REPORTED 

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND 

 

No. 2390 

September Term, 2014 

______________________________________ 

KEVIN COLLINI 

v. 

STATE OF MARYLAND 

______________________________________ 

Krauser, C.J., 

 Berger, 

 Leahy, 

JJ.

______________________________________ 

Opinion by Krauser, C.J.

______________________________________ 

 

 Filed: February 24, 2016
1

 Convicted, after a jury trial in the Circuit Court for Harford County, of first and 

second degree assault, Kevin Collini, appellant, presents two questions for our review: 

I. Did the trial court err in remedying a Batson violation by seating a 

properly struck prospective juror instead of the prospective juror 

whom the court found was improperly struck? 

II. If preserved, did the trial court impose an illegal sentence when it 

took into account Collini’s invocation of his Fifth Amendment right 

to remain silent? 

Because we conclude that the court erred in seating a properly struck prospective 

juror in an attempt to remedy a purported Batson violation, we shall reverse the judgment 

of the circuit court, which renders the second question posed by Collini—whether the 

trial court erred by imposing an illegal sentence—moot. 

I.

The testimony adduced at trial established that, at about 9:45 p.m., on the evening 

of October 20, 2013, a violent altercation took place between Kevin Collini, appellant, 

and his neighbor, Michael Folino. The two men were then occupying different and 

separate apartments in a house subdivided into separate living units. The incident erupted 

when Collini, upon returning home that evening, noticed that several political yard signs, 

which he had posted on the property, were gone. Then, seeking the whereabouts of the 

missing signs, he sent a text message to Folino, asking him whether he knew where the 

signs were. Folino, who had tossed the signs into a nearby woods earlier in the day, 

replied, in a text message, that he had removed the signs. In response to that bold 

admission, Collini threatened, by text message, that, if the signs were not returned, the 
2

police would be called. What happened after that testy electronic exchange was, as the 

following recitation of relevant testimony discloses, vigorously disputed at trial. 

Collini testified, at trial, that, after exchanging text messages with Folino, he was

in his living room, using a box-cutter to trim some paper, when he heard a loud 

“banging” at his front door. After retracting the blade of his box-cutter and placing it in 

his pocket, he opened the door. Standing there, according to Collini, was Folino, wearing

a “Buck knife” on his belt. 

After a brief and angry exchange of words, Collini turned and re-entered his home, 

whereupon Folino purportedly followed him into his apartment and, there, physically 

assaulted him. That led to a struggle between the two men, during which Collini was 

repeatedly kicked and struck by Folino. It was, in the midst of receiving those body 

blows, testified Collini, that he pulled the box-cutter out of his pocket and sliced Folino’s

chest with it. Wounded, but still on his feet, Folino fled; and Collini, therefore, called 

“9-1-1” for help. 

Folino’s testimony, however, presented a very different version of what occurred 

that evening after the two men exchanged text messages. He testified that, roughly 

fifteen minutes after his text message exchange with Collini, he heard a “banging” at the 

front door of his apartment. When he opened that door, “somebody lunged at [him],” at 

which time Folino felt something “hit [him] in the chest.” The attacker then turned 

around and ran out of the house into the yard. Now, realizing that his assailant was 

Collini, Folino, though wounded, gave chase. That chase ended when Collini ran back 

into his apartment. 
3

But, moments later, Collini reappeared, holding a baseball bat and “some kind of 

razorblade or knife.” When Collini then threatened to kill him, Folino “retreated” to his 

apartment and called “9-1-1.” At the conclusion of that call, he went back outdoors and 

waited for help to arrive. While standing outside, he and Collini started shouting at each 

other, and that verbal exchange did not end until the police and paramedics arrived. 

The only other witness to the incident who testified, at trial, was the tenant of the 

third apartment, Jacob Coldiron, whose testimony was consistent with Folino’s version of 

events, to the extent that it established that the physical confrontation at issue occurred in 

front of Folino’s apartment not Collini’s. Specifically, Coldiron testified that, from his 

basement apartment window, he could hear yelling and saw a “pair of legs” standing 

outside of Folino’s front door. He then observed two pairs of legs running away from 

Folino’s door and towards the front of the house. 

When the paramedics arrived, Folino was transported, by helicopter, to Shock 

Trauma at the University of Maryland Hospital Center, where it took more than thirty 

staples to close his chest wound. Responding police officers, after interviewing both 

Collini and Coldiron about what had occurred, placed Collini under arrest. Collini was 

ultimately charged with first and second degree assault and was subsequently found 

guilty, by a jury, of both offenses, though the latter offense was ultimately merged into 

the former. In any event, Collini was thereafter sentenced to a term of twenty-five years’ 

imprisonment for first degree assault, with all but fifteen years of that sentence 

suspended. 
4

II.

In the process of selecting twelve jurors and three alternates, the defense exercised 

nine of its ten1 peremptory challenges. Of those nine challenges, six were used to strike 

prospective female jurors: 9, 10, 22, 30, 41, and 42. At the time that Collini struck the

last of those six prospective female jurors—that is, prospective juror 42—eleven people 

had been seated as jurors, and, as the record indicates, at least nine of those jurors were 

male.2

 At that point, the State objected, claiming that the defense had improperly

exercised its peremptory challenges by striking women, on the basis of gender, in

violation of the Equal Protection Clause and in contravention of Batson v. Kentucky, 476 

U.S. 79 (1986), and J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994).

3

 The court 

thereupon turned to defense counsel and said, “We have only one female juror that is 

 

1 Because the most serious offense that Collini was charged with was first degree 

assault, MD. CODE ANN., CRIM. LAW § 3-202 (LexisNexis 2014), an offense that carries a 

maximum penalty of twenty-five years, he was entitled to ten peremptory challenges and 

the State was entitled to five. Md. Rule 4-313(a)(3).

2

Jurors 5, 13, 15, 16, 23, 24, 27, 31, 33, 38, and 39 were all seated on the jury 

when Collini struck prospective juror 42. The record does not indicate the gender of 

jurors 13 and 33, because the court did not state the gender of those jurors as it did with 

respect to the other nine jurors. 

3

In Batson, the United States Supreme Court held that using peremptory 

challenges to exclude prospective jurors solely on the basis of race violates the Equal 

Protection Clause of the Fourteenth Amendment. 476 U.S. 79. Then, in J.E.B., the 

Supreme Court extended Batson to prohibit the exercise of peremptory challenges on the 

basis of gender. 511 U.S. 127. 
5

sitting.” Then, referring to the prospective female jurors 9, 10, 22, 41, and 42, the court 

asked, “What are your reasons for striking [those] six individuals?”4

Defense counsel explained that he struck prospective juror 9 because she had been 

a juror in a previous trial, during which the defendant was found guilty of murder, and 

that he had struck prospective juror 10 because she had a friend, who had been murdered,

and that, consequently, he was concerned that, “given that it [was] a violent assault, it 

would be a problem for her.” Neither the State nor the court, challenged either of those 

explanations or, otherwise, questioned the propriety of the strikes in question. In fact, the 

State concedes, in its brief, “the court and State seemed to accept defense counsel’s 

explanations for striking [prospective] jurors 9 and 10.”5

Then, turning to prospective juror 22, defense counsel stated that he struck her 

because she “didn’t answer any questions,” asked by the court during voir dire, and that it 

was his policy to strike jurors who failed to do so. That explanation led to the following 

exchange between the court and counsel: 

[State]: Your Honor, number 13 answered no questions. That was a male 

and the defense did not strike him. 

* * * 

 

4 Although the court noted that defense counsel struck six females, the court, 

without explanation, discussed only five of the female prospective jurors during the 

Batson colloquy with defense counsel and the State. 

5 Specifically in its brief, the State stated that: “Although the court and the State 

seemed to accept defense counsel’s explanations for striking jurors 9 and 10, the same 

cannot be said for jurors 22, 41, and 42.” 
6

[Defense counsel]: The reason I wanted juror 13 was because of his 

education level and the fact that he just appeared to be analytical. I didn’t 

get that kind of vibe from 22. 

[Court]: Number 22 was the dental hygienist. 

[Defense counsel]: Yes. 

(Emphasis added.) 

The court, however, rejected, what it later described as defense counsel’s 

“analytical versus nonanalytical” explanation for striking prospective juror 22, stating: 

I don’t find that to be a nondiscriminatory reason, counsel . . . It appears 

there has been a pattern. The reason that you gave for striking that juror 

was because you strike jurors that don’t provide any responses. However, 

the record does reflect that you have kept a male juror who did not provide 

any responses. 

(Emphasis added.) 

Then, as to the next prospective female juror—number 41—that was struck, the 

court asked defense counsel the basis upon which he had struck her, since she “did not 

provide any responses whatsoever” and had, in the court’s view, an “analytical 

background,” as she was a nurse. Defense counsel responded that, while prospective 

juror 41 admittedly had an “analytical background,” he nonetheless struck her because 

the instant case not only involved “medical records,” but those records were going to 

“[come] in by themselves,” and that he did not want someone on the jury, “who has 

special knowledge about the records or impressions about treatment of people.” Neither 

the court nor the State took issue with that explanation. 

 Finally, the court asked defense counsel, what was his “reason for striking the last 

one, number 42 who [was] still in the courtroom.” Defense counsel responded that he 
7

struck prospective juror 42 because, during voir dire, she indicated that jury duty would 

be a “financial hardship” for her, adding that he had thought that the court was going to 

strike her, along with several other prospective jurors, who indicated that it would be a 

“hardship” to serve on the jury. Neither the State nor the court directly responded or 

otherwise commented on defense counsel’s explanation for striking prospective juror 42. 

The court, however, then ruled as follows:

I do find that there has been a systemic striking of women by the defense. 

While some reasons that you have provided are nondiscriminatory, this last 

explanation that you provided to me concerning analytical versus 

nonanalytical [does] not make sense in light of some other individuals that 

you have selected. So, juror number 42 will be placed back on the jury. 

(Emphasis added.) 

III.

Collini contends that the circuit court erred in seating prospective juror 42, whom 

the court had not found to have been improperly struck, instead of prospective juror 22, 

whom the court had found had been improperly struck. The State responds that no error 

occurred because the trial court did, in fact, find that prospective juror 42 was improperly 

struck by defense counsel, and thus seating that individual was an appropriate response to 

a Baston violation. 

Peremptory challenges play a “vital role” in “insuring” that “an impartial jury is 

chosen.” King v. State Roads Comm’n of State Highway Admin., 284 Md. 368, 370 

(1979). They “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 
8

litigant, impel that individual to decide the case on a basis other than the evidence 

presented.” King, 284 Md. at 370. To that end, parties are “given wide latitude” in 

exercising such challenges, which they may do “for any reason or indeed for no reason.” 

Gilchrist v. State, 340 Md. 606, 619 (1995); Brice v. State, 264 Md. 352, 366 (1972). 

“The right to exercise peremptory challenges, however, is not absolute.” 

Gilchrist, 340 Md. at 620. It is, as the United States Supreme Court declared in Batson v. 

Kentucky, 476 U.S. 79 (1986), circumscribed by the Equal Protection Clause of the 

Fourteenth Amendment to the United States Constitution. In Batson, the Supreme Court 

avowed that the Equal Protection Clause prohibits the use of peremptory challenges to 

strike prospective jurors on the basis of race. 476 U.S. 79.6 This constitutional 

prohibition was later extended, by that Court, to proscribe the striking prospective jurors 

on the basis of gender in J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994). 

The question before us, however, is not whether a Batson violation occurred, but 

whether the remedy chosen by the trial court to address that alleged violation was proper. 

As a trial court “has ‘the discretion to fashion a remedy for [the] Batson violation that 

 

6

“The Supreme Court in Batson articulated a three-step process to be utilized by 

trial courts in assessing claims that peremptory challenges were being exercised in an 

impermissibly discriminatory manner.” Gilchrist, 340 Md. at 625. First, “the 

complaining party” must make “a prima facie showing that the other party has exercised 

its peremptory challenges on an impermissibly discriminatory basis, such as race or 

gender.” Id. Second, if the trial court determines that the complaining party has made 

such a showing, the party accused of employing unlawful peremptory strikes may “rebut 

the prima facie case” by offering a “facially valid, race [and gender] neutral explanation” 

for striking the excluded jurors. Id. at 625-26; Edmonds v. State, 372 Md. 314, 330 

(2002). And, in the third and final step of the three-step process, the trial court must 

evaluate “whether the opponent of the strike has met his or her burden of proving 

purposeful discrimination.” Edmonds, 372 Md. at 330. 
9

addresses and resolves the specific harm caused by that violation,’” Edmonds v. State, 

372 Md. 314, 331 (2002) (citing Jones, 343 Md. 584, 602-03 (1996)), we review the

remedy, fashioned by the court below, for abuse of discretion. Jones, 343 Md. at 605. 

IV.

But, before we consider the propriety of the Batson remedy selected by the court 

below, we must first address the threshold question of whether the court actually found 

that prospective juror 42 was properly struck, as the State contends that it did not. Collini 

disagrees, and so do we. 

The relevant portion of the Batson discussion began when defense counsel was 

asked by the court why he struck prospective juror 22, a dental hygienist. Defense 

counsel explained that prospective juror 22 did not appear to be “analytical,” whereupon 

the court responded, “I don’t find that to be a nondiscriminatory reason, counsel.” Then, 

later on, near the end of the voir dire process, the court stated: 

I do find that there has been a systemic striking of women by the defense. 

While some reasons that you have provided are nondiscriminatory, this last 

explanation that you provided to me concerning analytical versus 

nonanalytical [does] not make sense in light of some other individuals that 

you have selected. 

(Emphasis added.) 

The court was clearly not referring to defense counsel’s explanation for striking 

prospective juror 42 but to his earlier explication for striking prospective juror 22, as that 

was the only time that defense counsel explained his strike of a prospective juror by 

stating that the prospective juror in question—number 22—did not appear to be as 
10 

“analytical,” and that, moreover, was the only time that the court questioned the striking 

of a prospective juror on that basis. In fact, the record shows that neither the State nor the 

court took issue with defense counsel’s explanation for the striking of prospective 

juror 42.7 We, therefore, agree with Collini that the trial court was clearly referring to the 

striking of prospective juror 22 when it opined that the “analytical versus nonanalytical” 

distinction did not “make any sense in light of some of the other individuals that you 

selected.” Thus, the record shows that the trial court found that it was prospective 

juror 22 who was improperly struck and not prospective juror 42. 

V.

Having established that the court found that prospective juror 42 was not 

improperly struck, we turn to the question of whether it was appropriate to seat that 

prospective juror for a Batson violation involving prospective juror 22, whom the court 

had found was improperly struck by the defense. And, we begin this analysis by noting, 

once again, “the importance of the peremptory challenge,” which the Court of Appeals 

has said, “requires that any significant deviation from the prescribed procedure that 

impairs or denies the privilege's full exercise is error that, unless waived, ordinarily will 

require reversal without the necessity of showing prejudice.” King, 284 Md. at 371 

(emphasis added).

 

7 The State’s response to Collini’s explanation for striking prospective juror 42 

merely consisted of: “Your Honor, I would submit that the Defendant has used seven out 

of his strikes, six of which were women, and that there are other people on the list.” The 

State did not comment on the merits of Collini’s explanation. 
11 

Here, Collini was denied the full use of his peremptory strikes when the court 

seated prospective juror 42, whom Collini had struck. And, though Batson does place 

limitations on the use of these challenges, the trial court’s decision to seat prospective 

juror 42, a properly struck prospective juror, fails to achieve any of, what this Court has 

called, the “underlying purpose” of Batson that would justify abridging Collini’s right to 

fully exercise the peremptory strikes allotted to him by law. Elliott v. State, 185 Md. 

App. 692, 711 (2009). Such a decision cannot be said to safeguard “the venire person's 

right not to be excluded on an impermissible, discriminatory basis,” as there was no 

finding that juror 42 was struck on the basis of race or gender. Elliott, 185 Md. App. at

711. Nor can the decision be said to “protect the parties' right to a fair trial” or 

“preserv[e] public confidence in the system,” as it placed an individual on the jury, whom 

defense counsel had previously struck. Id. 

Moreover, the court below had other corrective measures at its disposal, which 

Maryland appellate courts have recognized as appropriate remedies for a Batson 

violation. Indeed, upon determining that a Batson violation had occurred, when 

prospective juror 22 was struck, the trial court could have seated that prospective juror 

(see Chew v. State, 71 Md. App. 681, 704 (1987)); or it could have recalled all of the 

previously struck jurors and restarted the jury selection process from before the pattern of 

improper striking began (see Jones, 343 Md. 584); or it could have seated one of the 

seven remaining prospective jurors that, according to the record, were still available; and 

finally, if the foregoing remedies were no longer available, the court could have 
12 

impaneled a new venire and begun the process of jury selection anew (see Gilchrist v. 

State, 97 Md. App. 55, 76 (1993); Jones, 343 Md. 584; Chew, 71 Md. App. at 704). 

But, rather than choosing any of these remedies, which admittedly is not an 

exhaustive compilation of corrective measures, the court below chose, instead, to seat 

properly struck prospective juror 42, not because it found the strike that removed her 

from the venire was “unconstitutionally exercised,” but to correct what the court believed 

to have been an unconstitutional striking of prospective juror 22. Therefore, because “the 

denial or impairment of the right to exercise peremptory strikes is reversible error without 

a showing of prejudice,” Whitney v. State, 158 Md. App. 519, 532 (2004) (internal 

citations and brackets omitted), we conclude that the trial court abused its discretion in 

seating a prospective juror, who had been properly struck, and such error requires a 

reversal of the judgments below. 

Finally, before we leave this issue, we feel impelled to take note of another 

troubling feature of the jury selection procedure conducted in this case. It appears that, 

when peremptory challenges were made, the exercise of those challenges occurred, 

according to the trial transcript, in “open court” and thus, presumably, before those 

prospective jurors that were ultimately struck. Consequently, the court’s decision to seat 

a properly struck juror (number 42) placed, on the jury, an individual that knew she had 

been struck by the defense. She might have then assumed unfairly so in light of the 
13 

decision to seat her, notwithstanding defense counsel’s strike. Such an assumption might 

have affected her view of defense counsel and possibly the defendant himself. 

JUDGMENT OF THE CIRCUIT COURT 

FOR HARFORD COUNTY REVERSED. 

COSTS TO BE PAID BY HARFORD 

COUNTY.