Curtin v. State
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Raymond Alan Curtin v. State of Maryland, No. 114, September Term, 2005. CRIMINAL PROCEDURE - VOIR DIRE Petitioner sought review of the Court of Special Appeals judgment affirming the trial judge s refusal to propound petitioner s voir dire question inquiring whether any of the veniremen had strong feelings concerning the use of handguns that they would b e unable to render a fair and impartial verdict based on the evidence. The C ourt of Appeals held that the trial judge did not abuse his discretion in refusing to propound the question because an affirmative answer th ereto would n ot have pro vided a ba sis for a strike for cause based upon the cha rges ag ainst the petition er. IN THE COURT OF APPEALS OF MARYLAND No.114 September Term, 2005 RAYM OND ALAN CURT IN v. STATE OF MARYLAND Bell, C. J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Battaglia, J. Wilner, J. Concurs Bell, C.J., and Raker, J. Dissent Filed: July 31, 2006 Petitioner, Raymond Alan C urtin, asks us to determine whether the trial court abused its discretion when it refused to ask his proposed jury voir dire question, Does anyone have any strong feelings concerning the use of handgu ns that they wo uld be una ble to rende r a fair and impartial verdict based on the evidence? 1 We hold that, 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 n ot abuse its d iscretion in de nying the requ ested voir dire question and therefore affirm the judgment of the Court of Special Appeals. I. Background On April 25, 2 003, at app roximately 1:3 0 in the afternoon, two masked men entered the First Union Bank in Bowie, Maryland, and ordered everyone to get down. While one of the masked men stood by the entrance to the bank with a gun, the other jumped over the counter and ordered the tellers to give him the money and no one will get hurt. After emptying all of the tellers cash drawers, the two men fled the bank. Mr. Curtin was subsequently arrested and charged with three counts of robbery with a deadly weapon in violation of Section 3-403 of the Criminal Law Article,2 three counts of 1 We granted certiorari to address Mr. Curtin s question: Whether the trial court erred by refusing to ask defendant s proposed voir dire questions regarding potential juror bias on the subject of guns. 390 Md. 50 0, 889 A.2d 41 8 (2006). 2 Maryland Code (2002), Section 3-403 of the Criminal Law Article provides: (contin ued...) robbery in violation of Section 3-402 of the Criminal Law Article,3 six counts of first degree assault in violation of Section 3-202 of the Criminal Law Article,4 six counts of the use of a handgun in the commission of a crime of violence in violation of Section 4-204 of the Criminal Law Article,5 and one count of common law conspiracy. 6 Mr. Curtin proposed 2 (...continued) Robbery with a Dangerous W eapon (a) Prohibited. A perso n may not co mmit or attem pt to comm it robbery under § 3 -402 of th is subtitle with a dangerous weapon. (b) Penalty. A person who violates this section is guilty of a felony and on conviction is subject to imprisonment not exceeding 20 years. 3 Maryland C ode (200 2), Section 3 -402 of th e Crimina l Law A rticle states: Robbery (a) Prohibited. A perso n may not co mmit or attem pt to comm it robb ery. (b) Penalty. A person who violates this section is guilty of a felony and on conviction is subject to imprisonment not exceeding 15 years. 4 Maryland Code (2002 ), Section 3-2 02 of the C riminal Law Article states in relevant part: Assault in the first degree. (a) Prohibited. (1) A person may not intentionally cause or attempt to cause serious ph ysical injury to another. (2) A person may not commit an assault with a firearm, including: (i) a handgu n, antique fir earm, rifle, shotgun, short-barreled shotgun, or short-barreled rifle, as those terms are define d in § 4-201 of this article. 5 Maryland Code (2002 ), Section 4-204 of the Criminal Law Article states in relevant (contin ued...) 2 twenty-one voir dire questions, one of which queried: Does anyone hav e any strong f eelings con cerning th e use of handguns that they would be unable to render a fair and impartial verdict based on the evidence? The trial judge refused to ask the handgun question; however, after a brief elucidation of the facts, posed a number of voir dire questions, which included: In this case the S tate alleges tha t on April 25 th , 2003, at approximately 1:30, the def endant alo ng with a c o-defend ant, 5 (...continued) part: Use of a handgun or antique firearm in commission of crime. (a) Prohibited. A person may not use an antique f irearm capable of being concealed on the person or any handgun in the commission of crime of violence, as defined in Article 27, § 441 of the Code, or any felony, whether the antique firearm or handgun is operable or inoperable at the time of the crime. Maryland C ode ( 195 7, 1996 R epl. Vol.), § 4 41 of A rticle 27 states in relevant pa rt: (e) Crime of violence. Crime of violence means: *** (12) robb ery; (13) robbery with a dangerous or deadly weapon; *** (n) Handgun. Handgu n means any firearm with a barrel less than 16 inches in length includ ing signal, starter, and blank pistols. 6 At common law, the crime of conspiracy consists of an understanding or plan between two or more p ersons to com mit an u nlawf ul act. Piracci v. Sta te, 207 Md. 499, 51516, 115 A.2d 2 62, 269 (1955 ). 3 who is not on trial tod ay, robbed, at gu n point, the First Union Bank on Annapolis Road in Bowie, Prince Geo rge s Co unty, Maryland. *** Has any member of the jury pane l ever w orked i n a ban k, a quick market such as the 7-Eleven or Wa-Wa, or other such establishme nt? *** Does any m emb er of the ju ry panel belong to, su pport, contribute to, or have any association with any group or organization that has among its purp oses taking an advocacy position to influence the government on issues relevant to the criminal justice system, for example, Mothers Against Drunk Drivers, Studen ts Aga inst Dru nk Dr ivers, the NRA , the Stephanie Roper Committee, and the like? *** Does any members of the jury panel have any ethical, moral or religious obligation which would prevent you from sitting as a juror in this case? *** Has any member of the jury panel or members of your immediate family ever been the victim of a crime, or arrested for, charged with or convicted of a crime, excluding routine motor vehicle violations? Throughout his trial, Mr. Curtin maintained he was not a participant in the robbery and, alternatively, that the gun used in the robbery was not a real gun. The jury convicted him on all counts, and the trial judge sen tenced him to twenty-five years in prison without the possibility of parole and an additional five years of supervised probation with drug and 4 alcohol counseling . Mr. Curtin thereafter file d a timely motio n for recon sideration of his sentence, which was denied, and he subsequently noted an appeal to the Court of Special Appeals. In a published opinion, the Court of Special Appeals held that it was not an abuse of the trial judge s discretion to refuse to ask Mr. Curtin s handgun question. 165 Md.App. 60, 884 A.2d 758 (2005). In reaching this conclusion, the court noted that a trial judge, when deciding whether to ask a requested voir dire question, must assess whether there is a reasonab le likelihood that the proposed question would reveal a basis for disqualification and also balance the time and judicial resources required to pose the question against the likelihood that the question would evoke a response reflecting bias or impa rtiality. Id. at 68, 884 A.2d at 763. The intermediate appellate court concluded that the question was not mandated because the jury was not required to analyze the reasonableness or justifia blenes s of th e use of the gun in the ins tant case . Before this Court, Mr. Curtin argues the use of a handgun is an essential element of the crimes in the present case because the indictment charged him with multiple counts of armed robbery, use of a hand gun in the commission of a crime of violence and first degree assault, and therefore a question pertaining to biases against handguns was appropriate. Mr. Curtin maintains that his defense at trial was that the State had not proven that the handgun used in the robbery was a real handgun. Moreover, Mr. Curtin claims that the Court of Special Appeals applied the wrong standard to determine whether the trial judge should have 5 asked his proposed handgun question because the court held that a question regarding the jurors emotions only must be asked if those emotions necessarily would affect the venireme n s ability to render an im partial verdict, whereas, he asserts, the correc t standard to be applied is whethe r there is any likelihood that emotions would affect the venireman s ability to render an impartial verdict. Mr. Curtin contends that the correct standard requires that the trial court ask his proposed question because it was aimed at uncovering whether the veniremen harbored biases that were likely, rather than n ecessarily, to affe ct their ability to render a fa ir and impa rtial verdict. Con vers ely, the State argues that the trial court is only required to ask a voir dire question if it focuses on issues particular to the defendant s case and relates to the alleged criminal acts. In this case, the State contends, a question regarding bias against handguns was not necessary because the use of the handgun was peripheral to a de termination of M r. Curtin s criminal culpability. According to the State, whether a juror is biased against the use of a hand gun wo uld not hav e made h im or her more or less likely to have found M r. Curtin guilty of any of the charges for which he was convicted, regardless of whether the juror believed the gun to ha ve been real. Therefore, the State asserts that the handgun question was not required. Nonetheless, the State also alleges that, even if the question was required, the trial judge adequately addressed the issue of bias against handguns by propounding other questions to the venire. II. Discussion 6 In this case w e must dete rmine w hether the trial ju dge abus ed his discre tion in refusing to propound Mr. Curtin s voir dire question designed to elicit information regarding whether any of the veniremen harbored strong feelings concerning the use of handguns such that they would have been unable to render a fair and impartial verdict based on the evidence. State v. Thomas, 369 M d. 202, 204 , 798 A.2d 566, 567 (2002); Boyd v. S tate, 341 Md. 431, 433, 671 A.2d 33 , 34 (1996 ); Casey v. Roman Catholic Archbishop of Ba ltimore, 217 Md. 595, 605, 143 A.2 d 627, 63 1 (1958); Alexander v. R. D. Grier & Sons Co., 181 Md. 415, 419, 30 A.2d 757, 759 (194 3); Cohen v. State, 173 Md. 216 , 195 A. 532 (19 37); Whittemore v. State, 151 Md. 309 , 314, 134 A. 322 , 323 (1926). Voir dire is the prim ary mechan ism throug h which the constitutio nal right to a fair and impartial jury, guaranteed by the Sixth Amendment to the United States Constitution and Article 21 of the Maryland Decla ration o f Righ ts, is prote cted. Thomas, 369 Md. at 206, 798 A.2d at 568; see also B oyd v. State , 341 Md. 431, 435, 671 A.2d 33, 35 (1996 ); Couser v. State, 282 Md. 125 , 138, 383 A.2d 3 89, 396-97 (197 8); Grogg v. State, 231 Md. 530, 532, 191 A.2d 435, 436 (196 3). It is the proce ss in which prospective jurors are examined through the use of qu estions prop ounded by the judge o r either of the parties to determine the existence of any bias or prejudice and, literally translated, means to say the truth. Bedford v. State, 317 Md. 659, 670, 566 A.2d 111, 116 (1989). The voir dire process is governed by Maryland R ule 4-312 , which pro vides in per tinent part: (d) Examination of jurors. The cou rt may permit the parties to conduct an examination of prospective jurors or may itself 7 conduct the examination after considering questions proposed by the parties. If the court conducts the examination, it may permit the parties to su pplemen t the examination by further inquiry or may itself submit to the jurors additional questions proposed by the parties. The jurors responses to any examination shall be under oath. Upon request or any party the court shall direct the clerk to call the roll of the panel an d to request each juror to stand and be identified when called by name. After a prospective juror is questioned, both the State and the defendant have the opportun ity to exercise two types of challenges, those for cause and peremptory challenges. Peremptory challenges , as defined by Judge Joh n C. Eldrid ge, writing f or this Cou rt in Gilchrist v. State, 340 Md. 606 , 667 A.2d 876 (1995), are challenges exe rcised w ithout a reason stated, w ithout in quiry, . . . without being subject to the court s control and for either a real or imagined partiality that is less easily designated or demonstrable than that required for a challenge for cause. Id. at 619-20, 667 A.2d at 882, quoting Swain v. S tate of Alabama, 380 U.S. 202, 220, 85 S.Ct. 824, 836, 13 L.Ed.2d 759, 772 (1965). The number of peremptory challenges afforded a litigant is governed by Section 8-301 of the Courts and Judicial Proceedings Article and Maryland Rule 4-313.7 Conversely, cause challenges 7 Maryland Code (1974, 2002), Section 8-301 of the Courts and Judicial Proceedings Article provides: (a) Cases involvin g death . In a trial in which the defenda nt is subject, on any single count, to a sentence of death because notice of intention to seek a sentence of death has been given under § 2-202 o f the Crim inal Law Article, each def endant is permitted 20 peremptory challenges and the State is permitted (contin ued...) 8 7 (...continued) 10 perem ptory challeng es for each defenda nt. (b) Cases inv olving life imp risonmen t. In a criminal trial in which the defendant is subject, on any single count, to a sentence of life impr isonmen t, including a case in which notice of intention to seek a sentence of death has not been given under § 2-202 of the Criminal Law Article, except for common law offenses for which no specific penalty is provided by statute, each defendant is permitted 20 peremptory challenges and the State is permitted 10 perem ptory challeng es for each defenda nt. (c) Cases involving sentences of 20 years o r more . Except as provided in subsectio ns (a) and (b ) of this section, in a criminal trial in which the defen dant is subje ct, on any single count, to a sentence of 20 years or more, except for common law offenses for which no specific penalty is provided by statute, each defendant is permitted 10 peremptory challenges and the State is permitted 5 perempto ry challenges f or each de fendant. (d) Other criminal cases. In all other criminal cases, each party is permitted 4 peremptory challenges. (e) Clerk to furnish sufficient number of names. The clerk of the court shall provide a sufficient number of prospective jurors to allow the parties to exercise the peremptory challenges permitted by this section or the Maryland Rules. Maryland R ule 4-313 provides in pertinent pa rt: (a) Number. (1) Generally. Except as otherwise provided by this section, each party is permitted four peremptory challenges. (2) Cases involving death or life imprisonment. Each defendant who is subject on any single count to a sentence of death or life imprisonm ent, except when charged with a common law offense for which no specific penalty is provided by statutes, is permitted 20 peremptory challenges and the State is permitted ten perem ptory challeng es for each defenda nt. (3) Cases involving imprisonment for 20 years or more, but less than life. Each de fendant w ho is subject on a ny single coun t to a sentence of imprisonment for 20 years or more, but less than (contin ued...) 9 permit rejection of jurors on a n arrowly spec ified, prova ble and leg ally cognizable basis of partiality, Johnson v. State, 9 Md.App . 143, 150, 262 A .2d 792, 796 (197 0). The scope of voir dire has been defined as either limited, in which questions are restricted to ascertaining the existence of cause of d isqualification, and for no other purpo se, or expanded, in which the trial judge is required to inquire about any subject matter which may be reas onably re lated to th e intellige nt exerc ise of p eremp tory challe nges. Davis, 333 Md. 27, 37, 39, 633 A.2d 867, 87 2-73 (1 993). In Handy v. State, 101 Md. 39, 60 A. 452 (1905), we exp ressly rejected the contention that a litigant po ssessed th e absolute and unqualifie d right . . . to interrog ate [a juror] a t pleasure . . . for the purpose of determining whether the right of peremptory challenge shall be exercised, and that the Court is bound to put to the juror any question which counsel may reques t the Co urt to pu t, and adopte d a limite d role fo r voir dir e. Id. at 40, 60 A. at 453. Ackno wledging that there are decisions to the contrary in other courts of equal authority and reputation, we premised our decision to reject expanded voir dire, as a basis for peremptory strikes, on our findings that such an approach generated questions which were speculative, inquisitorial, catechising and fishing, Whittemore, 151 Md. at 313-14, 134 A. at 323, and, in effect, offensive to the jurors, and also that such voir dire was much more time consu ming and therefo re wasteful 7 (...continued) life, except when charged with a common law offense for which no specific pe nalty is provided by a statute, is perm itted ten peremptory challenges and th State is permitted five perem ptory challenges for each d efendan t. 10 of judicial r esourc es. Handy, 101 M d. at 43, 60 A. at 454. We determined that the better policy was to limit the scope of voir dire at the discretion of the trial judge, w ho wou ld only propound questions that were req uired to ascertain [the jurors ] compete ncy, but a lso . . . as may test their impartiality, prejudice, or bias. Id. at 42-43, 60 A. at 454, quoting Powers v. Presgroves, 38 Miss. 240, and affirmed the denial of specific voir dire questions, stating: [T]here was another all sufficien t reason for the [trial court s] ruling. [The question] was susceptible of only two answers either that he was, or was not, a married man - and in either event the answer is clearly immaterial. . . . The record shows that the [defendant] killed his wife because he believed she allowed and encouraged improper attentions from one Thomas, but neither in law nor in common sense can it be supposed that competency to judge of the effect of such provocation is found exclusively in married men and if we may indulge in speculation as to the reason behind this question, imagination can suggest none more substantial than that we have hazarded. Id. at 44, 60 A. at 454. In Whittemore v. State, 151 Md. 309, 134 A. 322 (1926), we iterated the policy adopted in Handy prohibiting q uestions dire cted mere ly at aiding a party to exercise a peremptory challenge because such an approach created an unreasonable encumbering and prolongation of the work of securing a jury to proceed with trial, id. at 314, 134 A. at 323, and explic ated the rule a pplied to this d ay: The rule is, then, that q uestions no t directed to a specific reason for disqualification and exclusion by the court may be refused in the court s discretion. The nature and extent of the examination are to be de cided by the co urt in each c ase in its discretion, and on appeal the ruling w ill not be interfered with, unless there has been a clear abuse of that discretion. 11 Id. at 315, 1 34 A. a t 324. See also D ingle, 361 Md. 1, 10 n.8, 759 A.2d at 819, 824 n.8; Boyd, 341 Md. at 436, 671 A.2d at 35; Casey, 217 Md. at 605 , 143 A.2d at 631 . In conform ity with this rule, we noted that the trial judge should adapt the questions to the needs of particular cases, such that any circumstances which may reasonably be regarded as rendering a juryman unfitted for this service may be made the subject of questions, and a challenge for cause. Whittemore, 151 M d. at 315 , 134 A . at 324. In Corens v . State, 185 Md. 561, 45 A.2d 340 (1946), we addressed the propriety of the State s voir dire question inquiring whether the veniremen were capable of convicting the defendant based upon circumstantial evidence, rather than direct evidence, in a capital punishment case. We explained that, under the strictures of the rule set forth in Whittemore, questions posed during voir dire must focus on the veniremen s state of mind with respect to a particular issue which may provide a basis for bias: In other words, an examination of a prospective juror on his voir dire is proper as long as it is conducted strictly within the right to discover the state of mind of th e juror in respect to the matter in hand or any collateral matter reas onably liable to u nduly influen ce him . Id. at 564, 45 A.2d at 343. See also Thomas, 369 Md. at 207, 798 A.2d at 569; Davis, 333 Md. at 35-36, 63 3 A.2d a t 872; Bedford, 317 Md. at 671, 566 A.2d at 117. We concluded that the trial judge did not abuse his discretion in propou nding the q uestion bec ause it was directed towards d iscovering whether the venirem en wou ld be unwilling to convict only on circum stantial e videnc e. Corens, 185 Md. at 565, 45 A.2d at 344. 12 Almost a century after Handy, we revisited the policy reasons for adhering to the system of limited voir dire in Davis v. Sta te, supra, explaining: This Court initially adopted the rules concerning the scope of voir dire because a llowing m ore extensiv e inquiry wo uld undu ly tax the efficiency of Maryland s judicial system. Although some litiga nts m ight benefit f rom broa der m andatory voir dire, a greater number of citizens would be hindered due to the accompanying decline in the ir ability to gain prompt resolution of their litigation. In Handy and Whittemore, this Court decided that any such detrimental effects outweighed the marginal gains springing from un limited voir dire. Writing for the Court of Special Appea ls in the instant c ase, Judge M oylan vividly captured the esse nce of this polic y choice. I n comparing Davis s proposed system of expanded voir dire with Maryland s current system, Judge Moylan wrote the following: There is, however, an opposing school of thought that looks upon such indulgence as errant, if not grotesque, foolishnes s. . . . In terms of th e profligate waste of precious courtroom and human resources, it looks upon any fractional gain from unlimited voir dire as a minim ally incremental benefit that soon passes the point of diminishing returns. In a world of finite resources, if the fable day in court is permitted casually to multiply into twenty days in court, the inevitable consequ ence is that, by the inexorable law of mathe matics, ninete en other litigants are denied any time in court at a ll. . . . Davis, 333 Md. at 42, 633 A.2d at 874-75. In Davis, the defendant, on trial for the possession and distribution of controlled dangerous substance, requested a question regarding whether any of the jurors had been or was a memb er of the law enforcement community, or whether any close relative or friend was such a member. In emphasizing that the purpose of voir dire is to ascertain whether 13 there exists some bias, prejudic e, or precon ception tha t would im pair a venire man s ab ility to render an impartial verdict b ased so lely on the eviden ce pres ented, id. at 37-38, 633 A.2d at 872, we determine d that: [a]ssuming that t he co urt w ould have allo wed such an in quiry, an affirmative answer would not have established cause for disqualification. First, the fact that a prospective juror is or was a member of a law enforcement body does not automa tically disqualify that venire person. . . . Likewise, the mere fact that a prospective juror is related to or associated with members of the law enforcement community does not constitute cause for disqualification. In general, the professional, vocational, or social status of a prospective juror is not a dispositive factor establish ing c ause to disqua lify. Id. at 37, 633 A.2d at 872. Thus, only in those instances where there is a demon strably strong correlation between the status in question and mental state that gives rise to cause for disqualification is the trial court re quired to prop ound th e quest ion. Id. (emphas is added). In holding that the trial judge did not abuse his discretion in refusing to ask the proposed question ab out relationsh ips to law en forceme nt officers, w e noted tha t: where the parties identify an area of potential bias and prop erly request voir dire questions designed to ascertain jurors whose bias could interf ere with their ability to fairly and imp artially decide the issues, then the trial judge has an obligation to ask those questions of the venire panel. . . . Those voir dire questions, however, should be framed so as to identify potential jurors with biases which are cause for disqualification, rather than merely identifying potential jurors with attitudes or associations which might facilitate the exercise of peremptory challenges. Id. at 47, 63 3 A.2d at 877. 14 We further exp lored the disc retion entruste d to trial judges while conduc ting voir dire in Dingle v. S tate, 361 Md. 1, 759 A.2d 819 (20 00). On trial for robbery with a dangerous and deadly weapon and related charges, the defendant asked that the trial judge inquire as to whether any of the veniremen had experience as a victim of a crime, as an accused or as a convicted person, as a witness in a criminal case, as a petit juror in a criminal case, as a member of a grand jury, or as a member of any victims rights group, and whether they had any connection with the leg al profession or law enforcement. In posing the requested questions, however, the trial judge, presumably understanding that it is the correlation between the juror s statu s and his or h er state of m ind that is dispo sitive when the venire person s status is relevan t to his or her bias, conflated the questions regarding experiences and status with the State s requested question regarding whether those experiences or statuses would affect the v enireman s ability to be imp artial. Id. at 17, 759 A.2d at 827. Thus, the juror would not have disclosed his or her individual experience or status unless he or she had determined that it would impair his or h er impartiality. Examining the trial judge s questioning technique, we took the opportunity to expound upon the scope of the causal strike system, stating: [T]he strike for cause process encompasses the situations where the motion to strike is made on the basis of information developed during the voir dire process, not simply where the prospectiv e juror adm its an inability to be f air and imp artial. Id. at 17, 759 A.2d at 828. In order to meet this dual purpose, we iterated that the questions posed during vo ir dire 15 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. Id. at 10, 759 A.2d at 8 24. Thus, in determining whether to pose a requested voir dire question, the trial judge should first determine whether a demonstrably strong correlation [exists] between the status [or experience] in question a nd a men tal state that give s rise to cause f or disqu alificatio n. Id. at 17, 759 A.2d at 828 (emphasis added). We held that the trial judge s questioning methodology was an abuse of discretion because the two-part questions denied the defendant the opportunity to hear the veniremen s responses to the questions regarding status and experiences and shifted the burden of determining whether the venireman could be impartial to the venireman rather than the trial judge. More recently, in State v. Thomas, supra, the defen dant, on trial for the possession and distribution of a contro lled dange rous substa nce, reque sted and w as denied th e opportu nity to pose a voir dire question a t his trial inquiring whether: [A]ny member of the jury panel ha[s] such strong feelings regarding violations of the narcotics laws that it would be difficult for you to fairly and im partially weigh the facts at a trial where narcotics violations have been alleged? Thomas, 369 Md. at 20 4, 798 A.2d at 56 7. We reversed M r. Thomas s convictions based upon our determination that it was error for the judge not to have asked this question in light of our recognition that for decades narcotics laws have engendered strong feelings and reactions in th e populac e and stated that: 16 The in termed iate app ellate co urt s ana lysis is instru ctive. Relying on this Court s opinion in King v. State, 287 Md 530, 536, 414 A.2d 909, 912 (1980), in which we sta ted, [i]t is common knowledge that a significant segm ent of our s ociety believes, as a matter of public policy, that the criminal laws relating to marijuana should be mo dified in one w ay or ano ther, and Wainw right v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), explaining the proper standard for determining when a prospective juror may be excluded for cause because of his or her views on capital punish ment, the Court of Special Appeals notes that it is not extraord inary for most citizens to have a bias against proscribed criminal acts and that [p]rospective jurors with strong feelings about drugs are not uncom mon. Thomas,139 Md.App. at 203, 204, 775 A.2d at 415. After reviewing some of the literature addressing controversial alternatives to the nation's current drug prohibition laws, id. at 204, 775 A.2d at 41 5, the interme diate appellate court obse rves that the w ar on drug s continue s to be a household p hrase, id., reports that there is a view that the war can create biases that alter the impartial state of mind of a prospe ctive jur or, id. at 204-205, 775 A.2d at 417, and offers, citing a pendin g case in the Court of Special Appeals and the King case, evidence that voir dire questions on drug attitudes are effective in revealing strong feelings towards narcotics laws that may hinder a juror's ability to serve. Id. at 205, 775 A.2d at 416. Noting th at the areas of in quiry that must b e pursued , if reasonab ly related to the case at hand, entail potential biases or predispositions that prospective juro rs may hold w hich, if present, would hinder their ability to objectively resolve the matter before them, id. at 206, 7 75 A.2d at 417, citing and quoting Davis, 333 Md. at 3 6, 633 A.2d at 872, the Court of Special Appeals opines: Laws regulating and prohibiting the use of controlled dangerous substances harbor an unusual position w ith our criminal code, such that jurors may be biased because of strong emotions relating to the dang ers of narc otics and the ir negative effects upon our cities and neighborhoods, or, on the contrary, biases may exist because of passionate positions that 17 advocate the decriminalization of narcotics. Id. at 211- 13, 798 A.2d a t 571-7 2 (foo tnotes o mitted). The same type of reasoning held sway in Sweet v. Sta te, 371 Md. 1, 806 A.2d 265 (2002), in which the defenda nt, charged with second degree assault and third degree sexual offense against a minor, was denied his request that the jury panel be asked whether the charges stir up strong e motional f eelings in you that would affect your ability to be fair and impartial in the case. Id. at 9, 806 A .2d at 270-7 1. After rev iewing the national eff ort to address crimes of violence and molestation committed against children in the United States and Maryland s response thereto, we held that it was an abuse of discretion for the trial judge to refuse to ask the proposed question because allegations of sexual abuse o f a minor are capable of evoking strong feelings which, if uncovered, could constitute grounds for disqua lification . Id. at 10, 80 6 A.2d at 271. In the case sub judice, the question propounded by Mr. Curtin regarding strong feelings about the use of a handgun does not involve any of the areas for which we have mandated inqu iry. 8 Rather, Mr. Curtin urges us to hold that because he was alleged to have 8 These areas ar e: race, e thnicity, or c ultural h eritage, Hernan dez v. State, 357 Md. 204, 232, 742 A.2d 952, 967 (1999) ( Where a voir dire question h as been p roperly requested and directed to bias ag ainst the a ccus ed s race , ethn icity, or cultural heritage, the trial court ordinarily will be required to propound such a question. ), religious bias, Casey, 217 Md. at 607, 143 A.2d at 632 ( [I]f the religious affiliation of a juror migh t reasonably prevent him from arrivin g at a fair and impartial verd ict 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, 185 Md. (contin ued...) 18 used a handgu n in the com mission of a robbery that a voir dire qu estion regarding strong feelings about handguns is mandated to enable him to strike veniremen who embrace such feelings. Although Mr. Curtin alleges that his requested voir dire question comes within the strictures of Thomas and Sweet, we recognized in those cases that the charges of narcotics possession and child molestation in and of th emselves could evoke stro ng feeling s that could unduly bias a venireman. In the present case, however, Mr. Curtin was charged with armed robb ery, use of a handgun in the commission of a crime of violence, first degree assault and conspiracy. We believe that the Court of Special Appeals was correct when Judge Daniel 8 (...continued) at 564, 45 A.2d at 344 ( We . . . hold that the State has the right to challenge a juror in a capital case on the ground th at he wou ld not be w illing to convict on circumstantial evidence. ), and placement of und ue we ight on police o fficer c redibility, Langley v . State, 281 Md. 33 7, 349, 378 A.2d 13 38, 1344 (1977) ( [ W]e ho ld 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 pr opoun d a que stion su ch as . . . whether any juror would tend to give either more or less credence . . .[to a police officer]. ); violations of narc otics law , Thomas, supra, (holding that trial judge abu sed his discretion in failing to ask question whether any jurors harbored strong feelings towards the violation of narcotics laws wh ere defen dant was charged w ith the posse ssion and d istribution of a controlled dangerous substance); strong emotional feelings with regards to alleged sexual assault against a m inor, Sweet, supra, (holding tha t trial court abus ed 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 ven iremen s impartiality); cf. Landon v. Zorn, 389 Md. 206, 222, 884 A.2d 142, 151 (2005) (holding that trial judge did not abuse his discretion in refusing to ask proposed voir dire question regarding bias against plaintiffs in personal injury and medical malpractice cases because an affirmative answer to the propo sed questio n would not constitute grounds f or disqualification for cause). 19 Long, specially assigned, writing for the court, determ ined that Mr. Curtin s vo ir dire question was not mandated in this case merely because a handgun was used and in so doing, distinguished the instant case from Baker v. S tate, 157 Md.App. 600, 853 A.2d 79 6 (2004), 9 in which the intermediate appellate court had determined that the trial court had abused its discretion in not asking the propounded voir dire question regarding handguns: App ellan t's defenses were based on theories suggesting that appellant was not a participant in the b ank robbery or, alter nativ ely, that there was no evidence that a real gun w as in fact used. Under these circumstances, we are not persuaded that the trial c ourt abused its dis creti on in refu sing to ask appella nt's proposed voir dire qu estion regard ing attitudes of potential jurors toward guns. *** In this case . . . potential juror bias about handguns does not go so directly to the nature of the crime. Appellant was accused of robbing a bank with an accomplice who was brandishing a gun. Unlike the situation in Baker, no analysis or weighing of issues pertaining to the gun was required by jurors in this case, other than accepting or rejecting the State's evidence demonstrating that a gun was used in the commission of the crime. The proposition that a juror's strong feelings for or against handguns would necessarily preclude h im or her fro m fairly weighing the evidence in this case - w here there wa s clearly no question relating to the reasonableness or justifiableness of the use 9 In Baker, the defendant was charged with first and second degree assault and the use of a handgun in the commission of a crime of violence after shooting an unarmed man and claimed at trial that he had shot the man in defense of both himself and his girlfriend. The Court of Special Appeals held that the trial judge had abused his discretion in refusing to ask the defendant s propo sed handgun q uestion because a ke y issue before the jury was whether the defenda nt, in firing the handgun, had exercised justifiab le or rea sonab le force . Id. at 613, 853 A.2d at 803. Thus, the intermediate appellate court concluded that the handgun question was properly directed towards uncovering strong feelings about whether handgun use is ever justifiab le or rea sonab le. Id. 20 of the gun un der the circu mstances - is based upon a transcendental line of reasoning with which we disagree. Baker makes clear that a proposed voir dire question should not be probing o r abstract, but s hould directly address potential jurors' biases, prejudices, and ability to weigh the is sues fairl y. The inquiry should focus on the venire person's ability to render an impartial verdict based solely on the evidence presented. App ellan t's proposed voir dire question did not directly address a juror's ability to weigh the issues fairly or render an impartial verdict in this case. Given the nature of the charges against appellant, a juror who had strong feelings for or against handgu ns could n onetheless be fair and impartial. Add ition ally, after balancing the judicial interest of probing in to the likelihood of uncovering disqualifying juror partiality or bias with the interests of judicial efficiency and preservation of a court's limited resources, we are troubled b y the precedential consequences of expanding our holding in Baker to effective ly require a court to ask whether any prospective juror has strong feelings on handgun s in every case in w hich the jury w ill receive evidence that a handgun was used in the commission of a crim e. Accor ding ly, we conclude that the trial court did not err in declining to give appellant's proposed voir dire question asking whether any potential juror had strong feelings concerning the use of handguns that would make him or her unable to render a f air and imp artial verdict based on the eviden ce. Curtin, 165 M d. at 68, 8 84 A.2 d at 763 -64. Mr. Curtin also alleges, however, that, in so holding, the Court of Special Appeals applied the wrong standa rd for determining whether his question was required to be asked. Mr. Curtin is incorrect. Having noted that a proposed voir dire question must be asked if there is a reasonable likelihood that it would reveal a ba sis for disqu alification, the intermediate appellate co urt conclud ed that M r. Curtin was inaccurate when he proposed the 21 proposition that a juror's strong feelings for or against handguns would necessarily preclude him or her from fairly weighing the evidence in the case at hand. Thus, the Court of Special Appe als app lied the c orrect sta ndard i n its hold ing, wit h whic h we a gree. In the case before us, the jury was called upon, as always, to measure whether the State had met its burden of proof as to whether Mr. Curtin was the perpetrator and whether the gun wa s real, not wh ether Mr . Curtin was legally in possession of a handgun, or used the handgun in a reasona ble or justifiab le way, situations which could, conceivably, evoke strong feelings about handguns. Whether a venireman has strong feelings about handgu ns wou ld not render him or her more or less likely to convict Mr. Curtin of the charges on the evidence presented at trial, and therefore the trial judge did not abuse his discretion in refusing to ask the question.10 Thus, we affirm the decision of the Court of Special Appeals. JUDGMENT OF THE COURT O F SP ECIA L A P P E A LS AFFIRMED, WITH COSTS. 10 Add ition ally, the other voir dire questions posed by the cou rt adequately addressed any potential issues of bias regarding the nature of armed robbery when the trial court asked whether any of the veniremen w ere members of or contributed to organizations such as the NRA that advocate on criminal justice issues, whether any of the veniremen felt that the defendant was guilty me rely because o f the crimes with which he had been charged, and whether any of the veniremen possessed any ethical or moral obligation that would prevent them from s erving on the p anel. See Landon, 389 Md. at 222 n.8 , 884 A.2 d at 151 n.8 (concluding that proposed question was adequately covered by other questions asked of the jury during voir dire). 22 IN THE COURT OF APPEALS OF MARYLAND No. 114 September Term, 2005 ______________________________________ RAYM OND ALAN CURT IN v. STATE OF MARYLAND ______________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. ______________________________________ Concurring Opinion by Wilner, J. ______________________________________ Filed: July 31, 2006 I concur in the Court s opinion because I agree that it would be a departure from our existing case law to find error in the Court s refusal to pose the question at issue here. I do think, however, that the Court should consider, prospectively, a different approach, one on which we ha ve alrea dy emba rked. In State v. Thom as, 369 Md. 20 2, 798 A.2d 56 6 (2002), we con cluded tha t the public had such strong feelings about narcotics violations that it was necessary for a trial judge, on request, to question prospective jurors regarding their views about drug crimes. In Sweet v. State, 371 M d. 1, 806 A .2d 265 (2 002), we reached a similar conc lusion with respect to crimes involving the sexual abuse of a minor. It is obviously not reasonable to presume that those are the only kinds of crimes abo ut which public em otion may run high. Surely, there are others. Having found that those kinds of criminal activity may so enrage prospective jurors as to require s pecific vo ir dire question s to ferret out possible bias, what standard w ill 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 crim es. Is it not equally likely that some will have the same stron g fee lings abo ut other c rime s bu rglary, rob bery, rape, arson, n ot to mention murde r. Some may be incensed over gambling or prostitution , or wanton , vicious assa ult, 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 d ifficult (or imp ossible) to w eigh the fa cts fairly what difference does it make what the crime is? I do not believe in the kind of open-ended voir dire that we see in other States. I agree it should remain limited to d iscovering grounds th at would suppo rt a challenge for cause and not be expanded to aid in the exercise of peremptory challenges. I fail to see how any kind of detailed line-drawing will work, however how a question a imed at C rime A is required but not a question aimed at Crim e B. In the great m ajority of cases, it w ould not u nduly delay trial to ask whether the jurors have suc h a bias rega rding the crim e or crimes a ctually charged. Few jurors, I expect, will truthfully respond in the affirmative, and, to the extent they do, a few follow -up questions by the court w ill serve precisely the function of voir dire that we have traditionally blessed. I would prefer to do this by Rule rather than by judicial decision. It would give us the opportunity to frame an acceptable (not necessarily a mandated) form of q uestion go ing to bias emanating from the nature of the crim e and put th e question in the Rules, w here it wou ld be mo re likely to b e seen th an in on e opinio n of the Court. -2- IN THE COURT OF APPEALS OF MARYLAND No. 114 September Term, 2005 ______________________________________ RAYM OND ALAN CURT IN v. STATE OF MARYLAND ______________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. ______________________________________ Dissen ting Op inion b y Bell, C.J ., which Raker, J., joins. ______________________________________ Filed: July 31, 2006 In State v. Thomas, 369 Md. 20 2, 798 A .2d 566 (2 002), defe nse coun sel propose d 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 o r had infor mation ab out the case and wh ether there was any other reason why any panel me mber felt h e or she co uld not be im partial. 369 M d. 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 w ith which th e defend ant is charge d is directly relevant to, and focuses on, an issue particular to the defendant's case and, so, should be uncov ered. 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 abu sed its discretion when it refused to ask the reques ted voir dire qu estion. 3 69 M d. at 214 , 798 A .2d at 57 3. In Sweet v . State, 371 Md. 1, 806 A.2d 26 5 (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 ab ility to be fair and impartial in this case? The trial court declined to pose the question. We held that Thomas was app licable 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 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 a t 271. Despite this clear precedent, today this Court s majority affirms the trial court s refusal to propound to the v enire 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? __ Md. __, __, __ A.2d __, __ (2006) [slip op. at 1]. And, notwithstanding that, except for the crime described, th e question in this case w as 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 h ave prov ided a basis for a strike for cause in the instant case, the trial court did not abu se its discretion in denying the requested voir dire question. Id. at __, __ A.2d at __ [s lip op. at 1 ]. This rationale, joined by the concurring opinion of Judge W ilner, is that find ing erro r in this ca se wo uld be a departu re from our exi sting ca se law. Id. at __, __ A.2d at __ [slip op . at 1]; __ M d. at __, _ _ A.2d at __ [s lip op. at 1 ] (Wiln er, 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 alread y has required voir dire questions desig ned to -2- 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 appro ach our ex isting case law supports. A cknow ledging ou r 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. __ Md. at __, __ A.2d at __ [slip op. at 1] (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 leng thy or cau se und ue trial d elay. __ Md. at __, __ A.2d at __ [slip op. at 2] (Wilner, J., concurring). While I do not share Judge Wilner s cynicism with respect to the truthfulness of the venirepersons wh en answ ering the qu estion wh ether they hav e 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 a sk, likely to be few in number , will serve precisely the fu nction of v oir dire that w e have trad itionally blessed . 2 __ Md. at __, __ A.2d at __ [slip op. at 2] (Wilner, J., concurring). Judge Wilner 1 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 emba rrassment, to answer truthfully the que stions p ut to them . I have had venire pers ons - not a lo t, to be sure - ad mit 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 v ictimiza tion qu estion. 2 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, (contin ued...) -3- also seems to appreciate that the expansion of voir dire to take account of charged crime bias will not be u nduly burde nsome: 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, robb ery, rape, arson, n ot 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 im possible) to weigh the facts fairly what difference does it make what the crime is? __ Md. at __, __ A.2d at __ [slip op. at 1] (W ilner, J., concurring). The concurring opinion on these points is, for the most part, cor rect. To that ex tent, I agree with it. My qu arrel is with ho w Judg e Wilner re solves these concerns . He wo uld achieve the result the defenda nt seeks in this case and expand it to other crimes that might engender strong e motion al reactio ns pros pective ly, by Rule. He adm its, in that regard, h is difficulty in discerning how any kind of detailed line-draw ing will work ... how a question aimed at Crime A is required b ut not a question aimed at Crime B. __ Md. at __, __ A.2d at __ [slip op. at 2] (Wilner, J., concurring). The preference for the Rules approach, we are told, lies in the opportun ity it affords the Court to frame an acceptable question, perhaps not 2 (...continued) 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 adverse ly. 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 amo unt o f tim e it takes is sec ond ary, or should be; conc erns reg arding time sho uld not drive, o r be the d ecisive f actor in, t he proces s. -4- mandated, to addr ess the b ias issue . __ M d. at __, _ _ A.2d at __ [s lip op. at 2 ] (Wiln er, J., concurring). Judge Wilner s logic dictates that this Cou rt 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 invo lving diffe rent crimes a nd conce ding, as I sub mit, he mu st, 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 defend ant before the Co urt 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 w e are as prepared to do so now as w e will be later. I se e no reaso n 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 Thomas and Sweet, already know how to ask this question, and do not need further instruction. We already have decided a nd agreed that certain crimes - we have specifically singled out child sexual offenses and narcotic of fenses - m ay trigger suffic iently strong reac tions in -5- 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 m ay amount to bias, why do we not recognize that there are other crimes that may evoke the same or more extreme reactions. It is unconsc ionable tha t we wo uld 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 catego ry. Unde r that reg ime, the Cou rt 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 f eelings abo ut the charg ed crime a s to mak e it di ffic ult or imp ossible to weigh th e fac ts 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 ch arged w ould not result in any substantive delay of trial. I depart from the concurrence because I believe that we should follow our pre ceden ts; a Ru le is simp ly unnec essary. I would reverse. Judge Raker joins in the views herein expressed. -6-
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