Morris v. State

HOTTEN, J. Appellant, Mark Charles Morris, was charged with first and second degree assault in the Circuit Court for Baltimore ⁴⁸⁹ County. Following a jury trial on July 26 and 27, 2010, the jury returned guilty verdicts on both charges. On August 9, 2010, the circuit court consolidated appellant’s sentencing with a burglary charge to which he had already pleaded guilty, and imposed a twelve year sentence, with a three year sentence for the burglary conviction to run concurrently. Appellant timely appealed, presenting the following questions, which we quote: 1.

Did the trial judge err in asking the prospective jurors during voir dire a “CSI” question directed at dispelling any juror’s belief that scientific evidence was necessary in order to prove the State’s case? 2. Was the evidence insufficient to corroborate the accomplice testimony regarding the identity of the person who committed the assault? For the reasons that follow, we affirm the circuit court. I. VOIR DIRE QUESTION A. Facts Before the voir dire of the jury, the circuit court inquired whether appellant had objections to the State’s proposed voir dire questions, and the following colloquy took place: [THE COURT]: While we’re waiting for the jury both counsel have submitted a proposed voir dire.

Does either side have any objection to any particular questions in either of the other[’]s voir dire? [THE STATE]: None from the State your honor. [DEFENSE COUNSEL]: Your honor, I just have one objection to that C.S.I. question. [THE COURT]: Okay. [DEFENSE COUNSEL]: I just think that’s an improper question. It[’]s almost like the State’s Attorney is trying to convey to the jury that she should not have a strong burden to present evidence in the case, and that certain evidence is in, presented that should be excused. And I just think it[’]s, it[’]s prejudicial to my client. ⁴⁹⁰ [THE COURT]: All right. Yes ma’am? [THE STATE]: I disagree your honor.

I think that because of the prevalence of popularity of those kinds of shows that jurors come in thinking that that is the kind of evidence that they’re going to receive and put a[n] ... unfair burden on the State to produce that kind of evidence where in a case like this[,] that evidence is not going to be present. So, I do think that the instruction is or that the question is a fair question to ask. [THE COURT]: All right. I’m going to, I’m going to overrule the objection. I think that is a fair question in light of the proliferance (phonetic.) of those types of shows and media coverage of [scientific and other types of evidence which is not typically brought in court proceedings.

I think it[’]s not overly prejudicial. So, I will allow that, I will ask that question.... Therefore, during voir dire, the circuit court asked the following question: Ladies and gentlemen, televisions shows such as C.S.I., Crossing Jordan and some of the like are fiction. They are not true.

Many of the scientific methods used in those kinds of television shows are exaggerated or do not even exist. If you are selected as a juror in this case[,] you will be required to base your decisions solely on the evidence presented in court. Would any potential juror be unable to ignore the so called crime dramas they have been seeing on television, the movies and Internet or such and putting that aside in making your decision based solely on the evidence that you hear in court and not through some expectation of something that you’ve seen through the media or television? Is there anyone who would be so persuaded by such a show that they would not be able to judge this case fairly and impartially?

Please rise if that applies to you. Let the record reflect that there is no such response. ⁴⁹¹ B. Discussion In Stringfellow v. State, 199 Md.App. 141, 147 , 20 A.3d 825 (2011), rev’d, State v. Stringfellow, 425 Md. 461, 464-65 , 42 A.3d 27 (2012), we recently reiterated the importance of voir dire as follows: 1 “Voir dire plays a critical function in assuring the criminal defendant that his Sixth Amendment right to an impartial jury will be honored.” White v. State, 374 Md. 232, 240 [ 821 A.2d 459 ] (2003) (quoting Rosales-Lopez v. United States, 451 U.S. 182, 188 [ 101 S.Ct. 1629 , 68 L.Ed.2d 22 ] (1981)) (italics omitted), cert. denied, 540 U.S. 904 [ 124 S.Ct. 262 , 157 L.Ed.2d 189 ] (2003). “[T]he ‘overarching purpose of voir dire in a criminal case is to ensure a fair and impartial jury.’” Wright v. State, 411 Md. 503, 508 [ 983 A.2d 519 ] (2009) (quoting Dingle v. State, 361 Md. 1, 9 [ 759 A.2d 819 ] (2000)). “Indeed, the only purpose of voir dire in Maryland is to illuminate to the trial court any cause for juror disqualification.” Id. See White, 374 Md. at 240 [ 821 A.2d 459 ] (“Without adequate voir dire, the trial judge is unable to fulfill his or her responsibility to eliminate those prospec ⁴⁹² tive jurors who will be unable to perform their duty impartially.”) (Italics omitted). (Parallel citations omitted).

The manner of voir dire is governed by Maryland Rule 4-312, and the Court of Appeals has held that “[i]n the absence of a statute or rule prescribing the questions to be asked of the venire persons during the examination!;,] the subject is left largely to the sound discretion of the court in each particular case.” Moore v. State, 412 Md. 635, 644 , 989 A.2d 1150 (2010) (internal quotation marks and citation omitted). The trial court’s discretion “extends to both the form and the substance of questions posed to the venire.” Wright, 411 Md. at 508 , 983 A.2d 519 . The Court of Appeals has explained that the abuse of discretion standard is one of those very general, amorphous terms that appellate courts use and apply with great frequency but which they have defined in many different ways. It has been said to occur “where no reasonable person would take the view adopted by the [trial] court,” or when the court acts “without reference to any guiding rules or principles.” It has also been said to exist when the ruling under consideration “appears to have been made on untenable grounds,” when the ruling is “clearly against the logic and effect of facts and inferences before the court,” when the ruling is “clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result,” when the ruling is “violative of fact and logic,” or when it constitutes an “untenable judicial act that defies reason and works an injustice.” There is a certain commonality in all these definitions, to the extent that a ruling reviewed under an abuse of discretion standard will not be reversed simply because the appellate court would not have made the same ruling.

The decision under consideration has to be well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable. King v. State, 407 Md. 682, 697 , 967 A.2d 790 (2009) (quoting North v. North, 102 Md.App. 1, 13-14 , 648 A.2d 1025 (1994)) (internal citations omitted). Based on this standard, Maryland appellate courts have held that though “it is impermissible to commit prospective ⁴⁹³ jurors to a decision in advance,” a trial court may question potential jurors “about their attitudes concerning key issues to be raised at trial[.]” Stringfellow, 199 Md.App. at 148-49 , 20 A.3d 825 (citing Moore v. State, 412 Md. 635 , 989 A.2d 1150 (2010) (whether a prospective juror may give more weight to a State’s witness’s testimony); Sweet v. State, 371 Md. 1, 9-10 , 806 A.2d 265 (2002) (whether sexual abuse charges stir up strong emotional feelings); State v. Thomas, 369 Md. 202 , 798 A.2d 566 (2002) (whether a prospective juror has strong feelings regarding violations of narcotic laws); Langley v. State, 281 Md. 337 , 378 A.2d 1338 (1977) (whether a prospective juror may give more weight to a police officer’s testimony)). Relying on Charles and Drake v. State, 414 Md. 726 , 997 A.2d 154 (2010) and Stringfellow v. State, 199 Md.App. 141 , 20 A.3d 825 (2011), appellant contends that the circuit court abused its discretion by asking the prospective jurors the “CSI” question. 2 In Charles and Drake , over defense counsel’s objection, the trial court propounded the following “CSI-type” question during voir dire: 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. 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 ⁴⁹⁴ regardless of the instructions that I will give you as to the law, please rise.... Charles and Drake, 414 Md. at 730 , 997 A.2d 154 .

Six members of the potential juror pool responded affirmatively and were stricken for cause for other reasons. Id. at 730 n. 5, 997 A.2d 154 . The Court of Appeals focused on “whether the [trial] [c]ourt erred in propounding a voir dire question concerning whether prospective jurors could not ‘convict’ Drake and Charles in the absence of ‘CSI-type’ scientific evidence.” Id. at 731 , 997 A.2d 154 . In doing so, the Court recognized that “[t]here is a significant debate about whether there truly is a ‘CSI effect,’ namely, the impact that viewing forensic crime dramas has upon juror behavior.” Id.

(citing the Honorable Dennis M. Sweeney, The “CSI Effect” A Judge’s Viewpoint: How Do Courtroom Dramas Affect the Work of the Courts?, Justice Matters, Spring/Summer 2009, at 4). Although the Court of Appeals left for “another day” the issue of “whether a voir dire inquiry related to the purported ‘CSI effect’ is appropriate at a theoretical level,” the Court centered its focus on whether the language used in the inquiry—the word “convict”—was appropriate. Id. at 733 , 997 A.2d 154 . The Court looked to State v. Hutchinson, 287 Md. 198 , 411 A.2d 1035 (1980), in which it addressed whether a trial judge erred in failing to instruct the jury that it could return a “not guilty” verdict in a rape case.

The trial court in Hutchinson instructed the jury as follows: Now, the verdict sheet which I will be giving you will show two possible verdicts, Count One guilty of rape in the first degree and Count Two guilty of rape in the second degree____If you find the defendant not guilty of rape in the first degree, then you consider rape in the second degree. If you find the defendant guilty of rape in the first degree, then, of course, you need not consider rape in the second degree. Hutchinson, 287 Md. at 201 , 411 A.2d 1035 (alteration in original). The Court reversed the conviction in Hutchinson and ordered a new trial because the trial court’s instruction did not advise the jury that it could return a verdict of “not guilty,” only “guilty.” Id. at 208 , 411 A.2d 1035 .

Specifically, the Court held: ⁴⁹⁵ While the trial judge instructed the jury that the State had the burden of proving every element of the crime charged, that the defendant was presumed innocent until proven guilty beyond a reasonable doubt and that no inference of guilt could be drawn from the defendant’s failure to testify, nowhere in his instructions did the trial judge tell the jury that it could find the defendant not guilty. The State’s retort that the defendant did not object is to no avail. If a defendant is entitled to have a jury instructed as to possible verdicts arising from the evidence, it seems manifest to us that he would have the right to have the jury told that it may find him not guilty. We can envision no right more fundamental to the defendant in a criminal jury trial.

Id. at 205-06 , 411 A.2d 1035 . Therefore, the Court ordered a new trial because the language of the jury instruction suggested that finding the defendant “guilty” was predetermined. Id. at 208 , 411 A.2d 1035 . After examining Hutchinson , the Court in Charles and Drake concluded that the voir dire question, like the jury instruction in Hutchinson , “suggested that the jury’s only option was to convict, regardless of whether scientific evidence was adduced.” Charles and Drake, 414 Md. at 737 , 997 A.2d 154 .

Appellant recognizes that unlike Charles and Drake and Hutchinson, the voir dire question in the present case did not employ the word “convict.” Nevertheless, appellant directs us to our recent case of Stringfellow v. State, 199 Md.App. 141 , 20 A.3d 825 (2011). 3 In Stringfellow, 199 Md.App. at 146 , 20 A.3d 825 , an appeal of a conviction for handgun violations, the lower court asked the voir dire panel, over defense counsel’s objection: “Does any member of the panel believe that the State is ⁴⁹⁶ required to utilize specific investigative or scientific techniques such as fingerprint examination in order for the defendant to be found guilty beyond a reasonable doubt?” We concluded that the question was “not distinctively different from the question posed in Charles and Drake.” Id. at 146, 20 A.3d 825 . We stated that there was “no significant difference between the voir dire question used in [,Stringfellow ] that ask[ed] whether jurors could find the defendant guilty beyond a reasonable doubt, and the voir dire question used in Charles and Drake that ask[ed] whether jurors could convict the defendant.” Id. at 153, 20 A.3d 825 . We held that the voir dire question fundamentally affected the defendant’s right to a fair trial “because the language used ‘preordained the result.’ ” Id. at 152 , 20 A.3d 825 (quoting Charles and Drake, 414 Md. at 739 , 997 A.2d 154 ). Therefore, we reversed appellant’s convictions.

Id. at 154, 20 A.3d 825 . The voir dire question posed in this case, however, does not suffer the same flaws as the questions in Charles and Drake and Stringfellow. Specifically, the voir dire question in the case sub judice did not in any way “suggest[ ] that finding the defendant ‘guilty’ was a foregone conclusion[ ]” or “fail to lay out any alternative” other than guilt. Stringfellow, 199 Md.App. at 151, 153 , 20 A.3d 825 .

Here, the circuit court advised potential members of the jury that shows like CSI are fiction and use exaggerated or non-existent scientific methods, which is true. The court then stated that each member of the jury must base his or her decision “solely on the evidence presented in court.” Then, the court asked “[wjould any potential juror be unable to ignore the so called crime dramas they have been seeing on television, the movies and Internet ... and put[ ] that aside in making your decision based solely on the evidence that you hear in court and not through some expectation of something that you’ve seen through the media or television?” The court further inquired if “there [was] anyone who would be so persuaded by such a show that they would not be able to judge this case fairly and impartially?” No potential jurors responded that they would be unable to fairly and impartially judge this case. The court’s statement was nothing more than a permissible voir dire question that “use[d] neutral language, asking the venire if they would ‘give ⁴⁹⁷ either more weight or less weight,’ or whether they ‘have strong feelings,’ or whether they have beliefs that might affect their ability to ‘render a fair and impartial verdict.’ ” Stringfellow, 199 Md.App. at 153 , 20 A.3d 825 . Based on the above, we cannot hold that the circuit court abused its discretion by posing the voir dire question, which merely mentioned the so-called “CSI effect.” II.

SUFFICIENCY OF THE EVIDENCE A. Facts Adam Schuster, who was twenty-three years old at the time of trial, testified that while attending high school, he became acquainted with Amanda Picciotto. Mr. Schuster stated that he and Ms. Picciotto had resumed contact through MySpace, a social networking site, and that they met several times since. On March 31, 2009, Mr. Schuster received a text message from Ms. Picciotto’s cellular telephone number around midnight or 1:00 a.m., asking him to meet her in a nearby park. Mr. Schuster jogged to the park, and when he arrived, he saw Ms. Picciotto and two or three others standing together in the park.

He did not recognize the other individuals because it was dark, they were wearing baggy clothing, and they had hoods over their heads. He said that he spoke with Ms. Picciotto briefly, and during their conversation, he saw that one of the other individuals had a liquor bottle. Mr. Schuster also overheard some discussion of drugs. Because he had ambitions of one day becoming a police officer and did not want to get into any trouble, Mr. Schuster decided to leave the park.

As he was leaving the park, however, he was struck on the head from behind. 4 He did not see who hit him, but immediately fell to the ground. While he was on the ground, he was kicked and stomped. Mr. Schuster was unable to determine who or how many people were kicking him. After the attack, he was able to stand and walk home, but he did not see anyone else in the park.

Mr. ⁴⁹⁸ Schuster woke up his parents, and they took him to the hospital, where he received ten stitches on his head and was treated for other injuries. When he left the hospital around noon the next day, Mr. Schuster reported the incident to the police. On direct examination and cross-examination, Mr. Schuster stated that he was unsure how many people were assaulting him in the following colloquy: [THE STATE]: Okay. Were you able to see who it was that was kicking you?

MR. SCHUSTER: Ah, no ma’am. [THE STATE]: Backing up just a little bit ah, to the blow to the head, was it Amanda Picciotto that hit you in the head? MR. SCHUSTER: I don’t recall [ma’am] because I do remember as we were leaving that I wasn’t the only one leaving.

There was others leaving at, at that time. So, I, I don’t think it was her. [THE STATE]: Okay. Um, when you were on the groundf,] did there come a point where the kicking stopped? MR.

SCHUSTER: Um, eventually, yes ma’am. [THE STATE]: All right. MR. SCHUSTER: And they were shouting while the kicking was going on. [THE STATE]: Okay. Were you able to determine how many people might have been kicking you?

MR. SCHUSTER: No ma’am. [THE STATE]: Um, how did the assault end? MR. SCHUSTER: It just kind of stopped.

Like they stopped doing it. That’s how it ended. I don’t know any other way to describe it. [DEFENSE COUNSEL]: Okay. Um, now you also mentioned that you weren’t sure how many people were kicking you and hitting you when you were on the ground?

MR. SCHUSTER: Yes ma’am. ⁴⁹⁹ [DEFENSE COUNSEL]: Okay. But you did say that they all, that they stomped on you? MR.

SCHUSTER: Ah, yes ma’am. [DEFENSE COUNSEL]: So, you’re sure it was more than one person, correct? MR. SCHUSTER: Ah, it seems to be, yes ma’am. Ms. Picciotto testified that she attended high school with appellant and, after graduation, they were briefly romantically involved.

She also testified that she knew Mr. Schuster from high school, contending that it was he who contacted her through MySpace and renewed their friendship. On March 31, 2009, she stated that she was at the park with appellant and George Yik, one of her best friends. She said that appellant used her cellular telephone to send the text message to Mr. Schuster, inviting him to the park. According to Ms. Picciotto, when Mr. Schuster arrived at the park, he and she conversed for a short time before he decided to leave.

As Mr. Schuster was leaving, Ms. Picciotto asserted that appellant hit Mr. Schuster with a forty-ounce beer bottle. She said that Mr. Schuster fell to the ground, and appellant kicked him. It was at this point that Ms. Picciotto asserted that she ran home. She maintained that neither she nor Mr. Yik participated in the assault.

She later sent Mr. Schuster a text message from her cellular telephone, asking if he was okay. Ms. Picciotto claimed that she did not tell the police the truth when she was first contacted because she was scared and shocked by what happened at the park. Instead, she initially told police that someone named Todd Fisher attacked Mr. Schuster because appellant told her to “come up with a fake name.” However, after she was arrested and charged with the assault, she gave police another statement and identified appellant as the attacker. During cross-examination, she admitted that she had conversations with the State after she was arrested.

It was during these conversations that she was advised that the charges might be dropped if she told the truth. It was then, seven months after the incident, that Ms. ⁵⁰⁰ Picciotto identified appellant as the attacker, and the State dropped the charges pending against Ms. Picciotto. Mr. Yik testified that he was friends with Ms. Picciotto and appellant, and he was aware that Ms. Picciotto and appellant had been romantically involved. He stated that he, appellant, and Ms. Picciotto were hanging out in a park near his house drinking alcohol when Mr. Schuster arrived.

However, he averred that he was talking on his cellular telephone when Mr. Schuster joined them. He stated that Ms. Picciotto and appellant walked away from him, towards Mr. Schuster when Mr. Schuster arrived. Mr. Yik hung up his telephone and walked towards the group, which now consisted of Ms. Picciot-to, appellant, and Mr. Schuster. Then, from “anywhere from fifty to a hundred feet” away, he saw and heard appellant hit Mr. Schuster in the head with a forty-ounce beer bottle.

Mr. Yik said Mr. Schuster fell to the ground, and appellant hit Mr. Schuster with his hand. Mr. Yik quickly left and returned to his house, but did not immediately report the incident because he was afraid he would be arrested or attacked. He denied participating in the attack and maintained