TETSO v. State

WATTS, J. Following a trial held on August 17 and October 1, 6 through 8, 12 through 15, and 18 through 22, 2010, a jury sitting in the Circuit Court for Baltimore County convicted Dennis J. Tetso, appellant, of second-degree murder. See Md.Code Ann., Criminal Law Art. (“C.L.”) § 2-204. On November 23, 2010, appellant was sentenced to thirty years’ imprisonment with all but eighteen years suspended followed by five years of supervised probation. Appellant noted an appeal raising five issues, which we slightly rephrased as follows: ³⁴¹ I. Was appellant denied the constitutional right to a fair and impartial jury and to the effective assistance of counsel when a venire member, who served on the jury, responded that she believed appellant should be required to prove his innocence?

II

Was the evidence insufficient to support appellant’s conviction for second-degree murder?

III

Did the circuit court err in limiting appellant’s questions of several witnesses that would have allegedly established that the victim had run away from home in the past and that the victim was seen by witnesses after the date on which the State claimed that she was murdered?

IV

Did the circuit court’s instruction on circumstantial evidence constitute plain error? V. Did the circuit court err in allowing the prosecutor to argue law in closing? We answer all five questions in the negative, and therefore, affirm the judgment of conviction. FACTUAL AND PROCEDURAL BACKGROUND Appellant and Tracey Leigh Tetso (“Tracey”) 1 were married in September of 2004, after a “six or seven year[]” relationship.

The couple lived at 7800-A Bluegrass Road, Rosedale, Maryland 21237. On March 6, 2005, Tracey was to attend a Motley Crue concert with Christian Sinnott (“Christian”), that was scheduled to begin at 7:30 p.m. at the MCI Center in Washington, D.C. Tracey never arrived at the concert and has not been seen since March 6, 2005, and her body has not been discovered. On March 17, 2005, Tracey’s vehicle, a Trans Am, was found in Anne Arundel County near a Days Inn hotel and a bowling alley. Appellant was arrested in June of 2009 and charged with first-degree murder. ³⁴² Because our resolution of the instant appeal involves the sufficiency of evidence, we must set forth the lengthy and detailed facts of the case.

The facts are set forth below in the order the witnesses testified at trial. At trial, Rose Smith, Tracey’s grandmother, testified as the State’s first witness, that she raised Tracey as her mother had been “gone since ... Tracey was two years old.” Smith testified that she and Tracey enjoyed a close relationship and that she talked to Tracey “at least three times a week” and saw her “[t]hree or four times a week.” Smith testified that Tracey had three dogs and Tracey loved and cared for the dogs, talking about them all of the time. Smith testified that she had not seen or heard from Tracey since the week prior to March 6, 2005.

Smith testified that, two to three months before Tracey disappeared, Tracey gave Smith a “document that [appellant] had written her.” 2 After hearing about Tracey’s disappearance, Smith testified that she went to appel ³⁴³ lant’s and Tracey’s home on March 7, 2005, and she noticed that a comforter from Tracey’s bed was missing. Smith testified that she went to appellant’s and Tracey’s home again about two weeks after Tracey’s disappearance and when she arrived appellant was there, and “there was stuff piled up in the living room.” Smith testified: “I asked [appellant] if he was moving out. And he said, No, I’m moving in, because I don’t want to pay for that thing anymore.” According to Smith, appellant was referring to a storage facility in which he had placed belongings prior to Tracey’s disappearance. Dawn Spadaro, Tracey’s good friend and maid of honor, testified, as a witness for the State, that she saw Tracey “[m]aybe three times a week” and spoke to her “every other day or every two days.” Spadaro testified that Tracey loved and took care of her Trans Am.

Spadaro testified that Tracey “loved her pets. They were her babies.” According to Spadaro, Tracey “was not happy in the marriage.” Spadaro testified that in March 2005, she made plans to move into Tracey’s home at the end of May 2005. Spadaro testified that Tracey told her that, on March 6, 2005, she was attending a Motley Crue concert with a friend from work, Christian. Spadaro testified that appellant called her the night after the concert to let her know that Tracey was missing.

Spadaro subsequently conducted a search for Tracey’s car, “[a]ll over Anne Arundel County,” with no success. Robin Payne, one of Tracey’s co-workers at Aggregate Industries, 3 testified as a witness for the State, that she spoke with Tracey outside of work “maybe once a weekend.” As to Tracey’s work habits, Payne testified that she “always was at work, always on time, always dependable. If she had to stay, if she had to finish work she would not leave early that day. She would stay until her job was done.” Payne testified that she knew Tracey had pets because “that’s all she talked about. ³⁴⁴ They were like her kids, they were her babies.” On cross-examination, Payne testified that appellant would call Tracey’s work “asking what time did Tracey clock out last night.

Because he was, like, watching her. And I [Payne] did payroll. So he would call and ask me a few times what time she clocked out the night before.” Monika Barilla, Tracey’s supervisor at Aggregate Industries, testified as a witness for the State, that she spoke with Tracey everyday, except for the weekends. Barilla testified that Tracey was “[f]un loving, she loved, just loved life and loved her friends and her grandmother, her dogs.

Her dogs were her children.” Regarding Tracey’s work ethic, Barilla testified that “Tracey was very reliable. She was one of the— one of our best coworkers. She always showed up. If for some reason she couldn’t make it on time, Tracey would call.

She would always call before she was late.” Barilla testified that she knew Tracey planned to attend the Motley Crue concert on March 6, 2005, and that this was marked on Tracey’s calendar at work, with a note that she would be coming into work at nine the next day because of the concert. Barilla testified that on March 7, 2005, when Tracey did not show up to work or call, she called appellant and local hospitals looking for Tracey. Barilla testified that she conducted and assisted in at least thirteen searches for Tracey, as well as bringing media attention to her disappearance. Barilla testified that appellant, although invited, did not participate in any of these searches.

Barilla testified that many news segments were shown regarding Tracey’s disappearance— “probably two hundred times it’s been out there over the years.” Barilla testified that “Tracey couldn’t go anywhere without [appellant] constantly calling her, asking where is she, who is she with, where is she going to be, how long is she going to be there. I know one time we went out to dinner and he was constantly calling. She would get really upset, which I don’t blame her, you know. It wasn’t just after things were breaking up, it was from the beginning.” ³⁴⁵ As to Tracey’s reliability in terms of communication, Alisha Baptiste, another of Tracey’s co-workers at Aggregate Industries, testified as a witness for the State, that: “Tracey was very reliable.

Any time we had plans to do something, if Tracey was going to be late she would call me to let [me] know that she was running behind.” Baptiste testified that Tracey was going to the Motley Crue concert on March 6, 2005, with Christian, whom, according to Baptiste, Tracey was “[d]ating[.]” Baptiste testified that Tracey was planning to attend a party at her house a week after March 6, 2005. Robin Cataldi, one of Tracey’s good friends from high school, testified as a witness for the State, that she saw Tracey on March 3, 2005, and Tracey appeared as if she “was having a hard time.” Cataldi testified that Tracey informed her that “she had gone to see a divorce attorney and that [she] and [appellant] were separating and she was moving on.” Cataldi testified that Tracey told her that she “had already put things on layaway so that when [appellant] took things out of the house that she could just replace whatever he took.” Cataldi testified that after Tracey’s disappearance, she asked appellant about any plans Tracey had for after March 6, 2005. According to Cataldi, appellant responded that Tracey “had picked up Easter baskets for his children and they were having a birthday party for his daughter” on March 13, 2005. Kathleen Sinnott, Christian’s mother, testified as a witness for the State, that Christian died on March 12, 2010, from a drug overdose.

Sinnott testified that in 2005, Christian lived with her and that Tracey was his girlfriend. 4 Sinnott testified that she learned Tracey was married because appellant “came to the house one time and I answered the door. Christian wasn’t home. And he asked for Christian and I said that he wasn’t home. And I didn’t know [appellant], so I said to him, Can I have your name and tell him who stopped by?

And he just turned and said, It’s Tracey’s husband. He didn’t give the name; he just said ‘Tracey’s husband’.” Sinnott testified ³⁴⁶ that she knew Christian and Tracey were to go to a concert on March 6, 2005, but Tracey never showed up at her house. Officer Angela Blankenship of the Baltimore County Police Department, testified as a witness for the State, that she has known appellant for eight years, as her husband and appellant “were friends.” Officer Blankenship testified that in January 2005, appellant contacted her and “[a]t that time [appellant] advised [her] that [he] believe[d] it was his wife Tracey’s—I want to say that it was her boss who had contacted him advising him that he had some tapes believing that she had an affair. And he also, he called me to say that someone was following him and he believed it may be the guy she was having the affair with.

He said he was harassing him.” As a result of this call, Officer Blankenship ran a tag number that appellant had provided to her. Officer Blankenship gave appellant information on the owner of the vehicle, including his date of birth, name and address because appellant said he wanted to obtain a peace order. According to Officer Blankenship, the owner of the vehicle appellant requested information about was Christian. Dawn Howard, Tracey’s best friend, testified as a witness for the State, that she spoke with appellant daily after Tracey’s disappearance .and he “showed no emotion.” Howard testified that prior to Tracey’s disappearance, she had planned to attend Howard’s daughter’s baby shower in April.

According to Howard, while visiting with appellant after Tracey’s disappearance, he gave her presents Tracey had bought for the baby shower. Howard testified that she was involved in searches “[e]very weekend for the first several months” and appellant, although invited, never participated because “he did not feel comfortable coming around people that thought he would do something to Tracey.” Regina Gardner, Tracey’s stepmother, testified as a witness for the State, that she visited Tracey and appellant’s home on April 4, 2005, with Smith, and she saw “boxes from the floor stacked up from the living room door back towards the dining area.” When she asked appellant if he was moving out, he ³⁴⁷ replied no, he was moving back in. Gardner testified that she participated in searches about every weekend for a year and had fliers made. Gardner testified that the house at 7800-A Bluegrass belonged to Tracey, as she was the only one on the deed and “she was paying the mortgage.” Keith Liebermann, Tracey’s supervisor at Aggregate Industries, testified as a witness for the State, that he worked with both Tracey and appellant, and had known appellant for about eighteen years.

Liebermann testified that Tracey was a very reliable worker, and she would call or give advance notice if she was going to miss work or be late. Liebermann testified that in December 2004, appellant spoke with him about Tracey because “[h]e was suspicious of Tracey and wanted to know if [Liebermann] had ever heard anything[.]” Liebermann explained that he believed appellant was referring to Tracey “fooling around on him.” Liebermann testified that appellant asked him if he ever “came across anything to let him know.” Liebermann testified that he “came across” the following: I was listening to—our phone calls are recorded. So I was, I was listening to tapes, and for personal reasons, and I came across this long phone call, so I decided to listen to it. It was Tracey, and it was of her talking to some guy who I didn’t know who it was at the time.

And they were kind of talking, I would say, in code. They mentioned some things about a cell phone, getting a new card for more minutes and meeting at a specific location. Not the recent location, the first location. Something to that effect.

And so I stopped listening at that point. And then I don’t know exactly what day after that I contacted [appellant] to let him know I found something he might be interested in hearing. Liebermann testified that appellant wanted to hear the call and came in on a Saturday at the beginning of December to listen to the call. Liebermann testified that appellant “was antsy, kind of like pacing a little bit” and had brought a tape recorder with him to record the call, but Liebermann refused ³⁴⁸ to allow the recording.

Liebermann testified that while in the office listening to the call, appellant went to Tracey’s desk, opened a drawer, and found a small package and pulled out a ■bracelet and then put the package back in the drawer. Liebermann testified that appellant “wasn’t happy.” When asked if Liebermann determined who Tracey was calling, Liebermann replied: “in part of the call he stated that he didn’t work that day. So, of course, at the time the call came in—they’re time stamped. So we went over ... [to] where the cut-off time sheets are for the drivers....

And all of the drivers worked except for this one driver, and his name was Christian Sinnott. So I came to the conclusion it was him as well as, I am sure, [appellant] did too.” While listening to the call, Liebermann testified that appellant said “he wasn’t going to go through this again and there’s three things he doesn’t like, he doesn’t like a liar, a cheat, and he doesn’t want anybody to take his money.” Liebermann testified that Tracey found out about him letting appellant listen to the call, and that Tracey confronted him but he denied it. Tracey went to his supervisor, at which point Liebermann told the truth. Liebermann testified that the last time he spoke to appellant was the Wednesday after he let appellant listen to the call.

Liebermann stated that appellant “call[ed] to tell me what was happening with his little investigative stuff,” and Liebermann told him not to call anymore. When asked what appellant was referring to when he said “investigative stuff,” Liebermann replied: “He told me he had recorded the house phone. He went to Radio Shack picking up stuff. Just following her around.

Parking—borrowing somebody’s van to follow her around in.” Liebermann testified that appellant told him he acquired Christian’s address from “a lady police officer that helped him with the information.” Liebermann testified that appellant confronted Christian: He went and confronted him the Saturday after he listened to the conversation and, what he told me, the following Monday. And he went there, I thought he told me, with some relatives or cousins. ³⁴⁹ And he did tell me he didn’t know Christian had arms as big as his legs, which he didn’t know/ 5 1 Anthony DeRuggiero, a supervisor at Precision Concrete, testified as a witness for the State, that he has known appellant for nine years as appellant works for Precision Concrete. DeRuggiero testified that, as an employee for Precision Concrete, appellant drives a single-axle dump-style truck with a trailer. According to DeRuggiero, appellant is an equipment operator—one who is able to operate the equipment, excavate, grade—-and one who is able to operate backhoes, loaders, dozers, excavators, fork trucks, and the like.

DeRuggiero testified that in March of 2005, Precision Concrete had about twenty-five ongoing projects, and appellant would have been aware of the location of the projects sites at the time. DeRuggiero testified that there are construction dump sites at fixed locations where “we take the excess materials, broken concrete, excess dirt, trash, any kind of construction debris goes to a construction dump.” DeRuggiero testified that appellant had knowledge of these dump sites. On cross-examination, DeRuggiero testified that not all of the project sites were gated and locked when not being worked on and that “most of them aren’t gated.” DeRuggiero testified that dump sites, however, cannot be accessed without somebody being on-site to let a visitor in. DeRuggiero testified that appellant had never, to his knowledge, removed a piece of equipment from Precision Concrete without authorization.

DeRuggiero testified that trucks, but not the equipment, have GPS locating systems and drivers maintain a log to record their activities with the trucks. DeRuggiero testified that he had no knowledge of any truck or equipment being taken without authorization or missing in March of 2005. John Royer, an employee of the Maryland Transportation Authority, and an E-ZPass Administrator, testified as a witness for the State, that the Baltimore County Police subpoenaed the E-ZPass records for Tracey from February through ³⁵⁰ March 6, 2005. The State introduced Exhibit No. 26-records for use of an E-ZPass that was in Tracey’s name.

Royer testified that the records reflect that on March 6, 2005, at 2:30 a.m., Tracey’s E-ZPass was used to go northbound through the Baltimore Harbor Tunnel, located on the 895 corridor. Royer testified that the records show that Tracey’s E-ZPass was again used at 7:48 p.m. on March 6, 2005, to go southbound through the Baltimore Harbor Tunnel. David Haven, appellant’s friend and best man, testified as a witness for the State, that he had a telephone conversation with appellant on March 6, 2005, about appellant borrowing a “car computer” to fix his truck. Haven testified that in March 2005, he worked at Cycle World in Brooklyn Park, and on March 6, 2005, appellant met him at Cycle World to pick up the “car computer.” Haven testified that appellant arrived at Cycle World in Tracey’s Explorer because his truck was not working.

Haven testified that appellant asked him to come over to his (appellant’s) home in Rosedale to help with the truck. Haven agreed and drove to appellant’s home around 6:10 p.m. Haven testified that he helped appellant fix his car and that he stayed for about an hour. Haven testified that while at appellant’s home, he went inside to use the restroom and did not see Tracey or hear a television.

Haven testified that when he arrived and when he left the home, appellant’s vehicle, Tracey’s Explorer and Tracey’s Trans Am were in the driveway. Haven testified that he was familiar with the status of Tracey and appellant’s relationship, and he was aware that appellant was in the process of moving out. Haven testified that he assisted appellant in moving “his stuff out to a storage unit.” The prosecutor asked Haven whether he had a conversation with appellant after March 10, 2005, in which appellant informed Haven that he had not told the police that Haven came to the house on March 6, 2005. Haven responded: “Yes.” Detective Charles Grass of the Baltimore County Police Department, an analyst of telephone records, testified as a ³⁵¹ witness for the State and wras accepted as an expert in the field of cellular telephone (“cell phone”) tower linking and mapping.

During Detective Grass’s testimony, the State introduced evidence regarding cell phone usage for the cell phones used by Tracey, appellant, and Christian. The records reveal that a total of seventeen calls were made on Tracey’s cell phone on Sunday, March 6, 2005. The cell phone records for Tracey’s phone showed it was traveling “south of Glen Burnie” around 2:25 a.m., “heading back toward[ ] the Baltimore area.” The next call was at “roughly” 10:00 a.m. in the Rosedale area, and three calls after that, at 2:36 p.m., 2:56 p.m., and 3:00 p.m., were also in the Rosedale area. Detective Grass testified that “there[ were] no more calls until roughly 7:48 p.m., and you can see that the phone is traveling in a south direction on the 895 corridor....

Then you see another [call] going towards the Brooklyn area of Anne Arundel County.” According to Detective Grass, “then you see several calls down in the Glen Burnie area.” Detective Grass testified that ten calls were made in an eleven-minute span, between 7:46 p.m. and 7:57 p.m. Christian’s cell phone records showed that one-hundred-fifty-two calls were made on his cell phone on March 6, 2005. One-hundred-forty-four of those calls were made to Tracey’s phone; one-hundred-thirty-eight of those calls went straight to voice mail, which meant that the phone was “not on.” According to Detective Grass, fifty-four of the calls were made when Christian’s phone was close to Bowie, Maryland. Detective Grass testified that “the rest of the calls,” ie. ninety-eight calls, were made later in the evening from the Washington, D.C. area, “no further north than the Bowie area.” Detective Grass testified that based on the cell phone records from 7:30 p.m. to 11:30 p.m., the cell phone belonging to Christian was somewhere in the Washington, D.C. area when used.

Appellant’s cell phone records for March 6, 2005, showed a total of fifteen calls, most of which were made in the Rosedale area of Baltimore County, where appellant lived. According to Detective Grass, one or two of appellant’s calls, however, were “following the 895 corridor, crossed over maybe into ³⁵² Baltimore City like the Brooklyn area, then one down in the Glen Burnie area.” One of those two calls was made at approximately 4:20 p.m. and the other at 4:38 p.m. Appellant’s cell phone records showed that the last call he made on March 6, 2005, was made from the Gardenville area 6 at 8:55 p.m. Michael Pruner, who owns the company that installed the security system at Days Inn on Ritchie Highway, testified that the time on the videotapes very commonly does not adjust to daylight savings time and sometimes the videotape “would be an hour off.” During Pruner’s testimony, the State entered into evidence State’s Exhibit No. 35, a videotape from the Days Inn parking lot on March 6, 2005.

The State played the videotape for the jury. It is undisputed that the Days Inn videotape shows a Trans Am vehicle pulling into the parking lot, parking, a person departing from the vehicle, walking away from the vehicle and then headlights on the vehicle flashing. The time displayed on the videotape as this occurs is 9:01 p.m. Pruner testified that as a result of the video recording never being changed by the property or his company to adjust for Daylights Savings Time, “it would be an hour off.” Donna Croop, an auto mechanic at Schaeffer and Strominger, testified as a witness for the State that a Schaeffer and Strominger invoice showed that on December 18, 2003, she programmed one keyless entry remote for Tracey’s Trans Am vehicle. 7 On cross-examination, Croop was shown a second Schaeffer and Strominger invoice from December 18, 2003, showing that two keys to the Trans Am were purchased on that day.

The second invoice did not include a keyless entry remote. On re-direct examination, Croop testified that the first Schaeffer and Strominger invoice displayed the notation “programmed customer supplied remote, singular.” Croop ³⁵³ testified that she “usually keepfs] very meticulous notes. Usually if it’s more than one, I will put in the plural. Right here it says in the singular.” Detective Phillip Marll of the Baltimore County Police Department, Homicide Unit, Cold Case Unit, the primary detective in Tracey’s homicide case, testified as a witness for the State that he interviewed appellant on three occasions, twice on March 9, 2005, and a third time on March 10, 2005.

On March 9, 2005, at 1:00 p.m., Detective Marll interviewed appellant, for the first time, at his and Tracey’s home. 8 Detective Marll testified that appellant told him that on March 6, 2005, he was working outside on his truck, and around 2:30 p.m. Tracey came home from a store. 9 After Tracey’s return, appellant advised that he went inside the house and heard the television on a few times, but he did not actually see Tracey. Appellant told Detective Marll that after Tracey arrived home from the store, “he never saw or heard from her again.” During the first interview, appellant told Detective Marll that he never left the house that day or that evening. Appellant told Detective Marll that at about 6:00 p.m. or 6:30 p.m., he took a shower, and after exiting the shower, he noticed the front door was closed and locked, the television was off, and Tracey’s Trans Am was gone.

Detective Marll testified that ³⁵⁴ appellant explained that he received a call from Payne the morning of the March 7, 2005, inquiring about Tracey’s whereabouts, and he proceeded to call a neighbor to see if Tracey’s car was in front of their house. He then called Tracey’s cell phone, but the call went straight to voice mail. Appellant told Detective Marll that a private investigator, hired by some of Tracey’s co-workers, had talked to him and informed him that Tracey was supposed to go to a concert on March 6, 2005, with Christian. During the first interview, Detective Marll asked appellant about his marriage and appellant stated that he and Tracey were having “marital problems.” Appellant told Detective Marll that he believed Tracey was “seeing someone else” so he “went to where [Tracey] worked and approached ... and asked Liebermann asking if it was okay to listen to her phone calls.

He [appellant] said he did that, ... and searched through her desk. He said he also placed a tape recorder on her phone, unbeknownst to [Tracey], and recorded conversations between [Tracey] and Christian [ ].” Appellant showed Detective Marll a telephone bill with “hashmarks” next to Tracey’s cell phone number and Christian’s cell phone number. On the back of the phone bill was Christian’s name, address, and phone number, as well as directions to Christian’s residence. Appellant told Detective Marll he got this information from the internet.

During the first interview, appellant told Detective Marll that he and two of Tracey’s cousins had approached Christian at his house, and Christian denied having an affair with Tracey. Appellant told Detective Marll that in February, 2005, he obtained a protective order against Christian because of a confrontation that occurred in a convenience store. On February 10, 2005, however, appellant had the protective order rescinded. Appellant informed Detective Marll that he was going to the court the next day to get another protective order against Christian because on March 7, 2005, Christian stopped by appellant’s home and called appellant’s cell phone asking about Tracey’s whereabouts.

Appellant told Detective Marll that he was moving out and had moved some belongings ³⁵⁵ to storage. Appellant gave Detective Marll contact information for some of Tracey’s friends. Appellant gave Detective Marll contact information for Haven, telling Detective Marll that: “Dave Haven was the person he [appellant] had follow Tracey once he found out Tracey [] was having an affair.” Appellant permitted Detective Marll to look around the house, and when Detective Marll went to their bedroom, appellant said Tracey’s “cell phone charger was missing from the top of the jewelry box.” On March 21, 2005, Detective Marll executed a search warrant at Tracey and appellant’s home, and during the search, recovered Tracey’s cell phone charger. Immediately after the first interview, Detective Marll obtained the cell phone records for Tracey, appellant, and Christian. 10 The cell phone records showed that on March 6, 2005, appellant had made two calls from the northern Anne Arundel County area.

Upon receiving the records, Detective Marll went back to interview appellant, again on March 9, 2005, as to why appellant had not told him that he left the house on March 6, 2005. During the second interview, appellant described March 6, 2005, as he had before, but, this time he informed Detective Marll that “he just remembered that he had left that day ... and went to northern Anne Arundel County.” Appellant told Detective Marll that he went to Cycle World in Anne Arundel County to pick up a car “computer” from Haven and on the way home picked up bleach and laundry detergent from the Dollar General Store because, according to appellant, Tracey asked him to do so. On March 10, 2005, Detective Marll conducted a third interview of appellant, and during this interview appellant told Detective Marll for the first time that Haven had come to his house on March 6, 2005. Detective Marll testified that he told appellant that things were not adding up, and it “seem[ed] like [Tracey] disappeared when she went in the residence” to which appellant immediately responded, “you can’t say any ³⁵⁶ thing happened here in the home.” 11 Detective Marll testified that appellant then stated: “she drove her car through the tunnel at 7:48 p.m” to which, Detective Marll responded, “well, we don’t know who was driving the car when it went through the tunnel.” Appellant responded, “well, you can’t say I was driving the car.” At this point, appellant told Detective Marll that he “did not want the marriage to continue” and that “Tracey did not want a divorce at that time.” Detective Marll testified that he questioned appellant about the letter dated January 10, 2005, which the State referred to as the “blood letter,” and that appellant appeared to get “sort of angry[,]” so he “let that ride” to keep the lines of communication open.

Detective Marll testified about the recovery of Tracey’s Trans Am on March 17, 2005. Detective Marll stated that the Trans Am was recovered in the 6600 block of Ritchie Highway and Pinpoint Street, in a parking lot that is shared by the Days Inn and the Ritchie Bowling Lanes. Detective Marll testified that this location is about one or one point two miles from Cycle World, the store that appellant acknowledged visiting on March 6, 2005, during the second interview. When recovered, the Trans Am was locked “and there was no outward damage on the ear[.]” Detective Marll contacted appellant to obtain a key to the vehicle.

Detective Marll went to appellant and Tracey’s home to get the key. Once there, appellant handed Detective Marll keys with the one remote to the vehicle in silence. After meeting with appellant, Detective Marll contacted the Days Inn for videotape footage. Chief Inspector Richard Henry of the U.S. Marshal Service testified as a witness for the State, that, in an attempt to locate Tracey he ran Tracey’s married and maiden names, along with her date of birth and Social Security number, through a number of data banks used to capture fugitives.

Henry testified that he did not find any results. When asked ³⁵⁷ hypothetically if Tracey “tried to obtain a license in another state using her name and date of birth and Social Security number, with you checking, ... would that have turned up[,]” Henry responded: “Yes.” The State’s last witness, Thomas Pittman, a general manager at Aggregate Industries, testified that he knew both appellant and Tracey. Pittman testified that on April 4, 2005, he was at a marina in Baltimore having a boat he intended to purchase inspected, when he ran into appellant. Pittman testified that he and appellant spoke, and when Pittman asked appellant what he was doing there, appellant responded, “looking for a boat, looking for a new toy, something to play with.” Pittman testified that he did not discuss with appellant how he was going to pay for the boat, but Pittman testified: “He [appellant] did discuss that there was a life insurance policy on Tracey that he was the beneficiary of.” Appellant testified on his own behalf, that his employment history included working for “Jack Luskin, the cheapest guy in town, and then I [appellant] worked for Maryland Yamaha.

I worked for E.L. Gardner Concrete, and I worked—and then they were bought out by Aggregate Industries. Now I’m working at Precision Concrete.” Appellant testified that he has worked for Precision Concrete for ten years and he “haul[s] equipment around for them, lumber, materials, panels, and just haul[s] products to the jobs to get jobs set up to get started.” Appellant testified that he and Tracey had been together for about six or seven years and had been married for “not even a year” in March of 2005. Appellant testified that on March 6, 2005, he left his home using “Tracey’s truck to go pick up the computer to work on my truck.” Appellant testified that he was worse off financially after Tracey disappeared. Appellant testified that he had belongings in storage lockers, and when Tracey did not come back, he moved “the one that was most expensive, the indoor one, back to the house to try to save [his] money[.]” ³⁵⁸ Appellant testified that there were two sets of keys to Tracey’s Trans Am, one set which was kept in the house as a spare set.

Appellant testified that he did not participate in all of the searches for Tracey. Appellant acknowledged that he did not participate in the first search “[clause the first search was my parent’s property. They accused me right off the bat.” According to appellant, he removed flyers because “[t]hey were on [his] mailbox,” front porch, and car. Appellant acknowledged that he told police that he got Christian’s address from the internet when he actually obtained the address from his friend, Officer Blankenship, because he did not want Blankenship to lose her job.

Appellant testified that he made a call from his house to his aunt around 8:55 p.m. on March 6, 2005. Appellant testified about meeting with Tracey’s boss, Liebermann. According to appellant, he met with Liebermann on a Saturday at the Aggregate Industries office, and Liebermann “let [appellant] listen to phone conversations. And then I went over to [Tracey’s] desk ... opened up the drawer and there was a box in there containing” “a necklace or bracelet.” Appellant testified that, after his meeting with Liebermann, he tapped his and Tracey’s home phone.

Appellant specifically testified that he did not drive Tracey’s Trans Am through the tunnel on March 6, 2005. On cross-examination, appellant testified that he had moved to Towson about two or three months before trial, and he lives with his new girlfriend, whom he had been dating for “[a]bout three years.” Appellant acknowledged that he had Tracey followed, had tapped their home phone, had used his friend’s vehicle to follow Tracey at least once, and had “snooped around her phone and looked through to see who she was calling.” Appellant testified that Tracey and he were married in September, and by December, he knew Tracey was having an affair. Appellant acknowledged that Tracey had asked him to leave and appellant testified that he found a place but “the house wouldn’t be ready until March 30th.” Appellant admitted that he lied to Tracey about Liebermann letting him listen to her work calls. Appellant testified that the letter he wrote ³⁵⁹ to Tracey on January 10, 2005, had his blood on it, as the result of his “pick[ing] a scab on [his] arm and a piece of blood dripped on[.]” Voir Dire During voir dire, the circuit court asked: Does any member of this panel have any difficulty in accepting and applying the rule of law that [appellant] is presumed to be innocent?

The State has the burden of proving [appellant] guilty beyond and to the exclusion of any reasonable doubt. This burden of proof never shifts to him. He does not have to testify, he does not have to present any evidence, he does not even have to argue or interpose objections. He can sit before you mute saying and doing nothing at all during the entire trial.

And if the State does not prove to you beyond and to the exclusion of any reasonable doubt that he is guilty, you must find him innocent. Is there any member of this panel who’s unable to accept this legal principle? No juror responded affirmatively to these questions. The circuit court then asked: “Is there any member of this panel who thinks that [appellant] should be required to prove his innocence?” Juror No. 289 responded affirmatively by standing up.

Following this question, the circuit court asked: “Is there any member of this panel who believes that they would be unable to give [appellant] a fair and impartial trial based upon a personal opinion about the criminal justice system or the judicial system[,]” to which Juror No. 289 did not respond affirmatively. Juror No. 289 was subsequently called to the bench for individual questioning, at which time the following exchange occurred: THE COURT: Ma’am, you say that you have some friends or family involved in law enforcement? ³⁶⁰ [JUROR NO. 289]: I do. I did. My father-in-law was a Baltimore City policeman, my brother-in-law was a State trooper, and my best friend’s husband was a Baltimore City policeman....

THE COURT: Okay. Did you also say that you had some friends or family members that went to law school? [JUROR NO. 289]: My brother-in-law is an attorney. THE COURT: And where does he practice? [JUROR NO. 289]: He practices in Harford County. THE COURT: What does he do?

If you know. [JUROR NO. 289]: Family. THE COURT: Okay. Any questions, counsel? [JUROR NO. 289]: And I have—oh, I forgot. I have a close friend who is a judge in Baltimore County that’s also family court.

THE COURT: Who’s that? [JUROR NO. 289]: Tim Martin. THE COURT: Okay. Any questions, counsel? [APPELLANT’S COUNSEL]: Would the fact that you’ve had some close relations with—I don’t know if that’s the right word, close in-laws, whatever, in the city police and State troopers, would that affect your ability if there are going to be police officers who testify, a detective in this case, would be able to separate your—I hope you like your relatives—from being able to just weigh totally and fairly the evidence regardless of whether they’re wearing a badge or a uniform? [JUROR NO. 289]: I’m not absolutely sure that I could say that for absolute certainty. You know, not sure. [PROSECUTOR]: Would you give it your best shot? [JUROR NO. 289]: I would.

I would for sure. ³⁶¹ [APPELLANT’S COUNSEL]: ... If it’s part of my job to call a police officer a liar on the stand, would that offend you? [JUROR NO. 289]: No, depending on the circumstance. [JUROR NO. 289]: Also I failed to stand I do contribute to a victim—I contribute to My Sister’s Place. I failed to stand for that. THE COURT: Do you work with them? [JUROR NO. 289]: I did work with Catholic Charities.

I no longer work with them, but I contribute. THE COURT: Okay. Anything else? [PROSECUTOR]: No. Thank you ma’am. [APPELLANT’S COUNSEL]: Thank you. Juror No. 289 was subsequently accepted by the State and appellant’s counsel, without objection, and seated as Juror No. Nine.

The entire jury, with Juror No. 289 seated as Juror No. Nine, was accepted by appellant’s counsel without objection. Significant Cross-Examination During the cross-examination of Gardner, Tracey’s stepmother, the following occurred: [APPELLANT’S COUNSEL]: Did she [Tracey] have runaway problems with you all? [PROSECUTOR]: Objection. THE COURT: Sustained. During the cross-examination of Detective Marll, the following occurred: [APPELLANT’S COUNSEL]: Now, did you have occasion during the course of your investigation to interview an individual named Matthew Kerr? [DETECTIVE MARLL]: Yes, sir, I did. [APPELLANT’S COUNSEL]: Where did that occur?

In Pennsylvania? ³⁶² [DETECTIVE MARLL]: Yes, sir, it did. [APPELLANT’S COUNSEL]: And that was a result of a phone call that was received by Baltimore County Police Department with regard to this case, correct? [DETECTIVE MARLL]: That’s correct. [APPELLANT’S COUNSEL]: And you went and interviewed Mr. Kerr about [Tracey] being in Pennsylvania? [PROSECUTOR]: Objection, your Honor. THE COURT: Sustained. [APPELLANT’S COUNSEL]: Where is Mr. Kerr now? [DETECTIVE MARLL]: He’s in Pennsylvania. [APPELLANT’S COUNSEL]: He’s locked up, isn’t he? [DETECTIVE MARLL]: Not [that] I know of— [APPELLANT’S COUNSEL]: He’s in jail? [DETECTIVE MARLL]: He is—he was locked up in 2005. I know that much. I don’t know if he [is] locked up anymore. [APPELLANT’S COUNSEL]: Kevin Warner, that was somebody you also wanted to talk to in the Kerr situation; isn’t that correct? [DETECTIVE MARLL]: No, not after I had my second talk with him and then I spoke to his attorney, no. [APPELLANT’S COUNSEL]: Now, did you ever go out and interview a Thomas Tyler? [DETECTIVE MARLL]: Oh, yes, sir, I did. [APPELLANT’S COUNSEL]: And that was another in regard to this, a report of [Tracey] in this case, a report of [Tracey]— [PROSECUTOR]: Objection, Your Honor.

THE COURT: Sustained. Motions for Judgment of Acquittal At the close of the State’s case-in-chief, appellant’s counsel moved for judgment of acquittal arguing that “[t]here is no evidence here of premeditation, there’s no evidence that [Tra ³⁶³ cey] died of a criminal act[.]” The circuit court denied the motion. At the close of evidence, appellant again moved for judgment of acquittal, stating: And I want to renew my motion for judgment of acquittal now at the end of all the evidence. It’s a different standard.

Doesn’t go in the light most favorable to the State. We make a motion for judgment of acquittal at the end of all the evidence now. No longer does the State get the benefit of having Your Honor apply the standard of taking the evidence in the light most favorable to the State. And I would argue strenuously at this time, without doing the same thing I did before earlier this morning, but I argue strenuously under the different standard, there’s absolutely no evidence of premeditation.

The circuit court denied the motion. Jury Instructions At the conclusion of the evidence and prior to closing arguments, the trial judge discussed jury instructions with counsel, and the following exchange occurred regarding the instruction as to direct and circumstantial evidence: THE COURT: Okay. And how about State’s Number 6?[ 12 ] [APPELLANT’S COUNSEL]: We agree with State’s Number 6 with the modification that we gave to Ethan about just 15 minutes ago, which you have already included a D as modified request. THE COURT: All right.

That modification, [prosecutor], I believe you received a copy. [PROSECUTOR]: I have a copy. THE COURT: The sentence regarding Williams v. State? ³⁶⁴ [PROSECUTOR]: I think the additional language that we set forth sets the standard or states it in a much more objective fashion than the manner in which it is stated in Counsel’s requested modification. And the Williams case, I’m not even sure, frankly, if Williams says specifically that. I just ask—our modification is much more objective in modification and states the law without a slant to it, so I would object to [appellant’s] modification. [APPELLANT’S COUNSEL]: Your Honor, that’s a direct quote from Williams.

I know he didn’t say it went, but it’s a direct quote from Williams. We’d push that be put in there because— THE COURT: With the decision, it’s Hebron versus State at 331 Md.App. [Md.] 219 [ 627 A.2d 1029 ], one paragraph, you don’t object to that, [appellant’s counsel]? [APPELLANT’S COUNSEL]: No, Your Honor. THE COURT: All right. Your objection is noted, [prosecutor].

I’m going to add Williams versus State as presented by the Defense in their Request Number 7. The circuit court instructed the jury, in pertinent part, as follows: It is your duty as jurors to follow the law as I state to you and to apply the law to the facts as you find them from the evidence that you’ve heard in this case. You are not to single out any one instruction as stating the law, but must consider the instructions as a whole. You must not be concerned with the wisdom of any rule of law stated by me regardless of any opinion that you may have as to what the law is or ought to be.

It would be a violation of your duty to base your verdict upon any view of the law other than that given by me in these instructions. It would also be a violation of your sworn duty to base your verdict upon anything other than the evidence that you’ve heard in this case. The Defendant is presumed to be innocent of the charges. This presumption remains with the Defendant throughout ³⁶⁵ every stage of the trial and is not overcome unless you’re convinced beyond a reasonable doubt that the Defendant is guilty.

The State has to prove him—excuse me. The State has the burden of proving the guilt of the Defendant beyond a reasonable doubt. This burden remains on the State throughout the trial. The Defendant is not required to prove his innocence.

However, the State is not required to prove guilt beyond all possible doubt or to a mathematical certainty. Nor is the State required to negate every conceivable circumstance of innocence. Opening statements and closing arguments of the lawyers are not evidence in this case. They’re intended only to help you understand the evidence and to apply the law....

There are two types of evidence, direct and circumstantial. The law makes no distinction between the weight to be given to either direct or circumstantial evidence. No greater degree of certainty is required of circumstantial evidence than of direct evidence. Circumstantial evidence need not be such that no possible theory other than guilt can stand.

It is not necessary that the circumstantial evidence exclude every possibility of the Defendant’s innocence, or produce an absolute certainty of guilty. While it must afford a basis for an inference of guilty beyond a reasonable doubt, it is not necessary that each circumstance standing alone be sufficient to establish guilt, but the circumstances are to be considered collectively- In reaching a verdict, you should weigh all of the evidence presented, whether direct or circumstantial. You may not convict the Defendant unless you find that the evidence, when considered as a whole, establishes guilt beyond a reasonable doubt. A conviction based upon circumstantial evidence alone is not to be sustained unless the circumstances taken together ³⁶⁶ are inconsistent with any reasonable hypothesis of innocence.

After the instructions were given, appellant’s counsel stated at a bench conference: “For the record, the Defense would object to what we consider to be the incomplete spoliation instruction and incomplete circumstantial evidence instruction, which were already argued before in open court.” The circuit court responded: “Objection is noted and preserved.” The State noted no objections. Closing Remarks During closing arguments, the following occurred: [PROSECUTOR]: The unlikelihood of such a voluntary disappearance is evidence—it’s circumstantial evidence that you can give weight to. The law says that you can give it weight equal to that of blood stains of evidence— [APPELLANT’S COUNSEL]: Objection. May we approach the bench on that?

THE COURT: Come on up. (Whereupon, counsel approached the bench without the Defendant.) THE COURT: I don’t know if you know, the screen up here is on. [APPELLANT’S COUNSEL]: I don’t think it’s proper in closing argument in Maryland to cite case law that you haven’t instructed the jury on. [PROSECUTOR]: It’s proper law. It’s not a bad statement of law. He put in— THE COURT: He can argue the law. [PROSECUTOR]: Thank you, Your Honor. [APPELLANT’S COUNSEL]: It’s a 1982 cite.

THE COURT: You’re arguing concealment on this issue. [PROSECUTOR]: I’ll turn that off for Your Honor. THE COURT: Okay. (Whereupon, counsel returned to their respective trial tables.) ³⁶⁷ THE COURT: Folks, if you’re wondering why [appellant’s counsel] is up here, I told him to stand up here so he can see the screen. [APPELLANT’S COUNSEL]: Thank you, Your Honor. [PROSECUTOR]: As I was saying, Your Honor, that evidence of unlikelihood of involuntary disappearance is circumstantial evidence that you can use. Don’t discount it.

That’s important. As I was saying, this statement was written in 1982. Why is—is that significant? That’s before the advent of cell phones and Internet.

Think of how much harder it would be to go underground and start a new life and not pop up on a search such as that. That’s evidence that you can take to the bank. Again, lack of a found body, it’s evidence. You can [infer] death was caused criminally.

If it was caused naturally, it’s highly unlikely that she would dispose of her own body. That’s just another way of stating common sense. If not 15 minutes ago, I’m confident by now we can all agree Tracey’s no longer with us, Tracey is dead. [APPELLANT’S COUNSEL]: Your Honor, I object to him putting Maryland law up on the screen. He’s not supposed to argue the law, he’s supposed to argue the facts.

THE COURT: It’s closing argument. Overruled. DISCUSSION I. Juror No. 289 A. Bias Appellant contends that he was denied the right to an impartial jury because in response to a voir dire question, Juror No. 289—who served on the jury—indicated that she believed appellant should be required to prove his innocence. Appellant argues that his counsel and the circuit court failed to ensure the impaneling of an impartial jury by not striking or questioning further Juror No. 289.

Appellant asserts that the voir dire “plainly exposed [Juror No. 289’s] actual bias in ³⁶⁸ her clearly held belief that [appellant] had an obligation to prove his innocence.” Appellant maintains that even if the circuit court “had no sua sponte obligation to strike [Juror No. 289] for cause, [appellant’s] counsel most certainly did and his failure to do so amounts to ineffective assistance of counsel[.]” In a reply brief, appellant argues that the record is sufficient to demonstrate ineffective assistance of counsel as the only reason for appellant’s trial counsel’s inaction was that he “purposefully put a biased juror on the jury, or, defense counsel failed to take note of the juror’s obvious bias.” The State responds that appellant’s claim that Juror No. 289’s presence on the jury deprived him of a fair trial is not properly before this Court because appellant’s counsel had twenty peremptory challenges and used only fifteen, and appellant has failed to ask for plain error review. Alternatively, the State contends that the circuit court did not err in failing to sua sponte strike prospective Juror No. 289, and asks this Court to decline to address appellant’s contention that his counsel rendered ineffective assistance of counsel in failing to strike Juror No. 289. A criminal defendant has the right to trial by an impartial jury. U.S. Const. amend.

VI, XIV; Owens v. State, 899 Md. 388 , 405, 924 A.2d 1072 (2007), cert. denied, 552 U.S. 1144 , 128 S.Ct. 1064 , 169 L.Ed.2d 813 (2008). Voir dire is the means by which to “identify and challenge unqualified jurors[.]” Owens, 399 Md. at 402 , 924 A.2d 1072 . As the Court of Appeals described: The purpose of voir dire is to ensure and secure a defendant’s right to a fair and impartial trial by permitting the selection of a jury comprised of venirepersons who do not hold preconceived notions or biases that would affect the outcome of the trial. As we have said, in pursuit of this goal, a trial court must question the venire and consider whether any of the answers reveals such a bias.

Any question likely to elicit disqualifying information must be asked. Failure to do so taints the objectivity and thus ³⁶⁹ impartiality of the jury, with negative implications for the defendant’s right to a fair trial. Moore v. State, 412 Md. 635, 664 , 989 A.2d 1150 (2010) (citation omitted). “Bias is a question of fact, the existence of which is a matter left to the trial judge, the focal point in the process, whose predominant function in determining juror bias involves credibility findings whose basis cannot be discerned from an appellate record.” Williams v. State, 394 Md. 98, 113 , 904 A.2d 534 (2006) (citations and internal quotation marks omitted). The standard of review for such findings is abuse of discretion.

Moore, 412 Md. at 654 , 989 A.2d 1150 . Prospective jurors are presumed to be unbiased, and the challenging party has the burden of proof to overcome that presumption. Hunt v. State, 345 Md. 122, 146 , 691 A.2d 1255 , cert. denied, 521 U.S. 1131 , 117 S.Ct. 2536 , 138 L.Ed.2d 1036 (1997). “If a criminal defendant undertakes to challenge a juror on grounds of bias, the attack must be affirmatively advanced at the time of trial.” Id. “Should an unqualified juror be impanelled, courts are satisfied generally with the verdict when the record establishes that the juror did not evade intentionally disqualification and that his or her service was performed without bias.” Owens, 399 Md. at 425 n. 45, 924 A.2d 1072 (citations omitted). In the present case, appellant has failed to preserve an issue as to the selection of Juror No. 289 for appellate review.

Juror No. 289 was impaneled as the ninth juror. Juror No. 289 answered the following voir dire question affirmatively—“[i]s there any member of this panel who thinks that [appellant] should be required to prove his innocence”— but was not asked follow-up questions by appellant’s counsel or the trial judge regarding this response. The record reflects that after responding affirmatively to general voir dire questions, jurors were called to the bench for individual or follow-up questions. Juror No. 289 was called to the bench and asked individual questions.

Appellant’s counsel failed to ask Juror No. 289 any individual questions regarding her response to the question at issue. After the individual ques ³⁷⁰ tioning was completed, appellant’s counsel accepted Juror No. 289 without objection upon the request of the courtroom clerk to impanel the juror. Prior to the completion of jury selection, appellant’s counsel was asked whether the entire jury, with Juror No. 289 impaneled as Juror No. Nine, was acceptable to the defense, to which appellant’s counsel replied: “The jury is acceptable to the Defense.” As the State points out, appellant’s counsel had twenty peremptory challenges and he failed to use all twenty. White v. State, 300 Md. 719, 728 , 481 A.2d 201 (1984), cert. denied, 470 U.S. 1062 , 105 S.Ct. 1779 , 84 L.Ed.2d 837 (1985) (“If disqualification for cause is improperly denied, but the accused has not exercised all allowable peremptory challenges, there is no reversible error.”); Larch v. State, 201 Md. 52, 57 , 92 A.2d 463 (1952) (“It is a general rule that if a party knows a cause of challenge and does not take it at the proper time,—that is, while the jury is being impanelled,—he cannot avail himself of the defect afterwards.” (citations and internal quotation marks omitted)).

Here, appellant not only failed to use his allotted twenty peremptory challenges, but he also: (1) failed to object that no individual questions were asked of Juror No. 289 as to her affirmative response to the question regarding appellant’s requirement to prove his innocence by the trial court; (2) failed to ask individual follow-up questions himself; (3) affirmatively accepted Juror No. 289 for impaneling on the jury; and (4) affirmatively accepted the jury with Juror No. 289 as a member. As such, appellant has not preserved any issue as to Juror No. 289’s inclusion on the jury for appellate review. Nonetheless, we shall briefly address the merits of appellant’s complaint. Appellant contends that the record demonstrates that Juror No. 289 was actually or presumptively biased because she responded affirmatively to the voir dire question—“[i]s there any member of this panel who thinks that [appellant] should be required to prove his innocence?” We disagree two-fold because: (1) the record does not substantiate that Juror No. 289 was actually or presumptively biased and (2) the trial judge was not required to sua sponte ³⁷¹ ask further questions of Juror No. 289.

We first point out that during voir dire, Juror No. 289 was asked numerous voir dire questions, including the following: Does any member of this panel have any difficulty in accepting and applying the rule of law that [appellant] is presumed to be innocent? The State has the burden of proving [appellant] guilty beyond and to the exclusion of any reasonable doubt. This burden of proof never shifts to him. He does not have to testify, he does not have to present any evidence, he does not even have to argue or interpose objections.

He can sit before you mute saying and doing nothing at all during the entire trial. And if the State does not prove to you beyond and to the exclusion of any reasonable doubt that he is guilty, you must find him innocent. Is there any member of this panel who’s unable to accept this legal principle? Is there any member of this panel who believes that they would be unable to give [appellant] a fair and impartial trial based upon a personal opinion about the criminal justice system or the judicial system?

Juror No. 289 did not respond affirmatively to any of these questions. The question to which Juror No. 289 responded affirmatively asked: “Is there any member of this panel who thinks that [appellant] should be required to prove his innocence?” The question did not inquire as to whether this is the standard the juror would employ in deciding the case. Juror No. 289’s lack of response to voir dire questions concerning an inability to accept the rule of law that the defendant is presumed innocent and the State having the burden to prove the defendant guilty beyond a reasonable doubt with that burden never shifting to the defendant, renders nugatory appellant’s contention that Juror No. 289 was actually or presumptively biased. ³⁷² Recently, in Alford v. State, 202 Md.App. 582, 602-04 , 33 A.3d 1004 (2011), we reviewed Dingle v. State, 361 Md. 1 , 759 A.2d 819 (2000), and unambiguously held that the statement by the Court of Appeals in Dingle , that it is the task of the trial judge to impanel a fair and impartial jury, does not stand for the proposition that a trial court automatically commits reversible error in failing to, sua sponte, ask follow-up questions of a juror. 13 As we explained in Alford, 202 Md.App. at 602-03 , 33 A.3d 1004 : In Dingle , the Court of Appeals held that the trial court erred in asking two-part voir dire questions. 361 Md. at 8-9 [ 759 A.2d 819 ], The two-part voir dire consisted of the trial court asking the jury panel whether any juror had experiences, such as having been a victim of a crime, 14 or associations, such as being associated with police officers, 15 ³⁷³ and whether these experiences or associations would affect the juror’s ability to be a fair and impartial juror. Id. at 3-4 [ 759 A.2d 819 ].

The Court of Appeals held that the voir dire procedure usurped the court’s responsibility to ascertain the existence of cause for disqualification because the procedure allowed “the individual venire person to decide his or her ability to be fair and impartial.” Id. at 9-10, 21 [ 759 A.2d 819 ]. The Court of Appeals stated that: Because [the trial judge] did not require an answer to be given to the question as to the existence of the status or experience unless accompanied by a statement of partiality, the trial judge was precluded from discharging his responsibility, i.e. exercising discretion, and, at the same time, the petitioner was denied the opportunity to discover and challenge venire persons who might be biased. The effect on the petitioner is particularly egregious: as we have seen, the party who would challenge a venire person for cause has the burden of presenting facts demonstrating the disqualification. As already pointed out, the strike for cause process encompasses the situation where the motion to strike is made on the basis of information developed during the voir dire process, not simply where the prospective juror admits an inability to be fair and impartial.

Without adequate voir dire, there simply can be no such showing. The ability to challenge for cause is empty indeed if no way is provided for developing or having access to relevant information. What the dissent said in Davis [v. State, 333 Md. 27 , 633 A.2d 867 (1993) ] applies just as forcibly to the case sub judice: “When the inquiries that constitute proper voir dire are restrictively interpreted, so that the voir dire process does not produce any information other than that which is ³⁷⁴ automatically disqualifying, the defendant may be deprived of the right to a fair and impartial jury; he or she is completely at the mercy of the good faith, objectivity, and astuteness of the individual venirepersons. I believe that it is an abuse of discretion for the court to so restrict the voir dire process.” Id. at 17-18 [ 759 A.2d 819 ] (some internal citations and quotations omitted).

To be sure, in Dingle, the Court of Appeals stated “the trial judge is charged with impaneling of the jury and must determine, in the final analysis, the fitness of the individual venire persons.” 361 Md. at 8 , 759 A.2d 819 . The Court of Appeals made the statement under circumstances in which jurors were allowed to determine whether they had the ability to be fair and impartial before responding affirmatively to general voir dire questions. (Footnotes in original). In this case, we note, as we did in Alford, 202 Md.App. at 603-04 , 33 A.3d 1004 , that the trial judge did not employ the compound question format used in Dingle .

Here, the trial judge specifically asked jurors to stand if they answered the question posed affirmatively. Prior to beginning the jury selection process, the trial judge advised the jury pool, in the presence of counsel, that: “After we’ve gone through all the questions, everybody that stands up for one or more questions will be invited up here to explain their answer. And while you’re here, you may be asked some additional questions by the attorneys or me.” As such, the trial judge provided the opportunity for appellant to ask individual questions of Juror No. 289, explore the juror’s qualifications and potential bias, and challenge the juror. In sum, appellant has not preserved an issue for review concerning Juror No. 289 as he failed to object in any manner to the court not questioning the juror regarding her affirmative response that appellant should prove his innocence, and agreed that Juror No. 289 was acceptable to the defense.

We see no merit in appellant’s contentions that the record demonstrates Juror No. 289 was “actually or presumptively biased” ³⁷⁵ and that the circuit court had an obligation to sua sponte conduct questioning of or strike Juror No. 289. B. Structural Error Next, appellant contends that the failure of counsel and the circuit court to ask follow-up questions of Juror No. 289 regarding her affirmative response to the question—“[i]s there any member of this panel who thinks that [appellant] should be required to prove his innocence”—was structural error. Again, we disagree. Initially, we observe that appellant, by failing to object, has not preserved an issue as to structural error.

See Savoy v. State, 420 Md. 232 , 243 n. 4, 22 A.3d 845 (2011) (“[U]n-preserved structural errors are not automatically reversible, but, instead, are subject to plain error review.” (Citations omitted.)). Nonetheless, we perceive no error. In Alston v. State, 177 Md.App. 1, 13-14 , 934 A.2d 949 (2007), aff'd, 414 Md. 92 , 994 A.2d 896 (2010), this Court discussed structural error, stating: In Arizona v. Fulminante, 499 U.S. 279, 309-10 , 111 S.Ct. 1246, 1265 , 113 L.Ed.2d 302 (1991), the Supreme Court held that if an error in a criminal trial is considered a structural error or defect, a reviewing court cannot apply the harmless error standard. A structural defect or error is one that “affect[s] the framework within which the trial proceeds, rather than simply an error in the trial process itself[,] .... [and] ‘transcends the criminal process.’ ” Id., 499 U.S. at 310-11 , 111 S.Ct. at 1265 .

Trial defects that the Supreme Court has held to be structural error include: deprivation of the rights to counsel at trial, to an impartial judge, to self-representation, and to a public trial, as well as unlawful exclusion of members of the defendant’s race from a grand jury. See id., 499 U.S. at 310 , 111 S.Ct. at 1265 . The types of trial error that the Supreme Court has held not to be structural include the admission of an involuntary confession, a defendant’s statements obtained in violation of the Sixth Amendment or the Fourteenth Amendment, and an out-of-court statement by a non-testifying co-defendant. See id., 499 U.S. at 309-311 , 111 S.Ct. at 1265 . ³⁷⁶ In Redman v. State, 363 Md. 298 , 304 n. 5, 768 A.2d 656 (2001), a capital murder case, our Court of Appeals pointed out that structural error was found only in limited circumstances: As in the presumed prejudice cases, the Supreme Court has found an error to be structural and subject to automatic reversal in a very limited number of cases.

Moreover, in those cases where the Supreme Court, and indeed other courts, have found structural error mandating automatic reversal, the errors appear to be of constitutional magnitude. Such defects include a defective reasonable doubt instruction, racial discrimination in grand jury selection, denial of a public trial, total deprivation of counsel, and a judge who is not impartial. (Citations omitted.) (Alterations and emphasis in original); see also Neder v. United States, 527 U.S. 1, 8 , 119 S.Ct. 1827 , 144 L.Ed.2d 35 (1999) (“Indeed, we have found an error to be ‘structural,’ and thus subject to automatic reversal, only in a ‘very limited class of cases.’ ” (citations omitted)). In Alston, 177 Md.App. at 27 , 934 A.2d 949 , where the defendant alleged the trial court erred when the jury was not sworn until the State completed its case, we found no structural error, stating that: “The jury was instructed, before hearing any evidence, that it must listen carefully to the evidence and that its verdict must be based solely on the evidence.

It was then sworn before it began deliberations. To conclude that this was structural error would logically mean that we believe that taking the oath is a prerequisite to listening. We do not hold that view.” This Court, therefore, held that it “will not presume prejudice, and a harmless error analysis is appropriate.” Id. In Alston, 414 Md. at 105, 109 , 994 A.2d 896 , the Court of Appeals affirmed the defendant’s convictions, determining that a belated administration of the oath to the jury, although error, was subject to a harmless error analysis.

As gleaned from Alston and Neder , structural error, which, if preserved, is subject to automatic reversal, has been ³⁷⁷ found only in a very limited class of cases, and this is not one of those cases. Failing to ask a juror follow-up questions has not been held to be structural error by the Supreme Court or Maryland appellate courts. As we discussed above, Juror No. 289’s response to the question at issue, when assessed in context of the responses to other voir dire questions, does not lead to the conclusion that Juror No. 289 was actually or presumptively biased. We perceive no error, “structural” or otherwise.

C. Ineffective Assistance of Counsel The right to counsel includes the right to the effective assistance of counsel. Denisyuk v. State, 422 Md. 462, 465-66 , 30 A.3d 914 (2011) (citing McMann v. Richardson, 397 U.S. 759 , 771 n. 14, 90 S.Ct. 1441 , 25 L.Ed.2d 763 (1970)). “The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). “Judicial scrutiny of counsel’s performance must be highly deferential ... [and, for fairness, must] evaluate the conduct from counsel’s perspective at the time [of the alleged deficient representation].” Id. at 689 , 104 S.Ct. 2052 . In Maryland, a defendant’s attack of a criminal conviction on the basis of ineffective assistance of counsel generally takes place at post-conviction review, where the opportunity for further fact-finding exists. Mosley v. State, 378 Md. 548, 558-59 , 836 A.2d 678 (2003) (“[A] post-conviction proceeding pursuant to the Maryland Uniform Post Conviction Procedure Act, Maryland Code, § 7-102 of the Criminal Procedure Article (2001), is the most appropriate way to raise the claim of ineffective assistance of counsel.”) (footnote omitted).

In Addison v. State, 191 Md.App. 159, 174-75 , 990 A.2d 614 , cert. denied, 415 Md. 38 , 997 A.2d 789 (2010), we stated that: The Court of Appeals has repeatedly stated that the “desirable procedure” for presenting claims of ineffective ³⁷⁸ assistance of counsel is through post-conviction proceedings. Johnson v. State, 292 Md. 405, 434 , 439 A.2d 542 (1982) (citation and internal quotations omitted); see also, e.g., Ware v. State, 360 Md. 650, 706 , 759 A.2d 764 (2000). In Johnson , the Court of Appeals explained: In essence, it is because the trial record does not ordinarily illuminate the basis for the challenged acts or omissions of counsel, that a claim of ineffective assistance is more appropriately made in a post conviction proceeding^] Moreover, under the settled rules of appellate procedure, a claim of ineffective assistance of counsel not presented to the trial court generally is not an issue which will be reviewed initially on direct appeal, although competency of counsel may be raised for the first time at a [ ] post conviction proceeding. Upon such a collateral attack, there is presented an opportunity for taking testimony, receiving evidence, and making factual findings concerning the allegations of counsel’s incompetence.

By having counsel testify and describe his or her reasons for acting or failing to act in the manner complained of, the post conviction court is better able to determine intelligently whether the attorney’s actions met the applicable standard of competence. (Alterations in original). In Mosley, 378 Md. at 566 , 836 A.2d 678 , this Court discussed the exceptional instances in which an ineffective assistance of counsel claim may be raised on direct appeal, stating: The rare instances in which we have permitted direct review are instructive, because they indicate our willingness to entertain such claims on direct review only when the facts in the trial record sufficiently illuminate the basis for the claim of ineffectiveness of counsel. As we explained in In re Parris W., [ 363 Md. 717, 727 , 770 A.2d 202 (2001),] direct review is an exception that applies only when “the critical facts are not in dispute and the record is sufficiently developed to permit a fair evaluation of the claim.” ³⁷⁹ In this case, appellant seeks to raise an ineffective assistance of counsel claim for the first time on direct appeal where the opportunity for further fact-finding does not exist.

As noted above, the record fails to establish that Juror No. 289 was actually or presumptively biased, and this is a not a case involving structural error. We conclude, therefore, as we stated in Addison, 191 Md.App. at 175 , 990 A.2d 614 , “[w]here, as here, the record sheds no light on why counsel acted as he did, direct review by this Court would primarily involve the perilous process of second-guessing, perhaps resulting in an unnecessary reversal in a case where sound but unapparent reasons existed for counsel’s actions.” (Citation omitted). The record in the instant matter sheds no light on the reasons for appellant’s counsel not asking follow-up questions of Juror No. 289. The record is equally unclear as to the reason for counsel’s failure to object to Juror No. 289’s impanelment and his acceptance of the entire jury with Juror No. 289 as a member of it.

Counsel’s failure to ask follow-up questions and to object may have been part of a strategy to obtain Juror No. 289 in lieu of other members of the panel, whom he may have deemed to be less desirable. For example, although Juror No. 289 responded affirmatively that she held the belief that appellant should prove his own innocence, counsel’s assessment may have been that this was a belief that the juror could put aside, based on the juror’s responses to other voir dire questions. 16 As discussed above, Juror No. 289 did not re ³⁸⁰ spond affirmatively to other voir dire questions, including whether she would have difficulty in accepting and applying the rule of law that appellant is presumed to be innocent. The potential validity of the ineffective assistance of counsel claim cannot be determined without the opportunity for fact-finding during a post-conviction proceeding. Accordingly, we will not review the issue on direct appeal.

II

Sufficiency of Evidence A. Preservation Appellant contends that the evidence is insufficient to sustain his conviction for second-degree murder. Appellant argues “given that the State’s case was based on entirely circumstantial evidence which was contradicted by other evidence supporting innocence, the circuit court erred in denying [his] motion for judgment of acquittal and sending the case to the jury.” Appellant asserts that “nothing presented by the [S]tate, even when considered in its totality, leads to a conclusion, beyond a reasonable doubt, that Tracey’s death was a homicide or that [appellant] is the criminal agent.” Appellant maintains that in this case there was “no confession, no admission, no forensic evidence, no eyewitnesses, and no body” and, as such, “nothing short of speculation and conjecture can explain the guilty verdict in this case[.]” 17 ³⁸² The State responds that the issue is not properly before this Court as appellant moved for judgment of acquittal at the end of the State’s case arguing that the evidence was insufficient, but failed to renew the argument as to second-degree murder in moving for judgment of acquittal at the close of evidence. Alternatively, the State contends that the evidence was sufficient to support the conviction for second-degree murder. 18 ³⁸³ Maryland Rule 4-324(a) provides, in pertinent part: “A defendant may move for judgment of acquittal on one or more counts, or on one or more degrees of an offense which by law is divided into degrees, at the close of the evidence offered by the State and, in a jury trial, at the close of all the evidence. The defendant shall state with particularity all reasons why ³⁸⁴ the motion should be granted.” “The language of the rule is mandatory.” State v. Lyles, 308 Md. 129, 135 , 517 A.2d 761 (1986); see generally State v. Rich, 415 Md. 567, 574 , 3 A.3d 1210 (2010).

In Anthony v. State, 117 Md.App. 119, 126 , 699 A.2d 505 , cert. denied, 348 Md. 205 , 703 A.2d 147 (1997), this Court stated: In a criminal action, when a jury is the trier of fact, appellate review of sufficiency of evidence is available only when the defendant moves for judgment of acquittal at the close of all the evidence and argues precisely the ways in which the evidence is lacking. The issue of sufficiency of the evidence is not preserved when appellant’s motion for judgment of acquittal is on a ground different than that set forth on appeal. (Citations omitted). A defendant may not argue in the trial court that the evidence was insufficient for one reason, then urge a different reason for the insufficiency on appeal in challenging the denial of a motion for judgment of acquittal.

Graves v. State, 94 Md.App. 649, 684 , 619 A.2d 123 (1993), rev’d on other grounds, 334 Md. 30 , 637 A.2d 1197 (1994). In Warfield v. State, 315 Md. 474, 488-89 , 554 A.2d 1238 (1989), the Court of Appeals determined that this Court erred in finding that the defendant had failed to preserve for appellate review his claim