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Khan v. State

Court of Special Appeals of Maryland

September 4, 2013

KHALIQ KHAN
v.
STATE OF MARYLAND

Wright, Matricciani, Moylan, Charles E., Jr. Retired, Specially Assigned, JJ.

OPINION

MATRICCIANI, J.

On June 30, 2011, Khaliq Khan was indicted in the Circuit Court for Montgomery County on two counts of sex offense in the third degree and two counts of second degree assault. These charges were the result of Khan's alleged assault of two girls in a cosmetics store where Khan worked as a security guard. After a jury trial, Khan was found guilty of one count of second degree assault and found not guilty of all other charges. On February 8, 2012, Khan was sentenced to five years' incarceration, with all but sixty days suspended, and placed on supervised probation for three years upon release. Khan subsequently noted this timely appeal.

Questions Presented

Appellant presents four questions, which we have rephrased as follows:

I. Did the trial court err in reseating a white male juror, struck by the defense, on the basis of a Batson challenge?
II. Did the trial court err in permitting the State to present evidence of prior customer complaints against appellant?
III. Did the trial court err in allowing the State to question appellant regarding possible racial prejudice held by appellant?
IV. Did the trial court err in voir dire by asking potential jurors whether they would be biased by the charges against appellant, without attributing that potential bias to "strong feelings?"

For the reasons that follow, we answer no to each question and affirm the judgment of the circuit court.

Factual and Procedural History

Background

On March 27, 2011, Khaliq Khan was working as a security guard at Ulta, a cosmetics store in downtown Silver Spring, when twelve-year-old Joie Gadsden and thirteen-year-old Jazmyn Parker came into the store. Gadsden and Parker entered the store to look around while Gadsden's parents were in a nearby bookstore. According to testimony by both Gadsden and Parker, Khan called the girls over to show them perfume. Both girls testified that Khan sprayed perfume on them, including on their chests, and had the girls smell each other. Gadsden testified that during this encounter Khan grabbed her waist and squeezed her buttocks, and Parker testified that Khan touched both of their buttocks when they began to leave. Gadsden and Parker reported this encounter to Gadsden's parents, who returned to the store and called the police. An officer from the Montgomery County Police Department was dispatched to the store and arrested appellant. Khan was charged with two counts of third degree sex offense and two counts of second degree assault and brought to trial in the Circuit Court for Montgomery County.

Jury Voir Dire

During voir dire, the court asked the following question:

[T]he State claims that the defendant, Mr. Khan, had sexual contact with two minors. Is there any member of the panel who, by reason of the nature of the charges, that is to say, by reason of what he's alleged to have been, to have done, will be unable to listen fairly and impartially?

There were no affirmative responses. After the court finished questioning jurors, defense counsel objected to the form of the above question:

The time that I remembered that Your Honor asked it, you used "based on this allegation, does anybody, would anybody be unable to be fair, " or something along those lines. And so, the question that I would, that we had asked in our voir dire is, "does it arouse strong feelings?"

The court overruled the defense's objection, stating that the question asked by the court was sufficient to discover any bias from potential jurors owing to the alleged crimes.

Batson Challenge

During jury selection for Khan's trial, the court noted that the defense had exercised five of its seven peremptory strikes against white men. After asking defense counsel to provide race- and gender-neutral reasons for each strike, the court was dissatisfied with counsel's proffer in regard to one potential juror, number 95, and so reseated this juror. Defense counsel explained the peremptory strike against juror 95 as follows:

[G]enerally for him, Your Honor, it was he's an attorney with the federal government. The way he dressed. The way that his grooming was. It was, to me, again, somebody that was very conservative. It had nothing to do with the fact that ...

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