Pietruszewski v. State

245 Md.App. 292

226 A.3d 779

Bruce Edward PIETRUSZEWSKI

v.STATE of Maryland

No. 209, Sept. Term, 2018

Court of Special Appeals of Maryland.

April 7, 2020

Submitted by: Krystal Erin Quinlan (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for Appellant.

Submitted by: Sara Page Pritzlaff (Brian E. Frosh, Attorney General, on the brief), Baltimore, MD, for Appellee.

Panel: Meredith, Reed, Sharer, J. Frederick (Senior Judge, Specially Assigned) JJ.

Meredith, J.

A jury in the Circuit Court for Baltimore County convicted Bruce Edward Pietruszewski, appellant, of committing an early morning robbery, but acquitted him of committing an assault and carrying a dangerous weapon openly with intent to injure. Pietruszewski was sentenced to a total of fifteen years, with all but eight years suspended. He presents the following issues for our review:

1. Did the trial court err in prohibiting "striking from the box" during jury selection?

2. Did the trial court err in permitting the prosecutor to make improper comments during closing argument?

Although we agree with the assertion that the trial court erred in failing to apply Maryland Rule 4-313(b)(3) —which provides that a party "may exercise any remaining peremptory challenges to which the party is entitled at any time before the jury is sworn[,]" up to the time "the first alternate is called"—we conclude that Pietruszewski was not prejudiced by the ruling because he utilized and fully exhausted his allotted peremptory challenges before the twelfth juror was seated in the box, and he failed to proffer how he might have used his challenges in a different manner if the trial judge had not prohibited him from striking jurors after they had been seated in the jury box. In the absence of any facts in the record that support a claim that Pietruszewski's exercise of peremptory challenges would have been any different if the court had not erred by precluding striking from the box, we are persuaded that the trial court's error was harmless in this case. With respect to the prosecutor's closing argument, we conclude that the trial court did not err in overruling the one objection that was lodged, and we decline to conduct plain error review of the arguments as to which no objection was made during trial. Consequently, we will affirm the judgment of the circuit court.

BACKGROUND

Shortly before 5:00 a.m. on Saturday, April 22, 2017, graduate student Brianna Doyle was walking home after working through the night at a fast food restaurant on York Road in Cockeysville. Ms. Doyle had traveled past two shopping centers when she noticed a man walking behind her. He wore a dark beanie covering his hair, but she was able to observe that he was "white," "[m]uch taller" and "thinner" than her, with "a really prominent chin" and "a slender face." He kept his hands in the pockets of his baggy sweatshirt.

Although Ms. Doyle initially concluded the man was not a threat, the man approached her from behind and said: "[W]e're past the cameras." "Give me your purse." Feeling "terrified," Ms. Doyle nevertheless asked if she could "just give" him her money "because [she] didn't want to go through the hassle of trying to replace everything." When the man agreed, she gave him her cash, which totaled a little less than $60. He turned and walked away in the opposite direction.

Fearing that the robber would return to attack her if she made a distress call, Ms. Doyle texted her mother "come and get me," and then ran the remaining few blocks to her home. Outside their residence, her mother, Bobbi Jo Goodwill, met Ms. Doyle in Ms. Goodwill's vehicle, and, after hearing about the robbery, began to drive to a police station.

As the two headed toward a police station to file a police report, Ms. Doyle saw the robber near an apartment complex, "wearing the same clothes[,]" "[w]alking the same[,]" and "on the phone talking." She had "no doubt" that he was her assailant. While Ms. Doyle called 911, Ms. Goodwill "pulled up like right next to him." Ms. Doyle overheard the man say: "Where you at? I got the bread. Come on. Where you at?"

Ms. Goodwill got out of her vehicle to confront the robber, angrily asking him: "[D]id you just rob my daughter?" The two "were right in front of each other[,]" so close that she later described their proximity by saying: "[Y]ou could put a piece of paper between [our] noses." The man then reached down to retrieve "something silver." He "turned around and made [a] stabbing motion towards her chest," then dropped the item and ran.

Ms. Goodwill picked up a screwdriver that she believed was the silver item, and she got back in her car. Ms. Doyle reported the robbery to the 911 personnel. When police officers responded, Ms. Goodwill gave them the screwdriver. Although police and a K-9 officer located a possible suspect in the area, when Ms. Doyle and Ms. Goodwill came to the location to look at that person, both women agreed that he was not the robber.

Three days later, when officers came to Ms. Goodwill's apartment to present a photo array, she selected appellant's photo, recognizing his "distinctive" chin. Viewing the same array independently later that day, Ms. Doyle also identified appellant's photo as that of the robber.

At trial, appellant presented testimony from his former girlfriend and his father in support of mistaken identity and alibi defenses. Both witnesses testified that, on the night of the robbery, appellant was with them, sleeping in the same hotel room where the father had been living and the three of them had been staying.

During cross-examination, Pietruszewski's father admitted that he did not bring to court any receipts or records regarding that hotel stay. Nor did the father ever contact the police or prosecutor's office to report the information regarding appellant's whereabouts at the time of the robbery even though that could have been exculpatory. In addition, the State established that the hotel was located "just a couple blocks from" the restaurant where Ms. Doyle worked, which was within walking distance of the spot where the robbery occurred.

DISCUSSION

I. Peremptory Strikes

Pietruszewski contends that "the trial court erred in prohibiting ‘striking from the box’ during jury selection." He argues: "This arbitrary limitation on jury selection violated [his] right to due process as well as Maryland Rule 4-313 and impaired the use of his peremptory challenges."

The State counters: (1) that Pietruszewski did not preserve his due process challenge; (2) that the court properly exercised its discretion to control jury selection under Rule 4-313(b) ; and (3) that, in any event, the defense was not prejudiced by any error.

A. Standards Governing Peremptory Challenges

"The right of both the defendant and the Government to challenge prospective jurors without assigning any reason is an ancient one, dating back, in England, to the Thirteenth Century." Booze v. State , 347 Md. 51, 59, 698 A.2d 1087 (1997). "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." Spencer v. State , 20 Md. App. 201, 203, 314 A.2d 727 (1974).

Although not guaranteed under the United States Constitution, see Gilchrist v. State , 340 Md. 606, 620 n.2, 667 A.2d 876 (1995), or the Maryland Declaration of Rights, see Whitney v. State , 158 Md. App. 519, 531, 857 A.2d 625 (2004), the right to exercise peremptory challenges is protected under Maryland law because such strikes "play a ‘vital role’ in ‘insuring’ that ‘an impartial jury is chosen.’ " Collini v. State , 227 Md. App. 94, 101, 132 A.3d 397 (2016) (quoting King v. State Roads Comm'n of State Highway Admin. , 284 Md. 368, 370, 396 A.2d 267 (1979) ). Parties have "wide latitude in making peremptory challenges," which they may exercise for any reason that does not discriminate on the basis of race, gender, or ethnicity. See Gilchrist , 340 Md. at 619, 667 A.2d 876 ; Brice v. State , 264 Md. 352, 366, 286 A.2d 132 (1972) ; Collini , 227 Md. App. at 101-02, 132 A.3d 397. Cf. Ray-Simmons v. State , 446 Md. 429, 435, 132 A.3d 275 (2016) (" Batson [v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) ] and its progeny instruct that the exercise of peremptory challenges on the basis of race, gender, or ethnicity violates the Equal Protection Clause of the Fourteenth Amendment. Excusing a juror on any of those bases violates both the defendant's right to a fair trial and the potential juror's ‘right not to be excluded on an impermissible discriminatory basis.’ Edmonds v. State , 372 Md. 314, 329, 812 A.2d 1034 (2002)." (footnote omitted)).

In Gilchrist , 340 Md. at 619, 667 A.2d 876, the Court of Appeals said:

"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).

Indeed, peremptory challenges "permit[ ] a party to eliminate a prospective juror with personal traits or predilections that, although not challengeable for cause, will, in the opinion of the litigant, impel that individual to decide the case on a basis other than the evidence presented." King , 284 Md. at 370, 396 A.2d 267. See Collini , 227 Md. App. at 101-02, 132 A.3d 397.

Although "the function of peremptory challenges is to reject rather than to select jurors[,]" rules governing their use reflect "the belief that the parties should have the right to exercise their rejections intelligently and strategically[....