Mejia v. State

• Decision Date: 01 September 1991
• Docket Number: No. 377,377
• Citation: 599 A.2d 1207,90 Md.App. 31
• Parties: Ivan Antonio MEJIA v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 31

90 Md.App. 31

599 A.2d 1207

Ivan Antonio MEJIA v. STATE of Maryland.

No. 377, Sept. Term, 1991.

Court of Special Appeals of Maryland.

Jan. 6, 1992.

Certiorari granted April 28, 1992.

Bradford C. Peabody, Asst. Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant.

Mary Ellen Barbera, Asst. Atty. Gen., (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Andrew L. Sonner, State's Atty. for Montgomery County of Rockville, on the brief), for appellee.

Submitted before MOYLAN, GARRITY and ALPERT, JJ.

MOYLAN, Judge.

With this appeal, we encounter a second generation of issues spawned by Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). As we move from the simple bi-polar world of black and white into the subtler grays, it becomes, as some predicted from the beginning, increasingly apparent that, at worst, we are irreversibly adrift on a slippery slope with no foreseeable stopping place short of the elimination of the peremptory challenge. At best, we are sentenced to at least a decade of playing a diverting ethnological parlor game called "Who is What and How Do We Know It?" In either event, it behooves us to get down pat the rules of the slope or of the game.

When a party is allocated the burden of establishing a prima facie case as to a proposition, establishing the necessary set of predicate facts involves more than simply proclaiming those facts. ¹ That is why, as we explained in Bailey v. State, 84 Md.App. 323, 326-327, 579 A.2d 774 (1990), cert. denied, 321 Md. 225, 582 A.2d 531 (1990), the constitutional law regulating the application of Batson to the use of peremptory challenges is:

"... carefully calibrated to guarantee that charges of racial discrimination, calling into play the full strictures of Batson, are neither carelessly indulged nor promiscuously invoked. This is why Batson requires that the appellant establish a prima facie case of discrimination at the threshold before full constitutional mobilization takes place. That is why the elaborate responses of Batson are not intended to be a knee-jerk reaction every time a charge of discrimination is laid."

The appellant, Ivan Antonio Mejia, was convicted by a Montgomery County jury, presided over by Judge Jerry H. Hyatt, of a second-degree sexual offense and of attempted rape in the second degree. Upon this appeal, he raises the single contention that Judge Hyatt erroneously ruled that he had failed to make out a prima facie case of a Batson v. Kentucky violation so as to put the State to its burden of giving an ethnically neutral explanation for its use of a peremptory strike. The Facial Legitimacy of the Claim

We will restate the appellant's claim itself before assessing whether he has actually established any of the constituent facts that might give rise to it. The claim is that he, Ivan Antonio Mejia, is Hispanic; that a prospective juror peremptorily challenged by the State, Peter Estrada, was also Hispanic; that no other member of the array from which the jury was drawn was Hispanic; and that these premises establish a prima facie case that the peremptory strike of Estrada was ipso facto ethnically motivated in violation of Batson.

Although all of the reported appellate decisions in Maryland considering Batson claims have thus far involved peremptory challenges against blacks, the undergirding logic of Equal Protection law, on which Batson rests, compellingly requires that its strictures must also apply to peremptories used against any other cognizable group. Indeed, the most recent Supreme Court decision applying Batson, Hernandez v. New York, 500 U.S. ----, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991), is a case where the peremptory challenges had been used against "Hispanics" or "Latinos." The Supreme Court did not even pause to question the applicability of Batson to such a target group.

Successful challenges to the use of peremptories have, moreover, been maintained in a number of state courts and lower federal courts with respect to a smorgasbord of cognizable target groups. These have included such groups as whites, Roman v. Abrams, 822 F.2d 214, 227-228 (2d Cir.1987); People v. Gary M., 138 Misc.2d 1081, 526 N.Y.S.2d 986, 994 (N.Y.Sup.1988); Gov. of Virgin Islands v. Forte, 865 F.2d 59, 64 (3d Cir.1989); males, United States v. De Gross, 913 F.2d 1417 (9th Cir.1990); Com. v. Reid, 384 Mass. 247, 424 N.E.2d 495, 500 (1981); American Indians, United States v. Chalan, 812 F.2d 1302, 1313-1314 (10th Cir.1987); Italian-Americans, United States v. Biaggi, 673 F.Supp. 96 (E.D.N.Y.1987), aff'd. 853 F.2d 89 (2d Cir.1988); and French-Canadians with Gallic surnames, Com. v. Gagnon 6 Mass.App. 110, 449 N.E.2d 686, 691-692 (1983). Dicta in Strauder v. West Virginia, 100 U.S. 303, 308, 25 L.Ed. 664 (1880), is also instructive:

"Nor if a law should be passed excluding all naturalized Celtic Irishmen [from jury service], would there be any doubt of its inconsistency with the spirit of the [14th] amendment."

In terms of what groups qualify for protection under the Equal Protection Clause and under the closely related Civil Rights Act of 1866, see the thoroughly researched and tightly reasoned opinions of St. Francis College v. Al-Khazraji, 481 U.S. 604, 107 S.Ct. 2022, 95 L.Ed.2d 582 (1987), and Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 107 S.Ct. 2019, 95 L.Ed.2d 594 (1987).

The Allocation of the Burden

With respect to establishing a prima facie case of discrimination, that burden, as is always the case when one claims a violation of the Equal Protection Clause, is upon the party making the claim. Batson v. Kentucky, 476 U.S. at 93, 106 S.Ct. at 1721, 90 L.Ed.2d at 85, was unequivocal:

"As in any equal protection case, 'the burden is, of course,' on the defendant who alleges discriminatory selection of the venire 'to prove the existence of purposeful discrimination.' "

As we explained in Chew v. State, 71 Md.App. 681, 694, 527 A.2d 332 (1987):

"Initially, the burden is on the party claiming an equal protection violation to establish a prima facie case in that regard.

. . . . .

Absent the establishment of such a prima facie case, there is no obligation on the opposing party to offer any explanation for the use of a peremptory challenge and no entitlement on the part of the moving party to a hearing on the issue."

With respect to the specific and initial burden of showing a prima facie case, Batson made that burden significantly easier than had theretofore been the case under the regime of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). Even though the burden was lessened, however, it was still clear that it rested squarely upon the party claiming the Equal Protection Clause violation. As Batson explained, 476 U.S. at 96, 106 S.Ct. at 1723, 90 L.Ed.2d at 87:

"[A] defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial. To establish such a case, the defendant ... must show that ..." (emphasis supplied).

A few sentences further along, the Supreme Court again unequivocally placed the burden upon the defendant:

"In deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances." (emphasis supplied).

476 U.S. at 96-97, 106 S.Ct. at 1723, 90 L.Ed.2d at 88. In Stanley v. State, 313 Md. 50, 71, 542 A.2d 1267 (1988), Judge Adkins referred to this allocation and to its significance:

"It simply requires the defendant to prove by a preponderance of the evidence that the peremptory challenges were exercised in a way that shifts the burden of production to the State and requires it to respond to the rebuttable presumption of purposeful discrimination that arises under certain circumstances." (emphasis supplied).

Stanley had earlier held unequivocally, at 313 Md. at 61, 542 A.2d 1267, "It is the defendant's burden to make that prima facie showing ..." (emphasis supplied). State v. Gorman, 315 Md. 402, 410, 554 A.2d 1203 (1989), was equally emphatic, "Initially, the burden is on the defendant to establish a prima facie case." (emphasis supplied). The Initial Judicial Ruling

Once the defendant moves that the State be required to justify its use of peremptories, the trial judge is called upon to rule whether he is satisfied "by a preponderance of the evidence," Stanley v. State, 313 Md. 50, 71, 542 A.2d 1267, that the defendant has established a prima facie case in that regard. If the judge is not so satisfied, the State, of course, is under no obligation to respond. The peremptories remains peremptory. In this case, the appellant moved:

"I am going to object to this on the grounds of the Batson case. We have an Hispanic defendant charged with raping a non-Hispanic or white woman. There is only one Hispanic person on the jury panel. The State has used its strike to strike that person.

There have been three strikes used by the State. Now there is this one and one earlier one that was used to strike a potential black juror. ²

Basically, I am going to object to his strike on the surface as a racially motivated strike that is taking out the only Hispanic juror in a panel of 50 people."

Judge Hyatt was not persuaded that a prima facie case had been established, as he ruled with a minimum of excess verbiage:

"Motion denied."

It is from that ruling that this appeal has been taken.

The Standard of Appellate Review

In reviewing either of a trial judge's possible decisions on a Batson issue--(1) whether a prima facie case of discrimination has been established, and (2) if so, whether an ultimate case of discrimination has also been established--appellate courts "do not presume to second-guess the call by the 'umpire on the field' either by way of de novo fact finding or by way of independent constitutional judgment." Bailey v. State, 84 Md.App. at...