Thomas v. State

¹⁹³ SONNER, Judge. A jury in the Circuit Court for Howard County convicted appellant, Jerrod Leroy Thomas (“Thomas”), of distribution of cocaine and possession of cocaine. Thomas raises five issues on appeal, including his claim that the circuit court erred when it refused to ask a proposed voir dire question designed to discover a potential juror’s unfitness to serve on a jury because of “strong feelings regarding violations of the narcotics laws.” On that issue, we reverse. In response to the other issues raised by appellant, we affirm the circuit court. 1 At the hearing on Thomas’s suppression motion, Det.

Joshua Burgoon was the sole witness. Detective Burgoon testified that, on December 11, 1998, he participated in his first undercover drug purchase, which resulted in Thomas’s arrest. The transaction began when an informant named Emery Murry 2 (“Murry”) contacted Det. Burgoon and said that Cheryl Carter (“Carter”) was selling cocaine in the Laurel area.

Detective Burgoon asked Murry to arrange a drug buy at the Crown gas station at All Saints Road and Rt. 216. He chose this location because he knew it was well lit with high pressure sodium bulbs and was next door to a well lit food store parking lot. Murry arranged the purchase and, with Det. Burgoon, drove to the Crown gas station in an unmarked police car.

Following Det. Burgoon’s instructions, Murry left the car and went into the Crown station store when Carter arrived. A male passenger left Carter’s car and walked to a phone booth. Detective Burgoon approached Carter and asked if she had anything for him.

She pointed to the man at the pay phone, and Det. Burgoon walked to the male passenger. The man at the pay phone immediately produced a bag of what appeared to be crack cocaine. ¹⁹⁴ Detective Burgoon asked for the price of the cocaine and the man responded $225.00. When Det.

Burgoon mistakenly gave him only $75.00, the man curtly reminded him of the price and Det. Burgoon produced the remainder. Detective Burgoon then asked about contacting the seller again, and the man indicated that all contacts were to be made through Murry. The man then returned to Carter’s car and he and Carter drove away.

According to Det. Burgoon, the entire transaction took three or four minutes, during which he was “focused on the person who had just dealt [him] the crack cocaine.” The two men were within arm’s length of the pay phone and directly under a lamp. Detective Burgoon admitted that he was “very frightened” because this was his first undercover transaction and he had expected to confront a woman, not a “very large male.” After the car drove away, Det. Burgoon asked Murry the identity of the man who sold him the cocaine.

Murry did not remember the man’s last name, but said that his first name was Jerrod. A day or two later, Murry supplied Thomas’s last name. Detective Burgoon ran a criminal history and Motor Vehicle Administration (MVA) record check on Jerrod Thomas. The latter resulted in a report of a physical description that matched the man who had sold him the cocaine, so he requested a fax of Thomas’s MVA photograph.

When it arrived, on January 27, 1999, Det. Burgoon “immediately recognized” the photograph of Thomas as the man who sold him the cocaine at the Crown station. At trial, Det. Burgoon provided similar testimony and identified Thomas in court as the man who had sold him cocaine.

Two chemists testified for the State and established that the material submitted by Det. Burgoon was, in fact, crack cocaine. I. Voir Dire Thomas first claims that the circuit court erred when it denied his request to ask two additional voir dire questions. ¹⁹⁵ The questions appeared as “Question No. 5” and “Question No. 10” on Thomas’s list of proposed voir dire questions. Question No. 5 asked the circuit court to inquire of the venire: Has any prospective juror or any member of your immediate family ever been employed by or associated with any municipal, state, or federal police force, law enforcement agency, prosecutor’s office, public defender’s office, or other law office of any type? 3 Question No. 10 asked: Does any member of the jury panel have such strong feelings regarding violations of the narcotics laws that it would be difficult for you to fairly and impartially weigh the facts at a trial where narcotics violations have been alleged?

The circuit court explained its denial of Thomas’s requested inquiries by stating, “I think they were fairly covered by other questions, or the Court does not find it necessary to ask those questions.” A. Article XXI of the Maryland Declaration of Rights guarantees the right to an impartial jury to every criminal ¹⁹⁶ defendant. Md.Code (1981 Repl.Vol.) Const., Art. 21; Dingle v. State, 361 Md. 1, 9 , 759 A.2d 819 (2000). ‘Voir dire, the process by which prospective jurors are examined to determine whether cause for disqualification exists,” is the instrument that fulfills that guarantee. Dingle, 361 Md. at 9 , 759 A.2d 819 . “[T]he purpose of the voir dire examination is to exclude from the venire those potential jurors for whom there exists cause for disqualification, so that the jury that remains is ‘capable of deciding the matter before [it] based solely upon the facts presented, “uninfluenced by any extraneous considerations ” ’ ” Hill v. State, 339 Md. 275, 279 , 661 A.2d 1164 (1995) (quoting Langley v. State, 281 Md. 337, 340 , 378 A.2d 1338 (1977), in turn quoting Waters v. State, 51 Md. 430, 436 (1879)). “The common law of this State vests trial judges with discretion to regulate voir dire. The trial judge typically questions the prospective jurors, although he or she has discretion to permit counsel to conduct the inquiry.” Davis v. State, 333 Md. 27, 34 , 633 A.2d 867 (1993).

As Maryland law has developed thus far, a trial judge must examine only two mandatory topics when conducting voir dire. A trial judge must pose questions to the venire that will: (1) determine whether prospective jurors meet the minimum statutory qualifications for jury service, and (2) discover the state of mind of the juror in respect to the matter at hand or any collateral matter reasonably likely to influence the juror’s duty unduly. Boyd v. State, 341 Md. 431, 436 , 671 A.2d 33 (1996). If, in the sound discretion of the trial judge, a question does not appear to address one of the two mandatory areas of inquiry, then the trial judge’s decision to pose the question to the venire is guided by the common law rule that “the purpose of ‘the inquiry is to ascertain “the existence of cause for disqualification and for no other purpose.” ’ ” Davis, 333 Md. at 34 , 633 A.2d 867 (quoting McGee v. State, 219 Md. 53, 58 , 146 A.2d 194 (1959), in turn quoting Adams v. State, 200 Md. 133, 140 , 88 A.2d 556 (1952)).

However, despite Maryland’s preference for “limited voir dire,” Dingle, 361 Md. at 13 , 759 A.2d 819 , the trial court does not err when it opts to ask “[questions not directed to a specific ground for disquali ¹⁹⁷ fication but which are speculative, inquisitorial, catechising or ‘fishing,’ asked in the aid of deciding on peremptory challenges.” Davis, 333 Md. at 34-35 , 633 A.2d 867 (quoting McGee, 219 Md. at 58-59 , 146 A.2d 194 ). Thus, absent a clear abuse of discretion, an appellate court will not disturb a trial judge’s decision to ask or not to ask a specific voir dire question. Our review of the voir dire process must be conducted on a case-by-case basis, accounting for the particular circumstances of each case. Rarely has an appellate court found abuses of discretion within the voir dire process.

Judge Bell (now Chief Judge) cited six such instances when discussing this standard of review in his dissenting opinion in Davis . [Wjhen it is, or potentially is, in the case, the venire must be questioned as to possible racial bias, Bowie v. State, 324 Md. 1, 15 , 595 A.2d 448 (1991), religious bias, Casey v. Roman Catholic Archbishop ], 217 Md. [595] at 606-07, 143 A.2d [627] at 632 [ (1958) ], how the venire would weigh the credibility of a police officer’s testimony versus that of the defendant or another witness, Langley, 281 Md. at 349 , 378 A.2d at 1344 , and juror attitudes concerning the death penalty, Bowie, 324 Md. at 5 , 595 A.2d at 450 . These are not the only circumstances, however, in which the failure of the trial court to further inquire may constitute an abuse of discretion. See e.g., Alexander v. R.D. Grier & Sons Co. Inc, 181 Md. 415, 419 , 30 A.2d 757, 758 (1943). In that case, the trial court’s refusal to ask “whether or not [jurors] or any of their immediate family [were assessables] in the Keystone Indemnity Exchange,” where the issue was the enforcement of an assessment against a subscriber by Keystone, was held to be an abuse of discretion.

This Court noted that the question was directed at determining whether any juror was biased or prejudiced: the juror’s financial interest ‘would theoretically incline him in favor of recovery of a verdict for the liquidator.’ Id. at 419 , 30 A.2d at 758 . See also Morford v. United States, 339 U.S. 258 , 70 S.Ct. 586 , 94 L.Ed. 815 (1950) (where panel from which the jury was selected consisted of almost entirely government em ¹⁹⁸ ployees, refusal to allow questions pertaining to possible influence of the federal loyalty oath was error). Davis, 338 Md. at 59-60, 633 A.2d 867 (Bell, J., dissenting). Recently, in Dingle , the Court of Appeals again discussed the voir dire process.

Chief Judge Bell, writing for the majority, explained: [TJhere may be, and often is, a conflict between keeping the voir dire process limited and the goal of ferreting out cause for disqualification. This case presents a good example: the trial judge recognized the relevance of the questions, that they were designed to uncover prejudice that would, if not discovered, deny the petitioner a fair trial. Expediency and the perceived need to limit the process, however, led the court to find a way to avoid examination of each affected venire person as to the admittedly relevant matters and allow each such person to make his or her own call as to his or her qualification to serve. Dingle, 361 Md. at 14 , 759 A.2d 819 .

The Court recognized a trial judge’s difficulty in ensuring an impartial jury while adhering to limited voir dire. The Court ruled, however, that when a trial court attempts to balance this conflict, its questions posed to the venire must “advanc[e] the purpose of voir dire,” and not “distort[] and frustrate! ] it.” Id. at 21 , 759 A.2d 819 . Implicitly, the Court ruled that, when necessary, the trial judge’s constitutional duty to empanel an impartial jury will trump our practice of limited voir dire. The trial court in Dingle asked compound or “two-part” questions to the venire, such as, “Are any of you or your family members or close personal friends associated with members of any law-enforcement agency, ... and if you are so associated, would that fact interfere with your ability to be fair and impartial if you were seated as a juror in this case?” Id. at 4, n. 4 , 759 A.2d 819 .

The Court of Appeals emphasized that “the trial judge is the focal point” of the voir dire process, id. at 15 , 759 A.2d 819 , and that “[b]ias is a question of fact.” Id. Compound voir dire questions erroneously shift the bias ¹⁹⁹ fact-finding responsibility from the trial judge to the venire person. As the Court stated: When the venire person’s attitudes are the subject of inquiry, and a dispute arises, that becomes a factual matter— ordinarily one involving credibility as to whether the venire person actually holds that attitude — which the court is required to resolve to the same extent as if the issue involved concrete factual matters such as associations and statuses. The court simply can not rely merely on what the venire person says.

Moreover, the court is well equipped to make such factual determinations and, in fact, is required to do so. Id. at 19 , 759 A.2d 819 . Question No. 5, in the instant case, is similar to voir dire questions discussed in both Davis and Dingle . In Davis , where the credibility of a police officer was at issue, the trial judge refused to ask the venire questions concerning law enforcement employment or association.

Davis, 333 Md. at 35 , 633 A.2d 867 . The Court ruled: In general, the professional, vocational, or social status of a prospective juror is not a dispositive factor establishing cause to disqualify. Rather, the proper focus is on the venire person’s state of mind, and whether there is some bias, prejudice, or preconception. Short of those instances where there is a demonstrably strong correlation between the status in question and a mental state that gives rise to cause for disqualification, mere status or acquaintance is insufficient to establish cause for disqualification of a prospective juror.

The fact that a prospective juror is employed as, related to, or associated with a law enforcement officer does not establish that the prospective juror has any undue bias or prejudice that will prevent that person from fairly and impartially determining the matter before them. Id. at 37 , 633 A.2d 867 . The Davis Court held that a trial court does not err when it necessarily asks such a line of questioning, but there is no requirement to do so. Id. at 38 , 633 A.2d 867 . ²⁰⁰ In Dingle , the three-member dissenting opinion regarded the majority opinion as overruling Davis and, moreover, as a “departure from the long-standing tradition of a limited voir dire process,” in part because the trial court in Dingle “was not required to ask a single one of the questions or subject areas proposed by Petitioner.” Dingle, 361 Md. at 37 , 759 A.2d 819 (Raker, J., dissenting).

The dissenters essentially argued that it is inconsistent for an appellate court to find error in the form the question takes, when there is no error in not asking the question at all. The majority, however, does not explicitly view Dingle as overruling Davis . 4 The Dingle dissenters correctly point out that the failure to ask questions aimed at uncovering law enforcement employment and associations was not an abuse of discretion in Davis . The Dingle majority, however, appears to hold that appellate review of voir dire questions not posed to the venire will not necessarily identify mandatory questions, but, instead, will recognize abuses of discretion only under specific circumstances. The majority in Dingle did not address the question of whether the trial court would have abused its discretion if the judge chose not to ask whether members of the venire were employed by or associated with law enforcement.

This kind of “Dams-question” was not an issue before the Dingle Court. To the contrary, the majority in Dingle gave great deference to the trial judge’s decision that, in that particular case, the “Dcms-question” lay soundly within the discretionary boundaries of reasonably likely to reveal cause for disqualification and fishing. Once it was determined that the questions posed by the trial judge in Dingle were proper voir dire questions, the Court was obligated to address the inherent flaw within the compound form the trial court phrased those questions. Turning our attention to whether the trial court in the instant case abused its discretion by failing to ask Question ²⁰¹ No. 5, we cannot simply turn to the holding in Davis and rule, as a matter of law, that there was no abuse of discretion here.

We do not find an abuse of discretion on this issue because the facts of the instant case do not support such a conclusion. First, Thomas insists his proposed voir dire question is distinguishable from the holding in Davis because he asked a compound question aimed directly at the potential bias created by a juror’s relationship with a law enforcement official. However, that argument is in direct conflict with the Dingle prohibition of compound voir dire questions. Even a narrow examination of only the substance of Question No. 5, however, fails to reveal an abuse of discretion.

Significant to the determination of whether there has been an abuse of discretion is whether the proposed question was “more than adequately covered by the trial court’s voir dire.” Miles v. State, 88 Md.App. 360, 381 , 594 A.2d 1208 (1991). The bias that a circuit court is tasked to keep from infecting jury deliberations must be “directly related to the crime, the witnesses, or the defendant.” Dingle, 361 Md. at 10 , 759 A.2d 819 . Question No. 5 seeks to uncover a bias, either favorable or contrarily unfavorable, toward the law enforcement witnesses in Thomas’s case. Addressing this concern, the circuit court asked the venire “whether they had any relationship or dealings with the prosecutor, defense attorney, or any of the police witnesses in the case.” This question satisfactorily identified potential jurors that the court should have dismissed for cause due to a possible bias directly related toward a witness in Thomas’s case.

Moreover, “where a principal part of the State’s evidence is testimony of a police officer diametrically opposed to that of a defendant,” Langley, 281 Md. at 349 , 378 A.2d 1338 , the trial court must ask whether any member of the venire would give “either more or less credence [merely] because of the occupation or category of the prospective witness.” Id. (quoting Brown v. United States, 338 F.2d 543 (D.C.Cir.1964)). Here, the circuit court properly asked whether any member of the panel would be “inclined to give more or less weight to the ²⁰² testimony of a police officer or other law enforcement officer than to the testimony of another witness simply because of that person’s status as a police or law enforcement officer.” In light of the voir dire questions asked, the circuit court did not abuse its discretion by denying Thomas’s request to ask Question No. 5. Similar to Davis , the proposed question may have allowed Thomas to use his peremptory challenges more wisely, but would not have discovered any relevant bias, not previously established.

B. Question No. 10, which Thomas properly brought to the circuit court’s attention, is, however, a question that the court should have asked. Under the Maryland Declaration of Rights Article XXI, “a defendant [has] the right to examine prospective jurors to determine whether any cause exists for a juror’s disqualification.” Bedford v. State, 317 Md. 659, 670 , 566 A.2d 111 (1989). Question No. 10 aims directly at biases related to the defendant’s alleged criminal act, which when uncovered, will disqualify a juror if the bias is so strong as to impair the juror’s impartiality. Preliminarily, we note that the current “two-part” form of Question No. 10 is unacceptable under the Dingle ruling.

As the voir dire in the instant case took place before the Court of Appeals filed Dingle on September 15, 2000, we do not fault Thomas for proposing Question No. 10 as a two-part question. Further, we believe the issue of the trial judge’s discretion is still properly before this Court. In accordance with Dingle , the circuit court must pose Question No. 10 to the venire through two questions. The first question should identify any jurors who harbor strong feelings about narcotics or the laws governing narcotics.

Then, the trial court should individually ask those members of the venire who responded affirmatively follow-up questions regarding their ability to be fair and impartial despite their strong feelings. Maryland disallows compound questions under Dingle , and it is equally improper to excuse for cause those members of ²⁰³ the venire who just answer affirmatively to the first question. In King v. State, 287 Md. 530 , 414 A.2d 909 (1980), the trial court excused for cause two jurors who felt that possession of marijuana should not be a criminal act. The defense counsel in that case argued that neither of two prospective jurors suggested that they would ignore the law, and excusing them for cause was an abuse of discretion.

The Court of Appeals held: In this case, the trial court excluded the entire class of prospective jurors who believed that the marijuana laws should be modified, irrespective of any other consideration peculiar to those jurors. The court stated that a juror who wanted the law concerning “simple possession” of marijuana changed “is not a competent juror.” The court also ruled: “If someone doesn’t believe that law as it now exists, they certainly are not qualified as jurors.” By so deciding, the trial court excluded from the panel a significant part of the community. We hold that the trial court committed reversible error by excluding any juror who expressed a personal belief that the law concerning marijuana should be changed without inquiring whether or not that belief would prevent the