Pietruszewski v. State

226 A.3d 779, 245 Md. App. 292

• Court: Court of Special Appeals of Maryland
• Decided: April 7, 2020
• Docket: 0209/18
• Status: Published

Opinion

Bruce Edward Pietruszewski v. State of Maryland No. 209 September Term, 2018 Opinion by Meredith, J.

CRIMINAL PROCEDURE – JURY TRIALS – PEREMPTORY CHALLENGES TO POTENTIAL JUROR – RIGHT OF COUNSEL IN CRIMINAL CASES TO STRIKE JURORS AFTER THE JUROR HAS BEEN CONDITIONALLY ACCEPTED AND SEATED IN THE JURY BOX. Maryland Rule 4-313(b) describes two alternative procedures for exercising peremptory challenges to strike prospective jurors. If no request is made to the contrary, each party shall exercise its challenges simultaneously by striking names from a copy of the jury list. But, at the request of any party, the court shall employ a procedure of “alternating challenges,” pursuant to which qualified venire persons are called forward one at a time, and each party states whether the juror is challenged or accepted, alternating which party announces its position first. Rule 4-313(b)(3) further provides that, when the alternating challenges procedure has been utilized, then, after the required number of qualified jurors has been called, a party who has any remaining peremptory challenges may strike jurors from the box up until the time the first alternate is called or the jury is sworn. A trial court’s refusal to permit counsel to strike jurors from the box pursuant to Rule 4-313(b)(3) is an error that is reviewed pursuant to the harmless error standard.

CRIMINAL PROCEDURE – JURY TRIALS – CLOSING ARGUMENT OF PROSECUTOR – SHIFTING BURDEN OF PROOF – COMMENT ON CREDIBILITY OF WITNESSES CALLED BY THE DEFENDANT. A prosecutor’s closing argument may not draw the jury’s attention to the failure of the defendant to call witnesses or produce evidence; such an argument impermissibly shifts the burden of proof. But, in a case in which the defendant has called witnesses, the prosecutor is permitted to attack the credibility of witnesses called by the defense, and an argument suggesting that the testimony of a witness for the defense lacks credibility because it was not supported by documents that the testimony suggested would have been reasonably available does not violate the rule against shifting the burden of proof. Circuit Court for Baltimore County Case No. 3-K-17-002504

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 209

September Term, 2018

______________________________________

BRUCE EDWARD PIETRUSZEWSKI

v.

STATE OF MARYLAND

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

JJ. ______________________________________

Opinions by Meredith, J.

Filed: April 7, 2020

Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic.

Suzanne Johnson 2020-04-07 10:49-04:00

Suzanne C. Johnson, Clerk 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[,]”

2 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.

3 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 (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 (1974).

4 Although not guaranteed under the United States Constitution, see Gilchrist v. State,

340 Md. 606, 620 n.2 (1995), or the Maryland Declaration of Rights, see Whitney v. State,

158 Md. App. 518, 531 (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 (2016) (quoting King v. State

Roads Comm’n of State Highway Admin., 284 Md. 368, 370 (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; Brice v. State, 264 Md. 352, 366 (1972); Collini, 227 Md. App. at 101-02. Cf. Ray-

Simmons v. State, 446 Md. 429, 435 (2016) (“Batson [v. Kentucky, 476 U.S. 79 (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, 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).

5 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. See Collini, 227 Md. App. at 101-02.

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[.]” Booze, 347 Md. at 69. As this

Court has recognized, “there is at least some element of indirect selection inexorably at

work in the very process of elimination. The right to reject need not be exercised in the

dark, but is . . . a right of informed and comparative rejection.” Spencer, 20 Md. App. at

208.

“[I]n light of the importance of the peremptory challenge, it is not surprising that

this State, since at least 1797, has . . . established orderly procedures to guarantee that

litigants have a full opportunity to utilize the right.” King, 284 Md. at 370-71 (citation and

footnote omitted). Implementing those protections, Maryland Rules 4-312 and 4-313

govern peremptory strikes in a criminal case.

Under Rule 4-312(f), after conducting voir dire questioning and addressing

challenges for cause, the trial judge must designate a list of qualified venire persons from

whom a jury can be called:

(f) Peremptory challenges. Before the exercise of peremptory challenges, the trial judge shall designate those individuals on the jury list who remain qualified after examination. The number designated shall be sufficient to provide the required number of sworn jurors, including any alternates, after allowing for the exercise of peremptory challenges pursuant to Rule 4-313.

6 The judge shall at the same time prescribe the order to be followed in selecting individuals from the list [i.e., beginning at the top of the list or beginning from the end of the list].

Rule 4-313(a) specifies the number of peremptory strikes allotted for each party,

both as to jurors and alternates. Subsection (a)(4) of Rule 4-313 also stipulates: “The

additional peremptory challenges [allotted for alternate jurors] may be used only against

alternate jurors, and other peremptory challenges allowed by this section may not be used

against alternate jurors.”

Rule 4-313(b)—which is the focus of this appeal—addresses the manner in which

peremptory challenges may be exercised. Subsections (b)(1) and (b)(2) of Rule 4-313

provide two alternative procedures for exercising peremptory strikes in criminal cases.

Subsection (b)(1) provides that, upon the request of any party, the clerk will call each

prospective juror individually, and each party will indicate whether that juror is

“challenged or accepted,” alternating which party must speak first with respect to each

prospective juror. Professor Byron L. Warnken comments in his treatise: “This system is

almost always used.” 2 BYRON L. WARNKEN, MARYLAND CRIMINAL PROCEDURE 24-1017

(2013).

In contrast, subsection (b)(2) provides that “each party shall exercise its challenges

simultaneously” (and, traditionally, privately) from the list of qualified venire persons. The

procedure described in subsection (b)(2) is comparable to the procedure applicable to all

civil jury trials pursuant to Maryland Rule 2-512(e)(2), and is the default procedure that

applies in criminal cases “[i]f no request is made for alternating challenges.” Nevertheless,

7 Professor Warnken observes that, in criminal cases, “[t]his system is almost never used.”

WARNKEN, supra, at 24-1017.

The source of controversy in the present case arises from the provision in subsection

(b)(3) of Rule 4-313 relative to the exercise of “any remaining peremptory challenges.”

Rule 4-313(b) provides:

(b) Exercise of Challenges.

(1) By alternating challenges. On request of any party for alternating challenges, the clerk shall call each qualified juror individually in the order previously designated by the court. When the first qualified juror is called, the State shall indicate first whether that qualified juror is challenged or accepted. When the second qualified juror is called, the defendant shall indicate first whether that qualified juror is challenged or accepted. When the third qualified juror is called, the State shall again indicate first whether that qualified juror is challenged or accepted, and the selection of a jury shall continue with challenges being exercised alternately in this fashion until the jury has been selected.

(2) By simultaneous striking from a list. If no request is made for alternating challenges, each party shall exercise its challenges simultaneously by striking names from a copy of the jury list.

(3) Remaining challenges. After the required number of qualified jurors has been called, a party may exercise any remaining peremptory challenges to which the party is entitled at any time before the jury is sworn, except that no challenge to the first 12 qualified jurors shall be permitted after the first alternate juror is called.

(Emphasis added.)

When the correct number of qualified jurors has been provisionally selected in

accordance with these rules, the trial court generally asks counsel whether the jury is

acceptable as assembled. Grievances about both the jury selection process and the jury as

constituted should be asserted before the jury is sworn because failure to do so may

8 preclude appellate review. See, e.g., Chew v. State, 317 Md. 233, 237 n.3 (1997)

(“Maryland Rule 4–313(b)(3) provides that a peremptory challenge may be made at any

time before the jury is sworn.”); Parker v. State, 72 Md. App. 610, 618 (1987) (“It is well

settled in Maryland that an appellant waives any objection he may have to the jury

impaneled if he fails to state his objection to, and expresses satisfaction with, the panel

prior to the jury being sworn.”). But cf. Cousar v. State, 282 Md. 125, 130 (1978) (Cousar’s

objection to “the court’s refusal to permit inspection or discovery of the prosecutor’s jury

dossier” was preserved because it “was only indirectly aimed at the composition of the jury

ultimately selected.”).

B. Jury Selection in This Case

Before beginning jury selection, the trial judge informed counsel that she did not

intend to allow “striking from the box,” prompting a preliminary objection from defense

counsel, as reflected in the following colloquy:

THE COURT: All right. I, I typically conduct juror questioning or voir dire where the parties are required to strike jurors that, or exercise their peremptory challenges right at the well, without having jurors come up to the jury box. And [defense counsel], my understanding or at least I was told that you are going to refuse to do that?

[DEFENSE COUNSEL]: No. If the Judge, if you order to me, you’re saying, [“]you cannot do that,[”] then obviously yes, I will do it. Um, but –

THE COURT: You mean, I cannot do what?

[DEFENSE COUNSEL]: No. If you tell me, [“defense counsel], you cannot strike from the box,[”] I will not do that. But it’s our position that, that there is, that we can use our peremptory strikes in any way that we choose, whether it be at the well or in [the] box.

9 THE COURT: Okay. But, but is it your position that the Court does not have the authority to specify the way in which you’re going to utilize your peremptory challenges?

[DEFENSE COUNSEL]: Yes. That’s –

THE COURT: Okay. Can you cite that authority for me please?

[DEFENSE COUNSEL]: Um, I’m just. I’m not aware of anything in the rule that gives the Court that authority.

THE COURT: Of anything in the rule that gives me that authority?

[DEFENSE COUNSEL]: Right.

THE COURT: Are, are you aware of anything, any case law or any rule that would prohibit me from doing it that way?

[DEFENSE COUNSEL]: I’m not aware of any case law or any --

THE COURT: Nor am I sir. So, here’s what we’re going to do. When the trial is finished you’re going, you’re going to submit to the Court a Memorandum of Law with, including any authority that you can find for that proposition, and I’ll be happy to consider it in a future trials [sic]. I, if, if there’s authority that says that I, I can’t have you strike from the well I won’t do that anymore.

[DEFENSE COUNSEL]: I could tell the Court that I have researched that issue, and I have not found a case.

THE COURT: Well, I’m going, I’m ordering you to research it again and submit a Memorandum of Law.

[DEFENSE COUNSEL]: After the trial?

THE COURT: Okay.

10 After completing voir dire questioning, the court compiled a list of individuals

qualified to serve on the jury, in accordance with Rule 4-312(f). The judge then explained

the process she intended to use for peremptory challenges as follows:

THE COURT: All right. For the remaining jurors, what we’re going to do is when we call your number I want [you] to come up to the well of the courtroom and the attorneys may or may not strike you. If you’re not stricken and you come up here into the jury box that means that you are selected as a juror. All right. We’ll start with Juror #4.

Jury selection proceeded as described. Alternating between prosecution and defense

for each qualified juror called to the well, the court asked, “Is the prospective juror

acceptable[?]” When an individual was accepted by both sides, the trial judge immediately

instructed that juror to take a seat in the jury box.

Before the twelfth qualified juror was seated, defense counsel had used all four

peremptory strikes allotted by rule in a case of this nature. See Rule 4-313(a). Once the

State accepted the twelfth qualified juror, the court, without pause or comment, proceeded

to call for peremptory challenges against alternates, as follows:

THE COURT: 129. Is the prospective juror acceptable to the State?

[PROSECUTOR]: Acceptable to the State.

THE CLERK: Please take the next seat in the second row. 165. Is the prospective alternate acceptable to the Defense?

[DEFENSE COUNSEL]: Respectfully move to excuse.

11 Defense counsel exercised peremptory strikes against the first two prospective

alternate jurors called to the well, exhausting the defendant’s allotment of peremptory

strikes against alternates. After two alternates were seated, the judge excused the

remaining members of the venire and called for the jury to be sworn, at which point defense

counsel lodged an objection:

THE COURT: All right. The two gentlemen who are left, you can go back to the Jury Assembly Room. Thank you for participating in the process. When you’re ready madam clerk, please swear the jury.

THE CLERK: Would all prospective jurors – all jurors –

[DEFENSE COUNSEL]: I’m sorry, I’m sorry. Your Honor, may we approach?

THE CLERK: I’m sorry.

THE COURT: Okay. (BENCH CONFERENCE BEGINS) . . .

[DEFENSE COUNSEL]: Your Honor, I’m going to object to –

THE COURT: I’m sorry, I can’t, I can’t –

[DEFENSE COUNSEL]: I’m going to object to the seating of this jury based on the, the ruling on the peremptory strikes.

THE COURT: Okay. And again, do you have legal authority for that?

[DEFENSE COUNSEL]: No, ma’am.

THE COURT: Okay. Well, you’re going to do a Memorandum of Law for me and submit it. And if, if you don’t find any legal authority then say that in your memorandum.

After Pietruszewski was convicted, defense counsel filed a motion for a new trial

on the ground that the trial court “inappropriately restricted the Defendant’s use of

12 peremptory challenges to ‘strike from the box.’” In support of the motion for new trial,

defense counsel argued for the first time that “Maryland Rule 4-313(b)(3) squarely

addresses the issue” by providing that, “[a]fter the required number of qualified jurors has

been called, a party may exercise any remaining peremptory challenges to which the party

is entitled at any time before the jury is sworn, except that no challenge to the first 12

qualified jurors shall be permitted after the first alternate juror is called.” As construed by

defense counsel, this rule provides that, “[a]fter the 12 jurors are seated ‘in the box,’ a party

is entitled at any time to use its remaining challenges, so long as it is done before the jury

is sworn[,]” but counsel acknowledged that he still “could not find case law directly

construing a defendant’s right to strike from the box[.]” Nevertheless, counsel argued,

“such a right is at least referred to in Chew v. State, 317 Md. 233, 237 (1989) (footnote 3

in the text).”

The trial court denied the motion without a hearing. This timely appeal followed.

In his brief, Pietruszewski asserts two reasons why the trial court erred in refusing

to permit him to strike jurors after they had been seated in the box: (1) the court “violated

Appellant’s right to due process,” and (2) the court violated “Maryland Rule 4-313 and

impaired the use of peremptory challenges.” We conclude that neither argument supports

reversal in this case.

C. Due Process Claim

The State argues that Pietruszewski’s due process claim “should be rejected because

he failed to make any argument to support it[.]”

13 We agree that a due process challenge is not preserved. As the excerpts of the trial

transcript show, when defense counsel was asked to state the legal basis for his objection

to the peremptory challenge procedure described by the trial judge, counsel never

mentioned due process or otherwise asserted constitutional grounds for his position. Due

process was not argued to the trial court either before the jury was selected or in the motion

for a new trial. Counsel did not even cite Rule 4-313(b) until he filed his motion for new

trial, and he advised the court that his research had not yielded any appellate precedent to

support his position. Counsel conceded in the memorandum supporting his motion for new

trial that “[t]he provision and use of peremptory challenges are not provided under the

United States Constitution or under the Md. Decl. of Rights. Whitney v. State, 158 Md.

App. 519, 531 (2004).”

Under Maryland Rule 8-131(a),

[w]e usually elect to review an unpreserved issue only after it has been thoroughly briefed and argued, and where a decision would (1) help correct a recurring error, (2) provide guidance when there is likely to be a new trial, or (3) offer assistance if there is a subsequent collateral attack on the conviction.

Conyers v. State, 354 Md. 132, 151 (1999). Because this limitation on appellate review is

particularly important for constitutional claims, “precedents recognize that constitutional

issues raised for the first time on appeal, and not raised in the trial court, are not

automatically entitled to consideration on the merits under Maryland Rule 8–131(a).”

Hartman v. State, 452 Md. 279, 300 (2017). See also State v. Raithel, 285 Md. 478, 484

(1979) (“nothing is better settled than the principle that courts should not decide

14 constitutional issues unnecessarily”). Consequently, we will limit our review to whether

the trial court committed reversible error in failing to apply Rule 4-313(b)(3).

D. Rule 4-313(b) Claim

Pietruszewski contends that the trial court erred when, instead of proceeding by a

commonly-used jury selection method that permits attorneys to “strike from the box after

jurors have taken a seat in the box, the court” imposed a “one and done” procedure that

prevented him from exercising peremptory strikes after qualified jurors were seated in the

box. In Pietruszewski’s view, the trial court’s method of impaneling the jury “impaired”

his “exercise of his peremptory challenges” by “violat[ing] the mandate of Maryland Rule

4-313(b)(3)” that such strikes may be “exercise[d] at any time before the jury is sworn”

(up until the time the first alternate juror is called). Pietruszewski further argues:

“Alternatively, the trial court’s refusal to allow [him] to ‘strike from the box’ is an abuse

of the trial court’s discretion because the trial court failed to exercise any discretion” when

it applied “a hard and fast rule” “for no reason other than that is what it always does[.]”

The State responds that “[t]he practice of ‘striking from the box’ is a permitted, but

not a required, method of exercising peremptory strikes under Maryland common law[,]”

because Rule 4-313(b) does not expressly “require trial courts to permit ‘striking from the

box.’” The State asserts: “Indeed, the Rule itself, in subsection (b)(2), permits the

procedure whereby the parties simultaneously strike names from identical copies of the

jury list[,]” so that “the parties exercise all of their peremptory challenges from the jury list

and there are no challenges from the jury box.” Moreover, the State continues, the trial

court’s adoption of a standard procedure for the exercise of peremptory challenges “does

15 not suggest that the judge thereby failed to exercise her discretion.” Cf. Holland v. State,

122 Md. App. 532, 547 (1998) (“That an experienced and veteran judge may fall into

predictable and identifiable sentencing habits and patterns does not mean that that judge

has thereby failed to exercise discretion.”). On this last point, we agree with the State that

the record does not support a claim that the judge failed to exercise discretion when

required to do so.

But we disagree with the State’s assertion that Rule 4-313(b) does not require the

trial court to permit striking from the box, at least when a party has requested that the court

utilize the alternating challenges procedure described in Rule 4-313(b)(1). Indeed,

subsection (b)(3) of Rule 4-313 would have no rational application under any

circumstances unless it gives parties the right to strike from the box when any party has

requested alternating challenges pursuant to Rule 4-313(b)(1) and either or both of the

parties have unused strikes remaining “[a]fter the required number of qualified jurors has

been called.” 1

In construing Rule 4-313, we place primary emphasis upon the plain meaning of its

language. See Lisy Corp. v. McCormick & Co., Inc., 445 Md. 213, 221 (2015) (“ʻ[T]he

principles applied to statutory interpretation are also used to interpret the Maryland Rules.

Like construing a statute, to ascertain the meaning of a . . . rule of procedure we first look

1 Although the issue of whether a party might exercise any unused peremptory challenges to strike jurors from the box after the procedure described in subsection (b)(2) of Rule 4-313 has been utilized to seat twelve jurors is not before us in this case, we observe that the plain language of Rule 4-313(b)(2) seems to us to preclude a second round of strikes because that subsection mandates that each party “shall exercise its challenges simultaneously by striking names from a copy of the jury list.” (Emphasis added.)

16 to the normal, plain meaning of the language. If that language is clear and unambiguous,

we need not look beyond the provision’s terms to inform our analysis; . . . .ʼ” (quoting

Duckett v. Riley, 428 Md. 471, 476 (2012)); Brown v. Daniel Realty Co., 409 Md. 565,

584-85 (2009) (“[W]e reiterate that, when interpreting the Maryland Rules, we ordinarily

employ the rules of statutory construction. A cardinal principle in that regard states that if

the language of a rule is clear and unambiguous, it will be applied thusly in a common-

sense manner.” (citations omitted)); Booze, 347 Md. at 58, (“we shall decide this case under

the plain wording of [the Rule]”).

As both Pietruszewski and the State acknowledge, striking from the box is a “long-

standing” practice in Maryland. The Court of Appeals described the typical process in

Gilchrist, 340 Md. at 611:

After the roll of prospective jurors was called, voir dire commenced, the attorneys made their 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 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.

A similar selection process was described in detail in Chew, 317 Md. at 237

(recounting that, “[w]hen twelve persons were in the box, the parties were afforded an

additional opportunity to announce a peremptory challenge” (footnotes omitted)). Other

17 references to striking from the box appear in: Ray-Simmons, 446 Md. at 452 (“After the

box had been filled with 12 jurors, counsel for each party proceeded to strike jurors from

the box, presumably to substitute the next member of the remaining venire as a preferable

juror.”); Whittemore v. State, 151 Md. 309, 317 (1926) (“[T]he argument on appeal has

taken the broader ground of a denial of the propriety of any peremptory challenges of jurors

accepted and seated in the box for swearing. This practice has been followed in Baltimore

City for many years, as a literal application of the common law rule that jurors may be

challenged up to the time of swearing.”). This method of exercising peremptory challenges

affords parties an opportunity for comparative selection, complements the optional

procedure for alternating strikes under Rule 4-313(b)(1), and ensures the parties’ right to

exercise strikes “at any time before the jury is sworn” under Rule 4-313(b)(3) by allowing

backstrikes against qualified jurors who have already been accepted and tentatively seated.

See generally 47 Am. Jur. 2d Jury § 205 (“‘Backstriking’ refers to a party’s right to retract

the party’s acceptance and object to a juror at any time before that juror is sworn.”). See

generally C.J. Williams, Proposing a Peremptory Methodology for Exercising Peremptory

Strikes, 54 Am. Crim. L. Rev. 277, 287-97 (2017) (describing various alternative methods

of jury selection).

As the transcript excerpts quoted above show, the dispute in this case is not over the

trial court’s mandate that peremptory strikes must initially be exercised from the well, but

over whether defense counsel could exercise any peremptory strikes after jurors were

seated in the box.

18 Although, in our view, Rule 4-313(b)(3) clearly gives a party the right to exercise

unused strikes after jurors have been seated in the jury box (but not sworn), up to the time

“the first alternate is called,” Pietruszewski did not bring this rule to the attention of the

trial judge before the jury was sworn in his case. On the contrary, when he asserted that he

wanted to reserve the right to exercise strikes after jurors were seated in the box, the court

asked him: “[A]re you aware of anything, any case law or any rule that would prohibit me

from doing it that way [that is, not permitting striking from the box]?” Counsel replied:

“I’m not aware of any case law or any --.” The court stated: “Nor am I sir.” Not helping

his position, defense counsel then volunteered: “I could tell the Court that I have researched

that issue, and I have not found a case.”

Having conceded that he knew of no authority that required the court to permit

parties to strike jurors from the box, defense counsel exhausted all of his peremptory

challenges before a twelfth juror was ever seated in the box. And he did nothing further to

make a record of how the court’s ruling in any way resulted in prejudice to the defendant.

He did not renew his request to strike from the box while he still had any strikes remaining.

Nor did he raise a challenge to the first twelve jurors before the court called and seated the

first and second alternate jurors.

And, when counsel thereafter asserted that he was “going to object to the seating of

this jury based on the, the ruling on the peremptory strikes,” the court asked, “again, do

you have any legal authority for that?” The answer was again: “No ma’am.” Counsel

made no proffer at that time regarding specific jurors that he would have challenged, or

might have challenged, after they had taken a seat in the box, and counsel made no proffer

19 that he would have deferred challenging any of the jurors on whom he exhausted his

peremptory strikes if the trial judge had given him the option of striking from the box. Nor

has Pietruszewski ever asserted that there was any juror who served on his jury whom he

wished he could have challenged after the first twelve jurors were seated in the box.

Under these circumstances, we are unable to conclude that Pietruszewski was in any

way prejudiced by the trial court’s error in failing to comply with Rule 4-313(b)(3). As it

turned out, Pietruszewski did not have any “remaining peremptory challenges” to exercise

pursuant to Rule 4-313(b)(3) by the time the twelfth juror was seated in the box. But

counsel never made any proffer on the record that he would have exercised his allotted

peremptory challenges in any different manner if the court had agreed that he could strike

from the box. We conclude that the record does not support a finding that the court

committed prejudicial error by failing to recognize the parties’ right to exercise strikes

pursuant to Rule 4-313(b)(3) after jurors were seated in the box.

We acknowledge that, as recently as our decision in 2016 in Collini, 227 Md. App.

at 105, we quoted Whitney, 158 Md. App. at 532, for the proposition that “ʻthe denial or

impairment of the right to exercise peremptory strikes is reversible error without a showing

of prejudice.’” But we are not persuaded that Pietruszewski’s right to exercise all of his

peremptory strikes was impaired in this case, and it certainly was not “denied.”

In Whitney, we reviewed the denial of post-conviction relief in a case in which the

trial judge had granted the defendant only four challenges rather than the ten to which he

was entitled under the rules. Because the trial court in that case denied Whitney the

opportunity to exercise six challenges to which he was entitled, we observed (although it

20 was not our holding in the case): “We are confident that, had the trial court, over counsel’s

objection, abridged Whitney’s right to the full number of peremptory challenges, we

would likely reverse and grant a new trial.” 158 Md. App. at 533 (bold emphasis added,

italics in original). But we also commented that “the impairment or dilution of a

litigant’s peremptory strikes does not rise to the level of presumptive error or

structural defect. Such errors or defects are limited in scope and application.” Id. at 537

(emphasis added). In the post-conviction posture of Whitney, we concluded that Whitney

was “not entitled to reversal per se on structural defect grounds” even though he had been

denied the opportunity to exercise six of his ten allotted challenges, id. at 539, and we held:

“[O]n this record, we perceive no prejudice resulting from counsel’s mistake that was

shown to have resulted in an impairment of Whitney’s right to a fair and impartial jury.

Even with a jury [presumably and after the fact] not entirely in line with [Whitney’s]

preferences, the trial was not unreliable or fundamentally unfair.” Id. (Internal quotation

marks and citations omitted; alterations added in Whitney.) See also WARNKEN, supra, at

24-1017 (“Impairment of the exercise of peremptory challenges is not a structural defect

and, therefore, it is subject to the harmless error rule.” (citing Whitney, 158 Md. App. at

537)).

But, unlike the trial court’s error in Whitney, and the similar error that was held

reversible in Walker v. State, 224 Md. App. 659 (2015) (where the trial court granted the

defendant only four strikes instead of the ten to which he was entitled), Pietruszewski was

not denied the full number of peremptory strikes to which he was entitled. And he took

advantage of, and exhausted, all challenges that he was entitled to exercise. Consequently,

21 the trial court’s error did not reduce or limit the number of peremptory challenges

Pietruszewski could exercise. In a case such as this, where the trial court’s failure to fully

comply with the procedural requirements of Rule 4-313 does not impair the number of

challenges a party is able to exercise, we will not find reversible error in the absence of any

hint of prejudice that was caused by the error. We conclude that the trial court’s error was

harmless in this case.

II. Closing Argument

Pietruszewski argues that, during closing argument, “[t]he trial court erred in

permitting the prosecutor to make improper comments” that asserted facts not in evidence

and shifted the burden of proof. This assignment of error stems from the portion of the

State’s argument highlighted below:

And they [Ms. Doyle and Ms. Goodwill] pick out this defendant’s picture. And they don’t just pick it out [“]oh, maybe this is him. I’m not sure.[”] The detective told you. He testified that when he watched them come to his picture both women had physical reactions. Brianna started shaking. Bobbi Jo got so upset at seeing his picture that she actually had to, they had to take a break for a second. This wasn’t a [“]I’m not sure, maybe it’s him.[”] You don’t get those kind of reactions unless you know that’s the person that just robbed you and just assaulted you. So, we know who did it. They knew who did it right away. Defense counsel wants to talk about a screwdriver and DNA and phone records and fingerprints. This isn’t CSI. We’re not in a movie. We’re not in a TV show. Those are investigative tools when you don’t know who did something. But we know who did it. We have two women who were face to face with this person, with no reason to lie tell you that this is the man who did it. It’s a red herring. And I mean, in regard to fingerprints. Well, Bobbi Jo told you she picked up that screwdriver. She had her hands all over it, and then gave it to the officer, who then had her hands all over it. Phone records. You’ve got to have a phone. You’ve got to have a phone on ya. The officers have to recover a phone to get those phone records. There was no phone by the time he was found. And today the defendant parades in his girlfriend and his dad in front of you to tell you, [“]oh, it couldn’t have

22 been him. He was at a, a motel with us.[”] They provide you with no dates. No details. No hotel records. Nothing.

[DEFENSE COUNSEL]: Objection.

THE COURT: Overruled.

[PROSECUTOR]: They never went and talked to the police. They never contacted the State’s Attorney’s Office. They came here today and told you that [“]this is the wrong man. They arrested the wrong man.[”] But did they ever tell the police that? Did they ever tell anybody that in the last ten months? Did they ever say any of that to anybody? No. They just came in here today and said, [“]oh, yeah, yeah, he was at a motel.[”] A motel, which as we, as we heard is close to the Taco Bell that Brianna works at. Close to, right off of Cranbrook, where this all happened. The juror or the Judge . . . told you and she read to you the jury instruction about credibility of witnesses. You get to use your common sense to decide who you want to believe. If you want to believe the defendant’s dad and his girlfriend with every reason in the world you know, to come in and do anything they can to make sure that their boyfriend and their son doesn’t get in trouble. Or you can listen to Brianna and Bobbi Jo. Two women who have no, no reason to make up this story. No reason to pick this man out other than the fact that he did it. . . .

(Emphasis added.)2

In Pietruszewski’s view, the highlighted argument constituted both improper

comment on facts not in evidence and improper burden shifting, the cumulative effect of

which was to deprive him of his right to a fair trial. He concedes that his objection raised

only the burden-shifting argument, but he asks this Court to review the other remarks under

the doctrine of plain error.

2 Although the State asserts that the challenged remarks were “made by the prosecutor in rebuttal closing argument,” the transcript shows that they occurred during the State’s initial closing argument.

23 The State responds that the claim of burden shifting “is unfounded,” and that the

other “comments did not constitute error, much less plain error.” We agree there is no

basis for appellate relief.

A. Standards Governing Closing Argument

We review a trial court’s allowance of allegedly improper remarks by a prosecutor

under an abuse of discretion standard. See Whack v. State, 433 Md. 728, 742 (2013). This

Court recently summarized principles and precedent governing appellate review of closing

argument as follows in Winston v. State, 235 Md. App. 540, 572-73, cert. denied sub nom.

Mayhew v. State, 458 Md. 593 (2018):

“A trial court is in the best position to evaluate the propriety of a closing argument[.]” Ingram v. State, 427 Md. 717, 726 (2012) (citing Mitchell v. State, 408 Md. 368, 380-81 (2009)). Therefore, we shall not disturb the ruling at trial “unless there has been an abuse of discretion likely to have injured the complaining party.” Grandison v. State, 341 Md. 175, 243 (1995) (citing Henry v. State, 324 Md. 204, 231 (1991). Trial courts have broad discretion in determining the propriety of closing arguments. See Shelton v. State, 207 Md. App. 363, 386 (2012).

“[A]ttorneys are afforded great leeway in presenting closing arguments[.]” Degren v. State, 352 Md. 400, 429 (1999). “‘The prosecutor is allowed liberal freedom of speech and may make any comment that is warranted by the evidence or inferences reasonably drawn therefrom.’” Id. at 429-30. “Generally, counsel has the right to make any comment or argument that is warranted by the evidence proved or inferences therefrom; the prosecuting attorney is as free to comment legitimately and to speak fully, although harshly, on the accused’s action and conduct if the evidence supports his comments, as is [the] accused’s counsel to comment on the nature of the evidence and the character of witnesses which the (prosecution) produces.” Wilhelm v. State, 272 Md. [404, 412 (1974)]; accord Degren v. State, 352 Md. at 430.

While arguments of counsel are required to be confined to the issues in the cases on trial, the evidence and fair and reasonable deductions therefrom, and to arguments [of]

24 opposing counsel, generally speaking, liberal freedom of speech should be allowed. There are no hard-and-fast limitations within which the argument of earnest counsel must be confined – no well-defined bounds beyond which the eloquence of an advocate shall not soar. He may discuss the facts proved or admitted in the pleadings, assess the conduct of the parties, and attack the credibility of witnesses. He may indulge in oratorical conceit or flourish and in illustrations and metaphorical allusions.

Wilhelm v. State, 272 Md. at 413; accord Degren v. State, 352 Md. at 430.

Even when a prosecutor’s remark is improper, it will typically merit reversal only “‘where it appears that the remarks of the prosecutor actually misled the jury or were likely to have misled or influenced the jury to the prejudice of the accused.’” Lawson v. State, 389 Md. 570, 592 (2005) (quoting Spain v. State, 386 Md. 145, 158-59 (2005)).

B. Burden-Shifting

“Maryland prosecutors, in closing argument, may not routinely draw the jury’s

attention to the failure of the defendant to call witnesses, because the argument shifts the

burden of proof.” Wise v. State, 132 Md. App. 127, 148 (2000). As the excerpt of the

prosecutor’s argument quoted above shows, the prosecutor drew the jury’s attention to the

limited credibility of the two defense witnesses who both had a motive to lie for the

defendant and who failed to bring to court any receipts or other records that could have

improved the credibility of their testimony: “They provide you with no dates. No details.

No hotel records. Nothing.” We shall assume that defense counsel’s general objection

operated to preserve the burden-shifting challenge to that portion of the prosecutor’s

argument.

25 In addition to this preserved objection, Pietruszewski claims that the prosecutor also

made an improper, albeit unchallenged, burden-shifting argument, after his single

objection, when she stated:

They [i.e., the father and girlfriend of defendant] never went and talked to the police. They never contacted the State’s Attorney’s Office. They came here today and told you [“]this is the wrong man. They arrested the wrong man.[”] But did they ever tell the police that? Did they ever tell anybody that in the last ten months? Did they ever say any of that to anybody? No. They just came in here today and said, [“]oh, yeah, yeah, he was at a motel.[”]

Pietruszewski concedes that he did not object to these latter remarks, but contends

that, by highlighting for the jury evidence that the defense did not present, the prosecutor

made an improper argument which was prohibited by the principle that a criminal

defendant is under no obligation to prove his innocence, even when he relies upon an alibi

defense. See Robinson v. State, 20 Md. App. 450, 459 (1974). For support, Pietruszewski

relies on cases holding that it was “impermissible” for a prosecutor to comment on the

failure of the defense to call certain witnesses because “it effectively shifted the burden to

[the defendant] to call witnesses, a burden [the defendant] did not have.” Woodland v.

State, 62 Md. App. 503, 515 (1985). Although “[t]his Court has approved of prosecutors

calling attention to the failure of defendants to come forward with evidence that they

promised to produce in opening statements,” Wise, 132 Md. App. at 146 (citing Eastman

v. State, 47 Md. App. 162, 167 (1980), and Eley v. State, 288 Md. 548 (1980)),

Pietruszewski argues that “that did not happen in this case,” because this argument was not

responding to his opening statement.

26 The State responds that the prosecutor’s argument “was a proper attempt to discredit

the defense witnesses who testified and to discredit Pietruszewski’s alibi, not a shifting of

the burden of proof.” In support, the State cites Simms v. State, 194 Md. App. 285, 320-21

(2010), aff’d on other grounds, 420 Md. 705 (2011), where this Court distinguished

between permissible and impermissible argument regarding an alibi defense, as follows:

Where a defendant testifies to an alibi and calls no additional witnesses to support it, the prosecution, by commenting on the nonproduction of corroborating alibi witnesses, is merely pointing out the weakness in defendant’s case. When, however, the defendant produces no testimony to support an alibi, the prosecutor, by commenting on the nonproduction of alibi witnesses, is not exposing a weakness in defendant’s case, but is rather improperly shifting the burden of proof to the defendant.

Id. (citation omitted).

We agree with the State that the challenged argument in this case merely pointed

out the weakness in the credibility of Pietruszewski’s alibi witnesses, including the lack of

corroborating evidence that their testimony suggested would have been reasonably

available. The prosecutor’s references—both to the lack of any documentation and to the

witnesses’ delay in coming forward with exculpatory information before trial—were

directed at the credibility of the testimony that was given by the witnesses. In contrast to

Lawson, 389 Md. at 595, where the State improperly suggested to the jury that the defense

was obligated to produce evidence showing why the State’s witness might lie, in this

instance, the State did not err in challenging the credibility of evidence that was presented

by the defense. Consequently, we agree with the State’s assertion that this portion of the

prosecutor’s argument was “a proper attempt to discredit the defense witnesses who

testified and to discredit Pietruszewski’s alibi, not a shifting of the burden of proof.”

27 C. Facts Not In Evidence

Pietruszewski also complains (although he did not object during the trial) that the

prosecutor improperly commented on facts not in evidence by “invit[ing] the jury to draw

inferences from information that was not admitted at trial.” See Spain, 386 Md. at 156. He

cites the following three portions of the argument:

• “Defense counsel wants to talk about a screwdriver and DNA and phone records and fingerprints. This isn’t CSI. We’re not in a movie. We’re not in a TV show. Those are investigative tools when you don’t know who did something. But we know who did it.”

• “And I mean, in regard to the fingerprints. Well, Bobbi Jo told you she picked up that screwdriver. She had her hands all over it, and then gave it to the officer, who then had her hands all over it.”

• “Phone records. You’ve got to have a phone. . . . There was no phone by the time he was found.”

Conceding that he failed to object to any of these comments, Pietruszewski asks for

plain error relief. He contends that the cumulative effect of the “multiple improper

statements” amounts to a “compelling, extraordinary, exceptional or fundamental” reason

to remedy improper argument that “went to the very heart of [his] constitutional rights[.]”

The State responds that “[n]one of the comments constitute error, much less plain

error,” because “[t]he prosecutor simply pointed out the common sense notion that

fingerprinting, DNA, and phone records are important when the perpetrator is unknown,”

but not when he has “been identified by two witnesses who were face to face with him.”

Furthermore, the State asserts that the prosecutor’s closing argument was “drawing on the

cross-examination of Detective John Lorenz, who testified that he did not think that it was

necessary to request a DNA analysis of the screwdriver in this case.”

28 “Plain error is ‘error which vitally affects a defendant’s right to a fair and impartial

trial.’” Richmond v. State, 330 Md. 223, 236 (1993) (citation and quotation marks omitted).

Although “[t]here is no fixed formula for the determination of whether discretion should

be exercised” to consider an unpreserved argument, we reserve plain error relief “for errors

that are ‘compelling, extraordinary, exceptional or fundamental to assure the defendant a

fair trial.’” Yates v. State, 429 Md. 112, 130-31 (2012) (citation omitted). An appellate

court’s “exercise of discretion to engage in plain error review is ‘rare.’” Id. at 131. Accord

Morris v. State, 153 Md. App. 480, 507 (2003) (Granting plain error review “1) always has

been, 2) still is, and 3) will continue to be a rare, rare phenomenon.”).

Appellant’s claim of prejudicial error is not persuasive, and not so compelling as to

merit plain error review. The closing argument that Pietruszewski now challenges despite

his failure to object at trial included suggested inferences the prosecutor urged the jury to

draw from facts that were in evidence, including testimony that the screwdriver was

handled by both Bobbi Jo Goodwill and the responding police officer, that the lead

detective decided not to request DNA analysis of the screwdriver, that both victims

unhesitatingly identified Pietruszewski in photo arrays, and that the police did not recover

a phone when they arrested Pietruszewski days after the robbery. Under the circumstances,

we are not moved to grant the extraordinary remedy of considering objections that were

not raised during trial.

JUDGMENT OF THE CIRCUIT COURT FOR BALITMORE COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.