Gilchrist v. State

CHASANOW, Judge, eoaeurring in opinion in which BELL Judge, joins. I concur in the result and with part III of the majority opinion, but am dubious about the Court’s analysis in part IV. Based on a recent Supreme Court decision, we should clarify the trial judge’s role in ruling on claims of race or gender ⁶³⁰ motivated peremptory challenges. It is also unclear to me why the majority devotes page after page to discussing whether the defendant waived or abandoned his objections to the trial judge’s rulings in the first aborted jury selection, and then in a footnote acknowledges that any error in the first aborted jury selection was harmless.

Waiver is not a “threshold” inquiry; the defendant was not asked and should not be asked whether he waived any possible errors in his prior aborted jury selection. The defendant was entitled to a properly selected jury. After the first aborted jury selection, he got a properly selected jury with which he was satisfied. The majority’s discussion of waiver in part II is, at best, unnecessary since any errors in the prior aborted jury selection are rendered moot by the second, error-free jury selection or, as the majority concedes in a footnote, are harmless.

My primary concern, however, is the majority’s discussion in part IV and the Court’s failure to analyze the recent case decided by the Supreme Court after oral arguments before this Court in the instant case. PURKETT V. ELEM AND PART TV OF THE MAJORITY OPINION Part IV of the Court’s opinion is potentially confusing because it cites, seemingly with approval, several of this Court’s prior cases which need to be reevaluated, if not overruled, in light of the Supreme Court’s recent opinion in Purkett v. Elem, — U.S.-, 115 S.Ct. 1769 , 131 L.Ed.2d 834 (1995). The majority may be perpetuating errors based on too literal a reading of Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986). The same errors were made by several other courts, including the Eighth Circuit, as was pointed out by the Supreme Court in Purkett, supra.

That case was cited by the majority but needs to be further analyzed. In Purkett , the defendant was on trial for robbery in a Missouri court. During jury selection the prosecutor used two peremptory challenges to strike two African-American poten ⁶³¹ tial jurors. The defense objected based on Batson, supra, and the prosecutor explained the reasons for the strikes as follows: “ T struck [juror] number twenty-two because of his long hair.

He had long curly hair. He had the longest hair of anybody on the panel by far. He appeared to not be a good juror for that fact, the fact that he had long hair hanging down shoulder length, curly, unkempt hair. Also, he had a mustache and a goatee type beard.

And juror number twenty-four also has a mustache and goatee type beard. Those are the only two people on the jury ... with facial hair____ And I don’t like the way they looked, with the way the hair is cut, both of them. And the mustaches and the beards look suspicious to me.’” Purkett , — U.S. at —, 115 S.Ct. at 1770 , 131 L.Ed.2d at 838 (quoting App. to pet. for Cert. A-41).

The trial judge overruled the defendant’s Batson objection and, after the defendant was convicted and appealed, that ruling was affirmed by the Missouri Court of Appeals. The defendant then filed a petition for federal habeas corpus. The district court concluded that the Missouri courts’ determination that there had been no purposeful discrimination was a factual finding entitled to a presumption of correctness under 28 U.S.C. § 2254 (d), and since that finding was supported in the record, the writ of habeas corpus was denied. The Court of Appeals for the Eighth Circuit reversed and remanded with instructions to grant the writ.

That court held that “the prosecution must at least articulate some plausible race-neutral reason for believing those factors will somehow affect the person’s ability to perform his or her duties as a juror.” Elem v. Purkett, 25 F.3d 679, 683 (8th Cir.1994). The Eighth Circuit concluded that the “prosecution’s explanation for striking juror 22 ... was pretextuai” and that the trial judge had erred in not finding intentional discrimination. Elem, 25 F.3d at 684 . The Supreme Court reversed the Eighth Circuit in a per ⁶³² curiam opinion apparently joined by seven Justices. 1 In that opinion the Supreme Court gave guidance to trial judges ruling on Batson challenges and for courts reviewing those rulings.

The mistake made by the Eighth Circuit was explained by the Supreme Court as follows: “The Court of Appeals erred by combining Batson's second and third steps into one, requiring that the justification tendered at the second step be not just neutral but also at least minimally persuasive, ie., a ‘plausible’ basis for believing that ‘the person’s ability to perform his or her duties as a juror’ will be affected. It is not until the third step that the persuasiveness of the justification becomes relevant—the step in which the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination. At that stage, implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination. But to say that a trial judge may choose to disbelieve a silly or superstitious reason at step 3 is quite different from saying that a trial judge must terminate the inquiry at step 2 when the race-neutral reason is silly or superstitious.

The latter violates the principle that the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike. The Court of Appeals appears to have seized on our admonition in Batson that to rebut a prima facie case, the proponent of a strike ‘must give a “clear and reasonably specific” explanation of his “legitimate reasons” for exercising the challenges,’ and that the reason must be ‘related to the particular case to be tried.’ This warning was meant to refute the notion that a prosecutor could satisfy his burden of production by merely denying that he had a discriminatory motive or by merely affirming his good faith. What it means by a ‘legitimate reason’ is not a reason that makes ⁶³³ sense, but a reason that does not deny equal protection.” (Citations omitted). Purkett, — U.S. at —, 115 S.Ct. at 1771 , 131 L.Ed.2d at 839-40 .

THE THREE STEP PROCESS There is a three-step process to be used by trial courts in determining whether peremptory challenges have been exercised in an impermissible discriminatory manner. In Purkett, the Supreme Court described the three-step process as follows: “Under our Batson jurisprudence, once the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step 1), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step 2). If a race-neutral explanation is tendered, the trial court must then decide (step 3) whether the opponent of the strike has proved purposeful racial discrimination.” Purkett, —— U.S. at —, 115 S.Ct. at 1770-71 , 131 L.Ed.2d at 839 . In some of the majority’s language in the instant case, as well as in several of our prior eases, this Court may be making the same mistake as the Eighth Circuit by following a somewhat different three-step test.

Purkett held that a race and gender-neutral reason tendered following the finding of a prima facie case of discrimination In the exercise of peremptory challenges need not be persuasive or even plausible; it need only be truthful Any proffered race and gender-neutral explanation should be accepted by the trial judge unless it Is established by the objecting party that race or gender was a motivating factor for the challenge. STEP ONE—A PRIMA FACIE CASE If a prima facie case of racial or gender discrimination is found in step one, then the Supreme Court indicates that the burden of production shifts to the proponent of the strike. It ⁶³⁴ is unclear whether the majority in the instant case has a different interpretation of the effect of this prima facie case. In Ferguson Trenching v. Kiehne, 329 Md. 169, 182 , 618 A.2d 735, 741 (1993), we recognized that the precise meaning of “prima facie evidence” is the subject of considerable disagreement.

There are two competing views of the effect of a prima facie case. The competing views were described by one commentator as follows: “The term ‘prima facie evidence’ is sometimes used to mean ‘compelling evidence,’ i.e., evidence which shifts the burden of production to the opposing party, and thus to signify a true evidentiary rebuttable presumption. It is also used to mean ‘sufficient evidence’ to get to the jury, i.e., merely that the party with the burden of persuasion has met the burden of production and created an issue for the trier of fact by giving rise to a permissible inference.” (Footnotes omitted). Lynn McLain, Maryland Evidence § 301.4, at 230-31 (1987); see also Grier v. Rosenberg, 213 Md. 248, 252-55 , 131 A.2d 737, 739-40 (1957).

The effect of a prima facie case of racial or gender discrimination is to shift the burden of production to the party exercising the strike to offer a race or gender-neutral explanation. Once an explanation is offered, the prima facie ease dissipates, and although it may still remain in the case as the basis for an inference, it should not create a presumption that must be rebutted and should not shift the ultimate burden of proof (or ultimate burden of persuasion) to the party exercising the strike. The Supreme Court told us in Purkett that the ultimate burden of proving racial motive never shifts from the party objecting to a peremptory challenge. We should not cast the ultimate burden of proof (as opposed to the burden of articulating a race and gender-neutral reason) on the party exercising the strike.

This subtle distinction is important for two reasons as we shall see in step three. It will be dispositive of the judge’s decision if the judge is in equipoise in this most difficult fact-finding, and it may also subtly influence the determination of whether a prima facie case of discrimination ⁶³⁵ exists. Does the finding of a prima facie case merely require the striking party to articulate a race and gender-neutral reason in step two, or does it raise a presumption that in effect changes the burden of proof in step three? The Supreme Court in Purkett indicates the former, but our prior cases seem to indicate the latter.

Purkett holds that the finding of a prima facie case only shifts the burden to the striking party to produce a race and gender-neutral explanation and creates, at most, a permissible inference; it does not create a rebuttable presumption which has the effect of shifting the burden of proof or the ultimate burden of persuasion to the striking party. 2 This was, at least, implicit when the Supreme Court said: “Under our Batson jurisprudence, once the opponent of a peremptory challenge has made out a prima facie case of racial discrimination____ If a race-neutral explanation is tendered, the trial court must then decide (step 3) whether the opponent of the strike has proved purposeful racial discrimination. H<‘ ^ H: [T]he ultimate burden of persuasion regarding racial motivation rests with, and never shifts from the opponent of the strike. Cf. St. Mary’s Honor Center v. Hicks, 509 U.S. -,---, 113 S.Ct. 2742, 2748-2749 , 125 L.Ed.2d 407 [, 416] (1993).” (Emphasis added).

Purkett, — U.S. at---, 115 S.Ct. at 1770-71 , 131 L.Ed.2d at 839 . This is made even more clear by the case cited immediately after that quotation. In St. Mary’s Honor Center, supra, petitioner, a halfway house, employed respondent Hicks as a correctional officer. After Hicks was demoted and then fired, Hicks filed suit under Title VII of the Civil ⁶³⁶ Rights Act of 1964 claiming these actions were taken because of his race.

The procedure in Title VII cases is similar to a Batson challenge. The United States District Court found that Hicks established a prima facie case of discrimination, but the halfway house offered two nondiseriminatory reasons for the firing. The district court found the reasons given by the halfway house were pretextual. The judge, nevertheless, ruled that Hicks failed to carry his ultimate burden of proof that the firing was racially motivated.

Hicks appealed and the Court of Appeals for the Eighth Circuit reversed. Hicks v. St. Mary’s Honor Center, 970 F.2d 487 (8th Cir.1992). The Eighth Circuit reasoned that, after proving a prima facie case, Hicks was entitled to judgment, as a matter of law, once he proved, and the judge found, that all of the halfway house’s reasons were pretextual. The Supreme Court reversed the Eighth Circuit and held that the judge’s rejection of the halfway house’s reasons did not entitle Hicks to judgment as a matter of law.

The Court reasoned that the finding of a prima facie case of discrimination raised a presumption of unlawful discrimination, but this presumption only placed the burden of production on the halfway house to produce nondiseriminatory reasons which, if believed, would support a finding that unlawful discrimination did not cause their actions. The prima facie case did not shift the ultimate burden of proof that remained on Hicks. Even if the reasons in step two were pretextual, Hicks still might not have met his burden of affirmatively proving discrimination in step three. The Court said: “Respondent does not challenge the District Court’s finding that petitioners sustained their burden of production by introducing evidence of two legitimate, nondiseriminatory reasons for their actions: the severity and the accumulation of rules violations committed by respondent.

Our cases make clear that at that point the shifted burden of production became irrelevant: ‘If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted,’ and ‘drops from the case.’ The plaintiff then has ‘the full and fair opportunity to demonstrate,’ through presentation of his own case and through ⁶³⁷ cross-examination of the defendant's witnesses, ‘that the proffered reason was not the true reason for the employment decision,’ and that race was. He retains that ‘ultimate burden of persuading ike [trier of fact] that [he] has been the victim of intentional discrimination. ’ The presumption, having fulfilled its role of forcing the defendant to come forward with some response, simply drops out of the picture. The defendant’s ‘production’ (whatever its persuasive effect) having been made, the trier of fact proceeds to decide the ultimate question: whether plaintiff has proven ‘that the defendant intentionally discriminated against [him]’ because of Ms race. The factfinder’s disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie ease, suffice to show intentional discrimination.

Thus, rejection of the defendant’s proffered reasons, will permit the trier of fact to infer the ultimate fact of intentional discrimination, and the Court of Appeals was correct when it noted that, upon such rejection, ‘[n]o additional proof of discrimination is requiredBut the Court of Appeals’ holding that rejection of the defendant’s proffered reasons compels judgment for the plaintiff disregards the fundamental principle of Mule 801 that a presumption does not shift the burden of proof, and ignores our repeated admonition that the Title YII plaintiff at all times bears the ‘ultimate burden of persuasion.’ ” (Emphasis added and in original) (footnote omitted) (citations omitted). Hicks, 509 U.S. at —---—, 113 S.Ct. at 2747-49 , 125 L.Ed.2d at 416-19 . This Court has previously stated that prima facie evidence in the Batson context means “ ‘the establishment of a legally mandatory, rebuttable presumption.’” Stanley v. State, 313 Md. 50, 60 , 542 A.2d 1267, 1272 (1988) (quoting Dept. of Community Affairs v. Burdine, 450 U.S. 248 , 254 n. 7, 101 S.Ct 1089 , 1094 n. 7., 67 L.Ed.2d 207 , 216 n. 7 (1981)). In ⁶³⁸ Gray v. State, 817 Md. 250 , 254, 562 A.2d 1278, 1280 (1989), we indicated “the trial judge [must] determine whether the defendant had made out a prima facie case of racial discrimination and, if so, whether the State had satisfactorily rebutted the presumption.” (Emphasis added).

In Chew v. State, 317 Md. 233 , 562 A.2d 1270 (1989), the Court elucidated that the burden of proof (or the burden of persuasion) shifts to the State to explain a prima facie discriminatory strike. We said: “The State has the burden of showing that 1) a reason other than the race of the juror did exist, and 2) the reason has some reasonable nexus to the case and was in fact the motivating factor in the exercise of the challenge;” (Emphasis added). Chew, 317 Md. at 247 , 562 A.2d at 1277 . The shift of the burden of proof emanates from our statement in Stanley, supra, that: “Although the phrase ‘prima facie case’ ‘may be used by courts to describe the plaintiffs burden of producing enough evidence to permit the trier of fact to infer the fact at issue,’ in the Title VII context (and by implication, the Batson context), the phrase denotes ‘the establishment of a legally mandatory rebuttable presumption.’ Burdine, 450 U.S. at 254 n. 7, 101 S.Ct. at 1094 n. 7, 67 L.Ed.2d at 216 n. 7.

Also see B. Garner, A Dictionary of Modern Legal Usage 434 (1987) (citing Burdine for ‘prima facie case’).” 313 Md. at 60 , 542 A.2d at 1272 . In Stanley , the Court went on to explain the prosecution’s burden on remand, since there was a prima facie case of discrimination in the use of peremptory challenges: “If the State can honestly come forth with neutral, nonracial reasons for each of its challenges to a black juror, and if the trial court, after examining the State’s explanations within the entire context of the voir dire proceedings finds all eight challenges have been satisfactorily justified and there was no evidence of a discriminatory purpose, then ⁶³⁹ Stanley’s convictions and sentences will stand affirmed.” (Emphasis added) (footnote omitted). 313 Md. at 80 , 542 A.2d at 1281 . In a more recent case, Tolbert v. State, 815 Md. 13 , 558 A.2d 228 (1989), we affirmed the procedure set out in Stanley, supra, after the trial judge finds a prima facie case and made clear that the ultimate burden of persuasion is on the State: “ ‘[T]he State is to present, if it can, honest, neutral, nonracial reasons for the challenges of each black potential juror who was stricken. Any reasons presented must be legitimate, clear and reasonably specific, as general assertions of assumed group bias or broad denials of discriminatory motives will be insufficient to overcome the defendants’ prima facie cases.

The reasons must be tailored to the particular facts of the case that was tried and related to the individual traits of the jurors. The defendant will be afforded the opportunity to rebut any explanations put forth by the prosecutor and to expose any justification that on its face may appear racially neutral, but is in reality a sham or pretext. The trial court must then articulate a clear ruling detailing the basis on which it was made, and explaining whether the established prima facie case of purposeful discrimination has been overcome by the State. ” (Emphasis added). 315 Md. at 19, 553 A.2d at 280 (quoting Stanley, 313 Md. at 92 , 542 A.2d at 1287-88 ). It is time for us to clarify that a prima facie case of discrimination under Batson merely