Jefferson v. US

• Decision Date: 26 August 1993
• Docket Number: No. 92-CF-309.,92-CF-309.
• Parties: David JEFFERSON, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

631 A.2d 13

David JEFFERSON, Appellant, v. UNITED STATES, Appellee.

No. 92-CF-309.

District of Columbia Court of Appeals.

Argued April 13, 1993.

Decided August 26, 1993.

Philip A. Sechler, Washington, DC, appointed by the court, for appellant.

Peter H. White, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty. at the time the brief was filed, and John R. Fisher, Thomas C. Black, and Renee Y. Webb, Asst. U.S. Attys., Washington, DC, were on the brief, for appellee.

Before ROGERS, Chief Judge, and TERRY and KING, Associate Judges.

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 Pomeroy 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." i.e., 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 pre-recorded $20 bill.³

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

If 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

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