Gilbert v. State

JAMES GILBERT v. STATE OF MARYLAND

No. 1925

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2016

August 7, 2017

UNREPORTED

Beachley, Shaw Geter, Thieme, Raymond G., Jr. (Senior Judge, Specially Assigned), JJ.

Opinion by Thieme, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

A jury in the Circuit Court for Baltimore City convicted James Gilbert, appellant, of wearing or carrying a firearm and of possession of a firearm by a prohibited person. Appellant was sentenced to ten years for the carrying conviction, the first year without the possibility of parole, and a concurrent eight years for the possession conviction, the first five without the possibility of parole.

He presents a single question for our review, which we revise for accuracy as follows:

Did the trial court err in failing to ask prospective jurors on voir dire the "any other reason" or "catch-all" question as requested by both the prosecution and the defense?

We conclude that the court did not abuse its discretion in declining to ask that voir dire question and therefore affirm the convictions.

FACTS AND LEGAL PROCEEDINGS

For purposes of this appeal, which focuses solely on voir dire, it is sufficient to briefly summarize the factual basis for appellant's convictions. On February 3, 2015, appellant was arrested after a tip from a confidential informant prompted a foot chase during which appellant threw an object, which police later found and identified as an operable 9 millimeter handgun. When asked why he had a gun, appellant told a police officer that "a lot of people were being killed. He needed it for protection." Although police never discussed with appellant what they found, during a recorded telephone call from jail the following day, appellant correctly identified the recovered object as a 9 mm handgun.

Before trial, the court asked members of the jury panel seventeen voir dire questions concerning standard matters, including their knowledge of the case, the parties, witnesses, and attorneys; their qualifications for service, including age, citizenship, residency, language, disqualifying convictions, and hardship; and their potential biases based on beliefs, attitudes toward police, and "the charges of wear, carry, transporting a handgun on the person and possession of a firearm by a prohibited person." The court then asked counsel whether there was any objection to its voir dire.

The prosecutor pointed out that the court had not asked the "any other reason" question, referring to a question included in pattern voir dire examinations, asking prospective jurors whether there is any reason not covered by previous questions that they could not be fair and impartial in the case. The court responded that it "usually" excluded that question "[b]ecause that's just a fishing expedition, in my opinion . . . . And I don't ask it." Defense counsel then joined with the prosecutor in objecting to that ruling, stating:

I would ask, and I know that the State already did, I would ask for the catch-all question. I understand the Court's not going to give it, but I just want to make a record . . . . and I would note my exception.

DISCUSSION

Appellant contends that "the trial court erred in failing to ask prospective jurors on voir dire the 'any other reason' or 'catch-all' question as requested by the defense and the prosecution." Asserting that "this 'catch-all' question is designed to reveal specific biases and prejudices not otherwise identified by its very lack of particularity," appellant disputes the trial court's determination that the question would merely be "a 'fishing expedition'designed to disclose information to be used only to exercise peremptory strikes." In appellant's view, asking this question appropriately places the burden "on the prospective juror to engage in a self-evaluation and divulge their own prejudice or bias not otherwise listed." Appellant argues that,

[i]n light of the purpose of voir dire, along with the fact that such a self-identifying question serves the purpose of voir dire without being unduly time consuming, it is imperative in a case such as this one where the [question] was asked for by both parties. The trial court was wrong in not giving such a voir dire question and its failure requires reversal without more.

The State counters that appellant "does not and cannot point to any particular bias that the question would have uncovered if asked, and therefore its inclusion in voir dire was purely discretionary." The trial court properly exercised its discretion, the State argues, because the catch-all question is a compound inquiry that does not seek to uncover case-specific bias and "improperly shifts the task of assessing bias to the venire members."

The Court of Appeals has summarized the standards governing voir dire as follows:

An appellate court reviews for abuse of discretion a trial court's decision as to whether to ask a voir dire question.

A defendant has a right to "an impartial jury[.]" U.S. Const. amend. VI; Md. Decl. of Rts. Art. 21. Voir dire (i.e., the questioning of prospective jurors) "is critical to" implementing the right to an impartial jury.

Maryland employs "limited voir dire." That is, in Maryland, the sole purpose of voir dire "is to ensure a fair and impartial jury by determining the existence of [specific] cause for disqualification[.]" Unlike in many other jurisdictions, facilitating "the intelligent exercise of peremptory challenges" is not a purpose of voir dire in Maryland. Thus, a trial court need not ask a voir dire question that is "not directed at a specific [cause] for disqualification [or is] merely 'fishing' for information to assist in the exercise of peremptory challenges[.]"

On request, a trial court must ask a voir dire question if and only if the voir dire question is "reasonably likely to reveal [specific] cause for disqualification[.]" There are two categories of specific cause for disqualification: (1) a statute disqualifies a prospective juror; or (2) a "collateral matter [is] reasonably liable to have undue influence over" a prospective juror. The latter category is comprised of "biases directly related to the crime, the witnesses, or the defendant[.]"

Pearson v. State, 437 Md. 350, 356-57 (2014) (citations omitted).

When reviewing a voir dire challenge, appellate courts afford trial courts

significant latitude in the process of conducting voir dire and the scope and form of questions presented to the venire. "[N]o formula or precise technical test exists for determining whether a prospective juror is impartial." And we have said repeatedly that the trial judge is vested with broad discretion in the conduct of voir dire, subject to reversal for an abuse of discretion. Yet, "[u]ndergirding the voir dire procedure and, hence, informing the trial court's exercise of discretion regarding the conduct of the voir dire, is a single, primary, and overriding principle or purpose: to ascertain the existence of cause for disqualification." "[W]e do not require perfection in its exercise." The "trial court reaches the limits of its discretion only when the voir dire method employed by the court fails to probe juror biases effectively."

We have made equally clear that voir dire should not be "cursory, rushed, and unduly limited," but instead should be "a comprehensive, systematic inquiry that is reasonably calculated, in both form and substance, to elicit all relevant information from prospective jurors." The broad discretion that we accord judges in the conduct of voir dire "and the rigidity of the limited voir dire process are tempered by the importance and preeminence of the right to a fair and impartial jury and the need to ensure that one is empaneled." We therefore would not fulfill our duty as a reviewing court if we were to grant "rote deference to the trial court's decision based on the numerous cases in which we have held that a voir dire

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