previously made the false statements. Even without disclosure of alleged contact visits, appellants' counsel acknowledged that Craille "was substantially impeached" in cross-examination.

3. Inadequate Sanction

Finally, Edwards' claim that the trial court gave an inadequate sanction for a Jencks Act violation in relation to the government's failure to disclose the grand jury testimony of Detective Bradley fails. Sanctions for such actions are left to the discretion of the trial judge. See McGriff, supra, 705 A.2d at 287. We do not think the court's adverse-inference instruction to the jury informing them of the government's failure was an abuse or an otherwise inadequate sanction, especially where appellant was afforded the opportunity to effectively and extensively cross-examine the detective with the previously undisclosed testimony. See Woodall v. United States, 684 A.2d 1258, 1265 (D.C. 1996) (absent "gross negligence" or "significant prejudice" in failing to preserve Jencks material, court's decision not to strike testimony was not an abuse of discretion), cert. denied, 520 U.S. 1130 (1997); Williams v. United States, 385 A.2d 760, 763 (D.C. 1978) (affirming trial court's refusal to strike testimony despite evidence that police officer deliberately destroyed Jencks material).

B. Napue Violation

"A prosecutor may not knowingly present false evidence or permit evidence, known to be false, to go uncorrected . . . . A defendant is accordingly entitled to a new trial if there is any reasonable likelihood that false testimony could have affected the judgment of the jury." Felder v. United States, 595 A.2d 974, 977 (D.C. 1991) (citing Napue v. Illinois, 360 U.S. 264, 271 (1959)) (other internal citations and quotations omitted). *fn28 Under this theory, appellants allege that the testimony of Stanford and Bears was not only false and misleading, but "carefully crafted" by the prosecutor as such. To succeed in this claim, appellants bear the burden of establishing that: (1) the prosecution's case included false testimony; (2) the prosecution knew, or should have known, of the falsehood; and (3) that the false testimony could have affected the judgment of the jury. See Napue, supra, 360 U.S. at 269-71; United States v. Griley, 814 F.2d 967, 971 (4th Cir. 1987).

In an effort to expose Stanford's false testimony, appellants rely on the fact that after Stanford testified, her INS detainer was lifted, a sentencing departure letter was filed on her behalf, and she only received probation on her pending charges, even though on the stand she had denied that she was promised particular leniency above a possible departure letter. However, the prosecutor, before the trial judge, denied that the government had unconditionally agreed to file a departure letter or to intercede with regard to her deportation status. In addition, Stanford had already testified to the possibility of future government intervention on her behalf in terms of her pending sentences. See supra text accompanying notes 23-25. Finally, we note that the "[i]mposition of [a lesser] sentence does not, of itself, establish that [a witness] had been promised preferential treatment by the government." Townsend v. United States, 512 A.2d 994, 999 (D.C. 1986), cert. denied, 481 U.S. 1052 (1987). Thus, Stanford's eventual sentence and her immigration posture alone cannot suffice as evidence of false or misleading testimony. Because appellants have failed to demonstrate that Stanford's testimony was actually false or misleading, the claimed Napue violation fails.

In asserting the Napue violation in the context of Bears' testimony, appellants point to Bears' denial that the government promised any favors to him other than use immunity, including his inability to remember whether the prosecutor in this case appeared at his sentencing. Appellants rely on transcripts which show that the prosecutor had appeared at one of Bears' prior sentencing hearings, as well the fact that, after he testified, Bears received a lenient sentence. However, although the prosecutor admitted his presence at Bears' prior sentencing hearing, he explained that the government had taken no affirmative action to reduce Bears' sentence. Indeed, the transcripts which assertedly evidence promises of government involvement are equivocal, neither squarely contradicting the prosecutor or Bears' testimony, nor presenting any direct evidence of an agreement beyond the immunity to which Bears testified. The fact that Bears did eventually receive a reduced sentence is insufficient to overcome the trial court's acceptance of the government's assurance that no other agreement had been reached. See Townsend, supra, 512 A.2d at 999 (lesser sentence is not per se evidence of agreement); Brown v. United States, 590 A.2d 1008, 1020 (D.C. 1991) ("It is incumbent upon us, in this case as in any other, to eschew appellate fact-finding."); Dickerson v. United States, 677 A.2d 509, 512 (D.C. 1996) ("We . . . will not disturb the trial court's factual findings unless they are clearly erroneous or not supported by the record."). In any event, even if we were to assume that Bears' testimony was indeed inaccurate in some particular, the untruthfulness was harmless in light of his testimony as a whole, which intimated to the jury significant government involvement in Bears' past and pending cases and exposed significant credibility issues on cross-examination. See Hawthorne, supra, 504 A.2d at 593 (based on substantial evidence of past drug use, among other factors, defense was "successful, to a considerable degree, in impeaching [the witness] as to both bias . . . and as to credibility in general," and " failure to correct [the witness's] false testimony . . . therefore, could not, in any reasonable likelihood, have affected the judgment of the jury").

C. Edwards' Confession

Appellant Edwards argues that the trial court erroneously admitted his confession for three reasons. First, he claims that the late disclosure of Brady material -- his own confession -- adversely affected the outcome of the suppression hearing. Second, he argues that the trial court, in response to the government's late disclosure of grand jury testimony, erroneously failed to strike the police detective's testimony. Third, he alleges error in the trial court's refusal to reconsider its suppression ruling despite new evidence of Edwards' status as a cocaine addict at the time of his confession.

As previously explained, Edwards' statement made to a defense investigator was not Brady material, in that he either knew, or should have known of its existence, and knew of the "essential facts permitting him to take advantage of any exculpatory evidence." See supra note 16; Rector, supra, 120 F.3d at 560. Likewise, the trial court's adverse-inference instruction was an adequate response to the failure to timely disclose the detective's grand jury testimony. See supra Part III, A.

Finally, while newly surfaced evidence may give rise to the need for reconsideration of a pretrial suppression decision, see Scales v. United States, 687 A.2d 927, 937 (D.C. 1996), and evidence of drug use is relevant to the determination of voluntariness, see (Cullen) Byrd v. United States, 618 A.2d 596, 598 (D.C. 1992), the "new evidence" here was far from significant. Edwards claims that during trial the officer suggested that the confession may have been affected by Edwards' illegal drug use, even though at the suppression hearing the officer testified that Edwards was not under the influence of drugs. In fact, at trial, the officer testified only that Edwards was an alleged drug addict --though the officer had no first hand knowledge of this fact -- and reiterated that he saw no evidence of drug use at the time of confession. The trial court's initial ruling on the suppression of the confession was therefore still adequately supported by record evidence that Edwards was not under the influence of any type of substance at the time of the confession. Moreover, at trial, appellant's counsel extensively cross-examined the officer, using his prior grand jury testimony, regarding Edwards physical and mental state at the time of the confession, and the jury was specifically instructed to consider the confession, if and only if it determined that it was voluntarily given. *fn29

IV. Merger

Appellant Rice argues that his felony murder conviction merges with the underlying felony, in this case kidnaping. Similarly, appellants Card and Edwards argue that their felony murder convictions merge with their first degree murder convictions. We agree and the government concedes that the sentences merge. Catlett v. United States, 545 A.2d 1202, 1219 (D.C. 1988), cert. denied, 488 U.S. 1017 (1989) (felony murder merges with underlying felony); (Samuel) Byrd v. United States, 510 A.2d 1035, 1036-37 (D.C. 1986) (en banc) (first degree premeditated murder and first degree felony murder merge). We therefore remand the convictions to the trial court for the limited purpose of vacating Rice's kidnaping conviction, and Card's and Edwards' felony murder convictions, and for resentencing. In all other respects, the appellants' convictions are Affirmed.

Ruiz, Associate Judge, dissenting in part, concurring in part: *fn30

Upon my review of the record, the issue of improper discrimination on the basis of religious affiliation in the exercise of peremptory challenges was raised with the trial court with sufficient particularity and timeliness, and the trial court rejected it on the merits. Thus, it is properly before the court for full, not plain error, review. I would hold that the equal protection doctrine prohibits peremptory strikes used to discriminate on the basis of religious affiliation, and that where there is a prima facie case that religious affiliation is the reason for a strike, the trial court must, at a minimum, conduct voir dire to determine whether the prospective juror's religious beliefs, rather than religious affiliation, disqualify that person from serving on the particular jury. I conclude that in this case a prima facie case was made that the prosecutor exercised a peremptory strike to eliminate a potential juror on the basis of his presumed affiliation with the Nation of Islam. As no voir dire was conducted to inquire into whether he was in fact so affiliated, and, if so, whether his beliefs disqualified him from serving as a juror in the case, the peremptory strike at issue impermissibly discriminated in the jury selection process. This constitutes per se reversible error. See Arizona v. Fulminante, 499 U.S. 279, 306-312 (1991).

The Religion-Based Challenge to the Peremptory Strike was Preserved for Appeal.

As the majority correctly observes, defense counsel's *fn31 challenges to the prosecutor's peremptory strikes were initially and primarily focused on counsel's perception that the prosecutor's peremptory strikes revealed a systematic effort to exclude young black males from the jury. As voir dire progressed, however, and the prosecutor explained his strikes, defense counsel's arguments evolved and focused on the challenge based on religious affiliation, and in no uncertain terms objected to the strike of Juror 333 on such basis.

The majority bases its conclusion that only plain error review is necessary on the grounds that defense counsel's objections were untimely and not sufficiently precise to alert the trial judge to the legal basis for the challenge. I disagree. First, the timing of an objection to a peremptory strike cannot be made before the reason for the strike is revealed. Here, the religious basis for the strike of Juror 333 surfaced well into the process, as the prosecutor was trying to explain that the strike of that juror was not race-based. In making that explanation, the prosecutor for the first time stated that the reason for the strike was that he believed Juror 333 looked like "those people who follow Louis Farrakhan who could not be fair to the Government." This was immediately followed by defense counsel's objection to the court that "He [the prosecutor] could have asked him, Your Honor." *fn32

The trial court then ruled that the prosecutor's strikes were not race-based, noting, however, that the prosecutor's race-neutral explanation for striking Juror 333 was not "based on facts, observations and information and responses obtained during the voir dire," but on the prosecutor's "gut if you will reaction and he cited particularly the bow tie, the close cropped hair and other issues." The trial court concluded that "[c]onsidering the fact that all other responses have been adequately made by [the prosecutor], I have to allow him that 1 on his gut feeling." *fn33

After completing the last two rounds of peremptory challenges and discussing certain other new matters brought up by the prospective jurors on the panel, the trial judge, without objection, released the remaining venire and the proceedings broke for a much-delayed lunch. Immediately after the lunch break, the trial judge returned to the issue of Batson challenges with respect to the peremptory strike of Juror 333. At that point, defense counsel clearly made alternative arguments for the challenge of the prosecutor's peremptory strike of Juror 333: 1) the prosecutor's explanation for striking Juror 333 on the basis of his appearance (bow tie, closely cropped hair and white shirt) was pretextual because Juror 1, who had not been struck, also had close cropped hair and wore a bow tie, and 2) the race-neutral reason given by the prosecutor for striking Juror 333, that he was a Muslim, was itself improper. *fn34 Other defense counsel joined the objection, emphasizing the impermissible religious basis for the strike *fn35 and, at one point, further suggesting that, with respect to Islam, discrimination on the basis of religion also amounted to race discrimination. *fn36 Based on this record, I conclude that defense counsel objected that the strikes were impermissible as soon as the prosecutor's attempt to give a race-neutral explanation for his strikes revealed a religious basis. As these objections were made before the jury was sworn, they were timely. See Tursio v. United States, 634 A.2d 1205, 1209 (D.C. 1993).

Second, defense counsel's objections were of such nature and specificity as to put the issue squarely before the trial court. Although, at the time of trial in this case, neither the Supreme Court nor this court had extended Batson beyond race-based challenges, we had given strong indications supporting that proposition. In a case in which the defendant had requested that all Catholics be stricken from the jury on the ground that no Catholic could fairly judge the credibility of the priests who were the victims of the crime, we held that

[a] prospective juror who is otherwise competent to serve on a jury may not be disqualified merely because of religious belief or status. The mere potentiality for bias based on religious affiliation cannot justify the elimination of a prospective juror. Only the demonstration of an actual bias may provide such a justification. Coleman v. United States, 379 A.2d 951, 953 (D.C. 1977) (citation omitted).

We also adopted the same argument that appellant makes in this case, that the position that all members of a religion should be excluded is "`suspect' under the `equal protection' provisions of the Constitution." Id. at 954 (citing Ristaino v. Ross, 424 U.S. 589, 596 n.8 (1976)). Defense counsel in this case, rather presciently, used the term Batson "generically," much as we do today, as encompassing various types of impermissible discrimination in the jury selection process, not as referring solely to race. *fn37 No doubt the majority is correct that defense counsel did not present the trial court with the "finely honed" argument presented on appeal. That is true in most cases, as few trial counsel have the luxury of time and reflection, in the heat of an ongoing pre-trial proceeding, that is available on appeal. Defense counsel were reacting on the spot to the prosecutor's unfolding explanations. It would be difficult, however, to miss the intensity of counsel's objections, which not only castigated the prosecutor, but took the unusual, and perhaps risky, additional step of expressing "shock" at the trial court's view of the law on the subject of religion-based peremptory strikes. Moreover, the legal basis for counsel's challenges was broadly presented to the trial court. Counsel's objections were framed in terms of references to the "Muslim religion or Muslim practice," "people of the Muslim religion" and "belong[ing] to a certain religious group," see supra note 5, and counsel argued that the strike was "because of their religious views or . . . presume[d] . . . views," see supra note 7. Counsel cast their challenges to the religion-based strike in terms of its involving a "suspect" category, a clear indication of the equal protection basis for their claim. See supra note 7. They also made clear that their objections were based in part on the First Amendment. See supra note 5. Further, counsel at several times distinguished between impermissible discrimination based on religious affiliation and religious beliefs that could justify a strike, see supra notes 5, 6, & 7, noting that the proper procedure would be to inquire about the juror's religious affiliation and, more importantly, his religious beliefs to ascertain whether they are incompatible with jury service. *fn38

Finally, the trial court's ruling shows that the judge was aware that counsel's objections were not limited to race. Upon hearing the various defense counsel's race and religion-based challenges to the prosecutor's peremptory strikes, the trial court ruled:

With respect to the strikes about which [the prosecutor] was asked to give his explanation, if with 1 exception I indicated that [the prosecutor's] explanation was appropriate and demonstrated a justifiable reason for the striking of those jurors with his peremptory challenges.

With 1 juror [no. 333], I indicated that the justification given by [the prosecutor] was less than acceptable. However, out of 30 strikes, I am allowing [the prosecutor] to have 1 gut feeling on a strike. Even though the justification was less than acceptable with respect to that one juror, I am permitting it.

The trial court's clear statement that the prosecutor's justification for striking Juror 333 was "less than acceptable" must be understood in the context of the race and religion-based challenges made by defense counsel. The trial court definitely ruled that the strike was not race-based. *fn39 Having satisfied the trial judge that there was no racial animus to the peremptory strike, the prosecutor would have had no need for further explanation of the strike unless it was understood that there was another basis for the challenge, different than the one based on race. Therefore, the trial court's statement that the prosecutor's explanation was "less than acceptable" must have referred to the challenge that the strike was impermissibly based on religious affiliation. The trial court decided, nonetheless, to let one out of thirty strikes go without further scrutiny "[e]ven though the justification was less than acceptable with respect to that one juror." *fn40 On this record, therefore, I conclude that the objection to a religion-based peremptory strike was presented to and decided by the trial court, and is reviewable on the merits on appeal.

The Peremptory Strike Based on Presumed Religious Affiliation and Beliefs is Unconstitutional

The Equal Protection Clause of the Fourteenth Amendment (as well as the equal protection doctrine embodied in the Due Process Clause of the Fifth Amendment) prohibits the state from discriminating on the basis of suspect classifications, such as religious affiliation, which is protected by the First Amendment. See Plyler v. Doe, 457 U.S. 202, 216-17 (1982); Employment Div., Dep't of Human Res. of Oregon v. Smith, 494 U.S. 872, 886 n.3 (1990). In Batson and its progeny, the Supreme Court has recognized that the exclusion of a juror based on race, also a suspect classification, offends the equal protection rights of the excluded juror and undermines "public confidence in the fairness of our system of justice." See Batson, 476 U.S. at 87. The Supreme Court has extended Batson's reasoning to exclusion of jurors based on sex, which is accorded "heightened" scrutiny, somewhat less than the scrutiny required for exclusion based on a suspect classification. See J.E.B. v. Alabama, 511 U.S. 127, 134 (1994). As the Court held in J.E.B.,

Today we reaffirm what, by now, should be axiomatic:

Intentional discrimination on the basis of gender by state actors violates the Equal Protection Clause, particularly where, as here, the discrimination serves to ratify and perpetuate invidious, archaic, and overbroad stereotypes about the relative abilities of men and women. Id. at 130-131.

The same reasoning applies to exclusion based on religious affiliation. See United States v. Somerstein, 959 F. Supp. 592, 595 (E.D.N.Y. 1997) (Batson applies to religious discrimination but "there must be a determination as to whether the religion of the juror is relevant to the issues of the case . . . only if the religion of the jurors is directly relevant to the crimes at issue, can such a [strike] be proper."); People v. Martin, 75 Cal. Rptr. 2d 147, 151 (Cal. Ct. App. 1998) (Batson extends to religious discrimination, but a "peremptory challenge of a juror on the basis of the juror's relevant personal values is not improper even though those views may be founded in the juror's religious beliefs."); Connecticut v. Hodge, 726 A.2d 531, 550 (Conn. 1999) (peremptory challenges based on religious affiliation are unconstitutional), cert. denied, 528 U.S. 969 (1999); North Carolina v. Eason, 445 S.E.2d 917, 923 (N.C. 1994) (peremptory strike legitimate when the prosecutor inquired how religious beliefs, not affiliation, might affect ability to follow law), cert. denied, 513 U.S. 1096 (1995); United States v. Stafford, 136 F.3d 1109, 1114 (7th Cir. 1998) (noting the necessity "to distinguish among religious affiliation, a religion's general tenets, and a specific religious belief"), cert. denied, 525 U.S. 849 (1998). But see Casarez v. State, 913 S.W. 2d 468, 492 (Tex. Crim. App. 1995) (refusing to extend Batson to religious affiliation "[b]ecause all members of the group share the same faith by definition, it is not unjust to attribute beliefs characteristic of the faith to all [of them]"); State v. Davis, 504 N.W. 2d 767, 771 (Minn. 1993) (refusing to extend Batson to religious affiliation "because religious bigotry in the use of the peremptory challenge is not as prevalent, or flagrant, or historically ingrained in the jury selection process as is race"), cert. denied, 511 U.S. 1115 (1994).

As in J.E.B., the record in this case shows that Juror 333 was excluded, not for any substantive reason that disqualified him from the jury, but based entirely on the prosecutor's and trial court's assumption that, because of his haircut (cropped) and mode of dress (white shirt and bow tie), the young black man must be a Muslim and a follower of Louis Farrakhan, who, in the words of the prosecutor, "could not be fair to the government." The prosecutor acknowledged that there was "no indication on the record" of Juror 333's religious affiliation, much less his beliefs. See supra note 3. Such judgment about a person's beliefs based on nothing more than supposition drawn from superficial characteristics is the kind of rank discrimination that the Supreme Court said in J.E.B. is "axiomatic," violating the Constitution's guarantee of equal protection because it fails the relevant constitutional standard of "whether discrimination on the basis of gender in jury selection substantially furthers the State's legitimate interest in achieving a fair and impartial trial." J.E.B., 511 U.S. at 136. In the case of "suspect" classifications such as religion, the standard is even higher: the state must show a "compelling interest." See Employment Div., Dep't of Human Res. of Oregon, 494 U.S. at 886 n.3.

Particularly in this case, where the prosecutor's explanations for striking Juror 333 slipped and slid between two suspect classifications, race and religion, and where religion-based discrimination based on membership in the Nation of Islam necessarily implied race as well, the trial court should have been particularly alert to the potential for unconstitutional discrimination in jury selection. Cf. J.E.B., 511 U.S. at 145 ("Failing to provide jurors the same protection against gender discrimination as race discrimination could frustrate the purpose of Batson itself. Because gender and race are overlapping categories, gender can be used as a pretext for racial discrimination."). At least one of the defendants in this case was not only Black, but also Muslim. See supra note 5; cf. Batson, 176 U.S. at 85-86 (stating that defendant's right to equal protection is violated by purposeful racial discrimination in the selection of the venire). The challenges to the prosecutor's strike were strenuously and timely pressed by defense counsel, making clear that, if left unexplored, the strike could call into question the ensuing trial. Cf. Baxter, 640 A.2d at 717 n.3 (reiterating "the importance, in cases of this kind, of alerting the judge to the issue as soon as a pattern allegedly emerges, so that a meaningful record can be made.").

It is always troubling to overturn a conviction that results from a crime as serious as the one at issue here, after a significant investment of judicial, prosecutorial and defense resources. The proper course was to address the issue squarely in the trial court, by questioning the potential juror to establish, first, whether he is a member of the presumed religious group, and, if so, whether his beliefs are such that they disqualify him from serving on this particular jury. As this was not done, and a prima facie case has been made that Juror 333 was excluded based on his presumed membership in the Nation of Islam, reversal is required.


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