Mejia v. State

ROBERT M. BELL, Judge. Ivan Antonio Mejia, the petitioner, on trial in the Circuit Court for Montgomery County for rape and related sexual offenses, challenged, as discriminatory, the State’s use of one of its peremptory challenges to exclude a venireperson the petitioner alleged to be Hispanic. The court overruled his objection and the trial proceeded, resulting in the petitioner’s conviction of attempted rape in the second degree and second degree sexual offense. The petitioner’s appeal to the Court of Special Appeals raised one issue: whether, when he objected below, he presented a prima facie case of purposeful discrimination, requiring the State’s response.

The intermediate appellate court affirmed the trial court’s judgment. Mejia v. State, 90 Md.App. 31 , 599 A.2d 1207 (1992). We granted certiorari to consider what proof a moving party is required to produce to establish a prima facie case of purposeful discrimination against Hispanics. ⁵²⁶ I. The jury voir dire began on January 7, 1991. Although the record does not reflect any discussion of an “Hispanic problem” prior to its start, early in the voir dire proceedings, the petitioner’s counsel noted his failure to submit a question concerning whether any venirepersons spoke Spanish.

Agreeing to ask the question, the court volunteered that, “[W]hen I get to it, [I am going to ask] whether they have prejudices caused by the fact that he needs an interpreter.” 1 Juror No. 131, Peter Estrada, responded to a question concerning legal training and informed the court that he had once worked as a legal clerk in a law office in New York City and, about four or five years earlier, attended Antioch Law School for a semester. The following colloquy between counsel and the court then occurred: [The Petitioner’s Counsel]: As far as I can tell, I noticed that that is the only juror with a[n] Hispanic background. I wanted to note that for the record in terms of jury . strikes later that Mr. Estrada, as far as I can tell, is the only juror with an Hispanic background. THE COURT: You noticed that? [The Petitioner’s Counsel]: I don’t know what will come of it, but I just wanted to mention it.

Subsequently, the court inquired whether any member of the venire had been the victim of, a witness to, or charged with, either a crime of violence or a crime against property. A Ms. Porto reported that she had been robbed at gunpoint in Bethesda, which prompted the petitioner’s counsel to ask if she remembered “if the person was white or black or ⁵²⁷ Hispanic?” No motion to strike Ms. Porto for cause was made when she responded that the perpetrator was “black.” At the end of the bench conferences that that question generated, the following occurred: THE COURT: ... All right, now we will — I am about ready to go to the Hispanic problem. [Prosecutor]: Do you want us to stay up here? THE COURT: You might as well.

Tell me after I finish this, be thinking ahead — I don’t go down the list. Tell me what you think I should cover if I haven’t done it. (Whereupon, the bench conference was concluded.) THE COURT: Ladies and gentlemen of the prospective jury panel, as you can see, the defendant, Mr. Mejia, does not speak English or does not speak it fluently enough to be able to understand all of the proceedings that are taking place in English. He, therefore, has a Spanish interpreter.

Is there any member of the panel who feels that this is so prejudicial to you that you would be unable to give Mr. Mejia a fair and impartial trial? Does anyone here speak and understand Spanish? Mr. Estrada? [ 2 ] The final relevant occurrence in the unfolding of the “Hispanic problem” came during the empaneling of the jury. The State peremptorily struck Mr. Estrada, whereupon the petitioner's counsel requested a bench conference, at which the following occurred: ⁵²⁸ [The Petitioner’s Counsel]: I am going to object to this on the grounds of the [Batson 3 ] case: We have an Hispanic defendant charged with raping a non-Hispanic or white woman.

There is only one Hispanic person on the jury panel. The State has used its strike to strike that person. There have been three strikes used by the State. Now there is this one and one earlier one that was used to strike a potential black juror.

Basically, I'm going to object to his strike on the surface as a racially motivated strike that is taking out the only Hispanic juror in a panel of 50 people. THE COURT: Motion denied. When challenging the State’s use of its peremptories to strike Mr. Estrada, the petitioner stated explicitly what previously may have been only implicit, that he was Hispanic and that the State was striking the only person on the venire identified by anyone as Hispanic. The record is clear; at no time during the proceedings did the prosecutor voice the view that there really was no “Hispanic problem,” that the petitioner was not Hispanic, that Mr. Estrada did not have an Hispanic background, or that other panel members did, or may have.

Neither does the record reflect any remarks by the court that suggested that it was concerned that the record did not adequately chronicle sufficient facts for Batson purposes. The court’s ruling was made immediately after the petitioner’s counsel ⁵²⁹ had argued in support of his Batson motion. Not only was the ruling made before the State offered an explanation for striking Mr. Estrada, but it was made without affording the State the opportunity to do so.

II

In Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986), the Supreme Court of the United States held, for the first time, that a defendant “may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor’s exercise of peremptory challenges at the defendant’s trial.” Id. at 96 , 106 S.Ct. at 1723 , 90 L.Ed.2d at 87 . The Court said To establish such a case, the defendant first must show that he is a member of a cognizable racial group and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits “those to discriminate who are of a mind to discriminate.” Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. This combination of factors in the empaneling of the petit jury, as in the selection of the venire, raises the necessary inference of purposeful discrimination.

Id. at 96 , 106 S.Ct. at 1723 , 90 L.Ed.2d at 87-88 (citations omitted). The cognizable racial group at issue in Batson , as in our cases applying the Batson rule, see State v. Gorman, 324 Md. 124 , 596 A.2d 629 (1991); Gray v. State, 317 Md. 250 , 562 A.2d 1278 (1989); Chew v. State, 317 Md. 233 , 562 A.2d 1270 (1989); Tolbert v. State, 315 Md. 13 , 553 A.2d 228 (1989); Stanley v. State, 313 Md. 50 , 542 A.2d 1267 (1988), ⁵³⁰ was blacks. Blacks are not the only cognizable group to which the Batson rule applies, however. 4 The Supreme Court has recognized its application to “Latinos” and “Hispanics.” 5 Hernandez v. New York, 500 U.S. —, 111 S.Ct. 1859 , 114 L.Ed.2d 395 (1991). In that case, the issue was the adequacy of the prosecution’s explanation for its striking of “Latino” or “Hispanic” jurors.

While they disagreed on that point, not one of the justices expressed the belief that the State properly could peremptorily strike all Hispanics from the venire. See also Castaneda v. Partida, 430 U.S. 482 , 97 S.Ct. 1272 , 51 L.Ed.2d 498 (1977), in which the Supreme Court observed, “it is no longer open to dispute that Mexican-Americans are a clearly identifiable class. . . . [and, in that context,] Spanish surnames are just as easily identifiable as race. . . .” Id. at 495 , 97 S.Ct. at 1280 , 51 L.Ed.2d at 511 . The State does not disagree.

III

The Court of Special Appeals held that, since the petitioner failed to present a prima facie case of discriminatory use of peremptory challenges, the trial court properly overruled the petitioner’s motion. It explained that (1) the ⁵³¹ petitioner made no sufficient showing of a “predicate 'pattern of strikes’ from which an inference, permissible or impermissible, could even arise,” Mejia, 90 Md.App. at 41 , 599 A.2d at 1212 ; (2) “[t]he prosecutor’s questions and statements during voir dire examination and in exercising his challenges [did not] support ... an inference of discriminatory purpose,” id., quoting Batson, 476 U.S. at 97 , 106 S.Ct. at 1723 , 90 L.Ed.2d at 88 ; and (3) the petitioner failed to prove that either he 6 or Mr. Estrada was “Hispanic,” and, in addition, did not prove that the remaining members of the venire were not. 90 Md.App. at 43-46 , 599 A.2d at 1213-14 . Defining an Hispanic as one who speaks Spanish as a native language, has a Spanish surname, and is of Latin-American origin, a definition it characterized as “amorphous and imprecise,” 90 Md.App. at 44 , 599 A.2d at 1213 , the intermediate appellate court elaborated on why it concluded that the evidence was insufficient to prove that there was an “Hispanic problem”. In particular, while assuming that the petitioner met the first two criteria, i.e. speaks Spanish as a native language and has a Spanish surname, the court noted a total absence of evidence, and hence, proof of his Latin-American origins.

As to Mr. Estrada, the court held that a Spanish surname, standing alone, 7 is not a sufficient foundation upon which to build the prima facie case. That the evidence was insufficient to establish a ⁵³² prima facie case as to the non-Hispanic status of the remainder of the jury panel was also clear, the court said: Except for counsel’s self-serving ipse dixit in this regard, however, there was no basis for such a conclusion with respect to the rest of the panel. From the jurors, including alternates, who were accepted or challenged, we can comb the record and come up with the surnames of 28 members of the 50-person panel. With respect to the other 22, however, there is nothing in the record to give us even the surnames, let alone any information beyond the names.

For all we know, they may all have had Spanish surnames. Again, the burden of making a record was upon the appellant. 90 Md.App. at 46 , 599 A.2d at 1214 .

IV

The position of the Court of Special Appeals and of the State is straightforward: In the absence of an express stipulation by the State, a defendant may establish a prima facie case of purposeful discrimination only by presenting evidence to prove, or from which may be inferred, all of the requisite elements of that prima facie case. A proffer, even when neither contradicted nor challenged by the prosecutor or the court, is not sufficient. The determination whether a prima facie case of purposeful discrimination has been presented necessitates consideration of the nature of the prima facie case required by Batson , an issue we addressed at length in Stanley. The burden of establishing the prima facie case is, of course, on the party challenging the use of peremptories.

Batson, 476 U.S. at 93 , 106 S.Ct. at 1721 , 90 L.Ed.2d at 85 ; State v. Gorman, 315 Md. 402, 410 , 554 A.2d 1203, 1207 (1989), vacated, — U.S. —, 111 S.Ct. 1613 , 113 L.Ed.2d 712 (1991); Stanley v. State, 313 Md. at 71 , 542 A.2d at 1277 . Unless it is established by a preponderance of the evidence, no response by the other party is necessary. Id. at 71 , 542 A.2d at 1277 . ⁵³³ In the Batson context, “prima facie case” refers to “ ‘the establishment of a legally mandatory, rebuttable presumption' ”, Stanley, 313 Md. at 60 , 542 A.2d at 1272 , quoting Texas Dep’t 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), not to the plaintiffs burden of producing sufficient evidence to permit a trier of fact to infer the fact at issue. Whether the requisite prima facie showing has been made is the trial judge’s call, 313 Md. at 60 , 542 A.2d at 1272 , quoting Batson, 476 U.S. at 97 , 106 S.Ct. at 1723 , 90 L.Ed.2d at 88 , which must be made in light of all of the relevant circumstances.

Id. Relevant circumstances that “might give rise to or support or refute” id. [313 Md.] at 61, 542 A.2d at 1272 , such showing include “a ‘pattern’ of strikes against ... jurors [of the cognizable group] in the particular venire, or the prosecutor’s questions and statements during the voir dire examination and the exercise of peremptory challenges. . . .” Id. at 60 , 542 A.2d at 1272 . Once the moving party makes a prima facie showing of purposeful discrimination, the burden shifts to the other party “to come forward with a neutral explanation for challenging [the members of the cognizable group].” Id. at 61 , 542 A.2d at 1271 . The ultimate burden of proof is always on the moving party and it is to persuade the court that there has been intentional racial discrimination.

Id. citing Batson, 476 U.S. at 94 n. 18, 106 S.Ct. at 1721 n. 18, 90 L.Ed.2d at 86 n. 18 and Burdine, 450 U.S. at 256 , 101 S.Ct. at 1095 , 67 L.Ed.2d at 217 . In order to make the prima facie showing Batson requires, the moving party must “prove by a preponderance of the evidence that the peremptory challenges were exercised in a way that shifts the burden of production to the State and requires it to respond to the rebuttable presumption of purposeful discrimination that arises under certain circumstances.” Stanley, 313 Md. at 71 , 542 A.2d at 1277 . The cognizable group allegedly discriminated against having been identified, proof that the person or persons peremptorily struck is or are members of that group and that ⁵³⁴ the use of those strikes was the product of purposeful discrimination, is a necessary part of the showing. Whether a particular individual is a member of a group that, for Batson purposes, unquestionably is a cognizable one, is a question of fact.

The determination of whether the evidence of that fact is sufficient, prima facie, depends on the totality of the circumstances. Of some significance in that regard is whether the parties agree or disagree on the point. Where the defendant proffers, or asserts, that a particular individual is a member of the cognizable class, for purposes of assessing whether something additional will be required to be produced by way of proof, the totality of the circumstances would include how, if at all, the State responded to the proffer or assertion. This, in turn, will depend upon the bases, as revealed by the record, for the proffer or the assertion.

Group membership is not always proven by specific and tangible evidence. Parties often indulge certain assumptions, make certain observations, and draw certain conclusions about an individual and his or her relationship to a group. They often express their conclusions as fact. When the parties’ conclusions agree, there being no dispute, the moving party need not further prove the point, i.e., adduce any evidence.

Stanley is an example. There, the State and the defense agreed that eight of the nine persons struck by the State were black. Even though they did not agree as to the ninth, the circumstances of that case made it unnecessary to resolve the issue. No evidence as to the race of the non-disputed group members was produced or required to be produced.

The court accepted the parties’ agreement. Trice v. State, the companion case to Stanley , on appeal, presented a similar scenario. Without any apparent foundation in the evidence — the court did not refer to any tangible evidence presented to prove the race of the subject venireperson — it was stated unequivocally, and without contradiction or question, that the venire in that case contained only one black person. 313 Md. at 81 , 542 A.2d at 1282 . ⁵³⁵ In those cases, it is likely that the critical “proof” consisted of the defendant’s visual observations, as, judging from their lack of a contradictory assertion, confirmed by those of the State and the court. Ordinarily the observations with respect to who is black, for example, whether made by the defendant or the State, will not produce conflicting results.

When they do, however, that fact can be expected to be noted. See Stanley, 313 Md. at 69 , 542 A.2d at 1276 . Such conflicts may be resolved either by the moving party producing evidence or by testing the moving party’s “proof” by application of the burden of proof. Visual observations, along with other criteria, such as surnames, language, etc., developed during voir dire, undoubtedly are utilized in connection with identifying members of cognizable racial or ethnic groups, including Hispanics.

When, based on such observations and criteria, a party states, as a fact, his or her conclusion concerning the composition of the venire or that a particular venireperson is a member of a group, against whom the party alleges peremptory challenges are being discriminatorily used, and, the other side, being aware of the critical criteria and having had the opportunity to make