Curtin v. State

Dissenting Opinion by BELL, C.J., which RAKER, J., joins.

In State v. Thomas, 369 Md. 202, 798 A.2d 566 (2002), defense counsel proposed to ask the venire panel, “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?” 369 Md. at 204, 798 A.2d at 567. The trial court refused, ruling, instead, that the question was fairly covered by other questions asked in voir dire, namely whether any members of the venire had formed an opinion or had information about the case and whether there was any other reason why any panel member felt he or she could not be impartial. 369 Md. at 205, 798 A.2d at 568. This Court held that the latter questions did not adequately probe the venire’s attitudes about drug offenses. We opined:

“A question aimed at uncovering a venire person’s bias because of the nature of the crime with which the defendant is charged is directly relevant to, and focuses on, an issue particular to the defendant’s case and, so, should be uncovered.”

369 Md. at 214, 798 A.2d at 573. We held that the defendant had the right to a question specifically aimed at uncovering a bias due to the nature of the crime with which he was charged, and, accordingly, that the trial court abused its discretion when it refused to ask the requested voir dire question. 369 Md. at 214, 798 A.2d at 573.

In Sweet v. State, 371 Md. 1, 806 A.2d 265 (2002), a case involving the sexual abuse of a minor, during voir dire, the defendant requested that the trial court ask the venire: “Do the charges stir up strong emotional feelings in you that would affect your ability to be fair and impartial in this case?” The trial court declined to pose the question. We held that Thomas was applicable and controlling, concluding that the proposed inquiry was directed at biases related to the charged *616criminal act, that, if uncovered, “would be disqualifying when they impaired the ability of the juror to be fair and impartial.” 371 Md. at 10, 806 A.2d at 271. We further concluded that the trial court abused its discretion in failing to pose the requested voir dire question, and that the defendant was entitled to a new trial. 371 Md. at 10, 806 A.2d at 271.

Despite this clear precedent, today this Court’s majority affirms the trial court’s refusal to propound to the venire the question, “Does anyone have any strong feelings concerning the use of handguns that they would be unable to render a fair and impartial verdict based on the evidence?” 393 Md. 593, 595, 903 A.2d 922, 923 (2006). And, notwithstanding that, except for the crime described, the question in this ease was essentially identical to the questions, as to which the failure to ask was deemed error, in Thomas and Sweet, the Court reasons, “because the question was not one that, if answered in the affirmative, would have provided a basis for a strike for cause in the instant case, the trial court did not abuse its discretion in denying the requested voir dire question.” Id. at 595, 903 A.2d at 924. This rationale, joined by the concurring opinion of Judge Wilner, is that finding error in this case would be a departure from our existing case law. Id. at 613, 903 A.2d at 393; 393 Md. at 613, 903 A.2d at 934 (Wilner, J., concurring).

There is a lot to be said for Judge Wilner’s concurrence in this case. It makes the point, and quite well, that this Court already has required voir dire questions designed to ferret out bias, arising from and/or based on certain charged offenses, that, in that regard, this Court already has embarked on and endorsed, an approach different from that espoused and touted as the approach our existing case law supports. Acknowledging our decisions in Thomas and Sweet, he recognizes the unreasonableness in presuming that the crimes at issue in those cases “are the only kinds of crimes about which public emotion may run high.” 393 Md. at 613, 903 A.2d at 934 (Wilner, J., concurring). In addition, Judge Wilner concedes that the additional voir dire required to inquire into charged crime bias is not likely to be lengthy or cause undue trial *617delay. 393 Md. at 614, 903 A.2d at 935 (Wilner, J., concurring). While I do not share Judge Wilner’s cynicism with respect to the truthfulness of the venirepersons when answering the question whether they have a potentially disqualifying bias regarding the crime or crimes actually charged,1 I do agree that the number of responses are not likely to be overwhelming. I also agree that, to the extent that there are affirmative responses, the follow-up questions that the court will be required to ask, likely to be few in number, “will serve precisely the function of voir dire that we have traditionally blessed.”2 393 Md. at 614, 903 A.2d at 935 (Wilner, J., concurring). Judge Wilner also seems to appreciate that the expansion of voir dire to take account of charged crime bias will not be unduly burdensome:

“We have essentially taken judicial notice that some people may have particularly strong feelings about narcotics crimes. Is it not equally likely that some will have the same strong feelings about other crimes—burglary, robbery, rape, arson, not to mention murder. Some may be incensed over gambling or prostitution, or wanton, vicious assault, or cruelty to animals, or fraud. If the question is phrased as here—whether the prospective juror has such strong feelings about the crime as to make it difficult (or impossible) to *618weigh the facts fairly—what difference does it make what the crime is?”

393 Md. at 614, 903 A.2d at 935 (Wilner, J., concurring).

The concurring opinion on these points is, for the most part, correct. To that extent, I agree with it. My quarrel is with how Judge Wilner resolves these concerns. He would achieve the result the defendant seeks in this case and expand it to other crimes that might engender strong emotional reactions prospectively, by Rule. He admits, in that regard, his difficulty in discerning “how any kind of detailed line-drawing will work ...—how a question aimed at Crime A is required but not a question aimed at Crime B.” 393 Md. at 614, 903 A.2d at 935 (Wilner, J., concurring). The preference for the Rules approach, we are told, lies in the opportunity it affords the Court to frame an acceptable question, perhaps not mandated, to address the bias issue. 393 Md. at 614, 903 A.2d at 935 (Wilner, J., concurring).

Judge Wilner’s logic dictates that this Court do in this case what it did in Thomas and Sweet, and recognize the court’s refusal to pose the question requested by the defense for what it was, an error. Having acknowledged that the Court has already entered the area and declared error in two cases involving different crimes and conceding, as I submit, he must, that there are other crimes that likely will engender, in some members and segments of the public, strong emotional reaction, thus undermining the rationale of the majority opinion, joining the majority simply does not follow. Nor does making the solution—the second deviation or departure from our case law as Thomas and Sweet are, like it or not, a part of our case law, and are precedents that have not been overruled—prospective by having the Court promulgate a rule follow, make sense, or serve the purpose of fairness. This ruling does not give relief to the defendant before the Court in this case, and I fail to see how referring this matter to the Rules Committee will assist the line drawing. The line drawing is ours to do and we are as prepared to do so now as we will be later. I see no reason to wait for a Rule on this issue; visibility is, if an issue at all, a minor one. The trial courts, as a result of *619Thomas and Sweet, already know how to ask this question, and do not need further instruction.

We already have decided and agreed that certain crimes— we have specifically singled out child sexual offenses and narcotic offenses—may trigger sufficiently strong reactions in potential jurors as to make questionable their ability to render a fair and impartial verdict. If, in narcotics and child sex abuse cases, inquiry of the venire is required because we have determined those crimes to evoke strong emotional reactions which may amount to bias, why do we not recognize that there are other crimes that may evoke the same or more extreme reactions. It is unconscionable that we would inquire in some cases, those we have specifically recognized, but refuse to do so in those other cases, simply because it might take too long and perhaps because it may be too difficult to decide which cases fall into the Thomas and Sweet category. Under that regime, the Court is allowing two categories of cases to be targeted, while allowing the vast majority to go unchecked for possible bias. The answer is clear; we must require, as a matter of policy, trial courts to ask, in every criminal trial, whether the prospective juror has such strong feelings about the charged crime as to make it difficult or impossible to weigh the facts fairly.

Like the concurrence, I agree that voir dire should be limited in nature, and that asking potential jurors whether they possess bias in regards to the crime or crimes charged would not result in any substantive delay of trial. I depart from the concurrence because I believe that we should follow our precedents; a Rule is simply unnecessary.

I would reverse.

Judge RAKER joins in the views herein expressed.

. My experience, ten years, as a trial judge, is that the vast majority of venirepersons take seriously the oath and endeavor mightily, even at the risk of embarrassment, to answer truthfully the questions put to them. I have had venire persons—not a lot, to be sure—admit to having strong feelings, arising in some instances to the level of bias, about crimes other than narcotics and child sex offenses, not in the context here presented, but when responding to the "victimization” question.

. The number of affirmative responses likely to be elicited and, therefore, the number of venirepersons who will have to be questioned on the subject, is just not my major concern, nor should it be this Court's. I am concerned that we ferret out bias that would affect the fairness of the defendant’s trial adversely. Thus, I do not believe that the expansion of the voir dire to address charged crime bias will appreciably prolong the process, and, if the expansion serves the function of ensuring a fair trial, the amount of time it takes is secondary, or should be; concerns regarding time should not drive, or be the decisive factor in, the process.