January 19, 2006
EDWARD L. ROBINSON, APPELLANT,
UNITED STATES, APPELLEE.
Appeal from the Superior Court of the District of Columbia (No. F-8993-94) Hon. Reggie B. Walton, Trial Judge.
The opinion of the court was delivered by: Glickman, Associate Judge
Argued October 28, 2004
Before SCHWELB, FARRELL and GLICKMAN, Associate Judges.
A jury convicted appellant Edward L. Robinson of two first-degree felony and premeditated murders while armed, along with armed robbery, armed kidnaping, and related offenses. The trial judge sentenced Robinson to life imprisonment without parole for the murders and lesser prison terms for the other crimes. The main issue in this appeal is whether Robinson made a prima facie showing of unconstitutional discrimination in the selection of his jury, necessitating further judicial inquiry, when he objected to the prosecutor's peremptory challenge of a young black male juror who had answered no questions during the voir dire. While we agree with Robinson that a peremptory challenge motivated even in part by considerations of race or gender is contrary to the principles of equal protection enunciated in Batson v. Kentucky, 476 U.S. 79 (1986), and J.E.B. v. Alabama, 511 U.S. 127 (1994), we agree with the trial judge that Robinson did not make a prima facie case of such discrimination. His obligation under Batson to make a prima facie case was not rendered moot, moreover, merely because the government elected to furnish for the record a race- and gender-neutral reason for the strike. Accordingly, as Robinson's other claim of error during his trial is without merit,*fn1 we affirm his convictions, though a remand is necessary for re-sentencing on the murder counts.
A. The Batson Challenge and the Trial Judge's Ruling
Following a lengthy voir dire of the prospective jurors, as the parties readied themselves to exercise their peremptory challenges, the trial judge called counsel for both sides to approach the bench. There the judge cautioned counsel to be mindful of their obligations under Batson and subsequent Supreme Court decisions not to strike jurors on account of their race or gender. If a pattern or other indicia of discrimination emerged, the judge warned, he would intervene and take appropriate measures. Midway through the process, the judge did just that. Remarking that "six of the government's eight strikes have been against blacks and six of the defendant's eight strikes have been against whites," the judge expressed his concern that white jurors were being struck disproportionately and would be entirely excluded from the jury if the pattern continued. (It appears that out of the first thirty-two jurors, eleven were white (and the rest were black), meaning that only three white jurors were left when the judge spoke up.) In response, Robinson's trial counsel*fn2 disclaimed any intent to discriminate and complained that the prosecutor appeared to be aiming his strikes at "young blacks." Observing that age is not a prohibited consideration in jury selection, the judge discounted this charge. With a warning that he would scrutinize the remaining strikes "very carefully," the judge then permitted jury selection to proceed.
All told, the government used its initial ten peremptory challenges to strike six black female, two white female and two black male jurors. For the alternate juror seats, the government exercised an additional strike against a white male. The defense peremptorily struck two black females, four white females, three white males, and one black male, and did not exercise any of its allotted additional strikes.
At the end of the process, the prosecutor offered to make a record of the reasons for each of the government's peremptory strikes, even though the defense had not yet made an express Batson challenge. In response, the judge noted that this court had held in Baxter v. United States, 640 A.2d 714 (D.C. 1994), that peremptory challenges based on age are constitutionally permissible. Acknowledging that Baxter "did not . . . reach the issue of whether a combination of race and age would be a violation" of equal protection, the judge expressed the view that "the mere fact that there may have been some strikes exercised against younger blacks" did not by itself amount to such a constitutional violation.
Robinson's counsel then decided to make the Batson challenge that is at issue in this appeal. While "we have blacks and whites on the jury*fn3 [and] mostly females,*fn4 " counsel stated, "we have nobody who is in my client's demographic group, we have no young black males." Charging that the prosecutor had struck "the only people who could possibly be considered to be in my client's circle," counsel "ask[ed] for an explanation of that." Pressed to be more specific, defense counsel identified two young black male jurors whom the prosecutor had struck, Juror 754 and Juror 627. Robinson's counsel admitted that he could not credibly contest the strike of Juror 754, who during the voir dire had expressed the belief that police in Illinois had murdered his brother. But counsel demanded an explanation for the prosecutor's strike of Juror 627, an 18-year-old black male who worked as a salesperson and lived in Northwest D.C. (not in the vicinity of the charged crimes).
Because this juror had answered no questions during the voir dire, counsel emphasized, the prosecutor knew nothing else about him on which to base his strike. Moreover, counsel added, "there was a pattern," in that eight out of the government's first ten strikes were against black jurors.
Finding these arguments unpersuasive, the trial judge ruled that defense counsel had not made a prima facie showing of intentional discrimination. The judge discounted the significance of the "pattern" that counsel identified, noting that any suggestion that the prosecutor attempted to exclude blacks from the jury was not borne out in light of the jury's ultimate makeup -- that is, the judge stated, "you still have 10 black jurors." The judge accordingly declined to accept the prosecutor's repeated offer to take just a few minutes to state the reasons for his strikes on the record.*fn5 Instead, the judge suggested, the government was free to submit an affidavit or other written statement memorializing those reasons, in case the court of appeals disagreed with his ruling. Three weeks later, as the trial was nearing its end, the government submitted a "Memorandum Regarding Peremptory Strikes," in which it set forth the reasons for each of its strikes. Regarding Juror 627, the Memorandum explained that "[h]e was struck because of his young age. The government was looking for an older and more experienced juror."*fn6 Upon receiving the Memorandum, Robinson did not renew his Batson challenge, and the trial judge did not return to the issue.
1. Mixed Motives and Batson
The Constitution prohibits purposeful discrimination on the basis of race or gender in the exercise of peremptory challenges to prospective jurors. Batson, 476 U.S. at 88 (race); J.E.B., 511 U.S. at 129, 146 (gender).*fn7 "The discriminatory exclusion of even a single juror is objectionable." (Leon) Robinson v. United States, 878 A.2d 1273, 1282 n.18 (D.C. 2005) (citing J.E.B., 511 U.S. at 142, and Little, supra footnote 5, 613 A.2d at 885-86). Preserved claims of unconstitutional discrimination in jury selection are not subject to harmless error analysis; the erroneous rejection of a Batson challenge*fn8 results in a "structural defect" that infects "[t]he entire conduct of the trial from beginning to end," Arizona v. Fulminante, 499 U.S. 279, 309 (1991), and hence is per se reversible. See, e.g., Tankleff v. Senkowski, 135 F.3d 235, 248 (2d Cir. 1998); accord, Card v. United States, 776 A.2d 581, 586 n.3 (D.C. 2001) (citing cases), vacated upon stipulation of dismissal of appeal, 863 A.2d 821 (D.C. 2004) (en banc).
Robinson charged the prosecution with striking Juror 627 for a combination of three reasons: the juror's race, his gender and his age. Although Robinson does not dispute that "age-based peremptory strikes are constitutionally permissible," Baxter, 640 A.2d at 718 n.5, he argues that the strike nonetheless was infirm because it was motivated in part by the impermissible considerations of race and gender.
Past Batson cases in this court mostly have presented uncomplicated, single-motivation claims that potential jurors were excluded solely on account of their race or their gender. Recently, in (Leon) Robinson, we confronted a mixed motivation claim that black female jurors specifically were targeted for exclusion because of their race and their gender. Neither race nor gender alone was sufficient to explain the strikes in (Leon) Robinson, but the two factors in combination did appear sufficient to do so. We held that, just like peremptory strikes motivated by racial or gender bias alone, strikes motivated by those two impermissible reasons in combination are unconstitutional and subject to Batson challenge. 878 A.2d at 1285.
The mixed motivation issue that this court has not previously decided is whether a peremptory strike that is only partially motivated by impermissible bias (racial and/or gender in nature) is also subject to Batson challenge.*fn9 But if, for this court, that precise issue is one of first impression, then logic, common sense, and the decisions of numerous other courts leave us in little doubt as to its proper resolution. As a matter of logic and common sense, who would deny that a policy of, say, striking young black jurors while permitting young white jurors to serve would be racially discriminatory? To justify such strikes as solely age-based would be transparently pretextual, even if the strikes were age-based in part. And "[i]n the realm of constitutional law, whenever challenged action would be unlawful if improperly motivated, the Supreme Court has made it clear that the challenged action is invalid if motivated in part by an impermissible reason. . . ." Howard v. Senkowski, 986 F.2d 24, 26 (2d Cir. 1993). Because no sound reason exists to treat Batson challenges differently from other equal protection challenges that are subject to mixed motivation analysis, the Second Circuit in Howard and subsequently other courts considering the question uniformly have held that "Batson challenges may be brought by defendants who can show that racial [or gender] discrimination was a substantial part of the motivation for a prosecutor's peremptory challenges." Id. at 30.*fn10 This court unequivocally embraced that proposition when it decided the narrower issue presented in (Leon) Robinson. To prove a Batson violation, the court said, a defendant need not show that a prosecutor's strikes were motivated solely by racial or gender bias, to the exclusion of all other considerations. Such a requirement would render Batson a virtual nullity and divorce it from the real world of jury selection, for the motivations behind peremptory strikes are seldom so crystallized and singular. Mixed motives are the norm. However, even if the prosecutor acted from mixed motives, some of which were non-discriminatory, his actions deny equal protection and violate Batson if race or gender influenced his decision. A peremptory challenge may not be based even partially on an unlawful discriminatory reason. 878 A.2d at 1284 (citations omitted). We do not understand the government to be contesting these elementary principles.*fn11
We now hold that even where the exclusion of a potential juror is motivated in substantial part by constitutionally permissible factors (such as the juror's age), the exclusion is a denial of equal protection and a Batson violation if it is partially motivated as well by the juror's race or gender. Accordingly, we hold that appellant Robinson raised a cognizable Batson challenge when he charged the prosecutor with purposefully striking Juror 627 because he was a "young black male." If the prosecutor in fact was influenced by Juror 627's race or gender, the strike was unlawful even if the juror's youth, a legitimate consideration under current law, was the predominant factor in the prosecutor's calculus.*fn12
2. Prima Facie Case
The Supreme Court has outlined a three-step procedure for trial courts to follow in evaluating a defendant's (or other party's) claims of unconstitutional discrimination in the exercise of peremptory challenges. See (Leon) Robinson, 878 A.2d at 1282-83. "First, the defendant must make out a prima facie case 'by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.'" Johnson, supra footnote 5, 125 S.Ct. at 2416 (quoting Batson, 476 U.S. at 93-94). Second, if a prima facie showing is made, the burden shifts to the prosecutor (or other challenged party) to "give a clear and reasonably specific explanation of his legitimate reasons" for the strikes. Batson, 476 U.S. at 98 n.20 (internal quotation marks and citations omitted). Third, if the prosecutor tenders such reasons, the trial court must decide whether the defendant has proved purposeful racial or gender discrimination, a factual question that "comes down to whether the trial court finds the prosecutor's race-neutral [and gender-neutral] explanations to be credible." Miller-El v. Cockrell, 537 U.S. 322, 339 (2003).
The trial judge in this case rejected Robinson's Batson claim on the ground that Robinson did not succeed at the first step in making a prima facie showing of racial or gender discrimination. In asking us to remand for a full hearing on his claim, i.e., performance of step three, Robinson argues that whether he made the requisite prima facie showing at step one is now a moot point because the government proceeded anyway to step two by proffering non-discriminatory reasons for its strikes in a written filing. That action was not enough to render the first step moot, however. It is true that "[o]nce a prosecutor has offered a race-neutral [and gender-neutral] explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot." Hernandez, supra footnote 7, 500 U.S. at 359 (plurality opinion) (emphasis added); see, e.g., Epps v. United States, 683 A.2d 749, 752 (D.C. 1996). Where the trial court has decided the ultimate issue of discrimination on the entire evidentiary record before it, our concern on appeal must be with the correctness of that decision; it would make no sense, for example, to overturn a correct finding of unlawful discrimination merely because the threshold showing that triggered the inquiry was less than adequate. But where, as here, the trial court has pretermitted the inquiry and not reached the ultimate issue, and has instead based its ruling solely on the lack of a prima facie showing, we have only that ruling to review, and notwithstanding the prosecutor's voluntary proffer, nothing has occurred to moot the ruling's operative significance.*fn13 People v. Turner, 878 P.2d 521, 535-36 (Cal. 1994); People v. Bowen, 730 N.Y.S.2d 436 (N.Y. App. Div. 2001). To hold otherwise would be to treat the prosecutor's proffer as a waiver by the government of the trial court's ruling in its favor, and thereby to deter prosecutors from making such proffers. If anything, however, such voluntary proffers should be encouraged, for even when the trial court rejects a defendant's Batson challenge for lack of a prima facie showing, it still may be desirable for the prosecutor contemporaneously to memorialize and disclose the reasons for his or her strikes. The cost of not doing so may be the outright reversal on appeal of the defendant's conviction, rather than a remand for the trial court to proceed to the third step of the Batson inquiry, in the event this court disagrees with the trial court's threshold ruling. (Leon) Robinson, 878 A.2d at 1290 (explaining that the belated third step inquiry "might still be feasible . . . where the prosecutor voluntarily disclosed the reasons for his strikes in spite of the trial court's ruling and the record supports those reasons or otherwise allows them to be tested meaningfully").
Turning, now, to the merits, our review of the trial judge's ruling is de novo, for whether a defendant has made out a prima facie case "is a question of law, namely, whether the voir dire record of the government's peremptory strikes, as shown by the defendant, raised 'the necessary inference of purposeful discrimination.'" Little, supra footnote 5, 613 A.2d at 885 (quoting Batson, 476 U.S. at 96). The burden of establishing a prima facie case "is not onerous," id., "and is satisfied by significantly less than a preponderance of the evidence." (Leon) Robinson, 878 A.2d at 1283 (citing Johnson, supra footnote 5, 125 S.Ct. at 2417). "[R]easonable 'suspicions and inferences' that discrimination 'may have' occurred are enough to trigger the Batson inquiry." Id. (quoting Johnson, 125 S.Ct. at 2418). Thus, a prima facie case of discrimination may rest on "a wide variety of evidence," Johnson, 125 S.Ct. at 2416, notably including (though not limited to) the "pattern" of the prosecutor's strikes in light of the composition of the venire and "the prosecutor's questions and statements during voir dire examination and in exercising his challenges." Batson, 476 U.S. at 97. In considering the pattern of the prosecutor's strikes, it is pertinent to consider both any statistical disparities and discriminatory impacts on the jurors, such as a disproportionate concentration of strikes against jurors of a particular race and/or gender, and any disparate treatment of jurors who are similar except for their race and/or gender. It is also pertinent to consider what, if any, information was elicited from and about the struck jurors by means of the voir dire and other preliminary inquiries. Other relevant circumstances may include the nature of the case and the race or gender of the defendant and other participants in the trial. See generally (Leon) Robinson, 878 A.2d at 1285-88.
According to Robinson, his prima facie case of mixed motive discrimination in the prosecutor's peremptory removal of Juror 627 rests on just two facts: (1) Juror 627 was the only person on the panel who was, like Robinson himself, a young black male (other than Juror 754, who Robinson conceded was struck for valid reasons); and (2) Juror 627 answered no questions during voir dire, so the prosecutor presumably knew nothing about him other than his race, gender, age, place of employment, and residential address.*fn14 This is a bare bones showing; in our view it is too meager a showing, even by the lenient and flexible standard that we apply, to give rise to an inference that the prosecutor struck Juror 627 for reasons, in part, of race and/or gender.
By itself, the exercise of a single strike against the only prospective juror who was simultaneously young, black and male has little probative value; the numbers involved are too small to have statistical significance. Cf. Nelson v. United States, 601 A.2d 582, 591 (D.C. 1991) (stating, in response to contention that prosecutor exercised two strikes to exclude young black males from the jury, that "[e]ven if age or gender were an improper basis for a peremptory challenge -- issues which we do not here decide -- we would be hard-pressed to find a Batson violation in the striking of only two out of ten prospective jurors"). This case is not comparable to (Leon) Robinson, where the prosecutor concentrated his strikes to exclude a total of six black females from the jury.*fn15 878 A.2d at 1280, 1285. It is relevant that Juror 627 answered no questions during the voir dire, see id. at 1287, but the probativity of that fact is lessened in this case because, as Robinson is compelled to concede, the prosecutor was not entirely ignorant of salient information about the juror, such as his age, that might have justified the strike. See Jefferson v. United States, 631 A.2d 13, 16 n.6 (D.C. 1993) (recognizing that "there are many reasons why a particular venire member may be struck, and such reasons are not necessarily revealed by what that person does or does not say during voir dire"). Unlike (Leon) Robinson, this is not a case in which, "[s]o far as the record indicates, the prosecutor knew nothing" of potential consequence about the juror other than his race and gender. (Leon) Robinson, 878 A.2d at 1287. Cf. Morse v. Hanks, 172 F.3d 983, 985 (7th Cir. 1999) (holding that a prima facie case was established where the prosecutor struck the only black juror in the venire and the "perfunctory" voir dire elicited no information that would have explained the strike).
In other respects, Robinson's showing plainly was insufficient. He points us to no pattern of strikes suggestive of racial or gender bias -- no sign, for example, that the prosecutor exercised a disproportionate number of strikes against black male jurors generally, or that the prosecutor failed to strike similarly situated young jurors who were not black or male.*fn16 At trial, Robinson cited the fact that eight of the prosecutor's ten initial strikes were against potential jurors who were black, but that statistic signifies nothing unless it is compared to the proportionate representation of black jurors in the entire panel. Jefferson, 631 A.2d at 16 (explaining that knowledge of "the number of black persons challenged versus the number of white persons challenged  can be relevant only when the court also has knowledge of the percentage of strikes used against a given group and also knowledge of the percentage that that group represented of the total venire panel -- or, more precisely, of the percentage that that group represented of the prospective jurors actually called forward to be accepted or challenged") (internal quotation marks and citation omitted). Given that black jurors represented approximately two-thirds of the potential jurors in this case, and that this predominance was only enhanced by Robinson's peremptory strikes against most of the white jurors, it cannot be said that the prosecutor used his peremptory challenges disproportionately against black jurors. Nor, as the trial judge observed, was there a visible discriminatory impact against black jurors: their proportionate representation on the jury ultimately selected (ten of the twelve jurors were black) exceeded their representation in the venire. Statistical disparities of the magnitude we found in (Leon) Robinson, 878 A.2d at 1285, are absent here.*fn17 Other, alternative evidence indicative of bias or an intent to discriminate, such as suspicious or "disparate questioning" by the prosecutor during voir dire, Miller-El v. Dretke, 125 S.Ct. 2317, 2334 (2005), is likewise missing here.
From the preceding discussion, we conclude as a matter of law that Robinson did not make out a prima facie case of purposeful discrimination against young black male jurors. Not much more would have been needed for a prima facie case to have been made, for the requirements of a prima facie case are comparatively modest. But on the facts presented to the trial judge, we hold that he committed no legal error in rejecting Robinson's Batson challenge at the threshold.
Although we uphold Robinson's convictions, we remand for re-sentencing. Pursuant to D.C. Code § 22-2404.1 (b), (c) (1981),*fn18 the trial judge imposed enhanced sentences on each of the murder counts of life imprisonment without parole (LWOP) on the basis of aggravating circumstances, some of which were neither found by the jury nor coextensive with its verdicts. As the government concedes, re-sentencing therefore is required by our decision in Keels v. United States, 785 A.2d 672, 682-87 (D.C. 2001), which construed the Supreme Court's opinion in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).*fn19 On remand, the trial court must exercise its sentencing discretion with the understanding that Robinson is eligible for LWOP based only on those aggravating circumstances that were coextensive with the jury's verdicts. Keels, 785 A.2d at 686-87.
Additionally, while the trial judge properly imposed a sentence on each count of which Robinson was found guilty, the felony murder convictions should be vacated on remand because they merge with their corresponding premeditated murder convictions. See Thacker v. United States, 599 A.2d 52, 63 (D.C. 1991).