Phenious v. State, 333

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

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.

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[274 A.2d 659] 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.

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for Prince George's County on brief, for appellee.

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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[274 A.2d 660] 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

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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.

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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...