Mejia v. State

MOYLAN, Judge. With this appeal, we encounter a second generation of issues spawned by Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986). As we move from the simple bi-polar world of black and white into the subtler grays, it becomes, as some predicted from the beginning, increasingly apparent that, at worst, we are irreversibly ³⁴ adrift on a slippery slope with no foreseeable stopping place short of the elimination of the peremptory challenge. At best, we are sentenced to at least a decade of playing a diverting ethnological parlor game called “Who is What and How Do We Know It?” In either event, it behooves us to get down pat the rules of the slope or of the game.

When a party is allocated the burden of establishing a prima facie case as to a proposition, establishing the necessary set of predicate facts involves more than simply proclaiming those facts. 1 That is why, as we explained in Bailey v. State, 84 Md.App. 323, 326-327 , 579 A.2d 774 (1990), cert. denied, 321 Md. 225 , 582 A.2d 531 (1990), the constitutional law. regulating the application of Batson to the use of peremptory challenges is: “... carefully calibrated to guarantee that charges of racial discrimination, calling into play the full strictures of Batson , are neither carelessly indulged nor promiscuously invoked. This is why Batson requires that the appellant establish a prima facie case of discrimination at the threshold before full constitutional mobilization takes place. That is why the elaborate responses of Batson are not intended to be a knee-jerk reaction every time a charge of discrimination is laid.” The appellant, Ivan Antonio Mejia, was convicted by. a Montgomery County jury, presided over by Judge Jerry H. Hyatt, of a second-degree sexual offense and of attempted rape in the second degree. Upon this appeal, he raises the single contention that Judge Hyatt erroneously ruled that he had failed to make out a prima facie case of a Batson v. Kentucky violation so as to put the State to its burden of giving an ethnically neutral explanation for its use of a peremptory strike. ³⁵ The Facial Legitimacy of the Claim We will restate the appellant’s claim itself before assessing whether he has actually established any of the constituent facts that might give rise to it.

The claim is that he, Ivan Antonio Mejia, is Hispanic; that a prospective juror peremptorily challenged by the State, Peter Estrada, was also Hispanic; that no other member of the array from which the jury was drawn was Hispanic; and that these premises establish a prima facie case that the peremptory strike of Estrada was ipso facto ethnically motivated in violation of Batson . Although all of the reported appellate decisions in Maryland considering Batson claims have thus far involved peremptory challenges against blacks, the undergirding logic of Equal Protection law, on which Batson rests, compellingly requires that its strictures must also apply to peremptories used against any other cognizable group. Indeed, the most recent Supreme Court decision applying Batson, Hernandez v. New York, 500 U.S. -, 111 S.Ct. 1859 , 114 L.Ed.2d 395 (1991), is a case where the peremptory challenges had been used against “Hispanics” or “Latinos.” The Supreme Court did not even pause to question the applicability of Batson to such a target group. Successful challenges to the use of peremptories have, moreover, been maintained in a number of state courts and lower federal courts with respect to a smorgasbord of cognizable target groups.

These have included such groups as whites, Roman v. Abrams, 822 F.2d 214, 227-228 (2d Cir.1987); People v. Gary M., 138 Misc.2d 1081 , 526 N.Y.S.2d 986, 994 (N.Y.Sup.1988); Gov. of Virgin Islands v. Forte, 865 F.2d 59, 64 (3d Cir.1989); males, United States v. De Gross, 913 F.2d 1417 (9th Cir.1990); Com. v. Reid, 384 Mass. 247 , 424 N.E.2d 495, 500 (1981); American Indians, United States v. Chalan, 812 F.2d 1302, 1313-1314 (10th Cir.1987); Italian-Americans, United States v. Biaggi, 673 F.Supp. 96 (E.D.N.Y.1987), aff'd. 853 F.2d 89 (2d Cir.1988); and French-Canadians with Gallic surnames, Com. v. Gag- ³⁶ non, 16 Mass.App. 110 , 449 N.E.2d 686, 691-692 (1983). Dicta in Strauder v. West Virginia, 100 U.S. 303, 308 , 25 L.Ed. 664 (1880), is also instructive: “Nor if a law should be passed excluding all naturalized Celtic Irishmen [from jury service], would there be any doubt of its inconsistency with the spirit of the [14th] amendment.” In terms of what groups qualify for protection under the Equal Protection Clause and under the closely related Civil Rights Act of 1866, see the thoroughly researched and tightly reasoned opinions of St. Francis College v. AlKhazraji, 481 U.S. 604 , 107 S.Ct. 2022 , 95 L.Ed.2d 582 (1987), and Shaare Tefila Congregation ,v. Cobb, 481 U.S. 615 , 107 S.Ct. 2019 , 95 L.Ed.2d 594 (1987). The Allocation of the Burden With respect to establishing a prima facie case of discrimination, that burden, as is always the case when one claims a violation of the Equal Protection Clause, is upon the party making the claim. Batson v. Kentucky, 476 U.S. at 93 , 106 S.Ct. at 1721 , 90 L.Ed.2d at 85 , was unequivocal: “As in any equal protection case, ‘the burden is, of course/ on the defendant who alleges discriminatory selection of the venire ‘to prove the existence of purposeful discrimination.’ ” As we explained in Chew v. State, 71 Md.App. 681, 694 , 527 A.2d 332 (1987): “Initially, the burden is on the party claiming an equal protection violation to establish a prima facie case in that regard.

Absent the establishment of such a prima facie case, there is no obligation on the opposing party to offer any explanation for the use of a peremptory challenge and no entitlement on the part of the moving party to a hearing on the issue.” ³⁷ With respect to the specific and initial burden of showing a prima facie case, Batson made that burden significantly easier than had theretofore been the case under the regime of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824 , 13 L.Ed.2d 759 (1965). Even though the burden was lessened, however, it was still clear that it rested squarely upon the party claiming the Equal Protection Clause violation. As Batson explained, 476 U.S. at 96 , 106 S.Ct. at 1723 , 90 L.Ed.2d at 87 : “[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. To establish such a case, the defendant ... must show that ...” (emphasis supplied).

A few sentences further along, the Supreme Court again unequivocally placed the burden upon the defendant: “In deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances.” (emphasis supplied). 476 U.S. at 96-97 , 106 S.Ct. at 1723 , 90 L.Ed.2d at 88 . In Stanley v. State, 313 Md. 50, 71 , 542 A.2d 1267 (1988), Judge Adkins referred to this allocation and to its significance: “It simply requires the defendant to 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 rebut-table presumption of purposeful discrimination that arises under certain circumstances.” (emphasis supplied). Stanley had earlier held unequivocally, at 313 Md. at 61 , 542 A.2d 1267 , “It is the defendant’s burden to make that prima facie showing ...” (emphasis supplied). State v. Gorman, 315 Md. 402, 410 , 554 A.2d 1203 (1989), was equally emphatic, “Initially, the burden is on the defendant to establish a prima facie case.” (emphasis supplied). ³⁸ The Initial Judicial Ruling Once the defendant moves that the State be required to justify its use of peremptories, the trial judge is called upon to rule whether he is satisfied “by a preponderance of the evidence,” Stanley v. State, 313 Md. 50, 71 , 542 A.2d 1267 , that the defendant has established a prima facie case in that regard.

If the judge is not so satisfied, the State, of course, is under no obligation to respond. The peremptories remains peremptory. In this case, the appellant moved: “I am going to object to this on the grounds of the Batson 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. 2 Basically, I am 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.” Judge Hyatt was not persuaded that a prima facie case had been established, as he ruled with a minimum of excess verbiage: “Motion denied.” It is from that ruling that this appeal has been taken.

The Standard of Appellate Review In reviewing either of a trial judge’s possible decisions on a Batson issue — (1) whether a prima facie case of discrimination has been established, and (2) if so, whether an ultimate case of discrimination has also been established — appellate courts “do not presume to second-guess the call by the ‘umpire on the field’ either by way of de ³⁹ novo fact finding or by way of independent constitutional judgment.” Bailey v. State, 84 Md.App. at 328 , 579 A.2d 774 . Batson itself voiced its confidence in and deference to the trial judge’s decision, 476 U.S. at 97 , 106 S.Ct. at 1723 , 90 L.Ed.2d at 88 : “We have confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor’s use of peremptory challenges creates a prima facie case of discrimination against black jurors.” That recognition of the trial judge’s special competence in monitoring the voir dire was echoed by Stanley v. State, at 313 Md! 60, 542 A.2d 1267 : “The Supreme Court was confident that trial judges, experienced in supervising voir dire, would ‘be able to decide if the circumstances concerning the prosecutor’s use of peremptory challenges creates a prima facie case of discrimination against black jurors.’ ” We ourselves examined the reasons for that deference in Bailey v. State, supra, at 84 Md.App. 328, 329 , 579 A.2d 774 : “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. The trial judge is able to get the ‘feel’ of the opposing advocates — to watch their demean- or, to hear their intonations, and to spot their frequently unspoken purposes.

It is a total process in which nonverbal communication may often be far more revealing than the formal words on the typewritten page. The standard of review, therefore, is perforce that of whether the trial judge’s fact finding as to this threshold showing is clearly erroneous.” ⁴⁰ In Hernandez v. New York, supra, the Supreme Court was urged to adopt the standard of “ ‘independent’ appellate review of a trial court’s rejection of a Batson claim.” — U.S. at-, 111 S.Ct. at 1869-70 , 114 L.Ed.2d at 410 . It rejected that standard in favor of the more deferential standard: “This case comes to us on direct review of the state court judgment. No statute or rule governs our review of facts found by state courts in cases with this posture.

The reasons justifying a deferential standard of review in other contexts, however, apply with equal force to our review of a state trial court’s findings of fact made in connection with a federal constitutional claim. Our cases have indicated that, in the absence of exceptional circumstances, we would defer to state court factual findings, even when those findings relate to a constitutional issue.” (emphasis supplied). Id. The Absence of a Pattern Turning to the case at hand, we hold that Judge Hyatt was not clearly erroneous in remaining unpersuaded that a prima facie case of discrimination had been established and in not ordering, therefore, full constitutional mobilization.

Again, we look to Batson itself for guidance. The most obvious evidence of discrimination, as it was even under the Swain v. Alabama regime, is systematic exclusion of a group. Batson explained, at 476 U.S. 94 , 106 S.Ct. 1722 , 90 L.Ed.2d 86 : “[A] defendant may then make a prima facie case by proving that in the particular jurisdiction members of his [group] have not been summoned for jury service over an extended period of time____ Proof of systematic exclusion from the venire raises an inference of purposeful discrimination because the ‘result bespeaks discrimination.’ ” (citation omitted). Needless to say, there was no evidence remotely suggesting that the Montgomery County court system or the Montgom ⁴¹ ery County State’s Attorney’s Office was engaged in any systematic exclusion of members of any group.

Under Batson , of course, it became possible for a party to establish a prima facie case of discrimination within the more limited factual context of a single case. Batson explained, 476 U.S. at 97 , 106 S.Ct. at 1723 , 90 L.Ed.2d at 88 : “[A] ‘pattern’ of strikes against [Hispanic] jurors included in the particular venire might give rise to an inference of discrimination.” In this case, of course, there was no pattern. Just as a single point cannot define a line and a single digit cannot constitute a series, a single action cannot spell out a pattern of action unless the word “pattern” is to be drained of all meaning. “One