Couser v. State

• Decision Date: 10 March 1978
• Docket Number: No. 87,87
• Citation: 383 A.2d 389,282 Md. 125
• Parties: John Henry COUSER v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 125

282 Md. 125

383 A.2d 389

John Henry COUSER v. STATE of Maryland.

No. 87.

Court of Appeals of Maryland.

March 10, 1978.

Martha G. Villmoare, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellant.

Alexander L. Cummings, Asst. Atty. Gen., Baltimore (Francis B. Burch, Atty. Gen. and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, LEVINE, ELDRIDGE, ORTH and COLE, JJ.

MURPHY, Chief Judge.

Appellant was found guilty after a jury trial in the Criminal Court of Baltimore of possessing a controlled dangerous substance with intent to distribute; he was sentenced to 20 years' imprisonment. The judgment was affirmed on appeal. Couser v. State, 36 Md.App. 485, 374 A.2d 399 (1977). We granted certiorari, limited to two issues:

(1) Whether the appellant waived his objection to the denial of his request at the trial for the use of the prosecutor's jury dossier when, after the jury was selected, he stated that it was acceptable to him; and

(2) Whether the appellant had a right to disclosure of the prosecutor's jury dossier and, if so, whether the right is dependent upon a prior showing of prejudice to the accused.

The record discloses that the trial judge conducted a lengthy and probing voir dire examination of the panel of prospective jurors, submitting a total of 14 questions. ¹ He first inquired whether any of the prospective jurors were related to or associated with either the prosecutor, defense counsel or the defendant, and whether they had any personal knowledge of or any information concerning the crime charged. There were no affirmative responses. The court then asked whether any of the prospective jurors or members of their immediate families had worked in a law enforcement or prosecution agency. There were four affirmative responses; one of the jurors admitted bias in favor of the prosecution and was struck for cause. The court next asked whether any of the jurors had ever been a defense or prosecution witness in a criminal case; there were three affirmative responses. The court next asked whether any of the jurors or their families had ever been victims of a crime. One juror indicated that his mother had been murdered and that he could not render an impartial verdict in a case involving an assault-type crime. Another juror, Paul Sloboda, stated that he had been shot four times and hospitalized for three months, but that he could render a fair and impartial verdict based solely on the evidence.

At this point in the voir dire examination defense counsel stated to the court:

"(N)ormally the State's Attorneys are equipped with jury lists that give them sort of a scoreboard on how things have developed and I don't have it."

He asked the court "to allow me to have it." The prosecutor responded:

"I have in my possession a jury list that I personally helped to prepare. . . . We disseminate it throughout the office. Just as I knew that . . . Mr. Sloboda's comment before because I personally had him under voir dire earlier. That's the basis of the preparation of the list. It's based on personal knowledge of each of the different persons and it is our work product."

The prosecutor stated that the appellant was not entitled to his work product. Defense counsel persisted, stating:

"It is a combined information and I feel that . . . certain comments in there should be equally made known to both sides of the case."

The court denied defense counsel's request, and the voir dire resumed. Following the uneventful propounding of two more questions to the prospective jurors, appellant's counsel asked the court to permit a copy of the prosecutor's jury list to be sealed and included as part of the record for purposes of appellate review. The court concluded that the prosecutor's jury list was his own "work product" in that it constituted:

"(his) own compilation, whether they think people are good or bad witnesses, they keep a running record of the trials, but every trial is a different trial because a person might be on a certain trial and decide the matter in respect to guilt or innocence doesn't mean they are going to do it a second time."

The court said that if the prosecutor's jury list revealed jurors who had criminal records, he was obligated to reveal this information. Appellant's counsel said that he wanted more than just criminal records:

"I'm asking for information that will be helpful in allowing me to select a jury as fairly as it is for the State to select a jury."

The court denied the appellant's motion to seal the prosecutor's jury list and include it as part of the record. It stated, however, that it was the duty of the prosecutor, in addition to revealing a juror's criminal record, to also bring to the court's attention any information he possessed of a juror lying under oath on his voir dire examination. The voir dire examination resumed. The prosecutor told the court that his jury list indicated that two of the prospective jurors might have criminal records; he revealed their names to the court and to the appellant. The two jurors were interrogated by the court and each denied being convicted of any crime.

At the conclusion of the voir dire examination, and after the jury had been selected, the clerk asked whether the panel was acceptable both to the prosecution and the defense; each replied in the affirmative.

(1)

The Court of Special Appeals held, and we agree, that in the circumstances of this case, the appellant did not waive his objection to the denial of his request for the use of the prosecutor's juror dossier when, after the jury had been selected, he stated that the panel was acceptable to him.

In Neusbaum v. State, 156 Md. 149, 143 A. 872 (1928), our predecessors held that the defendant waived a previously made objection to a particular jury when he later stated to the court that the jury was acceptable to him. In that case, the prosecutor, while speaking to prospective jurors who were waiting to be examined on their voir dire, made a prejudicial remark; he did so in the presence of several jurors who had already been selected. The defendant objected to the remark and moved that a juror be withdrawn and the case continued. The court denied the motion, but later offered the defendant an opportunity to have a new jury selected. The defendant declined the offer, stating that the jury was acceptable to him. It was held that under such circumstances, the objection had been waived.

In Glover, Robinson & Gilmore v. State, 273 Md. 448, 330 A.2d 201 (1975), a panel of 75 jurors had been exhausted after nine jurors had been seated. The court directed the sheriff to locate and return to court with 25 additional veniremen; the sheriff complied. After the veniremen were seated in the courtroom, the defendants objected to the array on the ground that the sheriff had not consulted the registered voters' lists as required by law. The court denied the challenge after finding that all of the jurors were qualified. After the three additional jurors were selected and seated, the court asked whether the defendants were " 'satisfied with the jury.' " Defense counsel, after consulting with the defendants, responded: " 'Defendants have expressed that they are satisfied with the jury.' " We held in those circumstances that the defendants "unequivocally indicated their satisfaction with the jury at the termination of the jury selection process" and by approving the jury actually selected "waived their prior objection to the panel of talesmen." 273 Md. at 453, 330 A.2d at 203.

In Tisdale v. State, 30 Md.App. 334, 353 A.2d 653 (1976), the defendant's challenge of two prospective jurors for cause was overruled. The clerk asked defense counsel before the jury was sworn whether the panel was acceptable and he answered in the affirmative. The court there held that there was no waiver of the prior challenge for cause. Distinguishing Neusbaum and Glover, it said that the objection to the two jurors had been clearly stated on the record and that the defendant's subsequent response indicating approval of the jury as ultimately selected "was merely obedient to the court's rulings and obviously not a withdrawal of the request, timely made, that the jurors be excused for cause." 30 Md.App. at 340, 353 A.2d at 657.

Nothing in Neusbaum, Glover or Tisdale ² is directly apposite to the present case. Appellant's objection was only indirectly aimed at the composition of the jury ultimately selected. His fundamental objection was predicated on the court's refusal to permit inspection or discovery of the prosecutor's jury dossier and to include it as part of the record on appeal. His approval of the jury as ultimately selected a matter over which he had no control did not explicitly or implicitly, waive his previously asserted right-to-disclosure claim to the information sought. In the circumstances, we think his objection was preserved for appellate review.

(2)

In holding that the trial court did not err in refusing appellant's request for disclosure and inspection of the prosecutor's juror dossier, the Court of Special Appeals rejected the appellant's basic premise that due process and fundamental fairness required disclosure of the prosecutor's "investigatory report" in order to place the defense upon an equal footing with the prosecution. It stated, however, that due process requires "that the entire criminal process be conducted without unfair prejudice to the accused" and that consequently it would be improper "for the prosecutor to withhold information which would reasonably reflect the inability of a juror to render an impartial verdict." 36 Md.App. at 490-91, 374 A.2d at 402. In applying these principles, the Court of Special Appeals concluded that the prosecutor's notations of "ideas and notions on prospective jurors (made) as the result of personal observations of himself and...