MASHEA LOUISE RAY-SIMMONS A/K/A TAYANA SIMMONS AND ANTIONETTE MCGOULDRICK
STATE OF MARYLAND
November 6, 2015.
[Copyrighted Material Omitted]
Circuit Court for Baltimore City. Case No. 110308026; Case
No. 110308027; Case No. 110293019; Case No. 110293021.
BY Michael R. Braudes, Assistant Public Defender (Paul B.
DeWolfe, Public Defender of Maryland of Baltimore, MD) on
brief FOR PETITIONERS.
BY Robert Taylor, Jr., Assistant Attorney General (Brian E.
Frosh, Attorney General of Maryland of Baltimore, MD) on
brief FOR RESPONDENT.
C.J., Battaglia, Greene, Adkins, McDonald, Watts, Harrell,
Jr., Glenn T. (Retired, Specially Assigned), JJ. Opinion by
Barbera, C.J. McDonald, J., dissents.
Md. 434]Barbera, C.J.
apply in this case Batson v. Kentucky, 476 U.S. 79,
106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and its progeny to the
State's exercise of peremptory challenges and its
subsequent explanations for making those challenges. We hold
that, because the State's explanation for one of its
peremptory challenges was not neutral as to both race and
gender, Petitioners are entitled to relief under
Batson. We accordingly reverse the decision of the
Court of Special Appeals and grant Petitioners a new trial.
Mashea Ray-Simmons and Antionette McGouldrick, were tried
jointly with a third co-defendant 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 [446 Md. 435] strike, which b) is racially, and
with respect to gender, neutral?
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. 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, 812 A.2d 1034 (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, 125 S.Ct.
2317, 162 L.Ed.2d 196 (2005) (citations, internal quotation
marks, and ellipses omitted).
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,
128 S.Ct. 1203, 170 L.Ed.2d 175 (2008).
Md. 436] 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, 115 S.Ct. 1769, 131 L.Ed.2d
834 (1995) (per curiam). " [T]he prima facie showing
threshold is not an extremely high one--not an onerous burden
to establish." Stanley v. State, 313 Md. 50,
71, 542 A.2d 1267 (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, 125 S.Ct. 2410, 162
L.Ed.2d 129 (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).
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, 111 S.Ct. 1859, 114 L.Ed.2d
395 (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 [446 Md. 437] 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).
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.
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 [446 Md. 438]
voluntarily offered racially neutral reasons for its
strikes" ). " The 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, 667 A.2d 876 (1995) (Chasanow, J., concurring).
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.
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.
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 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 [446 Md. 439]
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  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
THE COURT: That's fine. Noted. I don't think it
would be used to establish a prima facie case. Thank
[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] prior objections, Your
Honor." Two ...