Bundy v. State

CHASANOW, Judge. We granted Melvin Bundy’s petition for a writ of certiorari to consider whether Bundy adequately preserved for appellate review his contention that the trial judge erroneously permitted the State to exercise more than four peremptory challenges. In Bundy’s appeal to the Court of Special Appeals, the intermediate appellate court first opined that the State was entitled to only four peremptory challenges in the consolidated trial of Bundy and a codefendant. See Maryland Code (1974, 1989 Repl.Vol.), Courts and Judicial Proceedings Article, § 8 — 301(d) (providing that, in cases other than those involving death, life imprisonment, or a statutorily prescribed sentence of 20 years or more, “each party is permitted 4 peremptory challenges”).

See also Maryland Rule 4-313(a)(l). That court, however, held that Bundy’s “objection was not timely made” and that the peremptory challenge issue was “not properly preserved for appellate review.” Bundy v. State, 95 Md.App. 512, 535 , 622 A.2d 175, 187 (1993). Bundy disputes this conclusion, contending that his objection was timely and that, since the State exceeded the permitted number of peremptory challenges, his conviction must be reversed. For the reasons discussed below, we hold that Bundy suffi ¹³⁴ ciently preserved for appellate review the issue of how many peremptory challenges the State should have been afforded.

I. Bundy was charged with theft of goods valued at $800.00 or more. He elected to be tried by a Baltimore City jury and his trial was consolidated with that of a codefendant. 1 The jury selection process began, and with it, the exercise of peremptory challenges by Bundy, his codefendant, and the State. After the State had exercised four peremptory challenges, the Assistant State’s Attorney asserted, “I believe I’m entitled to eight [challenges],” to which the judge responded, “Yeah. Thank you.

You’re correct.” Subsequently, the State exercised a fifth peremptory challenge and the stricken juror was directed to return to the jury assembly room. At this point, counsel for Bundy’s codefendant declared, “Your Honor, I’m sorry. I thought the State had exhausted her strikes.” The judge immediately reiterated, “You each get four. The State gets eight.” After this ruling, the State exercised a sixth challenge, which was followed by the selection of the alternate juror.

Thereupon, Bundy’s counsel asked to approach the bench and the following bench conference took place: “[BUNDY’S ATTORNEY]: I’m somewhat confused. This just doesn’t seem right. I thought each side got four ¹³⁵ strikes. I’m just looking at the rule book.

I don’t understand how the State gets eight. THE COURT: Well, it’s two cases here. You get four for your case and the State gets four for her case. [Codefendant’s counsel] gets four for her case and she gets four. [CODEFENDANT’S ATTORNEY]: But, they’re being charged as codefendants, Your Honor. It’s one trial. [BUNDY’S ATTORNEY]: You see what I’m saying.

The State — even though they’re calling two separate charging documents we are talking about one trial. I mean, the reason that I said that — we are sitting there, she keeps on striking and it just doesn’t seem quite right. THE COURT: Okay. [BUNDY’S ATTORNEY]: So— THE COURT: What are you asking? [BUNDY’S ATTORNEY]: Well— THE COURT: She is entitled to eight. You each get four. [BUNDY’S ATTORNEY]: Okay.

I’m just going to I guess lodge an objection to the panel then at this point in time. [CODEFENDANT’S ATTORNEY]: I will join in the objection and ask for a mistrial at this point. [BUNDY’S ATTORNEY]: I will join in that too.” The judge decided to recess for the day, instructed the jurors that trial would resume the following morning, and dismissed them. After the jurors had left, the discussion about the State’s peremptory challenges continued: “[BUNDY’S ATTORNEY]: Your Honor, if I may, I know you have already ruled on the issue of the peremptory challenges, but I would like to be able to pull some law. * * * * * * I think the State is only allowed four strikes in this case. I would like over night just to do a little bit of research on the law and bring [it] to the Court tomorrow and perhaps before the jury comes back. ¹³⁶ THE COURT: Well, of course, you can do that, but be here a little early tomorrow. Yes, you get the law and you also, Ms. Pollack [Assistant State’s Attorney]. * * * * * * [ASSISTANT STATE’S ATTORNEY]: ...

I mean, is the Court asking me to do research over night? * * * * * * THE COURT: Well, Ms. Pollack, you’re an experienced State’s Attorney. You advised the Court and I think correctly that you’re entitled to that number of strikes. [ASSISTANT STATE’S ATTORNEY]: I advised the Court on the basis of what I was told by a more experienced State’s Attorney. THE COURT: Well, I’m asking you to please get me the law on it because if you are, in fact, wrong I’m going to have to dismiss this jury panel tomorrow — [ASSISTANT STATE’S ATTORNEY]: I understand. THE COURT: — and start over. ” (Emphasis added).

The following day, the judge resumed the peremptory challenge discussion by noting, “[n]ow, the question really is how many [peremptory challenges] were they entitled to. Now, you ... were going to give me some law this morning.” After a lengthy discussion on this topic, the judge reiterated his belief that the State seemed to be entitled to eight peremptory challenges and thus concluded, “I’m going to deny your request that this panel be dismissed and a new jury be selected.” The trial proceeded and Bundy was convicted of theft of goods valued at $300.00 or more. Bundy appealed his conviction to the Court of Special Appeals, alleging that the trial court erred in granting the State eight peremptory challenges. In a detailed opinion by Judge Moylan, the intermediate appellate court traced the legislative history behind § 8-301 of the Courts and Judicial Proceedings Article, which entitles “each party” to four peremptory challenges in a case such as Bundy’s.

In accordance with Bundy’s contention that the State remains a single party, even when it prosecutes multiple ¹³⁷ defendants in the same trial, Judge Moylan concluded as follows: “Nothing ... in the 1986 amendment to § 8-301 affected in any way the pre-existing and ongoing status of the State as a single and indivisible party. Indeed, the legislative history of the amending Act reinforces our conclusion that the Legislature certainly did not intend to increase costs and to increase the number of jurors called for service by increasing the peremptory challenges available to the State from a single set of four to multiples of four.” Bundy, 95 Md.App. at 531 , 622 A.2d at 185 . Despite this conclusion, the Court of Special Appeals held that Bundy’s objection was untimely and that the peremptory challenge issue was not properly preserved for appellate review. The court stated that neither defendant objected until after “the prospective jurors who had been earlier challenged had left the courtroom and returned to the jury assembly room” and after the alternate juror was accepted.

Bundy, 95 Md.App. at 534 , 622 A.2d at 186 . In its answer to Bundy’s petition for a writ of certiorari, the State concedes that it “does not here challenge” the Court of Special Appeals’ conclusion that the State was entitled to only four peremptory challenges in the instant case. The State, however, does challenge Bundy’s assertion that his objection adequately preserved the issue for appellate review.

II

The State and Bundy disagree over whether Maryland Rules 8-131(a) and 4-323(c), concerning the preservation of issues for appellate review, were complied with in the instant case. Rule 8-131(a) provides that, “[o]rdinarily, the appellate court will not decide any ... issue unless it plainly appears by the record to have been raised in or decided by the trial court.... ” At trial, a significant amount of time was devoted to the issue of how many peremptory challenges the State was entitled to exercise. Before affirming his earlier ruling that the “State gets eight” peremptory challenges, the trial judge ¹³⁸ permitted Bundy’s attorney to research the issue, asked the Assistant State’s Attorney also to do some overnight research, and entertained a lengthy discussion regarding the results of the parties’ research. Thus, Rule 8-131(a) was clearly satisfied as it “plainly appears by the record [that the peremptory challenge issue was] raised in or decided by the trial court____” Md.Rule 8-131(a).

The State, however, also contends that Bundy failed to comply with Maryland Rule 4-323(e). Rule 4-323(c) provides that, “[f]or purposes of review by the trial court or on appeal of any other ruling or order, it is sufficient that a party, at the time the ruling or order is made or sought, makes known to the court the action that the party desires the court to take or the objection to the action of the court.” 2 See Graham v. State, 325 Md. 398, 411 , 601 A.2d 131, 137 (1992) (stating that, unless a party “had no opportunity to do so, he is required to have made known to the court his objection to the ruling at the time the ruling was made”). This rule is premised on the notion that “[t]he ends of justice are served by the avoidance of delay and expense incident to appeals and new trials upon grounds of objection which might have been obviated and corrected in the trial court if the question had been ruled upon.” Davis v. State, 189 Md. 269, 273 , 55 A.2d 702, 704 (1947). Applying Rule 4-323(c) to the instant case, the Court of Special Appeals held that Bundy’s objection was not timely and, therefore, the peremptory challenge issue was not preserved.

The court explained its holding as follows: ¹³⁹ “At the time the appellant finally objected [after the selection of the alternate juror], there was nothing the trial judge could do about the matter. Jurors earlier challenged could hardly be recalled and seated. There would be a question of which jurors then seated should be unseated. There would be a question of whether one of the unseated jurors should, in turn, unseat the alternate.

There was, of course, always the possibility that the dismissed jurors had been sent home for the day, thus ending their jury service. There was also the possibility that the dismissed jurors had been sent to another courtroom and, possibly, even impaneled to hear another case. When the judge was finally called upon to rule upon the appellant’s objection, there was no remedy available. ‘The moving finger writes, and having writ, moves on.’ ” Bundy, 95 Md.App. at 535 , 622 A.2d at 187 . The State maintains that “[t]he law and the record” in this case support the Court of Special Appeals’ conclusion.

Citing King v. State Roads Comm’n, 284 Md. 368, 372-73 , 396 A.2d 267, 270 (1979), the State acknowledges that this Court has declared that “a party is obligated to state his dissatisfaction with the jury selection procedure before the jury is sworn.” The State, however, maintains that “an even more timely objection” is required when dealing with the erroneous exercise of additional peremptory challenges. The State’s reasoning is that “where, as here, a selection procedure results not only in the elimination of jurors from the panel, but their removal from the courtroom, the objecting party’s immediate complaint is not merely desirable but necessary.” We are in general agreement with the intermediate appellate court’s and the State’s comments. Ordinarily an objection should be lodged at the time an excess peremptory challenge is exercised because the trial judge may wish to remedy any error by recalling and seating the juror who was improperly stricken. See Covington v. State, 282 Md. 540, 543 , 386 A.2d 336, 337 (1978) (“[I]t is incumbent upon a litigant to make known to the court an objection to the action of the ¹⁴⁰ court at the earliest practicable opportunity.”).

See also Lohss and Sprenkle v. State, 272 Md. 113, 119 , 321 A.2d 534, 538 (1974) (stating generally that, “when a party has the option of objecting, his failure to do so while it is still within the power of the trial court to correct the error is regarded as a waiver estopping him from obtaining a review of the point or question on appeal” (emphasis added)). Even Bundy acknowledges this general principle, noting that “[t]he proper time for objection to the State’s utilization of more than four strikes was when the State actually exercised its fifth strike. That is the point at which the State’s improper utilization of additional peremptories became obvious; and that is the point at which the trial court could have avoided prejudicing Petitioner.” Thus, in order to provide the trial judge with an opportunity to seat an improperly stricken juror, an objection should be noted as soon as the extra peremptory challenge is exercised. 3 Although generally counsel should immediately object when the opposing party exceeds its allotted number of peremptory challenges, we have recognized that delayed objections to the exercise of peremptory challenges are permissible in limited circumstances. In Batson v. Kentucky, 476 U.S. 79, 89 , 106 ¹⁴¹ S.Ct. 1712, 1719, 90 L.Ed.2d 69, 83 (1986), the United States Supreme Court established that “the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race.... ” When applying Batson in Stanley v. State, 313 Md. 50 , 542 A.2d 1267 (1988), this Court explained that “[a] Batson objection is timely if the defendant makes it no later than when the last juror has been seated and before the jury has been sworn.

By waiting, rather than objecting to the first and every subsequent strike of a black juror, a clearer picture of what the State is doing may be seen; a pattern may form. And if the objection is delayed, the trial court will have before it the total facts and circumstances of jury selection and thus will be in a better position to make the necessary Batson rulings, and to apply an appropriate remedy if one is called for.” (Emphasis added). 313 Md. at 69 , 542 A.2d at 1276 . See also Parker v. State, 72 Md.App. 610, 617-18 , 531 A.2d 1313, 1317 (1987) (stating that an objection premised upon the use of peremptory challenges in a racially discriminatory manner “appropriately may not be raised, or, at the least, is not cognizable, until the factual predicate for it exists”). Because it is often necessary to obtain a “clearer picture” of how the State is exercising its strikes when a Batson violation is alleged, we concluded in Stanley that “an objection made just before the jury is sworn will ordinarily be sufficient to preserve a Batson issue for appellate review....” Stanley, 313 Md. at 69 , 542 A.2d at 1276 . 4 ¹⁴² We noted in Stanley , however, that even in cases where a party alleges racially discriminatory jury selection, “prudence may suggest some action at an earlier time.” 313 Md. at 69-70 , 542 A.2d at 1276 .

We observed as follows: “If, for example, there is a question as to the race of a potential juror who has been the subject of a peremptory strike, it may be advisable to object at that point, in order to obtain a factual finding as to race while the juror is still available. And if one appropriate remedy for a Batson violation is to seat the unconstitutionally stricken jurors ..., it is important to bring the Batson problem to the court’s attention promptly. Otherwise, the jurors in question might be excused, and no longer available, if the court ultimately finds that peremptory challenges have been exercised in an unconstitutionally discriminatory manner. Thus considerations of making an appropriate record ... and of keeping open options as to a proper remedy are among the considerations that may prompt careful counsel, under some circumstances, to object at a relatively early point in the jury selection process.

Similar considerations may guide counsel in deciding the manner in which peremptories are exercised (e.g., challenge jury or struck jury).” (Emphasis added). Stanley, 313 Md. at 70 n. 10, 542 A.2d at 1276 n. 10. Although the quoted language from Stanley is not directly applicable to the instant case, it illustrates the need to object immediately to the improper exercise of peremptory challenges in most non-Batson scenarios. Absent a claim of racial discrimination (or gender discrimination), 5 there is no need to ¹⁴³ wait and see whether a pattern of discriminatory selection develops.

Thus, a defendant should object as soon as the State exceeds the proper number of peremptory challenges afforded to it. “Otherwise, the jurors in question might be excused, and no longer available, if the court ultimately finds that peremptory challenges have been exercised in an [improper] manner.” Stanley, 313 Md. at 70 n. 10, 542 A.2d at 1276 n. 10. Moreover, if we provided counsel with an unqualified right to object to the opposition’s exercise of more than the allotted number of peremptory challenges at any time before the jury is sworn, counsel might time his or her objection so as to gain a tactical advantage or to delay the trial. Rather than objecting when the judge could remedy any error by simply calling a stricken juror back, counsel could wait and see whether the panel as a whole is desirable, and if