Burnette v. State

²⁷⁸ Mason, J., delivered the opinion of the Court. The appellant, William Paul Burnette, Jr., was tried by a jury in the Circuit Court for Prince George’s County on a thirty-count indictment. He was convicted of kidnapping, assault and battery, and various other crimes for which he received consecutive and concurrent sentences totaling forty years. Neither the corpus delicti nor the criminal agency of the appellant is in dispute.

Both are amply supported by the evidence. At the trial below the appellant pleaded not guilty by reason of insanity. On appeal two issues are raised: (I) Did the trial court err in denying the appellant’s request to ask the jurors a certain voir dire question on the subject of insanity; and (II) Was the use of the Allen-type charge so coercive and prejudicial as to deny the appellant a fair and impartial trial. I. The appellant requested the court to ask the prospective members of the jury the following question: Does any member of the jury panel feel that a person should be punished for a crime if that person committed the crime as a result of a mental disorder?

The appellant contends that the refusal to ask this question denied him the right to question the jurors about their beliefs with regard to the defense of insanity. In this State the nature and extent of the voir dire examination rests in the sound discretion of the trial judge. Vernon v. State, 12 Md. App. 157 , 277 A. 2d 635 (1971); Carder v. State, 5 Md. App. 531 , 248 A. 2d 495 (1968). The purpose of voir dire is to determine whether there is cause for challenge or disqualification of any prospective juror.

Goldstein v. State, 220 Md. 39 , 150 A. 2d 900 (1959); Collins v. State, 14 Md. App. 674 , 288 A. 2d 221 (1972), cert. denied, 409 ²⁷⁹ U. S. 882, 93 S. Ct. 169 , 34 L.Ed.2d 137 (1972). Questions which “fish” for information which might be useful in making peremptory challenges may be refused in the discretion of the court. Questions which probe the prospective jurors’ knowledge of the law are not proper on voir dire. Carder v. State, supra.

It is evident that the wording of the requested question was too general and too vague to aid the appellant in determining whether a particular juror had any predisposition concerning the defense of insanity. Grogg v. State, 231 Md. 530 , 191 A. 2d 435 (1963). It is further evident that the form of the question sought the jurors’ knowledge of and attitude toward the law, or, in other words, sought information which might be useful in making peremptory challenges. See State v. Kelly, 285 A. 2d 571 (N.J. 1972).

Although the appellant’s voir dire question on insanity was denied, the trial court fairly covered this subject in the following instruction to the jury: You are further instructed that as part of its burden in a criminal case such as this, where the defense of insanity is raised, the State must, in order to obtain a conviction, prove beyond a reasonable doubt and to a moral certainty that the defendant, at the time of the commission of the alleged criminal acts, was not suffering from a mental disorder which caused him to lack substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. We, therefore, conclude that the trial court did not abuse its discretion in refusing to submit the requested voir dire question to the jurors.

II

The jury retired to deliberate at 2:45 p.m. After nearly four hours the court indicated to counsel that it had received a note from the jury which read as follows: Judge Mattingly, Your Honor, we are in accord ²⁸⁰ with the fifteen possible verdicts. We cannot decide on the following issues: sane or insane.. . . The jurors returned to the jury box and the judge read the following Allen-type charge to them: Mr. Foreman, ladies and gentlemen of the jury, the Court has reviewed your note from the foreman stating that you are in accord on the fifteen possible verdicts and we cannot decide on the following issues.

Sane or insane. The Court will further instruct you, Mr. Foreman, and ladies and gentlemen of the jury, that it observed that you have been out almost three hours on this case, almost four hours, excuse me, and had it under your consideration for that period of time. We instruct you that there are many cases in which absolute certainty cannot be expected. Although the verdict must be the verdict of each individual juror as a result of his own convictions and not a mere