State v. Jordan

• Docket Number: 23, Sept. Term, 2021
• Decision Date: 15 August 2022
• Citation: 480 Md. 490,281 A.3d 129
• Parties: STATE of Maryland v. Latoya JORDAN
• Court: Court of Special Appeals of Maryland

480 Md. 490

281 A.3d 129

STATE of Maryland

v.Latoya JORDAN

No. 23, Sept. Term, 2021

Court of Appeals of Maryland.

August 15, 2022

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

Argued by Stephanie Asplundh, Asst. Public Defender (Paul B. DeWolfe, Public Defender of Maryland, Baltimore, MD), on brief, for Respondent

Argued before:^* Getty, C.J., *McDonald, Watts, Hotten, Booth, Biran, Gould, JJ.

Gould, J.

In Kazadi v. State , 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." 467 Md. 1, 9, 223 A.3d 554 (2020). In Latoya Jordan's trial on two counts of second-degree assault, which took place before our decision in Kazadi , she requested a voir dire question on the third of those fundamental rights—a defendant's right not to testify. The trial court declined to ask the question. In the jury trial that followed, Ms. Jordan testified in her defense and was convicted on one of the assault counts and acquitted on the other.

Although Kazadi was decided after her trial, the parties agree that its holding applies to Ms. Jordan's case and that the trial court erred by refusing to ask Ms. Jordan's requested voir dire question.¹ The issue here is what to do about the error, which hinges on: (1) whether the harmless error doctrine applies to the specific error under Kazadi concerning the right not to testify, and (2) if so, whether the error in Ms. Jordan's case was harmless. The Court of Special Appeals assumed the former and answered "no" to the latter; therefore, it reversed Ms. Jordan's conviction and granted her a new trial.

The State petitioned this Court for a writ of certiorari, State v. Jordan , 475 Md. 698, 257 A.3d 1161 (2021), which we granted on the following question:

Is it harmless error to fail to propound a voir dire question regarding a defendant's right to remain silent and not testify where the defendant actually testifies?

For the reasons explained below, we hold that the Kazadi error committed here was a trial error subject to the harmless error doctrine. We further hold that under the facts of this case, the error was harmless. Accordingly, we reverse the judgment of the Court of Special Appeals.

BACKGROUND

The assault charges against Ms. Jordan arose out of an altercation during a program created by a nonprofit organization called Unique Fabrics, which teaches sewing skills to girls and women. The program was run by Mary Alexander. Ms. Alexander also supervised a "Youth Works" program through which she hired youths for summer jobs, including for Unique Fabrics. Ms. Jordan's 17-year-old niece, K.J.,² was one such student-employee in the 2019 summer session.

The Youth Works program is designed to teach young people the skills necessary to succeed in the workforce, including the appropriate use of a cell phone for personal use during working hours. When a student had difficulty complying with the cell phone policy, Ms. Alexander would enlist the involvement of the parent or guardian to facilitate an agreement with the student on cell phone usage. According to Ms. Alexander, the paperwork listed K.J.’s grandmother as her guardian. It was K.J.’s cell phone use that prompted an altercation between Ms. Alexander and Ms. Jordan on July 12, 2019, which resulted in the charges against Ms. Jordan. More details will be supplied below.

The Trial

Ms. Jordan was charged with one count of second-degree assault against Ms. Alexander and a separate count of second-degree assault against Milroy Harried. At Ms. Jordan's trial, during voir dire, defense counsel requested that the court ask the following question (the " Kazadi question"):

Every person accused of a crime has the absolute constitutional right to remain silent and not testify. If the defendant chooses not to testify the jury may not consider his/her silence in any way in determining whether he/she is guilty or not guilty. Is there any member of the jury who is unable or unwilling to uphold and abide by this rule of law?

The court declined the request. The court reasoned that the question would be "covered extensively in the [court's] instructions at the end," and by a separate voir dire question that "discusses ... that the defendant is presumed innocent unless the State can prove him guilty beyond a reasonable doubt." The court also determined that, without knowing whether Ms. Jordan would testify, the question would be "confusing[.]"

Opening Statements

The State told the jury that it would call two witnesses. One witness, Ms. Alexander, would testify that K.J.’s cell phone use on July 12, 2019 led to a phone call with Ms. Jordan. During this call, Ms. Jordan yelled at Ms. Alexander and threatened to come to the program.

Sometime later, Ms. Jordan arrived at the program and interrupted a parent conference. Ms. Jordan then "tr[ied] to swing at" Ms. Alexander. Ms. Jordan also hit Mr. Harried, who sustained several blows and injuries when he attempted to separate Ms. Jordan and Ms. Alexander.

In her opening statement, defense counsel did not dispute the State's contention that an altercation occurred between Ms. Jordan and Ms. Alexander, with Mr. Harried caught in the middle. Rather, defense counsel maintained that Ms. Alexander was the aggressor, not Ms. Jordan. Defense counsel told the jury that Ms. Jordan was K.J.’s aunt, that Ms. Jordan had raised K.J. since she was nine years old, that Ms. Jordan was K.J.’s legal guardian and referred to her niece as her daughter, and that she never gave Ms. Alexander permission to take K.J.’s cell phone.

Further, defense counsel told the jury that on July 12, 2019, Ms. Alexander took K.J.’s phone without permission and called K.J. a mute and a liar. Upset, K.J. called Ms. Jordan. During this call, Ms. Jordan heard a loud voice in the background. Ms. Alexander then took the phone from K.J. and proceeded to yell and curse at Ms. Jordan. Ms. Jordan later arrived at the program to check on K.J., and when she found Ms. Alexander, Ms. Alexander initiated the altercation.

Ms. Alexander's Testimony

The State called Ms. Alexander to testify first. According to Ms. Alexander, she discovered K.J. on her phone in class and asked her to put it in her purse. Several hours later, Ms. Alexander saw K.J. on her phone again, and confronted her about it. K.J. began "crying and screaming," which prompted Ms. Alexander to call K.J.’s grandmother, who didn't answer.

K.J. then called her aunt, Ms. Jordan. Ms. Alexander asked K.J. for the phone so she could speak with Ms. Jordan. Their conversation lasted "less than 30 seconds[,]" and ended when Ms. Alexander hung up the phone because Ms. Jordan was screaming and "cussing [her] out left and right."

Later that day, Ms. Alexander and Mr. Harried were meeting with another student's parents. Ms. Jordan entered the conference room "with force" and asked to speak with "that B who [she] was talking to on the phone." Ms. Alexander told Ms. Jordan that she was in a meeting and asked her to leave. Instead of leaving, Ms. Jordan lunged at and hit Ms. Alexander, catching her by surprise. Ms. Jordan and Ms. Alexander called each other "a bitch." Mr. Harried tried to separate the two and "blocked" Ms. Alexander from hitting Ms. Jordan.

While Mr. Harried was blocking Ms. Alexander, Ms. Jordan hit him several times. Ms. Alexander told Mr. Harried "to move out [of] the way [and] don't stand there." Mr. Harried asked for someone to call the police. Ms. Jordan then picked up a wet floor sign and attempted to hit both Ms. Alexander and Mr. Harried with it. Shortly thereafter, another person took the sign from Ms. Jordan and asked her to leave the building, which she did.

In addition, in response to questions posed by the State in anticipation of the defense's version of events, Ms. Alexander denied kicking off her shoes at any point, denied that Ms. Jordan's conduct was warranted, denied that anyone ever hit Ms. Jordan, and claimed to be following protocol during this incident.

On cross-examination, Ms. Alexander denied that she had left K.J.’s grandmother a voicemail in which she impugned K.J.’s intelligence and called her a "mute." Ms. Alexander admitted that she accused K.J. of lying about putting the phone away. She acknowledged she could not hear what K.J. was telling Ms. Jordan on the phone but told the police that K.J. must have told Ms. Jordan "inflammatory things" that prompted Ms. Jordan to start the fight. Ms. Alexander disputed defense counsel's contention that Ms. Alexander told K.J. that she would not amount to anything in life.

Defense counsel also questioned Ms. Alexander about her telephone conversation with Ms. Jordan. Ms. Alexander denied telling Ms. Jordan that she "had time today[,]" that she told Ms. Jordan to "pull up[,]" or that she gave Ms. Jordan the address of the facility. As to the physical altercation, Ms. Alexander denied that Ms. Jordan calmly entered the room or that she (Ms. Alexander) "hopped up and began cursing at" Ms. Jordan. Ms. Alexander admitted to picking up a fire extinguisher and pointing its hose at Ms. Jordan, but stated that she did so to "defend" herself after Ms. Jordan picked up the wet floor sign.

On redirect, Ms. Alexander stated that she did not incite Ms. Jordan and that neither she nor Mr. Harried hit Ms. Jordan.

Mr. Harried's Testimony

Mr. Harried recounted a similar version of events. During the parent conference, Ms. Jordan "came in and [ ] busted open the door and said, where is the bitch that hung up the phone on me when I was cussing her ... a-s-s out." At this point, he immediately went to the door to separate Ms. Alexander and Ms. Jordan. While blocking the door, he was hit several times by Ms. Jordan and asked for someone to call the police. He...