Kazadi v. State

• Decision Date: 04 February 2019
• Docket Number: No. 779, Sept. Term, 2017,779, Sept. Term, 2017
• Citation: 240 Md.App. 156,201 A.3d 618
• Parties: Tshibangu KAZADI v. STATE of Maryland
• Court: Court of Special Appeals of Maryland

240 Md.App. 156

201 A.3d 618

Tshibangu KAZADI

v.STATE of Maryland

No. 779, Sept. Term, 2017

Court of Special Appeals of Maryland.

February 4, 2019

Argued By: Amy E. Brennan (Paul DeWolf, Public Defender on the brief) all of Baltimore, MD., for Appellant

Argued By: Todd W. Hesel (Brian E. Frosh, Attorney General on the brief) all of Baltimore, MD., for Appellee

Graeff, Beachley, Raymond G. Thieme, Jr. (Senior Judge, Specially Assigned), JJ.

Thieme, J.

On the evening of August 18, 2015, in an alley behind the 200 block of North Conkling Street in Baltimore, twenty-one-year-old Brandon Smith was fatally shot. The State tried appellant Tshibangu Kazadi, a resident of that street, for Mr. Smith's murder. Critical to that prosecution was eyewitness testimony by two of appellant's next-door neighbors – a mother and her minor son, whose immigration statuses were the subject of discovery and cross-examination rulings that are challenged in this appeal. After both witnesses identified appellant as the killer, a jury in the Circuit Court for Baltimore City convicted appellant of second degree murder and using a firearm in a crime of violence. Appellant was sentenced for the murder to thirty years, with all but twenty-five years suspended, consecutive to fifteen years for the weapon offense, the first five of that served without parole, for a total executed time of forty years.

Appellant challenges his convictions on three grounds, which we have re-ordered chronologically as follows:

1. Did the circuit court abuse its discretion in refusing to propound Mr. Kazadi's requested voir dire questions?

2. Did the circuit court abuse its discretion in denying defense counsel's motion to compel discovery and, thereafter, in refusing to allow defense counsel to question the State's two main witnesses regarding their immigration issues?

3. Did the circuit court abuse its discretion in refusing to propound defense counsel's proposed jury instruction on eyewitness identification?

Concluding there was no error or abuse of discretion, we shall affirm appellant's convictions. In doing so, we address the limited circumstances in which a criminal defendant is entitled to discovery and cross-examination regarding the immigration status of prosecution witnesses.

FACTS AND LEGAL PROCEEDINGS

On August 18, 2015, fifteen-year-old M.L. and his mother S.L.H. had been living in their family home at 208 North Conkling Street, next door to appellant, for more than two years.¹ That evening, S.L.H. asked M.L. to retrieve garbage cans from the alley behind their house. While M.L. was doing so, Brandon Smith was shot three times.

Although M.L. saw appellant fire at the victim, and both he and S.L.H. saw appellant running from the scene with a handgun, they did not tell police until months later. On January 19, 2016, M.L. and his mother, "afraid of what could happen," told police what they witnessed. Both made photo identifications of appellant as the person who shot Mr. Smith and ran from the scene.

Before trial, the parties litigated disputes over whether the State was required to disclose information and documents pertaining to the immigration status of M.L. and S.L.H. and whether defense counsel could cross-examine both witnesses about immigration matters, including a deportation order that S.L.H. mentioned to police. (See our discussion infra , in Part II.) As detailed in our discussion, the circuit court denied appellant's motion to compel discovery and foreclosed cross-examination regarding the immigration status of both witnesses.

At trial, M.L. testified that as he was on his back deck that August evening, he heard a gunshot and looked into the alley. He saw appellant fire a handgun at the victim two or three times. When his mother came to the back door, they both saw appellant run into the back of his house, still carrying a gun in his hand.

S.L.H. recounted that while M.L. was out back collecting their trash cans, she heard gunfire. Stepping out her back door, she saw her son running toward her, saying "that the guy had killed someone." S.L.H. saw appellant "running" and "hiding his weapon," as he fled into his basement with a handgun.

Outside, S.L.H. found a "kid" she did not know, who was "agonizing" with three gunshot wounds

. Her scream drew others. S.L.H. and M.L. told members of appellant's family what they had seen, but they did not tell police or other emergency responders, because S.L.H. "was scared" after appellant's family "realized that [they] had said that [appellant] was the one that had killed him."

S.L.H. and M.L. waited five months, until January 19, 2016, to disclose to police what they saw. After the trial court foreclosed mention of their immigration status, S.L.H. testified that she did not come forward earlier because she was scared of both "[appellant] or his family" and "something else" that was "not connected to [appellant] or his family."

Her disclosure to police occurred after she revealed information to her sons' doctor, who put her in contact with a social worker in the State's Attorney's Office. S.L.H. and M.L. separately met with police, reported what they observed on the night of the shooting, and identified appellant in photo arrays as the person who shot Brandon Smith.

We shall add pertinent facts in our discussion of the issues raised by appellant.

DISCUSSION

I. Voir Dire of Prospective Jurors

Appellant contends that the trial court abused its discretion in denying his request for voir dire questions asking whether prospective jurors would comply with the reasonable doubt standard, the presumption of innocence, and the right not to testify. We agree with the State that the court correctly followed Court of Appeals precedent and did not abuse its discretion in declining to ask about prospective jurors' "willingness to follow points of law covered in the court's jury instructions."

A. Trial Record

Defense counsel's written request for voir dire questions included the following queries:

17. The Court will instruct you that the State has the burden of proving the Defendant guilty of the offenses charged beyond a reasonable doubt. Are there any of you who would be unable to follow and apply the Court's instructions on reasonable doubt in this case?

18. Is there any member of the prospective jury panel who would hesitate to render a verdict of not guilty if you had a hunch that the Defendant had committed the alleged crime, but were not convinced of that fact beyond a reasonable doubt?

19. The Court will instruct you that the Defendant is presumed to be innocent of the offenses charged throughout the trial unless and until the Defendant is proven guilty beyond a reasonable doubt. Is there any member of the jury panel who would be unable to give the Defendant the benefit of the presumption of innocence?

20. Under the law the Defendant has an absolute right to remain silent and to refuse to testify. No adverse inference or inference of guilty may be drawn from the refusal to testify. Does any prospective juror believe that the Defendant has a duty or responsibility to testify or that the Defendant must be guilty merely because the Defendant may refuse to testify?

The trial court declined to include these questions in its voir dire, ruling that the legal principles addressed in them would be "covered adequately in the instruction portion of the case" and by "other questions" that it planned to ask. Instead, the court used questions taken from the pattern voir dire approved for criminal trials. See Maryland State Bar Ass'n, Model Jury Selection Questions for Criminal Trials , http://www.msba.org/uploadedFiles/MSBA/Member_Groups/Committees/Publications/Criminal%20Voir%20Dire%20Model%20Questions%20(2).pdf[https://perma.cc/D5LY-AZ6B] (last visited December 10, 2018).

B. Standards Governing Voir Dire of Prospective Jurors

"Voir dire is critical to assure that the Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights guarantees to a fair and impartial jury will be honored." Stewart v. State , 399 Md. 146, 158, 923 A.2d 44 (2007). Under Maryland law, "the sole purpose of voir dire is to ensure a fair and impartial jury by determining the existence of cause for disqualification, and not as in many other states, to include the intelligent exercise of peremptory challenges." Collins v. State , 452 Md. 614, 622, 158 A.3d 553 (2017) (citation and quotation marks omitted). Although trial courts have "significant latitude in the process of conducting voir dire and the scope and form of questions presented to the venire[,]" we are mindful that

[u]ndergirding the voir dire procedure and, hence, informing the trial court's exercise of discretion regarding the conduct of the voir dire, is a single, primary, and overriding principle or purpose: to ascertain the existence of cause for disqualification. [W]e do not require perfection in its exercise. The trial court reaches the limits of its discretion only when the voir dire method employed by the court fails to probe juror biases effectively.

Id. at 622-23, 158 A.3d 553 (citations and quotation marks omitted).

Appellate courts "review a judge's conduct of voir dire for abuse of discretion and, when a judge's approach provides reasonable assurance that prejudice will be discovered, the judge has acted within his or her discretion." Id. at 628, 158 A.3d 553. The Court of Appeals has held that, to accomplish that objective,

certain substantive elements [must] be incorporated. If relevant to the case and requested by one of the parties, we have held that it is reversible error for a trial court not to question the venire regarding racial, ethnic, cultural or religious bias; whether more or less credence would be given to a police officer simply because of that officer's position; and whether the venire harbors an unwillingness to convict a defendant of a capital crime. Yet, even for these mandatory subjects of inquiry, generally, neither a specific form of question nor

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