Jones v. State

ALPERT, Judge. At the centerpiece of this appeal is an issue never before addressed by a Maryland appellate court: what action should be taken by a trial court when a violation of Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986), has occurred? On October 7, 1993, Officer Kevin Turner of the Baltimore City Police Department received a tip from a confidential informant that a black male dressed in a black hat, a black, purple and green sweatsuit, black pants, and Fila tennis shoes was selling drugs in the area of Fayette and Monroe streets in Baltimore City. This informant was registered with the Police Department and had supplied reliable information in the past.

Officer Turner, in plain clothes, responded to Fayette and Monroe streets and began conducting covert surveillance of the area from his unmarked vehicle. While there, he observed several persons approach a juvenile, later identified as Tyrice Hawkins, and give him cash. Hawkins, in turn, gave this money to a man, who fit the description given to Turner by the informant. Turner then observed Hawkins walk across ²⁶⁰ the street, retrieve glass vials of a white substance from an alley, and give the vials to the persons who had given him money.

After observing two or three such transactions take place, Turner went to the police station and returned approximately five minutes later with two uniformed officers. Hawkins and appellant (the man earlier observed by Turner) were placed under arrest. The police found one hundred and fifty five dollars in appellant’s possession. A brown bag containing twelve vials of cocaine was recovered from the alley.

Appellant was charged with use of a minor to distribute cocaine, possession of cocaine with intent to distribute, possession of cocaine, conspiracy to distribute cocaine, conspiracy to possess cocaine with intent to distribute, and conspiracy to possess cocaine. Prior to trial, appellant’s attorney moved to suppress the money that was recovered from appellant. Defense counsel also requested that the identity of the confidential informant be disclosed, invoking the exception to the non-disclosure privilege which permits release of the informant’s identity when the identity of the suspect is at issue. Appellant’s attorney argued to the court that although appellant was wearing clothing similar to that described by the informant, he was not the individual who the informant saw selling drugs.

The trial court refused to permit disclosure of the informant’s identity and denied appellant’s motion. Appellant was convicted by a Baltimore City jury (Ross, J., presiding) on all charges and was sentenced to fourteen years imprisonment. In this appeal, appellant presents the following three questions for our review: I. Did the trial court err in refusing to hold an in camera hearing on the. issue of whether to order disclosure of the confidential informant?

II

Did the trial court err in ruling that- Batson was violated by defense counsel when striking five white persons from the jury panel? ²⁶¹ III. Did the trial court err in reseating the stricken jurors? I. Disclosure of Informant’s Identity Appellant argues first that the trial court erred in refusing to permit disclosure of the confidential informant’s identity and refusing to at least hold an in camera hearing on the matter. Relying on the Supreme Court’s decision in Roviaro v. United States, 353 U.S. 53 , 77 S.Ct. 623 , 1 L.Ed.2d 639 (1957), the Court of Appeals has adopted a balancing test for determining whether disclosure of an informant’s identity is warranted in a particular case.

Warrick v. State, 326 Md. 696, 699-700 , 607 A.2d 24 (1992). This test balances the State’s interest in maintaining the anonymity of its informers against the due process and confrontation rights of the accused. Id. As the Supreme Court has instructed, in applying this test, the trial court must look to “the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.” Roviaro, 353 U.S. at 62 , 77 S.Ct. at 628 .

A “key element” is “the materiality of the informer’s testimony to the determination of the accused’s guilt or innocence.... ” Warrick, 326 Md. at 701 , 607 A.2d 24 . Stated differently, disclosure of an informant’s identity may be permitted “whenever the informer was an integral pavt of the illegal transaction.” McCoy v. State, 216 Md. 332, 337 , 140 A.2d 689 , cert. denied, McCoy v. Pepersack, 358 U.S. 853 , 79 S.Ct. 82 , 3 L.Ed.2d 87 (1958) (emphasis added). It has been held, for instance, that an informant’s identity should be disclosed when the informant introduced the police to the suspect, was present during a drug buy, or otherwise played an active role in the transaction. See Roviaro, 353 U.S. at 64-65 , 77 S.Ct. at 629-30 (informant participated in undercover buy); Warrick, 326 Md. at 705-06 , 607 A.2d 24 (informant introduced undercover police officer to drug dealer); Brooks v. State, 320 Md. 516, 519 , 578 A.2d 783 (1990) ²⁶² (informant introduced seller of cocaine to officers and was present during entire transaction).

In these instances, the informant’s ability to identify the suspect “may be relevant and helpful to the defense or essential to a fair determination of the case.” Warrick, 326 Md. at 706 , 607 A.2d 24 . The Court of Appeals has cautioned, however, that the particular role played by the informant in apprehending the defendant is not necessarily dispositive of whether or not the privilege of non-disclosure applies. Gibson v. State, 331 Md. 16, 23 , 626 A.2d 44 (1993); Brooks, 320 Md. at 525 , 578 A.2d 783 (holding that “trial courts must apply the Roviaro balancing test in each case, regardless of the labels attached to the informer’s role”). On the other hand, there are some “more rudimentary” cases where the informant’s testimony clearly has such limited relevance that disclosure of the informant’s identity would be of no appreciable help to the defendant and would be outweighed by the State’s interest in maintaining the confidentiality of its informants.

In Brooks, 320 Md. at 525 , 578 A.2d 783 , the Court of Appeals explained: Clearly, the practical application of the balancing test is more rudimentary in some cases. For example, we recognize that the privilege ordinarily applies where the informer is a mere ‘tipster,’ who supplies a lead to law enforcement officers but is not present at the crime, while disclosure is usually required when the informer is a participant in the actual crime. (citations omitted). This case presents the classic example of the informant as a mere “tipster.” Officer Turner received a telephone call from the informant notifying him that someone wearing a black hat, a black, purple, and green sweatsuit, black pants, and Fila tennis shoes was selling drugs in a specified area.

Turner responded to the scene within one-half hour and saw an individual matching this description selling drugs. The informant did not accompany Turner to the scene and did not witness the drug sales; he was, therefore, a mere “tipster.” ²⁶³ Moreover, whether the informant identified appellant as the individual he had seen earlier selling drugs in the same area is irrelevant; the fact remains that Officer Turner himself witnessed appellant doing so. We agree with the trial court’s rationale in refusing to permit disclosure of the informant’s identity: I think the record before this Court is abundantly clear that the issue raised by the Defendant is whether or not the person arrested is the person whom the witnesses saw on the day the offense was committed and the informant was not there. The informant is not an eyewitness to anything on the day of the crime.

So that the fact finder in this case, with respect to anything—and even if we assume, even if we assume for the purposes of the Court’s ruling on this issue that the informant informed on a totally different person, it is not this Defendant that he informed on[,] [i]t is irrelevant because the testimony is that the Defendant was seen committing the crime and the person who saw the crime committed arrested him on the same day. The fact that the informant may have had someone else in mind would be a red herring in the factual context we have in this case. Still, appellant maintains that the record is unclear as to exactly what role the informant played in the transaction and that an in camera hearing on the matter should have been held. Contrary to appellant’s assertions, however, there was clearly testimony at the suppression hearing clearly revealed that the informant’s involvement in apprehending appellant was limited to the telephone call he or she made to Officer Turner.

Q Officer Turner, at the time you were there making your observations, was your Cl present on that particular block? A No, sir. Q And you received that information from the Cl, were you on the phone with him or back at the station or— A In my office on the telephone. Q Back at Western District?

A Yes, sir. ²⁶⁴ Q Did he accompany you at all back to that scene? A No, sir. 1 We hold, therefore, that the trial court properly refused to permit disclosure of the informant’s identity. The relevance of his or her testimony is clearly limited under the facts of this case and is far outweighed by the State’s interest in maintaining the anonymity of its informant. As the Supreme Court has noted, the privilege afforded the State in not disclosing its informants is particularly important “in the enforcement of ... narcotics laws, [since] it is all but impossible to obtain evidence for prosecution save by the use of decoys.

There are rarely complaining witnesses.” Lewis v. United States, 385 U.S. 206 , 210-211 n. 6, 87 S.Ct. 424 , 427 n. 6, 17 L.Ed.2d 312 (1966) , reh’g denied, 386 U.S. 939 , 87 S.Ct. 951 , 17 L.Ed.2d 811 (1967) (quoting Model Penal Code § 2.10, cmt., p. 16 (Tent. Draft No. 9, 1959)).

II

Jury Selection During jury selection, appellant’s attorney exercised four peremptory strikes of white jurors. The State objected on the basis that the strikes were discriminatory and violated the principles set forth in Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986). In response to the court’s request for the reasons why he struck the jurors, appellant’s attorney explained that he did so because of the area in which the prospective jurors resided, and not because they were white. He explained that, “I don’t believe that they will be able to relate to my client and his environment.” The court accepted counsel’s explanation and jury selection continued.

After twelve jurors and two alternates were selected, the State renewed its Batson challenge to the four peremptory strikes exercised by appellant’s attorney, as well as a fifth ²⁶⁵ strike of another white juror. The State argued that the five white jurors stricken by appellant were from the same geographical location as black members of the jury panel who were accepted by him. The trial judge agreed, noting that he “was stretching it before [in overruling the Batson challenge] in spite of the warning and the closeness of it.... ” The trial judge commented that, “if I would permit this to go on, we would totally undercut [Batson ]....” The court did, however, permit appellant’s attorney to repeat his reasons for striking the five white jurors. The following ensued: THE COURT: I want you to address each one of them— [DEFENSE COUNSEL]: Let’s go through.

THE COURT: —each one of them separately and I want you to make your record and say everything you want to about them. [DEFENSE COUNSEL]: Okay. Where are we? THE COURT: We are starting at the top of the list. 009, Ms. Hall. [DEFENSE COUNSEL]: 009, I explained Tonesa Hall, Vancouver Road is an area—I am not familiar with it. It places itself in zone 29.

Was not struck because the person was white, was struck because of age as well. The age, that age is not close to my client’s age, what I consider the age, and the location of this person, I don’t believe the person will connect with my client and will be, as I see it, a peer. I struck the person for those reasons. THE COURT: Number 10. [DEFENSE COUNSEL]: Number 10, George Athas who is a broker.

I don’t think a person who is a broker is going to connect with my client and from the area in which he lives, I chose to strike him for that reason. THE COURT: Number 16. [DEFENSE COUNSEL]: Number 16 is a 35 year-old from zone 18. She’s a customer service rep, a person again who I ²⁶⁶ don’t believe is going to connect with my client or his •witnesses who will testify. ^ THE COURT: Number 49.... [DEFENSE COUNSEL]: Yes. Number 49 was James Rineheart who is an accountant in zone 11 on Buena Vista Avenue.

Based on my knowledge of the area, it is an area where they would not have the same type of problems that my client would encounter day to day and in his life would not connect with him. I don’t believe someone who is an accountant by experience would connect with him as well. THE COURT: Number 55. [DEFENSE COUNSEL]: 55. John Carra who is a scientist.

Again, Gilman Terrace, zone 11, which is an area that is a little—much more affluent than the area in which my client resides and who is a person—is a scientist. Look at things, in my belief, scientifically and I believe will then tend to believe the police officers merely because they’re policemen. I believe those are the strikes, Judge. The trial court found that the reasons given by defense counsel were “pure simple subterfuge” and that the real reason the jurors were stricken was solely because of their race.

The court stated: After reviewing the characteristics of the African/American members of the jury, and other members of the jury who have passed muster in this Defendant’s eye, I do not find the explanations given to be justified and I again find it’s a subterfuge and that the real reason those persons were struck was solely because of their race and, therefore, we will re-seat, we will re-seat all of them and then we will proceed from there. The court invalidated each of appellant’s peremptory strikes and reinstated the five white jurors to the jury panel. The court further ruled that during the re-selection process, appellant would not be permitted to strike 'any of the previously stricken jurors. ²⁶⁷ Appellant claims that the trial court erred in three respects during the selection of the jury. He argues that the court erred in the first instance by failing to recognize that Batson does not apply to the discriminatory removal of white persons from a jury panel.

Second, appellant contends that he offered adequate, race-neutral reasons for striking the five white jurors. Finally, he argues that the court erred in reinstating the five jurors on the panel rather than striking the entire venire. A. Applicability Of Batson To White Persons Despite appellant’s assertions to the contrary, Maryland has now joined those jurisdictions that hold that the Fourteenth Amendment is violated when a white person is struck from a jury panel solely on the basis of his or her race. Gilchrist v. State, 97 Md.App. 55, 75-76 , 627 A.2d 44 , cert. granted, 332 Md. 741 , 633 A.2d 102 (1993); Brashear v. State, 90 Md.App. 709, 715 , 603 A.2d 901 , cert. denied, 327 Md. 523 , 610 A.2d 796 (1992).

See also Brogden v. State, 102 Md.App. 423, 431-32 , 649 A.2d 1196 (1994). As we noted in Gilchrist, Batson “applies with equal force to the exercise of peremptory challenges in a manner discriminatory to blacks or whites.” 97 Md.App. at 75-76 , 627 A.2d 44 . B. The Striking of Juror Numbers 9, 10, 16, 49, and 55 Appellant next challenges the trial court’s ruling that juror numbers 9, 10, 16, 49, and 55 were struck by appellant solely because of their race. The record reveals that appellant’s attorney struck juror number 9 because she was from an area that he was not familiar with and because her age, 45, was not close to appellant’s.

He explained to the court that he did not believe juror number 9 “will connect with my client and will be, as I see it, a peer.” Juror number 10 was also struck, according to appellant’s attorney, because of the area in which he lived. Appellant’s attorney explained that he did not believe that a broker would be able to identify with appellant. Juror number 16 was thirty-five years old and was employed as a ²⁶⁸ customer service representative. She was struck because appellant’s attorney did not believe she “is going to connect with my client or his witnesses who will testify.” Juror number 49 was an accountant and lived in an area “where they would not have the same type of problems that my client would encounter day to day and in his life would not connect with him.

Lastly, juror number 55 was struck because he was a scientist and lived in a “much more affluent” area than that in which appellant lived. Defense counsel stated further that a scientist, he believed, would “tend to believe the police officers merely because they’re policemen.” In reviewing the trial court’s ruling on these strikes, we are mindful of our limited role in this regard. We “do not presume to second-guess the call by the ‘umpire on the field’ either by way of de novo fact finding or by way of independent constitutional judgment.” Bailey v. State, 84 Md.App. 323, 328 , 579 A.2d 774 , cert. denied, 321 Md. 225 , 582 A.2d 531 (1990). Instead, we must determine only if the trial court was clearly erroneous in its ruling.

Id. at 329, 579 A.2d 774 ; Aiken v. State, 101 Md.App. 557, 563 , 647 A.2d 1229 (1994). In Bailey , we explained: It is the trial judge who is in close touch with the racial mood, be it harmonious or be it tense, of the local community, either as a general proposition or with respect to a given trial of high local interest. The trial judge is positioned to observe the racial composition of the venire panel as a whole, a vital fact frequently not committed to the record and, therefore, unknowable to the reviewing court. Id., 84 Md.App. at 328 , 579 A.2d 774 .

In our view, the circumstances surrounding the exercise of peremptory strikes by defense counsel clearly support the trial court’s finding that Batson was violated. The reasons advanced by counsel, namely, the location of the jurors’ residences, were, we find, merely a pretext for excluding white jurors from the panel on the basis of their race. Appellant’s attorney, for example, did not strike