Jefferson v. United States

631 A.2d 13, 1993 D.C. App. LEXIS 210, 1993 WL 326056

• Court: District of Columbia Court of Appeals
• Decided: August 26, 1993
• Docket: 92-CF-309
• Status: Published

Opinions

TERRY, Associate Judge:

Appellant Jefferson was convicted of distributing cocaine.¹ He raised an entrapment defense, asserting that the police “coerced him to do this act.” On appeal he contends that the government used its peremptory challenges in a discriminatory manner, in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and that the evidence was insufficient to permit the jury to find that he was predisposed to distribute drugs. Although we agree that the procedure employed by the trial court in considering the Batson claim was not what it should have been, we conclude that appellant failed to make a prima facie showing of a Batson violation. His challenge to the sufficiency of the evidence is wholly without merit. Accordingly, we affirm the conviction.

I

A. Jury Selection

During the voir dire, after several venire members were excused for cause, counsel began to exercise their peremptory challenges. When defense counsel raised an objection to the government’s use of its peremptory strikes, the following discussion occurred at the bench:

[Defense Counsel]: Your Honor, I want to object to the Government’s strike. Every strike has been someone of the same race as Mr. Jefferson.

[Prosecutor]: That’s not true.

[Defense Counsel]: This gentleman [referring to a juror struck by the prosecutor] hasn’t even spoken, to my recollection. It appears to be no pattern other than racial for the strikes.

******

... All the strikes except for the one gentleman that has experimented with drugs are of the same, are black people.

The Court: You think that she’s discriminating against Mr.—

[Defense Counsel]: That’s what I was alleging, Your Honor, yes.

The Court: Well, I’m sure she wouldn’t do that intentionally.

[Defense Counsel]: Well, intentionally or otherwise, he’s still the one that gets harmed by it.

[Prosecutor]: Your Honor, I would note for the record that all of my strikes have not been of the same race, and I would also note that all of counsel’s strikes have been of the same race. And if that would be an issue, I would raise it as to counsel. He has struck all white jurors.

The Court: Counsel may continue their strikes.

The bench conference ended at this point, and the voir dire resumed.

After jury selection had been completed and the jury had left for lunch, the trial court returned to the issue:

The Court: All right. Now, what was the — you want to put on the record again the motion that you were trying to make in the court?

[Defense Counsel]: Yes, sir. Thank you, Your Honor. Yes. All the strikes of the Government except one strike of Juror 661896 were strikes of people of the same race as Mr. Jefferson. I was unable to determine a pattern based on anything other than race for those strikes since most of those strikes were not people who commented during the voir dire process. And I was objecting to those strikes because [they] appeared to be based on race.

The Court: All right. What does the Government have to say?

[Prosecutor]: First, Your Honor, the Government would note that all of its strikes were not of race [sic]. I didn’t keep a count of how many were black or how many were white or how many were of whatever race because, frankly, that wasn’t the basis of my strikes. I did note, however, that counsel himself struck all white jurors.

[Defense Counsel]: I’d like to correct the record.

The Court: Just a minute.

[PROSECUTOR]: After he raised his issue. But I would note that the fact that they didn’t speak doesn’t necessarily mean that you struck that person because of race. There’s a number of things, the way that a person looked at you, the way that a person might have kept looking at the defendant, which was certainly a basis for some of my strikes. Smiling, appearing to be too friendly with the defendant, or looking too hard at me.

I think most lawyers know that when you’re picking a jury, it’s just very subtle things that are transmitted to the lawyers in the course of picking the jury, and I just would like to state for the record that race wasn’t the basis of me striking these individuals.

The Court: Okay. Well, I don’t have to resolve that issue right now anyway, but we’ve got a jury so that may resolve everything. You may raise it again at a later date if you want to.

The issue was not discussed further.

B. The Trial

Mario Etienne was a member of the Rapid Deployment Unit of the Metropolitan Police. He testified that on July 11, 1991, he was assigned to the 2500 block of Pom-eroy Road, S.E., prepared to engage in an undercover purchase of narcotics. He walked up to some people playing basketball and asked if anyone was “working.” ie., selling cocaine. One of the basketball players told him “to go up in the parking lot,” but when Etienne asked someone in the parking lot whether anyone was working, “that man told [him] no.” After leaving the parking lot, however, he saw appellant Jefferson and asked him “if he knew anyone that was working.” Jefferson directed the officer back to the parking lot, but when Etienne said he would not go there,² Jefferson replied that he would go to the lot himself and “get one to come down here and serve you.” Jefferson then approached another man, later identified as Barry Johnson, who, along with Jefferson, disappeared out of the officer’s sight. Moments later the two returned, and Jefferson handed Officer Etienne a ziplock bag of cocaine. Etienne in exchange gave Jefferson a $20 bill whose serial number he had previously recorded, and Jefferson in turn handed the money to Johnson.

Officer Christopher Coles, who was working under cover with Officer Etienne and was standing about thirty feet away from him when he bought the cocaine, radioed a lookout to an arrest team waiting nearby. Acting on that broadcast, the arrest team stopped two men — Jefferson and Johnson — whom Etienne later identified as the two that were involved in the drug sale. Officer Reginald Adams, a member of the arrest team, searched Johnson and recovered $200 in cash, which included the prerecorded $20 bill.³

The defense presented no evidence. In his closing argument, however, defense counsel said to the jury:

[I]f you find some evidence that Mr. Jefferson was enticed, was induced to commit this crime, in other words, he didn’t have it on his mind, and was induced by the police to do it, then, if you make that finding, you have to find beyond a reasonable doubt that he wasn’t predisposed to commit this crime, except for what the police did.

The court included in its charge to the jury an instruction on entrapment, to which neither party objected.

II

An assertion by counsel that the government is acting in a racially discriminatory manner is very serious and demands the closest possible scrutiny by both the trial court and this court. We agree that the trial court in this case should have examined defense counsel’s claim much more carefully. On the present record, however, we conclude that counsel did not make a prima facie showing of a Batson violation.⁴

Relying on this court’s decision in Nelson v. United States, 601 A.2d 582 (D.C.1991), the government asserts that defense counsel “did not make a record on which his Batson claim can be considered.” In Nelson the appellant claimed “that the trial court erred in overruling his objection to the prosecutor’s alleged misuse of his peremptory challenges by striking only black persons.” Id. at 590. We rejected this argument for the “fundamental reason that the record on appeal fails to establish the racial makeup of either the venire or the jury actually selected, and that under Cobb v. Standard Drug Co., 453 A.2d 110 (D.C.1982), the responsibility for that failure lies with appellant.” Nelson, supra, 601 A.2d at 590. The same thing happened here: counsel for appellant Jefferson failed to establish the racial makeup of either the venire or the jury actually selected.

Jefferson mistakenly believes that he may rely solely on the fact that the prosecutor used nine of her ten peremptory strikes -to remove black persons from the venire to support his Batson claim. He is asking us, in effect, to “extrapolate a pattern of discrimination”⁵ from the number of black venire members who were challenged by the prosecutor as compared with the number of white venire members challenged. We agree with the Maryland Court of Special Appeals that such limited facts — the number of black persons challenged versus the number of white persons challenged — can be relevant only when the court also has “knowledge of the percentage of strikes used against a given group [and] also knowledge of the percentage that that group represented of the total venire panel — or, more precisely, of the percentage that that group represented of the prospective jurors actually called forward to be accepted or challenged.” Bailey v. State, supra note 5, 84 Md.App. at 331, 579 A.2d at 778; see United States v. Esparsen, 930 F.2d 1461, 1467 (10th Cir.1991) (“the number of challenges used against members of a particular race is ‘not sufficient to establish or negate a prima facie case’ ” (citations omitted)), cert. denied, — U.S. -, 112 S.Ct. 882, 116 L.Ed.2d 786 (1992).

Despite the trial court’s prompting to develop a record on this issue, defense counsel said only the following:

All the strikes of the Government except one strike of Juror 661896 were strikes of people of the same race as Mr. Jefferson. I was unable to determine a pattern based on anything other than race for those strikes since most of those strikes were not people who commented during the voir dire process. And I was objecting to those strikes because it appeared to be based on race.

This was not enough. It is true that “the burden of establishing a prima facie showing is not onerous and that its primary function is to eliminate the most common nondiscriminatory reasons for the prosecutor’s peremptory strikes.” Little v. United States, 613 A.2d 880, 885 (D.C.1992) (citation omitted). But that burden is not met by counsel's mere assertion of a discriminatory purpose. The fact that nine of the prosecutor’s ten challenges were directed toward black persons is not sufficient to establish such a purpose, even prima facie. As we observed in Little, “Given the composition of the typical venire in the District of Columbia, ‘it is not particularly surprising [when] all of the persons struck by the prosecutor [are] black.’ ” 613 A.2d at 886 (quoting Nelson, supra, 601 A.2d at 590-591).

Jefferson maintains that he established a prima facie case when his counsel objected to the prosecutor’s use of her fifth peremptory challenge “because it excluded a black male who had not answered a single question during voir dire.” At this point the prosecutor had exercised four of five challenges against black venire members. The trial court, however, dismissed counsel’s assertion and told counsel to continue their strikes. After the jury was in the box, counsel again raised his objection to the prosecutor’s use of peremptory challenges, asserting that nine of the government’s ten challenges had been directed at black persons, “most” of whom had not said anything during voir dire.6 The court, after listening to a brief response by the prosecutor, determined that the defense had not met its burden of making out a prima facie case.

In Batson the Supreme Court articulated the standards for assessing whether a pri-ma facie case has been established:

To establish such a case, the defendant first must show that he is a member of a cognizable racial group ... and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits “those to discriminate who are of a mind to discriminate.” ... Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude veniremen from the petit jury on account of their race.

476 U.S. at 96, 106 S.Ct. at 1723 (citations omitted). The determination of whether a prima facie showing has been made is particularly fact-sensitive, Little, supra, 613 A.2d at 885, and the Supreme Court has made clear that trial judges, because they are “experienced in supervising voir dire,”

are the ones who “will be able to decide if the circumstances concerning the prosecutor’s use of peremptory challenges creates a prima facie case of discrimination against black jurors.” Batson, supra, 476 U.S. at 97, 106 S.Ct. at 1723.⁷ This court, although noting that “[wjhether a defendant has satisfied the burden of making a prima facie case is a question of law,” and thus an issue which we decide de novo, has also recognized that it “mi t give deference to both the trial court’s findings of fact and its ultimate ruling on whether the defendant satisfied the prima facie burden.” Little, supra, 613 A.2d at 885 (citing Batson); see United States v. Grandison, 885 F.2d 143, 146 (4th Cir.1989), cert. denied, 495 U.S. 934, 110 S.Ct. 2178, 109 L.Ed.2d 507 (1990).⁸ While it would have been better if the trial judge here had stated in so many words whether the prima facie burden was met, his conclusion to that effect can be inferred from his decision to proceed with the trial after hearing the prosecutor’s response to defense counsel’s Batson claim. On the record before us, we cannot say that such a conclusion amounted to an abuse of discretion.

This court in Little engaged in a thorough discussion of the “relevant circumstances” which a trial judge should consider in determining whether a prima facie case has been established. 613 A.2d at 885-887. It is true that “[a] single strike of a white juror can be a means to conceal (or attempt to conceal) a pattern of striking black jurors_” Id. at 886. Nevertheless, a defendant “is required to ‘come forward with facts, not just numbers alone’ in making a prima facie showing ... although the trial court may examine statistical disparities as one factor in assessing the pri-ma facie case.” Id. (emphasis in original; citations omitted). Moreover, an inference of discrimination will not likely arise from a mere showing that the prosecution used all of its peremptory challenges to exclude blacks. Id. (citing United States v. Sangineto-Miranda, 859 F.2d 1501, 1521 (6th Cir.1988)). In Little, where the record with respect to the Batson claim was much more thoroughly developed than in the case at bar, this court held that defense counsel had failed to make a prima facie case. The facts (1) that the defendant was black and six of seven strikes were directed toward black persons, (2) that several black persons were struck who had answered no voir dire questions at all, and (3) that the only white person whom the prosecutor struck had answered a question did not persuade us that the defendant had made a prima facie showing of a Batson violation.⁹ In the case at bar, the record is by no means as strong as the record in Little, and we see no reason to reach a different result.¹⁰

We think it would be imprudent for us to formulate a per se rule for determining whether a prima facie case is established. As we recognized in Little, there

are various methods of concealing a pattern of striking black jurors. 613 A.2d at 886. A bright-line rule would be easy to circumvent and would give rise to numerous allegations and suspicions that a prosecutor was attempting to conceal discriminatory challenges. Instead we elect to defer, as the Supreme Court advised in Batson,

476 U.S. at 97, 106 S.Ct. at 1723 to the assessment of the trial judge. See United States v. Grandison, supra, 885 F.2d at 146-147. We note, however, that the “favored method” of addressing a Batson claim is for the trial court to rule at each step of the Batson analysis; its failure to do so “deprives this court of the benefit of its factual determinations and the reasons supporting its ultimate holding.” United States v. Joe, 928 F.2d 99, 103 (4th Cir.), cert. denied, — U.S. -, 112 S.Ct. 71, 116 L.Ed.2d 45 (1991). We close this portion of our opinion by reiterating what we said in Little:

[W]e caution trial judges to make a clear record of their reasons for finding or not finding that a defendant has made a pri-ma facie case. The trial court should refer on the record to underlying facts or note the absence of facts either, supporting or negating a prima facie case.... Where the issue is close, conservation of judicial resources might well justify inquiry of the government attorney as to the reasons for making a strike ... especially since the prosecutor’s burden in rebutting a prima facie case is neither onerous nor time-consuming.

613 A.2d at 887-888 (citations and internal quotation marks omitted).

Ill

Jefferson asserts that “there was insufficient evidence for the jury to find that [he] was predisposed to distribute cocaine prior to being approached by undercover officers.” As Jefferson correctly notes, the Supreme Court, in its most recent case discussing the entrapment defense, has held that when “the defense of entrapment is at issue ... the prosecution must prove beyond [a] reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents.” Jacobson v. United States, — U.S. -, -, 112 S.Ct. 1535, 1540, 118 L.Ed.2d 174 (1992) (citation omitted). It does not follow, however, that Jacobson supports his argument.

The entrapment defense “centers on ... a person’s predisposition to commit a crime, and not on the government’s conduct.” United States v. Whoie, 288 U.S.App.D.C. 261, 263, 925 F.2d 1481, 1483 (1991). Once it is shown that the government “induced” the defendant to engage in criminal activity, it is the government’s burden to prove that the defendant was otherwise predisposed to commit the crime. Jacobson, supra, — U.S. at -, 112 S.Ct. at 1540. Jefferson asserts that the government failed as a matter of law “to adduce evidence to support the jury verdict that [he] was predisposed, independent of the Government’s acts and beyond a reasonable doubt, to violate the law_” Id. — U.S. at -, 112 S.Ct. at 1543. In considering this argument, we view the evidence, as we must, in the light most favorable to the government. E.g., Nelson v. United States, supra, 601 A.2d at 593 (citing cases). Reversal is warranted “only where there is no evidence upon which a reasonable mind could infer guilt,” Patterson v. United States, 479 A.2d 335, 338 (D.C.1984) (citation omitted), which in this case means that reversal is warranted only if there is no evidence that Jefferson was predisposed.

The Supreme Court in Jacobson anticipated the very scenario presented in the instant case:

[A]n agent deployed to stop the traffic in illegal drugs may offer the opportunity to buy or sell drugs, and, if the offer is accepted, make an arrest on the spot or later. In such a typical case ... the entrapment defense is of little use because the ready commission of the criminal act amply demonstrates the defendant’s predisposition.

— U.S. at -, 112 S.Ct. at 1541 (citation omitted). The evidence in this case shows that Jefferson did not hesitate to assist Officer Etienne in obtaining drugs, but readily seized the opportunity to do so. When Etienne encountered Jefferson near the parking lot and asked him “if he knew anyone that was working,” i.e., selling drugs, Jefferson immediately responded by referring Etienne to the group of men in the parking lot. When Etienne declined to approach them, Jefferson offered to “get one [of them] to come down here and serve you.” True to his word, he promptly went to the parking lot and brought back Barry Johnson, who together with Jefferson completed the sale. In the language of the Supreme Court in Jacobson, such “ready commission of the criminal act amply demonstrates the defendant’s predisposition.” Id.

We said many years ago in rejecting a similar claim of entrapment:

[0]nly where creative governmental activity instills the criminal notion in an otherwise innocent individual may the entrapment defense properly lie. A defendant claiming entrapment must be more than unaware of the fact that the subject activity will lead to his arrest; he must be wholly without criminal intent when he joins the police in the commission of a crime.

Williams v. United States, 342 A.2d 367, 369 (D.C.1975) (emphasis added); see United States v. Russell, 411 U.S. 423, 435-436, 93 S.Ct. 1637, 1644-45, 36 L.Ed.2d 366 (1973). On the evidence here it is questionable whether the trial court should even have given an entrapment instruction at all. See Mathews v. United States, 485 U.S. 58, 66, 108 S.Ct. 883, 888, 99 L.Ed.2d 54 (1988) (“evidence that Government agents merely afforded an opportunity or facilities for the commission of the crime [is] insufficient to warrant such an instruction”); Minor v. United States, 623 A.2d 1182, 1187-1188 (D.C.1993). If this was error, however, it benefited the defense, and Jefferson cannot now complain of it. We hold that there was ample evidence from which the jury could reasonably find that Jefferson was predisposed to participate in the sale of cocaine to Officer Eti-enne.

Jefferson’s conviction is therefore

Affirmed.

1 . D.C.Code § 33 — 541(a)(1) (1988).

2 .Officer Etienne testified on cross-examination that he told Jefferson that he would not go to the parking lot because some of the “young ones" there had taken his money in the past.

3 . Johnson, also known as Anthony Conner, was indicted along with Jefferson, but his case was severed, and he was tried separately.

4 . Jefferson is very ably represented on appeal by newly appointed counsel.

5 . Bailey v. State, 84 Md.App. 323, 331, 579 A.2d 774, 778, cert. denied, 321 Md. 225, 582 A.2d 531 (1990).

6 . In most cases this fact alone is of little or no value in assessing a Batson claim. As the prosecutor observed, there are many reasons why a particular venire member may be struck, and such reasons are not necessarily revealed by what that person does or does not say during voir dire.

7 . The Supreme Court has held that the use of peremptory challenges "to exclude otherwise qualified and unbiased persons from the petit jury solely by reason of their race” violates the excluded jurors’ rights to equal protection of the laws, and that the defendant may challenge his or her conviction by raising the rights of these third parties (the jurors). Powers v. Ohio, 499 U.S. 400, -, 111 S.Ct. 1364, 1370-1371, 113 L.Ed.2d 411 (1991).

8 . In Grandison, supra, the court explained that such deference is due because the trial judge’s findings “stem[ ] from first-hand knowledge and observation of the critical events." 885 F.2d at 146. In particular, the trial judge "has the opportunity to observe voir dire and the prosecution’s exercise of its peremptory challenges,” as well as "the experience ‘to identify a prima facie case of purposeful discrimination.' ” Id. (citing Batson). The court also noted that a trial judge’s finding of intentional discrimination is a finding of fact "which turns largely ‘on evaluation oi credibility.’ ” Id. (citing Batson ).

9 . We recognized in Little that the case was "a close one.” 613 A.2d at 885. Had the defendant not relied solely on numbers, but brought forth additional facts, the decision might have been different. See id. at 887.

10 . The government all but concedes that if the defense had presented a prima facie case, the prosecutor's general disclaimer about her use of peremptory challenges would almost certainly have been insufficient to meet the government’s burden. See Batson, supra, 476 U.S. at 98, 106 S.Ct. at 1724 (prosecutor "must articulate a neutral explanation related to the particular case to be tried”); United States v. Horsley, 864 F.2d 1543, 1546 (11th Cir.1989) (prosecutor’s "vague explanation” for striking a black juror, i.e., “I don’t have any particular reason; I just got a feeling about hint” was insufficient to rebut defendant’s prima facie showing of discrimination). The prosecutor’s tit-for-tat comment here that defense counsel had "struck all white jurors” was particularly irrelevant.