Brogden v. State

ALPERT, Judge. Alfred Brogden, appellant, was convicted by a jury in the Circuit Court for Baltimore City (Hammerman, J. presiding) of possession of cocaine with intent to manufacture and distribute and simple possession of cocaine. The court merged simple possession into the greater offense and sentenced appellant to eight years imprisonment. In this appeal, appellant argues the following: ⁴²⁶ I. The trial court erred by striking the first jury that was selected, II.

The trial court erred by admitting hearsay testimony, and III. The trial court erred by refusing to permit the defense to call a witness who had already been called by the State. We find these arguments to be without merit and affirm the judgment of the trial court. Appellant was standing near a Baltimore City street corner when a police car carrying three officers pulled up.

The driver of the car, Officer Randy Pope, saw appellant drop two small containers from his left hand. All three officers exited the car, and Officer Pope went to investigate the items that appellant had dropped. The other two officers, Officer Ellison James and Detective Anthony Gingles, asked appellant to come speak with them; appellant complied. Officer Pope ascertained that the containers appellant dropped contained a total of 40 small bags of what was suspected to be cocaine.

The officer then placed appellant under arrest. Subsequent analysis established that the substance in' the bags was, in fact, cocaine. Discussion I The Jury After a jury and two alternates were selected and pronounced acceptable by both the prosecutor and defense counsel, but before the jurors were sworn, the court announced: “The panel may be acceptable to the parties, but I do not believe necessarily that the panel is acceptable to the court. It seems to me that we have a very real Batson [1] situation here.” The court pointed out that defense counsel had used eight of his ten peremptory challenges to strike white poten ⁴²⁷ tial jurors.

According to the court, only nine white potential jurors that were in the array had been called up during the jury selection process, and only one of those potential jurors had been seated. 2 The court told defense counsel: “I am finding a prima facie case [of racial discrimination] established and I think now you must respond and satisfy this court as to how those challenges were exercised.” In response to the trial court’s finding, defense counsel first insisted that he “did not notice” that the eight potential jurors were white. He then conceded: “I noticed most of them happened to be white, but that was coincidental.” Counsel stated that he used four criteria to exercise his peremptory challenges: (i) his client’s “comfort” with the juror, (ii) age, (iii) occupation, and (iv) area of residence. He expressed his belief that potential jurors who were older than his forty-one-year old client might be unable to “relate to younger persons.” Potential jurors who were nurses, teachers, or in supervisory roles might be “bias[ed] toward[] [his] client.” Those who resided in “more affluent areas ... may be more sensitive to crime, and may be more biased.” Defense counsel then stated on the record his reasons for striking the eight white potential jurors. He explained that Juror No. 130 “was stricken ... because of the age of 67, which in my mind, tends to show an inability to relate to my client.” Juror No. 105 “was stricken as to my client’s insistence.” Counsel agreed that it was “possible” that his client objected to Juror no. 105 “because the juror was white.” Juror No. 108 “was stricken because she was a teacher.” Juror No. 113 “was stricken because of his occupation as a manager.” Juror No. 120 was also stricken because of his occupation as a “manager.” Juror No. 114 was stricken “because she was a nurse, and I feel that is an occupation that says bias.” Juror No. 77 was stricken because she was a teacher, “and I thought the occupation would show great bias towards the facts of this case.” He could not “give ⁴²⁸ an answer” as to why No. 84 was stricken.

Counsel added that he struck one African American potential juror because he was an investigator for the FBI. He did not explain why he struck the tenth potential juror. Although counsel had listed “area of residence” as one of the criteria he had used for striking potential jurors, he did not specify that any particular juror had been struck for that reason. After listening to defense counsel’s explanations, the court ■ pointed out that defense counsel could have, but did not, use peremptory challenges against a sixty-seven-year old African American woman or an African-American man who was a supervisor.

The court rejected counsel’s explanations for the strikes and concluded: ... I am going to find that the defendant’s challenges were exercised in an unlawfully discriminatory manner. I have already stated the fact that five of the first six white jurors were stricken right off the bat, and that eight out of the ten strikes were white people, and that with four challenges remaining to the defendant on alternate jurors, when all were black who were called up, no strikes were exercised. And therefore I am going to void the selection of this jury, and we will send for another jury tomorrow morning.

The following morning, before jury selection began anew, defense counsel objected to thé striking of the first jury on the sole ground that “the challenges that I made to the jurors were based on reasons other than racial grounds____” Appellant’s current challenge to the trial court’s action has three prongs. He contends that (i) the trial court abused its discretion by determining sua sponte that the manner in which the defense exercised its peremptory challenges created a prima facie case of racial discrimination, (ii) there is no prohibition against the use of peremptory challenges against white jurors, and (iii) even if a prima facie case of racial discrimination was properly established, defense counsel provided adequate, neutral reasons for the strikes. Preliminarily, we observe that the first and second prongs of appellant’s ⁴²⁹ argument were not raised below and, therefore, are not properly before this Court. See Md.Rule 8-131(a).

We shall nevertheless address them for guidance purposes. (i) Neither this Court nor the Court of Appeals has heretofore been asked to decide whether a trial court may determine sua sponte that the manner in which peremptory challenges were exercised created a prima facie case of racial discrimination. Cases decided in Maryland and elsewhere have, to this point, involved challenges by parties to the exercise of peremptory challenges by their opponents. See, e.g., Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986) (challenge by defendant to strikes by prosecutor); Georgia v. McCollum, — U.S.-, 112 S.Ct. 2348 , 120 L.Ed.2d 33 (1992) (challenge by State to strikes by defense); Gilchrist v. State, 97 Md.App. 55 , 627 A.2d 44 , cert. granted, 332 Md. 741 , 633 A.2d 102 (1993) (challenge by State to strikes by defense).

In the seminal case of Batson v. Kentucky, a prosecutor used his peremptory challenges to strike the only four African-Americans in the array. Upon a challenge by the defendant, who was African American, the Supreme Court held that “the Equal Protection Clause [of the Fourteenth Amendment] forbids the prosecutor to challenge potential jurors solely on account of their race.... ” 476 U.S. at 89 , 106 S.Ct. at 1719 . The Court explained that “[p]urposeful racial discrimination in selection of the venire violates a defendant’s right to equal protection because it denies him the protection that a trial by jury is intended to secure.” Id. at 86 , 106 S.Ct. at 1717 . The Court made clear, however, that the defendant is not the only person harmed by discriminatory jury selection practices.

It observed that “by denying a person participation in jury service on account of his race, the State unconstitutionally discriminate^] against the excluded juror.” Id. at 87 , 106 S.Ct. at 1718 . The Court further observed that “[t]he harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire ⁴³⁰ community. Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice.” Id. (Citations omitted).

The Court revisited the subject in Georgia v. McCollum. In that case, the Court extended the Batson holding to include situations where white defendants exercise peremptory challenges in a racially discriminatory manner against African American potential jurors. The Court reiterated: [T]his Court [has long] recognized that denying a person participation in jury service on account of his race unconstitutionally discriminates against the excluded juror. While ‘[a]n individual juror does not have a right to sit on any particular petit jury, ... he or she does possess the right not to be excluded from one on account of race.’ Regardless of who invokes the discriminatory challenge, there can be no doubt that the harm is the same—in all cases, the juror is subjected to open and public racial discrimination.

But ‘the harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community. One of the goals of our jury system is ‘to impress upon the criminal defendant and the community as a whole that a verdict of conviction or acquittal is given in accordance with the law by persons who are fair.’ Be it at the hands of the State or the defense, if a court allows jurors to be excluded because of group bias, it is a willing participant in a scheme that could only undermine the very foundation of our system of justice—our citizens’ confidence in it. Just as public confidence in criminal justice is undermined by a conviction in a trial where racial discrimination has occurred in jury selection, so is public confidence undermined where a defendant, assisted by racially discriminatory peremptory strikes, obtains an acquittal. — U.S. at--(citations omitted). -, 112 S.Ct. at 2353-54 (emphasis added) ⁴³¹ Contrary to appellant’s suggestion, jury selection is not “between the State and the defense” alone. In light of the Supreme Court’s comments in Batson and McCollum , it is clear that jury selection affects potential jurors and the entire community.

It reflects upon the integrity of the judicial system as a whole. A trial judge need not sit idly by when he or she observes what he perceives to be racial discrimination in the exercise of peremptory challenges. He is clearly entitled to intervene. Cf.

Grossfeld v. Braverman, 203 Md. 498, 500-01 , 101 A.2d 824 (1954) (where, in response to the court’s questioning, a juror indicated that he had preconceived ideas that would prevent him from fairly and impartially deciding the case, the court properly excluded the juror on its own motion). (ii) In appellant’s view, Batson and its progeny do not prohibit the exercise of peremptory challenges against white potential jurors for the sole reason that they are white. Appellant argues that Batson cannot be so extended because its holding rests on an equal protection foundation, which requires that the challenged juror be a member of a ‘cognizable racial group,’ defined as ‘one that is a recognizable, distinct class, singled out for different treatment under the laws as written or applied.’ (citation omitted). In fact, Batson requires only that the challenged juror be a member of a racial group that is “capable of being singled out for differential treatment.” 476 U.S. at 94 , 106 S.Ct. at 1722 (emphasis added).

Appellant does not contend that white persons are not capable of being singled out for different treatment under the laws. He boldly asserts that “fwjhites, as a class[,l