Booze v. State

WILNER, Judge. The question put to us by petitioner, Donald Booze, is whether a defendant in a criminal case who has elected a jury trial is entitled either by due process or by Maryland law to the right of “informed and comparative rejection” of prospective jurors. We need not answer such a broad question. We shall conclude that what the Circuit Court for Baltimore City did in this case violated the clear mandate of Maryland Rule 4-312(g) and, because that violation was prejudicial to Booze, we shall reverse the judgment of the Court of Special Appeals, which affirmed the judgment of the circuit court.

BACKGROUND (1) Petitioner and a confederate, Alan Snead, were charged with the murders of Antonio Henderson and Isaac Durant. In November, 1991, they were tried together in the Circuit Court for Baltimore City and convicted on two counts of first degree murder and unlawful use of a handgun. Those judgments were reversed on appeal. See Booze v. State, 94 Md.App. 331 , 617 A.2d 642 (1993), aff'd, State v. Booze, 334 Md. 64 , 637 A.2d 1214 (1994).

The problem in that case was that the State was allowed to hold back an important witness until after the defense had been presented. This Court and the Court of Special Appeals held that, under the circumstances, it was an abuse of discretion for the court to have allowed the State to reopen its case for that purpose. ⁵⁴ The case returned to the circuit court for retrial, and, once again, the State decided to try Booze and Snead jointly. After a 10-day trial extending from April 14 through April 28, 1995, each was again convicted of two counts of first degree murder and one count of felonious use of a handgun, and each received two consecutive life sentences for the murders and a consecutive 10-year sentence for the handgun violation. In their appeal to the Court of Special Appeals, Booze and Snead presented a number of issues, headed by the complaint that the State had been allowed to exercise peremptory strikes against two African-American jurors in violation of Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986).

The appellate court concluded that, with respect to one of the jurors, the trial court had failed to afford the State an opportunity to tender a race-neutral reason for its strike, but that only Snead had objected to that strike. Finding no merit in any of the other complaints made by the appellants, it vacated the judgments against Snead and remanded for further proceedings on the Batson issue as to him but affirmed the judgments against Booze. Booze v. State, 111 Md.App. 208 , 681 A.2d 534 (1996). We granted Booze’s petition for certiorari to consider one of the other issues raised by him— whether due process or Maryland Rule 4-312(g) was violated by the court’s insistence that the parties commence the exercise of peremptory strikes when there was an insufficient venire .to allow all of the strikes to be exercised and a sixteen-person jury (twelve jurors and four alternates) to be selected.

(2) The case on remand was called for trial at about 11:25 on the morning of April 14, 1995, which happened to be Good Friday. Because the defendants were facing life imprisonment if convicted of the murder charges, they were each entitled to 20 peremptory challenges and, because there were two defendants, the State was also entitled to 20. Md. Rule ⁵⁵ 4-313(a)(2). 1 The initial venire consisted of 94 persons. The court commenced voir dire examination by asking whether any of the jurors knew about the case or knew counsel, and, based on positive responses to those questions, five jurors were eventually excused, leaving 89 in the venire.

Notwithstanding concerns expressed both by defense counsel and the prosecutor as to the timing of the question, the judge then insisted on asking whether any member of the panel knew of “any reason whatsoever, including religious reasons, or not being able to judge individuals or cases, any reason from the beginning of the world until right now why you cannot be fair.” Twenty-nine persons, including two who would be excused based on familiarity with counsel or the facts of the case, responded in the affirmative, at which point the court recessed until 2:39 p.m. 2 ⁵⁶ When court resumed, the judge expressed surprise that so many persons had responded to the general question. Booze’s attorney noted that, if those people had to be excused, there might not be enough prospective jurors left to select a jury, given the 60 (actually 84) peremptory strikes that were available. Both defense counsel added that, under the doctrine of comparative rejection, which they believed had been accepted by the Maryland courts, they were entitled to select the jury from one panel. Counsel for Booze, in particular, asked that, if the panel remaining after voir dire was insufficient, the court dismiss the panel and start again with a new panel “so that we can look at the next panel with the same eyes that we had to look at these ones, and judge the next panel the same way we have to judge these ones.” The court dismissed the notion of comparative rejection out of hand, concluding that it was “no good until the Court of Appeals tells me it’s good____” At 2:49 p.m., the jury was brought back into the courtroom and asked further voir dire questions.

Three panel members knew potential witnesses. One said he or she would give greater or lesser weight to the testimony of a police officer than to a civilian witness, and 19 said that they or a close relative had been a member of a law enforcement agency. Forty-three said they had been victims of a crime or had been convicted of a crime, and 86 sought release on hardship grounds, notwithstanding that, when asked by a juror to define “hardship,” the court declined to do so. The court then went until 5:27 p.m. conducting individual voir dire at the bench with respect to those persons who had given an affirm a ⁵⁷ tive answer, excusing 44 persons for cause and refusing to excuse 22 others.

During this examination, the court was informed that, because it was Good Friday, the court offices had closed at 2:45, and that jurors who were excused should be released rather than returned to the jury assembly room. The prosecutor had asked to be excused at 5:45 because that was when her “ride” would be ready. At the conclusion of the individual voir dire, the prosecutor observed that, with the strikes for cause, “we don’t have enough of a pool.” Defense counsel agreed, there being 45 jurors left in the pool and the parties having a total of 60 peremptory strikes (84 if alternates are taken into account). Nonetheless, the court insisted on commencing the peremptory challenge process.

That process went on for another hour, until 6:28 p.m. Ac 5:54, after defense counsel had stricken 17 jurors between them and the State had stricken five, a Batson challenge was made with respect to the State’s strikes, and several minutes were consumed with resolving that issue. After some additional strikes, another Batson challenge was made and resolved. Finally, at 6:15 p.m., the panel was exhausted with only 10 jurors selected.

The State had used eight peremptory challenges, Snead had used 16, and Booze had used ten. Noting that “the courthouse for all practical purposes closed at three,” the court stated that jury selection would resume on Monday. Defense counsel once again complained about the loss of comparative rejection. When trial resumed on Monday, counsel repeated their objection, pointing out that, if expected to make intelligent choices in exercising peremptory challenges, they needed to observe and have before them the entire panel from which prospective jurors could come and that it was unfair to require them to exercise strikes from a limited panel and then have to face a different panel having already exhausted some of their strikes.

Counsel for Booze noted that he had been required to exercise 10 of his 20 strikes without ever having seen or been able to voir dire the new panel, and he asked that those 10 strikes be restored—that he be given 20 peremptory challenges to exercise against the new panel. The court rejected ⁵⁸ that request, as it had earlier rejected his request for an entirely new panel, and proceeded with further jury selection. Forty-four new prospective jurors, from a second panel, were sworn and subjected to voir dire. Thirteen were excused for cause.

The jurors who had survived from Friday were then brought into the courtroom, and the peremptory challenge process continued. After the prosecutor used nine of her 12 remaining challenges, Snead used three of the four he had left, and Booze used nine of the ten that he had remaining, a jury of 12 was selected. A third panel was then summoned from which four alternates .were chosen. Booze accepted the jury “[sjubject to prior intentions.” Booze pressed his comparative rejection argument in the Court of Special Appeals, relying principally on two earlier decisions of that court—Spencer v. State, 20 Md.App. 201 , 314 A.2d 727 (1974), and Dean v. State, 46 Md.App. 536 , 420 A.2d 288 (1980), cert. denied, 289 Md. 735 (1981).

The court acknowledged that Dean did indeed support his argument but decided that the case constituted an unwarranted extension of Spencer and therefore overruled it. Although not rejecting entirely the doctrine of comparative rejection, the court held that, in this case, there was no violation of Booze’s rights, in part because he was not “affirmatively misled” in any decision to reject a juror and in part because he did not exhaust the peremptory challenges that he had; when he conditionally accepted the jury, prior to the selection of alternates, he still had one challenge unused. Booze v. State, supra, 111 Md. App. at 231-32 , 681 A.2d at 545-46 . DISCUSSION Peremptory Challenges And Comparative Rejection As we indicated at the outset, we shall decide this case under the plain wording of Rule 4-312(g), which states: “Before the exercise of peremptory challenges, the court shall designate from the jury list those jurors who have qualified after examination.

The number designated shall be sufficient to provide the number of jurors and alternates ⁵⁹ to be sworn after allowing for the exercise of peremptory challenges pursuant to Rule 4-313. The court shall at the same time prescribe the order to be followed in selecting the jurors and alternate jurors from the list.” (Emphasis added). Rule 4-312(g) sets forth a clear and required procedure that simply was not followed in this case. It directs the court to provide for the parties a list of jurors who have survived challenges for cause, to ensure that the list is sufficiently large to permit a jury (and alternates) to be selected after allowing for the exercise of peremptory challenges, and to provide that list “[bjefore the exercise of peremptory challenges.” There is nothing arcane or ambiguous about that direction, and, as an examination of its history and development will reveal, it has an important purpose.

The right of both the defendant and the Government to challenge prospective jurors without assigning any reason is an ancient one, dating back, in England, to the Thirteenth Century. As Judge Moylan noted in Spencer v. State, supra, 20 Md.App. at 202 , 314 A.2d at 728 , there are references to the practice in the writings of Bracton and Britton. The first statute on the subject, enacted in 1305 ( 33 Edw. 1 , Stat. 4), abrogated the right of the Crown to peremptory challenges and limited those available to the defendant to 35. In 1533, that number was reduced to 20, except in cases of treason.

See, in general, Turpin v. State, 55 Md. 462, 464-465 (1880); Spencer v. State, supra, 20 Md.App. 201 , 314 A.2d 727 ; also 1 Julian J. Alexander, British Statutes in Force in Maryland, 212-14 (Ward Baldwin Coe ed., M. Curlander 2d ed. 1912). 3 ⁶⁰ Thus it was that, when Maryland was founded as a colony, the only peremptory challenges were those allowed to the defendant—35 in cases of treason and 20 in other felony cases. The defendant’s right to 20 challenges in non-treason felony cases was referred to in several statutes enacted by the Provincial Assembly (see Acts of 1737, ch. 2; Acts of 1744, ch. 20; Acts of 1751, ch. 14) and was expressly conferred in the first post-Revolutionary codification of the State criminal law and procedure in 1809. Acts of 1809, ch. 138, § 13. The 1809 statute afforded a defendant 20 peremptory challenges in capital and serious felony cases.

In a continuation of the English practice, no provision was made for any peremptory challenges by the State. It was not until 1860 that the State was allowed peremptory challenges in criminal cases, and then only in Baltimore City, where it was allowed five. See Acts of 1860, ch. 308, § 15. In 1872, the State became entitled, in all prosecutions in which the defendant had a right to 20 challenges, to four peremptory challenges.

Acts of 1872, ch. 40, § 15. Except for amendments increasing the number of challenges allowed to the State to 10 and expansion of the right to 20 challenges to any case in which the defendant was facing imprisonment in the penitentiary, that statute remained intact until it was repealed in 1963. A number of cases arose during those early years regarding the function of peremptory challenges and the method of exercising them. One of the earliest, Burk v. State, 2 H. & J. 426 (1809), touched obliquely on the issue now before us, although the issue was not raised in the context of any articulated argument of comparative rejection.

Burk, being charged with rape, was entitled to 20 peremptory challenges. The initial panel consisted of 24 persons; nine were seated, and 15 were peremptorily excused by Burk. On the State’s ⁶¹ motion, and without objection from Burk, the court ordered the sheriff to summon only three additional jurors, two of whom were seated and one challenged. Without objection, the sheriff then summoned one additional juror, who was seated.

On appeal from his conviction, Burk complained that, because he had five peremptory challenges remaining after the 24-member panel was exhausted, the sheriff should have summoned at least eight additional jurors the first time and, as he still had four challenges left after the three additional jurors were exhausted, the sheriff should have summoned five the second time. This Court found Burk’s argument “unsupported by authority.” Id. at 427 . Our predecessors acknowledged that the judge, if he wished, could have summoned a larger number of prospective jurors, to prevent any delay that might occur if the defendant struck a juror, and that he may well have done so had such a request been made, but the Court made clear that, apart from the lack of any objection, there was no requirement in any event that the call be sufficient “to supply the deficiency, after the party has completed his challenges.” Id. at 428 . The 1809 statute drew a distinction, with respect to the summoning of jurors, between cases in which the defendant had a right to peremptory challenges and those in which there was no such right.

Section 13, which provided for the 20 peremptory challenges, said nothing about how many jurors were to be summoned or how the challenges were to be exercised. Section 14, on the other hand, provided that, in cases where there was no right of peremptory challenge, the clerk was to summon 20 jurors and write their names on two lists, one for each party. Each party was then to strike up to four names from the list. If each struck four, the remaining 12 would constitute the jury; if less than eight names were stricken, the clerk would make the additional strikes to reduce the list to 12.

The law allowed the parties, by mutual consent, to dispense with the calling of 20 jurors and proceed in ⁶² accordance with the prior practice. 4 Although the four strikes allowed to each party were not regarded as peremptory strikes, it would seem that they served the same purpose, in that no explanation was required to be given for them. That dichotomy remained part of the Maryland statutory law until 1963. In Turpin v. State, supra, 55 Md. 462 , which arose after the State acquired the right to four peremptory challenges, the defendant complained that, when a juror was called from the panel, the court insisted that he exercise his peremptory challenge first, before calling upon the State to exercise its challenge. Turpin argued that that practice improperly allowed the State to deny him jurors of his choice.

Based largely on English precedent, the views of Justice Story announced in U.S. v. Marchant, 25 U.S. 480 , 6 L.Ed. 700 , 12 Wheat. 480 (1827), and practice in Maryland and in other American States, this Court rejected that argument, concluding that the defendant’s right of peremptory challenge is “not a right to select the jurors, but simply to reject such as he may consider objectionable.” Turpin, supra, at 469 . See also Rogers v. State, 89 Md. 424 , 43 A. 922 (1899). By 1961, the statutory law had evolved to the point that, in a case in which a defendant was subject to a penalty of death or confinement in the penitentiary, the defendant was entitled to 20 peremptory challenges and the State was entitled to 10 for each such defendant. In any other case, neither party had a right to peremptory challenges, as such, although, as explained above, each was entitled to strike four names from a list of 20 without explanation.

See Maryland Code (1957), Article 51, §§ 18 and 24. In 1961, this Court revised the rules dealing with criminal procedure and, as part of that revision, ⁶³ modified the then-current statutory provisions dealing with peremptory challenges. In Rule 746, we retained the right of the defendant to 20 challenges, and of the State to 10 for each defendant, in cases where the defendant was subject to a penalty of death or confinement in the penitentiary, but we revised what was then § 18 of Article 51 to provide for four peremptory challenges for each side in a non-capital, non-penitentiary case. That conversion of the earlier practice of striking four names from the list into actual peremptory challenges was significant to the extent that, in §§ b. and c. of the rule, we provided that, at the defendant’s election, peremptory challenges would be made alternately, beginning with the State (rather than simultaneously from separate, but identical lists) and that a peremptory challenge may be exercised as a matter of right until the time the jury was sworn. 5 In 1963, the General Assembly acquiesced in the changes made by Rule 746 by modifying § 18 and” repealing § 24 of Article 51.

Section 18 was amended in two relevant respects. First, the Legislature recognized the right of four peremptory challenges in eases not involving death or confinement in the penitentiary and directed the clerk, in those cases, to continue to draw 20 names so that the parties could each exercise their four challenges in accordance with the rule. In the other cases, where 20 and 10 challenges were permitted, the law required that “such additional names shall be added to the panel of petit jurors as may be necessary to enable the parties to exercise their right of peremptory challenge in accordance with Rule 746....” Acts of 1963, ch. 558, § 11; Md.Code (1957, 1964 RepLVol.), Art. 51, § 18. With the enactment of the Courts and Judicial Proceedings Article in 1973, as part of the Code Revision process, that provision was consolidated as § 8-301(c) of the new article, to provide that “[t]he clerk of ⁶⁴ the court shall provide a sufficient number of prospective jurors to allow the parties to exercise the peremptory challenges permitted by this section or Rule 746.” Upon the promulgation of Rule 746 and the conforming statutory amendments, both parties had the right to exercise peremptory challenges in all criminal cases triable before a jury, the number depending only on whether the defendant was facing death or incarceration in the penitentiary.

Only three matters of procedure were dealt with, however—the statutory direction that the clerk provide a sufficient number of prospective jurors to allow the parties to make their challenges and the provisions in the rule that, at the defendant’s request, the challenges would be made alternately and that a juror could be peremptorily challenged until the jury was sworn. In 1971, we modified Rule 746 to reduce to four the number of peremptory challenges when the defendant was facing less than 20 years in prison. That was the construct in effect when, in 1974, the Court of Special Appeals decided Spencer v. State, supra, 20 Md.App. 201 , 314 A.2d 727 . The defendant in that case was entitled to 20 peremptory challenges and the State was entitled to 10.

The parties were presented with three separate lists, containing in the aggregate 50 prospective jurors, all of whom remained in the pool after voir dire examination. Beginning with the first list, the clerk called the names of the jurors in the order they appeared on the