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Card v. United States6/28/2001
and that he heard the shots that killed him; Lewis Yancey, who testified that he supplied Card with guns used in the murder; and James Craille, who testified that Card had organized meetings with the appellants and other followers at which Tolbert's murder was planned, had supplied guns for the conspiracy, had lured Tolbert to the ambush, and had participated in the shooting. The defense strategy at trial was essentially to attack the credibility of these and the other witnesses. None of the appellants testified on his own behalf.
Card was convicted on seven counts, including conspiracy to commit murder (D.C. Code § 22-2401), felony murder (kidnaping) while armed (D.C. Code §§ 22-2401, -3202), and premeditated murder while armed (D.C. Code §§ 22-2401, -3202). Both Rice and Edwards were convicted on several counts, including kidnaping while armed (D.C. Code §§ 2101,-3202) and felony murder (kidnaping) while armed. All three were sentenced to lengthy prison terms, and now appeal.
II. Batson Challenge
A. Religious Discrimination
Appellants contend that the prosecutor violated the federal constitution by using a peremptory strike to exclude a juror solely on the grounds of his suspected religious affiliation, and that the trial court committed per se reversible error by allowing the strike. Appellants rely on Batson, supra, in which the U.S. Supreme Court held that a prosecutor's exclusion of even a single juror based on race, a classification subject to strict scrutiny, violates equal protection. This holding was extended to a juror's gender, a classification subject to intermediate scrutiny, in J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994). Like race, religion is a classification subject to strict scrutiny. See Employment Div. v. Smith, 494 U.S. 872, 886 n.3 (1990). However, neither this court nor the Supreme Court has ever considered whether a peremptory strike based on religious affiliation violates the Constitution. See Davis v. Minnesota, 511 U.S. 1115 (1994) (denying certiorari on this precise issue). The government contends that since this argument was not fairly presented to the trial court, our review should be limited to plain error. We address this scope of review issue first.
"In our jurisprudential system, trial and appellate processes are synchronized in contemplation that review will normally be confined to matters appropriately submitted for determination in the court of first resort." Miller v. Avirom, 127 U.S. App. D.C. 367, 369-70, 384 F.2d 319, 321-22 (1967). "Objections must be made with reasonable specificity; the judge must be fairly apprised as to the question on which he [or she] is being asked to rule." Hunter v. United States, 606 A.2d 139, 144 (D.C.), cert. denied, 506 U.S. 991 (1992). Accordingly, we have long applied the rule that " uestions not properly raised and preserved during the proceedings under examination, and points not asserted with sufficient precision to indicate distinctly the party's thesis, will normally be spurned on appeal." Womack v. United States, 673 A.2d 603, 612 (D.C. 1996) (quoting Miller, supra, 127 U.S. App. D.C. at 369-70, 384 F.2d at 321-22) (emphasis in original), cert. denied, 519 U.S. 1156 (1997).
Taking into account all the facts and circumstances, we conclude that appellants failed to raise a constitutional challenge to the prosecutor's religious-affiliation-based strike with sufficient precision to fairly apprise the trial court of the constitutional question before it. The somewhat complicated facts bearing on that question are as follows.
Jury selection in the instant case took place in 1993, at a time when neither this court nor the Supreme Court had app
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