Mashea Ray-Simmons & Antionette McGouldrick v. State Of Maryland

Petitioners, Mashea Ray-Simmons and Antionette McGouldrick, were tried jointly

with a third codefendant before a jury in the Circuit Court for Baltimore City on charges

of first degree murder, conspiracy to commit murder, and related handgun offenses. Trial

proceeded over the course of eight days in April 2012. Petitioners were acquitted of first

degree murder but were found guilty and sentenced for second degree murder, conspiracy

to commit murder, and use of a handgun in the commission of a crime of violence. The

Court of Special Appeals affirmed Petitioners’ convictions in an unreported opinion. We

granted Petitioners’ petition for writ of certiorari to answer the following question:

Does a prosecutor’s response to an allegation of racial and gender discrimination in the exercise of a peremptory challenge that she intended to replace the stricken African American male juror with another African American male satisfy the requirement of Batson v. Kentucky, that the State a) provide a specific explanation for each challenged strike, which b) is racially, and with respect to gender, neutral?

II.

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

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Amendment.1 Excusing a juror on any of those bases violates both the defendant’s right

to a fair trial and the potential juror’s “right not to be excluded on an impermissible

discriminatory basis.” Edmonds v. State, 372 Md. 314, 329 (2002). Moreover, when the

striking party’s “choice of jurors is tainted with racial bias, that overt wrong casts doubt

over the obligation of the parties, the jury, and indeed the court to adhere to the law

throughout the trial, invit[ing] cynicism respecting the jury’s neutrality and undermin[ing]

public confidence in adjudication.” Miller-El v. Dretke, 545 U.S. 231, 238 (2005)

(citations, internal quotation marks, and ellipses omitted).

The Supreme Court announced in Batson a three-step process to assist the trial court

in deciding a claim that a party to the case exercised a peremptory challenge to eliminate a

prospective juror based on his or her race, gender, or ethnicity. The Supreme Court has

hewed to that process ever since Batson and has clarified how trial courts are to employ

the process and appellate courts are to review trial courts’ decisions. The Supreme Court

has emphasized that, throughout the process of evaluating such claims, “[t]he trial court

has a pivotal role.” Snyder v. Louisiana, 552 U.S. 472, 477 (2008).

At step one, the party raising the Batson challenge must make a prima facie

showing—produce some evidence—that the opposing party’s peremptory challenge to a

prospective juror was exercised on one or more of the constitutionally prohibited bases.

See Purkett v. Elem, 514 U.S. 765, 767 (1995) (per curiam). “[T]he prima facie showing

1 See Batson v. Kentucky, 476 U.S. 79, 89 (1986) (prohibiting challenges based on race); Hernandez v. New York, 500 U.S. 352, 369 (1991) (plurality opinion) (indicating that challenges based on ethnicity are prohibited); J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 130-31 (1994) (prohibiting challenges based on gender).

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threshold is not an extremely high one—not an onerous burden to establish.” Stanley v.

State, 313 Md. 50, 71 (1988). A prima facie case is established if the opponent of the

peremptory strike(s) can show “that the totality of the relevant facts gives rise to an

inference of discriminatory purpose.” Johnson v. California, 545 U.S. 162, 168 (2005)

(internal quotation marks omitted). Merely “a ‘pattern’ of strikes against black jurors in

the particular venire . . . might give rise to or support or refute the requisite showing.”

Stanley, 313 Md. at 60-61 (citing Batson, 476 U.S. at 97).

If the objecting party satisfies that preliminary burden, the court proceeds to step

two, at which “the burden of production shifts to the proponent of the strike to come

forward with” an explanation for the strike that is neutral as to race, gender, and ethnicity.

Purkett, 514 U.S. at 767. A step-two explanation must be neutral, “but it does not have to

be persuasive or plausible. Any reason offered will be deemed race-neutral unless a

discriminatory intent is inherent in the explanation.” Edmonds, 372 Md. at 330 (citation

omitted). “At this step of the inquiry, the issue is the facial validity of the prosecutor’s

explanation.” Hernandez v. New York, 500 U.S. 352, 360 (1991) (plurality opinion). The

proponent of the strike cannot succeed at step two “by merely denying that he had a

discriminatory motive or by merely affirming his good faith.” Purkett, 514 U.S. at 769.

Rather, “[a]lthough there may be any number of bases on which a prosecutor reasonably

might believe that it is desirable to strike a juror who is not excusable for cause,” the

striking party “must give a clear and reasonably specific explanation of his legitimate

reasons for exercising the challenge.” Miller-El, 545 U.S. at 239 (alterations omitted);

Stanley, 313 Md. at 61 (quoting Batson, 476 U.S. at 98 n.20).

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If a neutral explanation is tendered by the proponent of the strike, the trial court

proceeds to step three, at which the court must decide “whether the opponent of the strike

has proved purposeful racial discrimination.” Purkett, 514 U.S. at 767. “It is not until the

third step that the persuasiveness of the justification becomes relevant—the step in which

the trial court determines whether the opponent of the strike has carried his burden of

proving purposeful discrimination.” Johnson, 545 U.S. at 171 (quoting Purkett, 514 U.S.

at 768) (emphasis omitted); see also Edmonds, 372 Md. at 330. At this step, “the trial court

must evaluate not only whether the [striking party’s] demeanor belies a discriminatory

intent, but also whether the juror’s demeanor can credibly be said to have exhibited the

basis for the strike attributed to the juror by the [striking party].” Snyder, 552 U.S. at 477.

Because a Batson challenge is largely a factual question, a trial court’s decision in this

regard is afforded great deference and will only be reversed if it is clearly erroneous.

Edmonds, 372 Md. at 331.

Relevant to this case, the question of whether the challenger has made a prima facie

case under step one becomes moot if the striking party offers an explanation for the

challenged strike. See id. at 332 (citing Hernandez, 500 U.S. at 359) (holding that “whether

petitioner has made a prima facie showing that the State’s challenges were racially

motivated . . . is moot because the State offered explanations for its peremptory challenges

and the court ruled, in part, on the ultimate question of intentional discrimination”); Davis

v. Balt. Gas & Elec. Co., 160 F.3d 1023, 1027 (4th Cir. 1998) (holding that “whether the

party disputing the peremptory strikes has established a prima facie case of discrimination

is moot, since Defendant voluntarily offered racially neutral reasons for its strikes”). “The

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effect of a prima facie case of racial or gender discrimination is to shift the burden of

production to the party exercising the strike to offer a race or gender-neutral explanation.

Once a [race- and gender-neutral] explanation is offered, the prima facie case dissipates[.]”

Gilchrist v. State, 340 Md. 606, 634 (1995) (Chasanow, J., concurring).

It is against this backdrop that we determine whether the trial court correctly applied

the Batson process. Before doing so, however, we must resolve a preliminary matter that

requires our examination of what occurred before and during the process of selecting the

jury.

III.

On March 28, 2012, on what, save for a postponement, evidently was to have been

the first day of jury selection, Ms. McGouldrick’s counsel requested a “ruling that an

objection made by one defendant would be deemed made by the others.” The trial court

responded, “That’s fine. All objections are preserved.” During jury selection on April 9,

2012, the State initially exercised peremptory challenges to excuse Juror 4579 and Juror

4692, both of whom are African American men. When twelve jurors were seated, the trial

court asked the State if the panel was acceptable. At that point, the State asked to excuse

Juror 4583, another African American man who had not answered any questions during

voir dire. As counsel continued their attempt to seat a twelfth juror, the State exercised

two additional peremptory challenges of African American men, Juror 4773 and Juror

4909.

Upon the State’s exercise of its fifth peremptory challenge to excuse Juror 4909,

counsel for Petitioner Ray-Simmons asked to approach the bench. The following colloquy

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occurred between the trial court, Ms. Ray-Simmons’s counsel, and the State, with counsel

for the remaining defendants also present at the bench:

[DEFENSE COUNSEL]: On behalf of Defendant Ray-Simmons, Your Honor, the State has stricken – made five peremptory strikes; all five of them black, all five of them male. All five of them are no[t] educated and with all [due] respect, there seems to be very little other cause for striking. I think that it’s inappropriate.

THE COURT: All right. [State]?

[THE STATE]: Your Honor, as to 4909, the State struck him because of his age. As to 4773, that man appeared to have a real issue with numbers. He either wasn’t here this morning when his number was called or just doesn’t – he just appeared to have some issues with that.

As to 4583, I intended to replace him with another black male. Defense, I believe it was two[2] actually, ended up striking that person.

. . . .

As to 4692 - . . . His brother was convicted of CDS and he was unemployed. As to 4579 he’s also young.

THE COURT: Okay. All right.

[THE STATE]: I intend to strike more that would also be young.

THE COURT: That’s fine. Noted. I don’t think it would be used to establish a prima facie case. Thank you.

2 For purposes of jury selection, defense counsel were designated, respectively, as Defense One (Defendant Warren Savage, the remaining codefendant who is not a party to this appeal), Defense Two (Defendant Ray-Simmons), and Defense Three (Defendant McGouldrick).

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[DEFENSE COUNSEL]: Okay.

(Emphasis added). Jury selection resumed. When again twelve jurors were seated, the

trial court asked counsel for Ms. Ray-Simmons if the panel was acceptable to his client, to

which he replied “Acceptable.” Then, in response to the same question, counsel for Ms.

McGouldrick answered, “Acceptable, safe from [sic]3 prior objections, Your Honor.” Two

alternates were chosen without further controversy and the trial proceeded.

IV.

In its unreported opinion in this case, a panel of the Court of Special Appeals held

as a preliminary matter, without mention of the trial court’s March 28, 2012, ruling, that

neither Petitioner had preserved the Batson claim for appellate review because both had

accepted the composition of the jury at the close of jury selection. The panel nonetheless

addressed the Batson claim and held, in the alternative, that the trial court had not erred in

ruling that the claim failed for want of a prima facie case of discrimination and that the

prosecutor’s explanation was race- and (presumably) gender-neutral. Petitioners asked this

Court to accept certiorari to review not only the Court of Special Appeals’s holding on the

merits of their Batson claim, but also the intermediate appellate court’s preliminary

determination that Petitioners had not preserved the claim for appellate review. The State,

not surprisingly, agreed with the Court of Special Appeals on both grounds. The State later

noted in its brief before this Court that our decision on the merits of the Batson claim would

be advisory because it would leave standing the Court of Special Appeals’s threshold

3 We strongly suspect that counsel used the phrase “save for” rather than “safe from.”

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holding on non-preservation grounds. Notwithstanding that we denied certiorari on the

question of preservation, we deem it appropriate to address it to lay to rest any concern that

this be merely an advisory opinion. Upon our review of the record, it is clear to us that the

Batson claim was properly preserved by both Petitioners.

Based upon the trial court’s ruling at the outset of trial proceedings that “an

objection made by one defendant would be deemed made by the others,” the Batson

challenge raised expressly by counsel for Ms. Ray-Simmons was joined automatically by

counsel for Ms. McGouldrick. Likewise, when at the end of jury selection counsel for Ms.

McGouldrick stated that the jury was acceptable “safe from [sic] prior objections,” counsel

for Ms. McGouldrick preserved the Batson challenge for his client as well as Ms. Ray

Simmons. It is of no consequence, therefore, that counsel for Ms. Ray-Simmons accepted

the composition of the jury without repeating his prior objection.4

4 The dissent declares that we are engaging in a “sleight of hand” in concluding that both Petitioners have preserved the Batson challenge for appellate review because the trial court ruled on March 28, 2012, that an objection made by one defense counsel “would be deemed made by the others.” In the view of the dissent, the court’s ruling was limited to the pretrial motions that occurred later that day. We disagree. Certainly, as the dissent points out, pretrial motions were litigated later that day. But the ruling concerning preservation of objections was made earlier, in the context of a discussion among the trial court and all counsel concerning the general ground rules that would apply throughout trial. We come to this conclusion by reference to other rulings the court made that same morning. The trial court stated at the outset of the proceedings that “it’s my understanding[] that we are here to begin trial in this case.” The court then turned to a discussion with counsel about the trial schedule, including how many days the trial would take and at what times the proceedings would start and finish. The court next issued a rule on witnesses, requiring that all witnesses who would be testifying must stay outside of the courtroom, which we have little doubt was intended to apply throughout trial and was not limited to pretrial motions. Similarly, the court ruled that members of the audience who could not contain their emotions would be removed from the courtroom; that ruling, too, cannot reasonably be interpreted as applying solely to pretrial motions on evidentiary

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In a prior criminal case involving codefendants, we noted without contradiction one

commentator’s observation that, in cases involving codefendants, “[u]nless the identity

and/or status of the objecting party is a factor in the trial judge’s decision to overrule the

objection, any counsel’s objection really should be allowed to preserve the issue, at least

for all similarly situated parties.” Bundy v. State, 334 Md. 131, 146 (1994) (quoting Joseph

F. Murphy, Jr., Maryland Evidence Handbook § 102(C), at 13 (2d ed. 1993)). The State’s

exercise of peremptory challenges affected Ms. Ray-Simmons no more prominently than

Ms. McGouldrick. Indeed, a claim that the State is exercising its peremptory challenges

on the basis of race and gender implicates not only the parties to the case, but also the jurors

who were stricken on a discriminatory basis and the public’s perception generally of our

system of justice. These are the very concerns underpinning the Batson decision that bring

us here today. See Miller-El, 545 U.S. at 238. Taking together Ms. Ray-Simmons’s

objection and Ms. McGouldrick’s preservation of that objection, given the trial court’s

earlier ruling, we hold that both Petitioners preserved for appellate review their challenge

issues. The court also confirmed that counsel had secured an order that would allow their clients to wear civilian clothing. That concern, of course, does not arise in the context of pretrial motions litigated before a jury is sworn. Of particular note is that, moments prior to the ruling at issue, the trial court explained its expectations regarding objections made during trial. The court stated, “All right. Counsel, with regard to objections; objections to a certain extent should be limited to one or two or three word objections.” The court explained that: “I just hate to have the trial continually be delayed by approaching.” Shortly thereafter, counsel for Ms. McGouldrick raised the request for a ruling in favor of joint objections as a “housekeeping matter” made “[i]n terms of the Court’s policy regarding objections.” Viewed in that context, counsel’s request was part of the same discussion as the court’s expectations towards objections generally, and was not limited to the pretrial motions the court entertained that day.

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to the State’s peremptory challenges. We therefore reverse the Court of Special Appeals’s

holding to the contrary.

V.

We turn now to Petitioners’ challenge to the trial court’s Batson ruling. Their

argument has several prongs. They argue that the court, by calling upon the State to explain

its peremptory strikes, rendered moot the question of whether Petitioners had carried their

preliminary burden of making out a prima facie case; even so, Petitioners had satisfied their

burden of producing evidence of discrimination in the State’s exercising all five strikes—

the only strikes the State had made by that point of jury selection—to remove African

American men from the jury. Petitioners further argue that the prosecutor’s explanation

for striking Juror 4583 violated the dictates of Batson because the explanation lacked the

requisite specificity and on its face was based on the juror’s race and gender. We agree

with Petitioners on all scores.

(a)

The preliminary “step one” determination of whether the objecting party has made

out a prima facie case of a Batson violation becomes moot when the striking party tenders

an explanation for the challenged peremptory strike(s). Hernandez, 500 U.S. at 359; Davis,

160 F.3d at 1027; Edmonds, 372 Md. at 332. When in this case Petitioners asserted a

Batson violation, the court turned its attention to the prosecutor, who immediately provided

an explanation for each of the five peremptory strikes. If, in calling upon the State to

respond, the trial court was looking to the State merely to address Petitioners’ showing of

a prima facie case, the court erred as a matter of law. “What reasons a prosecutor may

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advance for his challenges are not relevant to a prima facie showing vel non. It is the

‘circumstances’ concerning the prosecutor’s use of peremptory challenges which may

create a prima facie case of discrimination against black jurors, not the reasons given for

the challenges.” Tolbert v. State, 315 Md. 13, 18 (1989).

The prosecutor explained that she excused Juror 4909 and Juror 4579 because of

their youth; Juror 4773 had an issue with numbers; and Juror 4692 was unemployed and

his brother had been convicted of a crime. With regard to Juror 4583, the prosecutor

explained only: “I intended to replace him with another black male.” Notwithstanding

that the court evidently believed the Batson inquiry remained at step one, even after the

prosecutor’s proffered explanations for her strikes, those explanations automatically

moved the Batson inquiry from the first to the second step. Edmonds, 372 Md. at 332.

Furthermore, the record demonstrates that Petitioners satisfied their preliminary

burden of producing a prima facie case of race- and gender-based strikes by the State.

When Petitioners lodged their Batson challenge, the State had exercised five peremptory

challenges, all of which were to remove African American men. This evidence sufficed to

establish a prima facie case of race and gender discrimination. See Johnson, 545 U.S. at

173; Batson, 476 U.S. at 97 (noting that a mere “‘pattern’ of strikes against black jurors

included in the particular venire might give rise to an inference of discrimination,” thereby

satisfying step one); Stanley, 313 Md. at 72 (concluding that a prima facie case of racial

discrimination was established where “the State used 80 percent of its peremptory

challenges (eight of 10 strikes) to strike blacks from the jury panel”). The trial court erred

in ruling that Petitioners had not made out a prima facie case of a Batson violation.

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(b)

The State, by proffering an explanation for each of its strikes, moved the Batson

inquiry to step two. At that step, the State, as the party exercising the challenged

peremptory strike, carries the burden of coming forward with “a clear and reasonably

specific explanation of its legitimate reasons for exercising the challenge.” Miller-El, 545

U.S. at 239 (alteration omitted) (quoting Batson, 476 U.S. at 98 n.20); see also Chew v.

State, 317 Md. 233, 245 (1989) (noting that the striking party must provide an explanation

for every strike). The State in this case failed to do so.

Petitioners have no quarrel with the State’s explanation of its reasons for striking

Jurors 4579, 4692, 4773, and 4909; their concern focuses squarely on the State’s

explanation for challenging Juror 4583. They argue that the prosecutor’s proffered

explanation that she intended to replace Juror 4583 with another juror of the same race and

gender—“I intended to replace him with another black male”—fails to satisfy the

requirement of Batson that the explanation be “clear and reasonably specific”; moreover,

the explanation on its face is race- and gender-based. We agree. A desire to replace a juror

with another unspecified member of the panel does not explain in any way, race-neutral or

otherwise, the prosecutor’s reasons for striking that particular juror. See State v. Hicks,

499 S.E.2d 209, 212 (S.C. 1998) (concluding that the defendant failed to comply with

Batson by explaining that he wanted “to reach some jurors further down the list” because

he did not explain “which jurors he was attempting to seat or why other jurors were more

desirable” and therefore “[t]he effect was the same as if no reason was given”) (internal

quotation marks omitted).

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The State acquiesces on this point, acknowledging that the prosecutor’s response

vis-à-vis Juror 4583 hardly amounts to an explanation of the reason for striking that

prospective juror. Yet, in the State’s view, the prosecutor’s statement was merely an

attempt to dispute Petitioners’ prima facie case and did not move the conversation to a step

two Batson inquiry. We explained in part (a) why that argument fails. Rather, the fact that

the State’s explanation for striking Juror 4583 was non-responsive establishes that the

peremptory strike did not comply with Batson. See Bui v. Haley, 321 F.3d 1304, 1311-12

(11th Cir. 2003) (concluding that “the State’s total failure to present any reason for the

striking of the eleventh juror prevented it from rebutting the defendant’s prima facie case

of race discrimination”).

Not only was the prosecutor’s explanation insufficiently clear and specific, it was

also not race- and gender-neutral. We agree with Petitioners that the prosecutor’s apparent

intention to replace Juror 4583 with another African American man discloses that race and

gender factored improperly into the prosecutor’s decision, in violation of Batson. In Tyler

v. State, 330 Md. 261, 267-68 (1993), the prosecutor explained that his reason for striking

African American female jurors was not because of their race, but rather because they were

women and the prosecutor desired to have more men on the jury. We held, prior to the

Supreme Court’s decision in J.E.B. v. Alabama ex rel T.B., 511 U.S. 127, 130-31 (1994),

that exercising a peremptory challenge on the basis of gender violates Article 24 of the

Maryland Declaration of Rights. Tyler, 330 Md. at 270. Had Tyler been decided today,

we have no doubt that an explanation like the one provided by the prosecutor in that case

also would run afoul of the Batson line of cases. See also Elliott v. State, 185 Md. App.

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692, 719 (2009) (holding that the State’s exercise of peremptory challenges against men

did not comply with Batson—even though the State’s intention was to reach a more

balanced jury—because the State based its decision on gender).

Decisions of our sister jurisdictions are in accord with our conclusion. State v.

Coleman, 970 So. 2d 511 (La. 2007), is one such case. The prosecutor in Coleman had

proffered in response to the defendant’s Batson challenge that one African American juror

“has filed a lawsuit against the city alleging institutional discrimination. Defense counsel

voir dired on the race issue. There is a black defendant in this case. There are white

victims.” Id. at 513-14 (footnote omitted). The Supreme Court of Louisiana concluded

that this explanation was not race-neutral under Batson because the prosecutor “specifically

referenc[ed] the race of the defendant and the victim.” Id. at 516. As a result, “the explicit

interjection of race, without further explanation, renders implausible any explanation other

than that the decision to strike this prospective juror was not race-neutral.” Id.; see also

People v. Mallory, 993 N.Y.S.2d 609, 612 (N.Y. App. Div. 2014) (rejecting the

prosecutor’s explanation that the stricken juror “believes that police sometimes single out

minorities and I have Caucasian police officers that are going to be taking the stand”

because “the prosecutor explicitly referenced race in explaining his reasons”) (internal

quotation marks omitted); Guzman v. State, 85 S.W.3d 242, 247 (Tex. Crim. App. 2002)

(en banc) (emphasizing that “the fact that a litigant mentions race in his explanation for

peremptory challenge is indicative . . . of purposeful discrimination”).

We hold that the prosecutor’s explanation for striking Juror 4583, in addition to

lacking the requisite specificity, violated Batson because on its face the explanation was

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neither race- nor gender-neutral.

V.

It remains for us to decide the remedy to which Petitioners are entitled. Under some

circumstances, we have ordered a limited remand after a Batson violation instead of a new

trial to allow the trial court to complete the three-step inquiry. We noted in Edmonds that,

unless 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. 372 Md. at 339-40. A limited remand may be appropriate, for example, where the State

was not given an opportunity at trial to explain its reasons for exercising the contested

peremptory challenges. See Mejia, 328 Md. at 540 (ordering a limited remand because less

than two years had passed since the trial began and “the State was not given the opportunity

to explain its striking of [the challenged juror]”); Stanley, 313 Md. at 75-76 (ordering a

limited remand “to permit the State to provide, if it can, racially neutral reasons for its use

of peremptories”). We also have recognized, however, that “certain difficulties are

inherent in attempting to reconstruct events that occurred a year or more earlier.” Chew,

317 Md. at 239.

We are persuaded that it would be impossible to reconstruct a jury that tried and

convicted Petitioners almost four years ago. See id. (noting that a new trial is the

appropriate remedy for a Batson violation when “the passage of time precludes fair

consideration of the relevant issues”). Nor is there any legitimate reason for doing so given

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that the prosecutor explained her reasons for exercising her peremptory challenges.

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. [Petitioners] are entitled to a new trial without further ado. We therefore conclude that Petitioners are entitled to a new trial.