Kidder v. State

• Decision Date: 04 August 2021
• Docket Number: No. 53, Sept. Term, 2020,53, Sept. Term, 2020
• Citation: 256 A.3d 829,475 Md. 113
• Parties: Jonathan Torin KIDDER v. STATE of Maryland
• Court: Court of Special Appeals of Maryland

475 Md. 113
256 A.3d 829

Jonathan Torin KIDDER
v.
STATE of Maryland

No. 53, Sept. Term, 2020

Court of Appeals of Maryland.

August 4, 2021

Argued by Anne J. Martin, Assigned Public Defender (Alston & Bird LLP, Washington, DC; Anne K. Olesen, Assigned Public Defender, The George Washington University Jacob Bums Community Legal Clinics, Washington, DC), on brief, for Petitioner.

Argued by Andrew J. DiMiceli, Asst. Atty. Gen. (Brian E. Frosh, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Respondent.

Argued before: Barbera, C.J.; McDonald, Watts, Hotten, Getty, Booth and Biran, JJ.

McDonald, J.

One who is charged with a serious crime has a constitutional right to trial by an impartial jury. That right has long been understood to implicitly require that a jury be selected from a fair cross-section of the community. The fair cross-section requirement does not mean that a jury must precisely mirror the demographics of the community. Rather, there must be no systematic or intentional exclusion of any cognizable group in the jury selection process. This appeal concerns whether a particular method of selecting a jury violates that standard.

Petitioner Jonathan Torin Kidder was charged in the Circuit Court for Worcester County with numerous criminal offenses related to a drunk driving incident in 2018 that resulted in the death of a cyclist. To select a jury for the trial, the trial judge posed a series of voir dire questions to the entire jury venire – the panel of prospective jurors summoned for the trial. Voir dire questions are designed to elicit information that might reveal cause to excuse members of the venire from service on the particular jury. The trial judge asked the members of the venire to indicate whether they had a response to each question and took note of each prospective juror who did so, without immediately questioning individual members of the panel as to their answers to assess possible challenges to exclude each of those prospective jurors for cause. Instead, after posing all of the voir dire questions, the judge determined the number of prospective jurors who had not responded to any of the questions – and therefore would not be subject to challenges for cause. The trial judge then calculated the total number of prospective jurors needed to seat a jury (taking into account the peremptory strikes the parties were entitled to exercise). Next, the trial judge conducted individual questioning of the panel members and considered challenges for cause, only to the extent necessary to obtain the requisite number of prospective jurors for the exercise of peremptory strikes.

The jury found Mr. Kidder guilty of all charges. Mr. Kidder appealed that verdict,

256 A.3d 834

asserting, among other things, that the method of jury selection used by the trial judge violated his right to an impartial jury. He argues that the trial judge impermissibly excluded numerous groups of people from his jury without making specific findings of bias or other cause.

The Court of Special Appeals affirmed Mr. Kidder's convictions, and so do we. There is no indication in the record that any cognizable group was excluded from the jury as a result of the method of jury selection. Prospective jurors were excluded from consideration for the jury only if excused for cause or by peremptory strike. As in any case in which the venire consists of many more individuals than are needed for the jury, the selection process never reached some members of the venire, but that does not mean they were "excluded" from the jury. Nonetheless, while this selection method may appear more efficient than other methods of jury selection and a trial judge does not know in advance which particular members of the jury venire will – or will not – have a response to a voir dire question, trial judges should refrain from using it. This selection method uses a criterion for re-ordering the jury panel – silence in response to initial voir dire questions – that, though neutral on its face, may result in a jury that, though impartial, may not be as attentive and engaged as we want our juries to be.

I

Jury Selection in Criminal Trials

A. Right to Impartial Jury

Both Article 21 of the Maryland Declaration of Rights and the Sixth Amendment to the federal Constitution guarantee a defendant charged with a serious crime the right to an impartial jury – a right sometimes traced to the Magna Carta of 1215. Duncan v. Louisiana , 391 U.S. 145, 151-52, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). That right implicitly requires that the jury venire – the panel of prospective jurors from which the jury for a particular trial is selected – be drawn from a fair cross-section of the community. Holland v. Illinois , 493 U.S. 474, 480, 110 S.Ct. 803, 107 L.Ed.2d 905 (1990) ; Taylor v. Louisiana , 419 U.S. 522, 530, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). However, there is no requirement that a jury chosen for a particular case "must mirror the community and reflect the various distinctive groups in the population." Taylor , 419 U.S. at 538, 95 S.Ct. 692. "Indeed, it would be impossible to apply a concept of proportional representation to the petit jury in view of the heterogeneous nature of our society." Batson v. Kentucky , 476 U.S. 79, 85 n.6, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

B. Jury Plans, Pools, and Panels

State law implements the constitutional directives. The circuit court in each county is to have a plan for creating a jury pool from a "fair cross section of the adult citizens" who reside in the county. Maryland Code, Courts & Judicial Proceedings Article ("CJ"), §§ 8-104, 8-201. Under the plan, the circuit court's jury commissioner is to select names of individuals to serve in the court's jury pool for a particular interval. CJ § 8-310. Each individual selected for an interval is generally assigned a number which is used to identify the individual during a jury selection process. Procedures differ in their precise details among different jurisdictions. On days when trials are scheduled in a circuit court, a sufficient number of individuals from the jury pool, taking into account the number anticipated to be needed, is summoned to the courthouse, and then, as needed, may be directed to a courtroom for the jury selection process in a particular trial. CJ § 8-401. In this opinion, we shall refer to the members of the jury pool summoned to the courthouse and sent to a courtroom for a particular trial as the venire

256 A.3d 835

or jury panel for that case. We shall refer to members of a venire as "prospective jurors."¹

C. Jury Selection at Trial

A criminal trial begins with the selection of the jury. That process is intended to select an impartial jury by eliminating prospective jurors who may harbor a bias or prejudice with respect to the particular defendant, the charges at issue in the case, or the witnesses in the case; who may be unwilling to follow the court's instructions on the law governing the case; or who should be excused from service on the particular case for some legitimate reason. See Collins v. State , 452 Md. 614, 623-24, 158 A.3d 553 (2017) ; Charles v. State , 414 Md. 726, 733, 997 A.2d 154 (2010).

Jury selection can be thought of as a two-stage process: an initial stage directed to challenges for cause and a second stage at which parties exercise peremptory strikes.

First Stage – Voir Dire Questions and Challenges for Cause

The first stage involves questioning of prospective jurors as a group, sometimes with follow-up questioning of individual jurors at the bench. Maryland Rule 4-312(e). This is often referred to as voir dire , and the questions asked are referred to as voir dire questions. A prospective juror's answers to voir dire questions may result in the trial judge excusing that individual "for cause" – an assessment that the individual, for one reason or another, might not be able to discharge the juror's obligation to decide a case fairly and impartially for the duration of the trial. CJ § 8-404(b)(2)(ii).

During the past decade, a special committee of the Maryland State Bar Association ("MSBA") developed and published model voir dire questions for both criminal and civil trials. MSBA Special Committee on Voir Dire , Model Jury Selection Questions (2018). The product of those efforts has been endorsed by this Court in a published opinion. Collins , 452 Md. at 628-32, 158 A.3d 553.

This Court has frequently emphasized that, unlike courts in many other jurisdictions, Maryland courts allow only "limited voir dire " – meaning that the sole purpose of voir dire questioning is to determine whether prospective jurors should be struck for cause, not to elicit information for the exercise of peremptory strikes in the second stage of jury selection. E.g. , Kazadi v. State , 467 Md. 1, 46-47, 223 A.3d 554 (2020) ; Collins v. State , 463 Md. 372, 404, 205 A.3d 1012 (2019) ; Pearson v. State , 437 Md. 350, 356-57, 86 A.3d 1232 (2014) ; Washington v. State , 425 Md. 306, 312, 40 A.3d 1017 (2012).

The trial judge must...