Stewart v. State

• Decision Date: 11 May 2007
• Citation: 399 Md. 146,923 A.2d 44
• Parties: David STEWART v. STATE of Maryland.
• Court: Maryland Court of Appeals

923 A.2d 44

399 Md. 146

David STEWART v. STATE of Maryland.

No. 81, September Term, 2006.

Court of Appeals of Maryland.

May 11, 2007.

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Hal C.B. Clagett, III, Upper Marlboro, for appellant.

Jeremy M. McCoy, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), for appellee.

Argued before BELL, C.J., RAKER, CATHELL, HARRELL, BATTAGLIA, GREENE, WILNER, ALAN M., (Retired, specially assigned), JJ.

RAKER, J.

In this criminal case alleging child abuse and sexual offenses, we must decide whether the trial court erred in declining to ask certain voir dire questions proposed by defense counsel. We shall hold that the trial court did not abuse its discretion in declining to ask the questions submitted by counsel, and we shall affirm.

I.

Appellant, David Stewart, was indicted by the Grand Jury for Prince George's County in a multi-count indictment alleging child abuse, second degree sexual offense, third degree sexual offense, and fourth degree sexual offense. He proceeded to trial before a jury and was convicted of child abuse and second and third degree sexual offense. The court sentenced him to a term of incarceration of twenty years on the child abuse offense and merged the sexual offenses into the child abuse conviction for sentencing purposes. Appellant noted a timely appeal to the Court of Special Appeals, and this Court, on its own initiative, granted certiorari. Stewart v. State, 396 Md. 9, 912 A.2d 646 (2006).

Appellant, a pastor at the Faith in Jesus Christ Ministry in Prince George's County, was charged with sexually abusing "John Doe," a thirteen year old male child and a member of his ministry. At trial, "John Doe" testified that, on one occasion, he went with two other boys to appellant's house where appellant performed fellatio on him. On another occasion, during spring break of 2003, he went to appellant's house with another boy and appellant again performed fellatio on him. "John Doe" testified also that in October 2004, he left the church service and met appellant on the stairwell, where appellant rubbed "John Doe's" penis over his underwear and attempted to expose it when "John Doe's" mother came into the stairwell. Appellant testified that he never had sexual contact with "John Doe."

The single issue in this appeal involves the failure of the Circuit Court to ask certain questions to the venire panel during voir dire that were requested by defense counsel. Defense counsel submitted two voir dire documents — "Defendant's Requested Voir Dire," containing eighteen questions, and "Amended Defendant's Requested Voir Dire," containing fifty-two questions. It appears from the record that defense counsel withdrew the initial voir dire request and substituted the amended version. It is the failure of the trial court to ask the questions on the amended voir dire request that is the subject of this appeal.

The following proposed questions were within appellant's amended voir dire request:

"1. Does any member of the jury panel personally know or have you had any services performed for you by either of the attorneys in this case?

2. Does any member of the jury panel know the Defendant, or have acquaintance with his family?

3. Has any member of the jury panel or family member or close friend ever been accused of a crime? If so, please approach the bench.

At the bench: What was the nature of the crime? Did the crime involve drugs, or guns, or violence? When did it occur? Was (were) the perpetrator(s) apprehended? Do you believe you or your friend or family member were fairly treated by the criminal justice system?

4. Has any member of the jury panel or any member of your family now or previously been a member of any police department or law enforcement agency?

5. Has any member of the jury panel previously appeared as a witness in any criminal case? If so, please approach the bench.

At the bench: What was the nature of the crime? Did the crime involve drugs, or guns, or violence? When did it occur? Was (were) the perpetrator(s) apprehended? Do you believe you or your friend or family member were fairly treated by the criminal justice system?

6. Does anyone have any personal knowledge about the facts of this case, or have you read anything about the case?

7. Does any member of the jury panel know any of the individuals who may be called as witnesses in this case? If so, please approach the bench.

At the bench: Do you know the witness socially, or from work, or otherwise? How long have you known the witness? Would you tend to give either more or less weight to the testimony of this witness, because you know the witness?

8. Does any member of the jury panel draw any inferences of guilt from the mere fact that a person has been indicted for a crime?

9. Does any member of the jury panel have any quarrel with the principle of American Justice that declares all persons to be presumed innocent until proven guilty beyond a reasonable doubt?

10. Would any member of the jury panel be inclined to give more weight and consideration to the arguments of the assistant state's attorney than to those of defense counsel, merely because he or she is employed as an assistant state's attorney?

11. 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?

12. Has any member of the jury panel ever previously served as a juror in a criminal case? If so, please approach the bench.

At the bench: What crimes were involved in the trial? What verdicts were rendered?

13. Does any member of the jury panel have any matters occurring at work or at home that would prevent you from giving this case your full, undivided attention during the trial and deliberations involved?

14. Does any member of the jury panel know of any reasons why they cannot serve on this jury and render a fair and impartial verdict based upon the evidence as you shall hear it? If so, please approach the bench.

15. Is there anything about the facts of this case that would make it difficult for any member of this jury panel to render a fair and impartial decision? If so, please approach the bench.

16. Does any prospective juror belong to any organization that seeks to influence the courts, or public policy? If so, please approach the bench.

At the bench: To what organizations do you belong, that seek to influence the courts or public policy?

17. Has any prospective juror or any member of your immediate family ever been employed by or associated with any municipal, state, or federal police force, law enforcement agency, prosecutor's office, public defender's office, or other law office of any type?

18. Does any member of the jury panel have such strong feelings regarding violations of the narcotics laws that it would be difficult for you to fairly and impartially weigh the facts at a trial where narcotics violations have been alleged?¹

19. Have you had any job that involved working with infants or young children?

20. Does anyone or a close family member baby-sit for children?

21. Does anyone or a close family member baby-sit for children?

22. Who has a child, or is close to a child who is about the age of the complainant in this case?

23. Has your contact with children ever involved discussing sexual matters or allegations of sexual abuse?

24. Has child development been an area of interest to you?

25. Have you taken courses in child development?

26. Have you read any books, watched, or attended programs on the subject? Describe them, please.

27. Does anyone feel that the presumption of innocence or burden of proof should be higher or lower because this is a case involving child sexual abuse (or rape)?

28. Does anyone have experience through courses or work with sexual abnormalities?

29. Will anyone here have any difficulty in sitting and listening to testimony from a young child or young woman concerning matters of a graphic sexual nature?

30. What do you think should happen to people accused of molesting children?

31. Will anyone here have difficulty sitting and listening to testimony of a graphic and sexual nature and discussing it with eleven strangers?

32. Does anyone here have any difficulty with my asking questions concerning graphic sexual acts to the complaining witness or other witnesses?

33. What is it about the topic of this sexual assault case that you feel might make it difficult for you to listen to the testimony?

34. Do you feel that difficulty might make it a problem for you to discuss some of the issues in this case?

35. Do you feel because of that difficulty this might not be the case for you?

36. Has anyone here been the victim of sexual abuse or have a close friend or family member who has?

37. Do you know anyone accused of sexual abuse allegations either officially or informally?

38. Do you know anyone who has ever made a false allegation of sexual or physical abuse?

39. Has anyone here ever reported a case of possible sexual abuse?

40. How many of you believe children always tell the truth?

41. Has anyone here ever had occasion to evaluate the truthfulness of someone's story?

42. Do you believe children are more or less honest than adults?

43. Would you automatically believe an adult over a child or a child over an adult who testifies?

44. Do you have any difficulty being asked to judge the credibility and honesty of a witness? How about a witness who may be very emotional in providing that testimony?

45. Do you feel just because a child or adult testifies about sexual assault that it must necessarily be true or untrue?

46. Do you believe that a witness is more or less honest because that witness may be emotional when providing his or her testimony?

47. Does anyone have feelings about how a child should be interviewed or questioned about sexual abuse?

48. Has anyone here ever had experience with children who have been influenced by adults?

49. Is there anyone here who believes that a child could

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