Bridges v. State

MOYLAN, Judge. The core issue on this appeal can most starkly be set out by posing a hypothetical. Hypothesize a jury selection process in which the attorney for a party (whether the trial be criminal or civil is immaterial; whether the party be on one side of the trial table or the other is equally immaterial) has just exercised his tenth and last peremptory challenge. The attorney for the opposing party objects, claiming that the ten peremptory strikes constitute a pattern of invidious discrimination against 39-year-olds.

In arguing that a pattern has been demonstrated, he points out that each and every one of the prospective jurors who was peremptorily struck was precisely ¹¹⁸ 39 years of age and that the ten strikes, in combination, eliminated every 39-year-old from the jury pool. The trial judge rules that a pattern has, indeed, been established and requests the attorney who exercised the peremptories to offer some explanation. That attorney responds: With all due respect, Your Honor, I am not required to give you an explanation, lest I destroy the peremptory nature of the peremptory challenge. The quality of a challenge as peremptory means not only that I may use it for any purpose I choose, whether you like it or not, but also that I am not required to tell you why I so used it.

As a courtesy to the court, however, I will gratuitously volunteer an explanation even though I am not required to give one. Both my client and I harbor an unabashedly irrational but nonetheless deep-seated detestation of 39-year-olds as a class. Perhaps it is because our ex-spouses were 39 years of age when we divorced them, but that is immaterial. As the word peremptory implies, we need have no reason at all, let alone a good reason, for feeling as we do.

We do not for a moment believe that 39-year-olds could not render a fair and impartial verdict. We simply do not like them and will use every peremptory at our disposal at every chance we get to strike them. Our motive, if you must know, is totally mean-spirited. The issue before us is whether even such a basis for such a use of peremptory challenges would violate any prohibition of either the Constitution of the United States or the Constitution of Maryland.

The appellant, Connie F. Bridges, was convicted by a Baltimore City jury, presided over by Judge Clifton J. Gordy, Jr., of first-degree felony-murder, robbery with a deadly weapon, and conspiracy to commit robbery. On this appeal, she raises the following contentions: 1. That the State unconstitutionally exercised peremptory challenges solely on the basis of age; 2. That the State unconstitutionally exercised peremptory challenges on the basis of race; ¹¹⁹ 3.

That Judge Gordy improperly instructed the jury with respect to the conspiracy charge; 4. That Judge Gordy abused his discretion in denying the appellant’s motion for a mistrial on the grounds of prosecutorial misconduct; and 5. That the evidence was not legally sufficient to support the verdicts. The Objection to the Peremptory Strikes At one point during the jury selection process, defense counsel challenged the prosecutor’s exercise of peremptory strikes by noting that every strike had been against prospective jurors who were Black.

The prosecutor, in an effort to demonstrate to the trial court that she was not striking prospective jurors on the basis of race, responded by stating that “I’m striking everyone around age 30 and under, or trying to.” The prosecutor explained her rationale for striking jurors of that age by noting that the defendant was approximately 30 years of age. Conceding that the explanation offered by the prosecutor was, if true, race-neutral, defense counsel immediately shifted tactics and argued that the explanation offered by the State was itself constitutionally infirm because age, like race and gender, is a consideration that may not serve as a basis for a peremptory strike. The trial court found 1) that the explanation offered by the State was race-neutral and 2) that age-based peremptory strikes had never been ruled unconstitutional. Then, by way of justifying what perhaps needed no justification, Judge Gordy went on to observe that because of the respective ages of the victim and the appellant, the State’s exercise of peremptory challenges had not been for impermissible reasons.

The appellant argues that both the United States Constitution and the Maryland Declaration of Rights prohibit the State from making peremptory strikes on the basis of age. ¹²⁰ The Maryland Constitutional Issue Because the doctrinal basis of the Maryland constitutional challenge is totally distinct from that of the federal constitutional challenge, we will examine first the appellant’s claim that a peremptory challenge based on age somehow violates the Maryland Constitution. Commendably, the appellant has not urged upon us some illusory Maryland analogue to the Equal Protection Clause of the Fourteenth Amendment, such a constitutional provision never having been formally adopted in this State, or some Maryland equivalent of the academically indefensible ipse dixit of Bolling v. Sharpe, 347 U.S. 497 , 74 S.Ct. 693 , 98 L.Ed. 884 (1954). The appellant, rather, grounds her challenge in that portion of Article 21 of the Maryland Declaration of Rights that guarantees an accused in a criminal prosecution the right to trial “by an impartial jury.” The appellant supplements her Article 21 argument by making reference to Md.Code Ann., Cts. & Jud. Proe., §§ 8-102 and 8-103 (1995).

Article 21 guarantees a criminal defendant an impartial jury. The character of a jury as impartial is something quite distinct from the character of a jury as representa-' five of a fair cross-section of the population. Dealing strictly with the constitutionally mandated requirement of impartiality, the Court of Appeals, speaking through Judge Barnes, defined that quality in Bristow v. State, 242 Md. 283, 288-89 , 219 A.2d 33 (1966): Article 21 of the Maryland Declaration of Rights guarantees an accused the right to a trial by an impartial jury. The definition of what constitutes impartial jurors was set out in the early case of Garlitz v. State, 71 Md. 293, 300 , 18 Atl. 39, 41 (1889): “The minds of such men always remain open to the correction of former impressions, and remain entirely impartial, with power to hear and determine upon the real facts of the case, without the least bias in favor of former impressions, whatever they may have been.

And therefore, in our present state of society, all that can be ¹²¹ required of a juror is that he should be without bias or prejudice lor or against the accused, and that his mind is free to hear and impartially consider the evidence, and render a verdict thereon without regard to any former opinion or expression existing in his mind.” This definition was recently reaffirmed and explained in Grammar [Grammer] v. State, 203 Md. 200, 211 , 100 A.2d 257, 261 (1953). Although the federal constitution does not demand the use of jury trials in state criminal proceedings, where a jury is provided, federal due process requires that it be fair and impartial. Before turning to other flaws in the appellant’s argument, it is enough to note that a party claiming that she was denied the right to an impartial jury bears the burden of proving that her jury was, indeed, partial. The appellant in this case has proffered nothing in that regard.

With respect to such an allocation of the burden, we stated clearly in Borman v. State, 1 Md.App. 276, 279 , 229 A.2d 440 (1967): Bias on the part of prospective jurors will never be presumed, and the challenging party bears the burden of presenting facts ... which would give rise to a showing of actual prejudice. See Bristow v. State, 242 Md. 283 [, 219 A.2d 33 ] (1986). (Emphasis supplied). We spoke to the same effect in Jones v. State, 2 Md.App. 429, 431 , 234 A.2d 900 (1967): Conceding the proposition that appellant’s right to an impartial jury is guaranteed by both Article 21 of the Maryland Declaration of Rights, Bristow v. State, 242 Md. 283, 288 [, 219 A.2d 33 ], and the Fourteenth Amendment to the Federal Constitution, Beck v. Washington, 369 U.S. 541 [, 82 S.Ct. 955 , 8 L.Ed.2d 98 ]; Irvin v. Dowd, 366 U.S. 717 [, 81 S.Ct. 1639 , 6 L.Ed.2d 751 ], it is clear that the burden of proving that the jury was in fact not impartial is on the appellant.

(Emphasis supplied). See also Quiles v. State, 4 Md.App, 354, 357, 243 A.2d 661 (1968); Couplin v. State, 37 Md.App. 567 , ¹²² 570-71, 378 A.2d 197 (1977). The appellant has not even made a pretense of shouldering that burden. By way of supplementing her argument based on Article 21 of the Maryland Declaration of Rights, however, the appellant relies in part on Cts. & Jud.

Proc. § 8-103, which provides: A citizen may not be excluded from service as a grand or petit juror in the courts of the State on account of race, color, religion, sex, national origin, or economic status. Quite aside from the fact that § 8-103 deals only with the criteria by which names are selected for the entire jury pool and not with the selection, from that pool, of the actual petit jury that will hear a case, the section by its very terms makes no mention of age. It prohibits the exclusion of jurors from the jury pool for 1) race, 2) color, 3) religion, 4) sex, 5) national origin, or 6) economic status. The statute self-evidently does not pertain to age-based exclusion at any stage of the selection process.

It is, however, through the further supplementation of Article 21’s impartial jury requirement by § 8-102 that the notion emerges that the larger jury pool itself, to be ultimately impartial, must be drawn from a fair cross-section of the population. Section 8-102(a) provides: When a litigant in a court of the State is entitled to trial by a petit jury and when a person accused of a criminal offense is presented to a grand jury, the jury shall be selected at random from a fair cross section of the citizens of the State who reside in the county where the court convenes. In Wilkins v. State, 16 Md.App. 587 , 300 A.2d 411 , aff'd 270 Md. 62 , 310 A.2d 39 (1973), Judge Scanlan analyzed at length for this Court the collective impact of what are now §§ 8-102 and 8-103. 1 The decision of this Court was not simply affirmed but the Court of Appeals expressly adopted Judge Scanlan’s opinion in Wilkins v. State, 270 Md. 62 , 310 A.2d 39 ¹²³ (1973). Judge Scanlan pointed out that it was in 1969 (by Ch. 408 of the Acts of 1969) that “Maryland adopted a uniform and comprehensive statute governing the selection of jurors throughout the subdivisions of the State.” 16 Md.App. at 591 , 300 A.2d 411 .

He went on to explain that this selection process (and its fair cross-section guarantee) applies to the larger governmental mechanism determining eligibility for jury service generally and establishing the mechanism by which persons are called for jury service. His opinion expressly stated that that mandated selection process had no applicability to the ultimate composition of the actual petit jury selected to try a particular case. He explained, 16 Md.App. at 592-93 , 300 A.2d 411 : Article 51, § 1 incorporates the constitutional requirement that a defendant “is entitled to trial by (a) jury ... selected ... from a fair cross section” of the community in which he is being tried. Smith v. Texas, 311 U.S. 128, 130 [, 61 S.Ct. 164, 165 , 85 L.Ed. 84 ] (1940).

It is not necessary, of course, that the jury actually selected be representative of the community. Thiel v. Southern Pacific Co., 328 U.S. 217, 220 [, 66 S.Ct. 984, 985-86 , 90 L.Ed. 1181 ] (1946). However, it is a constitutional mandate that “the source of names of prospective jurors and the selection process be reasonably designed to procure a fair cross section.” The Supreme Court has summarized the basic constitutional prerequisite to be observed in jury selection: “The American tradition of trial by jury, ... necessarily contemplates an impartial jury drawn from a cross-section of the community. Smith v. Texas, 311 U.S. 128, 130 [, 61 S.Ct. 164, 165 , 85 L.Ed. 84 ]; Glasser v. United States, 315 U.S. 60, 85 [, 62 S.Ct. 457, 471-72 , 86 L.Ed. 680 ].

This does not mean, of course, that every jury must contain representatives of all the economic, social, religious, racial, political and geographical groups of the community; frequently such complete representation would be impossible. But it does mean that prospective jurors shall be selected by court officials without systematic and intentional exclusion of any of these groups. ¹²⁴ ... Thiel v. Southern Pacific Co., supra at 220[, 66 S.Ct. at 985-86 ].” (Emphasis supplied). Even on the larger question of official and systematic exclusion from the pool of eligible jurors, however, age has never been held to be a prohibited selection criterion.

In Hunt v. State, 12 Md.App. 286 , 278 A.2d 637 (1971), this Court held that Article 51, §§ 1 and 2 (now Cts. & Jud. Proc. Art. §§ 8-102 and 8-103) did not inhibit the State from systematically excluding from jury service all persons under twenty-five years of age. In Hopkins v. State, 19 Md.App. 414 , 311 A.2d 483 (1973), we held that the same provisions of Maryland law did not prohibit the systematic exclusion from jury service of all persons between eighteen and twenty-one years of age.

Even with respect to classifications that unequivocally may not be used to bar jury service generally, Article 21 never applied the bar to the use of peremptory strikes in the ad hoc selection of a particular petit jury. Indeed, even if peremptory challenges were deliberately used to exclude Blacks from a particular petit jury, something unquestionably unconstitutional under the Equal Protection Clause of the Fourteenth Amendment as implemented by Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986), such a practice would still not violate the fair cross-section requirement of either the Federal Sixth Amendment or Article 21 of the Maryland Declaration of Rights as supplemented by §§ 8-102 and 8-103. It would violate something else but not that. In Lawrence v. State, 51 Md.App. 575, 584 , 444 A.2d 478 (1982), aff'd 295 Md. 557 , 457 A.2d 1127 (1983), we held: Inasmuch as appellant does not contend that the jury pool from which the petit jury was drawn systematically excluded blacks, the use of peremptory challenges to strike blacks from the petit jury was not a violation of Article 21 or 24 of the Maryland Declaration of Rights.

In Quailes v. State, 53 Md.App. 35, 37-38 , 452 A.2d 190 (1982), we looked to the “impartial jury” requirements of both the Federal Sixth Amendment and of Article 21 of the Mary ¹²⁵ land Declaration of Rights and held that the use of peremptory challenges, no matter how otherwise reprehensible, was simply not regulated by those particular constitutional provisions: Nor is the prosecution’s use of its peremptory challenges a violation of appellant’s sixth amendment right to an impartial jury, notwithstanding the Supreme Court’s interpretation of that right in Taylor v. Louisiana, 419 U.S. 5221 , 95 S.Ct. 692 , 42 L.Ed.2d 690 ] (1975), as requiring that the jury be drawn from a representative cross-section of the community. The Court, in construing the constitutionality of the state’s exclusion of women from jury service, emphasized that: “[While] holding that petit juries must be draw from a source fairly representative of the community we impose no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population. Defendants are not entitled to a jury of any particular composition, but the jury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof.” (Citations omitted.) Taylor v. Louisiana, 419 U.S. at 538 [, 95 S.Ct. at 702 ]. There is no contention here, however, that the jury pool systematically excluded a distinctive group, specifically blacks, and thus there was no denial of appellant’s sixth amendment right to an impartial jury.

In Lawrence v. State, 51 Md.App. at 583 [, 444 A.2d 478 ], this Court flatly held that the use of peremptory challenges to strike blacks from the petit jury was not a violation of Articles 21 or 24 of the Maryland Declaration of Rights. (Emphasis supplied). The ultimately dispositive answer to the appellant’s claim that the Maryland Constitution was violated is to be found in the Supreme Court decision of Holland v. Illinois, ¹²⁶ 493 U.S. 474 , 110 S.Ct. 803 , 107 L.Ed.2d 905 (1990), dealing with a federal protection indistinguishable from the Maryland protection. The lists of rights protected by Article 21 of the Maryland Declaration of Rights and the Federal Sixth Amendment are identical.

The wording of the two constitutional provisions is virtually verbatim. Generally speaking, those entire respective packages of rights should be construed in pari materia. Specifically speaking, the verbatim guarantees of “trial by an impartial jury” should indisputably be construed in pari materia. Dorsey v. State, 56 Md.App. 54, 61 , 466 A.2d 546 (1983); Lawrence v. State, 51 Md.App. 575, 583 , 444 A.2d 478 (1982), aff'd 295 Md. 557 , 457 A.2d 1127 (1983); Lanasa v. State, 109 Md. 602, 610 , 71 A. 1058 (1909).

The Holland v. Illinois case came right in the middle of the explosion of Fourteenth Amendment law triggered by Batson v. Kentucky. Significantly, however, Holland chose, unwisely it turned out, to predicate his attack on the State’s use of peremptory challenges against Black prospective jurors exclusively on the Sixth Amendment guarantee of an impartial jury rather than on the Fourteenth Amendment guarantee of equal protection. Under a fact scenario that indisputably represented a patent violation of Batson and the Fourteenth Amendment had such a challenge been raised, the Supreme Court nonetheless affirmed the conviction, holding that the Sixth Amendment simply did not apply to the use of peremptories. One year later, in Powers v. Ohio, 499 U.S. 400 , 111 S.Ct. 1364 , 113 L.Ed.2d 411 (1991), in a fact situation indistinguishable from that in Holland v. Illinois, Powers did prevail by invoking the Fourteenth Amendment, whereas Holland had failed by invoking the Sixth Amendment.

In Holland v. Illinois, the Supreme Court held squarely that the Sixth Amendment’s guarantee of an impartial jury is simply not implicated by the use of peremptory challenges: We reject petitioner’s fundamental thesis that a prosecutor’s use of peremptory challenges to eliminate a distinctive group in the community deprives the defendant of a Sixth Amendment right to the “fair possibility” of a representative jury. ¹²⁷ A prohibition upon the exclusion of cognizable groups through peremptory challenges has no conceivable basis in the text of the Sixth Amendment, is without support in our prior decisions, and would undermine rather than further the constitutional guarantee of an impartial jury. 493 U.S. at 478 , 110 S.Ct. at 806 . Justice Scalia, writing for the Court, explained that historically the unfettered right to use peremptory challenges in a truly peremptory way. had never been deemed incompatible with the right to an impartial jury: But to say that the Sixth Amendment deprives the State of the ability to “stack the deck” in its favor is not to say that each side may not, once a fair hand is dealt, use peremptory challenges to eliminate prospective jurors belonging to groups it believes would unduly favor the other side. Any theory of the Sixth Amendment leading to that result is implausible. The tradition of peremptory challenges for both the prosecution and the accused was already venerable at the time of Blackstone, see 4 W. Blackstone, Commentaries 346-348 (1769), was reflected in a federal statute enacted by the same Congress that proposed the Bill of Rights, see Act of Apr. 30, 1790, ch 9, § 30, 1 Stat 119, was recognized in an opinion by Justice Story to be part of the common law of the United States and has endured through two centuries in all the States.

The constitutional phrase “impartial jury” must surely take its content from this unbroken tradition. 493 U.S. at 481 , 110 S.Ct. at 808 (Citations and footnote omitted). The opinion also quoted with approval Lockhart v. McCree, 476 U.S, 162, 173, 106 S.Ct. 1758, 1764-65 , 90 L.Ed.2d 137 (1986): “We have never invoked the fair-cross-section principle to invalidate use of either for-cause or peremptory challenges to prospective jurors, or to require petit juries, as opposed ¹²⁸ to jury panels or venires, to reflect the composition of the community at large.” 493 U.S. at 482-83 , 110 S.Ct. at 808 . The Maryland constitutional challenge to the State’s use of peremptories based on age is a non-starter. Article 21 of the Declaration of Rights (and its Sixth Amendment analogue) are simply inapplicable to the entire phenomenon of peremptory challenging.

The appellant has not crossed the necessary threshold and the merits of how or why the State employed its peremptory challenges are not before us. The weapons chosen by the appellant to mount the Maryland constitutional attack fall short of the entire target area. The Federal Constitutional Issue The appellant’s federal constitutional challenge to the State’s peremptories based on age invokes, by dramatic contrast, the Equal Protection Clause of the Fourteenth Amendment. That provision most definitely applies to the phenomenon of peremptory challenging, as illustrated by Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986) and its burgeoning progeny.

The threshold of applicability has thus been crossed and the details of how and why peremptories were used are at least up for further consideration. Although the weapon chosen for this attack does not necessarily hit the particular target of age-based strikes, it most definitely carries to the general target area and closer analysis is, therefore, called for. In turning the glare of the Constitution on the use of peremptory strikes, Batson v. Kentucky’s most significant subdecision was its deliberate choice of the Equal Protection Clause as its standard. In both the lower courts and before the Supreme Court, Batson himself had argued only on the basis of the Sixth Amendment and had eschewed any reliance on the Fourteenth Amendment.

The Supreme Court, to the surprise of almost everyone, ignored totally the Sixth Amendment’s right to an impartial jury and decided Batson exclusively on the basis of the Equal Protection Clause. ¹²⁹ It was that strategic decision to use the Fourteenth Amendment as its doctrinal fulcrum that made possible the incredible surge in Batson-ha&ed jurisprudence. The Sixth Amendment, by its very terms, applies only to “criminal prosecutions.” Under it, the strictures of Balsón could never, for instance, have been applied to civil cases. The Fourteenth Amendment, by contrast, has no such limitation on its applicability and Edmonson v. Leesville Concrete Co., 500 U.S. 614 , 111 S.Ct. 2077 , 114 L.Ed.2d 660 (1991), was able to apply the Batson strictures to civil cases. The Sixth Amendment, also by its very terms, is a package of rights only for the benefit of “the accused.” Under it, the strictures of Batson could never, for instance, have been applied to the use of peremptories by criminal defense counsel.

The Fourteenth Amendment, by contrast, has no such limitation on its beneficiaries and Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348 , 120 L.Ed.2d 33 (1992), was able to impose the Batson strictures to peremptory challenges exercised by a criminal defendant. The utilization of the Equal Protection Clause has, however, posed some almost imponderable questions for the Batson jurisprudence. There is, on the one hand, a growing body of Batson-hased cases. There is, on the other hand, a massive body of equal protection law that has been developing since 1868.

For eight years after Batson , was decided, the Supreme Court provided little, if any, guidance as to how those two bodies of law would ultimately mesh. How, for instance, could one apply to the ad hoc and idiosyncratic decision to strike a juror in a single case a body of principles developed to examine broad legislative decisions of sweeping applicability? There is just not a good fit between the peremptory challenge problem and the Equal Protection Clause solution. If an attorney exercised a peremptory challenge based on the prospective juror’s inclusion in some “suspect” classification such as one based on race, national origin, or state of alienage, the attorney, if called upon, could never satisfy the “strict scrutiny” test by showing some “compelling” or “over ¹³⁰ riding” governmental need for what was only his idiosyncratic hunch or, at best, his sense of trial tactics.

If there were conceivably some compelling or overriding need for a strike, that need presumably would have been served by a challenge for cause. If an attorney exercised a peremptory challenge based on the prospective juror’s gender or legitimacy of birth, the attorney, if called upon, could never satisfy the “heightened scrutiny” test by showing that his hunch or his trial' tactics were “substantially related” to an “important govern-' mental objective.” If there were conceivably some important governmental objective that could justify a strike, that objective presumably would have been served by a challenge for cause. In trying, awkwardly at best, to apply equal protection law in the