Collini v. State

• Decision Date: 24 February 2016
• Docket Number: No. 2390, Sept. Term, 2014.,2390, Sept. Term, 2014.
• Citation: 132 A.3d 397,227 Md.App. 94
• Parties: Kevin COLLINI v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

227 Md.App. 94

132 A.3d 397

Kevin COLLINI

v.STATE of Maryland.

No. 2390, Sept. Term, 2014.

Court of Special Appeals of Maryland.

Feb. 24, 2016.

Cynthia E. Young, Annapolis, MD (Thomas M. Donnelly, Baltimore, MD), on the brief, for appellant.

Christopher Mason, (Brian E. Frosh, Atty. Gen., on the brief), Baltimore, MD, for appellee.

Panel: KRAUSER, C.J., BERGER, LEAHY, JJ.

KRAUSER

, C.J.

Convicted, after a jury trial in the Circuit Court for Harford County, of first and second degree assault, Kevin Collini, appellant, presents two questions for our review:

I. Did the trial court err in remedying a Batson violation by seating a properly struck prospective juror instead of the prospective juror whom the court found was improperly struck?

II. If preserved, did the trial court impose an illegal sentence when it took into account Collini's invocation of his Fifth Amendment right to remain silent?

Because we conclude that the court erred in seating a properly struck prospective juror in an attempt to remedy a purported Batson violation, we shall reverse the judgment of the circuit court, which renders the second question posed by Collini—whether the trial court erred by imposing an illegal sentence—moot.

I.

The testimony adduced at trial established that, at about 9:45 p.m., on the evening of October 20, 2013, a violent altercation took place between Kevin Collini, appellant, and his neighbor, Michael Folino. The two men were then occupying different and separate apartments in a house subdivided into separate living units. The incident erupted when Collini, upon returning home that evening, noticed that several political yard signs, which he had posted on the property, were gone. Then, seeking the whereabouts of the missing signs, he sent a text message to Folino, asking him whether he knew where the signs were. Folino, who had tossed the signs into a nearby woods earlier in the day, replied, in a text message, that he had removed the signs. In response to that bold admission, Collini threatened, by text message, that, if the signs were not returned, the police would be called. What happened after that testy electronic exchange was, as the following recitation of relevant testimony discloses, vigorously disputed at trial.

Collini testified, at trial, that, after exchanging text messages with Folino, he was in his living room, using a box-cutter to trim some paper, when he heard a loud "banging" at his front door. After retracting the blade of his box-cutter and placing it in his pocket, he opened the door. Standing there, according to Collini, was Folino, wearing a "Buck knife" on his belt.

After a brief and angry exchange of words, Collini turned and re-entered his home, whereupon Folino purportedly followed him into his apartment and, there, physically assaulted him. That led to a struggle between the two men, during which Collini was repeatedly kicked and struck by Folino. It was, in the midst of receiving those body blows, testified Collini, that he pulled the box-cutter out of his pocket and sliced Folino's chest with it. Wounded

, but still on his feet, Folino fled; and Collini, therefore, called "9–1–1" for help.

Folino's testimony, however, presented a very different version of what occurred that evening after the two men exchanged text messages. He testified that, roughly fifteen minutes after his text message exchange with Collini, he heard a "banging" at the front door of his apartment. When he opened that door, "somebody lunged at [him]," at which time Folino felt something "hit [him] in the chest." The attacker then turned around and ran out of the house into the yard. Now, realizing that his assailant was Collini, Folino, though wounded

, gave chase. That chase ended when Collini ran back into his apartment.

But, moments later, Collini reappeared, holding a baseball bat and "some kind of razorblade or knife." When Collini then threatened to kill him, Folino "retreated" to his apartment and called "9–1–1." At the conclusion of that call, he went back outdoors and waited for help to arrive. While standing outside, he and Collini started shouting at each other, and that verbal exchange did not end until the police and paramedics arrived.

The only other witness to the incident who testified, at trial, was the tenant of the third apartment, Jacob Coldiron, whose testimony was consistent with Folino's version of events, to the extent that it established that the physical confrontation at issue occurred in front of Folino's apartment not Collini's. Specifically, Coldiron testified that, from his basement apartment window, he could hear yelling and saw a "pair of legs" standing outside of Folino's front door. He then observed two pairs of legs running away from Folino's door and towards the front of the house.

When the paramedics arrived, Folino was transported, by helicopter, to Shock Trauma at the University of Maryland Hospital Center, where it took more than thirty staples to close his chest wound

. Responding police officers, after interviewing both Collini and Coldiron about what had occurred, placed Collini under arrest. Collini was ultimately charged with first and second degree assault and was subsequently found guilty, by a jury, of both offenses, though the latter offense was ultimately merged into the former. In any event, Collini was thereafter sentenced to a term of twenty-five years' imprisonment for first degree assault, with all but fifteen years of that sentence suspended.

II.

In the process of selecting twelve jurors and three alternates, the defense exercised nine of its ten¹ peremptory challenges. Of those nine challenges, six were used to strike prospective female jurors: 9, 10, 22, 30, 41, and 42. At the time that Collini struck the last of those six prospective female jurors—that is, prospective juror 42—eleven people had been seated as jurors, and, as the record indicates, at least nine of those jurors were male.² At that point, the State objected, claiming that the defense had improperly exercised its peremptory challenges by striking women, on the basis of gender, in violation of the Equal Protection Clause and in contravention of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)

, and J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994).³ The court thereupon turned to defense counsel and said, "We have only one female juror that is sitting." Then, referring to the prospective female jurors 9, 10, 22, 41, and 42, the court asked, "What are your reasons for striking [those] six individuals?"⁴

Defense counsel explained that he struck prospective juror 9 because she had been a juror in a previous trial, during which the defendant was found guilty of murder, and that he had struck prospective juror 10 because she had a friend, who had been murdered, and that, consequently, he was concerned that, "given that it [was] a violent assault, it would be a problem for her." Neither the State nor the court, challenged either of those explanations or, otherwise, questioned the propriety of the strikes in question. In fact, the State concedes, in its brief, "the court and State seemed to accept defense counsel's explanations for striking [prospective] jurors 9 and 10."⁵

Then, turning to prospective juror 22, defense counsel stated that he struck her because she "didn't answer any questions," asked by the court during voir dire, and that it was his policy to strike jurors who failed to do so. That explanation led to the following exchange between the court and counsel:

[State]: Your Honor, number 13 answered no questions. That was a male and the defense did not strike him.

* * *

[Defense counsel]: The reason I wanted juror 13 was because of his education level and the fact that he just appeared to be analytical . I didn't get that kind of vibe from 22.

[Court]: Number 22 was the dental hygienist.

[Defense counsel]: Yes.

(Emphasis added.)

The court, however, rejected, what it later described as defense counsel's "analytical versus nonanalytical " explanation for striking prospective juror 22, stating:

I don't find that to be a nondiscriminatory reason, counsel ... It appears there has been a pattern. The reason that you gave for striking that juror was because you strike jurors that don't provide any responses. However, the record does reflect that you have kept a male juror who did not provide any responses.

(Emphasis added.)

Then, as to the next prospective female juror—number 41—that was struck, the court asked defense counsel the basis upon which he had struck her, since she "did not provide any responses whatsoever" and had, in the court's view, an "analytical background," as she was a nurse. Defense counsel responded that, while prospective juror 41 admittedly had an "analytical background," he nonetheless struck her because the instant case not only involved "medical records," but those records were going to "[come] in by themselves," and that he did not want someone on the jury, "who has special knowledge about the records or impressions about treatment of people."

Neither the court nor the State took issue with that explanation.

Finally, the court asked defense counsel, what was his "reason for striking the last one, number 42 who [was] still in the courtroom." Defense counsel responded that he struck prospective juror 42 because, during voir dire, she indicated that jury duty would be a "financial hardship" for her, adding that he had thought that the court was going to strike her, along with several other prospective jurors, who indicated that it would be a "hardship" to serve on the jury. Neither the State nor the court directly responded or otherwise commented on defense counsel's explanation for striking prospective juror 42. The court, however, then ruled as follows:

I do find that there has been a systemic striking of women by the defense. While some reasons that you have provided are nondiscriminatory, this last explanation that you provided to me concerning

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