King v. State Roads Commission of State Highway Administration

• Decision Date: 22 January 1979
• Docket Number: No. 79,79
• Parties: William Lawson KING et ux. v. STATE ROADS COMMISSION OF the STATE HIGHWAY ADMINISTRATION.
• Court: Maryland Court of Appeals

Page 368

284 Md. 368

396 A.2d 267

William Lawson KING et ux. v. STATE ROADS COMMISSION OF the STATE HIGHWAY ADMINISTRATION.

No. 79.

Court of Appeals of Maryland.

Jan. 22, 1979.

R. Edwin Brown, Rockville (Brown & Sturm, Rockville, on the brief), for appellants.

Frank W. Wilson, Sp. Atty., Gaithersburg (Francis B. Burch, Atty. Gen., and Nolan H. Rogers, Asst. Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, ORTH and COLE, JJ.

DIGGES, Judge.

Coming before this Court pursuant to our issuance of a writ of certiorari, petitioners William L. and Cordelia E. King challenge the manner in which they were required to select the jury that was impaneled to hear their case. Although we agree with the petitioners' basic contention that the method of jury selection utilized here was improper as not conforming to the requirements of the Maryland Rules, because the trial transcript fails to reflect whether a timely objection was made, we will remand the case to the trial court without affirmance or reversal for resolution of this issue and then for such further appropriate action as is later indicated in this opinion.

This action was instituted by respondent State Roads Commission when it filed separate petitions of condemnation against two parcels of land owned by the Kings. A court order consolidated the two petitions for trial and the case was called for hearing on the merits in the Circuit Court for Montgomery County on March 13, 1978. A jury trial was requested and a panel of twenty-eight citizens, chosen from a properly selected array, was subjected to voir dire questioning by the presiding judge. As a result of their answers, three of the prospective jurors were dismissed for cause and a list containing the names of the remaining twenty-five veniremen was submitted to the parties for their consideration. From the persons named on that jury roster each side peremptorily challenged four as it was entitled to do under Maryland Rule 543 a 3. To reduce this list of seventeen veniremen to the required twelve who would constitute the special jury panel hearing the case, the trial judge struck five additional names. At this point, the record shows there were two bench conferences, the content of the second being unreported, and thereafter the panel was sworn and the trial commenced.

The evidence at trial consisted almost entirely of the expert testimony of several different appraisers as to the value of the parcels. The jury by its inquisition awarded what amounted to $1.10 per square foot for each tract. Following this verdict, petitioners filed a timely motion for a new trial in which their principal contention of error was the method by which they were required to select the jury. The trial judge denied the motion and the landowners filed a timely appeal to the Court of Special Appeals. We granted certiorari prior to that court's consideration of the matter.

No citation of authority is needed to support the proposition, which is intrinsic to the American concept of justice, that when a jury trial is authorized, the panel should be composed of fair and impartial individuals selected from among one's peers. In insuring that such an impartial jury is chosen, a reasonable peremptory challenge right plays a vital role because it permits a party to eliminate a prospective juror with personal traits or predilections that, although not challengeable for cause, will, in the opinion of the litigant, impel that individual to decide the case on a basis other than the evidence presented. See Swain v. Alabama, 380 U.S. 202, 219, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). But see People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (1978). In so stating, however, we recognize that neither the federal constitution, Swain v. Alabama, supra, nor our State constitution requires that a litigant be granted peremptory challenges in the course of jury selection. Nonetheless, in light of the importance of the peremptory challenge, it is not surprising that this State, since at least 1797, See 1797 Md.Laws, ch. 87, § 9, has provided for such challenges and established orderly procedures to guarantee that litigants have a full opportunity to utilize the right. ¹ Further, the importance of the peremptory challenge requires that any significant deviation from the prescribed procedure that impairs or denies the privilege's full exercise is error that, unless waived, ordinarily will require reversal without the necessity of showing prejudice. Swain v. Alabama, supra, 380 U.S. at 219, 85 S.Ct. 824.

Among the procedural requirements established by the Maryland Rules to govern the exercise of peremptory challenges, of particular moment in this case are those of subsections 1 and 3 of Rule 543 a. They provide:

a. Petit Jury.

1. Lists of Twenty.

In an action in which a jury shall be necessary, twenty persons from the panel of petit jurors shall be drawn by the clerk under the direction of the court, and their names shall be written upon two lists, and one of said lists forthwith delivered to the respective parties.

3. Peremptory Strikes Number.

Each party may peremptorily strike, without cause, four persons from the lists of twenty provided for in paragraph 1 of section a of this Rule, and the remaining twelve persons shall thereupon be immediately empaneled and sworn as the petit jury in the action. Several defendants or several plaintiffs shall be considered as a single party for the purpose of making such peremptory strikes.

As the trial judge himself recognized at the hearing on the motion for a new trial, the method used in this instance violated the mandate of these rules, an action that not only flies in the face of the established principle that the Maryland Rules are precise rubrics that are to be strictly followed, E. g., Robinson v. Bd. of County Comm'rs, 262 Md. 342, 346, 278 A.2d 71, 73 (1971); Brown v. Fraley, 222 Md. 480, 483, 161 A.2d 128, 130 (1960), but also diluted the full impact of the parties' participation in the selection of the jury.

In civil cases, the Rules contemplate the submission to the parties of a properly culled list of twenty eligible jurors, from which twelve will remain to be sworn as the jury panel after each side has exercised its four peremptory challenges. Here, however, seventeen prospective jurors remained after both parties used their peremptory strikes and five had to be eliminated by the trial judge to obtain a panel of twelve. Besides violating Rule 543 a 7, which allows the trial judge to strike jurors from the list of twenty only "(u)pon the neglect or refusal of a party to exercise peremptory strikes" or "in the event that one or more jurors stricken by the parties coincide," this selection method impaired the effectiveness of these parties' peremptory challenges to the extent that the trial judge, with five strikes, had more to say about who would not sit on the panel than either of the parties. In our view, unless waived, the only adequate remedy for such a clear violation of Rule 543 is a new trial before a correctly selected jury.

In so stating, however, we nonetheless find we are unable to discern if petitioners are entitled to this relief because the record leaves uncertainty as to whether a timely objection was made. The Kings contend they made two seasonable objections: one at an unrecorded bench conference before the jury was sworn and another at an unrecorded conference in the trial judge's chambers just prior to the judge returning to the courtroom to instruct the jury on the law applicable to the case. As to the latter, even if we assume that an objection was made when petitioners contend it occurred, we think that, while there is some authority to the effect that a protest to an irregularity in the selection of a jury can be made at any time prior to the return of an unfavorable verdict, See Lee v. Colson, 277 Md. 599, 601, 356 A.2d 558, 559 (1976), when, as here, a rule clearly sets forth the jury selection procedure to be followed, any dissatisfaction with the technical procedure actually utilized must be expressed for the record before the jury is sworn unless it can be shown that the complaining party both did not know and, with reasonable diligence, could not have known of the irregularity. Here, with a knowledge of Rule 543 a, which all parties and their counsel are charged with having, and...