Ingoglia v. State

ALPERT, Judge. Appellant, David R. Ingoglia, was convicted by a jury in the Circuit Court for Baltimore City of assault. Upon the imposition of a ten year prison sentence, he filed this appeal. Appellant presents three questions in this appeal.

He asks: I. “Did the trial court err in refusing to ask if any of the prospective jurors would give more weight to the testimony of a witness merely because of the witness’ race?” II. “Did the trial court err in overruling defense counsel’s objection to, and refusing to strike, testimony by Detective Sydnor that traffic investigators on the scene ‘determined it was not an accident.’?” III. “Did the trial court [err] in considering the victim’s mother’s opinion that a sentence of at least ten years imprisonment should be imposed?” We answer the first two questions in the affirmative and reverse the judgment of the trial court. We answer appellant’s third question in the negative but address it nonetheless for guidance purposes. The incident that led to appellant’s conviction occurred in the early morning hours of September 9, 1992. Appellant was driving his car north on Greenmount Avenue.

The victim was a pedestrian. Although some details were disputed at trial, there was no dispute that appellant ran over the victim with his car and seriously injured him. The State presented evidence that appellant ran over the victim deliberately. The defense countered that it was an accident. ⁶⁶² I Jury Selection Appellant first takes issue with the jury selection process.

Defense counsel had requested that the court ask the following during voir dire examination; “Is there any member of the jury panel who would give more weight to a white witness’ testimony because he or she is white rather than black or black rather than white.” The court failed to ask the proposed question and, after voir dire was conducted, defense counsel objected. The court responded: “I asked that question: Is there any prejudice, prejudice against anything or something that might prejudice your opinion____” In fact, the court had asked the prospective jurors: “Does any member of this jury panel harbor any type of prejudice of any nature whatsoever that would prevent you from giving this case a fair trial, would you stand, please?” Appellant now contends that the court’s refusal to ask a specific question about possible racial prejudice constitutes reversible error. As the Court of Appeals recently summarized, the scope of voir dire and the form of the questions propounded rests firmly within the discretion of the trial judge____ The trial judge’s discretion regarding the scope of a proposed avenue of voir dire is governed by one primary principle: the purpose of “the inquiry is to ascertain ‘the existence of cause for disqualification and for no other purpose.’ ... Where parties to the litigation direct their inquiries concerning a specific cause for disqualification, they have ‘a right to have questions propounded to prospective jurors’ during voir dire.... ” Davis v. State, 333 Md. 27, 34 , 633 A.2d 867 (1993) (emphasis in original) (citations omitted).

Only “ ‘[qjuestions not directed to a specific ground for disqualification but which are speculative, inquisitorial, catechising or ‘fishing,’ asked in the aid of deciding on peremptory challenges, may be refused in the discretion of the court, even though it would not have been error to have asked them.’ ” Id. at 34-35 , 633 A.2d 867 (citation omitted). ⁶⁶³ Racial prejudice may constitute cause for disqualification of a prospective juror. Thus, “[i]n Maryland, it is well-settled that interrogation of the venirepersons with respect to possible racial prejudice is required, on request, when racial prejudice may be a factor.... ” Borne v. State, 324 Md. 1, 13 , 595 A.2d 448 (1991). Racial prejudice “ ‘may be a factor because of the facts of the case 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 15 , 595 A.2d 448 (quoting Holmes v. State, 65 Md.App. 428, 438-39, 501 A.2d 76 (1985), rav’d on other grounds, 310 Md. 260 , 528 A.2d 1279 (1987)). As appellant points out in his brief, he “is white.

The man who was struck by [appellant’s] car, Edgar Johnson, is black, as are all of the eyewitnesses called by the State.... The crime, as alleged by the State, involved victimization of another person by the use of violence.” Appellant correctly concludes that the facts of the case suggest that racial prejudice may be a factor, and that the requested inquiry into racial prejudice was therefore required. While the trial court did ask a general question as to whether the prospective jurors harbored “any type of prejudice of any nature whatsoever” that would have prevented them from deciding the case fairly, the jurors were not yet aware of the facts of the case or the races of the persons involved. The court’s question did not sufficiently focus the attention of the jurors on possible racial prejudice.

Although it might be argued that the question presented by defense counsel was not a model of clarity, the nature of the question was clear. [W]hen the lower court is made aware of the essence of what the defendant is seeking, it should either ask, on its own motion, ‘a proper question designed to ascertain the existence of cause for disqualification on account of racial ⁶⁶⁴ bias or prejudice,’ ... or give the defendant an opportunity to submit additional, proper voir dire questions. Bowie, 324 Md. at 13 , 595 A.2d 448 (citation omitted). We are not at all persuaded by the State’s contention that defense counsel waived any challenge to the court’s failure to question the prospective jurors about racial prejudice by accepting the jury that was ultimately selected. Under the circumstances presented here, we are convinced that defense counsel’s acceptance of the jury “was merely obedient to the court’s ruling and obviously [was] not a withdrawal of the prior objection, timely made.” Miles v. State, 88 Md.App. 360, 377 , 594 A.2d 1208 , cert. denied, 325 Md. 94 , 599 A.2d 447 (1991) (where defense counsel’s acceptance of the jury did not constitute a withdrawal of his prior objection to the court’s refusal to ask certain voir dire questions).

Cf. Couser v. State, 282 Md. 125, 130 , 383 A.2d 389 , cert. denied, 439 U.S. 852 , 99 S.Ct. 158 , 58 L.Ed.2d 156 (1978) (where defense counsel’s acceptance of the jury did not waive his objection to the court’s refusal to permit him to examine the prosecutor’s jury dossier); Holmes, 65 Md.App. at 439-40 , 501 A.2d 76 (defense counsel’s failure to object when the court did not question prospective jurors about racial prejudice, combined with his acceptance of the jury as selected, waived any argument that the court erred by faffing to inquire about such prejudice). II Nonresponsive Testimony Detective Marvin Sydnor of the Baltimore City Police Department’s Homicide Unit testified on behalf of the State. Detective Sydnor explained that he was one of the first police officers to arrive on the scene and that he investigated the case as a possible attempted murder.

During the detective’s direct examination, the following transpired: Q. You said the crime lab was there? A. Crime law was there, units from the traffic investigation unit were there. ⁶⁶⁵ Q. Why was the traffic investigation unit there? A. Initially they thought this was an accident. When they got there they determined that it was not an accident but a deliberate use of— MR.

SOLOMON [defense counsel]: Objection, motion to strike. THE COURT: Sustained. Please the jury will disregard what they determined. BY MR.

HISIM [prosecutor]: Upon making their determination, what if any investigation did they do? A. They did not do any. Q. Where did they go? A. They left the scene.

Thereafter, on cross-examination, the subject of the traffic investigation section was revisited: Q. Detective, you’re not an accident reconstructionist, are you? A. That’s correct. Q. And I think you testified that you brought out the accident reconstructionist in this case, however briefly and then told them they can sort of go home, is that your testimony or am I mistaken? A. You’re mistaken.

Q. What is T I S? A. Traffic Investigation Section. Q. Okay. Traffic Investigation Section was out and you told them they could go home?

A. That’s not correct either. Q. Tell me what you told them. A. They were on the scene when I got there. From their preliminary investigation, they determined it was not an accident.

MR. SOLOMON: Objection, motion to strike. It is not responsive to my question, your Honor. ⁶⁶⁶ THE COURT: Well, I have told you a dozen times stop telling why. But I can’t get you to stop doing that.

Overruled. THE WITNESS: They told me that based on their— MR. SOLOMON: Objection. THE COURT: Well do you have another question for him along those lines?

MR. SOLOMON: Your Honor the question was formulated very succinctly and very clearly. I only asked him whether he asked T I S to go home. THE COURT: Mr. Solomon, I don’t want to get into all of that, now, please let’s just try to keep it what we got.

(Emphasis added.) Appellant contends that the trial court erred by overruling his objection to Detective Sydnor’s testimony about the conclusions of the Traffic Investigation Section, and by refusing to strike the testimony. Appellant maintains that the testimony was not responsive to defense counsel’s inquiry, and that the trial court’s ruling placed inadmissible