Harris v. United States

• Decision Date: 07 October 2021
• Docket Number: No. 18-CF-547,18-CF-547
• Citation: 260 A.3d 663
• Parties: Derrian Freeman HARRIS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

260 A.3d 663

Derrian Freeman HARRIS, Appellant,

v.UNITED STATES, Appellee.

No. 18-CF-547

District of Columbia Court of Appeals.

Submitted April 9, 2020

Decided October 7, 2021

William Collins, Public Defender Service, with whom Samia Fam and Jaclyn Frankfurt, Public Defender Service, were on the brief, for appellant.

Elizabeth Gabriel, Assistant United States Attorney, with whom Jessie K. Liu, United States Attorney at the time, and Elizabeth Trosman, John Mannarino, Jennifer Loeb, and Rachel Forman, Assistant United States Attorneys, were on the brief, for appellee.

Before Blackburne-Rigsby, Chief Judge, Thompson,^* Associate Judge, and Ruiz, Senior Judge.

Thompson, Associate Judge:

On February 28, 2018, a jury convicted appellant, Derrian Freeman Harris, of possession with intent to distribute (PWID) cocaine, see D.C. Code § 48-904.01(a)(1) (2021 Supp.), and possession of an open container of alcohol (POCA), see D.C. Code §§ 25-1001(a)(1), (d) (2021 Supp.). Mr. Harris appeals on two grounds. First, he argues that the trial judge (the Honorable Steven Berk) erred in rejecting his Batson¹ challenge to certain of the prosecution's peremptory strikes during jury selection. Second, Mr. Harris argues that the court (the Honorable Robert A. Salerno) erred in denying his pre-trial motion to suppress evidence found during a search of the vehicle he had been driving. With respect to Mr. Harris's first argument, we agree that the trial court erred by failing to sufficiently scrutinize the prosecutor's explanations for the strikes of two black women jurors. We therefore reverse Mr. Harris's convictions. Although we think it unlikely that Mr. Harris will be retried (given that by now he presumably has completed his sentence of incarceration) and that the suppression issue therefore will not arise again, we also briefly explain our conclusion that the vehicle search was lawful and the suppression motion was properly denied.²

I. The Batson Issue

We start with this preliminary observation: that race is an impermissible factor in jury selection even if (as we assume here) the prosecutor was not motivated by racial animus, but instead acted on an assumption that a black woman juror, because of her race, would be favorable to a black defendant or unfavorable to the government. Batson , 476 U.S. at 97-98, 106 S.Ct. 1712 ; Flowers v. Mississippi , ––– U.S. ––––, 139 S. Ct. 2228, 2241-42, 204 L.Ed.2d 638 (2019). We are prompted to make this observation because, during the Batson proceedings in the trial court, the prosecutor urged the court "to be very cautious in making findings" given that "any remedial measures that th[e] [c]ourt takes[ ] can ultimately be used as an adverse finding against these prosecutors." We do not know whether the trial court heeded the prosecutor's cautionary words, but we think it is worth quoting a point aptly made by another appellate court:

[U]nder Batson , the issue is not racial animus but the [defendant's] right to a fair trial, including a jury selection process untainted by improper exclusion of prospective jurors based on race. The [government], like any other party to a jury trial, wants to seat a jury that will be favorable (or at least not hostile) to its case. Batson focuses on the reason the [government] believes a particular juror should not be seated, and if the juror's race is [a] reason, a violation exists despite the fact that the prosecutor does not otherwise discriminate against or harbor any animus toward that race.

In re A.S. , 412 Ill.Dec. 720, 76 N.E.3d 786, 793 (Ill. App. Ct. 2017). Relatedly, one jurist has expressed concern that "trial judges hesitate to sustain Batson challenges, when they otherwise might and should, because such a ruling is seen as tantamount to calling the prosecutor a racist[,]" a misconception whose "[p]erpetuation ... allows ... race-based strikes to go unchecked." People v. Ojeda , 487 P.3d 1117, 1133 (Colo. App. 2019) (Harris, J., specially concurring), cert. granted , No. 19SC763, 2020 WL 4915894 (Colo. Aug. 17, 2020). To the extent the "adverse[-]finding" concern the prosecutor expressed, or the court's response to it, reflected such a misconception, we think it important to endorse these other courts’ remarks.

Our review of appellant's Batson claim begins with the recognition that if the record indicates that race was a consideration in the prosecution's decision to strike even one black juror, appellant is entitled to reversal of his convictions. See Smith v. United States , 966 A.2d 367, 369 (D.C. 2009) ; Beasley v. United States , 219 A.3d 1011, 1016 (D.C. 2019) (explaining that excluding even one member of the venire on the basis of race would violate the Equal Protection Clause). "Our task requires careful scrutiny of the record, because we must be guided by the principle that ‘race is an impermissible factor, even if a minor one, in exercising peremptory strikes.’ " Smith , 966 A.2d at 369 (quoting Tursio v. United States , 634 A.2d 1205, 1213 n.7 (D.C. 1993) ). To this end, we describe the Batson proceedings in some detail, including the prosecutor's proffered reasons for strikes, defense counsel's response, and the trial court's evaluation.

A. Voir Dire, the Peremptory Strikes, and the Defense's Batson Challenge

Appellant's Batson challenge arose on the first day of jury selection. Following strikes for cause by the court, during which the court struck every one of the black men in the venire, thirty-seven prospective jurors remained. Of those remaining jurors, nine were black women, constituting 24% of the venire; twenty-four were white (thirteen men, eleven women), constituting 64% of the venire; and four were Hispanic (two men, two women). Each side was allotted ten peremptory strikes and one strike for selecting alternates. The defense used nine of its ten strikes, or 90%, against white jurors and also struck one Hispanic female juror. The prosecution used five of its ten strikes, or 50%, against five of the nine black women. After reviewing the strike sheet, defense counsel asked that the prosecution put on record why these black women were struck. The trial judge allowed a break at this point for the prosecutor to go over the numbers and instructed the jury to return in fifteen minutes.

After the case was recalled, the lead prosecutor indicated that the government "may need a little bit more time." The parties and the court then proceeded to clarify the numerical breakdown of the venire following strikes for cause. After reviewing the figures, the court asked the prosecutor to provide her "non[-]discriminatory purposes." The prosecutor responded by asking the court "to make a determination whether [defense counsel] has made out a prima facie case." The prosecutor argued that defense counsel had failed to do so, noting that defense counsel had used nine of her ten strikes to strike white jurors and asserting that the court "should consider [defense counsel's] own strikes to demonstrate that there can be non[-]discriminatory aberrations in the panel."

After some exchanges between the court and the parties about how to proceed and the trial court's expression of concern about losing the jury and having to start over, the lead prosecutor noted that her supervisor was "on his way over" and asked for a few minutes to consult with the supervisor. The court agreed to allow the prosecutor "a minute" to consult, after which the prosecutor said that she would "go ahead and put our non[-]discriminatory reasons on the record." Before proceeding to do so, however, the prosecutor again asked whether the court had made any ruling with respect to defense counsel's prima facie case. The court responded by telling defense counsel that "the numbers ... don't get you there completely" and asking her to provide more.

In response, defense counsel referred to the "disparity" in strikes by the government (i.e., only nine black venire persons, all women, comprising 24% of remaining jurors, and the prosecution's striking five, which amounted to 50% of its strikes). Defense counsel also asserted that three of the black women did not answer "yes" to any of the court's questions and that "it just does not seem that there's any reason to strike three out of the five black women ... other than the fact that they are black women." The prosecutor then asked "to make a record [ ]on non[-]discriminatory reason[s] irrespective of the [c]ourt[’s] decision" on the sufficiency of the prima facie case. The prosecutor went on to offer explanations for the strikes of the five black women, including the three at issue in this appeal: Jurors 214, 924, and 038.

In explaining the strike against Juror 214, the prosecutor stated that while the trial judge was reading the second charge (POCA), she (the prosecutor) "happened to be looking at [Juror 214] ... and she made a face like come on, sort of dropped her shoulders and her hands and rolled her eyes like come on. Are we really talking about possession of an open container of alcohol?" The prosecutor said that she "noted it as soon as I saw it. It's here on my notes for myself." The prosecutor added that this juror "also indicated to us that she works at a public school system" and that jurors who "work at public schools, particularly teachers, it's just a personal preference for [the prosecution], that those are not jurors that we would choose to put on our jury, if we have a choice, and so, we elected to use a preemptory strike for her." The prosecutor then clarified that Juror 214 was not a teacher but "was an administrative assistant at the public school system." The trial court replied, "[o]kay."

Regarding Juror 924, the prosecutor explained that this juror "asked the question about the [voir dire] question .... I think she interrupted the [c]ourt before the [c]ourt even asked her what the question was, and she said I didn't really understand the question."³ According to the prosecutor, "there was a lot of discussion about the...