Stanley v. State

Decision Date01 September 1987
Docket NumberNos. 82,107,s. 82
Citation542 A.2d 1267,313 Md. 50
Parties, 57 USLW 2082 Michael Wardell STANLEY v. STATE of Maryland. Clarence Haywood TRICE a/k/a Benjamin Edward Chester v. STATE of Maryland. ,
CourtMaryland Court of Appeals

Michael R. Braudes, Asst. Public Defender (Alan H. Murrell, Public Defender, on the brief), Baltimore, for Stanley.

John L. Kopolow, Asst. Public Defender (Alan H. Murrell, Public Defender, on the brief), Baltimore, for Trice.

Gary E. Bair, Richard B. Rosenblatt, Asst. Attys. Gen. (J. Joseph Curran, Jr., Atty. Gen., on the brief), Baltimore, for the State.

Argued before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS and BLACKWELL, JJ.

ADKINS, Judge.

In this opinion we shall consider the cases of petitioner Michael Wardell Stanley (Stanley) and of appellant Clarence Haywood Trice a/k/a Benjamin Edward Chester (Trice). Both are members of the black race. Each was convicted at trial by substantially or totally white juries after most or all potential jurors who were black were excluded from jury service by peremptory challenges used by a State prosecutor. The two cases thus present a common question: did the procedures used by the State violate the prohibition against racially discriminatory jury selection explained in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). 1

Based on the evidence concerning the prosecutors' exercise of peremptory challenges, we shall hold that in each case a prima facie showing of purposeful discrimination in the selection of the petit jury was made. We shall invoke Md.Rule 871 to remand each case for further proceedings, the nature of which we shall describe in due course. Due to factual variations between the Trice and Stanley cases, we must discuss the issues somewhat differently in each. But first we set the constitutional scene.

I. BATSON V. KENTUCKY--ITS GENESIS AND SCOPE
A. Batson v. Kentucky and the Exercise of Peremptory Challenges

On 30 April 1986 the United States Supreme Court decided Batson v. Kentucky, in which the Court announced a new rule concerning the exercise of peremptory challenges in jury trials. That rule, as developed by the Court, follows from the conclusion "that 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." 476 U.S. at 96, 106 S.Ct. at 1722-1723, 90 L.Ed.2d at 87. With this new rule the Court rejected the evidentiary formulation of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), which had insulated from inquiry the exercise of any peremptory challenge. "To the extent that anything in Swain ... is contrary to the principles we articulate today, that decision is overruled." Batson, 476 U.S. at 100 n. 25, 106 S.Ct. at 1725 n. 25, 90 L.Ed.2d at 90 n. 25.

For more than twenty years, Swain essentially foreclosed, in the context of the case of an individual defendant, the establishment of a violation of the equal protection clause given an apparently racially motivated exercise of a prosecutor's peremptory challenges. Under Swain, the significance of a defendant's fourteenth amendment equal protection claim and the apparent perversion of the purposes of the peremptory challenge might be shown only "when the prosecutor in a county, in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be, is responsible for the removal of Negroes who have been selected as qualified jurors by the jury commissioners and who have survived challenges for cause, with the result that no Negroes ever serve on petit juries, ..." 380 U.S. at 223, 85 S.Ct. at 837, 13 L.Ed.2d at 774. For more than twenty years this Swain standard presented to defendants aggrieved by the discriminatory use of peremptory challenges a virtually insurmountable burden to overcome and an almost impossible task to perform.

As a result, some courts began sidestepping Swain to find protection for defendants. Some of them relied on their own state constitutions. See, e.g., People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (1978); and Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979). Others used a sixth amendment "cross-section of the community" jury analysis flowing from Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), and its heritage. See McCray v. Abrams, 750 F.2d 1113 (2d Cir.1984), vacated and remanded, 478 U.S. 1001, 106 S.Ct. 3289, 92 L.Ed.2d 705 (1986), appeal dismissed per stipulation, No. 84-2026 (2d Cir. 23 Oct. 1986); and Booker v. Jabe, 775 F.2d 762 (6th Cir.1985), vacated and remanded, 478 U.S. 1001, 106 S.Ct. 3289, 92 L.Ed.2d 705 (1986), on remand, 801 F.2d 871 (6th Cir.1986), cert. denied, --- U.S ----, 107 S.Ct. 910, 93 L.Ed.2d 860 (1987). 2

Finally, in Batson v. Kentucky, the United States Supreme Court proclaimed that the Swain standard was overruled. 476 U.S. at 100 n. 25, 106 S.Ct. at 1725 n. 25, 90 L.Ed.2d at 90 n. 25. The Court recognized that in the context of petit jury selection a defendant could establish a fourteenth amendment equal protection violation using only the circumstances of the defendant's own case. 3

"[A] consistent pattern of official racial discrimination" was not "a necessary predicate to a violation of the Equal Protection Clause." Id. at 95, 106 S.Ct. at 1722, 90 L.Ed.2d at 87 [citations omitted]. And a "single invidiously discriminatory governmental act" was not "immunized by the absence of such discrimination in the making of other comparable decisions." Id. To be consistent with the promise of equal protection to all, evidentiary requirements would not "dictate that 'several must suffer discrimination' before one could object." Id. at 95-96, 106 S.Ct. at 1722, 90 L.Ed.2d at 87 [citations omitted]. Batson set a new standard to follow. 4

The Supreme Court declined, "however, to formulate particular procedures to be followed upon a defendant's timely objection to a prosecutor's challenges." Batson, 476 U.S. at 99, 106 S.Ct. at 1724, 90 L.Ed.2d at 89-90 [footnote omitted]. So for the past two years, as we shall see, state and federal courts have been fleshing out and filling in the gaps in their attempts to implement the Batson rule. This is our first opportunity to do likewise. 5 Specifically, in these cases we address the procedures necessary to establish and deal with a prima facie case of a discriminatory exercise of peremptory challenges.

B. The Batson Procedures

In Batson, the Supreme Court concluded that by using evidence concerning the prosecutor's exercise of peremptory challenges, a defendant could establish "a prima facie case of purposeful discrimination in selection of the petit jury." Batson, 476 U.S. at 96, 106 S.Ct. at 1722, 90 L.Ed.2d at 87. The Court said:

To establish such a case, the defendant first must show that he is a member of a cognizable racial group ... and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits "those to discriminate who are of a mind to discriminate.".... Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. This combination of factors in the empaneling of the petit jury, as in the selection of the venire, raises the necessary inference of purposeful discrimination.

Id. at 96, 106 S.Ct. at 1723, 90 L.Ed.2d at 87-88 [citations omitted]. 6

The Supreme Court cited Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), and other Title VII 7 cases such as McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983), for an explanation of the operation of prima facie burden of proof rules. See also State v. Antwine, 743 S.W.2d 51, 63 (Mo.1987), cert. denied, --- U.S. ----, 108 S.Ct. 1755, 100 L.Ed.2d 217 (1988) ("Batson intimates that it should be read side-by-side with the Supreme Court's Title VII cases"). See Batson, 476 U.S. at 94 n. 18, 106 S.Ct. at 1721 n. 18, 90 L.Ed.2d at 86 n. 18.

Although the phrase "prima facie case" "may be used by courts to describe the plaintiff's burden of producing enough evidence to permit the trier of fact to infer the fact at issue," in the Title VII context (and by implication, the Batson context), the phrase denotes "the establishment of a legally mandatory, rebuttable presumption." Burdine, 450 U.S. at 254 n. 7, 101 S.Ct. at 1094 n. 7, 67 L.Ed.2d at 216 n. 7. Also see B. Garner, A Dictionary of Modern Legal Usage 434 (1987) (citing Burdine for "prima facie case").

The Supreme Court was confident that trial judges, experienced in supervising voir dire, would "be able to decide if the circumstances concerning the prosecutor's use of peremptory challenges creates a prima facie case of discrimination against black jurors." Batson, 476 U.S. at 97, 106 S.Ct. at 1723, 90 L.Ed.2d at 88. It cautioned, however, that "[i]n deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances." Id. at 96-97, 106 S.Ct. at 1723, 90 L.Ed.2d at 88. By way of illustration the Court observed that a "pattern" of strikes against black jurors in the particular venire, or the prosecutor's questions and statements during the voir dire examination and the exercise of peremptory challenges might give rise to or support or refute the requisite showing. Id....

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