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Wayne Coombs v. David Diguglielmo

December 14, 2012


The opinion of the court was delivered by: Rufe,j.


Before the Court are Petitioner Wayne Coombs's Objections to the Report and Recommendation filed by United States Magistrate Judge Thomas J. Reuter ("R&R"). Petitioner asserts that Judge Reuter erred in his conclusion regarding the ultimate issue in this case- whether the prosecutor's use of preemptory strikes during jury selection in Petitioner's underlying criminal trial violated the Equal Protection Clause. According to Petitioner, he has met his burden to show that it is more likely than not the prosecutor struck at least one juror because of race as proscribed by the Supreme Court in Batson v. Kentucky.*fn1 For the reasons that follow, the Court agrees. Accordingly, the Court will sustain Petitioner's Objections and grant the Petition.



On February 22, 2000, Petitioner, a Black man, was arrested for a series of robberies which took place in Philadelphia from the fall of 1999 through the winter of 2000. Petitioner's first trial for charges relating to these robberies commenced in September 2001 in the Philadelphia County Court of Common Pleas; the trial ended in a hung jury.

Petitioner was re-tried in November 2001. On November 26, 2001, during the first day of jury selection, the prosecutor assigned to the case, Max Kramer, raised a "reverse Batson"*fn2 challenge based on defense counsel's use of preemptory strikes to exclude three White jurors.*fn3

Defense counsel, Jerome Mallon, responded to the prosecutor's challenge by explaining that: (1) he struck Juror No. 35 because she stated she would be more likely to believe the testimony of a police officer in light of his or her job, and had two friends who had been abducted from the street; (2) he struck Juror No. 8 because she was friends with and related to several active and retired police officers and was married to a firefighter; and (3) he struck Juror No. 21 given her relation to and inclination to believe police officers and her statement that she would have difficulty following the instruction that a defendant's choice not to take the stand or present evidence could not be held against him, and in light of her experience working at a bank that had been robbed.*fn4

Defense counsel then raised a Batson challenge based on the prosecutor's use of two preemptory strikes against two Black women, stating "the last jury hung because of a [B]lack female. Today we had two [B]lack females. Both of them have been stricken for no good reasons [sic]."*fn5 The prosecutor stated that he believed defense counsel was just retaliating for the prosecutor's reverse Batson challenge, and explained that he struck Juror No. 14 because her brother was charged with robbery fifteen years ago and she initially stated she was less likely to believe a police officer, and that he struck Juror No. 19 because she was an eye witnesses to a shooting and her mother was robbed a long time ago.*fn6

The Honorable Gary S. Glazer, who presided over the trial, denied both challenges stating:

These are what lawyers do with peremptory challenges. They're not race-based. . . . As long as we have peremptory challenges, lawyers are going to make judgments maybe based on hunches, maybe based on prior experiences, maybe based on feelings, but they're not based on race. Both of you are much too good lawyers to do something like that.*fn7

At the conclusion of jury selection on November 27, 2001, defense counsel raised a second Batson challenge, this time challenging the prosecutor's use of five of his six preemptory strikes to exclude Black individuals from the jury.*fn8 Before affording the prosecutor an opportunity to offer a racially-neutral explanation, the trial judge stated: "I'm not finding there's another pattern. I'm trying to save time so we can get to the merits of the case."*fn9 He then asked that the prosecutor put his reasons for striking the three jurors not previously discussed on the record. With respect to Juror No. 22, a Black woman, the prosecutor stated:

[S]he said that her cousin had been an eyewitness to an armed robbery. Since there weren't many questions about that, I kind of had doubts about any time there's family members who are witnesses to armed robbery. I don't know if they were involved in it, and she wasn't saying that, if there was and she was an actual independent witness who saw an armed robbery happen. For that reason, I used my peremptory challenge.*fn10

The prosecutor then explained that he struck Juror No. 4 because "she had a nephew who was shot this summer. She had a nephew in jail awaiting charges on gun charges. Her sister was an eyewitness to crime. And she was friends with a defense attorney who everyone knew at one point."*fn11 Defense counsel then referred the prosecutor to Juror No. 1, a Black man; the prosecutor stated in response:

"I just don't like him, Your Honor, I don't really have a sound reason. . . . I don't know, just the way he was looking at me. . . . I mean I just didn't like him and he didn't check off many boxes, but I went with my hunch . . . ."*fn12

The trial judge responded: "Okay. All right. Let's go. Are we ready to start?"*fn13 Defense counsel asked: "Your Honor is going to accept the Commonwealth's assertions and deny my motion?"*fn14 The trial judge answered simply, "Yes."*fn15

On November 30, 2001, a jury, consisting of nine White and three Black jurors,*fn16 convicted Petitioner of nine counts of robbery and three counts of possessing an instrument of a crime. Sentencing was set for February 13, 2002. At sentencing, defense counsel again raised the Batson issue.*fn17 He attempted to introduce evidence of two conversations he had with the prosecutor, one between the end of the first trial and the beginning of the second and the other just before sentencing, which he claimed was relevant to the use of preemptory strikes.*fn18 Before defense counsel could explain his argument or the nature of the evidence, the prosecutor interjected:

MR. KRAMER: Your Honor, I object to this because I don't think this information should be before the Court. It's complete hearsay. And there is no way for Mr. Mallon to even confirm this information, other than to call that juror that he's going to speak about. And it's completely irrelevant, Your Honor, to the trial that took place the second time around. I don't think that it should be made part of the record. It was a conversation I had with Mr. Mallon.

THE COURT: Does it involve external influence on the juror?


THE COURT: Well, then it's not relevant.*fn19

Defense counsel then sought to interject:

MR. MALLON: Well --

THE COURT: I don't want to get into it.

MR. MALLON: It involved his state of mind with respect to race.

THE COURT: It's irrelevant.

MR. MALLON: Well --

THE COURT: It's ...

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