Bowie v. State

⁴ ROBERT M. BELL, Judge. Damon Alejandro-Christopher Bowie, appellant, was convicted by a jury in the Circuit Court for Prince George’s County of two counts each of: first degree murder; attempted murder; assault with intent to murder; malicious shooting; and robbery with a deadly weapon. He was also convicted of related counts of use of a handgun in the commission of a felony or crime of violence. The State having timely given notice of its intention to seek the death penalty and/or imprisonment for life without the possibility of parole, see Maryland Code Ann. art. 27, § 412(b) (1957, 1987 Repl.Vol.1990 Cum.Supp.), appellant elected to be sentenced by the jury.

Following a capital sentencing proceeding, the jury determined that a sentence of death should be imposed for each of the first degree murder convictions. Thereafter, the trial court imposed the death sentences and, in addition, sentenced appellant to additional terms of incarceration totaling 120 years. On this appeal, 1 appellant presented 12 issues, of which we need address only four, 2 345namely: ⁵ 1. Did the trial court err in refusing to propound voir dire questions designed to identify jurors who would give more weight to the testimony of police officers than civilians or to State’s witnesses and defense witnesses? 2.

Did the trial court err in refusing to propound a requested voir dire question relating to the possible racial bias of the prospective jurors? 3. Did the trial court conduct an inadequate jury selection procedure with respect to the views of the prospective jurors on the death penalty? 4. Did the trial court err in its sentencing-phase instructions to the jury? 3 We will reverse and remand to the Circuit Court for Prince George’s County for a new trial. The issues we find dispositive of this appeal do not require a detailed recitation of the facts as developed in the trial below.

It is, for our purposes, sufficient to note that appellant and James Edmonds, his accomplice, both armed with handguns, entered Stoney’s Restaurant located on Old Branch Avenue in Prince George’s County, Maryland and announced a robbery. Another accomplice, Darrell Thomas, acted as a lookout, remaining outside the restaurant on the parking lot. Yet another of appellant’s companions, Shaun Harris, who testified on behalf of the State in return for use and derivative use immunity, was a short distance away, ⁶ with Christian Bowie, appellant’s sister, in the truck in which appellant was travelling. During the robbery, a bartender was forced into a back room and turned money over to Edmonds.

Two other restaurant employees, Kevin Shelley, who was white, and Arnold Batson, who was African-American, were forced to lay face down on the floor. Each was fatally shot in the back of the head. The owner of the restaurant was shot in the arm and an off-duty Prince George’s County police officer, Robert McDaniels, was shot in the face. Appellant was identified by McDaniels as the person who shot him in the face and held the gun to the back of Batson’s head.

Additional facts will be supplied as they become relevant to the discussion of the issues. 1. Among the questions that appellant submitted to the trial court for inclusion in its voir dire examination were the following: 1. Many of the State’s witnesses will be police officers. Do you believe that a police officer will tell the truth merely because he or she is a police officer? 2.

Would any of you be more or less likely to believe a police officer than a civilian witness, solely because he or she is a police officer? 3. Would any of you 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? The court neither asked those questions, nor incorporated their substance into those it did ask, whereupon appellant objected. The objection was overruled.

Appellant maintains that that ruling was prejudicial error, necessitating reversal and remand for a new trial. The State recognizes that “Langley v. State, 281 Md. 337 [ 378 A.2d 1338 ] (1977), suggests that inquiry on this subject would have been appropriate under the circumstances such as those present here____” Nevertheless, it resists rever ⁷ sal on three bases: (1) by failing to proffer the centrality of police testimony in the case at the time of voir dire, appellant failed, in effect, to preserve the trial court’s refusal to propound the questions as an appellate issue; (2) appellant’s failure to testify resulted in there being no “diametrically opposed” versions of events; therefore, no issue concerning the veracity of police testimony was presented and, consequently, appellant was not prejudiced; and (3) if error, it was harmless. Accordingly, the State maintains, appellant is not entitled to reversal on this ground. In addition to McDaniels, who was a fact witness, the State’s witness list indicated that it would, and the record reflects that it did, call other police officers to testify in their official capacity.

In particular, the State called Prince George’s County police officers and members of the Federal Bureau of Investigation to testify concerning various aspects of the investigation resulting in appellant’s arrest. In addition to police personnel, the State also called the victims, all but one of whom—McDaniels—had no official position, and one of appellant’s companions, Shaun Harris. Appellant did not testify, electing instead to call only two witnesses. One witness was the custodian of the records for the Prince George’s Hospital Center, who testified concerning McDaniels’ intoxication, providing his blood alcohol level.

The other was a police officer, who testified concerning the make-up of the lineup in which appellant appeared. The critical issue in the case was appellant’s criminal agency. Not surprisingly, therefore, appellant sought, through cross-examination, to discredit the State’s witnesses and, thereby, establish the proverbial reasonable doubt. While related, the three questions appellant requested were aimed at identifying two categories of venirepersons: (1) those who would believe police officers, simply because they were police officers, and (2) those who would prefer the testimony of State’s witnesses over defense witnesses.

In the first category, a further dichotomy is possible, between those who would simply believe police officers by ⁸ virtue of the position without regard to testimony from anyone else and those who would believe the police officers in comparison to civilian witnesses. We deem Langley to be dispositive. There, the trial judge refused to propound, on voir dire, the following question proposed by the accused: Is there anyone here who would give more credit to the testimony of a police officer over that of a civilian, merely because of his status as a police officer? 281 Md. at 338 , 378 A.2d at 1338 . We reversed affirmance of the accused’s conviction by the Court of Special Appeals, holding: [I]n a case such as this, where a principal part of the State’s evidence is testimony of a police officer diametrically opposed to that of a defendant, it is prejudicial error to fail to propound a question such as that requested in this case.

Langley, 281 Md. at 349 , 378 A.2d at 1344 . We reasoned that, although the determination of what inquiry should be made of venirepersons concerning their eligibility to serve as jurors “is committed largely to the sound discretion of the trial court in each case,” [Pjarties to an action triable before a jury have a right to have questions propounded to prospective jurors on their voir dire, which are directed to a specific cause for disqualification, and failure to allow such questions is an abuse of discretion constituting reversible error. (Emphasis in original) Casey v. Roman Catholic Arch., 217 Md. 595, 605 , 143 A.2d 627, 631 (1958). We proceeded to make clear that the question requested fell within the subjects of inquiry aimed at excluding venirepersons not eligible for service as jurors.

We said: A juror who states on voir dire that he would give more credit to the testimony of police officers than to other persons has. prejudged an issue of credibility in the case. Regardless of his efforts to be impartial, a part of his ⁹ method for resolving controverted issues will be to give greater weight to the version of the prosecution, largely because of the official status of the witness. The argument by the State that police officers are entitled to greater credibility because they have less interest in the outcome of the case is not sufficient to overcome such an objection. 281 Md. at 348 , 378 A.2d at 1343 . The State’s argument is that a proffer was required to establish both that police testimony would be important to the State’s case and that the testimony would be contradicted by “diametrically opposed” testimony. 4 It relies on language in Langley indicating that the scope of the voir dire into juror eligibility is largely discretionary with the trial court.

See Langley, 281 Md. at 341 , 378 A.2d at 1340 . Other than that reference, the State cites no authority for the proposition. We are not persuaded. Even a cursory review of the Langley opinion reveals that the Court did not require a proffer as now urged by the State; indeed, the point was never addressed. 5 Nor are we satisfied that the Langley holding applies only when a defendant takes the stand and testifies “dia ¹⁰ metrically opposed” to the testimony of the police witnesses. 6 Consequently, we reject the State’s alternative argument.

The flaws in the State’s argument are obvious. The first lies in its conclusion that credibility is an issue only when different versions of facts are specifically presented by opposing parties. In addition, and more critical, whether voir dire is proper is made to depend on hindsight—-to require voir dire into police preference, the defendant must testify, and he or she must do so “diametrically opposed” to that of the police. The State would have a defendant in all cases put on a defense or fail in his or her effort to have the jury questioned concerning the question of police preference.

The State’s burden is to prove the case against the defendant. The defendant has no burden at all. Where the issue is the defendant’s criminal agency, the State must prove that agency by presenting witnesses, whose credibility ordinarily is necessarily at issue. And, in that situation, even though the defendant never takes the stand, cross-examination may suggest another version of facts, or, at least raise questions as to the accuracy, or veracity, of the testimony of the State’s witnesses.

Therefore, whether, or not, a defendant elects to take the stand or to present evidence at all, it is still necessary to determine whether witnesses called by the State will start with a “presumption of credibility” simply because of the positions occupied rather than the facts of the case. Certainly Langley does not specifically so hold; it just happens that in Langley, the defendant testified. 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, ¹¹ 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. 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, ie. the victims and accomplice, as well as the non-fact police witnesses.

In conclusion, we hold that the trial court erred in refusing to address in voir dire the issue raised by the three questions proposed by appellant and that the error was not harmless beyond a reasonable doubt. Dorsey v. State, 276 Md. 638, 659 , 350 A.2d 665, 678 (1976). 2. Appellant is an African-American and, with the exception of Batson, one of the murder victims, all of the victims and most of the State’s witnesses were white. Accordingly, appellant requested the trial court to propound the following questions to the venirepersons: 1.

Most of the victims in this case are white and Mr. Bowie and his alleged accomplices are black. Do you feel uncomfortable sitting on a jury where a black man is accused of shooting and robbing several white individuals? 2. Have you or any of your family been a member of any organization with a stated philosophy on race? The trial court refused to propound the questions and appellant excepted.

It is arguable that both of the proposed questions are defective; nevertheless, we hold that it was error for the trial court to refuse to propound any ¹² questions designed to elicit the essence of the information appellant sought. Simply because, in a non-capital case, 7 the victim of the crime is white and the defendant is African-American does not constitutionally require that questions into the venirepersons’ racial prejudice must be propounded on voir dire. Ristaino v. Ross, 424 U.S. 589, 594-95 , 96 S.Ct. 1017, 1020-21 , 47 L.Ed.2d 258, 263 (1973). In that case, a State criminal trial of various crimes perpetrated by an African-American defendant against a white security guard, the trial court refused to propound to the venirepersons a question directed at racial prejudice.

The Supreme Court affirmed, noting generally that the questions to be proposed during voir dire are largely discretionary with the trial court and “[t]hus, the State’s obligation to the defendant to impanel an impartial jury generally can be satisfied by less than an inquiry into a specific prejudice feared by the defendant.” Id. See also Ham v. South Carolina, 409 U.S. 524, 527-28 , 93 S.Ct. 848, 850-51 , 35 L.Ed.2d 46, 50-51 (1973); Holmes v. State, 65 Md.App. 428, 434-35 , 501 A.2d 76, 79 (1985), rev’d on other grounds, 310 Md. 260 , 528 A.2d 1279 (1987). On the other hand, the Supreme Court said: ¹³ Ristaino, 424 U.S. at 597 n. 9, 96 S.Ct. at 1022 n. 9, 47 L.Ed.2d at 265 n. 9. ¹² Although we hold that voir dire questioning directed to racial prejudice was not constitutionally required, the wiser course generally is to propound appropriate questions designed to identify racial prejudice if requested by the defendant. The States also are free to allow or require questions not demanded by the Constitution. ¹³ In Maryland, it is well-settled that interrogation of the venirepersons with respect to possible racial prejudice is required, on request, when racial prejudice may be a factor, given the facts of the case.

Humphreys v. State, 227 Md. 115 , 175 A.2d 777 (1961); Contee v. State, 223 Md. 575 , 165 A.2d 889 (1960); Brown v. State, 220 Md. 29 , 150 A.2d 895 (1959); Holmes, 65 Md.App. at 438-39 , 501 A.2d at 81 ; Tunstall & Alton v. State, 12 Md.App. 723 , 280 A.2d 275 (1971); Smith & Nelson v. State, 12 Md.App. 130 , 277 A.2d 622 (1971). Moreover, neither a specific form of question nor procedure is required; it is only necessary that the essence of the information sought to be elicited is obtained. See Contee, 223 Md. at 579-81 , 165 A.2d at 892-93 . In Contee , the voir dire questions submitted by the defendant were improper; “none was reasonably calculated to elicit or ascertain such bias or prejudice as would disqualify a prospective juror from rendering a fair and impartial verdict on the law and the evidence.” 223 Md. at 580 , 165 A.2d at 892 .

Nevertheless, we reversed, reasoning that when the lower court is made aware of the essence of what the defendant is seeking, it should either ask, on its own motion, “a proper question designed to ascertain the existence of cause for disqualification on account of racial bias or prejudice,” 223 Md. at 580 , 165 A.2d at 893 , or give the defendant an opportunity to submit additional, proper voir dire questions. Otherwise, “a defendant is denied the opportunity of submitting or requesting proper questions relating to racial bias or prejudice to be propounded by the court to prospective jurors on voir dire, [and] such denial constitutes reversible error.” 223 Md. at 581 , 165 A.2d at 893 . We reversed the conviction of an African-American defendant, for shooting and killing a police officer, in Brown , because the trial court refused to propound questions designed to elicit the racial prejudice of the venirepersons ¹⁴ upon the defendant’s request. 220 Md. at 34-36 , 150 A.2d at 897-98 . Noting that: The refusal to ask any questions as to the bias or prejudice which jurors might have as to a Negro, and as to whether the jury could give the defendant as fair and impartial a trial as they could a white man, falls into a different category [than questions regarding pre-trial publicity and jury connection with counsel], requiring more consideration, Id. at 34 , 150 A.2d at 897 , we observed that “Unless bias is inquired into beforehand, its existence ordinarily will not become known since the verdict cannot be impeached.” Id. at 36 , 150 A.2d at 898 .

We also relied on State v. Higgs, 143 Conn. 138 , 120 A.2d 152, 154-55 (1956), in which the Court said: We cannot be blind to the fact that there may still be some who are biased against the Negro race and would be more easily convinced of a Negro’s guilt of the crime of rape than they would of a white man’s guilt____ So long as race prejudice exists, even in a relatively few persons, there is a substantial chance that one of those few will appear in court as a venireman. Consequently, the fact that most people in the State are not prejudiced against Negroes is not of controlling importance. Contee involved the alleged rape of a white woman by an African-American defendant. The venirepersons should have been questioned concerning racial bias, we noted, because the case was the type likely to cause “some racial feelings in the community where it is to be tried.” 223 Md. at 580 , 165 A.2d at 892 .

The same result was reached in Humphreys . There, we were again faced with the alleged rape of a white woman by an African-American man. We said: It is settled law in this State in a case where prejudice against the Negro race may be a factor in determining a prospective juror’s attitude toward a particular defendant, the existence of such prejudice is a proper area of inquiry in the voir dire examination of the jurors____ ¹⁵ Where such inquiry is sought on voir dire examination and the trial court refuses to ask questions of the jurors directed toward this end, we have held that this “failure to elicit from the jurors the essence of the information sought by the appellant was reversible error----” (Emphasis in original, citations omitted) 227 Md. at 118 , 175 A.2d at 778 . The Court of Special Appeals has also addressed the issue.

That court, in Smith & Nelson, supra, held that the trial court’s refusal to ask the venirepersons about racial bias in that case, involving an armed robbery, was reversible error. In addition, the court refused to accept the geographical location in the state as a factor to be considered in the determination of the appropriateness of the question. Relying on Smith & Nelson, the Court of Special Appeals reached the same result in Tunstall & Alton, another armed robbery case. Holmes revisited the prior cases in order to determine what the requirement that there be special circumstances means.

The Holmes court concluded: Our review of the cases causes us to conclude that, in a criminal case, prejudice may be a factor because of the facts of the case when the complainant and the witnesses for the State are of a different race than the defendant, and the crime involves victimization of another person and the use of violence. 65 Md.App. at 438-39 , 501 A.2d at 81 . Turning to the case sub judice, it is patent that the trial court erred in refusing to inquire concerning possible racial prejudice. All but one of the victims and most of the witnesses for the State were white. On the other hand, appellant is an African-American.

Moreover, this case involves the violent victimization of other persons. Consequently, under our cases, inquiry into juror racial bias ¹⁶ should have been made. 8 3. The entire voir dire examination conducted by the trial court into the views of the vénirepersons concerning the death penalty was: Ladies and gentlemen, the State of Maryland has filed a request before the court that if found guilty, Mr. Damon Bowie be put to death. Is there any member of the prospective jury panel who has any feelings whatsoever about such a request, and I don’t care which way you feel about it, that it would interfere with your ability to fairly and truly judge this matter based only on the evidence before the court?

Said another way, is there anybody in this room who has such feelings about the death penalty one way or the other that it would affect you emotionally or to the extent that it would override your ability to judge this matter based only on the evidence brought out in the courtroom and the instructions of the court to you and the application of that evidence to the law? If you have a positive response, please stand in place. Those jurors who stood were excused for cause. After the first prospective juror had been excused, appellant’s counsel noted objection and asked to approach the bench, at which the following colloquy occurred: MR.

HELFAND [Appellant’s Co-Counsel]: Your Honor, we object to the striking of that particular juror. I think it was No. 113. THE COURT: It was indeed. Diane Wells. ¹⁷ MR.

HELFAND: For the specific reason that, number one, we don’t know what we think is her real opinion without a lot more questioning as to her feelings for or against the death penalty. We suggested in our voir dire a number of questions that we thought would— THE COURT: What voir direct MR. SHEFFERMAN [Appellant’s Co-Counsel]: It is filed. Do you want an extra copy?

MR. HELFAND: That’s the State’s. MR. SHEFFERMAN: I have a clean copy if you want an extra one to work with.

MR. HELFAND: In addition to which, Your Honor, we object on the grounds that we believe that to ask each of these people this type of a question in public diminishes their real ability to respond, we believe when you have to do it in public, and that’s why we asked that you individually call each one up that has any reservations so that we can hear what they have to say and each side have an opportunity, particularly our side, to discuss with them in your presence other questions which might with explanation make them a prospective juror. THE COURT: You are saying that you want a chance to argue them out of their response that they cannot fairly and accurately try this case. MR.

HELFAND: Yes, I think— THE COURT: Well, that is denied. You are entitled to a panel that can fairly and truly try this case. These people say they can’t. I don’t care what they think about the death penalty one way or the other.

If they can’t give a true and fair verdict in this case, they’re not going to be available to you to choose as jurors. MR. HELFAND: But what happens we are afraid of is that the most likely scenario is that people who have a fear of capital punishment are the people who most likely, we suggest to you, stand up and say that they cannot hear it because of a fear of capital punishment, which are precisely the very people that we would like to have an opportunity to, one, discuss the matter with in your ¹⁸ presence and, two, attempt to if necessary to hear an explanation about it. Maybe they have some different reasons, and perhaps even an opportunity to rehabilitate them if that’s the correct phrase.

THE COURT: Madam State’s Attorney. MISS JOHNSTON [Assistant State’s Attorney]: Your Honor, I think that the question the court has asked the panel is the appropriate question under the law. The court has elicited a positive response only from those people who feel that their opinions concerning the death penalty would prohibit them from being fair and impartial in this case. I would like the court to continue to proceed as the court has elected to.

THE COURT: I intend to. Your objections are noted and overruled. Appellant argues that the voir dire question propounded by the trial court was both substantively and procedurally inadequate. It was substantively inadequate, he asserts, because it failed to identify, as required by Wainwright v. Witt, 469 U.S. 412 , 105 S.Ct. 844 , 83 L.Ed.2d 841 (1985) and Adams v. Texas, 448 U.S. 38 , 100 S.Ct. 2521 , 65 L.Ed.2d 581 (1980), the state of mind necessary to justify striking a venireperson for cause; it did not permit the court to determine whether the venirepersons could, despite their personal views on the subject, obey instructions given by the court.

That deficiency could have been remedied, he argues, had the trial court followed his advice and asked follow-up questions focused on what the venirepersons really thought. The question was procedurally defective, appellant maintains, in that it was “too brief and superficial to meaningfully probe into the genuine beliefs of the jurors.” The most recent formulation of the standard to be utilized to determine whether a venireperson’s views on capital punishment require exclusion of that person for cause is contained in Witt, supra. Before its pronouncement in that case, the Supreme Court had held “that a State may not constitutionally execute a death sentence imposed by a jury culled of all those who revealed during voir dire examina ¹⁹ tion that they had conscientious scruples or were otherwise opposed to capital punishment.” Adams, 448 U.S. at 43 , 100 S.Ct. at 2525 , 65 L.Ed.2d at 588 , explicating Witherspoon v. Illinois, 391 U.S. 510, 522 , 88 S.Ct. 1770, 1776-77 , 20 L.Ed.2d 776, 785 (1968); only if it is unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant’s guilt, (Emphasis in original) would it be appropriate to exclude a venireperson. Witherspoon, 391 U.S. at 522 -23 n. 21, 88 S.Ct. at 1776 -77 n. 21, 20 L.Ed.2d at 785 n. 21.

The standard now is “whether the juror’s views would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ” Witt, 469 U.S. at 424 , 105 S.Ct. at 852 , 83 L.Ed.2d at 851-52 , quoting Adams, 448 U.S. at 45 , 100 S.Ct. at 2526 , 65 L.Ed.2d at 589 . “This standard, essentially, is that jury impartiality requires only ‘jurors who will conscientiously apply the law and find the facts.’ ” Hunt v. State, 321 Md. 387, 415 , 583 A.2d 218, 231 (1990), quoting Witt, 469 U.S. at 423 , 105 S.Ct. at 852 , 83 L.Ed.2d at 851 . The Supreme Court has also addressed the nature of the trial court’s decision-making when it applies the proper standard to the determination whether to exclude a particular venireperson. It concluded that “excluding prospective capital sentencing jurors because of their opposition to capital punishment is no different from excluding jurors for innumerable other reasons which result in bias____” Witt, 469 U.S. at 429 , 105 S.Ct. at 855 , 83 L.Ed.2d at 855 . Thus, “[t]he trial judge is of course applying some kind of legal standard to what he sees and hears, but his predominant function in determining juror bias involves credibility findings whose basis cannot be easily discerned from an appel ²⁰ late record.” Id.

To these factual findings, an appellate court must defer. Id. As reported in Witt, 469 U.S. at 415-16 , 105 S.Ct. at 848 , 83 L.Ed.2d at 846 , the decision to excuse a venireperson for cause was made after the following colloquy was had at the bench: [Q. PROSECUTOR]: Now, let me ask you a question, ma’am. Do you have any religious beliefs or personal beliefs against the death penalty? [A. COLBY]: I am afraid personally but not— [Q] Speak up, please. [A]: I am afraid of being a little personal, but definitely not religious. [Q]: „ Now, would that interfere with you sitting as a juror in this case? [A]: I am afraid it would. [Q]: You are afraid it would? [A]: Yes, sir. [Q]: Would it interfere with judging the guilt or innocence of the Defendant in this case? [A]: I think so. [Q]: You think it would. [A]: I think it would. [Q]: Your Honor, I would move for cause at this point.

THE COURT: All right. Step down. Applying the standard it had enunciated, the Court stated: “whatever