State v. Gorman

• Decision Date: 01 September 1987
• Docket Number: No. 147,147
• Citation: 554 A.2d 1203,315 Md. 402
• Court: Maryland Court of Appeals
• Parties: STATE of Maryland v. Robert William GORMAN. ,

Page 402

315 Md. 402

554 A.2d 1203

STATE of Maryland v. Robert William GORMAN.

No. 147, Sept. Term, 1987.

Court of Appeals of Maryland.

March 27, 1989.

Mary Ellen Barbera, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore), on brief, for appellant/cross-appellee.

Jose Felipe Anderson, Asst. Public Defender (Alan H. Murrell, Public Defender, Baltimore), on brief, for appellee/cross-appellant.

Argued before MURPHY, C.J., ELDRIDGE, COLE, RODOWSKY, McAULIFFE and BLACKWELL, JJ., and CHARLES E. ORTH, JR., Associate Judge of

the Court of Appeals of Maryland (retired), Specially Assigned.

CHARLES E. ORTH, Jr. (Ret.), Specially Assigned, Judge.

This appeal is concerned with the peremptory challenge, " 'one of the most important of the rights' " in our justice system. Swain v. Alabama, 380 U.S. 202, 219, 85 S.Ct. 824, 835, 13 L.Ed.2d 759 (1965), quoting Pointer v. United States, 151 U.S. 396, 408, 14 S.Ct. 410, 414, 38 L.Ed. 208 (1894). See Batson v. Kentucky, 476 U.S. 79, 121, 106 S.Ct. 1712, 1735, 90 L.Ed.2d 69 (1986) (Burger, C.J., dissenting). Specifically, we are called upon to determine whether the prosecution's use of peremptory challenges in empaneling a petit jury in a criminal cause was constitutionally offensive. ¹

I

Robert William Gorman, a white man, was found guilty by a jury in the Circuit Court for Harford County of robbery with a deadly weapon and related offenses. At the selection of the jury, the prosecution, by the use of peremptory challenges, struck the only two black persons from the panel. Gorman was sentenced as a repeat offender to life imprisonment without parole. The judgments were affirmed by the Court of Special Appeals. Gorman v. State, No. 897, September Term, 1985, filed 11 March 1986, unreported (Gorman I ). This Court denied Gorman's petition for a writ of certiorari and denied his motion for reconsideration.

Gorman looked to the Supreme Court of the United States by way of a petition for a writ of certiorari, and his petition was granted. That Court vacated the judgment of the Court of Special Appeals and "remanded the case to [that court] for further consideration in light of Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987)." Gorman v. Maryland, 480 U.S. 913, 107 S.Ct. 1363, 94 L.Ed.2d 680 (1987). Thereupon, the Court of Special Appeals reversed the judgments of the Circuit Court for Harford County, and remanded the case for a new trial. Gorman v. State, No. 897, September Term, 1985 (on remand) filed 17 July 1987, unreported (Gorman II ). It explained its decision merely by noting that in Gorman I it had affirmed the judgments of the trial court upon reliance on Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759. But, it observed, Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 had overruled Swain, and, under Griffith v. Kentucky, 479 U.S. 314 , Batson governed Gorman I. Gorman II, slip opinion at 1. "[H]ence," it conceded, "our reliance on Swain turns out to be erroneous." Id. The intermediate appellate court opined, "On the basis of Batson, Griffith, and [its own opinion in] Chew v. State, Md.App. [681, 527 A.2d 332, cert. granted, 311 Md. 301, 534 A.2d 369 (1987), which looked to Batson ], the judgments must be reversed, and the matter remanded for a new trial." Gorman II, slip opinion at 1-2. The Court of Special Appeals denied the State's motion for reconsideration. We granted the State's petition and Gorman's conditional cross-petition for writs of certiorari.

II

In providing for jury trial in criminal causes, Maryland, in general, adheres to the common law system of trial by an impartial jury of 12 persons who must unanimously agree on a verdict. See Maryland Rules 4-311(b) and 4-327(a); State v. McKay, 280 Md. 558, 375 A.2d 228 (1977). This system comports with the Sixth Amendment to the Constitution of the United States ² and with Article 21 of the Maryland Declaration of Rights. ³ See Swain v. Alabama, 380 U.S. at 211, 85 S.Ct. at 831; Maryland Rule 4-311(a).

In the empaneling of a petit jury the system provides, not only for challenges for cause, but for peremptory challenges. Md.Rule 4-313. "The peremptory challenge has been in use without scrutiny into its basis for nearly as long as juries have existed." Batson, 476 U.S. at 119, 106 S.Ct. at 1734 (Burger, C.J., dissenting). It was a venerable fixture at the common law and crossed the sea to become one of the most important of the rights in our federal and state systems. Swain, 380 U.S. at 212-219, 85 S.Ct. at 831-835. Although the federal and Maryland Constitutions do not confer a right to peremptory challenges, "those challenges traditionally have been viewed as one means of assuring the selection of a qualified and unbiased jury." Batson 476 U.S. at 91, 106 S.Ct. at 1720 (citation omitted). In Swain, after tracing the very old credentials of the peremptory challenge, the Court observed: "The persistence of peremptories and their extensive use demonstrate the long and widely held belief that peremptory challenge is a necessary part of trial by jury." 380 U.S. at 219, 85 S.Ct. at 835. "The denial or impairment of the right is reversible error without a showing of prejudice...." Id. (citations omitted).

Throughout its long history, the description of the challenge as "peremptory" meant precisely what that adjective connoted in common usage--"conclusive or absolute; decisive." Webster's New International Dictionary of the English Language 1817 (unabridged 2d ed. 1961). Black's Law Dictionary 1023 (5th ed. 1979) defines it as: "Imperative; final; decisive; absolute; conclusive; positive; not admitting of question, delay, reconsideration or of any alternative. Self-determined; arbitrary; not requiring any cause to be shown." Thus, a peremptory challenge is, as Lewis v. United States, 146 U.S. 370, 378, 13 S.Ct. 136, 139, 36 L.Ed. 1011 (1892), indicates Blackstone viewed it: "[A]n arbitrary and capricious right; and it must be exercised with full freedom, or it fails of its full purpose." The Supreme Court found merit in the position that

[t]his system, ... in and of itself, provides justification for striking any group of otherwise qualified jurors in any given case, whether they be Negroes, Catholics, accountants or those with blue eyes.

Swain, 380 U.S. at 212, 85 S.Ct. at 831. See id. at 219-221, 85 S.Ct. at 835-836.

In the Swain case, the defendant was black. There were only six black men on the final venire, and the prosecution peremptorily struck all six from the petit jury panel. A majority of the Supreme Court, ⁴ in light of the nature and function of peremptory challenges, said:

With these considerations in mind, we cannot hold that the striking of Negroes in a particular case is a denial of equal protection of the laws. In the quest for an impartial and qualified jury, Negro and white, Protestant and Catholic, are alike subject to being challenged without cause. To subject the prosecutor's challenge in any particular case to the demands and traditional standards of the Equal Protection Clause would entail a radical change in the nature and operation of the challenge. The challenge, pro tanto, would no longer be peremptory, each and every challenge being open to examination, either at the time of the challenge or at a hearing afterwards. The prosecutor's judgment underlying each challenge would be subject to scrutiny for reasonableness and sincerity. And a great many uses of the challenge would be banned.

Id., 380 U.S. at 221-222, 85 S.Ct. at 836-837. Maryland accepted this concept and applied it. We flatly stated in Brice v. State, 264 Md. 352, 366, 286 A.2d 132 (1972):

In short, the right to exercise the peremptory strike is unfettered and may be exercised by either party for any reason or indeed for no reason. Hunch, passing impression, appearance of the prospective juror, or any other consideration may lead to the exercise of the peremptory challenge and no inquiry may be made in regard to why it is exercised.

In Brice the State used 15 of its peremptory challenges. We declared: "No one may inquire in regard to the reason the State did this." Id. See Parker v. State, 227 Md. 468, 470, 177 A.2d 426 (1962); Johnson v. State, 9 Md.App. 143, 148-151, 262 A.2d 792 (1970). In the Supreme Court, the rule of Swain remained inviolate for 21 years, reflecting a view that had been embraced for over two centuries. And then came Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, decided 30 April 1986.

III

In Batson the Supreme Court reexamined part II of Swain, which concerned peremptory challenges. As we have seen, the Court in Swain had expressly stated that the prosecutor's challenge in a particular case was not subject to the demands and traditional standards of the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States. ⁵ Swain adopted the presumption that in any particular case the prosecutor is using the state's peremptory challenges to obtain a fair and impartial jury to try the case before the court. Even though the defendant was black, this presumption, the Court opined, is not overcome because all blacks were removed from the jury thereby or that they were removed because they were black. In other words, the presumption was not rebuttable by the exercise of peremptory challenges.

The Court's reexamination of Swain spawned a spate of opinions by the justices. ⁶ The Court did not jettison entirely the concept of peremptory challenges, as Marshall, J., would have it do. 476 U.S. at 102-103, 106 S.Ct. at 1725-1726 (Marshall, J., concurring). But seven of the justices overturned Swain's principle holding that

the Constitution does not require in any given case an inquiry into the prosecutor's reasons for using his peremptory challenges to strike blacks from the petit jury panel in the criminal trial of a black defendant and that in such a case it will be presumed that the...