Torres v. State

1

JESUS TORRES, PERSONAL REPRESENTATIVE OF THE ESTATE OF JACY BRICE TORRES PONCE v. STATE OF MARYLAND

No. 1501-2022

Court of Special Appeals of Maryland

January 23, 2024

UNREPORTED ^[*]

Circuit Court for St. Mary's County Case No. C-18-CR-22-000110

Leahy, Beachley, Wilner, Alan M. (Senior Judge, Specially Assigned), JJ.

OPINION

BEACHLEY, J.

Jacy Brice Torres Ponce was convicted by a jury in the Circuit Court for St. Mary's County of second-degree rape, and sentenced to 20 years' imprisonment, with all but 18 months suspended, and five years' supervised probation. Mr. Torres Ponce noted this timely appeal, presenting the following question for our review:

Did the [c]ircuit [c]ourt violate the [a]ppellant's right to an impartial jury under Article 21 of the Maryland Constitution, Declaration of Rights, and Maryland law, when it permitted the State to use five peremptory strikes during the jury selection process to remove all seated petit jurors intentionally and systematically under the age of 25?

After submission of his appellate brief, Mr. Torres Ponce died. We subsequently substituted Jesus Torres, Personal Representative of the Estate of Jacy Brice Torres Ponce, as appellant. We shall affirm the judgment of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

Because the facts underlying the criminal case against Mr. Torres Ponce^[1] are not pertinent to this appeal, we shall provide only a brief summary. Mr. Torres Ponce was charged with four counts of second-degree rape. The main issue at trial concerned whether the sexual encounter between appellant and the victim was consensual. At the time of trial, Mr. Torres Ponce was 21 years old, and the victim was 30 or 31 years old.

The sole issue on appeal is the State's use of peremptory challenges during jury selection. After the State used four of its five peremptory challenges on individuals under age 25, appellant's counsel objected. Counsel argued that the State was exhibiting a "discriminatory pattern" of striking young jurors, thus depriving appellant of "a jury of his peers" and a fair trial. Defense counsel asked that the trial court find "that this is a discriminatory practice[,]" and preclude the State from striking the fourth juror.^[2] Furthermore, counsel made clear that, if the State used a peremptory strike on another juror under 25 years old, he would move for a mistrial.

The prosecutor confirmed that she was using age as a factor in determining how to use her peremptory strikes, but indicated that her primary concern was that those jurors did not have enough life experience as adults to serve as jurors in such a serious case, where consent was the principal issue to be decided by the jury. She explained that she was considering multiple factors, "such as jobs, schooling and everything else, and their age to determine if they have enough common sense and experience that will be asked of them when getting the jury instructions." After the State used its final peremptory challenge on a juror under age 25, defense counsel again objected and moved for a mistrial.

The trial court overruled the objections, but reserved on the mistrial motion, asking that counsel use the lunch break to research the issue. The following colloquy occurred after the lunch break:

[DEFENSE COUNSEL]: . . . I was able to do some research here and in terms of a Batson^[3] challenge, if this was going to be one, I would have to have the burden of proving that there was a prima facie discriminatory intent by the State in terms of her basically doing a blanket statement of age, that all young people don't have the experience to sit in on a sex offense trial, which is what I think the State had indicated. And, for the record, I do think that is a discriminatory intent.

Having said that, the law is pretty clear Batson only covers protected classes and age is not, under the (indiscernible[]) where he makes that pretty clear that it isn't. You can discriminate against any 37 year old you want for any reason. And, so, therefore it can't be a Batson challenge.

The [c]ourt would have to find there's purposeful discrimination. And I just, for the record, I will make it clear I think it was, but I think she's allowed to discriminate on the basis of age. So, therefore, I don't have a motion to make at this time and I don't think I have grounds for a mistrial unless Your Honor thinks I do.

THE COURT: So, [defense counsel], just so that we can clear the record, are you withdrawing your request for a mistrial at this time?

[DEFENSE COUNSEL]: I don't know. I mean, you know, the lawyers I'm talking to are, like, well, you know, if the State makes a statement blanket just saying this is what I do, whatever, you should -- what they're telling me I should do, I guess, I don't know whether I'm doing it or not. I'm thinking it through. But is, have the [c]ourt make the finding that that was a blanket discriminatory statement for purposes, I don't think there's any -- I don't think Your Honor has a -- I don't think Your Honor has a -- you certainly have no basis for a mistrial or for any type of a Batson challenge. It's not.

So the only question is, is whether or not this [c]ourt, Your Honor, deems that it's inappropriate to go forward by just striking anyone for age, but there's case law indicating you can do that. So, I guess, in a perfect world I would just like the finding that there was a discriminatory intent, which is, again, I'm not saying anything bad, you know, whatever, I get it. But to one attorney says I can strike all old people, so how is that going to be a problem. I get it. Right? But at the same time I don't have a basis to request a mistrial.

THE COURT: I appreciate that. [State], do you have anything in response?

[THE STATE]: No. I think the record is -

THE COURT: I have also looked at the case law on this as well as our law clerk over the course of our break. I agree with you, [defense counsel], that this is not the grounds for a Batson challenge. That the Batson challenge seems to be limited to the issues of race and gender.

I think what I was interpreting your argument as is being more of a Sixth Amendment argument, a right to an impartial jury argument, but I looked into that as well. I've looked at the cases of Bridges vs. State,^[4] Stanley vs. State,^[5] Spencer vs. State^[6] and, in fact, as you indicated there is language contained within those cases that say, that is, age is a classic basis for peremptory challenge for both prosecutors and defense attorneys.

It's not as straight forward in the Sixth Amendment claim, but even the Stanley vs. State case indicated that in that case it may not have been so much of a Batson challenge as a Sixth Amendment challenge and the argument in regards to age in that case was also not upheld at our Appellate level. They basically said, as you indicated, that age is a sufficiently (indiscernible[]) which to exercise peremptory challenges.

While it may leave a feeling of, you know, uncomfortableness with us, I don't think it rises to something that would allow for us to declare a mistrial, and, there, I will not be declaring a mistrial in this case.

(Emphasis added).

The jury found Mr. Torres Ponce guilty of one count of second-degree rape, and not guilty of the remaining three counts. The court sentenced appellant to 20 years' imprisonment, with all but 18 months suspended. Appellant then noted this timely appeal.

DISCUSSION

Appellant argues that the State's use of peremptory challenges based on the age of the prospective jurors denied him the right to "trial by an impartial jury" under Article 21 of the Maryland Declaration of Rights. Appellant asserts that "the right to an impartial jury under Article 21 prohibits the State's intentional and systematic exclusion of a cognizable group of jurors," i.e., jurors under 25 years old.

The State responds that appellant waived this argument before the trial court by withdrawing his motion for mistrial. "Ordinarily, an appellate court will not decide any . issue [other than one relating to jurisdiction] unless it plainly appears by the record to have been raised in or decided by the trial court[.]" Rule 8-131(a). When a party withdraws a motion, the withdrawal "constitutes a waiver precluding appellate review." Carroll v. State, 202 Md.App. 487, 514 (2011), aff'd, 428 Md. 679 (2012). Specifically, the State argues that appellant's counsel withdrew his motion for mistrial by stating: "I don't think I have grounds for a mistrial unless Your Honor thinks I do," "I don't think Your Honor has a -- you certainly have no basis for a mistrial or for any type of a Batson challenge," and "I don't have a basis to request a mistrial." Although the State presents a compelling argument that the issue is unpreserved, we note that, even after appellant's counsel made these comments, the trial court nonetheless discussed the issue as though the motion for mistrial was still being pursued. Accordingly, the issue was one "decided by the trial court." Rule 8-131(a). The State further argues that "the trial court did not decide any claim under Article 21, because no claim under Article 21 was presented to it." Although it is true that Article 21 was never expressly mentioned, the court relied on cases that construed the interplay between the Sixth Amendment and Article 21. We therefore reject the State's lack of preservation argument.

On the merits, the State asserts that Bridges v. State, 116 Md.App. 113 (1997), "is effectively dispositive of this appeal." We agree. In Bridges, we considered the "claim that a peremptory challenge based on age somehow violates the Maryland Constitution[,]" specifically the right to "trial by an impartial jury" set forth in Article 21 of the Maryland...