Washington v. State

GREENE, J. In connection with events occurring on or around October 26, 2007, Petitioner Ricky Shamar Washington was charged with first degree rape and related offenses. He elected a trial by jury to be held in the Circuit Court for Harford County. During voir dire of the jury panel, Petitioner requested that the following question be asked: “Would any of you be more or less likely to believe a witness solely by virtue of the ³⁰⁸ witness having served in the military or being employed by the military?” The trial judge denied Petitioner’s request to pose this question during voir dire. Petitioner later renewed his request, at the conclusion of voir dire, and the trial judge again declined to ask the proposed question.

Petitioner was convicted by a jury of first degree rape, third degree burglary, first degree assault, first degree sexual offense, and use of a handgun in the commission of a felony. Petitioner noted an appeal to the Court of Special Appeals, claiming, inter alia, that the trial court had abused its discretion in declining to present his proposed question during voir dire of the jury panel. In an unreported opinion, the Court of Special Appeals affirmed the decision of the trial court, concluding that the trial court had not abused its discretion. Petitioner subsequently filed a petition for writ of certiorari with this Court, which we granted.

Washington v. State, 420 Md. 463 , 23 A.3d 895 (2011). Petitioner presents the following issue 1 for our review: Under the circumstances of this case, was it an abuse of discretion and therefore error to refuse to ask whether any prospective juror would be more likely to believe a witness solely by virtue of the witness having served in the military or being employed by the military? We shall hold that the trial judge did not abuse her discretion in declining to present Petitioner’s proposed question during voir dire of the jury panel. This Court has held that only certain questions are mandatory during voir dire of a jury panel, if they are directly related to the facts and circumstances of the case.

Based on the circumstances of this case, Petitioner’s proposed question was not mandatory, and, thus, it was within the discretion of the trial court whether to pose the question to the jury panel. Because the trial court did not ³⁰⁹ abuse its discretion in denying Petitioner’s request to ask the question, we affirm the judgments of the trial court and the intermediate appellate court. FACTUAL AND PROCEDURAL BACKGROUND During voir dire of the jury panel, Petitioner requested that the trial judge ask the following question: “Would any of you be more or less likely to believe a witness solely by virtue of the witness having served in the military or being employed by the military?” The trial court denied Petitioner’s request to pose this question, and the court again denied Petitioner’s request when it was later renewed at the conclusion of voir dire. 2 In declining to ask Petitioner’s proposed question, the trial judge explained: I don’t see where the alleged victim’s employment, even in this community, would play a large role in her credibility in this matter. Otherwise, with respect to the nature of the distinction between police officers and employment of any other nature, we would be asking that question of any other major employment or employer in an area.

Given that it just doesn’t impinge upon the issues before the Court or a jury today, the finder of fact, it’s not really relevant, so the Court’s going to decline to ask that question. At trial, Ms. Smith, the complaining witness, testified that she met Petitioner, a man she knew as Jamal, in the parking lot of her apartment complex “around Thanksgiving time” in 2006. Ms. Smith stated that after she and Petitioner went on one date, she told him she was not interested in seeing him again. She claimed, however, that she later agreed to go on another date with Petitioner on October 26, 2007.

According to Ms. Smith, Petitioner was late arriving to pick her up for their date, so she decided to cancel it. Ms. Smith testified that Petitioner called her later that evening, and she agreed to ³¹⁰ let him come to her apartment to talk. She indicated that when Petitioner arrived at her apartment, he pushed the door open to force his way inside, and he pointed a black handgun in her face. Ms. Smith testified that Petitioner then forced her to undress, and he raped her.

Ms. Smith identified Petitioner at trial and in a pre-trial photo array as the person who raped her. During cross-examination, Ms. Smith testified, “I was in the military, and I finished my service, and I ETS’d .... I completed my service time. I did my four years and just got out.

I didn’t reenlist. I wasn’t discharged like they kicked me out or medically discharged, but I finished.” Ms. Smith indicated that in 2003 she had completed her military service. In response to questions regarding her current employment, Ms. Smith stated that she was employed at Aberdeen Proving Ground (APG) as a “Human Resources Staffing Specialist.” She maintained that she was working at APG as a civilian. Ms. Smith was questioned on cross-examination regarding the gun she claimed Petitioner brought to her apartment and pointed at her: Mr. Greenberg: Okay.

What kind of gun was that? Ms. Smith: It was black. It was a handgun. It was not a revolver.

Mr. Greenberg: Was it semiautomatic? Ms. Smith: I don’t know. Mr. Greenberg: Are you familiar with guns? Ms. Smith: I am familiar with the A-l, A-2 rifle, but I’m not familiar with handguns.

Mr. Greenberg: So you have never seen a handgun? Ms. Smith: Television. Mr. Greenberg: From television. And from television, what did it appear to be?

Ms. Smith: I have no idea. Mr. Greenberg: Okay. And you are saying nobody on APG carries around guns? Nobody is armed except with rifles? ³¹¹ Ms. Smith: Not at the Central Résumé Processing Center or at the Human Resources Office I work at.

Mr. Greenberg: You never saw anybody carrying any other kind of weapons in person when you were in California in the Army? Ms. Smith: Not handguns. Mr. Greenberg: All they had was rifles? Ms. Smith: Right.

Mr. Greenberg: Even the MPs? Ms. Smith: I didn’t have to deal with MPs. Ms. Smith testified that following the attack, after Petitioner had left her apartment, she called Carolyn Watkins. Ms. Watkins later testified and recounted the details of the call she had received from Ms. Smith on October 26, 2007.

Ms. Watkins stated that she had known Ms. Smith since 2003 and that they met “through work ... [a]t APG. Aberdeen Proving Ground.” According to Ms. Watkins, she and Ms. Smith both worked in Human Resources, at the “Central Résumé Processing Center.” At the conclusion of the trial, the jury convicted Petitioner of first degree rape, third degree burglary, first degree assault, first degree sexual offense, and use of a handgun in the commission of a felony. Petitioner noted an appeal to the Court of Special Appeals, contending, inter alia, that the trial court had abused its discretion in denying Petitioner’s request for the court to pose a question during voir dire of the jury panel regarding bias in favor of, or against, a person serving in or employed by the military. The intermediate appellate court reviewed the trial court’s actions under an abuse of discretion standard.

The intermediate appellate court quoted from this Court’s opinion in Dingle v. State, 361 Md. 1, 10 , 759 A.2d 819, 824 (2000), noting that “[t]he ‘questions [in voir dire] should focus on issues particular to the defendant’s case so that biases directly related to the crime, the witnesses, or the defendant may be uncovered.’ ” Stressing that the goal of voir dire is to empanel a jury that is impartial and unbiased, the Court of Special Appeals referenced our opinion in Moore v. ³¹² State, 412 Md. 635, 649-50 , 989 A.2d 1150, 1158 (2010), for the proposition that “it is grounds for disqualification for a juror to presume that one witness is more credible than another simply because of that witness’s status or affiliation with the government.” After reviewing the record and the trial court’s rationale, the intermediate appellate court concluded that “Ms. Smith was not testifying in her capacity as a former member of the army or as a government employee[.]” Thus, according to the intermediate appellate court, Ms. Smith’s employment did not play a large role in her credibility as a witness, and “the [Cjircuit [CJourt did not abuse its discretion in refusing to ask the venire panel if [it] had any bias in favor [of] or against a person with connections to the military.” DISCUSSION In Stewart v. State, 399 Md. 146, 158-62 , 923 A.2d 44, 51-53 (2007), we provided a comprehensive review of the important principles underlying voir dire: Voir dire is critical to assure that the Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights guarantees to a fair and impartial jury will be honored. State v. Logan, 394 Md. 378, 395 , 906 A.2d 374, 384 (2006); Curtin v. State, 393 Md. 593, 600 , 903 A.2d 922, 926 (2006); White v. State, 374 Md. 232, 240 , 821 A.2d 459, 463 (2003); Dingle v. State, 361 Md. 1, 9 , 759 A.2d 819, 823 (2000). “Without an adequate voir dire the trial judge’s responsibility to remove prospective jurors who will not be able impartially to follow the court’s instructions and evaluate the evidence cannot be fulfilled.” Rosales-Lopez v. United States, 451 U.S. 182, 188 , 101 S.Ct. 1629, 1634 , 68 L.Ed.2d 22 [28] (1981) [ (citation omitted) ]. In Maryland, the sole purpose of voir dire is to ensure a fair and impartial jury by determining the existence of cause for disqualification, and not as in many other states, to include the intelligent exercise of peremptory challenges. Logan, 394 Md. at 396 , 906 A.2d at 384 ; State v. Thomas, 369 Md. 202, 207 , 798 A.2d 566, 569 (2002); Evans v. State, ³¹³ 333 Md. 660 , [668] 637 A.2d 117, 125 (1994).

As we noted in Dingle v. State, 361 Md. 1 , 759 A.2d 819 : Maryland has adopted, and continues to adhere to, limited voir dire. It is also well settled that the trial court has broad discretion in the conduct of voir dire, most especially with regard to the scope and the form of the questions propounded, and that it need not make any particular inquiry of the prospective jurors unless that inquiry is directed toward revealing cause for disqualification. Id. at 13-14 , 759 A.2d at 826 (internal citations omitted). We have identified two broad areas of inquiry that may reveal cause for a juror’s disqualification: (1) examination to determine whether the prospective juror meets the minimum statutory qualifications for jury service, and (2) examination to discover the juror’s state of mind as to the matter in hand or any collateral matter reasonably liable to have undue influence over him.

Davis v. State, 333 Md. 27, 35-36 , 633 A.2d 867, 871 (1993). The scope of voir dire and the form of questions propounded rest firmly within the discretion of the trial judge. Curtin, 393 Md. at 603 , 903 A.2d at 928 ; Boyd v. State, 341 Md. 431, 436 , 671 A.2d 33, 35 (1996). It is the responsibility of the trial judge to conduct an adequate voir dire to eliminate from the venire panel prospective jurors who will be unable to perform their duty fairly and impartially and to uncover bias and prejudice.

Logan, 394 Md. at 396 , 906 A.2d at 385 ; White, 374 Md. at 240 , 821 A.2d at 463 . To that end, the trial judge should focus questions upon “issues particular to the defendant’s case so that biases directly related to the crime, the witnesses, or the defendant may be uncovered.” Thomas, 369 Md. at 207-08 , 798 A.2d at 569 . In reviewing the court’s exercise of discretion during the voir dire, the standard is whether the questions posed and the procedures employed have created a reasonable assurance that prejudice would be discovered if present. White, 374 Md. at 242 , 821 A.2d at 464 .

On review of the voir dire, an appellate court looks at the record as a whole to determine whether the matter has ³¹⁴ been fairly covered. Logan, 394 Md. at 396 , 906 A.2d at 385 ; White, 374 Md. at 243 , 821 A.2d at 465 . We review the trial judge’s rulings on the record of the voir dire process as a whole for an abuse of discretion, that is, questioning that is not reasonably sufficient to test the jury for bias, partiality, or prejudice. White, 374 Md. at 243 , 821 A.2d at 465 .

It appears to be the universal rule that on appellate review, the exercise of discretion by trial judges with respect to the particular questions to ask and areas to cover in voir dire is entitled to considerable deference. The trial judge has had the opportunity to hear and observe the prospective jurors, to assess their demeanor, and to make factual findings. The judge’s conclusions are therefore entitled to substantial deference, unless they are the product of a voir dire that “is cursory, rushed, and unduly limited.” Id. at 241 , 821 A.2d at 464 . See also Mu’Min v. Virginia, 500 U.S. 415, 428 , 111 S.Ct. 1899, 1907 , 114 L.Ed.2d 493 [508] (1991) (noting that the findings of the trial judge on the issue of juror impartiality should be upheld absent manifest error); Rosales-Lopez, 451 U.S. at 189 , 101 S.Ct. at 1634 [ 68 L.Ed.2d at 29 ] (noting that “[b]ecause the obligation to impanel an impartial jury lies in the first instance with the trial judge, and because he must rely largely on his immediate perceptions, federal judges have been accorded ample discretion in determining how best to conduct the voir dire ”).

The manner of conducting voir dire and the scope of inquiry in determining the eligibility of jurors is left to the sound discretion of the judge. Curtin, 393 Md. at 603 , 903 A.2d at 928 ; Whittemore v. State, 151 Md. 309, 315 , 134 A. 322, 324 (1926); cf. Maryland Rule 4-312(d) (providing that the “court may permit the parties to conduct an examination of prospective jurors or may itself conduct the examination”). Other than by Rule 4-312 and Maryland common law, the manner of conducting voir dire is not governed by any statute or specific rule. Poole v. State, 295 Md. 167, 187 , 453 A.2d 1218, 1229 (1983).

As to the scope of inquiry and the decision as to whether to permit a particular ³¹⁵ question, the trial judge is not required, with some limited exceptions, to ask specific questions requested by trial counsel. Questions which are not directed at a specific ground for disqualification, which are merely “fishing” for information to assist in the exercise of peremptory challenges, which probe the prospective juror’s knowledge of the law, ask a juror to make a specific commitment, or address sentencing considerations are not proper in voir dire. See Curtin, 393 Md. at 602 , 903 A.2d at 928 ; Grogg v. State, 231 Md. 530, 532 , 191 A.2d 435, 436 (1963). See also Standefer v. State, 59 S.W.3d 177, 180 (Tex.Crim.App.2001) (defining a “commitment” question as one where “one or more of the possible answers is that the prospective juror would resolve or refrain from resolving an issue in the case on the basis of one or more facts contained in the question”).

(Footnote omitted). In Curtin, 393 Md. at 609 -10 n. 8, 903 A.2d at 932 n. 8, we discussed certain areas where, if directly related to the case before the court, inquiry is mandated during voir dire of a jury panel: These areas are: race, ethnicity, or cultural heritage, Hernandez v. State, 357 Md. 204, 232 , 742 A.2d 952, 967 (1999) (“Where a voir dire question has been properly requested and directed to bias against the accused’s race, ethnicity, or cultural heritage, the trial court ordinarily will be required to propound such a question.”)[;] religious bias, [Casey v. Roman Catholic Archbishop of Balt., 217 Md. 595, 607 , 143 A.2d 627, 632 (1958) ] (“[I]f the religious affiliation of a juror might reasonably prevent him from arriving at a fair and impartial verdict in a particular case because of the nature of the case, the parties are entitled to ... have the court discover [¶]... ] them.”); in capital cases, the ability of a juror to convict based upon circumstantial evidence, [Corens v. State, 185 Md. 561, 564 , 45 A.2d 340, 344 (1946) ] (“We ... hold that the State has the right to challenge a juror in a capital case on the ground that he would not be willing to convict on circumstantial evidenee.”)[;] and placement of undue weight on police officer credibility, Langley v. State, ³¹⁶ 281 Md. 337, 349 , 378 A.2d 1338, 1344 (1977) (“[W]e hold that in a case such as this, where a principal part of the State’s evidence is testimony of a police officer diametrically opposed to that of a defendant, it is prejudicial error to fail to propound a question such as ... whether any juror would tend to give more or less credence ... [to a police officer].”); violations of narcotics law, [State v. Thomas, 369 Md. 202, 214 , 798 A.2d 566, 573 (2002) ] (holding that [the] trial judge abused his discretion in failing to ask [the] question whether any jurors harbored strong feelings towards the violation of narcotics laws where [the] defendant was charged with the possession and distribution of a controlled dangerous substance); strong emotional feelings with regards to alleged sexual assault against a minor, [Sweet v. State, 371 Md. 1, 9-10 , 806 A.2d 265, 271 (2002) ] (holding that [the] trial court abused its discretion in refusing to ask whether the charges of second degree assault and third degree sexual offense against a minor stirred up such strong emotional feelings that it would affect the veniremen’s impartiality); cf. Landon v. Zorn, 389 Md. 206, 222 , 884 A.2d 142, 151 (2005) (holding that [the] trial judge did not abuse his discretion in refusing to ask [a] proposed voir dire question regarding bias against plaintiffs in personal injury and medical malpractice cases because an affirmative answer to the proposed question would not constitute grounds for disqualification for cause). In Moore v. State, 412 Md. 635, 661 , 989 A.2d 1150, 1164 (2010), we made clear that this list does not necessarily encompass the entire scope of mandatory questions to be posed by a trial judge during voir dire, if such questions are directly related to the case before the court (asserting that “[w]e reject the premise that ... any voir dire question not expressly mentioned in ... Curtin is not mandatory”).

In Langley v. State, 281 Md. 337, 338 , 378 A.2d 1338, 1338 (1977), we addressed whether a trial judge had abused his discretion in failing to ask the following question on voir dire: “Is there anyone here who would give more credit to the testimony of a police officer over that of a civilian, merely ³¹⁷ because of his status as a police officer?” During Langley’s trial, a police officer testified regarding his observations of the crime scene and Langley’s actions. Langley, 281 Md. at 338-39 , 378 A.2d at 1339 . Langley testified in his own defense, offering a version of the events contrary to the officer’s testimony, and the jury convicted Langley of robbery. Langley, 281 Md. at 338-39 , 378 A.2d at 1338-39 .

On review before this Court, we noted that while a trial judge has broad discretion in conducting voir dire of a jury panel, “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.” Langley, 281 Md. at 341-42 , 378 A.2d at 1340 (quoting Casey v. Roman Catholic Archbishop of Balt., 217 Md. 595, 605 , 143 A.2d 627, 631 (1958)). Accordingly, we held that “[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