REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 2684
September Term, 2012
LANCE WILLIAM HAYES
v.
STATE OF MARYLAND
Eyler, Deborah S.,
Meredith,
Graeff,
JJ.
Opinion by Eyler, Deborah S., J.
Filed: May 1, 2014
After a three-day trial, a jury in the Circuit Court for Prince George’s County
convicted Lance William Hayes, the appellant, of attempted first-degree murder, attempted
second-degree murder, first-degree assault, second-degree assault, use of a handgun in the
commission of a crime of violence, and wearing and carrying a handgun. Hayes was
sentenced to a total of 53 years active incarceration.
On appeal, Hayes poses three questions for review, which we have rephrased slightly:1
I. Did the trial court commit reversible error by refusing to ask his
requested voir dire question about racial bias?
II. Did the trial court err in admitting a hearsay statement made by the
victim as a prior consistent statement?
III. Did the prosecutor’s comments during the State’s closing argument
constitute plain error?
We answer Question I in the affirmative, and on that ground shall reverse the
judgments of the circuit court and remand the case for further proceedings. Given our
disposition, we need not address the remaining questions.
1
Hayes words his questions as follows:
1. Did the trial court err in refusing to propound Appellant’s requested voir
dire question as to racial bias?
2. Did the trial court err in admitting the hearsay statement of Herman Grace
that Appellant made a gun gesture at him as a prior consistent statement?
3. Did the trial court permit plain error in permitting the State to make
repeated references to God during opening statement and closing argument
that appealed to the passions and prejudices of the jury?
FACTS AND PROCEEDINGS
On the evening of October 28, 2011, Herman Grace was shot outside his home as he
was returning from church with his wife, Debra Grace. He survived, and at trial identified
Hayes as the shooter. Hayes has a child with the Graces’ daughter, Kevia Spencer. The State
theorized that Hayes shot Herman Grace because he blamed him for an unfavorable custody
determination that had been finalized a few days before the shooting.
We shall include additional facts as relevant to our discussion.
DISCUSSION
I.
Before trial, defense counsel submitted written “Proposed Defense Voir Dire”
questions to the court. One question was: “Mr. Hayes is an African American. Would that
fact in any way impact your ability to be fair and impartial?” (“Question 8.”)
The venire panel consisted of 72 people. During voir dire, the court acknowledged
that defense counsel wanted Question 8 to be posed, but asked the prosecutor’s view about
the court’s doing so. The prosecutor objected to Question 8 “because all of the witnesses are
African-American. The defendant is African-American.” The court declined to pose
Question 8 to the venire. Defense counsel noted an objection. At the conclusion of voir dire,
defense counsel stated, “I’m dissatisfied because you haven’t asked my number 8, and I’ll
continue just to except to that but that’s okay.”
2
After the jury was selected, both counsel told the court they were satisfied and the
court broke for lunch. Upon return, and before opening statements, defense counsel said he
“just wanted to put one more thing on the record.” He stated:
When we seated our jury and when we seated our alternates, I indicated that
I was satisfied. I was satisfied to the extent that those 12 people can hear the
case and those two alternates can hear the case. I don’t want the record to be
mistaken as that being acquiescing. I still object to the empanelment of this
jury based on the Court’s failure to instruct on my question number 8.
The prosecutor reiterated that the court was not required to propound Question 8 because a
majority of the venire panel, as well as the victim and all of the State’s civilian witnesses,
were African-American. The judge told defense counsel, “You’ve made your statement for
the record, the Court’s already ruled and we’ll leave it at that.” Counsel gave opening
statements and the State then called Kevia Spencer and Debra Grace as witnesses. It moved
into evidence numerous photographs, including photographs of Herman Grace after he was
shot, and a CD of a 911 call reporting the shooting.
On the morning of the second day of trial, the State called Alfred Hopkins, a neighbor
of the Graces who witnessed the shooting, and Herman Grace, the victim. The court then
recessed for lunch. When the prosecutor returned from lunch, she informed the court and
defense counsel that she had done some research and, based upon Hernandez v. State, 357
Md. 204 (1999), she now was of the view that the court’s refusal to pose the defense’s
requested Question 8 to the panel during voir dire was “potential grounds for reversible
error.” She asked defense counsel to waive his objection to the court’s failure to propound
3
Question 8 on voir dire and proposed that the court cure any error2 by posing Question 8 to
the seated jurors. Defense counsel responded,
I object and I object. I did request [Question 8] during the voir dire process,
when we had the entire panel. The jury has been selected, the panel, two
alternates. What’s done is done in that respect, and I don’t think that
attempting to cure it by asking this jury, after a day and a half of testimony, is
appropriate, nor constitutional, nor something that should be done, and I
violently oppose it.
The judge read the Hernandez opinion and remarked that it “clearly states that if there
is a race question presented by the defense, the Court shall ask it.” He said he was willing
to pose Question 8 to the seated jurors if defense counsel would agree, and suggested that he
could do so by calling each juror to the bench individually.
Defense counsel objected once again. He argued that “reverting to voir dire” after a
day and a half of trial would be inappropriate. He emphasized that Question 8 concerned a
sensitive issue, and 14 already seated jurors would be less likely to admit to racial bias than
would potential jurors in a pool of 72 who were being asked the question in the context of
other voir dire questions. He asserted that the seated jurors likely were “invested” in the case
by that time, and posing Question 8 to them individually would not “elicit the same free
response that you otherwise would have in the process.” Defense counsel maintained, “Mr.
Hayes [was] not afforded the opportunity to see his voir dire pool of 72 answer [Question 8]”
2
Although the prosecutor told the court that the failure to ask Question 8 probably was
error, she argued that the general bias question the court asked at the end of voir dire was
sufficient to cover the racial bias question. Hernandez holds to the contrary. 357 Md. at 226.
4
and thus “was unable to pick a jury of 12 persons based on [that] input.” When asked what
should be done, defense counsel said they should “push forward and see where the chips fall
in the future.” The trial court ruled that, based on defense counsel’s objection, it would not
pose Question 8 to the seated jurors.
The trial of the case continued. On the third (and last) day, the State rested. Defense
counsel moved for judgment of acquittal on several grounds, mentioning again that the court
had failed to propound Question 8 on voir dire. The court denied the motion. The defense
rested and renewed its motion for judgment of acquittal, which again was denied. After
instructions and closing arguments the jury deliberated and, as noted, convicted Hayes of
numerous crimes, for which he later was sentenced by the court.
In Hernandez, the defendant, who was Hispanic, asked the trial court to pose the
following question on voir dire: “Is there any member of the panel who would be prejudiced
against a defendant because of any defendant’s race, color, religion, sexual orientation,
appearance, or sex?” 357 Md. at 206-07. The court refused, reasoning that these specific
biases were covered by the court’s general voir dire question about bias or prejudice against
the defendant. The defendant was convicted of child abuse and rape. Ultimately, the case
was heard by the Court of Appeals, which reversed the convictions. It held: “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, regardless of the existence of special circumstances.” Id. at 232.
5
Predictably, Hayes contends on appeal that the trial court committed reversible error
by refusing to propound Question 8 during voir dire.3 The State concedes “that the trial court
erred under Hernandez by failing to give the voir dire question requested in this case.” 4 It
argues, however, that by opposing the State’s proposed cure for the error, i.e., having the trial
court pose Question 8 to the seated jurors on day two of the trial, Hayes “waived any right
to appellate relief.” The State likens Hayes’s opposition to the proposed cure to “inviting”
or “inducing” error. It reasons that by objecting to the cure, Hayes caused the error to
continue, and therefore should not be seen to benefit from the error on appeal. The State
expresses indignation that from the moment the trial court erred, so long as Hayes refused
to agree to the proposed curative measure, he would prevail: either he would be acquitted or
he would be convicted but with a firm basis for obtaining a reversal of his convictions on
appeal and a new trial. The State characterizes this as “gamesmanship.”
3
Hayes argues defensively that this issue is preserved for review on appeal even
though he accepted the jury as selected. The State does not challenge preservation, however,
as it recognizes that Hayes could accept the jury as selected without waiving his prior
objection to the court’s failure to ask Question 8 during voir dire. See Marquardt v. State,
164 Md. App. 95, 143 (2005) (“[A]ccepting the jury that is ultimately selected after the
circuit court has refused to propound requested voir dire questions does not constitute
acquiescence to the previous adverse ruling.”). See also Stringfellow v. State, 425 Md. 461,
471 (2012) (citing the above language from Marquardt).
4
Despite its concession, in a footnote in its brief the State suggests that in Washington
v. State, 425 Md. 306 (2012), and Stewart v. State, 399 Md. 146 (2007), the Court of Appeals
may have “qualified” the holding in Hernandez, and therefore we need not find error. We
do not read either case as doing so. See n.7, infra.
6
The State further argues that Hayes had no legitimate reason or tactic to oppose the
proposed cure and, relatedly, that the proposed cure would have been effective, as “there was
no substantive difference between conducting the voir dire in the belated manner suggested
by the State and how the voir dire would have been conducted had the trial court recognized
its duty under Hernandez.” According to the State, there is no reason why “a person would
be more willing to answer a sensitive question in front of a large group of strangers than in
the more intimate setting of a bench conference[.]” Moreover, because the seated jurors were
under oath, they would have been obligated to truthfully answer the court’s belatedly posed
racial bias question. See n.5, infra. In the State’s view, “[a]ny claim that defense counsel’s
opposition [to the proposed cure] rested on anything other than an attempt to thwart the trial
court from remedying the potential for prejudice must be rejected.”
We disagree with the State’s arguments for several reasons, and primarily because
they presuppose, incorrectly, that the trial court’s error in failing to propound Question 8
during voir dire could be cured by its posing Question 8 to the seated jurors in the middle of
the trial.
Whether Hayes waived his right to challenge the trial court’s error in refusing to
propound Question 8 on voir dire must be answered in light of the objective of the voir dire
process. In a criminal case, the purpose of voir dire is to effectuate the defendant’s
constitutional right to a fair and impartial jury, as secured by the Sixth Amendment to the
federal constitution and Article 21 of the Maryland Declaration of Rights. Voir dire -- the
7
questioning under oath of all potential jurors as part of the process of jury selection -- is the
mechanism for trial judges to “determin[e] the existence of cause for disqualification.”
Washington v. State, 425 Md. at 312.5
“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 v. State, ___Md. ___, ____, Slip op. No. 49,
2013 Term (filed February 21, 2014), at 4 (quoting Washington v. State, 425 Md. at 313).6
“The latter category is comprised of ‘biases directly related to the crime, the witnesses, or the
defendant.’” Id. (quoting Washington, 425 Md. at 313). “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.” Washington, 425 Md. at 313. “‘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.’” Id. at 312 (quoting
Rosales-Lopez v. United States, 451 U.S. 182, 188 (1981) (citation omitted in Washington).
5
The State repeats its argument, made below, that the answers the already seated jurors
would have given to Question 8 would have been more likely to be truthful than the answers
given by the venire panel members, as the seated jurors were under oath. The State
overlooks that the members of the venire panel took an oath to answer the questions posed
to them truthfully. See Md. Rule 4-312(e) (“The jurors’ responses to any examination [on
voir dire] shall be under oath.”).
6
Md. Code (2006 Repl. Vol.), section 8-103 of the Courts & Judicial Proceedings
Article sets forth the qualification criteria for jury service.
8
As Hernandez makes clear, a prospective juror with bias against a criminal
defendant’s race, ethnicity, or cultural heritage is not qualified to sit on that defendant’s jury
and therefore a requested voir dire question designed to uncover such bias in a prospective
juror is mandatory. Washington, 425 Md. at 315 (quoting the discussion in Curtin v. State,
393 Md. 593, 609-10 n.8 (2006), of subjects about which voir dire inquiry is mandated “if
directly related to the case” 7 ).
In the case at bar, what Hayes lost on account of the trial court’s error in refusing to
pose Question 8 was the opportunity to learn, at the time material to the jury selection
process, whether any prospective juror’s ability to be fair and impartial would be affected by
the fact that he is African-American. This is a critical loss, because it affects the “ultimate
goal” of voir dire, which is “to obtain jurors who will be ‘impartial and unbiased.’” Moore
7
It is the “directly related to the case” language used in Curtin and quoted in
Washington to which the State points to suggest that the Court of Appeals has moved away
from the holding in Hernandez that a racial, ethnic, or cultural bias voir dire question, if
requested by the defendant, must be posed on voir dire. See also Stewart v. State, 399 Md.
at 161 n.5 (referring to mandatory areas of inquiry when the area is “reasonably related to the
case before the court”). As noted, supra, at n.4, we disagree. The Hernandez opinion itself
qualified the mandatory nature of the question by saying it “ordinarily” must be posed. We
take that and the “directly related to the case” and “reasonably related to the case” language
to mean that the question must be posed if it is relevant. For instance, a question whether a
prospective juror has a bias against Hispanics in a case in which the defendant is not
Hispanic, is not related to or associated with anyone Hispanic, in which there are no Hispanic
witnesses, and in which Hispanic heritage has no role probably would not be relevant to
uncovering bias, certainly against the defendant, and therefore would not be required to be
asked. Here, Question 8 stated that Hayes is African-American and asked whether there was
anyone on the venire panel with a bias against African-Americans. The question plainly was
relevant and therefore the trial court was required to pose it either verbatim or in generic
form, as phrased in Hernandez.
9
v. State, 412 Md. 635, 645 (2010) (quoting Dingle v. State, 361 Md. 1, 9 (2000)). Although
in Maryland, unlike in almost all the other states, voir dire is not for the purpose of intelligent
exercise of peremptory challenges, see Pearson, supra, at 4, and for that reason almost
always is conducted by the court, not by counsel, the manner in which the court conducts voir
dire can be and often is structured to encourage honest answers to embarrassing, sensitive,
or highly personal questions. On its own initiative or upon the request of counsel the trial
judge can bundle those questions with routine questions, so a “yes” response by a venire
member in front of the entire venire will not be revealing to the other potential jurors or
anyone else present in the courtroom. Any “yes” answer will result in the juror being
questioned individually at the bench.
Despite the limited nature of voir dire in Maryland, counsel are not mere bystanders
to the voir dire process. They observe the venire members answering questions; may with
permission pose follow-up questions; are entitled to move to strike potential jurors for cause;
and of course have a right to exercise peremptory challenges. A peremptory challenge may
be used by a lawyer to strike a potential juror who the lawyer does not think has given an
honest answer to a question, even though the trial judge thinks otherwise. Thus, the parties’
lawyers contribute substantially to the final make-up of the jury.
A mid-trial voir dire in which each juror would be asked Question 8 -- whether the
fact that Hayes is African-American would impact his or her ability to be fair and impartial --
would not serve as an adequate substitute for the voir dire that should have taken place.
10
Even if the question were posed to the jurors separately, it would be obvious to all the jurors
that they were being asked the same question, what each of their responses was, and whether
they were having difficulty answering the question. Question 8 does not concern an
objectively verifiable non-controversial topic, such as whether a juror ever lived in a
particular town or ever was employed by a particular company. It is highly subjective, and,
not only that, calls upon the juror to whom the question is posed to make a personal self-
assessment on a topic of great sensitivity. In today’s world, a truthful yes answer to that
question likely would be a source of embarrassment to the person giving the answer. A
prospective juror honestly could answer yes to that question, when the question is bundled
with routine voir dire questions, without the answer being known to the other prospective
jurors and people in the courtroom. A seated juror could not give the same answer without
it being known to the other seated jurors and people in the courtroom. Thus, the difference
in the circumstances in which the question is posed can affect a juror’s willingness to answer
the question honestly.
In addition, as Hayes points out, seated jurors who have heard evidence, in this case
the testimony of more than half the witnesses at trial, have watched the defendant at the trial
table, were chosen to be the decision-makers in the case, and have spent a day and a half as
“the jury” occupy a very different relationship to the case than do prospective jurors. The
prospective jurors at most have heard a short description of the case, have briefly seen the
defendant, and, obviously, have not been selected to be the decision-makers in the case and
11
have not formed any bond with others in that same decision-maker role. After a day and a
half of trial, seated jurors likely would have developed some ideas about the case, given that
they had seen the complete testimony of several witnesses whose credibility they were
supposed to be assessing. The trial experience itself may have caused the seated jurors to
want to remain on the jury. This could influence their answers to Question 8, either
consciously or subconsciously. With prospective jurors, voir dire takes place on a clean
slate. With seated jurors, it would not. For all these reasons, the “cure” the prosecutor
suggested for the trial court’s error in failing to pose Question 8 on voir dire would not have
been adequate, and therefore would not have been effective. It would not have placed the
defendant in the same position he would have been in had the error not been committed.
As noted, the State invokes the doctrine of “invited error” in arguing waiver. The
doctrine “stems from the common sense view that where a party invites the trial court to
commit error, he cannot later cry foul on appeal.’” State v. Rich, 415 Md. 567, 575 (2010)
(quoting United States v. Brannan, 562 F. 3d 1300, 1306 (11th Cir. 2009)). In the case at
bar, the error that is at the root of this appeal was not invited by Hayes -- it was invited by
the State, which objected to the trial court’s giving Hayes’s voir dire Question 8, to which
he clearly was entitled under Maryland law. Only because the State invited the trial court to
err, and then mid-trial realized that its objection (and the court’s ruling) had been in error,
did the State later ask for the court to engage in the suggested “cure” of posing Question 8
to the seated jurors after a day and a half of trial. The invited error doctrine has no relevance
12
to such a situation. Moreover, for the reasons we have explained, the “cure” proposed by the
State would not have been adequate or effective.
In its brief, the State does recognize the general proposition that a defendant who
refuses a trial court’s attempt to cure an error ordinarily does not lose his right to raise the
error on appeal. It points to Terry v. State, 332 Md. 329, 333-34 (1993), and Fleming v.
State, 194 Md. App. 76, 93 (2010), for this proposition, but argues that the case before us
should produce a different result.
In Terry, the defendant objected to the admission of evidence of a prior conviction.
The court offered to admit the evidence but with a limiting instruction informing the jurors
that it only was to be used by them to consider intent, knowledge, a common scheme, or a
reason for not pleading guilty.8 The defendant objected, arguing that the evidence was not
admissible for any purpose and the limiting instruction merely would highlight it. As a
consequence, the trial court admitted the evidence with no limitation on its use. On appeal
after conviction, the defendant challenged the admission of the prior conviction evidence.
The State responded that the defendant had waived his right to challenge that evidence on
appeal by not agreeing to the limiting instruction the trial court had offered to give. The case
went to the Court of Appeals, which held that there was no waiver:
The State argues that for strategic reasons defense counsel chose to “transform
an adverse ruling that could have been given a limited effect into a general
8
In opening statement, defense counsel had told the jury that the defendant had not
pleaded guilty because he had not committed the crimes (all of which were drug related).
13
defeat in the hopes of turning it to his advantage at trial or on appeal.” We fail
to see, however, how this decision not to accept the instruction constitutes a
waiver. It was clear to defense counsel that the proposed instruction could
have had the undesirable effect of highlighting the purposes suggested by the
trial judge. . .
It is of course true that the defendant could have agreed to the giving
of such an instruction without waiving his objection to the admissibility of the
evidence. That does not mean, however, that he necessarily gave up the right
to complain of an erroneous ruling by making the tactical decision that he
would be harmed rather than helped by a “limiting” instruction. We agree that
the evidence was inadmissible, and we hold that the instruction, if given,
would not have rendered the error harmless. Under these circumstances, the
defendant’s decision to forego the offered instruction does not constitute a
waiver of his right to later challenge the admissibility of the evidence.
332 Md. at 333-34. See also Fleming, 194 Md. App. at 93 (holding that “[a] defendant is not
required, as a matter of law, to agree to a limiting instruction at the risk of waiving an issue
for appellate review.”).
The State maintains that these cases are distinguishable because in each of them the
defendant had a “legitimate rationale” for opposing the limiting instruction, but here Hayes
did not have a legitimate rationale for opposing the State’s offered “cure” to the trial court’s
error under Hernandez. For the reasons we have just explained, Hayes in fact had a
legitimate rationale for opposing the offered “cure”: it would not have been adequate or
effective to undo the trial court’s error.
JUDGMENT OF THE CIRCUIT COURT FOR
PRINCE GEORGE’S COUNTY REVERSED. CASE
REMANDED TO THAT COURT FOR FURTHER
PROCEEDINGS. COSTS TO BE PAID BY PRINCE
GEORGE’S COUNTY.
14