Hart v. State

• Court: Court of Special Appeals of Maryland
• Decided: February 28, 2024
• Docket: 1015/22
• Status: Published

Opinion

Rodney Hart v. State, No. 1015, Sept. Term 2022. Opinion by Arthur, J.

CRIMINAL LAW – PEREMPTORY CHALLENGES

Under Batson v. Kentucky, 476 U.S. 79 (1986), and its progeny, exercising peremptory challenges against a prospective juror on the basis of race, gender, or ethnicity violates the Equal Protection Clause of the Fourteenth Amendment. When a party makes a Batson challenge, a court typically employs a three-step analysis. The party challenging the strike must first make a prima facie showing that the opposing party’s peremptory challenge was exercised on a constitutionally prohibited basis. If that preliminary burden is satisfied, the burden shifts to the proponent of the strike to present a neutral explanation for the strike. If a neutral explanation is offered, the trial court proceeds to decide whether the opponent of the strike has proved purposeful discrimination.

In this case, Hart made a Batson challenge when he objected after the prosecutor struck two men as prospective jurors. At step two, the State offered both a neutral explanation (one juror had allegedly fallen asleep, and the State claimed to know nothing about the other) and a biased explanation (the State wanted gender diversity, which is to say that it wanted fewer men on the jury). The trial court decided that because the State offered neutral explanations, Hart had not proved purposeful discrimination.

Neither the Supreme Court of the United States nor any Maryland appellate court has formally addressed what a court should do when a peremptory strike is motivated by both permissible and impermissible factors. Other courts have coalesced around three different approaches. The first is the dual-motivation or mixed-motive approach, under which the court cannot uphold the strike unless the proponent persuades the court that it would have struck the juror anyway even absent an impermissible consideration, such as race, gender, or ethnicity. The second is the substantial motivating factor approach, under which the court cannot uphold the strike if it finds that an impermissible consideration was a substantial motivating factor for the strike (even if the party might also have struck the juror on the basis of a permissible consideration). The third is the per se approach, under which the court cannot uphold the strike if it was motivated in any way by an impermissible consideration.

The Appellate Court of Maryland rejected the dual-motivation approach, recognizing the difficulty that a trial judge would face in performing a counterfactual thought experiment, in the midst of jury selection, while attempting to ascertain whether the proponent of the strike would have struck the juror on the permissible ground alone. Because permitting blatant instances of discrimination to continue would be contrary to Batson’s purpose, the Court held that to protect the equal protection rights of the affected jurors and the integrity of the judicial system, it must reject the dual-motivation approach. The Appellate Court of Maryland did not adopt the substantial motivating factor approach in this case, where the proponent of the strike had admitted that the strike was based in part on an impermissible consideration. Adopting the per se approach, the Appellate Court of Maryland held that a peremptory strike is per se invalid if it is based even in part on an impermissible consideration. The Court held that when the proponent of a strike admits that the strike was exercised for an impermissible reason, then the proponent has not advanced a neutral reason and the analysis does not progress beyond step two of Batson. The Court remanded the case for a new trial.

CRIMINAL LAW – JOINDER OR SEVERANCE OF COUNTS

The Appellate Court of Maryland held that the trial court did not err in denying Hart’s motion to sever counts as to each of the thefts he was charged with. The Court held that where the thief’s identity was at issue, modus operandi evidence was proper to establish the defendant’s criminal agency. Because evidence concerning the thefts in this case demonstrated several distinctive and unique similarities that illustrated a common plan or scheme, the Court held that evidence of each would be mutually admissible in separate trials concerning the offenses. The Court held that the trial court did not abuse its discretion in ruling that the interests of judicial economy outweighed the risk of unfair prejudice to Hart. Circuit Court for Prince George’s County Case No. CT210203X

REPORTED

IN THE APPELLATE COURT

OF MARYLAND

No. 1015

September Term, 2022

______________________________________

RODNEY LOPAZ HART, JR.

v.

STATE OF MARYLAND ______________________________________

Graeff, Arthur, Getty, Joseph M. (Senior Judge, Specially Assigned),

JJ. ______________________________________

Opinion by Arthur, J. ______________________________________

Filed: February 28, 2024

Pursuant to the Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic.

2024.02.28 15:44:09 -05'00'

Gregory Hilton, Clerk A jury sitting in the Circuit Court for Prince George’s County convicted appellant

Rodney Lopaz Hart, Jr., of several offenses related to the theft of three automobiles. Hart

has presented three questions on appeal, which we have reordered and reworded for

clarity and concision:

I. Did the trial court err in denying a Batson 1 challenge where the prosecutor offered both a gender-based and a gender-neutral explanation for striking two prospective jurors?

II. Did the trial court err or abuse its discretion in ruling that the State did not commit a discovery violation when, on the evening before the trial began, it first disclosed a screenshot of a profile photo depicting Hart?

III. Did the trial court err in denying the defense’s motion to sever the three theft counts from each other? 2

For the following reasons, we conclude that the court erred in denying a Batson

challenge when the State expressly stated that it struck two jurors in part because of an

impermissible consideration—their gender. Consequently, we must reverse the

convictions and remand the case for a new trial. Because Hart will receive a new trial,

1 Batson v. Kentucky, 476 U.S. 79 (1986). 2 Hart phrased his questions as follows:

1. Did the trial court err in determining that the State’s late disclosure of a screenshot that was central to its case was not a discovery violation?

2. Did the trial court err in denying defense counsel’s Batson challenge after the prosecutor failed to offer a gender-neutral explanation for striking two prospective jurors?

3. Did the trial court err and abuse its discretion in denying the defense’s motion to sever counts? we need not decide whether the court erred or abused its discretion in concluding that the

State did not commit a discovery violation. For guidance on remand, we address the

question of severance and hold that the trial court did not err in denying the motion to

sever.

FACTS

During the jury-selection process, Hart asserted a Batson challenge after the State

struck two men. In response, the State proffered two reasons for the strikes. First, the

State asserted that it struck one of the men because he had been sleeping and the other

because it had no information about him. Second, the State asserted that it wanted to

empanel a gender-diverse jury—i.e., it struck the jurors because they were men. 3 The

circuit court denied the challenge.

3 The discussion before the circuit court went as follows:

[Defense Counsel]: Your Honor, at this point we make a challenge under Batson. The Juror Number 7 and Juror Number 19—sorry, 20, are both young men who did not answer any questions. And so I think that there is at least a prima facia [sic] case made for the State to explain why they struck those two and not on the basis of their gender.

[State’s Attorney]: On Number 7? Do I need to answer that?

The Court: Okay.

[State’s Attorney]: So on Number 7, I believe was sleeping during our initial questioning. He looked like he was nodding, and I didn’t look to see that he was attentive. And Number 20—and I would like the Court to note that I struck the lady that is in my age group prior to Number 20. I really was looking at some of the non-information. He didn’t—there is no juror occupation, there is nothing here, and I didn’t have any information on it when I looked at it. I don’t know anything about him. (continued)

2 On the merits, the State alleged that, between the end of March and the beginning

of April 2020, Hart stole three cars that had been advertised for sale through online

marketplace apps. The defense contended that Hart was the victim of misidentification.

The following facts were elicited:

Robert Ciecur testified that on March 27, 2020, he met a man named “Lorenzo,”

who was wearing a yellow jacket, at the College Park Metro Station. Lorenzo had

messaged Ciecur earlier about buying a BMW 528 that he had advertised for sale on the

OfferUp app. Ciecur testified that Lorenzo asked him to get out of the car so that he

could test-drive it. When Ciecur did so, Lorenzo drove off and did not return.

[Defense Counsel]: That’s kind of the problem, Your Honor.

[State’s Attorney]: Well, if you’re talking race, then what you’re—

[Defense Counsel]: I’m talking gender.

[State’s Attorney]: Okay. The gender here, there is—the State has a reason, diverse gender, and to be a man that I saw was sleeping. I even saw the lady that we relieved because of her mother—

[Defense Counsel]: You talk to him, not me.

[State’s Attorney]: I’m sorry, I apologize—the lady that left because of her mother, I thought she was sleeping as well, because I looked at her, but I think that she was just kind of upset. But we end up move—losing her regardless. I believe that Number 7 was either asleep and/or inattentive during the questions. And Number 20, I looked at him, and I struck him because I didn’t know anything about him.

(Emphasis added.)

3 Ciecur identified Hart in court as Lorenzo. Over Hart’s objection, the State

showed Ciecur a screenshot of a user profile on the app Letgo. Ciecur identified the

person in the screenshot as the thief. The screenshot shows a man wearing glasses, a

yellow jacket with the hood pulled up, and an N95-style mask.

Maurice Howard testified that on March 29, 2020, he met a man named

“Lorenzo,” who was wearing a hooded, yellow jacket and glasses, on Forestville Road in

Prince George’s County. Lorenzo had messaged Howard earlier about buying a 2004

Mercedes Benz C55 that he had advertised for sale on either the OfferUp or Facebook

Marketplace app. As the two conversed outside the running car, Lorenzo asked if he

could test-drive it. After obtaining Howard’s permission, Lorenzo got into the car and

drove off.

Howard could not identify Hart as Lorenzo. On cross-examination, the defense

established that the police had shown Howard a photographic array, but that he had been

unable to identify the thief.

Fawad Ahmed testified that, in late March or the beginning of April 2020, he met

a man named “Lorenzo” in Vienna, Virginia. Lorenzo had messaged Ahmed about

buying the 2016 Audi A6 that Ahmed had advertised for sale on the Letgo app. Lorenzo

asked about trunk space. As Ahmed moved some items around in the trunk, Lorenzo got

into the driver’s seat and drove off. Ahmed identified Hart in court as the person who

stole his car. In addition, when Ahmed was shown the screenshot that was also shown to

Ciecur, he testified that the person in the screenshot was Lorenzo.

4 On April 10, 2020, Detective Donnell Thomas of the Prince George’s County

Police Department observed Hart driving an Audi with a registration plate that did not

belong on it. The detective stopped the car and discovered that it had the same vehicle

identification number as Ahmed’s car. Hart was arrested.

After hearing the evidence, a jury convicted Hart of: (1) three counts of theft of

property valued between $1,500 and $25,000; (2) three counts of unauthorized removal

of a motor vehicle; (3) two counts of unauthorized taking of a motor vehicle; 4 and (4)

three counts of rogue and vagabond as to a motor vehicle. After merging the lesser-

included offenses into the theft convictions, the court sentenced Hart to an aggregate of

15 years of imprisonment, suspended all but three years, and placed him on probation for

five years after his release from prison.

Hart filed a timely notice of appeal.

DISCUSSION

I. Batson Violation

In the landmark case of Batson v. Kentucky, 476 U.S. 79 (1986), the Court held

that exercising a peremptory challenge against a prospective juror on the basis of race

violates the Equal Protection Clause of the Fourteenth Amendment. In J.E.B. v. Alabama

ex rel. T.B., 511 U.S. 127 (1994), the Court extended Batson to peremptory challenges on

4 In this case, Hart was charged with two counts of unauthorized taking of a motor vehicle rather than three because only Ciecur’s and Howard’s vehicles were taken in Prince George’s County. Ahmed’s vehicle was taken in Fairfax County, Virginia.

5 the basis of gender. 5 In Hernandez v. New York, 500 U.S. 352, 369 (1991), a plurality of

the Court suggested that Batson would also apply to peremptory challenges on the basis

of ethnicity. Accord Mejia v. State, 328 Md. 522, 529-30 (1992); see Hernandez v. State,

357 Md. 204, 231 (1999). “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.’” Ray-Simmons v. State, 446 Md. 429, 435 (2016)

(quoting Edmonds v. State, 372 Md. 314, 329 (2002)). Both the prosecution and the

defense may invoke Batson. See, e.g., Georgia v. McCollum, 505 U.S. 42 (1992).

Batson and its progeny have three underlying purposes: 1) to protect a defendant’s

right to a fair trial; 2) to protect a potential juror’s right not to be excluded from serving

on a jury because of a discriminatory purpose; and 3) to preserve public confidence in the

judicial system. Edmonds v. State, 372 Md. at 329 (citing Powers v. Ohio, 499 U.S. 400,

404-10 (1991)); accord Flowers v. Mississippi, 588 U.S. ___, 139 S. Ct. 2228, 2242

(2019) (stating that, “[b]y taking steps to eradicate racial discrimination from the jury

selection process, Batson sought to protect the rights of defendants and jurors, and to

enhance public confidence in the fairness of the criminal justice system”). Under the

Equal Protection Clause, even a single instance of unlawful discrimination against a

5 Even before the decision in J.E.B., Maryland’s highest court had held that, as a matter of Maryland constitutional law, “the State may not use peremptory challenges to exclude potential jurors because of their gender.” Tyler v. State, 330 Md. 261, 266 (1993).

6 prospective juror is impermissible. See, e.g., Flowers v. Mississippi, 588 U.S. ___, 139

S. Ct. at 2244.

When a party makes a Batson challenge, a court typically employs a three-step

process.

At step one, the party challenging the strike “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.” Ray-

Simmons v. State, 446 Md. 429, 436 (2016) (citing Purkett v. Elem, 514 U.S. 765, 767

(1995) (per curiam)). A party can make a prima facie case by showing “‘that the totality

of the relevant facts gives rise to an inference of discriminatory purpose.’” Id. (quoting

Johnson v. California, 545 U.S. 162, 168 (2005)). A pattern of strikes against jurors of a

particular race, gender, or ethnicity “‘might give rise to or support or refute the requisite

showing.’” Id. (quoting Stanley v. State, 313 Md. 50, 60-61 (1988)).

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

two[.]” Id. There, “‘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.” Id. (quoting Purkett v. Elem, 514 U.S. at 767). The explanation “must be

neutral, ‘but it does not have to be persuasive or plausible.’” Id. (quoting Edmonds v.

State, 372 Md. at 330); see Purkett v. Elem, 514 U.S. at 767. “‘Any reason offered will

be deemed [neutral] unless a discriminatory intent is inherent in the explanation.’” Ray-

Simmons v. State, 446 Md. at 436 (quoting Edmonds v. State, 372 Md. at 330); see

Hernandez v. New York, 500 U.S. at 360; see also Purkett v. Elem, 514 U.S. at 767-68

7 (stating that, “[u]nless a discriminatory intent is inherent in the prosecutor’s explanation,

the reason offered will be deemed [neutral]”). “[T]he 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.” Ray-Simmons v. State, 446 Md. at 437; see

Hernandez v. New York, 500 U.S. at 359.

If the proponent of the strike offers a neutral explanation, “the trial court proceeds

to step three,” at which it “must decide ‘whether the opponent of the strike has proved

purposeful [impermissible] discrimination.’” Ray-Simmons v. State, 446 Md. at 437

(quoting Purkett v. Elem, 514 U.S. at 767). Only at step three does “‘the persuasiveness

of the justification become[] relevant.’” Id. (quoting Johnson v. California, 545 U.S. at

171) (further citation omitted). Here, “‘the trial court determines whether the opponent

of the strike has carried [the] burden of proving purposeful discrimination.’” Id. (quoting

Johnson v. California, 545 U.S. at 171) (further citation omitted). “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].’” Id.

(quoting Snyder v. Louisiana, 552 U.S. 472, 477 (2008)). “Because a Batson challenge is

largely a factual question, a trial court’s decision in this regard is afforded great

deference[.]” Id.

In this case, the State does not dispute that Hart made a prima facie case of gender

discrimination at step one, when he objected that the State had struck two men. At step

two, the State offered both a neutral explanation (one juror had allegedly fallen asleep,

8 and the State claimed to know nothing about the other) and a biased explanation (the

State wanted gender diversity, which is to say that it wanted fewer men on the jury).

This Court has held that the State violated Batson and its progeny by striking eight

of nine male jurors in order to obtain a “gender-balanced” jury. Elliott v. State, 185 Md.

App. 692, 717 (2009). Thus, this case presents the question of whether the strikes can be

saved because the State offered a neutral explanation as well as a gender-biased

explanation.

Neither the Supreme Court of the United States nor any Maryland appellate court

has formally addressed what a court should do when a peremptory strike is motivated by

both permissible and impermissible factors—though this Court flagged the issue in Elliott

v. State, 185 Md. App. at 719 n.14, and discussed it in dicta in a lengthy footnote in Khan

v. State, 213 Md. App. 554, 570 n.3 (2013). Other courts have coalesced around three

different approaches. They are:

(1) the dual-motivation or mixed-motive approach, under which the court cannot uphold the strike unless the proponent persuades the court that it would have struck the juror anyway even absent an impermissible consideration, such as race, gender, or ethnicity;

(2) the substantial motivating factor approach, under which the court cannot uphold the strike if it finds that an impermissible consideration was a substantial motivating factor for the strike (even if the party might also have struck the juror on the basis of a permissible consideration); and

(3) the per se approach, under which the court cannot uphold the strike if it was motivated in any way by an impermissible consideration. 6

Some courts refer to the per se approach as the “tainted approach.” See, e.g., 6

McCormick v. State, 803 N.E.2d 1108, 1113 (Ind. 2004). That term is a misnomer. The (continued)

9 A. The Dual-Motivation or Mixed-Motives Approach

The dual-motivation approach is the prevailing position in many federal circuits,

see Gattis v. Snyder, 278 F.3d 222, 234-35 (3d Cir.), cert. denied, 537 U.S. 1049 (2002);

United States v. Darden, 70 F.3d 1507, 1531 (8th Cir. 1995), cert. denied, 517 U.S. 1149

(1996); Wallace v. Morrison, 87 F.3d 1271, 1274-75 (11th Cir.) (per curiam), cert.

denied, 519 U.S. 1044 (1996); Howard v. Senkowski, 986 F.2d 24, 30 (2d Cir. 1993); see

also Jones v. Plaster, 57 F.3d 417, 420-22 (4th Cir. 1995) (adopting the dual-motivation

to Batson challenges in a civil case); 7 as well as in some state courts. People v. Hudson,

195 Ill.2d 117, 133-38, 745 N.E.2d 1246, 1256-58 (2001); Guzman v. State, 85 S.W.3d

242, 244 (Tex. Crim. App. 2002).

In the leading case of Howard v. Senkowski, 986 F.2d at 25, Howard, who is

Black, had been convicted by an all-White jury in a New York state court after the

prosecution struck the two Black jurors in the venire panel. While Howard’s appeal was

pending in the state appellate court, the Supreme Court decided Batson. Id. Because

Batson applied retroactively to decisions pending on direct appeal, 8 the state appellate

court remanded the case for an evidentiary hearing on the prosecutor’s reasons for

striking both of the two Black jurors. Id.

“approach” is not “tainted.” Rather, the approach deems the strike to be tainted if it was motivated in any way by an impermissible consideration.

Batson applies in both criminal and civil litigation. Edmonson v. Leesville 7

Concrete Co., Inc., 500 U.S. 614 (1991). 8 Id. (citing Griffith v. Kentucky, 479 U.S. 314 (1987)).

10 On remand, the prosecutor admitted that race was “a factor,” but not (he said) an

“‘overriding’” or a “‘major’” factor, in his decision to strike the Black jurors. Id. He

“endeavor[ed]” to offer some race-neutral reasons as well. Id.

The state trial court followed Batson’s three-step process and found that “race had

been ‘part of a totality of factors’ for the prosecutor’s challenges, that the prosecutor had

articulated neutral explanations, and that the explanations were not pretextual.” Id. at 26.

Thus, the state trial court concluded that Howard had failed to “establish purposeful

discrimination.” Id. A state appellate court affirmed. Id.

In Howard’s collateral attack on his conviction under the federal habeas corpus

statute, the federal district court framed the issue as whether “‘the prosecutor’s

explanations were sufficiently race-neutral to rebut the prima facie showing of

discrimination.’” Id. The district court dismissed the petition. Id.

On appeal, Howard contended “that the prosecutor’s admission that race was ‘a

factor’ in exercising the peremptory challenges precluded a finding that the prosecutor

had articulated a race-neutral explanation.” Id. The Second Circuit “disagree[d] with

that precise contention[.]” Id. It wrote that “[t]he acknowledgment that race was part of

the prosecutor’s motivation, or even a finding to that effect unaided by an

acknowledgment, is not inconsistent with the existence of some other race-neutral

explanation for the prosecutor’s action.” Id. In the court’s view, “[w]here more than one

reason motivates challenged action, the issue is what standards apply in determining

whether the action is invalid because of the partially improper motivation.” Id.

11 The court asserted that, “[i]n the realm of constitutional law, whenever challenged

action would be unlawful if improperly motivated, the Supreme Court has made it clear

that the challenged action is invalid if motivated in part by an impermissible reason but

that the alleged offender is entitled to the defense that it would have taken the same

action in the absence of the improper motive.” Id. (citing Mt. Healthy City Sch. Bd. of

Educ. v. Doyle, 429 U.S. 274, 284-87 (1977); Village of Arlington Heights v. Metro.

Hous. Dev. Corp., 429 U.S. 252, 270 n.21 (1977)). The court observed that the Supreme

Court had applied that dual-motivation analysis in some equal protection cases. Id. at 27

(citing Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. at 270 n.21;

Hunter v. Underwood, 471 U.S. 222, 228 (1985)). 9 And the court recognized that dual-

motivation analysis applies in actions for damages under Title VII of the Civil Rights Act

of 1964, when a defendant asserts that it would have acted as it did even if it were not

motivated to discriminate on the basis of a prohibited characteristic such as race or sex.

Id. at 26 n.1 (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 244-47 (1989) (plurality

opinion). 10 “Dual motivation analysis,” the court wrote, “in effect, may supplement so-

9 But see Russell D. Covey, The Unbearable Lightness of Batson: Mixed Motives and Discrimination in Jury Selection, 66 Md. L. Rev. 279, 315 & n.201 (2007) (citing Miller v. Johnson, 515 U.S. 900, 916 (1995), for the proposition that the Court has employed a different standard in redistricting cases that involve equal protection challenges). 10 Batson’s framework of presumptions and shifting burdens is derived from Title VII jurisprudence. Batson v. Kentucky, 476 U.S. at 94 n.18; see Russell D. Covey, The Unbearable Lightness of Batson: Mixed Motives and Discrimination in Jury Selection, 66 Md. L. Rev. 279, 330-31 (2007) (stating that “Batson’s architecture was borrowed almost wholesale from two leading Title VII intentional discrimination cases”). Notably, (continued)

12 called ‘pretext’ analysis, which applies to a claimant’s ‘burden of persuading the court

that [he or] she has been the victim of intentional discrimination.’” Id. at 27 (quoting

Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981)).

Thus, the Second Circuit imported the dual-motivation analysis from equal

protection and Title VII cases into Batson. Id. at 30. It held that “Batson challenges may

be brought by defendants who can show that racial discrimination was a substantial part

of the motivation for a prosecutor’s peremptory challenges, leaving to the prosecutor the

affirmative defense of showing that the same challenges would have been exercised for

race-neutral reasons in the absence of such partially improper motivation.” Id. “If the

state makes such a showing, the peremptory challenge survives constitutional scrutiny.”

Gattis v. Snyder, 278 F.3d at 233.

In essence, the dual-motivation or mixed-motive approach treats the presence of

multiple grounds—some neutral, some not—as a causation problem. It assumes that the

proponent of the strike can get past step two of Batson by offering a neutral and

permissible ground (even though the proponent has also offered an impermissible ground,

such as race or gender). It proceeds to engage in a thought experiment, attempting to

ascertain whether the proponent of the strike would have struck the juror on the

permissible ground alone. The court may uphold the strike if the proponent persuades the

however, Congress amended Title VII after the Price Waterhouse decision. As amended Title VII provides that if an employer acted with discriminatory intent, but proved that it would have “taken the same action in the absence of the impermissible motivating factor,” a court may not award damages, but may grant declaratory relief and some forms of injunctive relief and may award attorneys’ fees and costs. 42 U.S.C. § 2000e- 5(g)(2)(B).

13 court that it would have struck the juror on the permissible ground. In other words, the

court may uphold the strike, “‘despite clear evidence of racially discriminatory

motivation,’” if the proponent succeeds in showing “‘that the discriminatory motivation

was not a “but for” cause of the challenged decision.’” Cook v. LaMarque, 593 F.3d 810,

814 (9th Cir. 2010) (quoting Kesser v. Cambra, 465 F.3d 351, 372 (9th Cir. 2006) (en

banc) (Wardlaw, J. concurring)).

After a number of federal courts of appeal had imported the dual-motivation or

mixed-motive analysis into Batson, the United States Supreme Court had the opportunity

to consider how to evaluate the issue of causation in a Batson challenge. In Snyder v.

Louisiana, 552 U.S. 472, 478 (2008), the prosecution asserted that it had struck a Black

juror on two facially neutral grounds—he appeared nervous, and his student-teaching

obligations might lead him to agree to a quick resolution in which the jurors

compromised and found the defendant guilty of a lesser charge. 11 The Supreme Court

determined, however, that the trial court had upheld the strike only on the second ground.

Id. at 482. The Court also determined that the stated ground for the strike was

“suspicious” and “implausi[ble],” in large part because the prosecution did not strike

White jurors who had similarly pressing obligations. Id. at 483. 12

11 Thus, Snyder is unlike this and other cases in which the proponent of the strike offered both a neutral reason and a discriminatory reason for the strike. 12 In addition, the Court recognized that the juror’s desire for a quick resolution might actually lead him to agree to convict the defendant on the most serious charges if the majority of the jurors initially favored that outcome. Id. at 482.

14 At this point, the Court turned to step three of Batson, asking whether the

defendant had shown purposeful discrimination. Id. at 484-85. Here, the Court observed

that “[t]he prosecution’s proffer of this pretextual explanation naturally gives rise to an

inference of discriminatory intent.” Id. at 485. Citing Hunter v. Underwood, 471 U.S.

222, 228 (1985), a case that applied the dual-motivation approach to an equal protection

claim, the Court wrote: “In other circumstances, we have held that, once it is shown that a

discriminatory intent was a substantial or motivating factor in an action taken by a state

actor, the burden shifts to the party defending the action to show that this factor was not

determinative.” Snyder v. Louisiana, 552 U.S. at 485. But the Court cautioned that it had

not “previously applied this rule in a Batson case,” and that it “need not decide here

whether that standard governs in this context.” Id. “For present purposes,” the Court

said, “it is enough to recognize that a peremptory strike shown to have been motivated in

substantial part by discriminatory intent could not be sustained based on any lesser

showing by the prosecution.” Id. “Here, ‘lesser showing’ means any showing less than

the burden-shifting showing required in the other cases where the Court has permitted

the [proponent of the strike] to show that the forbidden motive ‘was not determinative.’”

Sheri Lynn Johnson, Flowers for the Arlington Heights Footnote: The Slow Demise of

Mixed Motives Analysis, 57 Ind. L. Rev. 7, 28 (2023) (emphasis in original).

Because of the absence of any record evidence that the trial court had credited the

claim about the juror’s alleged nervousness, because the prosecution had stated that the

juror’s work schedule was its main concern, and because of the “adverse inference” that

could be drawn from the prosecution’s pretextual explanation for the strike, the Court

15 concluded that “the record does not show that the prosecution would have pre-emptively

challenged [the juror] based on his nervousness alone.” Snyder v. Louisiana, 552 U.S. at

485. “Nor,” the Court added, was “there any realistic possibility that this subtle question

of causation could be profitably explored further on remand at this late date, more than a

decade after [the] trial.” Id. at 486. Accordingly, the Court reversed the conviction. Id.

In summary, in Snyder v. Louisiana, the Court did not decide whether the dual-

motivation analysis applies to Batson claims. The Court explained that, even under the

most forgiving approach, the proponent of the strike would have the burden of showing

that the discriminatory motive “was not determinative.” Id. at 485. The prosecution

could not meet that burden in Snyder. See Sheri Lynn Johnson, Flowers for the Arlington

Heights Footnote, supra, 57 Ind. L. Rev. at 31 (explaining that in Snyder “the record

itself did not reflect that the prosecution would have pre-emptively challenged the juror

based on a permissible purpose alone”). 13

13 In Foster v. Chatman, 578 U.S. 488, 513 n.6 (2016), the Court stated that, “as in Snyder,” it “need not decide the availability of” a defense that a discriminatory intent was not “‘determinative’ to the prosecution’s decision to exercise the strike,” because the State did not raise that argument. By contrast, in Flowers v. Mississippi, 588 U.S. ___, 139 S. Ct. 2228, 2251 (2019), the Court reversed a conviction on Batson grounds without mentioning the potential defense that a discriminatory intent was not “determinative.” “All that we need to decide,” wrote the Court, “is that all of the relevant facts and circumstances taken together establish that the trial court at Flowers’ sixth trial committed clear error in concluding that the State’s peremptory strike of black prospective juror Carolyn Wright was not motivated in substantial part by discriminatory intent.” Id. One scholar has argued that Flowers overrules the dual-motivation cases, sub silentio. See Sheri Lynn Johnson, Flowers for the Arlington Heights Footnote, supra, 57 Ind. L. Rev. at 7-8; id. at 33; id. at 51.

16 B. The Substantial Motivating Factor Approach

In a federal habeas corpus case decided shortly after Snyder, the Ninth Circuit

expressly declined to adopt the dual-motivation or mixed-motives approach. Cook v.

Lamarque, 593 F.3d 810, 814 (9th Cir. 2010). In reaching that decision, the court

observed that, in an en banc decision several years earlier, a majority of the judges of that

court had “declined to adopt the mixed-motives approach, despite an extensive

concurring opinion advocating its adoption.” Id. (citing Kesser v. Cambra, 465 F.3d 351,

371 (9th Cir. 2006) (en banc)). 14 The court claimed that the Supreme Court had

“declin[ed] to adopt” the mixed-motives approach in Snyder. Id. 15 In addition, the court

found it significant that Snyder recognized the difficulty of “profitably” exploring “‘this

subtle question of causation,’” many years after the trial, as a court would have to do in a

collateral attack on a judgment. See id. at 815 (quoting Snyder v. Louisiana, 552 U.S. at

486).

In rejecting the mixed-motives approach, the Ninth Circuit said that it would

“limit” its “inquiry to whether the prosecutor was ‘motivated in substantial part by

In Kesser v. Cambra, 465 F.3d at 371, the majority concluded that, “[t]aken as a 14

whole, the record reveals that all of the prosecutor’s nonracial reasons for striking [a Native American woman] and most of his nonracial reasons for striking” what the prosecutor called “the other ‘darkest skinned women’ from the panel were pretextual.” As in Snyder v. Louisiana, which was decided a year later, the Ninth Circuit majority apparently saw no valid reason for the strikes. 15 More precisely, in Snyder, the Supreme Court stated that “we need not decide here whether that standard governs in this context.” Snyder v. Louisiana, 552 U.S. at 485; see Sheri Lynn Johnson, Flowers for the Arlington Heights Footnote, supra, 57 Ind. L. Rev. at 28 (recognizing that the Ninth Circuit was incorrect in saying that Snyder rejected the dual-motivation approach).

17 discriminatory intent.’” Id. (quoting Snyder v. Louisiana, 552 U.S. at 485). The court

indicated that a strike, “motivated in substantial part by discriminatory intent,” would be

invalid if the impermissible motivation was merely a cause, and not a but-for cause, of

the strike. See id. at 814-15.

In the case before the Ninth Circuit, unlike this case, the prosecutor had not

justified the questioned strikes on the basis of a permissible reason as well as a reason

that was impermissible on its face. Instead, the prosecutor had offered a number of

facially neutral reasons that were alleged to be pretextual. Id. at 816-25. Thus, the Ninth

Circuit proceeded to step three of Batson to examine whether the neutral reasons were

pretextual and whether any impermissible reasons were a substantial motivating factor

for a strike. Id. A majority of the three-judge panel held that, in upholding the strikes,

the state trial court had not been objectively unreasonable, the governing standard in a

collateral attack on a state judgment in a federal habeas corpus action. Id.

A third judge agreed with the majority’s rejection of the mixed-motives approach,

writing that “[t]he difficult task of ‘ferreting out discrimination’ would be made nearly

impossible by a ‘but for’ causation requirement, which would require a court to engage in

counterfactual reasoning, often with only a sparse record to guide it.” Id. at 828

(Hawkins, J., concurring in part and dissenting in part) (citing Kesser v. Cambra, 465

F.3d at 376-77 (Berzon, J., concurring)). He added that “[p]ermitting blatant instances of

discrimination to go undeterred . . . would be contrary to Batson’s purpose, eviscerate its

protections in many cases, and erode public confidence in the neutrality of the criminal

justice system.” Id. The third judge dissented, in part, because he disagreed with the

18 majority’s conclusion that race had not been a substantial motivating factor in some of

the strikes. Id. at 828-29.

Since 2010, only one court outside of the Ninth Circuit has followed Cook v.

Lamarque in substituting the substantial motivating factor approach for the dual-

motivation or mixed-motives approach. In State v. Ornelas, 156 Idaho 727, 330 P.3d

1085 (Ct. App. 2014), Idaho’s intermediate appellate court considered how to proceed

when a prosecutor had struck a juror for an impermissible reason (he was a man) and for

three permissible reasons (he was young, the prosecutor was concerned about his life

experiences, and he had a small child). Id. at 733, 330 P.3d at 1091. “It [was] not

apparent from the transcript that the [trial] court considered the gender-based reason”

before it rejected a Batson challenge. Id. at 738, 330 P.3d at 1096.

After surveying the various approaches that courts have taken (including the so-

called “per se approach,” which we discuss below), the court concluded that in Snyder v.

Louisiana the Supreme Court had “set[] a guideline that a peremptory strike violates the

Equal Protection Clause when the strike is ‘motivated in substantial part by

discriminatory intent.’” Id. at 736, 330 P.3d at 1094. 16 The court interpreted Snyder v.

Louisiana to require that, “where both permissible and impermissible reasons are

provided at the second step,” a court should “continue to the third step.” Id. at 737, 330

16 Like the Ninth Circuit in Cook v. Lamarque, the Idaho court treated Snyder as though it rejected the mixed-motives approach. To the contrary, Snyder expressly declined to decide what approach would govern. Snyder v. Louisiana, 552 U.S. at 485; see supra n.15.

19 P.3d at 1095. 17 Like the Ninth Circuit, the court decided that, “[a]t the third step,” a trial

“court must determine if the peremptory strike was motivated in substantial part by

discriminatory intent[.]” Id. Because of the sparse record and the announcement of a

new standard, the Idaho court remanded the case for further proceedings. Id. at 738, 330

P.3d at 1096. 18

C. The Per Se Approach

Meanwhile, many courts—particularly state courts—have held that a peremptory

strike is invalid per se if it involves any consideration of an impermissible factor, such as

race or gender. See State v. Lucas, 199 Ariz. 366, 369, 18 P.3d 160, 163 (Ct. App. 2001)

(holding that, “[r]egardless of how many other nondiscriminatory factors are considered,

any consideration of a discriminatory factor directly conflicts with the purpose of Batson

and taints the entire jury selection process”), cert. denied, 534 U.S. 1014 (2001); People

v. Douglas, 22 Cal. App. 5th 1162, 1164-65, 232 Cal. Rptr. 3d 305, 307 (Ct. App. 2018)

(rejecting the dual-motivation approach and holding that jury selection “should be free of

any bias”) (emphasis in original); People v. Johnson, 523 P.3d 992, 997 (Colo. App.

17 Snyder, however, is not a case in which the proponent of the strike expressed permissible and impermissible grounds. It is a case in which the proponent expressed a facially neutral explanation, which the Court found to be pretextual. 18 Although Ornelas is the only case that has expressly followed the Ninth Circuit’s decision in Cook v. Lamarque, a number of federal courts have begun to ask whether “the strike is motivated in substantial part by discriminatory intent” since the Supreme Court reiterated and employed that standard in Flowers v. Mississippi, 588 U.S. ___, 139 S. Ct. 2228, 2251 (2019). See Sheri Lynn Johnson, Flowers for the Arlington Heights Footnote, supra, 57 Ind. L. Rev. at 31 (citing Hunt v. Sunquist, 822 Fed. Appx. 468 (6th Cir. 2020); United States v. Adams, 996 F.3d 514, 520 (8th Cir. 2021)).

20 2022) (adopting the per se approach and rejecting the substantial motivating factor

approach when the proponent of a strike offers both race-based and race-neutral reasons),

cert. granted, 2023 WL 3587455 (Colo. May 22, 2023); Robinson v. United States, 890

A.2d 674, 681 (D.C. 2006) (holding that, “even where the exclusion of a potential juror is

motivated in substantial part by constitutionally permissible factors . . . , the exclusion is

a denial of equal protection and a Batson violation if it is partially motivated as well by

the juror’s race or gender”); Rector v. State, 213 Ga. App. 450, 454, 444 S.E.2d 862, 865

(Ct. App. 1994) (holding that a finding of one racially-motivated consideration vitiates

the legitimacy of the jury selection procedure); McCormick v. State, 803 N.E.2d 1108,

1112-13 (Ind. 2004) (expressly rejecting the “dual motivation analysis in the Batson

context” and holding that a strike is “tainted” if one of multiple reasons for the strike is

impermissible); State v. Coleman, 970 So.2d 511, 515-16 (La. 2007) (holding that,

“[o]nce an inappropriate explanation invoking racial considerations is made, a

subsequent, valid reason for exercising the peremptory challenge cannot purge the racial

taint”); Payton v. Kearse, 329 S.C. 51, 59, 495 S.E.2d 205, 210 (1998) (expressly

rejecting the “dual motivation doctrine” and holding that “[o]nce a discriminatory reason

has been uncovered—either inherent or pretextual—this reason taints the entire jury

selection procedure”); State v. King, 215 Wis.2d 295, 307-09, 572 N.W.2d 530, 535-36

(Ct. App. 1997) (expressly rejecting the dual-motivation approach and holding that a

prosecutor violated Batson when it struck jurors because they were older and female);

United States v. Greene, 36 M.J. 274, 280 (U.S. Ct. Mil. App. 1993) (holding that “an

explanation, which includes ‘in part’ a reason, criterion, or basis that patently

21 demonstrates an inherent discriminatory intent cannot reasonably be deemed race

neutral” under Batson); see also McCray v. State, 738 So.2d 911, 914 (Ala. Crim. App.

1998) (stating that “even if the state were to come forward with race-neutral explanations

for its strikes against the black potential jurors on McCray’s venire, the peremptory

strikes would not be upheld, because the state also acknowledged that race was a factor in

its exercise of those peremptory strikes”); Ross v. Commonwealth, 455 S.W.3d 899, 905-

09 (Ky. 2015) (finding it unnecessary to decide whether to adopt the mixed-motives

approach or another approach, because the prosecution admitted it struck jurors because

they were women); Riley v. Commonwealth, 21 Va. App. 330, 332-37, 464 S.E.2d 508,

509-11 (Ct. App. 1995) (holding that the prosecution violated Batson when it struck

jurors because they were older and female); State v. Jensen, 76 P.3d 188, 193-94 (Utah

Ct. App. 2003) (declining to adopt the dual-motivation test where the prosecution failed

to give neutral reasons by saying that it struck two jurors because they were men).

An early expression of the per se approach appears in Justice Marshall’s opinion

dissenting from the denial of a petition for a writ of certiorari in Wilkerson v. Texas, 493

U.S. 924 (1989). In that case, Justice Marshall, joined by Justice Brennan, wrote that a

strike based in part on a juror’s race “cannot be squared with Batson’s unqualified

requirement that the state offer ‘a neutral explanation’ for its peremptory challenge.” Id.

at 926 (Marshall, J., dissenting from denial of certiorari) (quoting Batson v. Kentucky,

476 U.S. at 98) (emphasis added in Wilkerson v. Texas). “To be ‘neutral,’” Justice

Marshall asserted, “the explanation must be based wholly on nonracial criteria.” Id.

(emphasis in original).

22 Justice Marshall worried that Batson was “ineffective against all but the most

obvious examples of racial prejudice—the cases in which a proffered ‘neutral

explanation’ plainly betrays an underlying impermissible purpose.” Id. at 928. It would

“be absurd,” he wrote, to excuse racial prejudice “when it does surface, on the ground

that a prosecutor can also articulate nonracial factors for his challenges[.]” Id. Justice

Marshall would have found “that this Court’s requirement that a prosecutor provide a

‘neutral’ explanation for challenging an Afro-American juror means just what it says—

that the explanation must not be tainted by any impermissible factors.” Id. (emphasis in

original). 19

In adopting the per se approach, some courts have echoed Justice Marshall:

Payton v. Kearse, 329 S.C. at 60, 495 S.E.2d at 210 (stating that “[t]o excuse such

obvious prejudice because the challenged party can also articulate nondiscriminatory

reasons for the peremptory strike would erode what little protection Batson provides

against discrimination in jury selection”); accord Russell D. Covey, The Unbearable

Lightness of Batson: Mixed Motives and Discrimination in Jury Selection, 66 Md. L.

Rev. 279, 311 (2007) (stating that “[a] mixed-motive explanation is not a neutral

explanation under the applicable equal protection standards because the prosecutor has in

effect admitted that an improper purpose was ‘a motivating factor’ in her decision to

An opinion dissenting from the denial of certiorari has no precedential value. 19

See Teague v. Lane, 489 U.S. 288, 296 (1989); People v. Douglas, 22 Cal. App. 5th at 1179 (Hull, J., dissenting) (citing Singleton v. C.I.R., 439 U.S. 940, 944-45 (1978) (opinion of Stevens, J., respecting the denial of certiorari)). We do not cite Justice Marshall’s dissenting opinion as precedent. We cite it for its historical significance.

23 strike a juror”). Others express concern about preserving the integrity of the judicial

process and the need to bar any consideration of race, gender, or other inappropriate

criteria in the selection of juries. See, e.g., People v. Douglas, 22 Cal. App. 5th at 1174,

232 Cal. Rptr. 3d at 314. Some courts seem to say that, if the proponent of the strike

offers both a neutral and an impermissible explanation, the court’s analysis ends at step

two of Batson: the proponent cannot be considered to have offered a neutral explanation.

See, e.g., State v. King, 215 Wis.2d at 308-09, 572 N.W.2d at 536. Other courts seem to

proceed to step three, but assert that a neutral explanation is “transparently pretextual”

when another stated explanation for the strike is race or gender. See, e.g., Robinson v.

United States, 890 A.2d at 680; see also State v. Coleman, 970 So.2d at 516 (stating that

“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, but was based specifically on the juror’s race, in violation of the fundamental

precepts of Batson and its progeny”).

D. The Maryland Cases

In dicta in Khan v. State, 213 Md. App. 554 (2013), this Court discussed the

competing approaches to the problem that arises when a party simultaneously offers both

permissible and impermissible reasons for a peremptory strike. In that case, the defense

had exercised five of its seven strikes against White men. Id. at 563. The trial court

upheld all of the strikes, except for the strike of a juror whom the defense attorney

claimed to have struck because he was a conservatively dressed attorney for the federal

government. Id. at 564. Although the trial court said that defense counsel was being

24 “candid,” the court found his explanation to be a pretext for racial discrimination. Id. On

appeal, Khan argued that “because the trial judge acknowledged that counsel was being

‘candid,’ the court’s finding of pretext was clear error.” Id. at 568.

This Court disagreed. Id. In an opinion by an experienced former trial judge,

Judge Albert J. Matricciani Jr., we observed that the “argument is focused on the third

step of the Batson analysis: whether the circuit court erred in finding that these race- and

gender-neutral reasons for striking this juror were pretextual, and whether the circuit

court therefore erred in finding purposeful discrimination in this strike.” Id. at 569.

Quoting a federal dual-motivation case, we wrote:

The fact that the court believed defense counsel was partially motivated by certain characteristics he observed does not mean that the court was required to exclude the challenged juror. The trial court’s determination is whether “intentional discrimination was a substantial or motivating factor in the decision to exercise the strike.”

Id. at 570-71 (quoting Jones v. Plaster, 57 F.3d 417, 420-21 (4th Cir. 1995)) (emphasis

added in Khan v. State).

Although we quoted a dual-motivation case, we went on to discuss the criticisms

of that approach. In a lengthy footnote, we wrote that “the Supreme Court is aware of the

‘mixed-motives’ test,” but that “it has not adopted a specific stance beyond the basic rule

of law in Batson.” Id. at 570 n.3 (citing Snyder v. Louisiana, 552 U.S. at 485-86). Citing

the Ninth Circuit’s decision in Cook v. Lamarque, 593 F.3d at 814-15, we added that “the

‘substantial motivating factor’ language from Batson remains the prevailing standard, and

it does not require a specific causative analysis.” Khan v. State, 213 Md. App. at 570 n.3.

We “echo[ed]” the Ninth Circuit’s “observation that the mixed-motives test presents

25 severe conceptual problems.” Id. (citing Cook v. Lamarque, 593 F.3d at 814-15). We

also echoed the Ninth Circuit’s observation, that “[t]he Supreme Court itself” had

“‘alluded to the difficulty of determining on collateral review which of the prosecutor’s

motives were “but for” causes.’” Id. (quoting Cook v. Lamarque, 593 F.3d at 815).

We added:

[W]e doubt that a trial court could actually make such a subtle causal distinction in any given trial. The mixed-motives test applies by definition when “both race-based and race-neutral reasons have motivated a challenged decision.” If equal protection is violated only when the challenger’s race-based reason was a but-for cause of the challenge, then the race-neutral reason for a challenge must have been an insufficient cause, standing alone (otherwise, the race-based reason could not be a causative factor). Thus, the entire mixed-motive analysis is premised upon the challenger’s race-neutral reason being a motivating factor, but somehow not motivating enough to cause the strike when the race-based reason is “subtracted” from the decision to challenge.

Id. (quoting Cook v. Lamarque, 593 F.3d at 815) (emphasis added in Khan v. State).

“As a practical matter,” we concluded, “we cannot imagine how a trial court could

make such a determination, and as a constitutional matter, we believe it is fair to disallow

a strike where racial bias plays any part in the decision to strike a juror.” Id. (emphasis in

original). Thus, we said, “we would not hold trial courts to the mixed-motives test[.]”

Id. We recognized, however, that the issue (of which test to apply) was not properly

before us, because no one had raised it. Id. Nor was there any “record from which we

could potentially reconstruct a but-for causation analysis[.]” Id.

In summary, in dicta in Khan, this Court rejected the dual-motivation or mixed

motives approach. Id. In addition, this Court expressed its belief, again in dicta, that it

would be “fair to disallow a strike where racial bias plays any part in the decision to

26 strike a juror.” Id. (emphasis in original). 20

In Ray-Simmons v. State, 446 Md. 429 (2016), Maryland’s highest court, now

known as the Supreme Court of Maryland, tangentially addressed some of the issues in

this case. In Ray-Simmons, defense counsel objected because the prosecution had used

five peremptory strikes to strike Black men. Id. at 438-39. The prosecutor responded

that she had intended to replace one of the men “with another black male.” Id. at 439.

The trial court allowed the strike. Id.

On appeal, the Court held that the strike violated Batson in part because, “on its

face,” it “was based on the juror’s race and gender.” Id. at 442; id. at 444; id. at 445; id.

at 446. The Court agreed with Ray-Simmons that “the prosecutor’s apparent intention to

replace [the juror] with another African American man discloses that race and gender

factored improperly into the prosecutor’s decision, in violation of Batson.” Id. at 445.

Although Ray-Simmons does not involve the simultaneous assertion of permissible

and impermissible reasons for a strike, the Court found support for its conclusion in State

v. Coleman, 970 So.2d 511 (La. 2007), a case that follows the per se approach. Quoting

that case, the Court wrote that “‘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.’” Ray-Simmons v. State, 446 Md. at 446 (quoting

State v. Coleman, 970 So.2d at 516).

20 Some courts seem to have interpreted Khan as an endorsement of the Ninth Circuit’s substantial motivating factor analysis. State v. Ornelas, 56 Idaho at 737, 330 P.3d at 1095; Ross v. Commonwealth, 455 S.W.3d at 906 & n.4.

27 E. This Case

Turning back to this case, we must determine which of the competing approaches

a court should employ when the proponent of a peremptory strike offers permissible and

impermissible justifications at step two of Batson.

We begin by rejecting the dual-motivation or mixed-motives approach, for three

principal reasons.

First, as Judge Matricciani observed, the dual-motivation or mixed-motives

approach “presents severe conceptual problems.” Khan v. State, 213 Md. App. at 570

n.3. Not least of those problems is the difficulty that a trial judge faces in performing a

thought experiment, in the midst of jury selection, while attempting to ascertain whether

the proponent of the strike would have struck the juror on the permissible ground alone.

The judge’s task, which occurs “in a virtual evidentiary vacuum,” 21 is quite different

from what occurs, for example, in Title VII litigation, where the trier of fact can evaluate

a defendant’s motives based on “an often extensive record produced through document

discovery and depositions[.]” Russell D. Covey, The Unbearable Lightness of Batson,

supra, 66 Md. L. Rev. at 323. “[T]he inquiry turns from the historical to the hypothetical,

and the court must undertake the speculative inquiry not of what happened, but of what

would have happened had the prosecutor not harbored an invidious purpose.” Id. at 329.

“The difficult task of ‘ferreting out discrimination’ would be made nearly impossible by a

‘but for’ causation requirement, which would require a court to engage in counterfactual

21 Russell D. Covey, The Unbearable Lightness of Batson, supra, 66 Md. L. Rev. at 322.

28 reasoning, often with only a sparse record to guide it.” Cook v. Lamarque, 593 F.3d at

828 (Hawkins, J., concurring in part and dissenting in part). “Appellate courts reviewing

mixed-motive challenges will lack even that minimal basis to review the trial court’s

ruling.” Russell D. Covey, The Unbearable Lightness of Batson, supra, 66 Md. L. Rev.

at 330.

Second, Batson itself recognized that “[t]he harm from discriminatory jury

selection extends beyond that inflicted on the defendant and the excluded juror to touch

the entire community.” Batson v. Kentucky, 476 U.S. at 87; see People v. Douglas, 22

Cal. App. 5th at 1176, 232 Cal. Rptr. 3d at 316. “The Fourteenth Amendment’s mandate

that race discrimination be eliminated from all official acts and proceedings of the State is

most compelling in the judicial system.” Powers v. Ohio, 499 U.S. at 415; see Russell D.

Covey, The Unbearable Lightness of Batson, supra, 66 Md. L. Rev. at 316. “[T]he very

integrity of the courts is jeopardized when a prosecutor’s discrimination ‘invites cynicism

respecting the jury’s neutrality,’ . . . and undermines public confidence in adjudication.”

Miller-El v. Dretke, 545 U.S. 231, 238 (2005) (quoting Powers v. Ohio, 499 U.S. at 412)

(citation omitted); see People v. Douglas, 22 Cal. App. 5th at 1176, 232 Cal. Rptr. 3d at

316. Equal justice under the law requires a criminal trial free of unlawful discrimination

in the jury selection process. See Flowers v. Mississippi, 588 U.S. at ___, 139 S. Ct. at

2242. “Permitting blatant instances of discrimination to go undeterred . . . would be

contrary to Batson’s purpose, eviscerate its protections in many cases, and erode public

confidence in the neutrality of the criminal justice system.” Cook v. Lamarque, 593 F.3d

at 828 (Hawkins, J., concurring in part and dissenting in part). Yet, under the dual-

29 motivation or mixed-motives approach, a court may uphold a strike “despite clear

evidence of racially discriminatory motivation.” Id. at 814 (quoting Kesser v. Cambra,

465 F.3d at 472 (Wardlaw, J., concurring)). “[B]y tolerating actual discrimination in jury

selection, mixed-motive analysis is inconsistent with the injunction that ‘[r]acial

discrimination has no place in the courtroom.’” Russell D. Covey, The Unbearable

Lightness of Batson, supra, 66 Md. L. Rev. at 318 (quoting Edmonson v. Leesville

Concrete Co., 500 U.S. 614, 630 (1991)). Thus, to protect the integrity of our system of

justice, and to protect the equal protection rights of the affected jurors, we reject the dual-

motivation or mixed-motives approach.

Finally, the mixed-motives or dual-motivation approach has its origins in civil

litigation, where a court must ensure that the judgment does not make the plaintiffs better

off than they would have been but for the defendant’s wrongful conduct—i.e., that the

plaintiffs do not receive a windfall. See Sheri Lynn Johnson, Flowers for the Arlington

Heights Footnote, supra, 57 Ind. L. Rev. at 33. Thus, for example, if a school district

fires an employee because he exercises his First Amendment rights, but can show that it

would have fired him anyway for entirely legitimate reasons, the United States Supreme

Court has said that the employee cannot prevail. Mt. Healthy City Sch. Bd. of Educ. v.

Doyle, 429 U.S. 274, 284-87 (1977). But whatever merit that policy may have in the

setting of civil litigation for damages or reinstatement, it has none in the setting of

Batson. In a Batson case, if we “overlook[] a wrongful motive simply because the

proponent of a strike can convince the trier of fact that the same result would have

ensued,” we would “allocate[] the ‘windfall’ to the wrongdoer at the expense of the

30 defendant, the juror, and the criminal justice system in general.” Russell D. Covey, The

Unbearable Lightness of Batson, supra, 66 Md. L. Rev. at 335.

We turn to the per se approach and the Ninth Circuit’s substantial motivating

factor approach.

The substantial motivating factor approach represents a “modified version” of the

per se approach. Russell D. Covey, The Unbearable Lightness of Batson, supra, 66 Md.

L. Rev. at 330. It is “closely related” to the per se approach, but “asks slightly more of a

defendant.” See Sheri Lynn Johnson, Flowers for the Arlington Heights Footnote, supra,

57 Ind. L. Rev. at 28. Like the dual-motivation or mixed-motives approach, the

substantial motivating factor approach requires a court to evaluate the reason for a strike,

in the midst of jury selection, on a limited record—though the court need only determine

whether an impermissible consideration was a substantial motivating factor for the strike,

and not whether the impermissible consideration was the but-for cause of the strike.

Otherwise, the difference between the per se approach and the substantial motivating

factor approach is difficult to discern in cases like this, where the proponent of a strike

has articulated both a permissible and an impermissible reason for the strike. 22

When a court asks a party why it exercised a peremptory strike and the party

answers the court’s question by admitting that it exercised the strike, in part, for an

impermissible reason, such as race, gender, or ethnicity, it is difficult to imagine how a

22 By contrast, at step 3 of Batson, the substantial motivating factor approach can be expected to yield different results from an approach that asks whether a discriminatory reason disguised by a pretext was the but-for cause of a strike.

31 court could find anything other than that the impermissible consideration was a

substantial motivating factor for the strike. The “act of identifying an improper motive

itself is proof that the articulated reason was a ‘cause’ of the strike.” Russell D. Covey,

The Unbearable Lightness of Batson, supra, 66 Md. L. Rev. at 325. Thus, when the

proponent of a strike has given both a permissible and an impermissible reason for the

strike, the substantial motivating factor approach would seem to lead to the same result as

the per se approach in all but the most unusual circumstances.

Ultimately, however, we are unpersuaded that the substantial motivating factor

approach is the correct approach to adopt in a case like this, where the proponent of the

strike had admitted that the strike was based, in part, on an impermissible consideration,

such as race, gender, or ethnicity. Like the majority of courts that have considered the

subject, we conclude that a peremptory strike is per se invalid in those circumstances.

Furthermore, we agree with the courts that have recognized that, when the proponent of a

strike admits that it exercised the strike in part for an impermissible reason, the proponent

has not truly advanced a “neutral” reason for the strike; and thus that the analysis does

not progress beyond step two of Batson. See, e.g., State v. King, 215 Wis.2d at 308-09,

572 N.W.2d at 536. To be “neutral,” within the meaning of Batson, a strike cannot be

based on any impermissible criteria. Wilkerson v. Texas, 493 U.S. at 926 (Marshall, J.,

dissenting from the denial of certiorari).

Under the per se approach, the strike in this case was invalid because it was based,

in part, on an impermissible consideration—gender. Consequently, we must remand the

case for a new trial, because in the eyes of the Constitution, one discriminatory

32 peremptory strike “is one too many.” See Flowers v. Mississippi, 588 U.S. at ___, 139 S.

Ct. at 2241. 23

II. Motion to Sever

In addition to his Batson argument, Hart argues that the trial court erred in denying

his motion to sever and in refusing to conduct separate trials for each of the three thefts.

We address this argument for the purpose of giving guidance on remand.

Maryland Rule 4-253(c) provides that a court “may” order separate trials for

different criminal counts “[i]f it appears that any party will be prejudiced by the

joinder[.]” In considering whether to order separate trials under this rule, a court asks

two questions. The first is “whether evidence as to each of the accused’s individual

offenses would be ‘mutually admissible’ at separate trials concerning the offenses?”

Cortez v. State, 220 Md. App. 688, 694 (2014) (quoting Conyers v. State, 345 Md. 525,

553 (1997)). The second is “whether ‘the interest in judicial economy outweighs any

other arguments favoring severance?’” Id. (quoting Conyers v. State, 345 Md. at 553).

The first question involves a legal determination, which we review without deference to

the trial court. See Conyers v. State, 345 Md. at 553 (citing Solomon v. State, 101 Md.

App. 331, 338 (1994)); Cortez v. State, 220 Md. App. at 694. The second “requires a

balancing of interests,” which we will reverse only if “the trial judge’s decision ‘was a

23 The State argues that the prosecutor was merely “collecting her thoughts” and that her statements do not demonstrate an intention to discriminate against men. We are unpersuaded. The record reflects that, when the prosecutor was reminded that the basis of the objection was gender and not race, she immediately asserted: “The gender here, there is—the State has a reason, diverse gender[.]” See supra n.1. Sometimes the most telling comments are made before a person has the opportunity to collect their thoughts.

33 clear abuse of discretion.’” Cortez v. State, 220 Md. App. at 694 (quoting Conyers v.

State, 345 Md. at 556).

“The question of mutual admissibility is simply a method of assessing what

difference there would be between a joint and a separate trial in any given case.” State v.

Hines, 450 Md. 352, 373 (2016). “Mutual admissibility” means that “evidence of each

crime would be admissible in a trial for the other[.]” Bussie v. State, 115 Md. App. 324,

333 (1997). In those circumstances, the “defendant will not suffer any additional

prejudice if the two charges are tried together.” McKnight v. State, 280 Md. 604, 610

(1977).

To resolve whether evidence of an accused’s individual offenses would be

mutually admissible at separate trials concerning the offenses, a trial court conducts the

same analysis that it would conduct in determining whether evidence of other crimes or

wrongs would be admissible under Rule 5-404(b). See Cortez v. State, 220 Md. App. at

694 (citing Conyers v. State, 345 Md. at 553); Garcia-Perlera v. State, 197 Md. App.

534, 547 (2011). Under that rule, evidence of other crimes or wrongs “is not admissible

to prove the character of a person in order to show action in the conformity therewith,”

but “may be admissible for other purposes, such as proof of motive, opportunity, intent,

preparation, common scheme or plan, knowledge, identity, [or] absence of mistake or

accident[.]” Md. Rule 5-404(b). 24

24 The recognized exceptions to the exclusionary rule are not exclusive, but contain a flexible list of representative examples that continues to expand. See, e.g., Oesby v State, 142 Md. App. 144, 161-62 (2002).

34 Maryland courts have recognized two ways by which other crimes evidence may

fall within the common plan or scheme exception to the general rule of exclusion in Rule

5-404(b). See, e.g., McKinney v. State, 82 Md. App. 111, 124 (1990). The evidence can

be either of “a modus operandi, which is but one means of establishing identity” or of “a

plan to commit one offense as part of a grand scheme to commit others[.]” Id.

At trial, the State argued that the evidence of the three thefts fell within the

exception for a common plan or scheme, because the thief used a similar modus operandi

in all three: the victims were selling cars through online marketplace apps; the thief

targeted high-end, European cars; the thief drove off with the cars after meeting the

owners during test drives; and the thefts occurred within days or weeks of each other.

The circuit court agreed.

Hart denied that he stole the cars and, thus, put the thief’s identity at issue. Modus

operandi evidence was therefore proper to establish Hart’s criminal agency.

In establishing whether a group of activities qualifies as a modus operandi, a court

may consider each characteristic of the method used as a whole, even if when considered

separately as unrelated parts, the individual characteristics might appear unremarkable.

State v. Faulkner, 314 Md. 630, 639 (1989). For example, the State established a modus

operandi when a series of robberies occurred at Safeway grocery stores at about the same

time on Friday nights, and the right-handed robber wore a distinctive mask and gloves,

jumped on the checkout stand, and demanded large bills. Id. On the other hand, where

the separate crimes bear only a “general resemblance” to each other, but are not “‘so

unusual and distinctive as to be like a signature,’” the evidence does not demonstrate a

35 modus operandi. McKnight v. State, 280 Md. at 613-14 (quoting Charles T. McCormick,

Evidence § 190, at 449 (2d. ed. 1972)). Thus, where the evidence showed the

commission of four separate robberies, which were committed in a highly populated area

at different times of the day, with different means of force over the period of one month,

and which involved different numbers of perpetrators, the evidence of each of the four

robberies would not have been mutually admissible in a separate trial involving any one

of the four. Id.

Hart relies on Lebedun v. State, 283 Md. 257 (1978), to support his argument that

the three thefts in this case did not have enough in common to support a finding of a

common scheme or plan. In that case, the defendant was charged with two robberies that

occurred within three days of each other. The alleged similarities between the two were

that the perpetrators in each incident: (1) were “two white males” of similar height and

weight; (2) wore “red ski caps”; (3) took “money and drugs” that they put into a cloth

bag; (4) and advised their victims “to be cool.” Id. at 281.

In reversing the conviction and concluding that joinder was improper, the Court

stated that there was “nothing particularly unusual or distinctive about red ski caps” or

that the perpetrators were of similar height and weight. Id. The Court acknowledged that

placing the money in a cloth bag and advising the victims to “be cool” came “much

closer to a pattern of conduct[,]” but it concluded that these similarities could not justify

joinder absent a closer proximity in time between the two robberies. It reasoned that the

existing similarities “‘fit into an obvious tactical pattern which would suggest itself to

almost anyone’” inclined to commit a similar crime. Id. at 281-82 (quoting McKnight v.

36 State, 280 Md. at 614) (cleaned up). To fit under the common scheme or plan exception,

the Court wrote, there “‘must be more than simply a manner of operation, which is

possessed to some extent by most criminal recidivists.’” Id. at 280 (quoting Cross v.

State, 282 Md. 468, 475 (1978)). “‘A method of operation is not, by itself, a common

scheme, but merely a repetitive pattern.’” Id. (quoting Cross v. State, 282 Md. at 475).

Here, by contrast, there were several distinctive and unique similarities between

the three incidents. The thief, who identified himself as “Lorenzo,” arranged to meet

sellers by using online marketplace apps; the cars targeted were high-end, European cars;

the thief asked to test drive the car; and the thief either took the car during the test drive

or, after returning, drove away while the seller was distracted. Although there may be

many ways to steal cars through an online app, here the thief was interested only in

particular types of cars. He separated the victims from their cars in a unique way—by

tricking them into believing that they could leave him in control of the vehicle. He did

not pull a weapon, or use force, or have an accomplice step in to assist him. And all of

the thefts occurred within a brief window of time.

In our judgment, the facts presented here are distinguishable from those of

Lebedun. The evidence showed much more than just a manner of operation employed to

some extent by car thieves or a mere repetitive pattern. The circuit court did not err in

37 concluding that the thefts were part of a common scheme or plan, or in denying Hart’s

motion to sever. 25

We turn to the second question, which is “whether ‘the interest in judicial

economy outweighs any other arguments favoring severance?’” Cortez v. State, 220 Md.

App. at 694 (quoting Conyers v. State, 345 Md. at 553) (internal brackets omitted). This

question requires a balancing of interests by the trial court, including the “likely

prejudice” to the defendant if the charges are tried together, against “considerations of

judicial economy and efficiency, including the time and resources of both the court and

the witnesses.” Id.

The burden of showing prejudice is on the party alleging prejudice. Holt v. State,

129 Md. App. 194, 209 (1999). “‘Prejudice’” means “‘damage from inadmissible

evidence, not damage from admissible evidence.’” Solomon v. State, 101 Md. App. 331,

349 (1994) (quoting Osburn v. State, 301 Md. 250, 254-55 (1984)). A defendant is not

prejudiced and not entitled to severance where the charges are closely related to each

other and arise out of incidents that occur within proximately the same time, location, and

circumstances. See Carter v. State, 374 Md. 693, 705 (2003).

25 Hart cites a consumer complaint survey report from 2017 and three news articles from 2017 and 2021 to suggest that use of the OfferUp app has become a common means of committing thefts, including car thefts. One of his examples involves a robbery, not the theft of a car. Two involve car thefts that were accomplished through the use of a bad check. The last involved an entirely different ruse to persuade the owner to consent to a test drive—the thief showed the owner a learner’s permit and asked him to make a video of him driving the car, so that he could show the video to his father. In any event, the use of the OfferUp app was but one of a variety of characteristics that made the car thefts in this case unique.

38 After a court has determined that evidence of other crimes would have been

mutually admissible in separate trials, “‘any judicial economy that may be had will

usually suffice to permit joinder unless other non-evidentiary factors weigh against

joinder.’” Cortez v. State, 220 Md. App. at 694-95 (quoting Conyers v. State, 345 Md. at

556). As previously stated, we will reverse the trial court’s balancing analysis only for a

“clear abuse of discretion.” Cortez v. State, 220 Md. App. at 694 (citing Conyers v. State,

345 Md. at 556).

Hart argues that even if evidence of the thefts would have been mutually

admissible in separate trials, the trial court abused its discretion in refusing to sever the

counts because, he says, “the risk of unfair prejudice far outweighed any interest in

judicial economy.” He argues that the cumulative evidence from each of the three theft

cases unfairly bolstered the State’s proof in each of the individual theft cases. Hart also

argues that the cumulative evidence convinced the jury that the “thief committed not only

two thefts, but that he committed each theft.”

We reject Hart’s contentions. As stated above, the question of identity was central

to the theory of the defense, and the State proceeded on a modus operandi theory to

establish its case. That the accumulation of evidence helped prove Hart’s identity did not

create unfair prejudice, although it was obviously prejudicial to Hart in that it helped

establish his criminal agency. Moreover, the interest of judicial economy weighed

heavily in this case. The State proffered that it would need to call and re-call the same

witnesses to testify on the same issues in multiple trials if the court severed the counts. In

addition, the State identified a backlog of cases that would be increased had the court

39 severed the counts. Under the circumstances presented, the trial court did not abuse its

discretion in ruling that the interests of judicial economy outweighed the risk of unfair

prejudice when it denied the motion to sever.

JUDGMENTS OF THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY REVERSED; CASE REMANDED TO THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE PAID ONE-HALF BY PRINCE GEORGE’S COUNTY AND ONE-HALF BY APPELLANT.