Wilson v. State

FISCHER, Judge. Appellant, Paul Anthony Wilson, appeals from a conviction and sentence for felony murder rendered by the Circuit Court for Prince George’s County (Levin, J.). On October 13, 1987, the body of Karen Goshen was discovered in the laundry room of an apartment building located at 1400 Nova Avenue in Prince George’s County. Testimony at trial indicated that Ms. Goshen had died from ⁶⁶² strangulation.

Dr. Daniel Garner testified that DNA obtained from appellant’s blood matched DNA obtained from semen found in Ms. Goshen’s underpants. FBI Agent Gary Kanaski testified that a crime scene shoe print recovered from between Ms. Goshen’s legs was similar to a shoe recovered from appellant. Testimony of witnesses indicated that Ms. Goshen, on the morning of October 13, 1987, approached a group of young men and offered to trade a Walkman radio and a watch for cocaine. Testimony also indicated that appellant, Ms. Gosh-en and a second male left 1410 Nova Avenue and walked in the direction of 1400 Nova Avenue.

Tyrone Conley testified that appellant and Goshen went in the direction of the laundry room, and Conley subsequently saw someone in the laundry room smoking what he assumed was cocaine. Appellant raises four issues for our consideration: I. Did the trial court err in refusing to propound a requested voir dire question?

II

Did the trial court err in denying appellant’s motion to suppress certain evidence?

III

Was appellant denied a fair trial because of the admission of evidence of other crimes?

IV

Did the trial court err in admitting DNA related evidence? I. Did the trial court err in refusing to propound a requested voir dire question? One of the voir dire questions requested was No. 16 which states: 16. The defendant in this case is a black male and the alleged victim is a white female.

This case involves allegations of rape or attempted rape, as well as the use of procurement of drugs and a strangulation homicide. Would these facts or allegations be of such nature that you feel you could not sit as a juror in such a case and ⁶⁶³ render an impartial verdict only on the facts presented to you in this trial? The Assistant State’s Attorney objected saying: Your Honor, with regard to defense question number 16, I don’t have any problem with it except for the part that states, ‘The defendant in this case is a black male and the victim is a white female.’ I don’t like to interject races into the case, the other portion of the question I have no problem with____ Upon asking the voir dire questions, the trial judge, in lieu of the requested question, inquired: As I indicated to you before, this case involves allegations of a sex offense, it involves allegations of drugs, would that prejudice somebody so that they could not fairly and impartially decide this case based solely on evidence they’re going to hear in this courtroom? During the course of the jury selection, defense counsel used thirteen of his allotted twenty strikes.

At the conclusion of the jury selection while the jurors were still present, the Court stated, “All right, Mr. Niland, there are 12 jurors sitting there, you satisfied?” Mr. Niland replied, “Defense is satisfied, Your Honor.” Alternates were then selected and the remaining jurors were excused. The Court then proceeded to hear motions. As his second motion, Mr. Niland stated, “Next, Your Honor, I'm going to except to the court’s choosing not to give all of defendant’s voir dire request number 16, as the State had previously objected.” The trial judge replied, “All right. Anything else?” This, apparently, sufficed as a denial as the court proceeded to other motions.

At the conclusion of the motions hearing, the jury was brought in and sworn. While not a model of clarity, we believe question 16, as framed, was intended to discern, among other things, whether any member of the jury panel would entertain prejudice against a black male accused of raping and murdering a white female. Clearly, the question, or one of similar import, should have been asked. In Ham v. South ⁶⁶⁴ Carolina, 409 U.S. 524 , 93 S.Ct. 848 , 35 L.Ed.2d 46 (1973), a black male was charged with marijuana possession.

His defense was that he was the target of a frame-up because of his involvement in civil rights activities. The trial judge denied his request to interrogate the veniremen with respect to racial prejudice. The Supreme Court noted that there was no constitutional requirement demanding that the jurors be asked specific questions about racial prejudice. Nonetheless, the Supreme Court reversed the conviction, “[sjince one of the purposes of the Due Process Clause of the Fourteenth Amendment is to insure ‘these essential demands of fairness,’ and since a principal purpose of the adoption of the Fourteenth Amendment was to ‘prohibit the State from invidiously discriminating on the basis of race.’ ” Ham, 409 U.S. at 526-527 , 93 S.Ct. at 850-851 (citations omitted).

Thus, the only way to discover whether potential jurors held any racial bias against Ham for his civil rights involvement was to ask the jurors on voir dire. The rule in Maryland is identical. As explained in Thornton v. State, 31 Md.App. 205, 216 , 355 A.2d 767 (1975), “Maryland, like the Supreme Court, holds that whatever the ethnic background of the accused, he or she is not entitled to promiscuously probe for racial prejudice absent circumstances in the case warranting such inquiry.” One such circumstance was enunciated in Holmes v. State, 65 Md. App. 428 , 501 A.2d 76 (1985), rev’d on other grounds, 310 Md. 260 , 528 A.2d 1279 (1987), wherein Judge Robert M. Bell, writing for this Court, 1 thoroughly analyzed the factual situation requiring a voir dire question designed to elicit prejudicial beliefs or attitudes. Judge Bell opined, “Our review of the cases causes us to conclude that, in a criminal case, prejudice may be a factor because of the facts of the case when the complainant and the witnesses for the State are of a different race than the defendant, and the crime ⁶⁶⁵ involves victimization of another person and the use of violence.” Holmes, 65 Md.App. at 438-439 , 528 A.2d 1279 .

The case now under consideration is similar to Holmes in that it appears, as in Holmes, the objection to the failure to give the requested instruction was waived. In Trimble v. State, 321 Md. 248, 257 , 582 A.2d 794 (1990), the Court of Appeals stated, “Defense counsel’s declaration of his satisfaction with the jury was an affirmative acceptance of those jurors who had been selected. Thus, he may not object now.” Defense counsel did object to the court’s failure to give the requested instruction prior to the jury being sworn. He waited, however, until after he had announced acceptance of the jury and the remaining jurors were excused.

We hold that his belated objection came too late. Since the jurors who had undergone voir dire on the case had been excused, it would have been necessary at that point to begin the entire process anew. Ideally, the objection should have been articulated to the trial judge following the voir dire and prior to jury selection. Even an objection lodged after the jury selection, but while the remaining panel was still available, could have been managed by the trial judge.

But, certainly, it would be unreasonable to permit the objection after the jury was accepted and the remaining panel excused. We hold, therefore, that appellant’s objection to the trial court’s voir dire examination was waived.

II

Did the trial court err in denying appellant’s motion to suppress certain evidence? Appellant objected to the introduction into evidence of one of his tennis shoes. In this connection, Detective Price testified: A. I entered the interview room again with Mr. Wilson, and this was approximately 6:00 a.m. I asked him to lift his foot up a minute.

Q. Was he wearing tennis shoes? ⁶⁶⁶ A. He was wearing tennis shoes. Q. Was it a tennis shoe lift? A. Print, yes, it was. I looked at them, and they looked similar so I told him — I said, ‘How about taking the shoe off a minute for me, please?’ And he did so.

Q. And what happened after he took the shoe off? A. When he took the shoe off, I held the print up next to the shoe, and I looked at it, and I showed it to him, and I said, ‘Look. Ray Charles could see that these are the same two, that they are a match,’ and it was. Q. What did he do when you confronted him with that?

A. He then admitted that he was in the laundry room at 1400 Nova Avenue. Q. And that was where the body of Karen Goshen was found? A. That is correct. The shoe was then seized by Detective Price without the benefit of a warrant.

Appellant avers that the seizure of the shoe and the admission of Detective Price’s testimony as to appellant’s statement that he was at the crime scene was improper. It is clear that appellant consented to the removal of his shoe. After seeing the comparison between his shoe and the crime scene shoe print, appellant admitted that he had been in the laundry room. Since he consented to the seizure of his shoe, appellant was not deprived of his Fourth Amendment rights.

See Gamble v. State, 318 Md. 120, 129 , 567 A.2d 95 (1989). Even if appellant had not consented, the seizure of the shoe would have been permissible as the result of a search incident to a lawful arrest or as a search during administrative processing at the jail. See United States v. Robinson, 414 U.S. 218 , 94 S.Ct. 467 , 38 L.Ed.2d 427 (1973). Since the seizure of the shoe was proper, the court did not err in admitting appellant’s statement which resulted from the comparison between appellant’s shoe and the shoe print. ⁶⁶⁷ Appellant next complains that the seizure of a blood sample used in DNA testing was illegal for the reason that the search warrant used to obtain the blood was illegally obtained.

Appellant avers that Detective White, in applying for the warrant, made material omissions in the affidavit used to support the warrant. Specifically, appellant complains that Detective White failed to include information inconsistent with the State’s version of events, in that she included inculpatory evidence but failed to include exculpatory evidence favorable to appellant. Appellant relies upon Franks v. Delaware, 438 U.S. 154 , 98 S.Ct. 2674 , 57 L.Ed.2d 667 (1978). In Franks, 438 U.S. at 155 , 98 S.Ct. at 2676 , the Supreme Court held: [W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally or with reckless disregard for the truth was included by the affiant in the warrant affidavit and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request.

In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search