Contee v. State

Horney, J., delivered the opinion of the Court. The defendant (Gordon Leon Contee), a Negro, was indicted, tried and convicted by a jury of raping a white woman, ⁵⁷⁸ and from the judgment and sentence entered on the verdict of guilty, he has appealed to this Court. Since the defendant does not question the sufficiency of the evidence, a detailed 'statement of the facts and the attendant circumstances would serve no useful purpose. It will suffice to say that there was ample testimony, if believed, to convict the defendant despite his défense that the prosecuting witness had consented to the sexual intercourse which ensued after he had forcibly entered the apartment of the prosecutrix in the early morning hours of the day on which the offense was committed.

Three contentions are made by the defendant: (i) that it was reversible error for the trial court to refuse to ask prospective jurors, on voir dire, the questions he had submitted with respect to possible racial bias or prejudice; (ii) that it was error for the trial court to restrict his cross-examination of the arresting officer with respect to the memorandum (in the form of a notebook) used by the officer to refresh his recollection; and (iii) that it was prejudicial for the trial court not to grant the motion of the defendant for a mistrial in connection with certain alleged inflammatory questions and remarks asked or made by the State’s Attorney with respect to the avowed propensity of the married defendant to have sexual intercourse with other women of both races. The pertinent facts concerning each of the contentions will be related as each is considered. (i) Immediately preceding the trial, the defendant, in moving the court to question the prospective jurors on their voir dire, submitted a list of eight questions he desired the court to ask. The court propounded the substance of the first question— whether or not the juror had any conscientious scruples against finding a verdict of guilty when the penalty could be death—as well as the substance of the second question— whether or not the juror had formed or expressed an opinion as to the innocence or guilt of the accused.

Another question not requested by the defendant was also asked. But the court flatly refused to propound any of the remaining six questions. On this appeal, since the seventh question is not referred to, ⁵⁷⁹ the presumption is that it was abandoned and we shall not consider it further. The other five, all of which were apparently intended to ascertain the possible existence of cause for disqualification on account of racial prejudice, read, in pertinent part, as follows: 3.

Whether any juror had ever “belonged to or been affiliated with any organization that had to do with segregation of the races?” 4. Whether any juror believed “in segregation?” 5. Whether any juror had “an opinion as to” the impropriety of “people of the white race” having “sexual intercourse with people of the colored race?” and if so “whether the opinion was adverse to the race” of the defendant, who was a Negro? 6. Whether any juror would “believe a woman of the white race over the statement of a man of the colored race?” 8.

Whether any juror had “ever been involved personally or through close family association in any criminal matter” concerning “the prosecution of a colored man” for an act of violence? When the court refused to question the first juror called on his voir dire with respect to possible racial bias or prejudice, counsel for the defendant approached the bench and the following colloquy took place: (Mr. Davis) Is it my understanding that the court— (Judge Eawlor) The court will deny the questions. I believe it has covered the proper questions by the three that were just asked. (Mr. Davis) I do not, of course, believe argument in order, but I do think that the race problem would be in this particular case.

(Judge Eawlor) The court has considered it and denied the motion, so there is no need to fight the motion. (Mr. Davis) You will enter the objection of the defendant to the court’s ruling in the matter. ⁵⁸⁰ The defendant did not request the court to propound nor did the court of its own volition ask a general question designed to elicit the possible existence of prejudice. Since we agree with the State’s contention that none of the submitted questions was proper in that 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, it is unnecessary to discuss the shortcomings of the respective questions, though it may be observed that all appear to be examples of what not to request the court to propound to prospective jurors on voir dire in a case of this type which is likely to have aroused some racial feelings in the community where it is to be tried. But this is not the complete solution of the problem.

In Brown v. State, 220 Md. 29 , 150 A. 2d 895 (1959), where the trial court refused to ask any questions on vow-dire concerning racial bias or prejudice and as to whether the jurors could give the defendant, who was a Negro, as fair and impartial a trial as they could a white man, we held that “the failure to elicit from the jurors the essence of the information sought by the appellant was reversible error.” See particularly State v. Higgs, 120 A. 2d 152 (Conn. 1956), quoted at length in the Brown case, as well as the other authorities therein cited, and compare Glaros v. State, 223 Md. 272 , 164 A. 2d 461 (1960). The argument of the State that the questions proposed by the defendant in the Brown case were proper, while those sought in the case at bar are improper, and that the defendant must stand or fall on the propriety of the questions actually submitted by the defendant in this case, cannot prevail. As we read the record, it is clear that the defendant was denied an opportunity either to frame additional voir dire questions which might have been proper or to request a general one •concerning racial prejudices or feelings. Moreover, although it was fully apprised of the essence of what the defendant was seeking, the court failed to ask on its own motion, as it should Eave done, a proper question designed to ascertain the existence of cause for disqualification on account of racial bias •or prejudice.

From the demeanor of the court disclosed by ⁵⁸¹ the colloquy between it and counsel at the bench, we are impelled to conclude—a conclusion confirmed by the opinion and order included in the record extract, which was filed by the trial court in denying the motion for a new trial—that the court had no intention of making any inquiry as to whether the jurors could or would set aside the feelings he or she might have as to racial differences and fairly and impartially decide the case solely on the evidence and the applicable law. We hold that where, as here, 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