State v. Shim

• Decision Date: 25 January 2011
• Docket Number: 2010.,Sept. Term,No. 18,18
• Citation: 12 A.3d 671,418 Md. 37
• Parties: STATE of Marylandv.Fabian Andre SHIM.
• Court: Maryland Court of Appeals

418 Md. 37

12 A.3d 671

STATE of Maryland

v.Fabian Andre SHIM.

No. 18

Sept. Term

2010.

Court of Appeals of Maryland.

Jan. 25, 2011.

Jessica V. Carter, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for petitioner.Amy E. Brennan, Asst. Public Defender (Paul B. DeWolfe, Public Defender, Baltimore, MD), on brief, for respondent.Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS and BARBERA, JJ.ADKINS, J.

This case involves two issues regarding the selection and instruction of the jury in a criminal murder trial. First, we must decide whether it is an abuse of discretion for the trial court to refuse to ask whether the venire panel harbored “such strong feelings concerning the violent death of another human being” that they would be “unable to render a fair and impartial verdict based solely on the evidence presented[.]” Second, we must decide whether it is an abuse of discretion for the trial court to give a “flight” instruction to the jury when the evidence only shows that the perpetrator left the crime scene at some point after the murder. After the trial court refused the above question in voir dire, and gave the “flight” instruction, the defendant was convicted. On appeal, the Court of Special Appeals found that the trial court abused its discretion in both instances and reversed the conviction. We granted the State's Petition for a Writ of Certiorari to consider the following questions:

1. Did the Court of Special Appeals erroneously reverse the murder convictions because the trial court declined to ask prospective jurors, during voir dire, if any member of the jury panel had “such strong feelings concerning the violent death of another human being” that the member would be unable to render a fair and impartial verdict?

2. Did the [Court of Special Appeals] erroneously conclude that the trial court abused its discretion in propounding a flight instruction, based on evidence admitted at trial, and, if there was error, was the error harmless?

We shall answer these questions in the negative. We thus affirm the Court of Special Appeals' decision and remand to Circuit Court for a new trial.

FACTS AND LEGAL PROCEEDINGS

Reina Tasha Lynch lived in Prince George's County with her two children. Fabian Andre Shim, the Respondent, is the father of Lynch's daughter. Lynch worked during the day as a school bus driver for Montgomery County Public Schools, and at night as a security guard at a Fed Ex facility in Beltsville, Maryland. Lynch had been seeking child support from Shim, and on November 1, 2006, both attended a pretrial settlement conference with the Maryland Child Support Enforcement Program. At the conference, the Child Support Program calculated Shim's suggested monthly child support obligation to be $590.17 per month. After the conference, Shim told his then-fiancé, with whom he was living, that he was upset and felt that Lynch was “asking for too much money.”

Nine days later, a man in a dark-colored BMW pulled up to the guard shack at the Fed Ex facility around 10:45 p.m., shortly before Lynch's night shift was to begin. Lynch's coworker approached the car and asked him what he was doing. The man, who looked to be between twenty-seven and thirty-three years old, stated that he was “having lunch.” The man drove away shortly thereafter, before Lynch arrived. Lynch was the only security guard working the night shift on November 10. She logged tractor trailers into the facility at 12:01 a.m., 12:41 a.m., and 1:52 a.m. She logged a trailer out of the facility at 2:20 a.m. Shortly after 2:30 a.m., surveillance cameras showed a dark sedan pulling up to the guard shack, and leaving six minutes later. By the time the next truck came to the gate, the trucker got no answer from the guard shack and had to punch in a keycode to enter the facility.

Lynch's coworker came to relieve her at 6:30 a.m. He found the guard shack was locked and got no response from Lynch. At 7:20 a.m., the coworker called their boss and got the code to enter the shack. When he entered, he found Lynch lying on the floor in a pool of blood. Lynch had sustained two shotgun wounds, including one to her head from close range.

On the night Lynch was murdered, Shim got off work at 9:00 p.m. According to his former fiancé's son, Shim went home and changed from his work clothes. He left the house before 10:00 p.m. and did not return until around 3:00 a.m., telling his fiancé that he had worked late. He removed his clothes and placed them into a white plastic bag, saying that he had got something on them at work. He took a shower and then sat in a chair, holding his head and saying he didn't feel right.

The next day, Shim's fiancé learned that Lynch had been killed and mentioned it to Shim. He replied, “[W]hy did that bitch go and do that. Somebody had to kill her.” Later that evening, Shim, angered with his fiancé, told her that if she didn't do what he said, he would kill her “like he killed Tasha.” Shim's fiancé left the house, met with Prince George's County police detectives, and never went back.

Police investigating Lynch's murder impounded two dark-colored, older model BMWs, including a blue BMW 735i, which they recovered on Holly Berry Court, where Shim had been living. Police recovered from the blue BMW a shotgun, a pair of black shoes, six rubber gloves, and identified Shim's fingerprints on the outside of the door and on a radio found inside the left front vehicle pocket. Police were unable to include or exclude Shim's DNA from the shotgun, which contained the genetic material of three unknown contributors. At trial, the owner of the blue BMW testified that he had lent Shim his vehicle so that Shim could do some body work. The owner further testified that he had not left the shotgun or any of the clothing in the car. Another witness, an acquaintance of Shim's, testified that Shim had owned a shotgun, and that Shim had called the witness a few days after the shooting and asked him to remove the shotgun from the BMW. The police arrested Shim and charged him with first degree murder.

Shim's counsel requested twenty-one voir dire questions, including “Question 18,” which read as follows:

Does any member of the jury panel have such strong feelings concerning the violent death of another human being that you would be unable to render a fair and impartial verdict based solely on the evidence presented?

The court declined to ask Question 18, explaining that it was “not related to the overriding purpose and goal of voir dire in this case.”

After the trial, during jury instructions, the Court gave a flight instruction as follows:

A person's flight immediately after the commission of a crime or after being accused of committing a crime is not enough by itself to establish guilt, but it is a fact that may be considered by you as evidence of guilt. Flight under these circumstances may be motivated by a variety of factors, some of which are fully consistent with innocence. You must first decide wether there is evidence of flight. If you decide there is evidence of flight, then you must decide whether this flight shows a consciousness of guilt.

The trial court overruled Shim's counsel's objection to the flight instruction. The jury convicted Shim of first degree murder, and he timely appealed to the Court of Special Appeals.

The intermediate appellate court disagreed with the trial court's rulings with regard to both the voir dire question and the jury instruction. The Court first addressed the trial court's refusal to ask Shim's voir dire question:

In the present case, Question 18 was directly related to the appellant's alleged criminal act. It was also reasonably likely to identify jurors with a bias so strong that it would impair their ability to be impartial. In addition, the trial court did not ask any other questions that adequately covered the matter contained in [the question]. We thus conclude that the trial court abused its discretion in declining to ask Question 18.

With regard to the flight instruction, the Court of Special Appeals examined the standards under which a flight instruction is appropriate, and concluded:

In the case at hand, there was no evidence of flight. The rational inferences to be drawn from the evidence demonstrated only that the shooter left the Fed Ex facility after the shooting. There was no evidence that the shooter fled. The evidence that appellant took steps to avoid being apprehended did not amount to flight. As a result, the trial court abused its discretion in giving the flight instruction.

We granted certiorari to review these two issues. State v. Shim, 412 Md. 689, 990 A.2d 1046 (2010).

DISCUSSION

1. The Proposed Voir Dire Question

We review the trial court's refusal to propound a requested voir dire question under our well-defined standards for voir dire. Voir dire is the “primary mechanism through which the constitutional right to a fair and impartial jury, guaranteed by the Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights, is protected.” Curtin v. State, 393 Md. 593, 600, 903 A.2d 922, 926 (2006). During this jury selection process, parties may disqualify a juror either for cause or by a peremptory strike. In Curtin, we explained the difference between these two challenges:

Peremptory challenges ¹ ... are challenges exercised without a reason stated, without inquiry, ... without being subject to the court's control and for either a real or imagined partiality that is less easily designated or demonstrable than that required for a challenge for cause.... Conversely, cause challenges permit rejection of jurors on a narrowly specified, provable and legally cognizable basis of partiality[.]

Curtin, 393 Md. at 601–602, 903 A.2d at 927–928 (2006) (quotation marks and some citations omitted) (emphasis added).

Maryland recognizes limited voir dire, which means parties can only ask...