*1 D. Sean FOWLKES Maryland. STATE Term, 1302, Sept. No. Maryland. Appeals Special
Court 30, 1997. Oct. *3 Bradford Asst. Peabody, C. Defender E. (Stephen Public Harris, Defender, brief), Baltimore, Public on appel- for lant. Keller, (J. Curran, Atty. Jr.,
Diane E. Asst. Joseph General Atty. General and Patricia Jessamy, Atty. State’s for Balti- City, brief), Baltimore, more for appellee. EYLER,
Argued JJ., before WENNER and and ROBERT FISCHER, (retired), F. Judge Specially Assigned.
EYLER, Judge. Fowlkes, Appellant, Sean was convicted aby jury in the Circuit Court Baltimore City carrying of assault and *4 handgun. He was sentenced to twenty consecutive terms of years, respectively. and three appeal, On appellant presents following questions: us with the I. Did the trial in refusing court abuse its discretion
voir dire jury panel the for the paraplegic, teenaged, gun innocent female victim of violence? extensive, II. Did in the trial court err admitting unduly prejudicial concerning evidence the physical victim’s suffering, disabilities and after the injury? negative, in the first appellant’s We will answer of the judgments and affirm question, reach second court. circuit
FACTS 1994, Marquites “Christian” March p.m., on 30 At about cousin, Hinton, their Williams, and two Dasha her Winder, just friends, had left and Tameka Harrison Shanta in Baltimore walking along Chester Street were store and of the intersection Chester they approached As City. Streets, begin car and get saw a man out they Lafayette on the standing men young some who arguing with one of the men on recognized and Dasha corner. Christian as neighborhood known in the who is appellant, the corner shooting, and a began someone During argument, “Swo.” by stray bullet. was struck gun battle ensued. Christian incident, police recovered seven investigating the gun of the battle. Five of the casings in the area spent bullet fired .32 have been same casings were determined automatic, casings two were determined caliber .380 automatic. Broken auto- been fired from a caliber have described glass found in the area where witnesses mobile was man out of the car. seeing get all Christian shooting agreed to the that The witnesses involved in an victim a bullet meant someone innocent however, seeing argument; reported some witnesses dif- that as she shooting. Christian testified people ferent away had in the car walk watched the man who been the other men shooting,” “started that appellant, appellant Hinton, shooting. Dasha one of the on the corner were not Christian, that she saw girls walking three testified shooting at the step out into street start appellant appellant that who had been the car. Dasha estimated man Harrison, Shanta who was fourteen shot two or three times. trial, man who had she was sure the the time testified shots, not see whether been the car fired but did Winder, shooting. in the Tameka engaged on the corner men shooting, at the time of the testified who was seventeen *5 after the man who had been in the car told the on men corner he was kill going they them all if were there when he back, got the shooting began. During examination, direct Tameka testified that both the man who had been in the car corner, men on the including appellant, started shoot- ing. cross-examination, On she said she was not positive she examination, appellant saw shoot. re-direct On Tameka con- firmed that prior to trial she had identified appellant as a shooter. Harry
The defense called a Morgan, resident of the area occurred, where the shooting who testified that upon hearing gun shots he looked a up standing saw man a outside car a shooting gun, the same man by identified other witnesses as having exited from car. he Although appellant knows neighborhood and he saw the group young men corner, standing Harry he Morgan said did not see appellant that group. Appellant testified on his own behalf and stated he walking was towards the corner when he saw the man described other witnesses as having exited from a car engaged Rollo, a fist fight an acquaintance. The man fighting with Rollo then everyone threatened to “kill on the corner” and started shooting. Appellant testified he shot, never fired a nor did he have a with him. No gun one known as “Rollo” testified at trial.
Christian shot in the back as ran she escape gun violence. initially She was treated University Hospital, where she remained for three months. Later she was trans- ferred to Mount Washington Pediatric Hospital, where she remained for months five before returning to live with her grandmother. No else one was wounded in gun fight.
In August appellant was arrested in connection with shooting. His first trial ended in a mistrial due to a severe snow Appellant storm. by jury was later convicted assault of wearing but handgun, found not guilty remaining charges. appellant After was sentenced to term assault, of twenty years term consecutive of three years handgun violation, for the he noted this appeal.
I. *6 discretion its court abused first contends Appellant ability as its panel the voir dire of failing inquire for being influenced without a fair verdict render The State Christian, gun violence. an innocent victim for our preserved not properly that this issue was maintains review. of the Issue
Preservation
State,
606,
State,
v.
340 Md.
Gilchrist
According to the
(1995),
counsel said
because defense
dispositive
A.2d 876
667
his
satisfactory,
again noting
without
was
panel
chosen
Gilchrist,
sys
counsel
defense
disagree.
In
objection. We
challenges to eliminate white
tematically
preemptory
used his
the State.
challenged by
jury.
from the
This was
persons
the entire
the trial
excused
conducting
inquiry,
an
After
from which a new
panel
in a
venire
brought
new
panel and
that
Appeals
held
appeal,
Court
jury was selected. On
prospective
exclusion of
did not waive his
defense counsel
he
responding when asked
panel by
on the first
jurors
Kentucky,
that Batson v.
panel,
of the second
approved
(1986),
not
79,
1712,
69
was
90 L.Ed.2d
476
106 S.Ct.
U.S.
618,
Id.
selected,’ we have taken the position that the objecting party’s
‘approval
ultimately
selected ... did
explic
not
itly or implicitly
previously
[objection,
waive his
...
asserted
”
objection
preserved
Id.
appellate
his]
review.’
State,
618,
v.
Here,
objected
defense counsel
to the trial court’s failure to
dire,
ask a particular question during voir
not to the ultimate
composition
jury. Therefore,
of the
did
counsel
objection
waive the
by approving
selected. Gil-
christ,
340 Md. at
A.2d
Ingoglia
Md.App.
(1995),
The trial tive jurors: religious any reason any any member who
Is there person— cannot cannot other reason whatsoever case, preju- verdict, religious, decide a a fair cannot reach whatsoever, could not dice, you [sic] other reason *8 verdict, jury of this and reach render sit as a member the evidence this impartial solely upon trial based fair and nothing in and else? you hear this courtroom [sic] and by following question: statement was followed This impartial- and fairly this case must consider decide “[Y]ou prejudice as duty You to this without bias ly. perform are swayed by sympathy, You any party. should be Is there public That’s the law. opinion. There was no juror obey the law?” who cannot response. affirmative earlier,
As we said defense counsel asked the presiding judge inquire if the venire it would be able to verdict, fair being swayed by deliver a without for sympathy victim, a teenager who was rendered paraplegic and permanently confined to a gun wheelchair because of violence.2 request, As to this the following ensued: STATE: asking you other words what Counsel is if sympathy. Everybody have in this room has sympathy for paraplegic they have to decide based on what hear in they the courtroom.
$ [*] $ $ THE COURT: I’ve never asked that question before and
I’ve had in quadriplegics [sic] beds before the my gives fear now, is it fair notice to the jury say they them, may sympathy have for but telling they ought them this, to have for legitimate thing that’s do far deciding so this case is concerned? No, sir,
DEFENSE: legitimate, don’t believe it’s at all. Sympathy—
[*] [*] v [*] THE COURT: There is an you instruction that can’t decide
this case fear upon based and sympathy. don’t want to highlight [your this and I request] think would be too much of a highlight. There is an instruction in civil as you well as criminal saying instructions must decide this fear, case without without sympathy.
[*] [*] [*] [*] I’ll tell the jury instruction impartiality number perform
considerations---- You are to duty without question proposed by 2. We note defense counsel was far from clear and was not included in the proposed defense counsel’s initial voir was, however, prosecutor, dire. Since it made clear it has been Moreover, preserved obviously our review. the trial under- proposed question stood the and denied it.
583 not be You should any party. as to bias opinion or public sympathy, prejudice swayed by the law. that’s ^
^ ^ ^ required I think it’s So, it don’t give because don’t wish so good harm than I think it would do more find. that position State’s
It counsel’s in judge, denying the trial required, and of his discretion. permissible scope acted within request, the narrow issue respect with the State with agree We below, general should judges explained but as presented, to the of the case summary of the nature provide brief ly cer questions. voir Under asking specific dire before circumstances, the nature a reference to may include tain any injury of sustained. (1996), State, 33 671 A.2d 341 Md. Boyd Karwacki, Appeals, reviewed writing for the Court of
Judge
process
the voir dire
requirements
the evolution
to ascertain
of voir dire is
Maryland.
purpose
The
at
disqualification.
for
Id.
existence
cause
propound
the questions
dire and the form of
scope
The
voir
Id.
judge.
of the trial
generally rest within the discretion
ed
mandatory ques
The
arena of
Applying legal the above principles, we conclude that the requested voir dire discretionary and not manda- (2) tory and that the trial court did not abuse its discretion. latter, respect With nothing to there is in the case before support us to holding a that the trial court abused its discre- tion, injury other than the existence of a serious young to a person, which, our opinion, in is insufficient.
The purpose voir dire is to ferret out bias or prior entry conceived to into the courtroom that juror prevent fairly would and impartially deciding the case based on the in presented evidence the courtroom. The appellate courts of rightfully this State have that a presumed racial, ethnic, person with or gender bias cannot render such a but, view, fair impartial our verdict sympathy falls into category. question, different The to a respect specific bias, exist, is whether the If bias exists. determined to a trial judge may juror excuse a prospective even if the person purports contrast, to be able to render fair verdict. In we expect normal people experience sympathy, ques to and the tion in that person instance is whether the unduly will be swayed by words, In sympathy. other is expected to decide a case without it prejudice; expected bias is not to do so expected without but to sympathy follow the court’s cases, instruction that it not unduly swayed be it. In most it be prospective juror would difficult for a to degree know the to feelings which be would aroused until the case, are factors that every there presented. evidence judges To trial feelings require of sympathy. evoke may relating expand facts voir dire to all such would questions ask in this required State. beyond traditionally that are rou- generally, judges and civil trial In criminal cases in deciding whether to upon called to exercise discretion tinely value but which also probative admit evidence has some feelings sympathy. natural We propensity has a arouse sound rely performing trial courts exercise discretion a fair balancing thereby impartial test and ensure litigants. case, specific concern of counsel was In this juror may The concern have been that a unclear. *11 likely to believe a swayed by would be more unduly sympathy that such a injured person may or it have been seriously anyone— juror likely more to hold would be prospective In responsible injury. for the specifically, the defendant — fact, tied a specific of an concern to a absence identifiable make on would it presented conclusion the issue different line mandatory in future to draw a between difficult cases not permissible, questioning. but questioning required, least, holding, very would example, contrary For injuries attempted in all that the nature of all serious imply cases, injuries causing and the nature of the death and murder cases, survivors impact upon decedent’s in all murder prospective jury would have to be disclosed to all members as holding A part inquiry sympathy. contrary of an could easily imply tragic be read to that sad fact would have subject of examination in cases. be the such an all sum, absent a cause for concern that a juror of may put sympathy be able to aside because specific general experi human distinguished facts—as general inquiry panel, plus ence—a of the a correct instruction ordinarily of of respect the law with to the role sufficient. specific the failure
Although concluding to ask error, us not reversible we believe a before sound practice, and one that should generally by be followed trial judges, jurors, is to provide prospective at or near the beginning process, of the voir dire summary brief particulars relevant of the case before it. Frequently, identity of the parties, the nature of the dispute charge, and to time and reference location will be sufficient. In many cases, it will be advisable to include additional particulars. The case by before us was described the trial court as follows:
The case we have now before this Court is called State of Maryland versus Sean Derrick Fowlkes. Mr. Fowlkes charged with attempted murder and certain related offenses relating handgun, etcetera. The alleged crime occurred March, 1994, on day the 30th in the 1800 block of North City Chester Street here in the alleged Baltimore. The victim Marquites was one ... newspaper Williams and a article appeared concerning 22nd, this case May view, In our the better practice would have been for the trial judge to inform the venire the nature and extent of the disability Thereafter, sustained the victim. gener- inquiry bias, al concerning sympathy, and prejudice would have been more likely juror to ferret out a prospective who might have unduly been influenced by sympathy for the victim. Whether the failure to omit a particular recitation is discretion, an error, however, abuse and thus reversible *12 must be determined on a case case basis.
II. Appellant also contends the trial erred in ad extensive, mitting unduly prejudicial evidence concerning the physical victim’s suffering disabilities and after the injury. permitted The State was extensively question the victim as Moreover, to the disabilities she suffered from the incident. the trial court permitted also the introduction of extensive records, medical appellant which contends were not relevant to his guilt, highly prejudicial, and were introduced (cid:127) (cid:127) merely to encourage sympathy for the victim.
587 Testimony The Victim’s unable the that she has been to stand After victim testified incident, question the the State continued or walk since the Although infirmities. physical appellant her victim about the testimony, such admitting the trial court erred claims our preserved the has not been for contends that issue State review. State’s counsel the wit-
During colloquy between ness, objected, failed to ob- sporadically counsel but defense testimony describing the victim’s ject question eliciting to each addition, consistently counsel infirmities. physical object had been answered. Such question failed until being sought is the information delay inappropriate, because question. clear was 4-328(a)
Maryland requires Rule shall made objection to the admission evidence be [a]n offered or as soon thereafter as at the time the evidence is Otherwise, objection apparent. grounds for become not objection grounds objection The need is waived. court, request on its party stated unless the at the be initiative, so The shall rule upon own directs. court objection promptly. State, 594, 627-30, (1992),
In Bruce
A.2d
v.
616
392
denied,
cert.
508 U.S.
113 S.Ct.
Despite our case, failure to reach the issue in this we observe, as we did earlier this opinion, that trial judges must exercise sound discretion in ruling on the admissibility of trial, evidence to ensure a fair including rejection evidence when tendency its to evoke sympathy weighed against its probative value is unfairly prejudicial.
Medical Records After the incident the victim was initially transported to University Hospital, where she remained for three months. Her medical records from University Hospital were admitted objection. without Upon being transferred Mount Wash- ington Hospital, Pediatric victim remained there for five months. Her medical records from Mount Washington, con- sisting of 500 pages, objection, detailed over were admitted into evidence.
The State believes the victim’s medical records Washington Mount Hospital Pediatric necessary for the jury why understand the victim had not identified appellant *14 During after the incident. until five months as the shooter cross-examination, the extensively questioned counsel Thus, we do not believe the to these circumstances. victim as medical records Mount admitting in trial court erred Hospital. Washington Pediatric AFFIRMED; BE PAID BY TO COSTS JUDGMENTS APPELLANT. J.,
WENNER, dissents. WENNER, dissenting. Judge, for twenty years being term After sentenced conviction, years term three for to a consecutive assault conviction, As I appellant appeal. noted this handgun question dire pose the trial refusal to voir believe court’s discretion, by constituted an abuse requested appellant dissent. respectfully inquire court to
Defense counsel asked impartial it could at fair and venire whether deliver Following its victim.1 verdict, despite sympathy for the request, following colloquy ensued: if asking you
STATE: other words what Counsel sympathy in this room has sympathy. Everybody have they to decide on what paraplegic for a have based in they hear the courtroom.
THE COURT: I’ve never asked that before and jury before the quadriplegics I’ve had beds [sic] now, say they it gives fear is fair notice to the my them, telling they ought have for but them may by question proposed defense counsel was 1. While I note that dire, proposed voir it neither clear nor included in the defense counsel's Consequently, abundantly prosecutor. it has made clear Moreover, it is the trial preserved our review. clear that been proposed question. understood this, to have sympathy for legitimate that’s a thing to do so far as deciding this case is concerned? No,
DEFENSE: I’d sir, don’t believe legitimate, it’s at all. Sympathy—
[*] $ [*] [*] THE COURT: There is an you instruction that can’t decide
this case based upon fear and sympathy. don’t want to highlight this and I think [your request] would be too much highlight. of a There is an instruction in civil as well as criminal instructions saying you must decide *15 fear, this case without without sympathy.
$ $ $ I’ll 204, tell the instruction number in impartiality considerations---- You perform are to duty without bias or any as to party. You should not be swayed by sympathy, prejudice or public opinion and that’s the law.
$ [*] $ $ So, I don’t wish to give it because I don’t think it’s required and I think it would do more harm than good and so find.
The State believes no such question was required and that
the trial court did hot abuse its
in
discretion
rejecting it.
do
agree.
not
Inasmuch as the prospective jurors were unaware
of the
age
injuries,
victim’s
and her
or the cause of those
injuries, I believe such a question would have
poten-
identified
jurors
tial
whose sympathy was cause for disqualification.2
Davis,
47,
591 refusing pose such discretion in trial court abused its question. State, v. clearly Perry in Appeals enunciated
The Court
-
(1996),
denied,
217-21,
204,
A.2d 274
cert.
Md.
686
344
(1997),
480
Davis
U.S.-,
137 L.Ed.2d
S.Ct.
(1993),
purpose
A.2d
Davis,
the trial court
In
claimed
appellant
of voir dire.
scope
any of the
refusing
in
to ask “whether
abused its discretion
were,
with,
person
law
or were associated
enforcement
jurors
In
the trial court asked
Perry,
Id. at
Nonetheless, on to say: the Davis Court went [Wjhere identify an area of bias and parties potential questions designed to ascertain properly request voir dire ability fairly jurors whose bias could interfere with their issues, an impartially decide the then has obligation panel. to ask those of the venire Mere- questions *16 as, any “is reason ly asking general questions, such there ” verdict, a why you impartial could not render and fair adequate properly questions not an substitute for framed designed specific potential jurors to areas where highlight may ability their to fairly have biases that could hinder questions, decide the case. Those voir dire impartially however, identify potential jurors should be framed so as to disqualification, with which cause for rather than biases are jurors merely identifying attitudes or potential with associa- might tions facilitate the of peremptory which exercise challenges.
592
Id. A.2d at 633 867.3 A process determining trial court’s of a proposed whether inquiry reasonably to reveal likely disqualifying partiality weighing expenditure bias includes the of time and pursuit resources of the reason for response to a voir dire proposed question against the likelihood that pursuing response reason for the will bias or reveal partiality.
Perry, 344 Md.
In the case at prior paraplegic by rendered normal, stray bullet, the victim healthy thirteen-year-old was a Moreover, female. was fully trial court aware of her age injuries, her the cause extent of that she was to testify for it necessary and that would be for her to either a or a testify from wheelchair stretcher. As we have noted, however, jurors age did learn of her and the cause extent of until injuries her opening State’s statement.
Although
agree
the entire venire
sympathize
would
victim,
when,
here,
believe that
as
“the parties
identify
potential
request
an area of
and properly
bias
voir
659, 663,
(1995),
said,
Ingoglia,
Md.App.
The trial tion: any or religious reason any any member who
Is there person cannot a other reason whatsoever —cannot case, verdict, religious, preju- a fair cannot decide reach a whatsoever, not dice, you this could [sic] other reason verdict, this and reach render as a member of sit this the evidence impartial solely upon and trial based fair you nothing courtroom and else? hear this [sic] consider and decide The trial court then said: must “[Y]ou duty fairly impartially. perform this case You are should not be any, party. bias or as to You without opinion. That’s the public swayed by sympathy prejudice juror obey who cannot any prospective Is there law. law?” said, As have while
I do not believe this
sufficient.
panel
sympathize
that the entire venire
would
recognize
victim,
so
that it would
might
sympathetic
some
have been
ability
impartial
their
render
fair
have interfered with
As
have
we
only upon
presented.
based
the evidence
verdict
noted,
only the
gave
court
the venire
earlier
name,
charged,
he was
the offenses with which
defendant’s
incident,
name,
the victim’s
date and location of
incident. The
newspaper
article about the
there had been
courtroom,
jurors
victim was
incident.4
about the
given no further information
trial court
case
follows:
4. The
described
*18
The issue here
to
before us is similar
that in Ingoglia
(1995),
102 Md.App.
refusing requested by appellant. judgment would reverse the of the circuit court.
The case we have Maryland now before this court is called State of charged attempt- versus Sean Derrick Fowlkes. Mr. Fowlkes relating handgun, ed murder certain related offenses etcetera. March, 1994, alleged day The crime occurred on 30th in the City block North Chester Street here in the of Baltimore. Marquites alleged The newspaper victim was one ... Williams 22nd, appeared concerning May article this case on