State v. Gorman , 324 Md. 124 ( 1991 )

McAULIFFE, Judge.

Robert William Gorman was convicted in 1985 of armed robbery and a handgun violation and was sentenced as a repeat offender to life without parole. His convictions were affirmed by the Court of Special Appeals in an unreported opinion, and we denied certiorari. The United States Supreme Court granted certiorari, vacated the judgment of the Court of Special Appeals, and remanded the case for further consideration in light of Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). Gorman v. Maryland, 480 U.S. 913, 107 S.Ct. 1363, 94 L.Ed.2d 680 (1987). The issue raised by the defendant involved the State’s use of peremptory challenges against black venirepersons. The Court of Special Appeals, in an unreported opinion, reversed the judgment of the trial court and ordered a new trial. This Court granted certiorari and reversed, a majority of the Court holding, inter alia, that a white defendant could not challenge the State’s use of peremptory challenges against black venirepersons on equal protection grounds. State v. Gorman, 315 Md. 402, 416, 554 A.2d 1203 (1989).

The Supreme Court, after deciding in Powers v. Ohio, 499 U.S.-, 111 S.Ct. 1364, 1373, 113 L.Ed.2d 411 (1991), that “a defendant in a criminal case can raise the third-party equal protection claims of jurors excluded by the prosecution because of their race,” granted Gorman’s petition for writ of certiorari, vacated the judgment of this Court, and remanded the case to us for further consideration. Gorman v. Maryland, — U.S. -, 111 S.Ct. 1613, 113 L.Ed.2d 712 (1991).

Voir dire and jury selection in this defendant’s case took place on 5 and 6 March 1985. At the conclusion of the proceedings, and before the jury had been sworn, the defendant’s attorney complained that the State had systematically excluded black jurors by the use of its peremptory challenges:

Your honor, if it please the court, I would like to put on the record—it’s my understanding from what I observed, the method of selection of the jurors in the past two days, that there were only two non-caucasians called for the jury duty and I understand they are done randomly and they are selected from the voter’s roll, but I would like the record to reflect that there were thirty-six—I don’t know the exact number, but there were only two noncaucasians on those panels and both of which were initially selected for jury duty on this case, which I would like the record to reflect that the State’s Attorney systematically through exercise of peremptory challenge, did exclude those two from the jury and I would like the record to so reflect that.

The prosecutor believed he was under no obligation to explain his peremptory challenges:

[A]s to my peremptory strikes, the case law is quite clear in this area, neither defense nor the court for that matter can indicate to me, similar to a nol pros situation, who I can strike or who I can’t. It’s absolutely discretionary on my part and that is the status of the case law as I know it to be at this time. So the argument advised by the defense attorney holds no water whatsoever.

The trial judge declined to take any further action on the defendant’s complaint:

The only two black individuals on the panel, and they were stricken by the State, peremptory strikes, are just that, and they may be excused for any reason and unless you can show some distinct prejudice to the defendant, I don’t see where that is a factor that would be taken into consideration in the case. I think it should be noted for the record, that Mr. Gorman himself is white. So I don’t see—you have your objection for the record. However, I do not see that your client is prejudiced by the State exercising their peremptory strikes. Even assuming that I could do something about it, which I don’t think that I can, because they are peremptory strikes.

The Supreme Court has long held that a black defendant is denied equal protection of the laws when put on trial before a jury from which members of his or her race have been purposefully excluded. Strauder v. West Virginia, 10 Otto 303, 100 U.S. 303, 25 L.Ed. 664 (1880). In applying the principle of Strauder to the exercise of peremptory challenges, the Supreme Court in Swain v. Alabama, 380 U.S. 202, 222, 85 S.Ct. 824, 837, 13 L.Ed.2d 759 (1965), relied upon a presumption that the prosecutor properly exercised the state’s challenges, and refused to permit an inquiry concerning the prosecutor’s motives in a single case. The Court placed the burden on the defendant to make out a prima facie case of discrimination by presenting evidence other than the fact that members of the defendant’s race were struck in a particular case. Id. at 223-24, 85 S.Ct. at 837-38.

It was not until 30 April 1986, when the Supreme Court decided Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), that the Court rejected the “evidentiary formulation” of Swain, and held that a defendant may establish a prima facie case of discrimination from the totality of the relevant circumstances existing in the defendant’s case, without being required to demonstrate a pattern of discrimination extending beyond that case. 476 U.S. at 93-96, 106 S.Ct. at 1721-23. The Court recognized that “peremptory challenges constitute a jury selection practice that permits ‘those to discriminate who are of a mind to discriminate.’ ” 476 U.S. at 96, 106 S.Ct. at 1723, quoting in part from Avery v. Georgia, 345 U.S. 559, 562, 73 S.Ct. 891, 892, 97 L.Ed. 1244 (1953). The Court offered illustrative examples of relevant circumstances that might give rise to an inference of discrimination, including a pattern of strikes against black jurors in the particular venire, and questions and statements of the prosecutor made during the voir dire and jury selection process. Id. 476 U.S. at 96-97, 106 S.Ct. at 1722-23. The Court further held that once the defendant had made a prima facie showing of racial discrimination in the exercise of peremptory challenges, the burden shifted to the prosecutor to come forward with a neutral explanation for those challenges. Id. at 97, 106 S.Ct. at 1723.

In Griffith v. Kentucky, supra, the Supreme Court held that the “new rule for the conduct of criminal prosecutions” announced by Batson would apply retroactively to all cases pending on direct review or not then final. 479 U.S. at 328, 107 S.Ct. at 716. This defendant’s appeal had not been finally determined when Batson was decided, and the rule of Batson is therefore applicable.

The State concedes that the prosecutor’s use of peremptory challenges to exclude the only two blacks in this venire establishes a prima facie case of discrimination. See Tolbert v. State, 315 Md. 13, 17-18, 553 A.2d 228 (1989); Stanley v. State, 313 Md. 50, 85-87, 542 A.2d 1267 (1988).

The single question that remains is whether we should remand this case to the trial court to afford the prosecution an opportunity to offer race-neutral reasons for its exercise of peremptory challenges against the black venirepersons or, as the defendant strenuously requests, direct that the defendant be given a new trial.

In Batson, the Supreme Court remanded the case to permit the trial court to determine whether a prima facie case of discrimination had been established, and if so, to permit the prosecutor an opportunity to come forward with a neutral explanation for his action. 476 U.S. at 100, 106 S.Ct. at 1725. We followed the same course in Stanley v. State, supra, after reviewing state and federal cases dealing with the issue, and we have approved limited remands ordered by the Court of Special Appeals for the same purpose. See Gray v. State, 317 Md. 250, 254, 562 A.2d 1278 (1989); Chew v. State, 317 Md. 233, 236, 562 A.2d 1270 (1989). See also Note, Defense Presence and Participation: A Procedural Minimum for Batson v. Kentucky Hearings, 99 Yale L.J. 187 (1989) (discussing appropriate procedures for original and remand Batson hearings). We noted in Stanley, however, that there may be cases in which a remand would not be the appropriate remedy:

This is not to say though that we will always remand for an evidentiary hearing. There may come a time when we would simply reverse and remand for a new trial. For an example of a case that was reversed and a new trial ordered, see People v. Scott, 70 N.Y.2d 420, 426, 522 N.Y.S.2d 94, 98, 516 N.E.2d 1208, 1212 (1987) (“A hearing is inappropriate in this case, however, because of the absence of a record and the impossibility of securing one.”).

Stanley v. State, supra, 313 Md. at 76 n. 15, 542 A.2d 1267.

The defendant argues that a limited remand would be inappropriate in his case for two principal reasons: first, because the prosecutor refused to articulate any reasons for the exercise of peremptory challenges against black venirepersons when he had an opportunity to do so, and he should not now be given a second chance; and second, more than six years have elapsed since jury selection.

The defendant characterizes the prosecutor’s initial refusal to give reasons for the peremptory challenges as “impudent arrogance” and would sanction the State by withholding the ordinary procedure of a remand for further proceedings. We do not agree. We may share the defendant’s sentiment that if race-neutral reasons had been advanced by the prosecutor at the time the defendant expressed his concern, a substantial amount of subsequent litigation could have been avoided. We must realize, however, that at the time the prosecuting attorney made his response, Batson had not been decided. It is true that by that time some state and federal courts had begun to question the continued viability of Swain’s virtual insulation of the prosecutor’s motives. See Lawrence v. State, 295 Md. 557, 567-71, 457 A.2d 1127 (1983). See also Evans v. State, 304 Md. 487, 525-28, 499 A.2d 1261 (1985) (decided after jury selection had occurred in this case, but discussing cases from other jurisdictions decided prior thereto, and suggesting that a prima facie case might be made out by the manner of exercise of peremptory challenges in a single case).

Although the seeds of change may have been sown, the law remained fixed by Swain. We commented upon this state of the law in Chew, when discussing a trial judge’s ruling made at about the same time the prosecutor was responding in this case:

The trial judge held, consistent with the then existing law of Swain v. Alabama, ... that in the absence of some showing of an office policy or consistent pattern of conduct embracing more than a single case, the prosecutor was not required to give any reasons for the exercise of his peremptory challenges.

Chew v. State, supra, 317 Md. at 238, 562 A.2d 1270. Accordingly, the response of the prosecutor, though leaning more toward grandiloquence than humility, was a correct statement of the law as he then knew it to be. The tone of his response hardly justifies depriving the State of an opportunity to produce reasons that the State contends existed for the exercise of the challenges.

The defendant’s second argument on this point is that so much time has passed since jury selection in this case that it would be impossible to reconstruct events with sufficient clarity to permit a fair determination of the issue. A similar argument was made, and rejected, in Batson, 476 U.S. at 132-33, 106 S.Ct. at 1741-42 (Burger, C.J., dissenting). See also Chew v. State, supra, 317 Md. at 239, 562 A.2d 1270; Stanley v. State, supra, 313 Md. at 76, 542 A.2d 1267.

In the case before us, the prosecutor and defense counsel are available to provide evidence and argument, and a complete transcript of the voir dire and jury selection process exists. The State informed us at oral argument that the prosecutor has retained his original jury list and notes, and is prepared to offer reasons for the challenges that the State believes are race-neutral. Under these circumstances, we conclude that “a reasonable possibility exists that reconstruction can be fairly accomplished,” Chew v. State, supra, 317 Md. at 239, 562 A.2d 1270, and that the attempt is worth the effort. If it develops on remand that defense counsel no longer have their notes, and for this or other reasons attributable to delay the defendant has been placed at an unfair disadvantage in responding to the reasons advanced by the prosecutor, the trial judge may determine that a new trial is required. We repeat what we said in Chew:

Should it appear to a trial judge presiding at a limited remand hearing that the passage of time precludes fair consideration of the relevant issues, that judge will simply order a new trial.

Id.

Conclusion

The defendant did have standing to challenge the prosecutor’s exercise of peremptory challenges against black venirepersons. The State’s exercise of peremptory challenges against the only two blacks in the venire makes out a prima facie case of racial discrimination, and the burden is upon the State to satisfy the trial judge that the reasons for the challenges were race-neutral. The case must be remanded for further proceedings on that issue.

JUDGMENT OF THE COURT OF SPECIAL APPEALS VACATED; CASE REMANDED WITHOUT AFFIRMANCE OR REVERSAL TO THE COURT OF SPECIAL APPEALS WITH DIRECTIONS TO REMAND THE CASE TO THE CIRCUIT COURT FOR HARFORD COUNTY WITH DIRECTIONS TO THAT COURT TO CONDUCT A HEARING IN ACCORDANCE WITH THIS OPINION. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO ABIDE THE RESULT.

ROBERT M. BELL, J., dissents with an opinion in which ELDRIDGE, J. joins.