Sweet v. State

• Decision Date: 30 August 2002
• Docket Number: No. 82,82
• Citation: 806 A.2d 265,371 Md. 1
• Parties: Christopher SWEET v. STATE of Maryland.
• Court: Maryland Court of Appeals

806 A.2d 265

371 Md. 1

Christopher SWEET v.STATE of Maryland.

No. 82, Sept. Term, 2001.

Court of Appeals of Maryland.

August 30, 2002.

Margaret L. Lanier, Asst. Public Defender(Stephen E. Harris, Public Defender, and William E. Nolan, Asst. Public Defender, on brief) Baltimore, for petitioner.

Diane E. Keller, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. of Maryland, on brief) Baltimore, for respondent.

Argued before BELL, C.J., ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ.

RAKER, J.

Christopher Sweet, petitioner, was convicted in the Circuit Court for Montgomery County of second degree assault and third degree sexual offense against a minor.The court ordered petitioner to register as a sexually violent predator on the basis of a prior sexually based offense.We granted certiorari primarily to decide whether, based upon Apprendi v. New Jersey,530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435(2000), due process requires that a jury determine the existence of the statutory factual condition precedent beyond a reasonable doubt before an offender may be required to register as a sexually violent predator pursuant to Maryland Code(1957, 1996 Repl.Vol., 2000 Supp.)Article 27, § 792.¹We also granted certiorari to determine whether the trial court erred in failing to make further inquiry of a juror that was arguably equivocal in announcing her verdict² and whether the trial court erred in refusing to pose a voir dire question requested by petitioner.

We shall hold that Apprendi does not apply to registration requirements under Maryland's Registration of Offenders statute.We shall hold further, based upon State v. Thomas,369 Md. 202, 798 A.2d 566(2002), that the trial court abused its discretion in failing to pose petitioner's requested voir dire question relating to the crimes with which he was charged because such question was reasonably likely to expose potentially disqualifying juror bias.

I.

According to the testimony of the victim, Laquisha Franklin, an eleven-year-old girl, one day in the summer of 1999, her mother and a family friend, named Annie Smith, went shopping and left her home alone with petitioner, Ms. Smith's boyfriend.Petitioner and Laquisha sat on the floor playing a video game, with Laquisha sitting between petitioner's legs.Laquisha testified that petitioner commented on the size of her breasts.She testified that she"scooted" and petitioner"scooted" after her and that she felt his "private part ... bump" against her "butt" on two occasions.Petitioner told Laquisha not to tell anyone what had happened and threatened her with retaliation if she did so.Laquisha did not mention the incident to her mother until a few months later.

Laquisha's mother testified that, when Laquisha informed her of the incident, she notified Child Protective Services.A social worker with Child Protective Services testified that she interviewed Laquisha on September 23, 1999, and Laquisha told her about the incident.

Two police officers testified that they arrested petitioner on September 30, 1999.They testified that petitioner acknowledged that he noticed that Laquisha's breasts were growing and that he advised her that she should be careful around boys.They testified that petitioner also acknowledged that, while he was sitting on the floor, Laquisha's buttocks came in contact with his erect penis.

Petitioner was convicted by a jury sitting in the Circuit Court for Montgomery County of second degree assault and third degree sexual offense.After the verdict was rendered, petitioner requested, pursuant to Maryland Rule 4-327(e), that the jury be polled.After the jury was polled, the court excused the jurors, but asked them to assemble and wait in the lobby for a few minutes before departing.Defense counsel then approached the bench and made a motion to have the verdict stricken, proffering that one of the jurors paused and shook her head laterally while verbally responding affirmatively to her assent to the verdict.The trial court denied petitioner's motion, expressing its unwillingness to look beyond the juror's clear verbal response to evaluate her body language.

The Circuit Court sentenced petitioner to seven years incarceration on each count, to be served concurrently.The court also ordered petitioner, who had a prior conviction for a third degree sexual offense against a child, to register as a sexually violent predator pursuant to § 792, concluding that petitioner was a sexually violent predator.The trial court made no factual findings regarding whether petitioner was at risk for committing a future sexually violent offense.The judge merely stated that "with respect to the defendant in this case, Mr. Sweet, would qualify as one who has to comply with the violence [sic] sex offender registration."

The Court of Special Appeals affirmed, holding, inter alia, that Apprendi was not applicable, that the statute does not require a finding that the defendant is likely to re-offend, that the trial court made no error with respect to the voir dire, and that there was no defect in the taking of the jury verdict.

II.Sexually Violent Predator Registration and Community Notification³

Section 792 defines a "sexually violent predator" as an individual who is "convicted of a second or subsequent sexually violent offense" and has "been determined... to be at risk of committing a subsequent sexually violent offense."Section 792(a)(12).Section 792(b) sets forth the procedure for determining if a person is a sexually violent predator, and provides as follows:

"(b)Determination; procedure.—... if an individual is convicted of a second or subsequent sexually violent offense, the State's Attorney may request the court to determine before sentencing whether the individual is a sexually violent predator.

(2) If the State's Attorney makes a request..., the court shall determine before or at sentencing whether the individual is a sexually violent predator.

(3) In making [the] determination ..., the court shall consider:

(i) Any evidence that the court considers appropriate to the determination of whether the individual is a sexually violent predator, including the presentencing investigation and sexually violent offender's inmate record;

(ii)Any evidence introduced by the individual convicted; and

(iii)At the request of the State's Attorney, any evidence presented by a victim of the sexually violent offense...."

§ 792(b).

Under the statutory framework, classification as a sexually violent predator requires the trial court to engage in a two-step analysis: first, the court must determine if the defendant has committed more than one "sexually violent offense," as defined in § 792(a)(11); second, the court must determine whether the person is at risk for committing additional sexually violent offenses.See§ 792(a)(12);Graves,364 Md. at 340, 772 A.2d at 1233.The finding that a defendant qualifies as a sexually violent predator subjects him or her to the registration and notification requirements of the statute at the time of release.See§ 792(a)(7), (c).The registrant must provide the supervising authority with a signed statement that includes his or her name, address, place of employment, Social Security number, and a description and location of the qualifying criminal conduct.See§ 792(d)(1).As a sexually violent predator, petitioner was required to register every ninety days for a period of ten years.See§ 792(d)(4).Section 792 permits the Department of Public Safety and Correctional Services to post on the Internet a current listing of each registrant's name, offense, and other identifying information.See§ 792(j)(6).In the time period since the casesub judice was argued before this Court, the Department has begun to post registry information on the Internet.

Petitioner argues that the sexual predator registration statute is a punitive statute that imposed an additional penalty upon him and that, therefore, based upon Apprendi, due process requires that future risk of re-offending be proven to a jury beyond a reasonable doubt.Petitioner argues that requiring registration as a sexually violent predator, pursuant to § 792, imposes an additional burden, which has the effect of increasing his sentence.He points to the legislative history of § 792, along with the burden and stigma of registration, maintaining that it demonstrates that it constitutes additional punishment.Petitioner argues, in the alternative, that even if a jury finding is not required under Apprendi,petitioner was entitled to have the trial court make explicit factual findings regarding the conditions precedent to registration on the record below.Petitioner concedes his current and prior convictions, but argues that the trial court made no finding regarding the risk of committing a future sexually violent offense, as required by § 792(a)(12).Petitioner further argues that the trial court erred because the State put on no evidence regarding petitioner's potential future conduct and that evidence of petitioner's prior record, standing alone, cannot justify a finding of future risk.

Petitioner's Apprendi challenge to his conviction under the sexual predator registration statute was essentially considered, albeit in a different context, and rejected by this Court in Young v. State,370 Md. 686, 806 A.2d 233, (2002).In that case, Young challenged the imposition of sexual offender registration as a condition of his probation, relying, like petitioner, on Apprendi to argue that registration was a punishment that could not be imposed absent a jury determination beyond a reasonable doubt of the predicate facts necessary for its imposition.We rejected that challenge, holding that registration under § 792 did not constitute punishment in the constitutional sense.Seeid. at 692, 806 A.2d at 236.We also held that the factual findings predicate to the imposition of registration did not expose...