Pietruszewski v. State
| Decision Date | 07 April 2020 |
| Docket Number | No. 209,209 |
| Parties | BRUCE EDWARD PIETRUSZEWSKI v. STATE OF MARYLAND |
| Court | Court of Special Appeals of Maryland |
CRIMINAL PROCEDURE - JURY TRIALS - PEREMPTORY CHALLENGES TO POTENTIAL JUROR - RIGHT OF COUNSEL IN CRIMINAL CASES TO STRIKE JURORS AFTER THE JUROR HAS BEEN CONDITIONALLY ACCEPTED AND SEATED IN THE JURY BOX. Maryland Rule 4-313(b) describes two alternative procedures for exercising peremptory challenges to strike prospective jurors. If no request is made to the contrary, each party shall exercise its challenges simultaneously by striking names from a copy of the jury list. But, at the request of any party, the court shall employ a procedure of "alternating challenges," pursuant to which qualified venire persons are called forward one at a time, and each party states whether the juror is challenged or accepted, alternating which party announces its position first. Rule 4-313(b)(3) further provides that, when the alternating challenges procedure has been utilized, then, after the required number of qualified jurors has been called, a party who has any remaining peremptory challenges may strike jurors from the box up until the time the first alternate is called or the jury is sworn. A trial court's refusal to permit counsel to strike jurors from the box pursuant to Rule 4-313(b)(3) is an error that is reviewed pursuant to the harmless error standard.
CRIMINAL PROCEDURE - JURY TRIALS - CLOSING ARGUMENT OF PROSECUTOR - SHIFTING BURDEN OF PROOF - COMMENT ON CREDIBILITY OF WITNESSES CALLED BY THE DEFENDANT. A prosecutor's closing argument may not draw the jury's attention to the failure of the defendant to call witnesses or produce evidence; such an argument impermissibly shifts the burden of proof. But, in a case in which the defendant has called witnesses, the prosecutor is permitted to attack the credibility of witnesses called by the defense, and an argument suggesting that the testimony of a witness for the defense lacks credibility because it was not supported by documents that the testimony suggested would have been reasonably available does not violate the rule against shifting the burden of proof.
Case No. 3-K-17-002504
Meredith, Reed, Sharer, J. Frederick (Senior Judge, Specially Assigned) JJ.
Opinions by Meredith, J.
A jury in the Circuit Court for Baltimore County convicted Bruce Edward Pietruszewski, appellant, of committing an early morning robbery, but acquitted him of committing an assault and carrying a dangerous weapon openly with intent to injure. Pietruszewski was sentenced to a total of fifteen years, with all but eight years suspended. He presents the following issues for our review:
Although we agree with the assertion that the trial court erred in failing to apply Maryland Rule 4-313(b)(3)—which provides that a party "may exercise any remaining peremptory challenges to which the party is entitled at any time before the jury is sworn[,]" up to the time "the first alternate is called"—we conclude that Pietruszewski was not prejudiced by the ruling because he utilized and fully exhausted his allotted peremptory challenges before the twelfth juror was seated in the box, and he failed to proffer how he might have used his challenges in a different manner if the trial judge had not prohibited him from striking jurors after they had been seated in the jury box. In the absence of any facts in the record that support a claim that Pietruszewski's exercise of peremptory challenges would have been any different if the court had not erred by precluding striking from the box, we are persuaded that the trial court's error was harmless in this case. With respect to the prosecutor's closing argument, we conclude that the trial court did not err in overruling the one objection that was lodged, and we decline to conduct plain error reviewof the arguments as to which no objection was made during trial. Consequently, we will affirm the judgment of the circuit court.
Shortly before 5:00 a.m. on Saturday, April 22, 2017, graduate student Brianna Doyle was walking home after working through the night at a fast food restaurant on York Road in Cockeysville. Ms. Doyle had traveled past two shopping centers when she noticed a man walking behind her. He wore a dark beanie covering his hair, but she was able to observe that he was "white," "[m]uch taller" and "thinner" than her, with "a really prominent chin" and "a slender face." He kept his hands in the pockets of his baggy sweatshirt.
Although Ms. Doyle initially concluded the man was not a threat, the man approached her from behind and said: "[W]e're past the cameras." "Give me your purse." Feeling "terrified," Ms. Doyle nevertheless asked if she could "just give" him her money "because [she] didn't want to go through the hassle of trying to replace everything." When the man agreed, she gave him her cash, which totaled a little less than $60. He turned and walked away in the opposite direction.
Fearing that the robber would return to attack her if she made a distress call, Ms. Doyle texted her mother "come and get me," and then ran the remaining few blocks to her home. Outside their residence, her mother, Bobbi Jo Goodwill, met Ms. Doyle in Ms. Goodwill's vehicle, and, after hearing about the robbery, began to drive to a police station.
As the two headed toward a police station to file a police report, Ms. Doyle saw the robber near an apartment complex, "wearing the same clothes[,]" "[w]alking the same[,]"and "on the phone talking." She had "no doubt" that he was her assailant. While Ms. Doyle called 911, Ms. Goodwill "pulled up like right next to him." Ms. Doyle overheard the man say:
Ms. Goodwill got out of her vehicle to confront the robber, angrily asking him: "[D]id you just rob my daughter?" The two "were right in front of each other[,]" so close that she later described their proximity by saying: "[Y]ou could put a piece of paper between [our] noses." The man then reached down to retrieve "something silver." He "turned around and made [a] stabbing motion towards her chest," then dropped the item and ran.
Ms. Goodwill picked up a screwdriver that she believed was the silver item, and she got back in her car. Ms. Doyle reported the robbery to the 911 personnel. When police officers responded, Ms. Goodwill gave them the screwdriver. Although police and a K-9 officer located a possible suspect in the area, when Ms. Doyle and Ms. Goodwill came to the location to look at that person, both women agreed that he was not the robber.
Three days later, when officers came to Ms. Goodwill's apartment to present a photo array, she selected appellant's photo, recognizing his "distinctive" chin. Viewing the same array independently later that day, Ms. Doyle also identified appellant's photo as that of the robber.
At trial, appellant presented testimony from his former girlfriend and his father in support of mistaken identity and alibi defenses. Both witnesses testified that, on the night of the robbery, appellant was with them, sleeping in the same hotel room where the father had been living and the three of them had been staying.
During cross-examination, Pietruszewski's father admitted that he did not bring to court any receipts or records regarding that hotel stay. Nor did the father ever contact the police or prosecutor's office to report the information regarding appellant's whereabouts at the time of the robbery even though that could have been exculpatory. In addition, the State established that the hotel was located "just a couple blocks from" the restaurant where Ms. Doyle worked, which was within walking distance of the spot where the robbery occurred.
Pietruszewski contends that "the trial court erred in prohibiting 'striking from the box' during jury selection." He argues: "This arbitrary limitation on jury selection violated [his] right to due process as well as Maryland Rule 4-313 and impaired the use of his peremptory challenges."
The State counters: (1) that Pietruszewski did not preserve his due process challenge; (2) that the court properly exercised its discretion to control jury selection under Rule 4-313(b); and (3) that, in any event, the defense was not prejudiced by any error.
"The right of both the defendant and the Government to challenge prospective jurors without assigning any reason is an ancient one, dating back, in England, to the Thirteenth Century." Booze v. State, 347 Md. 51, 59 (1997). "The accepted use of the peremptory challenge, as an incident to the right of trial by jury, came to the Maryland Colony with the first settlement." Spencer v. State, 20 Md. App. 201, 203 (1974).
Although not guaranteed under the United States Constitution, see Gilchrist v. State, 340 Md. 606, 620 n.2 (1995), or the Maryland Declaration of Rights, see Whitney v. State, 158 Md. App. 518, 531 (2004), the right to exercise peremptory challenges is protected under Maryland law because such strikes "play a 'vital role' in 'insuring' that 'an impartial jury is chosen.'" Collini v. State, 227 Md. App. 94, 101 (2016) (quoting King v. State Roads Comm'n of State Highway Admin., 284 Md. 368, 370 (1979)). Parties have "wide latitude in making peremptory challenges," which they may exercise for any reason that does not discriminate on the basis of race, gender, or ethnicity. See Gilchrist, 340 Md. at 619; Brice v. State, 264 Md. 352, 366 (1972); Collini, 227 Md. App. at 101-02. Cf. Ray-Simmons v. State, 446 Md. 429, 435 (2016) (...
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