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No. 111, September Term, 1993 Gary Gilchrist v. State of Maryland [Whether The Holding By The Supreme Court In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), Applies To Peremptory Challenges Aimed At Excluding White Prospective Jurors From The Venire Based On Their Race]

IN THE COURT OF APPEALS OF MARYLAND No. 111 September Term, 1993 ________________________________________

GARY GILCHRIST

v.

STATE OF MARYLAND ________________________________________

Murphy, C.J. Eldridge Rodowsky Chasanow Karwacki Bell Raker, JJ. ________________________________________ Opinion by Eldridge, J. Chasanow and Bell, JJ., concur. ________________________________________ Filed: November 28, 1995

The principal issue in this criminal case is whether the holding by the Supreme Court in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), applies to peremptory

challenges aimed at excluding white prospective jurors from the venire based on their race. I. Gary Gilchrist was charged with distribution of cocaine and possession of cocaine with intent to distribute. On August 3,

1992, he was tried before a jury in the Circuit Court for Baltimore City. Jury selection at Gilchrist's trial was done in accordance with the following procedure. of the prospective jurors. was called, voir dire The trial judge conducted voir dire After the roll of prospective jurors the attorneys made their

commenced,

challenges for cause to the trial judge, and the stricken jurors were dismissed. The clerk then called off the names and numbers of

the remaining prospective jurors one at a time, proceeding down the jury list from the top. Both sides exercised their peremptory

challenges to each prospective juror immediately after his or her name was called. If a prospective juror was not challenged, that

- 2 person was seated in the jury box until twelve jurors were seated. Once twelve jurors were seated in the box, the court then offered the parties a second opportunity to exercise peremptory challenges against the jurors who were already seated. If any jurors were

then struck by the parties' attorneys, the process would begin again with the clerk calling off the name of the next prospective juror on the list. Jury selection continued in this fashion until

twelve unchallenged jurors were ultimately seated. Prior to the jury box becoming filled the first time, the State and the defense had each exercised one peremptory challenge. Once twelve jurors were seated, the defendant's attorney then exercised a peremptory challenge against one of the seated jurors, resulting in that juror's dismissal. next prospective juror on the list. the box continually filling The clerk then called off the This process continued, with the defense exercising

and

peremptories, directed either at a seated juror or at the next prospective juror on the jury list, until defense counsel had exercised seven peremptory challenges. All of the prospective

jurors struck by the defense counsel to this point had been white. After the seventh prospective juror was challenged by defense counsel, the State raised an objection, arguing that the defense was attempting to remove all white prospective jurors from the jury in violation of the principles set forth in Batson v. Kentucky, supra. The prosecuting attorney stated:

- 3 "ASSISTANT STATE'S ATTORNEY: I don't know the name of the case, but it is the case that came down after [Batson] which indicates that there are -- there is no right to any racially motivated strikes. And every strike so far exercised by the defense counsel has been of white jurors. "Some of those jurors have not answered questions so it cannot be based on the fact that they gave answers that would indicate -"THE COURT: Which juror are you questioning or do you want to go through a reason for each one of them? "ASSISTANT STATE'S ATTORNEY: For each one. "THE COURT: All right. That's seven jurors you've struck. They were all white. Let's go through them one by one and give me the reasons you struck them." The court found the defendant's reasons for striking three of the jurors to be acceptable.1 With respect to the remaining jurors,

the following colloquy ensued: Juror 3 "DEFENSE COUNSEL: Judge, I personally, by looking at her -- I see jurors in the box and I look at the way they relate to each other. "THE COURT: Well, how did she look?

"DEFENSE COUNSEL: [S]he reminded me of my Catholic School teacher that I didn't particularly like . . . . Her look . . . at Two of the jurors were challenged by the defendant because they were crime victims, and the other juror was challenged because the defendant was uncomfortable with the way the juror stared at him.
1

- 4 the other people who were in the [jury] box. "THE COURT: explanation." That's not a satisfactory

Juror 5 "DEFENSE COUNSEL: Judge, he was young. I didn't think particularly he would be a strong juror for my case by looking at him. "THE COURT: And why was that? "DEFENSE COUNSEL: Because I look at the way he fits into the persons that are on the panel. And what I'm trying to accomplish from the look of him, from the way he sat -"THE COURT: Well, how did he look from the way he was sitting that made you feel he was not good, other than the fact he was white and young? "DEFENSE COUNSEL: Well, he -- number one, most of the jurors would look at my client and look over at the table. He was just like sitting there not relating to anything in the room. "THE COURT: Because he wasn't relating to your client? "DEFENSE COUNSEL: Not relating to anything or anyone in the room. Frankly, I don't think [he] even wanted to be here. "THE COURT: I don't think satisfactory explanation either." Juror 137 "THE COURT: Why? that's a

"DEFENSE COUNSEL: Oh why? He was -- I don't have anything written on here.

- 5 "THE COURT: Let the record reflect he was a young white male in a navy blazer and khaki slacks. "DEFENSE COUNSEL: I believe he was -- I remember him, Judge, and . . . we say he was unacceptable. "THE COURT: And [why] was that? * * * "DEFENSE manner. COUNSEL: His clothing, wrong with his his

"THE COURT: What was clothing and his manner?

"DEFENSE COUNSEL: Well, his manner and his clothing suggest to me . . . that he wouldn't be able to relate to my client because in this particular case there are -- there is the police officer's word against my client's word. My client may very well testify. And because of those things -"THE COURT: Well, how do his clothing have anything to do with it? I don't make the connection. "DEFENSE COUNSEL: The clothing, Judge, means when you go to Brooks Brothers and buy a suit, and maybe not the suit -"THE COURT: The people who go to Brooks Brothers are more likely to believe police than defendants; is that what you're saying? "DEFENSE COUNSEL: Not necessarily so. But given the little information I have about them, I must make judgments about these individuals. "THE COURT: Well, what -- well, all right. That's right. So what information did you have . . . that required you to strike him? "DEFENSE COUNSEL: . . . [H]e's a student. We don't know what he's studying --

- 6 "THE COURT: Well, we could have asked him. "DEFENSE COUNSEL: Well, some courts don't let you bring them up and ask them. "THE COURT: "DEFENSE studious. But you didn't ask. He seems what if rather he's

COUNSEL:

"THE COURT: Well, so studious? He's 21 years old. "DEFENSE COUNSEL: of education. "THE COURT: Right. Right.

He has 16 years

"DEFENSE COUNSEL: college. "THE COURT:

That means he's done his

Right. . . . But for those

"DEFENSE COUNSEL: reasons, Judge, -"THE COURT:

That's an unacceptable reason. Those are my reasons.

"DEFENSE COUNSEL:

"THE COURT: I mean, that's no reason at all. You're just citing his biography and saying those are reasons. "DEFENSE COUNSEL: I have nothing else. Is the Court saying I can't strike him at all because -"THE COURT: The Court is saying you have to, when you have struck seven jurors, potential jurors, . . . and they are all white and they all have different profiles, you're going to have to come up with a satisfactory explanation that persuades me that your reason for striking him was not racial. I mean, that's what the case law is saying. "DEFENSE COUNSEL: I know, Judge. But I haven't said anything to you now that would

- 7 suggest that Nothing. the reasons were racial.

"THE COURT: Well, I'm not quite sure. . . . When you say that someone comes in a navy blazer and khaki slacks, and because he's a student and because of his address that's a reason for striking him -"DEFENSE COUNSEL: I said I don't know anything about his address because I don't know the address. But, Judge, that could have been a black man. Are we saying that black men don't wear blazers and khaki pants? "THE COURT: All right. That's -- I don't buy that as a satisfactory explanation. "DEFENSE COUNSEL: Very well."

With regard to the final juror struck, Juror Number 155, defense counsel was unable to recall her reasons for exercising the peremptory challenge. The court found that "that's not a

satisfactory reason at all."

In summation, the court said,

"She [defense counsel] did give satisfactory reasons for [the two jurors] who are victims. "On the other hand, the other people she's struck, all of them are white, none of them have particular profiles. She hasn't seemed to come up with adequate answers." The court excused the entire jury pool, including those members of the jury already chosen, and started jury selection anew with an entirely different pool of potential jurors. A second jury

was chosen, and defense counsel answered affirmatively when the court asked if it was acceptable. The defendant was convicted of

- 8 both charges by the second jury, and the court sentenced him to serve five years imprisonment for each conviction, the terms to run concurrently. Gilchrist took an appeal to the Court of Special Appeals, which affirmed. (1993). Gilchrist v. State, 97 Md. App. 55, 627 A.2d 44

His principal argument was that the Batson holding was to peremptory challenges against white potential

inapplicable jurors.

The defendant argued, alternatively, that even if Batson

were applicable, the trial court erred in determining that the prosecution had made a prima facie showing of discrimination. State both disagreed with the defendant's contentions The and,

alternatively, argued that any error which may have occurred was not preserved for appellate review because defense counsel waived her objections to the first jury panel when she stated that the second jury panel was acceptable to the defendant. Moreover,

according to the State, any error that the trial court may have committed was harmless because the remedy for a violation would have been a new trial, which is essentially what the defendant received when the trial court impaneled the second jury. The Court of Special Appeals held that the Batson issue was not waived by defense counsel's acceptance of the second jury. Nonetheless, the intermediate appellate court held that Batson was applicable to peremptory strikes exercised against white

prospective jurors.

The appellate court went on to hold that the

- 9 trial court did not err in finding that a prima facie case of discrimination had been established and that the reasons offered by defense counsel were unsatisfactory. Furthermore, the Court of

Special Appeals determined that the trial court ordered the proper remedy when it dismissed the first jury pool and started jury selection anew. The defendant petitioned this Court for a writ of

certiorari, raising essentially the same issues which he had raised in the intermediate appellate court. The State filed a conditional

cross-petition for a writ of certiorari, reiterating its contention that the Batson issue was waived when the defense counsel stated that the second jury was acceptable. 332 Md. 741, 633 A.2d 102 (1993). II. As a threshold matter, we consider the State's contention that the defendant waived or abandoned his objection to discharging the first jury pool when his counsel unequivocally stated that the jury chosen from the second pool was "acceptable." This Court in a series of cases has taken the position that a defendant's claim of error in the inclusion or exclusion of a prospective juror or jurors "is ordinarily abandoned when the defendant or his counsel indicates satisfaction with the jury at the conclusion of the jury selection process." Mills v. State, 310 We granted both petitions,

Md. 33, 40, 527 A.2d 3, 6 (1987), vacated on other grounds, 486

- 10 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988). See Foster v.

State, 304 Md. 439, 450-451, 499 A.2d 1236, 1241-1242 (1985), reconsideration denied, 305 Md. 306, 503 A.2d 1326, cert. denied, 478 U.S. 1010, 106 S.Ct. 3310, 92 L.Ed.2d 723 (1986); Thomas v. State, 301 Md. 294, 310, 483 A.2d 6, 14 (1984), cert. denied, 470 U.S. 1088, 105 S.Ct. 1856, 85 L.Ed.2d 153 (1985); White v. State, 300 Md. 719, 729-731, 481 A.2d 201, 205-207 (1984), cert. denied, 470 U.S. 1062, 105 S.Ct. 1779, 84 L.Ed.2d 837 (1985); Calhoun v. State, 297 Md. 563, 579-580, 468 A.2d 45, 52 (1983), cert. denied, 466 U.S. 993, 104 S.Ct. 2374, 80 L.Ed.2d 846 (1984); Couser v. State, 282 Md. 125, 129, 383 A.2d 389, 391, cert. denied, 439 U.S. 852, 99 S.Ct. 158, 58 L.Ed.2d 156 (1978); Glover, Robinson & Gilmore v. State, 273 Md. 448, 330 A.2d 201 (1975); Neusbaum v. State, 156 Md. 149, 143 A. 872 (1928). The principle set forth in the above-cited cases, however, relates to a complaint about the exclusion of a prospective juror from, or the inclusion of a prospective juror in, the jury which tried the defendant. None of these cases involved the situation

where there were two separate jury pools, where the complaint related to the tentative jury panel drawn from the first pool, and where the jury which heard the case was drawn from the second pool. When a party complains about the exclusion of someone from or the inclusion of someone in a particular jury, and thereafter states without qualification that the same jury as ultimately

- 11 chosen is satisfactory or acceptable, the party is clearly waiving or abandoning the earlier complaint about that jury. The party's

final position is directly inconsistent with his or her earlier complaint. Nevertheless, where the objection was not directly "aimed at the composition of the jury ultimately selected," we have taken the position that the objecting party's "approval of the jury as ultimately selected . . . did not explicitly or implicitly waive his previously asserted . . . [objection, and his] objection was preserved for appellate review." at 130, 383 A.2d at 392. In the case at bar, when Gilchrist's attorney said that the second jury panel was "acceptable," her statement related only to the second jury panel. Having no objections to the manner in which Couser v. State, supra, 282 Md.

the second jury was selected and to the composition of the second jury is not inconsistent with the complaints relating to the first jury. We agree with the Court of Special Appeals that defense

counsel's finding the second jury panel acceptable "has no bearing on whether . . . error occurred in dismissing the first panel." Md.App. at 71, 627 A.2d at 52. III. The defendant contends that white persons do not constitute "a cognizable racial group" within the meaning of that phrase as used by the Supreme Court in Batson v. Kentucky, supra, 476 U.S. at 97

- 12 96, 106 S.Ct. at 1723, 90 L.Ed.2d at 87. To be a cognizable racial

group, Gilchrist contends, the group's members must "have been or are currently subjected to discriminatory treatment," U.S. v. Bucci, 839 F.2d 825, 833 (1st Cir.) (holding that Italian-Americans are not a cognizable group for purpose of Batson principle), cert. denied, 488 U.S. 844, 109 S.Ct. 117, 102 L.Ed.2d 91 (1988). He

argues that Batson was intended to serve merely as a remedial measure to address historical discrimination in jury selection. In

particular, he cites the long history of discrimination against African-Americans in jury selection, and concludes that "white persons are not entitled to the application of Batson since they are clearly not a group that has been `subjected to discriminatory treatment.'" (Petitioner's brief at 21).

"The function of the [peremptory] challenge is . . . to eliminate extremes of partiality on both sides, [and] to assure the parties that the jurors before whom they try the case will decide on the basis of the evidence placed before them, and not

otherwise." Swain v. State of Alabama, 380 U.S. 202, 219, 85 S.Ct. 824, 835, 13 L.Ed.2d 759, 772 (1965). Accord: J.E.B. v. Alabama ex

rel. T.B., 114 S.Ct. 1419, 1425-1426 and n. 8, 128 L.Ed.2d 89, 102 and n. 8 (1994); Edmonson v. Leesville Concrete Co., 500 U.S. 614, 620, 111 S.Ct. 2077, 2083, 114 L.Ed.2d 660, 673 (1991); Vaccaro v. Caple, 33 Md. App. 413, 416, 365 A.2d 47, 49-50 (1976). Historically, a party has been given wide latitude in making

- 13 peremptory challenges. See Batson v. Kentucky, supra, 476 U.S. at

91, 106 S.Ct. at 1720, 90 L.Ed.2d at 84; Parker v. State, 227 Md. 468, 470, 177 A.2d 426, 427 (1962); Turpin v. State, 55 Md. 462 (1881). The Supreme Court observed in Swain v. State of Alabama,

supra, 380 U.S. at 220, 85 S.Ct. at 836, 13 L.Ed.2d at 772, that "[t]he essential nature of the peremptory challenge is that it is one exercised without a reason stated, without inquiry and without being subject to the court's control. . . . [T]he peremptory permits rejection for a real or imagined partiality that is less easily designated or demonstrable" than that required for a

challenge for cause. The right to exercise peremptory challenges, however, is not absolute.2 The Supreme Court has long recognized that jurors

"should be selected as individuals, on the basis of individual qualifications, and not as members of a race." Cassell v. State of Texas, 339 U.S. 282, 286, 70 S.Ct. 629, 631, 94 L.Ed. 839, 847 (1950) (Reed, J., announcing judgment of the Court). In Swain v.

State of Alabama, supra, 300 U.S. at 203-205, 85 S.Ct. at 826-827, 13 L.Ed.2d at 763-764, the Supreme Court recognized that the

There is no constitutional right to a peremptory challenge. J.E.B. v. Alabama ex rel. T.B., 114 S.Ct. 1419, 1426 n. 7, 128 L.Ed.2d 89, 102 n. 7 (1994); Georgia v. McCollum, 112 S.Ct. 2348, 2358, 120 L.Ed.2d 33, 50 (1992); King v. State Roads Comm'n, 284 Md. 368, 396 A.2d 267 (1979). In Maryland, the right to exercise peremptory challenges in criminal cases is granted by Maryland Code (1974, 1995 Repl. Vol.),

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