Hunt v. State

CHASANOW, Judge. Appellant, Flint Gregory Hunt, was convicted by a jury in the Circuit Court for Baltimore City of the first degree murder of Officer Vincent Adolfo. The jury also convicted Hunt of using a handgun in the commission of a felony or a crime of violence and unlawfully wearing, carrying, or transporting a handgun. The jury sentenced him to death for the murder.

This Court affirmed the murder conviction, but vacated the sentence of death and remanded the case to the circuit court for a new capital sentencing hearing. Hunt v. State, 312 Md. 494, 511 , 540 A.2d 1125, 1133 (1988). We also affirmed the conviction for use of a handgun and vacated the conviction for wearing of a handgun. The jury in Hunt’s second sentencing hearing imposed the death penalty.

The jury found the existence of two aggravating circumstances: that the victim was a law enforcement officer murdered while in the performance of his official duties; and that Hunt committed the murder in an attempt to escape lawful arrest. Some jurors, but not a majority, found two mitigating circumstances: Hunt’s childhood experiences, and a stabbing Hunt suffered while incarcerated on another conviction before Officer Adolfo’s murder occurred. The jury found that the aggravating circumstances outweighed the mitigating circumstances, and sentenced Hunt to death. Hunt appeals that sentence on many grounds, which we will address in turn.

Before doing so, it would be appropriate to reiterate the facts surrounding the murder. “While on patrol the evening of November 18, 1985 at approximately 5:20 p.m., Officer Vincent Adolfo noticed a new Cadillac with a missing window covered with plastic. ⁴⁰² In addition to the driver, the vehicle contained three other occupants. The officer, following a routine stolen car inquiry, learned that the car had been stolen. He broadcast a description of the occupants of the car and noted that the driver was ‘not breaking any laws right now.' Two officers in separate patrol cars, responding to Officer Adolfo’s request for back-up, attempted to block the path of the on-coming Cadillac. Upon nearing the road-block, the driver, later identified as Hunt, jumped out of the car while it was still moving and ran up a nearby alley.

The Cadillac then struck one of the parked patrol cars and stopped; an officer detained the three passengers who were still in the car. Officer Adolfo pursued Hunt into the alley. Upon apprehending him, the officer positioned him against a wall and tried to handcuff Hunt. Hunt pushed away, knocking the officer off balance.

Hunt then pulled a .357 Magnum from his jacket and shot Officer Adolfo in the chest at close range. Within seconds, as the officer reeled from the first shot, Hunt shot him again, this time in the back. Hunt fled the scene of the crime. Officer Adolfo was pronounced dead at the hospital at 6 p.m.

In the meantime, Hunt had called his friend, Angelo Williams, and asked him to keep the gun for him, saying that he had just shot a policeman. Hunt and his girl friend, Deborah Powell, then went to his sister’s house, only to leave when a television broadcast indicated that Hunt was being sought in connection with the murder. * * * * * * The next day, Hunt and Powell drove to Camden, New Jersey. En route, Hunt admitted to Powell that he had shot the policeman. Hunt then boarded a bus to Santa Monica, California, leaving Powell behind.

He was apprehended at a Tulsa, Oklahoma bus station five days later.” Hunt, 312 Md. at 498-99 , 540 A.2d at 1126-27 . Hunt was returned to Baltimore, where on June 30, 1986, he was convicted of murdering Officer Adolfo, of using a handgun ⁴⁰³ in the commission of a felony or a crime of violence, and of unlawfully wearing, carrying, or transporting a handgun. Following his conviction and first sentencing hearing, Hunt was assigned to the Maryland Penitentiary to serve his prison sentence and await the decision on his appeal. While in prison, Hunt committed a series of violations which led to his being isolated from other prisoners and to the loss of good time credits.

Guards twice found Hunt in possession of knives. On one occasion the guards found a homemade weapon in a light fixture in Hunt’s cell. On another, prison guards saw a knife fall out of Hunt’s underwear. Hunt also feigned an illness so that he would be transported to the hospital.

He later wrote to a fellow inmate that he had pretended to be ill to “see what my chances for freedom were.” During the second sentencing hearing, when the judge became aware of Hunt’s prison behavior, particularly the attempt to “see what my chances for freedom were,” he held a hearing and then ordered Hunt to wear leg irons for the duration of the proceeding. The resentencing jury heard evidence regarding the murder of Officer Adolfo and of Hunt’s subsequent prison behavior. The jury was given a presentence investigation report detailing Hunt’s long criminal history, which included convictions for armed robbery, larceny, and other crimes. Hunt offered evidence of a troubled childhood, a history of drug abuse, the probability that he was high on drugs when he shot Officer Adolfo, and a stabbing he suffered while incarcerated at the Maryland Correctional Institution in Hagerstown.

He exercised his right of allocution, and expressed remorse for killing Officer Adolfo. The jury found that the aggravating circumstances outweighed the mitigating circumstances and sentenced Hunt to death. I. FAILURE TO INFORM JURY OF HUNT’S HANDGUN SENTENCE Hunt contends that the trial judge erred in refusing to either instruct the jury that Hunt had already been sen ⁴⁰⁴ tenced to 20 years in prison for using a handgun in the murder of Officer Adolfo, or to reopen the case so that Hunt could offer evidence of the sentence. In the alternative, Hunt argues that his trial counsel was ineffective in failing to offer the evidence during his case in chief.

A defendant in a death penalty sentencing hearing may offer any relevant and competent information that would aid the jury in assessing the legal and practical effect of a sentence less than death. Doering v. State, 313 Md. 384, 411-12 , 545 A.2d 1281, 1295 (1988). A separate sentence for another crime might have a mitigating effect on the jury. Harris v. State, 312 Md. 225, 251 , 539 A.2d 637, 650 (1988) (Harris V, because this was Harris’ fifth appeal in this Court).

A jury, concerned that a defendant be properly punished and not have a chance for an early parole, might find a longer prison stay to be an acceptable alternative to the death penalty. Hunt could have, as part of his evidence of mitigation, offered proof of the handgun sentence. Had he done so, the evidence would have been admissible. In fact, the prosecutor conceded that he would not have objected to such an offer.

But Hunt failed to do so, despite ample opportunity throughout his case in chief. Hunt’s belated attempt to make the jury aware of the handgun sentence after both sides had rested their cases was subject to the discretion of the judge. A. Hunt’s Request for a Jury Instruction Hunt first asked that the judge take judicial notice of the handgun sentence and instruct the jury that: “Mr. Hunt has already received a 20 year sentence for a handgun violation that was related to the offense in this case. That sentence will be served in addition to a sentence of life should your sentence be life imprisonment.” The judge properly refused the requested instruction.

The proposed instruction was misleading. It asserted that ⁴⁰⁵ the defendant would serve 20 years in prison in addition to the life sentence the jury might impose for the murder conviction. A consecutive sentence could extend the mandatory minimum time Hunt would have had to serve before being considered for parole; a concurrent sentence would not have the same effect. The judge had no obligation to make the life sentence consecutive to the handgun sentence, and could not declare whether it would be consecutive or concurrent until the defendant had an opportunity to present an allocution.

In addition, if the judge had given the proposed instruction, the State would have had no opportunity to rebut or explain the effect of the 20 year sentence. The jury could have only guessed as to the actual impact of the sentence, and its effect on Hunt’s parole eligibility. A defendant has no right to an instruction that is inaccurate. Collins v. State, 318 Md. 269, 290 , 568 A.2d 1, 11 , cert. denied, — U.S. - — , 110 S.Ct. 3296 , 111 L.Ed.2d 805 (1990).

Hunt’s requested instruction was potentially misleading and the judge did not abuse his discretion in refusing the instruction. B. Hunt’s Request To Reopen His Case Failing to receive the instruction, Hunt sought to have the judge reopen the case so that he could offer evidence of the sentence. The trial judge has wide discretion in the conduct of a trial. Smith v. State, 299 Md. 158, 179 , 472 A.2d 988, 998 (1984).

The reopening of a case is within the trial judge’s discretion and a denial of a motion to reopen will not be disturbed on appeal unless there is an abuse of discretion. Stansbury v. State, 218 Md. 255, 262 , 146 A.2d 17, 22 (1958). See also McCloud v. State, 77 Md.App. 528, 535-36 , 551 A.2d 151, 155 , modified, 317 Md. 360 , 564 A.2d 72 (1989) (within the judge’s discretion to deny defendant’s request to reopen case for purpose of giving testimony in his own defense). The trial judge had ample reasons to deny Hunt’s request.

The trial had already reached the instructions phase. Both the State and defendant had rested. Had the ⁴⁰⁶ judge allowed the defendant to reopen the case in order to present evidence of the handgun sentence, the State might also have sought the opportunity to rebut and explain the effect of parole and good time credits on the 20 year sentence. This might have delayed the jury’s deliberations and “unduly stressed the testimony in question____” Noel v. State, 202 Md. 247, 252 , 96 A.2d 7, 10 (1953).

It was a proper exercise of judicial discretion for the trial judge to refuse to allow the defendant to re-open his case. We should also note that the trial judge’s failure to grant Hunt’s requests did not result in undue prejudice to Hunt. If the handgun sentence had been introduced and explained, the jury would have discovered that Hunt may have served little or no additional time in prison as a result of this sentence. First, the judge would have had to tell the jury that the handgun sentence might be served concurrently or consecutively to the murder sentence.

Second, the death penalty sentencing commenced on November 30, 1988. Hunt had been in custody since November 23, 1985, and he could have been eligible for parole on the handgun sentence as early as January 27, 1990. 1 Hunt established through testimony at the hearing that, if the jury sentenced him to life imprisonment, he could not be considered for parole until he served at least 25 years less up to 6 years time off for good behavior. Failure to establish that the earliest possible parole date should be in approximately 20 years rather than 19 years would not tip the scales and cause the jury to “believe that death may not be appropriate.” Foster v. State, 304 Md. 439, 475 , 499 A.2d 1236, 1254 (1985), cert. denied, 478 U.S. 1010 , 106 S.Ct. 3310 , 92 L.Ed.2d 723 (1986). C. Ineffective Assistance Of Counsel Hunt’s alternative argument is that his trial attorney’s failure to introduce the handgun sentence into evi ⁴⁰⁷ dence constitutes ineffective assistance of counsel.

Defense counsel’s failure to introduce evidence of the sentence earlier in the trial may have been trial strategy. A collateral hearing on the issue, more appropriately conducted in a post conviction proceeding, would be necessary to determine whether counsel was ineffective. Harris v. State, 299 Md. 511, 517 , 474 A.2d 890, 893 (1984) (Harris II, because this was Harris’ second appeal in this Court). Unlike the case in Harris II, we are not “presented with a unique set of facts which justifies resolution of the ineffective assistance of counsel claims in a proceeding other than one under the post conviction procedure statute.” Id. at 518 , 474 A.2d at 893 .

II

SHACKLING OF HUNT Hunt next contends that the trial judge erred by requiring him to wear leg irons during the sentencing hearing. The issue of shackling a defendant in a death penalty sentencing hearing has been addressed rarely. This Court considered the issue in Bowers v. State, 306 Md. 120 , 507 A.2d 1072 , cert. denied, 479 U.S. 890 , 107 S.Ct. 292 , 93 L.Ed.2d 265 (1986). In Bowers, we held that the trial judge did not abuse his discretion in ordering that Bowers wear leg irons during his death penalty sentencing hearing.

The issue was discussed extensively in two other death penalty cases. In Duckett v. State, 752 P.2d 752 (Nev. 1988), the trial court had ordered the defendant to wear manacles and prison garb during the penalty phase of the trial after he had been convicted of a double murder. The Nevada Supreme Court sustained the trial judge’s action. The court’s opinion focused on the fact that the defendant was no longer entitled to the presumption of innocence, as well as the need to protect society from a convicted defendant who “might have concluded that he had nothing to lose from further acts of violence.” Id. at 755 .

In Elledge v. State, 408 So.2d 1021 (Fla.1981), cert. denied, 459 U.S. 981 , 103 S.Ct. 316 , 74 L.Ed.2d 293 (1982), the ⁴⁰⁸ trial judge ordered that the defendant wear leg irons during a death penalty hearing after learning that the defendant had stated his intention to attack the bailiff and had also become proficient in karate. The defendant was sentenced to death. The Florida Supreme Court affirmed the death penalty. The Court of Appeals for the Eleventh Circuit, in a habeas corpus proceeding, however, reversed the death penalty.

That court held that the shackling was inherently prejudicial and that the trial judge failed to provide the defendant with an opportunity to rebut the evidence offered as a justification for the shackling. 2 Elledge v. Dugger, 823 F.2d 1439, 1451-52 , modified, 833 F.2d 250 (11th Cir.1987), cert. denied, 485 U.S. 1014 , 108 S.Ct. 1487 , 99 L.Ed.2d 715 (1988). We begin our analysis by noting that the trial judge has broad discretion in maintaining courtroom security. “The courts uniformly rely upon an abuse of discretion standard for reviewing the action of trial judges in the matter of restraint____” Bowers 306 Md. at 132 , 507 A.2d at 1078 . The reviewing court should not determine whether less stringent security measures were available to the trial court, but rather whether the measures applied were reasonable and whether they posed an unacceptable risk of prejudice to the defendant. Bruce v. State, 318 Md. 706, 721 , 569 A.2d 1254, 1262 (1990).

The risk of prejudice varies with the security measure. Some measures are inherently prejudicial and may be used only when there is a compelling state interest specific to the trial. Holbrook v. Flynn, 475 U.S. 560, 568-69 , 106 S.Ct. 1340, 1346 , 89 L.Ed.2d 525, 534 (1986). Placing a defendant under physical restraints such as leg irons at a ⁴⁰⁹ guilt/innocence trial is an inherently prejudicial measure and requires a compelling state interest.

Bruce at 721 , 569 A.2d at 1262 . This is true because “one accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on grounds of official suspicion, indictment, continued custody, or other circumstances not adduced at trial.” Taylor v. Kentucky, 436 U.S. 478, 485 , 98 S.Ct. 1930, 1934 , 56 L.Ed.2d 468, 475 (1978). When the presumption of innocence is lost as the result of a conviction, there is less risk of prejudice at the sentencing hearing. Bowers at 136-38 , 507 A.2d at 1080-81 .

See generally Elledge v. Dugger, 823 F.2d at 1451 & 1453; Elledge v. State, 408 So.2d at 1022-23 ; Duckett, 752 P.2d at 754-55 . Shackling a defendant during the guilt/innocence phase of trial is inherently prejudicial because it highlights the “need to separate a defendant from the community at large____” Holbrook v. Flynn, 475 U.S. at 569 , 106 S.Ct. at 1346 , 89 L.Ed.2d at 534 . This concern is not as great during the sentencing hearing. It is clear that the defendant will be separated from the community.

The only issue is whether the defendant will receive the death penalty or life imprisonment. The defendant’s guilt of first degree murder is established and the jury is less likely to be prejudiced by the defendant’s appearance in leg irons. The defendant “stands in the position of a convicted felon brought before a trial court for sentencing. He thus is unlike the ordinary defendant who at trial stands clothed with a presumption of innocence.” Bowers at 132 , 507 A.2d at 1078 .

Because of this, other state interests may outweigh any prejudice to the defendant. The most obvious is the State’s interest in maintaining custody of a convicted murderer. Perhaps no other defendant appearing before the court has a greater incentive to attempt escape than a convicted murderer facing the possibility of being executed. His “best” hope is a life sentence.

We must determine whether there was an essential state interest in ordering this appellant to wear leg irons during ⁴¹⁰ his sentencing hearing and whether, weighed against the state interest, the order posed an unacceptable risk of prejudice. The prejudice posed by security measures, and whether a compelling state interest outweighs that prejudice, must be measured on a case by case basis. Bruce, 318 Md. at 721 , 569 A.2d at 1262 . There are three essential state interests which may justify physically restraining a defendant: Preventing the defendant’s escape, protecting those in the courtroom, and maintaining order in the courtroom.

Unless one or more of these factors outweigh any prejudice to the defendant, physical restraint is inappropriate. The record shows that Hunt was a significant escape risk. He fled the scene and left the State after murdering Officer Adolfo. While in prison, he feigned an illness so that he would be sent to the hospital to “see what my chances were for freedom.” Also, the appellant showed an inability to adjust to prison life, reflected by several prison rules violations and his resultant continuous confinement to segregated quarters.

He was twice cited for possession of weapons. 3 Finally, the sentencing proceeding was held in a windowed, street level courtroom which might have provided temptation for an escape attempt. See Billups v. Garrison, 718 F.2d 665 (4th Cir.1983), cert. denied, 469 U.S. 820 , 105 S.Ct. 91 , 83 L.Ed.2d 37 (1984), where the court found that the combination of a relatively insecure area and the more than average risk of escape satisfied the use of shackles on a defendant in an armed robbery and felonious assault trial. Given the factors taken as a whole, we cannot say that the trial court abused its discretion in determining that appellant was an escape risk and that the need for some physical restraints outweighed any potential prejudice to Hunt. ⁴¹¹ Hunt contends that the trial judge did not explain his reasons for requiring leg irons. Also, he contends that the trial judge’s decision was based solely on the unsupported opinion of Judge Angeletti.

He raises two important issues. First, the trial judge should insure that the record reflects the reasons for extraordinary security measures such as physical restraints. Bowers, 306 Md. at 138 , 507 A.2d at 1081 . Second, while the trial judge has broad discretion for courtroom security, he or she may not delegate that discretion to a third party.

United States v. Samuel, 431 F.2d 610, 615 (4th Cir.1970). A. Reasons For The Measures Should be in the Record The record does not contain a summary list of reasons, but nonetheless is replete with support for the judge’s decision. From the outset of the resentencing hearing, he was concerned with courtroom security. The same judge had presided over the original trial and was aware of Hunt’s background.

He knew that Hunt had a record of violent crime 4 and that a psychiatric report indicated that Hunt had an anti-social personality. Hunt, 312 Md. at 505-06 , 540 A.2d at 1130 . At the original trial, the judge ordered enhanced security in the form of additional officers in the courtroom. Id. at 506 , 540 A.2d at 1130 .

He ordered similar security at the resentencing hearing. The judge ordered Hunt to wear leg irons during the sentencing hearing after receiving a presentencing investigation report and after hearing the testimony of Judge Angeletti, chair of the court’s security committee. The report and Judge Angeletti’s testimony appear in the record. When the judge issued his order, he stated: “With respect to what just transpired ...

I’m ordering that Mr. Hunt wear leg irons in the courtroom.” Clearly, the judge based his decision on the immediately preceding record, which included Judge Angeletti’s testimony recommending restraints for Hunt, as well as the presentence investigation ⁴¹² report. The judge also referred to the presentencing report as a key factor in reassessing the need for leg irons. He stated that the presentencing report “changes things considerably.” We hold that the judge adequately indicated his reasons for ordering Hunt to wear leg irons in court. B. Trial Judge Did Not Delegate Discretion Hunt also contends that the judge relied solely on Judge Angeletti’s opinion, and thus improperly delegated his discretion.

The record indicates otherwise. The trial judge did not fail to exercise his discretion and did not delegate that discretion to Judge Angeletti. That the trial judge was concerned with security before consulting with Judge Angeletti is clear from the record. He had previously ordered enhanced security.

In fact, he consulted with Judge Angeletti only after receiving the presentencing report. He carefully considered the security requirements throughout the proceedings, and ordered the appellant to wear leg irons only after receiving the presentencing report which added significant information on the issue, as well as hearing Judge Angeletti explain, on the record in open court, his reasons for recommending physical restraints. The trial judge did not rely solely on, nor delegate his discretion to, Judge Angeletti. The trial judge’s decision to change the level of courtroom security was not mere acquiescence to a recommendation, but rather a “mature reflection based upon somewhat different conditions.” Bowers, 306 Md. at 138 , 507 A.2d at 1081 .

We also note that by ordering leg irons, the judge employed a restraint obviously designed to prevent escape, but not designed to prevent acts of violence by the defendant. This is a lesser restraint than handcuffs, and accordingly, less prejudicial. The American Bar Association’s Standards for Criminal Justice (2d Ed. 1982) § 15-3.1(c), as cited in Bowers, 306 Md. at 129 , 507 A.2d at 1076 , notes in commentary that “[tjhere is some authority that shackles are not to be used if the danger can be overcome by armed ⁴¹³ guards and that handcuffs are not to be used if less visible leg irons will suffice.” That the judge’s decision to change the level of security occurred after the trial started, and after the jury had first seen Hunt without shackles, causes some concern. But because the decision was made promptly after receiving relevant new information contained in the presentence report, the judge properly exercised his discretion.

Although it would be preferable that the defendant be restrained from the beginning of the trial, if at all, the judge cannot be precluded from taking appropriate security measures when new information or circumstances arise. See State v. Weikle, 223 Neb. 81 , 388 N.W.2d 110 (1986) (no error where trial judge ordered a previously unrestrained defendant to wear leg irons during the appearance in court of inmate witnesses after the judge had heard testimony that the defendant contemplated another escape attempt). C. Procedural Protections When considering extraordinary security measures, the trial judge should employ procedural protections to minimize the possibility of prejudice to the defendant. Such procedures should include hearing any argument on the issue out of the presence of the jury, affording the defendant an opportunity to rebut, and upon request, issuing cautionary instructions to the jury or polling the jurors to determine if they would be disposed against the defendant because of the security measures.

See Bowers, 306 Md. at 129-34 , 507 A.2d at 1076-79 . The trial judge provided adequate procedural protections. The argument was held outside the jury’s presence. Hunt’s counsel had the opportunity to argue against the use of physical restraints, and had the opportunity to cross-examine Judge Angeletti.

Hunt did not offer any evidence to rebut the reports of prison violations. Hunt did, however, attempt to rebut the escape risk status by ⁴¹⁴ arguing that he had been taken to his psychiatrist’s office and to court without previous incident. Hunt may have been entitled to, and the trial judge offered to give, cautionary instructions to the jury about the leg irons. The judge also offered to poll the jurors on whether they would be prejudiced by seeing Hunt in leg irons.

Hunt’s counsel, making a strategic decision, specifically asked that the judge do neither. Having rejected the judge’s offer, Hunt cannot now complain about the failure to poll the jury or the failure to give a cautionary instruction.

III

JURY SELECTION Hunt contends that the trial judge erred in refusing to excuse five jurors for cause. He maintains that this forced him to exhaust all of his peremptory challenges and, as a result, one juror was seated who should have been excluded for cause. Hunt also contends that the trial judge improperly excluded one prospective juror for cause. Hunt’s objection to the five jurors not excluded for cause was that they were predisposed to vote for the death penalty (the so-called “reverse Witherspoon” situation).

See Spivey v. State, 253 Ga. 187 , 319 S.E.2d 420, 430 (1984), cert. denied, 469 U.S. 1132 , 105 S.Ct. 816 , 83 L.Ed.2d 809 (1985). In Witherspoon v. Illinois, 391 U.S. 510 , 88 S.Ct. 1770 , 20 L.Ed.2d 776 (1968), the Supreme Court held that a prospective juror could not be excluded for cause from a case simply because the juror expressed a general objection to the death penalty. Id. at 522 , 88 S.Ct. at 1776-77 , 20 L.Ed.2d at 785 . Counsel have not cited, and we have not found any Supreme Court decisions directly involving the reverse Witherspoon situation, but the Court’s refinements of Witherspoon provide guidance on the general topic of juror predisposition, albeit in the Witherspoon context.

The Supreme Court has held that the proper standard for determining whether a juror may be excused for cause when the juror has a predisposition against the death penal ⁴¹⁵ ty, is “whether the juror’s views [on capital punishment] would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ” Wainwright v. Witt, 469 U.S. 412, 424 , 105 S.Ct. 844, 852 , 83 L.Ed.2d 841, 851-52 (1985). This standard, essentially, is that jury impartiality requires only “jurors who will conscientiously apply the law and find the facts.” Wainwright, 469 U.S. at 423 , 105 S.Ct. at 852 , 83 L.Ed.2d at 851 . This Court applied the Witt standard in a Witherspoon situation in Grandison v. State, 305 Md. 685, 725 , 506 A.2d 580, 600 , cert. denied, 479 U.S. 873 , 107 S.Ct. 38 , 93 L.Ed.2d 174 (1986). We noted that the trial judge’s decision would be given deference, and that the prospective juror’s bias need not be proven with unmistakable clarity before the juror could be excused for cause.

Id. We shall apply the same standards to the reverse Witherspoon situation. Jurors who have a bias in favor of the death penalty that would prevent or substantially impair their performance as jurors should be excused. Jurors who may have an inclination to favor the death penalty, but who would nevertheless conscientiously apply the law, need not be excused.

See State v. McDougald, 120 N.J. 523 , 577 A.2d 419, 436 (1990); Spivey, 319 S.E.2d at 430-31 . The trial judge’s factual determinations about the extent of a juror’s bias must be given deference. Grandison, 305 Md. at 725 , 506 A.2d at 600 . A. Five Jurors Not Excluded for Cause The trial judge gave counsel a virtually unlimited opportunity to question the individual jurors on their beliefs about the death penalty, as well as their beliefs about aggravating and mitigating circumstances.

The judge also made clear that his decision to grant or deny a motion to strike would be based upon the totality of responses given by that prospective juror. The trial judge denied Hunt’s motions to strike five prospective jurors who expressed an ⁴¹⁶ inclination toward the death penalty. Only one of these five actually served on the jury. 1. Jeffrey Pauli Prospective juror Pauli testified on direct examination that his beliefs would preclude him from voting for a sentence other than death for a defendant convicted of first degree murder.

On cross examination, however, he retreated from his initial statement and testified that “I think I could weigh all of those factors in my mind.” He also said that “I couldn’t possibly make up my mind until I heard the facts presented.” These statements support the trial judge’s decision that juror Pauli could have performed his “ ‘duties as a juror in accordance with his instructions and his oath.’ ” Wainwright v. Witt, 469 U.S. at 424 , 105 S.Ct. at 852 , 83 L.Ed.2d at 851 -52 (quoting Adams v. Texas, 448 U.S. 38, 45 , 100 S.Ct. 2521, 2526 , 65 L.Ed.2d 581, 584 (1980). The fact that Pauli’s assertions were made during cross examination and that they conflicted with the answers given on direct examination is not dispositive of the issue because a prospective juror may be rehabilitated through additional questioning. Grandison v. State, 305 Md. at 726 , 506 A.2d at 600 . The trial judge did not abuse his discretion in refusing to excuse juror Pauli for cause.

Hunt exercised peremptory challenges to excuse Pauli, as well as the next three jurors that Hunt contends should have been excused for cause. 2. Henry Doyle Prospective juror Doyle testified that he would be predisposed to vote for the death sentence based upon the defense counsel’s definition of murder and particularly in the case where the victim was a police officer. But he also indicated that he believed that he could listen to the evidence, apply the law, and come to a fair verdict based solely on the evidence. In fact, juror Doyle’s testimony that “each instance would be different, and based on whatever those instances, those facts were, I would make an independent ⁴¹⁷ decision,” was very much in keeping with the principle of individualized determination that underlies death penalty jury selection.

The trial judge did not abuse his discretion in finding that Doyle could have impartially performed his duties. 3. Jeffrey Nesson Prospective juror Nesson was a criminal defense lawyer. He testified that the fact that the victim was a police officer did not predispose him in favor of the death penalty, but it “certainly doesn’t help.” Hunt’s major complaint with Nesson was his expression of unwillingness to consider voluntary use of drugs to be mitigating. When first asked about whether drug use by Hunt would be a mitigating factor, Nesson stated: “It depends on why he was using them.

If it is strictly voluntary use, I don’t know that it would mitigate the crime.” Later in the voir dire, he stated: “[Vjoluntarily taking drugs and going out and shooting someone does not mitigate [the crime] ... I think it aggravates it, not mitigates it.” He did, however, indicate that he could impose punishment in accordance with the law. Hunt’s contention seems to be that jurors should be excused for cause if they might have some bias against any unenumerated circumstance that a defendant wishes to argue ought to be mitigating. Such a contention is far beyond the Witt standard and we decline to apply it.

The death penalty statute grants jurors the discretion to find the existence of mitigating circumstances other than the seven enumerated. A jury would not be impartial if it was composed exclusively of jurors predisposed to find as mitigating the factors or circumstances the defendant intends to argue ought to be mitigating. The statute was intended to provide jurors with the flexibility to find mitigating factors that the legislature may not have enumerated. It was not intended to guarantee the defendant a jury that always agrees with his argument as to what circumstances ⁴¹⁸ ought to be mitigating.

It was not error for the trial judge to refuse to excuse juror Nesson. 4. Joan Bodley Prospective juror Bodley testified that she might be more inclined to impose the death penalty if she thought the defendant might be paroled in a “short time” or in “a few years.” She also testified as follows: “Q. Okay. If you hear evidence that Mr. Hunt was both addicted to drugs and, in fact, under the influence of drugs at the time this incident occurred, would you be willing to consider that evidence as a reason to not impose the death penalty or to impose a sentence of life? A. No. Q. You would not be willing to consider it?

A. You mean the fact that he was on drugs should get him life imprisonment instead of the death penalty? Is that what you are asking? Q. Yes. Would you be willing to consider that evidence?

A. No.” Bodley testified that her views on the death penalty were not strong either way, and that the death penalty “could be applied in some instances and not applied in others.” It was not error for the trial judge to refuse to excuse her for cause. 5. Diana Void Diana Void served on the jury after the trial judge denied the defendant’s motion to excuse her for cause. Her presence on the jury is crucial in our analysis because “any claim that the jury was not impartial ... must focus ... on the jurors who ultimately sat.” Ross v. Oklahoma, 487 U.S. 81, 86 , 108 S.Ct. 2273, 2277 , 101 L.Ed.2d 80, 88 (1988). Void was certainly a confused juror.

This does not mean that she should have been excused for cause. Void testified ⁴¹⁹ that she would vote for the death penalty in every case of murder, and every murder where a handgun was used to kill a police officer. But she then testified that she had already made up her mind to vote for a life sentence for Hunt, and would vote for a life sentence regardless of whatever information was provided during the course of the trial. She testified that it would make a difference to her that a handgun was used, but later testified that the weapon made no difference at all.

She was also willing to consider many unenumerated mitigating circumstances, including evidence of prison conditions, drug use, and childhood abuse of the defendant. Ultimately, Void testified that she was willing to base her conclusion on the evidence and on the law as explained by the judge. This testimony supported the trial judge’s decision to not exclude her for cause. It appears from the record that Ms. Void was somewhat confused and often inconsistent but on balance, she was not predisposed to impose the death penalty.

B. Excused Juror The trial judge granted the State’s motion to exclude for cause prospective juror Herman Meyer. Meyer was a cousin of the attorney who represented Hunt on his first appeal. Meyer described his relationship with his cousin as “close,” but he did not indicate that he knew that his cousin had represented Hunt. The prosecutor did not object to Meyer during voir dire, but later, after becoming aware that the cousin had represented Hunt, he moved to dismiss Meyer.

A trial judge should not excuse prospective jurors for cause simply because of the juror’s abstract beliefs. King v. State, 287 Md. 530, 539 , 414 A.2d 909, 913 (1980). We agree that excusing jurors for cause because of their abstract beliefs is an abuse of discretion because it “exclude[s] from the panel a significant part of the community.” Id. But Meyer was excused not because of any abstract beliefs, but rather because of his “close” personal relationship with someone “having a strong personal interest in [the case’s] outcome.” Cf.

Bristow v. State, 242 Md. ⁴²⁰ 283, 285, 219 A.2d 33, 34 (1966). The judge made that clear, saying: “I felt that the relationship where the cousin works right on this very same brief, has [intimate] knowledge of the case and the close relationship, I felt that it was grounds for excluding this person as a juror.” It is not an abuse of discretion when the judge makes a considered decision to excuse a juror based on potential personal prejudice. It was within the judge’s broad discretion to exclude Meyer. Hunt also contends that it was error to excuse Meyer without making further inquiry of the juror.

The judge was faced with a dilemma. Further inquiry might be helpful in determining whether Meyer could be impartial, but the questioning itself could have tainted the juror by informing him directly or indirectly about the prior appeal and about his cousin’s representation of Hunt. The judge’s failure to further interrogate Meyer was not an abuse of discretion. Even if the judge abused his discretion in this case, we would not hold that the abuse constituted reversible error. “ ‘[I]t is not reversible error for the Court of its own motion to exclude a juror, even for insufficient cause, if an unobjectionable jury is afterwards obtained (emphasis supplied).’ ” King, 287 Md. at 538 , 414 A.2d at 913 (quoting Bluthenthal & Bickart v. May Co., 127 Md. 277, 285-86 , 96 A. 434, 438 (1915)).

This principle is applicable where, as here, the reason for excusing a juror is related to the particular juror and not to a general class of people. Id. The exclusion of Meyer, even if for insufficient cause, would not constitute reversible error where, as here, the jurors who were selected were not objectionable.

IV

TESTIMONY OF AARON MCNAIR Hunt contends that the trial judge erred in permitting Aaron McNair, an eyewitness to Officer Adolfo’s murder, to testify that he was released from prison for “protec ⁴²¹ tion.” On cross-examination, defense counsel attempted to show that McNair had received favorable treatment from the State, including release from jail on a disorderly conduct charge unrelated to this case, in return for his testimony. On re-direct examination, when asked why he had been released from jail, McNair replied, “protection.” Counsel for the defense objected, and at a bench conference, the judge told the prosecutor, “you are treading on thin ice.” After defense counsel indicated his concern about where the questioning was leading, the prosecutor volunteered to go on to other matters. McNair was asked no more questions on the issue. Hunt now argues that the jury was left with the impression that McNair was released from jail for protection from Hunt.

But at trial, he did not raise the issue beyond his objection to McNair’s answer. He did not ask the court to strike McNair’s answer. He did not move for a mistrial. He did not ask for cautionary instructions.

After the judge effectively sustained his objection by warning the prosecutor, Hunt remained silent. Hunt got everything he asked for. The trial judge did not commit error by failing to give Hunt more than he asked for. 5 McLain, Maryland Evidence, § 103.10 at 30 (1987). Even if Hunt had properly and timely sought curative action, we would find no reversible error.

As appellant concedes in his brief, there was no evidence that McNair’s need for protection was linked to Hunt. The “naked reference” to McNair’s need for protection did not prejudice Hunt. Jones v. State, 310 Md. 569, 588 , 530 A.2d 743, 752 (1987), sentence vacated and remanded, 486 U.S. 1050 , 108 S.Ct. 2815 , 100 L.Ed.2d 916 , sentence rev’d, 314 Md. 111 , 549 A.2d 17 (1988). V. TESTIMONY OF MAJOR THOMPSON A. Blood on Knife Recovered from Hunt Hunt next alleges that the trial judge erred when he denied Hunt’s motion for a mistrial during the testimony ⁴²² of Major Hollis Thompson, Chief of Security at the Maryland Penitentiary.

Major Thompson when testifying about a knife that was recovered from Hunt’s cell, stated that the knife had “a lot of blood on it.” Upon objection by defense counsel, the trial judge instructed the jury to disregard Major Thompson’s statement about the blood, but denied Hunt’s motion for a mistrial. Hunt argues that Major Thompson’s testimony was so prejudicial that only mistrial could cure the damage. “[T]he declaration of a mistrial is an extraordinary act which should only be granted if necessary to serve the ends of justice.” Jones, 310 Md. at 587 , 530 A.2d at 752 . This Court has recognized that granting a motion for a mistrial lies within the discretion of the trial judge. Poole v. State, 295 Md. 167, 183 , 453 A.2d 1218, 1227 (1983).

The trial judge, who hears the entire case and can weigh the danger of prejudice arising from improper testimony, is in the best position to determine if the extraordinary remedy of a mistrial is appropriate. We will not reverse a trial court’s denial of a motion for mistrial unless the defendant was so clearly prejudiced that the denial constituted an abuse of discretion. Johnson v. State, 303 Md. 487, 516 , 495 A.2d 1, 16 (1985), cert. denied, 474 U.S. 1093 , 106 S.Ct. 868 , 88 L.Ed.2d 907 (1986) (Johnson II). We hold that Hunt was not so clearly prejudiced that the judge’s denial of a mistrial constituted an abuse of discretion.

There was no suggestion that Hunt had used this knife or any other weapon to assault any inmate or guard, nor is there any suggestion that, if the substance was in fact blood, it was not Hunt’s. The judge took curative action when he instructed the jury to disregard Major Thompson’s testimony about blood on the knife. This action of “striking the single reference” to blood on the knife in Thompson’s testimony sufficiently cured any prejudice that may have occurred. Collins, 318 Md. at 287 , 568 A.2d at 9 . ⁴²³ B. Major Thompson’s Opinion of Hunt’s Dangerousness Hunt contends that the trial judge erred in admitting Major Thompson’s opinion that Hunt was “dangerous.” After Major Thompson had testified about Hunt’s behavior in prison and about prison disciplinary procedures, he testified as follows: [STATE’S ATTORNEY]: “Have you made a decision about Flint Gregory Hunt?

A. Yes. Q. What do you consider him? A. Oh, he’s dangerous. He’s dangerous. [DEFENSE ATTORNEY]: Objection, Your Honor.

THE COURT: Overruled.” Hunt’s only contention on appeal is that there was no “evidentiary basis” for Major Thompson’s opinion on this issue. We initially point out that once again Hunt’s attorney merely objected to the answer. He did not ask the court to strike the testimony, did not move for a mistrial, and did not ask for a cautionary instruction. Even if Hunt had sought curative action, we would find no reversible error.

Hunt’s contention on appeal is not that the opinion was improper, but that Major Thompson was not competent to express the opinion. Hunt acknowledges that the opinion was “related to an important mitigating factor.” A witness must have an adequate basis for an opinion about the character of another before the opinion may be admitted into evidence. Durkin v. State, 284 Md. 445, 453 , 397 A.2d 600, 605 (1979). The trial judge determines whether the witness satisfies this requirement, and the judge’s determination will not be overturned absent a clear abuse of discretion.

Id. The jury heard a great deal of evidence on the issue of Hunt’s “dangerousness.” Mitigating circumstances number 7 was “[i]t is unlikely that the defendant will engage in further criminal activity that would constitute a continuing threat to society.” Hunt called as a witness Gordon Kam ⁴²⁴ ka, the former Secretary for Public Safety. Mr. Kamka was questioned about his opinion as to whether or not Hunt would be a danger within the institution. “Q. Do you have an opinion, sir, as an expert in correctional administration whether Mr. Hunt is a danger in the institution? A. I do have an opinion.

Q. Can you tell the ladies and gentlemen of the jury what that is? A. I don’t believe he is a danger inside the institution. He is a problem to the correctional staff, in that he has a number of disciplinary reports, a number of tickets, is what we call them, but I see no indication that he is any particular danger to himself or to other people. A problem, yes; irritant, yes; danger, in my opinion, no.” The trial judge did not abuse his discretion by determining that Major Thompson had an adequate basis for forming an opinion about Hunt’s dangerousness.

Certainly, Major Thompson was as qualified as defense witness Kamka. Mr. Kamka met Hunt once, and reviewed his records. Major Thompson had 16 years of experience as a correctional officer. He was Chief of Security for the Maryland Penitentiary.

As a security officer, he was aware of Hunt’s many infractions in the penitentiary. Major Thompson received reports on Hunt’s violations of the rule prohibiting possession of weapons. He knew that Hunt was placed in segregation status for those violations. Major Thompson’s testimony was specifically about Hunt’s dangerousness in the prison, not Hunt’s general capacity for dangerousness.

Major Thompson was qualified to form and offer an opinion on the subject.

VI

ADMISSION OF THE VICTIM’S EFFECTS The State introduced into evidence Officer Adolfo’s ballistic vest, police revolver, police uniform buttons, holster, gun belt, walkie talkie, and tie. Hunt argues that the ⁴²⁵ State introduced this evidence to induce an emotional response and that the evidence lacked any relevance to any issues before the jury. He contends that the trial judge committed reversible error by admitting the evidence. All evidence must pass a threshold test of relevance and the judge must determine whether or not evidence is relevant.

Id. Officer Adolfo’s police effects pass the threshold of relevance. They tend to establish that Officer Adolfo was clearly and obviously a police officer who was in uniform and performing his duties when murdered. This was relevant to establish one of the aggravating factors required for the jury to sentence a defendant to death.

Maryland Code (1957, 1987 Repl.Vol.), Article 27, § 413(d)(1) lists as an aggravating circumstance: “The victim was a law enforcement officer who was murdered while in the performance of his duties.” Also, the evidence tended to corroborate oral testimony about the incident. The vest showed the location of the bullet holes. Officer Adolfo’s gun was fully loaded, thereby corroborating testimony that the officer never fired his weapon at Hunt. Whether used to establish the aggravating circumstance or to corroborate testimony about how the incident transpired, Officer Adolfo’s police