KEVON SPENCER v. STATE OF MARYLAND
Court of Appeals, Greene, Nov. 29, 2016,
Attempt- Where defendant veered off of the road to get around police vehicles and struck a pedestrian, insufficient evidence to convict of attempted murder

(Plurality opinion as to Batson, with Watts concurring. Majority opinion formed for the Insufficient Evidence portion by adding Barbera)
(Dissent in part- Barbera – Disagrees on Batson, but agrees insufficient evidence to convict of attempted murder. Essentially quotes that portion of the CoSA opinion.)
(Dissent and Concur- Watts- Agrees on Batson, but disagrees that there was insufficient evidence to convict)
(Dissent- McDonald – Disagrees on Batson, disagrees on insufficiency of evidence – and we should get rid of peremptory challenges)
(Dissent- Getty- Disagrees on Batson, disagrees on insufficiency of evidence)

The Court of Appeals here completely abandons its role and makes itself the primary fact-finder rather than following standard appellate practice of viewing evidence in the light most favorable to the prevailing party and presuming validity in judicial operation.
The Court also gets pretty much every aspect of this opinion wrong: failing to defer to the credibility assessment of the trial judge; sending back for a new trial instead of remanding for the explanation/evidence they were complaining was missing; failing to defer to the jury’s finding of fact when there was sufficient objective evidence to support it.

In related news, Judge Greene has obtained mystic powers that allow him to look into the mind and heart of defendants. Here, writing for the Court, he does not look at evidence presented at trial. Rather, he looks at what he knows to be true. Over and over in the opinion, he states matter-of-factly the mens rea of Kevon Spencer at the time of the events in question. The problem is that Judge Greene was NOT, to the best of my knowledge, inside of Kevon Spencer’s head when he ran over Andrew Kinn with his SUV.

A video tape of the scene would have shown the following:
Spencer, the defendant-appellant, was driving an SUV while marked police units were behind him with lights and siren activated for approximately twelve miles. Police pulled in front, behind, and to the side of Spencer’s vehicle, “boxing him in.” Spencer then accelerated and drove onto the grass/shoulder and struck a man walking with his bicycle. The man was wearing a “bright shirt” and his bicycle had “flags on the bike.” Spencer then continued driving. The suspect was on the road, swerved off of the road for the time it took to strike the clearly visible pedestrian, then returned to the road.

As one officer testified, Spencer had 3 options: run over Kinn, drive into a ditch to avoid Kinn, and drive between the police cars. Spencer also had the options of: maintaining his lane and continuing forward, maintaining his lane until he passed Kinn, and stopping for the police. Of these options, Spencer went with: run over the pedestrian.

The question is whether the defendant “attempted” to murder the pedestrian or struck him with a lesser mens rea. Could Spencer have seen Kinn and struck him for the fun of it? Yes. Could Spencer have seen Kinn and run him over intentionally but without intent to hurt him? Yes. Could he have run him over knowingly but not purposefully? Yes. Could Spencer have not seen Kinn until it was too late? Yes.

Rather than leave this for the fact-finder, the Court decides that Spencer didn’t intend to kill Kinn based largely on the testimony of Spencer’s passenger (who the fact-finder was free not to credit, but the Court completely does).

The Court also appears confused by the difference between “Recklessness” and “Purpose.” It likens the mens rea that failed to support attempted murder in Smallwood, where an HIV-positive defendant raped three women, with the present facts — a driver that swerved off the road and struck a pedestrian.

Even in the light most favorable to the State, the natural and probable consequence of unprotected, forced sex while HIV-positive is not the death of the victim.
In the light most favorable to the State, the natural and probable consequence of running over a pedestrian with an SUV absolutely is.

The Court states that “Spencer’s actions can be ‘wholly explained’ by his trying to flee the police” (emphasis added). Of course, that assumption is the precise opposite of “light most favorable to the prevailing party.”

The Court then continues to look at the evidence in the light most favorable to the appellant: “the death of a cyclist is not a probable consequence of Spencer’s recklessly driving away from the police.” True, but it IS a probable consequence of running over a pedestrian with a 3000 lb vehicle. Which is what happened. “There is no evidence that Spencer’s goal was to harm Kinn.” Really? Kinn was clearly visible and Spencer swerved off of the main road, struck him, and moved back. Is it impossible to intentionally strike someone with a vehicle while fleeing the police?

Batson- “A credibility assessment based on counsel’s past conduct and history is proper; however, there should be evidence in the record which the appellate court can review.”
Batson – Batson pretext determinations are based on two “analytical categories: context and credibility.” Context may be reviewed for clear error, but credibility is “not so visibile.”

“When there is no competent material evidence to support the trial court’s factual findings, those findings are deemed to be clearly erroneous.” (Or where the Court on appeal doesn’t like the evidence presented…)
“The trial judge could not point to material evidence in the record of this case to support his rejection of counsel’s race neutral explanations.” No, the trial judge DID point to evidence in the record, the CoA merely disagreed with what that evidence demonstrated.