Owens v. State

Annotate this Case

Download PDF

Marcus Dannon Owens v. State of Maryland, No. 103, Sept. Term 2006. CONSTITUTIONAL LAW - THE COMMON LAW RIGHT TO A JURY COMPOSED ENTIRELY OF U.S. CITIZENS IN A CRIMINAL TRIAL HAS BEEN ABROGATED BY LEGISLATIVE ACTION COVERING THE ENTIRE SUBJECT MATTER OF JURY SELECTION - STATUTORY RIGHT TO A JURY OF U.S. CITIZENS IS WAIVED IF DEFENDANT FAILS TO ASK FOR VOIR DIRE QUESTION TO DISCOVER ANY NON CITIZEN S - BOYD V. STATE, 341 MD. 431 (1996) PARTIALLY OVERRULED. Circuit Co urt for How ard Cou nty Case # 13-K-03-04298 5 IN IN THE COURT OF APPEALS OF MARYLAND No. 103 September Term, 2006 MARCUS DANNON OWENS v. STATE OF MARYLAND Bell, C.J. Raker Cathell Harrell Battaglia Greene Wilner, Alan M . (Retired, spe cially assigned), JJ. Opinion by Harrell, J. Bell, C.J., and Cathell, J., Diss ent. Filed: June 5, 2007 Trial by jury is laud ed as th e very pa lladium of free govern ment, 1 and a sacred bulwark of the n ation. 2 Thomas Jefferson lauded trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitu tion. 3 W RITINGS OF T HOMAS J EFFERSON 71 (Wa shington e d., 1861). E ncroachm ent on this institution by the expanding jurisdiction of the English vice-admiralty courts, the trials of which were conducted without juries,3 was chief among the complaints registered by American colonists in the Declaration of Independence.4 There can be no question that the jury trial is a vital and cherished institution of United States5 and Maryland law.6 1 T HE F EDERALIST N O. 83, at 519 (Alexan der Hamilton) (J. Gide on ed., 1818). 2 4 W ILLIAM B LACKSTONE, C OMMENTARIES *344 (1769) (referring to England, whose common law was applicable to the American colonies at the time of Blackston e s writing). 3 Daniel D. Blinka, Jefferson and Juries: The Problem of Law, Reason, and Politics in the New Republic , 47 A M. J. L EGAL H IST. 35, 79 (2005). 4 T HE D ECLARATION OF INDEPENDENCE para. 20 (U .S. 1776) ( For depriv ing us in many cases, of the benefit of Trial by Jury. ). By operation of the Sugar Act of 1764 and the Stamp Act of 1765, offenses under those statutes were to be tried by the vice-adm iralty court located in Halifax, Nova Scotia, regardless of where the offense w as comm itted, even if it had no ma ritime im plication s. Blinka , supra note 3, at 79; see also Thom as C. G rey, Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought, 30 S TAN. L. R EV. 843, 870 (1978). This compounded the abridgment of the right to a jury trial by removin g the power to render judgment from the vicinage of where the offense was committed. Sam Sparks & Ge orge B utts, Disappearing Juries and Jury Verdicts, 39 TEX. T ECH L. R EV. 289, 290-91 (2007); see also infra note 24 for more on the concept of vicinage. Further, the Coercive or In tolerable Acts of 1774 provided that some v iolations of its provisions had to b e tried in Engla nd. L EONARD W. L EVY, O RIGINS OF THE B ILL OF R IGHTS 226 (1999). 5 In addition to its mention as a grievance against the Crown in the Declaration of Independence, the preservation of the jury trial was discussed in several other foundational documents. The Sta mp Ac t Congres s, so-called b ecause its ten ure coincided with the (contin ued...) With that historical perspective firmly in mind, we confront the issues concerning this right debated b y the parties in the p resent case. The primary controversy touches on the 5 (...continued) passage of the Ac t, declared in a petition to the King the colonies full power of legislation and trial by jury. Joh n Dick inson, A Petition to the King from the Stamp Act Congress, in 1 T HE P OLITICAL W RITINGS OF J OHN D ICKINSON 1764-1774, at 193-96 (Paul L eicester Ford ed., 1970) (1895)). The First Continental Congress expressed in the fifth resolution of The Declaration of Rights of 1774 that the respective colonies are entitled to the common law of England , and more especially to the g reat and ine stimable priv ilege of be ing tried by their peers of the vicin age, accord ing to the course of that law. 1 JOURNALS OF THE C ONTINENTAL C ONGRESS: 1774-1789, at 69 (Worthington C. Ford ed., 1904). T he right to jury trial was also secured in The Northwest Ordinance of 1787. Northwest Ordinance of 1787, art. II, reprinted in 2 T HE F EDERAL AND S TATE C ONSTITUTIONS, C OLONIAL C HARTERS, AND O THER O RGANIC L AWS 960-61 (Francis N. Tho rpe ed., 190 9). Further, ev ery state constitution compos ed prior to 1 787 gua ranteed the right to a jury trial in criminal cases. L EONARD L EVY, Bill of Rights , in E SSAYS ON THE M AKING OF THE C ONSTITUTION 258, 269 (Leonard Lev y ed., 1987). Since our nation s founding, the right to tri al by ju ry has been defe nded vig orou sly. American jurisprudence on the right to jury trials is epic, beginning with the landmark case of Strauder v . West Virgin ia, 100 U.S. (10 Otto) 303, 309, 25 L. Ed. 664 (1880), enforcing a black defendant s right to a jury not selected by discriminato ry means inten ded to elim inate black jurors. The seminal decisions in Batson v. Kentucky, 476 U.S. 79, 89, 106 S. Ct. 1712, 1719, 90 L. Ed. 2d 69 (1986), and J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 146, 114 S. Ct. 1419, 1 430, 128 L . Ed. 2d 89 (1994), restricting discriminatory abuse s of peremptory challenges to remove blacks and women from criminal juries, respectively, represent the latest struggles to p reserve this fundamental institution. In view of this history, the Supreme Court has opined that the inestimable privilege of trial by jury . . . is a vital principle, underlying the whole administration of criminal justice. McCleskey v. Kemp, 481 U.S. 279, 309, 107 S. Ct. 1756, 1776, 95 L. Ed. 2d 262 (1987) (quoting Ex parte Milligan, 71 U.S. (4 Wall.) 2, 123, 18 L. Ed . 281 (1866)). 6 The first Constitutional Convention of Maryland referred to the same grievance of the abridgment of the right to a jury trial as articulated in the Declaration of Independence. P ROCEEDINGS OF THE C ONVENTIONS OF THE P ROVINCE OF M ARYLAND, 1774-1776, at 202 (James Lucas & E. K. Deaver eds., 1836). Accordingly, the delegates enshrined the right in multiple places in the first D eclaratio n of R ights. Id. at 311, 313 (Articles 3, 19, and 21). Recently we affirmed the fundam ental charac ter of the righ t to a jury trial in criminal cases. Powell v. S tate, 394 Md. 632 , 646, 907 A.2d 2 42, 250 (2006). 2 question of whether the empanelling of a non-citizen on a jury in a criminal case abridged Marcus Danno n Owe ns s right to a jury trial under either the U.S. or Maryland Constitutions. Alte rnatively, we con sider whe ther empa neling a no n-citizen juro r violates merely Maryland statutory law. In either case, we decide whether Owen s waived his opportun ity to obje ct to s ervice by t he non-c itizen on his ju ry. The second issue we review is whether Owens was in c ustody, as that te rm is understood in Fifth Amendment jurisprudence, at the time he was questioned, without Miranda 7 warnings, by the police at the hospital where his stepson was taken following a med ical e mergency. I. FACTS Marcus Dannon Owens was tried in the Circuit Court for Howard County before a presiding judge and a jury of twelve individuals, on charges of murder and child abuse resulting in death. The jury convicted Owens of second degree murder and child abuse resulting in death. The victim of both cr imes w as Ow ens s ste pson, K evonte Davis . The trial judge sentenced Owens to two consecutively-running 30 year terms in prison. The facts giving rise to these convictions are not in dispute. Owens married Kenesha Davis in late July 2003, and lived with her in their Columbia, Maryland, townho use. Also liv ing with the couple were Davis s two children from a prior relationship: Dacquan Davis, age four; and Kev onte Davis, age 2; as w ell as the couple s 7 384 U.S. 436, 86 S. Ct. 1602, 16 L. E d. 2d 694 (1966 ). 3 seven m onth-old inf ant, Kemari Owen s. In July 2003, O wens w as unem ployed, but D avis worked at a warehouse for the distributing firm, Genco, in Columbia where she typically worked from 7 :00 a.m . until 5:3 0 p.m. T he cou ple sha red a sin gle car s o, each morning, Owens would drive the children to daycare, drop his wife off at Genco, and then return home. At the end of the work da y, Owens w ould pick up the children and his wife and return home. Owens deviated from that routine on the morning of 30 July 2003 when h e took D avis to work dire ctly, without dro pping the c hildren at da ycare. Davis te stified that Kevonte appeared normal when she exited the car. Kevonte, however, did not appear so when Owens picked Davis up from work approxim ately 10 hours later. Davis noticed that Kevonte had his eyes closed, was foaming at the mouth, had cold hands, and was moaning like he was in pain. She and Owens took Kevonte to Howard County General Hospital ( the Hospital ), where the child died after approximately thirty minutes of failed attempts to revive him. A number of witnesses from the Hospital medical staff testified at Owens s trial to the extent and possible causes o f the injuries leading to Kev onte s death. The consensus of the testimony was that Kevonte sustained severe trauma on the level of a serious car accident or a fall off a building of several stories.8 Several of the staff m embers also noted tha t Owens s explanation of Kevonte s ac tivities during the critical 10 hours on July 23 was not consistent with the extent of his injuries. At abou t 6:30 p.m., Howa rd County Police Detectives Eric 8 Dr. Zabiullah Ali, an Assistant Medica l Examiner, perform ed an auto psy on Kev onte and concluded that the cause of death was multiple blunt force trauma inflicted less than four to six hours before death. 4 Kruhm and Vicki Shaffer encountered and interviewed Owens for 10 to 15 minutes in the playroom of the Hospital s pediatric ward, where he was tending Dacquan. That conversation, to which Owens w as apparently a free participant, yielded some additi onal background on the day s events. Owens indicated that the two older boys had spent the day playing and watching TV together and seemed relatively normal at lunch time. Around the time the children and Owe ns picked up D avis, however, Kevon te was fu ssy and diff icult to keep awake. When asked how Kevonte received such heavy bruising, Owens attributed it to fighting with his four year-old brother, Dacquan. The detectives noted that Owens seemed nervous during their conversation.9 The interview ended when Owens left the room. At that point, the detectives considered Owens a suspect in Kevonte s death. Several hours later, around 9:48 p.m., the detectives conducted a second interview. The detectives approached Owens, who was in the Hospital parking lot, and asked him to come back inside for another interview. Owens complied with the request and also did not object to the audiotaping of the interview. The two plain-clothes detectives an d their suspe ct, Owens, convened in an empty room in the pediatric ward, several doors down from the playroom where the first interview took pl ace. The detectives took p ossession of Ow ens s car keys, but the record is not clear as to whether this occurred before or after the second 9 Detective Kruhm testified that [a ]t one point, [Owens banged] his head against the wall and muttered, Fucking up. And then at another point in the conversation, between questions he said to hims elf, just audibly, How does this shit hap pen? 5 interview.10 During the interview, the detectives asked pointed questions about the circumstances surrounding the death of Kevonte. The interview lasted somewhere between 20 and 30 minutes a nd was terminated at Owens s initiative. The following exchange took place at the end of the interview: [Owens]: Is there anything else before I go? [Detective Kruh m]: You can l eave at an y time; we re not holding you in here anymore. [Owens]: All right. See you tomorrow. The police arrested Owens two days later on 1 August 2003. II. PROCEDURAL HISTORY A. Non-Citizen Juror Issue The jury in Owe ns s trial returne d its verdict against him on 10 June 2004. Later that same evening, S teven M erson, the H oward C ounty Jury Com missioner, re ceived a v oicemail message from Juror No. 10, Adeyemi Alade. Alade indicated that he was concerned about the propriety of his jury service because he was not a U.S. citizen. On 18 June 2004, the Circuit Court held a hearing regarding this revelation. At the hearing, Merson explained that Alade expressed concern for the status of the case because he had just learned that jury service was restricted to U.S. citizens. Merson testified that Alade indicated that he was 10 Despite some uncertainty, cross-examination of Detective Kruhm and the direct testimony of Owens seem to indicate that the keys were obtained prior to the second interview. 6 qualified to serve as a juror on his p re-trial juror que stionnaire. A ccording to Merson , his office does not review for accuracy the responses provided by juror candidates unless some information is missing. Merson also confirmed that the videotape show n to potential jurors upon their arrival for service does not include information relating to qualification for service. Alade testified that his country of origin was Nigeria and that he was not a U.S. citizen. Rather, he stated that he had been in the U.S. for two years as a permanent residen t, was attending university, and had obtained a valid Maryland driver s license, listing his Howard County residence address. Alade acknowledged that he checked the box on the juror questionnaire indicating that he was qua lified to serve as a juror as an oversight and did n ot do so de liber ately. App aren tly, no one inq uired into his c itizenship status when he reported for possible jury duty and he was never asked about the subject at any point in the trial. For A lade s part, the court fo und no in tent to misreprese nt his status to th e court. Owens filed a Motion for a New Trial on the same day as th e hearing. T he rationale for the motion was that Owens was deprived of a lawful jury because Alade, as a non-U.S. citizen, was not q ualified to se rve as a juro r. The State a rgued that the citizenship requirement for jurors is confined to the realm of statutory rights, a right which Owens waived by not challen ging Alad e s service in a timely fashion. The Circuit Co urt, on 21 Ju ly 2004, denied Owens s motion. The court reasoned that neither the U.S. nor Maryland Constitutions mandate a jury composed of U.S. citizens only. As to Owen s s contention that 7 Alade s non-citizen ship status co uld not reasonably have been discovered because voir dire questions relat ing to statutory disq ualif ications a re no t man dato ry, the court pointed out that neither party sought a voir dire question on the subject of citizenship. Had it been proposed, the court ventured that the citizenship question w ould have been propounded to the jurors and Alade w ould have been disqualified as a juror. B. Suppression Issue Prior to trial, Owens sought to suppress any statements he made to Detectives Kruhm and Shaffer d uring their two intervie ws. Ow ens argue d that the co nversation s betwee n him and the detectives occurred while he was in custody and must be suppressed because the detectives never advised him of his Miranda rights. The Circuit Court denied the motion to suppress the statements made during the interviews based on a totality of the circumstances analysis. The court examined numerous factors in concluding that the interrogation of Owens was not custodial, including: the neutral locations and short length of the interviews, the small number of officers present and their relaxed posture, whether Owens was a suspect and treated as such, Owens s willingness to commence the interviews, the lack of use of physical restraint, the absence of force or coercion, and that Owens was not placed under arrest. C. Revie w by the C ourt of Sp ecial App eals Owens noted tim ely an app eal to the Court o f Spec ial App eals. The intermediate appellate court affirmed the judgment of the Circuit Court. As to both issues discussed 8 prev ious ly, it relied on much th e same gro unds as ex pressed by the trial court. 11 The intermedia te appellate co urt conclud ed that Ow ens s right to a citizen jury was purely statu tory, not con stitutiona l, in natur e. Owens v. State, 170 Md. App. 35, 71, 906 A.2d 989, 1009 (2006). Because the voir dire process is the means by which defendants are accorded the opportunity to identify and challenge unqualified jurors, a failure to pose proper questions and object d uring th at time is e quated to a wa iver of t hat opp ortunity. Owens, 170 Md. App. at 71-73, 906 A.2d at 1009-10. The Court of Special Appeals reinforced its conclusion by examining Kohl v. Lehlback, 160 U.S. 293, 16 S. Ct. 304, 40 L. Ed. 432 (1895), a case where, in spite of a due process argument, the Sup reme Co urt refused to grant a po stconviction objection to a non -citizen ju ror. Owens, 170 Md. App. at 73, 906 A.2d at 1010. The appellate panel analogized Kohl to several Maryland cases involving jurors whose statutory disqualifications were discovered only after a verdict was rendered and motions for new trials were denied because it was held that the right to object to unqualified jurors had been waive d. Owens, 170 Md. App. at 73-77, 906 A.2d at 1010-12. As for the custodial interrogation issue, the Court of Special A ppeals reasoned that the encounters between the detectives and Owens were not very long and that a reasonable person in Owens s position would have felt free to leave the situa tions. Owens, 170 Md. App. at 99, 906 A.2d at 1025. We granted O wens s petition for a w rit of certiorari. 396 Md. 12, 91 2 A.2d 648 (2 006). 11 Owens also raised a sufficiency of the evidence argument. He does not pursue that in this Cou rt. 9 III. STANDARD OF REVIEW A. Non-Citizen Juror Issue In another case concerning the right to a jury trial, albeit in the realm of civil law, we said that [b]eca use our inte rpretation of the Maryland Declaration of Rights and Constitution, provisions of the Maryland Code, and the Maryland Rules are approp riately classified as questions of law, we review the issues de novo to determine if the trial court was legally correct in its rulings on these matters. Davis v. Slater, 383 Md. 599, 604, 861 A.2d 78, 80-81 (20 04); see also Sc hisler v. State, 394 Md. 519, 535, 907 A.2d 175, 184 (2006) ( where an order involves an interpretation and application o f Maryland constitutiona l, statutory or case law , our Cou rt must determ ine whether the trial court s conclusions are legally correct under a de novo standard of review ). T hus, becau se we are presented w ith legal questions on the constitutional and statutory soundness of a jury containing a noncitizen, we consider them de novo. B. Suppression Issue In State v. Rucker, 374 Md . 199, 207, 821 A.2d 439, 443-44 (2003) (citations omitted), we stated the applicable standard of review regarding motions to suppress and determinations of custody for purposes of evaluating arguments asserting Miranda right violations: Our re view . . . is ordinarily limited to the evidence presented at the suppression hearing. In conducting our analysis, we view the evidence and inferences that may be reasonably drawn therefrom in a light most favorable to the prevailing party on the 10 motion . . . . We pay deference to the trial court's factual findings, upholding them u nless th ey are clea rly errone ous. [We] must make an indep enden t constitu tional ev aluation , however, by reviewing the relevant law and applying it to the unique facts an d circum stances of the c ase. In determining whether there was custody for purposes of Miranda, we accept the trial court s findings of fact unless clearly erroneous. We must, however, make an independent constitutional appraisal of the record to determine the correct ness of the trial ju dge s d ecision conce rning c ustody. IV. DISCUSSION A. Non-Citizen Juror Issue Owens advances two interrelated arguments in support of his position that the Maryland Constitution recognizes a right to a trial by a jury composed only of United States citizens. He argues that the substantive due process component of Article 24 of the Declaratio n of Righ ts, guarantee ing that no p erson is to be d eprived of his life, liberty, or prop erty, but by the judg ment of h is peers, 12 when informed by English common law made applicable th rough A rticle 5, means a jury of citizens. Assertedly, English common law at the time of the Revolution required jurors to be citizens. This general rule, Owens contends, is proven by its exception: jury de medietate linguae,13 the mechanism by which 12 The phrase judgment of [on e s] pee rs mea ns trial b y jury. Tichnell v. Sta te, 287 Md. 695, 714, 415 A.2d 830, 840 (1980) (citing Wright v. Wright s Lessee, 2 Md. 429, 452 (1852)). 13 This Latin phrase is translated to of half-tongue, which is a reference to the fact that half of the jury speaks the same language as the defendant, and the other doe s not. B LACK S L AW D ICTIONARY 463 (8th ed. 1999 ). 11 non-English citizens were tried, which permitted the jury to be composed of one-half citizens and one-half non-citizens.14 3 W ILLIAM B LACKSTONE, C OMMENTARIES *362 (1768). Thus, by the complimentary operation of Articles 5 and 24, Owens posits that the Declaration of Rights in the Maryland Constitution secures for defendants like himself the right to a trial by a jury of U.S. citizens. As a right of constitutional pedigree, it may be waived only upon a knowing and volu ntary Johnson v. Zerbst 15 -type waiver by the defendant himself, a much harder waiver for the State to prove than must be shown for waiver of a statutory right. Even if the right to a citizen jury is of a statutory, rather than constitutional dimension, Owens maintains that he did not waive that right because our decision in Boyd v. S tate, 341 Md. 431, 439-40, 671 A.2d 33, 37 (1996), would have made his request for a voir dire question regarding c itizenship po tentially a futile effo rt. The State responds by directing us to the U.S. Supreme Court s decisions in Kohl and Carter v. Jury Commission, 396 U.S. 320, 90 S. Ct. 518, 24 L. Ed. 2d 549 (1970), implying 14 In the event that the requisite number of aliens could not be summoned, the common law permitted the trial to continue with a jury composed of as man y alien s as p ossible, if any. R ICHARD C LARKE S EWELL , A T REATISE ON THE L AW OF S HERIFF 357 (184 5); 3 W. F. F INLASON, R EEVES H ISTORY OF THE E NGLISH L AW 195 (188 0); M AXIMUS A. L ESSER, T HE H ISTORICAL D EVELOPMENT OF THE J URY S YSTEM 219, n.59 (1894); L LOYD E. M OORE, T HE J URY: T OOL OF K INGS, P ALLADIUM OF L IBERTY 58 (2d 3d . 1988). Th e purpose of this procedure was to ensure an impartial jury, w hich was more likely to occur if some of the defendant s own countrymen were empanelled to dilute possible xenophobia on the part of the English jurors. 3 W ILLIAM B LACKSTONE, C OMMENTARIES *360 (1768); 2 FREDERICK P OLLOCK & F REDERIC W ILLIAM M AITLAND, T HE H ISTORY OF E NGLISH L AW 623-2 4 n.3 (1898) (hereinafter P OLLOCK & M AITLAND). 15 304 U.S. 458 , 58 S. Ct. 10 19, 82 L. E d. 1461 (1 938); see infra note 41 and accomp anying text. 12 that the U.S. Constitution does not mandate citizen juries. Additionally, the State argues that the Maryland Constitution is amenable to a similar interpretation, despite the common law practice of trials b y jury de med ietate linguae. Instead, Owens s right to a jury composed of U.S. citizens exists solely as a matter of statutory law , which righ t he waive d by failing to request a voir dire question inquiring into the citizenship status of the venire. The Sixth Am endmen t to the U.S. C onstitution guaran tees the right to a trial by an impartial jury in criminal matters.16 This right has been incorporated into the Due Process Clause of the Fourtee nth Am endmen t to the U.S. C onstitution, an d is thereby app licable to Maryland and the sev eral state s. Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1 968); accord Miller v. Warden, 16 Md. App. 614, 623-24, 299 A.2d 862, 868 (1973). The Maryland Constitution also provides for the right to a jury trial in several articles of its Declaration of Rights. Two of the provisions deal specifically with the right to a jury trial in criminal cases: Articles 2117 and 23,18 but they are no t especially applic able 16 The Sixth Amendment reads, in pertinent part: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district w herein th e crime shall ha ve bee n com mitted . . . . 17 That in all criminal prosecutions, every man hath a right . . . to a speedy trial by an impartia l jury, witho ut who se unan imous consen t he oug ht not to be fou nd guil ty. 18 Article 23 provides, in relevant part: In the trial o f all criminal cas es, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the e videnc e to susta in a con viction. 13 in the present case.19 Thus, we look to the provisions of Articles 5(a)(1) and 24, on which Owens base s his argu men ts, fo r guidance on the q uestion o f the right to a j ury trial in Maryland. Article 5(a)(1) of the Maryland Declaration of Rights provides as follows: That the Inhabitants of Maryland are entitled to the Common Law of England, and the trial by Jury, according to the course of that La w, and to the benefit of such of the English statutes as existed on the Fourth day of July, seventeen hundred and seventy-six; and which, by experience, have been found applicable to their local and other circumstances, and have been introduced, used and practiced by the Courts of L aw o r Equity; and also of all Acts of A ssembly in force on the first day of June, eighteen hundred and sixty-seven; except such as may have since expired, or may be inconsistent with the provisions of this Constitu tion; subject, nevertheless, to the revision of, and amen dmen t or repe al by, the L egislatu re of thi s State . . . . This provision has deep roots. Some iteration of its provisions has been an organ of the fundamental law of Maryland since 1776,20 when the State declared its independence and formed its Constitution. The origin of Article 5(a)(1) harkens to the popular sentiment 19 Article 21, beyond its assurance of a jury trial gene rally, is not otherwise implicated in this case in its gu arantee of a speedy trial by an impartial jury (as Owens has raised no issue of delay or a partial jury). Also not implicated in Owens s arguments is Article 23's direction that juries shall be the judges of law, a somewhat antiquated provision since refurbished with judicial gloss concerning the true role of jurors as judges of the law of the crime. In this role, jurors are empow ered to interp ret a statute in ligh t of disputed facts to determine whether a crime has been c omm itted. Stevenson v. State, 289 Md. 167, 176-80, 423 A.2d 558, 563-65 (1980). Owens has not alleged that this right has been curtailed. 20 M D. C ONST. of 177 6, D ECL. OF R TS, art. 17 (1776 ); M D. C ONST. of 185 1, D ECL. OF R TS, art. 3 (1851) ; M D. C ONST. of 1864, D ECL. OF R TS, art. 4 (1864); M D. C ONST. of 1867, D ECL. OF R TS, art. 5 (1867). 14 among colonists that the y should restore and guar antee the co mmon law privileg es, their birthright as Englis hmen, of which England had wrongfully deprived them, including the right to trial by jur y. See supra notes 4 and 5 and acco mpanying te xt; see also C HARTER OF M ARYLAND art. X (1634) (guaranteeing the colonists of Maryland all Privileges, Franchises and Liberties of this our Kingdom of England, freely, quietly, and peaceably to have and possess, and the same may use and enjoy in the same manner as our Liege-Men born, or to be born within our said K ingdom of E ngland . . . . ). We turn now to the task of identifying the common law principles of English criminal jury trials in 1776. 1. The En glish Com mon La w of Jury T rials To better understand the status of criminal jury trials at the time of the Revolution, we examine briefly the evolution of that institution in common law England. The earliest record of a primord ial form of the criminal jury trial in English common law history may be attributed to the Saxon king, E thelred the Unready (978 -1013, 1014-16 ). Under Ethelred s law, 12 elders of a local community would be accompanied by a sheriff to swear on a religious relic and swear n ot to acc use an i nnoce nt man of a crim e. M AXIMUS A. L ESSER, T HE H ISTORICAL D EVELOPMENT OF THE J URY S YSTEM 134 (1894); W ILLIAM F ORSYTH, H ISTORY OF T RIAL BY J URY 57 (2d ed. 1875). T his form of accusation and conviction was replaced by the frank-pledge system, instituted by the Normans following their Conquest in 1066, which held every me mber of a commu nity responsible for the con duct of his neighbors. L ESSER, supra at 135-36 (citing FORSYTH, supra at 161). This system compelled 15 neighbors to bring to justice the criminal element in th eir com munitie s. Id. This led to another mode of trial by accusers making oaths, called voraths, aga inst a defen dant. 21 J OHN P ROFFATT, A T REATISE ON T RIAL BY J URY 25-26 (18 77). A de fendant w ould typically undergo an ordeal22 or, under N orman ru le, trial by comba t.23 L ESSER, supra at 136 (citing F ORSYTH, supra at 194). Dissatisf action with this rumor-d riven, perilou s process lea d to reforms in the following centuries. The criminal jury trial began to assume a form more recognizable to us under the reign of Kin g Hen ry II. Among Henry II s innovations was his Assize of Clarendo n, decreed in 1166, which b rought under the ju risdiction of the royal courts serious crimes and felonies 21 The taking of oaths, also known as a wager of law, later led to the practice of assembling witnesses, a lso know n as com purgators o r oath-helpe rs, to vouch fo r the veracity of the defendant s oath, F RANCIS S TOUGHTON S ULLIVAN, A N H ISTORICAL T REATISE ON THE F EUDAL L AW, AND THE C ONSTITUTION AND L AWS OF E NGLAND 273 (177 2); 2 P OLLOCK & M AITLAND, supra note 14 , at 600- 01. 22 Blackstone identifies va rious iterations of th e fire and w ater ordeals in his Commentaries on the Laws of England. 4 W ILLIAM B LACKSTONE, C OMMENTARIES *336-37 (1769). Apparently, a different kind of ordeal was reserved generally f or ac cuse d cle rgy, which required them to attempt to swallow a large piece of bread without choking. L ESSER, supra note 14, at 82. 23 Trial by battle, or wager of battle, was usually conducted by witnesses, or champions as they were better known, who swore to the truth of their litigant s claims. F RANCIS S TOUGHTON S ULLIVAN, A N H ISTORICAL T REATISE ON THE F EUDAL L AW, AND THE C ONSTITUTION AND L AWS OF E NGLAND 273 (177 2). More is the pity, trial by battle was outlawed shortly after Pope Innocent III, by the Fourth Lateran Council in 1215, prohibited clergy from p articipati ng ther ein. 2 P OLLOCK & M AITLAND, supra note 14, at 599; L ESSER, supra note 14, at 142. 16 identified by an inquest, or a type of grand jury, of 16 men gathered from the vicinage.24 L EONARD W. L EVY, T HE P ALLADIUM OF J USTICE: O RIGINS OF T RIAL BY J URY 11 (1999). These jurors were charged with the responsibility of speaking for the n eighborh ood as to 24 The term vicinage is descriptive of the fact that jurors all lived and held prop erty in the imme diate vicinity of the ar ea wh ere the d isputed facts ar ose. G ILES D UNCOMBE, T RIALS PER PAIS , OR T HE L AW OF E NGLAND C ONCERNING J URIES BY N ISI P RIUS, & C. 90 (6th ed. 1718); 3 J.H. T HOMAS, A S YSTEMATIC A RRANGEMEN T OF L ORD C OKE S F IRST INSTITUTE OF THE L AWS OF E NGLAND 365 (1836); J OHN P ROFFATT, A T REATISE ON T RIAL BY J URY 37, 39-40, 52 (1877). At this point in the evolution of jury trials, it was crucial that jurors have personal knowledge of the facts of the case because that was typically the only evidence available to aid them in reachin g a verd ict. L ESSER, supra note 14 at 1 39; P ROFFATT, supra note 24, at 35; J OHN H AWLES, T HE E NGLISH-M ANS R IGHT, reprinted in J USTICES AND J URIES IN C OLONIAL A MERICA 7 (1972) (1680 ). Around 1751, however, King George II abolished the vicinag e requir emen t for crim inal trials b y statute. P ROFFATT, supra note 24, at 117 (citing 2 4 Geo II., ch. 18 ). This practice was imported to Virginia and other colonie s. Harold M. Hyman & Catherine M. Tarra nt, Aspects of American Trial Jury History, in T HE J URY S YSTEM IN A MERICA 26 (Rita Jam es Simon ed., 1975). M aryland attemp ted to have the Bill of R ights require federal courts to observe the vicin age standa rds of the sta te in which the court sat. E DWARD D UMBAULD , T HE B ILL OF R IGHTS AND W HAT IT M EANS T ODAY 18 (1957). The U.S. Constitution is now said to have a Vicinage Clause o r Venu e Clause requiring trials to be held in the state whe re the offense is committed. U.S. C ONST. art. III, § 2, cl. 3 ( The Trial of all Crimes . . . shall be by Jury; and such Trial shall be held in the State where the said Crimes sh all have bee n comm itted . . . . ); see also U.S. C ONST. amend VI ( In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and d istrict wherein the crime sh all have been committed, which district shall have b een previo usly ascertained by law . . . . ); see generally Steven A. Enge l, The Public s Vicinage Right: A Constitutional Argument, 75 N.Y.U. L. R EV. 1658 (2000); Drew L. Ker shen, Vicinage, 29 O KLA . L. R EV. 803 (1 976). T his is very different than the common law notion that the jury would be composed of the local inhabitants of where the crime occurred, which evoked controversy among some c olonists . Hyman & Ta rrant, supra note 24, at 33 -34. But see William Wirt B lume, The Place of Trial of Criminal Cases: Constitutional Vicinage and Venue, 43 M ICH. L. R EV. 59, 65-66 (1944) (arguing that the colonists complaints were directed more to the idea of having to defend against actions being tried in other colonies, N ova Scotia, or Englan d). 17 their suspicio ns and accusa tions of crimina l activity. Id. Once identified by this s wor n jury, the defendant was faced with one of severa l possib le ordea ls. Id. This method of reaching a verdict was beginning to replace the older Saxon and Norman procedures of taking oaths of innocence and trial by battle. 2 F REDERICK P OLLOCK & F REDERIC W ILLIAM M AITLAND, T HE H ISTORY OF E NGLISH L AW 598-603 (189 8). Stea dily, advance ments in the realm of civil trials under He nry II lead to the petit jury verdict s replacem ent of the ordeal as the final arbiter of criminal guilt or innocence. Contemporaneous with the Assize of Clarendon was the establishment of the assizes of novel disseisin (recent dispos session ), mort d ancestor (death of an ancestor), and darrein presentment (last presentment), which provided for final jury verdicts bearing on various issues of land possession. L EVY, supra at 13-14. The jurors in these cases were drawn from the vicinity and resolved the disputes before the m based upon their k nowled ge of the f acts at issue. Id. In 1179, Henry II promulgated the Gran d Assize, a form of a ppeal from civil jury verdicts as to r ightful pos session of la nd, which called for yet anothe r jury. Id. at 14. This jury was selected by the sheriff, who no minated 4 knights to co mplete the jury with 12 other knights hailing from the same neighborhood as situs of the la nd in qu estion. Id. Again, these ju rors relie d on the ir know ledge o f the fa cts to rea ch a de cision. Id. at 14-15. With the advent of the M agna Carta in 1215, th e nobles of England secured for 18 themselves,25 in Article 39 of the G reat Charter, 26 the right to a ju ry verdict in lieu of the more perilous methods of determining guilt or in nocen ce. L ESSER, supra at 142-43. Until that time, a petit jury verdict was only available for a price as a dispensation from the Crown. 27 Id. Two legal authorities of good repute from the period, Henry de Bracton and the Fleta, indicated that criminal jury trials had bec ome typical by the end of the 13th cent ury. 28 Id. at 143; see supra note 25. T his may have been attribu table in large measure 25 Several scholars have noted that this right was available to freeman, that is, the land-owning nobles only, and not the general non-landed populace, known as villeins. S AMUEL W. M CC ART, T RIAL BY J URY 5 (1964); W ILLIAM S HARP M CK ECHNIE , M AGNA C ARTA: A C OMMENTARY ON THE G REAT C HARTER OF K ING J OHN 287 (2d ed. 1914). The nobles compelled King John to assent to this provision of the Magna Carta to prevent the kind of arbitrary justice doled out by the Crown s own jud ges and p lace the nob les fates in the hands of their equals, or peers: other nobles. M CC ART, supra note 25, at 5 ; D UNCOMBE, supra note 24, at 132-33. It was not u ntil 1275, when Kin g Edward I sign ed the First Statute of W estminster, 3 Edw. 1, ch. 39, that jury trials were made availab le to non -landed defen dants. 1 E DWARD C OKE, T HE S ECOND P ART OF THE INSTITUTES OF THE L AWS OF E NGLAND *169-70 (179 7); M CC ART, supra note 25, at 5-6. The principle o f a ju ry of one s pe ers did not e xist in precisely the same way for the v illeins. Becau se the prop erty qualification still existed for jury service, villeins were still not permitted to serve as jurors . D UNCOMBE, supra note 24, at 7; 3 B LACKSTONE, supra note 14, at *362. Thus, villeins were judged by their hierarchal superiors. 26 No freeman shall be taken or imprisoned or disseised or outlaw ed or exiled or in any way ruined, nor will we go or send against him , except by the la wful (jud gment) of his peers or by the law of the land. MAGNA C ARTA, art. 39. 27 The Magna C arta purported to make this right to a trial by jury available without charge. To no one will we sell, to no one will we refuse or delay, right or justice. MAGNA C ARTA, art. 40. 28 Interestingly, some defendants, particularly those who felt that the evidence against them would invariably condemn them before a jury (who were liable to be punished for (contin ued...) 19 to the abolition of the trial by ord eal arou nd 121 5, see supra note 22, w hich left judg es with few desirable alternatives for trying the guilt of def endan ts. L ESSER, supra at 145. Beginning in the 1300s, the petit and grand juries finally emerged as bodies of distinct jurors. In 1352, King Edward III agreed to a statute empowering defendants to challenge petit jurors because of their service on the grand jury that indicted the defen dant. L EVY, supra at 22. Another development in the ancient jury trial, making it resemble closer ou r modern institution, was the mov e away during the reign o f King Hen ry III from the jurors as witn esse s, wh ich b ecam e normal practice by the mid-15th cen tury. 29 The qualifications for jury service remained principally unchanged over the many centuries of the common law s development. A juror was required to be a land-ownin g (freeholder, or freeman)30 male 31 possessing land and chattel of a specified value who 28 (...continued) unwarranted acquittals), objected to th e jury trial because they felt more c onfident in subjecting themse lves to tria l by comb at or com purgat ion. L ESSER, supra note 14, at 145-46. 29 As early as 1218, process w as served for witnesse s separate from the jury to convene with the jurors and there is a record of a trial being cond ucted based on the opinion of jurors and docum ent witn esses. L LOYD E. M OORE, T HE J URY: T OOL OF K INGS, P ALLADIUM OF J USTICE 56-57 (2d ed. 1988); see also L EONARD W. L EVY, T HE P ALLADIUM OF J USTICE: O RIGINS OF T RIAL BY J URY 22-23 (1999). 30 It is by virtue of the land-owning requirement that citizenship became an indirect qualification for jury service. Because only citizens could own land or hold an estate or sufficient value, n on-citiz ens w ere disq ualified necess arily. 3 B LACKSTONE, supra note 14, at *362. Relatedly, slaves and villeins could not be jurors because they, too, lacked the ability to own land fo r thems elves. Id.; 1 W. F. F INLASON, R EEVES H ISTORY OF THE E NGLISH L AW 353-54 n.b (1880). The property qualification for non-citizens was waived in the instances of which re quired a j ury de medietate linguae. 3 B LACKSTONE, supra note (contin ued...) 20 dwelled in the general area from which the disputed question arose.32 3 B LACKSTONE, supra at *362; G ILES D UNCOMBE, T RIALS PER P AIS , OR T HE L AW OF E NGLAND C ONCERNING J URIES BY N ISI P RIUS, & C. 7, 85-88, 103, 123 (6th ed. 1718). Jurors also had to be lawful, that is, not outlaw ed for s ome ille gal act p reviou sly done. D UNCOMBE, supra at 85; 3 B LACKSTONE, supra at *363-64. Jurors could also be challenged for possible partiality, insufficient age, and occupation as a clergymen or member of Parliament. 3 BLACKSTONE, supra at *361, 363, 36 4. In summary, the practice of the criminal jury trial in English common law at the time of the Re volutio n stood as follo ws. A grand jury was assembled to indict a defendant based upon eye-witn ess testim ony and other ev idence . Then , a petit jury of 12 free, land-holding, lawful men worth a certain amount of money from the general area of the situs of the crime determined the correctness of the indictment based on testimony from witnesses and instructions of law from judge. 30 (...continued) 14, at *362 -63; see supra note 14 an d accom panying text. 31 3 B LACKSTONE, supra note 14, at *362; D UNCOMBE, supra note 24, at 85. Women were only permitted on juries (in fact the entire jury had to be composed of women) to decide the factual question of w hether a w oman w as pregna nt. This wa s achieved by the writ de ventre inspiciendo. 3 B LACKSTONE, supra note 14, at *362. 32 It is said that a ju ry should be of th e country of the defen dant. Con trary to Owens s assertions, this was not m eant to be tak en to imply citizenship. Rather, the phrase was a reference to the country-side, or the general vicinity of the where the crime occurred. 3 B LACKSTONE, supra note 14, at *359-60; 2 POLLOCK & M AITLAND, supra note 14, at 624 n.1; P ROFFATT, supra note 24, at 117. 21 As its language indicates, Article 5(a)(1) of the Declaration of Rights av ails Marylanders of the common law of England as it existed at the time Maryland declared its independence.33 Id., State v. Canova, 278 Md. 483, 486, 365 A.2d 988, 990 (1976). We, however, have made clear in our cases, as does Article 5(a)(1) itself, that this imported common law is subject to change and repeal by appellate courts and the Legislature. Stearman v. State Farm Mut. Auto. Ins. Co., 381 Md. 436, 454, 849 A.2d 539, 550 (2004); Spitzinger v. State, 340 Md. 114, 129, 665 A.2d 685, 692 (1995); Miles Laboratories, Inc. Cutter Laboratories Div. v. Doe, 315 Md. 704 , 724, 556 A.2d 1 107 1117 (19 89); Jones v. State, 303 Md. 323 n.10, 337 493 A.2d 1062, 1 069 n.10 (198 5) ( The com mon law rule may, within constitutional constraints, be changed or modified by legislative enactment or judicial decision where it is found to be a vestige of the past, n o longer su itable to the circumstances of our peop le. ); Lutz v. State, 167 Md. 12, 15 , 172 A. 354, 356 (1934); Gladde n v. State, 273 Md. 383, 389 , 330 A.2d 176, 180 (1974); Denison v. Denison, 35 Md. 361, 37 8 (1872); Coomes v. Cleme nts, 4 H. & J. 480, 481 (1819). It is the province of this and other courts to adjudge whether the common law of England at the time of th e Revolu tion remain s a valid portion of the la w of M aryland. Ireland v. Sta te, 310 Md. 328, 331, 529 A.2d 365, 366 33 Maryland is the only state of the thirteen colonial states that retains an express constitutional guarantee of English common law from the time independence was declared. At least two of thes e states f ormerl y had suc h cons titutiona l provisi ons. D EL. C ONST. of 1776, art. 25 (1776); N.Y. C ONST. of 177 7, § 35 ( 1777) . Several of the colonial states have current statutes to the same e ffect. G A. C ODE A NN., § 1-1-10(c)(1) (2006); N.C. G EN. S TAT. § 4-1 (2006); 1 PA. C ONS. S TAT. A NN. § 1503(a) (2006). 22 (1987) ( The determination of the nature of the common law as it existed in England in 1776, and as it then prevailed in Maryland either practically or potentially, and the determination of what par t of that com mon law is consistent w ith the spirit of Maryland s Constitution and her political institution s, are to be m ade by this Court. ); Gilbert v. Findlay College, 195 Md. 508, 513, 74 A .2d 36, 38 (1950). The common law also may be abrogated by a statute or statutory scheme when the Legislature s act addresses the whole subject matter 34 on which the common law spoke or the commo n law and the legislative e nactmen ts may n ot co -exist ind epen dently. Stearman, 381 Md. at 454, 849 A.2d at 550 (quoting State ex rel. Sonner v. Shearin, 272 Md. 502, 510, 325 A.2d 57 3, 578 (19 74)) ( W hen the co mmon law and a statute collide, th e statute, if constitutiona l, controls. ); Robinso n v. State, 353 Md. 683, 693, 728 A.2d 698, 702-03 (1999) (citing Lutz v. State , 167 Md. at 15, 172 A. at 356) ( Where a statute and the common law are in conflict, or where a statute deals with an entire subject-matter, the rule is otherwise, and the statute is generally construed as abrogating the common law as to that subject. ); Hitchcoc k v. State, 213 Md. 273 , 279, 131 A.2d 7 14, 716 (1957) ( Where the Legislature undertakes to deal with the whole subject matter, there is an exception to the general rule that repe al by implication is not favor ed . . . . ); Watkins v. State, 42 Md. App. 34 There may be occ asions wh ere the Ge neral Asse mbly has dea lt piecemea l with a particular subject-matter, wh ich only re peals th e com mon la w to tha t limited e xtent. See Robinson v. State, 353 Md. 683, 693, 728 A.2d 698, 702 (1999) (citing Lutz v. State, 167 Md. 12, 15, 172 A. 354, 356 (1934)); N ORMAN J. S INGER, 2B S UTHERLAND S TATUTORY C ONSTRUCTION § 50:5 (6th ed. 2000 ). 23 349, 353-54, 400 A.2d 464, 467 (1979). Thu s, notwithstanding w hatever merit may inhere in Owens s English common law argument, if the Maryland statutory scheme prescribing the qualifications for jury service overbears completely the common law as it existed at the time of the Revolution, Article 5(a)(1) o f the Maryland D eclaration of Rights off ers no support for Owen s s argum ent for a co nstitutional right to a jury composed of U.S. citizens. We examine that statutory scheme. 2. Maryland s Statutory Juror Qualification Scheme The Maryland Rules reiterate that the right to a jury trial is preserved in the Circu it Courts as it is guaranteed by the Maryland Constitution and Declaration of Rights. Maryland Rule 4-311(a). Maryland Code, Courts and Judicial Proceedings Article, § 8-102(a) states that when a criminal defendant is entitled to a petit jury, the jury shall be selected at random from a fair cross section of the citizens of the State who reside in the county where the cou rt conve nes. Md. Code (1973, 2002 Repl. Vol.), Cts. & Jud. Proc., § 8-102(a) (hereinafter Cts. & Jud. Proc. ). 35 The Ar ticle also specifies that either a jury commissioner or the clerk of the court should manage the jury selection process with the end goal of establishing procedures that assure the random selection of a fair cross se ction of the citizens of th e State who reside in the county where the court convenes. Cts. & Jud. Proc., § 8-202(2). Among 35 All references to the Co urts and Judicial Proceedings Article are to the 2002 Replacement Volume in effect at the time of Owens s arrest. Since then, the General Assembly revised the Article, which changed the substan ce and org anization o f applicab le provisions. 24 those procedures is the provision of a juror qualification form to be mailed to potential jurors asking them, among other things:36 their race and national origin, length of residence within the county, and any other questions within the purview of the statutes concerning jury selection. Id. § 8-202(5)(i). The Courts and Judicial Proceedings Article further provides that [a] person may not be disqualified or excused from jury service except on the basis of information provided by the juror qualification form and leaves the determination of qualifications to the jury judge , on his or he r initiative, or by reco mmend ation of the jury commissioner or clerk of the court, as the case m ay be. Cts. & Jud. Proc., § 8-20 7(a). Under the Article, [a] person is qualified to serve as a juror unless he [or she ]: (1) Is not constitutiona lly qualified to vo te in the county w here the court co nvene s . . . . 37 Cts. & Jud. Proc., § 8-207(b)(1). The Maryland Constitution, in turn, states that no person shall vote . . . unless his [or her] name appears in the list of registered voters . . . . MD. C ONST. art. I, § 2. In order to be registered to vote, an individual must be a citizen of the United States . . . . Md. Code (2002), Election Law Article, § 3-102(a)(1). Thus, the Courts and 36 The form also addresses other points of possible disqualification, including: prior jury service, physical or mental infirmities, ability to communicate in the English language, and any pending felony crime charges or unpardoned felony co nviction s. Cts. & Jud. Pro c., § 8-202(5)(i). 37 The statute also disq ualifies those who are: unable to communicate in the English language, inca pable of rend ering satisfactory jury service by reason of mental or physical infir mity, charged or convicted (without pardon) of a felony, charged or convicted of misrepresenting a material fact on a juror qualification form for the purpose of avoiding or securing service as a jur or, p arty to a civil suit where a jury trial is permitted in the court where the juror is called to serve, under 18 years of age, or unable to pass any other objective test prescribed by the Court of A ppeals. Cts. & Jud. Pro c., § 8-207(b)(2)-(9). 25 Judicial Proceedings Article requires indirectly, among other qualifications, that jurors be citizens of the United States. We believe that this broad and detailed statutory scheme for selecting qualified jurors encompasses the same, if n ot greate r, bo dy of law addressed in the English common law extant in 1776. Importantly, the statute discusses clearly the same citizenship requirement that existed implicitly at common law, thus abrogating the older common law rule.38 This renders inconsequential Owens s de medietate linguae argum ent. Properly understood, Owens s argument contends that because the de med ietate linguae exception was n ot formally abolished b y the Maryland General A ssembly until 1809 39 proves that the common law embraced that concept in 1776. Therefore, if the exception were still in place at co mmon law, its existen ce demo nstrates that citize nship was a qualification for jury service in 1776. This is irreleva nt because , as Owe ns points out, the Legislature created an express statu tory citizenship qualification for jury service as early as 1973. Md. Code (1957, 1972 R epl. Vol.), Article 51, § 1. W e have no ted previou sly that a statutory enactment may abrog ate completely a comm on law principle, rendering it of no effect. Th e 1973 sta tute creating th e citizenship q ualification d id just that. 38 We also note that other, now objectionable, criteria for juror disqualification, such as inad equate p rope rty or mo neta ry holdings a nd being o f the fem ale sex, we re explicitly abrogated in the statutory scheme. Cts. & Jud. Proc., § 8-103 ( A citizen may not be excluded from service as a grand or petit juror in the courts of the State on account of race, color, religion, sex, national origin, or econom ic status. ). 39 Chapter 138, § 15 of the Acts of 1809. 26 3. Due Process Does Not M andate a Citizen Jury Turning to Owe ns s secon d constitution al argume nt for the righ t to a citizen jury, we consider whether the substantive due process components of either the U.S. or Maryland Constitutions acknowledges such a right. Decisions of the U.S. Supreme Court make clear that the federal Constitution does not require that jurors be U.S. citizens. Carter, 396 U.S. at 332, 90 S. Ct. at 525, 24 L. Ed. 2d 549 (1 970); Kohl, 160 U.S. at 300, 16 S. Ct. at 306, 40 L. Ed. 432 (1 895); Jugiro v. Brush, 140 U.S. 291 , 297-98, 11 S. Ct. 770, 772, 35 L. Ed. 510 (1891); Hollingsworth v. Duane, 4 U.S. (4 Dall.) 353, 1 L.Ed. 864 (1801). Ow ens s protestations that the Sup reme Co urt precede nt is stale, and p ossibly tainted by some vague prejudice because it emerged from the same era as the infamous Plessy v. Ferguson40 case, are unava iling. First, the Supreme Court reaffirmed, in its 1970 Carter decision, the essence of its dicta in Kohl. Carter, 396 U.S. at 332, 90 S. Ct. at 525, 24 L. Ed. 2d 549. Second, courts since Kohl concurred routinely in this analysis. See, e.g., United States v. GordonNikkar, 518 F.2d 972 , 976-77 (5th Cir. 1975 ). United States v. Armsbury, 408 F. Supp. 1130, 1135 (D. Or. 19 76). Perkins v. Smith, 370 F. Sup p. 134, 1 38 (D . Md. 1 974), aff d, 426 U.S. 913, 96 S. Ct. 2616, 4 9 L. Ed. 2d 368 (197 6); State v. Mendoza, 596 N .W.2d 736, 74 2 n.5 (Wis. 199 9); Commonwealth v. Acen, 396 N.E.2d 18 9, 195 (Mass. 19 86). Maryland law does not provide any firmer footing for Owens s argument. The 40 Plessy v. Ferguson, 163 U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256 (1896) (upholding the principle of separate, but eq ual in the segregation of the black and wh ite races). 27 Maryland Constitution makes no express guarantee of a trial by a citizen jury and no opinion of this Court construes it as such. The only support Owens can marshal in favor of his Maryland due process claim is a few sentences of dicta from a 1983 C ourt of Sp ecial App eals opinion linking the phrases jury of peers to jury of citizens. Lawrence v. State, 51 Md. App. 575, 581, 444 A.2d 478, 482 (1982). In Lawrence, the intermediate appellate court correctly parsed the w ords judgment of his peers from Article 24 of the Declaration of Rights as signifying a jury trial. 51 Md. App. at 581, 444 A.2d at 482 (citing Wright, 2 Md. at 452); see supra note 11. The court then referred inexplicably to Black s Law Dictionary to further illuminate the constitutional significance of the term peer. 51 Md. App. at 581, 444 A.2d at 482. Th e dictionary indicated that peers are equals, a definition from which the Court of Special Appeals derived the contextually unwarranted and facile conclusion that trial by a jury of his peers means trial by a jury of citizens. Id. The general utility of Black s Law Dictionary notwithstanding, such a reference is not a controlling or persuasive authority in construing the Maryland Constitution and Declaration of Rights. The intermediate appellate co urt would have bee n better adv ised to halt its inquiry into the phrase judgment of his peer s at this Court s precedent in Wright interpreting it as simply a trial by jury. This is the latter-day construction of the peerage principle discusse d pre viou sly, which limited the privilege of jury trials to the lan ded ge ntry of 13 th centu ry Engla nd. See supra note 25. 4. Waiver of the Statutory Right to a Citizen Jury 28 Because we hold that the right to a jury co mpo sed o f U.S. cit izen s is of a statuto ry, rather than constitutional, dimension, we consider whether Owens waived this right under applicable standard s. Cubbage v. State, 304 Md. 237, 241, 498 A.2d 632, 634-35 (1985) ( Just as constitutional rights may be waived, so may nonconstitutional rights be w aived. ). As opposed to waiver of a constitutional right, which ordinarily must meet more stringent standards,41 a statutory right may be deemed waived by a lesser showing. Generally, most rights, whether constitutional, statutory or common-law, may be waived by inaction or failure to adhere to legitimate procedural requirements. State v. Rose, 345 Md. 238, 248, 691 A.2d 1314, 1319 (1997). In the case of the statuto ry right to a citizen ju ry, there exist three le vels of screening to preserve th at right. Boyd, 341 M d. at 441, 67 1 A.2d a t 38 ( M aryland courts screen juror qualifications on at least three levels: a statutorily-required qualification form, appearance before the jury judge or commission er at the courthouse, and the trial judge s observance of each juror during the voir dire. ). In the even t that the c ourt s int erna lly- 41 A waiver [of the fundamental right to a jury trial] is valid and effective only if made on the record in open court and if the trial judge determines, after an examination of the defendant on the reco rd and in o pen cour t, that it was made know ingly and voluntarily. Powell v. State, 394 Md. 632, 646, 907 A.2d 242, 250 (2006) (interpreting Maryland R ule 4-246(b)). In order for the waiver to be both knowing and voluntary, the trial judge must be satisfied that there has been an intentional relinquishment or abandonment of a known right or privilege. Powell, 394 Md. at 639, 907 A.2d at 246 (quoting Smith v. Sta te, 375 Md. 365, 379, 825 A.2 d 1055, 1 064 (200 3)); accord Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023 , 82 L. Ed. 1 461 (193 8). Further, on ly a defendan t, and not his attor ney, may wa ive this rig ht. Powell, 394 Md. at 646, 907 A.2d at 250 (citing Smith, 375 Md. at 379-81 , 825 A.2d at 106 4); State v. Collins, 265 Md. 70, 80, 288 A.2d 163, 168-69 (1972). 29 administered means of automatica lly disqualifying p rospective ju rors has faile d to eliminate a disqualified juror, 42 we have recognized the voir dire process as a proper procedural occasion to verif y juror qu alificatio ns. Williams v . State, 394 M d. 98, 11 2, 904 A .2d 534, 542 (2006) ( [V]oir dire is the mechanism by which w e give sub stance to the constitutional guarantee to criminal def endants o f a fair and impartial jury trial. ); see Jenkins v. S tate, 375 Md. 284, 331 , 825 A.2d 1008, 10 35 (2003 ); Dingle v. State, 361 Md. 1, 9, 759 A.2d 819, 823 (2000) (citing Boyd, 341 M d. at 435 , 671 A .2d at 35 , Grogg v. State, 231 Md. 530, 532, 191 A.2d 435, 436 (1963 ), Hill v. State, 339 M d. 275, 2 80, 661 A.2d 1 164, 11 66 (19 95), and Bedford v. State, 317 Md. 659, 670, 566 A.2d 11 1, 116 (1989)). Thus, a defendant s failure to pursue the opportunity to question prospective jurors as to citizenship during voir dire constitutes a waiv er of the statutory m eans of protecti ng the r ight to a c itizen jur y. See Hunt v. State, 345 Md. 122, 144, 691 A.2d 1255, 1265-66 (1997) (constru ing Cts . & Jud . Proc. § 42 As the Court of Special Appea ls noted below, [w]hile [Owens] may have assumed that the venire panel had been pre-screen ed based on the jury que stionnaire, it is eas y to anticipate that mistakes do occur, which is why a questionnaire alone is not the sole tool used to select a jury. Owen s v. State, 170 Md. App. 35, 73, 906 A.2d 989, 1010 (2006). Over 120 years ago, we noted the same possibility of error on the part of those administering the jury selection process on beh alf of the court as reason f or voir dire challenges in the first instance. Johns v. Hodges, 60 Md. 215, 221-22 (1883) ( The right of challenge itself is a safeguard provided by law in contemplation of the con tingency that the officers w hose duty it is to select only qualified persons have failed in the performance of that duty. It is a means specially provided by which a p arty to a suit may read ily and effectu ally protect himse lf against any oversigh t or neglect co mmitted in the original selection. ). In the present case, the jury commis sioner for H oward C ounty readily ackn owledg ed that his staf f did not confirm the veracity of the information contained on juror questionnaires and the orientation session also fai led to ad dress cit izensh ip as a q ualifica tion. Under those circumstances, it is not difficult to imagine how non-citizens such as Alade sometimes end up on venire panels. 30 8-211) (holding tha t if a party fails to pose a challenge to a p otential juror after voir dire, that party has lost the statutory remedy and must labor under constitutional or common law principles. ). The record in this case reveals that Owens did not propose any questions for the judge to ask of the venire regarding the citizenship status of the potential jurors, including the noncitizen, Alade . Owens argues, however, that his request for such a voir dire question w ould have been futile because our precedent in Boyd leaves it to the discretion of the trial court whether actually to put the question to the venire. In Boyd, the Court reviewed two consolidated appeals raising the issue of whether it was an abuse of discretion for a trial judge to refuse to ask the venire a voir dire question seeking to disco ver any potential jurors with physical infirm ities that may com promise th eir ability to serve. 34 1 Md. at 433, 671 A.2d at 34. The defend ants argued that unde r Davis v. Sta te, 333 Md. 27, 633 A.2d 867 (1993), and Casey v. Roman Catholic Archbishop, 217 Md. 595, 143 A.2d 627 (1958), it was mandatory for the court to pose the question. The Boyd Court distinguished Casey, which concerned a voir dire question seeking to uncover bias, from the Boyd cases, which concerned voir dire questions directed to the min imum statutory qualifications for jury service. In neither of the con solidated ca ses in Boyd was the physical impairment question attributable to any specific bias linked to the armed robbery and second-degree murder charges faced by the defendants. 341 Md. at 438, 671 A.2d at 36-37. Further, the question would not have uncovered an automatic cause for disq ualifica tion. Boyd, 341 Md. at 438, 31 671 A.2d at 37. Our predecessors in Boyd also distinguished Davis on the ground th at it concerned voir dire questions seeking to expose bias on the part of potential jurors rather than their ability to meet minimum statutory qualification s. Id. Also, the b ias question in Davis would n ot have exposed grounds for immediate disqualification. Boyd, 341 Md. at 439, 671 A.2d at 37. Although Davis indicated that questions bearing on the satisfaction of the minimum statutory qualifica tions fell gen erally into the category of mandatory questions, the key inquiry was whether the g iven inquiry would be re asonably likely to reveal cause for disqualification. 333 Md. at 35-36, 633 A.2d at 871. Based on these distinctions, the Boyd Court opined that the defendants requested question regarding p hysical infirmities w as not man datory becau se it wou ld not be reasonab ly likely to lead to [discovery of] cause for disqualification of a juror. 341 Md. at 440, 671 A.2d at 37. First, as in Casey and Davis, a physical disab ility would no t have served as an au tomatic cause f or disqu alificatio n. Id. Even if a disability were discovered, accommodations are more lik ely to precede d ismissal. Id. Second, Boyd stated that posing questions already covered by the processes preceding voir dire would be redundant and unnec essary. 341 Md. at 441, 6 71 A.2 d at 38. T hus, Boyd ostensibly stands for the proposition that voir dire questions concerning the minimum statutory qualifications of a potential juror are only m andatory shou ld they reflect a reasonable likelihood of bias or prejudice against the d efendan t. It is this rationale that Owens invokes in his argument that he did not w aive his right to challenge a non-citizen juror. Essentially, he complains that 32 because Boyd leaves it entirely to th e trial judge s d iscretion w hether to po se a citizensh ip question in a case w here citizenship is not a likely source of bias, his request of such a question w ould have been futile. W e cannot a gree entirely w ith this comp laint. The rule in Boyd that voir dire questions concerning minimum statutory qualifications are not mandatory when sought was animated, in part, by a belief that such questions duplicate needlessly the efforts of the pre-voir dire screening methods which focus on statutory disqualifications. That cases such as the present one occur demonstrate a correctable weakness in this reasoning. Because the pre-voir dire screening methods failed to identify and excuse Alade, a n on-citizen, it is ev ident that voir dire questions regarding minimum statutory qualifications are not always redundant and un necess ary. 43 In fact, our cases ruminate that the pre-voir dire processes of screening out disqualified jurors are not fail-safe. See supra note 42. W e are persu aded, and so hold, that it is in the better inte rests of justice to require trial judges to pose voir dire questions directed at exposing constitutional and statu tory disqu alificatio ns w hen requ ested by a party. Accord ingly, we overrule Boyd to the extent that it conflicts with this holding. Notwithstanding our limited overruling of Boyd, the result in this case is not affected. Simply because it is not mandatory for a judge to pose a particular question does not make 43 In fact, it is conceiva ble that, on the whole, more time is saved and the interests of judicial economy advanced by spending a relatively few minutes asking rote questions rather than risking the p ossibility of requiring a new trial by sparing those few minutes of additional voir dire questions. 33 it a prohibited question. Had Owens sought, and the trial judge refused, a citizenship question in the present case, the propriety of the denial would have been preserved for appellate review as an abuse of discretion. But because Owens did not suggest the question, he may not complain reasonably that a non-citizen was empanelled on his jury. Indeed, the Circuit Court noted in its opinion denying Owens s motion for a new trial that [h]ad such a question been requ ested, the court would in all likelihood have ma de the inqu iry (as it did sua sponte regarding th e issue of p ending jury trials) a nd Mr. A lade would have been excused as a disqualified juror. Owens, 170 Md. App. at 59, 906 A.2d at 1002 . We agree with the intermediate appellate cou rt that there is no reason not to credit the Circuit Court on this poin t. Owens, 170 Md. App. at 77, 906 A.2d at 1012. There exist several persuasive authorities supplying examples of waived objections to potential jurors who otherwise would have been disqualified had a defendant proposed and a judge ask ed a pertine nt voir dire question. In Kohl, the Suprem e Court he ld that a defendant s failure to object to the non-citizen status of a juror as a disqualification, whether done volunt arily, neglig ently, or un know ingly, was not grounds to upset the murder conviction against the defendant. 160 U.S. at 302, 16 S. Ct. at 307. In Hansel v. Collins, this Court held that a defendant waived his objection to a West Virginia resident serving on the jury that found him liable for trespass when he waited four months after the verdict to raise his objection and could not show that the presence of the out-of-state resident prejudiced him. 180 Md. 10 0, 103, 23 A.2d 1 , 2-3 (1941). The C ourt stated that the defendan t s 34 ignorance of the juror s non-reside nt status wa s immateria l because h e just as easily cou ld have inquired into the matter. 180 Md. at 104, 23 A.2d at 3. In Johns v. Hodges, our predecessors concluded that a trial court did not abuse its discretion in refusing to grant a new trial to a defendant who, afte r the case was decided against him, discovered that two jurors empanelled to hear the matter were below the minimum statutory age for jury service. 60 Md. 215, 220 (1883). The Johns Court reasoned that the defendant s hould not have assumed that the statutory screening devices produced an entire jury of qualified persons, but rather, he should have undertaken to protect his interests through his own inquiry. 60 Md. at 222-23. Maryland appellate cases also demonstrate that even when a voir dire question is posed to the venire, false or withheld responses do not necessarily entitle the defendant to a new trial. See, e.g., Hunt, 345 Md. at 144-46, 691 A.2d at 1265-66 (citing United States v. Boney, 977 F.2d 624 , 633 (D.C. Cir. 1992)); Leach v. S tate, 47 Md. App. 611, 618-19, 425 A.2d 234, 238-39 (1981) (refusing to strike a juror, who upon cross-examination at trial, was discovered to be an old neighbor and acquaintance of a State s witness when the trial judge was satisfied that th e juror had n o bias); Burkett v. Sta te, 21 Md. App. 438, 445, 319 A.2d 845, 849 (1974) (refusing to grant new trial on the ground that an unbiased juror inadverten tly failed to reveal that he was the f ather of a secretary in the State s Attorney s Office, despite voir dire question as king jurors to reveal their relation to any prosecutor s office personnel). 35 Most instructive is Hunt v. State, where a prospective juror, Diana Void, was arrested on a misdemeanor theft charge several days after returning her juror qualification form, on which she stated (then-truthfully) that she had not been charged or convicted of a serious crime. 345 Md. at 140-41, 691 A.2d at 12 63-64. W hen sum monsed for jury service, V oid failed to respond affirmatively to questions regarding pending criminal charges during her orientation and, again, during voir dire. Hunt, 345 Md. at 141, 691 A.2d at 1264. Subsequent to his conviction, during a second petition for post-conviction relief, the defenda nt, Hunt, challenged Void s presence on the jury that convicted him on the ground that she was disqua lified sta tutorily. The Court disagreed with Hunt s argument, concluding that because Void had been empanelled, Hunt lost th e opportu nity to exercise the statutory remed y of challe nging j urors. Hunt, 345 Md. at 145-46, 691 A.2d at 1266. Owens argues that h is situation is dif ferent than the scenario presented in Hunt because his objection to an unqu alified juror ca me muc h closer in tim e after the ve rdict. Hunt and our other appellate decisions belie any validity in this point of distinction. Although the objection raised in Hunt came during the defendant s second petition for postconviction relief, the Co urt did not rely on length of delay in denying the objection. Rather, the Court specifically noted that the statutory right to challenge a juror expires at least as early as when a juror is empanelled.44 Hunt, 345 M d. at 145-46 , 691 A.2d at 1266. T his 44 The Court emphasized that although the statutory challenge is no longer available at this stage, a constitutionally-based challenge remain s an op tion. Hunt v. Sta te, 345 Md. (contin ued...) 36 principle also is illustrated in Leach, where the Court of Special Appeals upheld a trial court s decision not to strike a juror who was discovered during cross-examination at trial to have been an acquaintance of a State s witness. 47 Md. App. at 618-19, 425 A.2d at 23839. Even in 19th century practice, the Court of Appeals noted that [t]he usual meth od is by challenge before the juror is sworn or the trial begins. Johns, 60 Md. at 221. Hunt indicates that the reason for this narrow allowance of time for statutory challenges to juror qualific ations a dvanc es the g oal of f inality in jud icial dec ision-m aking. 345 Md. a t 144, 69 1 A.2d at 1266 . Owen s mistakenly argues th at because he raised his objection to the non-c itizen juror w ithin the ten-day post-trial motion period, the concerns of finality and judicial economy are not impacted. A verdict was reached by, what appeared to the trial judge to be, impartial jurors.45 After Alade s non-citizen status was revealed, the trial judge held a hearing on the matter and satisfied himself that there was no showing that Mr. Alade s n on-citizen sta tus in any wa y or manner p rejudiced th e Defen dant s case , his 44 (...continued) 122, 14 5-46, 6 91 A.2 d 1255 , 1266 ( 1997) . 45 In the end calculus, the primary co ncern in gu aranteeing a defend ant a jury trial is that the trial be heard by a fair and impartial jury, untainted by bias or prejudice. M D. C ONST. of 1867, D ECL. OF R TS, art. 21 (1867 ); Williams v. State, 394 Md. 98, 112, 904 A.2d 534, 542 (2006). Should an unqualified juror be empanelled, courts are satisfied generally with the verdict when the record establishes that the juror did not evade intentionally disqualification and that his o r her ser vice w as perf ormed withou t bias. See, e.g., Williams, 394 Md. at 112; 904 A.2d at 54 2; Leach v. S tate, 47 Md. App. 611, 618 -19, 425 A.2d 2 34, 238-39 (198 1); Burkett v. Sta te, 21 Md. Ap p. 438, 445, 319 A .2d 845, 849 (197 4). 37 consid eration o f the ev idence , or the ju ry s delibe rations. 46 Related to the goal of judicial economy is the object of integrity of the process. Our cases highlight the necessity for foreclosing statutory challenges to jurors after voir dire in the interests of preventing an abuse of those challenges. In Hansel, our predecessors noted the wisdom of the earlier Johns decision, admonishing courts not to allow new trials based on challenges to juror qualifications after a verdict has been rendered, lest parties be allowed a second bite at the apple whenever the litigation does not end in their favor. 180 Md. at 104, 23 A.2d at 3 (citing Johns, 60 Md . at 220); see also Johns, 60 Md. at 223. This Court also noted the potential for collusion between defenda nts and ve nal jurors to in validate gu ilty verdicts by subsequently revealing or conjuring some disqualifying trait in order to obtain a new trial. Young v. Lynch, 194 Md. 68, 73-74, 69 A.2d 787, 789 (1949) (citing Hollars v. State, 125 Md. 367 , 376-77, 93 A.2d 970, 974 (1915 )). Because Owens w aited until after voir dire (indeed, after a verdict was reach ed) to challenge Alade s prese nce on the jury, he waived his statutory right to challenge an unqualified juror.47 Simply because Boyd did not require the citizenship question to be a 46 The burden to demons trate partiality rests with the challeng ing party, whic h, in this case, is Owens. Hunt, 345 Md. at 146, 691 A.2d at 1267 (citing Davis v. State, 333 Md. 27, 38, 633 A.2d 8 67, 873 (1993)). 47 In fact, even if Owens possessed a constitutional or commo n law right to a jury composed entirely of U.S. citizens, those same common law principles indicate that waiting until this stage in the proceedings constitutes a waiver of his right to challenge a non-citizen juror. Kohl v. Lehlback, 160 U.S. 293, 300, 16 S. Ct. 304, 306, 40 L. Ed. 432 (1895); D UNCOMBE, supra note 24, at 150; see also Moton v. State, 569 S.E.2d 264, 266-67 (Ga. (contin ued...) 38 mandatory one for the trial judge to pose to the venire does not excuse Owens of exercising due diligenc e in requ esting th e quest ion. Had he done so, Owe ns s request most likely would have been granted and Alade would have been excused. Even if the trial judge had refused to pose the question, the issue would have been preserved for appellate review. In either instance, the result is far better than the waiver we find due to Owens s lack of foresig ht in at least proposing the question . Accordin gly, we find n o abridgem ent of Ow ens s right to a tria l by jury. B. Suppression Challenge Owens invokes the self-incrimination provision of the Fifth Amendment of the U.S. Constitution, as applicable to the states by incorporation under the Fourteenth Amendment48 and cons trued by the Su preme C ourt in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), for the proposition that his questioning by the Howard County police detectives at the Hospital was illegal because it was custodial in nature and not preceded by the prop er w arnings p resc ribed by Miranda. Perhaps nothing is more recognized in the realm o f constitution al criminal procedure than the notion that once a suspect is in custody, age nts of law enforcement must advise the suspect of his Miranda rights before engaging in interrogation, should the state wish to admit the resulting statements agains t the susp ect at trial. Miranda, 384 U.S. at 444, 86 S. Ct. at 1612; accord 47 (...continued) App. 2002). 48 Malloy v. Hogan, 378 U.S. 1, 8, 84 S. Ct. 1489, 1493-94, 12 L. Ed. 2d 653 (1964). 39 Fenner v. State, 381 Md. 1, 9, 846 A.2d 1020, 1024-25. It is clear that the strictures of Miranda apply on ly in a custo dial settin g. Miranda, 384 U.S. at 441, 444 , 86 S. Ct. at 161011, 1612; Stansbur y v. Californ ia, 511 U.S. 318, 322, 114 S. Ct. 1526, 1528, 128 L. Ed. 2d 293 (1994) (pe r curiam); Oregon v. Elstad, 470 U.S . 298, 309, 1 05 S. Ct. 1285, 1293, 84 L. Ed. 2d 22 2 (1985); Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 714, 50 L. Ed. 2d 714 (1977 ); accord A beokuto v . State, 391 Md. 289, 333, 893 A.2d 1018, 1043 (2006); Fenner, 381 Md. at 9, 846 A.2d at 1025 (2004). Thus, if Owens was not in custody at the time he was questioned by the detectives, the absence of Miranda warnings is immaterial and the Fifth Amendment presents no impedim ent to the ad mission of his inculpatory statements. A significant body of law has developed around the questions of what constitutes cus tody and interrogation for Fifth Amendment purposes. The Miranda Court defined custodial interrogation as questioning initiated by law enforceme nt officers after a person has been taken into custody or otherwise deprived o f his freedom of action in any significant way. 384 U.S . at 444, 86 S. Ct. a t 1612. C ustody, thoug h typically associated with formal arrest or incarce ration, Allen v. State , 158 Md. App. 194, 229, 857 A.2d 101, 122 (2004), aff d, 387 Md. 389, 875 A.2d 724 (2005), is not always so clearly delineated a concept. The Supreme Court declared in California v. Beheler that the ultim ate inquiry is simply whether there is a form al arrest or restraint on freedom o f movemen t of the degree associated with a formal arrest. 463 U.S. 1121, 1125, 103 S. Ct. 3517, 3520, 77 L. Ed. 2d 1275 (1983) (per curiam) (quoting Mathiason, 429 U.S . at 495, 97 S . Ct. at 714) (em phasis 40 added). In fact, a pers on is consid ered in cu stody whe n a reason able person [would] have felt he or she was not at liberty to terminate the interrogation and leave. Thompson v. Keohane, 516 U.S. 99, 112, 116 S. C t. 457, 465, 1 33 L. Ed . 2d 383 (1 995); see also Yarborough v. Alvarado, 541 U .S. 652 , 662, 12 4 S. Ct. 2 140, 21 49, 158 L. Ed. 2 d 938 (2004); accord Rucker, 374 Md. at 209, 821 A.2d at 445; Whitfield v. Sta te, 287 Md. 124, 141, 411 A.2d 41 5, 425 (1980). Interrogation is no longer considered solely as direct questioning by the po lice, a concept that prevailed when Miranda was newly-minted. That concept now refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. Rhode Island v. Inn is, 446 U.S. 291, 301, 100 S. Ct. 1682, 1690, 64 L. Ed. 2d 297 (1980) (footnotes omitted); accord Drury v. S tate, 368 Md. 331 , 335-36, 793 A .2d 567, 570 (200 2). The question of whether a suspect is in custody is determined objectively, to the exclusion of the sub jective intent o f law enf orcemen t, in light of the totality of circumstances of the situa tion. Alvarado, 541 U.S. at 667, 124 S. Ct. at 2151; Stansbury, 511 U.S. at 323, 322, 114 S. C t. at 1529; accord W hitfield, 287 Md. at 140, 411 A.2d at 425. Among the circumstances which should be considered in determining whether a custodial interrogation took place are: when and where it occurred, how long it lasted, how many police were present, what the officers and the defendant said and did, the presence of actual physical restraint on the defendant or things equivalent to actual restraint such as drawn weapons or 41 a guard stationed at the door, and whether the defendant was being questioned as a suspect or as a witness. Facts pertaining to events before the interroga tion are also relevant, especially how the defendant got to the place of questioning whether he came complete ly on his ow n, in response to a police request or escorted by police officers. Finally, what happened after the interrogation whether the defendant left freely, was detained or arrested may assist the court in determining w hether the defenda nt, as a reasonable person, would have felt free to break off the questioning. Whitfield, 287 Md. at 141, 411 A.2d at 425 (quoting Hunter v. State, 590 P.2d 888, 895 (Alaska 1979)). The record here establishes that the first interrogation of Owens by the detectives took place in the pediatric ward s playroom where Detectives Kruhm and Shaffer encountered Owens. The playroo m was a public spac e, apparen tly enclosed m ostly in glass, and Owens was not detained in the room in any way. The two no n-uniformed de tectives were wearing side-arms, but did not draw or d isplay threateningly their weapons. The questioning was brief, lasting only 10 to 15 minutes, and involved subjects relating to their investigation, but did not tend to imply that Owens was responsible for Kevonte s death. The encounter ended when Owe ns left th e room . Unde r these c ircums tances, i t is be yond cavil that the first interrogation was not custodial in nature. No force or compulsion kept Owens in the playroom: there were only two officers; and, there is no evidence that either of them advised Owens not to lea ve or po sitioned themse lves to p revent o r discou rage su ch an a ttempt. In fact, the interview was term inated after le ss than a qu arter of an h our becau se Owe ns left. Clea rly, Owens was not placed under fo rmal arrest, restra ined in his fre edom of movem ent, 42 or made to feel that he was not at liberty to leave. Though the second interrogation bears more characteristics of a custodial interrogation, those qualities are sufficiently outweighed by those indicative of a noncustodial encounter. The detectives initiated the second contact by seeking out Owens, who was now a suspect, in the Hospital parking lot and requested his car keys (whether to effect a search or restrain his movement was likely not clear to Owe ns). This req uest to talk was, however, from all indications, not a compulsory order and Owens agreed to accompany the detectives back inside. Owens also agreed to the audiotaping of the interview. Owens argues that the unoccupied patient room, with the door closed, was so unfamiliar and the questioning so accusatory tha t he must ha ve been in custody. T his argum ent is significantly compromised by the fact that th e hospital roo m was still a p ublic place49 from which he was more than capable of extricating himself in the face of hard questioning, a feat he accomplished after approximately 30 minutes when he evidently felt that the detectives were bein g too conf rontational. O wens w as not arreste d that night. Owens s reliance on Bond v. State, 142 M d. App. 21 9, 788 A .2d 705 (2 002), is 49 We note that just because the hospital may not have been a familiar place for Owens, it remains a p ublic place a kin to a sidew alk or park for purposes of Fifth Amendment analysis. In fact, [t]he consensus of American case law is that the questioning of a suspect who is confined in a hospital but who is not under arrest is not a custodial interrogation with the contemplation of Miranda. Cumm ings v. State, 27 Md. App. 361, 369-70, 341 A.2d 294, 301 (1975). A fortiori, Owens, who was not confined to the Hospital (evidenced by the fact that he was found outside in the parking lot for the second interview), could not have been in custody solely because of the place of his interrogation. 43 inapposite. Bond involved a situation where three police officers confronted a half-undressed suspect in his bedroom around midnight and, while blocking the only exit, accused him of being involved in a hit-and-run accident. 142 Md. App. at 223-24, 788 A.2d at 707-08. The Court of Special Appeals held that the unexpected nature of the sudden bedroom confrontation at such a late hour would have curtailed a reasonable person s ability to ask the officers to leave. Bond, 142 Md. App. at 233-34, 788 A.2d at 713. There was no unexpected late-night home invasion in the present case. Rather, the two detectives approached Owens in the Hospital parking lot and ac quired his con sent fo r more q uestion ing. We are persuaded that Ow ens must n ot have fe lt unable to end the encounter because, unlike in Bond, he did just that. JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED; COSTS TO B E PAID BY APPELLEE. 44 IN THE COURT OF APPEALS OF MARYLAND No. 103 September Term, 2006 MARCUS DANNON OWENS v. STATE OF MARYLAND Bell, C.J. Raker Cathell Harrell Battaglia Greene Wilne r, Alan M . (Retired, specially assigned), JJ. Dissenting Opinion by Bell, C.J., which Cathell, J., joins. Filed: June 5, 2007 The majority holds that the empaneling, in a criminal case, of a jury, which includes a non-citizen, does not compromise the criminal defendant s right to a fair trial under either the United S tates or the M aryland Con stitution, and, in any event, bec ause the righ t is only statu tory, not constitutio nal, by failing to inquire as to the citizenship status of the venire, the defendant waived the right to co mplain a bout the s ervice of a non-citizen on th e jury. I do not agree with either premise. On the contrary, I believe that Marcus Dannon Owens ( Owens ), the petitioner, did, and does now, have the constitutional right, federal and State, to a trial by jury composed only of citizens of the United States.1 1 I am also of the On this poin t, I am not persuaded by the majority s analysis. I incline to the view advanced by and forcefully advocated by the petitioner. I do not address this issue spec ifica lly, however, believing that the petitioner is entitled to reve rsal even if th e right is only statutory. I note, ho wever, tha t it is well settled that a jury consists of one s peers and that, as the C onstitutio n requi red, see Article 24 of the Maryland Declaration of Rights, the General Assembly, by prescribing the qualifications for jury service, made clear that, for that purpose, a defend ant s peers are his or her fellow citizens. Thus, while it may be true that neither Constitution explicitly states that only citizens may serve on juries, the implementing legislation, w hich nece ssarily is comp lemen tary and e xplana tory, does . Bear in mind that the legislature m ay not legislate in dero gation o f the C onstitutio n. See Lamone v. Capozzi, 396 Md. 5 3, 73, 91 2 A.2d 674, 68 5 (200 6), citing Bienkowski v. Brooks, 386 Md. 516, 546, 873 A.2d 11 22, 1140 ; Washabaugh v. Washabaugh, 285 Md. 393, 411, 404 A.2d 1027, 1037 (1979 ). Although it was dismissed summarily as having no application to this case, ___ Md. ___, ___, ___ A. 2d ___, ___ (2007) [slip op. at 14], I believe Article 21 of th e M aryland Declaration of Rights to be quite relevant and, indeed, that its application is dispositive with respect to the composition of an impartial jury, as consisting o nly of citizens. In this view, I am p ersu aded by Perkins v. Smith, 370 F. Supp. 134 (D. Md. 1974). In that case, a noncitizen challenged [his/her] exclu sion from jury service. In rejecting that challenge, the court enunciated principles tha t are just as, if no t particularly, applica ble to this case. The Perkins Court stated: This Court considers that grand and petit jurors in both state and federal courts are persons holding ... important nonelective ... judicial positions , that they participate directly in the execution of the laws and perform functions that go to the heart of representative government. Blackstone [3 Blackstone Commentaries, Sec. 380] considered juries as the best investigators of truth, and the surest gu ardians of public justice. The institution of jury trial, he said, preserves in the hands of the people that share which they ought to have in the administration of public justice, and prevents the encroach ments of the mo re powerful and wealthy citizens. In No. 83 of The Federalist [at 562 (J. Cooke Ed. 1961) (Hamilton)], Alexander Hamilton, after referring to the high estimation in which h e held the in stitution of jury trial, co ncluded th at it would be altogeth er superflu ous to exa mine to what extent it deserves to be esteemed useful or essential in a representative republic, or how much more merit it may be entitled to as a defense against the oppressions of an h ereditary monarch, than as a b arrie r to th e tyran ny of popular magistrates in a popular governm ent. Discussions of this kind would be more curious than bene ficial, as all are satisfied of the utility of the institution, and of its friendly aspec t to liberty. 370 F. Supp. at 137. The Court went on to state: In maintaining the jury system as the very palladium of free government the states logically can an ticipate that nati ve-born citizens would be conversant with the social and political institutions of our society, the customs of the loca lity, the nuances of local tradition and language. Likewise naturalized citizens, who have passed through the citizenship classes sponsored by the Immigration and Naturalization Service, have demonstrated a basic understanding of our form of government, history and tradition s. There is no corresponding basis for assuming that resident aliens, who owe allegiance not to any state or to the federal governm ent, but are subjects of a foreig n power, have so assimilated our societal a nd political mores that an equal reliance could be placed on their performing as well as citizens the duties of juro rs in our judicial system. The nature or the operation of juries makes it apparent that persons unfit for jury service can work a great deal of harm, through inability or malice, to efficiency and fairness. Jury deliberations are perhaps the most secret form of decision-making in the nation; the means of persuasion used by jurors on each other are never revealed. A single juror w ho failed to understand the import o f the evide nce being presented or who lacked any concern for the fairness of the outcome could severely obstruct or distort the course of justice. A single persuasive and unprincipled juror could even direct the course of justice into channels deliberately chosen for their deleterious effect on this country. We conclude, therefore, that the state has a compelling interest in the restriction of jury service to those who will be loyal to, 2 view that, even if the right to an all citizen jury is only statutory, Owens did not waive the right. To save this conviction, the majority holding, in that regard, imposes on criminal defenda nts a burden that is both unnecessary and unreasonable and, for good measure, misapplies o ur precede nts. Theref ore, I dissent. I. Whatever may be the ca se with resp ect to the con stitutional right to ju ry trial, it is quite clear that Mr. Alade, a non-citizen, did not meet Maryland s statutory requirements for juror qualification. Maryland Code (1973, Repl. Vol. 2002) § 8-207 (b) of the Courts and Judicial Proceed ings Article (" CJP") pro vides that, in order to serve on a jury, one must be, inter alia, an adult citizen of this State. As pertinent, it provides: (b) Grounds for disqualifications. - A person is qualified to serve as a juror unless he: (1) Is not constitutio nally qualified to vote in the county where intereste d in, and familia r with, th e custo ms of th is coun try. Id. at 138. The court recog nized, quite correctly, that serv ice on juries is th e prime ex ample of an instance where citizenship bears some rational relationship to the special demands of the particular position. Id., quoting Sugarm an v. Do ugall, 339 F. Supp. 906, 911 (D.C.N.Y. 1971) (Lumba rd, J. concurr ing); see Carter v. Jury Commission, 396 U.S. 320, 90 S. Ct. 518, 24 L. Ed. 2d 5 49 (1970 ); Jugiro v. Brush, 140 U.S. 291, 11 S. Ct. 770, 35 L. Ed . 510 (1891); Strauder v. West V irginia, 100 U .S. 303 , 25 L. Ed. 664 (1879) (recognizing the special relationship between citizensh ip and jury service). Because I believe the right to an impartial jury requires the jury to consist of citizens and that r ight is constitutionally g iven , the s tand ard f or w aive r is sig nific antly d ifferent, it must b e done know ingly and volunt arily, a proposition with which the majority does not disagree. ___ Md. at ___, ___ A. 2d at ___ [slip op. at 12, 29 n.41]. In this case, the record is clear, Ow ens was n ot aware th at Mr. A lade was not a citizen u ntil after his trial and, thus, he co uld n ot ha ve w aive d his right to an impartia l jury tr ial kn owingly a nd volun tarily. 3 the court convenes; * * * (8) Is u nder 18 years of a ge[.] 2 * Section 8-207 also provides for limited instances of disqualification,3 spec ifica lly, where 2 It is perfectly clear that former Ma ryland Code (1973, R epl. Vol. 2002) § 8-207 (b) of the Courts and Judicial Proceedings Article required a prospective juror to be a citizen of the United States, fo r in order to v ote in any cou nty of this State, o ne must b e, pursuan t to Maryland Code (2003) § 3-102 (a) (l) of the Election Law Article, a United States citizen. The current iteration of § 8-207 (b), cod ified at Maryland Cod e (1973, Repl. Vo l. 2006) § 8-103 (a) of the Courts and Judicial Proceedings A rticle, is even clearer, using express language to that effec t: (a) Requirements. Notwithstanding § 8-102 of this subtitle, an individual qualifies fo r jury service for a county only if the in dividual: (1) Is an adult as of the day selected a s a prospective juror; (2) Is a citizen of the United States; and (3) Re sides in t he cou nty as of th e day sw orn as a juror. (Emphasis add ed). 3 See CJP § 8-207 (b), which provided: (b) Grounds for disqualification. A person is qualified to serve as a juror unless he: (1) Is not constitu tionally qualified to vote in the county where the court convenes; (2) Is unable to read, write, or understand the English language with a degree of proficiency suf ficient to fill ou t satisfactorily the juror qualification form; (3) Is unable to speak the English language or comprehend spoken English; (4) Is incapable, by reason of physical or mental infirmity, of rendering satisfactory jury service; any person claiming such a disqualification may be required to submit a do ctor s certificate as to the n ature of t he in firm ity; (5) Has a charge pending against him for a crime punishable b y a fine of more than $500, or by imprisonment for more than six months, or both, or has been convicted of such a crime and has received a sentence of a fine of more than $500, or of impr isonmen t for more th an six months, or both, and has not been pardoned; (6) Has a charge pending against him for, or has been 4 there is a language problem, an inability to speak, understand and/or write the English language, a documented disability which prevents satisfactory jury service and there is a disqualifying or pending disqualifying conviction. Owens did not learn that one of the jurors who sat on his case, Mr. Alade, was a noncitizen until after he had been convicted. Indeed, if Mr. Alade had not informed the jury commissioner to the con trary, 4 his citizenship status never would have be come an issue; it convicted of, an offense punishable under the provision of § 8-401 (c) of th is title. (7) Is a party in a civil suit, except for those civil actions in which a party is not entitled to a jury trial, pending in the court in which he is called to serve; (8) Is under the age of 18 years of age; (9) Fails to meet any other objective test prescribed by the Court of Appeals. This se ction no w is co dified a t CPJ § 8-103 (b), see Acts of 2006, ch. 372, and provides: Disqualifying factors (b) Notwithstanding subsection (a) of this section and subject to the federal Americans with Disabilities Act, an individual is not qualified for jury service if the individu al: (1) Cannot comprehend spoken English or speak English; (2) Cannot comprehend written English, read English, or w rite English proficiently enough to complete a juror qualification form satis fact orily; (3) Has a disabili ty that , as documen ted b y a health care prov ider's certification, prevents the individual from providing satisfactory jury service; (4) Has bee n convicte d, in a feder al or State court of record, of a crime punishable by imprisonment exceeding 6 months and received a sentence of imprisonment for more than 6 months; or (5) Has a charge pending, in a federal or State court of record, for a cri me pu nishab le by impr isonm ent exc eeding 6 mon ths. 4 Perhaps it is because Mr. Alade, on his own , advised the jury commiss ioner of his alien status that Mr. Alade s assertion that he did not intentionally misre present his status is not being c halleng ed. What is troubling, of course, is the lack of verification or follow-up 5 undoub tedly would have remained undiscovered and, thus, unkn own. Th at is not at all surprising, or should be: the majority points out that [the jury commissioner s office] does not review for accuracy the responses provided by juror candidates unless some information is missing, ___ Md. ___, ___, ___ A . 2d ___, __ _ (2007) [ slip op. at 7], an d, presum ably because he had filled out the juror qualification form adequately, that office clearly did not verify Mr. Alade s citizenship in this case. As it was required to do, pursuant to Maryland Code (2001) § 6-105 of the Criminal Procedure Article,5 the Circuit Co urt held a he aring to determine whether the non-disclosure, and/or the juror s status, influenced the outcome of the trial, thus, entitling Owens to a new trial. The court found that neither denied Owens a fair trial. It, therefore, rejected Owen s constitutional and statutory arguments. T he court viewed Mr. Alade s non-disclosure and consequent service on the ju ry to be purely a statutory matter, cogn izable on voir dire. Because Owens did not pose a question, during voir dire, inquiring into the citizenship status of the venire, to include Mr. Alade, the court concluded that he had waived his ob jection to Mr. Alade s serv ice o n the jury, by the jury commissioner s office. 5 Maryland Code (2001) § 6-105 of the Criminal Procedure Article provides, as relevant: (a) Timing of hearing on motion. Except as provided in subsection (b) of this section, a court in w hich a mo tion for new trial in a criminal case is pending shall hear the motion: (1)within 10 days after the motion is filed; or (2) if an agreed statement of the evidence or a statement of the evidence certified by the trial judge is filed, within 10 days after the stateme nt is filed . 6 notwithstanding his non -citizens hip and the fac t that, had that fact bee n know n, he wo uld have been required to have been struck for cause. The Court of Special Appeals affirmed. Like the trial court, it believed that voir dire, rather than post-judgment, was the proper time for Owens to have challenged unqualified jurors, and that his failure to inquire of the panel as to the citizenship of its members at that time is equivalent to a waiver of the c halleng e. Owens v. State, 170 Md. App. 35, 71-73, 906 A. 2d 989, 1009-10 (2006). The majority concurs in that rationale. ___ M d. at ___, ___ A. 2d at ___ [slip op. at 30]. II. How the majority reaches the result it does is quite interesting and also most instructive. It acknowledges the three levels of screening that this Court has recognized potential jurors are sub jected to ensure that they are minimally qualified to serve and, further, that each level of screening is performed by a different actor. ___ Md. at ___, ___ A.2d at ___ [slip op. at 29 -30], citing and quoting Boyd v. State , 341 Md. 431, 441, 671 A.2d 33, 38 (1996). 6 Viewing thos e eff orts a s not muc h mo re than prelim inary, certainly not conclusive, 6 The first level occurs when the juror qualification form is executed and returned and it is under the supervision of the jury commissioner s office, overseen by the jury judge. The second level occurs when the potential juror comes to court; he or she then is seen by, and may be interviewed by, the jury commissioner or the jury judge. At this stage, upon the juror s appearance at the court, as Boyd v. State , 341 Md. 431, 444, 671 A.2d 33 , 39 (1996), makes clear, the jury judge or co mmission er [is authoriz ed] to question the potential juror further on the information contained in the questionnaire. The third level occurs in the courtroom during jury selection, when, in the superintendence of the process, the trial judge has the opportunity to observe the venire. The main purpose of the juror qualification questionnaire is the formation of a jury pool. N ecessarily, therefore, the object of the inquiry largely relates to wh ether, at the thre shold, the potential juror meets the minimum 7 with respect to juror qualifications, the majority perceives the voir dire procedu re, which it characterizes as a proper procedural screening occasion to verify juror qualifications, as the fall back position, [i]n the event that the court s internally-administered means of automatica lly disqualifying prospective jurors has failed to eliminate a disqua lified jur or. Id. at ___, ___ A. 2d at ___ [slip op. at 30]. For that proposition, it relies on Williams v. State, 394 M d. 98, 112, 9 04 A.2d 534, 542 (2006); Jenkins v. S tate, 375 Md. 284, 331, 825 A.2d 1008, 1035 (2003) and Dingle v. State, 361 Md. 1, 9, 759 A.2d 819, 823 (2000), in turn citing Boyd , 341 M d. at 435 , 671 A .2d at 35 , Grogg v. State, 231 Md. 530, 532, 191 A.2d 435, 436 (1963), Hill v. State, 339 Md. 275, 280, 661 A.2d 1164, 1166 (1995), and Bedford v. State, 317 Md. 659, 670, 566 A.2d 111, 116 (1989). It is from this premise that the majority asserts a defendant s failure to pursue the opportunity to question prospective jurors as to citizenship during voir dire constitutes a waiver of the statutory means of protecting the right to a citizen jury. Id. at ___, ___ A. 2d at ___ [slip op. at 30]. The implications of the pre-screening process - that it is monitored by the jury commissioner s office, an arm of the court, that a question on the juror qualification qualifications of a juror. It is still at issue, although, perhaps not so much as at the questionnaire stage, at the second screening, where deferrals or excuses from service take on a greater importance. A s we sh all see, infra, the jury pool having been set and two screenings having already occurred, the focus at the third scree ning is on e mpanelin g a fair and impartia l jury, not determ ining wh ether the ve nire is prope rly constituted. At that stage, it is assum ed to be , and rea sonab ly so. 8 questionnaire specifically asked the citizenship question and that it was in this case answered albeit, and perh aps inadv ertently, incorrectly - and the fa ct that voir dire inquiries into juror qualifications are not m andato ry questio ns, see Boyd , 341 Md. at 446-47, 671 A. 2d at 40-41, are not lost on th e majority. Its respo nse to the forme r is facile and p redictable: [ w]hile [Owens] may have assumed that the ve nire panel had been pre-screened based on the jury questionnaire, it is easy to anticipate that mistakes do occur, w hich is why a questionnaire alone is not the sole tool used to select a jury. Id. at ___, ___ A. 2d at ___ [slip op. at 30 n. 42], quoting Owen s v. State, 170 Md. App. at 73, 906 A.2d at 1010. It bu ttresses its logic by citing a case, decided 113 years before Boyd and wh ose rationale is inconsisten t with Boyd s h olding and ratio nale. Johns v. Hodges, 60 Md. 215, 221-22 (1883)7 As to the latter, the majority confesses partial error, and, thus, overrules that portion of Boyd that made voir dire questions concerning minimum statutory qualifications fo r jurors discretio nary, rather than mandatory. It pronounces itself satisfied that it is in the better 7 In Johns v. Hodges, 60 Md. 215, 221-22 (1883), our predecessors reasoned: The right of cha llenge itself is a safeguard provided by law in contemplation of the contingency that the officers whose duty it is to select only qualified persons have failed in the performance of that duty. It is a means spe cially provided by which a party to a suit may rea dily and effec tually protect him self agains t any ove rsight or neglec t comm itted in th e origin al selectio n. That reasoning is the exact o pposite of th at employed by this Court in Boyd . Rather than applaud an inquiry aimed at checking the adequacy with which the jury commissioner or compara ble official performed, we decried and discouraged the redundancy. 341 Md. at 438, 671 A.2d at 37 (indicating that the inquiry in that case, involving physical infirmity, one of the enumerated minimum qualification s, was to b e conduc ted at severa l earlier points in the juror selection process, rendering the requested questions unnecessary on voir dire. ). 9 interests of justice to require trial judges to pose voir dire questions directed at exposing constitutional and statutory disqualifications when requested by a party. ___ Md. at ___, ___ A. 2d at ___ [slip op. at 33]. Its explanation for why that is nec essary is classic bootstrapping: The rule in Boyd that voir dire questions concerning minimum statutory qualifications are not mandatory w hen soug ht was an imat ed, in part, by a belief that such questions duplicate needlessly the efforts of the pre-voir dire screening metho ds wh ich foc us on st atutory dis qualific ations. That cases such as the present one occur dem onstrate a co rrectable w eakness in this reasoning. Because the pre-voir dire screening methods failed to identify and excuse Alade, a non-citizen, it is evident that voir dire questions regarding minimum statutory qualifications are not always redundant an d unnecessary. In fact, our cases ruminate that the pre-voir dire processes of screening out disqua lified jur ors are n ot fail-sa fe. . . . Id. at ___, ___ A. 2d at ___ [slip op. at 33] (footnote and citation o mitted). In support of the latter propositio n, the major ity again turns to Johns v. Hodge. And it directs our attention to the conce ssion by the jury co mmission er for Ho ward C ounty, that his sta ff did not confirm the veracity of the information contained on juror questionnaires and the orientation session also failed to address citizenship as a qualification. Id. at ___ n. 42, ___ A. 2d at ___ n. 42 [slip op. at 30 n . 42]. The partial overruling of Boyd is prospective, o f course, and does not, therefore, serve to make the question in this case mandatory. Nevertheless, presumably because, in the majority s view, the defendant could, and probably should, have anticipated that there could be a failure of the screening process, thus allowing a non-citizen to slip through the cracks, the majority faults Owens for relying on the screening procedures and not asking the co urt 10 to again ask the v enire a q uestion to whic h everyo ne of th em alre ady had r espon ded, and consistently so with service on the jury. To it, because the trial court s refusal to ask the question could have been reviewed for an abuse of discretion, O wens m ay only benefit from the jury deficiency if he asked the trial court to inquire of the venire concerning an issue as to which he had no basis for inquiring.8 At the outset, the voir dire process is not a back-up to the juror qualification process; its office is no t to verify juror qualifications. None of the cases cited for this proposition support it. To be sure, in Williams, 394 Md. at 112, 904 A.2d at 542, we said that [V ]oir 8 Self -serv ingly, the trial court indicated that, had Owens proposed a citizenship question, the court would in all likelihood have asked it, and Mr. Alade would have been excused. The majority accepts that speculation. That is all that is, speculation. And speculation is much too tenuous support for the denial of so important a right. There is, moreover, not even a guarantee that Mr. Alade would have responded to the question. After all, he had on ce, already, inadv ertently failed to respond correctly to a rather straight-forw ard and un ambig uous q uestion . It is curious that the majority believes that the respondent would have been helped by proposing the citizenship question to be put to the venire. That presupposes that the information now known either shou ld have be en know n then or w ould become known during the voir dire proces s. Otherwise, because the exercise of discretion is judged on the basis of information known, and the fac ts and circum stances exis ting, when the discretion is exercised, the later discovery of the lack of citizenship on the part of Mr. Alade would not inform the decision on review. As the majority has correctly pointed out, that a juror provides false information does not guaran tee relief . See ___ Md. at ___, ___ A. 2d at ___ [slip op. at 35 ], citing Hunt v. S tate, 345 Md. 122, 144 -46, 691 A.2d 1 255, 1265-66 (1 997); Leach v. State, 47 Md. App. 611, 618-19, 425 A.2d 234, 238-39 (1981) (affirming the refusal to strike a juror, who upon cross-examination at trial, was discovered to be an old neighbor and acquaintance of a S tate s witness when the trial judge was satisfied that the juror had no bias and Burkett v. S tate, 21 Md. App. 438, 445, 319 A.2d 845, 849 (1974) (failure to reveal relationship to prose cutor). The interest of justice could and probably would suffice as a basis for relie f, I w ould have tho ught, but it is an aven ue av ailab le in this case a lread y. 11 dire is the mechanism by which we give substance to the constitutional guarantee to criminal defenda nts of a fair and impartial jury trial, which, we made clear, was accomplished by exclud[ing] from the venire potential jurors for whom there exists cause for disqualification, so the jury that rema ins is capab le of decid ing the ma tter before it based solely on the fa cts presented, and uninfluenced by extraneous considerations. Id. at 107, 904 A. 2d at 539, citing Hill, 339 Md. at 279, 661 A.2d at 1166, in which we stated that the voir dire procedure is undergirded by the single, primary, and overriding principle or purpose: to ascertain the existence of cause for disqualification. 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 5 56, 559 (1952). See Jenkins, 375 M d. at 331, 82 5 A.2d a t 1035-36 ( [O]ne of the w ays to protect a defe ndant's constitutional right to an impartial jury is to expose the existence of factors which could cause a juror to be biased or prejudiced through the process of voir dire examination ); Dingle, 361 M d. at 9, 759 A .2d at 823 (s tating that voir dire is the process by which prospective jurors are examined to d etermine whether c ause for disqualification exists); Boyd , 341 M d. at 435 , 671 A .2d at 35 (same) . In Boyd, we explained the nature of the disqualification to which we had reference: In virtually all our previous cases . . ., the proposed questions concerning specific cause for d isqualification were relate d to the biases, such as racial or religious interests or prejudices, of the p rospective ju rors. As a res ult, in discussing what type of questions must be asked on voir dire, we have defined the proper focus of the voir dire examination to be only the venireperso n's state of mind a nd the existence of bias , prejud ice, or pr econc eption, i.e., a mental state that gives rise to cause for disqualification. . . . Hill, 339 Md. at 280, 66 1 A.2d at 1167 , citing Davis, 333 Md. [27,] 37, 633 A.2d [867,] 872 12 [(1993)]. Although we did make a general statement in Davis that the minimum statutory qualifica tions for jurors would be included in the mandatory scope of voir dire, that case pe rtained solely to p ossible biases the venirepersons might have had in favor of law enforcement personnel, and our analysis and application of the rules of voir dire involved primarily the search for bias . 341 Md. at 436-37, 671 A.2d at 36. Thus, Boyd and all of the cases the majority cites, with the exception of the over-broad statement in Davis v. S tate, addressed a process developed to ensure juror impartiality, not to verify juror qualification. This is consistent with the elaborate system for ve tting potential jurors that the Court identified and described in Pa rt IV of the Boyd decision. 341 Md. at 441-45, 671 A.2d at 3840. That system, whose origin is a statutory scheme of some sophistication, is implemented by Rules of this Court in which this Court plays a significant role. The R ule requires each circuit court to develop a jury plan, which must be approved by the Court of Appeals. The plan prescribes the procedures for compiling a list of potential jurors meeting the minimum statutory qualifications and for proc essing them. It assigns respon sibility for the superintendence of the proc ess to court p ersonnel, including the bench or jury judge, and it contemplates that such pe rsonnel w ill gather the ne cessary inform ation and d o what is required to amass a venire, to develop a pool from which impartial juries may be selected. That system, I submit, contemplates that the litigants will rely on the results of the process. It simply is inconceivable that the majority s view of the jury plans and the very important tasks assigned to court personne l in order to de velop a ve nire is correct. That certainly is not how this Court viewed such systems in Boyd. 13 There, we con strued the jury se lection subtitle as being concerned with the removal of unnecess ary screen ing b arrie rs, s o tha t man dato ry voir dire of prospective jurors about matters (in that case, their physical limitations) already thoroughly covered earlier in the selection process imposes an unnecessary screening barrier. Indeed, further questioning may embarrass or intrude upon the privacy of a prospective juror. Boyd , 341 Md. at 446, 671 A.2d at 4 0 (em phasis in original) . Tha t is es peci ally the case, we added, when an affirmative answer does not by any means denote likely disqualification[.] Id. We also said: The petitioners cannot specify a single reason why further questioning specifically on physical limitations is n ecessary. We acknow ledge that a question on voir dire about physical limitations of ju rors and ad dressed to a ll venirepersons might occasionally result in disqualification of a juror; but so might literally any other line of questioning. Defendants have not documented instances where th e juror selectio n process f ailed com pletely to screen out physically incapable jurors, who would have been identified and excused had the question been asked on voir dire. In short, unless the judge has made some observations regarding possible physical problems, such questioning can become merely a gen eral attempt to fish about for more information than is necessary about pro spective juro rs. Certainly it is not reason ably likely to lead to caus e for dis qualific ation. Id., 671 A.2 d at 40-41 . These ob servations a pply with at leas t equal force to the case sub judice, with the exception of the likelihood of disqualifica tion. Ow ens had n o reason to suspect that Mr. Alade was not a citizen and neither did anyone else. The trial judge, so far as the record re flects, had n ot made a ny observatio ns conce rning poss ible citizenship problems and certainly the pre-screening process had revealed none.9 9 Under these That the jury commission office did not verify Mr. Alade s citizenship or challenge his assertion that h e was a citiz en is not a ba sis for sugge sting that Ow ens should have known 14 circumstances, there was no basis to ask the question, the screening already having been done, and there simply is no basis for be lieving that ha d it been proposed, it would have been met w ith anythin g but a r efusal, i n the ab sence o f the pro ffer of some b asis for doing s o. There is also in this case no showing of documented instances where the juror selection process has failed completely to screen out non-citizens, just this case. That is not enough, I subm it, not by a lo ng sho t. Nothing is perfect. Th ere simply is no complete ly failsafe system, no m atter wha t it is in tend ed to acco mplish. B ecau se this is so, on e alw ays can anticipate and ex pect m istakes. B ut this fa ct does not me an that th e system is broken . It is not a reason to d eny to a party the righ t to rely on the results of the process or to change the responsibility for inquiring, in hopes of discovering the pertinent information . It is not a basis for holding a party to a different standard or changing the jurisprudence. Maryland is, and has prided itself on being, a limited voir dire State. See Curtin v. State, 393 Md. 593, 602, 903 A.2d 92 2, 928 (20 06); Landon v. Zorn, 389 Md. 206, 216, 884 A.2d 142, 147 (2005); State v. Thomas, 369 Md. 202, 216-17, 798 A.2d 566, 574 -75 (2002); Davis, 333 M d. at 34, 4 0-43, 6 33 A.2 d at 870 , 873-75. There are, at present, only a few mandatory inquirie s. Dingle, 361 Md. at 11 n. 8, 759 A.2d at 824 n. 8, listed those this Court has identified: racial, ethnic and cultural bias, Hernan dez v. State , 357 Md. 204, 232, 742 to inquire. Just the opposite, the responsibility for developing the jury pool, which necessarily requires the screening of the potential jurors for elig ibility, is placed on the jury commission office, not the def endant. Th is opinion sh ifts that respon sibility and it does so unre ason ably a nd unnecess arily. 15 A.2d 95 2, 967 (19 99); Hill, 339 Md. at 285, 661 A.2d at 1169; 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 capita l cases, Corens v . State, 185 Md. 56 1, 564, 45 A.2d 3 40, 343-44 (194 6), and placement of undue weigh t on pol ice off icer cred ibility, see Langley v. State, 281 Md. 337, 349, 378 A.2d 13 38, 1344 (1977). To these, we m ay add the inq uiries appro ved in Thomas, 369 Md. at 214, 798 A.2d at 573 (bias due to the nature of th e narcotics c rime with which the defendant is charged) and Sweet v . State, 371 Md. 1, 9-10, 806 A.2d 265, 271 (2002) (applying Thomas to sexual abuse related crimes). All of these categories involve potential biases or predispositions that prosp ective jurors may hold which, if present, w ould hinder their ability to objectively resolve the matter before them. Davis, 333 Md. at 36, 633 A.2d at 872. Ironically, this case expands those categories to each and every qualification category there is. Questions proposed as to any of them, whether there is basis for them or not, will have to be asked; there simply is no basis for doing otherwise. The jury commissioner is just as likely to make mistakes as to any one of them as he or she has done with regard to citize nship. M oreover, an attorney represe nting a def endant w ill be constrained to ask each of the questions for fear of later post-conviction - the failure to ask and there subsequently turns up information showing a juror was disqualified for failing to meet one of them would be incompetency of counsel, as the defendant s right to appeal would have been lost. This hardly seems to be productive of judicial economy. Just the 16 opposite. Judge Cathell joins in the views herein expressed. 17

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.