State v. Gorman

554 A.2d 1203, 315 Md. 402, 1989 Md. LEXIS 43

• Court: Court of Appeals of Maryland
• Decided: March 27, 1989
• Docket: 147, September Term, 1987
• Status: Published

Opinions

CHARLES E. ORTH, Jr. (Ret.), Specially Assigned, Judge.

This appeal is concerned with the peremptory challenge, “ ‘one of the most important of the rights’ ” in our justice system. Swain v. Alabama, 380 U.S. 202, 219, 85 S.Ct. 824, 835, 13 L.Ed.2d 759 (1965), quoting Pointer v. United States, 151 U.S. 396, 408, 14 S.Ct. 410, 414, 38 L.Ed. 208 (1894). See Batson v. Kentucky, 476 U.S. 79, 121, 106 S.Ct. 1712, 1735, 90 L.Ed.2d 69 (1986) (Burger, C.J., dissenting). Specifically, we are called upon to determine whether the prosecution’s use of peremptory challenges in empaneling a petit jury in a criminal cause was constitutionally offensive.¹

I

Robert William Gorman, a white man, was found guilty by a jury in the Circuit Court for Harford County of robbery with a deadly weapon and related offenses. At the selection of the jury, the prosecution, by the use of peremptory challenges, struck the only two black persons from the panel. Gorman was sentenced as a repeat offender to life imprisonment without parole. The judgments were affirmed by the Court of Special Appeals. Gorman v. State, No. 897, September Term, 1985, filed 11 March 1986, unreported (Gorman I). This Court denied Gorman’s petition for a writ of certiorari and denied his motion for reconsideration.

Gorman looked to the Supreme Court of the United States by way of a petition for a writ of certiorari, and his petition was granted. That Court vacated the judgment of the Court of Special Appeals and “remanded the case to [that court] for further consideration in light of Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987).” Gorman v. Maryland, 480 U.S. 913, 107 S.Ct. 1363, 94 L.Ed.2d 680 (1987). Thereupon, the Court of Special Appeals reversed the judgments of the Circuit Court for Harford County, and remanded the case for a new trial. Gorman v. State, No. 897, September Term, 1985 (on •remand) filed 17 July 1987, unreported (Gorman II). It explained its decision merely by noting that in Gorman I it had affirmed the judgments of the trial court upon reliance on Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759. But, it observed, Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 had overruled Swain, and, under Griffith v. Kentucky, 479 U.S. 314 [107 S.Ct. 708], Batson governed Gorman I. Gorman II, slip opinion at 1. “[H]enee,” it conceded, “our reliance on Swain turns out to be erroneous.” Id. The intermediate appellate court opined, “On the basis of Batson, Griffith, and [its own opinion in] Chew v. State, [71] Md.App. [681, 527 A.2d 332, cert. granted, 311 Md. 301, 534 A.2d 369 (1987), which looked to Batson ], the judgments must be reversed, and the matter remanded for a new trial.” Gorman II, slip opinion at 1-2. The Court of Special Appeals denied the State’s motion for reconsideration. We granted the State’s petition and Gorman’s conditional cross-petition for writs of certiorari.

II

In providing for jury trial in criminal causes, Maryland, in general, adheres to the common law system of trial by an impartial jury of 12 persons who must unanimously agree on a verdict. See Maryland Rules 4-811(b) and 4-827(a); State v. McKay, 280 Md. 558, 375 A.2d 228 (1977). This system comports with the Sixth Amendment to the Constitution of the United States² and with Article 21 of the Maryland Declaration of Rights.³ See Swain v. Alabama, 380 U.S. at 211, 85 S.Ct. at 831; Maryland Rule 4-311(a).

In the empaneling of a petit jury the system provides, not only for challenges for cause, but for peremptory challenges. Md.Rule 4-313. “The peremptory challenge has been in use without scrutiny into its basis for nearly as long as juries have existed.” Batson, 476 U.S. at 119, 106 S.Ct. at 1734 (Burger, C.J., dissenting). It was a venerable fixture at the common law and crossed the sea to become one of the most important of the rights in our federal and state systems. Swain, 380 U.S. at 212-219, 85 S.Ct. at 831-835. Although the federal and Maryland Constitutions do not confer a right to peremptory challenges, “those challenges traditionally have been viewed as one means of assuring the selection of a qualified and unbiased jury.” Batson 476 U.S. at 91, 106 S.Ct. at 1720 (citation omitted). In Swain, after tracing the very old credentials of the peremptory challenge, the Court observed: “The persistence of peremptories and their extensive use demonstrate the long and widely held belief that peremptory challenge is a necessary part of trial by jury.” 380 U.S. at 219, 85 S.Ct. at 835. “The denial or impairment of the right is reversible error without a showing of prejudice____” Id. (citations omitted).

Throughout its long history, the description of the challenge as “peremptory” meant precisely what that adjective connoted in common usage — “conclusive or absolute; decisive.” Webster’s New International Dictionary of the English Language 1817 (unabridged 2d ed. 1961). Black’s Law Dictionary 1023 (5th ed. 1979) defines it as: “Imperative; final; decisive; absolute; conclusive; positive; not admitting of question, delay, reconsideration or of any alternative. Self-determined; arbitrary; not requiring any cause to be shown.” Thus, a peremptory challenge is, as Lewis v. United States, 146 U.S. 370, 378, 13 S.Ct. 136, 139, 36 L.Ed. 1011 (1892), indicates Blackstone viewed it: “[AJn arbitrary and capricious right; and it must be exercised with full freedom, or it fails of its full purpose.” The Supreme Court found merit in the position that

[t]his system, ... in and of itself, provides justification for striking any group of otherwise qualified jurors in any given case, whether they be Negroes, Catholics, accountants or those with blue eyes.

Swain, 380 U.S. at 212, 85 S.Ct. at 831. See id. at 219-221, 85 S.Ct. at 835-836.

In the Swain case, the defendant was black. There were only six black men on the final venire, and the prosecution peremptorily struck all six from the petit jury panel. A majority of the Supreme Court,⁴ in light of the nature and function of peremptory challenges, said:

With these considerations in mind, we cannot hold that the striking of Negroes in a particular ease is a denial of equal protection of the laws. In the quest for an impartial and qualified jury, Negro and white, Protestant and Catholic, are alike subject to being challenged without cause. To subject the prosecutor’s challenge in any particular case to the demands and traditional standards of the Equal Protection Clause would entail a radical change in the nature and operation of the challenge. The challenge, pro tanto, would no longer be peremptory, each and every challenge being open to examination, either at the time of the challenge or at a hearing afterwards. The prosecutor’s judgment underlying each challenge would be subject to scrutiny for reasonableness and sincerity. And a great many uses of the challenge would be banned.

Id., 380 U.S. at 221-222, 85 S.Ct. at 836-837. Maryland accepted this concept and applied it. We flatly stated in Brice v. State, 264 Md. 352, 366, 286 A.2d 132 (1972):

In short, the right to exercise the peremptory strike is unfettered and may be exercised by either party for any reason or indeed for no reason. Hunch, passing impression, appearance of the prospective juror, or any other consideration may lead to the exercise of the peremptory challenge and no inquiry may be made in regard to why it is exercised.

In Brice the State used 15 of its peremptory challenges. We declared: “No one may inquire in regard to the reason the State did this.” Id. See Parker v. State, 227 Md. 468, 470, 177 A.2d 426 (1962); Johnson v. State, 9 Md.App. 143, 148-151, 262 A.2d 792 (1970). In the Supreme Court, the rule of Swain remained inviolate for 21 years, reflecting a view that had been embraced for over two centuries. And then came Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, decided 30 April 1986.

Ill

In Batson the Supreme Court reexamined part II of Swain, which concerned peremptory challenges. As we have seen, the Court in Swain had expressly stated that the prosecutor’s challenge in a particular case was not subject to the demands and traditional standards of the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States.⁵ Swain adopted the presumption that in any particular case the prosecutor is using the state’s peremptory challenges to obtain a fair and impartial jury to try the case before the court. Even though the defendant was black, this presumption, the Court opined, is not overcome because all blacks were removed from the jury thereby or that they were removed because they were black. In other words, the presumption was not rebuttable by the exercise of peremptory challenges.

The Court’s reexamination of Swain spawned a spate of opinions by the justices.⁶ The Court did not jettison entirely the concept of peremptory challenges, as Marshall, J., would have it do. 476 U.S. at 102-103, 106 S.Ct. at 1725-1726 (Marshall, J., concurring). But seven of the justices overturned Swain’s principle holding that

the Constitution does not require in any given case a,n inquiry into the prosecutor’s reasons for using his peremptory challenges to strike blacks from the petit jury panel in the criminal trial of a black defendant and that in such a case it will be presumed that the prosecutor is acting for legitimate trial-related reasons.

Batson, 476 U.S. at 100, 106 S.Ct. at 1725 (White, J., concurring). The majority ruled that

such use of peremptory challenges in a given case may, but does not necessarily, raise an inference, which the prosecutor carries the burden of refuting, that his strikes wére based on the belief that no black citizen could be a satisfactory juror or fairly try a black defendant.

Id. at 100-101, 106 S.Ct. at 1725. Initially, the burden is on the defendant to establish a prima facie case. Id. at 93-96, 106 S.Ct. at 1721-1723. “[A] defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor’s exercise of peremptory challenges at the defendant’s trial.” Id. at 96, 106 S.Ct. at 1722-1723. Id. at 100-101, 106 S.Ct. at 1725. As we read this language in context, it appears that what the Supreme Court means by its use of words like “prima facie case” and “inference” is a rebuttable presumption of discriminatory use of peremptory challenges. See Stanley v. State, 313 Md. 50, 60, 542 A.2d 1267, 1272 (1988).

The guidelines by which a criminal defendant can meet the burden of establishing a prima facie case of discrimination are clearly set out. The defendant

1) must show that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race;

2) is entitled to rely on the fact that peremptory challenges constitute a jury selection practice that permits those to discriminate who are of a mind to discriminate;

3) must show that those facts and any other relevant circumstances raise [a rebuttable presumption] that the prosecutor used that practice to exclude veniremen from the petit jury on account of their race.

Batson, 476 U.S. at 96. This combination of factors in the empaneling of the petit jury establishes the requisite rebut-table presumption of purposeful discrimination. The trial judge must determine whether the defendant has made the requisite showing, considering all relevant circumstances. The Court expressed confidence that

trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor’s use of peremptory challenges creates a prima facie case of discrimination against black jurors.

Id. at 97, 106 S.Ct. at 1723. If the trial judge finds that the defendant has failed to establish a prima facie case, there is no obligation on the prosecutor to offer any explanation for the use of a peremptory challenge and no entitlement on the part of the defendant to a hearing on the issue.

Once the trial judge determines that the defendant has made “a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors.” Id. The Court emphasized

that the prosecutor’s explanation need not rise to the level justifying exercise of a challenge for cause. But the prosecutor may not rebut the defendant’s prima facie case of discrimination by stating merely that he challenged jurors of the defendant’s race on the assumption— or his intuitive judgment — that they would be partial to the defendant because of their shared race.

Id. (citations omitted). “Nor may the prosecutor rebut the defendant’s case merely by denying that he had a discriminatory motive or ‘affirm[ing] [his] good faith in making individual selections.’ ” Id. at 98, 106 S.Ct. at 1723, quoting Alexander v. Louisiana, 405 U.S. 625, 632, 92 S.Ct. 1221, 1226, 31 L.Ed.2d 536 (1972).

The prosecutor therefore must articulate a neutral explanation related to the particular case to be tried. The trial court then will have the duty to determine if the defendant has established purposeful discrimination.

Batson, 476 U.S. at 98, 106 S.Ct. at 1723-1724 (footnotes omitted). White, J., in his concurring opinion, summarized the Court’s holding:

[U]sing peremptory challenges to strike blacks does not end the inquiry; it is not unconstitutional, without more, to strike one or more blacks from the jury. The judge may not require the prosecutor to respond at all. If he does, the prosecutor, who in most cases has had a chance to voir dire the prospective jurors, will have an opportunity to give trial-related reasons for his strikes — some satisfactory ground other than the belief that black jurors should not be allowed to judge a black defendant.

Id. at 101-102, 106 S.Ct. at 1725. The majority declined to “formulate particular procedures to be followed upon a defendant’s timely objection to a prosecutor’s challenges.” Id. at 99, 106 S.Ct. at 1724.

IV

The State suggests that, in the case at hand, the matter of the propriety of the peremptory challenges exercised by it were not preserved for appeal inasmuch as Gorman accepted the jury as empaneled. At the time of the trial Batson had not been decided. Nevertheless, without the benefit of that decision, and with Swain and this Court’s Brice, 264 Md. 352, 286 A.2d 132, still in good grace, it seems that Gorman made known to the trial court, as best he could in the circumstances, that he was unhappy with the manner in which the State used its peremptory challenges. He did so at the trial and in a motion for a new trial. The court and the defendant noted that there was a case on the issue pending in the Supreme Court. On direct appeal to the Court of Special Appeals, the first question the defendant presented was:

Did the trial court err in allowing the case to proceed “after the prosecutor used his peremptory challenges to strike ... the black prospective jurors from the panel”?

Gorman I, slip opinion at 1. In any event, even absent any timely objection by Gorman, the Supreme Court in Griffith v. Kentucky, supra, held

that a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a “clear break” with the past.

Id., 479 U.S. at 328, 107 S.Ct. at 716, 93 L.Ed.2d at 661. As we have seen, in granting Gorman’s petition for certiorari, the Supreme Court remanded the case to the Court of Special Appeals for consideration in light of Griffith. The “new rule”, indeed constituting a clear break with the past, with which Griffith was concerned, was that announced in Batson.7 Gorman’s case was not yet final when Batson was decided, and under the directive on remand, the case was still pending on direct review. Therefore, the Batson decision came into play. See McClain v. State, 288 Md. 456, 464-470, 419 A.2d 369 (1980), and cases therein cited. As we noted in McClain:

[N]o case has led us to refuse to apply a new rule to a case on direct review pending at the time of the formulation of the new rule in which the issue of the new rule was raised.

Id. at 465, 419 A.2d 369. See Potts v. State, 300 Md. 567, 577, 479 A.2d 1335 (1984). It follows that we decide the case at hand in light of Batson, and must determine whether the new rule announced therein is applicable.

V

The parties agreed that the issues presented in their petition and cross-petition respectively for the issuance of a writ of certiorari be consolidated into three questions:

1) Did the Court of Special Appeals misapply Batson v. Kentucky to the circumstances of this case?

2) Can Gorman assert a Sixth Amendment claim of fair cross-section deprivation in the composition of his jury?

3) Did the Court of Special Appeals err in mandating a new trial?

(1)

(A)

It appears from the opinion in Gorman II that the Court of Special Appeals on remand simply assumed that the new rule of Batson applied to Gorman’s trial. Since the general procedures spelled out in Batson had not been followed at the trial (of course, they could not because they were then not known), the. intermediate appellate court, without further ado, reversed the judgments and granted a new trial. We think that the matter must be probed a little deeper.

Swain and Batson were both decided in the same factual posture — a black defendant aggrieved by the peremptory striking by the State of all the black veniremen from the petit jury which was empaneled to try him. It is abundantly clear from the various Batson opinions that the Supreme Court was speaking only to that circumstance. The opinion of the Court stated:

This case requires us to reexamine that portion of Swain v. Alabama, 380 U.S. 202 [85 S.Ct. 824, 13 L.Ed.2d 759] (1965), concerning the evidentiary burden placed on a criminal defendant who claims that he has been denied equal protection through the State’s use of peremptory challenges to exclude members of his race from the petit jury-

476 U.S. at 82, 106 S.Ct. at 1714 (emphasis added) (footnote omitted). Discussing the constitutional predicate for the new rule the majority said:

[T]he Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State’s case against a black defendant.

Id. at 89, 106 S.Ct. at 1719 (emphasis added).

The Court noted, in overruling Swain, that it had been decided in a black defendant — black juryman frame of reference:

Swain required the Court to decide ... whether a black defendant was denied equal protection by the State’s exercise of peremptory challenges to exclude members of his race from the petit jury.

Id. at 90, 106 S.Ct. at 1719 (emphasis added). To establish a prima facie case of purposeful discrimination

the defendant first must show that he is a member of a cognizable racial group and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race.

Id. at 96, 106 S.Ct. at 1723 (emphasis added) (citation omitted). In short, the entire opinion of the Court is only in terms of black defendant — black juryman or members of the defendant’s race. See also 476 U.S. at 93, 94, 95, 106 S.Ct. at 1721, 1721, 1722.

Opinions filed by the other justices do not go beyond the black defendant — black juryman situation. See the concurring opinion of Justice White, id. at 100, 101, 102, 106 S.Ct. at 1725, 1725, 1725; the concurring opinion of Justice Marshall, id. at 102, 106 S.Ct. at 1725; the concurring opinion of Justice Stevens, joined by Justice Brennan, id. at 108, 106 S.Ct. at 1729; the concurring opinion of Justice O’Connor, id. at 111, 106 S.Ct. at 1731. The dissenting opinion of Chief Justice Burger, joined by Justice Rehnquist, id. at 112, 106 S.Ct. at 1731, and the dissenting opinion of Justice Rehnquist, joined by the Chief Justice, id. at 134, 106 S.Ct. at 1742, do not suggest that the Court intended to reach further at this time.

Batson leaves many significant unresolved issues awash in its wake. See Chew v. State, 71 Md.App. at 703-717, 527 A.2d 332. Justice White, concurring, acknowledged:

Much litigation will be required to spell out the contours of the Court’s equal protection holding today, and the significant effect it will have on the conduct of criminal trials cannot be gainsaid.

Batson, 476 U.S. at 102, 106 S.Ct. at 1725-1726. We have learned that it is not wise to prophesy what the Supreme Court will do or to anticipate how it will rule when an unresolved question comes before it. We are content, as was the Supreme Court, to leave the determination of issues unresolved in Batson to future litigation. It is apparent that what spurred Batson was the Court’s belief “that the practice of peremptorily eliminating blacks from petit juries in cases with black defendants remains widespread____” 476 U.S. at 101, 106 S.Ct. at 1725 (White, J., concurring) (emphasis added). It was this discriminatory practice which the Court addressed and sought to remedy. The venerable concept of the peremptory challenge in other respects was left intact. The majority expressed its recognition “that the peremptory challenge occupies an important position in our trial procedures____” Id. at 98, 106 S.Ct. at 1724. It did “not agree that [its] decision today will undermine the contribution the challenge generally makes to the administration of justice.” Id. at 98-99, 106 S.Ct. at 1724.

We decline to go further than did the Supreme Court. The circumstances here were unlike those in Batson. Here the jurors who were peremptorily struck from the petit jury were black but the defendant was white. The prosecutor did not exercise his peremptory challenges to remove from the venire members of the defendant’s race. Thus Batson’s first requirement for the establishment of a prima facie case of purposeful discrimination in the selection of the petit jury was not met. Batson’s new rule was simply not applicable» to Gorman’s case. Compare, Stanley v. State, 313 Md. 50, 542 A.2d 1267.

We observe that we are unable to conceive of a sound rationalization as to how the peremptory striking of blacks from the petit jury panel would deny a white defendant equal protection of the laws. In any event, the question was not answered in Batson, and we look forward to the final determination of that matter by the Supreme Court when it chooses to address it.

The answer to the first question presented to us is that the Court of Special Appeals did misapply Batson to the circumstances of this case.

(B)

Although the Supreme Court looked to the constitutional guarantee of equal protection of the law in deciding Bat-son, Gorman suggests that the constitutional rights to due process of law were violated by the peremptory challenges here. He suggests that Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972), is “[i]nstructive on this issue.” It is correct that in Peters Justice Marshall, in the opinion announcing the Court’s judgment, and the two members of the Court who joined his opinion, appeared to conclude that a white defendant had standing to challenge racial discrimination against black jurors, grand or petit, and that on the merits, the State’s actions violated the defendant’s due process right to an impartial jury. 407 U.S. at 502-504, 92 S.Ct. at 2168-2169. But Peters did not involve the still recognized peremptory challenges. As Gorman points out, the case was decided on due process grounds because “Peters had been indicated by an illegally composed jury.” We have noted that Batson did not declare peremptory challenges per se unconstitutional. Peters spoke in terms of “[ijllegal and unconstitutional jury selection procedures ...” and of “the exclusion from jury service of a substantial and identifiable class of citizens .... ” 407 U.S. at 502, 92 S.Ct. at 2168. In the light of Batson, the action of the prosecutor here in the exercise of peremptory challenges simply did not evidence such racial discrimination as to amount to a violation of due process as envisioned in Peters.

(2)

Batson was founded solely on the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States. See note 5, supra. The majority of the Court looked to this constitutional right even though Batson expressly refused to raise it, both in the Supreme Court of the United States and the Supreme Court of Kentucky. 476 U.S. at 112, 106 S.Ct. at 1731 (Burger, C.J., dissenting). Batson disclaimed any reliance on the Fourteenth Amendment, pressing instead only a claim based on the Sixth Amendment. Id. at 112-115, 106 S.Ct. at 1731-1733. The majority ignored the Sixth Amendment argument and proceeded to decision under the Fourteenth Amendment, much to the consternation of the Chief Justice. Id. at 113-118, 106 S.Ct. at 1731-1734. It did so without directing the parties, when granting certiorari, to brief the equal protection question in addition to the Sixth Amendment question, nor did the Court, as it sometimes does, direct reargument on the equal protection question following oral argument. Id. at 115-116, 106 S.Ct. at 1732-1733. None of the concurring opinions suggested that peremptory challenges were a Sixth Amendment concern. Justice Marshall said in his concurring opinion:

I wholeheartedly concur in the Court’s conclusion that use of the peremptory challenge to remove blacks from juries, on the basis of their race, violates the Equal Protection Clause.

Id. at 105, 106 S.Ct. at 1727. The Sixth Amendment was referred to in the opinion of the Court in footnote 1 at 82, 106 S.Ct. at 1714:

Following the lead of a number of state courts construing their State’s Constitution, two Federal Courts of Appeals recently have accepted the view that peremptory challenges used to strike black jurors in a particular case may violate the Sixth Amendment.

But in footnote 4 at 84-85, 106 S.Ct. at 1716 the Court said:

In this Court, petitioner has argued that the prosecutor’s conduct violated his rights under the Sixth and Fourteenth Amendments to an impartial jury and to a jury drawn from a cross section of the community. Petitioner has framed his argument in these terms in an apparent effort to avoid inviting the Court directly to reconsider one of its own precedents. On the other hand, the State has insisted that petitioner is claiming a denial of equal protection and that-we must reconsider Swain to find a constitutional violation on this record. We agree with the State that resolution of petitioner’s claim properly turns on application of equal protection principles and express no view on the merits of any of petitioner’s Sixth Amendment arguments.

None of the authors of the concurring opinions voiced displeasure at the failure of the Court to consider Batson’s Sixth Amendment arguments. Justice Rehnquist declared in his dissenting opinion, joined by the Chief Justice, that he did not see “how [the use of peremptory challenges] violates the Equal Protection Clause,” and then observed:

Nor does such use of peremptory challenges by the State infringe upon any other constitutional interests. The Court does not suggest that exclusion of blacks from the jury through the State’s use of peremptory challenges results in a violation of either the fair-cross-section or impartiality component of the Sixth Amendment.

Id. at 138, 106 S.Ct. at 1745. If there were any doubt about the application of the Sixth Amendment to peremptory challenges, it was resolved in Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986), decided within a week after Batson. The Court held flatly that the fair-cross-section component of the Sixth Amendment did not apply to peremptory challenges. It said:

We have never invoked the fair-cross-section principle to invalidate the use of either for-eause or peremptory challenges to prospective jurors, or to require petit juries, as opposed to jury panels or venires, to reflect the composition of the community at large. The limited scope of the fair-cross-section requirement is a direct and inevitable consequence of the practical impossibility of providing each criminal defendant with a truly “representative” petit jury, ... a basic truth____ We remain convinced that an extension of the fair-cross-section requirement to petit juries would be unworkable and unsound, and we decline McGree’s invitation to adopt such an extension.

Id., 476 U.S. at 173-174, 106 S.Ct. at 1764-1765.

The answer to the second question presented to us is that Gorman may not assert, by way of peremptory challenges, a Sixth Amendment claim of fair-cross-section deprivation in the composition of his jury.

(3)

The third question, as argued, would come into play only if the rule of Batson applied so that the procedures spelled out therein must be followed. If so, the State urges, a reversal of the judgments of conviction and sentence would not be appropriate. A limited remand for compliance with the Batson procedures would suffice. Reversal of the judgments entered in the trial court would be called for only if, on remand, the judge found that the defendant made out a prima facie case of purposeful discrimination and the State failed to come forward with a neutral explanation. In light of our conclusion that Batson does not apply in the circumstances of this case, the question as presented is not reached. Of course, it follows from our holding that since the judgments of the trial court stand as not constitutionally tainted, a new trial is not involved.

JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED;

COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY ROBERT WILLIAM GORMAN.

ELDRIDGE, J., dissents with opinion in which COLE, J., concurs.

1 . This appeal presents no challenge to the selection of the petit jury venire. See Maryland Rule 4-312(a) Challenge to the Array.

2 . “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury____” U.S. Const.Amend. VI.

3 . "That in all criminal prosecutions, every man hath a right ... to a speedy trial by an impartial jury, without whose unanimous consent he ought not to be found guilty." Maryland Declaration of Rights Art. 21.

4 . Mr. Justice White delivered the opinion of the Court. Mr. Justice Harlan joined the opinion of the Court but emphasized his understanding that the Court reserved and did not decide the question which in Part III of the opinion it found was not presented by the record. Mr. Justice Black concurred in the result. Mr. Justice Goldberg, with whom the Chief Justice and Mr. Justice Douglas joined, dissented.

Part III of the opinion dealt with a broader claim that not only were the Negroes removed by the prosecutor in this case but that there never has been a Negro on a petit jury in either a civil or criminal case in Talladega County and that in criminal cases prosecutors have consistently and systematically exercised their strikes to prevent any and all Negroes on petit jury venires from serving on the petit jury itself. This systematic practice, it is claimed, is invidious discrimination for which the peremptory system is insufficient justification.

Swain v. Alabama, 380 U.S. 202, 222-223, 85 S.Ct 824, 837, 13 L.Ed.2d 759 (1965).

5 . “No State shall ... deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const.Amend. XIV, § 1.

The Fourteenth Amendment was ratified 28 July 1868. Twelve years later the Supreme Court decided Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880). It held that under the Equal Protection Clause a state cannot systematically exclude persons from juries solely because of their race or color. The mechanism of purposeful exclusion was a West Virginia law prohibiting blacks from serving on juries generally. Peremptory challenges were not involved.

6 . Powell, J., delivered the opinion of the Court, in which Brennan, White, Marshall, Blackmun, Stevens, and O’Connor, JJ., joined. White, J., and Marshall, J., filed concurring opinions. Stevens, J., filed a concurring opinion, in which Brennan, J., joined. O’Connor, J., filed a concurring opinion. Burger, C.J., filed a dissenting opinion, in which Rehnquist, J., joined. Rehnquist, J., filed a dissenting opinion, in which Burger, C.J., joined.

7 . Blackmun, J., delivered the opinion of the Court, in which Brennan, Marshall, Powell, Stevens, and Scalia, JJ., joined. Powell, J., filed a concurring opinion. Relinquish C.J., filed a dissenting opinion. White, J., filed a dissenting opinion, in which Rehnquist, C.J., and O'Connor, J., joined.