Collins v. State

Moylan, J. In the voir-dire examination of prospective jurors, can a relatively modest glitch in the framing of a single question totally derail an otherwise flawless criminal trial? In addressing that question, the magisterial opinion of Judge Watts in Pearson v. State , 437 Md. 350 , 86 A.3d 1232 (2014), will be our Alpha and Omega. The appellant, Gordon Collins, was convicted in the Circuit Court for Anne Arundel County by a jury, presided over by Judge Paul F. Harris, Jr., of both first-degree burglary and the theft of goods with a value under $1,000. A Flawless Trial The trial was as uncontroversial as it was brief.

The opening statement for the prosecution ran for three and one-half pages. That of the appellant was a page and one-half long. Two witnesses testified for the State. The testimony of Juliette Tower covered slightly fewer than ten pages in the trial transcript.

The testimony of Sergeant Kenneth Brown ran for 22 pages. No one testified for the defense and it offered no evidence. The motion at the end of the State's case, which turned out to be the motion at the end of the entire case, could not have been more innocuous: [THE STATE]: The State would rest, thank you. [DEFENSE COUNSEL]: I would make my motion. THE COURT: Okay, you want to be heard? [DEFENSE COUNSEL]: No. THE COURT: I will deny it.

Does your client or any other evidence you are going to - [DEFENSE COUNSEL]: No. THE COURT: No evidence? [DEFENSE COUNSEL]: Correct. The brief jury instructions were completely boiler-plate, with no objections being lodged by either party either in the course of the jury instructions or at their conclusion. The State's closing argument ran for two and one-half pages in the transcript and its rebuttal for a single page. Defense argument ran for eight pages.

The jury returned verdicts of guilty on both charges after deliberating for 40 minutes. This case was a slam-dunk for the prosecution. The only issue before us is that of whether it was fatally flawed before it began. A Firebell In The Night Juliette Tower testified that as of March 17, 2017, she and her husband were living at 801 Severn Avenue in Annapolis.

At 11:20 p.m. both Mr. and Mrs. Tower were in bed. He was sleeping and she was trying to fall asleep. She heard a noise downstairs but initially thought that their cat had knocked something over. When the noise persisted "again and again," however, she nudged her husband awake and said, "I think there's somebody downstairs." He got up and ran downstairs.

Mrs. Tower followed several minutes behind her husband. She had already called 911, however, before coming downstairs. The contents of their television room were in disarray, "things scattered all over." All of the cabinets in the kitchen had been opened. Mr. Tower noticed and pointed out to his wife that a window next to the back door had been opened.

When Mr. and Mrs. Tower surveyed what, if anything, was missing, the missing items included their son's Xbox, a leather jacket belonging to Mrs. Tower, several games belonging to their son, and their son's headphones. Mrs. Tower later identified these items when they were shown to her by the police. An Immediate Response The only other witness in the case was Sergeant Kenneth Brown. He received a call about a burglary at 11:21 p.m.

He responded immediately and, within four minutes, was at the intersection of Wells Avenue and Adams Avenue on his way to 801 Severn Avenue. He saw the appellant, walking toward him and away from Severn Avenue. Sergeant Brown estimated that the spot where he first saw the appellant was less than a five-minute walk from 801 Severn Avenue. The appellant was the only person about.

The streets were otherwise empty. The appellant was wearing dark clothing and was carrying a plastic garbage bag, slung over his shoulder. Sergeant Brown, traveling in an opposite direction, continued past the appellant for approximately one block, executed a three-point U-turn, and drove back toward the appellant. The sergeant was out of direct visual contact with the appellant for about 20 seconds.

After the sergeant made his U-turn, he again spotted the appellant in his dark clothing. The plastic garbage bag, however, was gone. The appellant was actually returning to the sidewalk from an area between a parked car and a fence. The appellant was detained for further investigation.

Another officer shortly arrived on the scene. Sergeant Brown recovered the plastic garbage bag just over the fence. It contained the Xbox, Mrs. Tower's leather jacket, several games belonging to the Towers' son and the son's headphones. All of these items were identified by Mr. and Mrs. Tower as their property.

The appellant offered neither denial nor explanation. The State's case was, indeed, an open and shut one. The Contention The appellant's single appellate contention is framed as follows: The trial court abused its discretion when it asked the venire two improperly phrased "strong feelings" voir dire questions, and it did not cure the prejudice from that error by subsequently asking the seated, sworn jury properly phrased "strong feelings" questions. What the appellant wanted were two "strong feelings" questions with respect to the crimes of burglary and theft.

The simple and direct "strong feelings" questions he requested were: 1. Does any member of this panel have strong feelings about the offense of burglary? 1 2. Does any member of this panel have strong feelings about the offense of theft? Instead of getting the questions in that simple form, however, the appellant, to his chagrin, got them in compound form: 1.

Does anyone on this panel have any strong feelings about the offense of burglary to the point where you could not render a fair and impartial verdict based on the evidence? 2. Does anyone on this panel have any strong feelings about the offense of theft to the point where you could not render a fair and impartial verdict based on the evidence? Therein lurks the controversy. Simple Versus Compound Questions The semantic sin of the compound question lies in the possible ambiguity of its answer.

A "Yes or No" answer to the simple question tells us whether there are or are not "strong feelings." A "No" answer to the compound question, by contrast, does not. It may mean that there are no strong feelings. It may, on the other hand, mean that the prospective juror, indeed, harbors such feelings but feels that he or she can render a fair and impartial verdict despite those feelings. We cannot deduce, from the "Q and A" itself, which end of the compound question generated the negative response.

Lawyers engaged in the process of selecting juries want to know about "strong feelings" and, more particularly, they want to know what life experiences may have produced those "strong feelings." The "strong feelings" themselves, of course, are not ipso facto disqualifying. Pearson , 437 Md. at 364 , 86 A.3d 1232 , was emphatic in that regard. [W]e stress that we do not hold that a prospective juror is automatically disqualified simply because the prospective juror responds affirmatively to the "strong feelings" voir dire question. The process, however, does not stop there, simply identifying "strong feelings" as an unadorned abstraction. The initial inquiry is only the threshold or the opening round of a fuller proceeding.

The individualized further inquiry at the bench, with attorneys present and participating, will dig far more deeply into the ultimate issue of juror qualification. Pearson further explained: After the prospective juror is individually questioned by the attorneys or on request by the trial court, the trial court determines whether or not that prospective juror's strong feelings about the crime with which the defendant is charged constitute specific cause for disqualification . Id . (Emphasis supplied).

Whatever the judge does or does not do in terms of disqualifying the prospective juror, moreover, the lawyers will know a lot more than they knew before. In circumstances where a compound question had been asked on voir-dire and the second half of the compound question had asked the prospective juror to appraise his or her ability to render a fair and impartial verdict notwithstanding a compromising circumstance, Dingle v. State , 361 Md. 1 , 21, 759 A.2d 819 (2000), condemned the inevitable consequence of allowing the issue of juror qualification to be decided by the juror himself rather than by the trial judge: [T]he procedure followed in this case shifts from the trial [court] to the [prospective jurors] responsibility to decide [prospective] juror bias . Without information bearing on the relevant experiences or associations of the affected individual [prospective juror]s who were not required to respond, the [trial] court simply does not have the ability, and, therefore, is unable to evaluate whether such [prospective juror]s are capable of conducting themselves impartially. Moreover, the [defendant] is deprived of the ability to challenge any of those [prospective juror]s for cause.

Rather than advancing the purpose of voir dire, the form of the challenged inquiries in this case distorts and frustrates it. (Emphasis supplied). See also Pearson , 437 Md. at 361 -63 , 86 A.3d 1232 . The Initial "Strong Feelings" Questions In A Vacuum Whereas the underlying voir-dire question in Dingle had been whether the prospective jurors had been the victim of a crime, the underlying voir-dire question in State v. Shim , 418 Md. 37 , 12 A.3d 671 (2011), had been, as in this case, whether the prospective jurors had "strong feelings" about a particular crime.

Pearson , 437 Md. at 361 -63 , 86 A.3d 1232 , applied the Dingle rationale about the flaw in the compound question in that case to Shim and condemned the compound question in that context as well. [W]e conclude that, here, the "strong feelings" voir dire question ( i.e. , "Does any member of the panel hold such strong feelings regarding violations of the narcotics laws that it would be difficult for you to fairly and impartially weigh the facts of this trial where narcotics violations have been alleged?") was phrased improperly. 437 Md. at 361 , 86 A.3d 1232 (emphasis supplied; footnote omitted). The Dingle rationale, therefore, applies with equal force to either underlying voir-dire question, personal or familial involvement with the crime or "strong feelings" about the crime. Just like the phrasing of the voir dire questions in Dingle, the phrasing of the "strong feelings" voir dire question in Shim "shifts from the trial [court] to the [prospective jurors] responsibility to decide [prospective] juror bias." Dingle , 361 Md. at 21 , 759 A.2d 819 . In other words, as with the voir dire questions' phrasings in Dingle , the phrasing of the "strong feelings" voir dire question in Shim required each prospective juror to evaluate his or her own potential bias.

Specifically, under Shim , each prospective juror decides whether his or her "strong feelings" (if any) about the crime with which the defendant is charged "would [make it] difficult for [the prospective juror] to fairly and impartially weigh the facts." That decision belongs to the trial court, not the prospective juror. 437 Md. at 362 , 86 A.3d 1232 (emphasis supplied; some internal citations omitted). Thus, if the two originally posed compound questions inquiring about "strong feelings" with respect to burglary and theft respectively were before us in a vacuum, the appellant would be armed with a very viable contention. The Initial Compound Questions Are Not Now In A Vacuum Those originally posed compound questions, however, did not long remain in a vacuum. They are, as we now look back upon the trial, but part of a larger and more significant totality.

It is, of course, that totality that we review, because our ultimate and primary concern is whether the jury that heard the case against the appellant was qualified to render a fair and impartial verdict. We do not subject either the State or the trial judge to a game of "Gotcha." Judge Greene explained for the Court of Appeals in Washington v. State , 425 Md. 306 , 314, 40 A.3d 1017 (2012) : We review the trial judge's rulings on the record of the voir dire process as a whole for an abuse of discretion, that is, questioning that is not reasonably sufficient to test the jury for bias, partiality, or prejudice. (Emphasis supplied; citation omitted). See also Pearson , 437 Md. at 356 , 86 A.3d 1232 .

As we review the totality of the circumstances, the record as a whole, for everything bearing on the issue of juror disqualification, we find two evidences of doctrinal vitality outside of the initial vacuum. Quite aside from the questions specifically inquiring about "strong feelings," there were other questions designed to root out causes for juror disqualification, even if they appear under different categories. Immediately after the "strong feelings" questions, Judge Harris asked the panel: [H]as any member of this panel had something happen to you in the past that would prevent you from either returning a verdict of guilty or not guilty in a criminal case under any circumstances? Again, we are trying to make sure nobody has any preconceived feelings about any of these issues because, ultimately, I will instruct you that when you render a verdict, it is going to be based only on the evidence that you hear in this case and nothing else.

(Emphasis supplied). No prospective juror responded. Are not "strong feelings" the same as "pre-conceived feelings"? Judge Harris then asked the panel: Is there any member of this panel who would allow sympathy, pity, anger or any other emotion to influence your verdict in any way in this case?

The verdict should not be based on those feeling[s], they should be based on the evidence. (Emphasis supplied). No prospective juror responded. Might not a "strong feeling" qualify as "any other emotion"?

Judge Harris then posed the "crime victim question" (in simple not compound form): Has any member of this panel or your immediate family ever been accused of a crime, been the victim of a crime, or [been] a witness to a crime? A number of prospective jurors responded. Judge Harris and counsel questioned them further, individually and at the bench. Three jurors were then stricken for cause because, after recounting stories about break-ins, they admitted that those experiences made them unable to judge fairly.

One prospective juror said that his wife was an Assistant State's Attorney and described himself as