Chew v. State

McAULIFFE, Judge. Michael Anthony Chew was tried and convicted in the Circuit Court for Charles County of murder in the first degree, attempt to commit rape in the first degree, and third degree sexual offense. In a separate sentencing proceeding the jury decided that life imprisonment was the appropriate sentence for the murder, instead of the death sentence sought by the State. Chew appealed to the Court of Special Appeals, contending, among other things, that he was denied equal protection of the laws by the prosecutor’s racially discriminatory use of peremptory challenges.

The Court of Special Appeals, applying the principles of Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 ²³⁶ (1986) , which was decided after the Chew trial had been completed, 1 held that Chew had shown enough to raise a permitted inference of discrimination, and directed a remand to the trial court for further proceedings to determine whether there had been racial discrimination in the selection of the jury. Chew v. State, 71 Md.App. 681 , 527 A.2d 332 (1987) . Chew sought certiorari, and we granted the writ on the limited question of alleged racial discrimination in the exercise of peremptory challenges. Prior to our granting the writ, however, the trial judge had conducted a post-trial hearing in accordance with the mandate of the Court of Special Appeals, and had ruled that a prima facie case of discrimination had been shown, but that the prosecutor had rebutted the presumption by demonstrating racially neutral reasons for the challenges made to black jurors.

The trial judge thereupon affirmed the judgment of conviction, and the defendant again appealed. We granted certiorari on our own motion before that appeal was heard by the intermediate appellate court, and we consolidated the two proceedings. On the first issue, involving the action of the Court of Special Appeals in remanding for a further hearing consistent with Batson , we agree with the Court of Special Appeals that the limited remand was appropriate. The judgment of the Court of Special Appeals, however, has now become moot.

On the second issue, we are unable to accept the finding of the trial judge concerning the existence of a racially neutral explanation for the challenge of at least one black juror, and we must therefore reverse the convictions and remand for a new trial. I. Chew is a twenty-eight year old black man. He was charged with the murder and attempted rape of a fourteen ²³⁷ year old white woman. Most of the State’s witnesses were white.

The principal State’s witness, who had been the victim’s boyfriend, and who Chew’s attorneys suggested was the more likely suspect in the victim’s death, was white. The jury venire presented for voir dire consisted of 78 persons, of whom nine were black. The defendant challenged the array, suggesting that the black population in Charles County was thirty to thirty-five percent of the total, and that the venire did not represent a fair cross section of the community. The defendant offered no evidence concerning jury selection procedures, and the challenge to the venire was denied.

See State v. Calhoun, 306 Md. 692, 709-12 , 511 A.2d 461 (1986) (successful challenge to the array requires, inter alia, proof that underrepresentation is due to systematic exclusion of the group in the jury selection process). Chew has not appealed from that ruling. Voir dire of the panel began with a roll call of the prospective jurors. As the name of each juror 2 was called, that person stood, and remained standing until the next person’s name was called.

Upon completion of the roll call, the judge conducted the voir dire questioning, and the appropriate challenges for cause were made. The remaining prospective jurors were then called to the rail, twelve at a time, and peremptory challenges were announced. Each juror against whom no challenge was announced took a seat in the jury box. When twelve persons were in the box, the parties were afforded an additional opportunity to announce a peremptory challenge. 3 If persons in the jury box were challenged, the process at the rail continued.

When there were no more challenges to the twelve persons in the box, the necessary number of alternates were selected in the ²³⁸ same manner, after which the jury and alternates were sworn. During the selection of the twelve jurors, the State exercised seven peremptory challenges, three of which were against black jurors. Two of the challenges to black jurors, those involving Alonzo Carroll and Jane Hawkins, were made at the rail. The third, involving Emma Marshall, was made after the juror had been seated in the jury box.

The State was entitled to one peremptory challenge for each of the two alternate jurors to be selected, and it exercised one of those challenges against Deborah Stovall, a black woman called to fill the first alternate’s position. The State did not exercise a peremptory challenge against a black woman who was selected as the second alternate juror. The jury as finally selected was made up entirely of white persons. The first alternate juror was white and the second alternate was black.

At the conclusion of the selection process, the defendant’s attorneys moved for a mistrial, contending that the State had improperly exercised its peremptory challenges in striking black jurors. Effectively. forecasting the decision in Batson that was yet to come, Chew’s attorneys argued that the exercise of four of the State’s challenges against blacks in such a manner that no black person was allowed on the jury “shifts the burden” to the State to “state the basis for striking the black ... members that it did strike.” The trial judge held, consistent with the then existing law of Swain v. Alabama, 380 U.S. 202 , 85 S.Ct. 824 , 13 L.Ed.2d 759 (1965), that in the absence of some showing of an office policy or consistent pattern of conduct embracing more than a single case, the prosecutor was not required to give any reasons for the exercise of his peremptory challenges. The motion for mistrial was denied. Two days later, at the beginning of the third trial day, the State’s Attorney and his deputy approached the bench for the purpose of dictating into the record the reasons they had exercised peremptory challenges against the four black ²³⁹ jurors. 4 The trial judge received the volunteered explanations as well as the defendant’s attorneys’ observations concerning those explanations, but made no comment concerning them.

II

The first question raised by Chew concerns the propriety of the limited remand ordered by the Court of Special Appeals upon the first appeal. We agree that the action was appropriate in this case. We addressed this issue in Stanley v. State, 313 Md. 50 , 542 A.2d 1267 (1988), and there directed a limited remand for each of the two defendants involved. As we acknowledged in Stanley , certain difficulties are inherent in attempting to reconstruct events that occurred a year or more earlier, but where a reasonable possibility exists that reconstruction can be fairly accomplished, the attempt is worth the effort.

Should it appear to a trial judge presiding at a limited remand hearing that the passage of time precludes fair consideration of the relevant issues, that judge will simply order a new trial.

III

The more difficult issues occur in the second appeal, which followed the hearing on remand. At that hearing, Judge George W. Bowling, who had been the trial judge, implicitly found that a prima facie case of discrimination had been established, and directed the parties to address the sufficiency of the State’s explanation for the strikes exercised against black jurors. Both prosecutors, both defense attorneys, and two of the four black jurors who had been ²⁴⁰ excused by the State’s challenges, testified. After consideration of this testimony and counsel’s argument, Judge Bowling held that the State had successfully shouldered the burden of demonstrating that in each instance the exercise of a peremptory challenge against a black juror was for a legitimate and racially neutral reason.

On appeal, Chew concedes that as to Deborah Stovall, who was challenged when considered for the position of first alternate juror, there existed sufficient racially neutral reasons to explain the challenge by the State. 5 Chew maintains, however, that the findings of the trial judge with respect to jurors Alonzo Carroll, Jane Hawkins, and Emma Marshall were clearly erroneous. Alonzo Carroll was the first black juror struck by the State. When, on the third day of trial, Deputy State’s Attorney Clagett volunteered the State’s reasons for the exercise of that challenge, he said that Carroll, a nineteen year old laborer, was struck because “the occupational background that he has is similar to the defendant in this case, and in general, we thought he would be sympathetic with the defendant.” At the hearing after remand, Clagett testified that: I wanted Mr. Carroll struck because he was 19 years of age, very serious case, I think we agreed we preferred older as opposed to younger. He was a laborer, similar occupation as Mr. Chew as I knew Mr. Chew prior to this case.

I think Michael worked as a laborer to the best of my knowledge. And that is why I struck Mr. Carroll. Clagett further explained on cross-examination that in serious criminal cases, and particularly in capital cases, he had ²⁴¹ a strong preference for jurors older than someone in their teens or early twenties. State’s Attorney Sengstack testified that his desire to strike Carroll was based solely upon the juror’s age.

He said, “I feel strongly that young jurors should not sit on felony cases, especially murder cases.” Judge Bowling concluded that the State’s explanation for striking Carroll was satisfactory. He said: I certainly can understand a State’s Attorney, having been one for some 8 years, concluding that in a case of this kind he might want a more mature juror than one who is 19 years of age. That to me does not seem to be an unreasonable reason for striking a juror. I know that persons 18 and above are qualified to serve as jurors, but ... the prosecutor is not entitled to strike persons for reasons that are racially motivated but I think that a reason given is not such in the Court’s opinion that seems unreasonable in the case of Mr. Carroll.

The youngest juror that served on Chew’s jury was twenty-six years of age. Jane Hawkins was the second black juror against whom the State exercised a peremptory challenge. The initial reasons given by the deputy state’s attorney were that the juror “appeared to be very nervous and fidgety. That was not the type of individual we wanted for a juror.

Also her estranged husband had a fairly serious criminal record ... use of a handgun and that sort of thing.” Moreover, Clagett said, there was some indication “that she may be a relative or relationship of Buck Wills.” The prosecutor explained that Buck Wills was the proprietor of a bar known as “Birdland,” and that there might be testimony concerning Birdland because one of the statements taken from Chew indicated that Chew claimed to have been “shooting craps” in that bar the night the victim disappeared. Defense counsel immediately responded that “Mrs. Hawkins was not at all fidgety or nervous that I see.” At the hearing after remand, Jane Hawkins testified. Following her testimony, Deputy State’s Attorney Clagett said: ²⁴² And Mrs. Hawkins, to be quite honest with you I am not sure she appeared any more fidgety to me, maybe in eye of the beholder. I am not sure she appeared any more fidgety that day than she did up here testifying.

She appears to be, she said active, nervous, fidgety what have you. Clagett conceded there was no evidence that the juror was related to Buck Wills, and said the “relationship” to which he earlier referred was that Ms. Hawkins had taught Buck Wills’ children in school. He said he “didn’t want anyone on that panel that knew of the establishment or Mr. Wills.” State’s Attorney Sengstack testified that he concurred in the exercise of a peremptory challenge against Jane Hawkins because her husband had been convicted of an offense involving a dangerous weapon; because she knew the Wills’ children; and because he had a “gut reaction” to her looks, and “didn’t care for her looks.” Defense Attorney Wood testified that he paid close attention to the black jurors, and he did not notice Ms. Hawkins being nervous or fidgety. The jury list disclosed that Ms. Hawkins was thirty-four years of age, had a college education, and was employed as a school principal.

During voir dire, she had informed the court that she formerly taught Buck Wills’ children in school, and that her husband, from whom she had then been separated for a year, had been previously convicted for “use of a handgun” and he was then “on work release.” Ms. Hawkins testified that to the best of her knowledge she had not been nervous or “fidgety” during the jury selection process. The third black juror in question was Emma Marshall, who initially had been seated in the jury box, but then was struck by the State. As to her, Deputy State’s Attorney Clagett first offered this explanation: We did have second thoughts after and struck her. She was our fourth strike, third black juror that was struck, and the reason she was struck other than basically—and I am sure defense strikes people for this reason too—she just showed an utter contempt for the whole proceeding. ²⁴³ She never cracked a smile, no facial expression during the whole time and Mr. Sengstack and I decided that we did not want her serving on the jury.

Chew’s counsel took immediate exception to the State’s proffered reason, stating: In response to that, your Honor, I would like to note that Mrs. Hawkins was not at all fidgety or nervous that I saw. Secondly, Mrs. Marshall did not exhibit any utter contempt for the proceedings here at all. I am pretty surprised by that remark. She appeared to me like other jurors seated in the jury box.

I didn’t see any other jurors smiling as well. It is a serious proceeding, and because Mrs. Marshall was not smiling I didn’t view that as utter contempt. I wouldn’t be able to agree that she was not smiling. I wasn’t watching her all the time, but I take strong exception to that