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Frederick A. Pollitt v. State of Maryland - No. 9, 1996 Term JURY SELECTION -- A court may not substitute a sworn juror with a new, non-alternate juror without the express consent of all parties.

Circuit Court for Wicomico County Case # 94CR0887

IN THE COURT OF APPEALS OF MARYLAND No. 9 September Term, 1996 ___________________________________

FREDERICK A. POLLITT v. STATE OF MARYLAND

___________________________________ Eldridge Rodowsky Chasanow Karwacki Raker Murphy, Robert C. (retired, specially assigned) JJ. ___________________________________ Opinion by Chasanow, J. ___________________________________ Filed: December 20, 1996

In this case we are called upon to decide whether the Court of Special Appeals erred in holding that when a juror is excused immediately after the jury is sworn with no alternates, the trial judge may sua sponte select a replacement juror without allowing the defendant an additional peremptory challenge. Court of Special Appeals did err, and we reverse. We hold that the

I. In the early morning hours of Christmas day 1994, Petitioner, Frederick Pollitt, went to his mother-in-law's house to visit his estranged wife. An argument erupted outside the house between Although there

Petitioner and his wife's escort, Mr. John Donoway.

is a dispute as to how the argument began, both men agree that Donoway knocked Petitioner to the ground and that the men were wrestling when Petitioner stabbed Donoway with a four-inch pen knife. Petitioner was charged with assault and battery and was tried before a jury in the Circuit Court for Wicomico County. During

jury selection, counsel for both parties exercised their peremptory challenges by striking names from the jury list pursuant to

Maryland Rule 4-313(b)(2).

Twelve jurors were seated after their Counsel for both Neither party had

names were read from the list by the clerk. parties approved of the twelve jurors selected.

requested that alternate jurors be seated because the trial was expected to be short in duration; the jury was, therefore,

-2impanelled without alternate jurors. Immediately after the regular

jury was sworn, and before opening statements, the presiding judge, the Honorable D. William Simpson, became aware that juror number one, Phyllis Ball, had difficulty hearing. The following

conversation took place: "THE COURT: THE JUROR: Would you rather be excused? I guess if it's all right.

THE COURT: Okay. We will excuse you today. There is no objection for counsel selecting another juror? [DEFENSE COUNSEL]: No, Your Honor.

THE COURT: All right. We will go ahead and select one, go on to the next one. *** Go ahead and call her." At this point, the clerk called Marianna Holloway, the next person on the jury list. When Judge Simpson asked Ms. Holloway to

be seated as juror number one, defense counsel asked to approach the bench. The following exchange took place at the bench: "[DEFENSE COUNSEL]: Your Honor, with all due respect, I would move to strike-THE COURT: Why didn't you strike her before?

[DEFENSE COUNSEL]: Because I didn't get to with 4 and 4, Your Honor. Apparently, it was a judgment call on how far we can get with [the prosecutor's] 4 and my 4. THE COURT: No, I am not going to permit that. You said all right to the selection of the jury. You took your strikes. She took hers. [DEFENSE COUNSEL]: one strike though. I think I am entitled to

-3THE COURT: alternate. Why? We are not picking an

[DEFENSE COUNSEL]: THE COURT:

It is unfair --

Why is it unfair?

[DEFENSE COUNSEL]: Just because we picked one that wasn't considered. I thought for fairness sake, we should each have one strike. THE COURT: No, I don't think so. *** right. Now, swear in Miss Holloway." All

The jury convicted Petitioner of battery, and he was sentenced to serve five years imprisonment, with all but eighteen months

suspended, and 36 months probation thereafter. Petitioner appealed to the Court of Special Appeals, where he sought to have his conviction reversed. arguments in the Court of Special Appeals. Petitioner advanced two His first argument was

that he was deprived of his right to informed and comparative rejection as to Ms. Holloway.1 Defense counsel argued that he

might have preserved one of his peremptory challenges in order to strike Ms. Holloway, rather than one of the jurors whom he did strike, if he had known that the clerk would be able to reach Ms. Holloway's name on the jury list. Petitioner's second argument was

that the selection of Ms. Holloway was effectively the selection of an alternate juror. Additional peremptory challenges are available

when alternate jurors are selected, and Petitioner argued that he Petitioner also asked the Court of Special Appeals to determine whether the circuit court erred in denying his motion to dismiss for failure to initiate trial within 180 days. That issue is not before this Court.
1

-4did not agree to select another juror without any additional challenges. The intermediate appellate court held that Petitioner was not denied the advantage of comparative rejection as to Ms. Holloway and that the selection of Ms. Holloway was not effectively the selection of an alternate juror. affirmed Petitioner's conviction. The Court of Special Appeals We granted Petitioner's request

for a writ of certiorari and, for reasons we shall explain below, we reverse the judgment of the Court of Special Appeals.

II. Juror Ball's hearing impairment did not become evident until immediately after the jury had been sworn. The court removed juror

Ball sua sponte, with the consent of both parties, as soon as it became aware of her disability. court's authority to remove Petitioner does not dispute the Ball. Petitioner argues,

juror

however, that once the court resolved to remove juror Ball, it had only two choices: to declare a mistrial pursuant to Article 27,

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