Jones v. State

• Decision Date: 01 September 1995
• Docket Number: No. 111,111
• Citation: 683 A.2d 520,343 Md. 584
• Parties: , 65 USLW 2335 Anzelo JONES a/k/a Angelo Jones v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 584

343 Md. 584

683 A.2d 520, 65 USLW 2335

Anzelo JONES a/k/a Angelo Jones v. STATE of Maryland.

No. 111, Sept. Term, 1995.

Court of Appeals of Maryland.

Oct. 10, 1996.

Shannon E. Avery, 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 MURPHY, ^* C.J., and ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, BELL and RAKER, JJ.

BELL, Judge.

I.

This case presents an issue left unresolved in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In that case, Justice Powell, writing for the Supreme Court, commented:

[W]e express no view on whether it is more appropriate in a particular case, upon a finding of discrimination against black jurors, for the trial court to discharge the venire and select a new jury from a panel not previously associated with the case, (citation omitted) or to disallow the discriminatory challenges and resume selection with the improperly challenged jurors reinstated on the venire. (citations omitted).

Id. at 99-100 n. 24, 106 S.Ct. at 1725 n. 24, 90 L.Ed.2d at 90 n. 24. This Court also has addressed the issue without directly determining the appropriate remedy for a Batson violation. See Stanley v. State, 313 Md. 50, 62-63 n. 8, 542 A.2d 1267, 1273 n. 8 (1988). See also Gilchrist v. State, 340 Md. 606, 644-45, 667 A.2d 876, 895 (1995) (Chasanow, J., concurring). The Court of Special Appeals held that determining the proper remedy for a Batson violation is a matter addressed to the sound discretion of the trial court. Anzelo Jones a/k/a Angelo Jones v. State, 105 Md.App. 257, 659 A.2d 361 (1995). We agree.

II.

The petitioner, Anzelo Jones, charged with various drug related offenses, was tried by a jury in the Circuit Court for Baltimore City. During jury selection, after the venire had been questioned on its voir dire, resulting in the disqualification of several venirepersons, the trial judge addressed the panel that remained, as follows:

Members of the jury, we go now to that part where those of you who will actually serve on this case are selected. In this case, as is true in every case like this one, the State has five, and the Defendant ten peremptory challenges ... What this means is that up to those numbers the parties may excuse you from serving in this case without explaining to anyone why they have done so. To provide the parties with the opportunity to exercise this right which the law gives them, what we are going to do is ask that you please come forward in smaller groups, ... and when the clerk calls out your number if you would please step forward two or three steps so the parties can see you and then from one to the other the clerk will ask is this juror acceptable to the State, acceptable to the Defendant. If both say yes, that individual is seated in the jury box. If either says no, that person is excused. If you are excused, please return immediately to the jury assembly room.

The jury selection process then continued in open court. After the defense used three consecutive peremptory challenges to strike white venirepersons, the prosecution requested a bench conference. While it did not make a formal Batson challenge at that time, the prosecution informed the court at that conference, that it wanted simply "to alert the Court to the State's preliminary impression of what defense counsel is doing." Thus, focusing on how the petitioner used his first three peremptory challenges, it observed, for the record, that the petitioner had struck three white venirepersons, "none of whom gave excuses or reasons why they should be struck and each one was replaced with an individual of African/American descent."

Jury selection resumed and the petitioner exercised its next peremptory challenge to strike another white venireperson from the panel. This time, the prosecution lodged a formal Batson challenge, in support of which it pointed to the fact that each of the petitioner's peremptory strikes to that point was of white venirepersons. Having required the petitioner to respond to the prosecution's allegations, and after considering that response, the trial court found that the petitioner's exercise of his peremptory challenges was constitutional. ¹ Jury selection resumed once again.

The State interposed another Batson objection when the petitioner exercised his fifth peremptory challenge to remove yet another white venireperson. The objection was not adjudicated, however, until after the jury had been impanelled and the alternate jurors selected. At that time, the trial court permitted the petitioner to provide, at the bench, race-neutral explanations for the exercise of the contested peremptory challenges. ² Rejecting the explanations given as "pure, simple subterfuge," the court explained If I were to permit--I was stretching it before and in spite of the warning and the closeness of it--if I were to permit this to go on, we would totally undercut the Batson law as the Supreme Court of the United States--

With respect to the remedy for the Batson violation, it ruled:

We are not going to strike the entire prospective jury. We are going to ... [W]e will reseat the juror you struck.

* * * * * *

Each one of your challenges is invalidated. We will roll the clock back to where we were and we will re-seat every one that you invalidly struck.

Consistent with its intent to "roll the clock back to where we were," the trial court recalled not only the five white prospective jurors, whom it had determined had been improperly stricken in violation of Batson, but also the two black venirepersons stricken, albeit properly, the court ruled, by the prosecution. ³ The trial court explained the procedure it would follow to achieve the desired result:

What we are going to do when ... all seven of those who have been struck have returned to the courtroom is we are going to reconstitute the jury precisely as it was before either party exercised a [peremptory] challenge.

* * * * * *

We will review the panel and the parties will have their strikes to exercise. I have invalidated each one of the strikes that the Defendant has exercised on grounds that they were unconstitutionally exercised, and, therefore I will not permit the exercise of the restored challenges to any of those five the Defendant has previously stricken.

When the stricken jurors had returned to the courtroom, the trial court advised the venire as follows:

Members of the panel, I have invalidated the [peremptory] challenges which have been previously exercised and what we are going to do is re-seat the twelve jurors in the jury box but replacing three of the twelve jurors who were originally seated and were subsequently stricken. Of the jurors currently seated in seats number 4, 5 and 6, if you would please leave the jury box and return, just return to the audience, the spectator section. Then Juror Number 4 will be you, Juror Number 9....

Juror Number 5, Juror Number 10 ... if you would, resume the number 5 seat.

Finally, Juror Number 6 will be Juror Number 16.... If you would, resume your seat. (Emphasis added)

As so constituted, the jury was declared by both parties to be acceptable. ⁴ Thereafter, the petitioner was tried, convicted, and sentenced to a 14 year prison sentence.

The convictions were affirmed by the Court of Special Appeals. That court rejected the petitioner's claim that the trial court erred in reseating the jurors found to have been improperly stricken, rather than striking the entire panel and beginning jury selection anew. It held that reseating those jurors was not an abuse of the trial court's discretion and, so, did not constitute error. ⁵

The petitioner filed a petition for the issuance of the writ of certiorari, which we granted, to decide whether a trial court, which determines that peremptory challenges have been exercised in violation of Batson, should discharge the venire and select the jury from a new venire or reseat the jurors who were stricken improperly?

III.

Recognizing that it is within the trial court's discretion to fashion a remedy for a Batson violation, the petitioner asserts that, in this case, instead of reseating improperly stricken jurors, the trial court should have dismissed the entire venire and convened a new one from which to select the jury. He further maintains that, because they were biased against him for having attempted to remove them from the venire, reseating the jurors significantly prejudiced him, in violation of his 5th amendment right to trial by a fair and impartial jury. Thus, the petitioner argues that, under the facts of this case, the more appropriate, indeed, the only, remedy, was the dismissal of the venire and beginning jury selection anew. The failure to do so, he submits, constitutes an abuse of discretion, warranting reversal of the circuit court's judgment.

The State, on the other hand, urges the adoption of a different per se rule. Under the rule it advocates, trial courts, upon determining that a party has exercised peremptory challenges in an unconstitutional manner, would be required, as the sole remedy for the Batson violation, to reseat those jurors who were improperly stricken. In the alternative recognizing that this Court could determine that it is within the trial court's discretion to fashion a remedy for a Batson violation, it argues that the trial court did not err; reseating improperly stricken jurors was, in this case, a proper exercise of its discretion. To hold otherwise, it contends, rewards the petitioner because by unconstitutionally exercising peremptory challenges, he will have obtained the result he sought, namely a venire which does not include the jurors he struck. Moreover, the State asserts, such a result would violate the equal protection rights of the stricken jurors not to be excluded from jury service...