Spencer v. State

• Decision Date: 14 February 1974
• Docket Number: No. 378,378
• Citation: 20 Md.App. 201,314 A.2d 727
• Parties: Charles SPENCER, alias Alfred Mohorn v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 201

20 Md.App. 201

314 A.2d 727

Charles SPENCER, alias Alfred Mohorn v. STATE of Maryland.

No. 378.

Court of Special Appeals of Maryland.

Feb. 14, 1974.

Richard S. Kahn, Baltimore, for appellant.

James L. Bundy, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Milton B. Allen, State's Atty., and Joseph Lyons, Asst. State's Atty., for Baltimore City, on the brief, for appellee.

Argued before ORTH, C. J., and MOYLAN and LOWE, JJ.,

MOYLAN, Judge.

As early as 1481 when Sir Thomas Littleton published his Tenures, the availability to a criminal defendant of the unfettered right to challenge peremptorily prospective jurors was already of long and settled usage. Sir James Fitzjames Stephen in 1 A History of the Criminal Law of England, 301-303, (1883) finds reference to the procedure as early as the writings of Braction (c. 1252) and Britton (c. 1290). The first statute on the subject, The Ordinance for Inquests, 33 Edw. 1, Stat. 4 (1305), cut back on the unlimited use of peremptory challenges by the Crown, but left untouched at 35 the number of peremptories available to a criminal defendant. That number was reduced to 20 by 25 Hen. 8, c. 3 (1533). The procedure was thus already of ancient vintage, with a pedigree of over 500 years, when Sir William Blackstone wrote in 4 Commentaries on the Laws of England, 353-354:

'(I)n criminal cases, or at least in capital ones, there is, in favorem vitae, allowed to the prisoner an arbitrary and capricious species of challenge to a certain number of jurors, without showing any cause at all; which is called a peremptory challenge: a provision full of that tenderness and humanity to prisoners, for which our English laws are justly famous. This is grounded on two reasons. 1. As every one must be sensible what sudden impressions and unaccountable prejudicies we are apt to conceive upon the bare looks and gestures of another; and how necessary it is, that a prisoner (when put to defend his life) should have a good opinion of his jury, the want of which might totally disconcert him; the law wills not that he should be tried by any one man against whom he has conceived a prejudice, even without being able to assign a reason for such his dislike. 2. Because, upon challenges for cause shown, if the reason assigned prove insufficient to set aside the juror, perhaps the bare questioning his indifference may sometimes provoke a resentment; to prevent all ill consequences from which, the prisoner is still at liberty, if he pleases, peremptorily to set him aside.

The peremptory challenges of the prisoner must, however, have some reasonable boundary; otherwise he might never be tried. This reasonable boundary is settled by the common law to be the number thirty-five; that is, one under the number of three full juries. For the law judges that five and thirty are fully sufficient to allow the most timorous man to challenge through mere caprice; and that he who peremptorily challenges a greater number, or three full juries, has no intention to be tried at all.'

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. Its history in this State, and statutory vicissitudes, is well traced in Turpin v. State, 55 Md. 462. See also Parker v. State, 227 Md. 468, 470-471, 177 A.2d 426, and Brice v. State, 264 Md. 352, 365-367, 286 A.2d 132. Judge Gilbert discussed and analyzed in great depth the nature of the peremptory challenge in Pearson v. State, 15 Md.App. 462, 291 A.2d 167. See also Bever v. State, 4 Md.App. 436, 439-440, 243 A.2d 634, and Johnson v. State, 9 Md.App. 143, 148-151, 262 A.2d 792.

The Supreme Court recognized the value of the right in Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011 (1892). See also 47 Am.Jur.2d, Jury, §§ 233-234; 50 C.J.S. Juries §§ 279-285. In Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), the Supreme Court discussed the nature of the challenge at 380 U.S. 220-221 at 85 S.Ct. 836:

'The essential nature of the petemptory challenge is that it is one exercised without a reason stated, without inquiry and without being subject to the court's control. . . . 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. . . . It if often exercised upon the 'sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another,' . . . upon a juror's 'habits and associations,' . . . or upon the feeling that 'the bare question (a juror's) indifference may sometimes provoke a resentment,' . . . It is no less frequently exercised on grounds normally thought irrelevant to legal proceedings or official action, namely, the race, religion, nationality, occupation or affiliations of people sommoned for jury duty. For the question a prosecutor or defense counsel must decide is not whether a juror of a particular race or nationality is in fact partial, but whether one from a different group is less likely to be.' (Citations omitted.)

The full exploitation of this right to the unfettered employment of one's peremptory challenges was allegedly denied the appellant, Charles Spencer, also known as Alfred Mohorn, in his trial before Judge Charles D. Harris and a jury in the Criminal Court of Baltimore. The appellant stood charged with two violations of Art. 27, § 286(a)(1), possession of a controlled dangerous substance in sufficient quantity to indicate an intent to distribute, one of which was a felony carrying a maximum sentence of 20 years. The appellant elected to be tried by a jury. As such, he was entitled, under the major charge, to the benefit of Maryland Rule 746 a 1, which provides:

'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.'

A typical jury panel in Baltimore City is assigned to one of the many civil or criminal courts operating in the Baltimore Courthouse. It consists of 25 persons. The names of those 25 persons are printed on a long, rectangular strip of paper. Following the full name of each person is a listing of the occupation, the home address, the place of employment, the sex, the age, the degree of formal education of that person, as well as the name, occupation and place of employment of the spouse. When some, or all, of the jurors assigned to a particular panel are not pressed into service in the home courtroom, they are sent to the jury assembly room, where they remain available for duty anywhere in the Court-house or its Annex.

In the case at bar, 50 potential jurors were brought together from three not-yet-exhausted panels. From Criminal Court Part III, Judge Harris's home court, 16 jurors were still available from the original panel of 25 (Judge Harris's panel). From Criminal Court Part I (Judge Levin's panel), came 21 potential jurors. From Criminal Court Part IV (Judge Watt's panel), came an additional 13 potential jurors. On each of the three printed lists, the available jurors were indicated by a red check mark to the left of the name. Such lists, so checked, were made available to the State and to the defense. The court clerk worked from his own copies of the same lists.

The voir dire examination resulted in none of the 50 prospective jurors being disqualified for cause. The selection process, where the peremptory challenges would be used, began with Judge Levin's panel. An analysis of that process reveals an apparently adroit and tactically complex battle between the State and the defense. In the course of the selection battle, the State used all of its 10 peremptory challenges and the defense ultimately exhausted all of his 20 peremptories. Each side used an additional peremptory before two alternatives were finally selected.

By the time the 21 available jurors on Judge Levin's panel had been called up, in regular order reading from the top of the list to the bottom, the...