Davis v. State

• Decision Date: 01 September 1992
• Docket Number: No. 114,114
• Citation: 333 Md. 27,633 A.2d 867
• Parties: , 62 USLW 2435 David DAVIS v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 27

333 Md. 27

633 A.2d 867, 62 USLW 2435

David DAVIS v.STATE of Maryland.

No. 114, Sept. Term, 1992.

Court of Appeals of Maryland.

Dec. 9, 1993.

Mark Colvin, Asst. Public Defender, argued and on brief (Stephen E. Harris, Public Defender, on brief), Baltimore, for petitioner.

Tarra DeShields-Minnis, Asst. Atty. Gen., argued and on brief (J. Joseph Curran, Jr., Atty. Gen. of Maryland, on brief), Baltimore, for respondent.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI and ROBERT M. BELL, JJ.

CHASANOW, Judge.

The Defendant, David Davis, was found guilty of distribution of cocaine and heroin by a jury in the Circuit Court for Baltimore City.Following his sentencing, Davis appealed his conviction, and the Court of Special Appeals affirmed the circuit court.This Court granted certiorari.Davis contends that the circuit court erred in improperly restricting the scope of voir dire during jury selection and in permitting the State to make a missing witness argument to the jury during closing arguments.We find that the circuit court did not err in either respect and affirm the decision of the Court of Special Appeals.

I.

On September 25, 1990, Officer Andrew Bratcher of the Baltimore City Police responded to a call regarding an individual selling narcotics in the 2100 block of Barclay Street.Shortly after his arrival, Officer Bratcher observed from his cruiser the Defendant, David Davis, carrying a small white bag in his hand.Davis placed the white bag beside a set of stairs and approached a car.Officer Bratcher then observed Davis hand the car's driver a small white object.Believing that he had just witnessed a drug transaction, Officer Bratcher exited his cruiser and instructed Davis to place his hands on the top of the purchaser's car.Davis fled, with Officer Bratcher giving pursuit.After apprehending Davis, Officer Bratcher returned to the location of the suspected sale and recovered the white bag that Davis had concealed along the side of the stairs.The white bag contained 48 capsules of cocaine and 18 wax-paper bags of heroin.Davis was subsequently charged with two counts of distribution of a controlled dangerous substance, two counts of possession of a controlled dangerous substance with the intent to distribute, and two counts of possession of a controlled dangerous substance.

Davis pled not guilty to the charges and requested a trial by jury before the Circuit Court for Baltimore City.During voir dire, Judge David Ross asked the entire venire panel six questions and dismissed several prospective jurors on the basis of their replies.The six questions were as follows:

"1) ... whether any of the prospective jurors had any knowledge or information about this particular case[;]

2) ... whether any of the jurors knew a) the [Defendant], b) defense counsel, c) the assistant state's attorney, d) Officer Andrew Bratcher, the chief police investigator and only State's witness; or e) Mary Easley, a witness for the defense[;]

3) ... whether any of the jurors 'has been or ... has a close relative who has either been the victim of or has been charged with or convicted of a drug related crime[;]' 4) ... whether any of the jurors is 'likely to give more or less weight to the testimony of a police officer merely because that person is a police officer[;]'

5) ... whether any of the jurors 'knows of anything that would keep him or her from giving a fair and impartial verdict in this case[;]'

6) ... whether any of the jurors 'knows of any reason why he or she should not sit on the jury in this case.' "

Davis v. State, 93 Md.App. 89, 92, 611 A.2d 1008, 1009(1992)(quotingState v. Davis, No. 591032032, R.at 3-9(May 29, 1991)).

Thereafter, Davis requested that the trial judge ask the jury panel"whether anyone on the jury has been a member or is a member of the law enforcement community or whether they have a close relative or friend who is such a member...."Davis argued that the judge's prior "omnibus" questions, pertaining only to whether any member of the panel knew of any reason why they should not sit on the jury, were insufficient.Davis contended that such questions were "unrealistic" and posited for "[w]hat other reason would I get ten peremptory challenges if I cannot make a halfway intelligent decision to strike or not to strike."The trial judge denied Davis's request.

At the conclusion of the trial, the jury found Davis guilty of the two counts of distribution of controlled dangerous substances.Davis appealed and the Court of Special Appeals affirmed his conviction.Davis v. State, 93 Md.App. 89, 611 A.2d 1008(1992).Dissatisfied with the intermediate appellate court's holding, Davis filed a petition for certiorari, which we granted.Davis v. State, 329 Md. 22, 616 A.2d 1286(1992).

II.

Davis's principal contention is that the trial court abused its discretion in refusing to ask whether any of the jurors were, or were associated with, law enforcement personnel.Davis argues that he was entitled to such a question since it may have led to the disqualification for cause of one or more of the prospective jurors or, at the very least, would have allowed him to intelligently exercise his peremptory challenges.For the reasons stated below, we disagree.

The principles governing jury voir dire are well established in Maryland.As we have noted on several occasions, there is no statute in Maryland prescribing the manner in which voir dire is to be conducted or regulating the objects of inquiry during voir dire.SeeBedford v. State, 317 Md. 659, 670, 566 A.2d 111, 116-17(1989).Absent any statutory guidance from the General Assembly, this Court has consistently looked to Maryland's common law for guidance.The common law of this State vests trial judges with discretion to regulate voir dire.The trial judge typically questions the prospective jurors, although he or she has discretion to permit counsel to conduct the inquiry.Moore v. State, 7 Md.App. 495, 503, 256 A.2d 337, 341-42, cert. denied, 256 Md. 746, cert. denied, 398 U.S. 913, 90 S.Ct. 1714, 26 L.Ed.2d 76(1970);Maryland Rule 4-312(d).Additionally, the scope of voir dire and the form of the questions propounded rests firmly within the discretion of the trial judge.Casey v. Roman Catholic Archbishop, 217 Md. 595, 605, 143 A.2d 627, 631(1958).The trial judge's discretion regarding the scope of a proposed avenue of voir dire is governed by one primary principle: the purpose of "the inquiry is to ascertain 'the existence of cause for disqualification and for no other purpose.' "McGee v. State, 219 Md. 53, 58, 146 A.2d 194, 196(1959)(quotingAdams v. State, 200 Md. 133, 140, 88 A.2d 556, 559(1952)(citations omitted)).Where parties to the litigation direct their inquiries concerning a specific cause for disqualification, they have "a right to have questions propounded to prospective jurors" during voir dire.Casey, 217 Md. at 605, 143 A.2d at 631(emphasis in original);seeBedford, 317 Md. at 670, 566 A.2d at 116("Maryland Declaration of Rights Article XXI guarantees a defendant the right to examine prospective jurors to determine whether any cause exists for a juror's disqualification.")."Questions not directed to a specific ground for disqualification but which are speculative, inquisitorial, catechising or 'fishing', asked in the aid of deciding on peremptory challenges, may be refused in the discretion of the court, even though it would not have been error to have asked them."McGee, 219 Md. at 58-59, 146 A.2d at 196;see alsoKujawa v. Baltimore Trans. Co., 224 Md. 195, 201, 167 A.2d 96, 98(1961)(stating that trial court's denial of voir dire question, in the nature of a "fishing" expedition, was clearly not an abuse of discretion).We must view Davis's challenge in the context of this framework.

A.

Davis first contends that the trial judge abused his discretion in refusing to ask his proposed question because, in a case where "the sole issue ... is the credibility of the police officer as [o]pposed to [the defendant], a voir dire question concerning law enforcement employment or association may well lead to the disqualification for cause of one or more of the prospective jurors."We must reject Davis's argument.

As the Court noted in Langley v. State, a fundamental tenet underlying the practice of trial by jury is that each juror, as far as possible, be "impartial and unbiased."Langley v. State, 281 Md. 337, 340, 378 A.2d 1338, 1339(1977)(citingWaters v. State, 51 Md. 430, 436(1879)).The objective of this tenet is to assemble a group of jurors capable of deciding the matter before them based solely upon the facts presented, " 'uninfluenced by any extraneous considerations....' "Id.The function of voir dire is closely related to this fundamental tenet of trial by jury and, thus, the mandatory scope of voir dire in Maryland only extends to those areas of inquiry reasonably likely to reveal cause for disqualification.There are two areas of inquiry that may uncover cause for disqualification: (1) an examination to determine whether prospective jurors meet the minimum statutory qualifications for jury service, seeMaryland Code(1974, 1989 Repl.Vol., 1992 Cum.Supp.), Courts & Judicial Proceedings Article, § 8-207; or (2)" 'an examination of a juror ... conducted strictly within the right to discover the state of mind of the juror in respect to the matter in hand or any collateral matter reasonably liable to unduly influence him.' "Bedford, 317 Md. at 671, 566 A.2d at 117(quotingCorens v. State, 185 Md. 561, 564, 45 A.2d 340, 343(1946)(emphasis added)).¹

In addition, this Court has identified several areas of inquiry where, if reasonably related to the case at hand, a trial judge must question prospective jurors.SeeBowie v. State, 324 Md. 1, 15, 595 A.2d 448, 455(1991)(holding trial judge erred in failing during voir dire to inquire into prospective...