State v. Stringfellow

ADKINS, J., concurring, in which BATTAGLIA, J., joins. I join the Majority opinion except with respect to its holding that Mr. Stringfellow waived his objection to the voir dire question. I write on this topic because our jurisprudence regarding waiver has wide-ranging consequences, and we must be cautious in its application. Our precedents do not support finding that Stringfellow, after clearly stating his objection to the “CSI” question and obtaining the court’s ruling, proceeded to waive that objection simply by answering affirmatively when the court asked, at the conclusion of jury selection, whether the defense was satisfied with the jury.

I see the Majority’s decision as extending Neusbaum beyond its intended scope, in a manner that fails to serve any valid policy goal. The question and answer at issue here were just a final opportunity, routinely provided by circuit courts, for the parties to raise new objections to the jury and obtain the court’s ruling. This procedure is not intended to lengthen the trial by having counsel repeat objections already stated or trap the unwary litigant who ⁴⁷⁸ believes his objection has received its Ml and final consideration by the judge. As the Majority acknowledges, only objections “directed to the composition of the jury” are waived by later accepting the jury as empaneled.

Maj. Op. at 465, 469-70, 42 A.3d at 29, 32. This is because, as we explained in Gilchrist v. State, When a party complains about the exclusion of someone from or the inclusion of someone in a particular jury, and thereafter states without qualification that the same jury as ultimately chosen is satisfactory or acceptable, the party is clearly waiving or abandoning the earlier complaint about that jury. The party’s final position is directly inconsistent with his or her earlier complaint.

Nevertheless, where the objection was not directly aimed at the composition of the jury ultimately selected, we have taken the position that the objecting party’s approval of the jury as ultimately selected did not explicitly or implicitly waive his previously asserted objection, and his objection was preserved for appellate review. (Citations and quotation marks omitted.) Gilchrist v. State, 340 Md. 606, 618 , 667 A.2d 876, 881-82 (1995) (emphasis added). The Majority places Stringfellow’s objection in this narrow category, opining that his objection to the trial court’s question went to the jury’s “composition.” Like the objections in Neusbaum and Glover, String-fellow’s objection asserted that the venire members, if the relevant question was posed, would be unfit to sit as jurors in his trial; therefore, his objection went to the inclusion of prospective jurors on the jury selected ultimately.... A prejudicial voir dire question, when propounded, may inject the very prejudice that voir dire attempts to filter out.

Therefore, an objection to [a] propounded, purportedly prejudicial, voir dire question relates directly to the composition of the jury. (Citations and quotation marks omitted.) Maj. Op. at 471, 472, 42 A.3d at 33, 34. This logic is strained to the point of being false, because it misconstrues what actually occurred in the courtroom. ⁴⁷⁹ Stringfellow objected to the question posed by the trial court, saying: “I would object to it being asked in voir dire.” Maj.

Op. at 466, 42 A.3d at 30. This was not an objection to any specific “venire members ... unfit to sit as jurors” for having heard the question. Rather, the objection was to anyone chosen to sit as a juror who had heard the question. For an objection to relate to the “composition” of a collection of things, whether jurors or marbles, it must refer to which component parts are included or how they are chosen.

See The American Heritage Dictionary of the English Lam guage (4th ed.2006) (defining “composition” as “[t]he combining of distinct parts or elements to form a whole ... [t]he manner in which such parts are combined or related ... [gjeneral makeup ... a mixture or compound ... [ajrrangement of artistic parts so as to form a unified whole”). On the other hand, an objection to something that taints an entire collection, without changing its component parts, has nothing to do with its “composition.” Like paint splattered on a collection of marbles, a prejudicial question heard by the entire venire simply does not affect the jury’s “composition.” In the case of a jury, “composition” refers to which jurors are included and how they are chosen, i.e., “the exclusion of someone from or the inclusion of someone in a. particular jury[.]” Gilchrist, 340 Md. at 618 , 667 A.2d at 881 . Gilchri,st’s rule limiting waiver to objections “directly aimed at the composition of the jury” makes sense, because only such objections can fairly be said to be inconsistent with accepting the jury. Gilchrist v. State, 340 Md. at 618 , 667 A.2d at 881-82 .

When the objection does not relate to the composition of the jury, accepting the jury is “not inconsistent” with the prior objection, and does not constitute waiver. Id.; see also Couser v. State, 282 Md. 125, 129-30 , 383 A.2d 389, 391-92 (1978) (holding that defense counsel’s objection to the court’s refusal to allow her to inspect the prosecutor’s notes on prospective jury members was not directly aimed at the jury’s composition, and therefore was not waived by accepting the jury); McFadden v. State, 197 Md.App. 238, 252 , 13 A.3d 68, 76 (2011) (“The State’s reliance on Gilchrist ... is misplaced, as