McFadden and Miles v. State

WRIGHT, J. This appeal arises out of the shooting death of George Johnson, and the wounding of Avon Ball and Macy Wilson, on July 6, 2007. After a jury trial in the Circuit Court for Baltimore City, the jointly-tried appellants, Adrian McFadden and Anthony Miles, were convicted of the following offenses and sentenced to the terms specified: McFadden 1) first degree murder of Johnson: life without parole 2) four counts of use of a handgun: 80 years total, consecutive 3) two counts of conspiracy to assault in the first degree: 10 years, consecutive, plus another 10 years, concurrent 4) armed carjacking: 30 years, consecutive 5) two counts of first degree assault: 50 years total, consecutive 6) second degree assault: merged 7) attempted first degree murder of Ball: life, consecutive Miles 1) two counts of conspiracy to assault in the first degree: 10 years, plus another 10 years, concurrent 2) first degree assault: 25 years, consecutive 3) attempted armed carjacking: 30 years, consecutive 4) second degree assault: merged This appeal followed. ²⁴⁵ Questions Presented 1 1. If preserved, where the voir dire included an objectionable “CSI” question and appellants nonetheless accepted the jury as empaneled, have appellants waived their objection to the question? 2. If preserved, did the trial court properly exercise its discretion when it overruled the Appellants’ objections to the prosecutor’s opening statement and rebuttal closing argument? 3.

To the extent that this issue is properly before this Court, did the trial court properly exercise its discretion when it determined that Appellant Miles’s cross-examination of Avon Ball was not relevant? 4. Are appellants entitled to a merger of their separate sentences for two counts of conspiracy to assault? 5. If preserved, was the evidence sufficient to sustain Appellants’ convictions for attempted armed carjacking, conspiracy and first degree assault? 6. Did the trial court properly exclude from evidence Avon Ball’s prior conviction for assault? 7.

Did the trial court properly exercise its discretion when it permitted Avon Ball to testify that he understood Appellants’ actions to mean that they intended to take his vehicle? 8. If properly before this Court, did the trial court properly allow into evidence the out-of-court statements of Avon Ball, Shantia Benson, Trezline Burris, and Appellant McFadden? ²⁴⁶ 9. If not waived, did the trial court properly decline to instruct the jury on self-defense and properly limit defense counsel’s argument on mutual affray to the charges of assault? 10. Was the trial court’s conduct of the trial not plainly erroneous?

We conclude that appellants preserved the first two issues for our review. We answer both in the negative and, thus, reverse the judgments of the circuit court and remand the cases for a new trial. 2 In light of our reversal based on the first two issues, we decline to address issues three through ten. Facts During the trial, Avon Ball testified that, on the evening of July 6, 2007, he was riding as a passenger in a car with his foster brother, George Johnson, and Ball’s seven-month-old son. Ball stated that he had just dropped off his six-year-old daughter at Preston and Cary Streets in Baltimore City, and he was on his way to another foster brother’s house at 803 North Payson Street, to pick up Johnson’s tennis shoes.

As they arrived at the 800 block of North Payson Street, Johnson drove past their destination, then backed into an alley to turn around, so that they could approach 803 North Payson from the same side of the street. Once they turned out of the alley, Ball heard “some commotion,” and Johnson stopped the car. Specifically, Ball stated that he heard appellant Miles “swearing down towards us saying [ ] you almost hit my son.” Ball, however, did not “see a child in the area at that point.” According to Ball, Miles was accompanied by a male and a female. Ball testified that he exchanged words with Miles for approximately “a minute, minute and a half’ before Johnson pulled out of the alley and “parked the car diagonally into 803 [North Payson].” Ball remained in the vehicle with his son, ²⁴⁷ while Johnson “got out of the car, ... and knock[ed] on the door to get his tennis shoes.” While Johnson waited at the front door, Ball observed a group of about five males— including appellants Miles and McFadden—walking in the middle of the street, approaching 803 North Payson.

Ball told Johnson “to pay attention because ... the dude ... was coming towards us” but Johnson “just kept knocking on the door.” Thereafter, three males “jumped” Johnson, and Ball exited the vehicle “to help him out.” Before he could reach Johnson, however, Ball stopped because he saw appellant McFadden pointing a black, six-shot revolver at him. Meanwhile, Miles was standing in the street, yelling: “This is my life, which one of you almost hit my son?” Ball then asked McFadden: “What’s the gun for?” At that time, Johnson came over to Ball’s side, and the two of them started “backing up in the middle of the street going towards Lafayette Street” with their hands “up in the air.” Ball informed McFadden that he needed to get to the vehicle because “[his] son’s in that car.” Appellants, however, stated that Ball was not getting to that car and “that’s our car.” Eventually, appellants “started to calm down a little bit,” turned around, and began “walking towards where the car was at.” Ball and Johnson walked about 15-20 feet behind them in an attempt to go “back towards the vehicle too.” As they were walking, another heated exchange of words occurred between Johnson, Miles, and other individuals present. Appellants then turned back around towards Ball and Johnson. According to Ball, Miles “took off his shirt and ... start[ed] coming toward us” while McFadden “started shooting.” Ball began running and heard about six shots fired.

He was struck by two bullets before he rounded the corner at North Payson and Lafayette Streets. One bullet went through his abdomen and another grazed his side. When Ball went back to check on Johnson, who was “lying in the middle of the street,” he saw McFadden “wiping off the gun” and ²⁴⁸ asking whether Johnson was dead. One girl, 17-year-old Macy Wilson, was also struck by a bullet in her left thigh.

Approximately five minutes after Ball was shot, “the ambulance and stretcher came and got [him].” When he reached the hospital, Ball learned that Johnson had died. Ball suffered a collapsed lung, had his spleen taken out, and his diaphragm reconstructed. He was in the hospital for eight or nine days. Ball testified that there was no doubt in his mind that McFadden was the person who fired the gun.

On July 11, 2007, Ball selected McFadden, from a six-pack photographic array, as the person who “pointed the gun ...[,] killed my brother [Johnson] and also shot me and other people that night.” That same day, Ball identified Miles, from a photographic array, as the person who “started the argument ... and ... swung at me and my brother at different times during the incident.” In addition, Ball stated that Miles is “the reason why my brother George Johnson and I was shot and my brother killed.” When the defense presented their case, several witnesses testified that the shots were fired from a darkened playground area some distance away, and not from the area of the fight. According to some of those witnesses, the shooter was another individual named Steffan Hawkins. 3 Additional facts will be provided as necessary, in the relevant sections, below. Discussion I. CSI Instruction Appellants argue that “the trial court erred by using specific non-neutral language in its voir dire question regarding ‘CSI-type’ evidence.” Specifically, appellants aver that the question “suggested to the jury that [a guilty finding] was the only option regardless of whether scientific evidence was presented in the case.” Meanwhile, the State counters by ²⁴⁹ arguing that appellants did not preserve this issue for our review, and in the alternative, that they have waived any appellate complaint “because they accepted the jury as empaneled.” “Voir dire is critical to the protection of a criminal defendant’s right to a fair and impartial jury, as guaranteed by the Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights.” State v. Logan, 394 Md. 378, 395-96 , 906 A.2d 374 (2006) (citations omitted). In Maryland, voir dire aids in ensuring “a fair and impartial jury by determining the existence of cause for disqualification.” Logan, supra, 394 Md. at 396 , 906 A.2d 374 (citation omitted). “The process entails examination of prospective jurors through questions propounded by the judge (or either of the parties, if allowed by the judge) to determine the existence of bias or prejudice and, literally translated, means ‘to say the truth.’ ” Charles & Drake v. State, 414 Md. 726, 733 , 997 A.2d 154 (2010) (citation omitted). “[0]ur tenets of voir dire favor inquiries tailored to the likely issues to be presented in the case, so juror biases directly related to the crime, the witnesses, or the defendant, may be uncovered.” Id. at 734 , 997 A.2d 154 .

The manner of voir dire is governed by Rule 4-312(d), which states: (1) Examination. The trial judge may permit the parties to conduct an examination of qualified jurors or may conduct the examination after considering questions proposed by the parties. If the judge conducts the examination, the judge may permit the parties to supplement the examination by further inquiry or may submit to the jurors additional questions proposed by the parties. The jurors’ responses to any examination shall be under oath.

On request of any party, the judge shall direct the clerk to call the roll of the array and to request each qualified juror to stand and be identified when called. (2) Challenges for cause. A party may challenge an individual qualified juror for cause. A challenge for cause shall be ²⁵⁰ made and determined before the jury is sworn, or thereafter for good cause shown. “The right to a fair trial guaranteed by the Sixth Amendment of the United States Constitution and Article 21 of Maryland’s Declaration of [R]ights requires that judges refrain from making comments which potentially may improperly influence the jury or a specific juror or jurors.” Butler v. State, 392 Md. 169, 192 , 896 A.2d 359 (2006).

Thus, “[a] judge’s role during a jury trial makes his or her statements subject to a high level of scrutiny, when they may result in an unfair advantage to either party.” Id. at 181 , 896 A.2d 359 . It has been held “inappropriate to question the jury [during voir dire] as to whether or not they would be disposed to follow or apply stated rules of law because they are covered in subsequent instructions to the jury.” Marquardt v. State, 164 Md.App. 95, 142 , 882 A.2d 900 (2005) (citing Tunning v. State, 234 Md. 97, 100 , 198 A.2d 291 (1964)) (internal quotation marks omitted). “A question designed to commit potential jurors to positions on a specific set of facts which will arise in the course of a trial is also improper.” Stewart v. State, 399 Md. 146, 163 , 923 A.2d 44 (2007) (citation omitted). At a bench conference during voir dire on October 21, 2008, the trial court in this case informed both defense attorneys that it would be asking the “CSI instruction” and noted that they could “take exception,” which they did. Prior to asking the voir dire question, the court addressed defense counsel and stated: “Now, counsel, I’ve made a note of your views at the bench with regard to the question I’m about to ask for the record.” The court then stated: I’m going to assume, based on having done this before, that many of you watch way too much television, including the so-called realistic crime shows, like CSI, Miami, and CSI, New York, and CSI, Glen Burnie, Law and Order, and Illegal and Unwarranted and the rest of them.

Now, I trust you understand that these crime shows are fiction and fantasy. And for dramatic effect and for you to stay tuned in, they purport to rely upon “scientific evi ²⁵¹ dence.” This is certainly entertainment, but you must not allow that entertainment to interfere with the high duty you will have in this case as a juror. Therefore, if you are currently of the opinion or belief that you cannot convict a Defendant without “scientific evidence,” regardless of the other evidence in the case and regardless of the instruction I give you as to law, please rise. I see no responses.

Okay. After a jury was not selected on that day, the venire panel was excused. When a new venire panel was assembled on October 23, 2008, the court again asked the “CSI” question and received no responses. Thereafter, the court asked counsel to approach the bench and the following ensued: THE COURT: ... any further exceptions which were already stated? [McFadden’s counsel]: No. THE COURT: All right. [Miles’s counsel]: Your Honor, I did have an exception to the CSI question.

THE COURT: I understand. The State first contends that this issue is not preserved for our review because, on October 23, 2008, defense counsel objected to the CSI question after the voir dire question had been posed. We have previously held, however, that in order to preserve an objection, counsel need only “mak[e] known to the trial court what he wanted done.” Baker v. State, 157 Md.App. 600, 610 , 853 A.2d 796 (2004) (issue was preserved where “appellant told the trial court that he objected to its failure to ask his requested voir dire questions”) (citations and footnote omitted). Our decision was based on Maryland Rule 4-323(e), which provides, in pertinent part: [I]t is sufficient that a party, at the time the ruling or order is made or sought, makes known to the court the action that the party desires the court to take or the objection to the action of the court.

The grounds for the objection need not ²⁵² be stated unless these rules expressly provide otherwise or the court so directs. If a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection at that time does not constitute a waiver of the objection. In this case, counsel for both appellants noted their objection to the CSI question on October 21, 2008. When a new venire panel was assembled on October 23, 2008, the court immediately conducted voir dire and again asked the CSI question, and defense counsel was not required to object until after the question was posed.

Because Miles’s counsel noted his exception at the ensuing bench conference and made known to the court what he wanted done, this issue was properly preserved. Next, the State argues that this issue is “nonetheless waived” because “[ajppellants accepted the jury as empaneled without qualification.” Quoting Gilchrist v. State, 340 Md. 606 , 667 A.2d 876 (1995), the State notes that “a defendant’s claim of error in the inclusion or exclusion of a prospective juror or jurors is ordinarily abandoned when the defendant or his counsel indicates satisfaction with the jury at the conclusion of the jury selection process.” Id. at 617-18 , 667 A.2d 876 (citations omitted). The State’s reliance on Gilchrist , however, is misplaced, as appellants’ claim of error does not lie upon the inclusion or exclusion of a prospective juror. Rather, appellants challenge the court’s propriety in posing the CSI question.

In Fowlkes v. State, 117 Md.App. 573 , 701 A.2d 862 (1997), we stated: [W]here the objection was not directly aimed at the composition of the jury ultimately selected, we have taken the position that the objecting party’s approval of the jury as ultimately selected ... did not explicitly or implicitly waive his previously asserted ... [objection, and his] objection was preserved for appellate review. Id. at 579-80 , 701 A.2d 862 (citation omitted). In other words, when defense counsel objects to the trial court’s “failure to ask ²⁵³ a particular question during voir dire, not to the ultimate composition of the jury,” he or she does not “waive the objection by approving the panel selected.” Id. at 580 , 701 A.2d 862 (citing Gilchrist, supra, 340 Md. at 617 , 667 A.2d 876 ). This is consistent with our decision in Marquardt , where we made clear that “accepting the jury that is ultimately selected after the circuit court has refused to propound requested voir dire questions does not constitute acquiescence to the previous adverse ruling.” Marquardt, supra, 164 Md. App. at 143 , 882 A.2d 900 (citations omitted).

We note that the decisions in Fowlkes and Marquardt dealt with objections to the court’s refusal to give the requested instruction, whereas this case presents an objection to a question actually given. We treat these circumstances identically because in both, “defense counsel’s acceptance of the jury was merely obedient to the court’s ruling and obviously was not a withdrawal of the prior objection, timely made.” Fowlkes, supra, 117 Md.App. at 580 , 701 A.2d 862 (citation, alterations, and internal quotation marks omitted). Having concluded that appellants have preserved this issue for our review, we turn to determine whether the trial court erred in including the CSI question during voir dire. The State concedes that, if the issue is properly before this Court, then appellants are, “under Charles and Drake, entitled to a new trial.” In Claries & Drake, the Court of Appeals rejected a voir dire question that was similar to the question at issue here.

There, the trial court asked: I’m going to assume that many of you, from having done a few of these, watch way too much TV, including the so-called realistic crime shows like CSI and Law and Order. I trust that you understand that these crime shows are fiction and fantasy and are done for dramatic effect and for this dramatic effect they purport to rely upon, “scientific evidence,” to convict guilty persons. While this is certainly acceptable as entertainment you must not allow this entertainment experience to interfere with your duties as a juror. ²⁵⁴ Therefore, if you are currently of the opinion or belief that you cannot convict a defendant without “scientific evidence,” regardless of the other evidence in the case and regardless of the instructions that I will give you as to the law, please rise____ Charles & Drake, supra, 414 Md. at 730 , 997 A.2d 154 (emphasis and footnote omitted). On appeal, the Court of Appeals concluded that “the judge abused his discretion by suggesting to the panel that ‘convicting]’ Drake and Charles was the only option.” Id. at 739 , 997 A.2d 154 .

According to the. Court, “this suggestive question poisoned the venire, thereby depriving Drake and Charles of a fair and impartial jury.” Id. Because the voir dire question in Charles & Drake is nearly identical to the CSI question in this case, we likewise conclude that appellants were deprived of a fair and impartial jury. 4 II. The State’s Improper Comments Next, appellants argue that the trial court erred when it allowed the State to make several “improper” comments during its opening statement and closing argument.

Preliminarily, the State counters by arguing