Pietruszewski v. State

Bruce Edward Pietruszewski v. State of Maryland No. 209 September Term, 2018 Opinion by Meredith, J. CRIMINAL PROCEDURE – JURY TRIALS – PEREMPTORY CHALLENGES TO POTENTIAL JUROR – RIGHT OF COUNSEL IN CRIMINAL CASES TO STRIKE JURORS AFTER THE JUROR HAS BEEN CONDITIONALLY ACCEPTED AND SEATED IN THE JURY BOX. Maryland Rule 4-313(b) describes two alternative procedures for exercising peremptory challenges to strike prospective jurors. If no request is made to the contrary, each party shall exercise its challenges simultaneously by striking names from a copy of the jury list. But, at the request of any party, the court shall employ a procedure of “alternating challenges,” pursuant to which qualified venire persons are called forward one at a time, and each party states whether the juror is challenged or accepted, alternating which party announces its position first.

Rule 4-313(b)(3) further provides that, when the alternating challenges procedure has been utilized, then, after the required number of qualified jurors has been called, a party who has any remaining peremptory challenges may strike jurors from the box up until the time the first alternate is called or the jury is sworn. A trial court’s refusal to permit counsel to strike jurors from the box pursuant to Rule 4-313(b)(3) is an error that is reviewed pursuant to the harmless error standard. CRIMINAL PROCEDURE – JURY TRIALS – CLOSING ARGUMENT OF PROSECUTOR – SHIFTING BURDEN OF PROOF – COMMENT ON CREDIBILITY OF WITNESSES CALLED BY THE DEFENDANT. A prosecutor’s closing argument may not draw the jury’s attention to the failure of the defendant to call witnesses or produce evidence; such an argument impermissibly shifts the burden of proof.

But, in a case in which the defendant has called witnesses, the prosecutor is permitted to attack the credibility of witnesses called by the defense, and an argument suggesting that the testimony of a witness for the defense lacks credibility because it was not supported by documents that the testimony suggested would have been reasonably available does not violate the rule against shifting the burden of proof. Circuit Court for Baltimore County Case No. 3-K-17-002504 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 209 September Term, 2018 ______________________________________ BRUCE EDWARD PIETRUSZEWSKI v. STATE OF MARYLAND ______________________________________ Meredith, Reed, Sharer, J. Frederick (Senior Judge, Specially Assigned) JJ. ______________________________________ Opinions by Meredith, J. ______________________________________ Filed: April 7, 2020 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. Suzanne Johnson 2020-04-07 10:49-04:00 Suzanne C. Johnson, Clerk A jury in the Circuit Court for Baltimore County convicted Bruce Edward Pietruszewski, appellant, of committing an early morning robbery, but acquitted him of committing an assault and carrying a dangerous weapon openly with intent to injure. Pietruszewski was sentenced to a total of fifteen years, with all but eight years suspended.

He presents the following issues for our review: 1. Did the trial court err in prohibiting “striking from the box” during jury selection? 2. Did the trial court err in permitting the prosecutor to make improper comments during closing argument? Although we agree with the assertion that the trial court erred in failing to apply Maryland Rule 4-313(b)(3)—which provides that a party “may exercise any remaining peremptory challenges to which the party is entitled at any time before the jury is sworn[,]” up to the time “the first alternate is called”—we conclude that Pietruszewski was not prejudiced by the ruling because he utilized and fully exhausted his allotted peremptory challenges before the twelfth juror was seated in the box, and he failed to proffer how he might have used his challenges in a different manner if the trial judge had not prohibited him from striking jurors after they had been seated in the jury box.

In the absence of any facts in the record that support a claim that Pietruszewski’s exercise of peremptory challenges would have been any different if the court had not erred by precluding striking from the box, we are persuaded that the trial court’s error was harmless in this case. With respect to the prosecutor’s closing argument, we conclude that the trial court did not err in overruling the one objection that was lodged, and we decline to conduct plain error review of the arguments as to which no objection was made during trial. Consequently, we will affirm the judgment of the circuit court. BACKGROUND Shortly before 5:00 a.m. on Saturday, April 22, 2017, graduate student Brianna Doyle was walking home after working through the night at a fast food restaurant on York Road in Cockeysville.

Ms. Doyle had traveled past two shopping centers when she noticed a man walking behind her. He wore a dark beanie covering his hair, but she was able to observe that he was “white,” “[m]uch taller” and “thinner” than her, with “a really prominent chin” and “a slender face.” He kept his hands in the pockets of his baggy sweatshirt. Although Ms. Doyle initially concluded the man was not a threat, the man approached her from behind and said: “[W]e’re past the cameras.” “Give me your purse.” Feeling “terrified,” Ms. Doyle nevertheless asked if she could “just give” him her money “because [she] didn’t want to go through the hassle of trying to replace everything.” When the man agreed, she gave him her cash, which totaled a little less than $60. He turned and walked away in the opposite direction.

Fearing that the robber would return to attack her if she made a distress call, Ms. Doyle texted her mother “come and get me,” and then ran the remaining few blocks to her home. Outside their residence, her mother, Bobbi Jo Goodwill, met Ms. Doyle in Ms. Goodwill’s vehicle, and, after hearing about the robbery, began to drive to a police station. As the two headed toward a police station to file a police report, Ms. Doyle saw the robber near an apartment complex, “wearing the same clothes[,]” “[w]alking the same[,]” 2 and “on the phone talking.” She had “no doubt” that he was her assailant. While Ms. Doyle called 911, Ms. Goodwill “pulled up like right next to him.” Ms. Doyle overheard the man say: “Where you at?

I got the bread. Come on. Where you at?” Ms. Goodwill got out of her vehicle to confront the robber, angrily asking him: “[D]id you just rob my daughter?” The two “were right in front of each other[,]” so close that she later described their proximity by saying: “[Y]ou could put a piece of paper between [our] noses.” The man then reached down to retrieve “something silver.” He “turned around and made [a] stabbing motion towards her chest,” then dropped the item and ran. Ms. Goodwill picked up a screwdriver that she believed was the silver item, and she got back in her car.

Ms. Doyle reported the robbery to the 911 personnel. When police officers responded, Ms. Goodwill gave them the screwdriver. Although police and a K-9 officer located a possible suspect in the area, when Ms. Doyle and Ms. Goodwill came to the location to look at that person, both women agreed that he was not the robber. Three days later, when officers came to Ms. Goodwill’s apartment to present a photo array, she selected appellant’s photo, recognizing his “distinctive” chin.

Viewing the same array independently later that day, Ms. Doyle also identified appellant’s photo as that of the robber. At trial, appellant presented testimony from his former girlfriend and his father in support of mistaken identity and alibi defenses. Both witnesses testified that, on the night of the robbery, appellant was with them, sleeping in the same hotel room where the father had been living and the three of them had been staying. 3 During cross-examination, Pietruszewski’s father admitted that he did not bring to court any receipts or records regarding that hotel stay. Nor did the father ever contact the police or prosecutor’s office to report the information regarding appellant’s whereabouts at the time of the robbery even though that could have been exculpatory.

In addition, the State established that the hotel was located “just a couple blocks from” the restaurant where Ms. Doyle worked, which was within walking distance of the spot where the robbery occurred. DISCUSSION I. Peremptory Strikes Pietruszewski contends that “the trial court erred in prohibiting ‘striking from the box’ during jury selection.” He argues: “This arbitrary limitation on jury selection violated [his] right to due process as well as Maryland Rule 4-313 and impaired the use of his peremptory challenges.” The State counters: (1) that Pietruszewski did not preserve his due process challenge; (2) that the court properly exercised its discretion to control jury selection under Rule 4-313(b); and (3) that, in any event, the defense was not prejudiced by any error. A. Standards Governing Peremptory Challenges “The right of both the defendant and the Government to challenge prospective jurors without assigning any reason is an ancient one, dating back, in England, to the Thirteenth Century.” Booze v. State, 347 Md. 51, 59 (1997). “The accepted use of the peremptory challenge, as an incident to the right of trial by jury, came to the Maryland Colony with the first settlement.” Spencer v. State, 20 Md. App. 201, 203 (1974). 4 Although not guaranteed under the United States Constitution, see Gilchrist v. State, 340 Md. 606 , 620 n.2 (1995), or the Maryland Declaration of Rights, see Whitney v. State, 158 Md. App. 518, 531 (2004), the right to exercise peremptory challenges is protected under Maryland law because such strikes “play a ‘vital role’ in ‘insuring’ that ‘an impartial jury is chosen.’” Collini v. State, 227 Md. App. 94, 101 (2016) (quoting King v. State Roads Comm’n of State Highway Admin., 284 Md. 368, 370 (1979)). Parties have “wide latitude in making peremptory challenges,” which they may exercise for any reason that does not discriminate on the basis of race, gender, or ethnicity.

See Gilchrist, 340 Md. at 619 ; Brice v. State, 264 Md. 352, 366 (1972); Collini, 227 Md. App. at 101-02 . Cf. Ray- Simmons v. State, 446 Md. 429, 435 (2016) (“Batson [v. Kentucky, 476 U.S. 79 (1986)] and its progeny instruct that the exercise of peremptory challenges on the basis of race, gender, or ethnicity violates the Equal Protection Clause of the Fourteenth Amendment. Excusing a juror on any of those bases violates both the defendant’s right to a fair trial and the potential juror’s ‘right not to be excluded on an impermissible discriminatory basis.’ Edmonds v. State, 372 Md. 314, 329 , 812 A.2d 1034 (2002).” (footnote omitted)).

In Gilchrist, 340 Md. at 619 , the Court of Appeals said: “The function of the [peremptory] challenge is . . . to eliminate extremes of partiality on both sides, [and] to assure the parties that the jurors before whom they try the case will decide on the basis of the evidence placed before them, and not otherwise.” Swain v. State of Alabama, 380 U.S. 202, 219 , 85 S.Ct. 824, 835 , 13 L.Ed.2d 759, 772 (1965). Accord: J.E.B. v. Alabama ex rel. T.B., 114 S.Ct. 1419 , 1425–1426 and n. 8, 128 L.Ed.2d 89 , 102 and n. 8 (1994); Edmonson v. Leesville Concrete Co., 500 U.S. 614, 620 , 111 S.Ct. 2077, 2083 , 114 L.Ed.2d 660, 673 (1991); Vaccaro v. Caple, 33 Md. App. 413, 416 , 365 A.2d 47 , 49–50 (1976). 5 Indeed, peremptory challenges “permit[ ] a party to eliminate a prospective juror with personal traits or predilections that, although not challengeable for cause, will, in the opinion of the litigant, impel that individual to decide the case on a basis other than the evidence presented.” King, 284 Md. at 370 . See Collini, 227 Md. App. at 101-02 .

Although “the function of peremptory challenges is to reject rather than to select jurors[,]” rules governing their use reflect “the belief that the parties should have the right to exercise their rejections intelligently and strategically[.]” Booze, 347 Md. at 69 . As this Court has recognized, “there is at least some element of indirect selection inexorably at work in the very process of elimination. The right to reject need not be exercised in the dark, but is . . . a right of informed and comparative rejection.” Spencer, 20 Md. App. at 208 . “[I]n light of the importance of the peremptory challenge, it is not surprising that this State, since at least 1797, has . . . established orderly procedures to guarantee that litigants have a full opportunity to utilize the right.” King, 284 Md. at 370-71 (citation and footnote omitted). Implementing those protections, Maryland Rules 4-312 and 4-313 govern peremptory strikes in a criminal case.

Under Rule 4-312(f), after conducting voir dire questioning and addressing challenges for cause, the trial judge must designate a list of qualified venire persons from whom a jury can be called: (f) Peremptory challenges. Before the exercise of peremptory challenges, the trial judge shall designate those individuals on the jury list who remain qualified after examination. The number designated shall be sufficient to provide the required number of sworn jurors, including any alternates, after allowing for the exercise of peremptory challenges pursuant to Rule 4-313. 6 The judge shall at the same time prescribe the order to be followed in selecting individuals from the list [i.e., beginning at the top of the list or beginning from the end of the list]. Rule 4-313(a) specifies the number of peremptory strikes allotted for each party, both as to jurors and alternates.

Subsection (a)(4) of Rule 4-313 also stipulates: “The additional peremptory challenges [allotted for alternate jurors] may be used only against alternate jurors, and other peremptory challenges allowed by this section may not be used against alternate jurors.” Rule 4-313(b)—which is the focus of this appeal—addresses the manner in which peremptory challenges may be exercised. Subsections (b)(1) and (b)(2) of Rule 4-313 provide two alternative procedures for exercising peremptory strikes in criminal cases. Subsection (b)(1) provides that, upon the request of any party, the clerk will call each prospective juror individually, and each party will indicate whether that juror is “challenged or accepted,” alternating which party must speak first with respect to each prospective juror. Professor Byron L. Warnken comments in his treatise: “This system is almost always used.” 2 BYRON L. WARNKEN, MARYLAND CRIMINAL PROCEDURE 24-1017 (2013).

In contrast, subsection (b)(2) provides that “each party shall exercise its challenges simultaneously” (and, traditionally, privately) from the list of qualified venire persons. The procedure described in subsection (b)(2) is comparable to the procedure applicable to all civil jury trials pursuant to Maryland Rule 2-512(e)(2), and is the default procedure that applies in criminal cases “[i]f no request is made for alternating challenges.” Nevertheless, 7 Professor Warnken observes that, in criminal cases, “[t]his system is almost never used.” WARNKEN, supra, at 24-1017. The source of controversy in the present case arises from the provision in subsection (b)(3) of Rule 4-313 relative to the exercise of “any remaining peremptory challenges.” Rule 4-313(b) provides: (b) Exercise of Challenges. (1) By alternating challenges.

On request of any party for alternating challenges, the clerk shall call each qualified juror individually in the order previously designated by the court. When the first qualified juror is called, the State shall indicate first whether that qualified juror is challenged or accepted. When the second qualified juror is called, the defendant shall indicate first whether that qualified juror is challenged or accepted. When the third qualified juror is called, the State shall again indicate first whether that qualified juror is challenged or accepted, and the selection of a jury shall continue with challenges being exercised alternately in this fashion until the jury has been selected.

(2) By simultaneous striking from a list. If no request is made for alternating challenges, each party shall exercise its challenges simultaneously by striking names from a copy of the jury list. (3) Remaining challenges. After the required number of qualified jurors has been called, a party may exercise any remaining peremptory challenges to which the party is entitled at any time before the jury is sworn, except that no challenge to the first 12 qualified jurors shall be permitted after the first alternate juror is called.

(Emphasis added.) When the correct number of qualified jurors has been provisionally selected in accordance with these rules, the trial court generally asks counsel whether the jury is acceptable as assembled. Grievances about both the jury selection process and the jury as constituted should be asserted before the jury is sworn because failure to do so may 8 preclude appellate review. See, e.g., Chew v. State, 317 Md. 233 , 237 n.3 (1997) (“Maryland Rule 4–313(b)(3) provides that a peremptory challenge may be made at any time before the jury is sworn.”); Parker v. State, 72 Md. App. 610, 618 (1987) (“It is well settled in Maryland that an appellant waives any objection he may have to the jury impaneled if he fails to state his objection to, and expresses satisfaction with, the panel prior to the jury being sworn.”). But cf. Cousar v. State, 282 Md. 125, 130 (1978) (Cousar’s objection to “the court’s refusal to permit inspection or discovery of the prosecutor’s jury dossier” was preserved because it “was only indirectly aimed at the composition of the jury ultimately selected.”).

B. Jury Selection in This Case Before beginning jury selection, the trial judge informed counsel that she did not intend to allow “striking from the box,” prompting a preliminary objection from defense counsel, as reflected in the following colloquy: THE COURT: All right. I, I typically conduct juror questioning or voir dire where the parties are required to strike jurors that, or exercise their peremptory challenges right at the well, without having jurors come up to the jury box. And [defense counsel], my understanding or at least I was told that you are going to refuse to do that? [DEFENSE COUNSEL]: No. If the Judge, if you order to me, you’re saying, [“]you cannot do that,[”] then obviously yes, I will do it. Um, but – THE COURT: You mean, I cannot do what? [DEFENSE COUNSEL]: No. If you tell me, [“defense counsel], you cannot strike from the box,[”] I will not do that.

But it’s our position that, that there is, that we can use our peremptory strikes in any way that we choose, whether it be at the well or in [the] box. 9 THE COURT: Okay. But, but is it your position that the Court does not have the authority to specify the way in which you’re going to utilize your peremptory challenges? [DEFENSE COUNSEL]: Yes. That’s – THE COURT: Okay. Can you cite that authority for me please? [DEFENSE COUNSEL]: Um, I’m just.

I’m not aware of anything in the rule that gives the Court that authority. THE COURT: Of anything in the rule that gives me that authority? [DEFENSE COUNSEL]: Right. THE COURT: Are, are you aware of anything, any case law or any rule that would prohibit me from doing it that way? [DEFENSE COUNSEL]: I’m not aware of any case law or any -- THE COURT: Nor am I sir. So, here’s what we’re going to do.

When the trial is finished you’re going, you’re going to submit to the Court a Memorandum of Law with, including any authority that you can find for that proposition, and I’ll be happy to consider it in a future trials [sic]. I, if, if there’s authority that says that I, I can’t have you strike from the well I won’t do that anymore. [DEFENSE COUNSEL]: I could tell the Court that I have researched that issue, and I have not found a case. THE COURT: Well, I’m going, I’m ordering you to research it again and submit a Memorandum of Law. [DEFENSE COUNSEL]: After the trial? THE COURT: Okay.

(Emphasis added.) 10 After completing voir dire questioning, the court compiled a list of individuals qualified to serve on the jury, in accordance with Rule 4-312(f). The judge then explained the process she intended to use for peremptory challenges as follows: THE COURT: All right. For the remaining jurors, what we’re going to do is when we call your number I want [you] to come up to the well of the courtroom and the attorneys may or may not strike you. If you’re not stricken and you come up here into the jury box that means that you are selected as a juror.

All right. We’ll start with Juror #4. (Emphasis added.) Jury selection proceeded as described. Alternating between prosecution and defense for each qualified juror called to the well, the court asked, “Is the prospective juror acceptable[?]” When an individual was accepted by both sides, the trial judge immediately instructed that juror to take a seat in the jury box.

Before the twelfth qualified juror was seated, defense counsel had used all four peremptory strikes allotted by rule in a case of this nature. See Rule 4-313(a). Once the State accepted the twelfth qualified juror, the court, without pause or comment, proceeded to call for peremptory challenges against alternates, as follows: THE COURT: 129. Is the prospective juror acceptable to the State? [PROSECUTOR]: Acceptable to the State.

THE CLERK: Please take the next seat in the second row. 165. Is the prospective alternate acceptable to the Defense? [DEFENSE COUNSEL]: Respectfully move to excuse. (Emphasis added.) 11 Defense counsel exercised peremptory strikes against the first two prospective alternate jurors called to the well, exhausting the defendant’s allotment of peremptory strikes against alternates. After two alternates were seated, the judge excused the remaining members of the venire and called for the jury to be sworn, at which point defense counsel lodged an objection: THE COURT: All right.

The two gentlemen who are left, you can go back to the Jury Assembly Room. Thank you for participating in the process. When you’re ready madam clerk, please swear the jury. THE CLERK: Would all prospective jurors – all jurors – [DEFENSE COUNSEL]: I’m sorry, I’m sorry.

Your Honor, may we approach? THE CLERK: I’m sorry. THE COURT: Okay. (BENCH CONFERENCE BEGINS) . . . [DEFENSE COUNSEL]: Your Honor, I’m going to object to – THE COURT: I’m sorry, I can’t, I can’t – [DEFENSE COUNSEL]: I’m going to object to the seating of this jury based on the, the ruling on the peremptory strikes.

THE COURT: Okay. And again, do you have legal authority for that? [DEFENSE COUNSEL]: No, ma’am. THE COURT: Okay. Well, you’re going to do a Memorandum of Law for me and submit it.

And if, if you don’t find any legal authority then say that in your memorandum. (Emphasis added.) After Pietruszewski was convicted, defense counsel filed a motion for a new trial on the ground that the trial court “inappropriately restricted the Defendant’s use of 12 peremptory challenges to ‘strike from the box.’” In support of the motion for new trial, defense counsel argued for the first time that “Maryland Rule 4-313(b)(3) squarely addresses the issue” by providing that, “[a]fter the required number of qualified jurors has been called, a party may exercise any remaining peremptory challenges to which the party is entitled at any time before the jury is sworn, except that no challenge to the first 12 qualified jurors shall be permitted after the first alternate juror is called.” As construed by defense counsel, this rule provides that, “[a]fter the 12 jurors are seated ‘in the box,’ a party is entitled at any time to use its remaining challenges, so long as it is done before the jury is sworn[,]” but counsel acknowledged that he still “could not find case law directly construing a defendant’s right to strike from the box[.]” Nevertheless, counsel argued, “such a right is at least referred to in Chew v. State, 317 Md. 233, 237 (1989) (footnote 3 in the text).” The trial court denied the motion without a hearing. This timely appeal followed. In his brief, Pietruszewski asserts two reasons why the trial court erred in refusing to permit him to strike jurors after they had been seated in the box: (1) the court “violated Appellant’s right to due process,” and (2) the court violated “Maryland Rule 4-313 and impaired the use of peremptory challenges.” We conclude that neither argument supports reversal in this case.

C. Due Process Claim The State argues that Pietruszewski’s due process claim “should be rejected because he failed to make any argument to support it[.]” 13 We agree that a due process challenge is not preserved. As the excerpts of the trial transcript show, when defense counsel was asked to state the legal basis for his objection to the peremptory challenge procedure described by the trial judge, counsel never mentioned due process or otherwise asserted constitutional grounds for his position. Due process was not argued to the trial court either before the jury was selected or in the motion for a new trial. Counsel did not even cite Rule 4-313(b) until he filed his motion for new trial, and he advised the court that his research had not yielded any appellate precedent to support his position.

Counsel conceded in the memorandum supporting his motion for new trial that “[t]he provision and use of peremptory challenges are not provided under the United States Constitution or under the Md. Decl. of Rights. Whitney v. State, 158 Md. App. 519, 531 (2004).” Under Maryland Rule 8-131(a), [w]e usually elect to review an unpreserved issue only after it has been thoroughly briefed and argued, and where a decision would (1) help correct a recurring error, (2) provide guidance when there is likely to be a new trial, or (3) offer assistance if there is a subsequent collateral attack on the conviction. Conyers v. State, 354 Md. 132, 151 (1999). Because this limitation on appellate review is particularly important for constitutional claims, “precedents recognize that constitutional issues raised for the first time on appeal, and not raised in the trial court, are not automatically entitled to consideration on the merits under Maryland Rule 8–131(a).” Hartman v. State, 452 Md. 279, 300 (2017).

See also State v. Raithel, 285 Md. 478, 484 (1979) (“nothing is better settled than the principle that courts should not decide 14 constitutional issues unnecessarily”). Consequently, we will limit our review to whether the trial court committed reversible error in failing to apply Rule 4-313(b)(3). D. Rule 4-313(b) Claim Pietruszewski contends that the trial court erred when, instead of proceeding by a commonly-used jury selection method that permits attorneys to “strike from the box after jurors have taken a seat in the box, the court” imposed a “one and done” procedure that prevented him from exercising peremptory strikes after qualified jurors were seated in the box. In Pietruszewski’s view, the trial court’s method of impaneling the jury “impaired” his “exercise of his peremptory challenges” by “violat[ing] the mandate of Maryland Rule 4-313(b)(3)” that such strikes may be “exercise[d] at any time before the jury is sworn” (up until the time the first alternate juror is called).

Pietruszewski further argues: “Alternatively, the trial court’s refusal to allow [him] to ‘strike from the box’ is an abuse of the trial court’s discretion because the trial court failed to exercise any discretion” when it applied “a hard and fast rule” “for no reason other than that is what it always does[.]”