Kumar v. State

477 Md. 45

266 A.3d 295

Amit KUMAR

v.STATE of Maryland

No. 21 Sept. Term, 2021

Court of Appeals of Maryland.

December 20, 2021

Argued by Eva Shell, Asst. Public Defender (Paul B. DeWolfe, Public Defender of Maryland, Baltimore, MD), on brief, for Petitioner.

Argued by Jer Welter, Asst. Atty. Gen. (Brian E. Frosh, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Respondent.

Argued before: Getty, C.J., McDonald, Watts, Hotten, Booth, Biran, Joseph F. Murphy, Jr. (Senior Judge, Specially Assigned), JJ.

Watts, J. In Kazadi v. State, 467 Md. 1, 9, 223 A.3d 554, 559 (2020), we held "that, on request, during voir dire , a trial court must ask whether any prospective jurors are unwilling or unable to comply with the jury instructions on the fundamental principles of presumption of innocence, the State's burden of proof, and the defendant's right not to testify." In so holding, we overruled Twining v. State, 234 Md. 97, 100, 198 A.2d 291, 293 (1964), in which this Court had previously held that a trial court was not required to ask such voir dire questions. In Kazadi, we initially stated that our holding would apply to Kazadi and to other cases prospectively as of the date on which the opinion was issued. Subsequently, we replaced the language in Kazadi concerning its applicability to indicate that the holding would apply to the case and "any other cases that [were] pending on direct appeal when [the] opinion [was] filed, where the relevant question ha[d] been preserved for appellate review." Kazadi, 467 Md. at 47, 223 A.3d at 581 (citations omitted).

In this case, we must determine whether our holding in Kazadi applies to cases in which a defendant had not yet noted an appeal when the opinion was issued in Kazadi but had preserved a Kazadi issue at trial. We hold that Kazadi applies to such cases. In addition, we conclude that in this case the Kazadi issue was preserved for appellate review.

BACKGROUND

Charges and Verdict

The State, Respondent, charged Amit Kumar, Petitioner, with first- and second-degree murder of his wife, Ankita Verma, and openly carrying a dangerous weapon (a knife) with the intent to injure. In the Circuit Court for Baltimore City, a jury found Kumar guilty of first-degree murder and the weapon offense. Because the facts of the case are not material to the issue before us, we will not provide a summary of the evidence. It suffices to say that after a trial by jury, Kumar was convicted of first-degree murder and openly carrying a dangerous weapon with the intent to injure after his wife had been found stabbed to death in their apartment. The issue in this case concerns the jury selection process.

Voir Dire

On November 4, 2019, the circuit court conducted jury selection. Before voir dire , Kumar submitted to the circuit court in writing a list of seventeen proposed voir dire questions, which included the following Kazadi-type questions:

15. You must presume the defendant innocent of the charges now and throughout this trial unless and until, after you have seen and heard all of the evidence, the State convinces you of the defendant's guilt beyond a reasonable doubt. If you do not consider the defendant innocent now, or if you are not sure that you will require the State to convince you of the defendant's guilt beyond a reasonable doubt, please stand.

16. In a criminal case, like this one, each side may present arguments about the evidence, but the State has the only burden of proof. The defendant need not testify in his/her own behalf or present any evidence at all.

a. Would you tend to believe or disbelieve the testimony of a witness called by the defense more than the testimony of a prosecution witness?

b. Would you hold it against a defendant if [he/she/they] chooses not to testify or chose not to present any evidence?

(Brackets in original) (citation omitted).

While reviewing the parties' proposed voir dire questions, the circuit court asked: "Is there anything that is not included in the State's voir dire that the defendant specifically requests?" Kumar's counsel responded by requesting that the circuit court ask several voir dire questions that he had proposed, including questions 15 and 16. The circuit court denied Kumar's counsel's request to ask proposed voir dire questions 15 and 16, which were the Kazadi questions. The following discussion occurred concerning voir dire questions 15 and 16, the Kazadi case (which was pending before us at the time), and Twining, 234 Md. 97, 198 A.2d 291 (which we overruled in Kazadi ):

[KUMAR'S COUNSEL]: I would ask that the Court propound ... defense request for voir dire question number 15. There is currently a case, I think it's in the Court of Special Appeals^[1] right now --

THE COURT: Yeah, it's sitting there. Until they make a decision, the old law from about 50 years ago resumes. I'm with you, [defense counsel], but until the Court of Special Appeals makes that determination I'll have to deny your request as to presumption of innocence. And if I'm thinking ahead of you as to number -- well, part of number 16.

[KUMAR'S COUNSEL]: And I would also ask that the Court include question 16 as well.

THE COURT: I'll note the request.

[KUMAR'S COUNSEL]: And, Judge, we would take exception --

THE COURT: The exception is noted as to the Court's denial of the defendant's requested 15.

[KUMAR'S COUNSEL]: And 16 as well.

THE COURT: And exception is noted with regard to -- I haven't denied it yet. I'll deny the request as number 16. I will note again this issue is before the Court of Special Appeals, ... but ... that question at this moment is still improper, so I'll deny 16 also. I'll note your exception in that regard.

(Paragraph breaks omitted).

During the circuit court's review of the proposed voir dire questions, there were three instances in which Kumar's counsel excepted to the circuit court's refusal to ask a proposed voir dire question. In the first two instances, Kumar's counsel excepted to the circuit court's refusal to ask voir dire question 15 and to the circuit court's refusal to ask voir dire question 16—i.e. , the Kazadi-type voir dire questions. In the third instance, Kumar's counsel excepted to the circuit court's decision to ask an edited version of a proposed supplemental voir dire question—question B—which concerned whether jurors or their family members were trained or employed in the medical field.

In all other instances, Kumar's counsel did not except to the circuit court's refusal to ask proposed voir dire questions. Kumar's counsel did not except to the circuit court's refusal to ask proposed voir dire questions 10 (which pertained to whether jurors had law enforcement connections) and 17 (which was a catchall question). Similarly, Kumar's counsel did not except to the circuit court's decision to ask an edited version of proposed voir dire questions 9 (which pertained to whether jurors may have had biases against certain groups of people) and 12 (which pertained to whether the jurors had connections to certain advocacy organizations). In another instance, although the circuit court stated that it would note Kumar's counsel's exception to the court's refusal to ask a supplemental voir dire question—question A (which pertained to alcohol and drug use)—Kumar's counsel did not actually state that he excepted to the circuit court's refusal to ask the question.²

After the exchange above in which the circuit court declined to ask voir dire questions 15 and 16 (the Kazadi questions) and indicated that Kumar's counsel's exceptions to the court's failure to ask the questions had been noted, the court asked the voir dire questions of the jury panel as a group. Upon completion of the group questions, before the court individually questioned prospective jurors who had responded affirmatively, the following exchange occurred:

THE COURT: Anything further from the defense?

[KUMAR'S COUNSEL]: I'll just ask the Court to note my continuing exception to the Court's refusal --

THE COURT: Does your client want to be here?

The circuit court did not ask Kumar's counsel to elaborate concerning the "continuing exception to the Court's refusal[.]"

Motion for a New Trial and Notice of Appeal

On November 18, 2019, in the circuit court, Kumar filed a motion for a new trial, contending, among other things, that the circuit court erred in declining to ask proposed voir dire questions 15 and 16. In the motion for a new trial, Kumar's counsel raised various allegations of error but the only allegation raised concerning the circuit court's failure to ask proposed voir dire questions pertained to the court's failure to ask the Kazadi questions. On January 24, 2020, prior to the date of Kumar's sentencing, we issued our opinion in Kazadi and addressed the applicability of our holding as follows:

Additionally, consistent with this Court's case law, although we provide Kazadi "with the benefit of the holding[ ] in this case, we determine that our holding[ ] shall apply prospectively as of the date on which this opinion is filed."

Pearson v. State, 437 Md. at 370, 86 A.3d at 1243. In other words, our holding exclusively applies to this case and future trials, and this opinion should not be construed as giving rise to any grounds for relief in cases in which voir dire occurred before today—i.e. , cases in which trial courts operated under the assumption that Twining, 234 Md. at 100, 198 A.2d at 293, remained good law.

(Alterations in original).

On February 21, 2020, the circuit court conducted the sentencing proceeding in Kumar's case at which it heard argument on and denied the motion for a new trial. The circuit court sentenced Kumar to life imprisonment for first-degree murder and a consecutive sentence of three years' imprisonment for the weapons offense. On March 2, 2020, we issued an Order replacing the language in Kazadi on the applicability of our holding with the following:

Additionally, consistent with this Court's case law, we provide Kazadi with the benefit of the holding

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