Curtin v. State

Concurring Opinion by WILNER, J. I concur in the Court’s opinion because I agree that it would be a departure from our existing case law to find error in the Court’s refusal to pose the question at issue here. I do think, however, that the Court should consider, prospectively, a different approach, one on which we have already embarked. In State v. Thomas, 369 Md. 202 , 798 A.2d 566 (2002), we concluded that the public had such strong feelings about narcotics violations that it was necessary for a trial judge, on request, to question prospective jurors regarding their views ⁶¹⁴ about drug crimes. In Sweet v. State, 371 Md. 1 , 806 A.2d 265 (2002), we reached a similar conclusion with respect to crimes involving the sexual abuse of a minor.

It is obviously not reasonable to presume that those are the only kinds of crimes about which public emotion may run high. Surely, there are others. Having found that those kinds of criminal activity may so enrage prospective jurors as to require specific voir dire questions to ferret out possible bias, what standard will the Court use to distinguish one crime from another? We have essentially taken judicial notice that some people may have particularly strong feelings about narcotics crimes.

Is it not equally likely that some will have the same strong feelings about other crimes—burglary, robbery, rape, arson, not to mention murder. Some may be incensed over gambling or prostitution, or wanton, vicious assault, or cruelty to animals, or fraud. If the question is phrased as here—whether the prospective juror has such strong feelings about the crime as to make it difficult (or impossible) to weigh the facts fairly—what difference does it make what the crime is? I do not believe in the kind of open-ended voir dire that we see in other States.

I agree it should remain limited to discovering grounds that would support a challenge for cause and not be expanded to aid in the exercise of peremptory challenges. I fail to see how any kind of detailed line-drawing will work, however—how a question aimed at Crime A is required but not a question aimed at Crime B. In the great majority of cases, it would not unduly delay trial to ask whether the jurors have such a bias regarding the crime or crimes actually charged. Few jurors, I expect, will truthfully respond in the affirmative, and, to the extent they do, a few follow-up questions by the court will serve precisely the function of voir dire that we have traditionally blessed. I would prefer to do this by Rule rather than by judicial decision.

It would give us the opportunity to frame an acceptable (not necessarily a mandated) form of question going to bias emanating from the nature of the crime and put ⁶¹⁵ the question in the Rules, where it would be more likely to be seen than in one opinion of the Court. Dissenting Opinion by BELL, C.J., which RAKER, J., joins. In State v. Thomas, 369 Md. 202 , 798 A.2d 566 (2002), defense counsel proposed to ask the venire panel, “Does any member of the jury panel have such strong feelings regarding violations of the narcotics laws that it would be difficult for you to fairly and impartially weigh the facts at a trial where narcotics violations have been alleged?” 369 Md. at 204 , 798 A.2d at 567 . The trial court refused, ruling, instead, that the question was fairly covered by other questions asked in voir dire, namely whether any members of the venire had formed an opinion or had information about the case and whether there was any other reason why any panel member felt he or she could not be impartial. 369 Md. at 205 , 798 A.2d at 568 .

This Court held that the latter questions did not adequately probe the venire’s attitudes about drug offenses. We opined: “A question aimed at uncovering a venire person’s bias because of the nature of the crime with which the defendant is charged is directly relevant to, and focuses on, an issue particular to the defendant’s case and, so, should be uncovered.” 369 Md. at 214 , 798 A.2d at 573 . We held that the defendant had the right to a question specifically aimed at uncovering a bias due to the nature of the crime with which he was charged, and, accordingly, that the trial court abused its discretion when it refused to ask the requested voir dire question. 369 Md. at 214 , 798 A.2d at 573 . In Sweet v. State, 371 Md. 1 , 806 A.2d 265 (2002), a case involving the sexual abuse of a minor, during voir dire, the defendant requested that the trial court ask the venire: “Do the charges stir up strong emotional feelings in you that would affect your ability to be fair and impartial in this case?” The trial court declined to pose the question.

We held that Thomas was applicable and controlling, concluding that the proposed inquiry was directed at biases related to the charged ⁶¹⁶ criminal act, that, if uncovered, “would be disqualifying when they impaired the ability of the juror to be fair and impartial.” 371 Md. at 10 , 806 A.2d at 271 . We further concluded that the trial court abused its discretion in failing to pose the requested voir dire question, and that the defendant was entitled to a new trial. 371 Md. at 10 , 806 A.2d at 271 . Despite this clear precedent, today this Court’s majority affirms the trial court’s refusal to propound to the venire the question, “Does anyone have any strong feelings concerning the use of handguns that they would be unable to render a fair and impartial verdict based on the evidence?” 393 Md. 593, 595 , 903 A.2d 922, 923 (2006). And, notwithstanding that, except for the crime described, the question in this ease was essentially identical to the questions, as to which the failure to ask was deemed error, in Thomas and Sweet , the Court reasons, “because the question was not one that, if answered in the affirmative, would have provided a basis for a strike for cause in the instant case, the trial court did not abuse its discretion in denying the requested voir dire question.” Id. at 595, 903 A.2d at 924 .

This rationale, joined by the concurring opinion of Judge Wilner, is that finding error in this case would be a departure from our existing case law. Id. at 613 , 903 A.2d at 393 ; 393 Md. at 613 , 903 A.2d at 934 (Wilner, J., concurring). There is a lot to be said for Judge Wilner’s concurrence in this case. It makes the point, and quite well, that this Court already has required voir dire questions designed to ferret out bias, arising from and/or based on certain charged offenses, that, in that regard, this Court already has embarked on and endorsed, an approach different from that espoused and touted as the approach our existing case law supports.

Acknowledging our decisions in Thomas and Sweet , he recognizes the unreasonableness in presuming that the crimes at issue