Spencer v. State
| Decision Date | 29 November 2016 |
| Docket Number | No. 94, Sept. Term, 2015,94, Sept. Term, 2015 |
| Citation | 149 A.3d 610,450 Md. 530 |
| Parties | Kevon Spencer v. State of Maryland |
| Court | Court of Special Appeals of Maryland |
Renée M. Hutchins, Assigned Public Defender (University of Maryland, Carey School of Law, Clinical Law Office of Baltimore; Paul B. DeWolfe, Public Defender of Maryland, Baltimore, MD), on brief, for Petitioner.
Robert Taylor, Jr., Asst. Atty. Gen. (Brian E. Frosh, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Respondent.
Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten and Getty, JJ.
In this case, Petitioner, Kevon Spencer ("Spencer"), challenges the trial judge's finding that defense counsel's explanations for striking jurors, in light of a Batson Challenge, were a pretext for racial discrimination. Batson v. Kentucky , 476 U.S. 79, 97–98, 106 S.Ct. 1712, 1723–24, 90 L.Ed.2d 69, 88–89 (1986). Spencer argues that defense counsel provided valid, race neutral explanations; however, the trial judge did not point to evidence, on the record, to support the court's finding that the challenged party's explanation was a pretext for racial discrimination. Thus, the presiding judge, at best, made a conclusion based upon disputed facts that were not properly made a part of the record. In addition, the evidence was insufficient to satisfy the element of specific intent to kill which is necessary to sustain a conviction of second-degree attempted murder. Accordingly, we shall reverse the judgment of the Court of Special Appeals and direct that the case be remanded for a new trial as to all remaining counts except for the count charging attempted second-degree murder.
The relevant facts are taken from evidence and testimony presented at trial. On the afternoon of June 20, 2013, at approximately 4:00 p.m., Detective Priscilla Rogers saw an individual, the Defendant, later identified as Spencer, a twenty-one year old African–American male, driving a red Kia Soul on Sharptown Road in Dorchester County. Detective Rogers was driving her patrol car on Eldorado Road, Route 14. At the intersection of the two roads, she observed Spencer fail to stop at the stop sign. She applied her brakes suddenly to avoid having a collision and then turned and pulled behind the red Kia, activating her lights and siren. In response to the attempted stop, Spencer accelerated and at times reached speeds between eighty and more than 100 miles per hour. Detective Rogers testified that Spencer did this in an "attempt to get away from [her]." Detective Rogers called for assistance. Corporal Wendell Garrison and Deputy Christopher Tolley soon joined the pursuit.
Spencer was intoxicated and chased by three police cars for twelve miles. The officers testified that Spencer did not show any signs of stopping. Throughout the pursuit, he was driving at high speeds, weaving between vehicles, making "abrupt turns", and driving in the opposing traffic lane. Detective Rogers testified that Spencer nearly collided with other cars when he was driving and facing oncoming traffic. Corporal Garrison testified that the pursuit took place in "a dense heavily populated area[.]"
The three officers attempted to "box in" Spencer. Deputy Tolley was between the right driving lane and the shoulder and was half of a car's length in front of the Kia. Detective Rogers was behind the Kia on the correct side of the road. Corporal Garrison was driving beside the group, in the opposing traffic lane. At this point, Spencer was driving the Kia on the right side of the road and at times on the paved shoulder.
In response to the "box in" Spencer accelerated and drove onto the grass and paved shoulder and collided with cyclist Andrew Kinn (Kinn), who was walking his bicycle off the road apparently in order to get out of the way of the chase. Spencer's car clipped Kinn on the left leg, causing him to be thrown into the air and land on the windshield. Kinn suffered serious injuries. Doctor Cory Carpenter testified that the likely point of impact with the vehicle was Kinn's left leg; most of the other fractures in the back and on the shoulder likely resulted from being hurled into the air and landing onto the hood.
All three officers testified that they saw Kinn before the collision. Detective Rogers testified she saw Kinn "probably two telephone pole lengths away" and that "[h]e had on a bright yellow shirt ... [with] multiple flags flying from the back of his bicycle." Corporal Garrison stated that because "his Tahoe sits a little higher than other vehicles, [he] could see everything from [his] vantage point" and he first saw Kinn "three light poles away" in a "bright shirt" with "flags on the bike". Deputy Tolley testified that he saw Kinn when he was "heading towards the pursuit" because he was joining the pursuit from the opposite direction. Further, Corporal Garrison testified that Spencer had two options to avoid hitting Kinn: (1) drive into the ditch or (2) use the "avenue of escape" by attempting to go around Deputy Tolley's car, which was half of a car length in front of his car, by getting into the opposing traffic lane.
Before the collision, the passengers in the vehicle were becoming increasingly panicked. Detective Rogers testified that the occupants were "moving around constantly." Keevin Robinson (Robinson), the passenger who sat directly behind Spencer in the Kia, testified that throughout the chase the occupants were screaming for Spencer to stop and pull over.
Robinson testified it was "[n]o longer than 2 seconds" from the moment he first saw the cyclist to the moment of collision: He stated that he was sure he must have been screaming for Spencer to stop, but indicated that he did not have "enough [ ] time to stop him or do something about it." Moreover, Robinson noted that Spencer never indicated that he intended to hit Kinn, or anyone else, nor did he acknowledge that he had seen the bicyclist.
After the collision, Deputy Tolley testified that Spencer "swerved back onto the road and traveled across the paved shoulder, the driving lane, the west bound lane, the eastbound lane, and then the paved shoulder on the other side and went off the roadway." At this point, Deputy Tolley approached Spencer, "drove into the rear of him", and "shoved him up onto the railroad tracks to disable [sic] so he wasn't able to drive off." Spencer attempted to escape on foot. He was arrested a short time later when Deputy Tolley, with the assistance of Corporal Garrison, tackled and tazed him. Spencer also told Detective Rogers, "I'm still fucked up." At trial, Robinson testified he "blacked out" and "couldn't remember" how the car came to a stop. During his sentencing statement, Spencer apologized to the victim and also indicated that he did not know what was going through his mind and that the drugs had him "blind" and caused him to black out.
During jury selection, the State approached the bench and indicated to the court that defense counsel was striking mostly white males and females, specifically four of them, and requested that defense counsel put on the record the reasons for those strikes. The court responded:
THE COURT: All right. [Defense counsel], you've been playing with this for a long time in your other trials. The Court has noticed a pattern of striking white[,] mostly male jurors, even jurors who have not answered a question. I'm going to require you to explain your rationale or striking. We'll start with juror number 165.
Defense counsel stated that he was striking juror 165 because the juror "indicated that he knew one of the detectives who was going to be testifying, a sister of a friend." The court responded by asking about juror 166. Defense counsel responded: "I tend to strike farmers every opportunity I get." The court asked why he would tend to do that, to which Defense counsel stated that based on his life experience he finds that "they are not fair and impartial [.]" The judge then turned to juror 168. Counsel responded that he "did not answer a question and also indicated merely that he was self-employed"; additionally, he is fifty-eight years old and counsel stated he tends to strike older people when there is not sufficient information to determine if it would be a good idea to have them on the jury. The judge inquired as to age when he asked if age was a protected class for purposes of Batson , to which the defense counsel stated no. The judge did not seem satisfied as he stated:
[DEFENSE COUNSEL]: My understanding is that and my life experience is that those people who are older tend to be more law abiding. It's the same reason that the State is permitted to, without a Batson challenge being sustained, to strike young people. They routinely do [so] because the law has determined that young people lack the life experience to follow the law. My experience is that people who are of substantial age tend to credit law-enforcement, and to credit the system to a degree that ultimately affords an unfairness to my client.
The State noted to the court that there were two black males who were older than fifty-eight years of age that had not been struck by counsel. Defense counsel responded:
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