Williams v. State
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Willard Williams v. State, No. 121, September Term 2004. Opinion by Bell, C.J. CRIM INAL L AW - V OIR DIR E - NON -DISCLO SURE OF RE LATIO NSHIP Where there is a non-disclosure by a juror of information that a voir dire question seeks and the record does not reveal whether the non-disclosure was in tentional or in advertent, the defenda nt is entitled to a n ew trial. IN THE COURT OF APPEALS OF MARYLAND No. 121 September Term, 2004 ______________________________________ WILLARD H. WILLIAMS v. STATE OF MARYLAND ______________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Bell, C.J. Raker, H arrell and B attaglia, JJ., Disse nt. ______________________________________ Filed: August 3, 2006 The dispositive issue in the case sub judice is whether the defendant is entitled to a new trial as a result of a juror s non-disclosure, during voir dire, of the fact that a member of that juror s family was employed as a secretary in the State s Attorney s Office ( SAO ) that was prosecuting the defendant and when the relationship was not discovered until after the trial had been completed. This issue is one of first impression for this Court. A similar, but certa inly not identic al, iss ue has be en co nsid ered by the Court of special Appeals, however. It was first addressed in Burkett v. S tate, 21 Md. App. 438, 319 A.2d 845 (1974). In that case, the trial court voir dired the juror, albeit after the fact, with reg ard to the reason for the nondisclosure, concludin g that it was inad vertent. The intermediate appellate co urt, in affirmin g, formula ted a test: [T]he g rant of a ne w trial, whe re informa tion inadve rtently is withheld by a juror s failure to resp ond to vo ir dire inquir y, should be left to the sound discretion of the trial judge unless: (a) actual prejudice to the accused is demonstrated, or (b) the withheld information, in and of itself, gives rise to a reasonab le belief that prejudice or bias by the juror against the accuse d is likely. Id. at 445, 3 19 A.2 d at 849 . We agree with this analytical construct for the circumstances there presented. It does not, as we shall see, resolve the factual scenario that this case presents. The appellant, Willard H. Williams ( Williams ), and his co-defendant, Kevin Jones ( Jones ), were charged with distribution of cocaine and related offenses and tried , by jur y, in the Circuit Court for B altimore City. During the voir dire process, the trial judge asked the ven ire, inter alia, whether: ... any member of the panel, any member of your immediate family or househo ld or anyone else that you re close to and get significant advice from, been in the past, going to be in the future or are currently employed or doing business with or otherwise closely associated with any law enforcement agen cy? That includes the City Police, the County Police, the State Police, or any other kind of police. The attorney General for the State of Maryland or any other State, the State s Attorney s Officer [sic], Baltimore City, Baltimore Cou nty, and other State or D istrict Attorney s office, the United State s Attorney Office f or the Fed eral District of Maryland or any other federal district, Federal law enforcement agencies including but not limited to FBI, DEA, ATF , INS, IRS, Customs, Coast Guard, Military Police, NSA, CIA, Homeland Security o r any o ther type of outfit tha t either has a se curity function or has an investigative function? Also, include parole and probation agents, sheriff s departments, correctional officers and other employees of correctional facilities and people who work for private security companies, then be prepar ed to tell u s abou t that wh en you co me up . Juror 560, Ernestine Lane, as later discovered, was the sister of a secretary in the State s Attorn ey s Off ice. Neverthe less, she did not respond to the question. She had responded to other venire questions, however, as follows: The C ourt: Any information you d like to share with us? Juror 560 : No. The C ourt: Ever been in a co urtroom before - - w itness, juror, spectator? Juror 560 : Juror. The Court: Civil, criminal or not picked ? Did you have to award money or did yo u have to vote som ebody not guilty or g uilty? Juror 560 : Aw ard m oney. The C ourt: Anything about that experience that would cause you to be unfair to either of these two gentlemen or the State? 2 Juror 560 : No. Ms. Lan e wa s sea ted a s juro r num ber f our a nd se rved on th e jury. Both Williams and Jones were convicted of the crimes charged. When they were informed by the State of Ms. Lan e s familial rela tionship w ith an employee of the State s Attorney s Office, they offered the non-disclosure as one of the grounds for their motion for a new trial. Emphasizing the non-disclosure of the familial relationship - the juror never disclosed that during voir dire - and relying on Leach v . State, 47 Md. App. 611, 425 A.2d 234 (1981) and Burkett v. S tate, 21 Md. App. 438, 319 A.2d 845 (1974), to which he referred the Court, Williams argued1 : 1 Counsel for Jones made a similar argument, more specifically pointing out the harm of the non-disclosure: Th e firs t issu e wa s that app aren tly one of t he ju rors, whose n ame I don 't have at this point in time, on the jury panel never responded to the question was she dealing with, related to or acquainted with anyone employed by the State's A ttorn ey's O ffic e of B altim ore C ity. I w as ad vised a co uple days after the ver dict that appa rently one of th e jurors con tacted the, ap parently is relat ed to the sister of th e, co unse l for the S tate, Ms. Potter, an d I m sorry, to the secretary for Ms. Potter, apparently is her sister, and contacted Ms. Potter a day or so after the trial indicating that Ms. Potter informed us of that. So therefore, our first issue on the Motion for New Trial would have been that th e juror did n ot, in fact this qu estion wa s asked to h er actually twice. Tha t was the o riginal questio n asked a nd she did affirmative ly to it [sic]. Then the question was asked as a test question at [counsel for the defense s ] request be cause he f elt a lot of the ju rors were n ot respond ing to the questions. She did not respond to that question the second time. It is our position that obviously we w ould have used o ur challenge, our perem ptory challenge, a t least and ob viously wou ld have m oved for cause first an d if that would not have been granted use a peremptory challenge to strike her from the panel... . 3 Both are similar situations where there were voir dire questions, information was obviously withh eld or not dis closed and the Court s ays; the withhe ld information in and of itself gives rise to a reasonable belief that prejudice or bias by a juror against the accused is likely. I think in this case the fact that we did not know that this juro r had a rela tionship with the S tate's Atto rney's Office th at it is reasonable and the pre sumption is that there was a bias. And based o n that I w ould as k the C ourt to G rant my M otion fo r a new trial. The prosecuto r confirme d that Ms . Lane w as the sister o f one of th e secretaries in my office, but, because the he ha[d] not asked Ms. Lane, ha[d] not called Ms. Lane, had any contact with Ms. Lane about the situation, he was unable to respond to the co urt s question as to why the juror did not disclose the relationship.2 No other information being available, Ms. Lane was not called to testify as to the reason for the non-disclosure, the prosecutor submitted and the court denied the new trial motion, ruling: Well that's pretty rem ote; a siste r of a secr etary i n the State's A ttorn ey's Office. If the Court of Appeals wants to grant a new trial on that basis they're more than welc ome to do it. We struggle in Baltimore with an electorate w ith less than a high school educatio n, tha t is no t very soph istica ted, a nd doesn 't 2 We note that the ex act relationship between the juror and the State s Attorney s Office is not clear from the record; that is, it is unknown if the f amily-related secretary was the secretary for counsel for the State specifically, or for the office generally. At the Motion for New Trial for Kevin Jones, defense counsel noted: I was advised a couple days after the verdict that apparently one of the jurors contacted the, apparently is related to the sister of the, counsel for the State, Ms. P otter, and I m sorry, to the secreta ry for Ms. Po tter, apparently is her sister, and contacted Ms. Potter a day or so after the trial indicating that M s. Potter i nform ed us o f that. Further, at the Motion for New Trial for W illard William s, counsel fo r the State noted: The ju ror is nu mber 5 60, wa s numb er 560, h er nam e is Ern estine L ane. She s th e sister o f one o f the sec retaries in my offic e. . . Rega rdless, o ur hold ing is no t disturb ed by this u ncertain ty. 4 understand the simplest of questions. If the Court of Appea ls wants to create laboratory circumstances and create precision in each trial, which pre-supposes that jurors will come in here that come in and understand simple English questions, or a defendant gets multiple trials at great expense to the taxpayers, let them do so. I'm not goi ng to. M otion fo r New Trial is d enied. Williams filed an appeal to the Court of Special Appeals. We, on our own motion, issued the wri t of certio rari wh ile the ca se was pendin g in that c ourt. Williams v. State, 384 Md. 5 81, 865 A.2d 5 89 (20 05). For the reasons that follow, we shall reverse the judgment of th e Cir cuit C ourt for B altim ore C ity. A. The Sixth Amendment to the United States Constitution,3 as applied to the States by the Fourteenth Amendment, guarantees criminal defendants an imp artial jury tria l. Attorney Grievance Comm'n of Maryland v. Gansler, 377 Md. 656 , 675, 835 A.2d 5 48, 558 (2003); Jenkins v. State, 375 Md. 284 , 300, 825 A.2d 1 008, 1017 (200 3); Ware v. State, 360 Md. 650, 670, 759 A.2d 764, 774 (2000). There is a similar guarantee provided by Article 21 of the Maryland Declaration of Rights.4 Bristow v. State, 242 Md. 283, 289, 219 A.2d 33, 36 3 U.S. Const., amend. VI provides: In all criminal prosecutions, the accused shall enjoy the right to a speedy and pu blic trial, by an impartial jury of the State and district wherein the crime shall h ave been committed ; which dis trict shall have b een previo usly ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel fo r his defence. (Em phasis added). 4 Article 21 of the Maryland Declaration of Rights provides Rights of accused; in dictment; co unsel; conf rontation; spe edy trial; impartial and unanim ous jury. 5 (1966). See Gansler, 377 M d. at 675, 83 5 A.2d a t 559; Jenkins, 375 Md. at 299, 825 A.2d at 1017. The guarantee is not that the ju ror 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 28 8-89, 219 A.2d at 36 ; Kujawa v. B altimore Transit Co., 224 M d. 195, 201 , 167 A.2d 96, 98 (19 61); Newto n v. State, 147 Md. 71, 76, 127 A. 123, 126 (1924). Thus, [t]he potency of the Sixth Amendment [and Article 21] right to a fair trial relies on the promise that a defendant s fate will be determined by an impartial fact finder who depends solely on the evidence and argument introduced in open court. Allen v. Sta te, 89 Md. App. 25, 42, 597 A.2d 4 89 (19 91), cert. denied, 325 Md. 396, 601 A.2d 129 (1992). Of course, a fundamental tenet of our legal system is that, to be impartial, the fac t finder must p resum e the inn ocenc e of the crimina l defen dant. Wright v. That in all criminal prosecutions, every man hath a right to be informed of the accusa tion against h im; to have a copy of the Indictmen t, or charge, in due time (if required) to p repare for h is defence ; to be allow ed couns el; to be confro nted with th e witnesse s against him ; to have pro cess 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 fou nd guilty. (Emphasis added ). 6 State, 312 Md. 648, 652, 541 A.2d 988, 990 (1988 ) (citing Johnson v. State, 227 Md. 159, 163, 175 A.2d 580, 582 (1961 )). Critical in ensuring that the guarantee is meaningful is the voir dire of the venire, the purpose of which is to exclude from the venire potential jurors for whom there exists cause for disqualification, so the jury that remains is capable of deciding the matter before it based solely on the facts presented, and un influen ced by ex traneou s consid erations . Hill v. State, 339 M d. 275, 2 79, 661 A.2d 1 164 (1 995). A s we p ut it in tha t case, Undergirding the voir dire procedure and, hence, informing the tr ial co urt's exercise of discretion regarding the conduct of the voir dire, is a single, prim ary, and overriding principle or purpose: to ascertain the existence of cause for disqualification. Id. at 279, 661 A.2d at 1166 (quoting McG ee v. State, 219 Md. 53, 58, 146 A.2d 194, 196 (1959), in turn quoting Adam s v. State, 200 Md. 133, 140, 88 A.2d 556, 55 9 (195 2)). See Jenkins, 375 Md. at 331, 825 A.2d at 1035-36 ( [O ]ne o f the ways to protec t a de fend ant's constitutional right to an impartia l jury is to expose the existence o f factors w hich could cause a juror to be biased or prejudiced through the process of voir dire examination. ); Dingle v. State, 361 Md. 1, 9, 759 A.2d 819, 823 (2000) ( Voir dire, the process by which prospective jurors are exam ined to d etermin e whe ther cau se for d isqualif ication e xists, see Boyd v. State, 341 Md. 431, 435, 671 A.2d 33, 35 (1996), is the mechanism whereby the right to a fair and impartial jury, guaranteed by Art. 21 of the Maryland Declaration of Rights, ... see Grogg v . State, 231 Md. 530, 532, 191 A.2d 435, 436 (1963), is given substance. See Hill v. State, 339 Md. 27 5, 280, 661 A.2d 11 64, 1166 (1995); Bedford v. 7 State, 317 M d. 659, 6 70, 566 A.2d 1 11, 116 (1989 ) ). Thus, consistent with the overarching purpose of v oir dire in a crim inal case in Maryland, to ensure a fair and impartia l jury, Boyd v. State , 341 Md. 431, 435, 671 A.2d 33, 35 (1996), the proper foc us is the venire person s state of m ind, specifically, whether there is some bias, prejudice, or precon ception . State v. Thomas, 369 Md. 202, 210, 798 A.2d 566, 570 (2002). To explore that possibility, a defendant is entitled to have the trial judge ask voir dire questio ns aime d at unc overin g that pr ejudice , Brown v. State, 220 Md. 29, 35, 150 A.2d 895, 897 (1959), 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 M d. 415, 4 19, 30 A .2d 757 , 759 (1 943)). See also Sweet v. State, 371 Md. 1, 806 A.2d 265 (2002) (applying Thomas). If there is any likelihood that some prejudice is in the juror's mind which will even subconsciously affect th e juror s decisio n of the case, Brown, 220 Md. at 35, 150 A.2d at 897-98, or any circumstances which may reasonably be regarded as rendering a person un fit for jury service, Bedford, 317 M d. at 671 , 566 A .2d at 11 7, quoting Coren s v. State, 185 Md. at 564, 45 A.2d at 343, the defendant may challenge that juror for cause, and, if that fails, strik e him or he r peremp torily. 5 In this case, the members of the venire were asked about their relationship to law enforcement officials, personn el or agenc ies, undou btedly 5 See Maryland Code (1973, 2002 Replacement Vol., 2005 Supp.) § 8-301 of the Courts and Judicial Proceedings Article. 8 because the trial judge, to w hom disc retion to deter mine the sc ope of vo ir dire is entrusted, see Davis v. S tate, 333 Md. 27, 60, 633 A .2d 867, 88 3-884 (19 93), conclu ded that, w hile not one of the ma ndatory areas of in quiry,6 it was an are a that entail[s ] potential bia ses or predispositions that prospective jurors may hold which, if present, w ould hind er their ability to objectively resolve the matter before them. Id. at 36, 633 A.2d at 871-72. B. As we have seen, the Court of Spe cial Appeals has add ressed the issue where a juror failed to disclose a relevant relatio nship with the law en forceme nt comm unity or personn el. In Burkett v. State, 21 Md. App. 438, 319 A.2d 845 (1974), appellant Burkett, having been convicted of first degree murder in the Criminal Court of Baltimore, learned that one of the jurors who conv icted him was the fa ther of a secretary employed in the trial section of the Baltimore City State s Attorney s Offic e. 21 M d. App . at 441, 3 19 A.2 d 847. That juror had not responded when asked during voir dire, [d]oes any member of the panel have any 6 In Dingle v. S tate, 361 Md. 1, 11 n. 8, 759 A.2d 819, 824 n. 8 (2000), listed the areas of mandatory inquiry this Court has identified: racial, ethnic and cultural bias, Hernan dez v. State , 357 M d. 204, 232 , 742 A.2d 952, 967 (1999); Hill v. State, 339 Md. 275, 285 , 661 A.2d 1164, 11 69 (1995 ); Bowie v. State, 324 Md. 1, 15, 595 A.2d 448, 455 (1991 ), religiou s bias, Casey v. Roman Catholic Archbishop, 217 Md. 595, 606-07, 143 A.2d 627, 632 (1958), predisposition as to the use of circumstantial evidence in capital cases, Corens v . State, 185 Md. 561, 564, 45 A.2d 340, 343-44 (1946), and placement of undue weigh t on pol ice off icer cred ibility. See Langley v. S tate, 281 Md. 337, 349, 378 A.2d 1338, 1344 (1977), pointing out that each category involves potential biases or predispositio ns that prosp ective jurors m ay hold wh ich, if presen t, would hin der their ability to objectively resolve the matter before them. Davis v. S tate, 333 Md. 27, 36, 633 A.2d 867, 871 -72 (1993). 9 member of your immediate family who is or was a member of a law enforcement agency as I have defined? 21 Md. App. at 441, 319 A.2d at 846. Contending that, had the required response been made, he would have used an unexpended peremptory challenge to strike the juror, 21 Md. App. at 439-440, 319 A.2d at 846, Burkett argued , relying on Swain v. Alabama, 380 U.S. 202, 219, 85 S. Ct. 824, 835, 13 L. Ed.2d 759, 771-772 (1965) and Spencer v. State, 20 Md. App. 20 1, 208, 314 A.2d 72 7, 731 (19 74), that his righ t to peremptory challenge thus was denied or impaired, entitling him to a new trial without the need to show prejudice. 21 Md. App. at 440, 319 A.2d at 846. At the new trial h earing, the juro r testified that he had not he ard the w ords Sta te s Attorney s Office in the question, that he did not realize he was being asked a question which required him to disclose his daughter s employment, that his daughter s position with the State s Attorney s Office did not influence his decision, and that he had not discussed the case with hi s daug hter. 21 Md. App. at 441-442, 319 A.2d at 847. On the basis of that testim ony, the trial court found the non-disclo sure to be in advertent, an d that it had no effect on the verdict. It denied B urkett s mo tion for new trial, concluding that the no n-disclosure was not sufficient to warr ant this Court setting aside the jury's verdict and to grant a new trial. 21 Md. App. at 442, 319 A.2d at 847. The Court of Special Appeals affirmed. It rejected the peremptory challenge impairment argument, noting that there is no showing of intentional denial or impairment of the right, either express or implied. On the contrary, the record makes crystal clear (a) that 10 the juror's failure to re spond w as wholly inad vertent and (b) that the na ture of the w ithheld information did not in and of itself rise above the purest speculation that it would indica te the juror's bias or prejudice against persons accused of crime. 21 Md. App. at 445, 319 A.2d at 849. As indicated, the intermediate appellate court held that, in the absence of a showing of actual prejudice, o r unless the e vidence w ithheld giv es rise to a reasonable belief that prejudice or bias by the juror agains t the accuse d is likely, the gran t of a new trial is discretionary with th e trial cou rt. Id. at 445, 319 A.2d at 849. No actual prejudice having been shown or alleged, the court conc luded that th e withheld informatio n did not su ffice to require a ne w trial: We are persuaded that the contention that a parent of one working as a secretary in a law enforcement agency would be prejudiced against all persons accused of crime is so fanciful and unlikely that it does not rise above the purest speculation. .... The information withheld here does not require a new trial as a matter of law. The grant of the relief prayed in a motion for a new trial under such circumstances must be left to the sound discretion of the trial judge. 21 Md. App. at 445-46, 319 A.2d at 849. A similar situation was presented in Leach v . State, 47 Md. App. 611, 425 A.2d 234 (1981). In Leach, a juror did not disclose, during voir dire, her acquaintanceship, as classmate and neigh bor, with a State witness, one of the investigating homicide detectives. 47 Md. App. at 618, 425 A.2d at 238. When that information was revealed on crossexamination of the detective, the court voir dired the juror. In addition to confirming that the juror and the detective were old schoolmate[s] an d neighbor[s] of ... some fifteen years 11 prior, the court was assured by the juror that her p ast relationship with the detective would not cause her to give the d etective s testim ony any greater w eight and that her ability to fairly and impartially judge the case would not be impeded. The court accepted that assurance and did not strike the juror, which the defendant contended on appeal was reversible error. 47 Md. App. at 618, 425 A.2d at 238. The Court of Special Appeals did not agree. 47 M d. App. at 618, 425 A.2d at 238. Citing the test outlined in Burkett, it explained : We think the same guidelines apply where a mistrial is sought because of misinformation given by a prospective juror during voir dire proceedings. The voir dire conducted by the trial judge after the discovery of her acquaintance with the police officer satisfied the judge that the failure of the juror to disclose her acquaintance during the original voir dire was inadvertent and unintention al; that the relationship between the juror and the officer was minimal and had existed in the remote past; and that the juror could still render a fair and impartia l verdict . Unde r the circ umstan ces, we do not believe that the facts in this ca se would require a disq ualification for cause of the juror during the original voir dire; nor do we find any abuse of discretion by the trial judge in refusing to strike the juror after the case ha d begun or to grant a mistrial. 47 Md. App. at 619, 425 A.2d at 238-239. The State argue s that Burkett and Leach are applicable and dispositive. It maintains that, under those precedents, the juror s failure to disclose her relatio nship to a fa mily member who worked in the State s Attorney s Office did not prejudice the defendant and, as such , there is n o suff icient ba sis for th e grant o f a new trial. We do not agree. In both Burkett and Leach, the trial ju dge, upon discovery of the jurors non-disclosure of a relationship that was the subject of voir dire inquiry, recognizing 12 the potential for prejudice, questioned the jurors, on the record, to determine w hether there was, or cause to b e concern ed about, p rejudice. O nly after that inquiry and on the basis of the findings it made on the basis of the information it disclosed did, or could, the trial court exercise its discretion with respect to the requested relief. With no comparable inquiry as a predicate in this case, the trial judge, concluding that the relationship not disclosed was pretty remote, and, therefore, not sufficient to support a new trial, denied the Williams motion for new trial. As we have said, voir dire is the mechanism by which we give substance to the constitutional guarantee to criminal d efendan ts of a fair and impartial jury trial. The questions propounded d uring the voir dire process are fo cused up on, and de signed to uncov er, bias, p rejudice or pre-c oncep tion. In fact, the subjects to which those questions are directed comprise, or relate to, potential biases or predispositions that prospective juro rs may hold wh ich, if present, would hinder their ability to objectively resolve the matter before them. Dingle v. State, 361 Md. 1, 11 n. 8, 759 A.2d 819, 824 n. 8. Therefore, if the guarantee of impartiality is to be meaningful, prospective jurors must be expected to answer the questio ns app licable to them, a nd to do so fully an d truthf ully. A defen dant mus t be able to rely on that being the case. Had the juror responded to the subject voir dire question, the defendant would have been able to move to strike the juror for cause, if he felt that she was prejudiced, and to strike peremptorily otherwise. To be sure, the disclosure of the relationship would not have resulted in a finding of prejudice as a matter of law and, thus, 13 a strike for cause; however, it would have allowed for further investigation and information bearing on that issue, specifically an inquiry into the venire person's ability to render an impartial verdict b ased so lely on the eviden ce pres ented. Thomas, 369 Md. at 210, 798 A.2d at 571; Davis, 333 Md. at 37, 633 A.2d at 872. The failure to disclose foreclosed that further investigation and delving of the juror s state of mind. Moreover, as we made clear in Dingle, [b]ias is a question of fact, 361 Md. at 15, 759 A.2d at 826, the existence of which is a matter left to the trial judge, the focal poin t in the process, whose predo minant fu nction in de termining ju ror bias invo lves credibility findings whose basis can not be discerned from an appellate record. Id., quoting Wainwright v. Witt, 469 U.S. 412, 429, 105 S. Ct. 844, 855, 83 L. Ed.2d 841, 855 (1985). In addition, it is the trial judge s role to decide whether, and when, cause for disqualification exists for any particul ar venir e perso n. Id. In both Burkett and Leach, the trial court was a ble to perform its focal point role. It was able to conduct the further investigation and delving into the juro r s state o f mind , albeit af ter the fa ct. As a result, the court was able to satisfy itself, and was satisfied, that the non-disclosure was inadvertent, that, in other words, there was no b asis to believe that the juror w as biased o r otherwise not impartia l.7 7 Doss v. S tate, 906 So.2d 836 (Miss. Ct. App. 2004) and State v. Evans, 20 P.3d 888 (Utah 2001) are to like effect. In both, the non-disclosing juror was voir dired by the trial cou rt during the hea ring on the def endan t s motio n for n ew trial, Doss, 906 So.2d at 839; Evans, 20 P. 3d at 894, after which the trial court was satisfied that the nondisclosu re was inadve rtent, id. at 840; Evans, 20 P.3d at 894, and, in Evans, that, had there been timely disclosure, it would not have resulted in disqualification to serve. 20 P.3d at 894. 14 We endeavor to be clear on this point. Where th e juror is availa ble for furth er voir dire and is further voir dired, a trial court may exercise the discretion Burkett requires it to exercise. But, the trial court s sound discretion can only be exercised on the basis of the information that the voir dire reveals and the findings the trial court makes as a result. On the other hand, where the juror is not available or is not voir dired, there simp ly is neither a basis for the findings of fact, which must form the predicate for the exercise of discretion, nor for the exercise of discretion that Burkett contemplates.8 That the trial court may believe that it is pretty remote that an answer to a voir dire question would uncover bias or prejudice does not, and cannot, replace the need for the court to make findings of fact on the issue. We hold that, where there is a non-disclosure by a juror of information tha t a voir dire question seeks and the record does not reveal whether the non-disclosure was intentional or inadverten t,9 the defendant is entitled to a ne w trial. 10 That the disclosure would not 8 Phares v. Brooks, 590 S.E.2 d 370, 37 3 (W. V a. 2003) is illustra tive of this po int, although a personal in jury case rather th an a crimin al case. The re, a juror failed to disclose that she was employed by an insurance company. The appellant sought a new trial on that bas is. The Circ uit Court de nied the m otion for ne w trial, appa rently accepting the appellee s arg ument that the nond isclosure was a result of the juro r s failure to hear the question, or that an affirmative response, by her raising her hand, was overlook ed by the cou rt reporter. Th e Suprem e Court of Appea ls of Wes t Virginia reversed, no ting that the juro r in question had not testif ied that she h ad not hea rd the voir dire question or given an y explanation for her failure to answ er. It commented, [w ]e are ... troubled by the circuit court s order when its conclusion is based on speculation.... 590 S.E.2d at 373. 9 The State argues, relying on Argyrou v. S tate, 349 Md. 587, 609, 709 A.2d 1194, 1204-1205 (1998), and Isley v. State, 129 Md. App. 611, 674, 743 A.2d 772, 805-806 15 (2000), that the burden of establishing prejudice for purposes of a motion for a new trial lies solely w ith the pr opone nt for th e new trial, a bu rden w hich W illiams h as not c arried. It also submits that prejudice should not be presumed in this case, there being nothing on the record to suggest that Williams was prejudiced and, in fact, the record supports the conclusion that the juror in question did not purposely avoid questioning, merely did not hear the particular language that applied to her. We are not persuaded. We have held that a new trial is required. As should be obvious, that result is the product of a record that was so deficient as not to have permitted this Court, or the trial court, for that matter, to make a finding as to why the juror not did disclose her familial relationship. Speculation from an inadequate record simply will not do. To require m ore than that is neither creat[ing] laboratory circumstances or creat[ing] precision, rather it is insisting that we, as judges, discharge our responsibilities consistent with the rules and the decisional law. The expense of retrials would be greatly limited were we to spend more time adhering to this principle. W e do pre-su ppose tha t the jurors w ho serve in Baltimore City do so with the same dedication and skill as jurors in other parts of the State and that they do, and can, understand simple sentences. In this regard, as well, we would do bette r to be p ositive, n ot nega tive. 10 The disse nt believes th at a new tria l should no t be granted , that this case sh ould only be remanded for a hearing to determine whether the appellant was prejudiced by the juror s n on-disc losure. _ _ Md . __, __, _ _ A.2d __, __ [ slip op. a t 1] (200 6) (Rak er, J., dissenting). It rea sons that, bec ause the sco pe of voir d ire in Marylan d is limited to exposing a cause fo r disqualifica tion and do es not enco mpass qu estions desig ned to elicit information in aid of peremptory challenges, the out of jurisdiction cases we cite do not support this holding, noting that, in these other states, the voir dire process does provide a basis for exercising peremptory challenges. __ Md. at __, __ A.2d at __ [slip op. at 4-8] (Raker, J., dissenting). The dissent also notes that the Maryland standard does not force the trial court to decide whether, or not, the withheld information resulted in a lost perem ptory strike . __ M d. at __, _ _ A.2d at __ [s lip op. at 5 ] (Rake r, J., dissen ting). Whether the withheld information is used for juror disqualification or in aid of the use of peremptory strikes is besides the point. Whenever a relationship is not disclosed, the ability of a pa rty to probe for b ias is lost. Beca use bias is no t apparent o r discovera ble during any stage, the defendant is prejudiced from the start. The primary case on which the dissent relies is McDonough Power Equipment., Inc. v. Greenwood, 464 U.S. 548, 104 S. Ct. 845, 78 L. Ed. 2d 663 (1984). __ Md. at __, __ A.2d at __ [slip op. at 2] (Raker, J., dissenting). This case, to be sure, also deals with the loss by a party of the opportunity to exercise a peremptory strike, the very situation rejected by the dissent. __ Md. at __, __ A.2d at __ [slip op. at 2] (Raker, J., dissenting). The juror in McDonough failed to respond when asked if he had ever sustained injuries similar to the plaintiff s. 16 automatica lly have required a strike for c ause does not matter; it is the inability of the defendant to have the benefit of a further investigation by the court, he or she being deprived of the ability to delve into the juror s state of mind for bias and of a finding in that regard, that is decisive. The perceived remoteness of the potential bias does not preclude bias; without a finding of fact in confirmation, it cannot be a sufficient reason to deny a new trial. This approach and result is co nsistent with decisions f rom other jurisdictions. In State v. Thompson, 361 A.2d 104, 108 (N.J. Supe r. 1976), the c ourt held: Regardless of the labe ls which m ay be applied in articulating the reasons for reversal of a criminal conviction resulting from a trial where a juror has failed to respond to a Voir dire q uestion pate ntly addressed to the possib le existence of bias, the result must be the same. W hether the nondisclosure is designated as prejudicial Per se, presumptively harmful or colorable bias, the conclusion is inescapab le that defendant has been deprived of a fundamental right to a fair trial a nd that h is conv iction ca nnot sta nd. Similarly, it was held in People v. B lackwell, 191 Cal. A pp. 3d 92 5, 929 (C al. Ct. App. 1987) (citations om itted): The prosecution, the defense and the trial court rely on the voir dire responses 464 U.S. at 550, 104 S. Ct. at 847, 78 L. Ed. 2d at 667. The information that question sought to elicit was clearly not so prejudicial as a direct family relationship to a member of the S tate wo uld be. F inally, McDonough holds s pecific ally, Voir dire examination serves to protect [the] right [to a fair trial by an impartial trier of fact] by exposing possible biases, both known and unknown, on the part of potential jurors, 464 U.S. at 554, 104 S. Ct. at 849 , 78 L. Ed. 2 d at 671, an d, in discussin g when a new trial should be granted, clea rly states that reaso ns that affe ct a juror's impa rtiality can truly be said to affect the fairn ess of a trial. 46 4 U.S. a t 556, 10 4 S. Ct. a t 850, 78 L. Ed. 2 d at 671 . A direct family relatio nship to an employee o f the State s A ttorney s Off ice certainly qualifies as a reason that may affect a juror s impartiality and, thus, the fairness of the trial. 17 in making their respective decisions, and if potential jurors do not respond candidly the jury selection process is rendered meaningless. Falsehood, or deliberate concealment or nondisclosure of fac ts and attitude s deprives b oth sides of the right to select an unbiased jury and erodes the basic integrity of the jury trial process. Intentional concealmen t of relev ant f acts or the giv ing o f fal se an swe rs by a juror during the voir dire examination constitutes misconduct ... and the occurrence of such misconduct raises a rebuttable presumption of prejudice. ... Prejudicial jury misconduct constitutes grounds for a new trial. . See also State v. Woods, 550 S.E.2d 282, 284 (S.C. 2001) ( Where a juror, without justification, fails to disclose a relationship, it may be inferred, nothing to the contrary appearing, that the juror is n ot impartial ); Doyle v. Kennedy Heating & Service, Inc., 33 S.W.3d 199, 201 (Mo. Ct. App. 2000) ( If a juror intentionally withholds material information requested on voir dire, bias and prejudice are inferred from such a concealm ent. . . . . Only where a juror s intentional nondisclosure does not involve a material issue, or where the nondisclosure is unintentional, should the trial court inquire into p rejudice . (Empha sis in original)); State v. Akins, 867 S.W.2d 350, 357-358 (Tenn. Crim. App.,1993) (defendant entitled to new trial because juror failed to disclose, on voir dire, relevant life experiences specifically inqu ired about); Board of Trustees Eloy Elementary School Dist. v. McEwen, 430 P.2d 727 , 733 (Ariz. Ct. App. 19 67) ( The right to a trial by jury means an impartial jury and nondisclosure, [u]pon proper inquiry on voir dire examination, of bias or prejudice which would render a juror vulnerable to challenge , is ground for a new trial ); Hayes v. Boykin, 126 So.2d 91, 94 (Ala. 1960) (ruling that a juror s silence d uring voir dire could be a basis for granting a new trial); Freeman v. Hall, 238 So.2d 330, 335(Ala. 1970) 18 ( The proper inquiry on a motion for a new trial based on improper or nonexistent responses to voir dire questions is whether the response, or the lack of response, resulted in probab le prejudice to the mov ant ); Jackson v. United States, 395 F.2d 615, 618 (D.C. Cir. 1968) (ordering new trial when juror did not disclose that he had been the lover in a love triang le strikingly similar to th e one allege d to have bee n involved and w as being tried in the case on wh ich he s at). C. Fina lly, we turn to the second issue raised by Williams, that the State s failure to disclose potential impeachment evidence regarding one of its witnesses, namely that the investigating police officer in this case had a history of official misconduct and allegations of neglect o f duty, violated Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and Maryland R ule 4-263 (g). 11 This issue was recently addressed in State v. Williams, 392 Md. 194, 896 A.2d 973 (2006). In Williams, we held that Maryland Rule 4263 (g) extended not only to exculpatory or mitigating information pertaining to S tate s witnesses known by the Assistant State s Attorney actually prosecuting a specific criminal case and the related officers participating in that prosecution, but also to such information 11 Maryland Rule 4-263(g) provides: (g) Obligations of State's Attorney. The obligations of the State's Attorney under this Rule extend to material and information in the possession or control of the State's Attorney and staff members and any others who have participated in the investigation or evaluatio n of the ac tion and w ho either reg ularly report, or w ith refe renc e to th e par ticul ar ac tion have rep orted, to t he offic e of t he State's Attorn ey. 19 known to the other Assistant State s Attorneys in the same office, 392 Md. at 209-210, 896 A.2d at 982, a nd that, f urtherm ore, Brady v. Maryland has the same reach. 392 Md. at 209210, 896 A.2d at 982. Williams contends that knowledge of this officer s past could be imputed to the prosecutor in the case sub judice, and that, furth ermore, as a n investigatin g officer, the officer fits squarely within the definition of others who have participated in the investigation or evaluation of the action and who reg ularly report, or with reference to the particular action have reported, to the office of the State s Attorney. On the other hand, the State contends that Brady does not require a combing of the internal affairs files of every police officer involv ed in a p articular case. We have reversed Williams s conviction because of the juror nondisclosure. Conseq uently we need not, and therefore, do not, resolve the issue, leaving it for resolution on retrial. Our rece nt Williams decision is dispositive of these issues and, thus, should guide the trial court in that regard. JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY REVERSED AN D CASE REMANDED TO THAT COURT FOR A NEW TRIAL. COSTS TO BE PAID BY THE M A Y O R A N D C I T Y CO U N C IL O F BALTIMORE. 20 In the Circu it Court for B altimore C ity Case No. 202107039 IN THE COURT OF APPEALS OF MARYLAND No. 121 September Term, 2004 WILLARD H. WILLIAMS v. STATE OF MARYLAND Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Dissenting opinion by Raker, J., which Harre ll, and B attaglia, J J., join. Filed: August 3, 2006 Raker, J., dissenting, in which Harrell, and Battaglia, JJ., join: I respectfully disse nt from the judgmen t of the Court granting appellant a new trial based on this record. T he majority creates a rule that is overbroad and unsupported by any auth ority. Before a new trial should be ordered and the State in a criminal case, or the prevailing party in a civil case, is denied the benefit of a c onviction or a favorable verdict and is required to bear the expe nse and the time of a new trial based on juro r non-disclosure during voir dire, the trial court should, at a minimu m, hold an evidentiary hearing affording counsel the opportunity to inquire as to the facts surrounding the n on-disclosure. The cou rt should then make a finding as to whether the conduct was intentional or inadvertent, and whether any party was prejudiced. Accordingly, I would remand this matter for an evidentiary hearing to permit the trial court to determine w hether the juror non-disclosu re in this case was intentional, and if it was , wheth er there was an y prejudic e to app ellant. See, e.g., McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 104 S. Ct. 845, 78 L. Ed. 2d 663 (1984) (reversing United States Court of Appeals for the Tenth Circuit granting motion for new trial and remanding to permit party to demonstrate that juror failed to answer honestly a material question on voir dire and that a correct response would have provided valid basis for challenge fo r cause). I. The majority holds that, where there is a non-disclosure by a juror of information that a voir dire question seeks and the record does not reveal whether the non-disclosure was intentio nal or in adverte nt, the de fenda nt is entitle d to a ne w trial. Maj. op. at 14-15. The majority is too qu ick to grant a new trial. I would adopt the test articulated by the United States Supreme Court in McDonough, a products liab ility action. In that case , the Supreme Court outlined a procedure to be followed when a juror has failed to honestly answer questions posed on voir dire. See McDonough, 464 U.S. at 556, 104 S. Ct. at 850. M any courts in the country have adopted the McDonough test, not only in civ il cases b ut also in crimina l cases. See, e.g., Grover v. Minette-Mills, Inc., 638 A.2d 712, 715 (Me. 1994); State v. Tolman, 828 P.2d 1304, 1307 (Idaho 1992); In re Nash, 614 A.2d 367, 371 (Vt. 1991 ); Isaacs v. Sta te, 386 S.E.2d 316, 335 (Ga. 1989); State v. Rempel, 770 P.2d 1058, 1 060-6 1 (Wa sh. Ct. A pp. 198 9), rev d on other grounds, 785 P.2d 113 4 (Wash. 1990 ); Catching s v. City of G lendale, 743 P.2d 400, 402 (Ariz. Ct. Ap p. 1987 ). See generally Robe rt G. Lo ewy, When Jurors Lie: Differing Standard s for New Trials, 22 Am. J. Crim. L. 733, 757-58 (19 95). As the Supreme Court observed in McDonough, trials are expensive and a new trial should not be g ranted li ghtly. See McDonough, 464 U.S. at 553, 104 S. Ct. at 848. Petitioner in that case alleg ed that a juro r did not disc lose inform ation abou t injuries previo usly sustained by his son when a tire explod ed. Id. at 550-51, 104 S. Ct. at 847. The McDonough court held that to obtain a new trial in such a situation, a party must first demon strate that a juror failed to answer honestly a material question on voir dire, and then further show that -2- a correct response wo uld have provided a valid basis for a challenge for cause. Id. at 556, 104 S. Ct. at 850. Writing in a plurality opinion, Chief Justice Rehnquist stated as follows: This Court has long held that [a litigant] is en titled to a fair trial b ut not a p erfect o ne, for there are no perfec t trials. Trials are costly, not only for the parties, but also for the jurors performing their civic duty and for society which pays the judges and support personnel who manage the trials. It seems doubtful that our judic ial system wo uld have th e resource s to provide litigants with perfect trials, were they possible, an d still keep abreast of its constantly increasing c aseload. E ven this straightforward products liability suit extended over a 3-week period. We have also come a long way from the time when all trial error was presumed prejudicial and reviewing courts were considered citadels of technicality. The harmless-error rules adopted by this Court and Congress embody the principle that courts should exercise jud gment in p reference to the autom atic reversal for error and ignore errors that do not affect the essential fairness of the trial. For example, the general rule governing motions for a new trial in the district courts is contained in Federal Rule of Civil Procedure 61, which provides: No error . . . or defec t in any ruling or o rder or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict . . . unless refusal to take such action appears to th e court inco nsistent with substantial justice. The court at every stage of the proceeding must disregard an y error or defec t in the proceeding which does not affect the substantial rights of the parties. Id. at 553, 104 S. Ct. at 848 -49 (citations omitted). -3- The majority states that rulings in other jurisdictions mirror the holding that it announces today. See maj. op. at 17. The cases relied upon by the majority do not supp ort the majority s broad holding. Those cases are all distinguishable in two significant ways. First, w ith the ex ception of one case, State v. Thompson, 361 A.2d 104 (N.J. Super. Ct. App. D iv. 1976), in all th e cas es relied u pon by the majo rity, the trial court either held an evidentiary hearing or received affidavits from the juror in question, thereby enabling the trial court to make a finding as to whether the n on-disclosu re was inten tional or inad vertent. Second, and of great significance, is that in every case relied upon by the majority, the prevailing rule in the jurisd iction is that voir dire serves not only to ferret out bias and challenges for cause, but also provides information to counsel for the intelligent exercise of peremptory challenges, which is not the rule in Maryland. The scope of voir dire in Maryland is very limited. W e have said time and tim e again that the sole purpose of voir dire in Maryland is to expose the existence of cause for disqualification . . . it does not encompass asking questions designed to elicit inform ation in aid of deciding on peremptory challenges. Land on v. Zo rn, 389 Md. 206, 216, 884 A.2d 142, 147 (2005) (quoting Couser v . State, 282 Md. 125, 138-39, 383 A.2d 389, 397 (1978 )). This distinction affects the analysis because the Maryland approach lessens the potential prejudice that may result from juror non-disclosure in response to a voir dire question. Furthermore, this feature of Maryland law makes it easier for the trial court to determine post-trial whether a party has been prejudiced by a juror non-disclosure because the trial -4- court, in making this determin ation, is not forced to make findings with respect to whether a non-disclosure would have resulted in the exercise of a peremptory strike and, if so, whether the loss of the opportunity to exercise the peremptory strike would have had a prejudic ial im pact on th e par ty. Careful examina tion of the c ases from other jurisdictio ns relied up on by the ma jority confirms these conclusions . For ins tance, in Califo rnia, voir dire provides the basis for a challenge for cause or the exercise of peremptory challenges. Therefore, the standard and the analysis is not relevant in Maryland. The majority quotes People v . Blackwe ll, 236 Cal. Rptr. 803 (Cal. Ct. App. 1987) for the proposition that intentional concealment of relevant facts constitutes misconduct, raising a rebuttable p resumption of prejud ice, and thereby constitu tes grou nds fo r a new trial. See maj. op. at 17-18. The majority s selective quotes do not tell the e ntire story. The C alifornia cou rt set out the fo llowing test: When a prospective juror in a criminal case fails to respo nd to a relevant, direc t and unam biguous q uestion du ring voir dire, the trial court, when hearing a motion f or new trial, sh ould determine whether the question propoun ded to the juror was (1) relevant to the voir dire examination; (2) whether it was unambiguous; and (3) w hether the ju ror had sub stantial knowledge of the information sought to be elicited. If the trial court s determination of these inquiries is in the affirmative, the court should then determine if prejudice to the defen dant in selecting the jury reasonably could be inferred from the juror s failure to respond. If prejudice reasonably could be inferred, then a n ew trial s hould b e order ed. Blackw ell, 236 Ca l. Rptr. at 806 ( citations and internal quotations omitted). In Blackw ell, the court had before it an affidavit from the juror, revealing the juror s bias. Id. at 805. The -5- content of the affidavit met the criteria for an inference of prejudice, and that the defense would have asse rted a perem ptory challeng e to eliminate this juror from the panel even if the misconduct would not permit a challenge for cause. Id. at 806. Blackw ell does not support the majority s ho lding that m ere non-d isclosure, w ithout more , mandates a new trial. In South C arolina, the law with respect to voir dire is that [w]h en a juror co nceals information inquired into during voir dire, a new trial is required only when the court finds the juror intentionally con cealed the in formation , and that the in formation concealed would have supported a challenge for cause or would have been a material factor in the use of the party's peremptory challenges. State v. Woods, 550 S.E.2d 282, 284 (S.C. 2001). Following an evidentiary hearing, the court found intentional concealment and prejudice because the information concealed wo uld have been a m aterial factor in the use of the party s perem ptory challen ges. Id. at 285. Woods cannot support the majority s holding. In Missouri, the purpose of voir dire is to enable a d efendan t to exercise th e right to challenge a juror f or caus e or to ex ercise p eremp tory challe nges. State v. Martin, 755 S.W.2d 337, 339 (Mo. Ct. App. 1988). The same is true for Tennessee, Arizona, New Jersey and Alabama, states relied up on by the ma jority. In all these ju risdiction s, voir dire is permissible for the intelligent exercise of peremptory challenges as well as for cause. In Doyle v. Kennedy Heating & Service, Inc., 33 S.W.3d 199, 200 (Mo. Ct. App. 2000), before the court granted a new trial based on juror non-disclosure, the court held an evidentiary hearing and found the juror conduct to be intentional. In State v. Akins, 867 -6- S.W.2d 350, 354-58 (Tenn. Crim. App. 1993), the court held a hearing, the juror testified, and the non-disclosure was determined to be intentional. In Board of Trustees Eloy Elementary School District v. McEwen, 430 P.2d 727, 728-29 (Ariz. Ct. App. 1967), the court had the juro r s deposition and made a determination that the non-disclosure was intentional. In Haye s v. Boy kin, 126 So. 2d 91 (Ala. 1960), where the trial court found, after a hearing, that the juror knew he was obligated to answer a voir dire question and did not do so, the Alabama Supreme Court, in upholding the trial court s grant of a new trial, concluded that had the juror responded to the question, his response would have revealed the information to counsel and counsel could have exercised a dvisedly his peremptory challenges, and thus availed himself of one of the manif est purp oses of [the A labam a Cod e]. Id. at 91-94. In Jackson v. United States, 395 F.2d 615, 616-17 (D.C. Cir. 1968), a case characterized by the court as o ne with bizarre facts, again, the trial court first held a hearing to flesh out the facts surrounding the juror s non-disclosure of sign ificant information befo re deciding w hether to gra nt a new tria l. In State v. Thompson, 361 A.2d 104, 108 (N .J. Super. Ct. App. Div. 1976), the appellate division ordered a ne w trial on the grounds th at a juror did n ot disclose h is employment as a state prison guard. Although the trial court did not hold an eviden tiary hearing and there was no finding of intentional non-disclosure, the court awarded a new trial because the court reasoned that [t]he key determinant is whether defendant has been deprived of a fair trial by jury by virtu e of his inab ility to exercise a peremptory challenge -7- because of the failure of the juror to make a candid response to the inquiry relating to a significant fact of potential bias. Id. at 107. Thus, the Thompson court s holding was premised on the ability of the defendant to use voir dire as a basis for the exercise of peremptory challenges, which is clearly not the law in Marylan d. Con sequen tly, Thompson lends no support to the majority s holding. II. This case fits w ell within the Maryland rule permitting and providing for a limited remand. Maryland Rule 8-604(d) provides in pertinent part as follows: (d) Remand. (1) Generally. If the Court concludes that the substantial merits of a case will not be determined by affirming, reversing or modifying the judgment, or that justice will be served by permitting further proceedings, the Court may remand the case to a lower court. In the order remanding a case, the appellate court shall state the purpose for the remand. The order of remand and the opinion upon wh ich the order is based are conclusive as to the points decided. Upon remand, the lower court shall conduct any further procee dings nec essary to determine the action in accordance with the opinion and order of the a ppellate court. We noted in Southern v. State, 371 M d. 93, 807 A .2d 13 (20 02), that a limite d remand is proper in various circumstan ces, particularly when th e purpose s of justice w ill be advanced by permitting further proceedings. Id. at 104-05, 807 A.2d at 19-20 (collectin g cases ). In Lipinski v. State, 333 Md. 582, 636 A.2d 994 (1994), we explained that although limited remand is not an appropriate disposition in a criminal case when the error at issue occurred -8- during the trial itself, it is appropriate if the error occurred during a proceedin g collateral to the trial itself, and the r emand is for the limited purpose of correcting the error that occurred during the colla teral pro ceedin g. Id. at 591-92, 636 A.2d at 998-99. The error in this case occurred during a collateral proceeding which took place after trial, when the trial judge failed to make the appropriate factual inquiry in response to appellant s motion for a new trial. Furthermore, for reasons discussed supra, limited rema nd wou ld further the interests of justice in this case. Limited remand is the appropriate disposition of the voir dire issue. In addition, proceeding in this fashion is consistent with the United States Supreme Court approach to Sixth A mendm ent violations and the ap proaches of other co urts in the country. Most oth er courts in the country have remanded cases for evidentiary hearings when presented with similar issues. See, e.g., Smith v. Phillips, 455 U.S. 209, 215, 102 S. Ct. 940, 945, 71 L. Ed. 2d 78 (1982) (noting that [t]his Court has long held that the remedy for allegations of juror partiality is a hearing in which the defendant has the opportunity to prove actual bias ). When the record is deficient to show whether the juror non-disclosure was intentional or inad vertent, m ost cou rts have procee ded in th is fashio n. See, e.g., State v. Thomas, 777 P.2d 445 (Utah 1989). Accordingly, I would adopt the McDonough test and remand this case for an evidentiary hea ring to see if b oth prong s of the test ha ve been m et. III. -9- Appellant also argued before this Court that the trial court erred in not granting a new trial by failing to disc lose that a police detective who testified for the State had been subject to an Internal Af fairs disciplina ry proceeding related to his handling of narcotics seized from suspects but unrelate d to the case at hand. Before this Court he relies on Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (19 63), and Maryland R ule 4-263(a). I would affirm the judgm ent of the trial c ourt and would hold that appellant failed to preserve for appellate review his claim for a new trial based upon Brady because he failed to raise it in his motion for a new trial. As to the State s obligation under the Marylan d Rules, I w ould find that the trial court was correct in conclud ing that the S tate had no obligation u nder Ru le 4-263(a) to disclose the detective s Internal Affairs records. A. Appellant was charged with various violations of the Controlled Dangerous Substances Act, includ ing distribution of cocain e and pos session of h eroin with in tent to distribute. Appellan t proceede d to trial along with a co-defendant, Jones. A jury convicted appellant on all counts with the exceptions of distribution of cocaine and the attempted distribution counts and he w as sentenced to term of incarceration on the several convictions. At trial, the State called as witnesses five police officers and three forensics experts. Two of the officers, Detectives White and Valencia, testified that while working undercover they attempted to purchase narcotics from appellant and Jone s. They furthe r testified that, -10- after giving a marked twenty do llar b ill to J ones, the y were fir st shown two gelatin caps containing a white powdery substance which they believed to be heroin; they then told Jones that they wanted coke, whereupon Jones, after c onferring with appe llant, eventua lly returned with two vials containing a rock-like substance and gave the vials to Detective Valencia. The other offic ers, Detectiv e Turner a nd Off icers Smith and Fields, were part of the arrest team awaiting nearby to arrest suspects upon the direction of White and Valencia. Detective Turner testified that he arrested appellant after receiving his description from Valencia. He further testified that he searched him incident to this arrest and discovered one vial of cocaine and seven gelatin caps containing heroin on his person, and later gave these items to Officer Smith to submit to the police department Evidence Control Unit (ECU). Officer Smith testified that she received these items from Turner, bu t did not see him seize them from a ppellan t when he arres ted and search ed him . Officer Fields testified that he was involved in the arrest of Jones at the direction of Valencia, and that he observed Jones being searched by another officer and the discovery of a glass smoking pipe incident to this search. The State s three other witnesses were all stipulated to be experts in forensic chemistry and testified that the items of evidence recovered from the searches of appellant and Jones and the gelatin caps given to Valencia by Jones all tested positive for the presence of cocaine or heroin. -11- Appellant and Jone s moved for a new trial. The trial cou rt held hearin gs on both motions, hearing Jones s mo tion before appellant s motion. In addition to moving for a new trial on grounds of non-disclosure of the juro r s relationship with an employee of the State s Attorney s Office, Jones moved for a new trial on the ground that the State failed to disclose that Turner had been subject to disciplinary actions by the Baltimore City Police Department on two separate occasions and had a third disciplinary matter pending at the time. Before the trial court ruled o n Jones s m otion, he w ithdrew the motion in accordan ce with an agreement reached with the S tate that in exc hange it would recommend the minimum sentence provided for by the sentenc ing guidelin es and pe rmit Jones to raise on appeal the issues raised in the motion. Jones s counsel stated on the record the basis for his motion, asserting as follows: The second issue for app eal would be that on e of the State s witnesses was Darryl Turner. Again, we were not aware that Dar ryl Turner in fact had some disciplinary action taken against him by the Ba ltimore C ity Police D epartm ent. I have a copy of a letter dated M arch 25, 2 002 from the B altim ore C ity Police Departm ent. That Detective Turner has a 1997 sustained conviction for mis condu ct. It was alleged that he had threatened a suspect by stating if he were to come to court he would deal with him in h is own way. A 1995 sustained charge of misconduct and negle ct of duty where the complaint was that the officer would seize drug s and not su bmit them to evidenc e, to evidence control. And there s an open charge from 2002 claiming that he f ailed to s ubmit $ 470.00 to EC U. At least two of those disciplinary actions I think would have been impeach able . . . . And again , we wer e not awa re of this until after the trial was over w ith. -12- The trial court, althou gh not ob ligated to rule o n the motio n becaus e it had been withdrawn, nonetheless commented on this ground as follows: Well, there s no duty for the State to disclose [Turner s disciplinary records] because they re not exculpatory to the incident itself and the only way that the defense gets access to them is by subpoenaing IID records. There s nothing in 4-263 that wo uld req uire the S tate to dis close th em. Approx imately two months later, the trial court held a hearing on app ellant s motion for a new trial. In his motion, appellant argued he should be granted a new trial because, among other reason s, disclo sure by the State aft er the tria l indicate s that Office r Da rryl Turner had pending theft charges that could have been used for impeachment. At the hearing on his motion for a new trial, appellant argued for a new trial on the two grounds Jones relie d upon, a nd also o n the grou nd th at he was tried imprope rly in absentia . 1 Appellant s counsel advised the trial court that he had the benefit of hearing the Motion on the co-defendant [Jo nes] which w as heard and de nied . . . . 2 He then indicated his intention to rely on the arguments of Jones s counsel on the issue of the State s failure to disclose Turner s disciplinary record in advance of trial, stating that this issue had been heard and . . . I will ad opt the a rgume nts raise d by prev ious co unsel. 1 This ground is not at issue in this appeal. As discussed supra, appellant s counsel was incorrect in stating that the trial court denied Jones s motion. As noted, Jones s motion was withdrawn prior to a ruling by the trial court. Nonetheless, appellant s counsel s confusion on this point is perhaps understandable given that the trial court opined on how it would have ruled on Jones s motion. 2 -13- After hearing additional argument from appellant s counsel and ruling on the voir dire issue, the trial court denie d appellan t s motion fo r a new trial a nd explain ed its rejection of his argument based on the State s non-disclosu re of Turner s disciplinary record as follows: That wasn t information that had to be disc losed by the S tate under Rule 4-263. The fact that he might have had an Internal Affairs problem on another occasion w asn t exculpatory to this Defendant s guilt. The proper way to obtain that information, as has been done hu ndreds of other times, is for the defense to find out about it, issue a subpoena for those records and impeach him w ith those record s. B. Appellant s Brady argument that the trial court erred in denying his motion for a new trial is not prope rly before this Court. The record reveals that appellant never raised Brady in his motion before the trial court. Under Rule 8-1 31(a), this Co urt [o]rdina rily . . . will not decide [an] issue unless it plainly appears by the record to have been raised in or decided by the trial co urt. Although Rule 8-131(a) does give the Court limited discretion to address an issue not raise d below , I find it inapprop riate to exercise that discretion in this case . See Abeo kuto v. S tate, 391 Md. 289, 328, 893 A.2d 1018, 1042 (2006) (stating that ineffective assistance of counsel claim more properly raised in post-conviction proceeding because, ordinarily, the trial record does not illum inate the bas is for the cha llenged acts or omissions of couns el). Cf. Keeter v. State, 175 S .W.3d 756 (T ex. Crim . App. 2005) (holding that -14- because defendant never mentioned Brady in motion for new trial, appellate court would not consider the issue). In appellant s motion for a new trial, he made no reference to Brady, and at argument before the trial court, he relied exclusively on the arguments previously raised in Jones s motion for a new trial. Jones never argue d that the State had a duty unde r Brady to disclose this information. As appe llant relied exc lusively on Jones s arguments, he also failed to raise Brady before the trial court. Moreover, the trial court did not understand either Jones or appellant to have raised a Brady issue. Although Jones withdrew his motion for a new trial before the court ruled o n it, the court said that the motion was meritless because [t]here s nothing in [Rule] 4 -263 that w ould require the State to d isclose them . The trial co urt did not mention Brady, let alone attem pt to explain why the State would not have an obligation under Brady to disclose this information. In addition, the unpreserved Brady issue is inappropriate for review because the matter requires ad ditional factu al develop ment. Ord inarily, appellate courts should not exercise their discretion to consider issues not raised below when the issue raised for the first time on appeal requires additional factual development. See, e.g ., Jones v . State, 379 Md. 704, 714, 843 A.2d 778, 784 (2004 ); Orr v. Wal-Mart Stores, Inc., 297 F.3d 720, 725 (8th Cir. 2002). Given the record in the present case, it would be inappropriate to pass upon appellant s Brady issue. To establish a Brady violation, a defendant must show that the -15- evidence at issue (1) is fa vorable to th e accused , either becau se it is excu lpato ry, or because it is impeaching; (2) was suppressed by the State, either willfully or inadverte ntly; and (3) is materia l. Strickler v. Greene, 527 U.S. 263, 281-82, 119 S. Ct. 1936, 1948, 144 L. Ed. 2d 286 (199 9); Wilson v. Sta te, 363 Md. 333 , 345-46, 768 A .2d 675, 681-82 (2 001). Since Brady was not raised in or decided b y the trial court, the record before the C ourt does not permit a determina tion as to whether any of the necessary elements of a Brady claim are established in the present case. Although Jones s counsel claimed before the trial court that Turner s disciplinary record wa s detailed in a letter he received from the Baltimore City Police Departm ent, the record does not c ontain that lette r or anything else detailing the disciplinary proceedings concerning Turner. Given this gap in the record, this Court co uld not determine whether Turner s d isciplinary record would b e favorab le to appellan t, and, if so, whether it would be sufficiently favorable to meet the Brady materiality test. Second, the record is u nclear as to when appellant actually possessed the information concerning Turner s disciplinary record. There is a factual conflict in this record as to when appellant learned of this information . In Jones s motion for a new trial, he indicated that his counsel was un aware of the ongoin g investigatio n of De tective Turn er during tria l, and was only advised of the investigation b y the prosecution after trial. At the hearing on Jo nes s motion for a new trial, his counse l informed the court that the issue concerning T urner s disciplinary record had not been raised at trial because information on . . . [that] issue[] -16- came to us after the trial was over. This colloquy suggests that Jones s counsel was not in possession of information regarding Turner s disciplinary record until sometime after April 2, 2003, the date the trial concluded. Nonetheless, he also informed the court during the hearing that he subpoenaed Turner s records before the beginning of his trial and that the subpoena was resp onded to b y the Police Departme nt on March th e 25[th], which was the same day we started trial. (Emphasis added). Jones s counsel then stated that this material [i.e., Turner s disciplinary record] came at least a day or two sub sequently to our trial beginning. (Emphasis added). These statements suggest that Jones s counsel had the information regarding T urner s discip linary record on or near M arch 25, 20 03, prior to Turner s testimony at trial on April 1, 2003. The record, furthermore, fails to disclose when Jones s counsel shared this information with appellant s counsel. The record, therefore, is inadequa te to determin e reliably whe ther the suppression element of the Brady test is satisfied because it is u nclear wh en appellan t actually possessed the information concerning Turner s disciplinary record. C. The remaining issue befo re this Cou rt is the scope of the obligation of the prosecutor to disclose information to the defense without a request under the Maryland Rules. The issue, therefore, is not due process but discovery under the Maryland Rules. The trial court -17- concluded that under Rule 4-263, the fact that the officer might have had an Internal Affairs problem on anothe r occasion w asn t exculp atory to this Defendant s guilt. The trial judge also said that the proper way to get that information was for the defendant to find out about the information and to issue a subpoena for the records.3 Rule 4-263(a) states, in pertinent part, as follows: (a) Disclosure W ithout Requ est. Without the necessity of a request, the S tate s Attorne y shall furnish to the defen dant: (1) Any material or information tending to negate or mitigate the guilt or punishment of the defen dant as to the of fense c harged . The question in this case is whether Internal Affairs re cords of a police off icer, gathered in a matter unrelated to the charge at hand, must be disclosed to the defense without a request by defense c ounsel. Rule 4-263(g) states as follows: (g) Obligations of State s Attorney. The obligations of the State s Attorney under this Rule extend to material and information in the possession or control of the State s Attorney and staff mem bers and any others who have participated in the investigation or evaluation o f the action a nd who either regula rly report, or w ith reference to the particular action have reported, to the of fice of the State s Attor ney. 3 I do not think that the trial court was suggesting that impeachment materials were outside the scope of Brady requirements. To the extent that the judge s remark might be interpreted as such, obviously that is incorrect. See Youngblood v. West Virginia, 126 S. Ct. 2188, 2190 (2006) (citing United States v. Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 3380, 87 L. Ed. 2d 481 (1985) (holding that Brady applies to impeachment evidence)). -18- Appellant argues that Williams v. State, 152 M d. App . 200, 831 A.2d 501 (2003) should dictate the outcome in the instant case. He is wrong. First, this Court granted certiorari in Williams, and in State v. Williams, 392 Md. 194, 896 A.2d 973 (2006), affirmed the Court of Spec ial Appeals. In State v. Williams, this Court h eld that, for Brady purposes, the knowledge of evidence held by one prosecutor will be imputed to another prosecutor within the same office . Id. at 211, 896 A.2d at 983. We noted that the policy basis for our holding will, potentia lly, avoid problem s of intentional shielding of information and the existence of artificially created circumstances in wh ich prosecutors can plausibly de ny having had access to any exculpatory evidence. Id. at 222, 896 A.2d a t 989. This case does not deal with members of the State s Attorney s Office. Rather, this case concerns informatio n within the confidential police department personnel files, gathered in a matter unrelated to the charge before the Circuit Co urt. I would hold that information within the police Internal Affairs Department does not come within the scope of Rule 4-263(a). Although the information sought by ap pellant is potential impeachment material, it is information contained within the confidential personnel files of the police officer, and is likely to be unknown to the prosecutor. Under Rule 4263(a), the prosecution has a duty to disclose to the defense, without a request, [a]ny material or inform ation tendin g to negate or mitigate the guilt or punishment of the defendant as to the offe nse charg ed. Enco mpassed within this d uty to disclose is not only exculpatory -19- evidence, but also imp eachm ent evid ence. See Williams, 392 Md. at 206-10, 896 A.2d at 980-82. Although facts known to the police are to be imp uted to the State for Brady purposes and are subject to mandatory disclosure o bligations w ithout a requ est, this duty under Rule 4-263 is limited to information related to the specific case. United States v. Avellino, 136 F.3d 249 (2d Cir. 1998) is instructive on th is point. There, the court explained the rationale for not expan ding the sco pe of the p rosecutor s d uty to search for exculpatory information to include knowledge of inform ation not ga thered in connection with the case as follows: [K]nowledge on the part of persons employed by a different office of the government does not in all instances warrant the imputation of know ledge to the prosecutor, for the imposition of an unlimited d uty on a prose cutor to inquire of other offices not working with the prosecutor s office on the case in question would inappropriately require us to adopt a monolithic view of government that would condem n the prose cution of c riminal cases to a state of paralysis. Id. at 255 (quoting United States v. Gambino, 835 F. Supp. 74, 95 (E.D .N.Y. 199 3)); see also United States v. Stein , 424 F. Supp. 2d 720, 723 (S.D.N.Y. 2006) (citing Avellino, and holding tha t the prosecu tion did not have a duty to search information in possession of the Internal Revenue Service that was not gathered in connection with the case, even though IRS criminal investigators were assisting in the prosecution of the case ). -20- The records of Detective Turner are personnel records and as such, under Md. Code (1984, 2004 R epl. Vo l., 2005 Cum. Supp .), § 10-616(i) of the State Go vernment Article, are confiden tial. See Kirwan v. The Diamondback, 352 Md. 74, 82-83, 721 A.2d 196, 200 (1998) (interpreting § 10-616(i), and concluding that it reflects a legislative intent that personnel records mean those documents that directly pertain to employment and an employee's ability to perform a job ); Baltimor e City Polic e Dep t v. S tate, 158 Md. App. 274, 282-83, 857 A.2d 148, 153 (2004) (applying Kirwan, and holding that police internal affairs records are personnel records within the meaning of § 10-616). Even though these records are not sub ject to the ma ndatory disclos ure by the State under 4-263(a), they may nonetheless be su bjec t to discovery b y a defend ant in a crimin al case und er certain circumstances, but subject to discovery only pursuant to certain procedures. In the context of pretrial discovery, in order to obtain access to police officer Internal Affairs records, a defendant should file a motion pursuant to Rule 4-264,4 asking the court to issue a subpoena for the records. In the motion, the defendant should include a description of the records or information sought and good cause for the discovery or disclosure, 4 Md. Rule 4-264 provides as follows: On motion of a party, the circuit court may order the issuance of a subpoena commanding a person to produce for inspection and copying at a specified time and place before trial designated documents, recordings, photographs, or other tangible things, not privileged, which may constitute or contain evidence relevant to the action. Any response to the motion shall be filed within five days. -21- including a statement as to the materiality of the information to the subject matter involved in the pending case. Cf. Zaal v. S tate, 326 Md. 54, 87, 602 A.2d 1247, 1263-64 (1992) (setting forth procedures for discovery by a criminal defendant of confidential public records, and specifically requiring a threshold showing of the need to inspect the records). If the trial court is satisfied that this threshold showing has been made, it then should ordinarily conduct an in camera examination of the potentially relevant records to determine whether they have any relevance to the issues presented in the case before the court, and order disclosure of those record s whic h are m aterial. See id. (prescribing that, after threshold showing of need to inspect has been satisfied, the court may elect to review the records alone, to conduct the review in the presence of counsel, or to permit review by counsel a lone, as officers of the court, subject to such restrictions as the co urt requ ires to pr otect the record s conf identialit y, and further spe cifying factors that courts sh ould take in to accoun t in deciding between these alternatives). This procedure balances the need of a criminal defendant to access information material to the defense with the State s legitimate interest in the confidentiality of police personnel records. This procedure is consistent with a criminal defendant s due process right of access to ex culpatory info rmation co ntained in public records that are confidential under state law . See Pen nsylvania v . Ritchie, 480 U.S. 39, 57-61, 107 S. Ct. 989, 1001-03, 94 L. Ed. 2d 40 (198 7). -22- Confidential Internal Affairs police personnel records contained within the police department are different from information contained within the files of the State s Attorney s Office. I conclude that the State did not have an obligation under Rule 4-263(a) to disclose to appellant the police officer s disciplinary records or inform ation regarding the disciplinary action taken against the office r because th is informatio n and ma terial was no t subject to potential disclosure under Rule 4-263 by subse ction (g). The disciplinary records themselves involved prior, unrelated cases and in no way arose as a result of the investigation or prosecutio n of appe llant. For the foregoing reasons, I would remand the case to the Circuit Court, without affirming or reversing , for the limited purpose o f holding a hearin g on the juror voir dire issue. Judge Harrell and Judge Battaglia have authorized me to state that they join in the views expressed in this opinion. -23-
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