Mills v. State

• Decision Date: 05 November 2018
• Docket Number: No. 950, Sept. Term, 2017,950, Sept. Term, 2017
• Citation: Mills v. State, 239 Md.App. 258, 196 A.3d 497 (Md. App. 2018)
• Parties: Daniel MILLS v. STATE of Maryland
• Court: Court of Special Appeals of Maryland

239 Md.App. 258

196 A.3d 497

Daniel MILLS

v.STATE of Maryland

No. 950, Sept. Term, 2017

Court of Special Appeals of Maryland.

November 5, 2018

Argued by: Benjamin E. Moskowitz (Williams & Connolly, LLP, Washington, D.C., Paul B. DeWolfe, Public Defender, Baltimore, MD), all on the brief, for Appellant.

Argued by: Gary E. O'Connor (Brian E. Frosh, Atty. Gen., on the brief), Baltimore, MD, for Appellee.

Panel: Eyler, Deborah S., Meredith, Lynne A. Battaglia (Senior Judge, Specially Assigned), JJ.^*

Battaglia, J.

A jury sitting in the Circuit Court for Baltimore City convicted Daniel T. Mills, appellant, of possession of cocaine with intent to distribute as well as simple possession of that drug. The circuit court thereafter sentenced Mills to twelve years' imprisonment, with all but four years suspended, to be followed by three years' probation. Mills then noted this appeal, raising the following issues:

I. Whether the trial court erred in holding that the defendant failed to make a prima facie showing of discrimination under Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), based solely on the court's finding that the racial makeup of the seated jury resembled the racial makeup of the jury pool;

II. Whether the State failed to present sufficient evidence that the defendant possessed cocaine when there was no evidence that the defendant could see the cocaine in the vehicle in which he was a passenger; and

III. Whether the prosecutor's improper and repeated suggestions in closing argument that the defendant was right-handed, a fact not in evidence, require a new trial.

We hold that the trial court erred in aborting Mills's Batson challenge at step one of the inquiry. We further hold that the evidence was sufficient to sustain the convictions and that the claim concerning the prosecutor's comments was not preserved but that, in any event, those comments were not improper. Finally, for reasons we shall explain henceforth, we hold that the appropriate remedy for the court's Batson error is a limited remand for a hearing on Mills's Batson challenge, to determine whether he is entitled to a new trial.

BACKGROUND

In the early morning hours of March 21, 2016, Detective Melvin Jones of the Baltimore City Police Department was on "routine patrol" in a marked police cruiser when he observed a blue Chevrolet Cruze traveling westbound on Pulaski Highway near Highland Street in Baltimore City. As the Chevrolet approached a red light and came to a stop, Detective Jones pulled up behind it and, using an onboard electronic database, ran a "random tag check." In doing so, he noticed that its owner, David Fitzgerald, had a suspended driver's license. After pulling alongside the Chevrolet and confirming that Fitzgerald was, in fact, driving, Detective Jones initiated a traffic stop, notifying his dispatcher as he did so. There was one other occupant of that vehicle—Mills, who was sitting in the front passenger seat.

Detective Jones approached the Chevrolet and "made contact with" Fitzgerald. While he was speaking with Fitzgerald, Officers Derek Bowman and Jacob Reed, having heard about the traffic stop from the dispatcher, arrived at the scene, having driven separately in marked police vehicles.

As a precaution, Officer Reed parked directly in front of Fitzgerald's Chevrolet to prevent it from moving, while Officer Bowman pulled in behind Detective Jones's vehicle. Officer Reed then approached the passenger side of Fitzgerald's car and began speaking with Mills, asking him "where they were both coming from and where they were going," but Mills sat silently, ignoring the officer's questions and avoiding eye contact.

Meanwhile, an "intoxicated male" bystander "started walking up to" Fitzgerald's vehicle and "yelling something like he knew the individual in the car." Officer Bowman "told him several times" that he needed to "stand to the side." Eventually he heeded that advice and left the scene.

Officer Reed, who had been questioning Mills, then asked him to step out of the vehicle and "stand towards the back," where Officer Bowman was then located. After Mills complied with that request, Officer Reed "knelt over and looked under the [front passenger] seat." When he did so, he saw a Glock 9 mm semiautomatic handgun "under the seat." The officer "backed away from" the car and several times said "1030," a code indicating that he intended to arrest Mills. Neither Officer Bowman nor Detective Jones heard that warning, however. Then, looking at Detective Jones, Officer Reed said, "Gun." Upon hearing the latter exclamation, Mills "took off running northbound on Highland Avenue."

Detective Jones and Officer Bowman gave chase, while Officer Reed remained with Fitzgerald's car. The pursuing police officers were joined in the chase by Sergeant Frederick Steigerwald, who was stationed nearby and who had heard about the foot chase over the police radio. Sergeant Steigerwald ultimately found Mills hiding underneath a parked truck, four blocks from the scene of the traffic stop.

A search incident to Mills's arrest yielded a "bundle" of cash in his right front pocket, totaling $1,676, as well as two cell phones. When Fitzgerald's car was searched, Officer Reed recovered, in an open storage compartment in the passenger side door, "a clear plastic bag" containing what was later confirmed to be crack cocaine, lying next to a pair of socks, as well as the aforementioned handgun.

A thirteen-count indictment was returned, charging Mills with possession of, and conspiracy to possess, a firearm under sufficient circumstances to constitute a nexus to drug trafficking; three counts of possession of a regulated firearm after conviction of a disqualifying crime; wearing, carrying, and transporting a handgun in a vehicle, and conspiracy to do the same; wearing, carrying, and transporting a handgun on and about the person; possession of ammunition after conviction of a disqualifying crime; possession of, and conspiracy to possess, cocaine with intent to distribute; and possession of, and conspiracy to possess, cocaine.

The case proceeded to a jury trial, which began with a Batson challenge that will be discussed more fully. Following various dismissals and grants of motions for judgment of acquittal, five charges were presented to the jury: possession of cocaine with intent to distribute; possession of cocaine; possession of a firearm under sufficient circumstances to constitute a nexus to drug trafficking; possession of a regulated firearm after conviction of a disqualifying crime; and possession of ammunition after conviction of a disqualifying crime. The jury convicted Mills of both drug offenses and acquitted him of all firearms-related offenses. The court sentenced Mills to a term of twelve years' imprisonment, with all but four years suspended, to be followed by three years' probation, for possession of cocaine with intent to distribute and merged the simple possession count. Mills thereafter noted this timely appeal.

ANALYSIS

Mills's Batson Challenge

Mills contends that the trial court erred in concluding that he did not establish a prima facie case, under Batson ,¹ that the State had exercised its peremptory challenges in a racially discriminatory manner. He further contends that the remedy for that error is a new trial.

The State counters that the trial court "properly, if perhaps inartfully, determined that Mills did not establish a prima facie case of ‘purposeful’ discrimination." In the alternative, the State asks that, if we were to agree with Mills that the trial court erred in determining that Mills did not establish a prima facie case, we order a limited remand so that the court may consider Mills's Batson challenge.

In Batson , the Supreme Court held that the prosecution's exercise of peremptory challenges in a racially discriminatory manner violates the Equal Protection Clause of the Fourteenth Amendment. Batson , 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Batson and its progeny² established a three-step process for resolving a claim of purposeful discrimination in the exercise of peremptory strikes. Initially, the defendant must "make out a prima facie case ‘by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.’ " Johnson v. California , 545 U.S. 162, 168, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005) (quoting Batson , 476 U.S. at 93-94, 106 S.Ct. 1712 ). Then, "[o]nce the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors." Batson , 476 U.S. at 97, 106 S.Ct. 1712. Finally, "in light of the parties' submissions, the trial court must determine whether the defendant has shown purposeful discrimination." Snyder v. Louisiana , 552 U.S. 472, 477, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008) (citations and quotations omitted).

At step one, Mills's burden was to "produce some evidence" that the State's peremptory challenges were exercised "on one or more of the constitutionally prohibited bases," in this instance, race. Ray-Simmons v. State , 446 Md. 429, 436, 132 A.3d 275 (2016) (citing Purkett v. Elem , 514 U.S. 765, 767, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam) ). A "defendant satisfies the requirements of Batson 's first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred." Johnson , 545 U.S. at 170, 125 S.Ct. 2410.

In the instant case, as jury selection proceeded, the State, in a harbinger of what would later become an issue in this appeal, raised a Batson challenge against the defense, apparently alleging that all of Mills's peremptory strikes had, thus far, been exercised against Caucasians (or, in any event, against all but African-Americans).³ The following colloquy took place:

[THE STATE]: Your Honor, at this time --

(The defendant approached the bench.)

[THE STATE]: -- the State is respectfully challenging based on Batson?

THE

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