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 Batson Challenge, were a pretext for racial discrimination. Batson v. Kentucky, 476 U.S. 79, 97-98, 106 S.Ct. 1712, 1723-24, 90 L.Ed.2d 69, 88-89 (1986). Spencer argues that defense counsel provided valid, race neutral explanations; however, the trial judge did not point to evidence, on the record, to support the court's finding that the challenged party's explanation was a pretext for racial discrimination. Thus, the presiding judge, at best, made a conclusion based upon disputed facts that were not properly made a part of the record. In addition, the evidence was insufficient to satisfy the element of specific intent to kill which is necessary to sustain a conviction of second-degree attempted murder. Accordingly, we shall reverse the judgment of the Court of Special Appeals and direct that the case be remanded for a new trial as to all remaining counts except for the count charging attempted second-degree murder.
FACTUAL AND PROCEDURAL BACKGROUND
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:
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?"
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:
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.
At this point counsel and defendant returned to the trial table and the following discussion ensued in open court:
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 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:
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
Gilchrist v. State, 340 Md. 606, 627, 667 A.2d 876, 886 (1995).
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, 433 Md. 666, 678, 72 A.3d 587, 594 (2013).
As to the sufficiency of evidence to support a conviction for attempted second-degree murder this Court has held:
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.
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, 476 U.S. at 86-87, 106 S.Ct. at 1717-18, 90 L.Ed.2d at 81 (internal quotation and citation omitted). See also U.S. CONST. Amend. XIV; MD. CONST. DECL. OF RTS. Art. 24. Therefore, counsel in a criminal prosecution, may not use peremptory challenges to exclude jurors based on race or on the assumption that a juror will not be impartial on account of his or her race. Tyler v. State, 330 Md. 261, 266, 623 A.2d 648, 651 (1993). See also Gilchrist, 340 Md. at 625, 667 A.2d at 885 (holding under the Equal Protection Clause of the Fourteenth Amendment and Article 24 of the Maryland Declaration of Rights, "peremptory challenges may not be exercised on the basis of race"). Batson protection applies to persons of all races. The Batson Court enumerated the underlying policy rationales:
Batson, 476 U.S. at 87, 106 S.Ct. at 1718, 90 L.Ed.2d at 81.
Batson outlined a three-step process for evaluating when counsel has used
Gilchrist, 340 Md. at 625-27, 667 A.2d at 885-86 (internal quotations and citations omitted).
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, 340 Md. at 625-27, 667 A.2d at 885-86. As the Supreme Court explained in Purkett, "once the opponent of a peremptory challenge has made out a prima facie case of racial
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, 317 Md. 250, 258-61, 562 A.2d 1278, 1282-83 (1989). In the case at bar, the prosecutor approached the bench and indicated to the court that defense counsel was striking mostly white males and females, and requested that defense counsel put on the record the reasons for those strikes. Similarly, in Ray-Simmons "[w]hen . . . [the challenging party] asserted a Batson violation, the court turned its attention to the [challenged party], who immediately provided an explanation for each of the  peremptory strikes." Ray-Simmons v. State, 446 Md. 429, 443, 132 A.3d 275, 283 (2016) (holding the challenging party satisfied its burden of producing a prima facie case because the challenged party exercised five peremptory challenges to remove African American men). Moreover, in Ray-Simmons, the challenged party, "by proffering an explanation for each of its strikes, moved the Batson inquiry to step two . . . those explanations automatically moved the Batson inquiry from the first to the second step." Ray-Simmons, 446 Md. at 443-44, 132 A.3d at 283-84. See also Edmonds v. State, 372 Md. 314, 332, 812 A.2d 1034, 1044 (2002) ("Turning to the merits of petitioner's Batson challenge, we note first that step one, whether petitioner has made a prima facie showing that the State's challenges were racially motivated, is not at issue in this case. The issue is moot because the State offered explanations for its peremptory challenges[.]").
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, 514 U.S. at 767-68, 115 S.Ct. at 1771, 131 L.Ed.2d at 839. The Supreme Court has held "[u]nless a discriminatory intent is inherent in the [defense counsel's] explanation, the reason offered will be deemed race neutral." Hernandez v. New York, 500 U.S. 352, 360, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395, 406 (1991). See also Purkett, 514 U.S. at 769, 115 S.Ct. at 1771, 131 L.Ed.2d at 838 ("What it means by a `legitimate reason' is not a reason that makes sense, but a reason that does not deny equal protection."). Our Court has stated that the challenged party must provide an explanation that is race neutral, not one that is necessarily believable. Edmonds v. State, 372 Md. 314, 332, 812 A.2d 1034, 1044.
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
Edmonds, 372 Md. at 335-36, 812 A.2d at 1046. Similarly, here, defense counsel indicated that he struck juror 168 based on his age: "[m]y experience is that people who are of substantial age tend to credit law-enforcement, and to credit the system to a degree that ultimately affords an unfairness to my client." Counsel also pointed out that he permitted Juror 6, a thirty year old white male, to remain on the jury due to his young age because he could be beneficial to his client.
In Parker v. State, 365 Md. 299, 304-09, 778 A.2d 1096, 1099-101 (2001), counsel's employment concern was considered a race neutral explanation where counsel struck a juror, a criminal assignment officer, because she might be less sympathetic and was exposed to criminal cases every day. "[T]he trial court erred in rejecting the facially-valid, race-neutral reasons tendered by defense counsel for exercising the peremptory strikes and reseating the two stricken jurors on the panel"; therefore, the defendant's conviction was reversed and a new trial was ordered. Parker, 365 Md. at 309-10, 778 A.2d at 1101-02 (finding that the record did not support discrimination as one juror could be more sympathetic and the other juror indicated his doctor's appointment was an "absolutely compelling reason" and made it "impossible" for him to serve). We noted that the trial judge merely stated the reasons were unacceptable because both jurors indicated they could be fair and "[w]ithout further explanation or making additional findings" he reseated the jurors. Parker, 365 Md. at 310, 778 A.2d at 1102. Similarly, Spencer in
In Edmonds, counsel's striking of all jurors with relatives convicted of a crime did not amount to unconstitutional discrimination. Edmonds, 372 Md. at 333-34, 812 A.2d at 1044-45 ("Our research has uncovered no court that has held as inherently discriminatory a peremptory strike based on a juror having a relative convicted of a crime. A criminal conviction or having a relative convicted of a crime is not a `characteristic' peculiar to any race."). In that case the defendant argued it was an improper remedy for the trial court to not reseat two improperly stricken jurors. Edmonds, 372 Md. at 326, 812 A.2d at 1041. Defendant wanted jurors Ashe and Smith reseated but the trial judge did not say why he would not reseat them. Edmonds, 372 Md. at 324-26, 812 A.2d at 1039-40. This Court held that the trial court failed to satisfy step three of the Batson analysis as to those two jurors: "we cannot tell from this record whether the trial court believed the prosecutor's explanations." Edmonds, 372 Md. at 338, 812 A.2d at 1048 (noting that it was unclear whether the judge found the explanation credible as he first stated he did not buy the explanation, but later stated the explanation could be legitimate). This Court further stated:
Edmonds, 372 Md. at 339, 812 A.2d at 1048. In the case sub judice, rather than strike jurors with family members affected by the criminal justice system as the prosecutor in Edmonds did, defense counsel here chose to keep jurors 63 and 176 because of their family's experience with the criminal justice system. When the trial judge asked counsel why these jurors, who were older than juror 168, were not stricken, defense counsel was able to articulate clearly that they were "advantageous" and likely to be sympathetic towards the defendant.
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, 340 Md. at 627, 667 A.2d at 886. "[T]he ultimate question of discriminatory intent represents a finding of fact of the sort accorded great deference on appeal[.]" Hernandez, 500 U.S. at 353, 111 S.Ct. at 1863, 114 L.Ed.2d at 401.
The trial court must decide whether that explanation is legitimate or pretextual. Purkett, 514 U.S. at 768, 115 S.Ct. at 1771, 131 L.Ed.2d at 839. A trial judge can make a credibility assessment of the challenged party's explanation "by the [challenged party's] demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy." Miller-El I, 537 U.S. at 324, 123 S.Ct. at 1032, 154 L.Ed.2d at 942.
Edmonds, 372 Md. at 330, 812 A.2d at 1043 (citing Hernandez, 500 U.S. at 363, 111 S.Ct. at 1868, 114 L.Ed.2d at 408) (emphasis added). Counsel's past behavior can also be a potential factor to determine the legitimacy of the explanation, as the Stanley court stated, "factors include `the susceptibility of the particular case to racial discrimination, . . . the race of the victims and primary witnesses, . . . the prosecutor's demeanor, . . . a past pattern of discriminatory practices by a prosecutor's office,. . . whether similarly situated white jurors were struck on identical or comparable grounds.'" Stanley, 313 Md. at 79, 542 A.2d at 1281 (internal quotations and citations omitted).
In the case sub judice, 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, 476 U.S. at 97-98, 106 S.Ct. at 1723-24, 90 L.Ed.2d at 83-89. It appears that the trial judge simply did not believe defense counsel's race neutral explanations for the peremptory strikes and that the primary basis for that disbelief was attributable to a pattern involving defense counsel's trial tactics and practice. The judge's impression of this alleged practice, which he perceived in other trials and in the present case, was never documented on the record. Specifically the judge made various statements including: "[t]he Court's seen the pattern . . . [a]nd has the records", "[e]very juror you struck on our trial on Monday was white", and "[f]or 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." We have noted, in a different context, that "[t]he fact that the trial court's bases for its decision (the statement allegedly given by the unnamed public defender and the file consulted by the judge) are beyond our reach makes it untenable to sustain the trial court's ruling as a permissible exercise of discretion." Grant v. State, 414 Md. 483, 498, 995 A.2d 975, 983 (2010) (holding that the "trial court abused its discretion by relying exclusively on information out-side of the record in denying Grant a postponement to seek counsel."). "The general
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, 537 U.S. at 324, 123 S.Ct. at 1032, 154 L.Ed.2d at 942. Actual evidence included testimony from two former prosecutors in the same office and a copy of a former office manual that outlined the reasons for excluding potential jurors of color. Miller-El I, 537 U.S. at 334-35, 123 S.Ct. at 1038-39, 154 L.Ed.2d at 948-49. See also Miller-El v. Dretke (Miller-El II), 545 U.S. 231, 266, 125 S.Ct. 2317, 2340, 162 L.Ed.2d 196, 230 (2005) (holding that the striking of black jurors was pretextual and Miller-El was entitled to prevail on his Batson claim based on evidence of discrimination which was initially presented at a Swain hearing, i.e., a pretrial hearing to determine whether there was evidence indicating a systemic exclusion based on race pre-Batson, and later used as part of the Batson hearing).
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, 552 U.S. 472, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008). The factors
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, 552 U.S. at 479-86, 128 S.Ct. at 1209-12, 170 L.Ed.2d at 182-86 ("The second reason proffered for the strike of Mr. Brooks—his student-teaching obligation—fails even under the highly deferential standard of review that is applicable here."). Thus, the Court reversed on the basis of this context analysis and held the prosecutor's explanation was "implausible," giving rise to the inference of discriminatory intent. Id. (holding, upon review of the trial judge's finding, that the trial judge committed clear error).
In the case sub judice, 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.
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, 433 Md. at 678, 72 A.3d at 594.
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:
Edmonds, 372 Md. at 339-40, 812 A.2d at 1048-49. See also Md. Rule 8-604. In the case at bar, there is a significant "lapse in time" after the jury selection. Almost three years have passed since trial began on January 8, 2014. The following events have occurred, a trial on the merits and two appellate reviews. See Mejia v. State, 328 Md. 522, 540, 616 A.2d 356, 365 (1992) (holding that less than two years since jury selection began would not be a "sufficient lapse of time to justify a grant of a new trial"). See also Edmonds, 372 Md. at 339-40, 812 A.2d at 1048-49 (ordering a remand because under two years had lapsed after the original trial concluded); Stanley, 313 Md. at 76, 542 A.2d at 1279 (ordering a remand about two years after trial). In Ray-Simmons, we reversed and ordered a new trial noting that over three years had lapsed since the defendant's trial. Ray-Simmons, 446 Md. at 447, 132 A.3d at 286.
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, 446 Md. at 434, 132 A.3d at 278. We explained that there was no "legitimate reason" for remanding for a new Batson hearing as the prosecutor had provided her explanations for the strikes, which were clearly improper and violated Batson "on its face". Ray-Simmons, 446 Md. at 446-47, 132 A.3d at 285-86 (holding that the judge was clearly erroneous in his ruling). Similarly, here, based on the record, there was no competent evidence to support the trial judge's conclusion that counsel's peremptory strikes were a pretext for racial discrimination.
In some cases remand may be more appropriate. See Edmonds, 372 Md. at 339-40, 812 A.2d at 1048-49 (holding that the trial judge acted improperly by not making a clear finding of pretext under step three); Mejia, 328 Md. at 539-41, 616
In Tyler v. State, 330 Md. at 270-71, 623 A.2d at 653, "the trial judge flatly rejected defense counsel's objections to the prosecutor's peremptory challenges based on gender discrimination without requiring the prosecutor to explain his conduct"; therefore, reversal was appropriate. The Tyler Court explained:
Tyler, 330 Md. at 271, 623 A.2d at 653 (1993).
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 find 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, 372 Md. at 330, 812 A.2d at 1043; Stanley, 313 Md. at 79, 542 A.2d at 1281. On the basis of the record before us the prosecution did not prove racial pretext based on a pattern of discrimination. Thus, the trial judge's conclusion based upon disputed facts that were not in the record of this case and our inability to review the trial judge's undocumented beliefs warrants a reversal.
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:
Harrison, 382 Md. at 488, 855 A.2d at 1226.
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, 319 Md. 156, 162, 571 A.2d 1227, 1230 (1990).
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, 319 Md. at 164, 571 A.2d at 1231. The intent which is required in the crime of "attempted murder is the specific intent to murder, i.e., the specific intent to kill under circumstances that would not legally justify or excuse the killing or mitigate it to manslaughter." Earp, 319 Md. at 167, 571 A.2d at 1233. This Court discussed that one may be found guilty of murder even if there was no actual intent to kill, however, to be guilty of attempted murder there must be a specific intent to kill.
In Smallwood, 343 Md. at 100, 680 A.2d at 513, this Court found that, under the facts of the case, the circumstantial evidence was insufficient to infer that Defendant had the required intent to kill for a conviction of attempted second-degree murder. The Defendant knew he had HIV when he raped three women at gun point. Smallwood, 343 Md. at 102, 680 A.2d at 514. The State argued, and the intermediate appellate court upheld the convictions, that his HIV positive status could be considered a deadly weapon and having unprotected sex with the women, knowing he was infected, would be equivalent to firing a loaded gun at the person. Id. Because Smallwood did not argue his acts were "performed under mitigating circumstances or that he was legally justified in attacking the women" he would only be found guilty of attempted murder "if there was sufficient evidence from which the trier of fact could reasonably have concluded that Smallwood possessed a specific intent to kill at the time he assaulted each of the three women." Smallwood, 343 Md. at 104, 680 A.2d at 515. Under the present facts, the same applies as Spencer is not arguing mitigating circumstances or that he was legally justified in colliding with Kinn.
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, 343 Md. at 106, 680 A.2d at 516. Similarly, Spencer's actions can be "wholly explained" by his trying to flee the police. Moreover, unlike shooting a gun as was the case in Raines, or stabbing a person in the abdomen as was the case in Glenn, the death of a cyclist is not a probable consequence of Spencer's recklessly driving away from the police. See Raines, 326 Md. at 591, 606 A.2d at 269; Glenn, 68 Md.App. at 409, 511 A.2d at 1126. Although a car is not ordinarily considered a deadly weapon, it could be used as one. There is no evidence that Spencer's goal was to harm Kinn. His goal was to avoid apprehension by the police. Kinn's left leg was struck by the Kia and his other injuries were sustained after he was thrown into the air from the impact and landed on the vehicle. Engaging in extremely reckless activity is not sufficient to sustain attempted murder. The defendant must actually know that the
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 testimony 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, 319 Md. at 166-67, 571 A.2d at 1232-33 (holding that the conviction of attempted second-degree murder must be reversed where Earp inflicted serious bodily harm, but rather than drawing an inference that Earp had the required intent to kill, the trial judge erroneously found that Earp only had an intent to inflict serious bodily harm alone, which is insufficient).
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, 319 Md. at 165, 571 A.2d at 1232. Based on Spencer's conduct, the inference that he had the intent to kill is not proper. As we indicated in Smallwood, "[w]ithout evidence showing that such a result is sufficiently probable to support this inference, we conclude that [Defendant's] convictions for attempted murder [in the second-degree] must be reversed." Smallwood, 343 Md. at 109, 680 A.2d at 518.
For the reasons stated above, we reverse without a retrial the judgment of the
Barbera, C.J., dissents in part.
Watts, J., concurs and dissents.
McDonald and Getty, JJ., dissent.
Barbera, C.J., 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, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Indeed, I have no quarrel with any part of the analysis of this issue by the majority of the three judges who decided this case for the Court of Special Appeals.
Finally, I note the attention that the federal courts and our sister state courts are giving, in light of Rivera v. Illinois, 556 U.S. 148, 129 S.Ct. 1446, 173 L.Ed.2d 320 (2009), to the appropriate remedy for trial court errors like the one the majority of my colleagues imagine occurred in the present case.
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, 446 Md. 429, 435, 132 A.3d 275 (2016). The Supreme Court set forth a three-step process to assist the trial judge in deciding a claim that a party to the case exercised one or more peremptory challenges to eliminate prospective jurors based on race, gender, or ethnicity. I need not repeat the now-familiar three-step process, as it is fully described in the majority opinion. See Maj. Op. at 551-53, 149 A.3d at 621-23. The dispute centers on the third step of the three-step process. It is at that step that the party challenging opposing counsel's exercise of peremptory strikes must carry the burden of proving to the trial judge's satisfaction that the facially neutral explanations given by the striking party are merely pretextual. Purkett v. Elem, 514 U.S. 765, 767-68, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam). At that step, "the trial court must evaluate not only whether the [striking party's] demeanor
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:
Spencer v. State, No. 493, slip op. at 4-6, 2015 WL 5782927 (Md. Ct. Spec. App. Oct. 2, 2015) (footnote omitted).
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, 545 U.S. 231, 240, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005) (citation omitted).
On the subject of what the trial judge knew about defense counsel's past practices, the majority of the panel had this to say:
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 case, "every juror you struck has been white[.] Every juror you struck on our trial on Monday
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:
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:
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.
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, 556 U.S. at 148, 129 S.Ct. 1446. I take this opportunity to spend a few moments on Rivera, as it speaks directly to the potential remedy for Batson-related errors like the one the majority of my colleagues imagine occurred in the present case.
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." 556 U.S. at 156, 129 S.Ct. 1446.
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, 556 U.S. at 157, 129 S.Ct. 1446. Justice Ginsburg, writing for the unanimous Court, restated the longstanding principle that there is no federal constitutional right to peremptory challenges, although States may provide for such challenges by statute. Id.; see also U.S. v. Martinez-Salazar, 528 U.S. 304, 311, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000); Ross v. Oklahoma, 487 U.S. 81, 88, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988) ("We have long recognized that peremptory challenges are not of constitutional dimension."). Consequently, "the mistaken denial of a state-provided peremptory challenge does not, without more, violate the Federal Constitution." Rivera, 556 U.S. at 158, 129 S.Ct. 1446. Although one's fundamental right to a trial by an impartial jury must be secured, that right is secured by use of challenges for cause. See id. at 158-59, 129 S.Ct. 1446.
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, 129 S.Ct. 1446. The Court, moreover, rejected Rivera's argument that the erroneous denial of a criminal defendant's challenge violates the Due Process Clause of the Fourteenth Amendment or other federal law. Id. at 159-61, 129 S.Ct. 1446. The Court distinguished the cases cited by Rivera that involve constitutional errors relating
Notwithstanding its rejection of Rivera's federal constitutional claims, the Rivera Court emphasized:
Id. at 162, 129 S.Ct. 1446.
This Court considered a substantially similar set of facts in Parker v. State, 365 Md. 299, 311, 778 A.2d 1096 (2001), and concluded that a defendant was entitled to a new trial following the trial judge's erroneous denial of defense peremptory challenges. As in the present case, the Court in Parker was not asked to consider whether, as a result of the trial judge's error, Parker was entitled automatically to a new trial, or instead whether a harmless error analysis determines entitlement to such relief. In light of Rivera and the federal and state high court decisions that have issued in its wake, this Court should settle the question as a matter of Maryland law. This case, however, is not the one in which to do that, as neither party has even touched this issue, much less presented to this Court a properly preserved argument on the issue.
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
I. Proper Remedy for the Circuit Court's
I wholly agree with Judge Greene that the circuit court erred in resolving the
Judge Greene asserts, and my other colleagues who write agree, that the dispute concerns step three of the
Contrary to my colleagues' beliefs, Spencer never conceded that the circuit court made a proper determination at step one of the
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
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
The prosecutor raised a
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
The jury convicted the defendant, who appealed.
Years later, the defendant applied for a writ of habeas corpus, once again asserting that the peremptory strikes had been based on race.
With respect to a remand as the remedy for a
(Emphasis added). In
On a related matter, in
Chief Judge Barbera brings up
As a general rule, a trial judge should evaluate
Upon being informed of the trial judge's recollection regarding 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 Kia 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 car 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:
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.
"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."
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.
For the above reasons, respectfully, I concur in part and dissent in part.
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 provide 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.
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.
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, 808 N.W.2d 207, 225 (Iowa 2012) (holding that a presumption of prejudicial error follows an erroneous denial of a defendant's peremptory challenge, thereby mandating a reversal of the defendant's conviction); Commonwealth v. Hampton, 457 Mass. 152, 928 N.E.2d 917, 927 (2010) ("We continue to adhere to the view that, for purposes of State law, the erroneous denial of a peremptory challenge requires automatic reversal, without a showing of prejudice."); State v. Campbell, 772 N.W.2d 858, 862 (Minn. Ct. App. 2009) (concluding that the State law "requirement of automatic reversal survives Rivera"); People v. Hecker, 15 N.Y.3d 625, 917 N.Y.S.2d 39, 942 N.E.2d 248, 271-72 (2010) (concluding that a mistaken denial of a peremptory challenge "mandates automatic reversal") with, e.g., People v. Novotny, 320 P.3d 1194, 1202 (Colo. 2014) ("While we do not imply today that every violation of our statutes and rules prescribing the use of peremptory challenges must be disregarded as harmless, we are nevertheless unwilling to conclude that such violations... rise to the level of structural error."); State v. Lewis, 112 So.3d 796, 804 (La. 2013) ("[W]e find the harmless-error analysis... remains the appropriate standard for review of a district court ruling prohibiting a defendant from using a peremptory challenge."); Robinson v. State, 255 P.3d 425, 430 (Okla. Crim. App. 2011) (overruling state law precedent mandating automatic reversal following an erroneous denial of a defendant's peremptory challenge in favor of a harmless error analysis).
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, 751 F.3d 35, 39 (1st Cir. 2014) ("Every one of our sister circuits to have considered the question has similarly held that, under Rivera, error in sustaining a Batson challenge is subject to harmless error analysis."); U.S. v. Williams, 731 F.3d 1222, 1236 (11th Cir. 2013) ("We thus apply harmless error review to any misapplication of Batson that results in the seating of a juror who is otherwise qualified for juror service."); U.S. v. Lindsey, 634 F.3d 541, 544 (9th Cir. 2011) ("[W]e reject [the] automatic reversal rule and review the denial of [defendant's] peremptory challenge under a more deferential standard of review.").