Chew v. State

• Decision Date: 01 September 1986
• Docket Number: No. 1067,1067
• Citation: 527 A.2d 332,71 Md.App. 681
• Parties: Michael Anthony CHEW v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 681

71 Md.App. 681

527 A.2d 332

Michael Anthony CHEW v. STATE of Maryland.

No. 1067, Sept. Term, 1986.

Court of Special Appeals of Maryland.

July 7, 1987.

Terrell N. Roberts, III (Douglas J. Wood on the brief), Langley Park, for appellant.

Jillyn K. Schulze, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, Warren F. Sengstack, State's Atty. for Calvert County and Stephen Clagett, Deputy State's Atty. for Calvert County on the brief, Prince Frederick, for appellee.

Argued before MOYLAN and BISHOP, JJ., and FRED A. THAYER, Judge of the Fourth Judicial Circuit, Specially Assigned.

MOYLAN, Judge.

The Background

On July 28, 1868, the Fourteenth Amendment to the Constitution of the United States was ratified. The enduring part of that amendment has been its Section 1, which includes the three provisions that have come to be called 1) the privileges and immunities clause, 2) the due process clause, and 3) the equal protection clause. It is the equal protection clause that concerns us here. It provides: "No State shall ... deny to any person within its jurisdiction the equal protection of the laws."

Within 12 years of ratification, the Supreme Court decided Strauder v. West Virginia, 100 U.S. (10 Otto) 303, 25 L.Ed. 664 (1880). That decision held that the State of West Virginia had denied a black defendant the equal protection of the laws when it put him on trial before a jury from which members of his race had been purposefully excluded. The mechanism of purposeful exclusion had been a state law prohibiting blacks from serving on juries generally. Such systematic and legislatively mandated discrimination presented an easy target for constitutional attack.

A knottier problem was presented when the mechanism for allegedly denying equal protection was not a blanket statute or rule of procedure but the discretionary use of the peremptory challenge. A further distinction contrasted a pattern of using peremptory challenges over a series of cases with the case-specific use of peremptory challenges in a single instance. The peremptory challenge, a venerable fixture of the common law, was the device by which any party to a lawsuit, civil or criminal, was permitted to strike a predetermined number of prospective jurors from the jury panel without any justification or explanation needing to be shown. Within the numerical limits of one's available peremptory challenges, the striking party was free to be as arbitrary, capricious, or irrational as he might choose in the exercise of those strikes. As the adjective "peremptory" implied, there could be no outside review of an option committed to the total discretion of the user. The rationale for the peremptory challenge is that participants in the jury selection process will frequently have hunches--feelings of hostility toward certain prospective jurors or feelings of empathy with other prospective jurors. These hunches are frequently based on "vibrations" or non-verbal communications that seldom can be articulated rationally. The canons of trial advocacy insist that skilled adversaries be permitted, within reasonable numerical limits, to act upon their hunches and feelings. An article of faith in that jury selection is more an art form than a science.

Inevitably, the use of the peremptory strike, especially but not necessarily by the prosecutor in a criminal case, invited challenge under the equal protection clause. Just such a challenge was made in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). The Supreme Court generally extolled the historic purpose and continuing value of the peremptory challenge, 380 U.S. at 218-222, 85 S.Ct. at 834-837. It observed, however, that the proper function of the challenge is to enhance the chance of victory in a single case and not to perpetuate a pattern of demographic exclusion in the community as a whole. It held that where there is shown to have been a systematic exclusion of blacks from petit juries generally, there has been demonstrated that "invidious discrimination" which is forbidden by the equal protection clause. Where prospective black jurors, for instance, were challenged even in those particular cases where their presence would probably enhance rather than diminish the State's likelihood of success, "the purposes of the peremptory challenge [were] being perverted," 380 U.S. at 224, 85 S.Ct. at 838, to preserve the "lily white" character of a community's court system rather than to win a victory in a specific case. The Supreme Court held that systematic use of the peremptory challenge to preserve, de facto, a segregated judicial system violated the equal protection clause.

Within the limited context of a single case, however, the Court held that inquiry was not permitted into the motives of the prosecutor for exercising peremptory strikes:

"In the light of the purpose of the peremptory system and the function it serves in a pluralistic society in connection with the institution of jury trial, we cannot hold that the Constitution requires an examination of the prosecutor's reasons for the exercise of his challenges in any given case. The presumption in any particular case must be that the prosecutor is using the State's challenges to obtain a fair and impartial jury to try the case before the court. The presumption is not overcome and the prosecutor therefore subjected to examination by allegations that in the case at hand all Negroes were removed from the jury or that they were removed because they were Negroes. Any other result, we think, would establish a rule wholly at odds with the peremptory challenge system as we know it."

380 U.S. at 222, 85 S.Ct. at 837.

Maryland followed Swain v. Alabama. In Brice v. State, 264 Md. 352, 366, 286 A.2d 132 (1972), the Court of Appeals, after citing Swain, held:

"In short, the right to exercise the peremptory strike is unfettered and may be exercised by either party for any reason or indeed for no reason. Hunch, passing impression, appearance of the prospective juror, or any other consideration may lead to the exercise of the peremptory challenge and no inquiry may be made in regard to why it is exercised."

See also Lawrence v. State, 51 Md.App. 575, 444 A.2d 478 (1982), aff'd, Lawrence v. State, 295 Md. 557, 457 A.2d 1127 (1983); Evans v. State, 304 Md. 487, 522-528, 499 A.2d 1261 (1985). It was to be expected, therefore, that the trial judge in this case also followed Swain.

The Present Case

The appellant, Michael Anthony Chew, was convicted by a Charles County jury, presided over by Judge George W. Bowling, of 1) first-degree felony-murder, 2) an attempt to commit rape in the first degree, and 3) a third-degree sexual offense. For the felony-murder, the appellant received a sentence of life imprisonment. The conviction for the attempted rape in the first degree was merged into the felony-murder conviction. For the third-degree sexual offense, the appellant received a sentence of ten years, to be served consecutively with the life sentence. Upon this appeal, the appellant raises the following six contentions:

1) That the use of peremptory challenges by the State to strike every member of the appellant's race from the jury panel was a violation of his constitutional right to the equal protection of the law;

2) That he was denied his Fifth Amendment privilege against compelled self-incrimination when the prosecutor, in opening statement, made an adverse comment upon his probable invocation of his right to silence;

3) That the evidence was not legally sufficient to support the convictions for attempted rape in the first degree and the third-degree sexual offense;

4) That Judge Bowling erroneously denied his motion for the production of specimens of pubic hair by the State's chief prosecution witnesses;

5) That Judge Bowling erroneously restricted his cross-examination of a State's witness; and

6) That Judge Bowling erroneously excluded evidence necessary to the defense theory of the case.

Batson v. Kentucky

On April 30, 1986, the Supreme Court decided Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Batson overturned that portion of Swain v. Alabama that had foreclosed inquiry into the purpose for using peremptory challenges in a manner apparently racially motivated. It extended the equal protection inquiry to the context of an individual case, relieving the putative victim of the equal protection violation of the burden of showing a systematic pattern of abuse over a series of cases. It concluded, "To the extent that anything in Swain v. Alabama ... is contrary to the principles we articulate today, this decision is overruled." 476 U.S. at ---- n. 25, 106 S.Ct. at 1725 n. 25, 90 L.Ed.2d at 90 n. 25.

The Retroactivity Issue

Batson v. Kentucky was decided on April 30, 1986. The trial of the present case had concluded as of November 26, 1985. In the immediate wake of Batson, Allen v. Hardy, 478 U.S. ----, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986), held that that decision, overruling Swain v. Alabama, would not be applied retroactively to cases on collateral federal habeas corpus review. Griffith v. Kentucky, 479 U.S. ----, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), has since held, however, that the new rule of Batson will be applied to all cases still pending on direct review, and therefore not yet final, as of the date of the Batson decision. The present case falls into that "non-final" category and will, therefore, be analyzed under the standards of Batson.

The Constitutional Predicate

In the interim between Swain and Batson, several jurisdictions concluded that the examination of the use of peremptory challenges in a racially discriminatory manner was reviewable even within the context of a single case. They distinguished Swain by pointing out that that decision was based exclusively upon the equal protection clause of the Fourteenth Amendment. They based their holdings, by way of contrast, on the Sixth...