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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                 No. 11-CF-134

                           BOBBY JOHNSON, APPELLANT,

                                         v.

                            UNITED STATES, APPELLEE.

                         Appeal from the Superior Court
                           of the District of Columbia
                                 (CF3-15607-09)

                     (Hon. Michael L. Rankin, Trial Judge)

(Argued October 24, 2014                               Decided January 29, 2015)

      Erek L. Barron for appellant.

      David P. Saybolt, Assistant United States Attorney, with whom Ronald C.
Machen Jr., United States Attorney, and Elizabeth Trosman, John Truong, and
Magdalena Acevedo, Assistant United States Attorneys, were on the brief, for
appellee.

      Before FISHER and EASTERLY, Associate Judges, and NEBEKER, Senior
Judge.

      Dissenting opinion by Associate Judge EASTERLY at page 15.

      NEBEKER, Senior Judge:          Appellant Bobby Johnson appeals his jury

convictions of assault with a dangerous weapon (“ADW”), aggravated assault

while armed (“AAWA”), mayhem while armed (“MWA”), unlawful possession of
                                          2


a firearm (“UPF”), carrying a pistol without a license (“CPWL”), possession of an

unregistered firearm (“UF”), unlawful possession of ammunition (“UA”), and three

counts of possession of a firearm during a crime of violence (“PFCV”). Appellant

presents two arguments on appeal. First, appellant contends that either the trial

court failed to make a Batson finding that the government‟s peremptory strikes

were not the result of purposeful discrimination or the trial court‟s Batson finding

of no purposeful discrimination was clearly erroneous. Second, appellant contends

that some of his convictions merge.        We affirm appellant‟s convictions, and

remand for the trial court to merge the appropriate offenses and resentence

appellant consistent with this opinion.



                                          I.



      The underlying charges stem from the following factual scenario. At the

time of the shooting, the victim was scheduled to testify at trial against appellant‟s

brother, Jonathan “Bow Wow” Johnson. On his way to play basketball on July 15,

2009, the victim walked around a corner and saw appellant. “I just looked at him

and then that‟s when he must have saw me, and he was like, what‟s up, homey, and

then immediately he whipped out [a gun] and just started shooting.” “[T]he first

ones I felt was in my butt. And then once I got shot in my right leg, I ain‟t feel no
                                          3


more. I just felt me trying to drag myself behind -- on the side of the building.”



      The victim sustained several injuries. One bullet “lacerated the rectum, and

it had gone in and there are several blood vessels in this area which were

bleeding.” The victim still used a colostomy bag at trial. In addition, a bullet

fractured the victim‟s right knee and tibia, causing mobility problems that persisted

until at least the date of trial. The victim stated that his leg “was never going to be

like God intended it to be” and that he would need to undergo further operations to

save his leg.



      During voir dire, the court asked several questions of each juror and both

appellant and the government were offered an opportunity to ask follow up

questions. Following voir dire, the government used peremptory strikes on jurors

number 018 and 442, two African American males. The trial court had questioned

these jurors during voir dire, but the government did not ask them additional

questions. The trial court sua sponte pressed the government for a race-neutral

explanation for the strikes:



                THE COURT: Would counsel approach the bench.
                (Bench conference.)
                THE COURT: I want the government to explain these
                two strikes, juror 442 and juror 018.
                             4


MS. ACEVEDO: 442 is the older man, I thought he was
very soft spoken and I thought that he would get pushed
around in a jury.
THE COURT: That doesn‟t pass muster.
MS. ACEVEDO: That he‟s soft spoken? To me he
seems like somebody who would not - - who would not
express himself and could get pushed around by other
jurors.
THE COURT: What about the other one?
MR. TRUONG: Your Honor, that gentleman because - -
similar reason, given his youth, we have to believe that
he‟d not be an assertive member of the jury if he has an
opinion or given the fact that he‟s inexperienced in his
youth, and we are concerned that he may not have the
confidence to voice his views during deliberation.
THE COURT: Let me ask you a question: Did it occur
to either one of you to ask either of those jurors questions
going to that? I mean, we had him up here. If that was a
concern, could you have asked some kind of question
about that?
MS. ACEVEDO: It is our experience, Your Honor,
jurors don‟t admit that they would be.
THE COURT: But you could see his reaction, sort of
like cross-examination, people don‟t confess but you ask
them questions that would allow you to draw reasonable
inferences.
MR. TRUONG: We thought the Court‟s questioning of
both jurors gave us enough - - we thought that the
Court‟s questioning of both jurors give enough
information to form an opinion whether we would like
them to be on the jury.
My impression of 018 was that he was kind of shy, and
coupled with the fact that he - - his age and my concern
that he‟s not forceful in expressing his views if there is a
vigorous deliberation of the facts.
THE COURT: I guess that I could see that in the way he
answered the questions. I don‟t think I see any of that in
the way the older man answered those questions. I don‟t
get that at all.
What did he say? Did you make any notes on him?
                                          5


            MS. ACEVEDO: Yes, Your Honor, my notes for him
            was that he was soft spoken. His tone of voice was very
            quiet. He didn‟t seem like - -
            THE COURT: So you like screamers, you like yellers?
            MS. ACEVEDO: Not screamers, Your Honor, but I
            believe jurors have to be very willing to express their
            opinions, and he didn‟t - - based upon his - - in his gentle
            manner, he didn‟t seem like somebody who would.
            MR. TRUONG: The concern is not only expressing their
            opinion, but to defend it also.
            THE COURT: All right. I want you to know that I‟m
            going to have a keen eye going forward. We get panels
            that don‟t necessarily have a lot of black males to start
            with, and if you start striking black males because they‟re
            soft spoken, it raises my eyebrow. All right.
            Do you have anything on this?
            MR. MCCANTS: Just, we want to make a challenge,
            and we felt as if the government has targeted black
            males. Striking the only two black males in the jury.
            Without articulating any unbiased reason.
            THE COURT: Well, I think that they - - I think that‟s
            exactly what I asked them to do, and I believe they did
            articulate non-race based reasons. I guess it‟s not my job
            to agree with them or disagree with them but to listen and
            see whether the reason is based on anything that the
            jurors said or any behavior that the juror demonstrated,
            so I‟d have to say at this point that it does not raise to the
            level of a legitimate challenge, but my antenna is
            definitely up.
            Let‟s go forward.
            (End of bench conference.)



      After trial, the court sentenced appellant to an aggregate sentence of 336

months‟ incarceration. The sentences for PFCV, AAWA, and UPF are consecutive

as to each count, while the sentences for the remaining charges are concurrent as to
                                         6


each count and with AAWA. Appellant timely appealed.



                                         II.



      Appellant argues that the trial court did not properly conduct the Batson

analysis. At oral argument, appellant contended that the trial court did not (as it

should have) make a factual finding determining whether the strikes of the jurors

were a result of purposeful discrimination. In his brief, appellant suggests that, if

there was such a finding, it was clearly erroneous.          We disagree with both

arguments.



                           A. The Batson Framework



      Batson requires a three-part inquiry into whether the prosecutor engaged in

purposeful discrimination while using a peremptory strike.



             [O]nce the opponent of a peremptory challenge has made
             out a prima facie case of racial discrimination (step one),
             the burden of production shifts to the proponent of the
             strike to come forward with a race-neutral explanation
             (step two). If a race-neutral explanation is tendered, the
             trial court must then decide (step three) whether the
             opponent of the strike has proved purposeful racial
             discrimination.
                                          7



Purkett v. Elem, 514 U.S. 765, 767 (1995) (per curiam). Although the burden of

producing evidence shifts during this inquiry, “the ultimate burden of persuasion

regarding racial motivation rests with, and never shifts from, the opponent of the

strike.” Id. at 768.



                            B. The Trial Court’s Ruling



      The trial court‟s comments must be read in the context of this three-step

process. The court‟s initial reaction was to state that the government‟s explanation

for striking juror number 442 “doesn‟t pass muster.” Appellant contends that this

statement constitutes a factual finding of purposeful discrimination, but it is

important to recognize that it was made at the outset of the inquiry, not at step

three of the analysis. After this comment was made, the court and the prosecutors

engaged in a long discussion, and the court ultimately concluded that the reasons

given by the prosecutors did indeed “pass muster,” in the sense that they were

“non-race based reasons.”



      When defense counsel asserted that the prosecutors had not articulated “any

unbiased reason” for striking the two jurors, the trial court responded:
                                           8



                    I believe they did articulate non-race based
             reasons. I guess it‟s not my job to agree with them or
             disagree with them but to listen and see whether the
             reason is based on anything that the jurors said or any
             behavior that the juror demonstrated, so I‟d have to say at
             this point that it does not raise to the level of a legitimate
             challenge. . . .



       The judge‟s analysis properly recognized that, at step two of the Batson

inquiry, it was not his “job to agree . . . or disagree with” the prosecutors‟ strategy

for exercising peremptory strikes.       “Although the prosecutor must present a

comprehensible reason, „[t]he second step of this process does not demand an

explanation that is persuasive, or even plausible‟; so long as the reason is not

inherently discriminatory, it suffices.” Rice v. Collins, 546 U.S. 333, 338 (2006)

(quoting Purkett, supra, 514 U.S. at 767-68). Although the trial judge quickly

moved from step two to step three of the inquiry, he clearly held that the

prosecutors had satisfied step two by “articulat[ing] non-race based reasons.”



       The court then focused on step three of the Batson procedure to determine

whether appellant had carried his burden of proving that the prosecutors were

engaged in purposeful racial discrimination when exercising their peremptory

strikes.   At this stage, “the trial court must evaluate not only whether the

prosecutor‟s demeanor belies a discriminatory intent, but also whether the juror‟s
                                          9


demeanor can credibly be said to have exhibited the basis for the strike attributed

to the juror by the prosecutor.” Snyder v. Louisiana, 552 U.S. 472, 477 (2008).

The court echoed these principles by commenting that its job was “to listen and see

whether the reason is based on anything that the jurors said or any behavior that the

juror demonstrated . . . .” His ultimate assessment was: “I‟d have to say at this

point that it does not raise to the level of a legitimate challenge . . . .” Considered

in context, this conclusion is properly interpreted as a ruling on stage three of the

Batson process.



                                 C. Legal Analysis



      Only the third step of the analysis is challenged on appeal. Because the

prosecutors gave reasons for their strikes, the existence of a prima facie case is

moot, see Epps v. United States, 683 A.2d 749, 752 (D.C. 1996), and appellant

concedes that “the government did articulate a race and gender-neutral reason for

each strike.” This court‟s case law does not specifically address whether being soft

spoken or non-assertive are qualities that survive step two of a Batson challenge,

but many courts have held that they do. E.g., People v. English, 988 N.Y.S.2d 697,

699 (App. Div. 2014) (soft spoken); State v. Carroll, 34 S.W.3d 317, 320 (Tenn.

Crim. App. 2000) (non-assertive); Magee v. State, 994 S.W.2d 878, 889 (Tex. Ct.
                                         10


App. 1999) (soft spoken). We hold today that being soft spoken or non-assertive

are both race-neutral explanations for a peremptory strike.



      For the reasons already stated, we reject appellant‟s argument that the trial

court failed to make a ruling on the issue of purposeful discrimination. We now

turn to appellant‟s attack upon the finding that was made.



      “[A] trial court‟s ruling on the issue of discriminatory intent must be

sustained unless it is clearly erroneous.” Smith v. United States, 966 A.2d 367, 377

(D.C. 2009) (quoting Snyder, supra, 552 U.S. at 477). “[The Supreme Court has]

recognized that these determinations of credibility and demeanor lie „peculiarly

within a trial judge‟s province‟. . . .” Miller-El v. Cockrell, 537 U.S. 322, 339

(2003) [hereinafter “Miller-El I”] (quoting Hernandez v. New York, 500 U.S. 352,

365 (1991) (plurality)). This evaluation of the third part of Batson is made “in

light of all evidence with a bearing on it.” Miller-El v. Dretke, 545 U.S. 231, 252

(2005) [hereinafter “Miller-El II”]. The trial court, however, is not required to

make detailed findings of fact or to give a detailed explanation following a Batson

challenge. Miller-El I, supra, 537 U.S. at 347; Smith, supra, 966 A.2d at 375; see

Hernandez, supra, 500 U.S. at 369-70, 372.
                                            11


      The trial court observed the prosecutor and the jurors, and used these

observations to make the finding quoted above. Given that the trial court is not

required to make detailed factual findings, we hold that the trial court‟s explanation

is sufficient to satisfy the third part of Batson.



      Appellant contends that the trial court clearly erred in finding the race-

neutral explanations credible because the prosecution did not ask the two African

American male jurors questions during voir dire. This court rejected a very similar

objection in Jefferson v. United States, 631 A.2d 13, 16 (D.C. 1993) (rejecting an

objection when the prosecution “excluded a black male who had not answered a

single question during voir dire”). Since the trial court asked questions of these

two jurors, could observe their responses first hand, and sua sponte pressed the

prosecutors for more detailed explanations about why they wanted to strike these

two jurors, the trial court was in the best position to make these critical credibility

determinations.1


      1
         Appellant does not contend that this case was racially charged, so that the
attorneys might have a motive to focus on the race of the jurors. In addition, the
overall pattern of peremptory challenges and the composition of the resulting jury
do not raise any red flags. The government used peremptory strikes on two black
males, one white male, four black females, and three white females. Appellant
used peremptory strikes on no black males, two white males, one Asian male, two
black females, three white females, and one Indian female. The final jury included
twelve females and two males, but data revealing racial composition is not
                                                                     (continued…)
                                         12




      Considering all of the circumstances presented, we are not persuaded that

the trial court‟s finding of no purposeful discrimination was clearly erroneous.



                                        III.



      Appellant argues that his convictions merge since they were companion

offenses stemming from the same transaction. Both appellant and the government

agree that some offenses merge, but they disagree about whether AAWA and

PFCV merge. In addition, the parties do not agree on whether this court should

just vacate the merged offenses on appeal, or remand with instructions to merge

the appropriate offenses and to resentence appellant.



      First, appellant contends that ADW, MWA, and PFCV should merge with

the AAWA, leaving a single offense. The government contends that merger is

appropriate but that appellant would be left with two offenses, AAWA and PFCV.

Both parties and our case law are in agreement that ADW, MWA, and AAWA

merge. Nero v. United States, 73 A.3d 153, 160 (D.C. 2013). As such, this court‟s

 (…continued)
available.
                                         13


analysis will focus on whether the PFCV merges with AAWA. These two offenses

do not merge.



      The Fifth Amendment Double Jeopardy Clause prohibits “multiple

punishments for the same offense.” Whalen v. United States, 445 U.S. 684, 688,

(1980) (internal quotation omitted).     When considering whether two offenses

stemming from the same act merge, we evaluate whether each offense “requires

proof of a fact which the other does not.” Blockburger v. United States, 284 U.S.

299, 304 (1932). It is well established in this court‟s precedent that the “Council of

the District of Columbia did not intend for the offense defined by 3204(b) [PFCV]

to merge with an offense subject to the enhanced penalty provision of 3202 [now

located at D.C. Code § 22-4502 (2012 Repl.)] for committing an underlying

offense while armed.” Hanna v. United States, 666 A.2d 845, 856 (D.C. 1995)

(internal quotation omitted). In this case, the underlying offense while armed is

AAWA—aggravated assault subject to the enhanced penalty provision of D.C.

Code § 22-4502. As such, we find that the PFCV does not merge with the

underlying offense, AAWA.



      The government asks this court to vacate certain merged crimes without

remanding, or in the alternative, to remand to the trial court to resentence
                                        14


appellant.   As cited by the government, this court in Thorne remanded for

resentencing when it vacated one of defendant‟s two concurrent burglary

sentences, thus “permit[ting] the trial court to effectuate its original sentencing

plan.” Thorne v. United States, 471 A.2d 247, 249 (D.C. 1983). We agree that a

remand is appropriate here.2



                                        IV.



      This court affirms appellant‟s convictions, and remands for the trial court to

merge the appropriate offenses and resentence appellant consistent with this

opinion.




                                              So ordered.




      2
          Appellant‟s argument that the MWA conviction was not supported by
sufficient evidence is moot because, on remand, appellant‟s MWA conviction will
merge with appellant‟s AAWA conviction.
                                           15


      EASTERLY, Associate Judge, dissenting: Juror number 442 was a fourteen-

year veteran of the United States Army. He was also African-American. When

the government sought to use its fifth and sixth peremptory strikes against him and

another African American, juror number 18, the trial court asked for an

explanation. The government had already used three of its first four peremptory

strikes to remove African Americans from the petit jury. The government gave a

race-neutral explanation for striking juror number 442, namely: “[H]e was very

soft[-]spoken and I thought he would get pushed around in a jury.” The trial court

did not credit this explanation and immediately informed the prosecutor: “That

doesn‟t pass muster.”       The court subsequently reiterated that, although the

government‟s concern might have been legitimate with respect to juror number 18,

for whom the government had offered a “similar reason” based on his “youth,” 1 the

court did not “see any of that in the way the older man answered th[e voir dire]

questions,” declaring: “I don‟t get that at all.”


      1
         Regarding juror number 18, the government expressed concern that “he‟d
not be an assertive member of the jury if he has an opinion or given the fact that
he‟s inexperienced in his youth . . . he may not have the confidence to voice his
views during deliberation.” However, the government never asked juror number
18 his age, and the record reflects that the government did not seek to strike two
other youthful jurors who were seated on the jury: juror number 446, who was one
year out of high school and whose youthful appearance prompted the trial court to
observe that he “looked a lot younger than that”; and juror number 28, who was a
sophomore in college.
                                         16


      At this point in the proceedings, the court had all the information that a

Batson inquiry2 is supposed to provide: The court had been given a reason by the

government for the exercise of a questionable peremptory strike and the court had

determined that this reason was not credible. The only conclusion for the court to

draw at that point was that the government had improperly struck juror number 442

on the basis of his race. It was thus error for the court not to reseat juror number

442, and we must reverse.3



      My colleagues in the majority assert, however, that all discussion up to this

point in the proceedings was part of a step-two analysis of whether the government

had properly provided a non-race-based reason, and that, as to step three, the
      2
         A challenge under Batson v. Kentucky, 476 U.S. 79 (1985), generally has
three steps: (1) defense counsel must make a prima facie “showing that the totality
of relevant facts gives rise to an inference of discriminatory purpose,” (2) the
government must then “come forward with a neutral explanation that is related to
the particular case to be tried,” and (3) the court must determine if “the explanation
given [by the government] is a pretext for discrimination.” Smith v. United States,
966 A.2d 367, 374 (D.C. 2009), as amended on reh’g (May 14, 2009) (internal
quotation marks omitted); see Robinson v. United States, 878 A.2d 1273, 1282
(D.C. 2005). Here, because the court sua sponte questioned the government‟s use
of peremptory strikes—as it had full authority to do, see Owens-Corning Fiberglas
Corp. v. Henkel, 689 A.2d 1224, 1228 n.8 (D.C. 1997)—the Batson inquiry
reduced to the government‟s proffer of a non-race-based reason for the exercise of
its peremptory strike and the court‟s evaluation of that reason.
      3
        Smith, 966 A.2d at 369 (“[R]ecognizing that [appellant] would be entitled
to reversal . . . if the record establishes that race was a consideration in the
prosecutor‟s decision to strike even one African American juror.” (citing Snyder v.
Louisiana, 552 U.S. 472, 478 (2008))).
                                         17


court‟s “ultimate assessment” was that there was no legitimate Batson challenge. I

cannot agree.



      To begin with, the preceding discussion did not merely address the second

step of the Batson inquiry; the court went beyond discerning whether the

government‟s reason was race-neutral to the third step and assessed whether the

reason was, in fact, credible. Cf. Smith v. United States, 966 A.2d 367, 374 (D.C.

2009) (explaining that “the second step of [Batson] does not demand an

explanation that is persuasive or even plausible” (internal quotation marks

omitted)); United States v. Evans, 192 F.3d 698, 701 (7th Cir. 1999) (noting that

“[a]ny neutral reason, no matter how implausible or fantastic, even if it is silly or

superstitious, is sufficient” to satisfy step two of a Batson analysis (internal

quotation marks omitted)). As noted above, the court said it did not see what the

government had seen in the juror, and then asked the government if it had made

“any notes” on juror number 442. The government could only repeat that its notes

reflected that he was “soft[-]spoken. His tone of voice was very quiet.” The court

did not seem impressed with this answer, rhetorically inquiring, “So you like

screamers, you like yellers?” Then the government explained that the concern was

that the juror would be unwilling to express and defend his opinions.           This
                                         18


dialogue is clearly focused on whether the government‟s non-race-based reason

was pretextual.



      Moreover, this dialogue clearly demonstrates that the court still believed that

the government‟s justification did not “pass muster.” Indeed the court had been

given no good reason by the government to reconsider its earlier negative

assessment of the government‟s proffered reason for its decision to strike juror

number 442. Beyond the assertion that juror 442 was “soft-spoken,” which the

trial court rejected, the court had been given no foundation in anything juror 442

had said or done for the government‟s peremptory strike.



      My colleagues determine that the court must have reconsidered its

assessment of the government‟s proffer by pointing to the court‟s final statement

on the subject: “[A]t this point . . . it does not raise to the level of a legitimate

challenge.” But the court‟s explanation for that conclusion is precisely what is so

troublesome about this case. The court stated that it “believe[d] the[] [government]

did articulate non-race based reasons [for the peremptory strike]”—which is

clearly correct, but not the ultimate issue. See supra note 2. The determinative

question was whether the government had used a supposed demeanor observation

as a pretextual basis for a racially motivated peremptory strike. See Smith, 966
                                         19


A.2d at 383 (explaining that demeanor observations “must be closely scrutinized

because they are subjective and can easily be used by a prosecutor as a pretext for

excluding persons on the basis of race” (internal quotation marks omitted)). As to

this question, the court, in the end, punted, stating: “I guess it‟s not my job to

agree with them or disagree with them but to listen and see whether the reason is

based on anything that the jurors said or any behavior that the juror demonstrated.”



      It was the court‟s job to assess not merely whether there was any evidentiary

support in the record for the government‟s explanation for decision to strike juror

number 442, but also whether the government‟s non-race-based reason for its

peremptory challenge was credible. In the third step of the Batson inquiry, “the

trial court must decide whether the defendant has proved purposeful racial or

gender discrimination. The resolution of this factual question „comes down to

whether the trial court finds the prosecutor‟s race-neutral [and gender-neutral]

explanations to be credible‟ or pretextual in light of all the relevant evidence.”

Robinson v. United States, 878 A.2d 1273, 1282 (D.C. 2005) (emphasis added)

(citation omitted) (quoting Miller-El v. Cockrell, 537 U.S. 322, 339 (2003));

accord, Smith, 966 A.2d at 375.         Here the court had determined that the

government‟s explanation for its use of a peremptory challenge to strike juror

number 442 was not credible, but it nonetheless let this strike stand and told the
                                          20


government only that it was going to “have a keen eye going forward.” This was

error.



         Batson does not allow for one free pass. “The Constitution forbids striking

even a single prospective juror for a discriminatory purpose.” Snyder, 552 U.S. at

478 (cited favorably in Smith, 966 A.2d at 369).              We have previously

acknowledged that “unless the trial court rigorously scrutinizes the prosecutor‟s

race-neutral explanations, Batson‟s promise of eliminating racial discrimination in

jury selection will be an empty one.” Smith, 966 A.2d at 376 (quoting Tursio v.

United States, 634 A.2d 1205, 1211 (D.C. 1993)). The same holds true if a trial

court scrutinizes the government‟s explanation for a peremptory challenge, finds it

wanting, but then takes no action.
