Card v. US

Citation776 A.2d 581
Decision Date28 June 2001
Docket Number No. 94-CF-801, No. 94-CF-754, No. 94-CF-1147.
PartiesJavier CARD, Jerome Edwards, Antoine W. Rice, Appellants, v. UNITED STATES, Appellee.
CourtCourt of Appeals of Columbia District

Rudolph M. Kammerer, Washington, DC, appointed by the court, with whom Jeffrey T. Green, appointed by the court, was on the brief, for appellant Card.

Mindy A. Daniels, appointed by the court, for appellant Edwards.

Sandra K. Levick, Public Defender Service, with whom James Klein, Public Defender Service, was on the brief, for appellant Rice. Barbara J. Valliere, Assistant United States Attorney, with whom Wilma A. Lewis, United States Attorney at the time the brief was filed, and John R. Fisher, Assistant United States Attorney, were on the brief, for appellee.

Before TERRY, STEADMAN and RUIZ, Associate Judges.

STEADMAN, Associate Judge:

During jury selection in a murder trial in 1993, one potential juror, a 33-year-old African-American male, had close cropped hair and was wearing a white shirt and bow tie. He was Juror 333. The prosecutor exercised one of his peremptory strikes against this juror out of expressed concern that the juror might be a follower of Louis Farrakhan. The principal issue on appeal is whether this exclusion was constitutionally discriminatory on the basis of religion in violation of the doctrine of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

We agree with the government that, because this potential reversible error was not fairly presented to the trial court, we can review only for "plain error." At the time, the Batson principle had been applied only to race discrimination, and indeed to this day the Supreme Court has not determined whether it extends to religion-related strikes. We can find no plain error here. In addition, although we do not condone the prosecutor's dilatory discovery compliance, we reject appellants' numerous assertions of reversible trial error and accordingly affirm the bulk of the convictions. We remand for the limited purpose of resentencing based on merged convictions.

I. Factual Summary

This appeal stems from one of the lengthiest criminal trials in the history of the District of Columbia Superior Court.1 It ended in the defendants' convictions on numerous counts of murder and other crimes. A detailed recitation of the facts, rather than elucidating the case, would serve only to obscure the issues on appeal. We therefore turn to a general description of the underlying events, and direct attention to the substantive discussions infra, wherein necessary particulars of the case and the trial are discussed.

The evidence adduced by the government at trial showed the following. Throughout the 1980's and 90's, appellant Card operated an illegal drug business with his partner, James Murray, in Southeast Washington. On October 28, 1990, Murray was murdered. The day after the murder, Card sought revenge, gathering loyal followers to avenge Murray's brutal demise. Convinced that Murray had been killed by a rival drug dealer named Billy Ray Tolbert, Card and his cohorts lured Tolbert to a Southeast apartment. Once there, Card and several of his followers — including appellants Edwards and Rice — participated in binding Tolbert's hands, feet, and mouth with duct tape, and repeatedly beating him. When Tolbert attempted to escape by jumping through the glass of a closed second story window, Card decided to kill Tolbert. Tolbert was shot several times at point blank range by Edwards and Card, among others. His body was then dropped out the window and eventually deposited in Tolbert's car, where it was later found. In the days following the murder, Card, Edwards, Rice, and others took pains to obstruct the investigation of Tolbert's murder, all the while continuing to seek revenge from other drug dealers who they suspected murdered Murray.

Forty-two witnesses testified on behalf of the government. Most important, for purposes of this appeal, were the following: Kalvin Bears, who testified that Card had admitted murdering Tolbert; Ida Stanford, who also testified that Card had acknowledged the details of the murder; Metropolitan Police Detective James Bradley, who testified regarding Edwards' inculpatory statements to police; Fred Johnson, who testified that he witnessed Card and others conspire to kill Tolbert, that on the night of the murder he heard Tolbert questioned repeatedly by Card, and that he heard the shots that killed him; Lewis Yancey, who testified that he supplied Card with guns used in the murder; and James Craille, who testified that Card had organized meetings with the appellants and other followers at which Tolbert's murder was planned, had supplied guns for the conspiracy, had lured Tolbert to the ambush, and had participated in the shooting. The defense strategy at trial was essentially to attack the credibility of these and the other witnesses. None of the appellants testified on his own behalf.

Card was convicted on seven counts, including conspiracy to commit murder (D.C.Code § 22-2401), felony murder (kidnaping) while armed (D.C.Code §§ 22-2401, -3202), and premeditated murder while armed (D.C.Code §§ 22-2401, -3202). Both Rice and Edwards were convicted on several counts, including kidnaping while armed (D.C.Code §§ 2101, -3202) and felony murder (kidnaping) while armed. All three were sentenced to lengthy prison terms, and now appeal.

II. Batson Challenge
A. Religious Discrimination

Appellants contend that the prosecutor violated the federal constitution by using a peremptory strike to exclude a juror solely on the grounds of his suspected religious affiliation,2 and that the trial court committed per se reversible error3 by allowing the strike. Appellants rely on Batson, supra, in which the U.S. Supreme Court held that a prosecutor's exclusion of even a single juror based on race, a classification subject to strict scrutiny, violates equal protection.4 This holding was extended to a juror's gender, a classification subject to intermediate scrutiny, in J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994). Like race, religion is a classification subject to strict scrutiny. See Employment Div. v. Smith, 494 U.S. 872, 886 n. 3, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990)

. However, neither this court nor the Supreme Court has ever considered whether a peremptory strike based on religious affiliation violates the Constitution. See Davis v. Minnesota, 511 U.S. 1115, 114 S.Ct. 2120, 128 L.Ed.2d 679 (1994) (denying certiorari on this precise issue). The government contends that since this argument was not fairly presented to the trial court, our review should be limited to plain error. We address this scope of review issue first.

"In our jurisprudential system, trial and appellate processes are synchronized in contemplation that review will normally be confined to matters appropriately submitted for determination in the court of first resort." Miller v. Avirom, 127 U.S.App. D.C. 367, 369-70, 384 F.2d 319, 321-22 (1967). "Objections must be made with reasonable specificity; the judge must be fairly apprised as to the question on which he [or she] is being asked to rule." Hunter v. United States, 606 A.2d 139, 144 (D.C.), cert. denied, 506 U.S. 991, 113 S.Ct. 509, 121 L.Ed.2d 444 (1992). Accordingly, we have long applied the rule that "[q]uestions not properly raised and preserved during the proceedings under examination, and points not asserted with sufficient precision to indicate distinctly the party's thesis, will normally be spurned on appeal." Womack v. United States, 673 A.2d 603, 612 (D.C. 1996) (quoting Miller, supra, 127 U.S.App. D.C. at 369-70, 384 F.2d at 321-22) (emphasis in original), cert. denied, 519 U.S. 1156, 117 S.Ct. 1097 (1997).

Taking into account all the facts and circumstances, we conclude that appellants failed to raise a constitutional challenge to the prosecutor's religious-affiliation-based strike with sufficient precision to fairly apprise the trial court of the constitutional question before it. The somewhat complicated facts bearing on that question are as follows.

Jury selection in the instant case took place in 1993, at a time when neither this court nor the Supreme Court had applied Batson to any category other than race. Each side was given twenty-four peremptory strikes, which they began to exercise on a Wednesday morning after a month of jury selection. By lunchtime, the prosecution had used six strikes, three of them against black males under thirty years of age. Using this fact as evidence of a prima facie case, and arguing that the three young black male defendants would not be able to get a "jury of their peers," appellants' counsel5 made a Batson objection to the exclusion of "black jurors and in particular young black male jurors." Under Batson, "once the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step 1), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step 2). If a race-neutral explanation is tendered, the trial court must then decide (step 3) whether the opponent of the strike has proved purposeful racial discrimination." Purkett v. Elem, 514 U.S. 765, 767, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995). Accordingly, the trial court asked the prosecutor to offer explanations for the three challenged strikes. The prosecutor did so, stating, in part, that he typically sought jurors who were employed or in school. The trial court concluded that there was no Batson violation, and the peremptory strike process resumed.

The government completed its peremptory strikes on Wednesday afternoon, exercising three more of them to eliminate black male jurors. These jurors were ages twenty-two, thirty-three, and thirty-six, respectively, and two of them were employed. The second of these strikes was of Juror 333. At the...

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    ...A.2d at 315–16.O'Brien's statement that Napue requires that the prosecutor have “presented” false testimony relies on Card v. United States, 776 A.2d 581, 602 (D.C.2001), an opinion this court has vacated. Card v. United States, 863 A.2d 821 (D.C.2004) (per curiam). Bruce was decided on the......
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    ...strike constitutional because it was based on juror's personal beliefs rather than religious affiliation); Card v. United States, 776 A.2d 581, 594-95 (D.C.Ct.App.2001) (finding strike based upon inferred allegiance to Louis Farrakhan related to a "genuine race-neutral concern regarding the......
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