Brice v. State

WOODWARD, J. Jovan Maurice Brice, appellant, was arrested on August 2, 2011, and charged with illegal possession of a regulated firearm. On July 18, 2014, appellant was convicted of that charge after a jury trial in the Circuit Court for Harford County. Thereafter, appellant was sentenced to five years in prison, with all but three years suspended and five years of supervised probation. On appeal, appellant presents four questions for our review, which we have slightly rephrased: 1.

Did the trial court err in refusing to ask, during voir dire, the police witness questions? 2. Did the trial court err in permitting the admission of testimony about an alleged prior bad act? 3. Was the evidence sufficient to sustain the conviction? 4. Was there probable cause for a traffic stop for a violation of Section 21-604 of the Transportation Article? 1 We conclude that the trial court erred in refusing to ask the police witness questions and, accordingly, reverse the judgment of the circuit court.

Because we answer question three in the affirmative, we will remand the case for a new trial. For the guidance of the trial court on retrial, we shall address the remaining questions. ⁶⁷⁴ BACKGROUND On August 2, 2011, appellant was charged with illegal possession of a regulated firearm. Prior to trial, on June 6, 2012, appellant filed a motion to suppress the evidence obtained as a result of a traffic stop. The circuit court held a hearing on appellant’s motion that same day.

At the hearing, Deputy Keith Jackson of the Harford County Sheriffs Office testified on behalf of the State. Deputy Jackson testified that, on the evening of July 21, 2011, he was conducting surveillance of a gas station. The surveillance was in response to a series of recent robberies that had occurred at local gas stations. Deputy Jackson observed appellant, who fit the description of the robbery suspect, pull up to the gas station in a Cadillac.

When appellant exited the convenience store at the gas station, he paused by the door and looked around for a few seconds. This behavior seemed odd to Deputy Jackson, so he followed appellant as he drove away from the station. Deputy Jackson followed appellant’s car for approximately five to six minutes, at which point appellant made a right hand turn from Main Street to Courtland Street without using a turn signal. At the time appellant made the turn, Deputy Jackson was directly behind him at a distance of about one car length.

Appellant’s turn “kind of took [Deputy Jackson] off balance.” Deputy Jackson then activated his emergency equipment and conducted a traffic stop. Deputy Jackson approached the vehicle and saw that appellant was the only occupant. He asked appellant for his license and registration, which appellant produced. At that time, Deputy Greg Jordan and Colonel Javier Moro arrived on the scene as backup.

Deputy Jackson returned to his vehicle to run appellant’s information while the other officers remained with appellant. While running appellant’s information, Deputy Jackson noticed the other officers begin to close in on appellant. Deputy Jackson stopped his investigation and went to assist them. Appellant was taken out of the car, placed in handcuffs, and seated on the shoulder of the road.

The officers ⁶⁷⁵ conducted a search of the vehicle and then released appellant with a traffic warning. A jury trial was held from July 16, 2014 through July 18, 2014. Deputy Jackson took the stand and testified to the same general information that was presented at the suppression hearing with a few additional details. He testified that, when the search of appellant’s vehicle was conducted, Deputy Jordan found a clear sandwich baggie under the driver’s seat that contained a metallic handgun magazine.

Colonel Moro testified that he was one of the two officers who came to assist Deputy Jackson during the traffic stop of appellant. Colonel Moro stated that he had removed appellant from the car because Deputy Jordan saw appellant “making some movements.” Deputy Gregory Young then testified that Deputy Jackson told him about appellant’s traffic stop during a lunch conversation. As a result of this information, Deputy Young initiated a firearms investigation into appellant. An online case search indicated that appellant had two convictions from 2002 and 2006 for possession of a controlled dangerous substance (not marijuana).

Deputy Young decided that a search and seizure warrant should be obtained for appellant’s residence based on that information. On the morning of August 2, 2011, the Special Weapons and Tactics team entered and searched appellant’s apartment pursuant to a search warrant. Appellant was the only person present inside the apartment. During the search, a Lorcin .380-caliber handgun was found inside the pocket of a jacket hanging in appellant’s closet.

Officers also found a box of 9mm Browning cartridges and a pistol magazine with eight live cartridges. Deputy Young testified that the firearm recovered was classified as a regulated firearm. He further testified that anyone convicted of a charge that carries a statutory penalty of more than two years is prohibited from possessing a regulated firearm. The statutory penalty for each of appellant’s two previous convictions of possession of a ⁶⁷⁶ controlled dangerous substance (not marijuana) was four years. 2 Appellant was advised of his Miranda rights and indicated that he understood his rights and would speak to the investigators.

See Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966). Special Agent Alan Boroshok testified that he and Agent Anthony Tolomeo conducted an interview with appellant during the search of his apartment. Appellant told the agents that he received the pistol magazine from his cousin in 2004 and bought the ammunition at Walmart. According to Agent Boroshok, appellant said “that he acquired the handgun from what he termed a junkie in the White Marsh area. [Appellant] made a trade for an eight ball of crack cocaine for it.” Appellant told Agent Boroshok that he had the gun for seven years, but had never actually shot it.

Appellant admitted that he had wiped down the gun. On July 18, 2014, appellant was convicted of illegal possession of a regulated firearm. On September 23, 2014, appellant was sentenced to five years of incarceration, with all but three years suspended and five years of supervised probation. DISCUSSION I. Voir Dire Questions Voir dire is ‘“the process by which prospective jurors are examined to determine whether cause for disqualification exists.’ ” Moore v. State, 412 Md. 635, 644 , 989 A.2d 1150 (2010) (quoting Dingle v. State, 361 Md. 1, 9 , 759 A.2d 819 (2000)). “Voir dire is critical to assure that the Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights guarantees to a fair and impartial jury will be honored.” Stewart v. State, 399 Md. ⁶⁷⁷ 146, 158, 923 A.2d 44 (2007) (italics added).

In general, “[a]n appellate court reviews for abuse of discretion a trial court’s decision as to whether to ask a voir dire question.” Pearson v. State, 437 Md. 350, 356 , 86 A.3d 1232 (2014). A. Waiver Before trial, appellant submitted voir dire questions for the Court to ask the prospective jurors. Included within his proposed voir dire were two questions concerning police officer testimony, which read as follows: 14. Would any of you be more or less likely to believe a police officer or deputy solely because he is a police officer or deputy? 15.

Would any of you be more likely to believe the testimony of a police officer or deputy as opposed to that of the accused? During voir dire, the trial court posed seventeen questions to the prospective jurors and then individually questioned the jurors who had responded affirmatively to any of the court’s questions. The court’s questions did not include appellant’s Questions 14 and 15 (“police witness questions”). At the conclusion of the questions for the entire jury pool, but before individual questioning, the court asked counsel if they wished to approach “for any reason.” The prosecutor said ‘"Yes” and addressed the court about several of his proposed voir dire questions that had been omitted.

The court then asked, “Anything from the defense, [defense counsel]?” Defense counsel replied, “No, Your Honor.” The court then asked one of the prosecutor’s requested questions. After that, the court and counsel proceeded to individually question the jurors in the jury room. Appellant argues that the trial court abused its discretion in denying his requested police witness questions, because “[w]hen requested to do so, in a case where there will be substantive testimony from police, the trial court is required to ask prospective jurors on voir dire whether they would favor o[r] disfavor the testimony of police officers.” (Italics ⁶⁷⁸ added). Appellant asserts that “the State’s entire case rested on the testimony of police officers,” and thus a new trial is warranted for failure to give the requested questions.

The State concedes that, if appellant had “brought his requested ‘police witness’ question^] to the attention of the trial court in a timely fashion, it would have been proper for the trial court to ask the question[s].” The State contends, however, that the trial court properly exercised its discretion in declining to ask the questions, because appellant initially gave an explicit waiver of those questions. The first issue that this Court must address is whether appellant expressly waived his right to have the police witness questions posed to the jury venire. Maryland Rule 8-131(a) states: “Ordinarily, the appellate court will not decide any [ ] issue unless it plainly appears by the record to have been raised in or decided by the trial court____” Rule 8-131(a) requires a defendant to make “ ‘timely objections in the lower court,’ ” or “ ‘he will be considered to have waived them and he cannot now raise such objections on appeal.’ ” Breakfield v. State, 195 Md.App. 377, 390 , 6 A.3d 381 (2010) (quoting Caviness v. State, 244 Md. 575, 578 , 224 A.2d 417 (1966)). Maryland Rule 4-323(c) governs, among other things, objections made during voir dire and jury selection.

The Rule provides: [I]t 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. If a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection at that time does not constitute a waiver of the objection. Md. Rule 4-323(c). “We have held that it is sufficient to preserve an objection during the voir dire stage of trial simply by making known to the circuit court ‘what [is] wanted done.’ ” Marquardt v. State, 164 Md.App. 95, 143 , 882 A.2d 900 (quot ⁶⁷⁹ ing Baker v. State, 157 Md.App. 600, 610 , 853 A.2d 796 (2004)), cert. denied, 390 Md. 91 , 887 A.2d 656 (2005). “An appellant preserves the issue of omitted voir dire questions under Rule 4-323 by telling the trial court that he or she objects to his or her proposed questions not being asked.” Smith v. State, 218 Md.App. 689, 700-01 , 98 A.3d 444 (2014).

If a defendant does not object to the court’s decision to not read a proposed question, he cannot “complain about the court’s refusal to ask the exact question he requested.” Gilmer v. State, 161 Md. App. 21, 33 , 866 A.2d 918 , vacated in part on other grounds, 389 Md. 656 , 887 A.2d 549 (2005). “Generally, a waiver is the intentional relinquishment of a known right, or conduct that warrants such an inference.” Brockington v. Grimstead, 176 Md.App. 327, 355 , 933 A.2d 426 (2007) aff'd, 417 Md. 332 , 10 A.3d 168 (2010). Waiver “extinguishes the waiving party’s ability to raise any claim of error based upon that right.” Id. “Thus, a party who validly waives a right may not complain on appeal that the court erred in denying him the right he waived, in part because, in that situation, the court’s denial of the right was not error.” Id. In the instant case, appellant did request the police witness questions in his written proposed voir dire. However, after the court intentionally omitted them from the voir dire, appellant waived his right to the requested questions by defense counsel responding “No” to the court’s request for any further comment or objection to the voir dire questions that had been asked.

Cf. Booth v. State, 327 Md. 142, 180, 608 A.2d 162 (holding that plain error review was not required, because defense counsel “affirmatively advised the court that there was no objection to the [jury] instruction.”), cert. denied, 506 U.S. 988 , 113 S.Ct. 500 , 121 L.Ed.2d 437 (1992). Defense counsel’s response was more than “the simple lack of an objection;” he “affirmatively advised the court that there was no objection.” Booth, 327 Md. at 180, 608 A.2d 162 . Such statement was an “explicit waiver.” ⁶⁸⁰ B. Retraction of Waiver Midway through the trial court’s individual questioning of the prospective jurors, defense counsel realized that the court may not have posed his proposed police witness questions to the entire venire.

The following exchange occurred: [DEFENSE COUNSEL]: Hearkening back to Juror number 27 who has been excused for cause, that juror stated that she was not asked the police officer question, so to speak, as to whether or not she would give more or less weight to the testimony of a police or law enforcement person simply because of that status. I, frankly, sitting out there, I thought you had asked that question in general, and right now that is sort of up in the air because it wasn’t by chance asked. I think we should simply complete this process and everybody that survives we would ask them one last question. Right now I’m not sure whether the Court asked it because she brought it up, and she seemed to be sort of tuned in on that very issue.

Specifically it would be my questions 14 or 15, or any combination of those, and I think they are pretty standard statewide. THE COURT: I did not ask that question, and here is the reason I did not. In light of my reading of Pearson v. State, the Court indicated that the judge need not ask the panel whether they know someone else who has either served as a law enforcement officer or is affiliated in some way. However, in light of the question that I asked about any member of this panel serving as a law enforcement officer or otherwise, anyone who answered that question and would come back here and who indicates that they have, I do ask that question, as I did with Juror number 27, I believe it is.

Not 27, Juror number—the young man that was two years with the Ocean City Police Department. [PROSECUTOR]: Juror 15. ⁶⁸¹ THE COURT: Juror number 15. He is the only one that indicated he personally has served in law enforcement, and I did ask him that question. [DEFENSE COUNSEL]: Your Honor, maybe I’m just missing something, but was a question put out there that asked a prospective juror if they would be more or less likely to believe the testimony of a law enforcement officer simply because the witness was a law enforcement officer? I think that is more direct. THE COURT: I did not ask that question simply because my reading of Pearson v. State limits the query to questions relating to either a constitutional or statutory reason for disqualification of a juror, and that question appears to relate more to helping an attorney, whether it’s for the State or the defense, determine how to exercise their peremptory challenges.

If, however, an individual juror who indicates that they are a police officer comes back here and indicates that as a law enforcement officer, that they have served in that capacity, that’s a question that I would ask them. [DEFENSE COUNSEL]: I am going to look over Pearson , but for now, I most respectfully take exception and would ask that the Court hold in abeyance its final decision as to whether to propound that final question once we get a qualified group before we start exercising chal- . lenges. Thank you, Judge. [PROSECUTOR]: Your Honor, if I can just address that. THE COURT: Certainly. [PROSECUTOR]: First of all, as far as Juror 27, the jury sheet does indicate that the juror’s spouse is a retired police officer. So that would have been before counsel.

As far as that particular question and the procedure for it, my concern is that that question should have been asked to the panel as a whole, not narrowing the panel down and then reasking that question, because, again, it would impact how strikes would have been exercised, and also potentially the size of the panel if ⁶⁸² we would even have a sufficient panel to choose from or would end up with a sufficient panel to choose from. So I think if the Court decides that question should have been asked, I don’t think we can go back and reask it at this point. THE COURT: I think it’s probably prudent for me to rule on the request at this point rather than to wait until after we’ve queried the remaining jurors. I am going to deny the request to pose that question to the remainder of the panel.

Some jurors have already been excused, and I do believe for the reasons I have already stated that the question is not really relevant with respect to strikes for cause, and with respect to issues relating to peremptory challenges, nothing in terms of the selection process at this point means that the remaining jurors are subject to a bias on that point. And with respect to the exercise of peremptory challenges, I believe Pearson quite adequately addresses that in light of this Court’s decision not to ask that question of the entire panel. [DEFENSE COUNSEL]: This is the Court’s final ruling? THE COURT: That’s the final ruling, yes. [DEFENSE COUNSEL]: I would most respectfully except. Thank you.

(Emphasis added). At the time that defense counsel requested the police witness questions, the trial court had completed the individual questioning process through Juror number 30, and the court had excused ten jurors for cause. 3 Another seven jurors had mentioned possible hardships, but had not been excused. Given that there were at least fifty-nine jurors in the initial ⁶⁸³ venire, 4 there were twenty jurors who had not been struck, plus twenty-nine jurors yet to be questioned at the time of defense counsel’s request. The court needed twenty-eight jurors remaining after voir dire before beginning peremptory strikes to ensure that it would not run out of jurors.

After denying defense counsel’s request for the police witness questions, the trial court then returned to questioning the remaining jurors individually. Of the next twenty-four jurors, seventeen were questioned, two of whom were struck for cause. At the conclusion of voir dire, but before commencing with jury selection, the court and counsel agreed to excuse eleven jurors based on various hardships. Thus, out of fifty-four jurors, twelve were struck for cause, eleven were excused for hardship, and thirty-one were left for jury selection. 5 The court had enough jurors after individual questioning that it did not need to individually question the remaining five jurors, Juror numbers 55 through 59.

At that time, defense counsel again raised the issue of the requested police witness questions: [DEFENSE COUNSEL]: Before we go out, one last gasp from the defense on the police officer question. The defense’s proposed voir dire. I would inquire at this point if it’s not in evidence, I want to move it into evidence, and I would ask that the Court propound question number 14, and perhaps question number 15, or a combination of them to the remaining members, and I will say no more. THE COURT: Just so the record is clear, defense voir dire questions numbers 14 and 15, correct? [DEFENSE COUNSEL]: Yes, Your Honor. ⁶⁸⁴ THE COURT: They read as follows: 14 reads, “Would any of you be more or less likely to believe a police officer or deputy solely because he is a police officer or deputy?” Question 15, “Would any of you be more likely to believe the testimony of a police officer or a deputy as opposed to that of the accused?” In ruling on your question, I am going to deny the request to pose that to the panel at this point given that when the objection was originally raised, we had already excused some jurors for cause, so the entire array was not asked that question.

However, jurors that responded to the question whether they are affiliated with a law enforcement agency or employed by a law enforcement agency, and I gave descriptions of the types of law enforcement agencies, that being a Sheriffs Office, police department, prosecutors’ office, correctional facility, parole or probation agency, or any other type of law enforcement agency, and I added whether it’s state or federal. That is defense’s voir dire Question four, which was paraphrased. That question was put to the entire panel in this case. I believe in light of Pearson v. State, that was sufficient to ask the panel at the outset, but the request to ask only a portion of the panel follow-up questions that had no bearing on their relationship to law enforcement or relevant to the proceedings at hand were proffered to the Court.

(Emphasis added). Although appellant initially waived his right to the police witness questions, defense counsel later made two attempts to retract that waiver. The State argues that “the trial court was not required to allow [appellant] to retract the earlier waiver.” We disagree. “Ordinarily, when a party has waived a right and then retracts his waiver, the effect of the retraction is to revive the right, subject to the doctrine of equitable estoppel.” ⁶⁸⁵ Brockington, 176 Md.App. at 355-56 , 933 A.2d 426 . The doctrine of equitable estoppel “lies at the foundation of the law of waiver because estoppel arises as a result of the voluntary conduct of one party, whereby he is precluded from asserting a right as against another person who has, in good faith, relied upon such conduct and has been led thereby to change his position for the worse.” Id. at 356 , 933 A.2d 426 (quoting Arnold Bernstein Shipping Co. v. Tidewater Commercial Co., 84 F.Supp. 948, 952 (D.Md. 1949)). “[CJonsistent with the equitable estoppel principles, the court has discretion to reject a party’s retraction of a waiver if by its timing the attempted retraction would interfere with the administration of the court’s business or would amount to a trial tactic, aimed at manipulating the judicial process.” Brockington, 176 Md.App. at 357 , 933 A.2d 426 .

The State makes several arguments for why the trial court was correct in refusing to allow appellant to retract his express waiver. We will address these arguments in turn. 1. Effect on the use of strikes The State argues, as it did before the trial court, that the untimely retraction of the waiver would have affected how the prosecutor exercised his strikes. Specifically, the State contends that the prosecutor “might have chosen to oppose defense counsel’s motions to excuse, or opposed the excusing of other jurors, had he known that there would be additional voir dire questions that could result in excusing additional member[s] of the venire panel.” We are not persuaded.

At the time that defense counsel first asked for the police witness questions, the trial court had granted three of defense counsel’s motions to excuse jurors for cause, two of which were over the State’s objection. The State made no specific argument at trial about how it would have approached voir dire differently in this case. During voir dire, the prosecutor only said that, “it would impact how strikes would have been ⁶⁸⁶ exercised.” 6 The prosecutor provided nothing further beyond this ambiguous assertion. In the instant appeal, the State also does not point out any specific jurors in this case that it would have approached differently, nor identify any particular argument that it would have made.

It is mere conjecture that the prosecutor may have acted differently if the prosecutor knew that the police witness questions were going to be asked later in the voir dire process. 7 2. Questioning of original venire and size of the remaining jury pool When the trial court denied defense counsel’s request for the police witness questions, it did so saying: “I am going to deny the request to pose that to the panel at this point given that when the objection was originally raised, we had already excused some jurors for cause, so the entire array was not asked that question.” The fact that some jurors had already been excused without hearing the police witness questions is irrelevant, because those jurors were struck for cause on other grounds. Therefore, their answers to police witness questions would not have mattered. Additionally, the State argues that having a sufficient pool of jurors was a concern.

The trial court, however, never mentioned that as a reason for denying the request. Nevertheless, the