Bridges v. State

• Citation: 695 A.2d 609,116 Md.App. 113
• Decision Date: 01 September 1996
• Docket Number: No. 1414,1414
• Parties: Connie F. BRIDGES v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 113

116 Md.App. 113

695 A.2d 609

Connie F. BRIDGES v. STATE of Maryland.

No. 1414, Sept. Term, 1996.

Court of Special Appeals of Maryland.

June 26, 1997.

Martha Weisheit, Assistant Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for Appellant.

Celia Anderson Davis, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, and Patricia Jessamy, State's Attorney for Baltimore City, on the brief), Baltimore, for Appellee.

Submitted before MOYLAN and SALMON, JJ., and PAUL E. ALPERT, Judge (retired), Specially Assigned.

MOYLAN, Judge.

The core issue on this appeal can most starkly be set out by posing a hypothetical. Hypothesize a jury selection process in which the attorney for a party (whether the trial be criminal or civil is immaterial; whether the party be on one side of the trial table or the other is equally immaterial) has just exercised his tenth and last peremptory challenge. The attorney for the opposing party objects, claiming that the ten peremptory strikes constitute a pattern of invidious discrimination against 39-year-olds. In arguing that a pattern has been demonstrated, he points out that each and every one of the prospective jurors who was peremptorily struck was precisely 39 years of age and that the ten strikes, in combination, eliminated every 39-year-old from the jury pool. The trial judge rules that a pattern has, indeed, been established and requests the attorney who exercised the peremptories to offer some explanation. That attorney responds:

With all due respect, Your Honor, I am not required to give you an explanation, lest I destroy the peremptory nature of the peremptory challenge. The quality of a challenge as peremptory means not only that I may use it for any purpose I choose, whether you like it or not, but also that I am not required to tell you why I so used it. As a courtesy to the court, however, I will gratuitously volunteer an explanation even though I am not required to give one.

Both my client and I harbor an unabashedly irrational but nonetheless deep-seated detestation of 39-year-olds as a class. Perhaps it is because our ex-spouses were 39 years of age when we divorced them, but that is immaterial. As the word peremptory implies, we need have no reason at all, let alone a good reason, for feeling as we do. We do not for a moment believe that 39-year-olds could not render a fair and impartial verdict. We simply do not like them and will use every peremptory at our disposal at every chance we get to strike them. Our motive, if you must know, is totally mean-spirited.

The issue before us is whether even such a basis for such a use of peremptory challenges would violate any prohibition of either the Constitution of the United States or the Constitution of Maryland.

The appellant, Connie F. Bridges, was convicted by a Baltimore City jury, presided over by Judge Clifton J. Gordy, Jr., of first-degree felony-murder, robbery with a deadly weapon, and conspiracy to commit robbery. On this appeal, she raises the following contentions:

1. That the State unconstitutionally exercised peremptory challenges solely on the basis of age;

2. That the State unconstitutionally exercised peremptory challenges on the basis of race 3. That Judge Gordy improperly instructed the jury with respect to the conspiracy charge;

4. That Judge Gordy abused his discretion in denying the appellant's motion for a mistrial on the grounds of prosecutorial misconduct; and

5. That the evidence was not legally sufficient to support the verdicts.

The Objection to the Peremptory Strikes

At one point during the jury selection process, defense counsel challenged the prosecutor's exercise of peremptory strikes by noting that every strike had been against prospective jurors who were Black. The prosecutor, in an effort to demonstrate to the trial court that she was not striking prospective jurors on the basis of race, responded by stating that "I'm striking everyone around age 30 and under, or trying to." The prosecutor explained her rationale for striking jurors of that age by noting that the defendant was approximately 30 years of age. Conceding that the explanation offered by the prosecutor was, if true, race-neutral, defense counsel immediately shifted tactics and argued that the explanation offered by the State was itself constitutionally infirm because age, like race and gender, is a consideration that may not serve as a basis for a peremptory strike.

The trial court found 1) that the explanation offered by the State was race-neutral and 2) that age-based peremptory strikes had never been ruled unconstitutional. Then, by way of justifying what perhaps needed no justification, Judge Gordy went on to observe that because of the respective ages of the victim and the appellant, the State's exercise of peremptory challenges had not been for impermissible reasons.

The appellant argues that both the United States Constitution and the Maryland Declaration of Rights prohibit the State from making peremptory strikes on the basis of age.

The Maryland Constitutional Issue

Because the doctrinal basis of the Maryland constitutional challenge is totally distinct from that of the federal constitutional challenge, we will examine first the appellant's claim that a peremptory challenge based on age somehow violates the Maryland Constitution. Commendably, the appellant has not urged upon us some illusory Maryland analogue to the Equal Protection Clause of the Fourteenth Amendment, such a constitutional provision never having been formally adopted in this State, or some Maryland equivalent of the academically indefensible ipse dixit of Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954). The appellant, rather, grounds her challenge in that portion of Article 21 of the Maryland Declaration of Rights that guarantees an accused in a criminal prosecution the right to trial "by an impartial jury." The appellant supplements her Article 21 argument by making reference to Md.Code Ann., Cts. & Jud. Proc., §§ 8-102 and 8-103 (1995).

Article 21 guarantees a criminal defendant an impartial jury. The character of a jury as impartial is something quite distinct from the character of a jury as representative of a fair cross-section of the population. Dealing strictly with the constitutionally mandated requirement of impartiality, the Court of Appeals, speaking through Judge Barnes, defined that quality in Bristow v. State, 242 Md. 283, 288-89, 219 A.2d 33 (1966):

Article 21 of the Maryland Declaration of Rights guarantees an accused the right to a trial by an impartial jury. The definition of what constitutes impartial jurors was set out in the early case of Garlitz v. State, 71 Md. 293, 300, 18 Atl. 39, 41 (1889):

"The minds of such men always remain open to the correction of former impressions, and remain entirely impartial, with power to hear and determine upon the real facts of the case, without the least bias in favor of former impressions, whatever they may have been. And therefore, in our present state of society, all that can be required of a juror is that he should be without bias or prejudice for or against the accused, and that his mind is free to hear and impartially consider the evidence, and render a verdict thereon without regard to any former opinion or expression existing in his mind."

This definition was recently reaffirmed and explained in Grammar [Grammer] v. State, 203 Md. 200, 211, 100 A.2d 257, 261 (1953). Although the federal constitution does not demand the use of jury trials in state criminal proceedings, where a jury is provided, federal due process requires that it be fair and impartial.

Before turning to other flaws in the appellant's argument, it is enough to note that a party claiming that she was denied the right to an impartial jury bears the burden of proving that her jury was, indeed, partial. The appellant in this case has proffered nothing in that regard. With respect to such an allocation of the burden, we stated clearly in Borman v. State, 1 Md.App. 276, 279, 229 A.2d 440 (1967):

Bias on the part of prospective jurors will never be presumed, and the challenging party bears the burden of presenting facts ... which would give rise to a showing of actual prejudice. See Bristow v. State, 242 Md. 283 (1966).

(Emphasis supplied). We spoke to the same effect in Jones v. State, 2 Md.App. 429, 431, 234 A.2d 900 (1967):

Conceding the proposition that appellant's right to an impartial jury is guaranteed by both Article 21 of the Maryland Declaration of Rights, Bristow v. State, 242 Md. 283, 288, and the Fourteenth Amendment to the Federal Constitution, Beck v. Washington, 369 U.S. 541[, 82 S.Ct. 955, 8 L.Ed.2d 98]; Irvin v. Dowd, 366 U.S. 717[, 81 S.Ct. 1639, 6 L.Ed.2d 751], it is clear that the burden of proving that the jury was in fact not impartial is on the appellant.

(Emphasis supplied). See also Quiles v. State, 4 Md.App. 354, 357, 243 A.2d 661 (1968); Couplin v. State, 37 Md.App. 567 570-71, 378 A.2d 197 (1977). The appellant has not even made a pretense of shouldering that burden.

By way of supplementing her argument based on Article 21 of the Maryland Declaration of Rights, however, the appellant relies in part on Cts. & Jud. Proc. § 8-103, which provides:

A citizen may not be excluded from service as a grand or petit juror in the courts of the State on account of race, color, religion, sex, national origin, or economic status.

Quite aside from the fact that § 8-103 deals only with the criteria by which names are selected for the entire jury pool and not with the selection, from that pool, of the actual petit jury that will hear a case, the section by its very terms makes no mention of age. It prohibits the exclusion of jurors from the jury pool for 1) race, 2) color, 3) religion, 4) sex, 5) national origin, or 6) economic status. The statute self-evidently does not pertain to age-based exclusion at any...