Davis v. State

• Decision Date: 01 September 1991
• Docket Number: No. 954,954
• Citation: 611 A.2d 1008,93 Md.App. 89
• Parties: , 61 USLW 2218 David DAVIS v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 89

93 Md.App. 89

611 A.2d 1008, 61 USLW 2218

David DAVIS v. STATE of Maryland.

No. 954, Sept. Term, 1991.

Court of Special Appeals of Maryland.

Sept. 2, 1992.

Certiorari Granted Dec. 22, 1992.

Mark Colvin, Asst. Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant.

Tarra DeShields-Minnis, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. and Stuart O. Simms, State's Atty. for Baltimore City, on the brief), Baltimore, for appellee.

Argued before MOYLAN, FISCHER and HARRELL, JJ.

MOYLAN, Judge.

In terms of popular and frequently recurring issues in criminal cases, even a cursory survey of the year's docket confirms what our senses have already told us. The voguish "Contention of the Year" for the September, 1991 Term has been that defendants are entitled to a broader scope of inquiry during the jury selection process than is typically allowed. Consistently (largely in unreported opinions), we have rejected the contention. Persistently, it continues to appear. In the hope of some relief, we here reaffirm--categorically and for reporting--the well-settled limits that have long circumscribed and shall continue to circumscribe the voir dire examination of prospective jurors in Maryland, whatever the permitted latitude may be elsewhere.

The appellant, David Davis, was convicted by a Baltimore City jury, presided over by Judge David Ross, of the possession of cocaine with intent to distribute and the possession of heroin with intent to distribute. Upon this appeal, he raises three contentions 1) That Judge Ross erroneously refused to ask whether any of the prospective jurors "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?";

2) That Judge Ross erroneously allowed the prosecutor to make a missing witness argument to the jury; and

3) That Judge Ross erroneously allowed the prosecutor to make an inflammatory closing argument.

In qualifying the jurors initially, Judge Ross put six questions to the venire panel as a whole:

1) He asked whether any of the prospective jurors had any knowledge or information about this particular case.

2) He asked whether any of the jurors knew a) the appellant, 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) He inquired as to 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) He asked 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) More generally, he inquired as to 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) Again more generally, he also asked whether any of the jurors "knows of any reason why he or she should not sit on the jury in this case."

Defense counsel then requested Judge Ross to pose to the panel the additional question of whether any of them had ever been a member of the law enforcement community or had a close relative or friend who was or had been a member of the law enforcement community. Counsel expressed his disdain for "the sort of omnibus question if anybody has any reason they shouldn't serve" as unrealistic and inadequate. Counsel indicated that the primary purpose of the requested supplemental question was to assist him to "bring ... my experience and skill to bear to strike a jury I feel would be fair to my client." His aim was to be "in a position to use ... peremptory strikes intelligently." Judge Ross declined to ask the supplemental question.

The positive law regulating voir dire examination in Maryland, of course, is exceedingly meager. Maryland Rule 4-312(d) (formerly Rule 752) provides in pertinent part:

"The court may permit the parties to conduct an examination of prospective jurors or may itself conduct the examination after considering questions proposed by the parties. If the court conducts the examination, it may permit the parties to supplement the examination by further inquiry or may itself submit to the jurors additional questions proposed by the parties."

Beyond those bare provisions, there is only case law.

Two Views of Voir Dire

In terms of case law, there are abroad in the land two diametrically incompatible attitudes as to the proper purpose, and therefore the proper scope, of voir dire examination. There is an expansive vision, indulged in states such as California and Florida and New York, where jury selection in celebrity cases may consume three or four weeks. Under such a regime, voir dire questioning is frequently addressed to prospective jurors one by one rather than to a panel of them en masse. The questioning, moreover, is frequently conducted by the advocates themselves, championing their respective causes with every intonation and every smile and grimace, rather than by a judge, speaking neutrally for an impersonal institution. The quintessential character of the expansive vision, however, emerges with the permitted subject matter of the questioning. Concern with mere challenges for cause is no more than a passing gesture. The multiple aims are far more encompassing.

The better to pursue those aims, young advocates (and old) pay handsome tuitions at exotic resorts to sit at the feet of storied masters of trial advocacy. They hear wondrous accounts of how virtually unfettered voir dire may in the hands of an astute psychologist be employed 1) to psychoanalyze the prospective juror so that the advocate can predict with almost mathematical certainty how the juror will react to a given fact pattern in the case that is about to unfold; 2) to "strike a deal" (a favorite cliche at such seminars) with a juror, so that if certain evidentiary developments come to pass, the juror is almost honor-bound to respond in the "agreed" fashion; and 3) to hypnotize or to condition the juror in advance of the trial proper as to the advocate's theory of the case. The fledglings hear endless tall tales of famous cases won or lost on voir dire. At the very least, these are rollicking good war stories told by entertaining spinners of yarns and everyone comes away with a sense of the tuition having been well-spent.

To this school of thought, mentor and pupil alike, expansive voir dire is the ultimate palladium of liberty, fair play, and justice. It is the jewel in the crown of trial by jury.

There is, however, an opposing school of thought that looks upon such indulgence as errant, if not grotesque, foolishness. Many of the war stories of the Olympians are dismissed as self-serving nonsense, more pertinent to the Book of the Month Club than to the courtroom. In terms of the profligate waste of precious courtroom and human resources, it looks upon any fractional gain from unlimited voir dire as a minimally incremental benefit that soon passes the point of diminishing returns. In a world of finite resources, if the fabled "day in court" is permitted casually to multiply into twenty days in court, the inevitable consequence is that, by the inexorable law of mathematics, nineteen other litigants are denied any time in court at all, save only the few moments required for the tendering of their negotiated pleas.

Where this more austere school of thought prevails, the prospective jurors are almost always questioned, by common practice if not by requirement of law, en masse rather than one by one. The questioning, moreover, by common practice if not by requirement of law, is conducted by the judge and not by the individual advocates. The premium is on efficiency and economy. Of even more significance, the subject matter of the questioning is limited to those things that would establish challenge for cause--to those things that go to the essential and fundamental impartiality of the jury. It is, in the last analysis, trial by an impartial jury that is constitutionally guaranteed, not trial by a sympathetic jury nor trial by a favorably predisposed jury. A jury of one's peers ¹ is not a jury of one's clones. According to this less grandiose "core" vision, a defendant is entitled to a basically impartial jury and no more. He is not entitled to every last "tilt" or "edge" or favorable predisposition that a skilled advocate might, with time and latitude, be able to wring from a more prolonged and indulgent process. Conversely, he is not insured against every countervailing "tilt" or "edge" or unfavorable predisposition that a skilled advocate might, with time and latitude, be able to clear from his path. Although the deck may not be stacked against him, he may nonetheless end up with a difficult hand to play.

Since there is no ultimate constitutional right to peremptory challenges at all, either version of the antecedent ritual--the expansive approach or the Spartan approach--passes constitutional muster. When a constitution places no value on the voir dire guessing game itself, it is perforce indifferent on the sub-issue of informed guessing versus wild guessing. The choice of competing visions or philosophies as to voir dire examination is, when all is said and done, a policy call that must be made state by sovereign state.

Maryland Chooses the Spartan View

Maryland made its choice at the turn of the present century. Handy v. State, 101 Md. 39, 60 A. 452 (1905), was a capital case. Henry J. Handy had shot and killed his wife "under circumstances ... of extraordinary deliberation and set purpose." He attempted to establish that he had been goaded into the murder because "he believed she allowed and encouraged improper attentions from one Thomas." The appellant there raised two issues before the Court of Appeals, both involving limitations that had been placed upon his voir...