Thomas v. State

Hotten, J. We consider whether a trial judge may pose a broad occupational bias voir dire question when the parties requested that the trial judge inquire as to whether the venirepersons would give undue weight to the testimony of a police-witness, based on the police witness’ occupation as a police officer. On September 14, 2014, Ukeenan Nautica Thomas (“Appellant”) 1 invited Timothy Butler (“Mr. Butler”) to meet him in ⁴⁹⁸ order to purchase drugs from him. Following that meeting, Mr. Butler was subsequently robbed, struck in the head with a gun, and his cellphone, bus pass, and cash were stolen. Mr. Butler’s assailants were subsequently identified as Appellant and Derrick Johnson (“Mr. Johnson”).

Appellant was arrested and charged with multiple offenses, including robbery with a dangerous and deadly weapon, use of a handgun in a crime of violence, and conspiracy to commit robbery. During voir dire, counsel for both parties requested that the trial judge ask the venirepersons whether they would give undue weight to a police-witness’s testimony based on his or her occupation, because two poliee officers and a detective were anticipated to testify in the case. Rather than propound the police-witness question as requested, the trial judge posed a lengthy question that was not specifically tailored to the occupation of the witnesses testifying in Appellant’s case. Appellant was subsequently convicted by a jury of robbery with a dangerous and deadly weapon, use of a handgun in a crime of violence, and conspiracy to commit robbery.

Appellant was sentenced to forty years’ incarceration, with all but thirty years suspended, and five years of supervised probation. Appellant appealed his convictions to the Court of Special Appeals. After canceling oral argument, the Court of Special Appeals filed a certified question of law with this Court, which we reformulated to ask whether a broader occupational bias question posed during voir dire was appropriate in determining whether potential jurors would give undue weight to a police officer’s testimony, based on his or her position as a police officer, when a more specific police-witness question was requested by Appellant’s counsel.. For the reasons that follow, we answer the reformulated certified question in the negative.

BACKGROUND I. Underlying Criminal Proceedings Because the issue dispositive of this appeal does not require a detailed recitation of the facts, we include only a brief ⁴⁹⁹ summary of the underlying evidence that was established at trial. The record reflects that on September 14, 2014, Appellant invited Mr. Butler to meet him in Owings Mills so that Appellant could purchase drugs. After meeting with Appellant, Mr. Butler was subsequently robbed by multiple individuals who struck Mr. Butler in the head with a gun, and took his cell phone, bus pass, and cash. Upon investigation, the police identified Appellant and Mr. Johnson as the individuals who robbed Mr. Butler. 2 The State charged Appellant with: (1) robbery with a dangerous and deadly weapon, (2) use of a handgun in a crime of violence, (3) robbery, (4) first-degree assault, (5) theft of less than $1,000, (6) conspiracy to commit robbery, and (7) conspiracy to commit robbery with a dangerous and deadly weapon.

On May 21, 2015, following a two-day trial, Appellant was convicted by a jury in the Circuit Court for Baltimore County of robbery with a dangerous and deadly weapon, use of a handgun in a crime of violence, and conspiracy to commit robbery. Appellant was acquitted of the conspiracy to commit armed robbery charge, and the charge of theft of less than $1,000 was entered nolle prosequi. The remaining charges were merged for sentencing purposes. Appellant was sentenced to forty years of incarceration with all but thirty years suspended, and to an additional five years of probation.

II

Voir Dire Prior to trial, both parties requested that the trial judge ask the venire what we will refer to as the police-witness question. ⁵⁰⁰ Appellant’s counsel phrased the police-witness question in his written request for voir dire as follows: 3 If you are selected as a juror in the case you may hear the testimony of one or more law enforcement officers. Do any of you believe that a law enforcement officer’s testimony is entitled to greater weight than any other witness just because he is a law enforcement officer? Rather than pose the question as provided by Appellant’s counsel, the trial judge instead engaged in the following monologue: Another principle of law about which the jury will be instructed is what we call credibility of witnesses. In all jury trials, whether it’s civil or criminal, the judge decides issues of law, but the jury decides issues of fact.

In that regard, based on testimony and other admissible evidence, the jury decides what evidence they find persuasive. My instructions will include some factors that you may consider in judging witness credibility. Ultimately, if selected as a juror in this case, it will be for you to decide who you believe. That is to say, who is right or wrong, who is truthful or untruthful or who is correct or mistaken, At the conclusion of the case and during deliberations, the jury will have had the benefit of listening to and observing each witness, viewing all the other evidence presented and discussing the evidence with your fellow jurors.

Mindful of that principle, are there any prospective jurors who would automatically give more or less weight to the testimony of any witness merely because ⁵⁰¹ of the witness’ title, profession, education, occupation or employment? Now, that’s a long question and it’s asked in a vacuum. To start with, we want jurors who don’t know anything about this case. But let me see if I can give you an example of what I’m talking about.

If anyone here is a physician, I’m not picking on you. We have two physicians. And I pick physicians because they’re similarly trained. They went to grade school.

High school. College. Medical school. So, they’re very—they have similar characteristics.

They’re having lunch one day. They walk out of lunch. They’re walking down the street. They’re chit-chatting, chitchatting about whatever doctors chit-chat about and there’s an accident that happens in front of them.

One of the physicians saw it and thought the light was green and the other physician thought the light was red. And if that’s all you had, and you were asked to make a decision, how would you decide? Well, most people would say, well, I gotta hear all the facts from everybody. And that’s kind of the point of this question.

So, stated another way, if you were selected as a juror in this case, would you be able to judge the credibility of each witness’ testimony based on their testimony, rather than merely relying on his or her title, profession, education, occupation, or employment? For example, would any of you automatically give more or less weight to the testimony of a physician, a clergyman, a firefighter, a police officer, psychiatrist, social worker, electrician or any other witness merely because of their title, profession, education, occupation or employment? If so, please stand. * * * None of the venirepersons responded to the question. After the trial judge completed his questioning, Appellant’s counsel took exception to how the trial judge phrased the police-witness question and the following exchange ensued: [APPELLANT’S COUNSEL]: Yes, Your Honor.

I’d ask that you give my number 15[ 4 ] as written rather than ⁵⁰² classify the police with pharmacists and firemen, none of which are gonna testify. The issue is whether or not a juror will give more weight particularly to a uniformed police officer, or person identifying themselves as a police officer, as opposed to any other witness. So, putting them in a category with 12, or 5 or 6, other people, I don’t think covers what [Bowie v. State, 824 Md. 1 , 595 A.2d 448 (1991)], which is the state that I—case that I cited intends. # * ⅛ [THE COURT]: Okay. Well, come in a little closer, [Prosecutor].

What evidence will be presented by the police in this case? Because I’m, I’m—I am aware of Judge Watts’ opinion in [Pearson v. State, 437 Md. 350 , 86 A.3d 1232 (2014)]. And in Savante (phonetic,), [Pearson], she said that, that question doesn’t even have to be asked unless there’s evidence in the case. And I think I’ve complied with [Pearson] anyway.

But she said that question doesn’t even have to be asked unless there is going to be substantial—and I’m using the term loosely—substantial evidence derived from the police department. So, what evidence is the, the State gonna introduce in terms of police officer testimony? [PROSECUTOR]: There is no confession—no statement from the [Appellant], so I—I mean, other than the search of the area where they uncover evidence, other than the issue of them stopping the cab that the Defendant was in, other than that,—I, I mean, this was typical follow-up by police officers. But again, I don’t think that there’s going to be a question of credibility between the other police officers, and the police (inaudible) to the [Appellant]. [THE COURT]: Okay. Well, [Appellant’s Counsel], I’m, I’m, I’m gonna decline to ask the question the—specifically the way you presented it.

I think that the Court has fairly covered the, the issues that have been addressed in [Thomas v. State, 139 Md.App. 188 , 775 A.2d 406 (2001)], and [Davis v. State, 333 Md. 27 , 633 A.2d 867 (1993)] going back, and, and [Pearson], Quite frankly, if, if I read [Pearson] correctly, I don’t even have to ask these people whether they’ve been victims of crime. I do that out of an abundance ⁵⁰³ of caution, but I don’t think it’s required. So, I think the Court has fairly covered your questions and I think your objections are noted for the record. ⅜ * * After the trial judge ruled on Appellant counsel’s exceptions, the trial judge brought the venirepersons who had responded affirmatively to the bench to discuss their responses and then empaneled a jury, which subsequently convicted Appellant of the crimes discussed, supra, III. Proceedings in the Court of Special Appeals Appellant filed a timely notice of appeal of his convictions to the Court of Special Appeals.

The Court of Special Appeals scheduled oral argument for December 6, 2016, but canceled it that morning. On December 27, 2016, then Chief Judge Krauser of that Court filed a certified question of law to this Court pursuant to Maryland Rule 8-304. 5 On January 19, 2017, we issued an order granting certiorari on the Court’s certified ⁵⁰⁴ question. Pursuant to Courts & Judicial Proceedings Article (“Cts. & Jud. Proc.”) § 12-604, 6 we rephrase the certified question to ask: 7 Whether a broader occupational bias question posed during voir dire is appropriate in determining whether potential jurors would give undue weight to a police officer’s testimony, based on his or her position as a police officer, when a more specific police-witness question was requested by Appellant’s counsel?

For the reasons that follow, we answer the reformulated certified question in the negative. STANDARD OF REVIEW It is well-settled that a trial judge has broad discretion in the conduct of voir dire, especially regarding the scope and form of the questions propounded, and that he or she need not make any particular inquiry of the prospective jurors unless that inquiry is directed toward revealing cause for disqualification. Dingle v. State, 361 Md. 1, 13-14 , 759 A.2d 819, 826 (2000). Because trial judges retain wide discretion regarding the voir dire process, we review a trial judge’s decisions during voir dire under an abuse of discretion standard.

See Pearson v. State, 437 Md. 350, 356 , 86 A.3d 1232, 1236 (2014) (quoting Washington v. State, 425 Md. 306, 314 , 40 A.3d 1017, 1021 (2012)). ⁵⁰⁵ We have previously held that “an examination of a juror on his [or her] voir dire is proper as long as it is conducted within the right to discover the juror’s state of mind in respect to the matter in hand or any collateral matter reasonably liable to unduly influence him [or her].” Langley v. State, 281 Md. 387 , 342, 378 A.2d 1338, 1340 (1977) (citations omitted). We have also made clear, however, that parties to an action triable before a jury have a right to have questions propounded to prospective jurors on their voir dire, which are directed to a specific cause for disqualification, and failure to allow such questions is an abuse of discretion constituting reversible error. Moore v. State, 412 Md. 635, 646 , 989 A.2d 1150, 1156 (2010) (quoting Langley, 281 Md. at 341-42 , 378 A.2d at 1340 ). There are two categories of specific cause for disqualification: “(1) a statute disqualifies a prospective juror; or (2) a ‘collateral matter [is] reasonably liable to have undue influence over’ a prospective juror.” Pearson, 437 Md. at 357 , 86 A.3d at 1236 (quoting Washington, 425 Md. at 313 , 40 A.3d at 1021 ).

In Langley, we determined that the police-witness question is “directed to a specific cause for disqualification” and is required to be asked by a trial judge if requested because A juror who states on [voir dire] that he would give more credit to the testimony of police officers than to other persons has prejudged an issue of credibility in the case. Regardless of his efforts to be impartial, a part of his method for resolving controverted issues will be to give greater weight to the version of the prosecution, largely because of the official status of the witness. * * * As Judge Horney pointed out for the court in Casey v. Roman Catholic Arch., 217 Md. 595, 607 , 143 A.2d 627 [ (1958) ], ‘a party is entitled to a jury free of all disqualifying bias or prejudice without exception, and not merely a jury free of bias or prejudice of a general or abstract nature.’ ⁵⁰⁶ * * * Langley, 281 Md. at 348-49 , 378 A.2d at 1343 -44 (quoting Casey, 217 Md. at 607 , 143 A.2d at 632 ); see also Bowie v. State, 324 Md. 1, 8-9 , 595 A.2d 448, 451 (1991) (holding that Langley is dispositive). Accordingly, if police-witnesses are anticipated to testify in a criminal case, it is an abuse of discretion for a trial judge to fail to propound the police-witness question when requested by a party to the action. See Langley, 281 Md. at 338, 349 , 378 A.2d at 1338, 1344 (holding that it was prejudicial error for the trial judge to have failed to ask the venire whether “there is anyone here who would give more credit to the testimony of a police officer over that of a civilian merely because of his status as a police officer?”).

DISCUSSION The parties agree that when requested by a party, a trial judge is required to ask the police-witness question during voir dire. See Bowie, 324 Md. at 8-11 , 595 A.2d at 451-62 ; Langley, 281 Md. at 348 , 378 A.2d at 1343 . The parties disagree, however, on whether the question posed by the trial judge in the instant case was sufficient to satisfy the purpose and spirit of the question—to identify a juror’s predisposition to give a police officer’s testimony greater or lesser weight than that of another witness due to his or her position as a police officer. See Langley, 281 Md. at 348 , 378 A.2d at 1343 .

Appellant argues that the trial judge posed a lengthy, convoluted inquiry that consisted of 450 words and was 30 sentences long, which obfuscated the police-witness question, thereby evading the spirit of the required inquiry and serving no legitimate purpose. In support of this view, Appellant analogizes the case at bar to our decision in Wright v. State, 411 Md. 503 , 983 A.2d 519 (2009), where we held that the trial court abused its discretion when it asked the venire seventeen questions in a row before requesting their individual responses. Wright, 411 Md. at 509-11, 515 , 983 A.2d at 522-24, 526 . Appellant also relies on our decision in Dingle , where we determined that a trial judge abused his discretion by asking the venire compound questions that shifted the responsibility ⁵⁰⁷ of determining bias from the judge to the venirepersons and deprived the defendant of an opportunity to challenge jurors for cause.

Dingle, 361 Md. at 21 , 759 A.2d at 830 . Appellant avers that the rationale underlying our decisions in these two cases was that potential jurors should not be asked questions during voir dire in an indigestible fashion. Here, Appellant argues that the trial judge’s question was unduly long, confusing, and difficult for the venire to follow. In contrast, the State argues the question posed by the trial judge followed a clear structure beginning with an explanation of the concept of witness credibility and occupational bias, then providing an illustration that sought to demonstrate the mechanics of occupational bias in determining whether to believe a witness, and concluding the inquiry with the police-witness/occupational bias question.

The State avers that because “police officer” was contained in the question portion of the trial judge’s inquiry, the question “sufficiently indicated” to the venire what possible bias or prejudice was being probed. The State contends that the trial judge’s decision to include other occupations in the inquiry does not mean the venire did not appreciate that they should respond if they would give the testimony of a police officer more or less weight solely due to his or her occupation. The State also distinguishes the facts in the present case from Wright by noting this case only deals with a single topic of inquiry; whereas, Wright addressed