Amit Kumar v. State of Maryland
No. 21
Court of Appeals of Maryland
December 20, 2021
Watts, J.
September Term, 2021
VOIR DIRE – APPLICABILITY OF HOLDING TO PENDING CASES – PRESERVATION FOR APPELLATE REVIEW – Court of Appeals held that holding in Kazadi v. State, 467 Md. 1, 9, 47, 223 A.3d 554, 559, 581 (2020)—that, on request, during voir dire, trial court must ask whether prospective jurors are unwilling or unable to comply with jury instructions on certain fundamental principles and that Kazadi applied to any other cases pending on direct appeal when opinion was filed where relevant question was preserved for appellate review—applies to any case pending in trial or appellate court that had not become final on direct appeal when Court issued opinion in Kazadi and in which Kazadi issue was preserved for appellate review. In other words, holding in Kazadi applies to cases in which there had not yet been final disposition, regardless of whether notice of appeal had been filed at time opinion in Kazadi was issued, where issue had been preserved for appellate review. Court concluded that Petitioner was entitled to benefit of holding in Kazadi because there had not yet been final disposition
Circuit Court for Baltimore City
Case No. 119053002
Argued: November 9, 2021
Getty, C.J.
McDonald
Watts
Hotten
Booth
Biran
Murphy, Joseph F., Jr. (Senior Judge, Specially Assigned), JJ.
Opinion by Watts, J.
McDonald and Biran, JJ., concur.
Filed: December 20, 2021
In Kazadi v. State, 467 Md. 1, 9, 223 A.3d 554, 559 (2020), we held “that, on request, during voir dire, a trial court must ask whether any prospective jurors are unwilling or unable to comply with the jury instructions on the fundamental principles of presumption of innocence, the State‘s burden of proof, and the defendant‘s right not to testify.” In so holding, we overruled Twining v. State, 234 Md. 97, 100, 198 A.2d 291, 293 (1964), in which this Court had previously held that a trial court was not required to ask such voir dire questions. In Kazadi, we initially stated that our holding would apply to Kazadi and to other cases prospectively as of the date on which the opinion was issued. Subsequently, we replaced the language in Kazadi concerning its applicability to indicate that the holding would apply to the case and “any other cases that [were] pending on direct appeal when [the] opinion [was] filed, where the relevant question ha[d] been preserved for appellate review.” Kazadi, 467 Md. at 47, 223 A.3d at 581 (citations omitted).
In this case, we must determine whether our holding in Kazadi applies to cases in which a defendant had not yet noted an appeal when the opinion was issued in Kazadi but had preserved a Kazadi issue at trial. We hold that Kazadi applies to such cases. In addition, we conclude that in this case the Kazadi issue was preserved for appellate review.
BACKGROUND
Charges and Verdict
The State, Respondent, charged Amit Kumar, Petitioner, with first- and second-degree murder of his wife, Ankita Verma, and openly carrying a dangerous weapon (a knife) with the intent to injure. In the Circuit Court for Baltimore City, a jury found Kumar guilty of first-degree murder and the weapon offense. Because the facts of the case are not material to the issue before us, we will not provide a summary of the evidence. It suffices to say that after a trial by jury, Kumar was convicted of first-degree murder and openly carrying a dangerous weapon with the intent to injure after his wife had been found stabbed to death in their apartment. The issue in this case concerns the jury selection process.
Voir Dire
On November 4, 2019, the circuit court conducted jury selection. Before voir dire, Kumar submitted to the circuit court in writing a list of seventeen proposed voir dire questions, which included the following Kazadi-type questions:
- You must presume the defendant innocent of the charges now and throughout this trial unless and until, after you have seen and heard all of the evidence, the State convinces you of the defendant‘s guilt beyond a reasonable doubt. If you do not consider the defendant innocent now, or if you are not sure that you will require the State to convince you of the defendant‘s guilt beyond a reasonable doubt, please stand.
-
In a criminal case, like this one, each side may present arguments about the evidence, but the State has the only burden of proof. The defendant need not testify in his/her own behalf or present any evidence at all. - Would you tend to believe or disbelieve the testimony of a witness called by the defense more than the testimony of a prosecution witness?
- Would you hold it against a defendant if [he/she/they] chooses not to testify or chose not to present any evidence?
(Brackets in original) (citation omitted).
While reviewing the parties’ proposed voir dire questions, the circuit court asked: “Is there anything that is not included in the State‘s voir dire that the defendant specifically requests?” Kumar‘s counsel responded by requesting that the circuit court ask several voir dire questions that he had proposed, including questions 15 and 16. The circuit court denied Kumar‘s counsel‘s request to ask proposed voir dire questions 15 and 16, which were the Kazadi questions. The following discussion occurred concerning voir dire questions 15 and 16, the Kazadi case (which was pending before us at the time), and Twining, 234 Md. 97, 198 A.2d 291 (which we overruled in Kazadi):
[KUMAR‘S COUNSEL]: I would ask that the Court propound ... defense request for voir dire question number 15. There is currently a case, I think it‘s in the Court of Special Appeals1 right now --
THE COURT: Yeah, it‘s sitting there. Until they make a decision, the old law from about 50 years ago resumes. I‘m with you, [defense counsel], but until the Court of Special Appeals makes that determination I‘ll have to deny your request as to presumption of innocence. And if I‘m thinking ahead of you as to number -- well, part of number 16.
[KUMAR‘S COUNSEL]: And I would also ask that the Court include question 16 as well.
THE COURT: I‘ll note the request.
[KUMAR‘S COUNSEL]: And, Judge, we would take exception --
THE COURT: The exception is noted as to the Court‘s denial of the defendant‘s requested 15.
[KUMAR‘S COUNSEL]: And 16 as well.
THE COURT: And exception is noted with regard to -- I haven‘t denied it yet. I‘ll deny the request as number 16. I will note again this issue is before the Court of Special Appeals, . . . but . . . that question at this moment is still improper, so I‘ll deny 16 also. I‘ll note your exception in that regard.
(Paragraph breaks omitted).
During the circuit court‘s review of the proposed voir dire questions, there were three instances in which Kumar‘s counsel excepted to the circuit court‘s refusal to ask a proposed voir dire question. In the first two instances, Kumar‘s counsel excepted to the circuit court‘s refusal to ask voir dire question 15 and to the circuit court‘s refusal to ask voir dire question 16—i.e., the Kazadi-type voir dire questions. In the third instance, Kumar‘s counsel excepted to the circuit court‘s decision to ask an edited version of a proposed supplemental voir dire question—question B—which concerned whether jurors or their family members were trained or employed in the medical field.
After the exchange above in which the circuit court declined to ask voir dire questions 15 and 16 (the Kazadi questions) and indicated that Kumar‘s counsel‘s exceptions to the court‘s failure to ask the questions had been noted, the court asked the voir dire questions of the jury panel as a group. Upon completion of the group questions, before the court individually questioned prospective jurors who had responded affirmatively, the following exchange occurred:
THE COURT: Anything further from the defense?
[KUMAR‘S COUNSEL]: I‘ll just ask the Court to note my continuing exception to the Court‘s refusal --
THE COURT: Does your client want to be here?
The circuit court did not ask Kumar‘s counsel to elaborate concerning the “continuing exception to the Court‘s refusal[.]”
Motion for a New Trial and Notice of Appeal
On November 18, 2019, in the circuit court, Kumar filed a motion for a new trial, contending, among other things, that the circuit court erred in declining to ask proposed voir dire questions 15 and 16. In the motion for a new trial, Kumar‘s counsel raised various allegations of error but the only allegation raised concerning the circuit court‘s failure to ask proposed voir dire questions pertained to the court‘s failure to ask the Kazadi questions. On January 24, 2020, prior to the date of Kumar‘s sentencing, we issued our opinion in Kazadi and addressed the applicability of our holding as follows:
Additionally, consistent with this Court‘s case law, although we provide Kazadi “with the benefit of the holding[] in this case, we determine that our holding[] shall apply prospectively as of the date on which this opinion is filed.” Pearson, 437 Md. at 370, 86 A.3d at 1243. In other words, our holding exclusively applies to this case and future trials, and this opinion should not be construed as giving rise to any grounds for relief in cases in which voir dire occurred before today—i.e., cases in which trial courts operated under the assumption that Twining, 234 Md. at 100, 198 A.2d at 293, remained good law.
(Alterations in original).
On February 21, 2020, the circuit court conducted the sentencing proceeding in Kumar‘s case at which it heard argument on and denied the motion for a new trial. The circuit court sentenced Kumar to life imprisonment for first-degree murder and a consecutive sentence of three years’ imprisonment for the weapons offense. On March 2, 2020, we issued an Order replacing the language in Kazadi on the applicability of our holding with the following:
Additionally, consistent with this Court‘s case law, we provide Kazadi with the benefit of the holding in this case, and we determine that our holding applies to this case and any other cases that are pending on direct appeal when this opinion is filed, where the relevant question has been preserved for appellate review. See Hackney v. State, 459 Md. 108, 119, 184 A.3d 414, 421 (2018); State v. Daughtry, 419 Md. 35, 77 n.26, 18 A.3d 60, 85 n.26 (2011).
Kazadi, 467 Md. at 54, 223 A.3d at 586.
On March 20, 2020, in the circuit court, Kumar filed a notice of appeal.
Opinion of the Court of Special Appeals
On April 13, 2021, the Court of Special Appeals affirmed Kumar‘s conviction for first-degree murder and reversed for lack of sufficient evidence the conviction for openly carrying a dangerous weapon with the intent to injure. See Amit Kumar v. State, No. 300, Sept. Term, 2020, 2021 WL 1392142, at *7-8 (Md. Ct. Spec. App. Apr. 13, 2021).3 The Court of Special Appeals held that the circuit court did not err or abuse its discretion in declining to ask proposed voir dire questions 15 and 16. See Kumar, 2021 WL 1392142, at *4. The Court of Special Appeals acknowledged that the State conceded that proposed voir dire questions 15 and 16 were Kazadi-type voir dire questions—i.e., voir dire questions that must be asked on request under Kazadi. See Kumar, 2021 WL 1392142, at *3. The Court of Special Appeals noted, however, that it was not bound by concessions of law. See id. at *4. The Court of Special Appeals reasoned that because the revised opinion in Kazadi stated that its holding applied to “any [] cases that [were] pending on direct appeal” when the opinion was filed and Kumar had not filed a notice of appeal until after the Kazadi opinion was issued, Kumar was not entitled to relief. Kumar, 2021 WL 1392142, at *4. The Court of Special Appeals determined that Twining, not Kazadi, applied and that, as such, it need not address the State‘s contention that Kumar‘s Kazadi claim was waived or unpreserved for appellate review. See Kumar, 2021 WL 1392142, at *4.
Petition for a Writ of Certiorari
On May 14, 2021, Kumar petitioned for a writ of certiorari, raising the following two issues:
-
Does the holding of Kazadi [] apply to all litigants who preserved the issue and whose cases were not yet final when the Kazadi opinion was issued, regardless of whether they had filed a notice of appeal by that date? - Did the Court of Special Appeals violate [Kumar]‘s constitutional right to equal protection by applying different law to [Kumar]‘s case as compared to other similarly situated litigants?
On July 9, 2021, we granted the petition. See Kumar v. State, 475 Md. 3, 256 A.3d 270 (2021).
DISCUSSION
The State agrees with Kumar that this Court‘s conclusion in Kazadi that its holding would apply “to this case and any other cases that [were] pending on direct appeal when [the] opinion [was] filed, where the relevant question has been preserved for appellate review[,]” Kazadi, 467 Md. at 47, 223 A.3d at 581 (citations omitted), includes “cases that were pending in the trial court when Kazadi was decided and had not yet become final on direct appeal.” (Footnote omitted). Kumar points out that, because we indicated that the applicability of the holding in Kazadi was consistent with case law such as Hackney and Daughtry, the holding applies to any case in which there had not yet been a final disposition4 when the opinion in Kazadi was issued, regardless of whether the defendant had filed a notice of appeal at the time. In agreement, the State adds that our opinion in Kazadi and other case law indicate that, consistent with the United States Supreme Court‘s decision in Griffith v. Kentucky, 479 U.S. 314 (1987), Kazadi applies to all cases that were pending on direct review or not yet final where the issue is preserved for appellate review.
The parties are correct. In light of case law from the United States Supreme Court and this Court and considerations of fairness, our holding in Kazadi applies to any case that was pending in a trial or appellate court that had not become final on direct appeal when this Court issued the opinion in Kazadi and in which the Kazadi issue had been preserved for appellate review. In other words, our holding in Kazadi applies to cases in which there had not yet been a final disposition, regardless of whether a notice of appeal had been filed at the time the opinion in Kazadi was issued, and in which the issue had been preserved for appellate review.
On January 31, 2020, after the issuance of our opinion in Kazadi, Soule filed a supplement to his petition for a writ of certiorari, contending that Kazadi applied to all pending cases—i.e., cases in which the right to direct appeal had not yet been exhausted at the time the Kazadi opinion was issued—where the issue is preserved for appellate review. Soule requested that we revise the opinion in Kazadi to indicate that the holding applied to cases in which the right to appeal had not been exhausted.6 On March 2, 2020, citing Daughtry and Hackney, we issued the Order revising Kazadi to indicate that the holding applied to all cases “pending on direct appeal” at the time the opinion was issued and where the issue was preserved for appellate review. Kazadi, 467 Md. at 54, 223 A.3d at 586.7 As such, our revision of the language in Kazadi concerning the applicability of its holding occurred as a result of the supplement to the petition for a writ of certiorari filed in Soule.
In the supplement, Soule requested that we revise Kazadi because under Griffith, 479 U.S. 314, and our existing case law, Kazadi would apply to pending cases—i.e., cases in which the right to direct appeal had not yet been exhausted—where the issue is preserved for appellate review. In Griffith, 479 U.S. at 322, the Supreme Court held that the “failure to apply a newly declared constitutional rule to criminal cases pending on direct review violates basic norms of constitutional adjudication.” Quoting Williams v. United States, 401 U.S. 667, 679 (1971) (Harlan, J., concurring), the Supreme Court explained that the nature of judicial review “precludes us from ‘[s]imply fishing one case from the stream of appellate review, using it as a vehicle for pronouncing new constitutional standards, and then permitting a stream of similar cases subsequently to flow by unaffected by that new rule.‘” Griffith, 479 U.S. at 323 (alteration in original). In various instances in Griffith, the Supreme Court used the terms “not yet final” and “pending on direct review” interchangeably in referring to the cases to which the new rule should apply. Griffith, 479 U.S. at 316, 323, 328.8 This language indicates that, where the term “pending on direct appeal” is used in Kazadi, the term indeed refers to cases that were not yet final—i.e., cases in which there had not yet been final dispositions. That the replacement of the language in Kazadi was made in light of the Supreme Court‘s holding in Griffith demonstrates that our holding in Kazadi applies to all cases pending appeal or pending direct review, i.e., cases in which there had not yet been a final disposition as opposed to only cases in which a notice of appeal had already been filed.9
In addition, in the order revising the applicability of the holding in Kazadi, we cited Hackney and Daughtry, stating that, “consistent with this Court‘s case law, . . . we determine that our holding applies to this case and any other cases that are pending on direct appeal when this opinion is filed[.]” Kazadi, 467 Md. at 54, 223 A.3d at 586. The use of the two cases indicates that the holding in Kazadi should have the same retroactive effect as the retroactive application discussed in Hackney and Daughtry. In Hackney, 459 Md. at 119, 132, 184 A.3d at 421, 429, we adopted the prison mailbox rule and because our holding was a new application of “constitutional provisions, statutes, or rules,” we determined that Hackney was entitled to the benefit of the rule and “so too should any other similarly situated prisoner whose case is pending receive the benefit of the rule we adopt here.” In reaching this conclusion, among other cases, we cited Griffith. See Hackney, 459 Md. at 119, 184 A.3d at 421. Similarly, in Daughtry, 419 Md. at 77 n.26, 18 A.3d at 85 n.26, we indicated that application of a new rule would apply to “all other pending cases where the relevant question has been preserved for appellate review.” (Cleaned up). Consistent with Hackney and Daughtry, our holding in Kazadi applies (assuming that the issue is preserved for appellate review) to pending cases—i.e., cases in which there had not yet been a final disposition when we issued the opinion in Kazadi.
Griffith, Hackney, and Daughtry are not the only cases that reinforce this principle. In Polakoff v. Turner, 385 Md. 467, 487-88, 869 A.2d 837, 850 (2005), we observed that “a new interpretation of a constitutional provision, statute, or rule has included the case before us and all other pending cases where the relevant question has been preserved for appellate review.” (Cleaned up). By contrast, “[g]enerally, judicially-initiated changes to the common law apply prospectively, that is, they apply in the case before us and all similar cases moving forward.” State v. Jones, 466 Md. 142, 164, 216 A.3d 907, 920 (2019) (citations omitted). Our holding in Kazadi is subject to the principle set forth in Polakoff because the holding was based on a constitutional provision and fundamental principles, not the common law.10 Because Kazadi involved an interpretation of a constitutional
emanates directly from a constitutional provision—namely, ”
provision and fundamental principles, under Polakoff, its holding applies to “all other pending cases where the relevant question has been preserved for appellate review.” Polakoff, 385 Md. at 487-88, 869 A.2d at 850 (cleaned up).
Further, considerations of fairness warrant our present holding. We agree with the State that concluding otherwise would “create[] a strange ‘doughnut hole’ in Kazadi‘s application” in that the holding in Kazadi would apply to future cases and cases where appeals were actually pending when we issued the opinion in Kazadi, but not to cases falling between those two categories—i.e., ones in which defendants had been tried but not yet noted appeals when Kazadi was issued. We do not see any principled reason to deny relief under Kazadi to defendants simply because they noted appeals after the opinion was issued.
Having resolved the issue of the applicability of Kazadi, we turn to the outcome of this case. Kumar requests that we reverse and remand the case to the circuit court for a new trial. The State asks that we vacate the judgment of the Court of Special Appeals and remand the case to that Court for it to address the issue of preservation for appellate review as well as the “merits” of Kumar‘s Kazadi claim.
We decline the State‘s request. As we see it, the merits of Kumar‘s claim are the same as the issue that we have already considered concerning the applicability of the holding in Kazadi. Although the question before us was phrased in terms of whether this is a case to which the holding in Kazadi would apply, it is the same question that forms the merits of Kumar‘s Kazadi claim. We have resolved the matter in accord with the position taken by both parties and concluded that the holding in Kazadi applies to all cases in which there was no final disposition at the time the Kazadi opinion was issued and in which the issue is preserved for appellate review—regardless of whether a notice of appeal had been filed in the case. The State has already acknowledged in the Court of Special Appeals that proposed voir dire questions 15 and 16 are Kazadi-type voir dire questions—i.e., voir dire questions that must be asked on request under Kazadi. See Kumar, 2021 WL 1392142, at *3. So, if the issue is preserved, there is nothing left to decide with regard to the merits of Kumar‘s Kazadi claim.11
We have the discretion to decide such an appellate issue and have exercised our discretion to do so in other cases, including Matthews v. Amberwood Assocs. Ltd. P‘ship, Inc., 351 Md. 544, 581, 719 A.2d 119, 137 (1998), in which we observed that, “on occasions, where . . . the issue can be disposed of quickly, we have, in the interests of judicial economy and expedition, deemed it appropriate to decide such an issue rather than remand the matter to the Court of Special Appeals for decision.” (Cleaned up). In Matthews, id. at 580-81, 719 A.2d at 136-37, we addressed an issue concerning contributory negligence and assumption of risk that the Court of Special Appeals had not decided because it was “one of those occasions in which the issue [could] be disposed of quickly and easily” and because there was “no good reason to prolong appellate proceedings[.]” Likewise, in Lizzi v. Wash. Metro. Area Transit Auth., 384 Md. 199, 206, 862 A.2d 1017, 1022 (2004), we addressed an issue concerning res judicata that the Court
raised by the Court during the State‘s presentation, Kumar‘s counsel agreed that the Court had the discretion to decide the issue, that the record contained everything the Court needed to understand the issue, and that the Court could address the issue and hold that Kumar‘s trial counsel‘s objection was preserved.
of Special Appeals had not decided “to avoid the expense and delay of another appeal“—i.e., to refrain from remanding “to the Court of Special Appeals for it to determine the issue when it would, in all probability, end up back here.” (Cleaned up). When addressing issues that the Court of Special Appeals had not decided, we have cited judicial economy or the desire to avoid a remand to that Court. See, e.g., Suburban Hosp., Inc. v. Kirson, 362 Md. 140, 177, 763 A.2d 185, 205 (2000); Bundy v. State, 334 Md. 131, 148, 638 A.2d 84, 93 (1994); Sergeant Co. v. Pickett, 285 Md. 186, 193, 401 A.2d 651, 655 (1979).
In this case, considerations of judicial economy and the desire to avoid unnecessary appellate litigation persuade us to address the issue of preservation, given that it is an issue that can be decided quickly and easily and that in all likelihood would wind up back in this Court after a determination on remand. In other words, we are cognizant that, if we were to remand to the Court of Special Appeals to address the issue, the non-prevailing party would likely file a petition for a writ of certiorari, resulting in even more appellate
We have everything that we need to determine whether Kumar‘s Kazadi claim is preserved for appellate review. We have the parties’ briefs in the Court of Special Appeals, in which the parties addressed the preservation issue; and we have the transcript of the entire jury selection process. We need only determine whether Kumar‘s exceptions were sufficient to preserve the Kazadi claim for appellate review. As the State acknowledged at oral argument in this Court, our holding in State v. Ablonczy, 474 Md. 149, 253 A.3d 598, 600 (2021) disposed of the State‘s contention in the Court of Special Appeals that Kumar waived his Kazadi claim by accepting the jury as empaneled. As such, we need only address the issue of preservation for appellate review, not waiver.
This case is distinguishable from State v. Miller, 475 Md. 263, 256 A.3d 920, 944 (2021), a case cited by the State at oral argument, in which this Court remanded a case to the Court of Special Appeals for determination of an issue not decided by that Court. In Miller, our holding concerned the admissibility of evidence at a criminal trial, and we remanded the case to the Court of Special Appeals so that it could address an issue pertaining to sentencing. Here, the issue we decided concerns the applicability of our holding in Kazadi and we have already determined that Kazadi applies. The State asks us to remand the case to the Court of Special Appeals for it to address whether the Kazadi claim is preserved for appellate review. Because the two issues are interrelated and there is not a non-Kazadi-related issue for the Court of Special Appeals to address, the remand that the State requests would not be comparable to the one in Miller.
In addition, it is not necessary to remand the case to the Court of Special Appeals for that Court to consider the preservation issue in light of the disposition of Brigido Lopez-Villa v. State of Maryland, No. 22, Sept. Term, 2021 (Md.), in which we heard oral argument on December 2, 2021. Our disposition of the preservation issue in this case does not depend on the disposition of Lopez-Villa because the circumstances of the cases are very different. In Lopez-Villa, in the petition for a writ of certiorari, the question raised concerning the jury selection process is:
Where Petitioner submitted a written request for said voir dire questions and the trial court “reviewed” the questions and ruled that it was “not inclined to ask” them “because the Court will instruct on those areas of law,” did the Court of Special Appeals err in holding that Petitioner “failed to preserve his objection to the court‘s refusal to read his proposed voir dire questions,”
because he “failed to ask or tell the court that he objected to the failure to ask those specific questions,” and because when, at the end of voir dire, the trial court inquired, “[d]id I miss any questions . . . what you previously objected to, which I will preserve for the record,” counsel responded “no“?
(Alteration and ellipsis in original). The question presented in Lopez-Villa is a very fact-specific question. The question includes the circumstance that, when the trial court initially reviewed requested voir dire questions with counsel, trial counsel did not object when the court stated that it was not inclined to ask the Kazadi-type voir dire questions. The question also includes the circumstance that, after the trial court asked the group voir dire questions, counsel responded “no” to an inquiry from the court concerning whether any questions had been missed. The circumstances
Having decided to exercise our discretion to address the issue of preservation, we conclude that Kumar preserved the Kazadi claim for appellate review. At oral argument in this Court and on brief in the Court of Special Appeals, the State contended that the issue was not preserved because, when excepting after the group voir dire questions, Kumar‘s counsel did not identify the specific unasked proposed voir dire questions to which he excepted. “Maryland Rule 4-323(c) delineates the method of objecting to the adverse ruling of a trial court on a proposed voir dire question[.]” Ablonczy, 474 Md. at ___, 253 A.3d at 603. Under
In this case, Kumar preserved the Kazadi claim for appellate review in accordance with
When given the opportunity to do so after the group voir dire questions were asked, Kumar excepted to the circuit court‘s refusal to ask proposed voir dire questions. Specifically, after asking voir dire questions of the jury panel but before individually questioning prospective jurors, the circuit court asked whether there was “[a]nything further from the defense[,]” and Kumar‘s counsel responded: “I‘ll just ask the Court to note my continuing exception to the Court‘s refusal --” The next line of the transcript indicates that the circuit court asked Kumar‘s counsel whether Kumar wanted to be present. The State observed at oral argument that it is unclear whether Kumar‘s counsel‘s voice trailed off after saying the word “refusal” or whether the circuit court interrupted him at the time.
What is clear is that when Kumar‘s counsel asked the circuit court to note his “continuing exception to its refusal” he was referring to the court‘s refusal to ask proposed voir dire questions that he had
Under the circumstances of this case, the only reasonable interpretation of Kumar‘s counsel‘s reference to his “continuing exception to the Court‘s refusal” is that he was referring to the circuit court‘s refusal to ask the proposed Kazadi voir dire questions—voir dire questions 15 and 16. During the discussion between the circuit court and Kumar‘s counsel at the time that the court declined to ask voir dire questions 15 and 16, both the circuit court and Kumar‘s counsel acknowledged that there was a case pending on appeal that could potentially change the law concerning whether the questions should be asked. Given Kumar‘s counsel‘s discussion with the circuit court concerning the case pending in the “Court of Special Appeals” and the circuit court‘s observation that, until the Court made a decision, the “old law from about 50 years ago” would apply, it is difficult to conceive that Kumar‘s counsel‘s noting of a continuing exception could have been understood as anything other than applying to the circuit court‘s refusal to ask the Kazadi-type voir dire questions.
Without deciding the issue of whether to preserve a Kazadi claim it is required that an exception be made or renewed after voir dire questions are asked of a jury panel but before individual questioning of prospective jurors,13 we conclude that Kumar‘s counsel‘s continuing exception to the circuit court‘s refusal to ask the proposed voir dire questions complied with
This case is different from cases in which the Court of Special Appeals has held that defendants failed to preserve for appellate review issues as to unasked proposed voir dire questions where, after asking voir dire questions, trial courts either asked whether there was anything to add or asked whether there were any comments or objections, and the defendants’ counsel either said nothing or responded in the negative. See, e.g., Brice v. State, 225 Md. App. 666, 679, 126 A.3d 246, 254 (2015), cert. denied, 447 Md. 298, 135 A.3d 416 (2016); Gilmer v. State, 161 Md. App. 21, 32-33, 866 A.2d 918, 925, vacated in part on other grounds, 389 Md. 656, 887 A.2d 549 (2005). By contrast, here, when given the opportunity, Kumar‘s counsel noted a continuing exception to the circuit court‘s refusal to ask proposed voir dire questions. This is not a case in which a defendant allegedly abandoned a request for an unasked proposed voir dire question by failing, when given the opportunity, to make or renew an objection to the trial court‘s failure to ask the question.
In this case, in addition to excepting to the circuit court‘s refusal to include the Kazadi questions in the group voir dire questions and noting a continuing exception after the group voir dire occurred, in the motion for a new trial, Kumar asserted that the circuit court erred in refusing to ask the Kazadi-type voir dire questions. At the sentencing proceeding, the circuit court heard argument on the motion, and neither the State nor the court contended, or even mentioned the notion, that Kumar‘s Kazadi claim was unpreserved. To the contrary, the arguments made by the parties and the circuit court‘s ruling as to the Kazadi issue addressed the merits of the claim—namely, whether the opinion in Kazadi should be retroactively applied to the case. The State maintained that, as far as it was aware, Kazadi did not apply retroactively to convictions that occurred before the opinion was issued. Kumar‘s counsel responded that Kazadi should be applied retroactively and that the nature of the case made it especially important for prospective jurors to be asked about the presumption of innocence and the burden of proof. The circuit court denied the motion for a new trial on the ground that Kazadi did not apply retroactively and was not the law of Maryland at the time of the trial. Given that the circuit court ruled on the merits of the Kazadi claim, it is clear that the court believed the issue to be preserved. Apparently, at that time, so did the State, for that matter, as the State did not raise an issue as to preservation in response to the motion.
The multiple steps that Kumar‘s counsel took—requesting both in writing and orally before the group voir dire that the Kazadi-type questions be asked, making before the group voir dire began an individual exception to the circuit court‘s refusal to ask each question, noting a continuing exception to the court‘s refusal to ask voir dire questions when given the opportunity after the group voir dire, and re-raising the issue of the circuit court‘s
For the reasons herein, we conclude that Kazadi applies to any case pending in a trial or appellate court that had not become final on direct appeal when the opinion was issued, i.e., cases in which there had not yet been a final disposition at the time that the opinion was issued, and in which the issue was preserved for appellate review. In this case, both circumstances are satisfied.15 We reverse the judgment of the Court of Special Appeals and remand the case to the circuit court for a new trial on the first-degree murder charge.16
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED AS TO CONVICTION FOR FIRST-DEGREE MURDER. CASE REMANDED TO THE CIRCUIT COURT FOR BALTIMORE CITY WITH INSTRUCTIONS TO VACATE CONVICTION AND SENTENCE AND FOR NEW TRIAL ON FIRST-DEGREE MURDER CHARGE. RESPONDENT TO PAY COSTS.
Circuit Court for Baltimore City
Case No. 119053002
Argued: November 9, 2021
IN THE COURT OF APPEALS OF MARYLAND
No. 21
September Term, 2021
AMIT KUMAR
v.
STATE OF MARYLAND
Getty, C.J.
McDonald
Watts
Hotten
Booth
Biran
Murphy, Joseph F., Jr. (Senior Judge, Specially Assigned),
JJ.
Concurring Opinion by Biran, J., which McDonald, J., joins.
Filed: December 20, 2021
I fully agree with the Court‘s holding that Kazadi v. State, 467 Md. 1, 9 (2020), “applies to cases in which there had not yet been a final disposition, regardless of whether a notice of appeal had been filed at the time the opinion in Kazadi was issued, and in which the issue had been preserved for appellate review.” Slip Op. at 9-10. I concur somewhat more hesitantly in the determination that this Court should exercise its discretion to decide whether Petitioner, Amit Kumar, preserved a Kazadi claim for appellate review, rather than remand the case to the Court of Special Appeals to allow that Court to rule on preservation.
The Opinion for the Court, of course, is correct in stating that we have discretion to decide whether Kumar preserved the Kazadi issue. See
Kumar also did not ask us in his briefs or at oral argument to exercise our discretion to decide the preservation question. Rather, Kumar claimed that the State waived any argument concerning preservation by failing to file a conditional cross-petition for certiorari on that point. The Court correctly rejects that contention. Slip Op. at 15 n.12.
Thus, the Court is acting on its own initiative in deciding the preservation issue. That distinguishes this case from several of the cases the Court cites in explaining the decision to address the preservation issue. For example, in Matthews v. Amberwood Associates Ltd. P‘ship, Inc., 351 Md. 544 (1998), in their cross-petition for a writ of certiorari, the defendants-respondents requested that the Court review a question that the Court of Special Appeals had not decided concerning the defendants’ application to amend their Answer to allege contributory negligence. This Court granted the plaintiffs’ petition for certiorari and denied the cross-petition. Id. at 580-81. Nevertheless, in their brief to this Court, the defendants argued that “[t]he trial court erred ... in refusing to instruct the jury on the issue of contributory negligence.” Id. at 581. After resolving the substantive issues in favor of the plaintiffs, the Court opted also to decide the question about contributory negligence that the Court had initially declined to review. See id.
In Lizzi v. Washington Metro. Area Transit Auth., 384 Md. 199 (2004), the trial court dismissed Lizzi‘s claims on the ground of res judicata. The Court of Special Appeals affirmed, but not on the ground of res judicata. After Lizzi filed a certiorari petition, the respondent (WMATA) did not raise res judicata in its response to Lizzi‘s petition, nor did WMATA file a conditional cross-petition raising the issue. Id. at 205. However, WMATA addressed the res judicata issue in its brief to this Court. The Court decided to reach the res judicata question, rather than remanding the case to the Court of Special Appeals for the intermediate appellate court to consider whether res judicata barred Lizzi‘s claims. Significant to the Court‘s decision to exercise its discretion was the fact that res
Although this case differs from Matthews, Lizzi, and Kirson given the Court‘s sua sponte exercise of discretion, importantly the party against whom we decide the preservation question has not been prejudiced. At oral argument, in response to questioning from the Court, the State addressed whether Kumar preserved the Kazadi claim for appellate review. The State did not say that it was surprised by the Court‘s inquiry concerning the preservation question, or that it was unprepared to provide its position on preservation. Nor did the State ask for an opportunity to submit supplemental briefing on the question of preservation.1 Rather, the State presented an argument concerning preservation that was consistent with its briefing in the Court of Special Appeals. In addition, the State said that the Court had the record of voir dire in the Circuit Court, as well the briefs of the parties in the Court of Special Appeals and their filings at the certiorari stage, which “illuminate” the issue of preservation.
In essence, the State at oral argument conceded the Court‘s point that “[w]e have everything that we need to determine whether Kumar‘s Kazadi claim is preserved for appellate review.” Slip Op. at 17. Thus, the State effectively has acknowledged that it has had a fair opportunity to argue its position concerning preservation in both the Court of Special Appeals and this Court, and therefore, that it has not been prejudiced by the Court‘s decision to address the preservation issue. Had the State instead represented at oral argument, in response to the Court‘s raising the topic of preservation, that it had more to say on the preservation issue than it had included in its Court of Special Appeals brief and its response to Kumar‘s petition for certiorari, we likely would not have concluded that “[w]e have everything that we need to determine whether Kumar‘s Kazadi claim is preserved for appellate review.” In that event, we would have been well advised either to invite the parties to submit supplemental briefs on the question of preservation, or to remand the case to the Court of Special Appeals and allow the non-prevailing party there to decide whether to seek further review of the preservation question in this Court.
Given the State‘s position at oral argument, I agree with the Court‘s determination that we should decide whether Kumar preserved his Kazadi claim for appellate review.2 I also agree that Kumar preserved his claim of error based on Kazadi.
That being the case, I believe we generally should refrain from deciding an issue that the Court of Special Appeals elected not to decide and that was not raised by the parties in their petitions for certiorari, in the absence of a request by one or both parties that we do so, or in the absence of unusual circumstances that warrant deviation from this Court‘s normal practice.3 Nevertheless, if we are satisfied that neither party will be prejudiced by our exercising discretion to reach the issue, it may be appropriate for us to do so.
As discussed above, neither party in this case has asked us to exercise our discretion to decide the preservation issue. In addition, there are no unusual circumstances here that warrant a departure from our normal practice to remand to the
Judge McDonald has authorized me to state that he joins in this opinion.
The correction notice(s) for this opinion(s) can be found here:
https://mdcourts.gov/sites/default/files/import/appellate/correctionnotices/coa/21a21cn.pdf
Notes
The record also reflects that the circuit court agreed, after rephrasing the question, to ask supplemental voir dire question B concerning whether jurors or their family members had been trained or employed in the medical field but stated: “I‘m going to deny the request specifically as to your request to B, 1, 2 and 3, whoever comes up at sidebar voir dire, you can delve into that if you wish to, if they respond to your question B.” As explained above, Kumar‘s counsel advised that he would take an exception and the circuit court noted the exception. In reaching this conclusion, I do not rely on the circumstance that the substantive Kazadi-related question we have decided in this case and the preservation question are “interrelated and [that] there is not a non-Kazadi-related issue for the Court of Special Appeals to address.” Slip Op. at 18. This Court previously has remanded cases to the Court of Special Appeals, despite the interrelationship between an issue that was properly before the Court and a question that was not decided by the intermediate appellate court. See, e.g., State v. Evans, 352 Md. 496, 509 n.10, 530 (1999), overruled on other grounds, Belote v. State, 411 Md. 104 (2009) (where the Court of Special Appeals declined to decide whether there was probable cause to arrest a defendant at the time he was detained, remanding to the Court of Special Appeals to decide the probable cause issue after holding that the initial detention constituted an arrest and that a search performed at the time of the detention was a valid search incident to arrest). Conversely, in appropriate circumstances, this Court has decided questions that were not interrelated with the questions contained in the parties’ certiorari petitions. See, e.g., Lizzi, 384 Md. at 202-03. At least as a general matter, I do not perceive the salience of the interrelatedness of issues in assessing whether this Court should exercise its discretion to address an issue that the Court of Special Appeals opted not to decide, despite its interrelatedness with an issue that the intermediate appellate court did decide.
That said, although Kumar argued on brief that the State waived the preservation issue by not filing a cross-petition, at oral argument, on rebuttal, in response to questions