IN THE SUPREME COURT OF THE STATE OF DELAWARE

ISAIAH W. MCCOY, § No. 558, 2012 and 595, 2012
§ (CONSOLIDATED)
Defendant Below- §
Appe1lant, § Court Below: Superior Court
§ of the State of Delaware in and
v. § for Kent County
§
STATE OF DELAWARE, § ID No. 1005008059A
§
Plaintiff Below- §
Appellee. §

Submitted: September 24, 2014
Decided: October 1, 2014

Before STRINE, Chief Justice, HOLLAND, RIDGELY, VALIHURA,
Justices, and BOUCHARD," Chancellor, constituting the Court en Banc.

0 R D E R
On this lst day of October 2014, it appears to the Court that:

(1) In this capital murder case, Defendant-Below/Appellant Isaiah McCoy
("McCoy") appeals from a Superior Court jury conviction of two counts of First
Degree Murder, First Degree Robbery, Second Degree Conspiracy, and two counts
of Possession of a Firearm During the Commission of a Felony ("PFDCF").
McCoy raises a total of five claims on appeal that he argues require reversal of his
conviction and death sentence. His lead argument is that the trial court erred by

sua sponte refusing to accept one of his peremptory challenges. McCoy argues

' Sitting by designation pursuant to art. IV, § 12 of the Delaware Constitution and Supreme
Court Rules 2 and 4(a) to fill up the quorum as required.

1

that the court violated his right to a fair trial by seating a juror with significant
potential bias over his objection. In response, the State argues that McCoy’s
peremptory challenge was made in a racially discriminatory marmer, contrary to
Batson v. Kentucky,z and that the trial court’s refusal to accept McCoy’s
peremptory challenge was appropriately premised on a reverse Batson violation.3
Because we find an incomplete record to review the trial court’s application of
Batson, we remand this case for completion of the record and retain jurisdiction.

(2) In July 2010, McCoy was charged with two counts of First Degree
Murder, First Degree Robbery, Second Degree Conspiracy, two counts of PFDCF,
and one count of Motor Vehicle Theft in connection with the shooting death of
J ames Munford. In May 2012, the trial court granted McCoy’s request to proceed
pro se with standby counsel.

(3) During jury selection, McCoy, who is African-American, used
peremptory strikes to remove fourteen Caucasians from the jury. When McCoy
exercised a peremptory challenge to remove his eighth Caucasian juror from the
panel, the prosecution made a reverse Batson challenge, asking that McCoy
provide some justification for his peremptory strike. McCoy responded by stating

that the juror’s "son is Caucasian, he’s a police officer."‘l The trial court then

2 476 U.s. 79 (1986).
3 see lemon v. s¢a¢e, 925 A.zd 503, 2007 wL 1417286 (r)el. 2007).
" Appellanc’s op. Br. App. ar A1934.

performed a Batson analysis and ultimately concluded that there was no reverse
Batson violation. But the trial court issued a waming to McCoy, telling him that
he "must show that [his] challenges are non-purposeful in terms of simply seeking
the removal of a prospective juror on the basis of racial classification . . . ."5

(4) On the seventh day of jury selection, McCoy used a peremptory
challenge to remove David Hickey {"Hickey"), a Caucasian male. Hickey’s wife
had retired five years earlier as a counselor at the Smyma Department of
Corrections, where McCoy was an inmate. lt was at this point that the trial court,
referencing McCoy’s challenge, stated: "Mr. McCoy, I’m going to need some
justification because I can’t think of a reason."° McCoy responded with two
justifications for his challenge. First, he explained to the court that Hickey had
paused when answering whether he could fmd McCoy not guilty. Second, he

stated:

[Hickey’s] wife is a counselor at DCC. I’m familiar with how
inmates treat these counselors at times, some of the issues that
went down. As he said, about five years ago, that’s around the
time when the lady was raped, the counselor lady, was raped in
Smyma. So I’m pretty sure he probably heard about that. His
wife probably heard about that. So the counselors get an
outlook that they have and their spouses, it may trickle onto
their spouses things that they may have heard and for that it
doesn’t sit right . . . . I know on a day-to-day basis being back at
the prison how people treat these counselors and very
disrespectful way, throwing things on them like feces and

5 Appellanr’s op. Br. App. ar A1943.
6 Appellant’s Op. Br. App. at A2l5 l.

things of that nature. So I don’t know if he’s ever told her -- if
she’s ever told him anything about that but that just gives me a
lot of pause in allowing the juror to sit on a trial while I have
peremptory strikes to use, Your Honor.7
The trial court rejected McCoy’s explanations, and found that that there was "no

"8 The trial court

legitimate reason why [McCoy] would exclude the juror.
reasoned that Hickey’s wife had been retired for five years and that, although she
had spoken to him generally about her work as a counselor at the prison, she did
not speak to him about "specific case[s]."°

(5) At the conclusion of trial, the jury found McCoy guilty on all counts
except Motor Vehicle "[hef`t. In accordance with 11 Del. C. § 4209(b),10 the trial
court held a penalty hearing. At the conclusion of the hearing, the jury found that
there were statutory aggravating factors present, making McCoy eligible for the
death penalty under ll Del. C. § 4209(c).ll The jury also found that the
aggravating circumstances outweighed the mitigating circumstances and

recommended the death penalty. In October 2012, the trial judge sentenced

McCoy to death. This appeal followed.

7 Appellant’s Op. Br. App. at A215l.

8 Appellant’s Op. Br. App. at A215l.

9 Appellant’s op. Br. App. acA2151.

w ll Del. C. § 4209(b) ("Upon a conviction of guilt of a defendant of first-degree murder, the
Superior Court shall conduct a separate hearing to determine whether the defendant should be
sentenced to death or to life imprisonment . . . .").

" 11 Del. C. § 4209(¢).

(6) This Court has stated that "‘[o]ne of the primary safeguards for
impaneling a fair and impartial jury is a defendant’s right to challenge prospective
jurors, either peremptorily or for cause."’n In Batson v. Kentucky, the Supreme
Court of the United States held that peremptory challenges can be used "‘for any
reason at all, as long as that reason is related to [a] view conceming the outcome’
of the case to be tried . . . [and not based] solely on account of [the jurors’] race . . .
."‘3 The Court went on to announce a tripartite analysis to be used when
addressing a claim of racially-discriminatory peremptory challenges. As this Court
reiterated in Jones v. State,“ the three analytical steps are as follows:

"First, the defendant must make a prima facie showing that the
prosecutor has exercised peremptory challenges on the basis of
race . . . . Second, if the requisite showing has been made, the
burden shifts to the prosecutor to articulate a race-neutral
explanation for striking the jurors in question . . . . Finally, the
trial court must determine whether the defendant has carried his
burden of proving purposefill discrimination . . . ."‘5
As to the second step of the analysis, "[a] ‘legitimate reason is not a reason that

makes sense, but a reason that does not deny equal protection.""‘ The reason is

race-neutral "[u]nless a discriminatory intent is inherent in the [defendant’s]

‘2 schwan v. sza¢e, 65 A.sd 582, 587 (Del. 2013) (quocing Banzher v. sza¢e, 823 A.3d 467, 482
(2003)).

13 Batson, 476 U.S. at 89 (quoting United States v. Robinson, 421 F.Supp. 467, 473 (Conn.
1976)).

14 J@nes v. s¢a¢e, 938 A.2d 626, 631 (1)61. 2007).

‘5 ld. (quocing Roberrs@n v_ s¢a¢e, 630 A.zd 1084, 1089 (1)61.1993)).

‘° nixon v. s¢a¢e, 673 A.zd 1220, 1224 (Del. 1996) (quoring Purken v. Ezem, 514 U.s. 765, 769
(1995)).

explanation . . . ."" The Supreme Court of the United States has found that even
"silly or superstitious" justifications are acceptable as legitimate reasons under the
second step of Batson.“‘ "It is not until the third step that the persuasiveness of the
justification becomes relevant-the step in which the trial court determines whether
the opponent of the strike has carried his burden of proving purposeful
discrimination."‘g

(7) Here, the trial court did not expressly refer to Batson when it refused to
accept McCoy’s peremptory challenge nor did it articulate a rationale for its ruling
other than there was "no legitimate reason why [McCoy] would exclude the juror."
If the ruling was based upon Batson, a full Batson analysis must be conducted by
the trial court, We therefore conclude, consistent with our holding in Jones v. State,
that this case must be remanded with the instruction that the trial court identify the
basis for its ruling.

NOW, THEREFORE, IT IS ORDERED pursuant to Rule l9(c) that this
matter is REMANDED to the Superior Court for further proceedings consistent
with this Order. The Superior Court shall file its Report with the Clerk within
thirty days. A request for additional time shall be granted upon a showing of good

cause. Jurisdiction is retained.

17 Hernandez v. New Y0rk, 500 U.S. 352, 360 (l99l).
‘* Purke¢¢, 514 U.S. ar 768.
19 Id. (emphasis in original).

BY THE COURT:

/s/ Heng duPont Ridgely
Justice

