Gray v. State

• Decision Date: 08 September 1989
• Citation: 562 A.2d 1278,317 Md. 250
• Parties: Isaac GRAY v. STATE of Maryland. 77 Sept. Term 1988.
• Court: Maryland Court of Appeals

Page 250

317 Md. 250

562 A.2d 1278

Isaac GRAY v. STATE of Maryland.

77 Sept. Term 1988.

Court of Appeals of Maryland.

Sept. 8, 1989.

Michael R. Braudes, Asst. Public Defender (Alan H. Murrell, Public Defender, on brief), of Baltimore, for petitioner.

Dennis M. Sweeney, Deputy Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Jillyn K. Schulze, Asst. Atty. Gen., on brief), Baltimore, for respondent.

Argued before ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS and BLACKWELL, JJ., and CHARLES E. ORTH, Jr., Associate Judge of the

Court of Appeals of Maryland (retired), Specially Assigned.

McAULIFFE, Judge.

This case involves the proper procedure to be followed when there is a claim of racial discrimination by the exercise of peremptory challenges. Batson v. Kentucky, 476 U.S. 79, 93-96, 106 S.Ct. 1712, 1721-24, 90 L.Ed.2d 69 (1986), held that where the totality of circumstances surrounding a prosecutor's exercise of peremptory challenges established a prima facie case of racial discrimination, the burden was cast upon the State to explain adequately the racial exclusion by satisfying the trial judge that the challenge was prompted by a racially neutral reason related to the particular case to be tried. The Supreme Court further held that if the prosecutor did respond to the prima facie case with an explanation, the trial judge would then have the duty to determine if the defendant had established purposeful discrimination. Id. at 97-98, 106 S.Ct. at 1723-24. While making clear that these broad principles of equal protection applied to the exercise of peremptory challenges, the Supreme Court declined "to formulate particular procedures to be followed upon a defendant's timely objection to a prosecutor's challenges." Id. at 99, 106 S.Ct. at 1724.

Although Batson was not decided until eight days after the completion of the trial in this case, it is fully applicable. In Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), the Supreme Court held that Batson applies to all cases pending direct appeal at the time that decision was announced.

Isaac Gray is a black man who was charged with the first degree rape of a white woman. At the conclusion of the jury selection process, but before the jury had been sworn, the defendant moved for a mistrial, contending that the prosecutor had exercised his peremptory challenges against black jurors in a racially discriminatory manner. Specifically, he contended that the prosecutor had used four of his ten challenges to excuse half of the total number of black jurors ¹ in the venire, and that under such circumstances the prosecutor should be required to explain why he had challenged each black juror. The prosecutor responded, "Let me get my jury list." At that point, however, the trial judge interjected the view that the prosecutor was not required to give reasons for the exercise of peremptory challenges. ² The prosecutor agreed, and apparently did not retrieve his jury list, but did volunteer some information. He said that he had not systematically excluded black jurors; that he could recall having struck one black juror who had informed the court that he was personally acquainted with the defendant's attorney; that he could not then recall who the other black jurors were; and, that "it's very difficult to articulate the reasons one selects and does not select a jury. Sometimes it's just their demeanor, their appearance, their body language--it may be their age, their occupation." The prosecutor also pointed out that the jury as impaneled included one black juror and one black alternate juror. The trial judge denied the motion for a mistrial.

Gray was convicted, after which he filed a timely motion for a new trial. At the hearing of that motion, he argued that under the recently announced principles of Batson a prima facie case of discrimination had been established, and in the absence of a satisfactory explanation by the prosecutor the defendant was entitled to a new trial. The prosecutor responded by categorically denying that he had exercised his challenges in a racially discriminatory manner, and reminded the trial judge of a recent case in which the prosecutor had agreed that the trial be postponed to await a new jury panel because no black jurors were on the first venire. He then stated to the court the reasons he struck each black juror. The trial judge denied the motion for a new trial, stating that he did not believe the Supreme Court intended Batson to be applied retroactively, and that in any event the proportion of two blacks to fourteen jurors selected exceeded the ratio of blacks to the general population of the county.

Gray appealed, and in an unreported opinion the Court of Special Appeals vacated the judgment and remanded the case to the circuit court for further proceedings. The intermediate appellate court directed that the trial judge determine whether the defendant had made out a prima facie case of racial discrimination and, if so, whether the State had satisfactorily rebutted the presumption. This is a remedy we have specifically approved. Chew v. State, 317 Md. 233, 563 A.2d 1270 (1989); Stanley v. State, 313 Md. 50, 542 A.2d 1267 (1988).

At the hearing after remand, counsel for the defendant noted that he had served the prosecutor with a witness subpoena, and requested that the prosecutor be placed under oath before being permitted to offer any further explanation for his challenges. He further requested the right to cross-examine the prosecutor. Gray's counsel argued that the right to a plenary adversary hearing was guaranteed by the principles of due process, effective assistance of counsel, right to compulsory process, and equal protection of the laws. The prosecutor objected, pointing out that the remand was for the purpose of permitting the State to offer an explanation for the challenges if the trial judge found that a prima facie case had been established, and that it was neither necessary nor appropriate to place the prosecutor under oath or to subject him to cross-examination. The trial judge agreed with the prosecutor, and quashed the subpoena.

After hearing further arguments of counsel, the trial judge held that the defendant had not shown a prima facie case of racial discrimination. As a prudent precaution, however, the trial judge directed that the parties proceed with the second stage of the Batson hearing so that he might furnish an alternative ruling on the adequacy of the State's explanations for the challenges. The prosecutor then addressed the reasons for each challenge, largely repeating the explanations given earlier at the hearing of the motion for a new trial, but also providing some additional information.

Counsel for the defendant elected not to present any evidence in rebuttal, nor did he suggest any questions that he wished the court to put to the prosecutor. He did not argue that the reasons assigned should not be accepted. He said, simply:

Your Honor, it's just a rehash of what he said at the motion for new trial. Rather than just repeat myself, I know the morning's getting late, I have nothing further to add, other than I--I just object to the fact that he can represent these things and, and not testify to them.

The trial judge then found that had a prima facie case of racial discrimination been presented, he would have found that the State's explanation "was entirely adequate to overcome the prima facie showing." The trial judge thereupon reinstated the earlier judgment of conviction. Gray again appealed, raising only two issues:

I. The trial court erred in ruling that the defense failed to establish a prima facie showing of racial discrimination in the prosecutor's exercise of peremptory challenges.

II. The trial court erred in refusing to require the prosecutor to testify under oath and subject to cross-examination.

In a second unreported opinion, the Court of Special Appeals affirmed. The court felt that Gray's argument on the establishment of a prima facie showing was "not without some merit," but it did not believe the trial judge was clearly erroneous. On the second issue, the court noted that attorneys are under a strong ethical obligation to "not knowingly make a false statement of material fact or law to a tribunal," ³ and that the trial court did not err in refusing to require the prosecutor to testify under oath and be subjected to cross-examination. We granted Gray's petition for certiorari on the same questions he raised before the Court of Special Appeals, and we affirm.

Unlike the situation usually presented by the progeny of Batson, here we are not called upon to review the trial judge's ruling on the adequacy of the prosecutor's explanations for the exercise of the peremptory challenges. That question was not presented to the Court of Special Appeals, and no attempt was made to bring it before us. The defendant conceded at oral argument that the explanations given by the prosecutor were of the type that had been accepted by appellate courts as sufficient to support a trial judge's finding that the presumption of purposeful discrimination had been rebutted. Therefore, he concluded that on the present state of the record he could not successfully attack that finding. Gray's counsel argued strenuously, however, that the trial judge and the Court of Special Appeals erred in failing to find that a prima facie case had been established, and in not requiring that the prosecutor be placed under oath before giving his explanations and be subjected to cross-examination.

In the view we take of this case, we need not answer the first question. Rather, we shall assume for the purpose of discussion that a prima facie case was established, and affirm on the ground that the trial judge did not abuse his discretion in refusing the defendant's request that the prosecutor be placed under oath and subjected to cross-examination.

The Supreme Court specifically declined "to formulate...