Ortiz v. State

RUBEN ORTIZ, v. STATE OF MARYLAND

No. 628

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2018

July 16, 2020

Circuit Court for Montgomery County

Case No. 132115C

UNREPORTED

Reed, Gould, Zarnoch, Robert A. (Senior Judge, Specially Assigned), JJ.

Opinion by Reed, 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.

Ruben Ortiz (hereafter "Appellant") was charged with first-degree murder, second-degree murder, and robbery with a deadly weapon. Appellant was acquitted on all charges except the second-degree murder by a jury for the Circuit Court for Montgomery County. On May 1, 2018, Appellant was sentenced to 30 years with all but 24 years suspended and five years' probation.

Appellant timely filed this appeal and presents the following question for our review, which we rephrased:¹

I. Did the trial court err when asking compound voir dire questions proposed by the co-defendant's counsel and assented to by Appellant's counsel that required jurors to assess their own impartiality?

II. Was Appellant denied his right to effective assistance of counsel?

III. Did the trial court err by not submitting the lesser-included first-degree assault charge to the jury?

For the following reasons, we answer questions I and III in the affirmative and remand to the court with instructions to reverse its judgments and set a new trial. We do not rule on the issue of whether Appellant was denied effective assistance of counsel.

FACTUAL & PROCEDURAL BACKGROUND

On May 28, 2017, Appellant and his girlfriend ("Cox") were walking in downtown Silver Spring, Maryland, looking to sell marijuana. Appellant and Cox came across a group of prospective buyers and arranged a sale in an alleyway near the Days Inn Hotel. Approximately five men exited the hotel and ambushed the Appellant, beating, punching, kicking, and robbing him of his possessions. Cox ran to a nearby apartment complex to call 911, however, police officers arrived after the assailants had already fled the scene. Appellant emerged from the attack with no shoes, no shirt, and a blood-stained undershirt.

Appellant called his brother, informed him what happened, and arranged for him to bring him a shirt and a pair of shoes. Not long after, Appellant connected with several friends and began to search for the assailants. After surveilling the area, Appellant and his friends found and confronted one of the assailants. They arranged for Appellant's friend, James Jackson ("Jack") to retrieve Appellant's stolen belongings. The group watched from a distance as after Jack reclaimed the items, he dropped them and punched the assailant. Once Jack struck the assailant, the group, including Appellant, ran across the street to join the fight. The group dispersed at the sound of police sirens and the assailant, now the victim, attempted to stand and return to the hotel room. The victim died from his injuries, as it was later discovered that Jack had repeatedly stabbed him with a knife during the assault.

Appellant and Jack were tried jointly. During the trial, the State played the body-worn camera footage of the responding officer, depicting the officer's effort to aid the victim. Near the end of the video, John and Amara Cartwell, members of the victim's family, stormed past the courtroom sheriff, launching threats and insults at Appellant. The jury was promptly removed from the courtroom during the struggle to control the men.

After the outburst, the court conducted an individual voir dire of each juror, inquiring if they could continue to serve impartially.² Four jurors who served in Appellant's trial did not answer any voir dire questions. Before the case was turned over to the jury for deliberation, Appellant asked the court to submit a first-degree assault charge on the verdict sheet as a lesser-included offense of second-degree specific intent murder. The trial court denied his request. Appellant was subsequently convicted of second-degree murder, and on May 1, 2018, he was sentenced to 30 years imprisonment with all but 24 years suspended and five years' probation. Appellant filed this timely appeal.

DISCUSSION

I. Voir Dire

A. Parties' Contentions

Appellant argues that voir dire questions posed to the jury improperly shifted the burden of determining bias from the court to the jurors; thus, the court abused its discretion in asking the questions in such manner. The voir dire questions allowed each juror to independently assess his/her own ability to be fair and impartial, Appellant contends, andthis possibility vitally affects his right to a fair and impartial trial. Although Appellant did not object to the questions at the time, he asserts that a compelling reason exists to justify plain error review—to protect his absolute right to a fair and impartial jury.

The State asked the question, "should this Court decline to exercise plain error review of four voir dire questions asked in a form disapproved by Pearson v. State, 437 Md. 350 (2014)". The State contends that Appellant does not meet the threshold requirement for plain error review that (1) the trial court erred, (2) the error was plain, and (3) the error was material to the defendant's rights. See State v. Brady, 393 Md. 502, 506 (2006). Even if these prerequisites are met, the State argues that Appellant is unable to demonstrate a relevant reason for recognizing plain error review, such as: egregiousness of the error, its impact on the Appellant, and the degree of attorney dereliction in not lodging a timely objection. Thus, the State argues that plain error review cannot be applied to safeguard Appellant's failure to object at trial. We disagree.

B. Standard of Review

When reviewing a trial court's decision to ask a voir dire question, we ask whether the court abused its discretion. See Pearson, 437 Md. at 356; see also Washington v. State, 425 Md. 306, 314 (2012) ("We review the trial [court]'s rulings on the record of the voir dire process as a whole for an abuse of discretion[.]" (citation omitted)). Generally, this Court only decides issues that "plainly appear[]s by the record to have been raised in or decided by the trial court..." Md. Rule 8-131. A party must make a timely objection to a jury instruction and state the specific grounds, otherwise the objection is not preserved forreview. See Taylor v. State, 236 Md. App. 397, 411 (2018); Gore v. State, 309 Md. 203, 2017 (1987).

However, Maryland Rule 4-325(e) states in relevant part, "[a]n appellate court, on its own initiative or on the suggestion of a party, may however take cognizance of any plain error in the instructions, material to the rights of the defendant, despite a failure to object." See Brady, 393 Md. at 506. This Court will review unpreserved errors in "compelling, extraordinary, exceptional or fundamental" circumstances "to assure the defendant a fair trial, and as those 'which vitally affect [] a defendant's right to a fair and impartial trial.'" Brady, 393 Md. at 507 (internal citations omitted) (quoting State v. Daughton, 321 Md. 206, 211 (1990)). Conversely, we do not recognize "errors that are purely technical, the product of conscious design or trial tactics or the result of bald inattention." State v. Hutchinson, 287 Md. 198, 204 (1980). This Court may, but is not required to, consider relevant reasons for recognizing plain error, such as: (1) egregiousness of the error, (2) its impact on the defendant, (3) the degree of attorney dereliction in not lodging a timely objection, and (4) the nature of the legal issue presented. See Austin v. State, 90 Md. App. 254, 267-72 (1992).

C. Analysis

In the case before us, Appellant did not preserve his objection to the jury instructions and now asks this Court to exercise plain error review. The predominate purpose of voir dire is to assure a criminal defendant's right to an impartial jury. See Thomas v. State, 454 Md. 495, 507-08 (2017) (citing Dingle v. State, 361 Md. 1, 9 (2000)). The scope and form of the questions submitted for voir dire is left to the broad discretion of the trial judge. SeeThomas, 454 Md. at 504. However, "parties to an action triable before a jury have a right to have questions propounded to prospective jurors on their voir dire, which are directed to a specific cause for disqualification, and failure to allow such questions is an abuse of discretion constituting reversible error." Moore v. State, 412 Md. 635, 646 (2010). A potential juror can be disqualified by statute or "any collateral matter reasonably liable to have undue influence over" the juror. Washington, 425 Md. at 313.

1. The Trial Court Erred

The trial court has the responsibility to assess prospective juror biases and remove those who cannot impartially follow the court's instruction or evaluate evidence. See Collins v. State, 452 Md. 614, 622 (2017); Dingle, 361 Md. at 8. To be meaningful, voir dire "must uncover more than the jurors bottom line conclusions [to broad questions], which do not in themselves reveal automatically disqualifying biases as to their ability fairly and accurately to decide the case, and, indeed, which do not elucidate the bases for those conclusions...." Id. at 15 (citing Bowie v. State, 324 Md. 1, 23 (1991)) (internal marks omitted).

In Dingle, 361 Md. 1, the Court of Appeals held that the voir dire questions asked by the trial judge prevented the court from impaneling a fair and impartial jury. The trial judge asked the venire the following question:

Have you or any family member or close personal friend ever been the victim of a crime, and if your answer to that part of the question is yes, would that fact interfere with your ability to be fair and impartial in this case in which the state alleges that the defendants have committed a crime?

Id. at n.4 (emphasis added). The Court of Appeals explained that the form...