Evans v. State, 149

CourtCourt of Appeals of Maryland
Citation637 A.2d 117,333 Md. 660
Docket NumberNo. 149,149
PartiesVernon Lee EVANS, Jr. v. STATE of Maryland. ,
Decision Date01 September 1992

James Wyda, Asst. Public Defender (Stephen E. Harris, Public Defender, George E. Burns, Jr., Asst. Public Defender, on brief), George E. Burns, Jr., Asst. Public Defender (Stephen E. Harris, Public Defender, James Wyda, Assistant Public Defender all on brief), Baltimore, for appellant.

Gwynn X. Kinsey, Jr., Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Tarra DeShields-Minnis, Asst. Atty. Gen., on brief), Baltimore, for appellee.

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

KARWACKI, Judge.

In April of 1983, Vernon Lee Evans, Jr., appellant, was hired by Anthony Grandison to kill David Scott Piechowicz and his wife, Cheryl, who had been subpoenaed to testify against Grandison in the United States District Court for the District of Maryland in a narcotics case. Evans was promised $9,000 for committing the murders. With the help of his former girlfriend, Charlene Sparrow, Evans rented a room for two nights, April 27 and 28, 1983, in the Warren House Hotel in Baltimore County where both Mr. and Mrs. Piechowicz were employed.

Mrs. Piechowicz was scheduled to work on April 28, 1983, but persuaded her sister, Susan Kennedy, to substitute for her at the hotel's front desk. On that day, Evans and Sparrow saw a male and female working at the front desk of the hotel as they left the hotel to go to a restaurant. Later that day, Evans returned to the hotel and shot and killed Mr. Piechowicz and Ms. Kennedy, apparently believing that she was Mrs. Piechowicz.

Evans was convicted of first degree murder of both victims by a jury in the Circuit Court for Worcester County where the case had been removed upon his suggestion that he could not receive a fair trial in Baltimore County. That jury sentenced him to death on each of the convictions. We affirmed those judgments. Evans v. State, 304 Md. 487, 499 A.2d 1261 (1985), reconsideration denied, 305 Md. 306, 503 A.2d 1326, cert. denied, 478 U.S. 1010, 106 S.Ct. 3310, 92 L.Ed.2d 722

(1986) (Evans II). 1

On March 28, 1991, the Circuit Court for Worcester County granted Evans partial post conviction relief by vacating his death sentence. On Evans' suggestion for removal, the case was transferred to the Circuit Court for Baltimore County. A jury in that court sentenced Evans to death for each of the convictions of first degree murder. This appeal followed. We shall consider each of appellant's contentions, adding additional facts where necessary.

I

During voir dire examination of the prospective jurors, Evans asked that the following question be posed to each prospective juror:

"Would the fact that Vernon Evans has been convicted of two first degree murders in this case cause you to automatically vote for the death penalty, regardless of the facts?"

Evans contends that the court's failure to do so was reversible error. 2 We do not agree. We begin an analysis of this contention by placing Evans' requested voir dire question in perspective. The Sixth and Fourteenth Amendments of the U.S. Constitution and Article 21 of the Maryland Declaration of Rights guarantee that if a criminal defendant is tried by a jury, that jury must be impartial. See, e.g., Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985); Turner v. Louisiana, 379 U.S. 466, 471-72, 85 S.Ct. 546, 549, 13 L.Ed.2d 424, 428 (1965); Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751, 756 (1961); Couser v. State, 282 Md. 125, 138, 383 A.2d 389, 396-97, cert. denied, 439 U.S. 852, 99 S.Ct. 158, 58 L.Ed.2d 156 (1978); Bristow v. State, 242 Md. 283, 288-89, 219 A.2d 33, 36 (1966). The constitutional right to an impartial jury is basically protected through questions asked during the voir dire procedure which are aimed at discovering cause for juror disqualification. Couser, supra, 282 Md. at 138, 383 A.2d at 397. Cause for exclusion of a juror may take several forms, including racial and ethnic bias, Turner v. Murray, 476 U.S. 28, 36-37, 106 S.Ct. 1683, 1688, 90 L.Ed.2d 27, 37 (1986); Rosales-Lopez v. United States, 451 U.S. 182, 192, 101 S.Ct. 1629, 1636, 68 L.Ed.2d 22, 31 (1981); a bias in favor of law enforcement officers, Langley v. State, 281 Md. 337, 348, 378 A.2d 1338, 1343 (1977); and, in the case of capital juries, bias arising from strong beliefs concerning the death penalty. Lockhart v. McCree, 476 U.S. 162, 173, 106 S.Ct. 1758, 1764, 90 L.Ed.2d 137, 147 (1986); Witherspoon v. Illinois, 391 U.S. 510, 522, 88 S.Ct. 1770, 1777, 20 L.Ed.2d 776, 785 (1968); Grandison v. State, 305 Md. 685, 506 A.2d 580, cert. denied, 479 U.S. 873, 107 S.Ct. 38, 93 L.Ed.2d 174 (1986). We took note of the essential role of the voir dire procedure in Bedford v. State, 317 Md. 659, 566 A.2d 111 (1989):

" ' 'If there is any likelihood that some prejudice is in the juror's mind which will even subconsciously affect his decision of the case, the party who may be adversely affected should be permitted questions designed to uncover that prejudice.... Otherwise, the right to trial by an impartial jury guaranteed him ... might well be impaired.' ' " Id. at 671, 566 A.2d at 117 (quoting Brown v. State, 220 Md. 29, 35, 150 A.2d 895, 897-98 (1959) (in turn quoting State v. Higgs, 143 Conn. 138, 120 A.2d 152 (1956))).

Jury selection in the instant case began on October 27, 1992. One hundred twenty-five prospective jurors were called and sworn, and the court began by explaining the case to the venire and asking questions of the group. The members of the venire were then brought into the judge's chambers and interviewed individually. There, the court posed questions designed to elicit their feelings about capital punishment. Both Evans and the State referred to the voir dire of prospective juror Callahan as a representative sample of questions posed:

THE COURT: ... Some feel that the death penalty should be imposed in every case of first degree murder, and others feel that the death penalty should never be imposed.

Do you feel or do you have any strong feelings one way or the other about the imposition of the death penalty?

[Prospective Juror] CALLAHAN: No.

THE COURT: Do you feel that your attitude, regarding the death penalty, would in any way prevent or substantially impair you from making a fair and impartial decision as to the Defendant's sentence in accordance with your oath as a juror, based upon the evidence presented and the Court's instructions as to the law which is applicable?

MS. CALLAHAN: No.

THE COURT: After listening to the evidence and applying the law, if you were convinced that the appropriate sentence would be death, would you be able to vote for the death penalty?

MS. CALLAHAN: Yes.

THE COURT: On the other hand, after listening to the evidence and applying the law, if you were not convinced the appropriate sentence should be death, but were convinced life was the appropriate sentence, would you vote for that alternative?

MS. CALLAHAN: Yes.

As a result of the questioning, 53 prospective jurors were removed for cause, 14 at the request of the State and 39 at the request of Evans. Eventually, 12 principal jurors and four alternates were impaneled.

Evans argues that the trial judge's questioning of potential jurors, as represented by the interview of prospective juror Callahan, was insufficient to determine whether jurors were predisposed toward the death penalty and that the questioning therefore violated his right to an impartial jury. In order to evaluate the adequacy of the voir dire in this case, we undertake a two-part analysis: first, we must determine the proper standard for exclusion of prospective jurors based on their beliefs about capital punishment; and second, we must determine whether the questions posed to the members of venire in this case were sufficient to uncover any pro-death penalty bias and measure that bias against the standard for juror exclusion.

A

We have on several prior occasions discussed the standard for excluding jurors on the basis of beliefs concerning capital punishment. See, e.g., Henry v. State, 324 Md. 204, 596 A.2d 1024 (1991), cert. denied, 503 U.S. 972, 112 S.Ct. 1590, 118 L.Ed.2d 307 (1992); Bowie v. State, 324 Md. 1, 595 A.2d 448 (1991); Hunt v. State, 321 Md. 387, 583 A.2d 218 (1990), cert. denied, 502 U.S. 835, 112 S.Ct. 117, 116 L.Ed.2d 86 (1991); Grandison v. State, supra; Foster v. State, 304 Md. 439, 499 A.2d 1236 (1985), cert. denied, 478 U.S. 1010, 106 S.Ct. 3310, 92 L.Ed.2d 723 (1986). Prior to 1968, it was common practice that a prospective juror would be excused from a capital jury if he or she held "conscientious scruples" against the imposition of the death penalty. Corens v. State, 185 Md. 561, 45 A.2d 340 (1946); Price v. State, 159 Md. 491, 151 A. 409 (1930). In 1968, the Supreme Court narrowed the permissible scope of this practice and held that "a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction." Witherspoon v. Illinois, supra, 391 U.S. at 522, 88 S.Ct. at 1777, 20 L.Ed.2d at 785. Nevertheless, if a juror had made it clear that he or she would automatically vote against the death penalty regardless of the facts or circumstances presented, that juror might still be properly excluded for cause under the Witherspoon standard. Id. at 522 n. 21, 88 S.Ct. at 1777 n. 21, 20 L.Ed.2d at 785 n. 21.

Subsequently, the Supreme Court modified the standard for juror exclusions, stating that it refused to be bound by "ritualistic adherence" to the language of Witherspoon's footnote 21:

"[A] juror may not be challenged for cause based on his views about capital punishment unless those views would...

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