Phenious v. State

• Decision Date: 11 March 1971
• Docket Number: No. 333,333
• Citation: 274 A.2d 658,11 Md.App. 385
• Court: Court of Special Appeals of Maryland
• Parties: Maurice PHENIOUS v. STATE of Maryland.

Page 385

11 Md.App. 385

274 A.2d 658

Maurice PHENIOUS v. STATE of Maryland.

No. 333.

Court of Special Appeals of Maryland.

March 11, 1971.

Arthur M. Ahalt, Mt. Rainier, for appellant.

Clarence W. Sharp, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Arthur A. Marshall, Jr., State's Atty., and Regis A. Johnston, Asst. State's Atty for Prince George's County on brief, for appellee.

Argued before ORTH, THOMPSON and MOYLAN, JJ.

THOMPSON, Judge.

Maurice Phenious, the appellant, was convicted of armed robbery in the Circuit Court for Prince George's County. Judge Ralph W. Powers presiding with a jury, imposed a sentence of six years. The questions presented on appeal concern the adequacy of the voir dire examination of the prospective jurors and the sufficiency of the indictment. There is no need for us to detail the evidence.

I Voir Dire Examination

After the jury was sworn on voir dire, the court stated:

'THE COURT: Ladies and gentlemen, the case now under consideration is State of Maryland versus Maurice Phenious. The defendant-will you please rise, Mr. Phenious, and turn around and face the jury-is charged with armed robbery, which occurred about the 4th of December 1969, and he is charged with entering the residence of Doctor Raymond King, and robbing Doctor King's maid, Mary Alice Mason, with the use of a gun.

'The State's witnesses are Mary Alice Mason, Doctor Raymond King, Detective Crump, Robert Gerard Daugherty.

'The defendant's witnesses are LaVerne Bell, Adrene Hill and Deborah Livingston.

'The first question which I direct to all of the members of the panel is does any member of the panel know anything about the case or formed any opinion as to the guilt or innocence of the defendant? If the answer is yes, please rise and identify yourself.'

It appears that the case had been previously tried before some of the prospective jurors and others had heard those jurors discuss the case. All such persons were excused. Thereafter, the trial judge asked the following question to which there appears to have been no affirmative replies:

'The remaining jurors I want to ask this question, and that is, is any member of your immediate family formerly or at the present time a member of the Prince George's County Police Department?'

Defense counsel duly excepted to the court's failure to ask the following questions:

'5. Has any member of the jury panel or a member of their immediate family ever been the victim of or a witness to a crime or crimes charged in the indictment?

'8. Would any member of the jury panel be inclined to give more weight to the testimony of a police officer merely because he is a police officer than to any other witness in the case?

'9. Does any member of the jury panel entertain or is anyone aware of any bias or prejudice for or against the government or for or against the defendant in this case?

'10. Does anyone know of any reason whatsoever why he or she cannot sit as a juror in this case and render a fair and impartial verdict on the law and the evidence as you shall hear it?'

As to question no. 5, the Court of Appeals has ruled that an inquiry concerning whether or not a prospective juror has been the victim or a witness to a crime similar to the one charged in the indictment is not a propert question on voir dire since it does not provide a basis for challenge for cause. See Yopps v. State, 234 Md. 216, 198 A.2d 264 concerning a burglary, and Twining v. State, 234 Md. 97, 198 A.2d 291, concerning bastardy. There appears no reason here to vary from the previously established general rule.

Question no. 8 is moot because the record shows that no police officer testified before the jury.

Questions nos. 9 and 10 require more discussion. In Maryland, the extent of a voir dire examination rests within the sound discretion of the trial judge, Rodgers v. State, 4 Md.App. 407, 243 A.2d 28, Culver v. State, 1 Md.App. 406, 230 A.2d 361. Maryland has no rule or statute defining the objects of inquiry in determining the eligibility of jurymen. The cases have, however, established that questions must relate to some specific issue of eligibility; those which are speculative or in the nature of a fishing expedition may be refused by the court in its discretion. Grogg v. State, 231 Md. 530, 191 A.2d 435, Kujawa v. Baltimore Transit Co., 224 Md. 195, 197 A.2d 96, Emery v. F. P. Asher, Jr. & Sons, Inc., 196 Md. 1, 75 A.2d 333. See Whittemore v. State, 151 Md. 309, 315, 134 A. 322. The rule applies even though it would not have been error to have asked the question. McGee v. State, 219 Md. 53, 146 A.2d 194.

The failure to ask questions on voir dire relating to prejudice is reversible error only when the denied questions pertain to a particular bias, e. g. Brown v. State, 220 Md. 29, 150 A.2d 895 where the question related to racial prejudice and Casey v. Roman Catholic Archbishop of Baltimore, 217 Md. 595, 143 A.2d 627, 631, where the Court said:

'The form of the questions to be asked is clearly within the sound discretion of the court. However, it is clear that the only question propounded by the court was not sufficient to determine possible cause for disqualification by reason of bias or prejudice or otherwise. The question asked was in a form so general that it is likely it did not sufficiently indicate to the panel of jurors what possible bias or prejudice was being probed. To ask the jurors whether they would be prevented from rendering a fair and impartial verdict by the fact that a party was a 'religious corporation'-which they might not even realize meant a church-without informing them of the church involved or the position of the religious corporation in the suit would defeat the whole purpose of questioning jurors on their voir dire. We think there is no doubt that the court should have informed the prospective jurors that the action was a suit by Harriet M. Casey against Roman Catholic Archbishop of Baltimore, a corporation sole, for personal injuries allegedly arising out of an accident which occurred in St. Patrick's Church at Havre de Grace on October 2, 1954 * * *.'

See also Aldridge v. United States, 283 U.S. 308, 51 S.Ct. 470, 75 L.Ed. 1054.

We do not think the trial court abused its discretion in not asking question nos. 9 and 10 because they were too broad. The court did ask questions to determine specific bias or prejudice, if any, by the jurors by reason of association with the local police department and by reason of having heard the case or discussions of it. Under the circumstances of this case, we see no reversible error in the failure of the trial court to ask the broad questions relating to prejudice and bias. It is unlikely any juror would objectively recognize general, as opposed to specific, prejudice.

II The Indictment

The indictment in relevant parts charged the appellant 'feloniously with a dangerous and deadly weapon did rob Mary Alice Mason and violently did steal from her, various items of the value of five hundred eight-four dollars ($584.00).' (Emphasis added) The appellant made no motion to quash the indictment under Md. Rule 725 b, therefore, his argument concerning it on appeal is limited to the contention that the indictment failed to show jurisdiction of the court or to charge an offense. If the indictment failed to charge an offense we have held that there is a matter of jurisdiction and we are permitted to review the question whether or not it was tried and decided...