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Card v. United States6/28/2001
s-a-vis the juror's affiliations, if any, and his actual views, religious or otherwise, vis-a-vis those of Louis Farrakhan. The venire panel had already been dismissed, with the consent of all counsel, by the time any real objection was raised even peripherally subject to interpretation as religion-based. Thus, defense counsel had even greater reason and need to alert the trial court that their theory of systematic exclusion of young black males was now being superseded or supplemented by a completely different theory, focused upon a single juror and on a theory of religious discrimination involving First Amendment considerations.
Given all the circumstances here, we simply cannot conclude that anything more than the bare bones of the finely hewn religion-based argument now made to us on appeal was fairly presented to the trial court. As a result, the trial court was not alerted to the necessity of closely considering this entirely distinct basis of claiming constitutional discrimination. Absent such "reasonable specificity," we review for plain error. See Baxter, supra, 714 A.2d at 717; Hunter, supra, 606 A.2d at 144; see also United States v. Chandler, 12 F.3d 1427, 1431-32 (7th Cir. 1994) (stating that " nly by pressing a claim of purposeful, racial discrimination -- that is, by requesting the trial court to rule on whether the defendant has established purposeful, racial discrimination -- does a defendant preserve a Batson claim for appellate review" and holding that defense counsel did not make specific enough Batson challenge when she merely asked prosecutor to explain why he wanted to strike a black venireperson); Hopson v. Fredericksen, 961 F.2d 1374, 1378 (8th Cir. 1992) (holding that defendant did not properly preserve Batson challenge for appeal because he did not "request the trial judge to articulate her reasons on the record for overruling the Batson objection"); State v. Shaw, 14 S.W.3d 77, 83-84 (Mo. Ct. App. 1999) ("To preserve a Batson challenge, a timely and specific objection must be made at trial . . . [especially where] two distinct classifications are involved: race and gender. Batson addresses only impermissible strikes based upon race; J.E.B. v. Alabama ex rel. T.B., on the other hand, addresses the gender counterpart. Therefore, a generic reference to Batson, without more, is insufficient to preserve a claim of error based upon a gender-motivated peremptory strike.") (emphasis added); cf. United States v. Humphrey, 208 F.3d 1190, 1204 (10th Cir. 2000) (applying plain error to argument based on legal theory not raised to trial court and stating, " e think it beyond argument that where, as here, the trial testimony arguably supports suppression of the evidence on a legal basis different from that argued in the motion to suppress, the defendant must object at trial and inform the trial court of the new legal basis for excluding the evidence.") (emphasis in original).
Applying plain error, appellants' argument must fail since it was not "obvious and readily apparent" in 1993 that Batson applied to any category other than race, let alone religious affiliation specifically. Baxter, supra, 640 A.2d at 718 (holding that trial court did not commit plain error since it was not well-settled in this jurisdiction in 1993 whether Batson applied to age or sex); see also Stafford, supra, 136 F.3d at 1114 ("The constitutional status of peremptory challenges based on religion is unsettled, and this is enough to show that the judge's error . . . , if it was error, was not a plain error.")
B. Racial Discrimination
Appellants also rather briefly argue that the denial of their traditional race-based Batson objection was erroneous because the prosecutor failed to giv
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