Haley v. State

Thompson, J., delivered the opinion of the Court. John Henry Haley, the appellant, was convicted in a jury trial, in the Circuit Court for Montgomery County, on various counts of armed robbery, assault and battery, the use of a handgun in the commission of a felony, and unlawfully carrying a handgun. A sentence of twenty years was imposed on the armed robbery conviction together with concurrent lesser sentences on the other convictions. Thereafter, appellant noted this appeal and has raised the following issues for our determination.

I. Whether the trial court erred by conducting a portion of the voir dire examination at a bench conference while the appellant remained at the counsel table.

II

Whether the trial court erred in refusing to ask certain questions during examination of the prospective jury panel on voir dire.

III

Whether the trial court erred by completing the trial when the appellant failed to appear on the second day of trial. I. The Exclusion of Appellant from Bench Conferences at Which a Portion of the Voir Dire was Conducted During the course of the examination of the prospective jurors on voir dire, several bench conferences took place at which the court examined individual veniremen in the presence of counsel while the defendant apparently remained at the counsel table. Eleven prospective jurors were so examined, with three being excused for cause by the court. Six were later challenged by the State and two by the defendant during the peremptory challenge phase of the jury selection.

Accordingly, none of the persons examined at the ³⁵¹ various bench conferences actually served on the jury which convicted appellant. Appellant cites Maryland Rule 724 a 1 and Bunch v. State, 281 Md. 680 , 381 A. 2d 1142 (1978) to support his argument that the absence of the appellant from those bench conferences violated his right to be present at every stage of his trial. To sustain this contention it must be shown (a) that the bench conferences were stages of the trial at which appellant had a right to be present, (b) that the appellant was not, in fact, present, and (c) that the appellant did not waive his right to be present. A. The Bench Conferences as a Stage of the Trial Maryland Rule 724 a states: “The defendant shall be present at every stage of the trial, including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as provided by these Rules.” The phrase “impaneling the jury” as used in Rule 724, and formerly in Rule 775, must be taken to include more than simply the swearing of the twelve individuals who are to try the case.

It is, of course, fundamental to the right of trial by a jury that the members of that body be impartial and unbiased. The purpose of examination on voir dire is to help meet this basic tenet of a jury trial by separating from the panel those prospective jurors who cannot render a fair and impartial verdict based solely upon the law and the evidence. Accordingly, the voir dire examination is perhaps the most important step in the selection of a jury. Unless the phrase “impaneling the jury,” as used in Rule 724, includes the voir dire examination the right of the defendant to be present, which that Rule guarantees, is empty and useless.

It is only during such steps of jury selection as the voir dire and peremptory challenges that the defendant’s presence has any substantial meaning, for only then is he able to participate in the selection of the men and women who will try his case. ³⁵² Several cases have recognized either explicitly or implicitly that the process of culling out possibly biased prospective jurors is part and parcel of the process of impaneling a jury. Most recently, in Bunch v. State, supra, the Court of Appeals held that a bench conference concerned with the possible prejudice of a juror and conducted after the trial had commenced, but in the absence of the defendant, violated the defendant’s right to be present at every stage of his trial. While the case is not factually identical to the one here under consideration, the Court provided guidance for the resolution of the present question: “Long ago the Supreme Court held that proceedings during the impaneling of the jury, and involving challenges to prospective jurors on the ground of bias, constituted a stage of the trial at which the defendant had a right to be personally present, Hopt v. Utah, 110 U. S. 574 , 4 S. Ct. 202 , 28 L. Ed. 262 (1884). Mr. Justice Harlan for the Court there explained, in language fully applicable to any proceeding involving a question of who should be on the jury ( 110 U. S. at 578 ): ‘The prisoner is entitled to an impartial jury composed of persons not disqualified..., and his life or liberty may depend upon the aid which, by his personal presence, he may give to counsel and to the court ... in the selection of jurors.

The necessities of the defense may not be met by the presence of his counsel only. For every purpose, therefore, involved in the requirement that the defendant shall be personally present at the trial, ... the trial commences at least from the time when the work of impaneling the jury begins.’ “The holding in Hopt was reiterated by the Court a few years later in Lewis v. United States, 146 U. S. 370 , 13 S. Ct. 136 , 36 L. Ed. 1011 (1892). ³⁵³ “The provision in Maryland Rule 724, and its predecessor Rule 775, specifically including the impaneling of the jury as a stage of the trial at which the defendant’s presence is required, embodies the holding of the Supreme Court in Hopt v. Utah, supra, and Lewis v. United States, supra. The reason for the provision, as set forth by the Supreme Court in Hopt , is that the defendant, being entitled to an impartial jury, may give aid to his counsel and the court in the selection of who should be on the jury.” 281 Md. at 686-87 . (Footnote omitted).

See also, Impaneling or Selection of Jury in Accused’s Absence, 26 A.L.R.2d 762 (1952). There can be no doubt, therefore, that examination of prospective jurors on their voir dire is a stage of the trial at which the defendant has a right to be present. The bench conferences here in question were clearly a significant part of the voir dire examination. They were conducted for the purpose of further, semi-confidential, questioning of prospective jurors on the issue of whether those so questioned would be able to return a fair and impartial verdict.

Consequently, those conferences did constitute a stage of the trial at which the appellant was entitled to be present by virtue of Rule 724. We recognize that a criminal defendant does not have the right to be present at every bench or chambers conference that may be conducted during the course of the trial. There are occasions when such conferences constitute not a stage of the trial but rather a suspension of the trial while the court takes up collateral matters or questions of law which must be resolved before the case can continue. See, e.g., Brown v. State, 272 Md. 450 , 325 A. 2d 557 (1974) (chambers and bench conferences concerning the admissibility of evidence and the violation of a sequestration order held not material stages of the trial); Veney v. Warden, 259 Md. 437 , 271 A. 2d 133 (1970) (discussion in chambers of proposed procedures concerning sequestration of the jury); Martin v. State, 228 Md. 311 , 179 A. 2d 865 (1962) (chambers hearing on motion for judgment ³⁵⁴ of acquittal); Brown v. State, 225 Md. 349 , 170 A. 2d 300 (1961), cert. denied, 372 U. S. 960 (1963) (proposed jury instructions and arguments relating thereto considered by judge and counsel in chambers); Sewell v. State, 34 Md. App. 691 , 368 A. 2d 1111 (1977) (conference concerning disclosure of informant); State v. Tumminello, 16 Md. App. 421 , 298 A. 2d 202 (1972) (conferences on the admissibility of evidence).

A bench conference at which the court actually conducts a portion of the voir dire, however, does not fall within the category of a collateral matter. It is an integral and substantial part of the process of impaneling the jury and, therefore, of the trial itself. A defendant, facing the possibility of a criminal conviction, ought to be able to participate in the selection of those who will determine his guilt or innocence. Rule 724 guarantees him the right to do so.

The State argues only that under Hunt v. State, 12 Md. App. 286 , 278 A. 2d 637 , cert. denied, 263 Md. 715 (1971), voir dire examination is not a part of the trial. To the extent that Hunt v. State can be said to support such a ruling it was overruled by Bunch v. State, supra. See also, Redman v. State, 26 Md. App. 241 , 337 A. 2d 441 (1975) and State v. McKenzie, 17 Md. App. 563 , 303 A. 2d 406 (1973). . B. The Presence of the Appellant Although the appellant was present in the courtroom when the subject bench conferences took place, the record does not show whether or not he was present at the bench during those discussions.

We cannot and do not presume he was present from a silent record, but we can and do require, as a matter of state procedure, that the complete facts be brought out in post conviction procedures. We followed this procedure in Green v. State, 23 Md. App. 680, 683 , 329 A. 2d 731 (1974), cert. denied, 274 Md. 728 (1975). Compare Bunch v. State, supra, and Redman v. State, supra, where the records on direct appeal were clear that the accused was not present at critical times. See also, State v. Zimmerman, 261 Md. 11 , 273 A. 2d 156 (1971). ³⁵⁵ C. Waiver The right of a criminal defendant to be present at every critical stage of his trial is personal to the defendant and cannot be waived by counsel.

Bunch v. State, supra; Brown v. State, supra; Midgett v. State, 216 Md. 26 , 139 A. 2d 209 (1958). The record does not indicate whether or not the appellant waived his rights under Rule 724. This, too, can be determined in post conviction procedures as set out above, if it is first determined that appellant was not present at the bench conferences.

II

The Omitted Voir Dire Questions Appellant submitted the following questions, among others, to the court for the purpose of having them asked during examination of the prospective jurors on voir dire. “10. Is there any member of the prospective jury panel who has ever been the victim of a crime? “11. Does any member of the prospective jury panel have a relative or a close personal friend who has been the victim of a crime? “12. Does any member of the prospective jury panel know anyone personally who has been the victim of a robbery?” The trial judge declined to ask the questions as thus submitted but, instead, made the following inquiry: “Is there any member of the prospective panel, or any member of your immediate family, who has ever been a victim of a crime?

That’s the first part, and as a result of that experience, either of yourself or a member of your family, it would be difficult or impossible for you to render a fair and impartial verdict in this case? Now, ladies and gentlemen, stand or raise your hand only if your answer is yes to both parts, that you or a member of your family has been a victim of a crime and by reason of such prior experience you believe it may be difficult for ³⁵⁶ you to render a fair and impartial verdict in this case----” “Does any member of the prospective jury panel have such opinion or belief concerning the crime of robbery, or concerning the use of handguns in criminal offenses of any kind, as would make it difficult or impossible for him to render a fair and impartial verdict in a case such as this and involving these allegations?” Defense counsel took exception to the modification and requested that the original questions numbered 10, 11, and 12, as quoted above, be put to the prospective jurors. This request was denied. Appellant contends that the effect of the court’s refusal to ask the above questions “was to deny the defense information concerning the experiences of jurors which might affect their attitudes towards the pending case,” thereby denying him the opportunity to make full use of his peremptory challenges.

The following passage from Couser v. State, 282 Md. 125, 138-39 , 383 A. 2d 389 (1978) disposes of this question: “The constitutional right to an impartial jury is basically protected by questioning on voir dire examination aimed at exposing the existence of cause for disqualification and the law of this State accordingly so limits the scope of the information which may be obtained as a matter of right; it does not encompass asking questions designed to elicit information in aid of deciding on peremptory challenges. Mason v. State, 242 Md. 707 , 218 A. 2d 682 (1966); McGee v. State, 219 Md. 53 , 146 A. 2d 194 (1959); Curtis v. State, 4 Md. App. 499 , 243 A. 2d 656 (1968).” III.