Kumar v. State

Amit Kumar v. State of Maryland, No. 21, September Term, 2021 VOIR DIRE – APPLICABILITY OF HOLDING TO PENDING CASES – PRESERVATION FOR APPELLATE REVIEW – Court of Appeals held that holding in Kazadi v. State, 467 Md. 1, 9, 47 , 223 A.3d 554, 559, 581 (2020)—that, on request, during voir dire, trial court must ask whether prospective jurors are unwilling or unable to comply with jury instructions on certain fundamental principles and that Kazadi applied to any other cases pending on direct appeal when opinion was filed where relevant question was preserved for appellate review—applies to any case pending in trial or appellate court that had not become final on direct appeal when Court issued opinion in Kazadi and in which Kazadi issue was preserved for appellate review. In other words, holding in Kazadi applies to cases in which there had not yet been final disposition, regardless of whether notice of appeal had been filed at time opinion in Kazadi was issued, where issue had been preserved for appellate review. Court concluded that Petitioner was entitled to benefit of holding in Kazadi because there had not yet been final disposition in Petitioner’s case when Court issued opinion in Kazadi and claim was preserved for appellate review. Circuit Court for Baltimore City Case No. 119053002 Argued: November 9, 2021 IN THE COURT OF APPEALS OF MARYLAND No. 21 September Term, 2021 ______________________________________ AMIT KUMAR v. STATE OF MARYLAND ______________________________________ Getty, C.J. McDonald Watts Hotten Booth Biran Murphy, Joseph F., Jr. (Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Watts, J. McDonald and Biran, JJ., concur. ______________________________________ Filed: December 20, 2021 In Kazadi v. State, 467 Md. 1, 9 , 223 A.3d 554, 559 (2020), we held “that, on request, during voir dire, a trial court must ask whether any prospective jurors are unwilling or unable to comply with the jury instructions on the fundamental principles of presumption of innocence, the State’s burden of proof, and the defendant’s right not to testify.” In so holding, we overruled Twining v. State, 234 Md. 97, 100 , 198 A.2d 291, 293 (1964), in which this Court had previously held that a trial court was not required to ask such voir dire questions.

In Kazadi, we initially stated that our holding would apply to Kazadi and to other cases prospectively as of the date on which the opinion was issued. Subsequently, we replaced the language in Kazadi concerning its applicability to indicate that the holding would apply to the case and “any other cases that [were] pending on direct appeal when [the] opinion [was] filed, where the relevant question ha[d] been preserved for appellate review.” Kazadi, 467 Md. at 47 , 223 A.3d at 581 (citations omitted). In this case, we must determine whether our holding in Kazadi applies to cases in which a defendant had not yet noted an appeal when the opinion was issued in Kazadi but had preserved a Kazadi issue at trial. We hold that Kazadi applies to such cases.

In addition, we conclude that in this case the Kazadi issue was preserved for appellate review. BACKGROUND Charges and Verdict The State, Respondent, charged Amit Kumar, Petitioner, with first- and second- degree murder of his wife, Ankita Verma, and openly carrying a dangerous weapon (a knife) with the intent to injure. In the Circuit Court for Baltimore City, a jury found Kumar guilty of first-degree murder and the weapon offense. Because the facts of the case are not material to the issue before us, we will not provide a summary of the evidence.

It suffices to say that after a trial by jury, Kumar was convicted of first-degree murder and openly carrying a dangerous weapon with the intent to injure after his wife had been found stabbed to death in their apartment. The issue in this case concerns the jury selection process. Voir Dire On November 4, 2019, the circuit court conducted jury selection. Before voir dire, Kumar submitted to the circuit court in writing a list of seventeen proposed voir dire questions, which included the following Kazadi-type questions: 15.

You must presume the defendant innocent of the charges now and throughout this trial unless and until, after you have seen and heard all of the evidence, the State convinces you of the defendant’s guilt beyond a reasonable doubt. If you do not consider the defendant innocent now, or if you are not sure that you will require the State to convince you of the defendant’s guilt beyond a reasonable doubt, please stand. 16. In a criminal case, like this one, each side may present arguments about the evidence, but the State has the only burden of proof. The defendant need not testify in his/her own behalf or present any evidence at all. a.

Would you tend to believe or disbelieve the testimony of a witness called by the defense more than the testimony of a prosecution witness? b. Would you hold it against a defendant if [he/she/they] chooses not to testify or chose not to present any evidence? (Brackets in original) (citation omitted). While reviewing the parties’ proposed voir dire questions, the circuit court asked: “Is there anything that is not included in the State’s voir dire that the defendant specifically -2- requests?” Kumar’s counsel responded by requesting that the circuit court ask several voir dire questions that he had proposed, including questions 15 and 16.

The circuit court denied Kumar’s counsel’s request to ask proposed voir dire questions 15 and 16, which were the Kazadi questions. The following discussion occurred concerning voir dire questions 15 and 16, the Kazadi case (which was pending before us at the time), and Twining, 234 Md. 97 , 198 A.2d 291 (which we overruled in Kazadi): [KUMAR’S COUNSEL]: I would ask that the Court propound . . . defense request for voir dire question number 15. There is currently a case, I think it’s in the Court of Special Appeals[1] right now -- THE COURT: Yeah, it’s sitting there. Until they make a decision, the old law from about 50 years ago resumes.

I’m with you, [defense counsel], but until the Court of Special Appeals makes that determination I’ll have to deny your request as to presumption of innocence. And if I’m thinking ahead of you as to number -- well, part of number 16. [KUMAR’S COUNSEL]: And I would also ask that the Court include question 16 as well. THE COURT: I’ll note the request. [KUMAR’S COUNSEL]: And, Judge, we would take exception -- THE COURT: The exception is noted as to the Court’s denial of the defendant’s requested 15. [KUMAR’S COUNSEL]: And 16 as well. THE COURT: And exception is noted with regard to -- I haven’t denied it yet.

I’ll deny the request as number 16. I will note again this issue is before the Court of Special Appeals, . . . but . . . that question at this moment is still improper, so I’ll deny 16 also. I’ll note your exception in that regard. 1 Kumar’s counsel mistakenly referred to the “Court of Special Appeals” and the circuit court repeated the reference twice during the discussion above. At the time that Kumar’s trial began, oral argument had occurred in this Court in Kazadi and the case was awaiting the issuance of an opinion. -3- (Paragraph breaks omitted).

During the circuit court’s review of the proposed voir dire questions, there were three instances in which Kumar’s counsel excepted to the circuit court’s refusal to ask a proposed voir dire question. In the first two instances, Kumar’s counsel excepted to the circuit court’s refusal to ask voir dire question 15 and to the circuit court’s refusal to ask voir dire question 16—i.e., the Kazadi-type voir dire questions. In the third instance, Kumar’s counsel excepted to the circuit court’s decision to ask an edited version of a proposed supplemental voir dire question—question B—which concerned whether jurors or their family members were trained or employed in the medical field. In all other instances, Kumar’s counsel did not except to the circuit court’s refusal to ask proposed voir dire questions.

Kumar’s counsel did not except to the circuit court’s refusal to ask proposed voir dire questions 10 (which pertained to whether jurors had law enforcement connections) and 17 (which was a catchall question). Similarly, Kumar’s counsel did not except to the circuit court’s decision to ask an edited version of proposed voir dire questions 9 (which pertained to whether jurors may have had biases against certain groups of people) and 12 (which pertained to whether the jurors had connections to certain advocacy organizations). In another instance, although the circuit court stated that it would note Kumar’s counsel’s exception to the court’s refusal to ask a supplemental voir -4- dire question—question A (which pertained to alcohol and drug use)—Kumar’s counsel did not actually state that he excepted to the circuit court’s refusal to ask the question.2 After the exchange above in which the circuit court declined to ask voir dire questions 15 and 16 (the Kazadi questions) and indicated that Kumar’s counsel’s exceptions to the court’s failure to ask the questions had been noted, the court asked the voir dire questions of the jury panel as a group. Upon completion of the group questions, before the court individually questioned prospective jurors who had responded affirmatively, the following exchange occurred: THE COURT: Anything further from the defense? [KUMAR’S COUNSEL]: I’ll just ask the Court to note my continuing exception to the Court’s refusal -- THE COURT: Does your client want to be here?

The circuit court did not ask Kumar’s counsel to elaborate concerning the “continuing exception to the Court’s refusal[.]” 2 The record reflects that Kumar’s counsel submitted a request for two supplemental voir dire questions—questions A and B. The circuit court declined to ask supplemental question A concerning marijuana and alcohol use and after declining to ask the question, the court stated, without prompting by Kumar’s counsel, that it would note Kumar’s exception to its refusal to ask the question. Kumar’s counsel did not advise the circuit court that an exception would be taken to the court’s refusal to ask the question. The record also reflects that the circuit court agreed, after rephrasing the question, to ask supplemental voir dire question B concerning whether jurors or their family members had been trained or employed in the medical field but stated: “I’m going to deny the request specifically as to your request to B, 1, 2 and 3, whoever comes up at sidebar voir dire, you can delve into that if you wish to, if they respond to your question B.” As explained above, Kumar’s counsel advised that he would take an exception and the circuit court noted the exception. -5- Motion for a New Trial and Notice of Appeal On November 18, 2019, in the circuit court, Kumar filed a motion for a new trial, contending, among other things, that the circuit court erred in declining to ask proposed voir dire questions 15 and 16. In the motion for a new trial, Kumar’s counsel raised various allegations of error but the only allegation raised concerning the circuit court’s failure to ask proposed voir dire questions pertained to the court’s failure to ask the Kazadi questions.

On January 24, 2020, prior to the date of Kumar’s sentencing, we issued our opinion in Kazadi and addressed the applicability of our holding as follows: Additionally, consistent with this Court’s case law, although we provide Kazadi “with the benefit of the holding[] in this case, we determine that our holding[] shall apply prospectively as of the date on which this opinion is filed.” Pearson, 437 Md. at 370, 86 A.3d at 1243. In other words, our holding exclusively applies to this case and future trials, and this opinion should not be construed as giving rise to any grounds for relief in cases in which voir dire occurred before today—i.e., cases in which trial courts operated under the assumption that Twining, 234 Md. at 100 , 198 A.2d at 293 , remained good law. (Alterations in original). On February 21, 2020, the circuit court conducted the sentencing proceeding in Kumar’s case at which it heard argument on and denied the motion for a new trial.

The circuit court sentenced Kumar to life imprisonment for first-degree murder and a consecutive sentence of three years’ imprisonment for the weapons offense. On March 2, 2020, we issued an Order replacing the language in Kazadi on the applicability of our holding with the following: Additionally, consistent with this Court’s case law, we provide Kazadi with the benefit of the holding in this case, and we determine that our holding applies to this case and any other cases that are pending on direct appeal -6- when this opinion is filed, where the relevant question has been preserved for appellate review. See Hackney v. State, 459 Md. 108, 119 , 184 A.3d 414, 421 (2018); State v. Daughtry, 419 Md. 35 , 77 n.26, 18 A.3d 60 , 85 n.26 (2011). Kazadi, 467 Md. at 54 , 223 A.3d at 586 .

On March 20, 2020, in the circuit court, Kumar filed a notice of appeal. Opinion of the Court of Special Appeals On April 13, 2021, the Court of Special Appeals affirmed Kumar’s conviction for first-degree murder and reversed for lack of sufficient evidence the conviction for openly carrying a dangerous weapon with the intent to injure. See Amit Kumar v. State, No. 300, Sept. Term, 2020, 2021 WL 1392142 , at ⁷-8 (Md. Ct. Spec. App. Apr. 13, 2021).3 The Court of Special Appeals held that the circuit court did not err or abuse its discretion in declining to ask proposed voir dire questions 15 and 16.

See Kumar, 2021 WL 1392142 , at ⁴. The Court of Special Appeals acknowledged that the State conceded that proposed voir dire questions 15 and 16 were Kazadi-type voir dire questions—i.e., voir dire questions that must be asked on request under Kazadi. See Kumar, 2021 WL 1392142 , at ³. The Court of Special Appeals noted, however, that it was not bound by concessions of law.

See id. at ⁴. The Court of Special Appeals reasoned that because the revised opinion in Kazadi stated that its holding applied to “any [] cases that [were] pending on direct appeal” when the opinion was filed and Kumar had not filed a notice of appeal until after 3 The Court of Special Appeals also held that the circuit court did not err in declining to instruct the jury on self-defense and did not abuse its discretion denying a motion to postpone sentencing. See Kumar, 2021 WL 1392142 , at ⁶-7. Those issues, as well as the question of whether the evidence was sufficient to support Kumar’s conviction for openly carrying a dangerous weapon with the intent to injure, are not before us. -7- the Kazadi opinion was issued, Kumar was not entitled to relief.

Kumar, 2021 WL 1392142 , at ⁴. The Court of Special Appeals determined that Twining, not Kazadi, applied and that, as such, it need not address the State’s contention that Kumar’s Kazadi claim was waived or unpreserved for appellate review. See Kumar, 2021 WL 1392142 , at ⁴. Petition for a Writ of Certiorari On May 14, 2021, Kumar petitioned for a writ of certiorari, raising the following two issues: 1.

Does the holding of Kazadi [] apply to all litigants who preserved the issue and whose cases were not yet final when the Kazadi opinion was issued, regardless of whether they had filed a notice of appeal by that date? 2. Did the Court of Special Appeals violate [Kumar]’s constitutional right to equal protection by applying different law to [Kumar]’s case as compared to other similarly situated litigants? On July 9, 2021, we granted the petition. See Kumar v. State, 475 Md. 3 , 256 A.3d 270 (2021).

DISCUSSION The State agrees with Kumar that this Court’s conclusion in Kazadi that its holding would apply “to this case and any other cases that [were] pending on direct appeal when [the] opinion [was] filed, where the relevant question has been preserved for appellate review[,]” Kazadi, 467 Md. at 47 , 223 A.3d at 581 (citations omitted), includes “cases that were pending in the trial court when Kazadi was decided and had not yet become final on direct appeal.” (Footnote omitted). Kumar points out that, because we indicated that the applicability of the holding in Kazadi was consistent with case law such as Hackney and -8- Daughtry, the holding applies to any case in which there had not yet been a final disposition4 when the opinion in Kazadi was issued, regardless of whether the defendant had filed a notice of appeal at the time. In agreement, the State adds that our opinion in Kazadi and other case law indicate that, consistent with the United States Supreme Court’s decision in Griffith v. Kentucky, 479 U.S. 314 (1987), Kazadi applies to all cases that were pending on direct review or not yet final where the issue is preserved for appellate review. The parties are correct.

In light of case law from the United States Supreme Court and this Court and considerations of fairness, our holding in Kazadi applies to any case that was pending in a trial or appellate court that had not become final on direct appeal when this Court issued the opinion in Kazadi and in which the Kazadi issue had been preserved for appellate review. In other words, our holding in Kazadi applies to cases in which there had not yet been a final disposition, regardless of whether a notice of appeal had been filed 4 At various times, the parties use the term “final judgment” in discussing cases in which appellate proceedings have not concluded. Citing Franklin v. State, 470 Md. 154, 186 , 235 A.3d 1, 19 (2020), Kumar states that the term “final judgment” refers to “when the judgment of conviction has been rendered, all appeals have been exhausted, and the time for a petition for certiorari has elapsed.” In Franklin, id. at 186 , 235 A.3d at 19 , however, we stated that the term “‘[f]inal disposition of the case’ means the point where the judgment of conviction was rendered, the availability of (final) appeal exhausted, and the time for petition for certiorari had elapsed.” (Cleaned up). In other words, the term “final disposition” means the point at which a defendant has exhausted the right to a direct appeal.

On the other hand, “[a] final judgment is one that either determines and concludes the rights of the parties involved or denies a party the means to prosecute or defend his or her rights and interests in the subject matter of the proceeding”—i.e., a “final judgment is one that puts a party out of court[.]” Brown v. State, 470 Md. 503, 549 , 236 A.3d 488, 514 (2020) (cleaned up). For example, generally, “there is a final judgment for purposes of appeal in a criminal case when the sentence is announced or imposed.” Id. at 550 , 236 A.3d at 515 (citation omitted). In this case, to avoid confusion, when referring to the point at which the right to a direct appeal has been exhausted, we use the term “final disposition” instead of the term “final judgment.” -9- at the time the opinion in Kazadi was issued, and in which the issue had been preserved for appellate review. Because the Soule case, a case that involved a similar issue, provided the backdrop for our revised opinion in Kazadi, we will briefly discuss the history of the case in this Court.

On March 20, 2019, Soule filed a petition for a writ of certiorari in which one of the questions presented was whether case law in which this Court had concluded that it was inappropriate for a trial court to ask voir dire questions concerning the presumption of innocence should be revisited. We placed Soule’s petition on hold pending the disposition of Kazadi.5 On January 31, 2020, after the issuance of our opinion in Kazadi, Soule filed a supplement to his petition for a writ of certiorari, contending that Kazadi applied to all pending cases—i.e., cases in which the right to direct appeal had not yet been exhausted at the time the Kazadi opinion was issued—where the issue is preserved for appellate review. Soule requested that we revise the opinion in Kazadi to indicate that the holding applied to cases in which the right to appeal had not been exhausted.6 On March 2, 2020, citing Daughtry and Hackney, we issued the Order revising Kazadi to indicate that the holding applied to all cases “pending on direct appeal” at the time the opinion was issued and where 5 On May 14, 2019, we had granted a petition for writ of certiorari filed by Kazadi through counsel. See Kazadi v. State, 463 Md. 637 , 207 A.3d 1215 (2019). 6 On February 3, 2020, although Soule was not a party to the case, Soule filed a line in Kazadi attaching the supplement.

On February 5, 2020, Kazadi filed a motion to strike the line and the attachment, contending that Soule essentially sought reconsideration in Kazadi, which he lacked standing to do because he was not a party to the case. Ultimately, after replacing language in Kazadi concerning the applicability of the holding, we denied Kazadi’s motion to strike as moot. - 10 - the issue was preserved for appellate review. Kazadi, 467 Md. at 54 , 223 A.3d at 586 .7 As such, our revision of the language in Kazadi concerning the applicability of its holding occurred as a result of the supplement to the petition for a writ of certiorari filed in Soule. In the supplement, Soule requested that we revise Kazadi because under Griffith, 479 U.S. 314 , and our existing case law, Kazadi would apply to pending cases—i.e., cases in which the right to direct appeal had not yet been exhausted—where the issue is preserved for appellate review.

In Griffith, 479 U.S. at 322 , the Supreme Court held that the “failure to apply a newly declared constitutional rule to criminal cases pending on direct review violates basic norms of constitutional adjudication.” Quoting Williams v. United States, 401 U.S. 667, 679 (1971) (Harlan, J., concurring), the Supreme Court explained that the nature of judicial review “precludes us from ‘[s]imply fishing one case from the stream of appellate review, using it as a vehicle for pronouncing new constitutional standards, and then permitting a stream of similar cases subsequently to flow by unaffected by that new rule.’” Griffith, 479 U.S. at 323 (alteration in original). In various instances in Griffith, the Supreme Court used the terms “not yet final” and “pending on direct review” interchangeably in referring to the cases to which the new rule should apply.8 Griffith, 479 7 On the same date, we granted the petition in Soule and issued a per curiam order vacating the Court of Special Appeals’s judgment and remanding the case to that Court with instructions to determine whether Kazadi applied. See Soule v. State, 467 Md. 689 , 226 A.3d 234 (2020); Soule v. State, 467 Md. 432 , 225 A.3d 415 (2020). 8 In addition, citing United States v. Johnson, 457 U.S. 537 (1982), in Griffith, the Supreme Court observed that the Fourth Amendment ruling in Payton v. New York, 445 U.S. 573 (1980), barring police from making a warrantless, nonconsensual entry into a person’s home to make a routine felony arrest, “applied retroactively to a case pending on direct appeal.” Griffith, 479 U.S. at 321 n.7. - 11 - U.S. at 316, 323, 328. This language indicates that, where the term “pending on direct appeal” is used in Kazadi, the term indeed refers to cases that were not yet final—i.e., cases in which there had not yet been final dispositions.

That the replacement of the language in Kazadi was made in light of the Supreme Court’s holding in Griffith demonstrates that our holding in Kazadi applies to all cases pending appeal or pending direct review, i.e., cases in which there had not yet been a final disposition as opposed to only cases in which a notice of appeal had already been filed.9 In addition, in the order revising the applicability of the holding in Kazadi, we cited Hackney and Daughtry, stating that, “consistent with this Court’s case law, . . . we determine that our holding applies to this case and any other cases that are pending on direct appeal when this opinion is filed[.]” Kazadi, 467 Md. at 54 , 223 A.3d at 586 . The use of the two cases indicates that the holding in Kazadi should have the same retroactive effect as the retroactive application discussed in Hackney and Daughtry. In Hackney, 459 Md. at 119, 132 , 184 A.3d at 421, 429 , we adopted the prison mailbox rule and because our holding was a new application of “constitutional provisions, statutes, or rules,” we determined that Hackney was entitled to the benefit of the rule and “so too should any other 9 In addition, after the order revising the holding in Kazadi was issued, the discussion of the Kazadi case in a recent dissenting opinion indicated that its holding involved an application of Griffith. See Rochkind v. Stevenson, 471 Md. 1 , 67 n.6, 236 A.3d 630 , 669 n.6 (2020) (Watts, J., dissenting); see also Abruquah v. State, 471 Md. 249, 253 , 240 A.3d 1205, 1207 (2020) (Watts, J., dissenting) (quoting Rochkind, 471 Md. at 67 n.6, 236 A.3d at 669 n.6 (Watts, J., dissenting)).

The observation in the dissent in Rochkind that Kazadi implemented the principle expressed in Griffith that newly announced constitutional rules apply to cases pending on direct appeal indicates that, consistent with Griffith, Kazadi applies to cases in which there had not yet been a final disposition when the opinion was issued, where the issue is preserved for appellate review. - 12 - similarly situated prisoner whose case is pending receive the benefit of the rule we adopt here.” In reaching this conclusion, among other cases, we cited Griffith. See Hackney, 459 Md. at 119 , 184 A.3d at 421 . Similarly, in Daughtry, 419 Md. at 77 n.26, 18 A.3d at 85 n.26, we indicated that application of a new rule would apply to “all other pending cases where the relevant question has been preserved for appellate review.” (Cleaned up). Consistent with Hackney and Daughtry, our holding in Kazadi applies (assuming that the issue is preserved for appellate review) to pending cases—i.e., cases in which there had not yet been a final disposition when we issued the opinion in Kazadi.

Griffith, Hackney, and Daughtry are not the only cases that reinforce this principle. In Polakoff v. Turner, 385 Md. 467, 487-88 , 869 A.2d 837, 850 (2005), we observed that “a new interpretation of a constitutional provision, statute, or rule has included the case before us and all other pending cases where the relevant question has been preserved for appellate review.” (Cleaned up). By contrast, “[g]enerally, judicially-initiated changes to the common law apply prospectively, that is, they apply in the case before us and all similar cases moving forward.” State v. Jones, 466 Md. 142, 164 , 216 A.3d 907 , 920 (2019) (citations omitted). Our holding in Kazadi is subject to the principle set forth in Polakoff because the holding was based on a constitutional provision and fundamental principles, not the common law.10 Because Kazadi involved an interpretation of a constitutional 10 As we observed in Kazadi, 467 Md. at 45 , 223 A.3d at 580 , the right not to testify emanates directly from a constitutional provision—namely, “[t]he Fifth Amendment to the Constitution of the United States, which was ratified in 1791[ and] expressly enshrines the right not to testify” in a criminal case.

In Kazadi, the only instance in which we referred to the common law was when we pointed out that, “[a]lthough the Constitution does not - 13 - provision and fundamental principles, under Polakoff, its holding applies to “all other pending cases where the relevant question has been preserved for appellate review.” Polakoff, 385 Md. at 487-88 , 869 A.2d at 850 (cleaned up). Further, considerations of fairness warrant our present holding. We agree with the State that concluding otherwise would “create[] a strange ‘doughnut hole’ in Kazadi’s application” in that the holding in Kazadi would apply to future cases and cases where appeals were actually pending when we issued the opinion in Kazadi, but not to cases falling between those two categories—i.e., ones in which defendants had been tried but not yet noted appeals when Kazadi was issued. We do not see any principled reason to deny relief under Kazadi to defendants simply because they noted appeals after the opinion was issued.

Having resolved the issue of the applicability of Kazadi, we turn to the outcome of this case. Kumar requests that we reverse and remand the case to the circuit court for a new trial. The State asks that we vacate the judgment of the Court of Special Appeals and remand the case to that Court for it to address the issue of preservation for appellate review as well as the “merits” of Kumar’s Kazadi claim. We decline the State’s request.

As we see it, the merits of Kumar’s claim are the same as the issue that we have already considered concerning the applicability of the explicitly refer to the burden of proof or the presumption of innocence, both of those principles existed under the common law at least since around the time of the country’s founding.” Id. at 45, 223 A.3d at 580 (citations omitted). As such, in Kazadi, the common law was mentioned only to explain that these fundamental principles arose from it centuries ago at the time of our country’s founding. - 14 - holding in Kazadi. Although the question before us was phrased in terms of whether this is a case to which the holding in Kazadi would apply, it is the same question that forms the merits of Kumar’s Kazadi claim. We have resolved the matter in accord with the position taken by both parties and concluded that the holding in Kazadi applies to all cases in which there was no final disposition at the time the Kazadi opinion was issued and in which the issue is preserved for appellate review—regardless of whether a notice of appeal had been filed in the case.

The State has already acknowledged in the Court of Special Appeals that proposed voir dire questions 15 and 16 are Kazadi-type voir dire questions—i.e., voir dire questions that must be asked on request under Kazadi. See Kumar, 2021 WL 1392142 , at ³. So, if the issue is preserved, there is nothing left to decide with regard to the merits of Kumar’s Kazadi claim.11 Although the Court of Special Appeals declined to address the issue of preservation, under Maryland Rule 8-131(b)(1), we have the discretion to consider an issue that was not decided by the Court of Special Appeals and not raised in a petition or cross-petition for a writ of certiorari.12 In this case, based on the record of the jury selection process and to 11 To the extent that the State asserts that the merits of Kumar’s Kazadi claim are not before us because the first question presented in the petition for a writ of certiorari concerned only the applicability of Kazadi in general, not whether Kumar is entitled to relief under Kazadi, the State, in reality, does not contend that the merits of Kumar’s claim are any different than the issue that we have already decided. 12 We disagree with Kumar’s contention that the State waived the issue of preservation by not filing a cross-petition for a writ of certiorari. Given that the Court of Special Appeals did not reach the issue, there was no determination on which the State could base a cross-petition.

That said, although Kumar argued on brief that the State waived the preservation issue by not filing a cross-petition, at oral argument, on rebuttal, in response to questions - 15 - avoid future unnecessary appellate proceedings, we believe it prudent to exercise our discretion to reach the preservation issue. To be sure, it may be a general practice where we reverse on an issue to remand a case to the Court of Special Appeals for it to address issues not previously decided if the undecided issues that were before that Court are not moot. While this may be a general practice, it is not an absolute requirement. We are not required to remand to the Court of Special Appeals for further proceedings in every single case in which an issue was not addressed.

We have the discretion to decide such an appellate issue and have exercised our discretion to do so in other cases, including Matthews v. Amberwood Assocs. Ltd. P’ship, Inc., 351 Md. 544, 581 , 719 A.2d 119, 137 (1998), in which we observed that, “on occasions, where . . . the issue can be disposed of quickly, we have, in the interests of judicial economy and expedition, deemed it appropriate to decide such an issue rather than remand the matter to the Court of Special Appeals for decision.” (Cleaned up). In Matthews, id. at 580-81 , 719 A.2d at 136-37 , we addressed an issue concerning contributory negligence and assumption of risk that the Court of Special Appeals had not decided because it was “one of those occasions in which the issue [could] be disposed of quickly and easily” and because there was “no good