Lead Opinion
In this case, Petitioner, Kevon Spencer (“Spencer”), challenges the trial judge’s finding that defense counsel’s explanations for striking jurors, in light of a Batscm Challenge, were a pretext for racial discrimination. Batson v. Kentucky,
FACTUAL AND PROCEDURAL BACKGROUND
The Chase
The relevant facts are taken from evidence and testimony presented at trial. On the afternoon of June 20, 2013, at approximately 4:00 p.m., Detective Priscilla Rogers saw an individual, the Defendant, later identified as Spencer, a twenty-one year old African-American male, driving a red Kia Soul on Sharptown Road in Dorchester County. Detective Rogers was driving her patrol car on Eldorado Road, Route 14. At the intersection of the two roads,
Spencer was intoxicated and chased by three police cars for twelve miles. The officers testified that Spencer did not show any signs of stopping. Throughout the pursuit, he was driving at high speeds, weaving between vehicles, making “abrupt turns”, and driving in the opposing traffic lane. Detective Rogers testified that Spencer nearly collided with other cars when he was driving and facing oncoming traffic. Corporal Garrison testified that the pursuit took place in “a dense heavily populated area[.]”
The three officers attempted to “box in” Spencer. Deputy Tolley was between the right driving lane and the shoulder and was half of a car’s length in front of the Kia. Detective Rogers was behind the Kia on the correct side of the road. Corporal Garrison was driving beside the group, in the opposing traffic lane. At this point, Spencer was driving the Kia on the right side of the road and at times on the paved shoulder.
In response to the “box in” Spencer accelerated and drove onto the grass and paved shoulder and collided with cyclist Andrew Kinn (Kinn), who was walking his bicycle off the road apparently in order to get out of the way of the chase. Spencer’s car clipped Kinn on the left leg, causing him to be thrown into the air and land on the windshield. Kinn suffered serious injuries. Doctor Cory Carpenter testified that the likely point of impact with the vehicle was Kinn’s left leg; most of the other fractures in the back and on the shoulder likely resulted from being hurled into the air and landing onto the hood.
All three officers testified that they saw Kinn before the collision. Detective Rogers testified she saw Kinn “probably two telephone pole lengths away” and that “[h]e had on a bright yellow shirt .,. [with] multiple flags flying from the back of his bicycle.” Corporal Garrison stated that because “his Tahoe sits a little higher than other vehicles, [he] could see everything from [his] vantage point” and he first saw Kinn “three light poles away” in a “bright shirt” with “flags on the bike”. Deputy Tolley testified that he saw Kinn when he was “heading towards the pursuit” because he was joining the pursuit from the opposite direction. Further, Corporal Garrison testified that Spencer had two options to avoid hitting Kinn: (1) drive into the ditch or (2) use the “avenue of escape” by attempting to go around Deputy Tolley’s car, which was half of a car length in front of his car, by getting into the opposing traffic lane.
Before the collision, the passengers in the vehicle were becoming increasingly panicked. Detective Rogers testified that the occupants were “moving around constantly.” Keevin Robinson (Robinson), the passenger who sat directly behind Spencer in the Kia, testified that throughout the chase the occupants were screaming for Spencer to stop and pull over.
Robinson testified it was “[n]o longer than 2 seconds” from the moment he first saw the cyclist to the moment of collision: “It was a last minute thing. By the time I seen him, it was boom, he was hit. I seen him, then I didn’t [see] him, and that’s the honest truth.” He stated that he was sure he must have been screaming for Spencer
After the collision, Deputy Tolley testified that Spencer “swerved back onto the road and traveled across the paved shoulder, the driving lane, the west bound lane, the eastbound lane, and then the paved shoulder on the other side and went off the roadway.” At this point, Deputy Tolley approached Spencer, “drove into the rear of him”, and “shoved him up onto the railroad tracks to disable [sic] so he wasn’t able to drive off.” Spencer attempted to escape on foot. He was arrested a short time later when Deputy Tolley, with the assistance of Corporal Garrison, tackled and tazed him. Spencer also told Detective Rogers, “I’m still fucked up.” At trial, Robinson testified he “blacked out” and “couldn’t remember” how the car came to a stop. During his sentencing statement, Spencer apologized to the victim and also indicated that he did not know what was going through his mind and that the drugs had him “blind” and caused him to black out.
Jury Selection and Trial
During jury selection, the State approached the bench and indicated to the court that defense counsel was striking mostly white males and females, specifically four of them, and requested that defense counsel put on the record the reasons for those strikes. The court responded:
THE COURT: All right. [Defense counsel], you’ve been playing with this for a long time in your other trials. The Court has noticed a pattern of striking white[,] mostly male jurors, even jurors who have not answered a question. I’m going to require you to explain your rationale or striking. We’ll start with juror number 165.
Defense counsel stated that he was striking juror 165 because the juror “indicated that he knew one of the detectives who was going to be testifying, a sister of a friend.” The court responded by asking about juror 166. Defense counsel responded: “I tend to strike farmers every opportunity I get.” The court asked why he would tend to do that, to which Defense counsel stated that based on his life experience he finds that “they are not fair and impartial[.]” The judge then turned to juror 168. Counsel responded that he “did not answer a question and also indicated merely that he was self-employed”; additionally, he is fifty-eight years old and counsel stated he tends to strike older people when there is not sufficient information to determine if it would be a good idea to have them on the jury. The judge inquired as to age when he asked if age was a protected class for purposes of Batson, to which the defense counsel stated no. The judge did not seem satisfied as he stated: “[b]ut you have to have a rational basis. You have to identify for me a rational basis for your strike. Are you telling me that you strike older white people because they happen to be white and they happen to be older[?] ... Can you articulate for me why an older person would not be a qualified juror?”
[DEFENSE COUNSEL]: My understanding is that and my life experience is that those people who are older tend to be more law abiding. It’s the same reason that the State is permitted to, without a Batson challenge being sustained, to strike young people. They routinely do [so] because the law has determined that young people lack the life experience to follow the law. My experience is that people who are of substantialage tend to credit law-enforcement, and to credit the system to a degree that ultimately affords an unfairness to my client.
The State noted to the court that there were two black males who were older than fifty-eight years of age that had not been struck by counsel. Defense counsel responded:
[DEFENSE COUNSEL]: The individuals who are on the jury are all younger than juror 168. The oldest individual who is on the jury at present is juror number 68. The reason that I permitted juror 63 to be on the jury is that he indicated that he has a family member who has been charged and sentenced, in other words my expectation is he would have a better understanding of my client than would other individuals similar [sic] situated. Juror number 63 answered—juror number 176 answered questions and he is not similarly situated to juror number 58. He answered questions, he provided additional information that led me to believe he would be an advantageous juror for the purposes of my client’s situation.
I permitted juror—and just to be clear I permitted juror number 6 who is a 30-year-old white male to be seated on the jury. The reason I permitted the 30-year-old white male to be seated on the jury is because he’s 30 years of age. I have no problem with the white people on the jury. Ask the record to reflect I’m a white male.
THE COURT: What you have articulated for me is that you believe older people are more law abiding and would favor as you quote the system, and what the State’s Attorney is bringing up is you have not struck older African-Americans.
[DEFENSE COUNSEL]: There’s one older African-American individual on this jury right now. That one older African-American individual who is 63 years of age responded to questions and indicated that he had, I believe he has a son whose name is Elmer Young who has been sentenced and is presently either away or is presently pending trial. I think I have actual knowledge that he’s pending trial. I don’t know who represents him. I don’t represent him, but I know for a fact Elmer Young is involved in the criminal justice system at present. He’s the only individual who is older than 60 years of age. The only individual who is older than 58 years of age who I did not strike. There are two white women and a there’s a white man on the jury so far.
The judge then turned to juror number 191. Defense counsel stated he struck him because in his life experience he tends to strike mechanics, in addition to farmers, and this man was a mechanic. The judge did not inquire as to why he was striking farmers and mechanics. However, the judge stated, “[l]et me ask you this. In your life experiences do you tend to strike white people when a defendant is a black person?” The judge then made references to a previous trial with defense counsel.
THE COURT: Are you telling me that as an officer of the court—that race has played no part in your decision to strike a juror notwithstanding the fact that every juror you struck has been white? Every juror you struck on our trial on Monday was white.
[DEFENSE COUNSEL]: I don’t have an actual recollection if that was true as to Monday, Your Honor, if you have an actual recollection.
THE COURT: The Court’s seen the pattern.
[DEFENSE COUNSEL]: Your Honor, I believe on Monday—
THE COURT: And has the records.
[DEFENSE COUNSEL]; On Monday I believe that I struck African-American individuals.
THE COURT: I don’t think so.
[DEFENSE COUNSEL]: The vast majority of the venire is white so the fact that I tended to strike white people is not surprising given that the vast majority of the voir dire is white.
THE COURT: It’s surprising to the Court in that if your decision is not color based, as you say, that you have been unable really to articulate any other reason that this Court finds acceptable. You first laid it on age.
[DEFENSE COUNSEL]: And I maintain that.
THE COURT: But the Court doesn’t agree with that being the pattern in this particular case.
At this point counsel and defendant returned to the trial table and the following discussion ensued in open court:
THE COURT: Here’s a question I have for you, here’s an example of what makes the Court highly suspicious regarding your motivations and your rationale ... [juror] number 176, is a 63-year-old African-American male who answered questions indicating that he had some relatives that had been convicted in the past, that would not make a difference in his decision-making. His juror occupation is noted as retired. So there is no designation as to what his employment was. You gave me one of your rationales that you have a concern when somebody doesn’t list their employment. Well, we don’t know what he was retired from nor did you ask that during the voir dire process .... I’m asking you, I mean a person who is retired and doesn’t designate what they’re retired from, maybe he’s a retired self-employed person.
[DEFENSE COUNSEL]: When a prospective juror responds to certain questions that overcome concerns that I might have about the nature of their employment, I’m going to seat that juror.
Thus, the Defense counsel indicated he struck jurors 166 and 191 because of their professions as a farmer and mechanic. Further, he struck juror 168 because the juror did not list his occupation and is an older person. Counsel explained that he believed older jurors are less sympathetic to defendants; however, he did not strike two other older African-American jurors because they had family members who were either charged or convicted of crimes; thus, they would be more sympathetic to the defendant. The court then ruled on the Batson challenge and reseated jurors 166,168, and 191:
THE COURT: [T]he Court believes that it could find there has been something other than a rational basis for some of the strikes exercised by [defense counsel]. The Court finds particularly and does not accept his explanation regarding juror number 166 who did not answer any questions who listed his occupation as a farmer and is age 45. The Court would find the same with respect to juror number 168 who listed self-employed, age 58, who answered no questions. And the Court could find the same with respect to juror number 191 who is 45 years of age and a mechanic ... For the record the Court is making the finding that it appears by practice the defense attorney in this case is exercising peremptory challenges based on race.
The trial took place on January 8, 2014 and January 9, 2014 in the Circuit Court for Dorchester County. The jury convicted Spencer of attempted second-degree murder, first-degree assault, two counts of second-degree
Spencer filed a petition for writ of certiorari in this Court. We granted certiorari to answer the following questions:
1. Did the trial court commit reversible error by reseating three jurors who had been struck by the defense where there was no evidence to support a finding of racial discrimination and where counsel’s explanations advanced the defense’s strategy and have previously been accepted by the courts as valid, race-neutral explanations for striking a juror?
2. Was the evidence sufficient to suрport a finding of specific intent for a conviction of attempted second-degree murder?
Spencer v. State,
We hold that the trial judge’s Batson determination was improper because the judge reseated jurors struck by defense counsel in light of valid, race neutral justifications and there was no support in the record or any way for an appellate court to review the alleged disputed facts. Thus, trial judge’s finding that defense counsel’s peremptory challenges, based on a practice developed in other trials and demonstrated in the present trial, were a pretext for racial discrimination was clearly erroneous. In addition, we hold that the evidence was insufficient for a rational trier of fact to find beyond a reasonable doubt specific intent for the crime of attempted second-degree murder. Accordingly, we shall reverse the judgment of the Court of Special Appeals.
STANDARD OF REVIEW
At issue is the trial judge’s finding that the reasons offered for the striking of particular
These determinations made by the trial court are essentially factual, and therefore are “accorded great deference on appeal,” Hernandez v. New York, supra,500 U.S. at 364 ,111 S.Ct. at 1868-1869 ,114 L.Ed.2d at 408-409 ; Batson v. Kentucky, supra,476 U.S. at 98 n. 21,106 S.Ct. at 1724 n. 21,90 L.Ed.2d at 89 n. 21; Chew v. State, supra,317 Md. at 245 ,562 A.2d at 1276 . An appellate court will not reverse a trial judge’s determination as to the sufficiency of the reasons offered unless it is clearly erroneous. Stanley v. State, supra,313 Md. at 84 ,542 A.2d at 1283 . See also Purkett v. Elem, supra,115 S.Ct. at 1771 ,131 L.Ed.2d at 840 .
Gilchrist v. State,
Md. Rule 8—131(c) provides that “the appellate court will review the case on both the law and the evidence. It will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses.” Moreover, “[i]f any competent material evidence exists in support of the trial court’s factual findings, those findings cannot be held to be clearly erroneous. ... Our initial task, therefore, is to determine whether the Circuit Court’s factual findings are supported by substantial and credible evidence in the record.” Webb v. Nowak,
As to the sufficiency of evidence to support a conviction for attempted second-degree murder this Court has held:
The standard of review for appellate review of evidentiary sufficiency is whether any rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt. See State v. Albrecht,336 Md. 475 , 478-79,649 A.2d 336 , 337 (1994). We view the evidence in the light most favorable to the prosecution. See id. (citing Jackson v. Virginia,443 U.S. 307 , 319,99 S.Ct. 2781 , 2789,61 L.Ed.2d 560 , 573 (1979) and Branch v. State,305 Md. 177 , 182-83,502 A.2d 496 , 498 (1986)). We give “due regard to the [fact finder’s] finding of facts, its resolution of conflicting evidence, and, significantly, its opportunity to observe and assess the credibility of witnesses.” McDonald v. State,347 Md. 452 , 474,701 A.2d 675 , 685 (1997), cert. denied,522 U.S. 1151 ,118 S.Ct. 1173 ,140 L.Ed.2d 182 (1998) (quoting Albrecht,336 Md. at 478 ,649 A.2d at 337 ).
Harrison v. State,
DISCUSSION
Spencer contends that the judgment of the Court of Special Appeals should be reversed, because the trial judge did not point to evidence on the record for rejecting counsel’s race neutral explanations which advanced the defense’s strategy and have previously been accepted by courts as valid, race neutral explanations for striking a juror. Spencer posits that the presiding judge rejected defense counsel’s explanation due to an alleged pattern of discrimination, but did this solely on the basis of a previous trial, to which the judge referred. Moreover, even if the judge’s finding was grounded in something more than this pattern, the finding was clearly erroneous as the defense counsel’s explanations have long been recognized as valid justifications for exercising peremptory strikes. In his brief, Spencer contends: “[A] trial judge’s decision to resolve a Batson issue by relying upon an undocumented and unreviewable intuition prevents appellate courts from performing their duty to review for clear error. ... Finally, reversal, not remand,
The State, however, argues that the trial judge was not clearly erroneous when he found defense counsel’s explanation of his preemptory strikes unconvincing as counsel’s exercise of jury strikes in other proceedings was a legitimate fact for the court to consider. Further, in Dorchester County farming is a leading vocation and counsel should not have struck juror 166 on that basis. Moreover, counsel did not strike older black jurors. Furthermore, the evidence was sufficient to support a finding of specific intent for a conviction of attempted second-degree murder. The State asserts, through circumstantial evidence, the jury was permitted to infer Spencer was aware of Kinn’s presence because the other drivers saw him. The State further stated that Spencer could have avoided the collision by slowing down, there was an avenue of escape, hitting Kinn could have aided his escape, and he was warned to stop by passenger Robinson.
Batson Challenge
The Equal Protection Clause of the Fourteenth Amendment prohibits the exclusion of jurors based on race or gender. The Supreme Court held, in Batson v. Kentucky, that jurors “must be indifferently chosen, to secure the defendant’s right under the Fourteenth Amendment to protection of life and liberty against race or color prejudice.” Batson,
Racial discrimination in selection of jurors harms not only the accused whose life or liberty they are summoned to try. Competence to serve as a juror ultimately depends on an assessment of individual qualifications and ability impartially to consider evidence presented at a trial ... [B]y denying a person participation in jury service on account of his race, the State unconstitutionally discriminate^] against the excluded juror ... The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community. Selection procedures that purposefully exclude black [or white] persons from juries undermine public confidence in the fairness of our system of justice.
Batson,
Batson outlined a three-step process for evaluating when counsel has used
First, the complaining party has the burden of making a prima facie showing that the other party has exercised its peremptory challenges on an impermissibly discriminatory basis, such as race or gender. ...
Second, once the trial court has determined that the party complaining about the use of the peremptory challenges has established a prima facie case, the burden shifts to the party exercising the peremptory challenges to rebut the prima facie case by offering race-neutral explanations for challenging the excluded jurors. The explanation must be neutral, related to the case to be tried, clear and reasonably specific, and legitimate. The reason offered need not rise to the level of a challenge for cause ... It is insufficient, however, for the party making the peremptory challenges to merely deny that he had a discriminatory motive or merely affirm his good faith.
Finally, the trial court must determine whether the opponent of the strike has carried his burden of proving purposeful discrimination. This includes allowing the complaining party an opportunity to demonstrate that the reasons given for the peremptory challenges are pretextual or have a discriminatory impact .., [A]t that stage, implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination.
While the complaining party has the ultimate burden of proving unlawful discrimination, and therefore should be offered the opportunity to demonstrate that the reasons offered were merely pretextual, the court may find that the reasons offered were pretexts for discrimination without such demonstration from the complainant.
Gilchrist,
In the instant case, the parties do not dispute that the State satisfied its burden of proving a prima facie case of racial discrimination when it raised the concern of mostly white jurors being stricken. The parties also do not dispute that the defense provided racially neutral explanations for striking each of the jurors based on occupation and age. The issue raised is whether the State carried its burden of proving defense counsel’s explanations for the strikes were pretextual. The parties limit the issue to step three of the Batson analysis. The State, in its brief, notes, “[t]his case addresses the third step, which is reviewed only for clear error[].” Spencer contends, “[i]t is not until the third and final step in the process that the trial judge is called upon to evaluate the persuasiveness of the proffered reasons and make an assessment of pretext.” It is at step three that the “trial court must determine whether the opponent of the strike has carried his burden of proving purposeful discrimination.” Gilchrist,
Trial Court’s Determination
A Batson challenge requires a judge to make factual findings; this does not require an attorney to swear an oath and subject himself to cross-examination regarding the reasons for his strikes. Ordinarily, a bench conference is sufficient. Gray v. State,
Further, Spencer provided race neutral explanations for striking jurors 166, 168, and 191. A challenged party’s explanation does not have to be “persuasive, or even plausible.” Purkett,
Under the facts of the case at bar, defense counsel provided race neutral explanations to the trial court for the peremptory challenges as he believed the jurors stricken could not be fair or impartial. Counsel struck juror 168 due to age, he was fifty-eight years old, and because he did not list his occupation. Juror 166 was stricken because of his employment as a farmer. Juror 191 was also stricken due to his employment; he was a mechanic.
In Purkett, the prosecutor’s proffered explanation for a peremptory challenge of a black male juror was that he had long, unkempt hair, and a moustache and a beard which the prosecutor believed made him “not [] a good juror” and appear
In Harley v. State,341 Md. 395 , 398,671 A.2d 15 , m16 (1996), the prosecutor told the court that she had a “general rule” of challenging jurors who were single and under thirty, a policy with no apparent connection to the circumstances of the ease or the individual jurors. The prosecutor explained that she preferred to seat jurors over thirty years old and married because she believed that jurors with those characteristics were more stable and therefore more state-oriented. See id. at 402,671 A.2d at 19 . The trial court found the prosecutor’s explanation race-neutral and non-pretextual. We affirmed, holding that we ‘cannot conclude that the trial judge’s findings were clearly erroneous.’ Id. at 404,671 A.2d at 19 .
Edmonds,
In Parker v. State,
In Edmonds, counsel’s striking of all jurors with relatives convicted of a crime did not amount to unconstitutional discrimination. Edmonds,
[O]n this record, we are not prepared to conduct the important factual analysis required under step three. Batson’s final step is essentially a credibility assessment, and the parties are not before this Court to permit us to judge their credibility or to explore the validity of any arguments they may advance. We hold that the trial court failed to conduct a proper Batson analysis by not making a final determination regarding the credibility of the prosecutor’s race-neutral explanations and therefore whether petitioner established purposeful discrimination in the strikes of jurors Ashe and Smith.”
Edmonds,
Moreover, because the trial judge’s finding of pretext is factual, the decision as to sufficiency of the reasons will not be reversed by an appellate court unless the trial judge’s decision was clearly erroneous. Gilchrist,
The trial court must decide whether that explanation is legitimate or pretextual. Purkett,
A discriminatory purpose may be inferred from the totality of the circumstances and relevant facts. Among the factors the court may consider to determine whether the proponent intended to discriminate are: the disparate impact of the prima facie discriminatory strikes on any one race; the racial make-up of the jury; the persuasiveness of the explanations for the strikes; the demeanor of the attorney exercising the challenge; and the consistent application of any stated policy for peremptory challenges.
Edmonds,
In the ease subjudice, the record is devoid of facts that we can review that support the court’s finding regarding counsel’s alleged purposeful discrimination in other cases. Batson,
Mere allegations of discriminatory practices will not suffice; evidence is needed. For example, in Miller-El I, the Supreme Court concluded that the prosecutor’s exercise of peremptory strikes on the basis of the prosecutor’s widely known general policy of excluding black jurors was unconstitutional. Miller-El I,
The Court of Special Appeals in the present case, in a dissenting opinion, noted that the Supreme Court has endorsed a context and credibility dichotomy for appellate review of the lower court’s findings. See Snyder v. Louisiana,
In Snyder, defense counsel raised a Batson challenge after the prosecutor removed
In contrast, the Court scrutinized the prosecutor’s contextual explanation and compared the struck black juror with other jurors and found another white juror to have obligations even more pressing. Snyder,
In the case sub judiee, defense counsel was able to articulate the difference between the older white juror and the older black jurors. Moreover, as discussed, each explanation offered by counsel has been well established to be valid and race neutral. Thus, the trial judge appears to have relied on the attorney’s pattern and practice from previous trials in finding a pretext for racial discrimination. To do so, the judge should point to evidence, on the record, for the appellate court to review. Here, the trial judge granted the State’s Batson challenge when the alleged discriminatory pattern and practice the judge referred to was not established in the record. In addition, declaring a discriminatory intent to be inherent in an attorney’s race neutral explanation nullifies the distinction between lawful discrimination, which is permitted by counsel’s race neutral explanations, and unconstitutional discrimination. Deferring to the trial judge’s finding of pretext, without more, is to effectively hold that such Batson findings are unreviewable by an appellate court. Without evidence to support the judge’s finding, upholding the Batson challenge is invalid.
Remedy: Reversal
A majority of the Court holds that reversal is the appropriate remedy in this case. Md. Rule 8-131(c) (“the appellate court will review the case on both the law and the evidence. It will not set aside the judgment of the trial court on the evidence unless clearly erroneous”). When there is no competent material evidence to support the trial court’s factual findings, those findings are deemed to be clearly erroneous. Webb,
The trial judge could not point to material evidence in the record of this case to support his rejection of counsel’s race neutral explanations. Here, the judge relied, not entirely on what happened in the court-room in this case, but rather on an alleged pattern developed in other cases.
In the present case, the appropriate remedy is a new trial because of the obvious limitations to reconstructing the circumstances surrounding the peremptory challenges. We have said:
[UJnless it is impossible to reconstruct the circumstances surrounding the peremptory challenges, due perhaps to the passage of time or the unavailability of the trial judge, the proper remedy where the trial court does not satisfy Bat-son’s requirements is a new Batson hearing in which the trial court must satisfy the three-step process mandated by that case and its progeny.
Edmonds,
In Ray-Simmons, at step two of the Batson analysis, the State provided explanations for its peremptory challenges which were neither race nor gender neutral. The prosecutor intended to replace an African American male juror with another African American male juror. This Court held that the trial judge clearly erred when the defendant was not given the Batson relief he was entitled to receive. Ray-Simmons,
In some cases remand may be more appropriate. See Edmonds,
In Tyler v. State,
[I]n the case at hand the prosecutor’s remarks in explaining his use of peremptory challenges with respect to race made perfectly clear that his use of peremptory challenges to exclude women from the jury were gender motivated and, therefore, contrary to Maryland constitutional law. From his own mouth, it is patent that his attempts to exclude women were simply that he believed that he had a better chance to obtain guilty verdicts from a jury composed of men (preferably older men) than one composed of women (particularly young women). In the face of what the prosecutor said at trial, he is not entitled to come forward at this time in an attempt to present a neutral explanation for challenging women jurors.
Tyler,
Similarly, in the present case, the trial judge clearly stated that his reason for disbelieving defense counsel was due to a pattern of discrimination he had observed. However, there is no documentation in this case to support a pattern of discrimination, even though the judge alluded to “records”. Remanding would allow the prosecutor a second opportunity to create a better record in support of a finding of racial pretext. Therefore, it would be inappropriate and not in the interest of justice for this Court to allow further development of the record to support the judge’s beliefs. Id. (holding no further development of the record was appropriate).
The prosecution has failed to satisfy its burden of proof. A court may And a pretext for racial discrimination on the basis of several factors, including, but not limited to an attorney’s demeanor and a past pattern of discrimination. See Edmonds,
Attempted Second-Degree Murder: Specific Intent to Kill
We now address the second issue before this Court which is whether the evidence was sufficient to support a finding of specific intent beyond a reasonable doubt to sustain the conviction of attempted second-degree murder. A majority of the Court holds that the evidence was insufficient to support the conviction for attempted second-degree murder. We have previously recognized that:
“Murder is the killing of one human being by another with the requisite malevolent state of mind and without justification, excuse, or mitigation.” Ross v. State,308 Md. 337 , 340,519 A.2d 735 , 736 (1987). The malevolent states of mind that qualify are: (1) the intent to kill, (2) the intent to do grievous bodily harm, (3) the intent to do an act under circumstances manifesting extreme indifferenceto the value of human life (depraved heart), or (4) the intent to commit a dangerous felony. Id. The General Assembly has determined that certain murders qualify as murder in the first degree, such as murders committed in the perpetration of enumerated felonies or any kind of willful, deliberate and premeditated killing. See Maryland Code, Article 27 §§ 407-410 (1957, 1996 Repl.Vol.) (setting forth the various circumstances in which a murder will be classified as murder in the first degree). Second-degree murder includes all other types of murder. See Code, Art. 27 § 411 (“All other kinds of murder shall be deemed murder in the second degree”).
Harrison,
Moreover, “[t]he crime of attempt consists of a specific intent to commit a particular offense coupled with some overt act in furtherance of the intent that goes beyond mere preparation.” State v. Earp,
A specific intent crime “requires not simply the general intent to do the immediate act with no particular, clear or undifferentiated end in mind, but the additional deliberate and conscious purpose or design of accomplishing a very specific and more remote result.” Shell v. State,307 Md. 46 , 63,512 A.2d 358 , 366 (1986) (citations omitted). Mere knowledge that a result is substantially certain to follow from one’s actions is not the same as the specific intent or desire to achieve that result. See McBurney [v. State ], 280 Md. [21] at 29, 371 A.2d [129] at 133 [ (1977) ] (explaining that “a general mens rea or intent ‘includes those consequences which ... are known to be substantially certain to result (regardless of desire). A specific intent ... is some intent other than to do the actus reus thereof which is specifically required for guilt.’ ”) (citations omitted).
Thornton v. State,
Importantly, this Court has held “where an attempted [second-degree] murder is charged, the State must show a specific intent to kill—an intent to commit grievous bodily harm will not suffice. In addition, of course, the State must prove an attempt, and, where the evidence fairly generates the issue, the absence of justification, excuse, or mitigation.” Earp,
In Smallwood,
In Smallwood, there was no evidence from which to infer an intent to kill as his actions were “wholly explained” by his intent to commit rape at gun point and an armed robbery. Smallwood,
We hold that the evidence was insufficient to establish beyond a reasonable doubt that Spencer formed the specific intent to kill Kinn. Pertinent facts in our analysis include: there is evidence in the record, based on Robinson’s testimony, that the situation was chaotic during the chase and before the accident as passengers were intoxicated, screaming for the driver to stop and pull over, and panicking. Moreover, passenger Robinson only saw Kinn two seconds before the collision at which point he believes he yelled for Spencer to stop, but realized it was a very short time to react: “It was a last minute thing. By the time I seen him, it was boom, he was hit. I seen him, then I didn’t [see] him, and that’s the honest truth.” Robinson testified that Spencer never indicated he wanted to injure, hurt, or collide with anyone.
Furthermore, the officers testified they saw Kinn from two to three telephone poles away, however, this does not lead to a reasonable inference that Spencer also saw him. Not only are officers trained to be aware of their surroundings, but Corporal Garrison also saw Kinn from further away as he indicated that his Tahoe sat higher. Moreover, based on Corporal Garrison’s tеstimony Spencer had two options to avoid hitting Kinn: drive into the ditch or attempt to go around Deputy Tolley’s car, which was half of a car length in front of his car, by getting into the opposing traffic lane—option one would certainly end the chase and option two would risk ending the chase. Although Deputy Tolley indicated that Spencer could have avoided hitting Kinn by coming back onto the road or landing in the ditch, he even acknowledged going into the ditch would cause the vehicle to stop, ending the chase and leading to capture. Spencer was driving recklessly during a police chase so as to avoid capture; thus, it can be inferred he was motivated to flee. Even assuming, as the State argues, that Spencer wanted to hit Kinn in order to help him escape, the intent to cause serious bodily injury in order to further his goal of escape is insufficient—Spencer was required to have the specific intent to kill Kinn. See Earp,
In the case at bar, the Court of Special Appeals stated that a reasonable jury could have found that Spencer lacked any intent to murder Kinn with the car. The correct standard, however, is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt—and thus, the Court of Special Appeals found the jury could have found Spencer had the required specific intent to kill. We disagree. There was no evidence of a specific intent, based on Spencer’s acts or words that he actually saw and intended to hit Kinn. Earp,
CONCLUSION
For the reasons stated above, we reverse without a retrial the judgment of the
JUDGMENT OF THE COURT OF SPECIAL APPEALS IS REVERSED; CASE REMANDED TO THAT COURT WITH DIRECTIONS TO REVERSE THE JUDGMENT OF THE CIRCUIT COURT FOR DORCHESTER COUNTY AND REMAND THE CASE TO THAT COURT FOR A NEW TRIAL. RESPONDENT TO PAY THE COSTS.
Barbera, C.J., dissents in part.
Watts, J., concurs and dissents.
McDonald and Getty, JJ., dissent.
Notes
. The State charged Spencer, by criminal information, in the Circuit Court with numerous criminal and traffic offenses. He was convicted of attempted second-degree murder of Andrew ICinn, second-degree assault of Detective Rogers and Corporal Garrison, three counts of malicious destruction of property valued over $500, and numerous traffic related offenses. The Court of Special Appeals affirmed Spencer's convictions for attempted murder and assault, but reversed his conviction for malicious destruction of property over $500. The intermediate appellate court directed the Circuit Court on remand to enter judgment of conviction for malicious destruction of property valued under $500, “along with the appropriate sentence."
. We recognize that how far the trial judge can go in relying on a pattern of discrimination that he or she has observed in other cases may be problematic, It is not our intention to encourage trial judges to assume the role as advocate for either side in a trial. See Marshall v. State,
. See supra pp. 557-59,
. For example, each is guilty of murder if A, B, and C have each killed someone and A acted with intent to kill, B acted with an intent to do serious bodily injury, and C acted with a reckless disregard of human life. However, only A would be guilty of attempted murder if the victim did not die. See Earp,
Dissenting Opinion
dissenting in part.
I dissent, in part, from the judgment of the Court. I am in full agreement with the Court’s holding that Petitioner Spencer is entitled to a reversal without a retrial of the conviction of attempted second degree murder because the evidence presented to the jury was legally insufficient to establish that he possessed the specific intent to kill that is required for conviction of that crime. I part company, however, with the Court’s holding that the trial judge was clearly erroneous in finding that Spencer’s trial counsel had relied on the race of three jurors in exercising peremptory challenges to strike them from the jury.
I would affirm the reasoning and holding of the majority of the three-judge panel of the Court of Special Appeals, who in an unreported decision concluded that the trial judge was not clearly erroneous in finding that Petitioner Spencer’s trial counsel had violated the dictates of Batson v. Kentucky, 476 U.S. 79,
Finally, I note the attention that the federal courts and our sister state courts are giving, in light of Rivera v. Illinois,
I.
The trial court was not clearly erroneous in finding that defense counsel had violated Batson.
“Batson and its progeny instruct that the exercise of peremptory challenges on the basis of race, gender, or ethnicity violates the Equal Protection Clause of the Fourteenth Amendment.” Ray-Simmons v. State,
In the unreported opinion of the three-judge panel of the Court of Special Appeals, the Honorable Stuart R. Berger, writing on the Batson issue for himself and the Honorable Raymond G. Thieme, Jr. (Retired, Specially Assigned), summarized what occurred at step three of the process. I could not improve on either the summary of the trial record or the panel majority’s legal analysis, so I shall quote extensively from the opinion, beginning with the summary of the relevant facts:
In this case, the defense exercised six peremptory strikes early in the selection process, and the State objected, noting that four of the strikes had been applied to white males, some of whom had given no affirmative answers to any voir dire questions. The court made an express finding that there was a “pattern of striking white mostly male jurors, even jurors who have not answered a question.” The court then moved to the second Batson step, asking defense counsel to offer his rationale for the use of his peremptory strikes. Defense counsel did so, claiming that he routinely struck anyone who was a farmer, anyone who was a “mechanic,” anyone who was self-employed, and anyone who was “older.” The court expressed some skepticism of the genuineness of counsel’s explanations. Indeed, the State noted that the defense had not objected to seating African American jurors who were older than the white juror the defense struck for being too old. The court further observed that defense counsel had not requested any additional voir dire of the self-employed juror, which would have addressed counsel’s expressed concern that “self-employed” did not give him sufficient information. Moreover, at least one (African American, older) juror who was seated by the defense had similarly given no information about his prior employment, listing his occupation as simply “retired.”
The court found that defense counsel’s “race-neutral” explanations for striking three of the four challenged jurors were not sufficiently credible to rebut the prima facie case of improper jury strikes presented by the State. The court also noted that while all of the defense peremptories had been exercised against white veniremen, it did find that the defense had rebutted the claim of race-based strikes in one instance, explaining:
For the record the Court is finding that it appears by practice the defense attorney in this case is exercising peremptory challenges based on race. The Court’s articulated that previously hereto there are several challenges that have been made by the defense that the defense was able to give another reason that the Court found it reasonable to exercise a challenge, even though the challenges have uniformly been exercised against white individuals.
The court then seated three of the challenged jurors.
Spencer v. State, No. 493, slip op. at 4-6,
The majority of the three-judge panel further understood, correctly, that the trial judge also could consider what he knew about trial counsel’s practice in other cases. See id. at 8. The Supreme Court has made clear the legitimacy of such evidence. The Court has noted that, “although some false reasons are shown up within the four corners of a given case, sometimes a court may not be sure unless it looks beyond the case at hand. Hence Batson’s explanation that [the objecting party] may rely on ‘all relevant circumstances’ to raise an inference of purposeful discrimination.” Miller-El v. Dretke,
On the subject of what the trial judge knew about defense counsel’s past practices, the majority of the panel had this to say:
In this case, we must consider the context of the trial judge’s comment about defense counsel’s past practices of the use of race for his pеremptory strikes. The court’s first observation about defense counsel’s propensity for seemingly race-based peremptory strikes was not made in the context of defense counsel’s explanations. When the State first presented its Batson challenge, it pointed out the pattern of strikes in this case, and the court responded:
[Counsel], you have been playing with this for a long time in your other trials. The Court has noticed a pattern of striking white mostly male jurors, even jurors who have not answered a question. I’m going to require you to explain your rationale [f]or striking.[1 ]
Spencer does not, on appeal, contend that the court erred in finding a prima facie case of race-based strikes in this case; as the court noted, in this case, defense counsel only struck white jurors, including those who had not answered any voir dire questions. Critically, the court’s reference to “other trials” was made before Spencer’s attorney was even asked to present the race-neutral reasons for his strikes.
The next reference to prior trials was made after counsel had proffered, and debated at some length, his various explanations, and the court had moved on to the third Batson step, i.e., determining whether the reasons presented adequately rebutted the apparent case of improper strikes. After discussing the various explanations given by counsel, the court asked if defense counsel “tend[ed] to strike white people when a Defendant is a black person[.]” Defense counsel denied this, and the court then pointed out that in this ease, “every juror you struck has been white[J Every juror you struck on our trial on Mondaywas white .... The Court’s seen the pattern.”
After some further discussion, the court then stated:
It’s surprising to the Court that if your decision is not color based, as you say, that you have been unable really to articulate any other reason that this Court finds acceptable. You first laid it on age.
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But the Court doesn’t agree with that being the pattern in this particular case.
(emphasis added).
Spencer, slip op. at 6-8 (alterations in original). The majority of the panel took all of this into account in deciding, in my view, correctly, that the record:
does not support Spencer’s appellate claim that the court’s ruling on the Batson claim “was derived largely on the judge’s experience in previous cases[.]” Indeed, the vast majority of the discussion on the Batson challenge related to the specifics of that particular venire and the particular strikes made in this case. In short, the appellant points us to two references to prior trials out of fifteen pages of transcript. We, therefore, reject the appellant’s claim that the trial judge erred in improperly considering prior trial experiences with defense counsel in determining whether to grant the State’s Batson challenge. In our view, it distorts the record to select these two references out of the record and claim that the only reason the court refused to give defense counsel’s race-neutral explanations more weight was because of prior trials involving defense counsel.
Id. at 8.
I am in full accord, moreover, with my colleagues on the Court of Special Appeals who formed the majority on this issue that it is neither necessary nor reasonable to direct a remand in order to develop a more complete record concerning what, when, and how defense counsel exercised peremptory challenges in other cases. On this subject, Judge Berger wrote for himself and Judge Thieme:
We hold that it is unnecessary that any and all history of inappropriate use of peremptory challenges be objectively verified for clear error. ... It is simply not reasonable for trial courts to expect the parties to present evidence on whether a particular attorney has a practice of striking jurors of a particular race or gender.
Moreover, even if one were able to detail on the record the attorney’s practice of striking certain jurors on the basis of illegitimate reasons, such a practice could lead to a trial-within-a-trial of an attorney’s use of peremptories in previous cases. In our view, this has the potential to cause real problems for the trial courts. Would a court, when presented with a Batson issue involving an attorney’s prior peremp-tories, need to recess in order for the attorneys to gather their notes and allow time for the court to gather the case files from previous trials? All while the prospective jurors are waiting? Further, we have additional reservations about the remedy suggested upon remand.
Critically, credibility determinations and assessments of demeanor lie particularly within the province of the trial judge. ... “[A] reviewing court, analyzing only the transcript of the voir dire, is ‘not as well positioned as the trial court to make credibility determinations,’ ” Berry v. State,155 Md.App. 144 , 163,843 A.2d 93 (2004) (quoting Miller-El v. Cockrell,537 U.S. 322 , 339,123 S.Ct. 1029 ,154 L.Ed.2d 931 (2003)). As a result,the determination of whether a party’s explanation is pretextual is a finding that we, upon review, accord great deference. See also Edmonds v. State, 372 Md. 314 , 331,812 A.2d 1034 (2002) (“The trial judge’s findings in evaluating a Batson challenge are essentially factual and accorded great deference on appeal”).
Moreover, an appellate challenge to the trial court’s decision to accept or reject the proffered reasons for a peremptory strike is rarely successful, because “the credibility of the proponent offering the reasons is, as it is generally, for the trial court—not an appellate court—to determine.” See Jeffries v. State,113 Md.App. 322 , 376,688 A.2d 16 (1997) (“[Ajppellate courts must be highly deferential and will not presume to overturn a trial judge’s findings on [a Batson] issue unless they are clearly erroneous.”). We, therefore, defer to the fact-based credibility determinations of the seasoned trial judge who sustained the State’s challenge under Batson. We, therefore, hold that the circuit court was not clearly erroneous in finding that defense counsel’s reasons for striking the reseated jurors was pretextual. Accordingly, we affirm the judgments of conviction.
Id. at 9-10 (footnote omitted).
I would adopt, in full, the reasoning of the Court of Special Appeals and would hold that the trial judge was not clearly erroneous in finding a Batson violation and seating the jurors whom Petitioner had sought to exclude.
II.
A thought about remedy, generally.
I mentioned at the outset of this opinion that some of the federal courts and our sister state courts have been reacting to Rivera,
The Supreme Court granted certiorari in Rivera “to resolve an apparent conflict among state high courts over whether the erroneous denial of a peremptory challenge requires automatic reversal of a defendant’s conviction as a matter of federal law.”
The United States Supreme Court affirmed the decision of the Illinois Supreme Court, agreeing with that court that the trial judge’s error did not qualify as “structural error”; rather, Rivera was “tried before a qualified jury composed of individuals not challengeable for cause.” Rivera,
The Rivera Court concluded that, because the challenged, but ultimately seated, juror was not subject to removal for cause, “Rivera’s jury was impartial for Sixth Amendment purposes.” Id. at 159,
Notwithstanding its rejection of Rivera’s federal constitutional claims, the Rivera Court emphasized:
States are free to decide, as a matter of state law, that a trial court’s mistaken denial of a peremptory challenge is reversible error per se. Or they may conclude, as the Supreme Court of Illinois implicitly did here, that the improper seating of a competent and unbiased juror does not convert the jury into an ultra vires tribunal; therefore the error could rank as harmless under state law.
Id. at 162,
This Court considered a substantially similar set of facts in Parker v. State,
. The trial judge in this case has been a judge of the Circuit Court for Dorchester County since June 2004. That circuit court was until March 2014 a one-judge court, and, even now, a second circuit court judge generally hears cases for only two weeks each month. Defense counsel in this case appears to be one of a very small cohort of those who serve as public defenders on the Lower Eastern Shore.
. In addition to the Illinois case before it, the Rivera Court cited several other state supreme court cases on both sides of the divide. See
There remains a split among the state courts as to the proper remedy following the erroneous denial of a defendant’s peremptory challenge. Compare, e.g., State v. Mootz,
All federal circuit courts that have considered the issue post-Rivera have rejected a rule of automatic reversal. See, e.g., U.S. v. Bowles,
Concurrence Opinion
Respectfully, I concur in part and dissent in part. In the Court of Special Appeals, this case gave rise to multiple opinions explaining the Court’s holdings. In this Court, this case gives rise to five opinions, none of which has the full support of a majority of judges of the Court.
I agree with Judge Greene that, in this case, the circuit court erred in reseating the prospective jurors whom Spencer’s counsel peremptorily struck, and as to whom the State raised a Batson challenge;
I. Proper Remedy for the Circuit Court’s Batson Violation
I wholly agree with Judge Greene that the circuit court erred in resolving the Batson issue; there was no support in the record for a finding that Spencer’s counsel had peremptorily struck prospective jurors based on race in earlier cases; and the appropriate remedy is a new trial. See Judge Greene’s Op. at 539, 547-48, 562-64,
Judge Greene asserts, and my other colleagues who write agree, that the dispute concerns step three of the Batson analysis
Contrary to my colleagues’ beliefs, Spencer never conceded that the circuit court made a proper determination at step one of the Batson analysis, much less agreed before this Court that the circuit court’s determination at step three was the sole issue in dispute. Quite the opposite, in his brief, Spencer urges this Court to “reject the trial [courtj’s Batson finding as clearly erroneous where there was no record evidence to support that finding of intentional discrimination, and where [Spencer’s] counsel vigorously disputed the trial [court]’s characterization.” Spencer’s contention сlearly goes to step one, which involves a determination of a prima facie case of purposeful discrimination. As Judge Greene accurately recounts, the State on brief alleges that “[t]his case addresses the third step, which is reviewed only for clear error[ ].” Judge Greene’s Op. at 553,
None of my colleagues identifies any explicit concession by Spencer that evidence of Spencer’s counsel’s past conduct goes solely to the circuit court’s determination at step three of the Batson analysis; instead, they rely on their interpretation of the record, despite Spencer’s contention that “there was no record evidence to support [the circuit court’s] finding of intentional discrimination[.]” It should be noted that, in the alternative, Spencer contended that, “even assuming [that] the trial [court]
In an opinion in which she dissents in part, Chief Judge Mary Ellen Barbera quotes the following statement by the majority of the panel of the Court of Special Appeals as to the Batson issue: “The [circuit] court made an express finding that there was a ‘pattern of striking white mostly male jurors, even jurors who have not answered a question.’ The [circuit] court then moved to the second Batson step, asking defense counsel to offer his rationale for the use of his peremptory strikes.” Op. at 574,
The prosecutor raised a Batson challenge, alleging that Spencer’s counsel had struck at least four white prospective jurors who had not responded to any questions during voir dire. In full context, the circuit court stated: “[Spencer’s counsel], you’ve been playing with this for a long time in your other trials. The Court has noticed a pattern of striking white mostly male jurors, even jurors who have not answered a question. I’m going to require you to explain your rationale or striking.” In other words, the circuit court did not expressly find that the State had established a prima facie case of purposeful discrimination based on Spencer’s counsel’s in-court conduct of peremptorily striking white prospective jurors; but, rather, without announcing that step one of the Batson analysis had been satisfied and without delineating between Spencer’s counsel’s in-court conduct or its recollection of trial counsel’s prior pattern of peremptorily striking white prospective jurors, the circuit court proceeded to step two of the Batson analysis and required trial counsel to provide race neutral reasons for the peremptory challenges.
Regardless of whether the dispute involves evidence of purposeful discrimination at step one of the analysis or the circuit court’s analysis at step three, the point which should be emphasized is that no Supreme Court or Maryland case law permits a remand to gather additional evidence post-trial of a Batson challenge at any stage of the analysis. Miller-El v. Dretke,
The jury convicted the defendant, who appealed. See id. at 236,
Years later, the defendant applied for a writ of habeas corpus, once again asserting that the peremptory strikes had been based on race. See id. at 237,
In Batson,
With respect to a remand as the remedy for a Batson violation, as Judge Greene notes, see Judge Greene’s Op. at 564,
[Ujnless it is impossible to reconstruct the circumstances surrounding the peremptory challenges, due perhaps to the passage of time or the unavailability of the trial judge, the proper remedy where the trial court does not satisfy Batson’s requirements is a new Batson hearing in which the trial court must satisfy the three-step process mandated by that case and its progeny.
(Emphasis added). In Edmonds, this Court ordered a remand pursuant to Maryland Rule 8-604, which states in pertinent part: “If the Court concludes that the substantial merits of a case will not be determined by affirming, reversing or modifying the judgment, or that justice will be served by permitting further proceedings, the Court may remand the case to a lower court.” Md. R. 8—604(d)(1) (emphasis added). In Edmonds,
Similarly, in Stanley v. State,
This is not to say though that we will always remand for an evidentiary hearing. There may come a time when we would simply reverse and remand for a new trial. For an example of a case that was reversed and a new trial ordered, see People v. Scott,70 N.Y.2d 420 ,522 N.Y.S.2d 94 ,516 N.E.2d 1208 , 1212 (N.Y.1987) (“A hearing is inappropriate in this case, however, because of the absence of a record and the impossibility of securing one.”).
(Emphasis added).
On a related matter, in Rivera v. Illinois,
Chief Judge Barbera brings up Rivera for the purpose of opining that, at some point, this Court should resolve the issue that the Supreme Court left open in Rivera—ie., whether a Batson error can be harmless under the Maryland Constitution. As Chief Judge Barbera expressly notes, however, this case cannot be a vеhicle for deciding that issue, as “neither party has even touched this issue, much less presented to this Court a properly preserved argument on the issue.” Chief Judge Barbera’s Op. at 582,
As a general rule, a trial judge should evaluate Batson challenges based on counsel’s in-court conduct, and not rely on his or her recollection of counsel’s performance in prior cases. Going forward, however, in some instances, the necessity for a pretrial determination concerning a trial judge’s recollection of counsel’s past practice of discrimination in employing peremptory challenges may arise; as such, I would provide the following guidance. The question of what a trial judge should do when he or she believes that counsel has a practice of exercising peremptory strikes in a discriminatory manner raises thorny issues. To the extent that a trial judge has recollections about counsel’s behavior in past cases and deems the recollections relevant, the question becomes whether a disclosure should be made and what procedure the trial judge should follow in making the disclosure. Where a trial judge believes that counsel has, in prior cases, struck prospective jurors based on discriminatory grounds, as a threshold matter, the trial judge must decide whether to inform the parties of his or her belief, outside of the hearing of the prospective jurors. The trial judge must use his or her best judgment and evaluate all of the relevant circumstances in determining whether to put the parties on notice of its belief—and, if so, what to communicate to the parties about its belief. From my perspective, during the jury selection process, a trial judge should not disclose information concerning counsel’s prior use of peremptory strikes unless the trial judge is convinced that a demonstrable pattern of the discriminatory use of peremptory strikes exists, that there is a record of prior Batson challenges attendant to counsel’s conduct, that Batson challenges have been sustained against counsel, and that the incidents are relatively recent in time.
Upon being informed of the trial judge’s recollection rеgarding a past pattern of discrimination, if counsel for the other party wishes to pursue the matter, the trial judge may pause jury selection and, if necessary, conduct a brief hearing, at which the other party would have the opportunity to present evidence or argument, and the challenged party would have the opportunity to rebut the claim of a pattern
II. Sufficiency of the Evidence
Because the issue of the sufficiency of the evidence to support the conviction for attempted second-degree intent-to-kill murder is dependent upon the facts and circumstances of this case, the relevant trial testimony is briefly described below.
At trial, as a witness for the State, Detective Priscilla Rogers (“Detective Rogers”) testified as follows. Detective Rogers observed a Kia Soul (“the Kia”) run a stop sign. Detective Rogers attempted to initiate a traffic stop by using her vehicle’s lights and siren, but the Kia kept going, thus starting a car chase. Multiple other law enforcement vehicles joined the pursuit. Eventually, while the Elia was in front of Detective Rogers’s vehicle, Detective Rogers saw Andrew Kinn (“Kinn”) on a bicycle on the side of the road. Detective Rogers estimated that her vehicle was two telephone poles away from Kinn when she first saw him. Kinn was wearing a bright yellow shirt, and multiple flags were flying from the back of his bicycle. Kinn saw the Kia, got off of his bicycle, and started moving toward a ditch beside the road. Despite having the opportunity to avoid Kinn, the Kia drove off of the road and onto the grass, where the Kia struck Kinn while going approximately sixty miles an hour. Kinn hit the Kia’s windshield, then flew approximately fifteen feet and landed in the ditch. During her investigation of the сar chase, Detective Rogers spoke with Keevin Robinson, one of the Kia’s passengers, who told Detective Rogers that he and the other passengers saw Kinn and told the driver to look out.
As a witness for the State, Deputy Christopher Tolley (“Deputy Tolley”) testified as follows. At one point during the car chase, Deputy Tolley was in front of the Kia, and saw Kinn as he tried to get off the road. The Kia moved to one side to get out from behind Deputy Tolley’s vehicle. Despite the fact that it would have been “very easy” for the Kia to avoid hitting Kinn by either turning onto the road or going into the ditch, the Kia continued going straight and struck Kinn.
As a witness for the State, Deputy Wendell Garrison (“Deputy Garrison”) testified as follows. Deputy Garrison could see Kinn from three telephone poles away. Per protocol, the law enforcement officers had left the Kia an avenue of escape, as opposed to surrounding the Kia on all sides. Despite being able to go into the opposite lane—in which there was no oncoming traffic—the Kia struck Kinn.
The circuit court instructed the jury on second-degree intent-to-kill murder in pertinent part as follows:
Second degree murder does not require premeditation or deliberation. In order to convict the Defendant of attempted murder in the second degree the State must prove: one, that the Defendant took a substantial step beyond mere preparation toward the commission of murder in the second degree; two, that the Defendant had the apparent ability at the time to commit the crime of murderin the second degree; and three, the Defendant attempted to actually kill [ ] Kinn.
The circuit court read Maryland Criminal Pattern Jury Instruction 3:31 nearly verbatim, stating in pertinent part: “[Y]ou may, but are not required to infer that a person ordinarily intends the natural and probable consequences of his acts or omissions.” This statement is legally accurate. See Jones v. State,
“Evidence is sufficient to support a conviction where, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. at 454-55,
If, during Spencer’s attempt to flee law enforcement, he saw and intended for his car to strike Kinn, an inference can be made that he had the specific intent to kill Kinn. In finding insufficient evidence to support the conviction, Judge Greene relies, in part, on the circumstance that Spencer was fleeing law enforcement officers to support a finding that Spencer lacked the specific intent to kill Kinn. See Judge Greene’s Op. at 570-71,
For the above reasons, respectfully, I concur in part and dissent in part.
. See Batson v. Kentucky,
. It is well-established that, where a party raises a Batson challenge, a trial court must follow a three-step process. First, the trial court determines whether the party that raised the Batson challenge has made a prima facie showing that the other party struck a prospective juror based on race. See Ray-Simmons v. State,
. In Mejia v. State,
Dissenting Opinion
I generally agree with the decision of the Court of Special Appeals and thus dissent from the decision in our Court. With respect to the Batson issue, the critical question is the merits of the Circuit Court’s determination that the reasons proffered by defense counsel for his peremptory strikes at Step Two of the Batson analysis were a pretext for unlawful discrimination on the basis of race or gender. As Judge Greene’s opinion notes at several junctures, because that determination depends largely on a trial court’s assessment of the credibility of counsel, appellate review is very deferential. For the reasons set forth in Chief Judge Barbera’s opinion, I cannot say that the trial judge’s determination in this case was clearly erroneous. At most, I would allow a limited remand, as suggested by one of the opinions in the Court of Special Appeals, to amplify the record for appellate review. I make two other observations.
First, this case highlights, like our other recent foray into the world of Batson challenges,
Second, the discussion in the trial court at Step Two of the Batson analysis illustrates how the use of preemptory strikes is at odds with how one would expect a justice system to operate. As Judge Greene’s opinion relates, the trial judge insisted that defense counsel рrovide a “rational basis” for counsel’s strikes. One might forgive the trial judge for believing that a justice system that is generally based on the application of reasoning minds to actual evidence would require a “rational basis” for striking a prospective juror. However, under the current system, an attorney need only come up with an explanation that is neutral on its face as to race, gender, and ethnicity; it need not be persuasive or even plausible.
In sum, the Batson analysis is not intuitive and appellate review is difficult and deferential. Whether it is effective in identifying strikes based on invidious discrimination is questionable. A better solution, in my view, would be to eliminate peremptory challenges altogether—a solution suggested by Justice Thurgood Marshall long ago and one that we can do by rule in Maryland, as I elaborated in our prior case.
Finally, I agree with Judge Watts that, although the evidence supporting the murder charge was not overwhelming, if one views it in the light most favorable to the State, it was sufficient to send the murder count to the jury.
. Ray-Simmons v. State,
. Batson v. Kentucky,
. Purkett v. Elem,
. Ray-Simmons,
. It is notable that reversal of all of Mr, Spencer’s convictions is sought here, not for any deficiency in the evidence or conduct of the trial or for any showing that any juror was not fair and impartial, but because his counsel was unable to exclude from the jury farmers, mechanics, and older citizens who have not had any run-ins with the law.
Dissenting Opinion
I respectfully dissent from the Majority’s opinion. On the Batson issue, I agree with Chief Judge Barbera that the trial judge was not clearly erroneous in finding that defense counsel’s reasons for striking the jurors were pretextual. Thus, it was proper for the trial judge to reseat the jurors whom defense counsel sought to exclude. I join only Part I of Chief Judge Barbera’s partial dissent.
Therefore, I would affirm the judgment of the Court of Special Appeals.