Bailey v. State

MOYLAN, Judge. The appellant, Rudeara Bailey, was convicted by a Dorchester County jury, presided over by Judge Donald F. Johnson, of first-degree felony-murder. Upon this appeal, she raises the following five contentions: 1. That the State’s use of peremptory challenges to strike black jurors offended the Equal Protection Clause of the Fourteenth Amendment; 2.

That the evidence was not legally sufficient to support the conviction; 3. That Judge Johnson erroneously failed to give a limiting instruction about the use of a defense witness’ prior inconsistent statement; 4. That Judge Johnson erroneously failed to grant the appellant a change of venue; and 5. That Judge Johnson erroneously quashed the subpoena for the assistant state’s attorney who was prosecuting the case.

The appellant contends initially that the State so used its peremptory challenges as to violate the appellant’s rights under the Equal Protection Clause of the Fourteenth Amendment as interpreted and implemented by Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986). The appellant is black. The murder victim was white. The State used seven of its ten peremptory challenges to strike prospective jurors who were black.

It used the other three challenges to strike prospective jurors who were white. The jury that was ultimately seated consisted of eight white and four black jurors. The Batson Threshold Judge Johnson ruled against the appellant on this issue in alternative ways. He ruled initially that the appellant had failed to make out a prima facie case of purposeful discrimination: ³²⁶ “I don’t think that the defense has made a prima facie case for purposeful discrimination in the selection of the petit jury solely on the evidence concerning the number of blacks that were stricken by him.” He then ruled, by way of an alternative “backup” position, that even if a prima facie case had, arguendo, been made out, the State had nonetheless come forward with an adequate explanation for its use of the peremptories. 1 Our holding is that Judge Johnson was neither clearly erroneous nor clearly abusive of his discretion in his threshold finding and ruling that the appellant had not established a prima facie case of racial discrimination and that the State, therefore, was under no obligation to come forward with racially neutral explanations for its use of peremptories.

The use of peremptory challenges in a racially discriminatory fashion is an invidious practice and our constitutional law has provided stern and sure measures for dealing with it. That same constitutional law is also carefully calibrated to guarantee that charges of racial discrimination, calling into play the full strictures of Batson , are neither carelessly indulged nor promiscuously invoked. This is why Batson requires that the appellant establish a prima facie case of discrimination at the threshold before full constitutional mobilization takes place. That is why the elaborate re ³²⁷ sponses of Batson are not intended to be a knee-jerk reaction every time a charge of discrimination is laid.

In speaking of that initial burden that a defendant must shoulder to trigger the larger inquiry, Batson was clear, at 476 U.S. 96 -97, at 106 S.Ct. 1723 : “In deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances. For example, a ‘pattern’ of strikes against black jurors included in the particular venire might give rise to an inference of discrimination. Similarly, the prosecutor's questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose. These examples are merely illustrative.” In Stanley v. State, 313 Md. 50, 60 , 542 A.2d 1267 (1988), Judge Adkins analyzed in depth the nature of this threshold showing: “Although the phrase ‘prima facie case’ ‘may be used by courts to describe the plaintiff’s burden of producing enough evidence to permit the trier of fact to infer the fact at issue,’ in the Title VII context (and by implication, the Batson context), the phrase denotes ‘the establishment of a legally mandatory, rebuttable presumption.’ [Texas Department of Community Affairs v.] Burdine, 450 U.S. [248] at 254 n. 7, 101 S.Ct. [1089] at 1094 n. 7, 67 L.Ed.2d [207] at 216 n. 7 [1981].

Also see B. Garner, A Dictionary of Modern Legal Usage 434 (1987) (citing Burdine for ‘prima facie case’).” In Batson , the Supreme Court “explained the operation of prima facie burden of proof rules” by reference to its cases dealing with “disparate treatment” under Title VII of the Civil Rights Act of 1964. It explained, at 476 U.S. 94 n. 18 at 106 S.Ct. 1721 -22 n. 18: “Our decisions concerning ‘disparate treatment’ under Title VII of the Civil Rights Act of 1964 have explained the operation of prima facie burden of proof rules. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 , 93 ³²⁸ S.Ct. 1817, 36 L.Ed.2d 668 (1973); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 , 101 S.Ct. 1089 , 67 L.Ed.2d 207 (1981); United States Postal Service Board of Governors v. Aikens, 460 U.S. 711 , 103 S.Ct. 1478 , 75 L.Ed.2d 403 (1983). The party alleging that he has been the victim of intentional discrimination carries the ultimate burden of persuasion.

Texas Dept, of Community Affairs v. Burdine, supra [450 U.S.], at 252-256, 101 S.Ct. 1089 [at 1093-95], 67 L.Ed.2d 207 .” The Standard of Appellate Review of the Threshold Ruling The determination of whether that threshold has been crossed is entrusted to the trial judge. In reviewing the trial judge’s decision, appellate courts do not presume to second-guess the call by the “umpire on the field” either by way of de novo fact finding or by way of independent constitutional judgment. It is the trial judge who enjoys the immeasurably superior vantage point to sense the mood and to catch the tone of the entire proceeding. Batson voiced its confidence in and deference to the trial judge’s decision, at 476 U.S. 97 at 106 S.Ct. 1723 : “We have confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor’s use of peremptory challenges creates a prima facie case of discrimination against black jurors.” It is the trial judge who is in close touch with the racial mood, be it harmonious or be it tense, of the local community, either as a general proposition or with respect to a given trial of high local interest.

The trial judge is positioned to observe the racial composition of the venire panel as a whole, a vital fact frequently not committed to the record and, therefore, unknowable to the reviewing court. The trial judge is able to get the “feel” of the opposing advocates — to watch their demeanor, to hear their intonations, and to spot their frequently unspoken purposes. It is a total process in which nonverbal communication may often ³²⁹ be far more revealing than the formal words on the typewritten page. The standard of review, therefore, is perforce that of whether the trial judge’s fact finding as to this threshold showing is clearly erroneous.

(Or, perhaps, since it is the ruling itself which is being reviewed, the standard of review is the quantitatively indistinguishable clear abuse of discretion standard.) Whichever the standard, Stanley v. State, at 313 Md. 60 , 542 A.2d 1267 , echoed the Supreme Court’s confidence in the trial judge’s special competence in monitoring the voir dire: “The Supreme Court was confident that trial judges, experienced in supervising voir dire, would ‘be able to decide if the circumstances concerning the prosecutor’s use of peremptory challenges creates a prima facie case of discrimination against black jurors.’ ” See also Tolbert v. State, 315 Md. 13, 16 , 553 A.2d 228 (1989). That the nature of the role of the trial judge on this issue is essentially a fact-finding one was confirmed by Stanley v. State’s holding, at 313 Md. 61 , 542 A.2d 1267 , based upon Batson and the Title VII cases, that the defendant’s burden on this issue of racial discrimination is one of ultimate persuasion: “Further examination of Batson and the Title VII cases has convinced us that the defendant has the ultimate burden of persuading the court there has been intentional racial discrimination.” In referring specifically to the initial burden of establishing to the satisfaction of the trial judge the existence of a prima facie case, Stanley v. State pointed out that the appropriate burden of persuasion was that of a preponderance of the evidence, saying at 313 Md. 71 , 542 A.2d 1267 : “It simply requires the defendant to prove by a preponderance of the evidence that the peremptory challenges were exercised in a way that shifts the burden of production to the State and requires it to respond to the rebut- ³³⁰ table presumption of purposeful discrimination that arises under certain circumstances.” 2 In the Stanley opinion’s companion case of Trice v. State, the Court of Appeals had the benefit of the trial judge’s finding as to the existence of a prima facie case and affirmed that finding, at 313 Md. 83 -84, 542 A.2d 1267 , as being not clearly erroneous: “Judge Buchanan, when the defense objection was raised, asked the State to explain the reasons for its strikes. This was at least an implied finding of the existence of a prima facie case of discrimination____ Nor can we say that Judge Buchanan’s implicit finding was clearly erroneous.” (Citations omitted). Mathematical Proof of a Pattern of Discrimination The appellant is asking us, as a matter of law, to overturn Judge Johnson’s fact finding as clearly erroneous (or his ruling as a clear abuse of discretion), solely on the mathematical basis that seven out of ten of the prosecutor’s peremptory challenges were directed at black prospective jurors.

The appellant argues not that this is sufficient proof of a prima facie case, but that it is compelling proof. 3 ³³¹ The appellant’s thesis is that the use of “70% of the prosecutor’s peremptories” against members of a given group is ipso facto proof of a pattern of discrimination, that such a finding is not merely permitted but compelled. 4 In certain circumstances, of course, it might be, but it is by no means necessarily so. The problem with her mathematical argument is that the appellant has given us one term of an ostensible proportion without giving us the other. There is a critical difference between a pattern in the abstract and a pattern of discrimination. To extrapolate a pattern of discrimination solely from a statistical analysis of the peremptory challenges would require not only knowledge of the percentage of strikes used against a given group but also knowledge of the percentage that that group represented of the total venire panel — or, more precisely, of the percentage that that group represented of the prospective jurors actually called forward to be accepted or challenged.

A pattern of suggested discrimination would emerge from the disproportionately heavy employment of peremptories against a target group out of line with what ³³² random selection would predict, given the statistical makeup of the venire panel as a whole, would happen to the group simply by the law of averages. If, for instance, a venire panel were 100 per cent white, every peremptory would be directed at a member of the white race, but no pattern of racial discrimination would be indicated. Conversely, if an entire venire panel were black, the 100 per cent employment of peremptories against blacks would not suggest a pattern of racial discrimination. It would suggest a pattern, to be sure, but self-evidently not a pattern of racial discrimination.

In the intermediate ranges, if 70 per cent of the peremptories were directed against members of a group that represented only 20 per cent of the total panel, that percentage of peremptory strikes would, standing alone, suggest a pattern of discrimination. If, on the other hand, 70 percent of the peremptory challenges were used against members of a group that represented 90 per cent of the total panel, that would be a contraindication of discrimination. Indeed, it would indicate that 30 per cent of the challenges had been used against some other racial group that represented only 10 per cent of the available targets. If, finally, 70 per cent of the peremptories were directed at members of a group that represented 70 per cent of the total panel, that would, standing alone, indicate nothing other than statistically predictable random selection at work.

We cannot assess whether there has been a disproportionate use of peremptories so as to give rise to an inference of discrimination unless we have two numbers or two percentages to work with. Proportionality by definition is the relationship between two quantities, not one in a vacuum. 5 There are, of course, other ways of demonstrating a prima ³³³ facie case of the racially discriminatory use of peremptory challenges. We are concerned here, however, only with the probative impact