Booze v. State

Decision Date01 September 1996
Docket NumberNo. 105,105
PartiesDonald E. BOOZE v. STATE of Maryland. ,
CourtMaryland Court of Appeals
Michael R. Malloy, Assistant Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for Petitioner

Gary E. Bair, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, on brief), Baltimore, for Respondent.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, RAKER and WILNER, JJ.

WILNER, Judge.

The question put to us by petitioner, Donald Booze, is whether a defendant in a criminal case who has elected a jury trial is entitled either by due process or by Maryland law to the right of "informed and comparative rejection" of prospective jurors. We need not answer such a broad question. We shall conclude that what the Circuit Court for Baltimore City did in this case violated the clear mandate of Maryland Rule 4-312(g) and, because that violation was prejudicial to Booze, we shall reverse the judgment of the Court of Special Appeals, which affirmed the judgment of the circuit court.

BACKGROUND

(1)

Petitioner and a confederate, Alan Snead, were charged with the murders of Antonio Henderson and Isaac Durant. In November, 1991, they were tried together in the Circuit Court for Baltimore City and convicted on two counts of first degree murder and unlawful use of a handgun. Those judgments were reversed on appeal. See Booze v. State, 94 Md.App. 331, 617 A.2d 642 (1993), aff'd, State v. Booze, 334 Md. 64, 637 A.2d 1214 (1994). The problem in that case was that the State was allowed to hold back an important witness until after the defense had been presented. This Court and the Court of Special Appeals held that, under the circumstances, it was an abuse of discretion for the court to have allowed the State to reopen its case for that purpose.

The case returned to the circuit court for retrial, and, once again, the State decided to try Booze and Snead jointly. After a 10-day trial extending from April 14 through April 28, 1995, each was again convicted of two counts of first degree murder and one count of felonious use of a handgun, and each received two consecutive life sentences for the murders and a consecutive 10-year sentence for the handgun violation. In their appeal to the Court of Special Appeals, Booze and Snead presented a number of issues, headed by the complaint that the State had been allowed to exercise peremptory strikes against two African-American jurors in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The appellate court concluded that, with respect to one of the jurors, the trial court had failed to afford the State an opportunity to tender a race-neutral reason for its strike, but that only Snead had objected to that strike. Finding no merit in any of the other complaints made by the appellants, it vacated the judgments against Snead and remanded for further proceedings on the Batson issue as to him but affirmed the judgments against Booze. Booze v. State, 111 Md.App. 208, 681 A.2d 534 (1996). We granted Booze's petition for certiorari to consider one of the other issues raised by him--whether due process or Maryland Rule 4-312(g) was violated by the court's insistence that the parties commence the exercise of peremptory strikes when there was an insufficient venire to allow all of the strikes to be exercised and a sixteen-person jury (twelve jurors and four alternates) to be selected.

(2)

The case on remand was called for trial at about 11:25 on the morning of April 14, 1995, which happened to be Good Friday. Because the defendants were facing life imprisonment if convicted of the murder charges, they were each entitled to 20 peremptory challenges and, because there were two defendants, the State was also entitled to 20. Md. Rule The court commenced voir dire examination by asking whether any of the jurors knew about the case or knew counsel, and, based on positive responses to those questions, five jurors were eventually excused, leaving 89 in the venire. Notwithstanding concerns expressed both by defense counsel and the prosecutor as to the timing of the question, the judge then insisted on asking whether any member of the panel knew of "any reason whatsoever, including religious reasons, or not being able to judge individuals or cases, any reason from the beginning of the world until right now why you cannot be fair." Twenty-nine persons, including two who would be excused based on familiarity with counsel or the facts of the case, responded in the affirmative, at which point the court recessed until 2:39 p.m. 2

                4-313(a)(2). 1  The initial venire consisted of 94 persons
                

When court resumed, the judge expressed surprise that so many persons had responded to the general question. Booze's attorney noted that, if those people had to be excused, there might not be enough prospective jurors left to select a jury, given the 60 (actually 84) peremptory strikes that were available. Both defense counsel added that, under the doctrine of comparative rejection, which they believed had been accepted by the Maryland courts, they were entitled to select the jury from one panel. Counsel for Booze, in particular, asked that, if the panel remaining after voir dire was insufficient, the court dismiss the panel and start again with a new panel "so that we can look at the next panel with the same eyes that we had to look at these ones, and judge the next panel the same way we have to judge these ones." The court dismissed the notion of comparative rejection out of hand, concluding that it was "no good until the Court of Appeals tells me it's good...."

At 2:49 p.m., the jury was brought back into the courtroom and asked further voir dire questions. Three panel members knew potential witnesses. One said he or she would give greater or lesser weight to the testimony of a police officer than to a civilian witness, and 19 said that they or a close relative had been a member of a law enforcement agency. Forty-three said they had been victims of a crime or had been convicted of a crime, and 36 sought release on hardship grounds, notwithstanding that, when asked by a juror to define "hardship," the court declined to do so. The court then went until 5:27 p.m. conducting individual voir dire at the bench with respect to those persons who had given an affirmative At the conclusion of the individual voir dire, the prosecutor observed that, with the strikes for cause, "we don't have enough of a pool." Defense counsel agreed, there being 45 jurors left in the pool and the parties having a total of 60 peremptory strikes (84 if alternates are taken into account). Nonetheless, the court insisted on commencing the peremptory challenge process. That process went on for another hour, until 6:28 p.m. At 5:54, after defense counsel had stricken 17 jurors between them and the State had stricken five, a Batson challenge was made with respect to the State's strikes, and several minutes were consumed with resolving that issue. After some additional strikes, another Batson challenge was made and resolved. Finally, at 6:15 p.m., the panel was exhausted with only 10 jurors selected. The State had used eight peremptory challenges, Snead had used 16, and Booze had used ten. Noting that "the courthouse for all practical purposes closed at three," the court stated that jury selection would resume on Monday. Defense counsel once again complained about the loss of comparative rejection.

answer, excusing 44 persons for cause and refusing to excuse 22 others. During this examination, the court was informed that, because it was Good Friday, the court offices had closed at 2:45, and that jurors who were excused should be released rather than returned to the jury assembly room. The prosecutor had asked to be excused at 5:45 because that was when her "ride" would be ready.

When trial resumed on Monday, counsel repeated their objection, pointing out that, if expected to make intelligent choices in exercising peremptory challenges, they needed to observe and have before them the entire panel from which prospective jurors could come and that it was unfair to require them to exercise strikes from a limited panel and then have to face a different panel having already exhausted some of their strikes. Counsel for Booze noted that he had been required to exercise 10 of his 20 strikes without ever having seen or been able to voir dire the new panel, and he asked that those 10 strikes be restored--that he be given 20 peremptory challenges to exercise against the new panel. The court rejected Forty-four new prospective jurors, from a second panel, were sworn and subjected to voir dire. Thirteen were excused for cause. The jurors who had survived from Friday were then brought into the courtroom, and the peremptory challenge process continued. After the prosecutor used nine of her 12 remaining challenges, Snead used three of the four he had left, and Booze used nine of the ten that he had remaining, a jury of 12 was selected. A third panel was then summoned from which four alternates were chosen. Booze accepted the jury "[s]ubject to prior intentions."

that request, as it had earlier rejected his request for an entirely new panel, and proceeded with further jury selection.

Booze pressed his comparative rejection argument in the Court of Special Appeals, relying principally on two earlier decisions of that court--Spencer v. State, 20 Md.App. 201, 314 A.2d 727 (1974), and Dean v. State, 46 Md.App. 536, 420 A.2d 288 (1980), cert. denied, 289 Md. 735 (1981). The court acknowledged that Dean did indeed support his argument but decided that the case constituted an unwarranted extension of Spencer and therefore overruled it. Although not rejecting entirely the doctrine of comparative rejection, the court held that, in this case, there was no violation of Booze's rights, in part because he was not "affirmatively misled" in...

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