Appeal from the Superior Court of the District of Columbia (FEL 2065-05) (Hon. Judith E. Retchin, Trial Judge).
The opinion of the court was delivered by: Thompson, Associate Judge
Argued September 26, 2008
Before REID, BLACKBURNE-RIGSBY, and THOMPSON, Associate Judges.
On October 27, 2005, a jury convicted Edwin K. Smith of carrying a pistol without a license (CPWL), possession of an unregistered firearm (UF), unlawful possession of ammunition (UA), and unlawful possession of a controlled substance (crack cocaine).*fn2
Smith appeals on two grounds. First, he argues that the trial court committed clear error in rejecting his Batson*fn3 challenge to the prosecutor's use of peremptory strikes during jury selection, permitting the government to strike African-American venirepersons on account of their race. Second, Smith contends that a violation of the Sixth Amendment Confrontation Clause -- the allowance of testimony about the so-called "DEA-7 " drug analysis without the Drug Enforcement Administration chemist having testified and been subject to cross-examination -- requires reversal of both his drug and weapons convictions.
We conclude that the trial judge did not fail to conduct an adequate inquiry or otherwise cleary err with respect to Smith's Batson challenge, and thus we reject Smith's first basis for appeal. We agree with Smith that the Confrontation Clause violation requires reversal of his cocaine-possession conviction (rather than, as the government urges, remand for entry of a judgment of conviction on the lesser-included offense of attempted possession). We are persuaded, however, that the Confrontation Clause violation was harmless beyond a reasonable doubt as to Smith's weapons convictions, and therefore we affirm those convictions.
We begin with our review of Smith's Batson challenge, recognizing that he would be entitled to reversal of all his convictions if the record establishes that race was a consideration in the prosecutor's decision to strike even one African-American juror. See Snyder v. Louisiana, ___ U.S. ___, 128 S.Ct. 1203, 1208, 170 L.Ed.2d 175 (2008) ("[t]he Constitution forbids striking even a single prospective juror for a discriminatory purpose") (quoting United States v. Vasquez-Lopez, 22 F.3d 900, 902 (9th Cir. 1994)); (Edward) Robinson v. United States, 890 A.2d 674, 679-80 (D.C. 2006) ("the erroneous rejection of a Batson challenge results in a 'structural defect' that infects 'the entire conduct of the trial from beginning to end' and hence is per se reversible") (quoting Arizona v. Fulminante, 499 U.S. 279, 309, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991)). Our task requires careful scrutiny of the record, because we must be guided by the principle that "race is an impermissible factor, even if a minor one, in exercising peremptory strikes." Tursio v. United States, 634 A.2d 1205, 1213 n.7 (D.C. 1993).*fn4 Accordingly, we describe the Batson proceedings -- in particular, the reasons that the prosecutor proffered for his strikes, defense counsel's response, and the trial court's evaluation -- in some detail.
The Batson issue arose on the first day of trial, after the prosecutor had exercised six of his peremptory strikes, when defense counsel told the court that "all of [the prosecutor's] strikes are African-American." The trial judge, the Honorable Judith Retchin, responded that given "what appears to be a pattern, I am going to ask the Government to justify each of the strikes noted."*fn5 The prosecutor then offered reasons for several of the strikes. He explained that he struck Juror 478, an unemployed custodian, because "I noticed that he had earring holes in his left ear.... I didn't gather from talking with him... that he was particularly intelligent. That's the reason why I struck him." Judge Retchin responded, "Your next strike?"
As to Juror 372, a paralegal specialist for the Drug Enforcement Agency ("DEA"), the prosecutor explained that he "got the impression" that she "was coming across as hostile when she was talking to me." When the court asked, "How so?," the prosecutor explained, "Just the looks she gave me. That's what I wrote down here." Judge Retchin asked defense counsel whether he had noticed any hostility and he responded, "No, Your Honor." The judge said, "Nor did I," but added that, "she did seem a bit abrupt. I can't say it's hostility, but that might be your perception." When defense counsel interjected that Juror 372 "was very, very appropriate in terms of her answers," the judge said again, "She was abrupt to the prosecutor." The judge then told the prosecutor to "[g]o ahead" with his explanations.
The prosecutor's next explanation was about Juror 774, who he observed was a "teacher doing social studies."*fn6 The prosecutor explained that "I just felt as though he gave [defense counsel] good eye contact. I didn't think he responded very well to me. I wrote down here that he was kind of scary." Defense counsel interjected that in his opinion, Juror 774 was "[v]ery gentle and very humble." When the prosecutor responded that "I'm basing this... on my perception," the court stated, "if I discredit anything you say, that person is going to be seated." When the court further stated, "I did not perceive that" the prosecutor continued his explanation by saying, "when they first walk up, the first note I make is eye contact; who they are making eye contact with. If he's making eye contact with [defense counsel] as he walks up, instead of me, I take that as a partial negative situation." The court commented that the two counsel "seem to be in some contest to try to outtalk each other during voir dire."
The court then asked the prosecutor to again state for the record the basis for each of his strikes. The prosecutor resumed his explanation as to Juror 774, saying that "I believe he gave [defense counsel] good eye contact. He did not give me the same eye contact that he gave [defense counsel]. I felt like he was pro-defense in the way he spoke." The prosecutor added that he thought that because Juror 774 teaches social studies, "that he may be more interested in doing things that are more to the left of center, if you will, with regard to feeling like the kid needs another chance. I need to have people here who are going to... not take into consideration social things outside of the Court's instructions...."
Moving to Juror 524, the prosecutor explained that he is "young, unemployed. I didn't really understand much of what he was saying."*fn7 The court responded, "Your next one?"
The prosecutor then offered his explanation as to Juror 895, stating that he struck this juror because, "He had seizures and had been robbed several times. I felt as though he wasn't the brightest light in the courtroom.... I wanted somebody here that was going to be able to listen to the instructions, follow the Court's instructions."*fn8 The court again responded, "Your next one?"
When the court asked the prosecutor to proceed with his next explanation, he referred to Juror 542, a flight attendant, and explained that, "I felt as though she also gave [defense counsel] good eye contact, and I put down here, 'The willies.'" The prosecutor further explained that defense counsel "talked to her for quite some time. She seemed as though she was really already buying what [defense counsel] is selling." The prosecutor continued, "I felt as though they had established, again, with the extensive questionings by defense counsel, there had been a rapport already established to where -- and I did not ask any questions. If you notice, [defense counsel] would start off his questions and a lot of these witnesses --." The court responded that both counsel "were chomping at the bit to be the first one to question on most of them. I don't know how the court reporter could capture how the two of you seemed to be competing during voir dire."
When the prosecutor completed his remarks about the six stricken jurors, the court said, "I'm not going to make a Batson finding against you at this time. I'm not able to determine whether you perceived that they made better eye contact with Mr. Williamson or had a relationship to Mr. Williamson superior to yours." The court told counsel to continue with jury selection, deferring her Batson ruling, but telling counsel to "be on notice."*fn9 Defense counsel then told the court that he felt "compelled to respond" to some of the prosecutor's assertions. He told the court that he had asked only a single question of Juror 542. When Judge Retchin said, "I don't think it was a single question" defense counsel said, "if it was anything else, it would have been with reference to having lived in the area, whether or not she had been active in the community, that sort of thing." Defense counsel added that, "[t]he eye contact does not bring about a basis to strike someone...." The court reiterated that, "I'm not able to make a Batson finding against Counsel at this time, given that you both, you [defense counsel] in particular, were having engaged conversations with people. And the prosecutor may legitimately find that you were using that to develop a rapport with the juror. So I'm not able to make a Batson finding based on that."
As jury selection thereafter continued, the prosecutor exercised his next three strikes, one against a Latina and two against Jurors 013 and 838, both African-American venirepersons. Defense counsel renewed his Batson motion, telling the court that he "distinctly remember[ed] the exchange between Juror Number 013 and him at the bench." The prosecutor responded that Juror 013, a BMW salesman, "seemed to be kind of a smart alec" and "offered to sell Your Honor a car, which I thought was not particularly appropriate for this setting." Defense counsel interjected that this "was a joke that we all laughed at." Confirming that Juror 013 "offered to sell me a car," a comment that "was inappropriate," Judge Retchin said, "I'm not going to make a Batson finding, given the exchange that the juror had here." The court did not ask the prosecutor about, and the prosecutor did not offer an explanation as to, Juror 838.
The prosecutor went on to strike Juror 034, a retired Office of Personnel Management secretary, who would have been an alternate petit juror.
When the strikes had concluded, the court revisited Juror 774, telling the prosecutor, "I would like you to articulate what goes into your description of him as scary." The prosecutor explained that he wrote "scary" down as shorthand. He explained that he "got a bad impression from [Juror 774] in terms of the way he was speaking.... [H]e had a kind of strange look to his face," and "was smiling at a time when it's not particularly appropriate to be smiling.... [W]hen I see that, I wonder... about [the] individuals' psychological makeup, whether they have any issues that they're dealing with." Defense counsel responded thatJuror 774 appeared as "a humble individual who did take these proceedings seriously," adding that "what is gleaned from a smile is simply that the man is humble." Defense counsel added that there "was nothing sort of scary or untoward, or nothing about [Juror 774's] gait that indicated any sort of mental illness, as [the prosecutor] is hinting at." Judge Retchin responded, "I don't know if [the [prosecutor] was hinting at that at all."
Judge Retchin then said "it's so uncomfortable to be in this position, because I don't know what is truly in [the prosecutor's mind]. He says what he says...." She told the prosecutor, "I have no idea whether or not you have a biased bone in your body or whether race was a factor at all. You say it was not. I did not get the same feeling from Juror 774. I didn't find him scary, so to speak. You used the word, 'scary,' and I wanted to make sure his race was not a factor in your finding him scary."
The following morning, the court invited counsel to "add anything else to the record" in regard to the Batson challenge. The prosecutor assured the court that race was not a factor in the government's strikes and pointed out that the defense had used eight of its ten strikes against white jurors.*fn10 Defense counsel reminded the court that the government had used all but one of its strikes against African-Americans. Defense counsel then stated, "the reasons offered by the Government for striking the numerous African-Americans, one of which -- the reasons offered was that they simply did not appear intelligent.... Counsel himself is offended by that characterization, as an African-American. The comment was certainly improper and unprofessional... [T]hat was not a sufficient basis to remove the... inference that the reason for the strike was racially motivated." The prosecutor responded that there were four African-Americans that he "picked thumbs-up," including a business owner whom he wanted on the jury because "he's an individual who I deem is going to be listening to the evidence and weigh it independently." He explained that he made strikes of jurors who "might not be intelligent" not because of race, but because "I did not think that [they] would be able to comprehend... and weigh all the evidence... impartially."
After counsel completed their remarks, Judge Retchin concluded:
I understand that the prosecutor was not using the word 'intelligence' as a code word for race. I understood the prosecutor was explaining that that particular juror was not sophisticated or educated in the way he would hope a juror might be.
Counsel, let me also say that the issue here is whether the prosecutor used race as a factor in striking jurors.
And during the voir dire, I allowed Counsel considerable leeway in following up with the jury. And actually, the two of you frustrated me to the lengths you went in asking what I thought were often irrelevant questions. But I thought the two of you were doing that, in a way, to outdo each other, so to speak, to develop a rapport with jurors.
The court record cannot reflect how the two of you often spoke simultaneously at the beginning, and I'm sure that court reporter would just capture who was the more persistent in taking down what was being said. But I would say close to a dozen times, the two of you began speaking simultaneously to capture the juror's attention when the juror came to the bench.
So the dynamics of voir dire was something of note in this case. It was not a sterile gleaning of information from people, but the two of you certainly got into -- I don't want to call it a horse and pony show, but there was energy at the bench, with the language and the body positioning, and all the times I had to ask [defense counsel] to please talk into the microphone because he was engaging in one-on-one with the juror, turning his back to the Court.
And so voir dire here was a contest in some respects. The prosecutor said that from that contest, he was able to determine that... certain jurors engaged more with [defense counsel], and explains that was his reason for striking certain jurors.
I am not able to discredit the prosecutor's non-race basis explanation. I don't have any reason to question what Mr. Einstman says was his reasons or making the strikes he made, in light of how the voir dire was conducted here I don't have any reason to question what Mr. Einstman says was his reasons or ...