Kidder v. State

Jonathan Torin Kidder v. State of Maryland No. 53, September Term 2020 Criminal Procedure – Right to an Impartial Jury – Jury Selection. Article 21 of the Maryland Declaration of Rights and the Sixth Amendment to the federal Constitution both guarantee a defendant charged with a serious crime the right to a trial by an impartial jury drawn from a fair cross-section of the community, although that does not mean that a jury must contain representatives of all the economic, social, religious, racial, political, and geographical groups of the community. The process used to select a jury must meet the constitutional standard. Criminal Procedure – Jury Selection.

Maryland Code, Courts and Judicial Proceedings Article, §8-404(b) was enacted to implement the constitutional right to an impartial jury. A jury selection method that involves the systematic or intentional exclusion of a cognizable group does not comply with that statute. Criminal Procedure – Jury Selection – Discretion of Trial Judge. The Maryland Rules and applicable statutes provide that a trial judge has discretion in directing the process for selection of a jury in a criminal case.

So long as that process complies with applicable constitutional standards, an appellate court reviews that process for abuse of discretion. Criminal Procedure – Right to an Impartial Jury – Jury Selection – Exclusion of Cognizable Group. A defendant who asserts that the jury selection process employed at the defendant’s trial violated the right to an impartial jury has the burden of demonstrating that the jury selection process involved the systematic or intentional exclusion of a cognizable group. Criminal Procedure – Right to an Impartial Jury – Jury Selection.

A defendant did not carry his burden of showing that his constitutional right to an impartial jury was violated because he did not show that any prospective jurors were excluded from his jury by a trial court’s jury selection method without being excused for cause or by peremptory strike. Even assuming any prospective jurors were excluded, the defendant failed to show the systematic or intentional exclusion of any cognizable group. Circuit Court for Worcester County Case No. C-23-CR-18-000177 Argument: May 7, 2021 IN THE COURT OF APPEALS OF MARYLAND No. 53 September Term, 2020 _____________________________________ JONATHAN TORIN KIDDER V. STATE OF MARYLAND _____________________________________ Barbera, C.J., McDonald Watts Hotten Getty Booth Biran, JJ. ______________________________________ Opinion by McDonald, J. Watts and Getty, JJ., dissent. ______________________________________ Filed: August 4, 2021 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2021-08-04 13:27-04:00 Suzanne C. Johnson, Clerk One who is charged with a serious crime has a constitutional right to trial by an impartial jury. That right has long been understood to implicitly require that a jury be selected from a fair cross-section of the community.

The fair cross-section requirement does not mean that a jury must precisely mirror the demographics of the community. Rather, there must be no systematic or intentional exclusion of any cognizable group in the jury selection process. This appeal concerns whether a particular method of selecting a jury violates that standard. Petitioner Jonathan Torin Kidder was charged in the Circuit Court for Worcester County with numerous criminal offenses related to a drunk driving incident in 2018 that resulted in the death of a cyclist.

To select a jury for the trial, the trial judge posed a series of voir dire questions to the entire jury venire – the panel of prospective jurors summoned for the trial. Voir dire questions are designed to elicit information that might reveal cause to excuse members of the venire from service on the particular jury. The trial judge asked the members of the venire to indicate whether they had a response to each question and took note of each prospective juror who did so, without immediately questioning individual members of the panel as to their answers to assess possible challenges to exclude each of those prospective jurors for cause. Instead, after posing all of the voir dire questions, the judge determined the number of prospective jurors who had not responded to any of the questions – and therefore would not be subject to challenges for cause.

The trial judge then calculated the total number of prospective jurors needed to seat a jury (taking into account the peremptory strikes the parties were entitled to exercise). Next, the trial judge conducted individual questioning of the panel members and considered challenges for cause, only to the extent necessary to obtain the requisite number of prospective jurors for the exercise of peremptory strikes. The jury found Mr. Kidder guilty of all charges. Mr. Kidder appealed that verdict, asserting, among other things, that the method of jury selection used by the trial judge violated his right to an impartial jury.

He argues that the trial judge impermissibly excluded numerous groups of people from his jury without making specific findings of bias or other cause. The Court of Special Appeals affirmed Mr. Kidder’s convictions, and so do we. There is no indication in the record that any cognizable group was excluded from the jury as a result of the method of jury selection. Prospective jurors were excluded from consideration for the jury only if excused for cause or by peremptory strike.

As in any case in which the venire consists of many more individuals than are needed for the jury, the selection process never reached some members of the venire, but that does not mean they were “excluded” from the jury. Nonetheless, while this selection method may appear more efficient than other methods of jury selection and a trial judge does not know in advance which particular members of the jury venire will – or will not – have a response to a voir dire question, trial judges should refrain from using it. This selection method uses a criterion for re-ordering the jury panel – silence in response to initial voir dire questions – that, though neutral on its face, may result in a jury that, though impartial, may not be as attentive and engaged as we want our juries to be. 2 I Jury Selection in Criminal Trials A. Right to Impartial Jury Both Article 21 of the Maryland Declaration of Rights and the Sixth Amendment to the federal Constitution guarantee a defendant charged with a serious crime the right to an impartial jury – a right sometimes traced to the Magna Carta of 1215. Duncan v. Louisiana, 391 U.S. 145, 151-52 (1968).

That right implicitly requires that the jury venire – the panel of prospective jurors from which the jury for a particular trial is selected – be drawn from a fair cross-section of the community. Holland v. Illinois, 493 U.S. 474, 480 (1990); Taylor v. Louisiana, 419 U.S. 522, 530 (1975). However, there is no requirement that a jury chosen for a particular case “must mirror the community and reflect the various distinctive groups in the population.” Taylor, 419 U.S. at 538 . “Indeed, it would be impossible to apply a concept of proportional representation to the petit jury in view of the heterogeneous nature of our society.” Batson v. Kentucky, 476 U.S. 79 , 85 n.6 (1986). B. Jury Plans, Pools, and Panels State law implements the constitutional directives.

The circuit court in each county is to have a plan for creating a jury pool from a “fair cross section of the adult citizens” who reside in the county. Maryland Code, Courts & Judicial Proceedings Article (“CJ”), §§8-104, 8-201. Under the plan, the circuit court’s jury commissioner is to select names of individuals to serve in the court’s jury pool for a particular interval. CJ §8-310.

Each individual selected for an interval is generally assigned a number which is used to identify the individual during a jury selection process. Procedures differ in their precise details 3 among different jurisdictions. On days when trials are scheduled in a circuit court, a sufficient number of individuals from the jury pool, taking into account the number anticipated to be needed, is summoned to the courthouse, and then, as needed, may be directed to a courtroom for the jury selection process in a particular trial. CJ §8-401.

In this opinion, we shall refer to the members of the jury pool summoned to the courthouse and sent to a courtroom for a particular trial as the venire or jury panel for that case. We shall refer to members of a venire as “prospective jurors.”1 C. Jury Selection at Trial A criminal trial begins with the selection of the jury. That process is intended to select an impartial jury by eliminating prospective jurors who may harbor a bias or prejudice with respect to the particular defendant, the charges at issue in the case, or the witnesses in the case; who may be unwilling to follow the court’s instructions on the law governing the case; or who should be excused from service on the particular case for some legitimate reason. See Collins v. State, 452 Md. 614, 623-24 (2017); Charles v. State, 414 Md. 726, 733 (2010).

Jury selection can be thought of as a two-stage process: an initial stage directed to challenges for cause and a second stage at which parties exercise peremptory strikes. 1 Terms such as “jury pool,” “jury panel,” “venire,” “prospective juror,” and “qualified juror” are sometimes used interchangeably in certain contexts to mean the same group or individuals and are sometimes used in other contexts to mean different subsets of groups or individuals. We shall do our best to make clear and to be consistent in our use of those terms in this opinion. 4 First Stage – Voir Dire Questions and Challenges for Cause The first stage involves questioning of prospective jurors as a group, sometimes with follow-up questioning of individual jurors at the bench. Maryland Rule 4-312(e). This is often referred to as voir dire, and the questions asked are referred to as voir dire questions.

A prospective juror’s answers to voir dire questions may result in the trial judge excusing that individual “for cause” – an assessment that the individual, for one reason or another, might not be able to discharge the juror’s obligation to decide a case fairly and impartially for the duration of the trial. CJ §8-404(b)(2)(ii). During the past decade, a special committee of the Maryland State Bar Association (“MSBA”) developed and published model voir dire questions for both criminal and civil trials. MSBA Special Committee on Voir Dire, Model Jury Selection Questions (2018).

The product of those efforts has been endorsed by this Court in a published opinion. Collins, 452 Md. at 628-32 . This Court has frequently emphasized that, unlike courts in many other jurisdictions, Maryland courts allow only “limited voir dire” – meaning that the sole purpose of voir dire questioning is to determine whether prospective jurors should be struck for cause, not to elicit information for the exercise of peremptory strikes in the second stage of jury selection. E.g., Kazadi v. State, 467 Md. 1, 46-47 (2020); Collins v. State, 463 Md. 372, 404 (2019); Pearson v. State, 437 Md. 350, 356-57 (2014); Washington v. State, 425 Md. 306, 312 (2012).

The trial judge must ensure that enough panel members will remain after prospective jurors are excused for cause during the first stage of jury selection to provide 5 the necessary number of jurors and alternates, taking into account the number of peremptory strikes that each party can exercise at the second stage of jury selection. Maryland Rule 4-312(f). Second Stage – Peremptory Strikes The second part of the jury selection process involves the seating of a jury from the members of the jury panel who remain after challenges for cause have been decided. During this stage the parties may eliminate some potential jurors from service on the jury by exercising their “peremptory challenges,” also called “peremptory strikes.”2 CJ §8- 404(b)(2)(i).

Each party is allotted a specific number of peremptory strikes,3 which the party may exercise at its discretion for a good reason or on a whim, but not for a prohibited 2 Whether peremptory strikes ensure, or detract from, the impartiality of a jury is an open question. Some jurisdictions (including England, the origin of the peremptory strike) have eliminated peremptory strikes in jury selection. Some American Supreme Court justices have suggested that they should also be abolished in this country. See Batson v. Kentucky, 476 U.S. 79, 105-08 (1986) (Marshall, J., concurring); Miller-El v. Dretke, 545 U.S. 231, 266-73 (2005) (Breyer, J., concurring); see also Morris B. Hoffman, Peremptory Challenges Should be Abolished: A Trial Judge’s Perspective, 64 U. Chi.

L. Rev. 809 (1997). 3 Generally, the Maryland Rules allot each party four peremptory strikes with respect to the selection of the 12 jurors in a criminal trial. Maryland Rule 4-313(a)(1). Additional peremptory strikes are provided if the potential sentence upon conviction could exceed 20 years imprisonment. Maryland Rule 4-313(a)(2)-(3); see also CJ §8-420.

For each alternate juror to be selected, the State has the same number of peremptory strikes as the number of defendants – e.g., if there are two defendants, the State has two peremptory strikes as to each alternate juror to be selected. Each defendant has two peremptory strikes as to each alternate juror to be selected. Maryland Rule 4-313(a)(4). 6 discriminatory purpose.4 This stage of the process is conducted by considering prospective jurors one by one in the order designated by the trial judge. The parties take turns either accepting the particular juror for service on the jury or exercising a peremptory strike.

Maryland Rules 4-312(g) (prospective jurors to be called from list in order designated by trial judge), 4-313(b) (alternation of strikes). Prospective jurors deemed “acceptable” by both sides may be seated in the jury box. However, even though a party has deemed a prospective juror acceptable, the party may be permitted to strike that juror “from the box” later if the party still has peremptory strikes available. This second stage of jury selection ordinarily does not involve further questioning of prospective jurors.

At this stage, a trial judge has discretion to call prospective jurors for consideration in whatever order the judge has determined is appropriate. Maryland Rule 4-312(f)-(g). Often, judges simply call the prospective jurors by reference to a range of numbers that starts with the juror with the lowest number. However, nothing in the rules or statutes governing jury selection requires the trial judge to start at any particular place in the jury list.

II Background The issues in this appeal relate solely to selection of the jury. For context, we briefly sketch the facts of the case and the prosecution that resulted. We then focus on the manner 4 See Batson v. Kentucky, 476 U.S. 79 (1986). 7 in which the jury was selected for Mr. Kidder’s trial. Finally, we describe the course of Mr. Kidder’s appeal.

A. The Incident and the Prosecution Mr. Kidder Drives Drunk, Strikes and Kills a Cyclist, Then Crashes into a Car The evidence introduced at trial, viewed in the light most favorable to the jury’s verdict, established the following facts. On May 6, 2018, at around 10:00 p.m., Mr. Kidder was driving his sport utility vehicle on Racetrack Road in Berlin, Maryland when he struck Jose Madrid Pineda, who was riding a bicycle home from work that night.5 A neighbor who heard a “boom” came outside, saw Mr. Madrid and his bicycle on the ground, and called 911. Mr. Madrid was later found in a nearby ditch. He died of his injuries.

Mr. Kidder did not stop after striking Mr. Madrid. Rather, he continued driving. A short distance away, another driver, Devon Alexander, had stopped at a traffic light and was waiting to turn left into the parking lot of a convenience store. Mr. Kidder crashed into Mr. Alexander’s car.

After the collision, Mr. Alexander got out of his car to check on Mr. Kidder. Both drivers then moved their vehicles out of the traffic lanes. Mr. Alexander observed that Mr. Kidder smelled strongly of alcohol, was slurring his speech, had red eyes, and stumbled when he stepped out of his sport utility vehicle. Mr. 5 The victim, an immigrant from Honduras, is referred to in some places in the record as “Mr. Pineda” and in other places as “Mr. Madrid.” In accordance with the naming customs of Spanish-speaking countries and the references to him by his family members, we will refer to him by the latter name. 8 Kidder told Mr. Alexander that he had not seen Mr. Alexander’s car.

He told Mr. Alexander that he had been drinking, that he did not have insurance, and that he was not having a good day. Mr. Alexander’s aunt and cousin, who lived nearby, came to the scene of the collision and also observed that Mr. Kidder smelled of alcohol and seemed impaired. A call was made to 911 and Mr. Alexander advised Mr. Kidder to remain at the scene of the crash. After pacing back and forth for a while, Mr. Kidder left on foot before the police arrived.

Charges, Trial, and Sentencing A warrant was issued for Mr. Kidder’s arrest, and police apprehended him at his home. Mr. Kidder was charged in a criminal information in the Circuit Court for Worcester County with: (1) negligent homicide by motor vehicle while under the influence of alcohol, in violation of Maryland Code, Criminal Law Article (“CR”), §2-503; (2) negligent homicide by motor vehicle while impaired by alcohol, in violation of CR §2-504; (3) failure to remain at the scene of an accident involving death, in violation of Maryland Code, Transportation Article (“TR”), §20-102(b)(1); (4) negligent driving, in violation of TR §21-901.1(b); (5) driving while under the influence of alcohol, in violation of TR §21- 902(a)(1)(i); and (6) driving while impaired by alcohol, in violation of TR §21- 902(b)(1)(i). During a two-day trial in November 2018, the State presented testimony of Mr. Alexander, Mr. Alexander’s aunt and cousin, the neighbor who heard the first collision 9 involving Mr. Madrid and saw its aftermath, a DNA analyst who matched blood on Mr. Kidder’s SUV to Mr. Madrid, an assistant medical examiner who explained how the injuries suffered by Mr. Madrid in the collision resulted in his death, and State Police troopers who investigated the incident. The State also introduced photos of both crash sites, and a surveillance video from a nearby business that captured part of the collision of Mr. Kidder’s SUV with Mr. Madrid.

The defense did not call any witnesses, and Mr. Kidder elected not to testify. At the conclusion of the trial, the jury found Mr. Kidder guilty on all six counts. On January 28, 2019, Mr. Kidder was sentenced to an aggregate sentence of 20 years imprisonment with all but 10 years suspended, to be followed by five years of supervised probation, and a fine of $1,000. B. Jury Selection at Mr. Kidder’s Trial The Circuit Court had summoned 60 prospective jurors from the county jury pool for Mr. Kidder’s trial.

At the outset of the trial, the trial judge explained to counsel how he planned to conduct jury selection: [T]he process that the Court intends to follow is a process that actually is obtained and referenced in [a] model jury selection question manual put together by the Maryland State Bar Association Special Committee on Voir Dire 2015 through 2016 report. In that publication it references methods – this is the last page, page 91, where it says methods commonly used in Maryland for jury selection. And it is No. 4 as the commonly used method in Maryland for jury selection albeit commonly used might be a term of art because, at least 10 according to this publication, there are just a few Circuit Court judges who utilize this method.6 But I note that it is not … pursuant to the publication, it is not a disapproved method as is method No. 3 which actually has a highlight that says method disapproved in Wright v. State, 411 Md. 503, 2009 , and it cites two other cases.7 6 It is evident from the description and page number cited by the trial judge that he was referring to judicial education handout materials from a program conducted by the Judicial College of Maryland in October 2016. Those materials include an early version of the MSBA special committee’s report on voir dire questions for criminal trials, which appears on pp. 72-90 of the materials.

The report itself does not list options for jury selection methods. However, immediately following the MSBA committee’s report in the judicial education handout materials is a single page (numbered p. 91) entitled “Methods Commonly Used in Maryland for Jury Selection.” Option 4 on that list corresponds to the jury selection method used by the judge in this case. It reads as follows: 4. Judge reads all the questions to the panel as a group.

Responses are noted. If there are a sufficient number of jurors who did not respond to any question which would allow the jury to be picked then the responders are dismissed without being questioned and the jury is picked only from among the non- responders without any further questioning. This method is used by only a few judges in Baltimore City. It is thus evident that the trial judge mistakenly associated that single-page list with the MSBA committee report that preceded it in the judicial education materials.

Materials provided during Judicial College programs are typically not publicly available under Maryland Rule 16-913(e), but the relevant portion of this particular handout may be accessed at the following link: https://perma.cc/HRX4-XJE3. The same list of jury selection methods referenced by the trial judge had also appeared in a 2009 article in The Maryland Daily Record. See Dennis M. Sweeney, Sweeney: What is the Wright Way to Question Potential Jurors?, The Daily Record (Dec. 28, 2009), available at https://perma.cc/EK8R-NM2H. In any event, while the trial judge’s attribution of the source of this method of jury selection may not have been precisely accurate, it is true that it was a recognized method of selection used by at least some other judges. 7 The jury selection method disapproved in the Wright case involved asking all prospective jurors collectively 17 voir dire questions in a row without obtaining or recording any responses from the jury panel, and then questioning each juror individually as to whether the individual had a response to any of the 17 questions, thereby effectively requiring each prospective juror to remember the questions and any responses for the 11 The trial judge then did some math to calculate the total number of prospective jurors needed for the second stage of jury selection to seat a jury, following the elimination of any prospective jurors who were struck for cause.

In particular, the judge planned to seat 12 jurors and one alternate – i.e., 13 jurors were needed for the trial. If each party exercised all of their peremptory strikes, an additional 11 prospective jurors would be needed to allow for those strikes.8 Thus, once any challenges for cause had been resolved, a total of 24 prospective jurors would be needed to select the jury. The trial judge then elaborated on the method he would use to select the requisite 24 prospective jurors. The method he chose was seemingly more efficient because it focused the selection process on prospective jurors unlikely to be excused for cause.

The trial judge explained: What the Court’s intention to do regarding the voir dire process is to ask all of the questions in their entirety noting any affirmative or negative responses on the jury list by the juror number. And since the questions are enumerated, it’s actually a pretty easy process to follow. Once all of the questions have been propounded to the venire panel, the Court will then determine using – with the assistance of the clerk – will determine if there are 24 individuals who have not answered affirmatively or negatively to any question. duration of the selection process. The list of jury selection options in the judicial education materials that the trial judge was apparently referencing noted (at p. 91) that the method used in Wright had been disapproved, citing that case and two others, as the trial judge indicated. 8 Each side could exercise four peremptory strikes as to the jurors; the defense had two strikes as to the alternate juror, and the State had one strike as to the alternate juror – an aggregate total of 11 peremptory strikes. 12 If they have not answered affirmatively or negatively, there would be no reason to bring them up to the bench for additional questioning.

If that number is 24 – if there are 24 such individuals, then we can immediately go to alternating strikes to the selection process. Defense counsel objected to the method, arguing both that it “would prohibit individuals [from serving on the jury] for benign reasons who would otherwise have no issues sitting in judgment of a case like this,” like “having a relative in law enforcement or having a strong feeling about a particular crime,” and that it would “be tantamount to the Court exercising sua sponte cause challenges without inquiring as to whether an individual would be unable to sit fairly and impartially in this case.” The trial judge responded to the objection, explaining that this method did not involve striking any prospective juror simply because the individual responded to a voir dire question: [T]he record is very clear, in the event that 24 people – there are not 24, but let’s say only 20 people who have not answered any question, then we would examine jurors until we had the number 24. So my proposed method in no way is an absolute bar to the possibility of further examination of the venire panel or individual potential jurors. It also needs to be absolutely clear that the Court by following this process, I’m not determining, not even remotely close to determining, that people who have answered affirmatively or negatively to any question that they are not qualified jurors, and that they should therefore be stricken for cause.

The judge explained that he believed that the initial sorting of prospective jurors under this method was not a determination whether the individuals were “qualified versus unqualified,” but simply a means to “move this case along.” 13 And so it must be clear that I am not determining qualified versus unqualified. This is simply a method that gives all parties an assurance that the person who is coming forward to be selected as a juror doesn’t have a potential bias because even when we examine individuals further about an affirmative response to a question, then there can sometimes be objections to whether or not or motions to strike for cause that the Court overrules. And so I’m not determining that these individuals are unqualified. It’s simply a process that for – it moves this case along.

Finally, the judge indicated that he believed that the method had been “approved” as part of the MSBA model jury selection question manual.9 As further detailed in the Appendix attached to this opinion, the trial judge then posed 18 voir dire questions to the venire. Appendix at pp. 1-4. After he asked a question, those panel members who had an affirmative answer to the question stood, and the judge took note of their juror numbers. Nine of the 18 questions elicited affirmative responses from at least one juror.

Of the 60 members of the venire, 46 prospective jurors responded to one or more of the questions; the remaining 14 prospective jurors did not respond to any of the questions. Thus, under the method of jury selection chosen by the trial judge, those 14 prospective jurors were advanced to the second stage of jury selection at which the parties would exercise peremptory strikes. To obtain the requisite 24 jurors needed for the second stage of jury selection, the trial judge then proceeded to conduct individual questioning at the bench of prospective 9 As indicated in footnote 6 above, the MSBA special committee had not endorsed the method, but the method had been widely circulated on a list of methods actually used by other Maryland trial judges. The list of jury selection methods that the trial judge referred to thus might be more accurately characterized as a descriptive list of the methods that had been used, as opposed to a normative list of methods that should be used (although it did indicate that the method used in Wright had been “disapproved”). 14 jurors who had indicated an affirmative response to one or more of the voir dire questions.

Appendix at p. 5. The judge called those jurors to the bench one-by-one for individual questioning, in numerical order starting with the lowest juror number. Some of those prospective jurors were excused for cause as a result of that questioning,10 but 10 survived the additional questioning without being excused for cause, and the court had the necessary 24 prospective jurors.11 Id. The court then proceeded to the second stage of jury selection.

Proceeding by numerical order, the trial judge began to call each of those 24 prospective jurors for consideration by the parties. The State and the defense took turns either declaring a prospective juror “acceptable” or exercising a peremptory strike against that individual. Of the first 11 prospective jurors considered in this manner, 10 had indicated a response to voir dire questions and had been individually questioned. When it was the turn of one panel member who had not indicated a response to any of the voir dire questions, there was a brief exchange between the judge and the prospective juror during which the latter advised the trial judge that “I was asleep.” The parties exercised peremptory strikes against five prospective jurors who had responded to voir dire questions and three prospective 10 Jurors who were excused for cause indicated prior convictions for drunk driving, personal familiarity with the homicide victim or witnesses, a moral belief in not judging others, or a bias in favor of police testimony. 11 As it later turned out, only 21 prospective jurors were ultimately needed in the second stage of jury selection, as the parties did not exercise any of their aggregate three strikes with respect to the alternate juror. 15 jurors who had not.

Appendix at p. 6. In the end, the jury was composed of five jurors who had responded to voir dire questions and seven who had not.12 Appendix at p. 7. At the conclusion of jury selection, both the State and the defense indicated that they were satisfied with the jury.13 The clerk then swore in the 12 jurors and one alternate. C. Appeal Mr. Kidder appealed his convictions, raising a number of issues.

Among those issues was a contention that the jury selection method employed by the trial judge “excluded significant parts of the community from the jury in violation of his right to a fair and impartial jury.” In an unreported decision, the Court of Special Appeals affirmed the verdict but remanded for resentencing on one count.14 Kidder v. State, 2020 WL 6260088 (Oct. 23, 2020). The intermediate appellate court rejected Mr. Kidder’s argument concerning jury selection. However, citing its recent decision in Williams v. State, 246 Md. App. 308 12 If no peremptory strikes had been exercised, 10 of the members of the jury (including the alternate) would have been panel members who responded to voir dire questions, were then questioned individually, and were not struck for cause. 13 Defense counsel, stating that he did not want to waive his objections to the method of jury selection, qualified that his statement that the jury was “acceptable” was subject to his previous objections. This reference to previous objections avoided any argument that the defense waived those objections.

See State v. Ablonczy, ___ Md. ___, 2021 WL 2562312 (2021). 14 The intermediate appellate court vacated the sentence on the charge of failing to stop at the scene of an accident involving death because the State had failed to provide Mr. Kidder requisite notice for an enhanced sentence for that offense. It remanded the case for the Circuit Court to re-sentence Mr. Kidder on that count. Kidder, 2020 WL 6260088 at ¹². 16 (2020), which involved a challenge to the same method of jury selection, the court stated that this method, while “not impermissible,” was “ill-advised.” Kidder, 2020 WL 6260088 at ⁷.15 Mr. Kidder filed a petition for a writ of certiorari, which we granted. III Discussion Mr. Kidder presents two arguments why the method of jury selection at his trial should result in reversal of his convictions.

First, he argues that the method “violated [his] right to a trial by a jury drawn from a fair cross-section of the community as guaranteed by Article 21 of the Maryland Declaration of Rights.”16 Second, he argues that, in using this method, the trial judge impermissibly struck individuals from his jury in violation of CJ §8-404(b). A. Standard of Review Trial courts have broad discretion in how jury selection is conducted, including the form and substance of voir dire questions. Wright v. State, 411 Md. 503, 508 (2009); Dingle v. State, 361 Md. 1, 13-14 (2000). An appellate court reviews how a trial judge conducts jury selection under an abuse of discretion standard.

Wright, 411 Md. at 507-08 . 15 The same trial judge presided at the trials of both this case and the Williams case, which occurred some months after the trial of Mr. Kidder’s case. The appeals in the two cases were argued on the same day (April 8, 2020) before the same panel of the Court of Special Appeals. 16 Petitioner’s Brief at 7. 17 Of course, it would be an abuse of discretion for a trial court to use a method of jury selection that violated a defendant’s right to an impartial jury. A party claiming denial of the right to an impartial jury bears the burden of proving that the jury selected was not impartial. Bristow v. State, 242 Md. 283, 286 (1966).

B. Whether the Jury Selection Method Violated the Right to an Impartial Jury Mr. Kidder does not directly attack the impartiality of the jury at his trial. That decision seems prudent as nothing in the record suggests that any of the jurors who actually sat on his case were biased in any respect as to him or the charges against him. Instead, he asserts that the jury selection method used by the trial judge violated the requirement that the jury be drawn from a fair cross-section of the community. This Court first addressed the fair cross-section requirement in Wilkins v. State, 270 Md. 62, 65 (1973).17 Quoting cases construing the constitutional right and citing the Maryland statute that implements that right – at that time, codified at Maryland Code, Article 51, §1 et seq.18 – the Court stated that the “[t]he American tradition … necessarily contemplates an impartial jury drawn from a cross-section of the community.” Id.

(citation and internal quotation marks omitted). As the Court noted, the requirement that a jury panel be drawn from a fair cross-section of the community “does not mean, of course, that every jury must contain representatives of all social, religious, racial, political and In Wilkins, this Court adopted the opinion of the Court of Special Appeals “with 17 minor editing.” 270 Md. at 63 . 18 We shall return to Article 51, §1 et seq. in a later section of this opinion. 18 geographical groups of the community …. But it does mean that prospective jurors shall be selected by court officials without systematic and intentional exclusion of any of these groups.” Id. Thus, the focus of an inquiry concerning the selection of a jury is not whether the jury itself is a representative cross-section of the community, but whether the selection of jurors “produced a systematic or intentional exclusion of any cognizable group or class of qualified citizens.” Id. at 6619 (citation and internal quotation marks omitted). 19 That is the test that the Court of Special Appeals applied to assess this method of jury selection in its decisions in Williams and in this case.

Williams, 246 Md. App. at 344 - 45; Kidder, 2020 WL 6260088 at ⁸. The same or a similar test has been applied in many other jurisdictions when a defendant has challenged the composition of a grand or trial jury for failure to meet a fair cross-section requirement. Many of those cases used the concept of “cognizable group” in applying the Supreme Court decision in Duren v. Missouri, 439 U.S. 357 (1979), which held that the fair cross-section requirement of the Sixth Amendment was violated when a “distinctive group” is under-represented in the jury selection process due to a systematic exclusion of that group. See, e.g., Rayburn v. State, 495 So.2d 733 (Ala.

Crim. App. 1986) (county residents with out-of-county zip code were not cognizable group); Barber v. Ponte, 772 F.2d 982 (1st Cir. 1985) (discussing whether young adults are a cognizable group); Willis v. Zant, 720 F.2d 1212, 1215-17 (11th Cir. 1983) (same); State v. Williams, 659 S.W.2d 778, 780 (Mo. 1983) (en banc) (discussing whether attorneys are a cognizable group); State v. Haskins, 450 A.2d 828, 834-36 (Conn. 1982) (considering 10 different groups proffered by defendant as cognizable groups); State v. Nelson, 603 S.W.2d 158, 163-64 (Tenn. Crim. App. 1980) (members of religious commune that constituted more than 10% of county population were cognizable group); State v. Acosta, 608 P.2d 83, 87 (Ariz.

App. 1980) (Mexican-Americans were cognizable group, but people aged 18-24 were not); State v. Foster, 242 N.W.2d 876, 880-81 (Neb. 1976) (19 and 20 year old voters were not a cognizable group); State v. Taylor, 303 So.2d 169, 170-71 (La. 1974) (same); see also People v. Estrada, 93 Cal. App. 3d 76, 86-96 (Cal. App. 1979) (considering claim that various categories of people should be considered cognizable groups); United States v. Black Bear, 878 F.2d 213, 214-15 (8th Cir. 1989) (Native Americans were a cognizable group). 19 To apply this test, we consider: (1) whether the method of jury selection systematically or intentionally excluded certain prospective jurors; and (2) if so, whether those excluded constitute a “cognizable group.” Mr. Kidder bears the burden of establishing both propositions. As explained in more detail below, the record of this case does not bear out either proposition. 1.

Whether Any Prospective Jurors Were Excluded from the Jury Referring to some members of the jury venire who were not considered at the peremptory challenge stage of jury selection, Mr. Kidder argues that the jury selection method used by the trial judge “skipped over” certain prospective jurors.20 He asserts that this resulted in the exclusion of those individuals from the jury. The selection method used by the trial judge is characterized more accurately as a re-ordering of the jury panel for purposes of the second stage of jury selection than as an “exclusion” of any particular juror. Of the panel members who had responded to voir dire questions, some might have been excused for cause and would never have made it to the second stage of jury selection.21 As to the others, it was also inevitable that many (if not 20 Mr. Kidder asserts that 19 prospective jurors with juror numbers 314 or greater were “skipped over.” However, even if the trial judge had proceeded in strict numerical order, as Mr. Kidder apparently would prefer, most of those prospective jurors would not have been considered for his jury because they would not have been reached. Ten jurors with juror numbers lower than 314 were initially seated on the jury.

Appendix at p. 6. Even after some of those jurors had been struck from the box by the parties, only five additional jurors with numbers greater than 314 were seated on the jury. 21 It is notable that this method of jury selection did not suffer from the problem identified by this Court in Wright – forcing panel members to remember the questions and their answers for the duration of the first stage of the jury selection process. Instead, the trial judge in this case followed the manner of questioning endorsed by this Court in 20 most) of those prospective jurors would not be excused for cause after individual questioning, but still would never be reached in the selection process, because 60 prospective jurors had been summoned and only 24, at the most, were needed for the final stage of the jury selection. From a trial judge’s perspective, it would certainly seem more efficient to re-order the panel in a way that focused on prospective jurors who never would be excused for cause – as they did not respond to any of the questions designed to ferret out such cause – before spending the time and effort to consider and resolve whether there was good cause to excuse every panel member who did respond to voir dire questions when most of them would never be reached for the final stage.

As indicated earlier, a trial judge has discretion under the Maryland Rules to reorder a jury panel. See Maryland Rule 4-312(f) (“Before the exercise of peremptory challenges … [t]he judge shall … prescribe the order to be followed in selecting individuals from the list”) (emphasis added); 4-312(g)(1) (“The individuals to be impaneled as sworn jurors, including any alternates, shall be called from the qualified jurors remaining in the order previously designated by the trial judge and shall be sworn.”) (emphasis added). Thus, there is no requirement that a jury be selected from a panel in any particular order. See, e.g., Adams v. State, 183 Md. App. 188 (2008), rev’d on other grounds, 415 Md. 585 (2010) (rejecting challenge to trial judge’s decision to select jurors beginning with seventh member of panel).

And, of course, a defendant does not have a right to have any particular Wright: asking the voir dire questions of the panel generally, soliciting an indication as to which members of the panel had a response after each question was read, noting the number of each such panel member, and then, during individual questioning, asking what prompted that individual’s responses to particular questions. See Wright, 411 Md. at 514 . 21 panel member seated on the jury. Tichnell v. State, 287 Md. 695, 714 (1980) (under Article 21, “an accused does not have the right to be tried by any particular jury or jurors”). Mr. Kidder argues that the trial judge’s re-ordering of the jury panel in this manner “constructively excluded” some of the jurors who indicated a response to a voir dire question.

That argument overlooks the facts that 14 prospective jurors who had responded to the trial court’s initial voir dire questions were, in fact, subject to further questioning, that 10 of those prospective jurors advanced to the peremptory strike stage, and that five of them eventually were seated on Mr. Kidder’s jury. Appendix at pp. 5-7. Any method of jury selection would have entailed only 24 members of the 60- member panel – at the most – being considered at the second stage of jury selection (for the exercise of peremptory strikes). That means that 36 members of the panel would not be involved in the second stage of jury selection.

Under Mr. Kidder’s theory, any of those 36 prospective jurors who had not been excused for cause would have been “excluded” from his jury.22 However, those prospective jurors were not “excluded” from the jury; they simply were not reached. As anyone who has participated in team sports knows, there is a difference between being cut from the team and being designated third-string goalie but not taking the field in a particular game because the team never needed to call upon more than the first and second strings for that game. 22 Similarly, if 100 prospective jurors had been summoned for the case, up to 76 prospective jurors (100 minus 24) would have been “excluded” under Mr. Kidder’s theory. 22 2. Whether any “Cognizable” Groups Were Excluded Assuming for the sake of argument that panel members who did not advance to the second stage of jury selection were “excluded” from the jury, the next question is whether they constitute a “cognizable” group. In Wilkins, this Court adopted the criteria applied in federal case law to distinguish a cognizable group for purposes of the right to an impartial jury: ● Defining and limiting factor. “A cognizable group is not one whose membership shifts from day to day or whose members can be arbitrarily selected.” ● Cohesion. “There must be a common thread which runs through the group, a basic similarity in attitudes or ideas or experience which is present in members of the group and which cannot be adequately represented if the group is excluded from the jury selection process.” ● Exclusion may result in bias. “[T]here must be a possibility that exclusion of the group will result in partiality or bias on the part of juries hearing cases in which group members are involved.

That is, the group must have a community of interest which cannot be adequately protected by the rest of the populace.” See 270 Md. at 67 (quoting United States v. Guzman, 337 F. Supp. 140, 143-44 (1972)).23 23 Mr. Kidder asserts that Wilkins involved an application of only the federal Constitution – i.e., the Sixth Amendment – and suggests, in general terms, that Article 21 of the Maryland Declaration of Rights is more demanding. However, Wilkins did not explicitly cite either constitutional provision, and there is no suggestion in that case – or any other of this Court – that the right to an impartial jury under the federal Constitution differs from the same right under the State Constitution. The wording of the two constitutional provisions is virtually identical. Compare Maryland Declaration of Rights, Article 21 (“[I]n all criminal prosecutions, every man hath a right … to a speedy trial by an impartial jury”) with United States Constitution, Sixth Amendment (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury”).

Mr. Kidder provides no reasoned justification for construing them differently. 23 In Wilkins, the defendant argued that the use of voter registration lists to populate the jury pool from which the venire was drawn had the effect of excluding a cognizable group – which he characterized as people who were qualified to vote, but not registered as voters. Wilkins, 270 Md. at 66 . The Court disagreed, on the basis that those who failed to register to vote (1) varied from election to election, and (2) had no common interest apart from “their failure to exercise their right of franchise at a given election.” Id. at 68 (quoting United States v. Greenberg, 200 F. Supp. 382, 391 (S.D.N.Y. 1961)). Moreover, use of voter registration lists ensured that the jury pool would include truly cognizable groups defined by characteristics such as “race, sex, religion, national origin, or wealth.” Id. at 68-69 (quoting United States v. Van Allen, 208 F. Supp. 331, 335-36 (S.D.N.Y 1962)).

By contrast, in King v. State, 287 Md. 530 (1980), the Court held that a significant segment of society had been excluded as a result of a trial judge’s decisions to excuse some prospective jurors for cause. In King, the defendant was charged with possession with intent to distribute marijuana. During jury selection, the trial judge asked if anyone in the venire felt that the law was wrong in prohibiting the use and possession of marijuana. 287 Md. at 532-34. Two prospective jurors indicated affirmative answers and, after further questions about the nature of their respective beliefs, the trial judge, over a defense objection, excused both of them for cause without any inquiry as to whether those views would affect their ability to decide the case fairly and impartially.

On appeal, this Court reversed the defendant’s conviction and remanded the case for a new trial. The Court noted that a “significant segment of our society believes … that the criminal laws relating to marijuana should be modified.” 287 Md. at 536. The Court 24 considered whether the trial judge’s action excusing the two jurors for cause represented a “systematic exclusion.” Id. at 538. The Court held that it was reversible error to exclude a “significant part of the community” – i.e., “the entire class of prospective jurors” who shared that belief – without inquiring as to whether individual members of that class could be impartial.

Id. at 539. Mr. Kidder analogizes this case to King. But King is inapposite for at least three reasons. First, in King, the two prospective jurors were excused as a result of their responses to a voir dire question and a few follow-up questions without any inquiry into their ability to serve fairly and impartially.

By contrast, none of the prospective jurors at Mr. Kidder’s trial was excused simply because the prospective juror had indicated a response to an initial voir dire question; all who indicated that they had a response to one or more questions remained eligible to be seated on the jury. In the end, 14 of those prospective jurors were questioned at some length individually, 10 advanced to the peremptory strike stage of jury selection, and five ultimately served on the jury. Second, the prospective jurors excluded in King were linked by a common belief, and in that belief represented, as this Court noted, a significant part of the community. Mr. Kidder suggests that similar groups were excluded from his jury simply because they indicated they had an answer to one of the 18 voir dire questions: those who “watch the news, have strong feelings about crime, have ever been arrested, are members of law enforcement, are related to members of law enforcement, have ever been the victim of, or even witnessed a crime, or know prosecutors, defense attorneys, potential witnesses, victims, or defendants.” However, he offers no analysis of how the respondents to these 25 questions could be deemed to form any cognizable group.

It seems implausible, for example, that those who watch the news necessarily share similar attitudes, ideas, or experiences. It is similarly difficult to imagine that people with strong feelings about drunk driving or negligent homicide are a cognizable group. Third, and perhaps most importantly, no member of the panel indicated a response to the question whether they had “strong feelings” about the crimes charged (or to eight other voir dire questions, for that matter). Thus, in Mr. Kidder’s case and in contrast to King, no cognizable group was defined by that question.

Williams is illustrative of the distinction between this case and King. There, the Court of Special Appeals assessed the same jury selection method as used in Mr. Kidder’s trial and considered whether prospective jurors who responded to particular voir dire questions, but were not questioned individually or considered at the later stage of jury selection, constituted cognizable groups. Williams, 246 Md. App. at 345-46 . The intermediate appellate court concluded that there was no “common thread” of similarity in attitudes, ideas, or experiences among the prospective jurors who were not selected for the jury.

Id. at 346 . In Mr. Kidder’s case, too, no common thread is apparent. In any event, the selection method used by the trial judge in this case did not treat those who responded to a particular voir dire question as a discrete group, cognizable or otherwise. Substantial portions of the respondents to those questions that elicited more than a few responses advanced to the second stage of jury selection, and several served on the jury.

For example, of the 14 members of the panel who indicated they knew one of the 26 witnesses, seven were questioned individually, two were excused for cause, two were the subject of peremptory strikes, and three served on the jury. See Appendix at pp. 2, 5-7. 3. Summary The jury selection method used by the trial judge in this case did not “exclude” from the jury any members of the venire panel other than those who were excused for cause or were subject to peremptory strikes. As in virtually every case in which a jury is selected, some members of the panel were ultimately not reached as a result of the order in which prospective jurors were considered in the two stages of jury selection.

But that does not mean that those prospective jurors were “excluded” from the jury. In any event, the record in this case does not establish an exclusion of any “cognizable group” from Mr. Kidder’s jury. The method of jury selection used in this case may be efficient, as it gives priority to those prospective jurors who clearly will not be struck for cause. But it is likely not the best method for achieving the kind of jury we seek.

One may indulge the presumption that prospective jurors answer questions honestly, but still be concerned that even honest and unbiased jurors may be inattentive or distracted in the unfamiliar setting of jury selection. This method of jury selection may unwittingly give priority to some prospective jurors who failed to respond to the initial voir dire questions because they were inattentive. Inattention is not a desirable characteristic in a juror, even if the juror is unbiased.24 Moreover, giving 24 As noted earlier, one of the prospective jurors who had not indicated an answer to any voir dire question apologized to the trial judge that he had been sleeping during the peremptory challenge stage of selection. 27 certain prospective jurors a priority of any kind, however well intentioned, may be inconsistent with the use of randomness in jury selection that reinforces the representativeness and inclusiveness of juries. See American Bar Association, Principles for Juries and Jury Trials (2016 rev.), Principle 10.

Accordingly, trial judges should refrain from using this method. C. Whether the Jury Selection Method Violated CJ §8-404(b) Mr. Kidder argues that the members of the jury panel in his case who indicated that they had a response to a voir dire question, but who were not individually questioned by the trial judge and did not advance to the second stage of jury selection, were “constructively struck” in violation of CJ §8-404(b).25 That subsection states: (b) (1) Whenever more individuals than are needed to impanel a jury have been summoned, an individual may be excused but only in accordance with rule or other law. (2) An individual who is summoned for jury service may be struck from a particular jury only: (i) In accordance with rule or other law, by a party on peremptory challenge; (ii) For good cause shown, by a trial judge on a challenge by a party: or (iii) Subject to paragraph (3) of this subsection, by a trial judge who finds that: 1. The individual may be unable to render impartial jury service; 25 Mr. Kidder did not base his objection to the jury selection method on CJ §8-404(b) in either the trial court or the Court of Special Appeals.

It was raised for the first time in questioning by this Court in oral argument. It might be argued that this ground was not preserved for appeal. However, we requested, and received, supplemental briefing concerning this statute. As indicated in the text, the statute simply reflects the constitutional provisions, and accordingly we do not reject this argument for non- preservation. 28 2.

The individual’s service likely would disrupt the proceeding; or 3. The individual’s service may threaten the secrecy of a proceeding or otherwise affect the integrity of the jury deliberations adversely. (3) A trial judge may not strike an individual under paragraph (2)(iii)3 of this subsection, unless the judge states on the record: (i) Each reason for the strike; and (ii) A finding that the strike is warranted and not inconsistent with §§8-102(a) and (b) and 8-104 of this title. (4) An individual struck under this subsection may serve on another jury for which the basis for the strike is irrelevant.

As noted in Part I.C of this opinion, this statute recognizes that prospective jurors may be properly struck from consideration for a particular jury for cause (and even specifies some types of cause) or by peremptory strike. The legislative history of this statute is instructive on whether the statute creates a standard distinct from that set by the constitutional provisions. The predecessor of CJ §8- 404(b) was enacted in 1969 as Maryland Code, Article 51, §9. Chapter 408, Laws of Maryland 1969.

It is part of the law on which the Wilkins decision, discussed in Part III.B.1 of this opinion, was based. See Wilkins, 270 Md. at 63 (“In 1969, Maryland adopted a uniform and comprehensive statute governing the selection of jurors,” citing Chapter 408). In that decision, the Court noted that the statute incorporated the constitutional right to an impartial jury drawn from a fair cross-section of the community. In 1973, as part of code revision, Article 51 became part of the then-new Courts & Judicial Proceedings Article.

In particular, Article 51, §9 was re-codified at that time as 29 CJ §8-210(a)-(c). Chapter 2, §1, First Spec. Sess., Laws of Maryland 1973. As is generally the case with code revision, the organization and style of the statute were modified with little or no change in substance.

See William H. Adkins II, Code Revision in Maryland: the Courts and Judicial Proceedings Article, 34 Md. L. Rev. 1 , 41 (1974) (“Chapter 408 has been transferred to the Courts Article virtually without change”). The Revisor’s Note pointed out that a reference to “rules” as well as “laws” was added to the statutory reference to permissible peremptory challenges. Chapter 2, §1, First Spec. Sess., Laws of Maryland 1973, Revisor’s Note, at pp. 275-76.

In 2006, in a bill requested by the Judiciary, the General Assembly undertook another revision and recodification of the statutes relating to juries. Chapter 372, Laws of Maryland 2006. As part of that revision, the pertinent provision of CJ §8-210 was re- codified as the current CJ §8-404(b). The committee notes reprinted in the session laws state that CJ §8-404(b) is “new language derived from” the prior codification.

In particular, the new codification substituted the verb “strike” for the verbs “excuse,” “disqualify,” and “exclude” with respect to the action taken by a trial judge in removing a prospective juror for consideration for service on a particular jury. Chapter 372, Laws of Maryland 2006 at p. 1987. Nothing in the committee notes or the legislative history of the statute suggests that there was any intent to change the substance of the statute. Thus, the same standard applies in assessing Mr. Kidder’s argument under CJ §8- 404(b) as applies in assessing his constitutional argument.

We have already determined, in response to Mr. Kidder’s constitutional claim, that no prospective juror was excluded from consideration for jury service other than those who were excused for cause or as a 30 result of a party’s peremptory strike – both of which are permissible bases for a prospective juror to be “struck” under CJ §8-404(b). In addition, in Wilkins, this Court held that, unless excluded jurors were a cognizable class, there was no violation of a “constitutional or statutory right,” alluding to the statute in which the predecessor of CJ §8-404(b) appeared. 270 Md. at 67 (emphasis added). Finally, our analysis of Mr. Kidder’s constitutional argument was based in part on a trial judge’s discretion under the Maryland Rules and the common law to designate the order in which prospective jurors are considered during jury selection. We note that CJ §8-106 broadly states that “[n]othing” in Title 8 – the title that governs jurors and jury selection and in which CJ §8-404(b) appears – “restricts the inherent authority of a trial judge with regard to jurors.” We thus hold that the jury selection method used by the trial judge did not violate CJ §8-404(b).

IV Conclusion For the reasons set forth above, we hold that the method of jury selection used by the trial judge did not violate Mr. Kidder’s constitutional right to an impartial jury drawn from a fair cross-section of the community. Nor did it violate CJ §8-404(b). Nevertheless, trial courts should refrain from using this method of jury selection as it uses a criterion for re-ordering the jury panel – silence in response to initial voir dire questions – that, though neutral on its face, may result in a jury that, though impartial, may not be as attentive and engaged as we want our juries to be. 31 JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS TO BE PAID BY THE PETITIONER. 32 Appendix I. First Stage of Jury Selection A. Voir Dire Questions The jury panel consisted of 60 individuals who had been summoned for potential jury service at the trial.

The trial judge asked the entire jury panel a series of 18 voir dire questions, which he had previously reviewed and discussed with counsel. After each question was asked, members of the panel were asked to stand if they had a response to the particular question. The judge noted the jury number of each prospective juror who stood and then, without further questioning of those jurors at that time, proceeded to ask the next voir dire question. In total, 46 members of the panel indicated a response to one or more of the voir dire questions.

Fourteen members of the panel did not indicate a response to any of the questions. The 18 questions posed by the trial judge are listed below, along with the number of responses to each question (The juror numbers of those who responded to the question are listed in parentheses and italics in numerical order). Record Extract at 50-67. 1. Do you know anything about this alleged incident, or have you seen or heard anything about it from any person or source including the Internet and news media? 13 responses.1 (176, 207, 227, 314, 336, 337, 343, 345, 367, 388, 401, 406, 418) 2.

Are you related by blood or marriage to the defendant, or do you know the defendant from any business or social relationship? No responses. 1 Twelve jurors responded to question 1 when asked. A thirteenth juror gave a belated response to question 1 after question 2 was asked. 1 3. Do you know any of the counsel from any professional, business, or social relationship, or have you ever been represented in a legal matter by any of them?2 4 responses.

(278, 300, 343, 378) 4. Do you know or are you familiar with Jose Eduardo Madrid Pineda through any contact or in any capacity? No responses. 5. Do you know any of [the] witnesses in any capacity? 14 responses.

(176, 207, 274, 283, 295, 300, 303, 327, 334, 346, 359, 375, 378, 406) 6. Would you give any greater or lesser credit or weight to the testimony of a police officer over that of a witness in another occupation merely because of his or her status as a police officer? 9 responses. (278, 283, 323, 336, 364, 374, 375, 388, 418) 7. Have any of you or any member of your immediate family – immediately family defined as spouse, parent, child, or spouse of a sibling – been (a) the victim of a crime similar to the crimes charged today; (b) a witness to a crime; (c) arrested for, charged with, or convicted of a crime other than a minor motor vehicle violation? 23 responses.

(122, 176, 207, 273, 282, 283, 300, 307, 317, 323, 327, 330, 342, 356, 359, 368, 378, 393, 395, 400, 401, 406, 420) 2 Question 3 was asked in two parts, with the trial court asking prospective jurors who had responded to the first part to remain standing for the second part. 2 8. Do any of you have strong feelings about the crimes with which the defendant is charged? No responses. 9. Have you or any member of your immediate family – again defined as spouse, parent, child or spouse of a sibling – ever been a member of a law enforcement agency? 17 responses.

(273, 278, 300, 303, 323, 327, 329, 337, 342, 348, 364, 374, 380, 383, 395, 401, 418) 10.