Davis v. State

MOYLAN, Judge. In terms of popular and frequently recurring issues in criminal cases, even a cursory survey of the year’s docket confirms what our senses have already told us. The voguish “Contention of the Year” for the September, 1991 Term has been that defendants are entitled to a broader scope of inquiry during the jury selection process than is typically allowed. Consistently (largely in unreported opinions), we have rejected the contention.

Persistently, it continues to appear. In the hope of some relief, we here reaffirm — categorically and for reporting — the well-settled limits that have long circumscribed and shall continue to circumscribe the voir dire examination of prospective jurors in Maryland, whatever the permitted latitude may be elsewhere. The appellant, David Davis, was convicted by a Baltimore City jury, presided over by Judge David Ross, of the possession of cocaine with intent to distribute and the possession of heroin with intent to distribute. Upon this appeal, he raises three contentions: ⁹² 1) That Judge Ross erroneously refused to ask whether any of the prospective jurors “has been a member or is a member of the law enforcement community or whether they have a close relative or friend who is such a member?”; 2) That Judge Ross erroneously allowed the prosecutor to make a missing witness argument to the jury; and 3) That Judge Ross erroneously allowed the prosecutor to make an inflammatory closing argument.

In qualifying the jurors initially, Judge Ross put six questions to the venire panel as a whole: 1) He asked whether any of the prospective jurors had any knowledge or information about this particular case. 2) He asked whether any of the jurors knew a) the appellant, b) defense counsel, c) the assistant state’s attorney, d) Officer Andrew Bratcher, the chief police investigator and only State’s witness; or e) Mary Easley, a witness for the defense. 3) He inquired as to whether any of the jurors “has been or ... has a close relative who has either been the victim of or has been charged with or convicted of a drug related crime.” 4) He asked whether any of the jurors is “likely to give more or less weight to the testimony of a police officer merely because that person is a police officer.” 5) More generally, he inquired as to whether any of the jurors “knows of anything that would keep him or her from giving a fair and impartial verdict in this case.” 6) Again more generally, he also asked whether any of the jurors “knows of any reason why he or she should not sit on the jury in this case.” Defense counsel then requested Judge Ross to pose to the panel the additional question of whether any of them had ever been a member of the law enforcement community or had a close relative or friend who was or had been a member of the law enforcement community. Counsel expressed his disdain for “the sort of omnibus question if ⁹³ anybody has any reason they shouldn’t serve” as unrealistic and inadequate. Counsel indicated that the primary purpose of the requested supplemental question was to assist him to “bring ... my experience and skill to bear to strike a jury I feel would be fair to my client.” His aim was to be “in a position to use ... peremptory strikes intelligently.” Judge Ross declined to ask the supplemental question. The positive law regulating voir dire examination in Maryland, of course, is exceedingly meager.

Maryland Rule 4-312(d) (formerly Rule 752) provides in pertinent part: “The court may permit the parties to conduct an examination of prospective jurors or may itself conduct the examination after considering questions proposed by the parties. If the court conducts the examination, it may permit the parties to supplement the examination by further inquiry or may itself submit to the jurors additional questions proposed by the parties.” Beyond those bare provisions, there is only case law. Two Views of Voir Dire In terms of case law, there are abroad in the land two diametrically incompatible attitudes as to the proper purpose, and therefore the proper scope, of voir dire examination. There is an expansive vision, indulged in states such as California and Florida and New York, where jury selection in celebrity cases may consume three or four weeks.

Under such a regime, voir dire questioning is frequently addressed to prospective jurors one by one rather than to a panel of them en masse. The questioning, moreover, is frequently conducted by the advocates themselves, championing their respective causes with every intonation and every smile and grimace, rather than by a judge, speaking neutrally for an impersonal institution. The quintessential character of the expansive vision, however, emerges with the permitted subject matter of the questioning. Concern with mere challenges for cause is no more than a passing gesture.

The multiple aims are far more encompassing. ⁹⁴ The better to pursue those aims, young advocates (and old) pay handsome tuitions at exotic resorts to sit at the feet of storied masters of trial advocacy. They hear wondrous accounts of how virtually unfettered voir dire may in the hands of an astute psychologist be employed 1) to psychoanalyze the prospective juror so that the advocate can predict with almost mathematical certainty how the juror will react to a given fact pattern in the case that is about to unfold; 2) to “strike a deal” (a favorite cliche at such seminars) with a juror, so that if certain evidentiary developments come to pass, the juror is almost honor-bound to respond in the “agreed” fashion; and 3) to hypnotize or to condition the juror in advance of the trial proper as to the advocate’s theory of the case. The fledglings hear endless tall tales of famous cases won or lost on voir dire. At the very least, these are rollicking good war stories told by entertaining spinners of yams and everyone comes away with a sense of the tuition having been well-spent.

To this school of thought, mentor and pupil alike, expansive voir dire is the ultimate palladium of liberty, fair play, and justice. It is the jewel in the crown of trial by jury. There is, however, an opposing school of thought that looks upon such indulgence as errant, if not grotesque, foolishness. Many of the war stories of the Olympians are dismissed as self-serving nonsense, more pertinent to the Book of the Month Club than to the courtroom.

In terms of the profligate waste of precious courtroom and human resources, it looks upon any fractional gain from unlimited voir dire as a minimally incremental benefit that soon passes the point of diminishing returns. In a world of finite resources, if the fabled “day in court” is permitted casually to multiply into twenty days in court, the inevitable consequence is that, by the inexorable law of mathematics, nineteen other litigants are denied any time in court at all, save only the few moments required for the tendering of their negotiated pleas. Where this more austere school of thought prevails, the prospective jurors are almost always questioned, by com ⁹⁵ mon practice if not by requirement of law, en masse rather than one by one. The questioning, moreover, by common practice if not by requirement of law, is conducted by the judge and not by the individual advocates.

The premium is on efficiency and economy. Of even more significance, the subject matter of the questioning is limited to those things that would establish challenge for cause — to those things that go to the essential and fundamental impartiality of the jury. It is, in the last analysis, trial by an impartial jury that is constitutionally guaranteed, not trial by a sympathetic jury nor trial by a favorably predisposed jury. A jury of one’s peers 1 is not a jury of one’s clones.

According to this less grandiose “core” vision, a defendant is entitled to a basically impartial jury and no more. He is not entitled to every last “tilt” or “edge” or favorable predisposition that a skilled advocate might, with time and latitude, be able to wring from a more prolonged and indulgent process. Conversely, he is not insured against every countervailing “tilt” or “edge” or unfavorable predisposition that a skilled advocate might, with time and latitude, be able to clear from his path. Although the deck may not be stacked against him, he may nonetheless end up with a difficult hand to play.

Since there is no ultimate constitutional right to peremptory challenges at all, either version of the antecedent ritual — the expansive approach or the Spartan approach— passes constitutional muster. When a constitution places no value on the voir dire guessing game itself, it is perforce indifferent on the sub-issue of informed guessing ⁹⁶ versus wild guessing. The choice of competing visions or philosophies as to voir dire examination is, when all is said and done, a policy call that must be made state by sovereign state. Maryland Chooses the Spartan View Maryland made its choice at the turn of the present century.

Handy v. State, 101 Md. 39 , 60 A. 452 (1905), was a capital case. Henry J. Handy had shot and killed his wife “under circumstances ... of extraordinary deliberation and set purpose.” He attempted to establish that he had been goaded into the murder because “he believed she allowed and encouraged improper attentions from one Thomas.” The appellant there raised two issues before the Court of Appeals, both involving limitations that had been placed upon his voir dire examination of prospective jurors. He complained 1) that he had not been allowed, through his counsel, to propound questions directly to a juror but had only been permitted to do so through the medium of the trial judge, and 2) that he had not been permitted, even through the medium of the judge, to inquire as to the marital status of one of the prospective jurors so that he could enlighten himself “as to the propriety of exercising the right of peremptory challenge.” The Court of Appeals acknowledged, 101 Md. at 40-41 , 60 A. 452 , that on both of the closely related issues, it was writing on a clean slate: “There is no statute in this State upon the subject, and we have been referred to no case in this State in which either of these questions has been decided or presented. The decisions in other States are conflicting ...” In opting for the more Spartan approach, the Court of Appeals first sounded three themes, which have reverberated regularly for the ensuing eighty-seven years.

Quoting with approval several academic authorities, it held that in the absence of a statute to the contrary, “ ‘The control of the trial of challenges, and of all the proceedings by which a jury is finally selected from those summoned and from the ⁹⁷ bystanders, is committed to a wide discretion of the Court.’ ” 101 Md. at 41 , 60 A. 452 . On the sub-issue of whether the questioning of jurors should be by the respective advocates or by the judge, the Court of Appeals held that “ ‘it lies in the discretion of the Court either to put the questions or to allow the counsel to examine.’ ” Id. The Court expressed agreement with the Texas Court of Appeals in Stagner v. State, 9 Tex.App. 440 , 451 (1880), where it was said: “[T]he Judge should either himself conduct the examination, or at least so far conduct it as to confine it to the point under [investigation], and not permit it to take so wide a range to entrap the unwary juror into letting fall some expression not seriously and understandingly made, and from which it may afterwards be argued that he was not an impartial juror in the case. The juror should be treated with the utmost fairness in the examination, and not be subjected to the rigid cross-questioning sometimes indulged in in cross-examining a witness who is testifying in a case.” Id. at 451 .

The third and closely related issue was whether a defendant, charged with the deliberate murder of his wife and apparently claiming adulterous provocation at least in mitigation, was entitled to inquire as to whether a prospective juror was a “married man.” The Court of Appeals held that he was not so entitled, because the answer, whichever it was, would not have established a cause for disqualification. The Court looked favorably to Regina v. Stewart, 1 Cox C.C. 174 (1845), which had held that a defendant, on trial for the larceny of goods from tradesmen, was not permitted to inquire of a prospective juror whether that juror “was a member of an association for the prosecution of parties committing frauds on tradesmen.” 101 Md. at 41 , 60 A. 452 . The Court of Appeals quoted with approval from the English decision: “ ‘Where a party has a right of challenge, he is not entitled to ask a juryman questions for the purpose of eliciting whether it would be expedient to ⁹⁸ exercise such right.’ ” Id. The Court of Appeals quoted with approval from Bales v. State, 63 Ala. 30, 38 (1879): “ ‘We know of no authority, and we perceive no reason for any such speculative, inquisitorial practice, consuming needlessly the time of the Court, and offensive to the persons subjected to it.’ ” Id. at 42 .

It quoted with approval State v. Creasman, 32 N.C. (10 Ired.) 395, 397 (1849): “ ‘A party has no right to examine the juror, or any other person, by way of fishing for some ground of exception.’ ” Id. The Court of Appeals committed itself to this more austere view of the voir dire process with full knowledge that other jurisdictions had taken contrary positions: “We are aware that there are decisions to the contrary in other Courts of equal authority and reputation, but such knowledge as we possess of the experience in practice under those decisions does not commend them to our adoption.” 101 Md. at 43 , 60 A. 452 . The next occasion the Court of Appeals had to revisit the subject was in Whittemore v. State, 151 Md. 309 , 134 A. 322 (1926), with Chief Judge Bond writing for the Court.

One of the issues was the refusal of the trial judge to allow the defendant, in a capital murder case, to inquire of a juror, listed as retired, as to his age and his former business. The defense complained that it needed this information “in order to aid counsel in deciding whether to exclude that juryman by a peremptory challenge.” 151 Md. at 311 , 134 A. 322 . The Court of Appeals upheld the trial judge, reaffirming the stand it had earlier taken in Handy v. State: “The appellant does contend, however, that the decision in Handy v. State does not settle the point of the propriety of questions on behalf of one side or the other for aid in determining whether to exercise the right of peremptory challenge. But we think it does so settle the point, at least as it arose in that case.

And our conclusion is that, while such questions as were excluded in this case would not in themselves offend against any rule, and, without ⁹⁹ error, might have been admitted, as they commonly are admitted, still, under the decision in Handy v. State, it was within the discretion of the trial court to exclude them as questions for peremptory challenges purely, and there was no error in the court's doing so.” 151 Md. at 313 , 134 A. 322 . After also reaffirming that “the subject is not one covered by rigid rules, but is committed largely to the sound discretion of the trial court in each case,” 151 Md. at 314 , 134 A. 322 , the Court pronounced its ruling on the first of the two issues before it: “The rule is, then, that questions, not directed to a specific reason for disqualification and exclusion by the court, may be refused in the court’s discretion.” 151 Md. at 315 , 134 A.2d 322 . The Court pointed out that the questions “excluded in this case were for no specified purpose, and apparently with no question of disqualification in mind, but were merely beginning a process of examining at large, in order to form impressions and preferences, which, while they might properly be made the ground for peremptory challenges, would not test the eligibility of the jurymen. The exclusion was not an improper exercise of the court’s discretion.” 151 Md. at 315-316 , 134 A. 322 .

That same year, Beck v. State, 151 Md. 615, 620 , 135 A. 410, 412 (1926), reaffirmed the holding from Handy that it is totally within the discretion of the trial judge whether to propound the voir dire questions himself or to permit such questioning to be done by the respective advocates. The case law that followed on this subject for the next several decades simply routinely reiterated the limited focus of the voir dire examination upon disqualification for cause. State v. Welsh, 160 Md. 542, 544 , 154 A. 51 (1931) (“[T]he examination which the party is thus entitled to have made is only a means to the end of ascertaining the existence of cause for disqualification, and is not permitted for any other purpose.”); Lee v. State, 164 Md. 550, 557 , 165 A. 614 , 617 ¹⁰⁰ (1933); Cohen v. State, 173 Md. 216, 224 , 195 A. 532 (1937); Corens v. State, 185 Md. 561, 564 , 45 A.2d 340 (1946). As a means of confining the questioning to the pursuit of actual disqualification and of inhibiting it from being used for a peripheral purpose, an analytical appreciation of the role of the omnibus or compound question as opposed to a series of fragmented or simple questions emerged in Adams, Nelson and Timanus v. State, 200 Md. 133 , 88 A.2d 556 (1952).

A licensed physician, a registered nurse, and a secretary were on trial for the crime of abortion. The defendants objected that they were not permitted to interrogate prospective jurors about their religion or church affiliation. The judge simply asked the compound question: “Is there any reason which will prevent any one of you from giving each of the defendants a fair and impartial trial and finding a verdict based only on the law and the evidence, such as your ... religious scruples or any other reason?” Id. at 140 , 88 A.2d 556 . To the compound question, one prospective juror raised his hand and stated, “I don’t approve of abortions.” Id.

The court excused that juror for cause. Clearly, the omnibus answer does not supply the defendant the bonus data that might be gleaned from a pair of fragmented answers. If the omnibus questionee responds that his religious beliefs might prevent him from rendering a fair and impartial verdict, the prospective juror is disqualified for cause, the defendant will give no thought to a possible peremptory, and all is well. If the omnibus questionee answers in the negative, on the other hand, the defendant is perplexed.

Was the negative answer motivate ed by the essential absence of religious convictions themselves or was it inspired, rather, by a grim and determined resolution to render a fair and impartial verdict notwithstanding those tugging predilections? In the latter case, the defendant, if only he could know, would fire off a ¹⁰¹ peremptory and take no chances. 2 On so sensitive a subject as abortion, touching as it does powerful religious beliefs, it would obviously have assisted the defendants, in their use of peremptory challenges, to know the religion of a prospective juror. The Court of Appeals held firmly to its guns, however, that the compound question sufficed and that any less sweeping question about denominational affiliation would not ipso facto establish a ground for disqualification: “It would obviously serve no useful purpose to interrogate prospective jurors about their religious or church affiliation unless such affiliation would be a ground for disqualification. Religious or ethical beliefs as to the practice of abortion may range from a view that abortion, or even contraception, in any form or under any circumstances is morally wrong, to a view that the prevention of an unwanted child may be morally right, under circumstances not directly related to the mother’s physical survival.

But unless such beliefs would prevent an impartial consideration of the evidence and a proper application of the existing law, they would not disqualify. The court’s inquiry was directed towards religious scruples with this proper qualification. We find no abuse of discretion.” 200 Md. at 140-141 , 88 A.2d 556 . As Maryland held fast to the narrower focus on voir dire examination, it became clear that the preferred interrogatory mode, which the trial judge in his discretion may insist upon, is to design a single, lethal question that goes straight to the jugular of disqualification.

It is an all-or-nothing enterprise with no intermediate stages. The more tentative two or three-step progression toward the jugular issue is frowned upon (and in the discretion of the trial ¹⁰² judge may be, indeed, forbidden), because it can be manipulated to serve, or may gratuitously serve even absent manipulation, extraneous and disfavored purposes. The Maryland Approach at the Half-Century Mark Bryant v. State, 207 Md. 565 , 115 A.2d 502 (1955), a capital first-degree murder case, has significance because, instead of routinely applying settled law, the Court of Appeals seized the occasion, through Judge Delaplaine, to rethink its position philosophically. It did so, incidentally, as the Handy doctrine reached the half-century mark.

It pointed out, “The practice of submitting questions to jurors on their voir dire has not been uniform in the United States.” 207 Md. at 581 , 115 A.2d 502 . It then contrasted the more Spartan handling of voir dire examination in Massachusetts with the more latitudinarian handling of such examination in Florida. It recapitulated Maryland’s first addressing of the problem in Handy v. State, and then affirmatively resubscribed to the Handy position: “The question as to the proper practice in conducting voir dire examinations in Maryland came before the Court of Appeals in 1905 in Handy v. State ... [T]his Court held that when a juror is sworn on his voir dire and is declared by the court to be qualified, counsel for the defendant is not entitled to interrogate the juror generally for the purpose of determining whether or not to exercise the right of peremptory challenge. That rule has been reaffirmed in subsequent decisions, and we see no reason to change it” (emphasis supplied). 207 Md. at 582 , 115 A.2d 502 .

Into the Second Half-Century The thirty-seven years that have thus far transpired in the second half-century of the life of the Handy doctrine have served only to see its precedential roots dig themselves more deeply into the common law of Maryland and to hear the themes first tentatively announced there sound and resound on numberless occasions, developing more ful ¹⁰³ ly in the process of repetition and fresh application. There are at least three distinct melodic strains that have developed, as well as a pervasive theme that underlies them all. A. The Trial Judge’s Discretion: The pervasive theme that underlies any consideration of what happens in the course of voir dire examination of jurors is that it is something entrusted to the wide discretion of the trial judge. In Handy v. State itself, Judge Pearce established that both 1) the decision to have the questions propounded by the court or by the respective advocates and 2) the decision as to whether to permit a particular question are entrusted to the broad discretion of the trial judge.

Maryland Rule 4-312(d) confers almost total discretion upon the judge with respect to the handling of voir dire examination. As recently as 1989, Bedford v. State, 317 Md. 659, 670 , 566 A.2d 111 (1989), reaffirmed the discretion of the trial judge with respect to both the nature and the extent of the voir dire examination: “In Maryland, no statute or rule exists specifically regulating how voir dire is to be conducted, and this Court has determined that the nature and extent of the procedure lies solely within the sound discretion of the trial judge.” Grogg v. State, 231 Md. 530, 532 , 191 A.2d 435 (1963), had affirmed that “the nature and extent of voir dire examination rests in the sound discretion of the trial court.” In Langley v. State, 281 Md. 337, 341 , 378 A.2d 1338 (1977), Judge Smith observed for the Court of Appeals: “This Court has observed on a number of occasions that ... the subject is not covered by rigid rules, but is committed largely to the sound discretion of the trial court in each case.” Judge Hammond had spoken to the same point in McGee v. State, 219 Md. 53 , 146 A.2d 194 (1959): “It is settled in Maryland that in examination of jurors on their voir dire, the court may frame its own questions and not permit cross-examination by counsel, that the ¹⁰⁴ extent of the examination rests in the sound discretion of the court, and that the purpose of the inquiry is to ascertain ‘the existence of cause for disqualification and for no other purpose.’ ” In terms of what questions may be asked, Corens v. State, 185 Md. 561, 564 , 45 A.2d 340 (1946), stated unequivocally that that is a discretionary call by the trial judge: “In Maryland there is no statute or precise rule prescribing the questions which should be asked a prospective juror on his voir dire in order to determine his qualification, but the subject is left largely to the sound discretion of the court in each particular case.” In terms of who shall do the questioning, trial judge or individual advocate, Tichnell v. State, 297 Md. 432, 438 , 468 A.2d 1 (1983), rejected squarely the defense contention that defense counsel rather than the trial judge should have been permitted to conduct the voir dire. Chief Judge Murphy stressed the discretionary nature of the trial judge’s decision in this regard: “Maryland Rule 752 permits, but does not require, individual voir dire examination of prospective jurors by counsel. The matter is committed to the sound discretion of the trial judge; there is no absolute right vested in counsel, constitutional or otherwise, to conduct individual voir dire." In terms of the decision of whether the voir dire questions shall be propounded to individual prospective jurors one by one or to the entire panel en masse, Colvin v. State, 299 Md. 88, 102 , 472 A.2d 953 (1984), emphasized the discretionary nature of the decision: “To the contrary, as appellant concedes, in the absence of a statute or court rule to the contrary, as long as the selection procedure results in a fair and impartial jury, the method and manner of conducting a voir dire rests within the sound discretion of the trial court.” On numerous occasions, this Court also has observed the broad discretionary nature of the trial judge’s various deci ¹⁰⁵ sions in handling voir dire examination.

Burnette v. State, 32 Md.App. 277, 278 , 360 A.2d 23 (1976), rev’d on other grounds, 280 Md. 88 , 371 A.2d 663 (1977), observed: “In this State the nature and extent of the voir dire examination rests in the sound discretion of the trial judge.” See also Vernon v. State, 12 Md.App. 157, 160-161 , 277 A. 2d 635 (1971); Carder v. State, 5 Md.App. 531, 537-538 , 248 A.2d 495 (1968). As a general observation on the nature of appellate review, it should be noted that the discretionary character of the trial judge’s decisions in this area places a weighty burden upon an appellant to show a clear abuse of discretion. Under the circumstances, instances of reversal on rulings such as these are exceedingly rare. B. Who Shall Conduct the Voir Dire Examination?: Because Rule 4-312(d) expressly provides that the trial judge “may permit the parties to conduct an examination of prospective jurors” or “may itself conduct the examination,” it is not surprising that few appellants have challenged trial judges’ decisions in this regard.

One such challenge did occur in Moore v. State, 7 Md.App. 495 , 256 A.2d 337 (1969). Defense counsel had asked to be permitted to conduct the voir dire personally. The request was denied. Pointing to practices in the federal courts and in other states, the defense claimed an abuse of the trial judge’s discretion.

In rejecting the claim, we noted 7 Md. App. at 503-504 , 256 A.2d 337 : “He contends that an examination by counsel is permitted in federal and other state courts and in some courts within the State of Maryland, but we fail to see how this would make the trial judge’s action an abuse of discretion when the rule specifically permits what he did. His contention that counsel’s questions would more readily elicit prejudice than the judge’s is a matter, we think, that should be directed towards the rules committee or to the legislature rather than to this Court.” ¹⁰⁶ See also Tichnell v. State, 297 Md. 432, 437-438 , 468 A.2d 1 (1983); and Handy v. State, 101 Md. 39, 41-42 , 60 A. 452 (1905). Not surprisingly, there has never been an instance in Maryland where the decision of a trial judge in this regard has been deemed to be a clear abuse of discretion calling for appellate reversal. C. Should Jurors Be Examined Individually or En Masse?: Because Rule 4-312(d) does not address this issue expressly, the question of whether the prospective jurors may be examined individually or collectively has generated more appellate litigation than the companion question of who shall conduct the examination.

The resolution of the issue, however, is found within the overarching principle that all decisions in this general area, whether expressly referred to in the rule or not, are consigned to the wide discretion of the trial judge. The issue first came before the Court of Appeals in Connor v. State, 225 Md. 543 , 171 A.2d 699 (1961). The appellant had requested individual rather than collective examination of the jurors. The request was denied.

The Court of Appeals observed that different jurisdictions handle the problem differently, but concluded that there was no abuse of discretion on the part of the trial judge in conducting a collective examination: “The propounding of the voir dire questions to the prospective jurors collectively rather than separately was not improper. While this practice does not prevail in most of the counties, it has been the customary procedure in Baltimore City for many years; and, since no prejudice was shown to have resulted from the refusal of the court to examine each juror individually, we see no reason to disturb the prevailing practice. There are jurisdictions where not to propound the questions separately has been held to be reversible error. But in other jurisdictions, the refusal to ask the voir dire questions individually has ¹⁰⁷ been upheld.

In the absence of a statute or rule regulating the procedure, we think the matter should be left to the sound discretion of the trial court. While it would also be discretionary, it has never been, so far as we know, the practice anywhere in this State to examine each juror separately out of the presence of the remaining jurors.” (citations omitted). 225 Md. at 549-550 , 171 A.2d 699 . A slightly different twist was put on the issue in Colvin v. State, 299 Md. 88 , 472 A.2d 953 (1984). There the claim was made that whatever the discretion permitted in noncapital cases, the unique circumstances of a capital case dictate individualized examination of prospective jurors so as to make any denial thereof a clear abuse of discretion.

The argument was also made that individual examination does not simply enhance the fullness of communication between the examiner and the prospective juror but also permits the jurors to be examined in camera, out of the potentially contaminating presence of each other. The Court of Appeals flatly rejected the contention, holding 299 Md. at 101-102 , 472 A.2d 953 : “[T]he appellant sought individualized voir dire examination of prospective jurors. The court denied the request pursuant to Maryland Rule 752. Appellant claims prejudicial error in this ruling.

He contends that in death penalty cases the attitudes of jurors toward the death penalty must be inquired into and, as some jurors could be reluctant to answer truthfully to such inquiry, in the presence of other jurors, individual voir dire is necessary. However, no authority has been brought to the attention of this Court, nor have we found any, mandating individual voir dire under any circumstances. To the contrary, as appellant concedes, in the absence of a statute or court rule to the contrary, as long as the selection procedure results in a fair and impartial jury, the method and manner of conducting a voir dire rests within the sound discretion of the trial court.” (emphasis supplied). ¹⁰⁸ See also Poole v. State, 295 Md. 167, 186-187 , 453 A.2d 1218 (1983); Evans v. State, 304 Md. 487, 514-515 , 499 A.2d 1261 (1985); Barber v. State, 16 Md.App. 235, 240-241 , 295 A.2d 814 (1972); and Wooten-Bey v. State, 76 Md.App. 603, 619-622 , 547 A.2d 1086 (1988). As with the related issue of who shall conduct the examination, on this issue, as well, there has never been an instance in Maryland where the decision of a trial judge has been deemed to be a clear abuse of discretion calling for appellate reversal.

D. The Permitted Focus of Voir Dire Examination: In turning to an analysis of the permitted scope of voir dire questioning, there is no better place to begin than with the articulate statement of the controlling principles made by Chief Judge Murphy in Couser v. State, 282 Md. 125 , 383 A.2d 389 (1978). The starting point is the constitutional (federal and state) guarantee of an impartial jury. The constitutionally impartial juror is not necessarily, from a litigant’s point of view, an ideal juror or a perfect juror. The impartial juror in the constitutional sense need not walk into the courtroom already possessed of inherent impartiality; it is enough that the juror be capable of achieving requisite impartiality.

It was of this