Baker v. State

⁶⁰⁴ JAMES R. EYLER, Judge. A jury in the Circuit Court for Harford County convicted Michael Lee Baker, appellant, of first degree assault, second degree assault, and use of a handgun in the commission of a crime of violence. The trial court sentenced appellant to a term of twenty years’ incarceration with all but ten years suspended in favor of probation. Appellant presents six questions on appeal: I. Did the trial court err in refusing to propound appellant’s requested voir dire questions?

II

Did the trial court err in permitting the State to question appellant as to whether he had made a handgun available to the police?

III

Did the trial court err in denying appellant’s motion for a mistrial after the State asked a series of leading questions?

IV

Did the trial court err in admitting evidence that appellant made a statement to a police officer for the alleged purpose of misleading the police? V. Did the trial court err in precluding a defense witness from testifying?

VI

Did the trial court err in refusing to compel the State to investigate an allegation against the victim of appellant’s assault? We answer “yes” to questions I and IV and reverse the judgments of the circuit court. We do not reach questions II, III, and V, but we shall briefly address question VI. FACTS The charges in this case arose from a shooting in the early hours of June 23, 2001.

Appellant did not deny that he shot Daniel Gray but claimed that he did so to defend his girlfriend, Gracia Kubanek, from a sexual assault by Gray, and in self-defense. Appellant and Kubanek met in Germany in 1997 while appellant was stationed there in the Army Reserves. Kuba ⁶⁰⁵ nek owned a hair salon in Germany, and after appellant returned to the United States, he helped her establish a salon in Bel Air, Maryland. Kubanek traveled back and forth between Germany and Maryland to run both businesses.

Appellant was the manager of the Maryland salon, had an office in the salon, and sometimes lived in the salon. Appellant was also Kubanek’s boyfriend, and he lived in her home when she was in Maryland. According to Kubanek, 1 on the night of June 22, 2001, she had dinner with a friend at Georgetown North, a restaurant and bar near her salon. Kubanek had two glasses of wine during dinner.

Kubanek took her friend home and returned to the bar around midnight. Kubanek saw Daniel Gray, whom she knew as a customer of her salon, and the two started talking. Between midnight and 2:00 a.m., when the bar closed, Kubanek drank four or five whiskeys with coke. Kubanek and Gray left together when the bar closed and went to Gray’s house, where they stayed for about an hour.

Kubanek testified that Gray made sexual advances, which she spurned, and she asked him to take her to the salon, intending to walk home from there. Gray denied making any sexual advances at his house and said that he told her he had to take her home because he had to get up early the next day. Gray drove Kubanek to the salon and went inside. According to Kubanek, he went inside to use the restroom.

According to Gray, Kubanek invited him in. Kubanek related the following. Each sat in a chair and smoked a cigarette. After about ten minutes, Gray knelt in front of her chair, kissed her, pushed up her skirt, put his hands on her legs and touched her “entire body.” Kubanek told him no, and asked him to leave, but he did not move away from her.

About five minutes later, appellant came into the store. Gray stood up. Appellant asked him what he was doing there, then twice told him to leave. A few seconds later, ⁶⁰⁶ appellant shot Gray in the hand.

Appellant then asked to see Gray’s identification, and Gray showed appellant his driver’s license. Appellant then let Gray leave. Kubanek acknowledged that, in her first statement to the police, she did not tell them about Gray touching her, and explained, “I could not talk about the thing for a long time because I was ashamed.” Gray testified to the following. When he emerged from the restroom, Kubanek was gathering items to take home, so he sat down and smoked a cigarette.

Kubanek sat down, and Gray crossed the room to use an ashtray on the table next to her. He crouched down and rested his arms across her knees and kissed her. He had his hand on her leg and knee. Appellant entered the salon.

He was very upset, and yelled and screamed at Kubanek. He told Gray that Kubanek was his woman, and Gray retorted, “It doesn’t appear so.” Appellant went behind one of the work stations in the rear of the salon and returned with a gun. He pointed the gun at Gray and shot him in the hand. Appellant then approached Gray, put the gun to his head, and threatened to kill him.

Appellant locked the door and asked to see Gray’s driver’s license to find out who he was and where he lived. Appellant threatened that if he saw him again in the salon or talking to Kubanek, he would kill him. After Gray left the salon, he drove to the Bel Air Police Department, about half a mile away, and was taken to the hospital by ambulance. Appellant testified to the following.

Around 4:00 A.M., he became worried because Kubanek was not home. There was no telephone in the house, so he went to the salon in case she needed to get in touch with him. When he arrived at the salon, he looked in the window and saw Mr. Gray in between Gracia’s legs, doing some action with his hands.... When I got to the glass door I saw his hands going up on both sides of her—he was on his knees, pushing her dress up to her buttocks, you could see her underwear.

His head was in between her legs and he was ⁶⁰⁷ on her left side, on the inside of her left side, going side to side and he was leaning into her. Appellant, who testified that he had been a police officer at one time, observed that I know what force is, he was holding her down, she was trying to push him off, and she was I guess just played out, you could see she was exhausted, I don’t know how long she had been in that situation. He said, “[S]he was doing the best she could, but it wasn’t much.” According to appellant, he entered the salon and said to Gray, “What are you doing here. That’s my woman.” Gray “went back down and put his hands on her again.” Kubanek told Gray to leave, but he did not, and appellant told him to leave.

Appellant stated that he had been trained as a police officer to notice certain indications that people were going to become violent. He saw the indications in Gray, and he also noticed that Gray smelled of alcohol. Appellant explained that he wanted to get Gray away from Kubanek but was concerned that if he and Gray fought, one of them might fall on Kubanek or cause glass from shelving to shatter and injure her. Instead, appellant retrieved his weapon “to disengage [Gray’s] violence as quickly as possible.” After appellant retrieved the gun, Gray was still “in a hostile position.” Lest Gray think the gun was not real, appellant shot him in the hand.

Appellant confirmed that he locked the door and asked to see Gray’s identification, explaining that, because he had used a handgun, he knew there would be a police investigation. He said that he thought that Gray was “some kind of sexual predator” and wanted the police to know his “method of operation.” After Gray showed him his driver’s license, he told Gray to leave. According to appellant, Kubanek was hysterical, and he was upset because he had never shot anyone before. He put the gun in his “office area” and left.

He drove somewhere to ⁶⁰⁸ think, passed out for a while, then ate breakfast and returned, intending to go to the police station. While he was walking to the police station, an officer arrested him. Additional facts will be set forth as needed in our discussion of the issues presented. DISCUSSION I. - Voir Dire At trial, appellant objected to the trial court’s failure to propound several voir dire questions he had requested: [Njumber 12 concerning the defendant’s election to testify on his own behalf, whether or not any of the people in voir dire would consider that he would be testifying truthfully because he’s on trial and would they be unable to weigh his testimony in the same manner as any other witness.

Also Number 13, which states that the defendant has an absolute constitutional right not to testify and would you draw any inference of guilt from the defendant’s election not to testify or decision not to testify. Number 14 says that the State has the burden of proof to prove the defendant’s guilty beyond a reasonable doubt, the defendant does not have to prove his innocence. Would you draw any inference of guilt if this defendant elects not to present any testimony. Number 15, whether or not you would tend to view the testimony of witnesses called by the defense with more skepticism than those called by the State, merely because they were called by the defense.

Number 17, if after hearing all the testimony of the State, you think that more likely than not the defendant is guilty, but you’re not convinced beyond a reasonable doubt of his guilt, would you have any difficulty in finding the defendant not guilty. Number 19, do you have any bias or prejudice concerning handguns which would prevent you from fairly weighing the evidence in this case. ⁶⁰⁹ And finally, Number 20, is there anything about the nature of the allegations in this case which would prevent anyone from sitting as a juror. The trial court asked defense counsel if he wished to be heard “with respect to the failure of the court to issue those questions or the legal basis for your exceptions.” Counsel replied “not right now,” but requested that a copy of his proposed voir dire be put into the court’s file. The trial court told defense counsel that a copy was already in the court file and noted the exceptions.

Appellant contends that the trial court erred in refusing to ask each of those voir dire questions. The State asserts that appellant waived the objections by not stating the grounds for his objection. The State also asserts that the trial court properly exercised its discretion in not asking the questions. Waiver In support of its contention that appellant failed to preserve the issue for our review, the State cites Walker v. State, 338 Md. 253, 262 , 658 A.2d 239 , cert. denied, 516 U.S. 898 , 116 S.Ct. 254 , 133 L.Ed.2d 179 (1995), for the rule that an appellate court ordinarily will not review an issue not presented to the trial court, and Bowman v. State, 337 Md. 65, 69 , 650 A.2d 954 (1994), and Leatherwood v. State, 49 Md.App. 683, 694-95 , 435 A.2d 477 (1981), for the rule that a party objecting to jury instructions must explain the grounds for the objection.

Walker is not applicable because, as the transcript clearly shows, appellant did raise the issue in the trial court. Bowman and Leatherwood are not applicable because they concerned jury instructions which are governed by Rule 4-325. Rule 4-325(e) requires that a party “object!] on the record promptly after the court instructs the jury, stating distinctly the matter to which the party objects and the grounds of the objection.” Rule 4-312, dealing with jury selection, contains no such requirement and is governed by Rule 4-323(c). See Newman v. State, 156 Md.App. 20, 50-51 , 845 A.2d 71 (2003).

In contrast to Rule 4-325(e), Rule 4-323(c) provides that, ⁶¹⁰ it is sufficient that a party, at the time the ruling or order is made or sought, makes known to the court the action that the party desires the court to take or the objection to the action of the court. The grounds for the objection need not be stated unless these rules expressly provide otherwise or the court so directs. We noted this distinction in Stevenson v. State, 94 Md.App. 715 , 619 A.2d 155 (1993). Distinguishing cases involving the failure to object to jury instructions, we held that “[djefense counsel’s attempt to persuade the judge that this evidence was admissible was sufficient, under Md. Rule 4-323(c), to ‘make[ ] known to the court the action that the party desires the court to take,’ regardless of counsel’s acceptance of the judge’s ruling on the matter.” Stevenson, 94 Md.App. at 721 , 619 A.2d 155 .

In Newman we rejected the State’s contention that Newman had failed to preserve his objection to the trial court’s refusal to ask voir dire questions he requested. Noting that “Rules 4-323(c) and (d) govern the method of making objections to rulings or orders, other than evidentiary,” we held that counsel preserved the objection by making known to the trial court what he wanted done. 2 See also Bundy v. State, 334 Md. 131 , 638 A.2d 84 (1994) (Rule 4-323(c) was satisfied where “counsel’s statement put the trial judge on notice of her complaint that the State just exceeded its allotted number of peremptory challenges.”). Here, appellant told the trial court that he objected to its failure to ask his requested voir dire questions. The trial court asked appellant if he wished to be heard but did not direct him to state his grounds.

The court also expressly noted the exceptions. The issue was properly preserved. Merits The scope of voir dire and the form of the questions propounded rest firmly within the discretion of the trial judge. ⁶¹¹ Hill v. State, 339 Md. 275, 279 , 661 A.2d 1164 (1995); Davis v. State, 333 Md. 27, 34 , 633 A.2d 867 (1993). “The overriding principle or purpose” of voir dire is to ascertain “the existence of cause for disqualification.” Hill v. State, 339 Md. at 279 , 661 A.2d 1164 (citations omitted). There are two areas of inquiry that may uncover cause for disqualification: (1) an examination to determine whether prospective jurors meet the minimum statutory qualifications for jury service, and (2) “ ‘an examination of a juror ... conducted strictly within the right to discover the state of mind of the juror in respect to the matter in hand or any collateral matter reasonably liable to unduly influence him.’ ” Davis v. State, 333 Md. at 35-36 , 633 A.2d 867 (citations omitted) (emphasis added in Davis ). “[I]f a prospective juror is ‘unable to apply the law’ or ‘holds a particular belief ... that would affect his ability or disposition to consider the evidence fairly and impartially,’ he ‘should be excused for cause.’ ” Foster v. State, 304 Md. 439, 454 , 499 A.2d 1236 (1985) (citation omitted), reconsideration denied, 305 Md. 306 , 503 A.2d 1326 , cert. denied, 478 U.S. 1010 , 106 S.Ct. 3310 , 92 L.Ed.2d 723 (1986).

In determining what questions are likely to uncover a cause for disqualification, “the questions should focus on issues particular to the defendant’s case so that biases directly related to the crime, the witnesses, or the defendant may be uncovered.” State v. Thomas, 369 Md. 202, 207 , 798 A.2d 566 (2002). The Specific Questions Questions 17 and 20: Number 17, if after hearing all the testimony of the State, you think that more likely than not the defendant is guilty, but you’re not convinced beyond a reasonable doubt of his guilt, would you have any difficulty in finding the defendant not guilty. And finally, Number 20, is there anything about the nature of the allegations in this case which would prevent anyone from sitting as a juror. ⁶¹² The trial court did not ask those questions, but asked the jury panel: Now in this case, as in all criminal cases before the court, the defendant is presumed to be innocent of the charges unless and until proven guilty beyond a reasonable doubt. Now, is there any member of the jury panel who disagrees with that legal principle?

If so, please stand. Now, does any member of the jury panel know of any other reason why you feel you could not sit as a juror in this case, listen to the evidence in this case, and render a fair and impartial verdict? If so please stand. We conclude that the trial court essentially asked the questions requested in numbers 17 and 20 and find no error in the trial court’s refusal to ask the questions in the words appellant suggested.

Question 19: Number 19, do you have any bias or prejudice concerning handguns which would prevent you from fairly weighing the evidence in this case. The Court of Appeals has held that the trial court should ask questions aimed at uncovering a bias based on the nature of the crime with which the defendant is charged. See Sweet v. State, 371 Md. 1, 9-10 , 806 A.2d 265 (2002); Thomas, 369 Md. at 214 , 798 A.2d 566 . In Thomas , the Court of Appeals held that the trial court abused its discretion by not asking on voir dire: Does any member of the jury panel have such strong feelings regarding violations of the narcotics laws that it would be difficult for you to fairly and impartially weigh the facts at a trial where narcotics violations have been alleged? 369 Md. at 204 , 798 A.2d 566 .

In Sweet, a case involving charges of assaulting and committing a second degree sexual offense against a minor (an 11-year old girl), the Court of Appeals held that the trial court abused its discretion in failing to ask the jury panel, “Do the charges stir up strong emotional feelings in you that would affect your ability to be fair and ⁶¹³ impartial in this case?,” 371 Md. at 9 , 806 A.2d 265 . The Court explained, The Court’s decision in petitioner’s case is essentially controlled by our recent decision in State v. Thomas, 369 Md. 202 , 798 A.2d 566 (2002). In that case, we held that it was an abuse of discretion for the trial court to refuse to ask the venire panel if any of them harbored “strong feelings regarding violations of the narcotics laws” in a trial in which the defendant was charged with possession and distribution of a controlled dangerous substance. See id. at 204 , 798 A.2d at 567 .

We reasoned that the inquiry was directed at biases, specifically those related to Thomas’s alleged criminal act, that, if uncovered, would be disqualifying when they impaired the ability of the juror to be fair and impartial. See id. at 211 , 798 A.2d at 571 . The rationale of Thomas in this regard is fully applicable to the instant case. Id. at 9-10, 806 A.2d 265 .

Here, appellant shot an unarmed man with a handgun, allegedly in self-defense or defense of his girlfriend. One of the facts the jury might have to decide was whether appellant used reasonable force. The trial court should have asked whether any prospective juror had strong feelings about handguns that would have affected his or her ability to weigh the issues fairly. We disagree that the trial court’s asking the panel whether any juror belonged to “any organization that is concerned with victims’ rights or that is otherwise concerned with law enforcement issues” would reveal any jurors who had strong prejudice toward handguns, especially since the trial court specifically mentioned “MADD or SADD or organizations such as those.” Obviously, a person could have strong prejudice against handguns without joining an organization.

There is no reason to believe it likely that such a person would have answered in the affirmative. Questions 12 and 15: [Njumber 12 concerning the defendant’s election to testify on his own behalf, whether or not any of the ⁶¹⁴ people in voir dire would consider that he would be testifying truthfully because he’s on trial and would they be unable to weigh his testimony in the same manner as any other witness. Number 15, whether or not you would tend to view the testimony of witnesses called by the defense with more skepticism than those called by the State, merely because they were called by the defense. In Bowie v. State, 324 Md. 1 , 595 A.2d 448 (1991), the trial court had refused to ask three voir dire questions requested by Bowie: whether a juror believes a police officer would be likely to tell the truth, whether a juror would believe a police officer more than a civilian witness, and whether a juror would “tend to view the testimony of witnesses called by the Defense with more skepticism than witnesses called by the State merely because they were called by the Defense.” Id. at 7 , 595 A.2d 448 .

The Court concluded that the trial court had abused its discretion and committed reversible error in “refusing to address ... the issue raised by the three questions proposed by appellant[.]” Id. at 11 , 595 A.2d 448 . The State distinguishes the present case from Bowie because the trial court here did ask about police witnesses. Bowie indicates, however, that the concern extends to State’s witnesses other than police officers: The State’s final contention, that failure to inquire, if error, was harmless beyond a reasonable doubt, fares no better than its previous ones since it is based essentially on the arguments we have already rejected. We must add, however, that were the State correct with respect to the non-fact police witnesses (those who testified concerning the investigation of the crimes), the testimony of McDaniels (the fact witness) would remain an obstacle to a harmless error analysis.

As to him, an issue of credibility was surely presented, namely, the reliability of his testimony. Moreover, to the extent that the State relies upon non-official witness testimony or the other police witnesses to corroborate McDaniels’ testimony, it overlooks question No. 3. ⁶¹⁵ That question is designed to discover those who would give greater weight to the testimony of the witnesses whom the State calls. That would include both the non-official witnesses, %.e. the victims and accomplice, as well as the non-fact police witnesses. 824 Md. at 10-11, 595 A.2d 448 . We agree with appellant that the trial court should have asked question 15.

We reach a different conclusion with respect to question 12. In Bernadyn v. State, 152 Md.App. 255, 283 , 831 A.2d 532 , cert. granted on other grounds, 378 Md. 613 , 837 A.2d 925 (2003), the trial court refused to ask whether the panel members would have a bias against the defendant’s testimony because he was accused of a crime and, therefore, give it less weight than the testimony of another witness. We found no abuse of discretion, noting that the court questioned the venire regarding biases in favor of or against the testimony of police officers. The issue was adequately addressed by the court.

Second, the court asked the venire whether members would “tend to view the witnesses called by the defense with more or less skepticism than witnesses called by the State[.]” The question is a broader version of that requested by appellant. The actual question posed to the venire would reveal not only bias towards appellant’s testimony but also towards those witnesses testifying on appellant’s behalf. Bernadyn, 152 Md.App. at 283-284 , 831 A.2d 532 . We agree.

Having concluded that the trial court here should have addressed whether the jurors would give more weight to the State’s witnesses, we see no reason to require the additional question appellant requested. Questions 13 and 14: Also Number 13, which states that the defendant has an absolute constitutional right not to testify and would you draw any inference of guilt from the defendant’s election not to testify or decision not to testify. Number 14 says that the State has the burden of proof to prove the defendant’s guilty beyond a reasonable doubt, the ⁶¹⁶ defendant does not have to prove his innocence. Would you draw any inference of guilt if this defendant elects not to present any testimony.

The trial court was not required to ask jurors whether they would draw an inference from the defendant’s election not to testify. In Twining v. State, 284 Md. 97 , 198 A.2d 291 (1964), the Court of Appeals rejected the contention that the jury should have been asked a question “related to whether the talismen would give the accused the benefit of the presumption of innocence and the burden of proof.” Id. at 100, 198 A.2d 291 . The Court stated, The rules of law stated in the proposed questions were fully and fairly covered in subsequent instructions to the jury. It is generally recognized that it is inappropriate to instruct on the law at this stage of the case, or to question the jury as to whether or not they would be disposed to follow or apply stated rules of law.

Id. This court reiterated that position in Carter v. State, 66 Md.App. 567, 576-77 , 505 A.2d 545 (1986). There, the trial court declined to propound a voir dire question to the jurors asking “whether they had any problem with the proposition that the mere fact that a person.has been charged with a crime is not evidence of guilt.” Id. at 576 , 505 A.2d 545 . We held that the question fell within the rule of Twining and that it was not an abuse of discretion for the trial court to have declined to ask it.

Id. at 577 , 505 A.2d 545 . Similarly, in Wilson v. State, 148 Md.App. 601, 656-57 , 814 A.2d 1 (2002), cert. denied, 374 Md. 82 , 821 A.2d 370 (2003), this Court rejected Wilson’s and Bryant’s contentions that the trial court had abused its discretion by declining to ask the jury certain voir dire questions. One of the questions asked whether any member of the jury panel was unwilling or unable to abide by the rule that unless he or she was satisfied beyond a reasonable doubt of the defendant’s guilt based solely on the evidence, the presumption of innocence required them to find the defendant not guilty. Id. at 656, 814 A.2d 1 .

Another ⁶¹⁷ asked whether the juror would be able to decide the guilt or innocence of each defendant based solely on the evidence presented against that defendant. Id. We held that the questions “were not framed in a manner likely to expose biases, prejudices, or misconceptions of the jury panel.” Id. at 659 , 814 A.2d 1 . Noting that those questions “more closely resemble jury instructions rather than voir dire questions,” the Court followed the rule of Twining, holding that it was “inappropriate to instruct the jury on the law during voir dire or to question the jurors as to whether they would be disposed to follow or apply stated rules of law.” Id. at 660, 814 A.2d 1 .

Here, the trial court told the jury that appellant was presumed to be innocent, that the State had the burden of proving appellant’s guilt beyond a reasonable doubt, and that appellant was not required to prove his innocence. Although appellant asserts that the trial court should have asked the jurors whether they would hold it against him if he did not testify, this, too, would have been an appropriate jury instruction if he had not testified and if he had requested it. See MPJI-Cr 3:17 (The defendant has an absolute constitutional right not to testify and the jury must not consider or even discuss the fact that the defendant did not testify). As appellant notes, some courts have reached a different conclusion.

See, e.g., State v. Cere, 125 N.H. 421 , 480 A.2d 195 (1984); People v. Zehr, 103 Ill.2d 472 , 83 Ill.Dec. 128 , 469 N.E.2d 1062 (1984); State v. Lumumba, 253 N.J.Super. 375 , 601 A.2d 1178 (1992); Jones v. State, 378 So.2d 797 (Fla.Dist.Ct.App.1980); United States v. Blount, 479 F.2d 650 (6th Cir.1973). Other courts have reached the same conclusion as Maryland. See, e.g., Harper v. State, 222 Ga.App. 393, 394 , 474 S.E.2d 288, 289 (1996); State v. Dahlgren, 200 Conn. 586, 602-03 , 512 A.2d 906, 915 (1986); United States v. Beckman, 222 F.3d 512, 519-20 (8th Cir.2000); United States v.