White v. State, 17

• Decision Date: 15 April 2003
• Docket Number: No. 17,17
• Citation: 821 A.2d 459,374 Md. 199
• Parties: Donald Antonio WHITE, Jr. v. STATE of Maryland.
• Court: Maryland Court of Appeals

821 A.2d 459

374 Md. 199

Donald Antonio WHITE, Jr. v. STATE of Maryland.

No. 17, Sept. Term, 2002.

Court of Appeals of Maryland.

April 15, 2003.

Geraldine K. Sweeney, Asst. Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for petitioner/cross-respondent.

Steven L. Holcomb, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. of Maryland, on brief), Baltimore, for respondent/cross-petitioner. Argued before BELL, C.J., ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ.

RAKER, J.

We granted certiorari in this case to decide two questions: whether the Court of Special Appeals should have applied Dingle v. State, 361 Md. 1, 759 A.2d 819 (2000), in deciding whether the trial court erred in the voir dire examination of the jury venire, and whether petitioner's statement was inadmissible in evidence because the police officers interrogated him in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).¹ The Court of Special Appeals, in an unreported opinion, resolved both issues in favor of the State, thus, affirming the petitioner's conviction. We shall affirm.

I.

On February 7, 2000, at J. Brown Jewelers in Baltimore County, petitioner and three other men participated in an armed robbery. An off-duty Baltimore County police officer, Bruce Prothero, was working as a security guard at the store and was shot and killed by one of the robbers. Petitioner was charged by the Grand Jury for Baltimore County with first degree murder, armed robbery, first degree assault and use of a handgun in the commission of a felony. The jury convicted him of first degree murder, armed robbery and the handgun violation. The court sentenced him to life without parole for the felony murder and a term of twenty years concurrent incarceration on the handgun violation.

The Circuit Court began jury selection on August 22 and concluded on August 23, 2000. The court first conducted general voir dire of the entire panel, followed by individual voir dire of each venire person at the bench. Four voir dire questions, in compound form, were asked by the court in the general voir dire. The questions were as follows:

"Is there any prospective juror, or a relative of a prospective juror who has ever been employed in any fashion at any time by any type of law enforcement agency, either civilian or military, and because of that employment you believe that you could not render a fair and impartial verdict in this case? If your answer is yes, please stand now and give your juror call-in number only.

"Has any member of this jury panel ever served as a juror before either as a grand juror or a petit juror and, if so, that would render you incapable of making a fair and impartial verdict in this case, if you were selected. Please stand now if your answer is yes and give your juror call-in number only.

"Is there any prospective juror who has a relative, or you, yourself, who are presently or who formerly worked either as an attorney, a law clerk, a paralegal or attend a school relating the field of law and because of that you believe you could not render a fair and impartial verdict in this case, if you were selected? If your answer is yes, please stand now and give your juror call-in number only. "Is there any prospective juror who has any connection with the Maryland Crime Coalition, or other advocacy group or lobbying group for victim rights or offender punishment, specifically, handgun control, rape crisis counseling, victims rights organizations, for example, the Stephanie Roper Committee, child abuse advocates, spousal abuse, Mothers Against Drunk Driving, Students Against Drunk Driving and, because of your participation with such an organization, you believe you could not render a fair and impartial verdict in this case, if you were selected? If your answer is yes, please stand now and give your juror call-in number only."

Petitioner objected to the compound questions and asked the court to require the prospective juror to answer separately each part of the question. The court refused.

Following the general voir dire, the trial court conducted individual voir dire examination of each member of the venire panel. Over the next two days, the court questioned each prospective juror at the bench. The case had generated a great deal of media attention, and during the individual voir dire at the bench, the court's inquiry was directed specifically toward pre-trial publicity, the general question as to whether the prospective juror could be fair and impartial, issues generated by the general voir dire and any follow-up questions counsel requested the court to ask of the jurors.

The jury returned its verdict on August 24, 2000, prior to this Court's decision in Dingle, which was filed on September 15, 2000. The Circuit Court imposed sentence after the filing of that decision, however, on September 20, 2000.

Petitioner noted a timely appeal to the Court of Special Appeals. In an unreported opinion, the Court of Special Appeals affirmed, holding that Dingle v. State did not control this case for two reasons: First, that the individual voir dire conducted by the trial court insured an impartial jury, and second, that Dingle should not be applied retroactively. This Court granted petitioner's Petition for Writ of Certiorari. White v. State, 369 Md. 179, 798 A.2d 552 (2002).

II.

In Dingle, this Court held that the form of the voir dire inquiry conducted by the trial judge prevented the court from impaneling a fair and impartial jury. We reasoned that "a voir dire inquiry in which a venire person is required to respond only if his or her answer is in the affirmative to both parts of a question directed at discovering the venire persons' experiences and associations and their effect on that venire person's qualification to serve as a juror, and producing information only about those who respond ... allows, if not requires, the individual venire person to decide his or her ability to be fair and impartial." Dingle, 361 Md. at 21, 759 A.2d at 830. We concluded that "[w]ithout information bearing on the relevant experiences or associations of the affected individual venire persons who were not required to respond, the court simply does not have the ability, and, therefore, is unable to evaluate whether such persons are capable of conducting themselves impartially." Id., 759 A.2d at 830.

Petitioner argues that the two-part questions used by the trial judge in this case are virtually identical to the questions condemned by this Court in Dingle. He maintains that where defense counsel made the same objections to the same voir dire questions as in Dingle and where this case had not been finally decided on direct appeal at the time Dingle was decided, the rationale of Dingle should be applied and this case should be reversed.

The State's argument is two-fold. The first argument is that the Dingle decision does not apply to cases pending on direct review. The State next argues that the individual voir dire conducted by the trial judge was distinguishable from the general voir dire conducted in Dingle and that petitioner was not denied his right to a trial before a fair and impartial jury. We agree with the State and the Court of Special Appeals that the individual voir dire conducted by the trial judge, along with the general voir dire conducted initially, satisfied the obligation and responsibility of the trial judge to ensure that petitioner was tried by a fair and impartial jury. Because we find the voir dire process in this case did not violate the holding of Dingle, it is unnecessary for this Court to determine the retroactive effect of our decision in that case and we decline to do so.

The Court of Special Appeals summarized the results of the voir dire process in the case sub judice:

"Judge Howe conducted an individual voir dire of each prospective juror to determine his or her ability to be fair and impartial. Judge Howe's individual voir dire included those prospective jurors who answered affirmatively to one of the general questions at issue. Except for three jurors, every prospective juror who answered affirmatively to a general question was either stricken for cause or not impaneled. Of the three who were not stricken, one had an uncle who was a North Carolina police officer, one had a brother who was a Maryland State Trooper stationed on the Eastern Shore, and one was a law clerk to a Maryland Circuit Court Judge. Each of these three jurors, who were deemed qualified, was extensively questioned during the individual voir dire about his or her ability to be fair and impartial. Each answered that he/she could be fair and impartial, neither counsel moved to strike them for cause, and Judge Howe deemed them qualified to serve as jurors. None of the three served on the actual jury. After making individual inquiry about the media exposure that each prospective juror had received, Judge Howe concluded her individual questioning by asking each juror if he or she could be fair and impartial. On August 22nd, of the sixty-five prospective jurors, twenty-five were struck for cause. On August 23rd, of the sixty-five prospective jurors, eighteen were struck for cause."

The Court of Special Appeals held that the voir dire conducted by the trial judge "was a long and strenuous process that resulted in the selection of a fair and impartial jury." We agree.

"Voir dire plays a critical function in assuring the criminal defendant that his Sixth Amendment right to an impartial jury will be honored." Rosales-Lopez v. United States, 451 U.S. 182, 188, 101 S.Ct. 1629, 1634, 68 L.Ed.2d 22 (1981). Without adequate voir dire, the trial judge is unable to fulfill his or her responsibility to eliminate those prospective jurors who will be unable to perform their duty impartially. See Connors v. United States, 158 U.S. 408, 413, 15 S.Ct. 951, 953, 39 L.Ed. 1033 (1895)

. The judge, in exercising his or her...