Hayes & Winston v. State

Hayes v. State, No. 500, September Term, 2019 & Winston v. State, No. 556, September Term, 2019 (consolidated). Opinion by Nazarian, J. CRIMINAL PROCEDURE – VOIR DIRE Under Kazadi v. State, 467 Md. 1 (2020), a trial court must, on request, ask during voir dire whether any prospective jurors are unwilling or unable to comply with the jury instructions on the long-standing fundamental principles of the presumption of innocence, the State’s burden of proof, and the defendant’s right not to testify. CRIMINAL PROCEDURE – VOIR DIRE – PRESERVATION A criminal defendant must preserve for appellate review their request for voir dire questions relating to prospective jurors’ willingness or ability to comply with the jury instructions on the long-standing fundamental principles of the presumption of innocence, the State’s burden of proof, and the defendant’s right not to testify. Circuit Court for Baltimore City Case Nos. 117354034, 117354033 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND Nos. 500 & 556 September Term, 2019 _________________________ CONSOLIDATED CASES ON MOTION FOR RECONSIDERATION ______________________________________ No. 500 TONYA HAYES v. STATE OF MARYLAND ______________________________________ No. 556 MARQUESE WINSTON v. STATE OF MARYLAND ______________________________________ Nazarian, Beachley, Battaglia, Lynne A.

(Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Nazarian, J. Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document ______________________________________ is authentic. Suzanne Johnson 2020-08-26 08:50-04:00 Filed: August 25, 2020 Suzanne C. Johnson, Clerk A popular bartender, Alex Wroblewski, was shot and killed at a Royal Farms store in Locust Point, where he had stopped on his way home after a shift. After a joint trial in the Circuit Court for Baltimore City, a jury found Tonya Hayes guilty of transporting a handgun in a vehicle and conspiracy to transport a handgun in a vehicle and Marquese Winston guilty of second-degree murder, use of a handgun in the commission of a crime of violence, transporting a handgun in a vehicle, conspiracy to transport a handgun in a vehicle, and carrying a handgun on his person. Ms. Hayes and Mr. Winston raise numerous challenges to their convictions.

We reverse the convictions and remand both cases for further proceedings consistent with this opinion. I. BACKGROUND We recount the evidence presented at trial, viewed in the light most favorable to the State, the prevailing party. Surveillance cameras captured the incident, and the jury heard eyewitness testimony alongside the footage. On November 14, 2017, Lawrence Greene worked the graveyard shift at the Royal Farms.

That night, Mr. Wroblewski, who was a regular, came in at around 1:00 a.m., whereas he “normally [came] in between 2:30 and 3:00 in the morning.” According to Mr. Greene, Mr. Wroblewski “was toasted when he came in.” He remained in the store for about fifteen minutes and ordered food, but as he was leaving, “[h]e was stumbling all over the place.” At that point, Mr. Greene saw “a young boy and then a older woman, the woman, heavyset, light skinned” come into Royal Farms. When the two saw Mr. Wroblewski, “the young man got really happy” and “was jumping up and down, skipping.” When Mr. Wroblewski left the store, the two followed him. Video surveillance at Royal Farms confirmed everything to this point. Mr. Wroblewski’s condition and the behavior of the young man and older woman led Mr. Greene to go check on Mr. Wroblewski.

As he approached, he heard a “bang” and went “all the way up by [Mr. Wroblewski],” saw that he was “laying on his back,” and “checked his pulse and [saw] that he was still living, he was still breathing and everything.” Mr. Greene observed that Mr. Wroblewski still had “his food, his bag, his cell phone and [] his wallet . . . beside him.” He went back in the store and told another employee to call 911. Kiara Giddons was the cashier on duty that night. She described Mr. Wroblewski as “wasted” when he arrived. She testified that after he paid for his food, he went towards the window where there was a bar stool, and he sat there for a minute.

Ms. Giddons saw “three people—two people getting out the car, [] a lady and a man getting out the car. And the other guy [] just sat in the car. They parked [near] the gas station.” Ms. Giddons saw the woman and the man come into the store, and when Mr. Wroblewski left, the pair immediately left as well. Ms. Giddons testified that she walked outside and saw Mr. Wroblewski walking up the street, then she “heard one gunshot.” She and Mr. Greene ran to where Mr. Wroblewski was lying, and Ms. Giddons then ran back in the store to call 911.

Lasheka Moore was the manager on duty. She testified that Mr. Wroblewski “was a regular” at the Royal Farms, but that night, “he spent a little bit more time than usual in the deli area” and “[a]ctually laid his head on top of the deli.” Ms. Moore “walked over to [Mr. Wroblewski] and was, like, hey, why don’t you go ahead and sit down, eat your food, 2 wait for your friends to come[,]” and he replied “that he was okay.” She testified that Mr. Wroblewski was in the store for about “10, 15 minutes” and when he left, “he was staggering on his way out the door.” She observed that the Black male and the Black female to whom Mr. Greene and Ms. Giddons referred in their testimony seemed “a little off” because “they came and pulled up to the gas pump, but didn’t purchase anything.” Ms. Moore identified Mr. Winston as the Black man and Ms. Hayes as the Black woman. Ms. Moore testified further that Mr. Wroblewski left the store and walked “towards the Bank of America ATM machine.” Mr. Winston then walked out ahead of Ms. Hayes, but when Ms. Hayes “was exiting the store, she looked in the direction of [Mr. Wroblewski], then looked back at the car.” Ms. Moore saw Mr. Winston go to the back seat of the car, where “another male pops up out the car.” Mr. Winston walked off a little bit, “and then the male that’s in the backseat gets out the car and throws his hood over his head.” They both “went walking across the parking lot towards the direction that [Mr. Wroblewski] was going in.” Ms. Hayes “jumped in the driver’s side, pulled off slow, like as if she was behind them.” Ms. Moore testified that at that point, she “grabbed a broom and [] went outside to sweep the sidewalk, [] made it to about the Bank of America ATM machine, [when she] heard a gunshot.” She later identified all individuals involved through a photo array. Dr. Patricia Aronica was the medical examiner who performed Mr. Wroblewski’s autopsy.

She testified that Mr. Wroblewski had “an entrance gunshot wound to the abdomen and there were also some additional injuries which were multiple abrasions which are like scrapes and scratches where the top layer of the skin comes off and then some 3 bruising were also noted.” She assigned the cause of death as the gunshot wound and the manner of death as homicide. Dr. Aronica described how the gunshot wound killed him: [THE STATE]: And what type of wound would you have considered this as far as—would it have been considered a rapidly fatal wound or not so rapid, how would you describe this wound? [DR. ARONICA]: Well, this is a fatal wound but because it hit—the bullet hit all these veins, it’s a slower bleeding wound then say if it hit arteries. It’s going to bleed slower, it’s also going to cause intestinal contents to come out into the abdomen so it has great potential for infection, if they were able to stop all of the bleeding, but there was massive amount of blood loss but it would be slower and very difficult because of all the injuries that it did create to the veins.

She opined that there was “no evidence of close range firing” and that “[t]he level of alcohol had no effect on [Mr. Wroblewski’s] death.” Tivontre Gatling-Mouzon,1 who pled guilty to conspiracy to commit armed robbery for his involvement in the killing of Mr. Wroblewski, testified on behalf of the State. Mr. Mouzon is Ms. Hayes’s son. He testified that Ms. Hayes picked him and Mr. Winston up in Richmond, Virginia to drive to Baltimore to pick up his younger sister, Tiana Witherspoon, who was living there with her father. They stopped that night at Royal Farms to get gas after picking up Ms. Witherspoon.

Mr. Mouzon testified that Mr. Winston and Ms. Hayes went into the store while he sat in the car with his sister. While they waited, Mr. Winston came back to the car and “reached down by [his] leg.” Mr. Winston asked Mr. Mouzon “to come with him around 1 Although he has a hyphenated last name, Mr. Mouzon testified that he preferred to be called “Mr. Mouzon.” 4 the corner . . . .” Mr. Mouzon followed Mr. Winston and saw him “conversating with the victim, arguing . . . .” He described this encounter as “a confrontation.” Then Mr. Winston approached Mr. Wroblewski, and Mr. Mouzon “s[aw] the gun[]” in Mr. Winston’s hand. After more confrontation, he began to head back to the car, but before he got in he “heard a shot.” By then, Mr. Winston “was already coming to the passenger side to get in.” They all left the area and went back to Richmond. Detective Jonathan Riker was the homicide detective assigned to the case.

He testified that he put the Royal Farms surveillance video on social media to try to locate the individuals responsible for killing Mr. Wroblewski. Through social media, Detective Riker was able to identify the woman as Ms. Hayes. He then reached out to Ms. Witherspoon’s father, Steven Witherspoon. Mr. Witherspoon identified Mr. Winston as the male in the video and he also was able to identify Mr. Mouzon.

Detective Riker located Mr. Mouzon in Richmond. The Detective put Ms. Hayes’s vehicle information in the National Crime Information Center database and was able to locate her and Mr. Winston in Atlanta, Georgia; Officer Justin Hartsfield, a police officer in Atlanta, pulled Ms. Hayes over in her vehicle in response to a “Be On The Lookout” (“BOLO”) alert identifying her as “armed and dangerous.” The Atlanta Police then contacted Detective Riker, who along with Detective Dave Moynihan, flew to Atlanta to interview Ms. Hayes and Mr. Winston. No gun was ever recovered. Mr. Winston testified in his own defense.

He testified that on the evening of November 14, 2017, Ms. Hayes drove up from Atlanta, where she was living, and picked him up to drive to Baltimore to “pick up her daughter.” According to Mr. Winston, they 5 did not intend to stay the night in Baltimore and planned to travel immediately back to Richmond after picking up Ms. Witherspoon. He testified that before and while heading to Baltimore, he had been drinking vodka and beer, had used cocaine and marijuana, and was intoxicated. Mr. Winston testified that after they picked up Ms. Witherspoon, they stopped at Royal Farms. When they approached the store, he saw “Mr. Wroblewski coming out the store, [and] witnessed [Mr. Wroblewski] hock spit in [Ms. Hayes’s] direction.” This made him feel “disrespected.” He said that he did not immediately confront Mr. Wroblewski because he was “under the influence, it didn’t sink in right then and there.” He was “carrying [his] gun” into the Royal Farms because he did not want “to leave a gun inside of a car with the kids.” He left the store to “catch up” with Mr. Wroblewski “[t]o make him aware of his actions and to get an apology.” Mr. Winston “confront[ed] [Mr. Wroblewski] and let[] [Mr. Wroblewski] know that he just spit at [Ms. Hayes] and he needed to give . . . an apology.” Mr. Winston testified that during the confrontation, Mr. Wroblewski “started to swing with his [right] hand.” Mr. Winston then “backed up,” “pull[ed] a gun from [his] right hand and fir[ed]” “[o]ne time.” After he shot Mr. Wroblewski, he “ran to the car” and “told [Ms. Hayes] to drive.” The jury found Ms. Hayes guilty of transporting a handgun in a vehicle and conspiracy to transport a handgun in a vehicle.

The jury acquitted Ms. Hayes of attempted robbery with a dangerous weapon, attempted robbery, conspiracy to use a handgun in the commission of a crime of violence, conspiracy to commit robbery with a dangerous weapon, and conspiracy to commit robbery. The court sentenced her to three years’ 6 incarceration for transporting a handgun in a vehicle and three years’ incarceration for conspiracy to transport a handgun in a vehicle, all but one year suspended, consecutive to the sentence for transporting a handgun in a vehicle. The court also imposed a probation period of thirty days. The jury found Mr. Winston guilty of second-degree murder, use of a handgun in the commission of a crime of violence, transporting a handgun in a vehicle, conspiracy to transport a handgun in a vehicle, and carrying a handgun on his person.

The court sentenced Mr. Winston to forty years’ incarceration, suspending all but thirty, for second-degree murder; ten years’ incarceration for use of a handgun in the commission of a crime of violence, consecutive to the sentence for second-degree murder; three years’ incarceration for transporting a handgun in a vehicle, concurrent with all other sentences; three years’ incarceration for conspiracy to carry a handgun in a vehicle, to run concurrent with all other sentences; and three years’ incarceration for carrying a handgun, concurrent with all other sentences. Ms. Hayes and Mr. Winston filed timely notices of appeal. We consolidated their appeals because they present overlapping issues, arise from the same operative facts, and were tried together in the circuit court. We supply additional facts as needed below.

II

DISCUSSION Ms. Hayes and Mr. Winston raise various issues that we rephrase.2 First, both 2 Ms. Hayes frames the questions presented in her brief as follows: 1. Is the evidence sufficient to convict Ms. Hayes? 2. Did the trial court err in refusing to instruct on necessity? 7 Ms. Hayes and Mr. Winston argue that the circuit court abused its discretion in declining to ask voir dire questions about the State’s burden of proof and the defendant’s right not to testify. Second, both Ms. Hayes and Mr. Winston raise challenges to certain jury instructions the court gave, or declined to give, before deliberation.

Third, Mr. Winston lodges a constitutional challenge, asserting that his right to a speedy trial under the Sixth Amendment was violated. Fourth, Ms. Hayes challenges the sufficiency of the evidence to support her convictions. Finally, Ms. Hayes asserts that she received ineffective assistance of counsel at trial. We reverse the convictions on the ground that the circuit court abused its discretion when it failed to propound the voir dire questions regarding the State’s burden of proof and the defendant’s right not to testify.

A. The Voir Dire Questions. During voir dire, Mr. Winston’s counsel requested that the court ask the potential 3. Did the trial court abuse its discretion in failing to ask requested voir dire questions? 4. Did the trial court ask voir dire questions in such a manner that improperly shifted the burden of determining the juror’s bias to the juror and was trial counsel ineffective for failing to object? 5.

Did the trial court err in giving a flight instruction? Mr. Winston frames the questions presented in his brief as follows: 1. Did the trial court err by refusing to ask the voir dire questions requested by the defense? 2. Did the trial court err by refusing to instruct the jury on imperfect self-defense? 3.

Did the trial court err by denying Appellant’s motion to dismiss for lack of a speedy trial? 8 jurors two questions about the burden of proof and presumption of innocence. The court denied the request: [MR. WINSTON’S COUNSEL]: Yes. The next request would be, as far as defense voir dire would be question number 20, defense’s proposed voir dire for Mr. Winston, “In a criminal case like this one, each side may present arguments about the evidence but only the State has the burden of proof.

The defendant need not testify on his own behalf nor present any evidence. Would you hold it against the defendant if he were to exercise his Constitutional right to remain silent and/or his right to not present evidence?” I would ask that this question be asked, included in the Court’s voir dire. I would also point out that during jury selection in this case, the last time there were individuals that answered this question. THE COURT: Okay.

That is covered by the instructions, it is a classic catechizing voir dire question and the case law is again clear that not only is not required but it’s disfavored so I’m not going to ask that. [MR. WINSTON’S COUNSEL]: All right. Just but again note my objection for the record. I would also request defense jury voir dire question number 21, “You must presume the defendant innocent of the charges now and throughout the trial unless and until after you have heard all of the evidence, the State convinces you of his guilt beyond a reasonable doubt.

If you do not consider the defendant innocent now or if you are not sure you will require the State to convince you of his guilt beyond a reasonable doubt, please stand.” I would again ask that this question be read and again indicate that people did answer this question when it was on the proposed voir dire during our last jury selection. THE COURT: All right. Again, that is a classic catechizing question, believe me, the jurors when they come up for their individual responses will be reminded repeatedly that your client and Ms. Hayes are presumed to be innocent and that the burden rests with the State but I’m not going to ask that question. [MR. WINSTON’S COUNSEL]: And again, I just note my objection. . . . 9 (emphasis added).

Both Ms. Hayes and Mr. Winston assert that the circuit court was required to ask this question, and that reversal is required in light of the Court of Appeals’s recent decision in Kazadi v. State, 467 Md. 1 (2020), which reversed Twining v. State, 234 Md. 97 (1964). We review “for abuse of discretion a trial court’s decision as to whether to ask a voir dire question,” Pearson v. State, 437 Md. 350, 356 (2014), and we agree that the court’s decision not to ask the question compels reversal for any defendant who requested it. 1. Ms. Hayes preserved this contention for appellate review. This last point is important, and harder than usual to resolve in this case.

Because Kazadi was decided in the midst of the briefing, the parties filed supplemental briefs addressing the impact and application of that decision to these defendants. In its supplemental briefs in both cases, the State acknowledged that Kazadi, by its own terms, applied to “‘any other cases that are pending on direct appeal when th[at] opinion was filed, where the relevant question has been preserved for appellate review’” (quoting Kazadi, 467 Md. at 47 ). The State also conceded that both Mr. Winston and Ms. Hayes are entitled to reversal and a new trial under Kazadi. When we read the transcript in preparing our initial opinion, we determined that during the court’s review of proposed voir dire questions, Mr. Winston’s counsel objected to the court’s refusal to ask questions 20 and 21, but Ms. Hayes’s counsel didn’t.

And because the preservation requirement identified in Kazadi was not met as to Ms. Hayes, we held that she was not entitled to relief under Kazadi. After our initial opinion was released on August 3, 2020, Ms. Hayes moved for 10 reconsideration. Her motion raised two arguments. We can dispose quickly of the second, that the State’s concession that Ms. Hayes had preserved the Kazadi argument waived any preservation objection.

The State’s concession of error does not bind us. Coley v. State, 215 Md. App. 570 , 572 n.2 (2013) (an appellate court is not bound by a party’s erroneous concession of error on a legal issue). Under Maryland Rule 8-131, we “will not decide any [] issue unless it plainly appears by the record to have been raised in or decided by the trial court. . . .” As the ensuing discussion details, it takes a lot of careful parsing of the trial transcript and record to figure out what Ms. Hayes raised during voir dire and when. Mr. Winston asked twice for the Kazadi questions, and Ms. Hayes never joined those requests, despite joining other objections on other occasions.

She argues now that she joined the Kazadi requests retroactively, but that doesn’t work. She did ultimately ask for the questions herself, but only when she submitted a complete list of requested voir dire questions to the court in writing. As we’ll explain, though, that request isn’t discernible from the transcript, which reveals only the fact of a list and a direction from the court to file it. It is only after pulling the filing from the record that we can see that Ms. Hayes did include them—perhaps unintentionally, but they’re there.

Rule 4-323(c) requires parties to raise objections during voir dire and jury selection: [I]t is sufficient that a party, at the time the ruling or order is made or sought, makes known to the court the action that the party desires the court to take or the objection to the action of the court. The grounds for objection need not be stated unless these rules expressly provide otherwise or the court so directs. If a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection at that time does 11 not constitute a waiver of the objection. If an opportunity to object presents itself and a defendant fails to object to a court’s refusal to read a proposed question, the objection is waived.

Brice v. State, 225 Md. App. 666, 679 (2015). And in cases involving multiple defendants, “each defendant must lodge his own objection in order to preserve it for appellate review and may not rely, for preservation purposes, on the mere fact that a co-defendant objected.” Williams v. State, 216 Md. App. 235, 254 (2014). A defendant “may expressly join in an objection made by a co-defendant but he must expressly do so.” Id. The parties’ opening briefs and supplemental briefs—understandably, in light of the State’s concession—say almost nothing about when and how Ms. Hayes raised the Kazadi issue or joined Mr. Winston’s request.

Ms. Hayes claimed in her opening brief that her counsel joined Mr. Winston’s request for the two voir dire questions, but the transcript reveals unequivocally that she didn’t join at the time Mr. Winston asked the court to read the questions. We noted in our original opinion that the only citation in Ms. Hayes’s brief identified a statement by counsel a day later in which counsel did say at that point in the transcript “I just want to say I want to incorporate the arguments of my co-counsel,” but the brief offered no discussion or context, and we found that the statement came after a discussion of voir dire question number 10. We also found, on our own, a passing (and uncited) mention (by Mr. Winston’s counsel) of questions 20 and 21 shortly after, but no reaction or joining then by Ms. Hayes’s counsel either. Even on reconsideration, nobody cites, and we still haven’t found, any omnibus statement that both defendants joined each other’s objections or any other way to bring Ms. Hayes within Mr. Winston’s objection. 12 Ms. Hayes’s motion for reconsideration identifies a couple of additional places in the transcript, including the one we had found on our own, and contends that on two occasions during the second and third days of jury selection, she joined Mr. Winston’s counsel when he restated and reiterated all of his objections to that point.

She also contends, for the first time, that before the close of voir dire, her counsel submitted a written set of voir dire questions that included the Kazadi questions. Her argument requires some fairly high-degree-of-difficulty gymnastics to follow and apply, so we now recount, in full, the voir dire in this case, both the portions Ms. Hayes cites and a number that she doesn’t. The initial request for the court to include questions 20 and 21 came, as described above, on the first morning of jury selection. We won’t quote it again, but as everyone acknowledges, counsel for Mr. Winston asked the court to include these questions, the court denied the request, and counsel for Ms. Hayes neither joined the objection nor said anything else.

Mr. Winston’s counsel was the defense side’s primary spokesperson on the voir dire questions, but not to the exclusion of Ms. Hayes’s counsel—the colloquy about questions 20 and 21 appears on pages 16–18 of that morning’s transcript, and on three other occasions in the immediately preceding eight pages, Ms. Hayes’s counsel specifically joined objections Mr. Winston had made: THE COURT: Okay. So I’m inclined to stick with the pattern voir dire and I’m going to keep one and two the way they are. [COUNSEL FOR MR. WINSTON]: Okay. THE COURT: But your concerns are noted. [COUNSEL FOR MR.

WINSTON]: Okay. I just note my objection for the record. [COUNSEL FOR MS. HAYES]: Your Honor, for purposes of 13 the record, I’ll join this objection as well.3 *** [COUNSEL FOR MR. WINSTON]: For the record, defense counsel would request that these three questions be asked.

THE COURT: [Counsel for Ms. Hayes], I assume you’re joining in that? [COUNSEL FOR MS. HAYES]: Yes, I am.4 *** THE COURT: So how about, “The State alleges that the defendants killed another individual using a firearm. Do you have strong feelings about murder or handguns?” You okay with that? [COUNSEL FOR MR. WINSTON]: That would be acceptable, thank you, Your Honor. [COUNSEL FOR MS.

HAYES]: That’s acceptable to Ms. Hayes, Your Honor.5 Immediately before the discussion of questions 20 and 21, Mr. Winston raised objections that Ms. Hayes did not join: [COUNSEL FOR MR. WINSTON]: Just for the record, Your Honor, I would again and I’ve already read them into the record, just so the record is clear, we would be asking for our questions to be read as written. I think they-- THE COURT: I’m not trying to be obstreperous, is there any case law that says that any one of these questions are actually required questions? [COUNSEL FOR MR. WINSTON]: I don’t have any case law[.] I would only put using it as just a fairness argument, there were people since we did begin jury selection in this case that did answer that they were involved with victim’s rights 3 March 26, 2019 Transcript at 8:11–21 (discussion of proposed revisions to pattern voir dire questions 1 and 2) (emphasis added). 4 Id. at 10:19–11:20 (discussion of proposed questions 11, 12, and 13) (emphasis added). 5 Id. at 13:21–14:4 (in response to colloquy regarding the “strong feelings” question) (emphasis added). 14 groups specifically for—specific to this incident.

THE COURT: Okay. [COUNSEL FOR MR. WINSTON]: Therefore, I think that in this particular case, it is important that those two questions be asked. THE COURT: Well, again, I will ask the organizational bias question which I think gets to the exact same thing and is just as likely to uncover any basis for a strike for cause. [COUNSEL FOR MR. WINSTON]: I just would again note my objections for the record that our request is for defense’s jury instructions listed number 14 and 15, which have already been read into the record.

THE COURT: Okay. Anything else? [COUNSEL FOR MR. WINSTON]: Yes. The next request would be, as far as defense voir dire would be question number 20 . . . .6 After the court denied Mr. Winston’s request to ask questions 20 and 21, Mr. Winston asked the court to ask question 22.

Ms. Hayes did not join that request and the court denied it. Then, after colloquy about two mandatory questions, Mr. Winston asked the court to ask pattern question 15, which Ms. Hayes joined and the court granted (it too was mandatory): [COUNSEL FOR MR. WINSTON]: We would ask for the pattern instruction 15, defendant’s person traits. THE COURT: Mm-hmm. [COUNSEL FOR MR.

WINSTON]: “The defendant has identified himself as African American.” THE COURT: Okay. [COUNSEL FOR MR. WINSTON]: “Do you have any strong feelings about the defendant’s race.” THE COURT: All right. Again— 6 Id. at 15:20-16:25. 15 [COUNSEL FOR MS. HAYES]: We will join in that request, Your Honor.

THE COURT: So I can say the defendants have identified themselves, I can do it that way? [COUNSEL FOR MS. HAYES]: Yes. THE COURT: Okay. That’s fine.

All right. That’s a mandatory, I have no problem giving that if you want it. [COUNSEL FOR MS. HAYES]: Thank you.7 The parties and the court wrapped up their discussion of the voir dire questions, and when asked in so many words if she had anything else to raise, counsel for Ms. Hayes said no: [COUNSEL FOR MR. WINSTON]: I think I’m just about done, Your Honor.

THE COURT: It’s easier to do it like this than having you huddled while the venire comes in so I’m glad we can get to it first thing. All right. [Counsel for Ms. Hayes], anything else? [COUNSEL FOR MS. HAYES]: No, Your Honor.8 At that point, the venire entered the room, and the process of jury selection began. Throughout the discussion of the voir dire questions, though, Ms. Hayes’s counsel was involved and engaged, and appeared to make conscious decisions about when to join Mr. Winston’s objections and when not to.

We’re not blessed with clairvoyance, nor is it our role to determine what motivates trial counsel, but counsel’s decisions not to join Mr. Winston’s objections in toto and to join individual objections selectively doesn’t look inadvertent. Over the rest of that day and the two that followed, questions 20 and 21 came up 7 Id. at 20:11-21:3 (emphasis added). 8 Id. at 21:4-10 (emphasis added). 16 only one other time, on the second day. Rather than jumping ahead to that, though, we need to continue working chronologically to place Ms. Hayes’s current argument in context. Later on the first day of jury selection, in an exchange Ms. Hayes cites in her motion for reconsideration, counsel for Mr. Winston renewed his objections relating to voir dire generally.

This occurred just as the court and parties were preparing to begin questioning individual jurors and, as Ms. Hayes notes, her counsel did join the renewal: THE COURT: I’m sorry, you have a motion? [COUNSEL FOR MR. WINSTON]: Yes. I wanted to renew my objections to the Court voir dire, I will—ask to incorporate my arguments that have already been made. THE COURT: Okay.

Objection is noted for the record. [COUNSEL FOR MR. WINSTON]: Thank you. [COUNSEL FOR MS. HAYES]: I join the objection. THE COURT: Okay. [COUNSEL FOR MR.

WINSTON]: Thank you.9 Jury selection continued for the rest of the day and resumed the next morning. Right at the beginning of the second day, before Mr. Winston and Ms. Hayes returned to the courtroom, counsel for Mr. Winston renewed his motion as to the phrasing of questions 1 and 2, which the court denied, then moved on to discuss question 10. During the discussion of question 10, and after the court directed the parties to submit copies of their voir dire requests in writing for the court file, counsel for Ms. Hayes spoke up to join co-counsel’s arguments about questions 1 and 2: THE COURT: Wait—[counsel for Ms. Hayes] wants to say something. 9 Id. at 361:19-362:4. 17 [COUNSEL FOR MS. HAYES]: Thank you.

I just want to say that I incorporate the arguments of my co-counsel. And I just wanted to point out to the Court that I think there were at least a few instances where individual jurors came up and said, you know, now that you have said this, I am now thinking of that incident. I think the phraseology of those two questions, we need to have the repetition of “Are you familiar with the incident?” We had a couple of people that remembered it later on. I incorporate what co-counsel is requesting and I as that they be—those two questions as they have been phrased and as we as—worked with the original jurors in terms of phrasing the incident and the description of the location, be asked of our original panel coming back on Thursday again.

THE COURT: Okay. Denied.10 Ms. Hayes claims in her motion for reconsideration that this exchange included Mr. Winston’s request to ask questions 20 and 21. It didn’t. Counsel for Mr. Winston only brought up questions 10, 11, 12, 13, 14, 15, 20 and 21 in the exchange that followed.

And contrary to the claim in her motion, counsel for Ms. Hayes did not join or say anything when counsel for Mr. Winston reiterated his objections as to those questions, including the questions the court was not asking: [COUNSEL FOR MR. WINSTON]: Okay. And just so—and I will not reread the instructions, but I will make sure that a copy of the defense’s jury instruction requests (indiscernible 9:29:40 a.m.) admitted into the record. But just to be clear, what I was asking for in lieu of the Court’s number 10 is defense under—with Mr. Winston’s voir dire, our number 11, 12 and 13.

THE COURT: Okay. [COUNSEL FOR MR. WINSTON]: Then moving on again, I believe we could—so as far as the charges, I believe the Court 10 March 27, 2019 Transcript at 8:23-9:17 (emphasis added). 18 has made changes to those that are— THE COURT: Yes. [COUNSEL FOR MR. WINSTON]: —compliant with—and I would be in agreement on that point. With the Court’s number 16, I have or would again request, which I requested yesterday, which would be defense’s—under again, Marquese Winston’s voir dire, number 14, 15, 20 and 21.

And I did—I believe we also addressed this yesterday, there was—when we got—and I believe the Court added this and we’ll most—I believe the Court intends to add it again, when we get to the question— Where’s the final question? Court’s indulgence. THE COURT: Right. The two I added yesterday about defense—defendant’s identification—self identification was African-American— [COUNSEL FOR MR.

WINSTON]: Yes. THE COURT: —and organizational bias, the—I will be reading the pattern voir dire questions on those two topics. [COUNSEL FOR MR. WINSTON]: Thank you, Your Honor. And I can go in—as far as—the one where—the question where Your Honor asks whether anyone’s been a victim of similar crimes, the Court will be making the addition of all the crimes— THE COURT: Right. [COUNSEL FOR MR.

WINSTON]: —that it listed yesterday— THE COURT: Right. [COUNSEL FOR MR. WINSTON]: —before all three? THE COURT: We’ll be saying, a victim of crimes similar to the crimes charged, which include homicide, robbery, armed robbery, assault, and handgun violence. [COUNSEL FOR MR. WINSTON]: Thank you.

We appreciate that. So I would note that all those other objections of the questions I stated that the Court is not asking. 19 THE COURT: Okay.11 After handling some logistics, the court began the second day of voir dire. As the lunch recess approached, counsel for Mr. Winston renewed his objections to voir dire. At the court’s prompting, counsel for Ms. Hayes joined: [COUNSEL FOR MR.

WINSTON]: Yes, for the record, Your Honor, I would renew all of my objections I made earlier to the Court’s voir dire, incorporate all further argument—all the arguments I made earlier. THE COURT: All right. And [counsel for Ms. Hayes] joins in your objection? [COUNSEL FOR MS. HAYES]: I join, yes.

THE COURT: And for the reason stated for the last two days, the objections are noted but overruled.12 Questions 20 and 21 were never discussed again, and to that point, Ms. Hayes had not preserved her Kazadi claim. Despite objecting or joining objections throughout the discussion of voir dire questions, she didn’t object or join Mr. Winston’s objections either time questions 20 and 21 were discussed specifically. We obviously can’t say what motivated these omissions, but counsel was present, engaged, and made objections before and after the court considered these questions. And although the transcripts do reveal two occasions when Ms. Hayes joined Mr. Winston’s objections en masse, those omnibus joinders happened only after counsel failed to object specifically as to questions 20 and 21—indeed, each general joinder follows a failure to join the specific objection.

Whether or not they were intended specifically to backfill counsel’s earlier decisions not 11 Id. at 9:18-11:23 (emphasis added). 12 Id. at 119:9-20. 20 to ask for the Kazadi questions, those joinders cannot relate back to resurrect a request she hadn’t made. Williams, 216 Md. App. at 254 (“The appellant’s eleventh-hour piggybacking on [the co-defendant’s] renewal of his earlier objection does not, for the appellant, relate back to that earlier objection.”) (citing Md. Rule 4-323(a)). Ultimately, though, Ms. Hayes did raise the issue before voir dire ended, if just barely. On the morning of the third day, her counsel passed up to the court a copy of the voir dire questions that, she said, encompassed the objections of Mr. Winston’s that she had joined: [COUNSEL FOR MS.

HAYES]: Your Honor, I have a copy of voir dire that encompasses the questions that I joined in Mr. Winston’s objections for the specific questions. So I’m just going to submit a copy so we have a written copy of the questions that you’re proposing in the court file, if I may please? THE COURT: Okay. [COUNSEL FOR MS. HAYES]: I’ll approach.

THE COURT: Yes, you can put that in the file. [COUNSEL FOR MS. HAYES]: Oh, in the file? Okay.13 And although she identified this submission for the first time in her motion for reconsideration, she’s right that it included the two Kazadi questions—it is a cut-and-paste from Mr. Winston, but, intentionally or not, questions 20 and 21 were there.14 Note that counsel’s statement to the court (“Your Honor, I have a copy of voir dire that encompasses 13 March 28, 2019 Transcript at 20:7-18. 14 The filing begins “NOW COMES the Defendant, Marquese Winston, by and through his attorneys,” and names Mr. Winston’s counsel. Nevertheless, the caption is the caption for Ms. Hayes’s case, the signature block and signature name Ms. Hayes’s counsel, and it was submitted in Ms. Hayes’s case. 21 the questions that I joined in Mr. Winston’s objections for the specific questions”) didn’t itself preserve anything beyond what counsel already had preserved to that point.

But the written filing did—it’s the first, and only time Ms. Hayes herself pressed questions 20 and 21, and, in the context of this case, it’s close enough. Although most of the jury selection had been completed at that point, it wasn’t yet over. The court had one more day of culling the venire to the final list of candidates, and the court could, had it chosen to, have reconsidered its earlier decision and asked questions 20 and 21 to the distilled panel before the final strikes. Moreover, the undeniably late request didn’t sandbag the trial judge.

The court made its decision not to ask these questions based on its view of a then-unresolved legal question, and there is no suggestion (or any rational reason we can discern) why its decision would have changed had Ms. Hayes asked it earlier. This tactical approach does not represent best voir dire practice. It would have been a lot clearer had the parties declared on the record that they joined each other’s objections or for counsel to have objected the two other times that Mr. Winston objected. The decision not to join Mr. Winston’s objections nearly deprived Ms. Hayes of the benefit of Kazadi.

And it was not, as her motion claims, remotely “plain from this record that this issue was, in fact, preserved by counsel for Ms. Hayes,” nor from the citations in the motion papers. To the contrary, as the reader can see, it took more than 4,000 words worth of analysis to reach the conclusion, as we now do, that Ms. Hayes preserved her Kazadi claims.15 15 Ms. Hayes’s reply in support of the motion for reconsideration also takes shots at the State for not defending its earlier concession to her satisfaction in its response brief. Her umbrage is misplaced. Our initial opinion put the State in a challenging position on reconsideration.

Although the State could have taken a different position, it seems unfair 22 2. The circuit court abused its discretion in refusing to ask the requested voir dire questions. Although decided after the trial in this case, Kazadi held that “on request, during voir dire, a trial court must ask whether any prospective jurors are unwilling or unable to comply with the jury instructions on the long-standing fundamental principles of the presumption of innocence, the State’s burden of proof, and the defendant’s right not to testify.” Kazadi, 467 Md. at 48 . Failure to ask the question on request is an abuse of discretion.

Id. And Kazadi applies to “any other cases that are pending on direct appeal when” the opinion was filed. Because they asked for these questions in the circuit court and the court declined to ask them, Mr. Winston and Ms. Hayes get the benefit of Kazadi’s holding. Id. at 47 .

We reverse their convictions, remand for further proceedings consistent with this opinion, and address other issues as necessary or to guide those proceedings on remand.16 B. Jury Instruction Challenges. Both Ms. Hayes and Mr. Winston take issue with certain jury instructions. Ms. Hayes asserts that she was entitled to a defense of necessity instruction. She contends as well that the circuit court should not