Parker v. State

• Decision Date: 21 August 2001
• Docket Number: No. 9,9
• Parties: Mantice PARKER v. STATE of Maryland.
• Court: Maryland Court of Appeals

778 A.2d 1096

365 Md. 299

Mantice PARKER v. STATE of Maryland.

No. 9, Sept. Term 2000.

Court of Appeals of Maryland.

August 21, 2001.

Elisa A. Long, Asst. Public Defender, and Julia Doyle Bernhardt, Asst. Public Defender (Stephen E. Harris, Public Defender, on brief) Baltimore, for petitioner.

Zoe M. Gillen, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. of Maryland, on brief) Baltimore, for respondent.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY,¹ RAKER, WILNER, CATHELL, and HARRELL, JJ ELDRIDGE, Judge.

Mantice Parker, the defendant and petitioner in this criminal case, was tried by a jury in the Circuit Court for Baltimore City on several counts charging assaults and illegal use of a handgun, based on the shooting of two persons. During the jury selection, the State challenged the defendant's use of peremptory strikes as discriminatory, claiming a pattern of racially based strikes against white prospective jurors. The trial court sustained the State's objection regarding two prospective jurors and reseated the stricken persons on the jury panel. The trial proceeded, and Parker was convicted. Parker appealed, and the Court of Special Appeals affirmed. We granted a petition for a writ of certiorari to consider whether the trial court's actions regarding the two jurors were erroneous under the principles of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and its progeny.

I.

On the evening of October 14, 1996, a man armed with a gun got out of a blue Ford Taurus automobile and chased Jamal Jones down Barclay Street in Baltimore City. Jones ran inside the residence at 2111 Barclay Street. The man with the gun followed him inside and shots were fired. Jones sustained a gunshot wound to the arm, and Angelena Richardson, an eight-year old child who had also been inside, sustained several wounds to her arm and back. After the shots, the man with the gun got into the blue Ford automobile and drove away.

The police arrived within minutes after the shooting, and witnesses described the gunman and his vehicle. They also gave the police a partial Maryland license tag number for the vehicle. An investigation revealed that the defendant Parker had been issued a license tag number for a Ford Taurus encompassing the partial license tag number observed by the witnesses, and that his vehicle matched the description given by the witnesses. Witnesses interviewed by the police on the night of the shooting viewed a photographic array and identified Parker as the gunman. Two witnesses also furnished the police with written statements implicating Parker in the crime.

Toward the end of jury selection at Parker's trial, the prosecutor objected to defense counsel's use of peremptory challenges against several white prospective jurors on the ground that the strikes were racially discriminatory. The following colloquy took place:

"THE COURT: Yes [defense counsel]. You owe me an explanation. Start with [juror number] 26. Juror 26 was seated originally in seat 8.

DEFENSE COUNSEL: She is employed by the Criminal Assignment Office. I think that that is somewhat problematic. I don't want a person employed by Criminal Assignment sitting on my jury.

THE COURT: All right.

PROSECUTOR: May I answer that?

THE COURT: You may.

PROSECUTOR: Your honor, the juror answered that question and said she could be fair so I find that reason to be an unacceptable reason.

THE COURT: I find it unacceptable as well. Okay. Go ahead.

DEFENSE COUNSEL: Juror number 27, I struck people who had doctors' appointments because I don't want somebody who has a doctor's appointment worrying about that [rather] than my trial.

PROSECUTOR: I find that unacceptable because this Court made it clear to the venireman, that the Court would go out of its way to [accommodate] that person with doctors' appointments.

DEFENSE COUNSEL: Doesn't mean that person will not be preoccupied with the fact that they have a doctor's appointment scheduled [rather] than paying attention to the details of the trial, that [juror 27] has made enough of a point to approach the bench about it means [that he is] thinking about it. That person also happens to be 66 years old.

* * * *

[We are] [t]alking about somebody more concerned about their health than my trial. It is enough of a concern for me.

PROSECUTOR: They are people who said they could be fair.

THE COURT: I will put a question mark on that.

* * * *

THE COURT: What about juror number 30?

DEFENSE COUNSEL: Judge, with that person, ever since the person was seated in the jury over there, I kept an eye on him and he kept looking back in our direction and I felt uncomfortable about him as a juror.

PROSECUTOR: I felt he was looking at me, too. But not being a psychiatrist I can't read people's minds. It is not a reason to eliminate people from the jury.

DEFENSE COUNSEL: I don't know if he's looking at me and my client because my client happens to be a black male. But he was looking directly at him the entire point in time he was there. Made me feel uncomfortable, that he would be an improper juror.

* * * *

DEFENSE COUNSEL: Juror 11 said she was the victim of [a] breaking and entering, when she was up at the bench she said she could be unbiased, and I looked at her in the eye and—

THE COURT: I don't think so. [Juror number] 38?

DEFENSE COUNSEL: I struck that person because, again, her position as a physician, she indicated to the Court if she didn't work, somebody was going to have to work a double shift. She made that point very clear, and I am more interested in having somebody not worried about someone working a double shift for them than if somebody is going to be a juror on a panel.

PROSECUTOR: The problem I have, in sixteen years, I know this to be the truth, jurors worried about their private lives, if you bring each and every juror, if you asked them if they were concerned about their private lives, the answer would be, you bet you. That is not a reason. I think that is unacceptable.

THE COURT: I agree. That is unacceptable.

* * * *

THE COURT: The physician lady, I'll give you the benefit on that. The physician lady which was [juror number] 38, juror number 11 [the victim of a breaking and entering], don't bring her back. [Juror number] 30 [the man looking at defense counsel]. I don't have a problem. That was a neutral reason. [Juror number] 29 was a neutral reason. So as we stand, only [juror number] 26 [the criminal assignment clerk] is unacceptable. We'll go with that.

DEFENSE COUNSEL: Even though she is exposed to the criminal docket every day of the week?

THE COURT: So am I. She never—no. I think that is unacceptable. I really do. That is an unacceptable reason.

PROSECUTOR: Otherwise, they couldn't send a summons at all or to me, or to the judge.

THE COURT: All right.

PROSECUTOR: What about the one you had a question mark on?

THE COURT: Well—

PROSECUTOR: That would not interfere.

THE COURT: That was Tuesday. Also [juror number] 27 [the juror with the doctor's appointment] comes back. That is unacceptable."

Thus, the trial court reseated juror 26, the criminal assignment clerk, and juror 27, the man with the doctor's appointment. The court stated that the reasons given by defense counsel for striking jurors 26 and 27 were "unacceptable." The court, however, overruled the prosecutor's objections to the striking of juror 11, the victim of a breaking and entering, juror 30, the man looking at defense counsel, and juror 38, the physician, finding the reasons proffered by defense counsel for these strikes "neutral" or "acceptable."

Upon conclusion of the trial, the jury convicted Parker of second degree assault, use of a handgun in the commission of a violent crime, and unlawfully carrying a handgun. Parker appealed to the Court of Special Appeals, and the intermediate appellate court affirmed in a reported opinion, Parker v. State, 129 Md.App. 360, 742 A.2d 28 (1999).

Parker filed in this Court a petition for a writ of certiorari seeking review of the trial court's rejection of defense counsel's reasons for striking two prospective jurors and reseating them on the jury panel. Additionally, Parker asks this Court to decide whether the trial court erred in admitting certain hearsay statements of two unidentified declarants into evidence under the "excited utterance" exception to the rule against hearsay. We granted the petition. Parker v. State, 358 Md. 381, 749 A.2d 172 (2000).

II.

It is now settled law that peremptory challenges may not be exercised to exclude members of a cognizable racial group from the jury panel. See Harley v. State, 341 Md. 395, 402, 671 A.2d 15, 18-19 (1996)

; Gilchrist v. State, 340 Md. 606, 619, 667 A.2d 876, 882 (1995); Mejia v. State, 328 Md. 522, 534, 616 A.2d 356, 361 (1992). In Batson v. Kentucky, supra, 476

U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, the Supreme Court established a three-step process for addressing allegations of impermissible discrimination in the exercise of peremptory challenges. This Court has previously reviewed the procedure set forth in Batson and its progeny. We explained in Gilchrist v. State, supra, 340 Md. at 625-626, 667 A.2d at 885-886:

"First, the complaining party has the burden of making a prima facie showing that the other party has exercised its peremptory challenges on an impermissibly discriminatory basis, such as race or gender. See Batson, 476 U.S. at 93-97,

106 S.Ct. at 1721-1723,

90 L.Ed.2d at 85-88. Moreover, `[w]hether the requisite prima facie showing has been made is the trial judge's call....' Mejia v. State, supra, 328 Md. at 533, 616 A.2d at 361."

"Second, once the trial court has determined that the party complaining about the use of the peremptory challenges has established a prima facie case, the burden shifts to the party exercising the peremptory challenges to rebut the prima facie case by offering race-neutral explanations for challenging the excluded jurors. The `explanation must be neutral,

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