Benton v. State

⁶¹⁶ ARTHUR, J. Following a five-day jury trial in the Circuit Court for Prince George’s County, Joshua Benton, appellant, was convicted of first-degree murder, conspiracy to commit first-degree murder, and use of a handgun in the commission of a felony or crime of violence. The circuit court sentenced Benton to serve two consecutive life sentences for murder and conspiracy to commit murder and a consecutive sentence of 20 years for use of a handgun. He filed a timely appeal. Questions Presented Benton raises three questions for our review: 1.

Did the trial court err in failing to propound Benton’s requested voir dire question, which inquired whether any member of the venire had been charged with or convicted of a serious offense, other than a traffic offense? 2. Did the trial court err in admitting hearsay evidence? 3. Was the evidence insufficient to sustain Benton’s convictions? Because we agree that the trial court committed reversible error by failing to propound the requested voir dire question regarding whether the venire members had been convicted of a serious offense, and thus were statutorily disqualified to serve on the jury, we reverse Benton’s convictions and remand this case for a new trial.

Factual and Procedural History Benton was charged with offenses arising from the death of Sharod James. The evidence presented at Benton’s trial, framed in the light most favorable to the State demonstrated that around 11:50 p.m. on the night of November 16, 2012, James was shot at a gas station on Martin Luther King Jr. Highway in Prince George’s County. The State theorized that Benton and his co-defendant, Madhi Lawson, killed James ⁶¹⁷ because they believed that James had killed their friend, Matheno Nichols, in 2006. 1 Two witnesses, a driver and passenger of a nearby automobile, heard the gunshots while they were stopped at a red light near the gas station. They observed two men standing over another man in a dark area of the gas station lot.

Although the witnesses were too far away to see the faces of the two men they saw, they believed that the men were African-American. The witnesses were also able to describe the assailants’ clothing to the police. The witnesses’ description of the assailants’ clothing was consistent with the clothing worn by Benton and Lawson in a surveillance video taken at the gas station on the night James was killed. 2 Telephone records indicated that, at around the time of the shooting, James received a call from a cell phone number used by Lawson. Steven Waytes, who had been incarcerated with Benton in the Prince George’s County Corrections Center while Benton was awaiting trial in 2013, testified that members of the public believed that James had killed Benton’s friend, Matheno Nichols.

The trial court allowed the admission of Waytes’s grand jury testimony that Benton admitted that he was at the gas station on the night James was shot, but that “the State had nothing on him.” Discussion I. Voir Dire Question Before trial, the parties submitted written requests to the trial court, including the voir dire questions that they wanted the court to ask the potential jurors. The State’s proposed voir dire question number 7, inquired: “Have you, any mem ⁶¹⁸ bers of your immediate family, or close personal friends ever been ... arrested for, charged with, or convicted of a crime, excluding routine motor vehicle violations?” The defense’s proposed voir dire question number 26 queried: “Has any member of the jury or a close personal friend or relative been charged with or convicted of a serious offense, other than a traffic offense?” The defense also included question 31, which asked: “Has any member of the jury or a family member or a close personal friend, been a victim of a criminal offense?” During voir dire, the trial court posed only eight questions to the prospective jurors and then individually questioned the jurors who had responded affirmatively to the court’s questions. At the conclusion of voir dire, the following colloquy occurred: THE COURT: That’s it for the questions I intend to pose to them on voir dire. Any exceptions to the Court’s voir dire[?] [PROSECUTOR]: The State would ask for the standard three part—charged with, convicted of, victim of a crime.

THE COURT: I am not doing it. Case law says no. [PROSECUTOR]: No? [DEFENSE]: Going to ask. THE COURT: Not doing it. Case law says no. [DEFENSE]: Ask for the same thing in addition.

Court’s indulgence. [DEFENSE][ 3 ]: My question 23, which was— THE COURT: Which is, charged, must be guilty of something. I already asked the jurors. I was going to give them instructions that are going to be binding, and would they be able to follow the Court’s instructions. They said ⁶¹⁹ yes.

They will be instructed as to presumption of innocence. [DEFENSE]: Okay. Beyond that, the only hesitation I have is the Court saying they are not going to ask the question about whether a family member, close friend, or themselves have been a victim of a criminal offense. THE COURT: Well, you accept [sic ] to my not asking that question? [DEFENSE]: Yes, I do. Based upon the responses we’ve gotten so far from some of the jurors, indicated some of them, in fact, have been victims or have had close friends or relatives who are victims that has severely affected their ability to listen to the evidence and be impartial.

THE COURT: I certainly do not feel myself willing, capable to challenge the wisdom of the Court of Appeals who have spoken in this matter. Benton asserts that the trial court abused its discretion by refusing to question the venire members about whether any of them were currently charged with or had previously been convicted of a serious offense. The court was required to ask the requested voir dire question, Benton contends, because it was intended to “expose the venire persons’ statutory disqualifications.” Preliminarily, we must address the State’s assertion that the defense failed to preserve Benton’s arguments regarding the failure to ask the requested voir dire question. Based on the colloquy reproduced above, the State asserts that, although defense counsel joined in the State’s request to ask the “three part—charged with, convicted of, victim of a crime” question, he subsequently limited his argument to the court’s refusal to question the venire regarding whether they or a close friend or relative had been a victim of a crime and thereby waived all other grounds for his objection.

The State further asserts that because defense counsel merely joined in the State’s request for the three-part question, Benton made no “specific request” to propound a question that focused on ⁶²⁰ any potential juror’s pending charges and prior convictions. We reject the claim of non-preservation. The manner of making objections during jury selection is governed by Md. Rule 4—328(c). See Marquardt v. State, 164 Md.App. 95, 142-43 , 882 A.2d 900 (2005).

This rule provides as follows: (c) Objections to other rulings or orders. For purposes of review by the trial court or on appeal of any other ruling or order, 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.... Before trial, Benton submitted a written request that the court ask potential jurors whether they had ever “been charged with or convicted of a serious offense[.]” During voir dire, defense counsel joined in the State’s request for a three-part “charged with, convicted of, victim of’ question at the close of the court’s voir dire, indicating that he was, “going to ask ... for the same thing in addition” to the State’s request.

These efforts were sufficient to let the court know that the defense wanted the court to ask the proposed question and that the defense objected to the court’s refusal to ask the question. After the trial court summarily denied those requests, the court then denied a separate, unrelated request to ask the venire members whether they would presume that any person charged with a crime is guilty. A moment after that ruling, defense counsel then took exception to the court’s refusal to ask his previously proposed question about whether potential jurors had ever been the “victim of’ a crime. 4 At that point, ⁶²¹ the court explained its refusal to propound any “victim of’ question. We see no suggestion in the record that, when the defense noted an exception to the court’s refusal to ask the proposed “victim of’ question, defense counsel expressed any intent to withdraw the previous objection to the court’s refusal to ask the three-part “charged with, convicted of, victim of a crime” question.

In light of the trial court’s emphatic, repeated ruling (“Not doing it. Case law says no”), any additional efforts by defense counsel to “focus the court on the ‘convicted of part of the State’s question[,]” as the State suggests he was required to do, would have run a substantial risk of antagonizing the court. Defense counsel reasonably chose to drop the issue and move on, expressly stating that his subsequent requests and arguments were made “in addition” to his previously-denied request for “the same” three-part “charged with, convicted of, victim of’ question that the State had proposed. The State now complains that it is an “appellate afterthought” for Benton to contend that he was attempting “to expose the venire persons’ statutory disqualifications” through the parts of his three-part voir dire question that asked whether a prospective juror had been convicted of or charged with a serious offense.

The State’s contention has some intuitive force, as Benton certainly never mentioned statutory disqualifications as a basis for propounding the proposed question. Furthermore, if Benton had mentioned statutory disqualifications, the circuit court almost certainly would have refocused its analysis from the question concerning whether a juror had been a victim of a crime, which it correctly recognized that it need not ask (see Pearson v. State, 437 Md. 350, 359 , 86 A.3d 1232 (2014)), to the separate question concerning whether a juror had been convicted of or charged with a serious crime. Nonetheless, for the purposes of appellate review, Benton was not required to explain the basis for his request. Under Md. Rule 4-323(c), it was “sufficient” for Benton simply to “make[ ] known to the court the action that [he] desire[d] the ⁶²² court to take[.]” He had no obligation to state the grounds for the objection, because the court did not direct him to do so.

See id. This Court’s decision in Baker v. State, 157 Md.App. 600 , 853 A.2d 796 (2004), confirms that Benton adequately preserved his objection to the court’s failure to propound his question. In Baker the defendant had submitted a written list of proposed voir dire questions. Id. at 608 , 853 A.2d 796 .

The circuit court asked defense counsel whether he wanted to be heard in support of the submission, but counsel declined to speak. Id. at 609 , 853 A.2d 796 . On appeal from the court’s failure to ask one of the proposed questions, the State argued that the defendant had waived his rights by failing to state the basis for his objection. Applying Rule 4-323(c), however, this Court held that the defendant preserved his objection simply by informing the court what action he wanted the court to take—ie., by asking the court to read his proposed voir dire questions.

Baker, 157 Md.App. at 610 , 853 A.2d 796 . It made no difference that the defendant had failed to avail himself of a later opportunity to articulate the rationale for his proposed questions or the basis for objecting to the court’s refusal to ask them. Under Rule 4-323(c), the defendant would have waived his rights only if he faded to state the grounds after the court had affirmatively directed him to do so. Additionally, Benton did not waive his objection to the trial court’s failure to ask the requested voir dire question by ultimately accepting the empaneled jury.

See Kegarise v. State, 211 Md.App. 473 , 477 n. 2, 65 A.3d 741 (2013); see also State v. Stringfellow, 425 Md. 461, 471 , 42 A.3d 27 (2012) (stating that “unqualified acceptance” of jury panel does not waive “an objection to a judge refusing to ask a proposed voir dire question”); Marquardt, 164 Md.App. at 142-43 , 882 A.2d 900 (party’s voir dire objection is preserved by letting the court know what action the party wanted the court to take). In light of Baker and Rule 4-323(c), we have no choice but to conclude that Benton preserved his objection. Defense counsel let the trial court know, both in writing and in an oral ⁶²³ request, that he wanted the court to ask a voir dire question that included the “charged with, convicted of, victim of’ language. The trial court made a clear ruling denying that request, without directing Benton to state the grounds for his request.

At no point did defense counsel subsequently withdraw that request, or limit his request to only the “victim of’ portion of the proposed voir dire question. Therefore, Benton preserved his arguments for appellate review. We shall now consider whether the trial court abused its discretion by failing to propound a voir dire question, requested by both parties, which inquired, in pertinent part, whether any member of the venire panel was currently charged with or had previously been convicted of a serious offense, other than a traffic offense. Maryland courts employ “ ‘limited voir dire[,J ” the “sole purpose [of which] ‘is to ensure a fair and impartial jury by determining the existence of [specific] cause for disqualification[.]’ ” Pearson, 437 Md. at 356 , 86 A.3d 1232 (quoting Washington v. State, 425 Md. 306, 312-13 , 40 A.3d 1017 (2012)) (alterations in Pearson).

The Court of Appeals has identified “two broad areas of inquiry that may reveal cause for a juror’s disqualification: (1) examination to determine whether the prospective juror meets the minimum statutory qualifications for jury service, and (2) examination to discover the juror’s state of mind as to the matter in hand or any collateral matter reasonably liable to have undue influence over him.” Washington, 425 Md. at 313 , 40 A.3d 1017 (citing Davis v. State, 333 Md. 27, 35-36 , 633 A.2d 867 (1993)). “Maryland law has made clear that if a question is directed to a specific cause for disqualification then the question must be asked and failure to do so is an abuse of discretion.” Moore v. State, 412 Md. 635, 654 , 989 A.2d 1150 (2010) (internal quotation marks and citation omitted). More specifically, we have held that “trial judges are required ‘to pose voir dire questions directed at exposing constitutional and statutory disqualifications when requested by a party[.]’ ” Kegarise, 211 Md.App. at 478 , 65 A.3d 741 (quoting ⁶²⁴ Owens v. State, 399 Md. 388, 422 , 924 A.2d 1072 (2007)). In Owens , the Court of Appeals held that a criminal defendant had waived an objection based on the statutory requirement that a jury be composed entirely of citizens, because the defendant waited until after voir dire to challenge an unqualified juror. Owens, 399 Md. at 426 , 924 A.2d 1072 .

The Court commented that “[h]ad Owens sought, and the trial judge refused, a citizenship question” during voir dire,