Moore v. State, No. 27, September Term, 2009 (Md. App. 2/26/2010)

• Decision Date: 26 February 2010
• Docket Number: No. 27, September Term, 2009.,27, September Term, 2009.
• Parties: CHARLES F. MOORE, JR., v. STATE OF MARYLAND.
• Court: Court of Special Appeals of Maryland

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CHARLES F. MOORE, JR., v. STATE OF MARYLAND.

No. 27, September Term, 2009.

Court of Appeals of Maryland.

Filed: February 26, 2010.

In the Circuit Court for Frederick County, Case No. 10-K-05-037507.

Bell, C.J., Harrell, Battaglia, Greene, Murphy, Adkins, Barbera, JJ.

Opinion by BELL, C. J.

This case presents the issue of whether a Defense Witness question is mandatory i.e., whether a "trial court [must] ask potential jurors on voir dire whether they would tend to view the testimony of witnesses called by the defense with more skepticism than that of witnesses called by the State, merely because they were called by the defense[.]" In Bowie v. State, having concluded that it is "necessary to determine whether witnesses called by the State will start with a `presumption of credibility' simply because of the positions occupied rather than the facts of the case," this Court held that the trial court erred when it refused to ask the Defense-Witness question requested by the defendant in an attempt to determine whether any venireperson was so inclined. 324 Md. 1, 10, 595 A.2d 448, 452 (1991). We now shall hold that Bowie controls the resolution of this case, and, consequently, that the trial court erred when it failed, upon the defendant's request, to ask the Defense-Witness question during voir dire. This holding is consistent with the well settled principle that questions designed to, and that will, uncover bias that would undermine a defendant's right to a fair trial are mandatory and, thus, must, if requested, be asked on voir dire.

I.

Just before midnight, on May 20, 2005, Charles F. Moore Jr., ("the petitioner") and a group of two men and two women were in a parking lot near Country Hills Apartments ("Country Hills") in Frederick, Maryland. The petitioner was wearing a Pittsburgh Steelers jersey with the number "12." He and his companions were preparing to leave in the petitioner's Lincoln Towncar when a Ford Taurus, driven by Alicia Bowens ("Bowens") and in which Romell Allen ("Allen"), Reginald Cobb ("Cobb"), and Devon Henderson ("Henderson") were passengers, drove by. Subsequently, the passengers in the Taurus and the petitioner's group became embroiled in a verbal and possibly physical exchange. Although each group initially departed, gunshots soon followed and Allen was hit and seriously wounded.

Having been identified by witnesses as the shooter, on June 20, 2005, the petitioner was indicted in the Circuit Court for Frederick County, Maryland. In the indictment, he was charged with two counts of attempted first degree murder, five counts of first degree assault, five counts of use of a handgun in commission of a crime of violence, five counts of reckless endangerment, and one count of wearing, carrying and transporting a handgun. The petitioner pleaded not guilty and prayed a jury trial.

Before jury selection, the petitioner's counsel submitted a list of the questions he requested the court to ask the venire on voir dire. Among the questions were the following:

"21. Would any prospective juror be more likely to believe a witness for the prosecution merely because he or she is a prosecution witness?

"22. Would any prospective juror tend to view the testimony of a witness called by the defense with more skepticism than witnesses called by the State, merely because they were called by the defense?

"23. Would any prospective juror be more or less likely to believe a police officer than a civilian witness, solely because he or she is a police officer?"

While all three questions purported to be designed to uncover juror bias, the former two specifically were directed at uncovering bias against the witnesses for the defense.

The court agreed that question 23 was a proper voir dire question and should be asked.

Over defense counsel's objection, however, the court declined to ask either question 21 or 22, ruling:

"THE COURT: 21 and 22,1 believe is also covered generically. We talk about it in 23 as to believe the testimony. I don't like to stress prosecution over are less likely to believe defense witness because that's again covered, I believe, in other instructions."

During the petitioner's three-day jury trial, the State called fifteen (15) witnesses including Allen, the victim, Bowens and Henderson, the two women in the Taurus, Michelle Atwood, an alleged eyewitness and Sergeant Wayne Trapp ("Sgt. Trapp"), the officer who apprehended the petitioner. Sgt. Trapp, a member of the Frederick Police Department's Drug Enforcement unit, was one of several such members of that unit doing undercover surveillance at County Hills at the time of the shooting. Sgt. Trapp testified that he saw the petitioner

"right in the middle of the parking lot, right around here, and he was pointing at another group of people somewhere over here. I was kind of directly behind him. He was crouched, holding the handgun with two hands, firing shots at some individuals . . .."

Sgt. Trapp testified that he called for back-up and pursued the shooter on foot. The chase ended, he said, when a police car pulled in front of the petitioner. Each of the other witnesses gave varying accounts of what happened. On one thing they all agreed, each witness's testimony implicated the petitioner as the shooter.

The petitioner testified on his own behalf and asserted his innocence. Indeed, the petitioner maintained his innocence throughout the trial. Responding to Sgt. Trapp, he stated that he went to the ground in an effort to comply with the police officers' request to "put his arms up," after which the officers handcuffed him and took him into custody. The petitioner testified further that he was "surprised" to learn he was under arrest because he did not have a gun and was not the shooter. The petitioner also called as a witness a bystander who stated he observed a man with a bandana "running across the street. . . and duck[ing] down behind [his] car."

The jury acquitted the petitioner of three counts of first degree assault and the related counts of use of a handgun in the commission of a crime of violence. It convicted him of two counts of attempted first degree murder, two counts of first degree assault, two counts of use of a handgun in commission of a crime of violence, five counts of reckless endangerment, and one count of wearing, carrying and transporting a handgun. His motion for new trial having been denied, the petitioner was sentenced to twenty years (20) for the reckless endangerment counts, and the use of handgun counts, to be served consecutively with two concurrent life sentences for the attempted murder counts. On appeal, the Court of Special Appeals affirmed the petitioner's conviction, after which this Court granted the petitioner's petition for writ of certiorari, Charles F. Moore, Jr. v. State of Maryland, ___ Md. ___, ___, A.2d ___ (2009), to address this important issue.

II.

The principles governing voir dire are well-established. Wright v. State, ___ Md. ___. ____, 983 A.2d 519, 521-522, 2009 Md. Lexis 840, *4-5 (2009); Stewart v. State, 399 Md 146, 158-160, 923 A.2d 44, 51-52 (2007); Curtin v. State, 393 Md. 593, 600-607, 903 A.2d 922, 926-930 (2006); Langley v. State, 281 Md. 337, 340-342, 378 A.2d 1338, 1339-1340 (1977); Casey v. Roman Catholic Archbishop of Baltimore, 217 Md. 595, 605-606, 143 A.2d 627, 631 (1958). This Court in Dingle v. State, explained:

"Voir dire, the process by which prospective jurors are examined to determine whether cause for disqualification exists, see Boyd v. State, 341 Md. 431, 435, 671 A.2d 33, 35 (1996), is the mechanism whereby the right to a fair and impartial jury, guaranteed by Art. 21 of the Maryland Declaration of Rights,... see Groggy v. State, 231 Md. 530, 532, 191 A.2d 435, 436 (1963), is given substance. See Hill v. State, 339 Md. 275, 280, 661 A.2d 1164, 1166 (1995); Bedford v. State, 317 Md. 659, 670, 566 A.2d 111, 116 (1989).The overarching purpose of voir dire in a criminal case is to ensure a fair and impartial jury. SeeBoyd. 341 Md. 431, 435, 671 A.2d 33,35 (1996); Hill, 339 Md. 275, 279, 661 A.2d 1164, 1166 (1995); Davis v. State, 333 Md. 27, 34, 633 A.2d 867, 871 (1993); Bedford, 317 Md. 659, 670, 566 A.2d 111, 117 (1989); Casey v. Roman Catholic Archbishop, 217 Md. 595, 605, 143 A.2d 627, 631 (1958): Adams v. State, 200 Md. 133, 140, 88 A.2d 556, 559 (1952)."

361 Md. 1, 9, 759 A.2d 819, 823 (2000); see State v. Thomas, 369 Md. 202, 206-207, 798 A.2d 566, 568-569 (2002). In the absence of a statute or rule prescribing the questions to be asked of the venirepersons during the examination, "the subject is left largely to the sound discretion of the court in each particular case." Corens v. State, 185 Md. 561, 564, 45 A.2d 340, 343 (1946); see also Langley, 281 Md. at 341, 378 A.2d at 1340. Thus,

'"the broad rule [is] that any circumstances which may reasonably be regarded as rendering a person unfitted for jury service may be made the subject of questions and a challenge for cause. In other words, an examination of a prospective juror on his voir dire is proper as long as it is conducted strictly within the right to discover the state of mind of the juror in respect to the matter in hand or any collateral matter reasonably liable to unduly influence him.'"

Corens, 185 Md. at 564, 45 A.2d at 343. The court, however, must adapt the questions to the particular circumstance or facts of the case, the ultimate goal, of course, being to obtain jurors who will be "impartial and unbiased." Dingle, 361 Md. at 9, 759 A.2d at 824 (quoting Waters v. State, 51 Md. 430, 436 (1879)). These tenets guide our discussion and the result.

III.

Langley provides context for the Bowie v. State, 324 Md. 1, 595 A.2d 448 (1991) decision, which, along with the Langley analysis and the standard emanating from that analysis, logically, will guide our discussion in this case. At first glance the holding in Langley may be viewed, and interpreted as, limited to witnesses who are...