Drake and Charles v. State

975 A.2d 204 (2009) 186 Md. App. 204 Dwayne DRAKE and Jamal Charles v. STATE of Maryland. No. 3021, September Term, 2007. Court of Special Appeals of Maryland. July 7, 2009. ²⁰⁶ Jon Cardin and David Kennedy (Nancy S. Forster, on the brief), Baltimore, for appellant.

Sarah Page Pritzlaff (Douglas F. Gansler, on the brief), Baltimore, for appellee. Panel: DEBORAH S. EYLER, KEHOE, LAWRENCE F. RODOWSKY (Retired, Specially Assigned), JJ. DEBORAH S. EYLER, Judge. Dwayne Drake and Jamal Charles, the appellants, were tried jointly before a jury in the Circuit Court for Baltimore City on charges arising out of the shooting death of Bryant Jones at his home.

Both appellants were convicted of second-degree murder and use of a handgun in a crime of violence. Drake also was convicted of ²⁰⁷ wearing, carrying, or transporting a handgun. [1] Drake was sentenced to consecutive terms of 30 years' imprisonment for second-degree murder, and ten years' imprisonment (five without possibility of parole) for use of a handgun in a crime of violence. Drake's conviction for wearing, carrying, or transporting a handgun was merged into his conviction for use of a handgun in a crime of violence. [2] Charles was sentenced to consecutive terms of 30 years' imprisonment for second-degree murder, and 20 years' imprisonment (five without possibility of parole) for use of a handgun in a crime of violence. Drake and Charles filed separate notices of appeal, which were consolidated in this Court.

They raise the following issues, which we have rephrased: I. Did the trial court err in asking the jury on voir dire whether they could "not convict a defendant without quote, scientific evidence, close quote, regardless of the other evidence in the case and regardless of the instructions that I will give you as to the law"? [3] II. Did the trial court err in denying the defendants' motion for mistrial after criticizing defense counsel's cross-examination in front of the jury?

III

Did the trial court err in allowing the State to elicit testimony that a witness was afraid to cooperate with detectives?

IV

Did the trial court unduly restrict defense counsel's closing argument? For reasons that follow, we shall affirm the judgments. FACTS AND PROCEEDINGS On April 14, 2006, Tamirra Jones celebrated her 16th birthday at a party at her home, with friends and family, including her father Bryant Jones. The party began around 8:30 or 9:00 p.m., in the basement.

Guests paid a $1 per person admission fee, although some were not charged. Shoelh and Takia Goode, Tamirra's cousins, collected the fees from partygoers at the front door and gave the money to Mr. Jones. There were roughly 20 partygoers in the basement, and several others upstairs. Drake and Charles attended the party.

An argument broke out between Drake and another guest, Tashima Miller. The argument was precipitated by Drake and his friends dancing roughly, "swinging their arms, bumping into people." Tamirra's parents and two adult cousins, Kim Holeman and Sharon Coston, went down to the basement to re-establish order and lay down some ground rules. The adults asked anyone carrying a weapon to leave. Charles said he had to leave and made a motion as if he were going to do so.

After one of his friends said, "don't play like that, they'll take you serious," Charles stayed. After the adults returned upstairs, Charles asked Shoelh Goode to dance, but she declined. Charles grabbed her arm. The adults went back downstairs, [4] and Tamirra ²⁰⁸ took her father aside and told him she wanted Charles to leave.

Mr. Jones then told Charles he had to leave. Charles gathered his friends and urged them to leave with him. Charles, Drake, and about 11 of their friends went upstairs, along with Tamirra's parents, the other adults, and Shoelh and Takia Goode. Charles and Drake demanded their dollar back from Mr. Jones.

There was some dispute as to whether Charles had paid the $1 entrance fee. Shortly afterward, Mr. Jones was shot and fatally wounded. Kim Holeman testified that she was standing next to Mr. Jones when he was killed. They were in the doorway to the front porch.

Charles and Drake were on the front porch several feet away, arguing over whether they were going to get their dollar back, when Charles shot Mr. Jones. Later that evening, Holeman was shown a photographic array and identified Charles's picture as the shooter. Charron Jones, Tamirra's cousin, also identified Charles as the shooter. Sharon Coston's testimony about the shooting was consistent with Holeman's testimony.

According to Coston, just before the shooting, Drake told Charles, "f____k this, show him how we do it in something ville." She "saw a flashing light," and then the adolescents ran from the porch. She first thought she had heard firecrackers detonating, but then realized Mr. Jones had been shot. In a statement she made to the police on the night of the shooting, however, she did not mention the remark by Drake. Lisa Jones, Tamirra's mother and the widow of the victim, testified that she heard Drake tell Charles, "Show him how we do it in Haneysville.

That's what it sound[ed] like he said." She did not see the shooting, however, because when the argument between Drake and Charles and her husband was escalating, she went inside to call 911. She then heard gunshots, returned to see her husband lying on the floor, mortally wounded, and saw Drake, Charles, and others running away. Takia Goode testified that Drake handed something to Charles, and Charles extended his hand out in front of his body. She heard three shots and saw three flashes, but did not actually see Charles pull out a gun.

We will include additional facts in our discussion of the issues. DISCUSSION I. The appellants contend the trial court abused its discretion when, in response to the State's proposed voir dire questions, and over defense objection, the court asked venire persons the following question: I'm going to assume that many of you, from having done a few of these, watch way too much TV, including the so-called realistic crime shows like CSI and Law and Order. I trust that you understand that these crime shows are fiction and fantasy and are done for dramatic [e]ffect and for this dramatic [e]ffect they purport to rely upon, quote scientific evidence, close quote, to convict guilty persons. While this is certainly acceptable as entertainment you must not allow this entertainment experience to interfere with your duties as a juror.

Therefore if you are currently of the opinion or belief that you cannot convict a defendant without quote, scientific evidence, close quote, regardless of the other evidence in the case and regardless of the instructions that I will give you as to ²⁰⁹ the law, please rise.[ [5] ] According to the appellants, "the effect of this question was essentially to instruct the jury that they could convict . . . on the evidence that they would hear in [this] case." In addition, the appellants maintain that the trial court abused the voir dire process by "catechizing" to the jurors, and by "determin[ing] whether jurors will be able to follow the trial court's instructions." The appellants further argue that the CSI reference "inform[ed] jurors that they need not expect evidence of scientific quality, thereby . . . trivializing the State's burden of proof." The State counters that the appellants' arguments "misconstrue the court's [ voir dire ] question." The Sixth Amendment, incorporated through the Fourteenth Amendment, guarantees criminal defendants the right to a fair trial by an impartial jury. Duncan v. Louisiana, 391 U.S. 145, 147-50 , 88 S.Ct. 1444 , 20 L.Ed.2d 491 (1968). Article 21 of the Maryland Declaration of Rights provides a similar guarantee. Williams v. State, 394 Md. 98, 105-06 , 904 A.2d 534 (2006).

"Critical in ensuring that the guarantee is meaningful is the voir dire of the venire, the purpose of which is to exclude from the venire potential jurors for whom there exists cause for disqualification, so the jury that remains is capable of deciding the matter before it based solely on the facts presented, and uninfluenced by extraneous considerations." Id. at 107 , 904 A.2d 534 ; see also Curtin v. State, 393 Md. 593, 600 , 903 A.2d 922 (2006) (" Voir dire is the primary mechanism through which the constitutional right to a fair and impartial jury, guaranteed by the Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights, is protected."); Hill v. State, 339 Md. 275, 279 , 661 A.2d 1164 (1995). "In Maryland, the sole purpose of voir dire is to ensure a fair and impartial jury by determining the existence of cause for disqualification, and not as in many other states, to include the intelligent exercise of peremptory challenges." Stewart v. State, 399 Md. 146, 158 , 923 A.2d 44 (2007); see also Curtin, supra, 393 Md. at 602-03 , 903 A.2d 922 ; State v. Thomas, 369 Md. 202, 207 , 798 A.2d 566 (2002) ("`Undergirding the voir dire procedure and, hence, informing the trial court's exercise of discretion regarding the conduct of the voir dire, is a single, primary, and overriding principle or purpose: to ascertain the existence of cause for disqualification.'") (quoting Dingle v. State, 361 Md. 1, 10 , 759 A.2d 819 (2000)) (other quotations omitted); id. at 217 , 798 A.2d 566 (Raker, J., concurring) ("Maryland is one of the few states in the country that does not permit voir dire to inform the exercise of peremptory challenges. It has long been the rule in Maryland that voir dire is limited to the detection of bias sufficient to challenge a prospective juror for cause and not to assist in the exercise of peremptory challenges."); Dingle v. State, supra, 361 Md. at 13 , 759 A.2d 819 ("Maryland has adopted, and continues to adhere to, limited voir dire. "); Davis v. State, 333 Md. 27, 39-42 , 633 A.2d 867 (1993); Height v. State, 185 Md.App. 317, 331-32 , 970 A.2d 921 (2009).

"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." Stewart, supra, 399 Md. at 160 , 923 A.2d 44 . See also White v. State, 374 Md. 232, 242 , 821 A.2d 459 (2003) ²¹⁰ ("The standard for evaluating a court's exercise of discretion during the voir dire is whether the questions posed and the procedures employed have created a reasonable assurance that prejudice would be discovered if present."). In particular, the scope and form of questions propounded during voir dire generally are within the trial court's discretion. Stewart, supra, 399 Md. at 159 , 923 A.2d 44 ; White, supra, 374 Md. at 241 , 821 A.2d 459 .

Concomitantly, the trial judge, in the exercise of his or her discretion, "need not make any particular inquiry of the prospective jurors unless that inquiry is directed toward revealing cause for disqualification." Dingle, 361 Md. at 13-14 , 759 A.2d 819 . "[T]he exercise of discretion by trial judges with respect to the particular questions to ask and areas to cover in voir dire is entitled to considerable deference." Stewart, supra, 399 Md. at 160 , 923 A.2d 44 . With these principles in mind, we turn to the appellants' arguments. First, according to the appellants, the trial court's CSI instruction amounted to "instruct[ing] the jury that they could convict. . . on the evidence that they would hear in [this] case." We find no merit in this argument.

As the State points out in its brief, the appellants misconstrue the voir dire question actually asked. It was not a directive to the jurors that whatever evidence was put before them could support a conviction; rather, it was an inquiry made to identify venire persons who, without CSI-type evidence, would not convict any defendant, "regardless of the other evidence in the case and regardless of the instructions that [the court] will give you." Thus, this question simply asked whether potential jurors could be fair and impartial in light of the evidence presented and the instructions given. See Foster v. State, 304 Md. 439, 453-54 , 499 A.2d 1236 (1985) ("[T]his Court has consistently held that if a prospective juror `is unable to apply the law' or `holds a particular belief . . . that would affect his ability or disposition to consider the evidence fairly and impartially,' he `should be excused for cause.'") (quoting King v. State, 287 Md. 530, 535 , 414 A.2d 909 (1980)). The question aimed "to ascertain the existence of cause for disqualification." Dingle, supra, 361 Md. at 10 , 759 A.2d 819 (internal quotations omitted).

See also Stewart, supra, 399 Md. at 160 , 923 A.2d 44 (trial judge acts within discretion when voir dire question was "reasonably sufficient to test the jury for bias, partiality, or prejudice"). Under Maryland law, that is precisely the purpose of voir dire. Id. at 158, 923 A.2d 44 ; Curtin, supra, 393 Md. at 602-03 , 903 A.2d 922 ; Thomas, supra, 369 Md. at 207 , 798 A.2d 566 ; Dingle, supra, 361 Md. at 10 , 759 A.2d 819 . The voir dire question in this case is somewhat analogous to a voir dire question posed in capital cases: whether venire persons are unwilling to convict on the basis of circumstantial evidence.

In this regard, Corens v. State, 185 Md. 561 , 45 A.2d 340 (1946), is instructive. In that case, the defendant was charged with murdering his wife, on evidence that was circumstantial. The State proposed the following question during voir dire, which the trial judge adopted and asked of each prospective juror: "Have you any such conscientious scruple or opinions as would prevent or preclude you from rendering a verdict of guilty in a case where the penalty prescribed by law may be death upon what is commonly called circumstantial evidence?" Id. at 563 , 45 A.2d 340 . The Court of Appeals reasoned that, because "a person who has conscientious scruples against capital punishment," or who "would not be willing to convict on circumstantial evidence," is not impartial, such a ²¹¹ person may be challenged for cause.

Id. at 564 , 45 A.2d 340 . Consequently, the Court held that the trial court did not abuse its discretion in asking the voir dire question. Especially relevant is the following comment by the Corens Court: We are unable to agree with the contention that, merely because the prospective jurors were asked on voir dire examination to state their views on circumstantial evidence and capital punishment, they were thereby induced to believe that the judge was convinced before the trial began that the accused was guilty. Id. at 564-65 , 45 A.2d 340 (emphasis added).

Likewise, we disagree with the appellants' assertion that, by posing the CSI question on voir dire, the trial judge in the case at bar essentially instructed the jury "that they could convict the [appellants] on the evidence they would hear in the case[,]" as if the judge already had decided that the evidence they would be hearing would warrant a conviction. The appellants argue the trial court abused the voir dire process by "indoctrinating potential jurors" in the State's theory of the case, and by attempting to determine whether venire persons were capable of following the court's instructions. As explained previously, the CSI question cannot fairly be construed as indoctrination. Rather, the question was a specific attempt to discover biases of potential jurors.

As to the allegedly instructional purpose of the CSI question, the appellants rely upon Wilson v. State, 148 Md.App. 601 , 814 A.2d 1 (2002), to support their argument. In Wilson , several defendants proposed voir dire questions that the trial judge declined to ask. As relevant here, the questions at issue in Wilson were as follows: 15. The [d]efendant in every criminal case is presumed innocent.

Unless you are satisfied beyond a reasonable doubt of the [d]efendant's guilt solely from the evidence presented in this case, the presumption of innocence alone requires you to find the [d]efendant not guilty. Is there any member of the jury panel who is unable or unwilling to uphold and abide by this rule of law? 22. Each [d]efendant is entitled to have his guilt or innocence determined as to each charge from the evidence which applies to him alone. The guilt or innocence of one defendant cannot control or influence your finding of guilt or innocence as to the other [d]efendants.

Would you be able to decide the guilt or innocence of each [d]efendant on each count based solely on the evidence presented as to the individual [d]efendant and not let your decision be influenced by the evidence as to the other [d]efendants? 148 Md.App. at 656 , 814 A.2d 1 . Characterizing these questions as "more closely resembl[ing] jury instructions . . . than voir dire questions," we held that "[t]he trial judge did not abuse his discretion by declining to propound [the] requested voir dire questions." Id. at 660 , 814 A.2d 1 . The crucial similarity between Wilson and the case at bar is that the standard of review of a trial judge's decision to ask or not to ask a voir dire question of this sort is abuse of discretion; and the judge's discretion in that regard is very broad. "[T]he exercise of discretion by trial judges with respect to the particular questions to ask and areas to cover in voir dire is entitled to considerable deference." Stewart, supra, 399 Md. at 160 , 923 A.2d 44 .

Accord White, supra, 374 Md. at 241 , 821 A.2d 459 ; Dingle, 361 Md. at 13-14 , 759 A.2d 819 . Thus, there is no inconsistency ²¹² between Wilson and this case, even if we were to assume, arguendo, that the CSI question bears some similarity to a jury instruction. The trial judge here could have declined to ask the State's question, as in Wilson , or could have asked the question. Either course of action would have been a proper exercise of his discretion.

Moreover, the voir dire question in the case at bar is less like a jury instruction than were the questions in Wilson , and is more similar to the question permitted in Corens, supra . Thus, Wilson does not support the appellants' position. Finally, the appellants argue that the CSI voir dire question was improper because it tended to minimize the State's ultimate burden of proof by informing jurors that they did not need to expect "evidence of scientific quality." In support, they cite Boatswain v. State, 872 A.2d 959 , 2005 WL 1000565 (table) (Del. Apr.27, 2005), 2005 Del.

LEXIS 168 . We find no merit in this argument. In Boatswain, the Supreme Court of Delaware addressed a contention that the prosecutor in a criminal trial had made an improper comment in closing argument, and that the trial judge erred in overruling the defendant's objection. The prosecutor had commented, in relevant part: The one issue left in this case is: Was it him?

The defense would say, well — and you know they will — there's [sic] no fingerprints of him[.] They didn't print the money. They didn't find his prints on the note. In today's day and age, unfortunately, the police and the State isn't [sic] put to the same test that they wrote 200 years ago in the Constitution [in] which they said the proof must be beyond a reasonable doubt. Unfortunately, the test, of course, of criminal defendants now is, can they meet the TV expectation that they hope folks like you want.

Can they meet CSI? [Objection overruled] [I]f they don't have fingerprints, he can't be guilty. On TV, they would have found fingerprints. But this isn't TV, this is real life. 2005 WL 1000565 at ¹-2 , 2005 Del. LEXIS 168 at ³.

The court held the trial court had erred in overruling the defendant's objection, because the prosecutor's comment "denigrated the reasonable doubt standard and incorrectly stated the law." Id. 2005 WL 1000565 at ² , 2005 Del. LEXIS 168 at ⁶-7. It held that the error was harmless, however. Id. 2005 WL 1000565 at ³ , 2005 Del.

LEXIS 168 at ⁹. Quite apart from whether there is any persuasive value at all in an unreported, out-of-state case, [6] Boatswain is inapposite. It deals with the propriety of a prosecutor's comment in closing argument, whereas here the issue concerns the trial court's discretion to pose a particular question during voir dire. The only similarity we perceive in the two cases is the reference to CSI evidence.

In all other respects, the cases are wholly dissimilar. In particular, here there was no incorrect statement of law or disparagement of the reasonable doubt standard.

II

The appellants next contend the trial court erred when it denied a motion for ²¹³ mistrial they made based upon the court's having criticized defense counsel in front of the jury. The mistrial motion was based upon two exchanges that occurred during the testimony of Sharon Coston. As noted above, the State called Coston as a witness and on direct she testified that the appellants stood facing the victim demanding their money back and that the shooting immediately followed, with Drake telling Charles, ". . . show him how we do it in something ville." On cross-examination, Charles's lawyer attempted to impeach Coston by questioning her so as to show or at least suggest that certain details in her prior written statement to the police were inconsistent with certain details in her trial testimony. After an extended exchange between Charles's counsel and Coston about whether she had meant, in her statement to police, to say that some of the boys on the porch had come up from the street, or that the boys on the porch all had been expelled from the party, the trial judge, in response to an objection, said, "I think we are really beating a dead horse to death." There was no objection to the court's remark.

Also on cross-examination, Coston was questioned about her lack of cooperation in the murder investigation, so as to suggest that she was not an upstanding witness. In a bench conference, the prosecutor argued that, to the extent that defense counsel was able to create the impression that Coston had not come forward to cooperate in the investigation and therefore should not be considered reliable, the State should be able to put before the jury the fact that Coston did not come forward because she was afraid of retribution. On re-direct, when the prosecutor pursued this line of inquiry, defense counsel persistently objected, and the court announced that both defense lawyers had "a continuing objection." The following ensued: [CHARLES'S COUNSEL]: Thank you. [DRAKE'S COUNSEL]: We have a record, too. THE COURT: You have a continuing objection. [CHARLES'S COUNSEL]: Thank you, Judge.

THE COURT: You're welcome. Sometimes objections are not for a record, sometimes they are meant to obstruct. So you have a continuing objection. [DRAKE'S COUNSEL]: Your Honor, that's not true. THE COURT: Sit down. [Now directed to the prosecutor:] Ask a question.

(Emphasis added.) No objection was made. Finally, on re-cross, after numerous objections and bench conferences, the trial judge sustained an objection by the prosecutor and again told defense counsel, "you're beating a dead horse." No objection was made. By then, it was after 5:00 p.m. on the fifth trial day. The trial judge dismissed the jury for the evening.

Defense counsel then moved for a mistrial: [CHARLES'S COUNSEL]: Your Honor, based on some of the comments from the Court I would ask for a motion for mistrial, particularly the last comments the Court in regards to the defense making objection to being friv[o]lous or obstructionist at best, along with the Court's other comments making reference to it's difficult for these witnesses, making reference to Ms. Holeman for being extremely intelligent. I think that the Court's comments are bolstering the State's case. I think it is highly prejudicial, lacks any ²¹⁴ probative value, and I believe it has tainted this case where the defendant cannot get a fair trial based on the Court's comments. THE COURT: All right. [DRAKE'S COUNSEL]: I join.

The trial court denied the motion. The first thing the next morning, the judge sua sponte gave the following curative instruction to the jury: In the beginning of this case, or last night I made a mistake, I made an error, and Judges make mistakes, too. So I want you to sort of pull out your eraser. Now, last night I suggested incorrectly that some of the lawyers in this case had made objections which were not for proper reasons.

I was wrong. I was completely and totally wrong. As I had the opportunity to think about it, I'm satisfied that all of the [lawyers] here and all of the objections they have made were made for a proper person — a proper purpose. I may not have agreed with it and I believe my rulings have been correct, but lawyers have the duty, they have the duty to object when they think it's proper and I'm satisfied that all of the objections in this case have made — been made by the attorneys believing that it was proper in the exercise of their duties to their clients to make the objection, and my comment to the contrary was wrong and should be disregarded by you.

Thank you. Neither defendant objected to the curative instruction. The prosecutor then called a witness. We review a trial court's denial of a motion for mistrial for abuse of discretion.

Cooley v. State, 385 Md. 165, 173 , 867 A.2d 1065 (2005); Wilhelm v.