239 A.3d 741
Md. Ct. Spec. App.2020Background
- Foster was charged with DUI, DWI, driving without a license, and other traffic offenses; he demanded a jury trial in Anne Arundel County.
- Defense submitted 22 proposed voir dire questions, including one asking whether any veniremember could not follow an instruction not to consider a defendant’s exercise of the Fifth Amendment right not to testify as evidence of guilt.
- The circuit court declined to ask that question (but did ask other requested questions); defense counsel objected at the time of the refusal per Md. Rule 4-323(c).
- At the conclusion of jury selection, both parties indicated unqualified acceptance of the empaneled jury; the jury acquitted on DUI/DWI but convicted Foster of driving without a license; Foster appealed.
- While the appeal was pending, the Court of Appeals decided Kazadi v. State, holding that a trial court must ask, on request, whether jurors can follow instructions on presumption of innocence, burden of proof, and the defendant’s right not to testify.
- The Court of Special Appeals held that Foster preserved his objection despite accepting the jury, reversed the conviction, and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Foster preserved his objection to the court’s refusal to ask the requested voir dire question about not considering a defendant’s silence, despite later unqualified acceptance of the jury panel | The State: Foster waived the claim by unqualifiedly accepting the empaneled jury at the close of selection | Foster: He preserved the claim by objecting when the court refused the question (Rule 4-323(c)); under Stringfellow/Marquardt, refusal-to-ask objections are not waived by later acceptance | The court held Foster preserved the objection; followed Stringfellow and Marquardt and reversed and remanded |
Key Cases Cited
- Kazadi v. State, 467 Md. 1 (2020) (Court of Appeals: trial court must ask, on request, whether jurors can follow instructions on presumption of innocence, burden of proof, and right not to testify)
- State v. Stringfellow, 425 Md. 461 (2012) (distinguishes objections waived by unqualified acceptance of a jury from those that are merely incidental; refusal-to-ask defense voir dire preserved)
- Marquardt v. State, 164 Md. App. 95 (2005) (objection to refusal to propound defense voir dire is preserved by making the court aware of the requested action at the time)
- Gilchrist v. State, 340 Md. 606 (1995) (discusses waiver of voir dire objections by unqualified acceptance of jury panel)
- Agostini v. Felton, 521 U.S. 203 (1997) (lower courts must follow directly controlling higher-court precedent)