Troy Tyrone Adams, the appellant, was convicted by a jury of common law robbery, common law assault and battery, and theft of property worth less than $300. The trial judge merged the theft conviction into the robbery conviction, and sentenced Adams to concurrent sentences of ten years for robbery and three years for assault and battery. The ten year sentence was subsequently reduced to seven years. Adams raises three issues on this appeal:
I. Did the lower court err by allowing the State to use a peremptory challenge in a racially discriminatory manner?
II. Was the evidence sufficient to sustain Adam’s convictions?
III. Did the trial court err by failing to merge Adam’s conviction for assault and battery into his conviction for robbery?
We shall first discuss the sufficiency issue.
SUFFICIENCY
Adams attacks the sufficiency of the evidence in three ways. He argues first that Ms. Buckley had a “very *380 limited opportunity to see the thief”; second, that he is facially scarred and the person described as Ms. Buckley’s mugger was not; and that her testimony was contradicted by Adams’ mother, who testified that Adams was with her at the time of the crime.
[T]he standard to apply is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”
Tichnell v. State,
In the case at bar, Alice Buckley testified that on the night of June 6, 1989, she was walking along Rhode Island Avenue in Prince George’s County when someone approached her from behind and began pulling at her purse. She struggled, and was pulled to the ground before the attacker succeeded in wresting the purse from her. Ms. Buckley “got a very, very clear look at him” as he stood an estimated four feet from her. She identified the appellant as her assailant. Ms. Buckley’s testimony was sufficient to establish all the elements of the crimes charged. We perceive no error.
JURY SELECTION
Adams asserts that the State exercised one of its peremptory strikes in a racially discriminatory manner during jury selection.
*381
The issue of racially discriminatory jury selection was discussed by the Supreme Court in
Batson v. Kentucky,
The Maryland Court of Appeals following
Batson
in
Stanley v. State,
The guidelines by which a criminal defendant can meet the burden of establishing a prima facie case of discrimination are clearly set out. The defendant
1) must show that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race;[ 1 ]
2) is entitled to rely on the fact that peremptory challenges constitute a jury selection practice that permits those to discriminate who are of a mind to discriminate;
*382 3) must show that those facts and any other relevant circumstances raise [a rebuttable presumption] that the prosecutor used that practice to exclude veniremen from the petit jury on account of their race.
This combination of factors in the empaneling of the petit jury establishes the requisite rebuttable presumption of purposeful discrimination. The trial judge must determine whether the defendant has made the requisite showing, considering all relevant circumstances____ If the trial judge finds that the defendant has failed to establish a prima facie case, there is no obligation on the prosecutor to offer any explanation for the use of a peremptory challenge and no entitlement on the part of the defendant to a hearing on the issue.
Id.
at 410-11,
Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors____[this] explanation need not rise to the level justifying exercise of a challenge for cause. But the prosecutor may not rebut the defendant’s prima facie case of discrimination by stating merely that he challenged jurors ... on the assumption — or his intuitive judgment — that they would be partial to the defendant because of their shared race.... Nor may the prosecutor rebut the defendant’s case merely by denying that he had a discriminatory motive or “affim[ing] [his] good faith in making individual selections.”
Batson,
During jury selection in the case at bar, the following colloquy ensued:
MS. BELTON [prosecutor]: I would like to strike Juror 12, Miss Dickerson.
MR. SINGMAN [defense]: I would like a Batson challenge.
THE COURT: He wants to know why you are doing it.
MS. BELTON: The only — I don’t know which one she was. The reason why I wanted to strike her was a — the location where she was from, Suitland. Okay.
And the second reason was because there are other jurors that I want to get on the jury. I didn’t even know which one she was.
THE COURT: The Court is satisfied that it wasn’t done for racial purposes.
MR. SINGMAN: Your Honor—
THE COURT: I am satisfied.
After closing arguments, the appellant was allowed to read into the record the jurors’ towns of residence.
The appellant argues that the significance of Ms. Dickerson’s town of residence was never explained by the prosecutor, and that the prosecutor’s second reason only established that she wanted another juror in Ms. Dickerson’s place.
Adams had established the first two elements of a prima facie case at the time of his challenge, as it was obvious that both he and Dickerson were black, and no act on his part was required to demonstrate his reliance on the presumption of opportunity to discriminate which is inherent in the exercise of a peremptory challenge. He did not, however, articulate any reasons as to why the prosecutor’s *384 strike was discriminatory. 2 As a result, the trial judge made no finding of the existence of a prima facie case. Indeed, given the paucity of justification for the “Batson challenge,” it might not have been possible for him do so.
We note that in
Trice v. State,
Even assuming, arguendo, that the judge made a finding of prima facie discrimination, his ruling, made after consideration of the justifications given by the prosecutor, is accorded great deference.
In reviewing the trial judge’s decision [regarding the existence of a prima facie case], appellate courts do not presume to second-guess the call by the “umpire on the field” either by way of de novo fact finding or by way of independent constitutional judgment. It is the trial judge who enjoys the immeasurably superior vantage point to sense the mood and to catch the tone of the entire proceeding.
Bailey,
MERGER
The appellant, citing
Nightingale v. State,
*386
The Court of Appeals granted certiorari in
Snowden
and, subsequent to the submission of briefs in the instant case, rendered its decision. It reversed this Court, holding that the assault and battery in that case merged into armed robbery.
Snowden v. State,
We, too, also will apply Nightingale to the case sub judice. Nightingale was a consolidated case in which the appellants had been convicted of both child abuse and various sexual offenses, and had received separate sentences. The Court held that the sexual offense merged into child abuse. 5 The Court of Appeals stated that, where a “multi-purpose” criminal statute is involved, the court:
must construct from the alternative elements within the statute the particular formulation that applies to the case at hand. It should rid the statute of alternative elements that do not apply. It must, in other words, treat a multipurpose statute written in the alternative as it would treat separate statutes. The theory behind the analysis is that a criminal statute written in the alternative creates a separate offense for each alternative and should therefore be treated for double jeopardy purposes as separate statutes would.
Nightingale,
The precedential value of Nightingale is of some concern, as the Legislature overruled it by virtue of 1990 Md. Laws ch. 604 (which repealed and re-enacted, with amendments, Md.Ann.Code art. 27, § 35A (1957, 1987 & Supp.1991)):
FOR the purpose of reversing the holdings of the Maryland Court of Appeals in the cases of Nightingale v. State ... and White v. State ... by providing that if a conviction is entered against an individual for murder, rape, sexual offense, any sex crime, or any crime of physical violence, and a conviction is also entered for child abuse, a court may impose a sentence for the other offenses separate from and consecutive to or concurrent with a sentence imposed for child abuse....
1990 Md.Laws at 2636-37 (overstricken and parenthetical material omitted, underlining omitted). The amendment was approved on May 29, 1990, and became effective on July 1, 1990. 6
*388 Whatever the consequences of the Legislature’s attempted reversal of Nightingale in child abuse cases arising after the effective date of the amendment, in this appeal the underlying rationale for the Court of Appeals’ holding is still in full effect. The merger analysis presented in Nightingale is, therefore, still applicable to offenses not involving child abuse.
Common law robbery is defined as “the felonious taking and carrying away of the personal property of another, from his person or in his presence, by violence or putting in fear.”
West v. State,
Somebody came up behind me and started pulling at my purse____ I realized immediately what was happening and I started swinging with the umbrella and I made contact twice with the umbrella and the person got hold of my purse straps and pulled me down so that I was facing down the hill instead of up____ And then he grabbed my purse.
There was no physical contact between Adams and the victim after this confrontation. Adams was actually convicted of battery.
See Anderson,
Once the initial winnowing of irrelevant elements has been accomplished, the “required evidence” test is applied.
Vogel v. State,
If each offense requires proof of a fact which the other does not, the offenses are not the same and do not merge. However, if only one offense requires proof of a fact which the other does not, the offenses are deemed the same, and separate sentences for each offense are prohibited.
*390
Nightingale,
In the case at bar, we do not think that the appellant separately battered his victim. The facts make it plain that there was no force applied to the person of the victim other than that essential to complete the robbery. He pulled at the purse until Ms. Buckley let go. Under the required evidence test, that battery is a lesser included offense of the robbery.
THE CONVICTION FOR ASSAULT AND BATTERY IS MERGED INTO THE CONVICTION AND 10-YEAR SENTENCE FOR ROBBERY; THE THREE YEAR SENTENCE FOR ASSAULT AND BATTERY IS VACATED. THE JUDGMENT IS OTHERWISE AFFIRMED; COSTS TO BE DIVIDED EQUALLY BETWEEN PRINCE GEORGE’S COUNTY AND THE APPELLANT.
Notes
.
Gorman
involved an allegation of discrimination by a white defendant who alleged that the State improperly excluded blacks from the jury. The Court limited the application of
Batson
to situations, where the defendant and the struck jury panel member are of the same race, but observed that this “question was not answered in
Batson,
and we look forward to the final determination of that matter by the Supreme Court....”
Id.
[315 Md.] at 416,
. The juror who replaced Ms. Dickerson, apparently without objection from the prosecutor, was also black. We fail to see how striking a black juror, who is replaced by a black juror, in the absence of any other relevant circumstances, creates a presumption that the excused juror was stricken because of her race or helps a defendant establish a prima facie case.
. We note that the manner and type of discrimination claims that could be alleged under some interpretations of Batson are limited only by the imaginations of counsel.
. The appellant also argues that the “rule of lenity”, otherwise known as the doctrine of merger by legislative intent, requires merger. "[T]he rule of lenity is simply a rule of statutory construction.... Obviously a rule of statutory construction has little relevance to an offense not created by Maryland statute.”
White v. State,
. One appellant (Nightingale) had been convicted of child abuse and sexual offense in the second degree; the other (Myers) had been convicted of two counts each of second, third and fourth degree sexual offense and child abuse. Two consecutive fifteen-year sentences were imposed in Nightingale’s case. Myers received two sets of sentences: the first was composed of four concurrent sentences which were to run consecutively to the other set.
. During the transitional period where child abuses committed before ch. 604’s effective date are being tried after that date, the issue of retroactive application of the statute may be relevant. To that effect, see
Spielman v.
State,
. This is not to be confused with the "actual evidence” approach, which would merge offenses whenever the facts actually found at the trial are substantially the same for both offenses. The actual evidence test has been rejected as the general standard for determining merger.
Dillsworth,