State v. Ablonczy

• Decision Date: 23 June 2021
• Docket Number: No. 28, Sept. Term, 2020,28, Sept. Term, 2020
• Citation: State v. Ablonczy, 474 Md. 149, 253 A.3d 598 (Md. App. 2021)
• Court: Maryland Court of Appeals
• Parties: STATE of Maryland v. Anthony George ABLONCZY

474 Md. 149

253 A.3d 598

STATE of Maryland

v.Anthony George ABLONCZY

No. 28, Sept. Term, 2020

Court of Appeals of Maryland.

June 23, 2021

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

Argued by Claire Caplan, Asst. Public Defender (Paul B. DeWolfe, Public Defender of Maryland, Baltimore, MD), on brief For Respondent.

Barbera, C.J., McDonald, Watts, Hotten, Getty, Booth, Biran, JJ.

Hotten, J.

Following a physical altercation and robbery, Respondent, Anthony Ablonczy, was arrested and charged with armed robbery, robbery, first and second degree assault, and theft of less than one thousand dollars. Prior to the commencement of a jury trial in the Circuit Court for Washington County, defense counsel for Respondent submitted several voir dire questions to be posed to the venire, including a proposed question which addressed the presumption of innocence, burden of proof beyond a reasonable doubt, and the right to remain silent. The trial court declined to pose the question, defense counsel objected, the objection was overruled, and voir dire resumed.

At the conclusion of jury selection, the trial court asked whether either party objected to the jury as empaneled and defense counsel responded "no." On appeal, Respondent argued that, in light of this Court's decision in Kazadi v. State , 467 Md. 1, 223 A.3d 554 (2020), the trial court committed reversible error in failing to ask the proposed question. The Court of Special Appeals reversed, prompting an appeal by the State to this Court. We granted certiorari to determine the following question presented:

Should accepting a jury as ultimately empaneled waive any prior objection to the trial court's refusal to propound [voir dire ] questions?

For the reasons expressed below, we answer in the negative and shall affirm the judgment of the Court of Special Appeals.

FACTUAL AND PROCEDURAL BACKGROUND

Underlying Factual Background

Respondent approached an individual sitting in his car on the evening of September 28, 2015, pointed a pellet gun at him and demanded money. Respondent grabbed the individual's wallet, cellphone, and keys, and then struck him in the face with the back of the gun, injuring the left side of his face and upper lip.¹ DNA found on a cigarette butt inside the victim's vehicle was later attributed to Respondent. Respondent was arrested and charged with armed robbery, robbery, first and second degree assault, and theft of less than one thousand dollars in the Circuit Court for Washington County.

Circuit Court Proceeding

Before trial, Respondent submitted several voir dire questions for the trial court to propound to the potential jurors, including proposed voir dire question number eighteen, which read as follows:

18. There are certain legal principles governing a criminal case by which you must abide once you have taken your oath as a juror. If you have any difficulty in understanding these principles, or in accepting these principles, you must inform the Court at this time. It is imperative that you be absolutely honest and open about your feelings.

a. Presumption of Innocence

One of the fundamental principles of our legal system is that when a person is brought to Court charged with a crime, he must be presumed to be innocent unless, and until, the prosecution presents evidence that convinces you beyond a reasonable doubt that he is guilty. If you are selected as a juror in this case, will you have difficult[y] in accepting and/or applying the rule of law the defendant must be presumed to be innocent?

b. Burden of Proof

The prosecution has the burden of proving that the defendant is guilty beyond a reasonable doubt. This burden never shifts to the defense. The Defendant never has to prove that he is innocent. A defendant is not required to present any evidence. If the prosecution does not prove every element of an offense beyond a reasonable doubt, the jury must find the Defendant not guilty of that offense. Will you have any difficulty accepting and/or applying this legal principle?

c. Right to Remain Silent

In every criminal case, the Defendant has an absolute Constitutional right not to testify.

i) Does any member of the jury panel believe that a Defendant who does not testify is more likely to be guilty?

ii) If the Defendant presented no evidence at all in his defense, would this affect your ability to presume him innocent?

d. Beyond a Reasonable Doubt

One of the fundamental principles of our system is that the prosecution has the burden of proving that the Defendant is guilty beyond a reasonable doubt. Will you have any difficulty accepting and/or applying this legal principle?

During a bench conference regarding Respondent's proposed voir dire question, the following colloquy ensued:

THE COURT: [ ] All of these questions about the law, [ ] I don't believe they are appropriate under Maryland law.

[DEFENSE COUNSEL]: That's fine, over my objection, I understand.

THE COURT: Sure. That will be just so counsel knows, that is question 18, [ ] which has recitations of presumption of innocence, burden of proof, right to remain silent, beyond a reasonable doubt. I've done some research actually beforehand on this, and ... those are really questions of law that aren't necessary or required under Maryland [law].

Voir dire resumed, and, at the conclusion of jury selection, the trial court asked whether there were any objections to the jury panel:

THE COURT: Okay. All right first, we have 12 persons seated in the jury box. Madam State, do you have any objection from the panel that's been seated?

[THE STATE]: The State is satisfied.

THE COURT: Okay and Defense I know that you've used your peremptory challenges, do you have any objection to the panel as seated?

[DEFENSE COUNSEL]: No. Thank you your Honor.

Alternate jurors were then seated and the trial court again asked whether there were any objections to the jury panel as seated:

THE COURT: [ ] All right at this time, [ ] is there any objection to the panel?

[DEFENSE COUNSEL]: No.

At the conclusion of trial, the jury convicted Respondent of armed robbery, robbery, first and second degree assault, and theft of less than one thousand dollars and acquitted him of reckless endangerment, carrying a handgun, and the use of a firearm in the commission of a crime of violence. Respondent was sentenced to a total of twenty years’ incarceration for armed robbery, without any probationary period, to run consecutively with a sentence received by Respondent for other convictions unrelated to the underlying incident. His remaining convictions were merged for purposes of sentencing.

Court of Special Appeals’ Opinion

Respondent appealed his convictions to the Court of Special Appeals, arguing that based on this Court's decision in Kazadi , 467 Md. at 1, 223 A.3d at 554, the trial court abused its discretion in declining to ask proposed question number eighteen. Respondent argued that in Kazadi , this Court held that "on request, during voir dire , a trial court must ask whether any prospective jurors are unwilling or unable to comply with the jury instructions on the fundamental principles of presumption of innocence, the State's burden of proof, and the defendant's right not to testify." Id. at 9, 223 A.3d at 559. To act in a contrary fashion would be an error in both Kazadi "and any other cases that are pending on direct appeal when this opinion is filed, where the relevant question has been preserved for appellate review." Id. at 54, 223 A.3d at 586. The State countered that Respondent had not preserved the issue, since he waived his objection by accepting the jury without qualification at the conclusion of the voir dire process.

The Court of Special Appeals rejected the State's argument.

Maryland Rule 4-323(c) requires a party to "make[ ] known" its objection to the court. The Court held that objecting to the omission of a voir dire question was sufficient to preserve the issue for appeal, and that "accepting the jury that is ultimately selected" after a defense objection "does not constitute acquiescence to the previous adverse ruling." Ablonczy v. State , No. 3219, Sept. Term., 2018, 2020 WL 3401190, at *4 (Md. Ct. Spec. App. June 19, 2020) (citing Marquardt v. State , 164 Md. App. 95, 143, 882 A.2d 900, 928 (2005) ; State v. Stringfellow , 425 Md. 461, 470–71, 42 A.3d 27, 32–33 (2012) ).

The Court of Special Appeals also held that, pursuant to Kazadi , the trial court abused its discretion in not asking question eighteen, reversed the trial court's decision, and remanded for a new trial. Ablonczy , No. 3219, Sept. Term, 2018, 2020 WL 3401190, at *2–3. The State appealed to this Court, which granted certiorari to determine whether accepting a jury as ultimately empaneled waives any prior objection to the trial court's refusal to propound voir dire questions. State v. Ablonczy , 471 Md. 102, 240 A.3d 853 (2020).

DISCUSSION

The Sixth Amendment of the United States Constitution and Article 21 of the Maryland Declaration of Rights both guarantee a criminal defendant the right to "an impartial jury." U.S. Const. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed[.]"); Md. Const. Decl. of Rts. art. 21 ("That in all criminal prosecutions, every man hath a right to ... a speedy trial by an impartial jury, without whose unanimous consent he ought not to be found guilty."). As this Court explained in Waters v. State , 51 Md. 430, 436 (1879) :

It is a fundamental principle underlying the trial by jury, that each juror shall so far as it is possible be entirely impartial and unbiased, in order that he may hear the evidence, and decide the matter in controversy uninfluenced by any extraneous considerations whatever. We say, so far as it is possible, for after all, it may not be practicable even by the most rigid rules of exclusion to

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