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
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.