Frazier v. State

WRIGHT, J. Appellant, Robert Frazier, was indicted in the Circuit Court for Baltimore City, and charged with distribution of cocaine, possession with intent to distribute cocaine, and possession of cocaine. Following a jury trial, Frazier was convicted on all counts. He was subsequently sentenced to fifteen years for distribution of cocaine. Frazier timely appealed and presents the following questions for our review: 1.

Did the trial court’s voir dire method deprive Mr. Frazier of his constitutional right to a fair and impartial jury? 2. Did the trial court abuse its discretion when it denied Mr. Frazier’s motion for a mistrial? 3. Did the trial court err when it overruled defense counsel’s objection to the prosecutor’s closing argument? For the following reasons, we shall affirm.

BACKGROUND Jury Selection Prior to beginning the voir dire procedure, the trial judge informed the jury as follows: I’m going to ask you a series of questions. At the end of each group of questions, those of you who are answering will come to the bench and give your answers in the relative ²⁷⁰ privacy that we can afford you. Counsel will use these questions and answers in order to decide which jurors to challenge and which jurors to keep. And that’s how we get the panel down from 58 to 12 with an alternate.

If you’re not sure whether information you possess is an answer to a question, please err on the side of answering. It’s better for us to know too much rather than too little. We don’t want to have a situation where we try the case, send the jury out to deliberate, and somebody goes to the jury room and says, “I can’t do it,” “I can’t return a unanimous verdict,” “I’ve got this problem.” The time to tell us about the problem is now, not later. The court then began the voir dire procedure by asking a group of questions concerning whether the jurors knew Frazier, the attorneys, the judge or his staff, or any -witnesses in the case.

The court also asked if the venire knew anything about the case, whether they were racially biased against Frazier, or if any member of the venire belonged to a religion that prevented them from judging another person. At the conclusion of this first group of questions, the court then stated, “if anybody is answering any of those questions, please form a line.” The court then heard from eighteen (18) prospective jurors at the bench. Thereafter, the court asked the second series of voir dire questions, indicating that “the next question has three parts.” The court asked if any prospective juror had ever served as a juror or grand juror, whether they could never vote not guilty or guilty, or whether any juror, their family or friends, had any experience whatsoever with street drugs, including treatment or simply having witnessed drug transactions in their neighborhood. The court then directed those answering to approach the bench, and thirty-one (31) prospective jurors responded.

Of those thirty-one prospective jurors, one juror asked the court to repeat the question. The court then asked a third group of questions, stating “question number three many of you have answered already. Please don’t answer it again. Only come if there is new ²⁷¹ information.” The court then asked if any member of the panel would automatically believe or disbelieve testimony of a law enforcement officer, a State’s witness, or a defense witness.

The court also asked if anyone, or their friends or family, were employed or closely associated with law enforcement. Those answering affirmatively were directed to form a line, and fourteen prospective jurors responded. Finally, the court asked a fourth group of questions, informing the venire that “the last question has several components.” The jury was asked if they, their family, or their friends had “any kind of contact with the criminal justice system or the court system,” including being a victim or a witness, or having been arrested or incarcerated. The court also stated that if any prospective juror did not understand the questions, did not speak English, were not over eighteen years of age, or were not a United States citizen, then those prospective jurors should “join the line.” The court informed the venire about the burden of proof in a criminal case, and asked if any person would hold the State to a different burden or would “hold the Defendant to any burden at all,” or whether they would be unable to follow the court’s instructions.

Finally, the court stated that if any prospective juror had anything else they wanted to inform the court, including any scheduling issues, “please bring it to our attention.” After asking the prosecutor and defense counsel if he missed “any important questions,” and after both attorneys responded in the negative, the court then heard individually from eighteen members of the venire. After this, the court entertained challenges for cause from the attorneys and excused thirty-one of the prospective jurors. The attorneys then proceeded to select a jury and both parties used all of their peremptory strikes. Trial Trial commenced and the State’s first witness was Lieutenant Ian Dombronsky, employed with the Baltimore City Police Department for approximately twelve years.

Lieutenant Dombronsky testified that he had been involved in various ²⁷² divisions within the department over the years, including working in an undercover capacity to buy drugs on the streets of Baltimore City. At the time of the events at issue in this case, Lieutenant Dombronsky was assigned as a supervisor in the Violent Crime Impact Division. He also testified he had over 150 hours of specialized training in the enforcement of narcotics laws. On December 18, 2008, at approximately 9:10 p.m., Lieutenant Dombronsky was in plain clothes, driving an unmarked police vehicle, in the area of Presbury Street and Moreland Avenue, because that area had the “highest volume of CDS calls for service” at that time.

As he was driving around the area, Lieutenant Dombronsky saw Frazier and Frazier yelled “Yo” several times towards the officer. Believing that Frazier was flagging him down in order to sell drugs, Dombronsky stopped his vehicle, rolled down the passenger side window, and asked Frazier, “Who’s got some ready out?” “Ready,” Dombronsky explained, was a street term for crack cocaine. Frazier asked: “How many?” After Dombronksy replied that he wanted three, Frazier told Dombronksy to park in the 2400 block of Presbury Street. At this point, Lieutenant Dombronsky did not have an arrest team set up, so he decided to make the purchase using his own personal money.

While Frazier was walking to a parked minivan, on the other side of Moreland Avenue, Dom-bronsky pulled out a twenty dollar bill and two five dollar bills and began making small tears in those bills for purposes of later identification. While he was making those tears, Frazier returned and asked, ‘Why are you tearing the money?” and “You ain’t no police, are you?” Lieutenant Dombronsky handed over the money and, as Frazier handed over three bags of suspected crack cocaine in return, Dombronsky tried to change the subject by stating, “This isn’t no bum, is it?” meaning that he was asking if the drugs were fake. Frazier replied no, and then quickly left the scene. Lieutenant Dombronsky then made the tactical decision not to pursue Frazier at that time. ²⁷³ Lieutenant Dombronsky drove away and parked his vehicle away from the area where the transaction occurred.

He then got out of his vehicle on foot and walked to a vacant house that he sometimes used for purposes of surveillance. A short time later, Frazier returned to the area, having moved the aforementioned minivan closer to Lieutenant Dombronsky’s vantage point. 1 At that time, Dombronsky observed Frazier engage in another suspected drug transaction with an occupant of a silver sports utility vehicle. Dombronsky called for an arrest team and provided a radio description of the minivan Frazier was operating. That team was unable to find Frazier or the minivan, and Lieutenant Dombronsky returned to the police station in order to obtain a marked police vehicle.

After Dombronsky returned to the area in the marked unit, he found Frazier on Thomas Avenue near the minivan. Lieutenant Dombronsky recognized Frazier, as well as the jacket he was wearing, from the earlier drug transaction that evening. Dombronsky got out of his vehicle and spoke to Frazier, and Frazier was placed under arrest after other police officers from the Western District arrived on the scene. 2 Once the arrest team arrived, Frazier was placed in handcuffs and read his rights pursuant to Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966). Lieutenant Dombronsky testified that he believed that Frazier understood his rights by nodding his head, and Frazier began stating “things along the lines of ‘I’ll get you guys a gun if you let me go,’ or ‘I’ll tell you about drug dealers,’ and things of that ²⁷⁴ nature.” Lieutenant Dombronsky maintained that he had not begun to question Frazier when those statements were made.

Instead, Lieutenant Dombronsky searched Frazier’s person and did not recover the money that he gave Frazier earlier during their transaction. The twenty dollar bill that Dom-bronsky tore was recovered from the center console of the minivan. Dombronsky also verified that this was the same twenty dollar bill because it was in sequential order by serial number with a number of other bills he obtained earlier from an ATM machine. Police also recovered $254 in currency from the minivan.

Frazier was transported to the Western District where he was interviewed in the presence of Lieutenant Dombronsky, Detective Ethan Globther, and Detective Ryan Jones. 3 After Frazier was advised of and waived his rights, he agreed to speak to the police. Frazier stated that the reason he was selling cocaine was to “make some money for his kids.” Frazier had “paid $150 for an eight ball (eighth of an ounce of cocaine) and cut it up at a friend’s house.” During the interview, Frazier told Dombronsky he knew Dombronsky was a police officer but that he “needs the money.” Frazier also stated to Dombronsky that he began the evening with 27 pills, or bags of crack cocaine, and that he only had two left in his possession when Dombronsky approached him moments before the arrest. Frazier informed police that he swallowed those pills when he was about to be arrested. Dombronsky testified at trial that, considering that the drugs were $10 a piece, Frazier’s statement “makes sense because of the approximate amount of money that we recovered from the minivan.” Lieutenant Dombronsky testified that he received “[t]hree small ziploc bags containing what I believed to be crack cocaine,” from Frazier in exchange for thirty dollars.

Dom- ²⁷⁵ bronsky gave the drugs to Detective Jacqueline Hubbard in order to have them submitted to Evidence Control. Detective Hubbard testified that she did submit the drugs seized in this case, and that “they tested positive for cocaine base schedule two.” Frazier testified on his own behalf at trial. He denied that he was on Presbury Street on December 18, 2008, and testified that, while he was standing in front of a friend’s house on Thomas Avenue, Lieutenant Dombronsky approached him and ordered him to place his hands up. Frazier was placed in handcuffs, had his keys removed from his pocket, and was ordered to sit down.

Frazier testified that he was not informed why he was being detained. Other officers arrived and Frazier was transported to the Western District. While at the police station, Frazier testified that he was questioned about drugs in the neighborhood, and he told police that he knew some people who sold drugs in the area. Frazier further testified that he signed the Miranda waiver of rights after Lieutenant Dombronsky told him to do so.

Frazier denied that he wrote a statement but did admit that he signed some statements because the officers told him “[s]ign them or you’re going to jail.” Frazier maintained that he did not sell drugs to Lieutenant Dombronsky. He also did not know about any money in the center console of his vehicle. We will include additional details in the following discussion. DISCUSSION I. Frazier first contends that the trial court’s voir dire procedure violated the Court of Appeals’s decision in Wright v. State, 411 Md. 503 , 983 A.2d 519 (2009).

Further, acknowledging that defense counsel did not object to the voir dire, Frazier asks this Court to recognize plain error. The State responds by asking us to apply James v. State, 191 Md.App. 233 , 991 A.2d 122 , cert. denied, 415 Md. 338 , 1 A.3d 468 (2010), where we declined to exercise plain error review for an ²⁷⁶ unpreserved claim that was similar to the one raised in Wright . We conclude that, as was the case in James , plain error review is not warranted under the circumstances of this case. The right to an impartial jury is guaranteed by the Sixth Amendment of the United States Constitution, as made applicable to the states through the Fourteenth Amendment, and Article 21 of the Maryland Declaration of Rights.

See Wright, 411 Md. at 507 , 983 A.2d 519 . And, “the ‘overarching purpose of voir dire in a criminal case is to ensure a fair and impartial jury.’ ” Id. at 508 , 983 A.2d 519 (quoting Dingle v. State, 361 Md. 1, 9 , 759 A.2d 819 (2000)); see also Drake and Charles v. State, 414 Md. 726, 733 , 997 A.2d 154 (2010) (“The primary purpose of voir dire is to ensure a fair and impartial jury”). In fact, “the only purpose of voir dire in Maryland is to illuminate to the trial court any cause for juror disqualification.” Wright, 411 Md. at 508 , 983 A.2d 519 (citation omitted). “Without an adequate voir dire the trial judge’s responsibility to remove prospective jurors who will not be able impartially to follow the court’s instructions and evaluate the evidence cannot be fulfilled.” Stewart v. State, 399 Md. 146, 158 , 923 A.2d 44 (2007) (citation omitted). The trial court has “ ‘broad discretion in the conduct of voir dire.... ’ ” Wright, 411 Md. at 508 , 983 A.2d 519 (quoting Dingle, 361 Md. at 13 , 759 A.2d 819 ); see also Moore v. State, 412 Md. 635, 644 , 989 A.2d 1150 (2010) (“In the absence of a statute or rule prescribing the questions to be asked of the venirepersons during the examination, the subject is left largely to the sound discretion of the court in each particular case”) (citations omitted). “That discretion extends to both the form and the substance of questions posed to the venire.” Wright, 411 Md. at 508 , 983 A.2d 519 (citations omitted); see also Md. Rule 4-312 (prescribing the manner of conducting voir dire).

In Wright , the Court of Appeals “granted certiorari to consider whether the trial court properly exercised its discretion,” Wright, 411 Md. at 507 , 983 A.2d 519 , by asking the venirepersons, “as a group, a roster of seventeen questions.” ²⁷⁷ Id. at 506 , 983 A.2d 519 . After the collective questioning, each venireperson was called to the bench and asked “if he or she had any information in response to the voir dire questions” and “if he or she could be fair and impartial.” Id. Defense counsel objected, arguing that lumping all seventeen voir dire questions together frustrated the ability of the jurors to remember all of the questions. Id. at 507 , 983 A.2d 519 .

The Court of Appeals agreed, explaining: “The presentation of a lengthy roster of questions to the venire, without providing the opportunity to answer each question as it was posed, required each venireperson to comprehend and retain far too much information to guarantee that the questions were answered properly.” Id. at 509 , 983 A.2d 519 . The Court noted that voir dire was “five and a half minutes of continuous questioning, without pause,” which “resulted in substantial delay between presentation of the questions and the answers.” Id. at 511-12 , 983 A.2d 519 . Accordingly, the Court held that “the selected voir dire method may have obscured relevant information from the trial court’s view by failing to ensure that the jurors on the venire made reasonably full disclosures. The trial court was therefore working with an incomplete understanding of the jury pool.” Id. at 513 , 983 A.2d 519 .

The Wright Court, however, qualified its holding by stating: We are not suggesting that asking questions to a venire panel en masse is an inherently flawed procedure. In this case, it is the multiplicity of the questions that is problematic, not the means by which the questions are broadcast. The key to an effective voir dire is allowing venirepersons the meaningful opportunity to digest the individual questions posed to them and to respond fully to each one while the question is at the forefront of their minds. Id. at 514 , 983 A.2d 519 . 4 In Wright , the issue was preserved by defense counsel’s objection at the conclusion of the voir dire.

Wright, 411 ²⁷⁸ Md. at 507, 983 A.2d 519 . Recognizing that a similar objection was not lodged in this case, Frazier asks this Court to consider the issue as plain error. In James, supra, this Court addressed such an issue. As is well established, our discretion to recognize plain error is plenary.

See McMillan v. State, 181 Md.App. 298, 359 , 956 A.2d 716 (2008) (“[W]hen a defendant fails to object, an appellate court possesses plenary discretion to notice plain error material to the rights of a defendant, even if the matter was not raised in the trial court”) (citation omitted), cert. granted, 406 Md. 744 , 962 A.2d 370 (2008). Further, an appellate court “will review the unpreserved claim only where the unobjected to error can be characterized as compelling, extraordinary, exceptional, or fundamental to assure the defendant a fair trial by applying the plain error standard.” Abeokuto v. State, 391 Md. 289, 327 , 893 A.2d 1018 (2006) (citations omitted); accord James, 191 Md.App. at 246-47 , 991 A.2d 122 . In James , we declined to apply plain error to a voir dire procedure that was error under Wright , stating: We decline to exercise our discretion in this case to notice plain error in the trial court’s voir dire. Although an appellate court may address an unpreserved issue to “communicate a desired message to the bench and bar that might otherwise go unsent,” McMillan, 181 Md.App. at 360 [ 956 A.2d 716 ], the Court of Appeals has already spoken clearly in Wright , obviating the need for further appellate exploration of this issue.

Furthermore, the “error” of which appellant complains was not “plain” at the time of trial in this case. Cf. [Height v. State, 185 Md.App. 317, 332-33 , 970 A.2d 921 (“it has been held consistently that there is nothing ²⁷⁹ improper about a trial judge’s questioning prospective jurors as a group.”), rev’d, 411 Md. 662 , 984 A.2d 871 (2009) ]. An error would not be “plain” unless it is wrong under current law. See United States v. Olano, 507 U.S. 725, 734 [ 113 S.Ct. 1770 , 123 L.Ed.2d 508 ] (1993).

At the time of the trial in the case before us, Maryland’s appellate courts had yet to address whether the manner in which the voir dire was conducted was error. No extraordinary circumstances are present in the case before us to invoke our discretion to address an unpreserved claim of error that has since been addressed by the Court of Appeals. James, 191 Md.App. at 247 , 991 A.2d 122 . Frazier contends that James is distinguishable because, in that case, the court used the “very same method used in Wright,” and therefore “this Court’s refusal to consider the issue made sense.” Frazier then states: “In the instant case, however, the trial court employed a different technique.

It employed a technique, moreover, that is likely to become more popular in the wake of Wright.” Here, Frazier’s trial began on June 5, 2009, with jury selection. Wright subsequently was decided on November 16, 2009. Similar to our observations in James , any error in the voir dire procedure was not plain under then current law. James, 191 Md.App. at 247 , 991 A.2d 122 .

As we concluded in James , “[n]o extraordinary circumstances are present in the case before us to invoke our discretion to address an unpre-served claim of error that has since been addressed by the Court of Appeals.” James, 191 Md.App. at 247 , 991 A.2d 122 . Thus, we decline to find plain error in the voir dire procedure used in this case.

II

Frazier next asserts that the court erred in not declaring a mistrial when Frazier and one of the courtroom sheriffs “exchanged words in front of the jury.” The State responds that a mistrial was not warranted and disputes Frazier’s contention that he was prejudiced by the exchange. ²⁸⁰ We conclude that the court did not abuse its discretion in denying the motion for mistrial. 5 During the course of Lieutenant Dombronsky’s testimony explaining the area of the transaction, and after the jury was excused for a short recess, defense counsel moved for a mistrial. Defense counsel provided the following basis for the motion: Because the second time that we went up to the easel, Mr. Frazier didn’t come up right away, but—he did come up, but he went back. Then he came up and the Sheriff was directing him where to go and, at the end here, she was right behind him and he was asked a question what she was doing. And she was talking to him and I think in a manner that shows that he’s locked up.

So the impression from the interaction—I’m afraid the impression that the jury has is that he’s locked up and, if he’s locked up, he must be guilty of something. It hurts his presumption of innocence, Your Honor, and prejudices him. The trial court denied the motion for mistrial and ordered the