Ball v. Martin

CATHELL, Judge. Marjorie Ball appeals from a judgment entered after a verdict by a jury in the Circuit Court for Howard County in a case arising out of a motor vehicle accident. 1 At the time of the accident, appellant was a passenger in a car driven by her sister, Catherine Martin, now deceased. Appellant brought this suit, to recover for injuries sustained in the accident, against the Estate of Catherine Martin, ie., James Martin, Personal Representative of the Estate of Catherine Martin, appellee. Appellant presents four questions: 1.

Did the trial court err in ... failing to provide Appellant with a proper hearing regarding her Batson [2] challenge which challenged Appellee’s racially discriminatory peremptory strike of the only African[ ] American juror ⁴³⁹ on the panel of prospective jurors, in overruling her Batson challenge and in failing to empanel a new jury? 2. Did the trial court err in failing to provide Appellant a proper hearing regarding her Batson challenge which challenged Appellee’s gender discriminatory peremptory strike[s] of three women on the panel of prospective jurors, in overruling her Batson challenge and in failing to empanel a new jury? 3. Did the trial court err in refusing to preclude the mentioning of or evidence of the fact that Appellant was suing the estate of her late sister? 4. Did the trial court abuse its discretion by restricting Appellant’s cross[-]examination of Appellee’s expert witness in regards to credibility, bias and prejudice? 1 and 2 We shall address questions 1 and 2 together.

The Racial Issue During the seating of the jury, after the parties had exercised their peremptory strikes, appellant’s counsel approached the bench and the following exchange occurred: MR. ORMAN [APPELLANT’S ATTORNEY]: I’m going to object to defense counsel striking Juror Number Thirteen. That was the only black juror—prospective juror, and who I assert was stricken solely because of her race. And I wanted to put this on the record.

THE COURT: Okay. Counsel, any response? MR. NOBLE [APPELLEE’S ATTORNEY]: She was not stricken because of her race, Your Honor.

There were other reasons, good and valid, having to do with her spouse’s employment, her employment and other matters. THE COURT: Home improvement is her spouse’s employment. What’s that got to do with the case? MR.

NOBLE: I didn’t want a builder. THE COURT: Why? MR. NOBLE: Those are my reasons, Your Honor. ⁴⁴⁰ THE COURT: That you didn’t want a builder[.] ...

This is an auto tort case. MR. NOBLE: And her age ... THE COURT: He indicates he hadn’t struck her for race.

MR. ORMAN:—Excuse me—he has to state it on the record, satisfactory to the Court ... and not just saying because he’s a home builder and because she’s a secretary. He has to state on the record exactly why he struck her and why it is not involved in race---- THE COURT: And your basis is her spouse is a home improvement— MR. NOBLE: That’s it; that’s it____ It’s a combination of things, Your Honor.

Secretary, spouse in home improvement, age, and—and her appearance ... It’s not race-related; there’s an issue of ... Well, that’s my reasons. THE COURT: Okay; it’s noted.

I’ll deny it---- MR. ORMAN: I’m going to put one more thing on the record.... MR. ORMAN: ... [A]ll of his strikes were of women. [Emphasis added.] As we shall discuss infra, the trial court never made any ruling on the issue of gender-based discrimination.

Appellee argues in his brief, inter alia: [T]here was no proof of the make up of the panel or that prospective juror number thirteen was the only African American juror on the panel. ... Appellant asserts that the necessary inference is raised because Appellee removed the only African American from the prospective jury panel. However, no proffer was made that juror thirteen was the only African American. ⁴⁴¹ Appellee is mistaken. Appellant, as can be seen from the above colloquy, did assert that juror number thirteen was the only prospective juror who was African American.

Under Mejia v. State, 328 Md. 522, 539 , 616 A.2d 356 (1992), that is sufficient to establish a prima facie showing of that fact absent disagreement by appellee at trial. Mejia is one of the Court of Appeals’s more recent comprehensive opinions addressing Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986). In Mejia v. State, 90 Md.App. 31, 46 , 599 A.2d 1207 , vacated, 328 Md. 522 , 616 A.2d 356 (1992), we noted: Once again, appellant’s counsel boldly and broadly proclaims that except for Peter Estrada, the rest of the jury panel was non-Hispanic.... Except for counsel’s self-serving ipse dixit in this regard, however, there was no basis for such a conclusion with respect to the rest of the panel.

The Court of Appeals resolved this issue differently, first quoting from the trial transcript portions of the colloquy that referenced the Batson problem: [The Petitioner’s Counsel]: ... We have an Hispanic defendant charged with raping a non-Hispanic or white woman. There is only one Hispanic person on the jury panel. The State has used its strike to strike that person. ... [A] racially motivated strike that is taking out the only Hispanic juror in a panel of 50 people. 328 Md. at 528 , 616 A.2d 356 (footnote omitted).

The Court of Appeals then stated: When challenging the State’s use of its peremptories to strike Mr. Estrada, the petitioner stated explicitly what previously may have been only implicit, that he was Hispanic and that the State was striking the only person on the venire identified by anyone as Hispanic. The record is clear; at no time ... did the prosecutor voice the view that there really was no “Hispanic problem,” that the petitioner was not Hispanic, that Mr. Estrada did not have an Hispanic background, or that other panel members did, or may have.... Not only was the ruling ⁴⁴² made before the State offered an explanation for striking Mr. Estrada, but it was made without affording the State the opportunity to do so. Id. at 528-29 , 616 A.2d 356 .

The Court held: When ... a party states, as a fact, his or her conclusion concerning the composition of the venire or that a particular venire person is a member of a group ... and, the other side ... does not challenge that assertion, the fact will be deemed established. Id. at 535 , 616 A.2d 356 . Thus, by applying Mejia to the case sub judice, we find no basis to conclude other than that juror number thirteen was the only African American on the venire. Appellee has also proffered: “Appellant failed to request a hearing on the matter of racial discrimination.” The procedure used below was sufficient, and the trial court in fact did hear and resolve the issue.

Appellant argues that it did so improperly. As will be seen from the cases we shall hereafter discuss, appellant met her burden of presenting a prima facie case of discrimination under Batson by appellee’s use of his peremptory challenges. We must determine whether appellee thereafter satisfied his burden of showing that his exercise of strikes was nondiscriminatory, i.e., neutral. We then must determine whether the trial court’s finding that appellant did not meet the ultimate burden of proving that appellee’s strikes were improperly discriminatory was correct.

But first we discuss Batson and its progeny—a series of cases leading from the strikes of prosecutors in criminal cases to the use of strikes for discriminatory purposes by any party in any case, emphasizing, as we believe the earlier cases have done, the right of prospective jurors not to be discriminated against in the jury selection process and emphasizing, as we believe the later cases have done, the deference an appellate court must afford the trial court’s findings in regard to the discriminatory or nondiscriminatory character of the strikes in question. Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986), a decision in which the Supreme Court filed four ⁴⁴³ concurring and two dissenting opinions in addition to the 7/2 majority opinion, involved a prosecutor’s striking of African American jurors in a criminal case in which the defendant was also African American. As is often overlooked, Batson expressly “reaffirmed” Strauder v. West Virginia, 10 Otto 303 , 100 U.S. 303 , 25 L.Ed. 664 (1880). Thus, we briefly consider Strauder, especially in regard to the rights of venire persons to serve on petite juries.

When Strauder, an African American man, was tried for murder in West Virginia, the laws of that state provided that no “colored man” was eligible to serve on a jury. The Strauder Court identified the controlling question before it as: Whether by the Constitution and laws of the United States, every citizen ... has a right to a trial of an indictment ... by a jury selected and impaneled without discrimination against his race ... because of race.... Id. at 305, 100 U.S. at 305 , 25 L.Ed. 664 . Turning to the Fourteenth Amendment, the Court noted: The true spirit and meaning of the Amendments, as we said in the Slaughter-House Cases, 16 Wall., 36 , 21 L.ed. 394, cannot be understood without keeping in view the history of the times when they were adopted, and the general objects they plainly sought to accomplish.... [I]t required little knowledge of human nature to anticipate that those ... when suddenly raised to the rank of citizenship, be looked upon with jealousy and positive dislike, and that state laws might be enacted ... to perpetuate the distinctions that had before existed.... [The Fourteenth Amendment] was designed to assure to the colored race the enjoyment of all the civil rights that under the law are enjoyed by [the] white [race]....

If this is the spirit and meaning of the Amendment, whether it means more or not, it is to be construed liberally, to carry out the purposes of its framers.... ... [S]uch a discrimination [the West Virginia statute] ought not to be doubted. Nor would it be if the persons excluded by it were white men.... The very fact that ⁴⁴⁴ colored people are singled out and expressly denied by a statute all right to participate in the administration of the law, as jurors, because of their color ... is practically a brand upon them, affixed by the law ... and a stimulant to that race prejudice which is an impediment to securing to individuals of the race that equal justice which the law aims to secure to all others. ... Is not protection of life and liberty against race or color prejudice, a right, a legal right, under the constitutional Amendment? [Emphasis added.] Id. at 306-07, 100 U.S. at 306-07 , 25 L.Ed. 664 .

In Batson , the Supreme Court, explaining Strauder, reaffirmed the importance, not only to the rights of criminal defendants as to jury composition, but also as to the rights of classes of citizens to serve as jurors: “Exclusion of black citizens from service as jurors constitutes a primary example of the evil the Fourteenth Amendment was designed to cure.” Batson, 476 U.S. at 85 , 106 S.Ct. at 1716 . Racial discrimination in selection of jurors harms not only the accused whose life or liberty they are summoned to try. Competence to serve as a juror ultimately depends on an assessment of individual qualifications and ability impartially to consider evidence presented at a trial. A person’s race simply “is unrelated to his fitness as a juror.” As long ago as Strauder, therefore, the Court recognized that by denying a person participation injury service on account of his race, the State unconstitutionally discriminated against the excluded juror.

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 of our system of justice. Id. at 87, 106 S.Ct. at 1718 (emphasis added, citation omitted). The Batson Court then rejected the prior Swain v. Alabama, 380 U.S. 202 , 85 S.Ct. 824 , 13 L.Ed.2d 759 (1965), ⁴⁴⁵ position that “proof of repeated striking of blacks over a number of cases was necessary to establish a violation,” 476 U.S. at 92 , 106 S.Ct. at 1720 , because Swain had made it virtually impossible for a defendant to challenge a prosecutor’s use of peremptory challenges.

The Court then noted that a prima facie case of purposeful discrimination would be established if a defendant demonstrated “that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” Id. at 94, 106 S.Ct. at 1721 . Thereafter, “the burden shifts to the State to explain adequately the racial exclusion.” Id. The majority opinion then set out the proper procedure to be used when the exercise of peremptory strikes is being challenged: Once a prima facie case has been established, the burden shifts to the State to come forward with a neutral explanation ... the prosecutor’s explanation need not rise to the level justifying exercise of a challenge for cause. But the prosecutor may not rebut ... by stating merely that he challenged ... on the assumption—or his intuitive judgment—that they would be partial to the defendant because of their shared race....

The prosecutor therefore must articulate a neutral explanation related to the particular case to be tried. Id. at 97-98 , 106 S.Ct. at 1723-24 (footnote omitted). 3 Edmonson v. Leesville Concrete Co., 500 U.S. 614 , 111 S.Ct. 2077 , 114 L.Ed.2d 660 (1991), extended Batson to civil trials. Leesville, during voir dire, used two of its three peremptory strikes to remove African Americans from the prospective jury. Edmonson moved that Leesville articulate a race-neutral reason for its strikes.

His request was denied on the ground that Batson did not apply to civil proceedings. A panel of the Fifth Circuit Court of Appeals initially reversed, making Batson applicable to civil proceedings. The entire ⁴⁴⁶ Fifth Circuit, en banc, then reversed the panel and affirmed the trial court. The Supreme Court ultimately reversed, extending Batson to civil trials.

In so doing, the Supreme Court discussed several cases to emphasize that it had “made clear that a prosecutor’s race-based peremptory challenge violates the equal protection rights of those excluded from jury service.” Id. at 618, 111 S.Ct. at 2081 (emphasis added). “A defendant may raise the excluded jurors’ equal protection rights.” Id. The Court opined further that “discrimination on the basis of race ... in a civil proceeding harms the excluded juror no less than discrimination in a criminal trial.” Id. at 619 , 111 S.Ct. at 2082 (emphasis added). In J.E.B. v. Alabama ex rel. T.B., — U.S. -, 114 S.Ct. 1419 , 128 L.Ed.2d 89 (1994), a putative father in a paternity case questioned the State’s use of peremptory challenges to exclude men from the jury.

Justice Blackmun concisely summarized the conclusions from Batson and its offspring: Since Batson , we have reaffirmed repeatedly our commitment to jury selection procedures that are fair and nondiscriminatory. We have recognized that whether the trial is criminal or civil, potential jurors, as well as litigants, have an equal protection right to jury selection procedures that are free from state-sponsored group stereotypes rooted in, and reflective of, historical prejudice. Although premised on equal protection principles that apply equally to gender discrimination, all our recent cases ... involved alleged racial discrimination.... Today we are faced with ... whether the Equal Protection Clause forbids intentional discrimination on the basis of gender---We hold that gender, like race, is an unconstitutional proxy for juror competence and impartiality.

Id. at -, 114 S.Ct. at 1421 (citations omitted). Interestingly, in J.E.B., while the State had exercised nine of its ten challenges to strike male jurors, defendant (much as appellee argues that appellant did in the case sub judice) used all but one of his strikes to remove female jurors. Again, in J.E.B., ⁴⁴⁷ the Court stressed its concern over the rights of jurors to serve: In recent cases we have emphasized that individual jurors themselves have a right to nondiscriminatory jury selection procedures.... All persons ... have the right not to be excluded summarily because of discriminatory and stereotypical presumptions that reflect and reinforce patterns of historical discrimination....

It denigrates the dignity of the excluded juror, and, for a woman, reinvokes a history of exclusion from political participation. Id. at -, 114 S.Ct. at 1428 (footnotes omitted and emphasis added). 4 In Maryland, recent cases addressing Batson include Brogden v. State, 102 Md.App. 423 , 649 A.2d 1196 (1994), in which the trial court sua sponte raised the issue that the defense had used eight of its ten peremptory strikes to exclude white jurors. The circuit court then announced that it had found a prima facie case of racial discrimination and directed the defense to respond. The defense counsel stated that the pattern of defensive strikes was coincidental, and stated that they were based on the defendant’s “comfort” with a juror, as well as a juror’s age, occupation, and area of residence.

Id. at 427 , 649 A.2d 1196 . The trial court rejected the defendant’s explanation and voided the jury selection. Ultimately, the defendant was tried over his objection by a separately impanelled jury. We affirmed the trial court’s striking of the first jury because it had found that the defendant used strikes for racial reasons, noting: “[T]t is clear that jury selection affects potential jurors and the entire community.

It reflects upon the integrity of the judicial system as a whole.” Id. at 431 , 649 A.2d 1196 (emphasis added). In affirming, we paid deference to the trial court’s finding. ⁴⁴⁸ The Court of Appeals, in Gilchrist v. State, 340 Md. 606 , 667 A.2d 876 (1995) adopted the three-step process, first set out by the Supreme Court in Batson , for use by our trial courts when assessing claims that peremptory challenges were being exercised in an impermissibly discriminatory manner. First, the complaining party has the burden of making a prima facie showing that the other party has exercised its peremptory challenges on an impermissibly discriminatory basis, such as race or gender____ Second, once the trial court has determined that the party complaining about the use of the peremptory challenges has established a prima facie case, the burden shifts to the party exercising the peremptory challenges to rebut the prima facie case by offering race-neutral explanations for challenging the excluded jurors.... Finally, the trial court must “determine whether the opponent of the strike has carried his burden of proving purposeful discrimination.” Gilchrist , at 625-26, 667 A.2d at 885 (citations omitted); see also Stanley v. State, 313 Md. 50, 56 , 542 A.2d 1267 (1988).

We recognize that, in Adams v. State, 86 Md.App. 377, 383-84 , 586 A.2d 810 , cert. denied, 323 Md. 33, 591 A.2d 249 (1991), we noted a possible additional step in the process of arriving at a finding that a prima facie case has been established under the factual circumstances therein extant. We noted that the party asserting a Batson violation also had to “show that those facts [i.e., the striking of a person of the defendant’s race] and any other relevant circumstances raise [a rebuttable presumption] that the prosecutor ... exclud[ed] veniremen ... on account of their race.” Id. at 382, 586 A.2d 810 (quoting State v. Gorman, 315 Md. 402, 410 , 554 A.2d 1203 (1989)) (some brackets in original). We distinguished Adams from Stanley, supra, and its companion case, Trice v. State, 310 Md. 695 , 531 A.2d 682 (1987) because, in Adams , only one of several members of a protected class were stricken and the juror at issue was in fact replaced by another juror of the same protected class, whereas, in Stanley and Trice , the only ⁴⁴⁹ member, and thus all members, of a protected class were stricken. 86 Md.App. at 384 , 586 A.2d 810 . The instant case comes within the holdings of Stanley and Trice .

Thus, when all of the members of a protected class are stricken and the objecting party asserts that it was done for improper discriminatory reasons, no further showing of discriminatory purpose need be made in order to establish a prima facie showing. That showing was made in the case sub judice. Having determined that appellant has met her burden of putting forth a prima facie case, we now address whether appellee effectively rebutted it. In doing so, we again note what appellee said and, more important, what he did not say: “She [juror number thirteen] was not stricken because of her race....

I didn’t want a builder.” When asked by the trial court why he did not want a builder, he simply responded, “Those are my reasons, Your Honor.” Later, appellee added as a reason for striking the juror, “and her age.” Then, even later, after the trial court prompted him by exclaiming, “And your basis is her spouse is a home improvement—,” appellee exclaimed, “That’s it; that’s it,” “It’s a combination of things, Your Honor. Secretary, spouse in home improvement, age,” and then added, “and—her appearance.” That is the sum and substance of the reasons given. The reasons proffered by appellee to justiiy striking the only African American prospective juror do not rise to the level of the reasons put forth in Gilchrist. See 340 Md. at 628 , 667 A.2d at 886-87 .

In Gilchrist , however, the Court of Appeals affirmed the trial court’s findings. We are here asked to reverse them. As we shall explain, the deference that is now due a trial court’s findings controls the nature of appellate review when the reasons given are facially neutral. In Gilchrist, supra, the defendant was an African American male charged with the distribution of cocaine and various related counts.

While seating the jury, the defense used seven peremptory challenges to strike white jurors. The circuit court found that the State had made a prima facie case of discrimination and then permitted defense counsel to rebut. ⁴⁵⁰ Two of the jurors challenged by the defendant were crime victims, and a third juror was challenged because the defendant was uncomfortable with the way the juror stared at him. In respect to these three jurors, the court found the defendant’s reasoning to be acceptable. As for the four other strikes, “[w]ith respect to one of the challenged jurors, defense counsel could offer no reasons.

As to [the] three