State of Maine v. Malik B. Hollis — 2018 ME 94

MAINE SUPREME JUDICIAL COURT 	Reporter of Decisions
Decision: 	2018 ME 94
Docket: 	And-17-464
Argued: 	June 12, 2018
Decided: 	July 10, 2018
Panel: 	SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
STATE OF MAINE
v.
MALIK B. HOLLIS
HUMPHREY, J.
[¶1] 	Malik B. Hollis appeals from a judgment of conviction of reckless
conduct with a dangerous weapon (Class C), 17-A M.R.S. §§ 211(1), 1252(4)
(2017), 	and 	criminal 	threatening 	with 	a 	dangerous 	weapon 	(Class 	C),
17-A M.R.S. §§ 209(1), 1252(4) (2017), entered in the Unified Criminal Docket
(Androscoggin County, Stokes, J.) after a jury trial. 	According to Hollis, who
describes himself as an African American male, the trial court erred when it
overruled his objection to the State’s use of a peremptory challenge that
excluded from the jury the sole person of color1 in the jury pool. 	Because the
record supports the trial court’s determination that the State did not engage
1 The court and Hollis referred to the juror in question as a “person of color.” 	Because the
record does not reveal the ethnicity of the juror, we will do the same.

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in purposeful discrimination when it peremptorily challenged the juror, we
affirm the judgment.
I. BACKGROUND
[¶2] 	On May 21, 2016, an altercation occurred between Hollis and
several white men outside an apartment building in Lewiston. Although what
precipitated the altercation and how it escalated were disputed at trial,2 there
was no dispute that at some point during the incident, Hollis ran around the
corner to his apartment and returned 	with a handgun. 	Upon returning
outside and seeing the men, Hollis proceeded to fire the gun at a dirt pile
located near him.
[¶3] 	On May 23, 2016, Hollis was charged by complaint with reckless
conduct with a dangerous weapon and criminal threatening with a dangerous
weapon. A jury trial was scheduled for July 2017.
[¶4] 	Jury selection took place on July 6, 2017. 	Of the thirty-two
randomly selected prospective jurors, only one—Juror 71—was a person of
color. 	Neither the prosecutor nor defense counsel challenged Juror 71 for
2 According to Hollis, each of the other men had a weapon of some sort. Hollis testified that he
decided to retrieve his handgun after the men swore at him, chased him, and threatened to kill him.
One of the men involved in the incident also testified at trial. The man acknowledged that he hit
Hollis with a metal handlebar. The man testified that he “called [Hollis] the N word and told him
[he] was going to fucking kill him.” The man also testified that one of the other men on his side had
an aluminum baseball bat and another had a baton.

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cause, 	but 	the 	prosecutor 	used 	a 	peremptory 	challenge, 	see 	M.R.U.
Crim. P. 24(c), to strike Juror 71. 	Defense counsel objected to the State’s
exercise of a peremptory challenge to strike from the jury the sole person of
color in the jury pool. 	The prosecutor offered an explanation that the juror’s
“ethnicity had no bearing in regards to why I struck him. I was looking for his
level of education and other various factors that were provided in the list from
the court.” 	According 	to 	the information 	about 	the 	prospective 	jurors
provided by the court to both parties, Juror 	71 had an eleventh-grade
education, 	which 	was 	the 	lowest 	education 	level 	among 	the 	thirty-two
prospective jurors randomly selected from the jury pool. The court noted the
objection but stated that it could not make any findings of systemic exclusion
based on one juror. Hollis did not request that the court engage in any further
inquiry, and he did not object to the way the court addressed the issue. 	Juror
71 was struck from the jury.
[¶5] 	Hollis’s trial took place on July 13 and 14, 2017. 	The defense
strategy was one of self-defense and the court instructed the jury accordingly.
The jury found Hollis guilty on both charges. The court then sentenced Hollis
to serve a term of three years for each charge, to be served concurrently, and
ordered Hollis to forfeit his firearm.

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[¶6] 	Following the trial, Hollis filed a motion for judgment of acquittal,
or in the alternative for a new trial, on the basis that the State’s striking from
the jury the sole person of color violated the principles of equal protection and
due 	process 	as 	outlined 	by 	the 	United 	States 	Supreme 	Court 	in
Batson v. Kentucky, 476 U.S. 79 (1986). 	The State filed a response and the
court held a hearing on Hollis’s motion.
[¶7] 	The court denied Hollis’s motion in a written order on October 6,
2017. 	The court acknowledged that it had erred in the handling of Hollis’s
Batson challenge at the time of Hollis’s objection during jury selection by
mistakenly focusing on the absence of any systemic exclusion of minorities
when, as it now understood, the “Constitution forbids striking even a single
prospective juror for a discriminatory purpose.” The court then described the
three-step process outlined in Batson that it acknowledged it should have
applied when Hollis objected to the State’s peremptory challenge. 	After
applying the Batson test to the circumstances of the case at hand, the court
found that the State’s use of a peremptory challenge on Juror 71 was not
exercised with a discriminatory intent or purpose. 	Hollis timely appealed.
M.R. App. P. 2B(b)(2).

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II. DISCUSSION
[¶8] 	In a case involving a Batson challenge, an appellate court reviews
“a [trial] court’s factual determination that the government was not motivated
by race for clear error, and may reverse only where [it] arrive[s] at a definite
and firm conviction that a mistake has been committed.” 	United States v.
Morel, 885 F.3d 17, 21 (1st Cir. 2018) (quotation marks omitted).
[¶9] 	“The Constitution forbids striking even a single prospective juror
for a discriminatory purpose.” 	Snyder v. Louisiana, 552 U.S. 472, 478 (2008)
(alteration omitted) (quotation marks omitted). 	The Supreme Court has
explained that “[t]he very idea of a jury is a body . . . composed of the peers or
equals of the person whose rights it is selected or summoned to determine.”
Batson, 	476 	U.S. 	at 	86 	(quotation 	marks 	omitted). 	“The 	harm 	from
discriminatory jury selection extends beyond that inflicted on the defendant
and the excluded juror to touch the entire community. 	Selection procedures
that 	purposefully 	exclude 	black 	persons 	from 	juries 	undermine 	public
confidence in the fairness our system of justice.” Id. at 87.
[¶10] 	In Batson, the Supreme Court outlined a three-step process for
determining whether a peremptory challenge is discriminatory, summarized
as follows:

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First, 	a defendant 	must 	make a prima facie showing 	that 	a
peremptory challenge has been exercised on the basis of race;
second, if that showing has been made, the prosecution must offer
a race-neutral basis for striking the juror in question; and third, in
light of the parties’ submissions, the trial court must determine
whether the defendant has shown purposeful discrimination.
Snyder, 552 U.S. at 476-77 (alterations omitted) (quotation marks omitted);
see also Batson, 476 U.S. at 96-98.
[¶11] 	In 	this 	case, 	the 	trial 	court, 	in 	its 	order 	denying 	Hollis’s
post-judgment motion, found that Hollis satisfied the first step of the Batson
analysis. See Snyder, 552 U.S. at 476. The court determined that Hollis made a
prima facie showing by virtue of the fact that Hollis himself is 	African
American and Juror 71 was the only person of color in the jury pool.
[¶12] 	Next, the court determined that the prosecutor had offered a
race-neutral basis for striking Juror 71 at the time of defense counsel’s Batson
objection during jury selection. 	See id. at 476-77. 	The prosecutor explained
that she struck Juror 71 because of his low level of education relative to those
of the other potential jurors.3
3 	After trial, in its response to Hollis’s post-judgment motion, the State expanded on that
explanation, reiterating its concerns about Juror 71’s level of education and explaining that it also
chose to strike Juror 71 based on his responses to individual voir dire during the previous jury
selection on the same date before the same judge. 	As interpreted by several circuit courts, the
Supreme Court instructs “that when ruling on a Batson challenge, the trial court should consider
only the reasons initially given to support the challenged strike, not additional reasons offered after
the fact.” United States v. Taylor, 636 F.3d 901, 905 (7th Cir. 2011) (citing Miller-El v. Dretke, 545
U.S. 231, 246-52 (2005)); see also Holloway v. Horn, 355 F.3d 707, 725 (3rd Cir. 2004) (“Batson is

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[¶13] The final step in the Batson analysis is for the trial court to review
the 	parties’ 	submissions 	and 	make 	a 	determination 	as 	to 	whether 	the
defendant has shown purposeful discrimination. 	See id. at 477. 	In this case,
the court determined that Hollis had not shown purposeful discrimination.
[¶14] 	Our task is to review that determination for clear error. 	See
Morel, 	885 	F.3d 	at 	21. 	Although 	we 	may 	be 	skeptical 	of 	a 	proffered
explanation 	for 	striking 	a 	juror 	based 	on 	low 	education 	level 	without
individual voir dire on intelligence or education, see Miller-El v. Dretke, 545
U.S. 231, 246 (2005), “the trial court’s decision on the ultimate question of
discriminatory intent represents a finding of fact of the sort accorded great
deference on appeal.” 	See Hernandez v. New York, 500 U.S. 352, 364 (1991)
(plurality opinion).
[¶15] 	“Discriminatory purpose . . . implies that the decisionmaker . . .
selected . . . a particular course of action at least in part because of, and not
merely in spite of, its adverse effects upon an identifiable group.” 	Id. at 360
(quotation marks omitted). 	Pursuant to the Batson framework, the ultimate
burden is on the defendant to demonstrate that the State acted on the basis of
concerned with uncovering purposeful discrimination, and where a prosecutor makes his
explanation for a strike a matter of record, our review is focused solely upon the reasons given.”).
Because the prosecutor provided an explanation for the use of the peremptory challenge at the time
of the Batson objection, the trial court considered only that explanation, as will we.

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purposeful discrimination. 	See 476 U.S. at 93. 	Based on the record in this
case, it appears that the State’s jury selection strategy favored jurors with
more education.4 	Because the prosecutor offered a race-neutral explanation
that reflected the State’s jury selection strategy, see Hernandez, 500 U.S. at
360, and because on this record Hollis—who had the burden of proof—has
not 	established 	that 	the 	record 	compelled 	the 	court 	to 	find 	that 	the
prosecutor’s explanation was a pretext for discrimination, we conclude that
the court did not err when it determined that the prosecutor did not engage in
purposeful discrimination. See St. Louis v. Wilkinson Law Offices, P.C., 2012 ME
116, ¶ 16, 55 A.3d 443 (“[O]n issues on which [a party] has the burden of
proof, the clear error standard of review requires that, to overturn a finding
that [a party] has failed to prove one or more elements . . . [that party] must
demonstrate that a contrary finding is compelled by the evidence.”); Morel,
885 F.3d at 21.
The entry is:
Judgment affirmed.
4 Due to the complexity of the law of self-defense, see 17-A M.R.S. § 108 (2017); Alexander,
Maine Jury Instruction Manual § 6-58, Lexis (2017-2018 ed., last visited July 9, 2018), this proffered
strategy was not unreasonable.

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James P. Howaniec, Esq. (orally), Lewiston, for appellant Malik B. Hollis
Katherine E. Bozeman, Asst. Dist. Atty. (orally), Androscoggin County DA’s
Office, Lewiston, for appellee State of Maine
Androscoggin County Unified Criminal Docket docket number CR-2016-1677
FOR CLERK REFERENCE ONLY