State v. Tejada

¹⁵¹ BARBERA, J. Respondent, Emanuel Tejada, was convicted by a jury of two counts of attempted murder, armed robbery, and related offenses. He appealed the judgments of conviction, arguing, inter alia, that the bifurcated jury selection process denied him the right to an informed and comparative rejection of prospective jurors. The Court of Special Appeals held that Respondent preserved that claim for appellate review and the trial court erred in bifurcating the jury selection process. We granted the State’s petition to review the judgment of the Court of Special Appeals.

The State has opted not to challenge that court’s judgment on the merits and argues only that Respondent failed to preserve his objection for appellate review. For the reasons that follow, we hold that the Court of Special Appeals did not err in finding the issue to be preserved for review. I. In October 2007, Respondent and a co-defendant stood trial in the Circuit Court for Montgomery County, on various charges stemming from an attempted robbery of an armored truck in Silver Spring, Maryland. 1 The trial was scheduled to take seven days. The jury selection process began with a venire of 60 prospective jurors.

The trial court dismissed 17 of them for cause, leaving 48 venirepersons for the peremptory challenge phase of the process. Respondent and his co-defendant were each entitled to exercise 20 peremptory challenges and the State, 20 (10 per defendant). 2 ¹⁵² Midway through the exercise of peremptory challenges, the court noted that the parties were “going to run out of jurors.” By that time, Respondent had used 14 challenges, his codefendant 12, and the State 6. The parties and the court discussed the situation 3 : [Co-defendant’s Counsel]: Your Honor, I know that I have strikes left, and I know that— [The Court]: You’ve got more strikes than we have jurors left. [Co-defendant’s Counsel]: Well, that’s what I was going to raise. [The State]: We’re going to have to do another panel. [The Court]: Oh, yes, we’re going to have to do it when I get back [later today]. The trial court then asked the clerk to inform the jury commissioner that the court would “need another panel, but not until later this afternoon, 3:30.” The parties exercised several more challenges.

The court then recessed for lunch, noting at that time that Respondent had four challenges remaining, his co-defendant eight, and the State five. When proceedings resumed after the luncheon recess, the court instructed the lawyers of “a problem” with the new jurors requested from the jury commissioner: [The Court]: We got a little problem, Houston. The jurors that we have, first of all most of them down there have already been through, they were not screened for seven ¹⁵³ days. In fact, the jury commissioner knows that these jurors that they have left cannot stay five days.

And so [there is no] point in us going through that exercise in futility because that’s going to be a problem. So there are two proposals ... we can either start all over tomorrow. [The commissioner can bring in] about 100 jurors and maybe we’ll even be able to get the bigger courtroom, and ... just start all over, or we can, which is the proper procedure!,] keep the seven or eight or whatever we have and then just select the rest of them tomorrow morning. Now, understand something, finishing the selection today is not an option. We don’t have enough in the venire.

Counsel for Respondent’s co-defendant indicated that she was “inclined to start over” with the entire jury selection process. The State opposed that proposal, stating: “I don’t know why we would start again and excuse [the jurors already selected]. We’ve been through the process with them,” and selecting an entirely new jury would “knock [the State] a half a day or a day behind [schedule].” The State was willing to hear defense counsel’s reasons for “startling] fresh” but did not know of a reason requiring the court to do so. The court responded: [The Court]: I’m not so sure you can—I suppose anything that the parties agree to, you could do it, but I’m not sure that ... you can do that, start over unless you all agree. [The State]: I don’t know why we would. [The Court]: Because we’re basically in the middle of the jury selection process.

If we were carrying it on today and just had a group of jurors come up, we would never get rid of the ones we’ve already picked. After a short discussion regarding a possible break to allow the parties to review the relevant law on jury selection, the exchange continued: [The Court]: ... I’m not so sure that there’s any real choice, Mr. State. I mean, I suppose as long as it’s not anything that’s illegal or against any rule, the parties could agree to anything, but absent an agreement we’re still ¹⁵⁴ basically in the middle of selecting a jury, and we would never start over in the middle of that process simply because— [The State]: I agree. [The Court]: Right, go ahead. [The State]: The only thing I’ve stated is if the Defense believes there is prejudice because of this, that they put it on the record now so we know what it is, and then we can address that now. [The Court]: You’re not going to find a lot of help in the rules.

I know you’ve already looked at that. Well [Md. Rule 4-312(f) ] addresses the question of additional jurors. “When the number of jurors of the regular panel may be insufficient to allow for selection of a jury, the Court may direct that additional jurors be summoned at [] random from the qualified jury wheel and thereafter [ ] at random in a manor [sic] provided by the statute.” So the rule provides that we can do exactly what I’m going to do, and that’s summons additional jurors. I don’t know that we can— [Co-defendant’s Counsel]: I just maintain my objection for the record, Your Honor. [The Court]: Sure. Now if you come up with some reason overnight why we can do anything different, then we can still, we can still, dismiss this group.

The discussion then diverted briefly towards determining the appropriate time for the venirepersons to return the follow morning, and then continued: [Respondent’s Counsel]: And at this particular point, I would just join in the general objection and look at things tonight and let Your Honor know if anything is different. [The Court]: I think the State’s Attorney makes a good point. If there’s some specific objection to sending the jury home and bringing in extra jurors, I’m sure that counsel would put it on the record, but there is no real specific ¹⁵⁵ objection available, but I will give you the opportunity to look over the issue in the evening. The court then dismissed the jurors for the evening. At the outset of proceedings the following morning, the court stated: “We didn’t have enough people in [yesterday’s] panel to complete the selection process.

And so we are bringing some more in this morning to see if we can get the 12, or probably 16 jurors that we need.” After logistical discussions, Respondent’s counsel addressed the court regarding his objection to the bifurcated jury selection: [Respondent’s Counsel]: We have just a quick matter here and that is, Your Honor, we, having thought more about the issue about what’s happening here, is I would just like to renew my objection to the procedure. [The Court]: Very well, so noted. [Co-defendant’s Counsel]: And my original objection— [The Court]: So noted. [Respondent’s Counsel]: And it has to do— [Co-defendant’s Counsel]:—is just continuing— [The Court]: So noted. [Respondent’s Counsel]: Right, it has to do with what [co-defendant’s counsel] was about to say yesterday, which is that the idea of comparative striking—looking at who we’re striking and seeing what is left on the panel. [The Court]: So noted. Okay? After the court began voir dire of the new panel of prospective jurors, co-defendant’s counsel again raised the issue of the bifurcated selection process: [Co-defendant’s Counsel]: And I raise again my original objection with regard to—I just want to make sure it’s ongoing—about [] doing the supplemental jury selection, Your Honor. [The Court]: There’s really not a supplemental jury. It’s just a continuation of— [Co-defendant’s Counsel]: Right, a continuation. [The Court]: If we had the people yesterday— ¹⁵⁶ [Co-defendant’s Counsel]: Right. [The Court]:—we would’ve continued it yesterday.

We simply didn’t have the people. And, notwithstanding counsel’s objection, you were given the option of starting all over from zero as if we never started and you declined and decidefd] that because— [Co-defendant’s Counsel]: No, no, no. I asked for— [The Court]:—you have extra strikes— [Respondent’s Counsel]: Your Honor, we both— [The Court]:—you would use those. [Respondent’s Counsel]: Your Honor, I respectfully disagree. Both of us lodged— [The Court]: You want me to excuse the people, the nine?

I can do that. And your objection goes away. [Respondent’s Counsel]: That was our request yesterday. [The Court]: Well, do you want me to do it today? [Co-defendant’s Counsel]: We don’t have enough jurors again. [The Court]: Oh, yes, we do. [Co-defendant’s Counsel]: We have 50. [The Court]: Okay, well— [Co-defendant’s Counsel]: But we had 65 yesterday. [The Court]: I’ll reserve ruling on your objection and if you want to excuse the nine that we have picked today, I’ll do it. [Respondent’s Counsel]: You’ll reserve ruling on that. [The Court]: Uh-huh. (Emphases added.) The court resumed the voir dire. Shortly thereafter, the court and parties discussed how long the selection process was taking.

The court noted: [The Court]: Now, the option of starting over is not a real option unless you want to do this again tomorrow because guess what? We don’t have any more jurors. [Co-defendant’s Counsel]:—have any—yes. ¹⁵⁷ [The Court]: That is it. [The State]: (Unintelligible) Mr. [Respondent’s Counsel] and Ms. [Codefendant’s Counsel]— [The Court]: But I’m not depriving you [of the option to start over]. If that’s what you want to do, we’ll just have to bring some people in tomorrow, but you think about that at lunch. [Respondent’s Counsel]: Your Honor, given Your Hon- or’s statement just now, my client would waive that objection. [The Court]: Okay, that’s fine. (Emphases added.) The parties returned after a recess, at which time counsel for Respondent’s codefendant renewed her objection to the jury selection process. [Co-defendant’s Counsel]: Your Honor, you, before the break, gave me until after lunch to decide whether I wanted to waive, like [Respondent’s Counsel] did, on the objection of the—the selection of the jury and having a second panel to supplement the panel that we had already selected yesterday.

I’m going to stand by my objection and elect to request that a new panel—I would ask for 150 jurors to be brought tomorrow to select a new jury, with exercising all the strikes and do it tomorrow. [The Court]: Very well. [Co-defendant’s Counsel]:—from scratch. [The Court]: Yes? [The State]: Briefly, the— [The Court]: Objection is overruled. [The State]: All right, then I—we should proceed then with finishing the voir dire process. [The Court]: Just for the record, this is not a supplemental panel; this is—if we had the jurors present yesterday, we would have simply had more brought up except that there were no further jurors and we had to ¹⁵⁸ wait until this morning to continue the jury selection process. So it isn’t that we have selected a panel and now we’re selecting another one; we never did complete the selection process. We got nine jurors, I believe, out of the 12 that we need. [Co-defendant’s Counsel]: Eight, Your Honor. One of them called, remember 118 called and— [The Court]: Well, but he was selected. [Co-defendant’s Counsel]: Oh, yes. [The Court]: But today he was excused because he has— and I excused him for cause because— [Co-defendant’s Counsel]: Yes. [The Court]:—quite frankly, it wouldn’t be fair to make counsel use a strike.

The juror neglected to tell us yesterday that he wasn’t able to be here on Thursday, tomorrow. So, anything else? [Respondent’s Counsel]: Yes, Your Honor. I misunderstood Your Honor’s position. I apologize to the Court.

I think my words at the bench were “having heard what Your Honor just said, I waive my objection.” Now that I understand Your Honor’s position that you are overruling her request, then I would enjoin [sic] in her request because I had waived with the understanding that Your Honor was going to say “whatever you two decide, I, the Judge, will grant,” and I’m not saying that’s what you said, I’m just saying that was my understanding. And now that I know that Your Honor had overruled the objection, I think I misunderstood Your Honor and I made it clear that what my waiving was based on—and now that I clearly understand Your Honor’s position, I would join in [co-defendant’s counsel’s] objection. [The Court]: Very well. Overruled. (Emphases added.) The parties resumed jury selection, during which Respondent exercised the remainder of his peremptory strikes.

On ¹⁵⁹ the eighth day of trial, the jury found Respondent guilty of multiple offenses. Sentencing followed in due course. 4 On appeal to the Court of Special Appeals, Respondent raised a number of claims including that the trial court erred in its conduct of the jury selection process. The State countered that Respondent had failed to preserve the claim for appellate review and, even if the claim was properly before the appellate court, it had no merit. The Court of Special Appeals, in an unpublished opinion, held that Respondent had preserved the claim for appellate review and that the trial judge erred by conducting a bifurcated jury selection process, because it had the effect of denying Respondent his right of informed and comparative rejection. 5 The Court of Special ¹⁶⁰ Appeals vacated the judgments and remanded Respondent’s case for a new trial.

The State filed a petition for a writ of certiorari, which we granted to consider the following questions: (1) Did the Court of Special Appeals err in determining that a complaint that there was not a sufficient number of prospective jurors designated prior to the beginning of the exercise of peremptory challenges, as required by Maryland Rule 4-312, is preserved as long as a defendant who had not exhausted all of his or her peremptory challenges objects before the jury is sworn in? (2) Even if an objection before the beginning of the exercise of peremptory challenges is not required, does a party waive appellate review of the issue by continuing to exercise strikes after the issue is raised by the trial court or another party? (3) Even if an objection before the beginning of the exercise of peremptory challenges is not required, does the trial court have discretion to reject a party’s attempt to retract a waiver of the objection?

II

The State does not challenge the holding of the Court of Special Appeals concerning the merits of this case—that the trial court violated then-Rule 4-312(g) by commencing the peremptory challenge phase of jury selection without a sufficient number of prospective jurors to allow all peremptory challenges to be exercised. Rather, the State asks us to decide only whether the Court of Special Appeals erred in reaching the merits of Respondent’s claim that the trial court improperly bifurcated the jury selection process. Each of the three questions presented raises a different theory as to why, in the State’s view, that claim was not properly before the ¹⁶¹ Court of Special Appeals for review. We address each theory in turn.

A. The State first contends that the Court of Special Appeals erred in concluding that Respondent’s objection before the jury was sworn sufficed to preserve for appellate review his claim of error in the trial court’s handling of the jury selection process. The State argues that Respondent was required to object to the size of the venire before exercising any peremptory challenges because it was clear by then—i.e., after the court excused for cause 15 venirepersons, leaving only 45 prospective jurors—that there remained an insufficient number of venirepersons to accommodate the parties’ exercise of all their allotted peremptory challenges (and to select alternate jurors). This Court’s decision in King v. State Roads Comm’n, 284 Md. 368 , 396 A.2d 267 (1979), informs the issue. In King , the trial court produced a venire of 25 potential jurors at the beginning of the peremptory challenge phase of jury selection, instead of the 20 required under (then-applicable) Maryland Rule 543 a.

That Rule called for 20 venirepersons and provided that each party had four peremptory challenges, leaving 12 persons to be sworn as the jury. King, 284 Md. at 372 , 396 A.2d at 270 . A panel of 28 venirepersons was subjected to voir dire by the court. Three venirepersons were struck for cause, leaving 25 prospective jurors.

The court allowed each of the parties to exercise the right to strike four prospective persons, then struck five of the remaining jurors to create the 12-person jury. Id. at 369-70 , 396 A.2d at 268 . We held that process to be erroneous because it violated the procedure outlined in Maryland Rule 543 a and left the judge in the position of “hav[ing] more to say about who would not sit on the panel than either of the parties.” Id. at 372 , 396 A.2d at 270 . Of relevance to the case at bar, King also presented the issue of whether the petitioners had preserved their appellate ¹⁶² objections by timely challenging the jury selection process in the trial court.

In discussing that issue, we emphasized that, when, as here, a rule clearly sets forth the jury selection procedure to be followed, any dissatisfaction with the technical procedure actually utilized must be expressed for the record before the jury is sworn unless it can be shown that the complaining party both did not know and, with reasonable diligence, could not have known of the irregularity. Here, with a knowledge of Rule 543 a, which all parties and their counsel are charged with having, and being furnished with a list that contained more than twenty names from which they were to exercise their peremptory strikes, petitioners necessarily were cognizant of the irregularity so as to require that, if they wished to register an objection, they do so before the jury was impaneled. Id. at 372-73 , 396 A.2d at 270 (emphases added). Because, through no apparent fault of the parties, we could not discern whether the petitioners had objected to the selection process before the jury was sworn, we vacated the judgments and ordered a remand “for certification by the trial court as to what occurred.” Id. at 375 , 396 A.2d at 271 .

Then, “if the court finds the petitioners did not make a timely objection, as specified by this opinion, the judgments previously recorded ... should be re-entered; however, if it finds such an objection was registered before the jury was impaneled, a new trial should be provided.” And, “if the trial judge is unable to reach a conclusion as to whether a timely objection was made, then, in that event, a new trial should be conducted.” Id., 396 A.2d at 271 . Notably, in identifying the time before which an objection to the jury selection process must be made, we did not require, though we certainly could have on the facts presented, that the objection be made as soon as the objecting party knew, or should have known, of the erroneously conducted jury selection process. We were satisfied with a rule that deems such an objection to be timely so long as it is made before the jury is impaneled. ¹⁶³ In the present case, the Court of Special Appeals applied the preservation rule that we announced in King , and we discern no good reason why it should not have done so. The State nevertheless raises several arguments for why the King rule should be abandoned in favor of a more stringent preservation rule, at least for purposes of the claimed error in this case.

All of those arguments, the State points out, relate “primarily to the timing of the objection, rather than its substance.” 6 We are not persuaded by any of the State’s arguments. The State first argues that Respondent was obligated, pursuant to Rule 4-312(g), to complain about the process the court was contemplating—calling for additional venirepersons—no later than at the outset of the exercise of peremptory challenges. 7 At the time of trial, Rule 4-312(g) stated: “Before the exercise of peremptory challenges, the court shall designate from the jury list those jurors who have qualified after examination.” The State points to the time described in the opening clause of the Rule—“Before the exercise of peremptory challenges”—and argues that Respondent was required to object at that point. By that time, the State explains, Respondent knew that too few potential jurors remained to produce a full jury after accounting for all the peremptory challenges afforded to the parties. The State therefore argues that Respondent waived any objection to the ¹⁶⁴ size of the venire by not objecting before the exercise of any peremptory challenges.

We disagree with the State that Rule 4-312(g) is to be read as including a timing requirement for objections. The same rules used in statutory interpretation are used to interpret the Maryland Rules. Dove v. State, 415 Md. 727, 738 , 4 A.3d 976, 982 (2010). We have often repeated that “ ‘[t]he cardinal rule of statutory interpretation is to ascertain and effectuate the intent of the Legislature.’ ” Bd. of Educ. v. Zimmer-Rubert, 409 Md. 200, 214 , 973 A.2d 233, 241 (2009) (quoting Kushell v. Dept. of Natural Resources, 385 Md. 563, 576-77 , 870 A.2d 186, 193-94 (2005)).

We must read any of our rules of procedure “as a whole to ensure that none of its provisions are rendered meaningless.” Lonaconing Trap Club, Inc. v. Md. Dept. of the Env’t, 410 Md. 326, 339 , 978 A.2d 702, 709 (2009) (citation omitted). When read in its entirety, Rule 4-312 does not require that an objection to the number of qualified jurors designated by the court be made before the exercise of any peremptory challenges. Had we intended such a requirement, we would have said so explicitly as we did elsewhere in the Rule. For example, sections (a) and (e) of Rule 4-312, as they existed at the time of trial,