Khan v. State
| Decision Date | 04 September 2013 |
| Docket Number | Sept. Term, 2011.,No. 2715,2715 |
| Parties | Khaliq KHAN v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
OPINION TEXT STARTS HERE
Julia C. Schiller (Paul B. DeWolfe, Public Defender, on the brief) Baltimore, MD, for appellant.
Daniel J. Jawor (Douglas F. Gansler, Atty. Gen., on the brief) Baltimore, MD, for appellee.
Panel: WRIGHT, MATRICCIANI, CHARLES E. MOYLAN, JR. (Retired, Specially Assigned), JJ.
On June 30, 2011, Khaliq Khan was indicted in the Circuit Court for Montgomery County on two counts of sex offense in the third degree and two counts of second degree assault. These charges were the result of Khan's alleged assault of two girls in a cosmetics store where Khan worked as a security guard. After a jury trial, Khan was found guilty of one count of second degree assault and found not guilty of all other charges. On February 8, 2012, Khan was sentenced to five years' incarceration, with all but sixty days suspended, and placed on supervised probation for three years upon release. Khan subsequently noted this timely appeal.
Appellant presents four questions, which we have rephrased as follows:
I. Did the trial court err in reseating a white male juror, struck by the defense, on the basis of a Batson challenge?
II. Did the trial court err in permitting the State to present evidence of prior customer complaints against appellant?
III. Did the trial court err in allowing the State to question appellant regarding possible racial prejudice held by appellant?
IV. Did the trial court err in voir dire by asking potential jurors whether they would be biased by the charges against appellant, without attributing that potential bias to “strong feelings?”
For the reasons that follow, we answer no to each question and affirm the judgment of the circuit court.
On March 27, 2011, Khaliq Khan was working as a security guard at Ulta, a cosmetics store in downtown Silver Spring, when twelve-year-old Joie Gadsden and thirteen-year-old Jazmyn Parker came into the store. Gadsden and Parker entered the store to look around while Gadsden's parents were in a nearby bookstore. According to testimony by both Gadsden and Parker, Khan called the girls over to show them perfume. Both girls testified that Khan sprayed perfume on them, including on their chests, and had the girls smell each other. Gadsden testified that during this encounter Khan grabbed her waist and squeezed her buttocks, and Parker testified that Khan touched both of their buttocks when they began to leave. Gadsden and Parker reported this encounter to Gadsden's parents, who returned to the store and called the police. An officer from the Montgomery County Police Department was dispatched to the store and arrested appellant. Khan was charged with two counts of third degree sex offense and two counts of second degree assault and brought to trial in the Circuit Court for Montgomery County.
During voir dire, the court asked the following question:
[T]he State claims that the defendant, Mr. Khan, had sexual contact with two minors. Is there any member of the panel who, by reason of the nature of the charges, that is to say, by reason of what he's alleged to have been, to have done, will be unable to listen fairly and impartially?
There were no affirmative responses. After the court finished questioning jurors, defense counsel objected to the form of the above question:
The time that I remembered that Your Honor asked it, you used “based on this allegation, does anybody, would anybody be unable to be fair,” or something along those lines. And so, the question that I would, that we had asked in our voir dire is, “does it arouse strong feelings?”
The court overruled the defense's objection, stating that the question asked by the court was sufficient to discover any bias from potential jurors owing to the alleged crimes.
During jury selection for Khan's trial, the court noted that the defense had exercised five of its seven peremptory strikes against white men. After asking defense counsel to provide race- and gender-neutral reasons for each strike, the court was dissatisfied with counsel's proffer in regard to one potential juror, number 95, and so reseated this juror. Defense counsel explained the peremptory strike against juror 95 as follows:
[G]enerally for him, Your Honor, it was he's an attorney with the federal government. The way he dressed. The way that his grooming was. It was, to me, again, somebody that was very conservative. It had nothing to do with the fact that he was a male or white. It was just the conservative sense[.]
Defense counsel went on to state:
But I'm talking about my vision and my judgment of the way he dresses, the way he grooms, the way he carries himself, he strikes me as a conservative type person.... I'm conservative in many ways. I'm not sure I'm a good juror....
After a discussion regarding this juror, and each of the others, the court concluded:
... the only one I'm finding pretextual is 95, because the others, based on the record, I accept the explanations, not withstanding the five out of seven pattern. I'm going to reseat 95.
Following the court's ruling, defense counsel continued to assert that his reasons for the strike were not pretextual, to which the judge responded:
During appellant's cross-examination of Georgia Kalapothakos, the manager of the store where appellant worked, defense counsel asked about her opinion of appellant as a worker:
Q: What would you say, how would you describe Mr. Khan as a worker at the store?
[At this point, the prosecution objected and was overruled.]
Following this cross-examination, the prosecution asked for a ruling from the court that this testimony “opened the door” for the prosecution to ask Kalapothakos about a customer complaint. The State sought to establish that the complaint was the impetus for a conversation Kalapothakos had with appellant regarding the boundaries and duties of a security guard—a conversation she had previously testified about during the prosecution's direct examination. The prosecution reasoned that the testimony regarding Kalapothakos's “overall” satisfaction with appellant's work “opened the door” to testimony about problems that had arisen in appellant's work history. The court ruled that such testimony would be allowed, and during the prosecution's redirect examination of Kalapothakos, she testified that her aforementioned discussion regarding a security guard's boundaries had resulted from a customer complaint. During this testimony, Kalapothakos never testified about the details of the complaint.
Appellant, appellant's wife, and appellant's stepson also discussed this complaint. Appellant's wife, Chanaz Khan (“Mrs. Khan”), acknowledged that she was aware of the prior complaint, though from her testimony she appeared not to have known its details. Appellant's stepson, Asman Nasir (“Mr. Nasir”), testified that he had no knowledge of the prior complaint. During the prosecution's cross-examination of appellant, he was asked whether he remembered the conversation he had with Kalapothakos regarding his boundaries and duties as a security guard, and whether he remembered a prior complaint from a customer regarding appellant “touching her.” The court allowed the above testimony, ruling that the prosecution was allowed to respond to the character evidence and issues introduced by the defense.
At trial, Khan testified that Gadsden and Parker had made him nervous, that he intended to “occupy” them to prevent them from misusing products in the store, and that he never intended to offend or touch either girl inappropriately. On direct examination, appellant provided the following response to a question about his duties at the store:
You go according to the books, because the neighborhood of that Silver Spring will, I mean, not a discrimination, but over there you cannot control the (unintelligible) if you don't have all type of, if you go according to the books, okay, they will play it like that.
During the State's cross-examination, appellant was asked to clarify what he meant by his comment “not a discrimination.” 1 During this line of questioning, the prosecution asked appellant if his comment was in regard to the high number of African Americans in the area of the store. The prosecutor also alluded to the incident in question and asked whether “[t]wo African American 12 year olds looking at ... perfume made [appellant] nervous [.]” Appellant responded affirmatively to this last question, but he stated throughout his testimony that he was not referring to prejudice against any particular race in his initial remark.
A jury found Khan guilty of one count of second degree assault and acquitted him of the other charges. On February 8, 2012, Khan was sentenced to five years of confinement, with all but sixty days suspended, and placed on supervised probation for three years upon release. Following his sentencing, Khan noted this timely appeal.
Appellant first contends that the circuit court erred in finding defense counsel's race- and gender-neutral explanation for one of its peremptory strikes to be pretextual. For the reasons explained below, we do not agree that the circuit court committed reversible error in reseating this juror.2
Parties in a criminal trial cannot use a peremptory challenge to strike a potential juror based on the juror's race. Batson v. Kentucky, 476 U.S. 79, 99, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The Supreme Court has made clear that the use of peremptory strikes on the basis of race is unconstitutional not only when exercised by the prosecution, but also when exercised by a defendant in a criminal...
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