92 F.

3d 1182

NOTICE: Fourth Circuit Local Rule 36(c) states that citation

of unpublished dispositions is disfavored except for establishing
res judicata, estoppel, or the law of the case and requires
service of copies of cited unpublished dispositions of the Fourth
Circuit.
UNITED STATES of America, Plaintiff-Appellee,
v.
Lerry BLOTCHER, a/k/a Boogie, a/k/a Larry Blutcher, a/k/a
Troy Wilson, Defendant-Appellant.
No. 95-5590.

United States Court of Appeals, Fourth Circuit.

Argued: May 10, 1996.
Decided: August 7, 1996.

Appeal from the United States District Court for the Eastern District of
North Carolina, at Raleigh. James C. Fox, Chief District Judge. (CR-94149-F)
ARGUED: William Webb Plyler, MCMILLAN, SMITH & PLYLER,
Raleigh, NC, for Appellant. John Samuel Bowler, Assistant United States
Attorney, Raleigh, NC, for Appellee. ON BRIEF: Janice McKenzie Cole,
United States Attorney, Raleigh, NC, for Appellee.
E.D.N.C.
AFFIRMED IN PART AND REMANDED IN PART.
Before WIDENER and MURNAGHAN, Circuit Judges, and PHILLIPS,
Senior Circuit Judge.
OPINION
PER CURIAM:

A jury convicted defendant-appellant Lerry Blotcher ("Blotcher") of one count

of conspiracy to distribute crack cocaine. Blotcher appeals his conviction and
sentence on various grounds. For the following reasons, we affirm in part and
remand in part.

I.
A. The Arrest
2

Blotcher and his codefendant Bernard Hedgepeth engaged in the wholesale

distribution of crack cocaine in the Raleigh, North Carolina area. On August
30, 1994, police surveillance of Blotcher and Hedgepeth resulted in their arrest.
After the police had witnessed the two men engage in a number of activities
suggesting drug-dealing, a marked police car stopped a rental car that Blotcher
was driving. Hedgepeth, who was in the passenger seat, jumped from the car
before it stopped and ran across several lanes of traffic, throwing away bags of
crack cocaine and swallowing what he could not throw away. Approximately
98 grams of crack cocaine were recovered from the ground where they had
been thrown and from Hedgepeth. Hedgepeth also swallowed approximately
one ounce of crack cocaine.

Because he had swallowed so much crack cocaine, Hedgepeth had to be taken

to the hospital to have his stomach pumped. The crack cocaine affected his
behavior such that he was very erratic and had to be physically restrained to be
treated. He also made many statements while he was in that erratic state,
including one about how he had done the wrong thing and gotten his friend
Blotcher in trouble. He stated that Blotcher "didn't know anything about the
cocaine." At trial, however, Hedgepeth testified that he did not remember
making those statements. In cooperation with the government, he further
testified that Blotcher knew about the drugs and that he and Blotcher had been
in the drug business together. Additionally, five drug dealers, who had
participated in drug dealings with Blotcher or had direct knowledge of his drug
dealing, testified as to Blotcher's drug-dealing activities.

No drugs were found on Blotcher or in the rental car. No drugs were found in
the two apartments used by Blotcher and Hedgepeth. The only evidence of
drugs found at either apartment consisted of one officer's testimony as to what
he found in a kitchen sink. On a counter beside the sink was baking soda,
which is used to cook crack cocaine. In the sink were a few white flakes in a
milky white residue. The officer testified that the residue tested positive for
cocaine in a field test he conducted. He, however, used the entirety of the
residue in the field test so that there was no remaining portion to send to the

laboratory for further more reliable chemical tests. The officer also threw away
the field-test kit he used, thus, it could not be examined by the defense.
B. Voir Dire
5

At trial, during the first round of voir dire, the government did not exercise any
peremptories. Blotcher, who is black, however, challenged six jurors--all of
whom were white. After the third challenge, the government raised a Batson
objection based on pattern.1 The court allowed Blotcher's attorney to continue,
with the government raising a Batson objection after each strike. After the fifth
strike of a white juror, however, the court entertained the government's Batson
challenge and asked Blotcher's counsel to state his reasons for striking the five
white jurors. Blotcher's counsel responded: "I've discussed it with my client ...
[he] has told me that these are the people that he does not want on his jury."
The district judge responded that he would let Blotcher finish all of his
challenges and then return to the issue.

Blotcher continued with his challenges and dismissed an additional white juror-six total. The district judge reminded Blotcher's counsel that Batson cuts both
ways and, therefore, requested explanations for why Blotcher was exercising a
peremptory strike as to each of the six white jurors.

As to the first stricken juror, Blotcher recalled that she had made a statement
about her dislike of drugs. The court and the prosecution accepted that reason.
As to four of the jurors, Blotcher objected to them because they were older and
he felt, therefore, could not relate with him as well as younger jurors. The court
and prosecution accepted that reason as well. As to the sixth juror, Harold
Hedgepeth (no relation to Blotcher's codefendant Hedgepeth), Blotcher sought
to strike him based on his appearance as a "conservative type" person. The
prosecution responded by arguing that there was nothing more conservative
about juror Hedgepeth's appearance than any other juror on the panel. The
district court agreed and simply refused to strike juror Hedgepeth, finding that
his appearance was not more conservative than any one else on the panel and
that Blotcher's reason was not rational.

Subsequently, after another round of jury selection in which Blotcher exercised

three additional peremptory strikes, the court revisited the Hedgepeth strike.2
The district court specifically found that juror Hedgepeth was not dressed
conservatively. The court explained that juror Hedgepeth was wearing a sport
shirt. The district court further found that juror Hedgepeth was not older, a basis
for four of the other strikes. The court, therefore, found that Blotcher's
explanation was pretextual and lacked validity. Nonetheless, the court stated

that it would be glad "to make further inquiry" if Blotcher desired.

9

Blotcher's counsel attempted one more time to articulate a reason for striking
juror Hedgepeth. He explained: "He's got his hair kind of nice and he's got nice
glasses on." The government responded by pointing out that no black jurors had
been challenged, despite the fact that some wore ties. Without addressing
Blotcher's further elaboration that juror Hedgepeth had his hair fixed nicely and
wore nice glasses, the court brought the matter to a close by simply finding
without further explanation that Blotcher's reason was pretextual.

C. Admission of Field-Test Results for Cocaine

10
11

Prior to evidence being received, Blotcher made a motion in limine as to the

narcotics field test conducted by an officer on the few white flakes the officer
allegedly found in the kitchen sink. The court reserved on the issue. During
trial, a chemist from the State Bureau of Investigation testified that the color
testing used in the field test gives a valid preliminary indication of the presence
of cocaine. On that basis, the court ruled that the field test had sufficient
validity as indicating, although not conclusively, the presence of cocaine. The
district court also noted that the tests were commonly used. The test results
were also somewhat cumulative--a reasonable juror could conclude that the
white flaky residue found in the apartment was cocaine based on the testimony
of five individuals that Blotcher sold cocaine and the fact that Blotcher used the
apartment, even in the absence of the field test.

12

The jury found Blotcher guilty of conspiracy to distribute crack cocaine, but
acquitted him of the distribution counts. The district judge sentenced Blotcher
to 235 months in prison. Blotcher appeals his conviction and sentence.

II.
13

Blotcher seeks reversal of his conviction and sentence on three different

grounds: (1) the refusal to strike juror Hedgepeth on whom he sought to
exercise a peremptory strike; (2) the admission of testimony regarding a
positive field test for cocaine in an apartment allegedly used by Blotcher for his
drug-dealing activities; and (3) the disparity in his sentence for dealing crack
cocaine versus what it would have been if he had been dealing powder cocaine.
We address each in turn.
A. Batson Challenge

14

A party to a lawsuit cannot exercise peremptory strikes on the basis of race.

14

A party to a lawsuit cannot exercise peremptory strikes on the basis of race.

See, e.g., Powers v. Ohio, 499 U.S. 400 (1991); Batson v. Kentucky, 476 U.S.
79 (1986). It is a well-settled principle of constitutional law that a criminal
defendant's exercise of a peremptory jury challenge on account of race, just as
the use of a peremptory chal lenge based on race by the prosecution or a civil
litigant, violates the equal protection rights of the prospective juror and the
opposing party has standing to object in order to raise the excluded person's
rights. See generally, Georgia v. McCollum, 505 U.S. 42 (1992); Powers v.
Ohio, 499 U.S. 400 (1991); Jones v. Plaster, 57 F.3d 417, 420 (4th Cir.1995).
Such an objection is commonly referred to as a Batson challenge. See Batson v.
Kentucky, 476 U.S. 79.

15

When a Batson challenge is made, the court must conduct a threepart inquiry.
First, the court requires the opponent of the challenge to make out a prima facie
case of racial discrimination. Second, if the requisite showing is made, the
burden then shifts to the proponent of the strike to come forward with a raceneutral explanation for striking the juror in question. The second step of the
inquiry does not require that the explanation be persuasive or even plausible.
Purkett v. Elem, 115 S.Ct. 1769, 1770-71 (1995). The proffered reason "need
not be worthy of belief or related to the issues to be tried or to the prospective
juror's ability to provide acceptable jury service." Jones, 57 F.3d at 420. All that
is required is that the reason be race-neutral. Purkett, 115 S.Ct. at 1791. Third,
if steps one and two are met, the trial court must then decide whether the
explanation is pretextual and whether the opponent of the strike has met its
burden of proving purposeful discrimination. Id. at 1770-71; Batson, 476 U.S.
at 96-98. The ultimate burden rests always with the opponent of the strike to
demonstrate purposeful discrimination.

16

The Batson three-step analysis, thus, requires a "finding of fact" as to

"discriminatory intent." Hernandez v. New York, 500 U.S. 352, 364 (1991).
The findings of the district court turn largely on credibility determinations and
are, therefore, given great deference and reviewed for clear error. Id.; Jones, 57
F.3d at 421. However, where the district court fails to articulate adequately its
findings, remand for further proceedings may be necessary. Jones, 57 F.3d at
421; see also United States v. Joe, 928 F.2d 99, 103-04 (4th Cir.), cert. denied,
502 U.S. 816 (1991) (remanding where district court failed to make necessary
Batson factual findings).

17

Blotcher contends that the district court erred in its Batson inquiry because it
conflated steps two and three. He argues that the district judge erroneously
required his explanation at the second step to be not merely race-neutral, but
rational as well. Furthermore, he contends that the prosecution failed to meet its
burden of proving purposeful discrimination.

18

In Purkett, the Supreme Court found that a court erred when it combined the
second and third steps into one. A court could not require the explanation
offered at the second step to be more than race-neutral. The Court explained
that the second step requires that the party seeking to strike a juror do more
than merely state he lacked a discriminatory motive or merely affirm his good
faith. Id. at 1771. It requires the proponent of the strike to state a race-neutral
reason. The second step, however, does not require that the proponent of the
strike state "a reason that makes sense," but merely that the reason be
legitimate, i.e., not based on race. Id. To require more than a raceneutral reason
would be inconsistent with the principle that the ultimate burden of persuasion
rests with, and never shifts from, the opponent of the strike. Id. Only at the
third step should the court evaluate the persuasiveness of the justification. Id.

19

As described previously, the district court's Batson inquiry was convoluted. We

find the record so unclear that we cannot determine whether the district court
applied the proper legal analysis in sustaining the prosecution's Batson
objection to Blotcher's peremptory strike against juror Hedgepeth.

20

While the district court clearly undertook some sort of Batson analysis, the
record as it exists does not indicate that he properly went through the required
three-part analysis or reached the ultimate finding as to whether the prosecution
met its ultimate burden of proving purposeful discrimination. The district court
failed to make the requisite Batson findings. First, the district court failed to
make a factual finding as to whether a prima facie case was made.3 Second, the
district court failed to rule clearly on whether Blotcher's proffered reason for
striking juror Hedgepeth was race-neutral. There is no statement or finding to
that effect. The only finding by the district court is that the reason proffered
was not true, lacked validity, and was pretextual. That sort of inquiry is
inappropriate at the second step. As explained earlier, the reason proffered by
the proponent of the strike need not even be worthy of belief, it need only be
raceneutral. Jones, 57 F.3d at 420.4

21

Finally, the record is unclear as to whether the district judge sufficiently

addressed whether the prosecution had met its ultimate burden of proving that
the strike was racially motivated. The district judge found that Blotcher's
alleged neutral reasons were pretextual and lacked validity. He did not believe
them. Pretextuality alone, however, does not automatically demonstrate
purposeful discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 510-11,
518-19 (1993) (explaining in the Title VII context that once a prima facie case
is made and it is rebutted, "the fact finder must then decide not ... whether the
evidence of rebuttal is credible, but whether" there has been intentional
discrimination); United States v. McMillon, 14 F.3d 948, 952 n. 3 (4th

Cir.1994) (noting applicability of St. Mary's holding to the Batson inquiry).

Thus, an ultimate fact finding of intentional discrimination must be made. That
factual finding is absent from the record.
22

Based on the confusion in the transcript and the absence of the necessary
Batson findings, we remand for further proceedings in order for the district
court to clarify its ruling. See, e.g., Jones, 57 F.3d at 421-22.

B. Admissibility of Field Test

23

Blotcher challenges the testimony from an officer regarding the results of the
field test he conducted. Blotcher argues that the testimony should not have been
allowed because: (1) the government failed to comply with Rule 16(a)(1)(C)(D)
(E) of the Federal Rules of Criminal Procedure regarding discovery; (2) the test
itself was insufficiently reliable to meet the standards of Rule 702 of the
Federal Rules of Evidence; and (3) the prejudicial effect of the testimony
outweighed its probative value in violation of Rule 403 of the Federal Rules of
Evidence.

1. Rule 16
24

Among Rule 16's requirements, the government must, upon the defendant's
request: (1) permit the defendant to inspect and copy documents and the like,
which are in the government's possession and material to the preparation of the
defense; (2) permit the defendant to inspect and copy any results of scientific
tests, which are in the government's control and material to the preparation of
the defense; and (3) disclose to the defendant a written summary of testimony
the government intends to use under Rule 702 of the Federal Rules of Evidence.
Fed.R.Crim.P. 16(a)(1)(C)(D)(E).

25

During discovery, Blotcher requested the government to disclose the results and
reports of any scientific tests and experiments, all expert conclusions and
analysis concerning any physical evidence, and the name, address, and
qualifications of any expert witness intended to be called by the government.
The government provided the following statement from a detective's report:

26
While
searching the residence, Det. Sholar observed white powder residue in the
kitchen sink and found a knife located on the kitchen counter. I witnessed Det.
Sholar field test the white powder substance. The substance tested positive for
cocaine.
27

Blotcher contends that Rule 16 was violated. He has not specified what exactly

he contends should have been turned over. The transcript of argument indicates
that he objected to the absence of lab reports and his inability to test the
substance. There were, however, no lab reports, nor was there any substance
remaining for him to test because the entirety of the small residue found in the
sink was used in the field test. The transcript further indicates that Blotcher
objected to the failure to notify him of "expert" testimony regarding the field
test. The government intended for detective Sholar to testify at trial as to the
results of the field test and Blotcher was on notice that Detective Sholar had
conducted a test which was positive for cocaine. The government brought in an
expert witness on the field test only after Blotcher raised his motion in limine
before trial and the district judge indicated that under Rule 702 of the Federal
Rules of Evidence, he might need to examine the reliability of the field test.
Thus, the government did not violate Rule 16. Blotcher was on notice of the
only evidence relating to the field test that the government had or intended to
present at trial--Detective Sholar's testimony as to what he found in the sink and
the results of the field test he conducted.
2. Rule 702
28

Rule 702 provides that scientific, technical, and other specialized knowledge is
admissible at trial if it "will assist the trier of fact to understand the evidence or
to determine a fact in issue." Fed.R.Evid. 702. The Supreme Court has set forth
a two-part test that must be met for scientific evidence to be admissible under
Rule 702--the trial judge must ascertain that the evidence is (1) relevant and (2)
reliable. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 590-91
(1993). Reliability must be based upon scientific validity of some sort,
depending on what the evidence seeks to demonstrate and various other factors.
Id. at n. 9.

29

The Fourth Circuit has explained the Daubert test as requiring: (1) that "the
expert testimony must consist of 'scientific knowledge'--that is, the testimony
must be supported by appropriate validation, and (2) the evidence or testimony
must 'assist the trier of fact to understand the evidence or to determine a fact in
issue.' " United States v. Powers, 59 F.3d 1460, 1470-71 (4th Cir.1995) (citing
United States v. Dorsey, 45 F.3d 809, 813 (4th Cir.) (quoting Daubert, 509 U.S.
at 590-91), cert. denied, 115 S.Ct. 2631 (1995)), cert. denied, 116 S.Ct. 784
(1996) (emphasis in original). The types of factors that trial courts should
consider when evaluating scientific validity are: (1) whether the theory or
technique used by the expert can be, and has been, tested; (2) whether the
theory or technique has been subjected to peer review and publication; (3) the
known or potential rate of error of the method used; and (4) the degree of the
method's or conclusion's acceptance within the relevant community. Powers, 59

F.3d at 1471. The inquiry, however, is a flexible one which depends greatly on
the type of evidence and what it is offered to demonstrate. We review a district
court's determination to admit evidence under Rule 702 for abuse of discretion.
Id.
30

During trial, the district court conducted an examination of a state bureau of

investigation forensic chemist in order to determine the reliability of the field
test. The chemist testified that the field test consisted of a glass vial containing
two ampules--one of liquid and one of acid. When a substance is placed in the
vial, the ampules are broken. If the liquid turns blue, the test "may indicate the
presence of cocaine." The test is commonly used nationwide by police officers
in the field. An identical test is often conducted in the laboratory. However,
such color tests are nonspecific. Thus, the particular field test is not a
conclusive indication of cocaine, but rather merely an indication that cocaine
may be present. The expert considered such a test preliminary, the type of test
that gives some indication as to what other test should be pursued to establish
conclusive proof that a particular drug is present.

31

The district court ruled that it would allow the officer who conducted the field
test to testify as to its results because the field test was customarily used by
officers in the field and reliably (although not conclusively) indicated the
presence of cocaine. The court also reasoned that a reasonable juror could
conclude that the substance was cocaine after five people testified that Blotcher
distributed crack cocaine and a police officer testified that he found a white
substance with pebbles in an apartment used by Blotcher, even without the test.
The court, therefore, found that the officer's testimony as to a field test was
admissible to the extent that it tended to confirm the presence of cocaine.

32

To the extent there is a debate over the reliability of the particular test at issue,
those questions go to the evidence's weight, not its admissibility. Thus, we
conclude that the district court's admission of the police officer's testimony
regarding the results of his field test was not an abuse of discretion. Cf. United
States v. Paiva, 892 F.2d 148, 160 (1st Cir.1989) (allowing detective with
experience in narcotics unit to testify as expert under Rule 702 that in his
opinion the substance he field tested was cocaine).

3. Rule 403
33

Blotcher also argues that the testimony violated Rule 403 of the Federal Rules
of Evidence in that its prejudicial effect outweighed its probative value. As long
as the test is scientifically admissible, the probative effect of its results tending
to confirm the presence of cocaine is quite strong. While the prejudicial effect

is quite potent also, it does not outweigh the probative value of the test results.
C. Disparity Between Crack Cocaine and Powder Cocaine Sentences
34
35

Finally, Blotcher challenges the constitutionality of his sentence under the

equal protection clause. He argues that the disparity in sentences between those
imposed on individuals convicted of dealing cocaine powder versus those
convicted of dealing crack cocaine violates his constitutional rights. He relies
on a recent report by the United States Sentencing Commission which
concludes that the disparity is not rational. We have previously considered
those same arguments and rejected them, finding that the sentencing
commission report has no effect on our earlier holding in United v. Thomas,
900 F.2d 37, 39-40 (4th Cir.1990), that Congress could have rationally
concluded that the disparity was justified. United States v. Hayden, --- F.3d ----,
----, 1996 WL 287799 (4th Cir. May 31, 1996).

36

For the foregoing reasons, we affirm Blotcher's conviction and sentence as to

all grounds he has raised on appeal, with the exception of the district court's
refusal to allow him to exercise a peremptory strike on juror Hedgepeth. As to
that refusal, we remand for further clarification.
AFFIRMED IN PART AND REMANDED IN PART

37

WIDENER, Circuit Judge, concurring and dissenting:

38

I concur in the opinion so far as it affirms the conviction and sentence as to all
grounds except the district court's refusal to allow Blotcher to exercise a
peremptory strike on juror Hedgepeth.

39

I also concur that the case should be remanded. Where I part company is that I
think the conviction should be vacated on account of the Hedgepeth strike and
a new trial granted.

40

Blotcher told his attorney, in giving a reason for the peremptory challenge of
Hedgepeth that:

41 Hedgepeth, he simply says appears to be a very--just from his appearance, a

Mr.
conservative person.
42

****

43 from his appearance, he would appear to be a conservative type person, which

But
we believe would not be the best juror in this case for him.
44

The government objected on the ground that "There is nothing about Mr.
Hedgepeth's dress that is in any way more conservative than anyone else's on
that jury."

45

At that time there were four black people and eight white people on the jury.
The court left Hedgepeth on the jury, stating: "Well, I don't see any rational
reason for getting Mr. Hedgepeth off."

46

The court noted that Hedgepeth was not dressed conservatively because: "He
has a sport shirt on." But the defendant's attorney responded that Hedgepeth has
"... got his hair kind of nice and he's got nice glasses on." The government
entered the argument with the comment that "Not one single black juror has
been struck by the defendant regardless of the fact that some of them have ties
on," thus revealing the real basis for the government's objection. It wanted to
bar Blotcher from striking any more white jurors.

47

The court held that "Comments that he [Blotcher] made concerning not
wanting conservative people was [sp] pretextural." With that, the matter was
dropped, Blotcher was convicted, and this appeal is the result.

48

I think that Blotcher wanting to strike the people on the jury who appeared to
him to be conservative was not pretextural. Everyone on the jury was "neatly
and well dressed" according to the government's attorney. So the striking of any
other white juror, except perhaps the most conservatively dressed on the whole
jury, would have been error according to the rule we apply in this case.

49

The record simply does not show the objection was pretextural, which I think is
required.

Batson v. Kentucky, 476 U.S. 79 (1986)

The government did not challenge the three additional strikes

The failure to make a prima facie finding of discrimination is moot where the
proponent of the strike proceeds to offer a race-neutral reason and the district
court makes a ruling on the ultimate question of intentional discrimination.
Hernandez, 500 U.S. at 359. Here, Blotcher offered a race-neutral reason, but

the record is unclear as to whether the district court correctly made the ultimate
finding of intentional discrimination
4

Furthermore, just as the Supreme Court observed in Elem that the growing of
long, unkempt hair is not particular to any race, 115 S.Ct. at 1771, neither is the
wearing of hair in a "kind of nice" way, the wearing of "nice glasses," nor a
generally conservative appearance particular to any race. Those reasons are
race-neutral. All the prosecution did to rebut those reasons was indicate that
every single juror on the panel was neatly and well dressed and that there was
nothing about juror Hedgepeth's dress that indicated he was in any way more
conservative than anyone else on the panel. The district court agreed and found
the reason pretextual. The mere fact, however, that an acceptable juror
possesses the same characteristic as a juror a party seeks to strike does not in
and of itself mean that the reason is pretextual. The acceptable juror may have
possessed other desirable characteristics. Many factors, such as general
appearance, demeanor, education, employment, and others, may properly enter
into the jury selection process. United States v. Lane, 866 F.2d 103, 106 (4th
Cir.1989)