Kegarise v. State
Decision Date | 02 May 2013 |
Docket Number | Sept. Term, 2011.,No. 1992,1992 |
Citation | 211 Md.App. 473,65 A.3d 741 |
Parties | Brentley Glen KEGARISE v. STATE of Maryland. |
Court | Court of Special Appeals of Maryland |
OPINION TEXT STARTS HERE
Marc A. DeSimone, Jr. (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for Appellant.
Sarah Page Pritzlaff (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for Appellee.
This case presents the question of whether the trial court erred by failing to propound defense counsel's requested voir dire question, which was to inquire whether all members of the venire panel were citizens of the United States. On September 15–16, 2011, after the trial court declined to ask this question, appellant Brentley Glen Kegarise was tried by jury and convicted of theft, firearm possession and related charges. We shall now hold, based upon Owens v. State, 399 Md. 388, 924 A.2d 1072 (2007), cert. denied,552 U.S. 1144, 128 S.Ct. 1064, 169 L.Ed.2d 813 (2008), that the trial court abused its discretion by failing to ask appellant's requested voir dire question. Given that United States citizenship is a statutory qualification pursuant to Md. Code Ann., Courts and Judicial Proceedings (“CJP”), § 8–103(a)(3) (2006 Supp.), appellant's question was a valid attempt to confirm that all members of the venire panel were qualified to serve as jurors.
Appellant, who had been previously convicted of a felony, was indicted in the Circuit Court for Frederick County with various offenses related to the theft of a handgun. Prior to trial, each party submitted a written request to the trial court proposing several voir dire questions; appellant proposed fourteen and the State proposed nineteen. The trial court began voir dire by instructing the venire panel that he was about to ask them several questions, the purpose of which was “to assist the attorneys in impaneling a fair and impartial jury.” During voir dire, the trial judge posed approximately twenty questions, as well as several follow-up questions to the various panel members who responded.
The following colloquy then took place:
(Emphasis added).
Both parties then participated in the final selection of the jury, after which the clerk called the roll, and a jury of seven males, five females, and one male alternate was seated.1 In response to the court's question regarding whether there was satisfaction with the selected jury, both prosecutor and defense counsel answered in the affirmative, without any objections.2 The jury was then sworn and seated.
Appellant argues that his convictions must be vacated based on the trial court's error in failing to propound his requested voir dire question regarding whether all potential members of the jury were citizens of the United States. Because statutory law provides that only United States citizens are qualified to serve as Maryland jurors, see CJP § 8–103(a)(2), and trial judges are required “to pose voir dire questions directed at exposing constitutional and statutory disqualifications when requested by a party,” Owens, 399 Md. at 422, 924 A.2d 1072, appellant maintains that the court's “error demands a reversal” of his conviction.
In support of its argument that appellant is not entitled to a reversal of his convictions, the State argues that the trial court properly exercised its discretion because it was “not likely” to reveal cause for disqualification based upon citizenship. The State further contends that, had the court asked appellant's requested question, it could have “compelled an incriminating response,” and, even if the court abused its discretion, appellant failed to establish any prejudice. In response, appellant maintains that a non-citizen's residency status cannot be presumed to be that of an illegal alien, and the court's error caused prejudice by forcing him to “select a jury without knowing whether the venire persons [were] qualified to serve as jurors.” Appellant is correct.
Every criminal defendant has the constitutional right to a trial by an impartial jury pursuant to the Sixth Amendment to the United States Constitution, and Article 21 of the Maryland Declaration of Rights, which guarantees, “[t]hat in all criminal prosecutions, every man hath a right ... to a speedy trial by an impartial jury, without whose unanimous consent he ought not to be found guilty.” The Sixth Amendment of the United States Constitution similarly guarantees a criminal defendant, inter alia, “the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed[.]” Voir dire is the means by which the defendant may identify and challenge unqualified jurors. Owens, 399 Md. at 402, 924 A.2d 1072;Tetso v. State, 205 Md.App. 334, 368, 45 A.3d 788cert. denied,428 Md. 545, 52 A.3d 979 (2012); Williams v. State, 394 Md. 98, 106, 904 A.2d 534 (2006) ( ); Rosales–Lopez v. United States, 451 U.S. 182, 188, 101 S.Ct. 1629, 68 L.Ed.2d 22 (1981) ().
In Maryland, we have adopted and continue to adhere to “limited voir dire.” Dingle v. State, 361 Md. 1, 13, 759 A.2d 819 (2000). By “limited” we mean that “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.” Washington v. State, 425 Md. 306, 312, 40 A.3d 1017 (2012). “Critical in ensuring that the guarantee is meaningful is the voir dire of the venire, the purpose of which is to exclude from the venire potential jurors for whom there exists cause for disqualification [.]” Williams, 394 Md. at 107, 904 A.2d 534.
“Undergirding 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.” ’ ”
Id. ( )(further citation omitted). The trial court “need not make any particular inquiry of the prospective jurors unless that inquiry is directed toward revealing cause for disqualification.” Dingle, 361 Md. at 13–14, 759 A.2d 819. If a party fails to challenge an unqualified juror during the process of voir dire, that challenge is considered to be waived. Owens v. State, 170 Md.App. 35, 73, 906 A.2d 989 (2006), aff'd399 Md. 388, 924 A.2d 1072 (2007), cert. denied,552 U.S. 1144, 128 S.Ct. 1064, 169 L.Ed.2d 813 (2008) ( ).
The Court of Appeals has identified only “two broad areas of inquiry that may reveal cause for a juror's disqualification: (1) examination to determine whether the prospective juror meets the minimum statutory qualifications for jury service, and (2) examination to discover the juror's state of mind as to the matter in hand or any collateral matter reasonably liable to have undue influence over him.” Washington, 425 Md. at 313, 40 A.3d 1017 (citing Davis v. State, 333 Md. 27, 35–36, 633 A.2d 867 (1993)). Appellant's request to inquire whether all venire panel members were United States citizens concerns the first area of inquiry set forth in Washington because the posed question deals solely with whether all jurors satisfied the minimum statutory qualifications for service, as set forth in CJP § 8–103(a)(2). An example of the second area of inquiry can be found in State v. Shim, 418 Md. 37, 59, 12 A.3d 671 (2011), in which the trial court was held to have abused its discretion by refusing to ask whether any panel member had such strong feelings about criminal charges that it would be difficult...
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