Tolbert v. State

ORTH, Judge. Once again we are called upon to apply the rulings concerning peremptory challenges of Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986), to determine the constitutionality of the composition of a jury in a criminal cause. We hold that the jury in the Circuit Court for Baltimore County which convicted John Anthony Tolbert of robbery and related crimes was constitutionally offensive and that he is entitled to a new trial. 1 I (A) We visited Batson in Stanley v. State, 313 Md. 50 , 542 A.2d 1267 (1988). The comprehensive opinion of this Court, written by Adkins, J., carefully dissected the majority opinion of the Supreme Court. 2 We found that the Supreme Court concluded that by using evidence concerning the prosecutor’s exercise of peremptory chal ¹⁶ lenges, a defendant could establish “a prima facie case of purposeful discrimination in selection of the petit jury.” Stanley at 59 , quoting Batson, 476 U.S. at 96 , 106 S.Ct. at 1722 , 90 L.Ed.2d at 87 .

In Stanley, id., we quoted what the Supreme 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].” (Footnote omitted).

A “prima facie case” in the Batson context denotes “the establishment of a legally mandatory, rebuttable presumption.” Stanley, 313 Md. at 60 , 542 A.2d 1267 , quoting Texas Dept. 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). We observed in Stanley : 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.” 313 Md. at 60 , 542 A.2d 1267 , quoting Batson, 476 U.S. at 97 , 106 S.Ct. at 1723 , 90 L.Ed.2d at 88 . The Court cautioned, however, that in deciding whether the defendant had made the requisite showing of a prima facie case of racial discrimination the trial judge should consider “all relevant ¹⁷ circumstances.” 476 U.S. at 96-97 , 106 S.Ct. at 1723 , 90 L.Ed.2d at 88 . (B) The necessary inference of racial discrimination was apparent from the pattern the prosecutor followed in the use of his peremptory challenges. 3 In the midst of the jury selection there was a bench conference on the record with Tolbert present.

Defense counsel objected to the way that the State is striking only black potential jurors. The only exercise of strikes that they have used has been black individuals. He declared: The record should reflect that the defendant is black. I believe the court should inquire or ask the State to articulate a reason for this.

The court said: “Yes, please, your four strikes are all black prospeetives.” They were the only peremptory challenges by the State exercised to that time. ¹⁸ Although the trial court did not expressly so state, the clear implication raised by the court in calling for the prosecutor to explain why he was striking only black individuals was that the court believed that Tolbert had met his burden to make a prima facie showing of racial discrimination. What reasons a prosecutor may advance for his challenges are not relevant to a prima facie showing vel non. It is the “circumstances” concerning the prosecutor’s use of peremptory challenges which may create a prima facie case of discrimination against black jurors, not the reasons given for the challenges. We share the confidence of the Supreme Court that trial judges are able to decide whether the circumstances create such a prima facie case.

Here, the defendant was a black man and the victim was a white woman. The prosecutor used his first four peremptory challenges to strike black individuals. Tolbert was entitled to rely on the fact that peremptory challenges constitute a jury selection practice that permits those to discriminate who are of a mind to discriminate. These circumstances were enough to constitute the required prima facie showing.

We cannot say that the trial judge was wrong in so determining. II (A) Once a prima facie showing is made, “the burden shifts to the State to come forward with a neutral explanation for challenging black jurors.” Stanley, 313 Md. at 61 , 542 A.2d 1267 , quoting Batson, 476 U.S. at 97 , 106 S.Ct. at 1723 , 90 L.Ed.2d at 88 . The Supreme Court emphasized that “the prosecutor’s explanation need not rise to the level justifying exercise of a challenge for cause.” Id. We discussed in detail the burden on the State imposed by Batson in Stanley 313 Md. at 61-63 , 542 A.2d 1267 .

We neatly summarized the obligations of the State, the rights of the defendant, and the duties of the trial judge in Stanley at 92-93, 542 A.2d 1267 : ¹⁹ [T]he State is to present, if it can, honest, neutral, nonracial reasons for the challenges of each black potential juror who was stricken. Any reasons presented must be legitimate, clear and reasonably specific, as general assertions of assumed group bias or broad denials of discriminatory motives will be insufficient to overcome the defendants’ prima facie cases. The reasons must be tailored to the particular facts of the case that was tried and related to the individual traits of the jurors. The defendant will be afforded the opportunity to rebut any explanations put forth by the prosecutor and to expose any justification that on its face may appear racially neutral, but is in reality a sham or pretext.

The trial court must then articulate a clear ruling detailing the basis on which it was made, and explaining whether the established prima facie case of purposeful discrimination has been overcome by the State. A new trial will be required if the State cannot produce satisfactory nondiscriminatory reasons for every peremptory challenge exercised to exclude a black juror. A new trial will be ordered if any reasons given by the State are perceived by the trial court as only pretext and thus not satisfactorily racially neutral. A new trial will be mandated if any one of the peremptory challenges to black jurors was exercised with a discriminatory purpose, as the State will not be allowed “one free discriminatory strike.” Any violation requires a new trial.

(B) When the trial court called upon the prosecutor to explain why his first four (and only) peremptory challenges to that point in the jury selection were utilized to strike black individuals, the prosecutor said: “First, I wasn’t aware of that.” He went on: I believe the individuals I struck are young females, and the last individual I struck was on a prior jury that I had which was not guilty. That was the concern that I had. ²⁰ The prosecutor pointed out that “[t]here are three black individuals, one of whom is a female sitting in the foreman’s spot, who I just said was acceptable to the State. She is a black female and there are two black gentlemen on the jury.” The court directed attention to a certain juror, “a 40 year-old black female with two years of college, who did not respond to the voir dire question.” 4 It turned out that she was the one on the prior jury, which rendered a verdict of “not guilty” in ten minutes. Defense counsel interjected that this was hardly a good enough reason.

He said that he knew something about that case and the verdict was fair. “Because the jury came back with a fair verdict is no reason to challenge the juror.” The court asked: “Would your strikes be of any white juror that was on that panel as well?” The prosecutor answered: “Certainly.” He continued: There are a number of jurors who were on that jury that we are in the middle of, and I intend to strike several of those who I felt listened closely to the evidence, and the ones who I felt didn’t listen closely to the evidence, I’m striking, whatever color. The prosecutor observed that he was required to articulate a reason and that he thought that he had articulated a good reason. The court inquired: “Why young black females?” and asked what was the race of the victim. It was elicited after the prosecutor’s avowal that “[t]he race has nothing to do” with it, that the victim was “a 40 year-old white female.” A discussion ensued whether the prosecutor had given as a reason for his strikes that the individuals were young black females.

He insisted that he said young females, not young black females. He stated: I’m striking young women off the jury. I intend to go back into the pool. There are nine young females sitting in the jury box. ²¹ The court was not satisfied.

It asked: “Why did you articulate young females, white or black?” The answer was: Because my intuition and experience tells me that young females have a difficult time coming to decisions in cases like this. Defense counsel found that “rather surprising.” He called attention to the jury box: “We have got three young white females that haven’t been struck.” The prosecutor said that it’s always my strategy to seat twelve individuals and strike as seldom from the well as possible and then go back into the pool, into the jury box and strike individuals. He offered to show the court his notes of the people he wanted to