Jones v. State

BELL, Judge. I. This case presents an issue left unresolved in Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986). In that case, Justice Powell, writing for the Supreme Court, commented: [WJe express no view on whether it is more appropriate in a particular case, upon a finding of discrimination against black jurors, for the trial court to discharge the venire and select a new jury from a panel not previously associated with the case, (citation omitted) or to disallow the discriminatory challenges and resume selection with the improperly challenged jurors reinstated on the venire, (citations omitted). Id. at 99-100 n. 24, 106 S.Ct. at 1725 n. 24, 90 L.Ed.2d at 90 n. 24.

This Court also has addressed the issue without directly determining the appropriate remedy for a Batson violation. See Stanley v. State, 313 Md. 50 , 62-63 n. 8, 542 A.2d 1267 , 1273 n. 8 (1988). See also Gilchrist v. State, 340 Md. 606, 644-45 , 667 A.2d 876, 895 (1995) (Chasanow, J., concurring). The Court of Special Appeals held that determining the proper remedy for a Batson violation is a matter addressed to the sound discretion of the trial court.

Anzelo Jones a/k/a Angelo Jones v. State, 105 Md.App. 257 , 659 A.2d 361 (1995). We agree. ⁵⁸⁷ II. The petitioner, Anzelo Jones, charged with various drug related offenses, was tried by a jury in the Circuit Court for Baltimore City. During jury selection, after the venire had been questioned on its voir dire, resulting in the disqualification of several venirepersons, the trial judge addressed the panel that remained, as follows: Members of the jury, we go now to that part where those of you who will actually serve on this case are selected.

In this case, as is true in every case like this one, the State has five, and the Defendant ten peremptory challenges ... What this means is that up to those numbers the parties may excuse you from serving in this case without explaining to anyone why they have done so. To provide the parties with the opportunity to exercise this right which the law gives them, what we are going to do is ask that you please come forward in smaller groups, ... and when the clerk calls out your number if you would please step forward two or three steps so the parties can see you and then from one to the other the clerk will ask is this juror acceptable to the State, acceptable to the Defendant. If both say yes, that individual is seated in the jury box.

If either says no, that person is excused. If you are excused, please return immediately to the jury assembly room. The jury selection process then continued in open court. After the defense used three consecutive peremptory challenges to strike white venirepersons, the prosecution requested a bench conference.

While it did not make a formal Batson challenge at that time, the prosecution informed the court at that conference, that it wanted simply “to alert the Court to the State’s preliminary impression of what defense counsel is doing.” Thus, focusing on how the petitioner used his first three peremptory challenges, it observed, for the record, that the petitioner had struck three white venirepersons, “none of whom gave excuses or reasons why they should be struck and each one was replaced with an individual of African/American descent.” ⁵⁸⁸ Jury selection resumed and the petitioner exercised its next peremptory challenge to strike another white venireperson from the panel. This time, the prosecution lodged a formal Batson challenge, in support of which it pointed to the fact that each of the petitioner’s peremptory strikes to that point was of white venirepersons. Having required the petitioner to respond to the prosecution’s allegations, and after considering that response, the trial court found that the petitioner’s exercise of his peremptory challenges was constitutional. 1 Jury selection resumed once again. The State interposed another Batson objection when the petitioner exercised his fifth peremptory challenge to remove yet another white venireperson.

The objection was not adjudicated, however, until after the jury had been impanelled and the alternate jurors selected. At that time, the trial court permitted the petitioner to provide, at the bench, race-neutral explanations for the exercise of the contested peremptory challenges. 2 Rejecting the explanations given as “pure, simple subterfuge,” the court explained: ⁵⁸⁹ If I were to permit — I was stretching it before and in spite of the warning and the closeness of it — if I were to permit this to go on, we would totally undercut the Batson law as the Supreme Court of the United States— With respect to the remedy for the Batson violation, it ruled: We are not going to strike the entire prospective jury. We are going to ... [W]e will reseat the juror you struck. si* % s-s # Each one of your challenges is invalidated. We will roll the clock back to where we were and we will re-seat every one that you invalidly struck.

Consistent with its intent to “roll the clock back to where we were,” the trial court recalled not only the five white prospective jurors, whom it had determined had been improperly stricken in violation of Batson , but also the two black venirepersons stricken, albeit properly, the court ruled, by the prosecution. 3 The trial court explained the procedure it would follow to achieve the desired result: What we are going to do when ... all seven of those who have been struck have returned to the courtroom is we are ⁵⁹⁰ going to reconstitute the jury precisely as it was before either party exercised a [peremptory] challenge. * * * * * ❖ We will review the panel and the parties will have their strikes to exercise. I have invalidated each one of the strikes that the Defendant has exercised on grounds that they were unconstitutionally exercised, and, therefore I will not permit the exercise of the restored challenges to any of those five the Defendant has previously stricken. When the stricken jurors had returned to the courtroom, the trial court advised the venire as follows: Members of the panel, I have invalidated the [peremptory] challenges which have been previously exercised and what we are going to do is re-seat the twelve jurors in the jury box but replacing three of the twelve jurors who were originally seated■ and were subsequently stricken. Of the jurors currently seated in seats number 4, 5 and 6, if you would please leave the jury box and return, just return to. the audience, the spectator section.

Then Juror Number 4 will be you, Juror Number 9.... Juror Number 5, Juror Number 10 ... if you would, resume the number 5 seat. Finally, Juror Number 6 will be Juror Number 16____ If you would, resume your seat. (Emphasis added) As so constituted, the jury was declared by both parties to be acceptable. 4 Thereafter, the petitioner was tried, convicted, and sentenced to a 14 year prison sentence.

The convictions were affirmed by the Court of Special Appeals. That court rejected the petitioner’s claim that the ⁵⁹¹ trial court erred in reseating the jurors found to have been improperly stricken, rather than striking the entire panel and beginning jury selection anew. It held that reseating those jurors was not an abuse of the trial court’s discretion and, so, did not constitute error. 5 The petitioner filed a petition for the issuance of the writ of certiorari, which we granted, to decide whether a trial court, which determines that peremptory challenges have been exercised in violation of Batson , should discharge the venire and select the jury from a new venire or reseat the jurors who were stricken improperly?

III

Kecognizing that it is within the trial court’s discretion to fashion a remedy for a Batson violation, the petitioner asserts that, in this case, instead of reseating improperly stricken jurors, the trial court should have dismissed the entire venire and convened a new one from which to select the jury. He further maintains that, because they were biased against him for having attempted to remove them from the venire, reseating the jurors significantly prejudiced him, in violation of his 5th amendment right to trial by a fair and impartial jury. Thus, the petitioner argues that, under the facts of this case, the more appropriate, indeed, the only, remedy, was the dismissal of the venire and beginning jury selection anew. The failure to do so, he submits, constitutes an abuse of discretion, warranting reversal of the circuit court’s judgment.

The State, on the other hand, urges the adoption of a different per se rule. Under the rule it advocates, trial courts, upon determining that a party has exercised peremptory challenges in an unconstitutional manner, would be required, as the sole remedy for the Batson violation, to reseat those jurors who were improperly stricken. In the alternative, ⁵⁹² recognizing that this Court could determine that it is within the trial court’s discretion to fashion a remedy for a Batson violation, it argues that the trial court did not err; reseating improperly stricken jurors was, in this case, a proper exercise of its discretion. To hold otherwise, it contends, rewards the petitioner because by unconstitutionally exercising peremptory challenges, he will have obtained the result he sought, namely a venire which does not include the jurors he struck.

Moreover, the State asserts, such a result would violate the equal protection rights of the stricken jurors not to be excluded from jury service for a racially discriminatory reason.

IV

A. This appeal is not concerned with when, and if, a party has committed a Batson violation. We have previously addressed those issues, most recently in Harley v. State, 341 Md. 395 , 671 A.2d 15 (1996), largely resolving them. See Gilchrist, 340 Md. at 625-26 , 667 A.2d at 885-86 , and Chasanow, J., concurring, 340 Md. at 645-647 , 667 A.2d at 895-896 . The issue, rather, concerns the consequences and effect of such a violation on the jury selection process.

They can not be determined without first assessing the impact of a Batson violation on the various participants in that process. Batson was designed to “serve multiple ends.” Powers v. Ohio, 499 U.S. 400, 406 , 111 S.Ct. 1364, 1368 , 113 L.Ed.2d 411, 422 (1991). See also Allen v. Hardy, 478 U.S. 255, 259 , 106 S.Ct. 2878, 2880 , 92 L.Ed.2d 199, 205 (1986). The Batson court identified the harm resulting from the unconstitutional exercise of peremptory challenges as it relates to the defendant, the prospective jurors, and the “entire community.” 476 U.S. at 86-87 , 106 S.Ct. at 1717-18, 90 L.Ed.2d at 80-81 .

With regard to the defendant, the Court pointed out that “[pjurposeful 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, 90 L.Ed.2d at 80 . It reached a similar ⁵⁹³ conclusion as to a juror who is diseriminatorily excluded because of race: “by denying a person participation in jury service on account of his race, the [party exercising the strike] unconstitutionally discriminate[s] against the excluded juror.” Id. at 87 , 106 S.Ct. at 1718, 90 L.Ed.2d at 81 (citing Strauder v. West Virginia, 100 U.S. 303, 308 , 25 L.Ed. 664, 666 (1880)). It concluded: The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community. Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice.

Id. (Citations omitted). While the Court’s primary focus was on the constitutional rights of the defendant, the Supreme Court nevertheless acknowledged for the first time that the jurors too had a stake in the process, a right to a non-discriminatory method of jury selection; they are entitled to serve on a jury, and thus to be free from the discriminatory exercise of peremptory challenges. Subsequent cases have confirmed the existence and significance of jurors’ equal protection rights.

J.E.B. v. Alabama ex. rel. T.B., 511 U.S. 127 ,-, 114 S.Ct. 1419, 1421 , 128 L.Ed.2d 89, 97 (1994) (‘We have recognized that whether the trial is criminal or civil, potential jurors, as well as litigants, have an equal protection right to jury selection procedures that are free from state-sponsored group stereotypes rooted in, and reflective of, historical prejudice.”); Georgia v. McCollum, 505 U.S. 42, 48-50 , 112 S.Ct. 2348, 2353-54 , 120 L.Ed.2d 33, 44-46 (1992) (noting that an individual juror’s right to equal protection is as much infringed when it is the defendant who exercises the strike based on race as when it is the prosecutor); Powers v. Ohio, 499 U.S. 400, 406-09 , 111 S.Ct. 1364, 1368-69 , 113 L.Ed.2d 411, 422-24 (1991) (applying the principle to the prosecutor); Edmonson v. Leesville Concrete Co., 500 U.S. 614, 619 , 111 S.Ct. 2077, 2082 , 114 L.Ed.2d 660, 672 (1991) (civil trial). “The error at issue in a Batson challenge is, of course, the ... racially discriminatory use of peremptory strikes in viola ⁵⁹⁴ tion of both the accused’s and the excluded venirepersons’ equal protection rights.” State v. Parker, 836 S.W.2d 930, 936 (Mo.1992) cert. denied Missouri v. Parker, 506 U.S. 1014 , 113 S.Ct. 636 , 121 L.Ed.2d 566 (1992) (citing Powers, 499 U.S. at 406-08 , 111 S.Ct. at 1368-69 , 113 L.Ed.2d at 422-24 ). The appropriate remedy must take account of and, to the extent possible, vindicate each. Deciding what action should be taken by a trial court to remedy a Batson violation is a matter of first impression in Maryland, although the issue itself has long been anticipated.

In Stanley v. State, 313 Md. at 62 -63 n. 8, 542 A.2d at 1273 n. 8, as earlier stated, we recognized and noted the issue, observing, “[wjhich remedy to apply may well be within the discretion of the trial court, depending on the circumstances of the particular case.” The case at bar requires us now definitively to decide whether, indeed, the determination of a remedy for a Batson violation is a decision vested in the discretion of the trial court or is one for which there ought to be a per se rule. B. As we have seen, the Supreme Court in Batson, supra, left it to the state and federal trial courts to determine whether, in a particular case, a Batson violation is more appropriately remedied by the discharge of the entire venire and beginning jury selection anew with a new venire or by the reseating of the improperly stricken juror. Some jurisdictions require trial courts finding a Batson violation to disallow the strike or to re-seat the improperly stricken juror. See Ellerbee v. State, 215 Ga.App. 312 , 450 S.E.2d 443, 448 (1994); State v. Grim, 854 S.W.2d 403, 416 (Mo.1993) cert. denied, Grim v. Missouri, 510 U.S. 997 , 114 S.Ct. 562 , 126 L.Ed.2d 462 (1993) (“[T]he proper remedy for discriminatory use of peremptory strikes is to quash the strikes and permit those members of the venire stricken for discriminatory reasons to sit on the jury if they otherwise would.”); Conerly v. State, 544 So.2d 1370, 1372 (Miss.1989) (“Having determined that the state’s explanation ⁵⁹⁵ did not provide a valid reason for striking Swain, the trial court was obligated to seat her on the jury unless the state could suggest another racially neutral reason for striking her.”); U.S. v. Robinson, 421 F.Supp. 467, 474 (D.Conn.1976), aff'd 556 F.2d 562 (2nd Cir.1977).

A minority of jurisdictions requires the trial court to discharge the entire venire and conduct jury selection from a newly convened venire. See State v. McCollum, 334 N.C. 208 , 433 S.E.2d 144, 159 (1993) cert. denied, McCollum v. North Carolina, — U.S. -, 114 S.Ct. 2784 , 129 L.Ed.2d 895 (1994) (the court noted that while neither reseating the stricken juror nor discharging the entire panel was inconsistent with the procedure required by Batson to remedy such a violation, “the simpler and ... clearly fairer approach is to begin the jury selection anew....”); People v. Wheeler, 22 Cal.3d 258 , 148 Cal.Rptr. 890, 907 , 583 P.2d 748, 765 (1978). See Minniefield v. State, 539 N.E.2d 464 (Ind.1989) (holding that the trial court erred by failing to grant mistrial as result of prosecution’s Batson violation). The majority of courts, however, have delegated to the discretion of the trial judge the determination of the appropriate remedy for a Batson violation.

See e.g. State v. Franklin, 456 S.E.2d 357, 360 (S.C.1995) cert. denied, Franklin v. South Carolina, — U.S.-, 116 S.Ct. 160 , 133 L.Ed.2d 103 (1995) (“We hold ... ’that it is within the trial judge’s discretion to fashion the appropriate remedy under the particular facts of each case”.... (citation omitted)); Ezell v. State, 909 P.2d 68, 72 (Okla.Crim.App.1995) (“We adopt this flexible approach as the best solution. We interpret Batson as suggesting that either remedy may be appropriate depending on the particular circumstances at trial”).

Commonwealth v. Fruchtman, 418 Mass. 8 , 633 N.E.2d 369, 373 (1994), cert. denied, Fruchtman v. Massachusetts, — U.S.-, 115 S.Ct. 366 , 130 L.Ed.2d 319 (1994) (“Choice of remedy was ... the prerogative of the judge”); Haschke v. Uniflow Manufacturing Co., 268 Ill.App.3d 1045 , 206 Ill.Dec. 387, 391 , 645 N.E.2d 392, 396 (1994); ⁵⁹⁶ Friedman v. State, 654 So.2d 50, 52 (Ala.Crim.App.1994), cert. denied, No. 1940189 (Ala.1995); Koo v. State, 640 N.E.2d 95, 100 (Ind.Ct.App.1994) (“Clearly, the remedy which a particular trial court employs upon a finding of purposeful discrimination is a matter left to the court’s discretion.”); State ex rel. Curry v. Bowman, 885 S.W.2d 421, 425 (Tex.Crim.App.1993), cert. denied, Texas v. Bowman, — U.S.-, 115 S.Ct. 184 , 130 L.Ed.2d 118 (1994) (“[W]here a Batson claim is sustained the court may fashion a remedy in its discretion____”) 6 ; Jefferson v. State, 595 So.2d 38, 41 (Fla.1992) (“[I]t is within the trial judge’s discretion to fashion the appropriate remedy under the particular facts of each case....”) 7 ; People v. Irizarry, 165 A.D.2d 715 , 560 N.Y.S.2d 279, 281 (1990); State v. Walker, 154 Wis.2d 158 , 453 N.W.2d 127 , 135 n. 12 (1990) cert. denied 498 U.S. 962 , 111 S.Ct. 397 , 112 L.Ed.2d 406 (1990); U.S. v. Forbes, 816 F.2d 1006, 1011 (5th Cir.1987). ⁵⁹⁷ c. Reseating improperly stricken jurors or disallowing strikes based on race may impact on a litigant’s right to a fair trial by an impartial jury. Those courts which require trial courts to discharge the venire whenever a Batson violation has been found, do so to protect the defendant’s right to a fair trial by an impartial jury.

Those jurisdictions adhere to a per se rule of discharging the entire venire panel and beginning jury selection anew, thus eliminating this potential for prejudice and preserving the defendant’s rights in every instance. Their purpose is to insulate him or her absolutely from any prejudice which may accrue from the unconstitutional exercise of peremptory challenges. McCollum, 433 S.E.2d at 159 . They recognize that “[t]here is the lurking danger ... that an unsuccessfully challenged juror may now bear an animus against the challenger arising from the challenge itself.” Chew v. State, 71 Md.App. 681, 704 , 527 A.2d 332, 344 (1987), aff'd 317 Md. 233, 236 , 562 A.2d 1270, 1271 (1989).

See Powers, 499 U.S. at 410 , 111 S.Ct. at 1370 , 113 L.Ed.2d at 424 (“It is suggested that no particular stigma or dishonor results if a prosecutor uses the raw fact of skin color to determine the objectivity or qualifications of a juror. We do not believe a victim of the classification would endorse this view; the assumption that no stigma attaches contravenes accepted equal protection principles.”); Jefferson, 595 So.2d at 39 (no danger of prejudice when the inquiry is conducted outside the venire ’s presence); McCollum, 433 S.E.2d at 159 (“To ask jurors who have been improperly excluded from a jury because of their race to then return to the jury to remain unaffected by that recent discrimination, and to render an impartial verdict without prejudice toward either the State or the defendant would be to ask them to discharge a duty which would require near superhuman effort and which would be extremely difficult for a person possessed of any sensitivity whatsoever to carry out successfully.”); Walker, 453 N.W.2d at 135 n. 12. (“One factor the trial court should consider in selecting the appropriate remedy is whether the challenged juror is aware of the fact that he or she was challenged by the prosecutor. If the challenged juror is aware of the fact that he or she was ⁵⁹⁸ challenged by the prosecutor, then that juror should not be reinstated because there is a substantial likelihood that he or she will have developed a bias against the prosecutor.”). 8 The more improperly stricken jurors are reseated the more likely it is that the resulting jury will not be impartial, assuming, of course, that they know that their removal was prompted by an improper exercise of a peremptory challenge.

As the Court observed in Ezell, 909 P.2d at 72 : If a Batson/McCollum claim is raised at the time a juror is challenged,