Miles v. State

BLOOM, Judge. A jury in the Circuit Court for Prince George’s County (Levin, J.) convicted appellant, Arthur Rinald Miles, of all counts in a five count indictment: Count I, murder in the ³⁶⁴ first degree (felony murder); Count II, use of a handgun in the commission of a felony; Count III, attempted robbery with a dangerous and deadly weapon; Count IV, use of a handgun in a crime of violence; and Count V, conspiracy to commit robbery with a dangerous and deadly weapon. The court sentenced appellant to life in prison on Count I, 20 years on Count II to be served consecutively with the sentence imposed on Count I, and 20 years on Count V to be served concurrently with the sentences imposed on Counts I and II. 1 In this appeal from those judgments, appellant presents the following assertions of error: I. The trial court erred in not granting appellant’s motion to recuse.

II

The trial court erred in conducting an in-chambers conference, in appellant’s absence, concerning the disqualification of a juror.

III

The trial court erred in not excusing Mrs. Oates, the juror referred to in the above mentioned argument.

IV

The trial court erred in its conduct of the voir dire. V. Appellant’s arrest was illegal and the trial court erred in failing to suppress his subsequent confession and the search of his house.

VI

The trial court erred in failing to control the scope of the State’s opening statement.

VII

The trial court erred in dismissing appellant’s motion for reverse waiver. Perceiving no reversible error, we shall affirm the judgments of the circuit court. Facts On 7 April 1990, Carl Anthony Krogmann was shot and killed by a .22 caliber pistol while attempting to deliver a “Domino’s” pizza at 11007 Mount Lubentia Way in the ³⁶⁵ Largo area of Prince George’s County, Maryland. On 9 April 1990, appellant and Roland H. Jeter were arrested pursuant to an arrest warrant, issued by a District Court Commissioner, charging them with murder. 2 While in custody, appellant gave a full statement incriminating himself and Jeter, the result of which was the issuance of a search warrant for appellant’s premises.

The subsequent seizure included a gun and other items of evidence. Following appellant’s arrest, a District Court Commissioner set bond for him. Prior to trial, the circuit court, at the State’s request, overruled the decision of the Commissioner, revoked the bond, and ordered that appellant not be released on bond pre-trial. That ruling led to a petition for writ of habeas corpus, which was denied.

Appellant then filed an application for leave to appeal to this Court. On 14 August 1990, in an unreported per curiam decision, this Court reversed the trial court and reinstated bond. Motions for reverse waiver and to suppress appellant’s oral and written statements and items that had been seized as a result of those statements were denied. Appellant’s motion for recusal of the trial judge was heard on 30 August 1990, and denied.

That motion was renewed at the commencement of the trial and again denied. Since the basic facts are not in dispute, a detailed rendition is unnecessary at this time. We shall, however, set forth those facts pertinent to each of appellant’s arguments as they appear in our discussion below. I. In his first argument, appellant asserts that the trial judge should have granted his recusal motion based on the “intense” pre-trial publicity surrounding this case.

Appellant specifically contends that the trial judge was biased and prejudiced against him due to that publicity. ³⁶⁶ Basing his request for disqualification on the appearance of impropriety, appellant offered as evidence exhibits demonstrating the pre-trial publicity as well as this Court’s per curiam, unreported opinion in which we reversed the trial judge’s decision to revoke bond and concluded that “the revocation of bail may have been, in part, a response to public opinion.” We note at the outset that “in the absence of a constitutional or statutory provision to the contrary, the judge who presided at the trial of a case which is reversed on appeal and remanded for a new trial is not disqualified to retry the case.” Bd. of Medical Examiners v. Steward, 203 Md. 574, 583 , 102 A.2d 248 (1954). The trial judge in the case at bar was certainly not disqualified because his decision to revoke bond was reversed by this Court. According to our opinion, the only fact upon which the judge based his decision to revoke bond was the grand jury indictment and this was not a sufficient change of circumstances to justify the revocation of appellant’s bond. Likewise, we find it inappropriate to base disqualification on the fact that, in dicta, we took judicial notice of the pretrial publicity.

It would have been impossible for this Court to have ignored the amount of pre-trial publicity garnered by this case; even so, we took great pains to minimize and qualify its impact on the trial court’s decision by using the words “may have been, in part, a response to public opinion.” Appellant’s reliance on Boyd v. State, 321 Md. 69 , 581 A.2d 1 (1990), for the proposition that the court should have addressed the appearance of impropriety — and its failure to do so was plain error — is a misapplication of the standard involved in such a ruling. 3 According to the Court in Boyd : ³⁶⁷ There may be, and doubtless are, many circumstances in which a delicate sense of propriety would, and probably should, induce a judge to decline to sit in a given case and, upon his own motion or upon motion of either of the parties, remove the cause to another jurisdiction or request some other judge of the same jurisdiction to preside at trial. However, if the presiding judge, under such circumstances, refuses to do this, he is within his legal rights; and his action in that respect is not the subject of review. Where the alleged disqualification does not amount to a constitutional or legal disqualification, the question is left to the enlightened conscience, delicacy of feeling, and sense of fairness possessed by the individual judge. The long and honorable history of the judiciary of this state impels the belief that the decision of such questions can be safely left where the responsibility now reposes.

Judges are selected to be useful public servants, and no judge’s view of the proprieties in such questions should be carried to such an extent as would result in the serious curtailment of his usefulness as a public officer. (Citations omitted.) Id. at 74-75 , 581 A.2d 1 . In response to appellant’s motion for recusal, the trial court stated: I have read what you have written and I listened carefully to what you have said, and I have been here sixteen years and I have presided over hundreds of cases in the past sixteen years, both civil and criminal, and the last thing that I tell jurors in this case, in any case, is that it is my function to rule on the evidence and to see that everybody has a fair trial. I intend to do that in this case, and accordingly, your motion [to recuse] is denied.

The blunt fact of the matter is that whatever may have influenced the trial judge’s decision with respect to revoca ³⁶⁸ tion of appellant’s bond has absolutely nothing to do with his role in a jury trial. There is simply no indication in the record that the judge was unable to conduct his judicial duties as an impartial arbiter of the law. Appellant further argues that the court should have allowed another judge to determine whether recusal was necessitated. The State contends that this issue was not raised before the trial court and should be deemed waived.

We note that appellant filed an affidavit asserting his belief that the court was biased and prejudiced against him. That is sufficient to preserve the recusal issue; it is not necessary that a party specifically request that the recusal motion be heard by another judge if the allegations of the recusal motion are such that another judge should rule on the motion. In Surratt v. Prince George’s County, 320 Md. 439, 465 , 578 A.2d 745 (1990), the Court of Appeals recognized that it is a statutory requirement in the federal system that “whenever a party to any proceeding ... makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, ... such judge shall proceed no further therein, but another judge shall be assigned ... to hear such proceeding.” 28 U.S.C. § 144 . Noting that Maryland had no statute or rule similar to 28 U.S.C. § 144 , the Court observed: [T]he recusal motion must set forth facts in reasonable detail sufficient to show the purported personal misconduct; mere conclusions as to lack of impartiality will not suffice.

And it should be supported by affidavit or testimony or both. These requirements are similar to the federal requirement that an affidavit be filed which “state[s] the facts and the reasons for the belief that bias or prejudice exists.” ³⁶⁹ Id. at 467 , 578 A.2d 745 . We hold that appellant’s filing of such an affidavit sufficiently preserved this issue for our review. In Surratt, supra, 320 Md. at 466 , 578 A.2d 745 , the Court of Appeals held that when the asserted basis for recusal is personal conduct of the trial judge that generates serious issues about his or her personal misconduct, then the trial judge must permit another judge to decide the motion for recusal.

In the case sub judice, appellant’s affidavit simply stated that he believed the trial court was biased and prejudiced against him due to (1) the pre-trial publicity, (2) the revocation of bond in the first instance, and (3) this Court’s judicial notice of the publicity and conclusion that the court may have been influenced by it. There is in this case no allegation of personal misconduct such as was made in Surratt . Appellant’s reliance on Surratt , therefore, is misplaced. In Surratt , a female attorney, in requesting the trial judge to recuse himself, set forth detailed assertions of misconduct on the part of the trial judge toward her personally, such as phone calls, invitations to chambers late in the day, comments on her personal appearance, and questions pertaining to her personal relationships.

In the instant case, appellant’s reasons for recusal are based solely on his own beliefs that the trial judge showed bias against him by revoking his bond. This is simply not the type of situation envisioned by Surratt that would require a second judge to decide the issue of recusal. We perceive no error in the denial of the recusal motion.

II

Appellant’s next argument concerns an in-chambers conference held on the second day of trial. At that conference a juror, Mrs. Oates, revealed that she was a school teacher and had had a parent-teacher conference with a police officer who would be testifying on behalf of the State. ³⁷⁰ That morning, prior to entering the courtroom, the juror had exchanged greetings with the officer and, when the juror walked away, she felt that this was “not cool.” She informed the Jury Commissioner, who then informed the trial court. Mrs. Oates was questioned by the court with both counsel present. Appellant contends that he should have been present during this in-chambers conference.

He asserts that his absence was due to a ruling made by the court on the preceding day wherein the court determined that appellant’s presence at an ongoing bench conference was not required by law. The right of the accused to be present at every stage of his trial is a common law right preserved by Article 5 of the Maryland Declaration of Rights and restated in Maryland Rule 4-231, Presence of Defendant. The State concedes, and the Court agrees, that the determination of whether a juror should be excused for bias, following the initial impaneling of the jury, is a stage of the trial at which the defendant would normally be entitled to be present. See Bunch v. State, 281 Md. 680, 686-88 , 381 A.2d 1142 (1978).

The State argues, however, thát this right was waived when appellant “failed to affirmatively ask to be present at bench conferences or does not express an objection at the time, and if his attorney consents to his absence or says nothing regarding the matter.” In Bunch, supra, the Court held that the defendant had a right to be present personally during the proceedings concerning the possible disqualification of a juror for bias. The Court further stated that “this right cannot be waived by counsel.” Id. at 688 , 381 A.2d 1142 . In Williams v. State, 292 Md. 201 , 438 A.2d 1301 (1981), however, the Court prospectively applied a modification of the common law principle that the right to be present at every stage of the trial can never be waived by counsel’s action or inaction. According to the Court: ³⁷¹ The right of the defendant to be present at bench conferences involving examination of jurors or prospective jurors, or during communications on a point of law between the court and jury, or during certain other stages of the trial, is no more “fundamental” than many other “rights” which can be waived by counsel’s action or inaction. jj¡ % s[« * if s-s With respect to all criminal trials, or parts of trials, taking place after the issuance of our mandate in this case, an effective waiver of the defendant’s right to be present at every stage of the trial will not always require a personal waiver by the defendant.

Where the right of confrontation is not implicated, and where there is involved no other right requiring intelligent and knowing action by the defendant himself for an effective waiver, a defendant will ordinarily be bound by the action or inaction of his attorney. Id. at 218-19 , 438 A.2d 1301 . Our review of the record indicates that there was no discussion before or during the conference pertaining to appellant’s absence. Appellant asserts that “counsel did not waive the presence of the Defendant at this stage (or any stage) of the trial.” Appellant further contends that “the Court ruled he was only entitled to be present at voir dire." Appellant’s reliance on the court’s determination at a bench conference on the preceding day is inapposite.

On the preceding day there had been a bench conference concerning voir dire of the jury. Appellant was present at that conference. Subsequently, during the trial, an issue arose concerning admissibility of evidence, and the court called counsel to the bench. As appellant approached the bench in the company of his counsel, the court directed him to return to his seat.

The following colloquy ensued: COUNSEL: ... my client wishes to be present at every bench conference ... ³⁷² THE COURT: My position is as I understand the law to be. He’s only allowed to be up here during the voir dire. COUNSEL: Your Honor, my understanding is he’s allowed to be at integral parts of the trial. THE COURT: Fine.

All right. Now, let’s go. There is no indication that the trial court’s ruling applied to anything other than the particular subject matter with which this conference was concerned, namely, the introduction of evidence. To apply the court’s explanation of his understanding of the law on one day to a conference that took place the next day, on a different subject matter, would ultimately relieve counsel of any obligation to investigate that point of law in the interim in order to determine whether appellant should be present at any subsequent conferences.

It is clear that appellant had a right to be present at the in-chambers conference. It is also clear that appellant’s failure to object, either personally or through counsel, constituted a waiver of that right, precluding this Court from deciding an issue that was neither raised in nor decided by the trial court.

III

Appellant next contends that the trial court erred in not excusing the juror, Mrs. Oates, who had come forward and revealed that she was acquainted with a police officer who was one of the State’s witnesses. Mrs. Oates, during the proceedings in camera, indicated to the trial judge that before entering court that morning she recognized a man seated outside the courtroom as the father of a former student. They merely exchanged a simple greeting and she walked on. She then remembered that her former student’s father was a police officer.

The subsequent in-chambers conference formed the basis of appellant’s second assertion, discussed supra. ³⁷³ The juror further informed the court that she had listened attentively to all the names previously read by the judge and had not recognized this witness’s name. The following conversation then ensued: THE COURT: Would the fact that this former student of yours father is going to testify in this case, would that prejudice you in some way? JUROR: Uh uh. THE COURT: All right.

JUROR: No. I have not talked to him other than seeing him at school since I had a conference with him. THE COURT: You have not discussed this case with him or anything? JUROR: I didn’t even know he was on it. After Mrs. Oates left the judge’s chambers, appellant moved that she be removed from the jury and replaced by one of the two alternates.

The motion was denied. Upon reentering the courtroom, appellant renewed his motion and pointed out to the court that he had used only five peremptory strikes and that he “would have struck any person who had personal knowledge of a witness in this case, let alone a police officer. Appellant correctly points out that the decision to excuse a juror and to seek an alternate in his or her place is within the sound discretion of the trial court. Tisdale v. State, 41 Md.App. 149 , 396 A.2d 289 (1979).

Appellant argues, however, that the court’s error was in denying him his right to a peremptory challenge. Appellant further contends that this constituted reversible error even without a showing of prejudice. Maryland Rule 4-313(b)(3), governing peremptory challenges in criminal trials, states: After the required number of jurors has been called, a party may exercise any remaining peremptory challenges to which the party is entitled at any time before the jury is sworn, except that no challenge to the first 12 jurors shall be permitted after the first alternate juror is called. ³⁷⁴ Mrs. Oates was one of the original twelve jurors selected. After appellant announced that he was satisfied with the initial twelve sitting jurors, two alternates were selected.

Barbara Ford had been called and seated as the first alternate the day before. Resurrection of appellant’s peremptory challenges was clearly prohibited by the rules. Appellant then argues that the trial court “abused its discretion in refusing to strike Mrs. Oates, since with two alternates available, there was no reason not to strike her.” Appellant misapplies the standard under which a juror may be struck for cause. We note at the outset that appellant’s objection to Mrs. Oates was made timely.

In Bristow v. State, 242 Md. 283 , 219 A.2d 33 (1966), a juror did not know until after the commencement of the trial that his son was to be a witness for the State. In that case, appellant did not know and reasonably could not have known of the father-son relationship until the witness was called to testify. According to the Court: A challenge to an individual juror for cause must be made before that juror is sworn or at least before any evidence is received. Maryland rule 744 d.

Where a cause for challenge was not reasonably known to the defendant until after commencement of the trial, as was the situation in this case, it was still not too late to object to a juror’s qualifications. Id. at 287 , 219 A.2d 33 . According to Maryland Rule 4-312(e): A party may challenge an individual juror for cause. A challenge for cause shall be made and determined before the jury is sworn, or thereafter for good cause shown.

(Emphasis added.) The fact that Mrs. Oates was acquainted with Detective Evans could not have been reasonably known to appellant prior to the commencement of the trial. Appellant has therefore satisfied the standard enumerated in 4-312(e) for ³⁷⁵ challenging an individual juror after the jury has been sworn. We have pointed out before .that “[a] juror may be struck for cause only where he or she displays a predisposition against innocence or guilt because of some bias extrinsic to the evidence to be presented.” McCree v. State, 33 Md. App. 82, 98 , 363 A.2d 647 (1976). (Citations omitted.) Appellant’s reliance on both Chew v. State, 71 Md.App. 681 , 527 A.2d 332 (1987), vacated, 317 Md. 233 , 562 A.2d 1270 (1989), and Stokes v. State, 72 Md.App. 673 , 532 A.2d 189 (1987), is inapposite.

In Chew, supra, 71 Md.App. at 705 , 527 A.2d 332 , Judge Moylan, writing on behalf of this Court, described the strategy behind the jury selection process as follows: Generally speaking, the issue is not that of good jurors versus bad jurors or adequate jurors versus inadequate jurors. It is rather the wily maneuvering of two skilled chess players to obtain a slight edge, a barely discernible “tilt” as they mold a jury. In Stokes v. State, 72 Md.App. 673, 683 , 532 A.2d 189 (1987), this Court found an abuse of discretion and reversible error in the removal of a juror, stating: If, then, the judge replaces a juror who appears to be favorably disposed toward the defendant (in this case, the juror who smiled at him) with an alternate who does not appear to be as favorably disposed to his cause, the defendant has been injured. Even though the jury remains composed of competent and qualified jurors, the judge has remolded it with a new “tilt.” In the case sub judiee, appellant does not argue that the judge remolded the jury with a new “tilt,” but that “the jury was inadvertently slightly tilted prior to the trial.” And, that when this fact was discovered, “the Trial Judge refused to re-level the playing field despite the presence of two alternates.” In Stokes, supra, 72 Md.App. at 683-84 , 532 A.2d 189 , we concluded that “in removing juror number eleven over the ³⁷⁶ defendant’s objection without establishing on the record good cause for such extraordinary action, the trial judge abused his discretion to the prejudice of the defendant____” In the case at bar we are faced with a different set of facts.

Here, appellant objected to Mrs. Oates and attempted to use his remaining peremptory challenges to remove her from the jury. At this stage of the trial, however, according to Rule 4-312(e), removal of Mrs. Oates had to be for cause. Appellant failed to show the trial court that the presence of Mrs. Oates on the jury denied him his right to a fair trial and impartial jury. In Couser v. State, 282 Md. 125, 138 , 383 A.2d 389 , cert. denied, 439 U.S. 852 , 99 S.Ct. 158 , 58 L.Ed.2d 156 (1978), the Court stated that: [T]he due process clause of the fourteenth amendment and Article 21 of the Maryland Declaration of Rights guarantee the right to an impartial jury to an accused in a criminal case; these constitutional guarantees do not, however, insure that a prospective juror will be free of all preconceived notions relating to guilt or innocence, only that he can lay aside his impressions or opinions and render a verdict based solely on the evidence presented in the case.

In the case sub judice, the trial court was diligent in its effort to determine whether the presence of Mrs. Oates unfairly prejudiced appellant’s right to a fair trial and impartial jury. The conversation, as set forth above, clearly indicates that the juror was simply acquainted with a witness whose eventual testimony proved to be of a limited nature. Detective Evans testified that he prepared and executed the search warrant of appellant’s premises. He also testified as to the items of evidence seized.

Additionally, the juror answered quite specifically that the fact that she had once had a parent-teacher conference with the witness would in no way prejudice her against appellant. Appellant failed in any way to show that the presence of Mrs. Oates denied him a fair trial and impartial jury. ³⁷⁷ IV. Appellant next contends that the court erred in its conduct of the voir dire, claiming that “in cases of extensive publicity, defense counsel should be accorded more latitude in personally asking or tendering searching questions that might root out indications of bias.” In particular, appellant claims the trial court erred when it refused to permit specific questions concerning appellant’s alleged confession as well as the fact that appellant’s bail had been previously revoked, although reinstated at a later date. Appellant further asserts that when certain questions he submitted were asked and affirmative responses received, the court erred by failing to make further inquiry concerning prejudice.

The State argues that appellant’s acceptance of the jury constituted a waiver of any antecedent complaint. We disagree and shall briefly address this point. In Tisdale v. State, 30 Md.App. 334 , 353 A.2d 653 (1976), we found that counsel’s response that the jury ultimately selected was acceptable was merely obedient to the court’s ruling and obviously not a withdrawal of the prior objection, timely made. In the instant case defense counsel stated: “Your Honor, in response to the question am I satisfied with the jury, my client and I are satisfied with the selection process.” Although a simple “yes” would have sufficed, and the reference to the “selection process” is somewhat puzzling, there is no basis on which to hold that appellant had thereby withdrawn his prior objections. 4 See also, Morris v. Wilson, 74 Md.App. 663 , 539 A.2d 1151 (1988), aff'd, 317 Md. 284 , 563 A.2d 392 (1989) (When an allegation of personal juror bias was disclosed only after the juror was sworn, the ³⁷⁸ objection was not waived by virtue of defendant's failure to except prior thereto, and at that point it was incumbent upon the judge to conduct a voir dire to determine if that juror could put aside his personal bias and render a fair and impartial verdict).

In the case at bar, the court asked the following question on voir dire: The case that you are about to hear today and in all probability for the next few days involves an incident that occurred in our County back on April the 7th of this year. This incident involves an alleged armed robbery of a man named Carl Krogmann which evidently ended up in Mr. Krogmann being killed. Mr. Krogmann was a deliveryman for Domino’s Pizza. And as a result of this or as a result of these allegations the Defendant in this case has been charged the most serious crime of which is murder.

Based on the little that I have just told you, has anybody read about this case, heard about it in some way or seen it on television or have it come to their attention in some way? The court then asked: Does ány member of the prospective panel know of any reason that I haven’t asked you about why you could not sit on this case and render a fair and impartial verdict based solely on the evidence that you are going to hear in this courtroom? Appellant proposed further written voir dire questions, to “search out jurors with a fixed opinion.” For example, appellant proposed the following two questions, both of which the trial court declined to ask: 32. Has any member of prospective jury panel read or heard that the Defendant allegedly confessed to the alleged homicide? 33.

The defendant in this case is currently free on bail (his bail had previously been revoked), this fact has been extensively reported in the news media, (television and newspaper) does the fact that he is free on bail and ³⁷⁹ previously had his bail revoked effect any prospective juror’s ability to fairly consider this matter? After reviewing the proposed questions at a bench conference, the trial court expanded on a previously asked question, concerning connection with any kind of state, county, or federal law enforcement agency, to include a private law enforcement agency. The court also asked whether there was anyone who had an immediate family member connected with the legal profession, or whether any prospective jury member or his or her family member was ever involved with a business that included delivery of some kind of goods to a private home. Finally, due to the timing of the case, the court inquired whether anyone was a reserve officer in the armed forces.

We note at the outset that “[t]he purpose of the voir dire examination is to ascertain the existence of cause for disqualification and for no other reason.” Bremer v. State, 18 Md.App. 291, 321 , 307 A.2d 503 (1973), cert. denied, 415 U.S. 930 , 94 S.Ct. 1440 , 39 L.Ed.2d 488 (1974); see also, Bedford v. State, 317 Md. 659, 670 , 566 A.2d 111 (1989). Recently, the United