Thomas v. State , 454 Md. 495 ( 2017 )

Ukeenan Nautica Thomas v. State, Misc. No. 25, September Term 2016. Opinion by
Hotten, J.
CERTIFIED QUESTION OF LAW — VOIR DIRE — MANDATORY QUESTION
— POLICE-WITNESS QUESTION
The Court of Appeals answered the Court of Special Appeals’ reformulated certified
question in the negative, and determined that a trial judge is required to tailor the
occupational bias question, discussed in Moore v. State, 412 Md. 635, 989 A.2d 1150(2010), to the specific occupation of the witnesses anticipated to testify in the case. See
Moore, 412 Md. at 654-55, 989 A.2d at 1161.
Circuit Court for Baltimore County
Case No. 03K14005479
Argued: May 4, 2017 IN THE COURT OF APPEALS
OF MARYLAND
Misc. No. 25
September Term, 2016
__________________________________
UKEENAN NAUTICA THOMAS
v.
STATE OF MARYLAND
__________________________________
Barbera, C.J.,
Greene,
Adkins,
McDonald,
Watts,
Hotten,
Getty,
JJ.
__________________________________
Opinion by Hotten, J.
__________________________________
Filed: July 28, 2017
We consider whether a trial judge may pose a broad occupational bias voir dire
question when the parties requested that the trial judge inquire as to whether the
venirepersons would give undue weight to the testimony of a police-witness, based on the
police witness’ occupation as a police officer.
On September 14, 2014, Ukeenan Nautica Thomas (“Appellant”) 1 invited Timothy
Butler (“Mr. Butler”) to meet him in order to purchase drugs from him. Following that
meeting, Mr. Butler was subsequently robbed, struck in the head with a gun, and his
cellphone, bus pass, and cash were stolen. Mr. Butler’s assailants were subsequently
identified as Appellant and Derrick Johnson (“Mr. Johnson”). Appellant was arrested and
charged with multiple offenses, including robbery with a dangerous and deadly weapon,
use of a handgun in a crime of violence, and conspiracy to commit robbery.
During voir dire, counsel for both parties requested that the trial judge ask the
venirepersons whether they would give undue weight to a police-witness’s testimony based
on his or her occupation, because two police officers and a detective were anticipated to
testify in the case. Rather than propound the police-witness question as requested, the trial
judge posed a lengthy question that was not specifically tailored to the occupation of the
witnesses testifying in Appellant’s case. Appellant was subsequently convicted by a jury
of robbery with a dangerous and deadly weapon, use of a handgun in a crime of violence,
and conspiracy to commit robbery. Appellant was sentenced to forty years’ incarceration,
1
Because the question presented is a certified question from the Court of Special
Appeals, we will refer to Mr. Thomas as “Appellant” rather than “Petitioner” for the
purposes of this opinion.
with all but thirty years suspended, and five years of supervised probation. Appellant
appealed his convictions to the Court of Special Appeals. After canceling oral argument,
the Court of Special Appeals filed a certified question of law with this Court, which we
reformulated to ask whether a broader occupational bias question posed during voir dire
was appropriate in determining whether potential jurors would give undue weight to a
police officer’s testimony, based on his or her position as a police officer, when a more
specific police-witness question was requested by Appellant’s counsel..
For the reasons that follow, we answer the reformulated certified question in the
negative.
BACKGROUND
I. Underlying Criminal Proceedings
Because the issue dispositive of this appeal does not require a detailed recitation of
the facts, we include only a brief summary of the underlying evidence that was established
at trial. The record reflects that on September 14, 2014, Appellant invited Mr. Butler to
meet him in Owings Mills so that Appellant could purchase drugs. After meeting with
Appellant, Mr. Butler was subsequently robbed by multiple individuals who struck Mr.
Butler in the head with a gun, and took his cell phone, bus pass, and cash. Upon
investigation, the police identified Appellant and Mr. Johnson as the individuals who
robbed Mr. Butler.2 The State charged Appellant with: (1) robbery with a dangerous and
2
The record reflects that when Mr. Butler was interviewed by police immediately
after the robbery, he identified one of his attackers by the name “Keenan.” The police
subsequently showed Mr. Butler a photo of Appellant, and Mr. Butler identified the person
(continued . . .)
2
deadly weapon, (2) use of a handgun in a crime of violence, (3) robbery, (4) first-degree
assault, (5) theft of less than $1,000, (6) conspiracy to commit robbery, and (7) conspiracy
to commit robbery with a dangerous and deadly weapon.
On May 21, 2015, following a two-day trial, Appellant was convicted by a jury in
the Circuit Court for Baltimore County of robbery with a dangerous and deadly weapon,
use of a handgun in a crime of violence, and conspiracy to commit robbery. Appellant was
acquitted of the conspiracy to commit armed robbery charge, and the charge of theft of less
than $1,000 was entered nolle prosequi. The remaining charges were merged for
sentencing purposes. Appellant was sentenced to forty years of incarceration with all but
thirty years suspended, and to an additional five years of probation.
II. Voir Dire
Prior to trial, both parties requested that the trial judge ask the venire what we will
refer to as the police-witness question. Appellant’s counsel phrased the police-witness
question in his written request for voir dire as follows:3
(. . . continued)
in the photo as “Keenan.” Mr. Butler also identified Mr. Johnson in a photo array as the
man who hit him with the gun. Mr. Johnson subsequently pled guilty to the armed robbery
of Mr. Butler and was sentenced to fifteen years’ imprisonment with all but three years
suspended and three years’ supervised probation.
3
The State phrased the question as follows:
9. You are instructed that a police officer’s testimony should be considered
by you just as any other evidence in this case, and in evaluating his
credibility, you should use the same guidelines which you apply to the
testimony of any other witnesses.
(continued . . . )
3
If you are selected as a juror in the case you may hear the testimony of one
or more law enforcement officers. Do any of you believe that a law
enforcement officer’s testimony is entitled to greater weight than any other
witness just because he is a law enforcement officer?
Rather than pose the question as provided by Appellant’s counsel, the trial judge instead
engaged in the following monologue:
Another principle of law about which the jury will be instructed is what we
call credibility of witnesses. In all jury trials, whether it’s civil or criminal,
the judge decides issues of law, but the jury decides issues of fact. In that
regard, based on testimony and other admissible evidence, the jury decides
what evidence they find persuasive. My instructions will include some
factors that you may consider in judging witness credibility. Ultimately, if
selected as a juror in this case, it will be for you to decide who you believe.
That is to say, who is right or wrong, who is truthful or untruthful or who is
correct or mistaken. At the conclusion of the case and during deliberations,
the jury will have had the benefit of listening to and observing each witness,
viewing all the other evidence presented and discussing the evidence with
your fellow jurors. Mindful of that principle, are there any prospective jurors
who would automatically give more or less weight to the testimony of any
witness merely because of the witness’ title, profession, education,
occupation or employment? Now, that’s a long question and it’s asked in a
vacuum. To start with, we want jurors who don’t know anything about this
case. But let me see if I can give you an example of what I’m talking about.
If anyone here is a physician, I’m not picking on you. We have two
physicians. And I pick physicians because they’re similarly trained. They
went to grade school. High school. College. Medical school. So, they’re very
– they have similar characteristics. They’re having lunch one day. They walk
out of lunch. They’re walking down the street. They’re chit-chatting, chit-
chatting about whatever doctors chit-chat about and there’s an accident that
happens in front of them. One of the physicians saw it and thought the light
(. . . continued)
In no event should you give any greater or lesser credence to the testimony
of any witness merely because he [or she] is a police officer.
Does any prospective juror feel that he/she cannot follow this instruction, and
would give the testimony of a police officer greater weight than any other
witnesses merely because he/she is a police officer?
* * *
4
was green and the other physician thought the light was red. And if that’s all
you had, and you were asked to make a decision, how would you decide?
Well, most people would say, well, I gotta hear all the facts from everybody.
And that’s kind of the point of this question. So, stated another way, if you
were selected as a juror in this case, would you be able to judge the credibility
of each witness’ testimony based on their testimony, rather than merely
relying on his or her title, profession, education, occupation, or employment?
For example, would any of you automatically give more or less weight to the
testimony of a physician, a clergyman, a firefighter, a police officer,
psychiatrist, social worker, electrician or any other witness merely because
of their title, profession, education, occupation or employment? If so, please
stand.
* * *
None of the venirepersons responded to the question. After the trial judge completed his
questioning, Appellant’s counsel took exception to how the trial judge phrased the police-
witness question and the following exchange ensued:
[APPELLANT’S COUNSEL]: Yes, Your Honor. I’d ask that you give my
number 15[4] as written rather than classify the police with pharmacists
and firemen, none of which are gonna testify. The issue is whether or
not a juror will give more weight particularly to a uniformed police
officer, or person identifying themselves as a police officer, as
opposed to any other witness. So, putting them in a category with 12,
or 5 or 6, other people, I don’t think covers what [Bowie v. State, 324
Md. 1, 595 A.2d 448 (1991)], which is the state that I – case that I
cited intends.
* * *
[THE COURT]: Okay. Well, come in a little closer, [Prosecutor]. What
evidence will be presented by the police in this case? Because I’m,
I’m – I am aware of Judge Watts’ opinion in [Pearson v. State, 437
Md. 350, 86 A.3d 1232 (2014)]. And in Savante (phonetic.),
[Pearson], she said that, that that question doesn’t even have to be
asked unless there’s evidence in the case. And I think I’ve complied
with [Pearson] anyway. But she said that question doesn’t even have
4
Number 15 refers to the voir dire question that Appellant’s counsel submitted to
the trial judge requesting the police-witness question described supra.
5
to be asked unless there is going to be substantial – and I’m using the
term loosely – substantial evidence derived from the police
department. So, what evidence is the, the State gonna introduce in
terms of police officer testimony?
[PROSECUTOR]: There is no confession – no statement from the
[Appellant], so I – I mean, other than the search of the area where they
uncover evidence, other than the issue of them stopping the cab that
the Defendant was in, other than that, – I, I mean, this was typical
follow-up by police officers. But again, I don’t think that there’s going
to be a question of credibility between the other police officers, and
the police (inaudible) to the [Appellant].
[THE COURT]: Okay. Well, [Appellant’s Counsel], I’m, I’m, I’m gonna
decline to ask the question the – specifically the way you presented it.
I think that the Court has fairly covered the, the issues that have been
addressed in [Thomas v. State, 139 Md. App. 188 (2001)], and [Davis
v. State, 333 Md. 27 (1993)] going back, and, and [Pearson]. Quite
frankly, if, if I read [Pearson] correctly, I don’t even have to ask these
people whether they’ve been victims of crime. I do that out of an
abundance of caution, but I don’t think it’s required. So, I think the
Court has fairly covered your questions and I think your objections
are noted for the record.
* * *
After the trial judge ruled on Appellant counsel’s exceptions, the trial judge brought
the venirepersons who had responded affirmatively to the bench to discuss their responses
and then empaneled a jury, which subsequently convicted Appellant of the crimes
discussed, supra.
III. Proceedings in the Court of Special Appeals
Appellant filed a timely notice of appeal of his convictions to the Court of Special
Appeals. The Court of Special Appeals scheduled oral argument for December 6, 2016,
but canceled it that morning. On December 27, 2016, then Chief Judge Krauser of that
6
Court filed a certified question of law to this Court pursuant to Maryland Rule 8-304.5 On
January 19, 2017, we issued an order granting certiorari on the Court’s certified question.
Pursuant to Courts & Judicial Proceedings Article (“Cts. & Jud. Proc.”) §12-604,6 we
rephrase the certified question to ask:7
5
Maryland Rule 8-304 states:
(a) Initiation. At any time before issuance of a mandate, the Court of Special
Appeals or the panel of that Court to which the action has been assigned
may certify a question of law or the entire action to the Court of Appeals.
Upon transmission to the Court of Appeals, a copy of the certification shall
be forwarded to the Chief Judge of the Court of Special Appeals and to the
parties. The Court of Appeals may consider the certification pursuant to
its authority to issue a writ of certiorari on its own motion.
(b) Content. The certification shall briefly describe the action, state the
question of law and the facts on which the question arises, and state the
reason for certification.
(c) Disposition of Certification. The Court of Appeals may refuse the
certification or may issue a writ of certiorari that (1) accepts the
certification as submitted, (2) modifies the questions of law certified, (3)
includes the entire action although only a question of law was certified, or
(4) limits review to only a question of law although the entire action was
certified. The Clerk of the Court of Appeals shall send the order refusing
the certification or the writ of certiorari to the Court of Special Appeals
and to the parties.
(d) Record Extract and Briefs. If the Court of Appeals issues a writ of
certiorari, the filing of a record extract and briefs shall be governed by
[Maryland] Rules 8-501 through 8-511 unless the Court orders otherwise.
6
Cts. & Jud. Proc. §12-604 states “[t]he Court of Appeals of this State may
reformulate a question of law certified to it.”
7
The original certified question posed by the Court of Special Appeals asks:
Did the circuit court err in declining to ask prospective jurors trial counsel’s
proposed voir dire question as to whether prospective jurors would give
(continued . . . )
7
Whether a broader occupational bias question posed during voir dire is
appropriate in determining whether potential jurors would give undue weight
to a police officer’s testimony, based on his or her position as a police officer,
when a more specific police-witness question was requested by Appellant’s
counsel?
For the reasons that follow, we answer the reformulated certified question in the
negative.
STANDARD OF REVIEW
It is well-settled that a trial judge has broad discretion in the conduct of voir dire,
especially regarding the scope and form of the questions propounded, and that he or she
need not make any particular inquiry of the prospective jurors unless that inquiry is directed
toward revealing cause for disqualification. Dingle v. State, 361 Md. 1, 13-14, 759 A.2d
819, 826 (2000). Because trial judges retain wide discretion regarding the voir dire process,
we review a trial judge’s decisions during voir dire under an abuse of discretion standard.
See Pearson v. State, 437 Md. 350, 356, 86 A.3d 1232, 1236 (2014) (quoting Washington
v. State, 425 Md. 306, 314, 40 A.3d 1017, 1021 (2012)).
We have previously held that “an examination of a juror on his [or her] voir dire is
proper as long as it is conducted within the right to discover the juror’s state of mind in
respect to the matter in hand or any collateral matter reasonably liable to unduly influence
(. . . continued)
greater weight to the testimony of a police officer based on the officer’s occupation
and, instead, asked whether the prospective jurors would “give more or less weight
to the testimony of a physician, a clergyman, a firefighter, a police officer,
psychiatrist, social worker, electrician or any other witness merely because of their
title, profession, education, occupation or employment?
8
him [or her].” Langley v. State, 281 Md. 337, 342, 378 A.2d 1338, 1340 (1977) (citations
omitted). We have also made clear, however, that
parties to an action triable before a jury have a right to have questions
propounded to prospective jurors on their voir dire, which are directed to a
specific cause for disqualification, and failure to allow such questions is an
abuse of discretion constituting reversible error.
Moore v. State, 412 Md. 635, 646, 989 A.2d 1150, 1156 (2010) (quoting Langley, 281 Md.
at 341-42, 378 A.2d at 1340). There are two categories of specific cause for
disqualification: “(1) a statute disqualifies a prospective juror; or (2) a ‘collateral matter
[is] reasonably liable to have undue influence over’ a prospective juror.” Pearson, 437
Md. at 357, 86 A.3d at 1236 (quoting Washington, 425 Md. at 313, 40 A.3d at 1021).
In Langley, we determined that the police-witness question is “directed to a specific
cause for disqualification” and is required to be asked by a trial judge if requested because
A juror who states on [voir dire] that he would give more credit to the
testimony of police officers than to other persons has prejudged an issue of
credibility in the case. Regardless of his efforts to be impartial, a part of his
method for resolving controverted issues will be to give greater weight to the
version of the prosecution, largely because of the official status of the
witness.
* * *
As Judge Horney pointed out for the court in Casey v. Roman Catholic Arch.,
217 Md. 595, 607, 143 A.2d 627 [(1958)], ‘a party is entitled to a jury free
of all disqualifying bias or prejudice without exception, and not merely a jury
free of bias or prejudice of a general or abstract nature.’
* * *
Langley, 281 Md. at 348-49, 378 A.2d at 1343-44 (quoting Casey, 217 Md. at 607, 143
A.2d at 632); see also Bowie v. State, 324 Md. 1, 8-9, 595 A.2d 448, 451 (1991) (holding
that Langley is dispositive). Accordingly, if police-witnesses are anticipated to testify in a
9
criminal case, it is an abuse of discretion for a trial judge to fail to propound the police-
witness question when requested by a party to the action. See Langley, 281 Md. at 338,
349, 378 A.2d at 1338, 1344 (holding that it was prejudicial error for the trial judge to have
failed to ask the venire whether “there is anyone here who would give more credit to the
testimony of a police officer over that of a civilian merely because of his status as a police
officer?”).
DISCUSSION
The parties agree that when requested by a party, a trial judge is required to ask the
police-witness question during voir dire. See Bowie, 324 Md. at 8-11, 595 A.2d at 451-52;
Langley, 281 Md. at 348, 378 A.2d at 1343. The parties disagree, however, on whether the
question posed by the trial judge in the instant case was sufficient to satisfy the purpose
and spirit of the question – to identify a juror’s predisposition to give a police officer’s
testimony greater or lesser weight than that of another witness due to his or her position as
a police officer. See Langley, 281 Md. at 348, 378 A.2d at 1343.
Appellant argues that the trial judge posed a lengthy, convoluted inquiry that
consisted of 450 words and was 30 sentences long, which obfuscated the police-witness
question, thereby evading the spirit of the required inquiry and serving no legitimate
purpose. In support of this view, Appellant analogizes the case at bar to our decision in
Wright v. State, 411 Md. 503, 983 A.2d 519 (2009), where we held that the trial court
abused its discretion when it asked the venire seventeen questions in a row before
requesting their individual responses. Wright, 411 Md. at 509-11, 515, 983 A.2d at 522-
24, 526. Appellant also relies on our decision in Dingle, where we determined that a trial
10
judge abused his discretion by asking the venire compound questions that shifted the
responsibility of determining bias from the judge to the venirepersons and deprived the
defendant of an opportunity to challenge jurors for cause. Dingle, 361 Md. at 21, 759 A.2d
at 830. Appellant avers that the rationale underlying our decisions in these two cases was
that potential jurors should not be asked questions during voir dire in an indigestible
fashion. Here, Appellant argues that the trial judge’s question was unduly long, confusing,
and difficult for the venire to follow.
In contrast, the State argues the question posed by the trial judge followed a clear
structure beginning with an explanation of the concept of witness credibility and
occupational bias, then providing an illustration that sought to demonstrate the mechanics
of occupational bias in determining whether to believe a witness, and concluding the
inquiry with the police-witness/occupational bias question. The State avers that because
“police officer” was contained in the question portion of the trial judge’s inquiry, the
question “sufficiently indicated” to the venire what possible bias or prejudice was being
probed. The State contends that the trial judge’s decision to include other occupations in
the inquiry does not mean the venire did not appreciate that they should respond if they
would give the testimony of a police officer more or less weight solely due to his or her
occupation. The State also distinguishes the facts in the present case from Wright by noting
this case only deals with a single topic of inquiry; whereas, Wright addressed the challenge
of comprehending seventeen consecutive voir dire questions. See Wright, 411 Md. at 509-
11, 515, 983 A.2d at 522-24, 526. The State also differentiates Dingle by noting that in
this case the question posed by the trial judge did not seek to shift the bias determination
11
from the trial judge to the prospective jurors, unlike the compound voir dire questions
posed in Dingle. 361 Md. at 21, 759 A.2d at 830.
We have previously described voir dire as “the process by which prospective jurors
are examined to determine whether cause for disqualification exists” and that the
“overarching purpose of voir dire in a criminal case is to ensure a fair and impartial jury.”
Dingle, 361 Md. at 9, 759 A.2d at 823 (citations omitted). In determining whether a “cause
for disqualification[]” exists, we have also held that “the questions should focus on issues
particular to the defendant’s case so that biases directly related to the crime, the witnesses,
or the defendant may be uncovered.” Id. at 10, 759 A.2d at 824; see also Washington, 425
Md. at 313, 40 A.3d at 1021 (quoting same); State v. Shim, 418 Md. 37, 52, 12 A.3d 671,
679 (2011) (observing that “a proposed voir dire question must be aimed at uncovering
biases directly related to the crime, the witnesses, or the defendant.”) (citing Curtin v. State,
393 Md. 593, 903 A.2d 922 (2006) (emphasis in original). We acknowledge that “[v]oir
dire is not a foolproof process, and we do not require perfection in its exercise[,]” but we
do require “a comprehensive, systematic inquiry that is reasonably calculated, in both form
and substance, to elicit all relevant information from prospective jurors.” Wright, 411 Md.
at 514, 983 A.2d at 525. “[T]he standard is whether the questions posed and the procedures
employed have created a reasonable assurance that prejudice would be discovered if
present.” Stewart v. State, 399 Md. 146, 159, 923 A.2d 44, 51-52 (2007) (quoting White
v. State, 374 Md. 232, 242, 821 A.2d 459, 464 (2003)).
As Appellant notes, the trial judge’s inquiry consisted of 450 words and was more
than 30 sentences long, in direct contrast to the requested question submitted by
12
Appellant’s counsel, which was a single, concise sentence comprising of a total of 50
words. The trial judge’s inquiry also stands in stark contrast to the Maryland State Bar
Association’s (“MSBA”) model voir dire question, which contains 22 words, and asks,
“[w]ould you tend to believe or disbelieve the testimony of a law enforcement officer more
than the testimony of any other witness?” MARYLAND STATE BAR ASS’N, MODEL JURY
SELECTION QUESTIONS FOR CRIMINAL TRIALS, 1, 11, http://perma.cc/A8Y7-QJWH.
Although relevant to our inquiry, the length of the trial judge’s question, by itself, is not
dispositive of whether the judge abused his or her discretion. As noted, supra, we give the
trial court broad discretion in determining the scope and the form in which the voir dire
questions are propounded, and the length of an inquiry, alone, does not satisfy the high bar
necessary to show an abuse of discretion. Rather, our review focuses on the substance of
the trial judge’s inquiry, and whether the question posed by the trial judge properly focused
on the “issues particular to [Appellant’s] case” and was “reasonably calculated, in both
form and substance, to elicit” the potential biases the venirepersons may hold regarding
police officer testimony. See Dingle, 361 Md. at 10, 759 A.2d at 824; Wright, 411 Md. at
514, 983 A.2d at 525.
Although Appellant attempts to analogize Wright and Dingle to the case at bar, we
conclude that both cases are factually distinguishable. In Wright, we determined that “[t]he
presentation of a lengthy roster of questions to the venire, without providing the
opportunity to answer each question as it was posed, required each venireperson to
comprehend and retain far too much information to guarantee that the questions were
13
answered properly.” Wright, 411 Md. at 509, 983 A.2d at 522. After quoting the trial
judge’s seventeen-question inquiry, we observed that
the voir dire comprised five and a half minutes of continuous questioning,
without pause, after which each venireperson was called to the bench one at
a time. This process resulted in substantial delay between presentation of the
questions and the answers. Of the twelve jury members ultimately seated,
four approached the bench more than thirty minutes after the voir dire
questions had been read; the last of these approached more than fifty minutes
after the reading.
Id. at 511-12, 983 A.2d at 524. We noted that “[w]hile we have every confidence in our
jurors’ abilities to respond intelligently and effectively to inquiries posed during voir dire,
we are also duty-bound to eliminate any doubt or error in the process, inasmuch as
possible.” Id. at 512, 983 A.2d at 524. Ultimately, we concluded that
it is the multiplicity of the questions that is problematic, not the means by
which the questions were broadcast. The key to an effective voir dire is
allowing venirepersons the meaningful opportunity to digest the individual
questions posed to them and to respond fully to each one while the question
is at the forefront of their minds.
Id. at 514, 983 A.2d at 525. In the present case, rather than considering the “multiplicity
of the questions” asked by the trial judge, we are solely tasked with determining whether
it is appropriate for a trial judge to ask a broader occupational bias question to determine
whether potential jurors would give undue weight to a police officer’s testimony, based on
his or her position as a police officer – a single inquiry. The factual circumstances
underlying our decision in Wright are, therefore, distinguishable from the case at bar.
In Dingle, we examined whether the trial judge abused his discretion in asking the
venire compound questions that required them to reflect on whether their individual biases
would impact their ability to judge the trial fairly before responding to the trial judge’s
14
inquiry. Dingle, 361 Md. at 4-5, 759 A.2d at 820-21. To illustrate the style of the trial
judge’s inquiry, we noted he posed, inter alia, the following question to the venire:
Again, a number of two-part questions, ladies and gentlemen. Only stand if
your answer is yes to both parts of the question. Have you or any family
member or close personal friend ever been a victim of a crime, and if your
answer to that part of the question is yes, would that fact interfere with your
ability to be fair and impartial in this case in which the state alleges that the
defendants have committed a crime?
Id. at 5, 759 A.2d at 821. We concluded that because the trial judge “determines the content
and scope of the questions on voir dire[]” and how voir dire will be conducted, it follows
“that it is the trial judge that must decide whether, and when, cause for disqualification
exists for any particular venire person. That is not a position occupied, or a decision to be
made, by either the venire or the individual venire persons.” Id. at 14-15, 759 A.2d at 826.
We determined that since the trial judge is the focal point of the voir dire process, his or
her “predominant function in determining juror bias involves credibility findings” and that
for voir dire to be meaningful, it “must uncover more than ‘the jurors’ bottom line
conclusions [to broad questions], which do not in themselves reveal automatically
disqualifying biases as to their ability to fairly and accurately decide the case, and, indeed,
which do not elucidate the bases for those conclusions[.]” Id. at 15, 759 A.2d at 826(citations omitted).
We determined that the trial judge in Dingle failed to appreciate that, upon a
challenge, he had the responsibility to decide – based on the circumstances then existing –
“whether any of the venire persons occupying the questioned status or having the
questioned experience should be discharged for cause, or whether ‘a demonstrably strong
15
correlation [exists] between the status [or experience] in question and a mental state that
gives rise to cause for disqualification.’” Id. at 17, 759 A.2d at 828 (citations omitted).
We held that
[b]ecause [the trial judge] did not require an answer to be given to the
question as to the existence of the status or experience unless accompanied
by a statement of partiality, the trial judge was precluded from discharging
his responsibility, i.e. exercising discretion and, at the same time, the
petitioner was denied the opportunity to discover and challenge venire
persons who might be biased.
Id. As the State argues, Appellant is not alleging that the trial judge failed to discharge his
responsibility of assessing venirepersons’ response to the police-witness question for
potential biases, which was the basis for our decision in Dingle. Rather, Appellant is
arguing that the trial judge abused his discretion relative to the manner in which the
question was posed. Thus, our decision in Dingle is also distinguishable from the case at
bar.
The thrust of the State’s argument is that it was not an abuse of discretion for the
trial judge to ask the police-witness question within the broader framework of the
occupational bias question we discussed in Moore. In Moore, we expanded our holding in
Langley, concluding that
it is apparent that the Langley Court, from the outset, understood that,
although it was addressing police officer credibility and, thus, some of the
cases were not directly on point, the underlying issue of prejudgment
encompassed more than police officers, that many more occupations and
categories potentially were implicated.
* * *
The principles prescribed and enunciated by Langley and embodied in its
holding cannot be, as we have seen, so narrowly interpreted or applied to
16
police officers. At its core, the Langley Court’s holding is that it is grounds
for disqualification for a juror to presume that one witness is more credible
than another simply because of that witness’s status or affiliation with the
government.
Moore, 412 Md. at 649-50, 989 A.2d at 1158. We also determined that “Bowie is simply
an explication and application of the standard acknowledged and even enforced in Langley.
In that regard, [Bowie] articulated expressly that the issue suggested by the police witness
question is broader than those witnesses and, therefore, has relevance beyond cases
involving police officers.” Id. at 650-51, 989 A.2d at 1158. We concluded that “[a]t the
heart of the issues presented in Langley, Bowie, and the case at bar is whether it is
appropriate for a juror to give ‘credence’ to a witness simply because of that witness’s
‘occupation,’ or ‘status,’ or ‘category,’ or ‘affiliation.’” Id. at 652, 989 A.2d at 1159(quoting Langley, 281 Md. at 349, 378 A.2d at 1338, 1344). Thus, Moore stands broadly
for the proposition that if a potential juror is likely to give more credibility to a specific
witness based on that witness’s occupation, status, category, or affiliation then, upon
request, the trial judge must ask a voir dire question that seeks to uncover that bias. See id.We reiterated in Moore, however, that for the inquiry requested by a party to be
mandatory,
the questions proposed must relate to uncovering bias that could arise, given
the facts of the case. Accordingly, as a prerequisite to asking the question,
there must be a qualifying witness, one, who, because of occupation or
category, may be favored, or disfavored, simply on the basis on that status or
affiliation. Where, therefore, no police or other official witnesses will be
called by the State, the occupational, or status, question need not be asked.
On the other hand, if the case is one in which one or more police or official
witnesses will be called to testify, the occupational witness question(s) must
be asked, if requested.
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Id. at 654-55, 989 A.2d at 1161. Accordingly, our decision in Moore also stands for the
proposition that the occupational bias question is only mandatory if the trial judge
determines that a specific witness who is testifying in the case could, due to his or her
occupation, status, or affiliation, be favored or disfavored exclusively on the basis of his or
her occupation, status, or affiliation. The inquiry must, therefore, be tailored to the
witnesses who are testifying in the case and their specific occupation, status, or affiliation.
In the case at bar, the parties agree that the only witnesses testifying in this case, for which
the occupational bias question was relevant, were two police officers and one detective.
Thus, the trial judge was required to tailor the occupational bias question specifically to
the witnesses’ occupation as police officers, which he failed to do when he included six
other occupations in his inquiry that were not relevant to the case at bar.
CONCLUSION
In summary, we answer the reformulated certified question in the negative. We
hold that when a party requests that an occupational bias question be asked during voir
dire, including the police-witness question, the trial judge is required to initially determine
whether any witnesses testifying in the case – based on their occupation, status, or
affiliation – may be favored or disfavored on the basis of that witness’s occupation, status
or affiliation, and then propound a voir dire question that is tailored to those specific
occupations, statuses, or affiliations. See Moore, 412 Md. at 654-55, 989 A.2d at 1161.
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THE REFORMULATED CERTIFIED
QUESTION ANSWERED. CASE
REMANDED TO THE COURT OF
SPECIAL APPEALS FOR FURTHER
PROCEEDINGS CONSISTENT
WITH THIS OPINION. COSTS IN
THIS COURT AND IN THE COURT
OF SPECIAL APPEALS TO BE
DIVIDED EQUALLY BETWEEN
THE PARTIES.
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