Charles and Drake v. State

BATTAGLIA, J. We are asked to consider whether Dwayne Drake and Jamal Charles, Petitioners, are entitled to a new trial, because the judge who presided over their joint trial propounded a question during voir dire asking whether the jury could not “convict” them without “scientific evidence.” Drake and Charles were tried together before a jury in the Circuit Court for Baltimore City on charges stemming from the death of Bryant Jones and were convicted of second-degree murder and use of a handgun in a felony or crime of violence. Drake was also convicted of wearing, carrying, or transporting a handgun. 1 Drake and Charles noted separate appeals to the Court of Special Appeals, which were consolidated, 2 and the intermediate appellate court affirmed the convictions in a reported opinion, Drake and Charles v. State, 186 Md.App. 570 , 975 A.2d 204 (2009). Drake presents the following questions on certiorari: ⁷²⁹ 1. Did the trial court err in asking the jury on voir dire whether they would be unable to convict the defendant in the absence of “scientific” evidence? 2.

Did the trial court unduly restrict defense counsel’s closing argument by prohibiting placing the reasonable doubt standard in the context of other standards of proof? Drake v. State, 411 Md. 355 , 983 A.2d 431 (2009). Although Charles presented two questions in his Petition for Writ of Certiorari, we granted certiorari solely with respect to whether the trial judge unduly restricted closing arguments: 1. Does a judge have the right to restrict summation and prohibit an attorney from putting law, given by the judge in instruction, into context as warranted by the specific facts of a case?

Charles v. State, 411 Md. 355 , 983 A.2d 431 (2009). 3 We shall hold that the trial judge erred in propounding a voir dire question asking whether the jury could not “convict” the defendants. Therefore, we shall reverse the judgments of the Court of Special Appeals and remand for a new trial. Background Drake and Charles were each charged in the Circuit Court for Baltimore City with first-degree murder, conspiracy to commit first-degree murder, second-degree murder, use of a handgun in a felony or crime of violence, and wearing, carrying, or transporting a handgun in connection with the shooting ⁷³⁰ death of Bryant Jones at his daughter’s sixteenth birthday party. Prior to trial, the State’s Attorney submitted three voir dire questions concerning “CSI-type” 4 scientific evidence.

Over defense counsel’s objection, the trial judge propounded a single question, which he ostensibly drafted, that being: I’m going to assume that many of you, from having done a few of these, watch way too much TV, including the so-called realistic crime shows like CSI and Law and Order. I trust that you understand that these crime shows are fiction and fantasy and are done for dramatic effect and for this dramatic effect they purport to rely upon, “scientific evidence,” to convict guilty persons. While this is certainly acceptable as entertainment you must not allow this entertainment experience to interfere with your duties as a juror. Therefore, if you are currently of the opinion or belief that you cannot convict a defendant without “scientific evidence,” regardless of the other evidence in the case and regardless of the instructions that I will give you as to the law, please rise____[ 5 ] (Emphasis added).

The jury found Drake and Charles guilty of second degree murder and use of a handgun in a felony or crime of violence. Drake also was convicted of wearing, carrying, or transporting a handgun. Drake was sentenced to consecutive terms of 30 years’ imprisonment for second-degree murder and ten years’ imprisonment, five without possibility of parole, for use of a handgun in a felony or crime of violence. Charles was sentenced to consecutive terms of 30 years’ imprisonment for second-degree murder and 20 years’ imprisonment, five without possibility of parole, for use of a handgun in a felony or crime of violence. ⁷³¹ The Court of Special Appeals affirmed, 6 Drake and Charles v. State, 186 Md.App. 570, 580 , 975 A.2d 204, 210 (2009), reasoning that the voir dire question was appropriate, because “it was an inquiry made to identify venire persons who, without CSI-type evidence, would not convict any defendant” and emphasizing that “the scope and form of questions propounded during voir dire generally are within the trial court’s discretion.” Introduction Our focus in the present case is whether the Circuit Court erred in propounding a voir dire question concerning whether prospective jurors could not “convict” Drake and Charles in the absence of “CSI-type” scientific evidence.

There is significant debate about whether there truly is a “CSI effect,” namely, the impact that viewing forensic crime dramas has upon juror behavior. See, e.g., Dennis M. Sweeney, The “CSI Effect” A Judge’s Viewpoint: How Do Courtroom Dramas Affect the Work of the Courts?, Justice Matters, Spring/Summer 2009, at 4. Prosecutors assert oftentimes that “the show’s perfectly packaged crime stories ha[ve] created unrealistic expectations among potential jurors about the kind of evidence they will see in a real-life trial.” Cynthia Di Pasquale, Beyond the Smoking Gun: Maryland’s Legal Community Debates the “CSI Effect, ” The Daily Record, Sept. 8, 2006, at IB (highlighting a panel discussion at the University ⁷³² of Maryland Law School entitled “The CSI Effect on Criminal Prosecutions: Truth or Fiction?”). Prosecutors contend that the “CSI effect” has made their job of obtaining convictions more difficult, because resources to do sophisticated testing, such as DNA analysis, are not available in every case.

Andrew P. Thomas, The CSI Effect: Fact or Fiction, 115 Yale L.J. Pocket Part 70 (2006), http://www.yalelawjournal.org/ images/pdfs/32.pdf (last visited June 16, 2010) (noting “almost eight out of ten Maricopa County prosecutors believe that jurors are disappointed in the lack of forensic evidence presented at trial”); see also Jeffrey Toobin, The CSI Effect: The Truth About Forensic Science, The New Yorker, May 7, 2007, available at http://www.newyorker.com/reporting/2007/05/07/ 070507fa_fact-toobin (comparing testimony of N.Y.P.D. crime unit criminalists with that of fictional “CSI” criminalists). Some judges and academics, on the other hand, are more skeptical about the purported “CSI effect,” based upon empirical studies that suggest that CSI viewers were not more or less likely to acquit a defendant without scientific evidence than non-CSI viewers. Donald E. Shelton, The ‘CSI Effect’: Does It Really Exist?, http://unvw.ojp.usdoj.gov/nij/joumals/ 259/csi-effect.htm (last visited June 15, 2010) (surveying more than one-thousand jurors in Ann Arbor, Michigan); see also Simon A. Cole & Rachel Dioso-Villa, The CSI Effect: The True Effect of Crime Scene Television on the Justice System, 41 New Eng. L.Rev. 435, 455 (2007) (asserting the “CSI effect” is premised only on anecdotal reports of juries acquitting in cases with purportedly strong circumstantial evidence); see also Tom.

R. Tyler, Viewing CSI and the Threshold of Guilt: Managing Tmth and Justice in Reality and Fiction, 115 Yale L.J. 1050 (2006). Recently, during oral arguments in an appeal involving a comment by a trial judge to a jury, “And I remind you that this is real life and not CSI,” the Chief Justice of the Massachusetts Supreme Judicial Court remarked that talk about “CSI” should be banned in courtrooms across the state. Caryn Tamber, The CSI effect, in Maryland and Massachusetts, The Daily Record On the Record Blog ⁷³³ (Dec. 11, 2009), http://mddailyrecord.com/ontherecord/2009/12/ 11/the-csieffect-in-maryland-and-massachusetts/. In outlining the context of the debate we do not intend to enter into the fray; whether a voir dire inquiry related to the purported “CSI effect” is appropriate at a theoretical level, we leave to another day. 7 The issue before us is really the appropriateness of the language used in the inquiry.

Drake and Charles assert, in this regard, that the trial judge abused his discretion by essentially instructing the jury to convict the defendants “on the non-scientific evidence that they would hear in the case.” The State counters that the way a question is posed is within the sound discretion of the trial judge, and the question really sought to identify “those jurors who would require fictional CSI-type evidence” and disregard other evidence. Discussion The primary purpose of voir dire is to ensure a fair and impartial jury. Moore v. State, 412 Md. 635, 644-45 , 989 A.2d 1150, 1154-55 (2010); Stewart v. State, 399 Md. 146, 158 , 923 A.2d 44, 51 (2007); State v. Logan, 394 Md. 378, 395 , 906 A.2d 374, 384 (2006); Curtin v. State, 393 Md. 593, 600 , 903 A.2d 922, 926 (2006); White v. State, 374 Md. 232, 240 , 821 A.2d 459, 463 (2003); Dingle v. State, 361 Md. 1, 9 , 759 A.2d 819, 823 (2000); Boyd v. State, 341 Md. 431, 435 , 671 A.2d 33, 35 (1996). The process entails examination of prospective jurors through questions propounded by the judge (or either of the parties, if allowed by the judge) to determine the existence of bias or prejudice and, literally translated, means “to say the truth.” Curtin, 393 Md. at 600 , 903 A.2d at 926 , quoting Bedford v. State, 317 Md. 659, 670 , 566 A.2d 111, 116 (1989).

The manner of voir dire is governed by Rule 4-312, which states in relevant part: ⁷³⁴ (d) Examination and challenges for cause. (1) Examination. The trial judge may permit the parties to conduct an examination of qualified jurors or may conduct the examination after considering questions proposed by the parties. If the judge conducts the examination, the judge may permit the parties to supplement the examination by further inquiry or may submit to the jurors additional questions proposed by the parties.

The jurors’ responses to any examination shall be under oath. On request of any party, the judge shall direct the clerk to call the roll of the array and to request each qualified juror to stand and be identified when called. We have previously considered, under an abuse of discretion standard, whether the facts and circumstances of a case mandate a particular voir dire question to probe prospective jurors’ bias. We have rejected, in Stewart v. State, 399 Md. 146 , 923 A.2d 44 (2007), a “shot gun” approach to voir dire, in a case in which the defendant, charged with child abuse and sexual offenses, submitted fifty-two proposed voir dire questions, two of which involved prospective jurors’ feelings regarding violations of narcotics laws, wholly unrelated to the defendant’s case.

Although the trial judge presented several of the proposed questions, the defendant contended that the court’s refusal to ask the remaining questions violated his right to a fair and impartial jury. We disagreed, determining that the trial judge did not abuse his discretion, because none of the proposed inquiries dealt specifically with the facts of the case, the crime, the witnesses, or the defendant himself, and the questions were “too broad and general to support a challenge for cause.” Id. at 165 , 923 A.2d at 55 . Rather, our tenets of voir dire favor inquiries tailored to the likely issues to be presented in the case, so juror biases directly related to the crime, the witnesses, or the defendant, may be uncovered. In State v. Thomas, 369 Md. 202 , 798 A.2d 566 (2002), the defendant, charged with possession and distribution of cocaine, requested that the trial judge ask whether “any member of the jury panel [had] such strong feelings ⁷³⁵ regarding violations of the narcotics laws that it would be difficult for you to fairly and impartially weigh the facts____” Id. at 204 , 798 A.2d at 567 .

We concluded that the trial judge’s failure to propound the question constituted an abuse of discretion, because drug laws have engendered strong feelings and reactions that “ ‘may hinder a juror’s ability to serve.’ ” Id. at 212 , 798 A.2d at 572 , quoting Thomas v. State, 139 Md.App. 188, 205 , 775 A.2d 406, 416 (2001). In the same year, in Sweet v. State, 371 Md. 1 , 806 A.2d 265 (2002), we considered whether the defendant, on trial for molesting an eleven-year-old girl, was entitled to a voir dire question inquiring whether “the charges stir up strong emotional feelings in you that would affect your ability to be fair and impartial____” Id. at 9 , 806 A.2d at 270-71 . We determined that the trial court’s refusal to