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
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.
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.
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 ...