Holmes v. State

• Decision Date: 06 December 1985
• Citation: 501 A.2d 76,65 Md.App. 428
• Parties: Derrik O. HOLMES v. STATE of Maryland. 237 Sept. Term 1985.
• Court: Court of Special Appeals of Maryland

Page 428

65 Md.App. 428

501 A.2d 76

Derrik O. HOLMES v. STATE of Maryland.

237 Sept. Term 1985.

Court of Special Appeals of Maryland.

Dec. 6, 1985.

Isaac S. Kershner, Assigned Public Defender (Alan H. Murrell, Public Defender on brief), Baltimore, for appellant.

Richard B. Rosenblatt, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., Baltimore, Arthur A. Marshall, Jr., State's Atty., for Prince George's County and William T. Shockley, Asst. State's Atty., for Prince George's County on brief, Upper Marlboro).

Submitted before BELL (ROSALYN B.) and BELL (ROBERT M.), JJ., and GETTY, (JAMES S.), Associate Judge of the Court of Special Appeals (retired), Specially Assigned.

BELL, ROBERT M., Judge.

Roswel C. Howard, a christmas tree salesman, who is white, was shot four times during a robbery. He identified Derrik O'Brien Holmes, appellant, a black professional boxer and his former assistant, as his assailant. Appellant was arrested and charged in a seven count indictment with, among other offenses, assault with intent to murder (Count 1), attempted murder (Count 2), robbery with a deadly weapon (Count 4) and use of a handgun in the commission of a crime of violence (Count 7).

Trial proceeded before a jury in the Circuit Court for Prince George's County. After all evidence had been presented, the State nolle prossed Count 1, assault with intent to murder. Thus, that count was not submitted to the jury for decision. The jury returned verdicts of guilty of attempted first degree murder, robbery with a deadly weapon, and use of a handgun. Having been sentenced to life imprisonment with all but thirty-five years suspended, for attempted first degree murder and to concurrent sentences for the remaining convicted counts, appellant appeals, directing our attention to two assignments of alleged error:

1. The Court's exclusion of jury voir dire questions requested by him deprived him of a fair trial; and

2. The sentence that was imposed for the conviction of attempted murder was illegal.

I.

Appellant submitted 54 questions which he requested the trial judge to propound to the jury panel on its voir dire. Two of these questions ¹ related to the existence of racial prejudice and seven ² related to the existence of prejudice arising because of appellant's occupation as a boxer. No questions were propounded as to possible racial prejudice. Notwithstanding his failure to object or except to this omission, appellant asserts on appeal that the court's "failure to make at least some inquiry directly as to the existence of ethnic/racial prejudice" constitutes reversible error. Although the trial judge propounded a question regarding possible prejudice because of occupation, ³ appellant, being concerned that it was not "elaborated upon," sought unsuccessfully to have the trial judge ask the question in more detail. He urges here that the trial judge's failure to do so was error.

It is well settled in Maryland that interrogation of venireman with respect to racial prejudice is required on request,

(1) where racial prejudice may be a factor because of the facts of the case, but (2) no specific question or procedure is compelled so long as the "essence" of the information sought as to prejudice is inquired into.

Thornton v. State, 31 Md.App. 205, 214, 355 A.2d 767 (1976). See also Brown v. State, 220 Md. 29, 150 A.2d 895 (1959); Contee v. State, 223 Md. 575, 165 A.2d 889 (1960); Humphreys v. State, 227 Md. 115, 175 A.2d 777 (1961); Smith & Nelson v. State, 12 Md.App. 130, 277 A.2d 622 (1971); Tunstall & Alton v. State, 12 Md.App. 723, 280 A.2d 275 (1971).

Illustrative of the latter point is Contee. There, all of the defendant's submitted voir dire questions were improper "in that none was reasonably calculated to elicit or ascertain such bias or prejudice as would disqualify a prospective juror from rendering a fair and impartial verdict on the law and the evidence." Id. [223 Md.] at 580, 165 A.2d 889. Noting that the court "was fully apprised of the essence of what the defendant was seeking, [yet] failed to ask on its own motion, as it should have done, a proper question designed to ascertain the existence of cause for disqualification on account of racial bias or prejudice," the Court of Appeals held:

"... where, as here, a defendant is denied the opportunity of submitting or requesting proper questions relating to racial bias or prejudice to be propounded by the court to prospective jurors on voir dire, such denial constitutes reversible error."

Id. 223 Md. at 581, 165 A.2d 889.

Concerning the requirement that racial prejudice be a factor in the case, we acknowledge that simply because the victim of the crime is white and the defendant is black does not constitutionally mandate that veniremen be questioned specifically about racial prejudice. Ristaino v. Ross, 424 U.S. 589, 96 S.Ct. 1017, 47 L.Ed.2d 258 (1973). There, in a state criminal trial for various crimes perpetrated against a white security guard, Ross, a black, sought to have the court propound to the veniremen a question directed at racial prejudice. The court refused, finding that no purpose would be served by asking such a question. The Supreme Court agreed, stating:

The Constitution does not always entitle a defendant to have questions posed during voir dire specifically directed to matters that conceivably might prejudice veniremen against him. Ham [v. South Carolina, 409 U.S. 524, 527-528, 93 S.Ct. 848, 850-851, 35 L.Ed.2d 46 (1973) ]. Voir dire "is conducted under the supervision of the court, and a great deal must, of necessity, be left to its sound discretion." Connors v. United States, 158 U.S. 408, 413, [15 S.Ct. 951, 953, 39 L.Ed. 1033] (1895); see Ham, supra, [409 U.S.] at 527-528, 93 S.Ct. at 850-851]; Aldridge v. United States, 283 U.S. 308, 310 [51 S.Ct. 470, 471, 75 L.Ed. 1054] (1931). This is so because the "determination of impartiality, in which demeanor plays such an important part, is particularly within the province of the trial judge." Rideau v. Louisiana, 373 U.S. 723, 733 [83 S.Ct. 1417, 1423, 10 L.Ed.2d 723] (1963) (Clark, J., dissenting). Thus, the State's obligation to the defendant to impanel an impartial jury generally can be satisfied by less than an inquiry into a specific prejudice feared by the defendant. Ham, supra. [409 U.S.] 527-528 .

Id. at 594-95, 96 S.Ct. at 1020-21. (footnote omitted). The Court went on to recognize, as it had in Ham, supra "that some cases may present circumstances in which an impermissible threat to a fair trial guaranteed by due process is posed by a trial court's refusal to question prospective jurors specifically about racial prejudice during voir dire". Id. at 595, 96 S.Ct. at 1021. Such factors in Ham were: (1) the defendant was a well-known civil rights activist and (2) his defense was that he had been framed for his civil rights activities. ⁴

Thus it is that Maryland's requirements relating to voir dire on racial prejudice appear to be consistent with the constitutional mandate explicated by Ristaino. Both hold "that whatever the ethnic background of the accused, he or she is not entitled to promiscuously probe for racial prejudice absent circumstances in the case warranting such inquiry." Thornton, 31 Md.App. at 216, 355 A.2d 767. But the circumstances which warrant the inquiry need not be identical. The Supreme Court recognized that,

Although we hold that voir dire questioning directed to racial prejudice was not constitutionally required the wiser course generally is to propound appropriate questions designed to identify racial prejudice if requested by the defendant.

and that

"The States ... are free to allow or require questions not demanded by the Constitution."

Ristaino, 424 U.S. at 597, n. 9, 96 S.Ct. at 1022, n. 9. The Court of Appeals recognized that this is so in Brown, supra. See Thornton, 31 Md.App. at 214, 355 A.2d 767, where we said, "... had the Court of Appeals considered Aldridge binding under the Fourteenth Amendment, there would have been little need to cite authority from the State of Connecticut to bolster its holding in Brown." (emphasis in the original).

We turn now to a consideration of the circumstances which have been found to require voir dire questions on racial bias in Maryland. In Brown, the defendant, who was black, shot and killed a white police officer. Without discussing any specific factors for doing so, but relying on State v. Higgs, 143 Conn. 138, 120 A.2d 152 (1956), the Court of Appeals concluded that "[t]he refusal to ask any questions as to the bias or prejudice which jurors might have as to a Negro, and as to whether the jury could give the defendant as fair and impartial a trial as they could a white man, falls into a different category [than questions regarding pre-trial publicity and jury connection with counsel] requiring more consideration." Brown, 220 Md. at 34, 150 A.2d 895. One of the portions of the Higgs decision quoted by the Court was:

"We cannot be blind to the fact that there may still be some who are biased against the Negro race and would be more easily convinced of a Negro's guilt ... than they would of a white man's guilt. ...

"So long as race prejudice exists, even in a relatively few persons, there is a substantial chance that one of those few will appear in court as a venireman. Consequently, the fact that most people in the state are not prejudiced against Negroes is not of controlling importance."

Higgs, 120 A.2d at 154-55. In Contee, the black defendant was accused of raping a white woman. Again, the Court did not focus upon any specific factors as rendering this case one in which the veniremen should be voir dired as to racial bias. It did suggest, however, that the rape of a white woman by a black man was likely to cause "some racial feelings in the community where it is to be tried." 223 Md. at 580, 165 A.2d 889. Similarly, aside from the race of the victim and the defendant and the nature of the charge,...