Hernandez v. Maryland

RODOWSKY, Judge. The petitioner, Jorge Hernandez (Hernandez), was convicted in the Circuit Court for Montgomery County of child abuse and second degree rape. At trial Hernandez testified in Spanish, through an interpreter. Hernandez here contends that the trial court improperly refused to propound his requested voir dire question sixteen, reading, “Is there any ²⁰⁷ member of the panel who would be prejudiced against a defendant because of any defendant’s race, color, religion, sexual orientation, appearance, or sex?” As more fully explained below, because prejudice based on race was raised by the request, but the trial court did not inquire specifically as to that possible bias, we shall order a new trial.

The State proved that Hernandez had vaginal intercourse with the then nine year old daughter of the woman with whom he lived. Hernandez testified that, in 1990, he came to the United States from El Salvador where he had been raised and that he speaks English poorly. In this Court, he describes the victim as Hispanic. The Spanish interpreter who assisted Hernandez throughout the trial was introduced to the prospective jurors prior to the voir dire, as was Hernandez.

In its opening remarks to the venire, the court said: “What we are looking for is jurors who will approach this case with an open mind, and who are willing to listen closely to all of the evidence presented by either side. We are looking for jurors who will render a fair and impartial verdict based on the evidence presented in this courtroom and the law as it pertains to this case. Jurors must be as free as humanly possible from prejudice, sympathy, and preconceived ideas for or against either party.” The court also asked whether any of the prospective jurors “have any bias or prejudice either for or against the defendant.” Later in the voir dire process, during a bench conference, the following exchange occurred: “[Defense Counsel]: Also [Question] No. 16 the defendant because of his race, color, religion, sexual orientation? “The Court: I already asked them if there was any reason — do you have any bias or prejudice either for or against the defendant? I think that has been covered. “[Defense Counsel]: That is okay.

I am just checking.” ²⁰⁸ After discussing other voir dire questions, the prosecutor returned to the proposed question on bias, raising concerns about question sixteen: “[Prosecutor]: If I can say one thing, Your Honor, this is out of an abundance of caution. I think I have seen some cases that dealt with No. 16 basically saying [that] if they ask, they shall receive. I know your Honor asked a broader question, but ... just so there is not an issue at all, I would urge the Court to go ahead and ask No. 16 in terms of the racial question. I think I have seen an appellate opinion to do with voir dire on that, and that makes me a little bit nervous. “The Court: Well I— “[Prosecutor]: I know you asked it in a general sense of bias, but I think this might help to be a little more specific just to insulate the record.

Maybe you could throw in against the defendant or the witness. I mean, you could put the race on the other side also. “The Court: Well, I have already asked them, Do you have any. bias or prejudice either for or against the defendant? And what you are asking me to do is ask the question, ‘Is there anybody who would be prejudiced against the defendant because of his race, color, religion, sexual orientation’? “[Prosecutor]: I am not saying you should have to. I am just saying out of an abundance of caution. “The Court: I think it is clearly covered.” (Emphasis added).

Three months after the jury found Hernandez guilty, his motion for a new trial was heard. While conceding that “[question sixteen] may not be the most artfully drafted question,” Hernandez argued that it sufficiently “touch[ed] on the key issue ... [of] racial prejudice.” He submitted that, under Maryland law, when “the judge is asked to do something along specifically racial grounds, there is no more ... discretion. It is something that has to be done.” He did not believe, however, that “it goes so far [as] to say, ‘Is anyone ²⁰⁹ prejudiced against African Americans or Hispanic or anything like that.’ ” It was at this argument on the motion for a new trial that Hernandez was first expressly referred to as being of the “Hispanic” race. That reference was by the State.

Basically, the State argued that an accused ordinarily is entitled to a voir dire question directed to the race of the accused only if the accused “claims meaningful ethnic differences between himself and the victim.” That rule, the State submitted, did not apply to the prosecution of Hernandez, because “what you have in this case was a complete hodge-podge when you talk about the racial components of this case. The State called black witnesses, white witnesses, Hispanic witnesses — the victim and the eye witness being Hispanic. The defense called Mr. Hernandez, called some coworkers that were Hispanic, called coworkers that were white. I mean, we were all over the place in terms of the racial mix.

And it is kind of an offensive notion to have to delve into that, because ... there is no evidence of racial prejudice [creeping] in.” The judge denied the motion on the ground that potential prejudice was adequately covered by the questions asked. On appeal, Hernandez raised, among other issues, whether “the trial court err[ed] by refusing to propound a requested question on voir dire relating to racial bias.” In an unreported opinion, the Court of Special Appeals affirmed. That court noted that, although “[i]t would be an abuse of the court’s discretion to fail when requested to propound a question regarding racial bias,” it is not an abuse of discretion “if the substance of the information sought by the defense is fairly covered by another question asked by the court.” The court held that “the measures taken by the [trial] court, considering the identification of the defendant and use of an interpreter, sufficiently covered the substance of [Hernandez’s] proposed instruction.” Hernandez petitioned this Court for a writ of certiorari, framing the question presented as whether “a non-specific ²¹⁰ question regarding bias [is] sufficient voir dire in the trial of a Hispanic defendant when both the defense and the prosecution request that the court propound a specific question designed to elicit racial bias?” We granted the writ. Hernandez v. State, 354 Md. 570 , 731 A.2d 969 (1999).

In this Court, Hernandez contends that “[t]he voir dire inquiry proposed by the defense was directed to a specific cause for disqualification, bias against an Hispanic defendant on account of his race.” Alternatively, he contends that, under Contee v. State, 223 Md. 575 , 165 A.2d 889 (1960), the trial court erred by not itself formulating a proper question. On the other hand the State contends that the circumstances of this particular case do not require a voir dire question concerning prejudice against Hispanic persons and that the questions actually asked were sufficient. The State does not directly challenge Hernandez’s assumption that Hispanic persons comprise or are recognized as an identifiable race. The contentions of both parties are best answered by reviewing the evolution of federal and Maryland law on voir dire concerning racial prejudice.

I A. Federal Case Law At the federal level, the development of voir dire with respect to the issue of race began in Aldridge v. United States, 283 U.S. 308 , 51 S.Ct. 470 , 75 L.Ed. 1054 (1931). In that capital case, the Court reversed the conviction by a white jury of an African-American man, who had been found guilty of shooting a white police officer, because the trial court had refused the defendant’s request to propound a “question relative to racial prejudice.” Id. at 310 , 51 S.Ct. at 471 , 75 L.Ed. at 1056 . Speaking in the language of its time, the Court reasoned that: “But the question is not as to the civil privileges of the negro [such as serving on juries, permitted at that time in the District of Columbia], or as to the dominant sentiment of the community and the general absence [therein] of any ²¹¹ disqualifying prejudice, but as to the bias of the particular jurors who are to try the accused.... [I]f any one of them was shown to entertain a prejudice which would preclude his rendering a fair verdict, a gross injustice would be perpetrated in allowing him to sit. Despite the privileges accorded to the negro, we do not think that it can be said that the possibility of such prejudice is so remote as to justify the risk in forbidding the inquiry.” Id. at 314 , 51 S.Ct. at 473 , 75 L.Ed. at 1058 (footnote omitted).

Thus, the “essential demands of fairness” required the trial court to propound the requested question in light of the non-remote possibility of disqualifying prejudice in the individual members of the jury. Id. at 310 , 51 S.Ct. at 471 , 75 L.Ed. at 1056 . In Ham v. South Carolina, 409 U.S. 524 , 93 S.Ct. 848 , 35 L.Ed.2d 46 (1973), the Court, noting that Aldridge “was not expressly grounded upon any constitutional requirement,” first addressed a requested, race-oriented voir dire question as a constitutional issue. Id. at 526, 93 S.Ct. at 850 , 35 L.Ed.2d at 50 .

In that case, a South Carolina jury convicted an African-American man of possession of marijuana; the defendant, who asserted that he had been framed by the police in retaliation for his civil rights activity, requested two voir dire questions that “sought to elicit any possible racial prejudice against Negroes.” Id. at 525 , 93 S.Ct. at 850 , 35 L.Ed.2d at 49 . The trial judge refused to propound these questions on the ground that this issue was covered by more general questions. 1 The Supreme Court reversed. Noting that one ²¹² purpose of the Due Process Clause is, in the language of Aldridge , “to insure these ‘essential demands of fairness,’ ” and that the “Fourteenth Amendment was [adopted] to prohibit the States from invidiously discriminating on the basis of race,” the Court held that constitutional due process requires that “under the facts shown by this record the petitioner be permitted to have jurors interrogated on the issue of racial bias.” Id. at 526-27, 93 S.Ct. at 850 , 35 L.Ed.2d at 50 . By reversing the conviction, the Court indicated that, despite its recognition of a trial judge’s broad discretion as to the number and form of voir dire questions, the more general questions propounded by the South Carolina trial court failed adequately to address the issue of racial bias.

Three years later, the United States Supreme Court limited the reach of Ham to cases in which the circumstances of the crime “suggest a significant likelihood that racial prejudice might infect [a defendant’s] trial.” Ristaino v. Ross, 424 U.S. 589, 598 , 96 S.Ct. 1017, 1022 , 47 L.Ed.2d 258, 265 (1976). In Ristaino , the Court upheld the conviction of an African-American defendant for the assault and battery and armed robbery of a white security guard. The trial judge had propounded general questions on bias, which resulted in the elimination of one veniremember for racial prejudice, but had denied the defendant’s request that the venire “be questioned specifically about racial prejudice.” Id. at 590 , 96 S.Ct. at 1018 , 47 L.Ed.2d at 261 . The Court asserted that “Ham did not announce a requirement of universal applicability,” but instead applies when “under all of the circumstances presented there [is] a constitutionally significant likelihood that, absent questioning about racial prejudice, the jurors would not be as ‘indifferent as [they stand] unsworne.’ ” Id. at 596 , 96 S.Ct. at 1021 , 47 L.Ed.2d at 264 (alteration in original) (quoting Coke on Littleton 155b (19th ed. 1832)).

By contrast to Ham , which involved a civil rights worker whose defense of police retaliation was “likely to intensify any prejudice that ²¹³ individual members of the jury might harbor,” Ristaino involved “[t]he mere fact that the victim of the crimes alleged was a white man and the defendants were Negroes.” Id. at 597, 597 , 96 S.Ct. at 1021, 1022 , 47 L.Ed.2d at 264, 265 . According to the Ristaino Court, this fact was not sufficient to require, as a constitutional matter, that a requested voir dire question on the issue of racial bias be propounded to the venire panel. Despite the assertion that Ham had not announced a rule of universal applicability, the Ristaino Court’s reasoning indicated a narrowing of precedent. Ham articulated the principle that, if a juror is racially biased, then the jury’s decision cannot be impartial.

This principle implies that a requested, racially specific voir dire question is warranted, so long as there is a non-remote possibility that a juror could be biased, regardless of the circumstances of the case. By contrast, Ristaino’s decision that a trial judge is required to grant a racially specific voir dire question only under special circumstances implies that a juror could “harbor” prejudice, but that this prejudice would only become operative if the facts of the case were likely “to intensify” that prejudice. In other words, the Ristaino Court viewed racial prejudice as a latent attitude that becomes effective only under particular, racially-charged circumstances. 2 In 1981, as a matter of federal common law, a plurality of the United States Supreme Court opined that a voir dire question directed specifically at racial bias should be required “in certain circumstances in which such an inquiry is not constitutionally mandated.” Rosales-Lopez v. United States, 451 U.S. 182, 190 , 101 S.Ct. 1629, 1635 , 68 L.Ed.2d 22, 30 (1981) (plurality opinion). 3 In that case, the Court upheld the ²¹⁴ conviction of a man “of Mexican descent” for illegally transporting aliens across the Unites States border. The trial court had refused the defendant’s request to ask prospective jurors if they would “ ‘consider the race or Mexican descent of [the defendant] in [their] evaluation of this case.’ ” Id. at 185 , 101 S.Ct. at 1633 , 68 L.Ed.2d at 26 .

Although the “indications of the likelihood of racial or ethnic prejudice” were not substantial enough to “amount to an unconstitutional abuse of discretion,” id. at 190 , 101 S.Ct. at 1635 , 68 L.Ed.2d at 29 , the plurality would require the voir dire question as a matter of federal common law when there is a “ ‘reasonable possibility' that racial prejudice would influence the jury.” Id. at 192 , 101 S.Ct. at 1636 , 68 L.Ed.2d at 31 . The plurality noted that this is always so when a violent interracial crime is involved, but that it was not so in the case of the “victimless crime[ ][of] aiding members of [the defendant’s] own ethnic group to gain illegal entry into the United States.” Id. The plurality seemed to reject a rule of per se harmful error on the ground that determining the nonconstitutional standard of mandatory voir dire questions “involv[es] the [issue of the] appearance of justice in the federal courts,” and that “requiring an inquiry in every case is likely to create the impression ‘that justice in a court of law may turn upon the pigmentation of skin [or] the accident of birth.’ ” Id. at 190 , 101 S.Ct. at 1635 , 68 L.Ed.2d at 30 (last alteration in original) (quoting Ristaino, 424 U.S. at 596 n. 8, 96 S.Ct. at 1021 n. 8, 47 L.Ed.2d at 264 n. 8). In summary, under current federal law, a defendant has a Fourteenth Amendment right to have a trial court propound a requested voir dire question, specifically directed to uncovering racial bias, if the case involves special circumstances, of the sort in Ham , in which “racial issues [are] ²¹⁵ ‘inextricably bound up "with the conduct of the trial.’ ” Rosales-Lopez, 451 U.S. at 189 , 101 S.Ct. at 1635 , 68 L.Ed.2d at 29 (quoting Ristaino, 424 U.S. at 597 , 96 S.Ct. at 1021 , 47 L.Ed.2d at 264 ).

Moreover, a defendant has a nonconstitu-tional right in a federal criminal trial to have such a question propounded when there is a “ ‘reasonable possibility’ that racial prejudice would influence the jury.” Id. at 192, 101 S.Ct. at 1636 , 68 L.Ed.2d at 31 . B. Maryland Case Law From a rule that apparently universally required voir dire inquiry into racial prejudice, Maryland law moved to a limitation on the rule to cases in which racial bias is more likely to be an issue. This Court’s most recent decision, however, in Hill v. State, 339 Md. 275 , 661 A.2d 1164 (1995), returns to a more expansive rule. In Brown v. State, 220 Md. 29 , 150 A.2d 895 (1959), the Court reversed the conviction of an African-American defendant for shooting a police officer because the trial court had refused “to ask any [of the requested] questions as to the bias or prejudice which jurors might have as to a Negro, and as to whether the jury could give the defendant as fair and impartial a trial as they could a white man.” Id. at 34 , 150 A.2d at 897 .

Relied upon was the reasoning of State v. Higgs, 143 Conn. 138 , 120 A.2d 152 (1956), a case involving the alleged rape of a white woman by an African-American man, which held that the state constitutional right to trial by an impartial jury required that, “if there is any likelihood that some prejudice is in the juror’s mind which will even subconsciously affect his decision of the case, the party who may be adversely affected should be permitted questions designed to uncover that prejudice.” Brown, 220 Md. at 35 , 150 A.2d at 897-98 (internal quotation marks omitted) (quoting Higgs, 120 A.2d at 154 ). The Court also relied upon the similar reasoning of Aldridge , which conceived the issue “not as ... [turning on] the dominant sentiment of the community and the general absence of disqualifying prejudice, but ... [on] the bias of the particular jurors who were to try the accused.” Brown, 220 ²¹⁶ Md. at 35-36, 150 A.2d at 898 . Thus, Brown required a trial judge to propound a criminal defendant’s requested voir dire question when it was designed to uncover racial bias “[s]o long as race prejudice exists, even in a relatively few persons.” Id. at 35 , 150 A.2d at 898 (internal quotation marks omitted) (quoting Higgs, 120 A.2d at 154 ). In Contee v. State, 223 Md. 575 , 165 A.2d 889 (1960), an African-American man was convicted of raping a white woman.

The conviction was reversed because, under circumstances described in Part II, infra, the trial court should have asked “a proper question designed to ascertain the existence of cause for disqualification on account of racial bias or prejudice.” Id. at 580 , 165 A.2d at 893 . Although we characterized this case as one “likely to have aroused some racial feelings,” id. at 580 , 165 A.2d at 892 , nothing in the reasoning of Contee suggested that Brown , on which Contee relied, was limited to cases of this nature. Humphreys v. State, 227 Md. 115 , 175 A.2d 777 (1961), also involved the conviction of an African-American man for raping a white woman. The trial court propounded four of the defendant’s requested voir dire questions, which asked specifically about “prejudice against the Negro,” but refused to propound even more specific questions concerning prejudice with respect to the rape of a white woman by an African-American.

Id. at 119 , 175 A.2d at 778-79 . The Court held that, even if such specific questions were required, the overall context — including the introduction of the defendant at trial to the jurors, the statement of the charge at the beginning of the case, and the actually propounded voir dire questions concerning racial prejudice — was such that “the jurors could not fail to understand ... that the case involved the rape of a white woman by” an African-American defendant. Id. at 120 , 175 A.2d at 779 . Although we characterized the rule in Contee and Brown to mean that inquiry into racial prejudice is proper “in a case where prejudice against the Negro race may be a factor in determining a prospective juror’s attitude toward a particular defendant,” id. at 118 , 175 A.2d at 778 , this case did ²¹⁷ not expressly require that such an inquiry be limited to this type of situation.

Indeed, ten years later, in Tunstall v. State, 12 Md.App. 723 , 280 A.2d 275 (1971), the court reversed the conviction of two African-American defendants for armed robbery on the ground that the trial judge refused to propound the requested voir dire question concerning whether a juror would “be more likely to believe a white witness rather than a Negro witness?” Id. at 726 , 280 A.2d at 277 . The court did so without identifying the race of the victim(s) or the witness(es), and without identifying any particular, racially-charged circumstance that would warrant the requested voir dire question. Id. at 726-27 , 280 A.2d at 277 . Subsequent to Ham v. South Carolina, 409 U.S. 524 , 93 S.Ct. 848 , 35 L.Ed.2d 46 (1973), however, the Court of Special Appeals began to limit the application of the rule first articulated in Brown .

In Thornton v. State, 31 Md.App. 205 , 355 A.2d 767 (1976), the court overturned the conviction of an African-American defendant for receiving stolen goods on a ground unrelated to a requested voir dire question. Nonetheless, the court addressed the defendant’s requested question, concerning whether a juror would “not believe a witness because that witness was black.” Id. at 217 , 355 A.2d at 773 . The court reasoned that, in light of the United States Supreme Court’s decisions in Ham and Ristaino , and in light of the Court of Appeals’ language, noted above, in Humphreys (“where prejudice against the Negro race may be a factor”) and in Contee (“a case of this type ... is likely to have aroused some racial feelings”), then “[i]n the absence of some special circumstance warranting an inquiry as to racial prejudice, such examination is not mandated.” Id. at 215, 355 A.2d at 773 . Explicitly limiting Tunstall , the Court of Special Appeals concluded that “[i]t is the circumstances of the case which cause dormant prejudices to stir.” Id. at 216, 355 A.2d at 773 .

This reasoning comports with the view implicit in Ristaino , that a juror could “harbor” prejudice, but that this prejudice would only become operative if the facts of the case ²¹⁸ were likely “to intensify” that prejudice. See Ristaino, 424 U.S. at 597 , 96 S.Ct. at 1021 , 47 L.Ed.2d at 264 . Similarly, in Holmes v. State, 65 Md.App. 428 , 501 A.2d 76 (1985), rev’d on other grounds, 310 Md. 260 , 528 A.2d 1279 (1987), the Court of Special Appeals noted that “special circumstances warranting voir dire as to racial bias must exist before such examination is mandated.” Id. at 438, 501 A.2d at 80-81 . Reviewing previous cases, the court found that these special circumstances exist when “the issue of racial prejudice [is] fairly generated,” and that this occurs “when the complainant and the witnesses for the State are of a different race than the defendant, and the crime involves victimization of another person and the use of violence.” Id. at 438-39 , 501 A.2d at 81 (footnote omitted).

This Court rested its rationale heavily on special circumstances in Bowie v. State, 324 Md. 1 , 595 A.2d 448 (1991). There we reversed the conviction of an African-American defendant for first degree murder and other charges because the trial court had refused to propound a racially specific voir dire question. Citing Holmes, we then stated: “[I]t is patent that the trial court erred in refusing to inquire concerning possible racial prejudice. All but one of the victims and most of the witnesses for the State were white.

On the other hand, appellant is an African-American. Moreover, this case involves the violent victimization of other persons. Consequently, under our cases, inquiry into juror racial bias should have been made.” Id. at 15-16, 595 A.2d at 455 . Thus, at the time of Borne, this Court’s jurisprudence was consistent with that of the United States Supreme Court.

That Court has noted, however, that “[t]he States ... are free to allow or require [voir dire ] questions not demanded by the [United States] Constitution.” Ristaino, 424 U.S. at 597 n. 9, 96 S.Ct. at 1022 n. 9, 47 L.Ed.2d at 265 n. 9. This Court began to do so in Hill v. State, 339 Md. 275 , 661 A.2d 1164 (1995). In Hill , an African-American defendant was convicted by a jury of possession of cocaine and possession with intent to ²¹⁹ distribute. The State’s only witness was a white police officer.

Id. at 277 , 661 A.2d at 1165 . The defendant challenged the conviction based on the trial court’s refusal to inquire into racial bias during voir dire. In an unreported opinion, the Court of Special Appeals had affirmed on the ground that the charges did not reflect the use of violence and thus, under Holmes, failed to present special circumstances. Id. at 278, 661 A.2d at 1166 .

We reversed, despite the lack of interracial violence, holding that “as a matter of Maryland nonconstitu-tional criminal law, ... the refusal to ask a voir dire question on racial or ethnic bias or prejudice under the circumstances of this case constituted reversible error.” Id. at 285 , 661 A.2d at 1169 . In so doing, we embraced “in total[ ] the Aldridge analysis,” and held that “[t]o the extent that our cases and those of the Court of Special Appeals are to the contrary, they are, to that extent, overruled.” Id. The Aldridge analysis, as noted, hinged the necessity of inquiry into racial bias, not on the notion that the factual circumstances of the case generate the issue, but on the possibility of “the bias of the particular jurors who are to try the accused.” Aldridge, 283 U.S. at 314 , 51 S.Ct. at 473 , 75 L.Ed. at 1058 . As the Court stated, “if any one of [the jurors] was shown to entertain a prejudice which would preclude his rendering a fair verdict, a gross injustice would be perpetrated in allowing him to sit.” Id.

Because the focus of Aldridge is on the possible bias of the individual jurors and not on the factual circumstances of the case, our embrace of the Aldridge analysis in Hill was simultaneously a rejection of the “special circumstances” limitation that had developed in both federal and Maryland case law. This return to our earlier jurisprudence responds to at least four factors. First, the cases that the Aldridge Court discussed in arriving at the proposition that a requested voir dire question on racial bias is mandatory were not limited to special circumstances. 4 Prior to Rosales-Lopez , the United States Court of ²²⁰ Appeals for the Fourth Circuit recognized this. See United States v. Gore, 435 F.2d 1110, 1111, 1112 (4th Cir.1970) (stating that “Aldridge does not expressly limit its holding to crimes of interracial violence,” and noting that “the Court derived the rule it announced from sources that did not attach controlling significance to whether or not the crime involved persons of the same race”); see also Rosales-Lopez, 451 U.S. at 197 , 101 S.Ct. at 1639 , 68 L.Ed.2d at 34 (Stevens, J., dissenting) (noting that Aldridge “followed a long line of state-court decisions,” and that neither Aldridge itself nor “the reasoning in the state-court opinions ... relied on such special circumstances”).

The second reason concerns how the racial bias of jurors might impact a verdict. Under the Ristaino rule, it is thought that a juror could be biased, and yet that this juror could evaluate a case involving a minority defendant fairly, unless “[rjacial issues ... [are] inextricably bound up with the conduct of the