Kidder v. State

• Decision Date: 23 October 2020
• Docket Number: No. 3160,3160
• Parties: JONATHAN TORIN KIDDER v. STATE OF MARYLAND
• Court: Court of Special Appeals of Maryland

JONATHAN TORIN KIDDER
v.
STATE OF MARYLAND

No. 3160

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2018
October 23, 2020

Circuit Court for Worcester County
Case No. C-23-CR-18-000177

UNREPORTED

Nazarian, Leahy, Friedman, JJ.

Opinion by Nazarian, J.

* This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

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Jonathan Kidder caused two accidents with his sport utility vehicle in the span of a few minutes. First, he struck and killed a cyclist, Jose Pineda Madrid, as Mr. Madrid rode home from work. Mr. Kidder kept going, and a few minutes later, he rear-ended a stopped car. Then, he fled the scene on foot.

Mr. Kidder was charged with and convicted of negligent homicide by motor vehicle while under the influence of alcohol, negligent homicide by motor vehicle while impaired by alcohol, failure to remain at the scene of an accident involving death, negligent driving, driving while under the influence of alcohol, and driving while impaired by alcohol. He makes five arguments on appeal. First, he contends that his enhanced sentence for failure to stop at the scene of an accident involving a death is illegal because he wasn't charged with a necessary element. Next, he argues that the trial court excluded significant parts of the community from the jury in violation of his right to a fair and impartial jury. Third, he claims that the court erred when it read the State's requested jury instruction on his duty to keep a lookout. He contends fourth that the court abused its discretion during closing argument, that the evidence was insufficient to convict him of negligent homicide while under the influence of alcohol, and finally that his sentence for failure to remain at the scene of an accident involving death was illegal. We vacate Mr. Kidder's conviction for failure to stop at the scene of the accident involving death, remand for resentencing on that count, and affirm the remaining convictions.

I. BACKGROUND

A. Jury Selection.

The trial court explained its jury selection methodology to the parties:

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We need 12 jurors and we need one alternate, that's 13. Four strikes for the State and four strikes for the defense. . . . [A]nd then one strike for the alternate for the State and two strikes for the alternate for the defense. That results in the number of 24.
What the Court's intention [] regarding the voir dire process is to ask all of the questions in their entirety noting any affirmative or negative responses on the jury list by the juror number. And since the questions are enumerated, it's actually a pretty easy process to follow.
Once all of the questions have been propounded to the venire panel, the court will then determine . . . if there are 24 individuals who have not answered affirmatively or negatively to any question.
If they have not answered affirmatively or negatively, there would be no reason to bring them up to the bench for additional questioning. . . .
[I]f there are 24 such individuals, then we can immediately go to alternative strikes in the selection process.¹

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(emphasis added). Defense counsel objected to the court's method because it prohibited qualified members of the venire from sitting on the jury, but he acknowledged that he didn't have standing to make that argument. He then objected that the court's method amounted to sua sponte strikes for cause without any individual inquiry of the juror's ability to serve:

[DEFENSE COUNSEL]: Individuals, citizens of this country who meet the qualifications have the right to be called for jury service and would presumably have a right to sit on a jury. And the method in question this morning essentially would prohibit individuals for benign reasons who would otherwise have no issues sitting in judgment of a case like this. . . .
And I can imagine a situation where . . . the Worcester County jury office [brought] in 200 jurors for every case, there would never be a situation where we would need to inquire into affirmative answers, and individuals who are related to law enforcement officers would per se be prohibited from serving on a jury in their community.
[THE COURT]: Until the venire got wind of what it was that would keep them off of a jury. And then everyone would stand up or answer for some question.
[DEFENSE COUNSEL]: You[r] Honor's certainly correct. The second—now, I acknowledge the issue with me presenting that argument as I don't have standing. . . .
I think a more pragmatic argument comes from the rules, cause challenges need to be raised by parties and ruled on by the Court. The procedure suggested by the Court, it would essentially be tantamount to the Court exercising sua sponte cause challenges without inquiring as to whether an individual would be unable to sit fairly and impartially in this case.

(emphasis added). The court overruled the objection. It stated that voir dire in Maryland is not "for the purpose of determining or ferreting out information about potential jurors so that peremptory challenges can be exercised," but that if it were unable to find 24 people

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who didn't respond to a voir dire question affirmatively, it would "examine the jurors." The court stated that it was "not even remotely close to determining [] that people who have answered affirmatively or negatively to any question [] are not qualified jurors, and that they should therefore be stricken for cause."

The overwhelming majority of the potential jurors responded to one or more voir dire questions, and many (marked below by asterisks) responded to more than one:

Question	Jurors
Do you know anything about this alleged incident or have; you seen or heard anything about it from any person or; source including the Internet and news media? T1.26.	314, 367, 406, 176, 337,; 207, 418, 343, 227, 388,; 336, 345, 401
Do you know any of the counsel from any professional,; business or social relationship?	378, 300, 278, 343
Do you know any of [the] witnesses in any capacity?	274, 295, 300*, 378*, 406*,; 176*, 327, 346, 207*, 375,; 283, 334, 359, 303
Would you give any greater or lesser credit or weight to; the testimony of a police officer over that of a witness in; another occupation merely because of his or her status as; a police officer?	364, 278*, 374, 418*, 375*,; 283*, 388*, 336*, 323
Have you been, A, the victim of a crime similar to the; crimes charged today; a witness to a crime, that was B,; and, C, arrested for, charged with or convicted of a crime; other than a minor motor vehicle violation?	368, 300*, 378*, 406*,; 307*, 327*, 176*, 393, 282,; 122, 317, 356, 400, 207*,; 395, 273, 420, 330, 283*,; 342, 359*, 401*, 323*
Have you or any member of your immediate family ever; been a member of a law enforcement agency?	374*, 348, 329, 383, 364*,; 300*, 380, 278*, 327*,; 337*, 395*, 418*, 273*,; 342*, 303*, 401*, 323*
Do you have any urgent personal or business obligation; that you cannot reschedule that could interfere with your; ability to give your full attention to this trial?	343*, 283*, 336*
Do you have any physical or mental ailments or problems; such as hearing, sight or otherwise which would render; you incapable of performing your duty as a juror in this; case if selected?	346*, 317*, 279

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The court identified only fourteen people who didn't respond to any questions. Beyond those fourteen, the court questioned other members of the venire who had responded to at least one question.² Once the court identified twenty-four prospective jurors (the fourteen who hadn't responded to any questions and ten examined individually by the court), the parties exercised their peremptory strikes and the jury was selected. The court skipped over the names of jurors who had responded to questions and who had not been questioned individually.

B. Trial.

Trial took place on November 7 and 8, 2018. Felix Cruz Gonzalez, who lived close to the location of the first accident, testified that he heard a "boom" around 10:00 p.m. and left his apartment to find a bicycle with a "red light flashing." He discovered Mr. Madrid's body and called 911. Maryland State Police Trooper Connor Willey reported to the scene at 10:09 p.m. and discovered Mr. Madrid's body in a ditch near the road. Dr. Russell Alexander, the Chief Medical Examiner, testified that Mr. Madrid sustained "multiple fractures" in the base of the skull that led to a "relatively rapid[]" death. Dr. Alexander noted that Mr. Madrid's ribs were broken, his hip bones were dislocated, and his liver was "torn." He stated that someone with a torn liver like Mr. Madrid's "could bleed to death . . . within multiple minutes," even with medical treatment.

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Trooper Willey testified that Mr. Madrid's bike had reflectors on both wheels, a headlamp (it was knocked off in the collision), reflectors on the pedals, and a blinking red light on the rear. Pieces of the headlight and right sideview mirror from Mr. Kidder's car were found near Mr. Madrid's body.

Police obtained footage from a nearby business that showed Mr. Madrid riding his bike along Racetrack Road at around 10:00 p.m. Trooper Willey explained that as Mr. Madrid was seen riding southbound "a tan Chevy Yukon" entered the frame of the video traveling southbound as well. He "observe[d] the vehicle strike the bicyclist from the rear." He didn't see the Yukon swerve.

Trooper Jeffrey Hoffmeister testified that he reported to the scene of a second accident, at around 10:15 p.m., at the intersection of Route 50 and Keyser Point Road. Mr. Kidder wasn't there. Devon Alexander told police he was driving a white Toyota Highlander and waiting in the left turn lane of westbound Route 50 to turn onto southbound Keyser Point Road. He said that Mr. Kidder drove his Yukon into the back of Mr. Alexander's car and when they both got out, "he could detect a very strong odor of alcohol...