UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NADINE Y. THIGPEN, individually and

as personal representative of the

Estate of Rahsaun Richardson also

known as Rahsaun Richardson,

Plaintiff-Appellant,

v.

No. 96-1335

MARY SHIELDS, individually and as

an officer of the Prince George's

County Police Department; PRINCE

GEORGE'S COUNTY, MARYLAND;

DAVID B. MITCHELL, Chief,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Maryland, at Greenbelt.

Peter J. Messitte, District Judge.

(CA-94-827-PJM)

Argued: March 7, 1997

Decided: April 11, 1997

Before WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed in part and remanded in part by unpublished per curiam

opinion. Judge Williams wrote an opinion concurring in part and dissenting in part.

_________________________________________________________________

COUNSEL

ARGUED: Fred R. Joseph, JOSEPH, GREENWALD & LAAKE,

P.A., Greenbelt, Maryland, for Appellant. Jay Heyward Creech,
Upper Marlboro, Maryland, for Appellees. ON BRIEF: Sean D. Wallace, Upper Marlboro, Maryland, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

The mother of a juvenile, whom a police officer fatally shot while

attempting to arrest him, brought this excessive force action against

the officer. A jury found for the police officer. The mother appeals,

challenging several evidentiary rulings, a jury instruction, and the district court's denial of her Batson v. Kentucky , 476 U.S. 79 (1986),

challenge. We find no reversible error in the evidentiary determinations or jury instruction but because we are unable to determine the

basis for the district court's Batson ruling, we remand for further proceedings with respect to that issue.

I.

In the early morning hours of February 25, 1991, Rahsaun Richardson and Melvin Berry stole a vehicle, drove to the Andrew Jackson

Middle School, entered the library, and began removing computer

equipment.

Their activity apparently tripped an internal alarm. In response, at

approximately 3 a.m., Cpl. Mary Shields, an officer of the Prince

George's County Police Department, and her police dog were dispatched to the school. Cpl. Shields twice announced her presence and

warned persons inside the school to surrender or the police dog would

be released to locate them. When there was no response, she released

the dog into the school and followed it.

Upon hearing the police arrive, Richardson and Berry ran to the

auditorium/cafeteria area and searched for a place to hide. The dog

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initially led Cpl. Shields to the library and after securing that location,

she continued the search. In the auditorium/cafeteria area, the dog

indicated the scent of people and Cpl. Shields located and apprehended Richardson and Berry. Because Berry would not follow

instructions and appeared to be preparing to flee, the dog was placed

on him for restraint. Richardson's mother, Nadine Y. Thigpen, asserts

that the dog also attacked Richardson for no reason and that both boys

began to cry.

After this confrontation, Cpl. Shields directed Richardson and

Berry to walk toward the outside door through which they had entered

the building. They began walking together in front of her and the dog.

However, Richardson stopped, assertedly because he had been bitten

and was having difficulty walking. Cpl. Shields believed he was trying to get behind her, which would have put her between the two suspects where she might be overpowered. Accordingly, Cpl. Shields

ordered Richardson to keep moving; he did not comply. The officer

eventually ordered the dog to bite Richardson to prevent him from

moving behind her.

In response, Richardson threw the dog, by the neck, into a locker.

When Cpl. Shields checked on the dog, Richardson hit her on the

head. She tried to grab and control Richardson but he continued striking her on the head. She began to lose consciousness and next remembered a flash and loud noise waking her. The flash and noise were her

gun discharging; she shot Richardson in the leg.

Richardson either grabbed or looked at his leg and then began to

swing towards the officer's head with a chain. Cpl. Shields backed up

and fired again at Richardson, this time hitting him in the upper back;

the second shot was fatal. Richardson slumped down backwards and

the officer called for assistance.

Ms. Thigpen, as personal representative for Richardson's estate and

in her own capacity, initiated this action against Cpl. Shields, Police

Chief David B. Mitchell, and Prince George's County. The complaint

alleged an excessive force civil rights claim pursuant to 42 U.S.C.

§ 1983 and various state law claims, and sought compensatory and

punitive damages. Following a bifurcated trial, the jury found for Cpl.

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Shields on all counts; the district court entered judgment for all defendants eleven days later. Ms. Thigpen appeals.

II.

Ms. Thigpen, an African-American, initially claims that the district

court erred in denying her Batson challenge. After Cpl. Shields struck

from the jury panel two African-American women and a man who

was not identified as from a cognizable racial group, Ms. Thigpen

protested on Batson grounds. At first, she claimed all three strikes

were of African-Americans, but the district court quickly clarified that

only two of the three struck jurors were African-Americans and then

noted that one African-American man had been seated with the jury

that had been selected.

Without assessing whether Ms. Thigpen had made a prima facie

case, the court immediately asked counsel for Cpl. Shields if he

wanted "to state any sort of reason for the strikes, of the two [they]

struck." The following colloquy ensued:

 [DEFENSE COUNSEL]: Your Honor, I'll state reasons, but I think that for two out of the three, I don't think

they've stated what their prima facie. As to juror number

1676 . . . Miss Shields indicated that she was staring at her

the entire time.

 Additionally, I was concerned over the fact that, you

know, she lived in the county, so that's the reason why we

struck.

 THE COURT: She lived where?

 [DEFENSE COUNSEL]: The town of Camp Springs.

Of course, in my mind, being from Prince George's County,

they're exposed to much more negative publicity from both.

 THE COURT: What about the other people? You've

got [a seated juror], who's also from the same town, Camp

Springs.

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 [DEFENSE COUNSEL]: But she wasn't staring at my

client.

 THE COURT: What about the other?

 [DEFENSE COUNSEL]: Miss Meredith appeared to

look throughout the course of the proceedings, only time

I've seen her look up, she's looked right over to Miss Thigpen during the course of this, and that is the basis that I

struck her.

 It also appears she's approximately the age of Miss Thigpen, and I feel there may be some identity there. . . .

 THE COURT: All right.

 [MS. THIGPEN'S COUNSEL]: Our position is that,

number one, obviously, the fact that Miss Pipkin lives in the

county is not an adequate basis, and it's contradicted by the

other decision.

 To say that this individual was staring at his client, Miss

Shields, I think is perhaps stretching Batson even beyond its

limits.

 Karen Meredith, 1728, did not respond to any questions,

to the best of my knowledge, and once to say that she

looked over to the plaintiff's table, and [defense counsel]

was concerned about bonding due to the same age, the number of women that were selected are the same age, and I

don't think that that's a valid basis for him to strike.

The court then ruled:

 THE COURT: Well, I don't think that there's a prima

facie case here, because I think one African male has been

seated, so although the reasons may be a bit extraneous as

far as defendant is concerned, I don't think there's a prima

facie case in any event.

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 The reasons don't have to be too -- too rational, but I

can't, prima facie is necessarily raised. I'm going to deny

the motion.

The Batson analysis proceeds in three steps. First, the party challenging the strikes must establish a prima facie case of discriminatory

use of peremptory challenges by demonstrating that she "is a member

of a cognizable racial group, . . . and that the[opposing party] has

exercised peremptory challenges to remove from the venire members

of the defendant's race." United States v. Grandison, 885 F.2d 143,

145 (4th Cir. 1989), cert. denied, 495 U.S. 934 (1990) (quoting

Batson at 96). In determining whether a prima facie case has been

established, a court can consider all relevant circumstances including

but not limited to the pattern of strikes, and questions and statements

during voir dire. Id. at 146. Second, if the moving party establishes

a prima facie case, the striking party must provide non-discriminatory

bases for the challenged peremptory challenges. Id. Third, if the striking party states a non-discriminatory basis for its use of peremptories

then the moving party must provide proof of discriminatory selection

despite the neutral reasons advanced. Batson, 476 U.S. at 96-98.

We defer to the district court in the context of a Batson challenge

because it has observed the voir dire and the exercise of peremptory

strikes. Grandison, 885 F.2d at 146. Furthermore, we "will not examine whether the defendant has met his burden in establishing a prima

facie case where the prosecutor articulates [legitimate] reasons for

[the] strikes." United States v. McMillon, 14 F.3d 948, 952 (4th Cir.

1994) (citing United States v. Lane, 866 F.2d 103, 105 (4th Cir.

1989); United States v. Joe, 928 F.2d 99, 103 (4th Cir. 1991), cert.

denied, 502 U.S. 816 (1991)).

When the district court jumps immediately to the second step in the

Batson analysis -- ascertaining that the reasons for the strikes are

legitimate -- we will affirm if we agree that those reasons are adequate. See McMillon, 14 F.3d at 953. Hence, the fact that here the district court proceeded immediately to the second step, in and of itself,

provides no basis for remand or reversal. But in this case the court

never completed its analysis under the second step-- it never determined whether the reasons for the challenged strikes were legitimate.

Indeed, to the extent the district court assessed those reasons the court

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indicated some doubt as to their legitimacy, noting"the reasons may

be a bit extraneous as far as defendant is concerned."

Accordingly, we can affirm on this record only if the record supports the district court's ultimate determination that Ms. Thigpen had

not established a prima facie case. Unfortunately, it does not. The

court's entire explanation for its ruling was: "I don't think that there's

a prima facie case here, because I think one African male has been

seated." Clearly "[t]he composition of the jury may be considered as

part of the total relevant circumstances upon which a determination

of discrimination in jury selection is made," however, just as clearly,

this factor "is not dispositive of that issue ." Joe, 928 F.2d at 103

(emphasis added); see also Grandison, 885 F.2d at 147. Yet the

record does not indicate any other basis for finding that Ms. Thigpen

failed to establish a prima facie case.

Accordingly, we simply cannot determine whether the district court

applied the correct legal analysis in determining that Ms. Thigpen had

not established a prima facie case. When an appellate court cannot

ascertain whether the trial judge "applied the proper legal analysis" in

its Batson ruling, the appropriate course is to remand "for further proceedings in order for the district court to clarify its ruling." Jones v.

Plaster, 57 F.3d 417, 421-422 (4th Cir. 1995) (remanding a Batson

challenge because we could not discern "whether the district court

applied the proper legal analysis in reaching its decision to overrule

[the moving party's] objection.")

As in Jones, we note that "this ruling need not be elaborate." 57

F.3d at 422. Rather, the district court need only articulate why it

found Ms. Thigpen had failed to establish a prima facie case.

III.

Ms. Thigpen's remaining arguments are meritless. Most are evidentiary challenges. The district court's decision to admit or exclude

evidence is discretionary and will not be overturned unless it is "arbitrary or irrational." United States v. Powers , 59 F.3d 1460, 1464 (4th

Cir. 1995), cert. denied, 116 S. Ct. 784 (1996).

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A.

The first evidentiary challenge is to the district court's decision to

exclude evidence of prior shootings by Cpl. Shields. Evidence of prior

bad acts, so long as it is relevant, is permitted for any purpose other

than to demonstrate the defendant's propensity to commit unlawful

acts. Id. However, even relevant evidence may be properly excluded

if the trial judge believes that "there is a genuine risk that the emotions of the jury will be excited to irrational behavior, and that this

risk is disproportionate to the probative value of the offered evidence." Id. at 1467 (quoting Masters , 622 F.2d 83, 87 (1983)). In the

instant case, the district court excluded the evidence concerning prior

shootings by Cpl. Shields, one of which resulted in a verdict in excess

of one million dollars against her, finding that even if marginally relevant, this evidence was confusing and unnecessarily prejudicial.

Relying on Powers, Masters, and United States v. Percy, 765 F.2d

1199 (4th Cir. 1985), Ms. Thigpen maintains that this evidence should

have been admitted because it "complete[s] the story of the offense,"

Powers, 59 F.2d at 1466, or shows a pattern of bad acts. Percy, 765

F.2d at 1203. However, Powers and Masters involved several transactions (firearms trading in Masters) or incidents (beatings in Powers)

that concern the same (or intricately related) parties or that, taken

together, comprise the res gestae of the act of which defendant was

accused. Thus, in those cases the questioned evidence did complete

the story of the offense. In contrast, here the shootings occurred years

apart from one another. Moreover, unlike Percy , there is no evidence

of any pattern, or indeed of any similarities between them.

At best, Ms. Thigpen has only demonstrated that the district court

would not have erred if it had admitted the evidence of prior shootings. She has utterly failed to demonstrate that the district court

abused its discretion in excluding this evidence.

B.

Ms. Thigpen argues that the district court erred in excluding photographs and medical records of Melvin Berry, her son's accomplice.

She relies primarily upon Schultz v. Butcher, 24 F.3d 626, 632 (4th

Cir. 1994), in which we held that excluding evidence of a captain's

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drunkenness totally deprived a co-defendant from advancing a theory

that the drunkenness of the captain caused the accident.

Schultz involved evidence excluded at a bench trial. To the extent

it is relevant in determining whether evidence was properly excluded

as unfairly prejudicial at a jury trial, it is distinguishable. Here, in

contrast to Schultz, the district court did not exclude all evidence on

the subject. Rather, the court expressly allowed testimony about

Berry's injuries; it simply denied admission of the photographs and

records finding them "unfairly prejudicial" because their only purpose

was to "embellish" testimony. Thus, Ms. Thigpen, unlike the codefendant in Schultz, was not prevented from developing her theory

of the case. There was no error.

C.

Next, Ms. Thigpen claims that the district court erred in admitting

extrinsic evidence of Berry's prior inconsistent statements because

Berry conceded on cross examination that he had made the statements

and because these statements assertedly involve collateral matters.

For this argument, she principally relies on United States v. Ince,

21 F.3d 576 (4th Cir. 1994). In Ince, a prosecutor introduced a prior

inconsistent statement to impeach his own witness. We noted that

when the prosecution attempts to impeach its own witness, the "prejudicial impact often substantially outweighs its probative value for

impeachment purposes because the jury may ignore the judge's limiting instructions and consider the `impeachment' testimony for substantive purposes." Id. at 581. We held that the prior inconsistent

statement was inadmissible because it had no impact upon the witness's credibility. Id.

Unlike the prosecutor in Ince, counsel for Cpl. Shields did not

attempt to impeach his own witness with the prior statement. Moreover, the district court found that portions of the statement greatly

affected the witness's credibility and therefore permitted those portions -- and only those portions -- to be admitted into evidence. The

district court also offered to give the jury a limiting instruction on the

use of the written statement. Under these circumstances, there was no

abuse of discretion in admitting the statements.

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D.

Ms. Thigpen asserts that the district court erred in admitting evidence of the retirement of the police dog following this incident.

At trial, Ms. Thigpen proposed reading part of Cpl. Shields' deposition to the jury. Specifically, she wanted to read a question posed

to Cpl. Shields in which the officer was asked if the dog was "injured

physically" and responded: "I don't think they found anything like a

broken bone or anything like that, but I think emotionally she suffered

a shot." Ms. Thigpen wanted to omit the follow-up question and

answer in which Cpl. Shields explained that the dog had been retired.

Ms. Thigpen argued that this information was irrelevant and would

cause the jury to feel sympathy for Cpl. Shields.

The court ruled that all of the questions were admissible. Following

this ruling, Ms. Thigpen suggested that the court entirely eliminate

questions about the dog's injuries. When the court responded that

because "[t]he three of them were mixing it up at some point, whether

. . . the dog was injured would be relevant." Ms. Thigpen agreed, but

again objected to the discussion about the dog's retirement.

Clearly, Ms. Thigpen considered the dog's injuries to be suspect

and wanted to introduce evidence to this effect. Her reason for proffering Cpl. Shields' deposition statement, that the dog didn't have "a

broken bone or anything like that," was to call into question whether

the dog had actually been injured. For this reason, the follow-up question about the dog's retirement was relevant, and the district court did

not err.

IV.

Finally, Ms. Thigpen claims that the district court erred in prohibiting her from arguing an intentional deprivation of rights theory to the

jury. Evidence of either "reckless or callous disregard for the plaintiff's rights" or "intentional violations of federal law" is sufficient to

present a jury issue as to punitive damages in a§ 1983 action. Smith

v. Wade, 461 U.S. 30, 50 (1983). Therefore, the district court should

have permitted Ms. Thigpen to argue both standards to the jury.

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Its failure to do so is harmless because the district court instructed

the jury on the lesser standard -- callous indifference -- thereby

eliminating any concern that requiring Ms. Thigpen to meet the

higher standard did not adequately vindicate the"legitimate interests

in punishing unlawful conduct and deterring its repetition." BMW of

North America, Inc. v. Gore, 116 S.Ct. 1589, 1595 (1996). See also

Smith, 461 U.S. at 54 (1983). Furthermore, the jury did not find Cpl.

Shields liable, thereby foreclosing it from awarding punitive damages

under any standard. See Gore, 116 S.Ct. at 1597-98.

V.

For all of these reasons, the judgment of the district court is

AFFIRMED IN PART AND REMANDED IN PART.

WILLIAMS, Circuit Judge, concurring in part and dissenting in part:

Although I concur in Sections I, III, IV, and V of the Majority's

opinion, I write separately to express my disagreement with Section

II. In my view, the district court quite clearly ruled that, in raising her

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

failed to make out a prima facie case. Moreover, I agree with the district court's conclusion. Shields used two of her three peremptory

strikes to remove black jurors, while one black juror -- who could

have been stricken with the final strike -- was seated. There is no

other evidence from the voir dire to support an inference of discrimination. It is true that the seating of one black juror "is not dispositive

of" the Batson challenge, United States v. Joe, 928 F.2d 99, 103 (4th

Cir. 1991), but here it strongly undercuts the already attenuated statistical showing by Thigpen. In the absence of any evidence beyond

such a limited statistical argument, I would affirm the district court's

rejection of Thigpen's Batson challenge.

In any event, even assuming that Thigpen made out a prima facie

case, Shields has unquestionably discharged her burden to articulate

"legitimate" reasons for the strike. "The second step of [a Batson

inquiry] does not demand an explanation that is persuasive, or even

plausible." Purkett v. Elem, 115 S. Ct. 1769, 1771 (1995). Rather,

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"`[a]t this [second] step of the inquiry, the issue is the facial validity

of the prosecutor's explanation. Unless a discriminatory intent is

inherent in the prosecutor's explanation, the reason offered will be

deemed race neutral.'" Id. (quoting Hernandez v. New York, 500 U.S.

352, 360 (1991) (plurality opinion)) (alteration in original). Therefore,

no matter how "extraneous," Shields' explanation is nonetheless valid

unless inherently discriminatory. Here, the offered reasons -- hinging

on each juror's conduct -- were not inherently discriminatory. I

therefore disagree with any suggestion that Shields did not satisfy her

burden during the second step of the Batson inquiry.

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