Curtin v. State ( 2005 )

Concurring Opinion by

MURPHY, C.J.

While I concur in the judgment, I write separately to offer two suggestions, the first of which is borrowed from Fourth Amendment jurisprudence,¹ and the second of which is based upon Judge Moylan’s opinion for this Court in Davis v. State, 93 Md.App. 89, 611 A.2d 1008 (1992), aff'd, 333 Md. 27, 633 A.2d 867 (1993).

My first suggestion is that the circuit court resolve a “doubtful” and/or “marginal” voir dire question in favor of the party who has requested that it be asked. In the case at bar, asking the question at issue would have resulted in a more efficient use of judicial resources.

My second suggestion is that the circuit court analyze a proposed voir dire question by applying a test that is derived from the (no longer permissible) “compound question” test articulated as follows in Davis, supra, 93 Md.App. at 121-22, 611 A.2d 1008:

[A] compound question probing both A) the existence of a condition and B) the likely consequence of that condition has been deemed legally appropriate and required.

This general rule applies, whatever the particular subject matter may be. The variation consists of nothing more than filling in a blank with respect to Condition A. Condition A, of course, can be anything. “Are you now or have you ever been a member of [the American Red Cross, ... ]?” Component B is a constant. “... and would such condition make it impossible (or difficult) to return a fair and impartial verdict based only upon the evidence in this case?” An affirmative answer to Consequence B is always a ground for disqualification, whatever its cause.

A modification of this test is required because, in Dingle v. State, 361 Md. 1, 759 A.2d 819 (2000), the Court of Appeals abolished the “compound question” rule. The modification, however, merely requires that there be (1) a direct inquiry into the existence of any condition the reasonably likely consequence of which would impair a prospective juror’s ability to return a fair and impartial verdict based only upon the evidence presented in open court, and (2) as to any prospective juror who responds in the affirmative to that inquiry, appropriate “follow up” questions that focus upon the consequences of the particular condition.

An excellent example of this suggested procedure can be found in United States v. Napoleone, 349 F.2d 350 (3d Cir. 1965), which involved a prosecution for false personation of a federal agent. The defendant was a claims investigator who regularly conducted “pretext” interviews of personal injury claimants during which he would lie about his identity and the purpose of the interview. Concerned that the “pretext” interview evidence might prevent one or more jurors from fairly and impartially deciding the issue of whether the defendant actually identified himself as an employee of the federal government, defense counsel requested the following voir dire questions:

1. If the testimony in this case discloses that the defendant, a private investigator, engaged in what are known as “pretext” investigations, in which, acting pursuant to his employer’s instructions, he concealed the true identify of the company in whose behalf the investigation was being made, misleading the person he was interrogating, if necessary, to effectuate the concealment, would you feel that such representation was morally or ethically wrong?

2. [To be asked of those who answered “yes” to Question 1.] Do you feel that such misrepresentation or concealment by the defendant would so prejudice you against him that you could not consider the charges objectively and fairly, giving him the benefit of the presumption that he is innocent?

That request was denied and the defendant was convicted. The United States Court of Appeals for the Third Circuit reversed Napoleone’s conviction, explaining:

Since the crux of the defense was that while the defendant had lied concerning the purpose of his investigation he had not presented himself as [“]an employee of the Veterans Administration^”] he had the right to have prospective jurors questioned as to whether they had such a moral or ethical repugnance toward liars and lying that they could not evaluate his testimony [“]objectively and fairly.[”]

Id. at 354.

I recommend that trial judges apply the above cases to all requested voir dire questions. When presented with a particular voir dire question, the trial judge should ask himself or herself, “does this question probe for a condition that would be likely to impair a juror’s ability to decide this case on the evidence presented?” If the answer to that question is “yes,” the question should be asked.

Had this test been applied in State v. Thomas, 369 Md. 202, 798 A.2d 566 (2002), the circuit court would have concluded that, in a case in which the defendant has been charged with selling drugs to an undercover officer, it is likely that a prospective juror’s attitude about drugs would impair his or her ability to be fair and impartial. Had this test been applied in Sweet v. State, 371 Md. 1, 806 A.2d 265 (2002), the circuit court would have concluded that a defendant charged with the sexual child abuse of his girlfriend’s eleven year old daughter was entitled to a voir dire question that asked the venire, “Do the charges stir up strong emotional feelings in you that would affect your ability to be fair and impartial in this case?” Had this test been applied in Baker v. State, 157 Md.App. 600, 853 A.2d 796 (2004), the circuit court would have concluded that, in an assault case involving the defenses of “self-defense” and “defense of others,” it is likely that a prospective juror’s attitude about handguns would impair his or her ability to be fair and impartial when deciding whether those defenses are available to a defendant who used a handgun to shoot the alleged victim. Had this test been applied in Logan v. State, 164 Md.App. 1, 882 A.2d 330 (2005), No. 2361, September Term, 2003 (filed September 7, 2005), the circuit court would have concluded that, in a murder case in which the defendant has filed a plea of not criminally responsible by reason of insanity, it is likely that a prospective juror’s attitude about the “insanity defense” would impair his or her ability to be fair and impartial.

Applying this test to the case at bar, in which appellant was charged with (1) robbery with a deadly weapon, and (2) use of a handgun during the commission of that robbery, it is unreasonable to hypothesize a prospective juror who could be fair and impartial when deciding whether the appellant was guilty of robbery with a deadly weapon, but who could not be fair and impartial when deciding whether the appellant was guilty of robbery perpetrated by the use of a handgun. Under these circumstances, the voir dire questions that were sufficient to identify prospective jurors who could not fairly and impartially decide the aimed robbery charge were also sufficient to' identify prospective jurors who could not fairly and impartially decide the handgun charge. Appellant was therefore not entitled to a voir dire question asking the venire, “Does anyone have strong feelings concerning the use of handguns that would not allow [him or her] to be fair and impartial?”

1 . In United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965), the United States Supreme Court stated:

Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.