Pearson v. State

• Decision Date: 06 June 1972
• Docket Number: No. 706,706
• Citation: 15 Md.App. 462,291 A.2d 167
• Parties: State PEARSON v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 462

15 Md.App. 462

291 A.2d 167

State PEARSON v. STATE of Maryland.

No. 706.

Court of Special Appeals of Maryland.

June 6, 1972.

James J. White, III, Chestertown, for appellant.

David B. Allen, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., and Richard R. Cooper, State's Atty., for Kent County, on the brief, for appellee.

Argued before MORTON, MOYLAN and GILBERT, JJ.

GILBERT, Judge.

This appeal involves the right to chalenge peremptorily prospective jurors. Such right has been conferred upon an accused and the State by the common law, case law, statute and rule of court.

Art. 51, § 15 of the Annotated Code of Maryland (1968 Repl. Vol.) provides:

'In all criminal cases called for trial in any court in which a jury shall be necessary, according to the Constitution and laws of this State, other than cases in which the offense charged is punishable by death or confinement in the penitentiary, twenty persons from the panel of petit jurors shall be drawn by ballot by the clerk under the direction of the court, and the names of the twenty persons shall be written upon two lists, * * *; and the said parties or their counsel shall each he permitted four peremptory challenges in accordance with Rule 746 of the Maryland Rules of Procedure and the remaining twelve persons shall thereupon be immediately empaneled and sworn as the petit jury in such cause. If the trial is for an offense punishable by death or confinement in the penitentiary, such additional names shall be added to the penal of petit jurors as may be necessary to enable the parties to exercise their right of peremptory challenge in accordance with Rule 746 of the Maryland Rules of Procedure.'

The net result of § 15, supra, when read in conjunction with Rule 746, is to allocate, in criminal cases, four peremptory challenges to each of the parties (if there be more than one defendant the defense shall only be entitled to four peremptory challenges, collectively, unless the interest of each defendant is adverse or hostile to the other), except in those criminal trials where the offense charged is punishable by death or confinement in the penitentiary for twenty years or more.

Rule 746, entitled 'Challenge-Peremptory' provides in pertinent part:

'a. Number.

1. Cases Involving Death, Life Imprisonment or Twenty Years or More.

In a trial in which the defendant is subject, on any single count, to a sentence of death, life imprisonment or twenty years or more of imprisonment, except for common law offenses for which no specific penalty is provided by statute, each defendant shall be permitted twenty peremptory challenges and the State shall be permitted ten peremptory challenges for each defendant.

'c. When Made.

A peremptory challenge may be exercised as a matter of right until the time that the jury is sworn.'

The Court of Appeals in Turpin v. State, 55 Md. 462, 464 (1881), speaking through Chief Judge Bartol, quoted with approval from I Ch. Crim.L. 534 m., wherein it is said:

'Peremptory challenges are those which are made to the juror, without assigning any reason, and which the courts are bound to respect.'

The court then quoted from Proffat on Jury Trials, sec. 155, which states:

'The right of peremptory challenge is deemed a most essential one to a prisoner, and is highly esteemed and protected in the law. It is the right to exclude from the appeal those who may be suspected of entertaining a prejudice against a party, where sufficient reasons cannot be given for their exclusion for cause.'

In this state, the right to peremptory challenges was first secured to a prisoner charged with capital offenses only. ¹ By the Acts of 1841, ch. 162 (December session), the right of peremptory challenge was extended to every person indicted for any crime or misdemeanor, the punishment for which was confinement in the penitentiary. ²

The Supreme Court in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), speaking through Mr. Justice White, said:

'While challenges for cause permit rejection of jurors on a narrowly specified, provable and legally cognizable basis of partiality, the peremptory permits rejection for a real or imagined partiality that is less easily designated or demonstrable. Hayes v. State, of Missouri, 120 U.S. 68, 70, 7 S.Ct. 350, 351, 30 L.Ed. 578. It is often exercised upon the 'sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another,' Lewis, (v. United States, 146 U.S. 370), supra, at 376, 13 S.Ct., at 138, upon a juror's 'habits and associations,' Hayes v. Missouri, supra, 120 U.S., at 70, 7 S.Ct. at 351, or upon the feeling that 'the bare questioning (a juror's) indifference may sometimes provoke a resentment,' Lewis, supra, 146 U.S., at 376, 13 S.Ct. at 138. * * * Hence veniremen are not always judged solely as individuals for the purpose of exercising peremptory challenges. Rather they are challenged in light of the limited knowledge counsel has of them, which may include their group affiliations, in the context of the case to be tried.'

See also Harrison v. United States, 163 U.S. 140, 16 S.Ct. 961, 41 L.Ed. 104 (1896); Johnson v. State, 9 Md.App. 143, 150, 262 A.2d 792 (1970).

The peremptory challenge is ofttimes utilized to exclude prospective jurors for what would normally appear to be totally irrelevant reasons if sought to be used as a basis to challenge for cause. Thus counsel may for visceral reasons peremptorily challenge because of race, creed, color, nationality, occupation, age, sex, and affiliations, inter alia. Swain v. Alabama, supra; Johnson v. State, supra.

In the instant case, Steve Pearson, appellant, was indicted by the Grand Jury for Kent County, in a single indictment charging the following counts: (1) common law assault upon one Bernard Francis O'Grady; (2) robbery, (Art. 27, § 486); (3) unauthorized use of a motor vehicle, (Art. 27, § 349); (4) conspiracy to commit robbery, (Art. 27, § 38); (5) burglary, (Art. 27, § 29); (6) rogue and vagabond, (Art. 27, § 490); (7) larceny of goods valued at $100 or more, (Art. 27, § 340); (8) receiving stolen goods, (Art. 27, § 466).

When the case was called for trial, the State entered a nol pros as to Count 2, robbery, and Count 3, unauthorized use of a motor vehicle. Counsel for the appellant stated to the trial court:

'For the record, I would like to make an objection at this point. The objection is that the defendant is charged with a felony and we only are allowed under the present Maryland Rule four strikes, and I think that constitutionally this is invalid. I think the defendant is entitled to exercise a number of strikes that have been previously allowed by defendants in previous cases over a period of years. I would like to make this objection for the record at this time.'

The State demurred and suggested that the rule pertaining to four strikes be followed. The trial court stated:

'I would be inclined to go along with the rule in this matter.'

Unfortunately, the trial court did not 'go along with the...