Parker v. State

ELDRIDGE, Judge. Mantice Parker, the defendant and petitioner in this criminal case, was tried by a jury in the Circuit Court for Baltimore City on several counts charging assaults and illegal use of a handgun, based on the shooting of two persons. During the jury selection, the State challenged the defendant’s use of peremptory strikes as discriminatory, claiming a pattern of racially based strikes against white prospective jurors. The trial court sustained the State’s objection regarding two prospective jurors and reseated the stricken persons on the jury panel.

The trial proceeded, and Parker was convicted. Parker appealed, and the Court of Special Appeals affirmed. We granted a petition for a writ of certiorari to consider whether the trial court’s actions regarding the two jurors were erroneous under the principles of Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986), and its progeny. I. On the evening of October 14,1996, a man armed with a gun got out of a blue Ford Taurus automobile and chased Jamal Jones down Barclay Street in Baltimore City.

Jones ran inside the residence at 2111 Barclay Street. The man with the gun followed him inside and shots were fired. Jones sustained a gunshot wound to the arm, and Angelena Richardson, an eight-year old child who had also been inside, sustained several wounds to her arm and back. After the shots, the man with the gun got into the blue Ford automobile and drove away. ³⁰⁴ The police arrived within minutes after the shooting, and witnesses described the gunman and his vehicle.

They also gave the police a partial Maryland license tag number for the vehicle. An investigation revealed that the defendant Parker had been issued a license tag number for a Ford Taurus encompassing the partial license tag number observed by the witnesses, and that his vehicle matched the description given by the witnesses. Witnesses interviewed by the police on the night of the shooting viewed a photographic array and identified Parker as the gunman. Two witnesses also furnished the police with written statements implicating Parker in the crime.

Toward the end of jury selection at Parker’s trial, the prosecutor objected to defense counsel’s use of peremptory challenges against several white prospective jurors on the ground that the strikes were racially discriminatory. The following colloquy took place: “THE COURT: Yes [defense counsel]. You owe me an explanation. Start with [juror number] 26.

Juror 26 was seated originally in seat 8. DEFENSE COUNSEL: She is employed by the Criminal Assignment Office. I think that that is somewhat problematic. I don’t want a person employed by Criminal Assignment sitting on my jury.

THE COURT: All right. PROSECUTOR: May I answer that? THE COURT: You may. PROSECUTOR: Your honor, the juror answered that question and said she could be fair so I find that reason to be an unacceptable reason.

THE COURT: I find it unacceptable as well. Okay. Go ahead. DEFENSE COUNSEL: Juror number 27, I struck people who had doctors’ appointments because I don’t want somebody who has a doctor’s appointment worrying about that [rather] than my trial.

PROSECUTOR: I find that unacceptable because this Court made it clear to the venireman, that the Court ³⁰⁵ would go out of its way to [accommodate] that person with doctors’ appointments. DEFENSE COUNSEL: Doesn’t mean that person will not be preoccupied with the fact that they have a doctor’s appointment scheduled [rather] than paying attention to the details of the trial, that [juror 27] has made enough of a point to approach the bench about it means [that he is] thinking about it. That person also happens to be 66 years old. * * ❖ * [We are] [t]alking about somebody more concerned about their health than my trial. It is enough of a concern for me.

PROSECUTOR: They are people who said they could be fair. THE COURT: I will put a question mark on that. * * ❖ * THE COURT: What about juror number 30? DEFENSE COUNSEL: Judge, with that person, ever since the person was seated in the jury over there, I kept an eye on him and he kept looking back in our direction and I felt uncomfortable about him as a juror. PROSECUTOR: I felt he was looking at me, too.

But not being a psychiatrist I can’t read people’s minds. It is not a reason to eliminate people from the jury. DEFENSE COUNSEL: I don’t know if he’s looking at me and my client because my client happens to be a black male. But he was looking directly at him the entire point in time he was there.

Made me feel uncomfortable, that he would be an improper juror. $ $ DEFENSE COUNSEL: Juror 11 said she was the victim of [a] breaking and entering, when she was up at the bench she said she could be unbiased, and I looked at her in the eye and— THE COURT: I don’t think so. [Juror number] 38? ³⁰⁶ DEFENSE COUNSEL: I struck that person because, again, her position as a physician, she indicated to the Court if she didn’t work, somebody was going to have to work a double shift. She made that point very clear, and I am more interested in having somebody not worried about someone working a double shift for them than if somebody is going to be a juror on a panel. PROSECUTOR: The problem I have, in sixteen years, I know this to be the truth, jurors worried about their private lives, if you bring each and every juror, if you asked them if they were concerned about their privaté lives, the answer would be, you bet you. That is not a reason.

I think that is unacceptable. THE COURT: I agree. That is unacceptable. $ * $ $ THE COURT: The physician lady, I’ll give you the benefit on that. The physician lady which was [juror number] 38, juror number 11 [the victim of a breaking and entering], don’t bring her back. [Juror number] 30 [the man looking at defense counsel].

I don’t have a problem. That was a neutral reason. [Juror number] 29 was a neutral reason. So as we stand, only [juror number] 26 [the criminal assignment clerk] is unacceptable. We’ll go with that.

DEFENSE COUNSEL: Even though she is exposed to the criminal docket every day of the week? THE COURT: So am I. She never — no. I think that is unacceptable. I really do.

That is an unacceptable reason. PROSECUTOR: Otherwise, they couldn’t send a summons at all or to me, or to the judge. THE COURT: All right. PROSECUTOR: What about the one you had a question mark on?

THE COURT: Well— PROSECUTOR: That would not interfere. ³⁰⁷ THE COURT: That was Tuesday. Also [juror number] 27 [the juror with the doctor’s appointment] comes back. That is unacceptable.” Thus, the trial court reseated juror 26, the criminal assignment clerk, and juror 27, the man with the doctor’s appointment. The court stated that the reasons given by defense counsel for striking jurors 26 and 27 were “unacceptable.” The court, however, overruled the prosecutor’s objections to the striking of juror 11, the victim of a breaking and entering, juror 30, the man looking at defense counsel, and juror 38, the physician, finding the reasons proffered by defense counsel for these strikes “neutral” or “acceptable.” Upon conclusion of the trial, the jury convicted Parker of second degree assault, use of a handgun in the commission of a violent crime, and unlawfully carrying a handgun.

Parker appealed to the Court of Special Appeals, and the intermediate appellate court affirmed in a reported opinion, Parker v. State, 129 Md.App. 360 , 742 A.2d 28 (1999). Parker filed in this Court a petition for a writ of certiorari seeking review of the trial court’s rejection of defense counsel’s reasons for striking two prospective jurors and reseating them on the jury panel. Additionally, Parker asks this Court to decide whether the trial court erred in admitting certain hearsay statements of two unidentified declarants into evidence under the “excited utterance” exception to the rule against hearsay. We granted the petition.

Parker v. State, 358 Md. 381 , 749 A.2d 172 (2000).

II

It is now settled law that peremptory challenges may not be exercised to exclude members of a cognizable racial group from the jury panel. See Harley v. State, 341 Md. 395, 402 , 671 A.2d 15, 18-19 (1996); Gilchrist v. State, 340 Md. 606, 619 , 667 A.2d 876, 882 (1995); Mejia v. State, 328 Md. 522, 534 , 616 A.2d 356, 361 (1992). In Batson v. Kentucky, supra, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 , the Supreme Court established a three-step process for address ³⁰⁸ ing allegations of impermissible discrimination in the exercise of peremptory challenges. This Court has previously reviewed the procedure set forth in Batson and its progeny.

We explained in Gilchrist v. State, supra, 340 Md. at 625-626 , 667 A.2d at 885 -886: “First, the complaining party has the burden of making a prima facie showing that the other party has exercised its peremptory challenges on an impermissibly discriminatory basis, such as race or gender. See Batson, 476 U.S. at 93-97 , 106 S.Ct. at 1721-1723 , 90 L.Ed.2d at 85-88 . Moreover, ‘[w]hether the requisite prima facie showing has been made is the trial judge’s call.... ’ Mejia v. State, supra, 328 Md. at 533 , 616 A.2d at 361 .” “Second, once the trial court has determined that the party complaining about the use of the peremptory challenges has established a prima facie case, the burden shifts to the party exercising the peremptory challenges to rebut the prima facie case by offering race-neutral explanations for challenging the excluded jurors. The ‘explanation must be neutral, related to the case to be tried, clear and reasonably specific, and legitimate.’ Stanley v. State, 313 Md. 50, 78 , 542 A.2d 1267, 1280 (1988).

The reason offered need not rise to the level of a challenge for cause, Batson v. Kentucky, supra, 476 U.S. at 97 , 106 S.Ct. at 1723 , 90 L.Ed.2d at 88 . ‘At this step of the inquiry, the issue is the facial validity of the explanation.’ Hernandez v. New York, 500 U.S. 352, 360 , 111 S.Ct. 1859, 1866 , 114 L.Ed.2d 395, 406 (1991). It is insufficient, however, for the party making the peremptory challenges to ‘merely deny[] that he had a discriminatory motive or ... merely affirm[ ] his good faith.’ Purkett v. Elem, supra, [514 U.S. at 769], 115 S.Ct. at 1771, 131 L.Ed.2d. at 840. See also Chew v. State, 317 Md. 233, 242 , 562 A.2d 1270, 1277 (1989); Tolbert v. State, 315 Md. 13, 19 , 553 A.2d 228, 230 (1989).” “Finally, the trial court must ‘determinen whether the opponent of the strike has carried his burden of proving purposeful discrimination.’ Purkett v. Elem, supra, [514 U.S. at 768], 115 S.Ct. at 1771, 131 L.Ed.2d at 839; Hernan ³⁰⁹ dez v. New York, supra, 500 U.S. [at] 359, 111 S.Ct. at 1865 , 114 L.Ed.2d at 405 ; Batson v. Kentucky, supra, 476 U.S. [at] 98, 106 S.Ct. at 1723 , 90 L.Ed.2d at 88-89 . This includes allowing the complaining party an opportunity to demonstrate that the reasons given for the peremptory challenges are pretextual or have a discriminatory impact.

Stanley v. State, supra, 313 Md. at 61-62 , 542 A.2d at 1272-1273 . It is at this stage ‘that the persuasiveness of the justification becomes relevant.’ Purkett v. Elem, supra, [514 U.S. at 768], 115 S.Ct. at 1771, 131 L.Ed.2d at 839.... ‘At that stage, implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination.’ Purkett v. Elem, [514 U.S. at 768], 115 S.Ct. at 1771, 131 L.Ed.2d at 839.” Parker asserts that, having found a prima facie case of discrimination in defense counsel’s use of peremptory challenges, defense counsel tendered facially-valid, race-neutral reasons for exercising the strikes against jurors 26 and 27. The reasons given, Parker contends, were sufficient to overcome the prima facie case with regard to those two jurors. We agree that the trial court erred in rejecting the facially-valid, race-neutral reasons tendered by defense counsel for exercising the peremptory strikes and reseating the two stricken jurors on the panel.

We shall, therefore, reverse the defendant’s conviction and order a new trial. Upon finding a prima facie case of racial discrimination in defense counsel’s use of peremptory challenges, the trial court stated: “You owe me an explanation.” The defense counsel responded by explaining that he had struck juror 26 because she is employed by the Criminal Assignment Office. The prosecutor responded that juror 26 had stated that she could be “fair” and, that, therefore, defense counsel’s reason was “unacceptable.” The trial court agreed and pronounced defense counsel’s reason for striking juror 26 “unacceptable.” Turning to juror 27, defense counsel explained that he had struck prospective jurors that had doctors’ appointments. The prosecutor again claimed that defense counsel’s explanation was “unacceptable” because juror 27 said that he could be ³¹⁰ “fair.” The court eventually deemed defense counsel’s reason for striking juror 27 also “unacceptable.” Without further explanation or making additional findings, the trial judge sustained the prosecutor’s objection to the peremptory challenges exercised against jurors 26 and 27, and proceeded to reseat the stricken jurors on the jury panel.

This Court has recognized that a trial court’s determination of impermissible discrimination in the exercise of peremptory challenges is ultimately a factual one and, as such, is afforded deference on appeal. Gilchrist v. State, supra, 340 Md. at 627 , 667 A.2d at 886 . Nevertheless, the record in the case at bar does not support a conclusion that the two peremptory strikes at issue were racially motivated. Accordingly, we hold that the trial court erred in rejecting the reasons proffered by defense counsel with regard to jurors 26 and 27.

Defense counsel tendered specific explanations for exercising peremptory strikes against jurors 26 and 27. Juror 27 had earlier indicated to the trial judge that he had an “absolutely compelling reason” which made it “impossible” for him to serve, namely his doctor’s appointment. Parker’s attorney explained that juror 27 might be more concerned about his doctor’s appointment than the fair trial of the defendant. Defense counsel further stated his belief that the criminal assignment officer, juror 26, would be less sympathetic to his client because she is exposed to criminal cases every day.

The reasons were neutral on their face, based on factors other than race, and specific to the individual jurors stricken. Moreover, the reasons were not “ ‘implausible or fantastic’ ” so as to support an inference that the explanations were merely pretexts for intentional discrimination. Gilchrist v. State, supra, 340 Md. at 626 , 667 A.2d at 886 , quoting Purkett v. Elem, 514 U.S. 765, 768 , 115 S.Ct. 1769, 1771 , 131 L.Ed.2d 834, 839 (1995). The trial court did not make any findings to the contrary or articulate any factors that would indicate otherwise.

Indeed, the colloquy indicates that the trial court agreed with the prosecutor that, because prospective jurors 26 ³¹¹ and 27 answered that they could be “fair,” defense counsel’s reasons were “unacceptable” to support peremptory strikes. A prospective juror’s statement that he or she has the ability to be fair, however, does not preclude a valid peremptory challenge of that juror. If the juror had stated otherwise, an exclusion for cause would have been justified. As this Court noted in Gilchrist v. State, supra, “ ‘the peremptory [challenge]