State v. Shim

ADKINS, J. This case involves two issues regarding the selection and instruction of the jury in a criminal murder trial. First, we must decide whether it is an abuse of discretion for the trial court to refuse to ask whether the venire panel harbored “such strong feelings concerning the violent death of another human being” that they would be “unable to render a fair and impartial verdict based solely on the evidence presented[.]” ⁴⁰ Second, we must decide whether it is an abuse of discretion for the trial court to give a “flight” instruction to the jury when the evidence only shows that the perpetrator left the crime scene at some point after the murder. After the trial court refused the above question in voir dire, and gave the “flight” instruction, the defendant was convicted. On appeal, the Court of Special Appeals found that the trial court abused its discretion in both instances and reversed the conviction.

We granted the State’s Petition for a Writ of Certiorari to consider the following questions: 1. Did the Court of Special Appeals erroneously reverse the murder convictions because the trial court declined to ask prospective jurors, during voir dire, if any member of the jury panel had “such strong feelings concerning the violent death of another human being” that the member would be unable to render a fair and impartial verdict? 2. Did the [Court of Special Appeals] erroneously conclude that the trial court abused its discretion in propounding a flight instruction, based on evidence admitted at trial, and, if there was error, was the error harmless? We shall answer these questions in the negative.

We thus affirm the Court of Special Appeals’ decision and remand to Circuit Court for a new trial. FACTS AND LEGAL PROCEEDINGS Reina Tasha Lynch lived in Prince George’s County with her two children. Fabian Andre Shim, the Respondent, is the father of Lynch’s daughter. Lynch worked during the day as a school bus driver for Montgomery County Public Schools, and at night as a security guard at a Fed Ex facility in Beltsville, Maryland.

Lynch had been seeking child support from Shim, and on November 1, 2006, both attended a pretrial settlement conference with the Maryland Child Support Enforcement Program. At the conference, the Child Support Program calculated Shim’s suggested monthly child support obligation to be $590.17 per month. After the conference, ⁴¹ Shim told his then-fiancé, with whom he was living, that he was upset and felt that Lynch was “asking for too much money.” Nine days later, a man in a dark-colored BMW pulled up to the guard shack at the Fed Ex facility around 10:45 p.m., shortly before Lynch’s night shift was to begin. Lynch’s coworker approached the car and asked him what he was doing.

The man, who looked to be between twenty-seven and thirty-three years old, stated that he was “having lunch.” The man drove away shortly thereafter, before Lynch arrived. Lynch was the only security guard working the night shift on November 10. She logged tractor trailers into the facility at 12:01 a.m., 12:41 a.m., and 1:52 a.m. She logged a trailer out of the facility at 2:20 a.m.

Shortly after 2:30 a.m., surveillance cameras showed a dark sedan pulling up to the guard shack, and leaving six minutes later. By the time the next truck came to the gate, the trucker got no answer from the guard shack and had to punch in a keycode to enter the facility. Lynch’s coworker came to relieve her at 6:30 a.m. He found the guard shack was locked and got no response from Lynch.

At 7:20 a.m., the coworker called their boss and got the code to enter the shack. When he entered, he found Lynch lying on the floor in a pool of blood. Lynch had sustained two shotgun wounds, including one to her head from close range. On the night Lynch was murdered, Shim got off work at 9:00 p.m.

According to his former fíancé’s son, Shim went home and changed from his work clothes. He left the house before 10:00 p.m. and did not return until around 3:00 a.m.,. telling his fiancé that he had worked late. He removed his clothes and placed them into a white plastic bag, saying that he had got something on them at work. He took a shower and then sat in a chair, holding his head and saying he didn’t feel right.

The next day, Shim’s flaneé learned that Lynch had been killed and mentioned it to Shim. He replied, “[W]hy did that bitch go and do that. Somebody had to kill her.” Later that evening, Shim, angered with his flaneé, told her that if she ⁴² didn’t do what he said, he would kill her “like he killed Tasha.” Shim’s fiancé left the house, met with Prince George’s County police detectives, and never went back. Police investigating Lynch’s murder impounded two dark-colored, older model BMWs, including a blue BMW 735i, which they recovered on Holly Berry Court, where Shim had been living.

Police recovered from the blue BMW a shotgun, a pair of black shoes, six rubber gloves, and identified Shim’s fingerprints on the outside of the door and on a radio found inside the left front vehicle pocket. Police were unable to include or exclude Shim’s DNA from the shotgun, which contained the genetic material of three unknown contributors. At trial, the owner of the blue BMW testified that he had lent Shim his vehicle so that Shim could do some body work. The owner further testified that he had not left the shotgun or any of the clothing in the car.

Another witness, an acquaintance of Shim’s, testified that Shim had owned a shotgun, and that Shim had called the witness a few days after the shooting and asked him to remove the shotgun from the BMW. The police arrested Shim and charged him with first degree murder. Shim’s counsel requested twenty-one voir dire questions, including “Question 18,” which read as follows: Does any member of the jury panel have such strong feelings concerning the violent death of another human being that you would be unable to render a fair and impartial verdict based solely on the evidence presented? The court declined to ask Question 18, explaining that it was “not related to the overriding purpose and goal of voir dire in this case.” After the trial, during jury instructions, the Court gave a flight instruction as follows: A person’s flight immediately after the commission of a crime or after being accused of committing a crime is not enough by itself to establish guilt, but it is a fact that may be considered by you as evidence of guilt.

Flight under these circumstances may be motivated by a variety of factors, some of which are fully consistent with innocence. ⁴³ You must first decide wether there is evidence of flight. If you decide there is evidence of flight, then you must decide whether this flight shows a consciousness of guilt. The trial court overruled Shim’s counsel’s objection to the flight instruction. The jury convicted Shim of first degree murder, and he timely appealed to the Court of Special Appeals.

The intermediate appellate court disagreed with the trial court’s rulings with regard to both the voir dire question and the jury instruction. The Court first addressed the trial court’s refusal to ask Shim’s voir dire question: In the present case, Question 18 was directly related to the appellant’s alleged criminal act. It was also reasonably likely to identify jurors with a bias so strong that it would impair their ability to be impartial. In addition, the trial court did not ask any other questions that adequately covered the matter contained in [the question].

We thus conclude that the trial court abused its discretion in declining to ask Question 18. With regard to the flight instruction, the Court of Special Appeals examined the standards under which a flight instruction is appropriate, and concluded: In the case at hand, there was no evidence of flight. The rational inferences to be drawn from the evidence demonstrated only that the shooter left the Fed Ex facility after the shooting. There was no evidence that the shooter fled.

The evidence that appellant took steps to avoid being apprehended did not amount to flight. As a result, the trial court abused its discretion in giving the flight instruction. We granted certiorari to review these two issues. State v. Shim, 412 Md. 689 , 990 A.2d 1046 (2010).

DISCUSSION 1. The Proposed Voir Dire Question We review the trial court’s refusal to propound a requested voir dire question under our well-defined standards ⁴⁴ for voir dire. Voir dire is the “primary mechanism through which the constitutional right to a fair and impartial jury, guaranteed by the Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights, is protected.” Curtin v. State, 393 Md. 593, 600 , 903 A.2d 922, 926 (2006). During this jury selection process, parties may disqualify a juror either for cause or by a peremptory strike.

In Curtin , we explained the difference between these two challenges: Peremptory challenges[ 1 ] ... are challenges exercised without a reason stated, without inquiry, ... without being subject to the court’s control and for either a real or imagined partiality that is less easily designated or demonstrable than that required for a challenge for cause---Conversely, cause challenges permit rejection of jurors on a narrowly specified, provable and legally cognizable basis of partiality[.] Curtin, 393 Md. at 601-602 , 903 A.2d at 927-928 (2006) (quotation marks and some citations omitted) (emphasis added). Maryland recognizes limited voir dire, which means parties can only ask questions related to a cause challenge. A party may thus propose questions designed to identify a juror’s competency, impartiality, prejudice, or bias. See Handy v. State, 101 Md. 39, 43 , 60 A. 452, 454 (1905).

A party may not use voir dire to go “speculating], [inquiring], catechizing, or ‘fishing’ ” for information on which it will base its peremptory challenges. Stewart v. State, 399 Md. 146, 162 , 923 A.2d 44, 53 (2007). We allow the trial judge broad discretion in running voir dire. Moore v. State, 412 Md. 635, 644-46 , 989 A.2d 1150, 1155-56 (2010).

That discretion, however, is circumscribed by the defendant’s “right to have questions propounded to pro ⁴⁵ spective jurors on their voir dire, which are directed to a specific cause for disqualification[.]” Moore, 412 Md. at 644-46 , 989 A.2d at 1155-56 . A trial court, therefore, abuses its discretion when it refuses a question regarding “a specific cause for disqualification.” Id. at 654 , 989 A.2d at 1160 . Specific causes for disqualification are biases directly related to (1) the defendant, (2) the witnesses, or (3) the crime. See Dingle v. State, 361 Md. 1, 10 , 759 A.2d 819, 824 (2000).

This Court has identified mandatory questions in each of these three areas. First, we require questions regarding a juror’s potential bias towards the defendant. See Hernandez v. State, 357 Md. 204, 232 , 742 A.2d 952, 967 (1999) (whether jurors had bias towards criminal defendant’s “race ethnicity, or cultural heritage.”); Casey v. Roman Catholic Archbishop, 217 Md. 595, 607 , 143 A.2d 627, 632 (1958) (in a civil case involving a religious organization, whether jurors’ religious beliefs would bias them against either party). Cf.

Landon v. Zorn, 389 Md. 206, 222 , 884 A.2d 142, 151 (2005) (not an abuse of discretion to refuse question regarding bias against a tort plaintiff). Second, we require the trial court to ask proposed questions regarding bias towards witnesses and certain types of evidence. See Langley v. State, 281 Md. 337 , 378 A.2d 1338 (1977) (juror deference to police witnesses); Bowie v. State, 324 Md. 1 , 595 A.2d 448 , (1991) (bias against Defense’s witnesses). Cf.

Corens v. State, 185 Md. 561 , 45 A.2d 340 (1946) (not error to ask question regarding bias towards circumstantial, as opposed to direct, evidence in capital case). But see Stewart, 399 Md. at 165-66 , 923 A.2d at 55 (not mandatory to ask, inter alia, whether a prospective juror would give greater weight and consideration to the arguments of the assistant state’s attorney than to those of defense counsel). Third, and most relevant here, we have required in a series of cases that trial courts ask questions aimed at uncovering a juror’s “strong feelings” towards the crime charged. In these cases, we have established limits to the trial judge’s discretion regarding these questions, and they inform our result here today. ⁴⁶ In State v. Thomas, 369 Md. 202 , 798 A.2d 566 (2002), we held that a trial court abused its discretion when it refused to ask whether the jury panel had strong feelings regarding narcotics laws.

The defendant in Thomas proposed to ask the venire panel whether “any member of the jury panel [had] such strong feelings regarding violations of the narcotics laws that it would be difficult for you to fairly and impartially weigh the facts ....”, and the trial court refused. Id at 204, 798 A.2d at 567 . On appeal, we held that the question must be asked, reasoning that “it is common knowledge that a significant segment of our society believes, as a matter of public policy, that the criminal laws relating to marijuana should be modified in one way or another[.]” Id at 211, 798 A.2d at 571 . We explained further that “evidence that voir dire questions on drug attitudes are effective in revealing strong feelings towards narcotics laws that may hinder a juror’s ability to serve.” Id. at 212 , 798 A.2d at 572 .

Shortly after Thomas , we held that a trial court must ask a similar question regarding a charge of sexual molestation of a child. See Sweet v. State, 371 Md. 1 , 806 A.2d 265 (2002). The defendant there unsuccessfully requested the trial court to ask whether “the charges stir up strong emotional feelings in you that would affect your ability to be fair and impartial----” Id at 9, 806 A.2d at 270-71 . On appeal, we held that Thomas was controlling, and that the trial court abused its discretion in refusing to ask the “strong emotional feelings” question.

To reach this conclusion, we interpreted the Thomas holding broadly, and did not engage in any “bias” analysis like that in Thomas : The Court’s decision in petitioner’s case is essentially controlled by our recent decision in Thomas [.] In that case, we held that it was an abuse of discretion for the trial court to refuse to ask the venire panel if any of them harbored “strong feelings regarding violations of the narcotics laws” in a trial in which the defendant was charged with possession and distribution of a controlled dangerous substance. We reasoned that the inquiry was directed at ⁴⁷ biases, specifically those related to Thomas’s alleged criminal act, that, if uncovered, would be disqualifying when they impaired the ability of the juror to be fair and impartial. The rationale of Thomas in this regard is fully applicable to the instant case. Accordingly, we hold that the trial court abused its discretion in failing to pose petitioner’s requested voir dire question, and petitioner is entitled to a new trial.

Id. at 9-10, 806 A.2d at 271 (emphasis added) (some citations omitted). This passage demonstrates that after Thomas , this Court apparently did not believe it necessary to compare and contrast individual crimes to determine which could create disqualifying biases. In a third case, we held that a question directed at biases towards “handguns” was not mandatory, thus distinguishing it from Thomas and Sweet. See Curtin, 393 Md. at 600 , 903 A.2d at 926 .

In Curtin , the defendant was alleged to have participated in an armed bank robbery, and charged with robbery and assault. During voir dire, the defendant unsuccessfully requested the following voir dire question: “Does anyone have any strong feelings concerning the use of handguns that they would be unable to render a fair and impartial verdict based on the evidence?” Id. at 597 , 903 A.2d at 925 . We held that the trial court’s refusal of this question was permissible, distinguishing the case from Thomas and Sweet : Although Mr. Curtin alleges that his requested voir dire question comes within the strictures of Thomas and Sweet , we recognized in those cases that the charges of narcotics possession and child molestation in and of themselves could evoke strong feelings that could unduly bias a venireman. In the present case, however, Mr. Curtin was charged with armed robbery, use of a handgun in the commission of a crime of violence, first degree assault and conspiracy.

We believe that ... Mr. Curtin’s voir dire question was not mandated in this case merely because a handgun was used[.] Id. at 610, 903 A.2d at 932-33 . Our holding in Curtin raised the question of whether we had narrowed Thomas and Sweet and embarked on a crime- ⁴⁸ by-crime approach to mandatory questions. Indeed, the majority opinion sparked a concurrence and a dissent, both of which expressed concern that Curtin signaled a new approach.

In a concurring opinion, Judge Wilner wrote: It is obviously not reasonable to presume that [child sexual abuse and narcotics violations] are the only kinds of crimes about which public emotion may run high. Surely, there are others. Having found that those kinds of criminal activity may so enrage prospective jurors as to require specific voir dire questions to ferret out possible bias, what standard will the Court use to distinguish one crime from another? We have essentially taken judicial notice that some people may have particularly strong feelings about narcotics crimes.

Is it not equally likely that some will have the same strong feelings about other crimes — burglary, robbery, rape, arson, not to mention murder. Some may be incensed over gambling or prostitution, or wanton, vicious assault, or cruelty to animals, or fraud. If the question is phrased as here — whether the prospective juror has such strong feelings about the crime as to make it difficult (or impossible) to weigh the facts fairly — what difference does it make what the crime is? Curtin, 393 Md. at 614 , 903 A.2d at 934-35 .

(Wilner, J., concurring). Similarly, in dissent, Chief Judge Bell, joined by Judge Raker, urged the Court to adopt a mandatory question for all charged crimes: There is a lot to be said for Judge Wilner’s concurrence in this case. It makes the point, and quite well, that this Court already has required voir dire questions designed to ferret out bias, arising from and/or based on certain charged offenses, that, in that regard, this Court already has embarked on and endorsed, an approach different from that espoused and touted as the approach our existing case law supports. Acknowledging our decisions in Thomas and Sweet , he recognizes the unreasonableness in presuming ⁴⁹ that the crimes at issue in those cases “are the only kinds of crimes about which public emotion may run high.” In addition, Judge Wilner concedes that the additional voir dire required to inquire into charged crime bias is not likely to be lengthy or cause undue trial delay.

We already have decided and agreed that certain crimes — we have specifically singled out child sexual offenses and narcotic offenses — may trigger sufficiently strong reactions in potential jurors as to make questionable their ability to render a fair and impartial verdict. If, in narcotics and child sex abuse cases, inquiry of the venire is required because we have determined those crimes to evoke strong emotional reactions which may amount to bias, why do we not recognize that there are other crimes that may evoke the same or more extreme reactions. It is unconscionable that we would inquire in some cases, those we have specifically recognized, but refuse to do so in those other cases, simply because it might take too long and perhaps because it may be too difficult to decide which cases fall into the Thomas and Sweet category. Under that regime, the Court is allowing two categories of cases to be targeted, while allowing the vast majority to go unchecked for possible bias.

The answer is clear; we must require, as a matter of policy, trial courts to ask, in every criminal trial, whether the prospective juror has such strong feelings about the charged crime as to make it difficult or impossible to weigh the facts fairly. Curtin, 393 Md. at 616-19 , 903 A.2d at 935-38 . (Bell, C.J., dissenting) (citations omitted). This array of opinions has understandably led some to believe that we have engaged in a crime-by-crime approach to mandatory voir dire questions.

See, e.g., Sanders v. State, 194 Md.App. 162, 177 , 4 A.3d 1, 9-10 (2010) (stating that the Curtin majority, in declining to adopt Chief Judge Bell’s suggestion of a mandatory question in all cases, embraced an approach which distinguishes among crimes). Here, the State has adopted this interpretation, and ⁵⁰ argued that we should not “extend” the holdings of Thomas and Sweet to the crime of murder, or “violent death.” A close reading of Curtin , however, demonstrates that the majority did not go so far as to embrace such an approach. To be sure, in the short passage quoted above, the Curtin Court suggested that it would rely on the inherent differences between the charged crimes at issue and those of Thomas and Sweet . Immediately after this passage, however, the Court amplified its reasoning.

Adopting the approach of the intermediate appellate court, see Curtin v. State, 165 Md.App. 60 , 884 A.2d 758 (2005), this Court explained: Appellant’s defenses were based on theories suggesting that appellant was not a participant in the bank robbery or, alternatively, that there was no evidence that a real gun was in fact used. In this case ... potential juror bias about handguns does not go so directly to the nature of the crime. Appellant was accused of robbing a bank with an accomplice who was brandishing a gun.... [N]o analysis or weighing of issues pertaining to the gun was required by jurors in this case, other than accepting or rejecting the State’s evidence demonstrating that a gun was used in the commission of the crime. The proposition that a juror’s strong feelings for or against handguns would necessarily preclude him or her from fairly weighing the evidence in this case — where there was clearly no question relating to the “reasonableness” or “justifiableness” of the use of the gun under the circumstances — is based upon a