State v. Jordan

State of Maryland v. Latoya Jordan, No. 23, September Term, 2021. Opinion by Gould, J. HARMLESS ERROR – FAILURE TO ASK VOIR DIRE QUESTION – RIGHT NOT TO TESTIFY The harmless error doctrine applies to the failure to ask on voir dire questions related to the defendant’s right not to testify. HARMLESS ERROR – FAILURE TO ASK VOIR DIRE QUESTION – RIGHT NOT TO TESTIFY The failure to ask on voir dire questions related to the defendant’s right not to testify is a trial error, not a structural error. HARMLESS ERROR – FAILURE TO ASK VOIR DIRE QUESTION – RIGHT NOT TO TESTIFY The jury verdict in a case in which the trial court failed, during voir dire, to ask a question related to the defendant’s right not to testify does not render the jury verdict inherently infirm from a constitutional standpoint.

HARMLESS ERROR – FAILURE TO ASK VOIR DIRE QUESTION – RIGHT NOT TO TESTIFY Voir dire questions related to the defendant’s right not to testify are tools for identifying individuals who should be struck for cause. The possibility that an individual was empaneled who would have been stricken for cause does not render the trial fundamentally unfair. Circuit Court for Baltimore City Case No.: 819290001 Argued: December 6, 2021 IN THE COURT OF APPEALS OF MARYLAND No. 23 September Term, 2021 STATE OF MARYLAND v. LATOYA JORDAN *Getty, C.J., *McDonald, Watts, Hotten, Booth, Biran, Gould, JJ. ______________________________________ Opinion by Gould, J. Watts and Biran, JJ., dissent. ______________________________________ Filed: August 15, 2022 *Getty, C.J. and McDonald, J., now Senior Judges, participated in the hearing and conference of this case while active members of this Court. After being recalled pursuant to Md. Const., Art. IV, § 3A, they also participated in the decision and adoption of this opinion.

In Kazadi v. State, this Court 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.” 467 Md. 1, 9 (2020). In Latoya Jordan’s trial on two counts of second-degree assault, which took place before our decision in Kazadi, she requested a voir dire question on the third of those fundamental rights—a defendant’s right not to testify. The trial court declined to ask the question. In the jury trial that followed, Ms. Jordan testified in her defense and was convicted on one of the assault counts and acquitted on the other.

Although Kazadi was decided after her trial, the parties agree that its holding applies to Ms. Jordan’s case and that the trial court erred by refusing to ask Ms. Jordan’s requested voir dire question.1 The issue here is what to do about the error, which hinges on: (1) whether the harmless error doctrine applies to the specific error under Kazadi concerning the right not to testify, and (2) if so, whether the error in Ms. Jordan’s case was harmless. The Court of Special Appeals assumed the former and answered “no” to the latter; therefore, it reversed Ms. Jordan’s conviction and granted her a new trial. 1 Although we will use the word “error” in this opinion, we recognize the unfairness of doing so because Kazadi was not decided until after Ms. Jordan’s trial. Thus, we acknowledge that the trial judge did not actually err in applying this Court’s precedent at the time Ms. Jordan’s trial took place. See Kazadi, 467 Md. at 55-57 (McDonald, J., dissenting).

The State petitioned this Court for a writ of certiorari, State v. Jordan, 475 Md. 698 (2021), which we granted on the following question: Is it harmless error to fail to propound a voir dire question regarding a defendant’s right to remain silent and not testify where the defendant actually testifies? For the reasons explained below, we hold that the Kazadi error committed here was a trial error subject to the harmless error doctrine. We further hold that under the facts of this case, the error was harmless. Accordingly, we reverse the judgment of the Court of Special Appeals.

BACKGROUND The assault charges against Ms. Jordan arose out of an altercation during a program created by a nonprofit organization called Unique Fabrics, which teaches sewing skills to girls and women. The program was run by Mary Alexander. Ms. Alexander also supervised a “Youth Works” program through which she hired youths for summer jobs, including for Unique Fabrics. Ms. Jordan’s 17-year-old niece, K.J.,2 was one such student- employee in the 2019 summer session.

The Youth Works program is designed to teach young people the skills necessary to succeed in the workforce, including the appropriate use of a cell phone for personal use during working hours. When a student had difficulty complying with the cell phone policy, Ms. Alexander would enlist the involvement of the parent or guardian to facilitate an agreement with the student on cell phone usage. According to Ms. Alexander, the 2 Because she is a minor, we will refer to Ms. Jordan’s niece by her first and last initials. 2 paperwork listed K.J.’s grandmother as her guardian. It was K.J.’s cell phone use that prompted an altercation between Ms. Alexander and Ms. Jordan on July 12, 2019, which resulted in the charges against Ms. Jordan.

More details will be supplied below. The Trial Ms. Jordan was charged with one count of second-degree assault against Ms. Alexander and a separate count of second-degree assault against Milroy Harried. At Ms. Jordan’s trial, during voir dire, defense counsel requested that the court ask the following question (the “Kazadi question”): Every person accused of a crime has the absolute constitutional right to remain silent and not testify. If the defendant chooses not to testify the jury may not consider his/her silence in any way in determining whether he/she is guilty or not guilty.

Is there any member of the jury who is unable or unwilling to uphold and abide by this rule of law? The court declined the request. The court reasoned that the question would be “covered extensively in the [court’s] instructions at the end,” and by a separate voir dire question that “discusses . . . that the defendant is presumed innocent unless the State can prove him guilty beyond a reasonable doubt.” The court also determined that, without knowing whether Ms. Jordan would testify, the question would be “confusing[.]” Opening Statements The State told the jury that it would call two witnesses. One witness, Ms. Alexander, would testify that K.J.’s cell phone use on July 12, 2019 led to a phone call with Ms. Jordan.

During this call, Ms. Jordan yelled at Ms. Alexander and threatened to come to the program. 3 Sometime later, Ms. Jordan arrived at the program and interrupted a parent conference. Ms. Jordan then “tr[ied] to swing at” Ms. Alexander. Ms. Jordan also hit Mr. Harried, who sustained several blows and injuries when he attempted to separate Ms. Jordan and Ms. Alexander. In her opening statement, defense counsel did not dispute the State’s contention that an altercation occurred between Ms. Jordan and Ms. Alexander, with Mr. Harried caught in the middle.

Rather, defense counsel maintained that Ms. Alexander was the aggressor, not Ms. Jordan. Defense counsel told the jury that Ms. Jordan was K.J.’s aunt, that Ms. Jordan had raised K.J. since she was nine years old, that Ms. Jordan was K.J.’s legal guardian and referred to her niece as her daughter, and that she never gave Ms. Alexander permission to take K.J.’s cell phone. Further, defense counsel told the jury that on July 12, 2019, Ms. Alexander took K.J.’s phone without permission and called K.J. a mute and a liar. Upset, K.J. called Ms. Jordan.

During this call, Ms. Jordan heard a loud voice in the background. Ms. Alexander then took the phone from K.J. and proceeded to yell and curse at Ms. Jordan. Ms. Jordan later arrived at the program to check on K.J., and when she found Ms. Alexander, Ms. Alexander initiated the altercation. Ms. Alexander’s Testimony The State called Ms. Alexander to testify first.

According to Ms. Alexander, she discovered K.J. on her phone in class and asked her to put it in her purse. Several hours later, Ms. Alexander saw K.J. on her phone again, and confronted her about it. K.J. began 4 “crying and screaming,” which prompted Ms. Alexander to call K.J.’s grandmother, who didn’t answer. K.J. then called her aunt, Ms. Jordan.

Ms. Alexander asked K.J. for the phone so she could speak with Ms. Jordan. Their conversation lasted “less than 30 seconds[,]” and ended when Ms. Alexander hung up the phone because Ms. Jordan was screaming and “cussing [her] out left and right.” Later that day, Ms. Alexander and Mr. Harried were meeting with another student’s parents. Ms. Jordan entered the conference room “with force” and asked to speak with “that B who [she] was talking to on the phone.” Ms. Alexander told Ms. Jordan that she was in a meeting and asked her to leave. Instead of leaving, Ms. Jordan lunged at and hit Ms. Alexander, catching her by surprise.

Ms. Jordan and Ms. Alexander called each other “a bitch.” Mr. Harried tried to separate the two and “blocked” Ms. Alexander from hitting Ms. Jordan. While Mr. Harried was blocking Ms. Alexander, Ms. Jordan hit him several times. Ms. Alexander told Mr. Harried “to move out [of] the way [and] don’t stand there.” Mr. Harried asked for someone to call the police. Ms. Jordan then picked up a wet floor sign and attempted to hit both Ms. Alexander and Mr. Harried with it.

Shortly thereafter, another person took the sign from Ms. Jordan and asked her to leave the building, which she did. In addition, in response to questions posed by the State in anticipation of the defense’s version of events, Ms. Alexander denied kicking off her shoes at any point, 5 denied that Ms. Jordan’s conduct was warranted, denied that anyone ever hit Ms. Jordan, and claimed to be following protocol during this incident. On cross-examination, Ms. Alexander denied that she had left K.J.’s grandmother a voicemail in which she impugned K.J.’s intelligence and called her a “mute.” Ms. Alexander admitted that she accused K.J. of lying about putting the phone away. She acknowledged she could not hear what K.J. was telling Ms. Jordan on the phone but told the police that K.J. must have told Ms. Jordan “inflammatory things” that prompted Ms. Jordan to start the fight.

Ms. Alexander disputed defense counsel’s contention that Ms. Alexander told K.J. that she would not amount to anything in life. Defense counsel also questioned Ms. Alexander about her telephone conversation with Ms. Jordan. Ms. Alexander denied telling Ms. Jordan that she “had time today[,]” that she told Ms. Jordan to “pull up[,]” or that she gave Ms. Jordan the address of the facility. As to the physical altercation, Ms. Alexander denied that Ms. Jordan calmly entered the room or that she (Ms. Alexander) “hopped up and began cursing at” Ms. Jordan.

Ms. Alexander admitted to picking up a fire extinguisher and pointing its hose at Ms. Jordan, but stated that she did so to “defend” herself after Ms. Jordan picked up the wet floor sign. On redirect, Ms. Alexander stated that she did not incite Ms. Jordan and that neither she nor Mr. Harried hit Ms. Jordan. Mr. Harried’s Testimony Mr. Harried recounted a similar version of events. During the parent conference, Ms. Jordan “came in and [] busted open the door and said, where is the bitch that hung up 6 the phone on me when I was cussing her . . . a-s-s out.” At this point, he immediately went to the door to separate Ms. Alexander and Ms. Jordan.

While blocking the door, he was hit several times by Ms. Jordan and asked for someone to call the police. He saw Ms. Jordan pick up the wet floor sign but noted that Ms. Jordan was only in the process of swinging the sign before she was stopped by another person. Mr. Harried maintained that he never hit Ms. Jordan or called her or K.J. any names. Mr. Harried’s glasses were damaged during the altercation, which cost $5.00 to get fixed.

He also went to the hospital for injuries sustained to his knee. He received a hospital bill totaling $711.51. Mr. Harried testified on cross-examination that he observed Ms. Alexander talking to K.J. about her phone use in the hallway. However, he did not see K.J. crying.

He saw Ms. Alexander on the phone with Ms. Jordan. Although he did not know what they were saying, he testified that Ms. Alexander’s voice was not raised. Mr. Harried was also cross-examined about the events that occurred after Ms. Jordan arrived. According to Mr. Harried, when Ms. Jordan came into the classroom, Ms. Alexander remained seated near the parents and did not kick her shoes off.

Rather, Ms. Jordan “bust[ed]” the door open and kicked her shoes off. When he saw this, he immediately “ran to the door” to inform her they were “in the middle of a parent conference.” When at the door, Ms. Alexander was behind him and he was facing Ms. Jordan. Mr. Harried did not see Ms. Alexander pick up the fire extinguisher. On redirect, Mr. Harried stated that when police arrived, Ms. Jordan told him that she “got something for you.

You was smiling.” He also reemphasized that it was Ms. Jordan, not Ms. Alexander, who kicked off her shoes. 7 After Mr. Harried finished testifying, the State rested and the court denied defense counsel’s motion for judgment of acquittal. K.J.’s Testimony The defense called K.J. to testify first. K.J. testified that during a CPR class, without explanation, Ms. Alexander came in and put K.J.’s phone case and purse on the other side of the room. After class, K.J. spoke with Ms. Alexander about her cell phone usage.

K.J. told Ms. Alexander that her cell phone was currently in her back pocket and was never in her purse as Ms. Alexander had thought. Ms. Alexander then raised her voice and called K.J. “a liar [who] . . . was[] never going to be nothing in life if [she] ke[pt] lying. . . .” This caused K.J. to cry. Ms. Alexander then called K.J.’s grandmother, who did not answer. Still crying, K.J. called Ms. Jordan to tell her what was happening.

During the call, “Ms. [Alexander] was yelling . . . in the background . . . . [T]hen Ms. [Alexander] took [the] phone out [of her] hand and started yelling at [Ms. Jordan].” Although K.J. was unable to hear what Ms. Jordan was saying to Ms. Alexander, she heard Ms. Alexander tell Ms. Jordan “to pull up” and gave Ms. Jordan the program’s address. K.J. then went outside to wait for Ms. Jordan. When Ms. Jordan arrived, they went inside to collect K.J.’s things, after which Ms. Jordan went to find Ms. Alexander. When Ms. Jordan found Ms. Alexander, she opened the door and asked “where is the lady[] that I was talking to on the phone[?]” Ms. Alexander responded by “hopp[ing] up and [taking] her shoes off and started trying to fight [Ms. Jordan].” During this time, 8 K.J. was between Mr. Harried and Ms. Jordan.

K.J. observed Ms. Jordan “[w]alking back and forth saying stuff[,]” but could not recall exactly what she said. K.J. did not see Ms. Jordan hit Ms. Alexander or Mr. Harried; however, she did see Ms. Jordan “[p]ick up a wet floor sign[,]” but didn’t see her do anything with it. After Ms. Jordan picked up the sign, K.J. saw Ms. Alexander pick up a fire extinguisher and try to hit Ms. Jordan with it. Ms. Jordan went outside and then the police arrived.

On cross-examination, K.J. admitted that she was testifying at Ms. Jordan’s request, that she and Ms. Jordan rode to court together, and that she didn’t want her aunt to go to jail. There was no redirect. Ms. Jordan’s Testimony After K.J.’s testimony, defense counsel advised Ms. Jordan of her right not to testify and told her that the court would instruct the jury “that they would not even be able to consider it, let alone think about it, in determining if the State has met their burden” of proving her guilt beyond a reasonable doubt. Ms. Jordan chose to waive her Fifth Amendment right against self-incrimination and proceeded to take the stand.

Ms. Jordan explained that even though K.J. was her niece, she referred to her as one of her four children. Ms. Jordan had custody of K.J. since she was nine years old and took care of her between the ages of two and five. On the morning of July 12, she was struggling to braid a client’s hair due to limited movement in her right hand caused by sickle cell anemia. Later that day, K.J. called her crying.

Ms. Jordan could hear Ms. Alexander “in the background screaming.” Ms. Alexander then took the phone and told Ms. Jordan to 9 “pull up. . . . I will drag you today.” Ms. Alexander also gave Ms. Jordan the address of the program. Ms. Jordan came to the program “to see what was wrong with [K.J.].” When she arrived, she saw K.J. outside. They went inside to gather K.J.’s things and, thereafter, Ms. Jordan searched for Ms. Alexander.

Ms. Jordan found Ms. Alexander in a conference room and entered the room. Ms. Jordan was in the process of introducing herself when Ms. Alexander suddenly “was like, it’s me bitch. What’s up. [Ms. Alexander] [k]icked her shoes off [to] try to fight [Ms. Jordan].” Ms. Alexander “threw something at [Ms. Jordan] first[,]” which prompted Mr. Harried to get in between them. Ms. Alexander picked up a fire extinguisher and “was trying to hit [Ms. Jordan] with it.” In response, Ms. Jordan “picked up the wet floor sign . . . .” Ms. Jordan, however, was never able to swing the sign because a man in a purple shirt asked her to exit the building and she obliged.

Once outside, Ms. Jordan called campus security. She denied ever hitting either Mr. Harried or Ms. Alexander. Ms. Jordan concluded her testimony emphasizing that she was K.J.’s guardian and that she never gave Ms. Alexander permission to take her cell phone. On cross-examination, the State called into question Ms. Jordan’s parenting.

Specifically, the State pointed out that Ms. Jordan “didn’t know where [K.J.] was working[,]” yet was “responsible for” her. The State also confirmed that although Ms. Jordan claimed to be K.J.’s legal guardian, she did not bring any documentation to prove it. There was no redirect. 10 The State’s Closing Argument The State’s closing argument focused on the credibility of the State’s witnesses as compared to the defense witnesses. The State downplayed K.J.’s testimony, arguing that she only recalled that her phone was taken, that Ms. Jordan picked up a wet floor sign, and that Ms. Alexander picked up the fire extinguisher.

The State argued that K.J. did not “remember any of the details that were described by Ms. Alexander as well as Mr. Harried.” Moreover, the State argued that K.J. was not even present when the altercation occurred. The State also attacked Ms. Jordan’s credibility. The State questioned her alleged side business of braiding hair despite battling sickle cell anemia. The State also called into question Ms. Jordan’s parenting of K.J. and asserted that Ms. Jordan picked a fight because Ms. Alexander did not recognize her as K.J.’s guardian.

The State argued that the testimony from Ms. Jordan and K.J. was not as detailed as the State’s witnesses. The State commented on the demeanor of both Ms. Jordan and K.J., describing their body language as “very stiff[,]” an indication of defensiveness. The State encouraged the jury to rely on Ms. Alexander’s and Mr. Harried’s testimony because they were teachers and had no reason to be dishonest. The State argued that they both presented detailed testimony, corroborated each other’s statements, and were merely trying to help youngsters acquire life skills.

Defense Counsel’s Closing Argument Defense counsel reminded the jury that Ms. Jordan was to be presumed innocent and that the State bore the burden of proof. As such, it was unfair of the State to suggest that it was incumbent on Ms. Jordan to bring to court proof of her guardianship over K.J. 11 Defense counsel further argued that Ms. Jordan’s parenting skills are irrelevant and that the State raised the issue to distract the jury. Defense counsel contended that both Ms. Alexander and Mr. Harried were engaged in a “cover up” and a “clean up” to salvage the program, which was jeopardized by the incident. Defense counsel argued that Ms. Alexander was not forthcoming in her testimony, reminding the jury that it was only on cross-examination that she admitted to calling K.J. a liar and being frustrated with her.

Defense counsel argued that Ms. Jordan gave very candid testimony; that Ms. Jordan came to the program because her niece was distraught; that Ms. Jordan acknowledged picking up the wet floor sign and explained she did so because Ms. Alexander picked up the fire extinguisher; and that Ms. Jordan candidly described her medical condition, which made it difficult to close her hand. Defense counsel argued that the State wanted the jury to believe that a woman with that disability “came there months after having another [health] crisis in March and came there to fight these two people.” The Verdict The jury convicted Ms. Jordan of assaulting Mr. Harried but found her not guilty of assaulting Ms. Alexander. The court sentenced Ms. Jordan to two years of prison, with all but 10 days suspended, plus two years of supervised probation. Appeal to Court of Special Appeals Ms. Jordan appealed her conviction.

In a per curiam opinion, the Court of Special Appeals determined that the trial court erred under Kazadi, that the issue was preserved and not waived, and that the error was not harmless. Jordan v. State, No. 2594, 2021 WL 12 1311194, at ¹-2 (Md. Ct. Spec. App. Apr. 8, 2021). The Court reversed the judgment and remanded the case for a new trial.

Id. at ¹. DISCUSSION The State contends that the error was a trial error subject to a harmless error analysis. The State argues that because Ms. Jordan testified, the error was harmless beyond a reasonable doubt. The State views the jury’s split decision as evidence that Ms. Jordan’s decision to testify helped her cause.

Ms. Jordan counters that the failure to ask the Kazadi question constitutes structural error because it implicates a defendant’s fundamental rights. Further, even if the harmless error doctrine did apply, Ms. Jordan argues that the error was not harmless. As Ms. Jordan sees it, the failure to ask the question resulted in unquantifiable harm from the moment the jury was impaneled, thereby rendering her subsequent testimony irrelevant to the harmless error analysis. The question before us is whether the specific Kazadi error in this case—the failure to ask the voir dire question concerning the right not to testify—was harmless.

Our analysis will proceed in the following sequence. First, we will outline the salient points from Kazadi. Second, we will explain why the Kazadi error committed here is subject to the harmless error doctrine.3 And third, having determined that such error is subject to 3 It should be noted that we are not addressing in this opinion whether the failure to ask the venire about their willingness and ability to comply with the court’s instructions on the presumption of innocence and the State’s burden of proof—that is, the other two Kazadi questions—are structural errors. The State has not asked us to provide such an expansive holding, and we do not have the benefit of briefing on such issues. 13 harmless error review, we will explain why, under the facts of this case, the error was harmless.

Kazadi v. State From at least 1964, trial judges were not required to ask the prospective jurors whether they would comply with jury instructions on the presumption of innocence and burden of proof. Twining v. State, 234 Md. 97, 100 (1964). In fact, we characterized such questions as “inappropriate.” Id. We decided Twining in an era when jury instructions were merely advisory.

Id.; Kazadi, 467 Md. at 24 . So, there was no point in asking prospective jurors whether they’d comply with an instruction with which they were under no obligation to comply. The advisory nature of jury instructions, or, more precisely, of some jury instructions, gave way over the ensuing seventeen years after we decided Twining. In 1980, in Stevenson v. State, this Court pared back the jury’s role as the “judges of law” to judges of “the law of the crime, or the definition of the crime, as well as the legal effect of the evidence before the jury.” 289 Md. 167, 177-78 (1980) (cleaned up), overruled by Unger v. State, 427 Md. 383 (2012).

This left “all other legal issues . . . for the [trial court] alone to decide.” Id. at 179. Shortly after deciding Stevenson, we decided Montgomery v. State, where we held that a trial court may not instruct a jury that it “could pay no attention to instructions” regarding the presumption of innocence, burden of proof, and the right to not testify. 292 Md. 84, 91 (1981), overruled by Unger v. State, 427 Md. 383 (2012). Fast forward to 2020, when this Court decided Kazadi v. State. In Kazadi, this Court recognized that the erosion of the jury’s right to disregard the court’s instructions on 14 fundamental rights came with a concomitant need to allow defendants to identify prospective jurors who lacked either the willingness or ability to comply with such instructions. 467 Md. at 46 .

This observation derives from the notion that a court’s instruction on the defendant’s fundamental rights after the jury is chosen would “be too little, and too late to uncover the basis for disqualification[]” of those jurors unwilling or unable to follow such instructions. Id. at 39 . Thus, 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.[4] Id. at 9 . Notably, we did not hold that a trial by a fair and impartial jury was impossible without asking such questions; such questions were required only if requested, and the court was under no obligation to ask them sua sponte.

Id. at 46-47 . Our holding was grounded on the more modest premise that such a question “undoubtedly helps to safeguard a defendant’s right to be tried by a fair and impartial jury.” Id. at 41 . And we kept intact Maryland’s longstanding policy that “voir dire’s sole purpose is to elicit specific cause for disqualification, not to aid counsel in the intelligent use of peremptory strikes.” Id. at 46 (quoting Collins v. State, 463 Md. 372, 404 (2019)). 4 There is, of course, much more to the rationale for the Court’s decision in Kazadi to overturn Twining than what is covered here. Nothing in this opinion should, therefore, be construed as changing either the holding in Kazadi or the Court’s reasoning behind the same. 15 The issue of harmless error was not before us in Kazadi.

But it has now been placed squarely before us. The threshold inquiry is whether the harmless error doctrine applies to the Kazadi error here. It is to this issue that we now turn. Structural v. Trial Errors A The harmless error doctrine is grounded in the notion that a defendant has the right to a fair trial, but not a perfect one.

Dorsey v. State, 276 Md. 638, 647 (1976) (quoting State v. Babb, 258 Md. 547, 552 (1970)). So, errors that do not contribute to a defendant’s guilty verdict do not warrant reversal. See id. at 653 . Once error is established, the State must convince an appellate court, beyond a reasonable doubt, “that the error in no way influenced the verdict[.]” Id. at 659 ; see also Chapman v. California, 386 U.S. 18, 24 (1967).

But not all errors must run through the harmless error gauntlet; only “an error in the trial process itself[]” does. Weaver v. Massachusetts, ____ U.S. ___, 137 S. Ct. 1899, 1907 (2017) (quoting Arizona v. Fulminante, 499 U.S. 279, 310 (1991)); Ramirez v. State, 464 Md. 532 , 539 n.1 (2019). Such trial errors may include violations of both constitutional rights and rights derived from elsewhere. See Chapman, 386 U.S. at 22 ; see also Arizona, 499 U.S. at 306-07 .

The United States Supreme Court has found trial errors in a variety of instances. Such errors include a jury instruction containing an improper presumption, Carella v. California, 491 U.S. 263, 266 (1989); a prosecutor’s comment on a defendant’s silence at trial in violation of a defendant’s Fifth Amendment right, United States v. Hasting, 461 16 U.S. 499 , 500, 512 (1983); barring a party’s cross-examination of a witness for bias in violation of the Confrontation Clause of the Sixth Amendment, Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986); and failing to instruct the jury on the defendant’s presumption of innocence, Kentucky v. Whorton, 441 U.S. 786, 789-90 (1979). Likewise, this Court has found trial errors in various contexts, including giving an anti-CSI effect jury instruction, Taylor v. State, 473 Md. 205, 235 (2021); requiring a defendant to decide whether he would testify prior to the testimony of the last defense witness, Stoddard v. State, 423 Md. 420, 438 (2011); deciding incorrectly that the defendant waived the attorney-client privilege, Greenberg v. State, 421 Md. 396, 413-14 (2011); and failing to ascertain a co-defendant’s basis for invoking his Fifth Amendment right against self-incrimination when an improper plea deal was involved, Bhagwat v. State, 338 Md. 263, 279-80, 282 (1995). Although the harmless error doctrine casts a wide net, there are certain types of errors that elude its application because of their “unquantifiable and indeterminate[]” effect on the framework of trial.

Sullivan v. Louisiana, 508 U.S. 275, 281-82 (1993). Such errors are known as structural errors, which have been described as “defects in the constitution of the trial mechanism, which defy analysis by ‘harmless-error’ standards.” Arizona, 499 U.S. at 309 ; see also Redman v. State, 363 Md. 298 , 303 n.5 (2001). The Supreme Court identified three “broad categories” of structural errors. First, an error may be structural “if the right at issue is not designed to protect the defendant from erroneous conviction but instead protects some other interest[]” such as the “right to conduct [one’s] own defense[.]” Weaver, 137 S. Ct. at 1908 .

Second, an error may be 17 structural if its effect is not susceptible to measurement, such as the denial of the right to counsel of one’s choosing. Id. And third, errors that “always result[] in fundamental unfairness[]” have been deemed structural, such as the failure to give a reasonable doubt instruction. Id.

The Supreme Court has found structural errors in relatively few cases, including a complete denial of counsel, Gideon v. Wainwright, 372 U.S. 335, 343-45 (1963); a judge who lacks impartiality, Tumey v. Ohio, 273 U.S. 510, 535 (1927); the exclusion of individuals from a grand jury because of race, Vasquez v. Hillery, 474 U.S. 254, 263-64 (1986); and interference with a defendant’s right of self-representation at trial, McKaskle v. Wiggins, 465 U.S. 168, 187-88 (1984). Similarly, this Court has found structural errors in a limited number of situations, including “giving [an] advisory only jury instruction[,]” State v. Waine, 444 Md. 692, 705 (2015); giving a flawed reasonable doubt jury instruction, Savoy v. State, 420 Md. 232, 254 (2011); violating a defendant’s right to a public trial, Robinson v. State, 410 Md. 91 , 109- 10 (2009); and failing to swear-in a jury, Harris v. State, 406 Md. 115, 130-31 (2008). B Ms. Jordan argues that the trial court’s failure to propound the Kazadi question amounts to structural error because (1) it ensures the jury is unbiased, which is akin to the swearing-in of a jury; and (2) unlike other types of voir dire questions, fundamental rights are implicated. The State counters that the failure to ask the question required under Kazadi should be considered trial error because such failure does not fit into any of the structural error categories outlined by the Supreme Court in Weaver. 18 For guidance, certain cases are instructive.

In Sullivan v. Louisiana, the issue was whether a constitutionally deficient reasonable doubt instruction always requires a reversal or may be subject to a harmless error analysis.5 508 U.S. at 276 . There, the Court explained that the Sixth Amendment entitles a defendant to a trial by an impartial jury, and the Fifth Amendment imposes a “proof beyond a reasonable doubt” standard on the government. Id. at 278 . Construed together, “the jury verdict required by the Sixth Amendment is a jury verdict of guilty beyond a reasonable doubt.” Id.

Thus, if the jury receives a defective instruction on reasonable doubt, the defendant is deprived of the jury trial guaranteed by the Sixth Amendment. Id. at 277-78 . In Sullivan, the Court set up its analysis of structural versus trial error by observing that under Chapman, the harmless error inquiry “is not what effect the constitutional error might generally be expected to have upon a reasonable jury, but rather what effect it had upon the guilty verdict in the case at hand.” Id. at 279 . The Court in Sullivan explained that the erroneous reasonable doubt instruction was not susceptible to harmless error review because the defective instruction deprived the jury of the means to render a guilty “verdict within the meaning of the Sixth Amendment[.]” Id. at 280 .

Without such a verdict, “[t]here is no object, so to speak, upon which harmless-error scrutiny can operate.” Id. (emphasis omitted). Thus, the Chapman inquiry of “whether the same verdict of guilty- beyond-a-reasonable-doubt would have been rendered absent the constitutional error is utterly meaningless.” Id. 5 As this Court has previously noted, “not all errors in a reasonable doubt instruction are of constitutional magnitude.” Savoy, 420 Md. at 238 . 19 The case of United States v. Hasting is also instructive. 461 U.S. 499 (1983). There, in closing argument, the prosecutor improperly commented on the defendants’ decision not to testify.

Id. at 502 . The Court concluded that a harmless error analysis was possible through a careful evaluation of the trial record. Id. at 509-10 . After examining the evidence adduced by the State, the Court concluded that “a more compelling case of guilt [was] difficult to imagine.” Id. at 511 .

In contrast, after examining the defense’s evidence, the Court concluded that the defense advanced “patently and totally inconsistent theories [that] could hardly have escaped the attention of the jurors.” Id. at 512 . Thus, the Court concluded the error was a harmless trial error. Id. In Ramirez v. State, this Court addressed an ineffective assistance of counsel claim in the context of a post-conviction proceeding.6 464 Md. at 539 .

During voir dire, a prospective juror admitted to an inability to be fair and impartial due to a recent burglary of his home. Id. at 539-40 . Yet, defense counsel failed to move to strike that juror for cause, and that juror was impaneled. Id. at 540 .

On appeal from the denial of his post-conviction petition, the defendant argued that his counsel rendered ineffective assistance by allowing a biased juror to be seated, which amounted to structural error. Id. at 541 . We concluded that defense counsel’s representation was deficient for failing to move to strike the juror. Id. at 566-67 .

But we also observed that “[n]ot every claim with respect to the failure to strike or challenge an 6 Ramirez addressed the interplay between structural errors and the prejudice element of an ineffective assistance of counsel claim. 464 Md. at 538-39 . Because the elements of an ineffective assistance of counsel claim are not relevant here, we will confine our discussion of Ramirez to the structural error analysis. 20 allegedly biased juror will result in a determination that a trial was fundamentally unfair.” Id. at 573 . In other words, the seating of a biased juror is not necessarily a structural error. In Ramirez, we also held that even if the error was structural, the defendant would not have been relieved of his burden to prove that defense counsel’s error was prejudicial in a post-conviction claim of ineffective assistance of counsel.

Id. And although the prejudice analysis is different than the harmless error analysis, we find it instructive that, in Ramirez, we were able to evaluate the strength of the State’s case to determine whether the inclusion on the jury of an allegedly biased juror prejudiced the defendant. See id. at 578 . We recognized that the State produced substantial evidence of the defendant’s guilt.

Id. at 580 . Such evidence included testimony from the victims, the getaway driver, and physical evidence corroborating the witnesses’ testimony. Id. at 579-80 . Thus, we found no significant possibility that the jury would have reached a different verdict without the allegedly biased juror.

Id. at 580 . There are two Maryland cases worth discussing that involve the failure to swear-in the jury as required under common law and Article 5 of the Maryland Declaration of Rights. In Harris v. State, we held that the complete failure to swear-in a jury constituted structural error because “the administration of the oath is an essential ingredient of a legally constituted . . . and . . . impartial jury.” 406 Md. at 124, 129 . Thus, the defendant was not “adjudged guilty by any authorized trier of fact[,]” rendering the verdict a “nullity.” Id. at 129 .

In addition, we noted that the error was structural because jeopardy does not attach if the jury that rendered the verdict was not sworn in. Id. at 131-32 . 21 In contrast, in Alston v. State, the court did not realize until the fourth day of trial, after the State had rested, that the jury had not been sworn. 414 Md. 92, 98 (2010). At that point, the court proceeded to swear-in the jury and questioned the jurors to ensure their ability to abide by the oath. Id. at 99 .

We determined that, in contrast to Harris, the belatedly sworn jury allowed jeopardy to attach and, in conjunction with the court’s questioning of the jurors, alleviated the concerns about impartiality. Id. at 105-06 . Indeed, the jury’s acquittal of the defendant on various charges indicated that the jurors diligently and impartially considered each count. Id. at 109 .

Thus, the error was deemed to be a harmless trial error as opposed to a structural error. Id. at 107 . Our assessment of the caselaw brings us to the conclusion that the error here falls on the trial error side of the ledger. There is no claim that the jury was not properly instructed on matters pertaining to Ms. Jordan’s fundamental constitutional rights, or that the jury was never sworn.

Thus, unlike Sullivan, where the jury received a deficient reasonable doubt instruction, and unlike Harris, where the jury was never sworn, the jury verdict here was not inherently infirm from a constitutional standpoint. In other words, unlike in Sullivan, here there was an “object, so to speak, upon which harmless-error scrutiny can operate.” 508 U.S. at 280 (emphasis omitted). The error committed here can readily be assessed for its impact or influence on the jury verdict. In that regard, this case aligns with Ramirez v. State.

In Ramirez, the defendant’s Sixth Amendment right to an impartial jury was at stake. 464 Md. at 567 . Similarly here, Ms. Jordan’s Fifth Amendment right against self-incrimination was at stake. In Ramirez, the error was the seating of a juror identified in the voir dire process as 22 someone who should have been stricken for cause. Id. at 559-60 .

Here, the error was depriving the defendant of a tool for identifying individuals who should be struck for cause. We know that in Ramirez, a juror who have been stricken for cause made it on to the jury; id. at 540 , here we can only speculate that someone who should have been stricken for cause was seated on the jury. In Ramirez, we determined that the actual seating of a biased juror did not automatically render the trial fundamentally unfair, and therefore we could not say that the error was structural. Id. at 573 .

Thus, here, we determine that the possibility that an individual was empaneled who should have stricken for cause did not render Ms. Jordan’s trial fundamentally unfair. This case also favorably compares to Hasting, where the Supreme Court found harmless error in the prosecution’s improper comments on the defendant’s silence at trial. 461 U.S. at 512 . The danger in such an error was that one or more jurors could have been persuaded by the prosecution to infer guilt from the defendant’s failure to testify. That is akin to the risk presented by the failure to ask the Kazadi question about the right to remain silent—namely, that an individual who would view the defendant’s failure to testify as evidence of guilt would make it on to the jury.

As in Hasting, we too conclude that the error here was a trial error subject to the harmless error doctrine. C Now we must determine whether the State has demonstrated beyond a reasonable doubt that the refusal to ask the Kazadi question did not contribute to the guilty verdict. The court’s refusal to ask the question deprived Ms. Jordan of a tool for identifying individuals who should have been stricken for cause for their unwillingness or inability to 23 comply with the court’s instruction on the defendant’s right to remain silent. We perceive two ways in which a refusal of this nature could conceivably contribute to a guilty verdict.

First, a possible consequence of not asking the Kazadi question is that a juror who is unwilling or unable to comply with the right to silence instruction could have been empaneled on the jury. Second, the refusal could have been the deciding factor in the defendant’s decision to testify. We can summarily rule out the first possibility because Ms. Jordan testified. The trial court never gave the jury instruction concerning a defendant’s right not to testify.

Thus, none of the jurors had an opportunity to disregard such an instruction. The second scenario is theoretically possible here. Testifying can be risky for some defendants for a variety of different reasons. For example, if a defendant knows that he will be impeached with a prior conviction if he testifies, but is more concerned the jury would see his failure to testify as evidence of guilt, it’s possible the defendant will choose to testify when he otherwise would have chosen not to.

In that case, the refusal to ask the Kazadi question could conceivably contribute to the guilty verdict. Thus, we must examine the evidentiary record to determine if that possibility was realized in this instance. At trial, the central issue was whether Ms. Jordan was the aggressor as alleged by the State, or whether Ms. Alexander was the aggressor as argued by the defense. It was a classic credibility contest.

Ms. Jordan neither disputed that she had an altercation with Ms. Alexander, nor that Mr. Harried got caught in the middle of the two. That these facts were not disputed was evident in defense counsel’s opening statement, cross-examination of Ms. 24 Alexander and Mr. Harried, direct examination of K.J. and Ms. Jordan, and closing argument. Two witnesses testified for the State: Ms. Alexander and Mr. Harried. Ms. Alexander explained in detail her interactions with both K.J. and Ms. Jordan.

Ms. Alexander portrayed Ms. Jordan as the aggressor, and Mr. Harried corroborated Ms. Alexander’s statement. Thus, when the State rested, the jury had more than enough credible, unrebutted testimony to convict Ms. Jordan on both counts of assault. And the jury had heard only Ms. Alexander’s side of the story. As a practical matter, therefore, Ms. Jordan was all but required to put on a defense.

Although K.J. testified in her defense, it is not surprising that Ms. Jordan decided that the jury should hear her side of the story directly from herself. Having examined closely Ms. Jordan’s trial testimony, we are convinced beyond a reasonable doubt that her testimony did not contribute to the guilty verdict on the charge of assaulting Mr. Harried. Defense counsel’s direct examination of Ms. Jordan was focused and concise. Much of her testimony established her status as K.J.’s guardian and refuted Ms. Alexander’s testimony.

Ms. Jordan did not just deny Ms. Alexander’s account, she painted Ms. Alexander as the aggressor, spoiling for a fight. In contrast, very little of Ms. Jordan’s testimony touched upon the specific allegation that she hit Mr. Harried. Such testimony consumed, by our estimate, less than three percent of Ms. Jordan’s direct testimony, consisting of the following exchange: Q: Mr. Milroy? 25 A: Mr. Milroy, yeah. He was in the middle of both of us.

She had the fire extinguisher. She was trying to hit me with it. She was swinging it like this. So when she was swinging it, I picked up the wet floor sign because you not about to hit me with a fire extinguisher.