Stewart v. State

Dissenting Opinion by

BELL, C.J.

This case highlights, in my opinion, a lack of consistency in this Court’s rulings regarding voir dire questions that are designed to discover a potential juror’s bias with respect to the crime for the commission of which the defendant has been charged and for which he or she is being tried. As proposed by the petitioners, the question presented is:

“Did the trial court err in failing to inquire into and ferret out whether any potential jurors harbored any potential bias towards those charged with sexual acts or homosexual acts with minors?”

Although it acknowledges that the “better” practice is to ask the question, the majority holds that, by not asking such a question in this case, the trial court did not err.1 It states that the questions proposed by the petitioner in this case were “speculative, inquisitorial, catechizing, ‘fishing,’ ‘open-ended,’ sentencing related, or law based questions,” 399 Md. at 163, 923 A.2d at 54, and, thus, go beyond the type of questions designed to ferret out bias or assess impartiality. While the majority’s rationale with regard to some of the questions proposed by the petitioner has merit, the fact remains that the trial court did not ask any questions that were designed to discover the bias a potential juror may have as to the particu*169lar crime charged, in this case, the sexual abuse of minors. If asking such questions are “sound practice,” one must ask: why is it not a required practice, especially given the precedents in this State?

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 to propound the question, concluding that it had been fairly covered by other voir dire questions, 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 did not agree. Opining:

“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 have a question propounded 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, the defendant asked the trial court to inquire of the venire during voir dire: “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 refused. We held that Thomas was applicable and controlling, concluding that the proposed inquiry was directed at biases related to the charged criminal act, that, if uncovered, “would be disqualifying when they impaired the ability of *170the juror to be fair and impartial.” 371 Md. at 10, 806 A.2d at 271. Thus, we concluded, the trial court abused its discretion in failing to propound the requested voir dire question, and the defendant was entitled to a new trial. 371 Md. at 10, 806 A.2d at 271.

Despite this clear precedent, this Court, in Curtin v. State, 393 Md. 593, 619, 903 A.2d 922, 938 (2006), held that a trial court who refused to ask whether “anyone [has] any strong feelings concerning the use of handguns that they would be unable to render a fair and impartial verdict based on the evidence,” did not abuse its discretion. In the case sub judice, the majority does likewise, even though it, like Sweet, involves sexual abuse of a minor.

Article 21 of the Maryland Declaration of Rights guarantees criminal defendants an impartial jury trial.2 Bristow v. State, 242 Md. 283, 289, 219 A.2d 33, 36 (1966). The guarantee is not that the juror will not have formed or expressed an opinion with regard to the matter at issue, only “that he shall be without bias or prejudice for or against the accused, and that his mind is free to hear and impartially consider the evidence, and to render a verdict thereon without regard to any former opinion or impression existing in his mind, formed upon rumor or newspaper reports.” Garlitz v. State, 71 Md. 293, 300, 18 A. 39, 41 (1889). See Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1643, 6 L.Ed.2d 751, 756 (1961); Bristow, 242 Md. at 288-289, 219 A.2d at 36; Kujawa v. Baltimore Transit Co., 224 Md. 195, 201, 167 A.2d 96, 98 (1961); Newton v. State, 147 Md. 71, 76, 127 A. 123, 126 (1924).

*171Critical in ensuring Article 21’s guarantee is the voir dire of the venire, to exclude potential jurors for whom there exists cause for disqualification. Dingle v. State, 361 Md. 1, 9, 759 A.2d 819, 823 (2000), Boyd v. State, 341 Md. 431, 435, 671 A.2d 33, 35 (1996), Hill v. State, 339 Md. 275, 279, 661 A.2d 1164, 1166 (1995). This Court has noted that “one of the ways to protect a defendant’s constitutional right to an impartial jury is to expose the existence of factors which could cause a juror to be biased or prejudiced through the process of voir dire examination.” Jenkins v. State, 375 Md. 284, 331, 825 A.2d 1008, 1035-1036 (2003). Thus, voir dire questions focus on the venire person’s state of mind and, specifically, on whether there is some bias, prejudice, or preconception. State v. Thomas, 369 Md. 202, 210, 798 A.2d 566, 570 (2002).

Accordingly, a defendant is entitled to have the trial judge ask voir dire questions aimed at uncovering that prejudice, including any bias arising out of the nature of the crime with which the defendant is charged. Thomas, 369 Md. at 214, 798 A.2d at 573 (citing Alexander v. R.D. Grier & Sons Co., 181 Md. 415, 419, 30 A.2d 757, 759 (1943)).

This case involves the sexual abuse of a minor by an adult, where the adult defendant was also a highly ranked and visible member of the church. The potential for bias, prejudice, or preconception in such a case is patent. As Judge Wilner stated in his concurrence in Curtin:

“It is obviously not reasonable to presume that [narcotics violations and sexual abuse of a minor] are the only kinds of crimes about which public emotion may run high. Surely, there are others. Having found that those kinds of criminal activity may so enrage prospective jurors as to require specific voir dire questions to ferret out possible bias, what standard will the Court use to distinguish one crime from another?
“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, *172arson, 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 weigh the facts fairly-what difference does it make what the crime is?”

Curtin v. State, 393 Md. at 614, 903 A.2d at 934-935 (Wilner, J., concurring).

I could not agree more. Why, given our previous rulings in Thomas and Sweet, are trial courts still allowed to avoid questions designed to uncover any bias a potential juror may have with respect to the specific crime charged? The trial court in this case did not ask anything which even remotely sought to uncover any such bias. The closest the trial court came was when it asked:

“Do any of you, ladies and gentleman, hold any religious, philosophical or personal beliefs that would prevent you from reaching a fair and impartial verdict based solely on the evidence presented in the court? If so, please stand.” “Finally, do any of you have any reason that I have not gone into why you believe you could not sit as a juror in this case and return a fair and impartial verdict based solely on the evidence presented here in court? If so, please stand.”

Having asked these questions, the trial court felt its job was done:

“Everything that has been requested I would say has been fairly covered. We don’t deal in possibilities which are things that begin with the word ‘may,’ or ‘might,’ or ‘could.’ I will not ask anymore.”

But these questions are a far cry from what we required in Thomas and Sweet.

As stated earlier, voir dire questions focusing on the venire person’s state of mind are designed specifically to determine whether that person has some bias, prejudice, or preconception. Thomas, 369 Md. at 210, 798 A.2d at 570. Thus, questions that target a specific attitude or bias about, with *173respect to, or toward the specific charges on trial, should be required. While it may be desirable, and makes a better case, when such questions are requested explicitly in terms of whether the venire person has such strong feelings as to make it difficult, fairly and impartially, to weigh the facts at trial, the lack of such a request should not be disqualifying or dispositive. As I stated in my dissent in Curtin, “The trial courts, as a result of Thomas and Sweet, already know how to ask this question, and do not need further instruction.” 393 Md. at 618, 903 A.2d at 937 (Bell, C.J., dissenting).

Because potential jurors may not outwardly admit or even recognize that they are biased, it is incumbent upon the trial court to ensure that an impartial jury is empaneled.

While I agree that the manner of conducting the voir dire and the scope of the 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, certain topic areas require a heightened inquiry.

Interestingly, this case does not even the require, as Judge Wilner and I argued in Curtin, that requiring questions that target bias as to the specific crime charged should be expanded to include any crime-the crime alleged and charged in the case sub judice is already covered by Sweet. This ruling adds additional confusion to an already confusing and increasingly inconsistent line of cases.

I dissent.

. In a footnote, it cautions:

"[W]e think it sound practice, and one the trial judges should follow, to ask prospective jurors, when asked to do so, whether the fact that the defendant is charged with a particular crime would affect their ability to be fair and impartial in the case or whether they have such strong feelings about the crime charged that they could not be fair and impartial and decide the case based solely on the evidence presented.”

Stewart v. State, 399 Md. 146, 167 n. 6, 923 A.2d 44, 56 n. 6 (2007).

. Article 21 of the Maryland Declaration of Rights provides

“Rights of accused; indictment; counsel; confrontation; speedy trial; impartial and unanimous jury.
"That in all criminal prosecutions, every man hath a right to be informed of the accusation against him; to have a copy of the Indictment, or charge, in due time (if required) to prepare for his defence; to be allowed counsel; to be confronted with the witnesses against him; to have process for his witnesses; to examine the witnesses for and against him on oath; and to a speedy trial by an impartial jury, without whose unanimous consent he ought not to be found guilty.” (Emphasis added).