Couser v. State

Murphy, C. J., delivered the opinion of the Court. Appellant was found guilty after a jury trial in the Criminal Court of Baltimore of possessing a controlled dangerous substance with intent to distribute; he was sentenced to 20 years’ imprisonment. The judgment was affirmed on appeal. Couser v. State, 36 Md. App. 485 , 374 A. 2d 399 (1977).

We granted certiorari, limited to two issues: (1) Whether the appellant waived his objection to the denial of his request at the trial for the use of the prosecutor’s jury dossier when, after the jury was selected, he stated that it was acceptable to him; and (2) Whether the appellant had a right to disclosure of the prosecutor’s jury dossier and, if so, whether the right is dependent upon a prior showing of prejudice to the accused. The record discloses that the trial judge conducted a lengthy and probing voir dire examination of the panel of prospective jurors, submitting a total of 14 questions. 1 He first inquired whether any of the prospective jurors were related to or associated with either the prosecutor, defense counsel or the defendant, and whether they had any personal ¹²⁷ knowledge of or any information concerning the crime charged. There were no affirmative responses. The court then asked whether any of the prospective jurors or members of their immediate families had worked in a law enforcement or prosecution agency.

There were four affirmative responses; one of the jurors admitted bias in favor of the prosecution and was struck for cause. The court next asked whether any of the jurors had ever been a defense or prosecution witness in a criminal case; there were three affirmative responses. The court next asked whether any of the jurors or their families had ever been victims of a crime. One juror indicated that his mother had been murdered and that he could not render an impartial verdict in a case involving an assault-type crime.

Another juror, Paul Sloboda, stated that he had been shot four times and hospitalized for three months, but that he could render a fair and impartial verdict based solely on the evidence. At this point in the voir dire examination defense counsel stated to the court: “[Njormally the State’s Attorneys are equipped with jury lists that give them sort of a scoreboard on how things have developed and I don’t have it.” He asked the court “to allow me to have it.” The prosecutor responded: “I have in my possession a jury list that I personally helped to prepare.... We disseminate it throughout the office. Just as I knew that ...

Mr. Sloboda’s comment before because I personally had him under voir dire earlier. That’s the basis of the preparation of the list. It’s based on personal knowledge of each of the different persons and it is our work product.” The prosecutor stated that the appellant was not entitled to his work product. Defense counsel persisted, stating: “It is a combined information and I feel that ... certain comments in there should be equally made known to both sides of the case.” ¹²⁸ The court denied defense counsel’s request, and the voir dire resumed.

Following the uneventful propounding of two more questions to the prospective jurors, appellant’s counsel asked the court to permit a copy of the prosecutor’s jury list to be sealed and included as part of the record for purposes of appellate review. The court concluded that the prosecutor’s jury list was his own “work product” in that it constituted: “[his] own compilation, whether they think people are good or bad witnesses, they keep a running record of the trials, but every trial is a different trial because a person might be on a certain trial and decide the matter in respect to guilt or innocence doesn’t mean they are going to do it a second time.” The court said that if the prosecutor’s jury list revealed jurors who had criminal records, he was obligated to reveal this information. Appellant’s counsel said that he wanted more than just criminal records: “I’m asking for information that will be helpful in allowing me to select a jury as fairly as it is for the State to select a jury.” The court denied the appellant’s motion to seal the prosecutor’s jury list and include it as part of the record. It stated, however, that it was the duty of the prosecutor, in addition to revealing a juror’s criminal record, to also bring to the court’s attention any information he possessed of a juror lying under oath on his voir dire examination.

The voir dire examination resumed. The prosecutor told the court that his jury list indicated that two of the prospective jurors might have criminal records; he revealed their names to the court and to the appellant. The two jurors were interrogated by the court and each denied being convicted of any crime. At the conclusion of the voir dire examination, and after the jury had been selected, the clerk asked whether the panel was acceptable both to the prosecution and the defense; each replied in the affirmative. ¹²⁹ (1) The Court of Special Appeals held, and we agree, that in the circumstances of this case, the appellant did not waive his objection to the denial of his request for the use of the prosecutor’s juror dossier when, after the jury had been selected, he stated that the panel was acceptable to him.

In Neusbaum v. State, 156 Md. 149 , 143 A. 872 (1928), our predecessors held that the defendant waived a previously made objection to a particular jury when he later stated to the court that the jury was acceptable to him. In that case, the prosecutor, while speaking to prospective jurors who were waiting to be examined on their voir dire, made a prejudicial remark; he did so in the presence of several jurors who had already been selected. The defendant objected to the remark and moved that a juror be withdrawn and the case continued. The court denied the motion, but later offered the defendant an opportunity to have a new jury selected.

The defendant declined the offer, stating that the jury was acceptable to him. It was held that under such circumstances, the objection had been waived. In Glover, Robinson & Gilmore v. State, 273 Md. 448 , 330 A. 2d 201 (1975), a panel of 75 jurors had been exhausted after nine jurors had been seated. The court directed the sheriff to locate and return to court with 25 additional veniremen; the sheriff complied.

After the veniremen were seated in the courtroom, the defendants objected to the array on the ground that the sheriff had not consulted the registered voters’ lists as required by law. The court denied the challenge after finding that all of the jurors were qualified. After the three additional jurors were selected and seated, the court asked whether the defendants were “ ‘satisfied with the jury.’ ” Defense counsel, after consulting with the defendants, responded: “ ‘Defendants have expressed that they are satisfied with the jury.’ ” We held in those circumstances that the defendants “unequivocally indicated their satisfaction with the jury at the termination of the jury selection process” and by approving the jury actually selected “waived their prior objection to the panel of talesmen.” 273 Md. at 453 . ¹³⁰ In Tisdale v. State, 30 Md. App. 334 , 353 A. 2d 653 (1976), the defendant’s challenge of two prospective jurors for cause was overruled. The clerk asked defense counsel before the jury was sworn whether the panel was acceptable and he answered in the affirmative.

The court there held that there was no waiver of the prior challenge for cause. Distinguishing Neusbaum and Glover,.it said that the objection to the two jurors had been clearly stated on the record and that the defendant’s subsequent response indicating approval of the jury as ultimately selected “was merely obedient to the court’s rulings and obviously not a withdrawal of the request, timely made, that the jurors be excused for cause.” 30 Md. App. at 340 . Nothing in Neusbaum, Glover or Tisdale 2 is directly apposite to the present case. Appellant’s objection was only indirectly aimed at the composition of the jury ultimately selected.

His fundamental objection was predicated on the court’s refusal to permit inspection or discovery of the prosecutor’s jury dossier and to include it as part of the record on appeal. His approval of the jury as ultimately selected — a matter over which he had no control — did not explicitly or implicitly, waive his previously asserted right-to-disclosure claim to the information sought. In the circumstances, we think his objection was preserved for appellate review. (2) In holding that the trial court did not err in refusing appellant’s request for disclosure and inspection of the prosecutor’s juror dossier, the Court of Special Appeals rejected the appellant’s basic premise that due process and fundamental fairness required disclosure of the prosecutor’s “investigatory report” in order to place the defense upon an equal footing with the prosecution.

It stated, however, that due process requires “that the entire criminal process be conducted without unfair prejudice to the accused” and that consequently it would be improper “for the prosecutor to withhold information which would reasonably reflect the ¹³¹ inability of a juror to render an impartial verdict.” 36 Md. App. at 490-91 . In applying these principles, the Court of Special Appeals concluded that the prosecutor’s notations of “ideas and notions on prospective jurors [made] as the result of personal observations of himself and fellow prosecutors” constituted work product and was protected from disclosure. Id at 491. The court said that it was nevertheless within the trial judge’s discretionary power “to adjudge, if requested, whether or not any additional information sought by appellant is material and should be disclosed by the State” and that he could “view the prosecutor’s notes and determine whether or not due process or fundamental fairness required disclosure.” Id. at 491-92 .

The court held that where there were no specific grounds alleged to strike a juror for cause, there was no need for the trial judge to inspect the prosecutor’s notes. It said that there was a duty upon the prosecutor to disclose the criminal record of a prospective juror if known to him, and also a duty to disclose that a prospective juror lied under oath. But absent any indication that the jury which was impaneled was prejudiced against the appellant, the court found no denial of due process in withholding the juror dossier from inspection by the appellant; it said: “We hold ... that absent any showing that the accused was denied an impartial jury, and that any of the dossier was otherwise discoverable, the trial judge did not err in denying the request for the disclosure of the prosecutor’s dossier on prospective jurors.” 36 Md. App. at 492-93 . The appellant contends that the Court of Special Appeals was wrong in holding that disclosure of the prosecutor’s juror dossier was conditional on a prior showing of prejudice.

The contradiction inherent in this holding, he argues, is that without some degree of disclosure the accused is powerless to demonstrate prejudice; yet unless he demonstrates prejudice, disclosure or inspection of the material will not be ordered. Appellant maintains that under both the state and federal constitutions, he has a right to an impartial jury and ¹³² that this right, together with considerations of fundamental fairness, requires the trial judge to compel the prosecution to disclose the information to him. And, he argues, the disclosure should not be limited to information relevant to challenges for cause, but should also include information useful in the exercise of peremptory challenges which is not equally accessible to the accused. In this connection, appellant points out that the dossier may contain material not supporting a challenge for cause but enabling the prosecutor to exercise his peremptory challenges more intelligently than the defense, thus giving the prosecutor an unfair advantage.

While taking this view of the prosecutor’s duty of disclosure, the appellant recognizes, the impossibility of obtaining exact equality between the prosecutor and the defense. He also disavows the notion that fundamental fairness requires disclosure of material equally accessible to the accused, and he acknowledges that he is not entitled to the prosecutor’s work product. But, he argues, once it is brought to the court’s attention that a prosecutor possesses information on prospective jurors which is not also in the possession of the defense, the trial judge must then recognize that an element of unfairness has entered the proceedings. Since the right to disclosure is, in appellant’s view, a judicial and not a prosecutorial decision, the trial judge must conduct at least a threshold inquiry into the contents of the dossier sufficient to ascertain the type of information which it contains and its sources.

Absent such an inquiry, appellant says that prejudice may never become manifest. Because the trial judge failed to pursue the necessary inquiry in the present case, it is urged that appellant’s right to an impartial jury was compromised and reversal of the conviction is required. In effect the doctrine appellant advocates amounts to this: that an accused’s right to a fair and impartial jury entitles him, as a matter of right, to inspect a prosecutor’s juror dossier, and if the trial judge, whether requested to or not, fails to screen the dossier to determine if it contains information either prejudicial or merely useful to the accused ¹³³ in selecting a jury, a subsequently obtained conviction must be reversed. The argument finds scant support in the cases.

The general rule appears to be that an accused is not denied his right to a fair and impartial jury merely because the prosecutor does not disclose to him material within his possession relating to the qualifications of prospective jurors which he uses in selecting a jury. See United States v. Falange, 426 F. 2d 930 (2nd Cir.), cert. denied, 400 U. S. 906 (1970); Martin v. United States, 266 F. 2d 97 (5th Cir. 1959); United States v. Costello, 255 F. 2d 876 (2nd Cir.), cert. denied, 357 U. S. 937 , reh. denied, 358 U. S. 858 (1958); Best v. United States, 184 F. 2d 131 (1st Cir. 1950), cert. denied, 340 U. S. 939 , reh. denied, 341 U. S. 907 (1951); Christoffel v. United States, 171 F. 2d 1004 (D.C. Cir. 1948), rev’d on other grounds, 338 U. S. 84 (1949); Jebbia v. United States, 37 F. 2d 343 (4th Cir.), cert. denied, 281 U. S. 747 (1930); Annot., 78 A.L.R.2d 309 (1961). These cases do not distinguish between public and nonpublic information made available to the prosecutor for jury selection purposes. Rather, they involve use by the prosecutor of information concerning qualifications of prospective jurors obtained from sources not ordinarily available to the accused, namely, police agencies, income tax records, and government employees.

The courts in these cases have held that the prosecutor need not disclose the results of such investigations of prospective jurors to the defense. The crucial question in these cases has seemingly been whether, in view of all circumstances, including the conduct of the voir dire examination of prospective jurors, the accused was afforded a fair and impartial jury. Some courts have applied the rule in a more limited manner; they hold that ordinarily there is no duty upon a prosecutor to disclose to the defense material pertaining to public aspects of a prospective juror’s service or facts which the prosecutor has assembled from public records. Thus, in People v. Stinson, 58 Mich.

App. 243 , 227 N.W.2d 303 (1975), the defendant sought to inspect the prosecutor’s jury dossier which contained voting records of jurors from prior cases. The Court held that there was no right to disclosure since the information was public and available to the defense. In People ¹³⁴ v. McIntosh, 400 Mich. 1 , 252 N.W.2d 779 (1977), the Supreme Court of Michigan affirmed the rationale of Stinson holding that the defense had no right to inspect jury dossiers compiled by the prosecutor from public records. Past voting records of prospective jurors were also involved, and the same rule was cited with approval in United States v. Kyle, 469 F. 2d 547 (D.C. Cir. 1972), cert. denied, 409 U. S. 1117 (1973); and Britton v. United States, 350 A. 2d 734 (D.C. 1976).

In Kyle , however, the court held that notwithstanding the public nature of the information contained in the