State v. Shim

Maryland STATE Fabian Andre SHIM. 18, Sept. Term,

No. 2010. Appeals Maryland. Court of

Jan. 2011. Carter, Jessica V. Asst. Atty. Gen. (Douglas Gansler, F. Atty. Gen. of Maryland, Baltimore, MD), brief, on for petition- er.

Amy Brennan, E. (Paul Asst. Public DeWolfe, Defender B. Defender, Public Baltimore, MD), brief, on for respondent. Argued BELL, C.J., before HARRELL, BATTAGLIA, GREENE, MURPHY, BARBERA, ADKINS and JJ.

ADKINS, J.

This case involves two issues regarding the selection and instruction of the in a jury First, criminal murder trial. we must decide whether it is an abuse of discretion for the trial court to refuse to ask whether the venire panel harbored “such strong feelings concerning the violent death of another human being” they would be “unable to render a fair and impartial verdict based solely on the evidence presented[.]” of discretion it is an abuse

Second, must decide whether jury to the instruction “flight” give for the trial court the left perpetrator only the evidence shows when After the trial after the murder. point at some crime scene dire, the gave voir refused the above court appeal, instruction, was convicted. On the defendant “flight” court abused that the trial Appeals found Special the Court and reversed conviction. in both instances its discretion for a of Certiorari Petition Writ State’s granted We questions: the following consider reverse erroneously Appeals of Special

1. Did the Court court declined the trial murder convictions because dire, if mem- jurors, during ask prospective concern- strong feelings “such jury panel of the had ber being” human death of another ing the violent fair and impartial unable to render a member would be verdict? erroneously conclude Appeals] of Special

2. Did [Court in propounding abused its discretion that the trial court trial, instruction, on evidence admitted based flight and, error, the error harmless? if there was thus negative. in the We questions answer these We shall decision and remand Appeals’ Special affirm the Court of for a new trial. Circuit Court PROCEEDINGS AND LEGAL

FACTS County with George’s in Prince Lynch Reina Tasha lived Shim, is the Respondent, Fabian Andre her two children. as during day daughter. Lynch worked Lynch’s father of Schools, County Public Montgomery bus driver for a school Ex facility at a Fed security guard as a night and at Beltsville, seeking support been child had Maryland. Lynch pretrial both attended Shim, on November En- Maryland Support Child conference with settlement conference, Support the Child At the Program. forcement monthly support child suggested calculated Shim’s Program conference, After the month. per to be obligation $590.17 then-fiancé, Shim told his with whom he was that he living, was upset and felt that Lynch was for too “asking much money.” later,

Nine days a man in a dark-colored pulled BMW toup the guard shack at the Fed Ex facility around 10:45 p.m., shortly before Lynch’s night shift was to begin. Lynch’s coworker approached the him car and asked what he was man, doing. The who looked to be between twenty-seven and thirty-three old, years stated that he was “having lunch.” The man drove away shortly thereafter, before Lynch arrived. Lynch was the only security guard working night shift on November 10. logged She tractor trailers into facility a.m., 12:01 a.m., 12:41 and 1:52 a.m. She logged trailer out of the facility at 2:20 a.m., a.m. Shortly after 2:30 surveillance cameras showed a dark sedan pulling up shack, to the guard and leaving six minutes later. By time the next truck came to the gate, the trucker got no answer from guard shack and had to punch in a keycode to enter the facility.

Lynch’s coworker came to relieve her at 6:30 a.m. He found the guard shack was locked and no got response from Lynch. a.m., At 7:20 the coworker called their got boss and the code to enter the entered, shack. When he he found Lynch lying on the floor in a pool of Lynch blood. had sustained two shotgun wounds, including one to her head from close range.

On the night Lynch murdered, Shim got off work at 9:00 p.m. According son, his former fíancé’s Shim went home and changed from his work clothes. He left the house before 10:00 p.m. and a.m.,. did not return until around 3:00 telling his fiancé that he had worked late. He removed his clothes and placed them into white plastic bag, saying he got had something on them at work. He took a shower chair, and then sat in a holding his head he saying didn’t feel right.

The next day, Shim’s flaneé Lynch learned that had been killed and mentioned it to replied, Shim. He “[W]hy did that go bitch and do that. Somebody had to kill her.” Later that Shim, evening, flaneé, angered with his told her that if she killed Tasha.” said, kill her “like he he he would didn’t do what house, County George’s met with Prince fiancé left the Shim’s detectives, never went back. and police two dark- impounded murder investigating Lynch’s Police 735i, BMWs, blue BMW colored, including a older model Court, had Berry where Shim Holly recovered on they which shotgun, blue BMW a recovered from the Police living. been shoes, Shim’s gloves, and identified of six rubber pair black found and on a radio of the door on the outside fingerprints Police were unable pocket. the left front vehicle inside which shotgun, DNA from the exclude Shim’s include or unknown contributors. material of three genetic contained the lent testified that he had trial, the blue BMW At the owner of The work. body could do some his vehicle so that Shim Shim shotgun any left the that he had not owner further testified witness, acquaintance an in the car. Another clothing of the and that Shim’s, shotgun, owned a testified that had of Shim and shooting after the days the witness a few had called Shim police from the BMW. shotgun him to remove asked murder. degree him with first arrested Shim questions, twenty-one counsel requested Shim’s 18,”which read as follows: “Question including strong have such jury panel of the Does member human of another the violent death concerning feelings a fair and to render would be unable you being presented? on the evidence solely verdict based impartial that it was explaining Question declined to ask The court of voir dire goal overriding purpose related to the “not case.” instructions, trial, gave the Court jury during After the as follows: instruction flight aof after the commission immediately flight

A person’s not a crime is committing after accused being crime or may a fact that but it is guilt, to establish by itself enough under Flight guilt. evidence of you as be considered variety aby be motivated may circumstances these with innocence. consistent factors, fully which are some of You must first decide If flight. wether there is evidence of you you decide there is evidence of then must decide flight, whether this of flight guilt. shows a consciousness objection The trial court overruled Shim’s counsel’s to the instruction. The flight jury convicted Shim first degree murder, timely and he to the Court appealed Special Appeals. appellate

The intermediate court with the trial disagreed rulings regard court’s with to both voir dire question the jury the instruction. The Court first the addressed trial court’s refusal to ask voir question: Shim’s dire

In the present Question 18 directly related appellant’s the criminal alleged act. It was also reasonably likely jurors to identify with a so strong bias that would addition, impair ability their to be impartial. In the trial court not did ask questions other that adequately covered the matter contained in We thus question]. [the conclude that the trial court abused its discretion declin- ing to ask 18. Question regard instruction,

With flight the Court of Special Appeals examined the standards under which a flight instruc- tion is appropriate, concluded: hand,

In the case there flight. was no evidence of rational to be inferences drawn from the evidence demon- strated only facility shooter left Fed Ex after the shooting. There was no evidence that the shooter fled. The evidence that appellant steps took to avoid being appre- result, flight. hended did not amount to As a court abused its discretion in giving flight instruction.

We granted certiorari to review these two issues. State v. Shim, (2010). 412 Md. A.2d

DISCUSSION Question 1. The Proposed Voir Dire We review the trial propound court’s refusal dire requested under our well-defined standards “primary through mechanism for dire is voir dire. Voir jury, and impartial to a fair right which constitutional Amendment to the United States the Sixth guaranteed by Declaration of Maryland 21 of the and Article Constitution 593, 600, 903 Rights, protected.” Curtin (2006). process, During jury selection aby peremp- either for cause or may juror parties disqualify between the difference tory explained strike. two challenges: these ... exercised

Peremptory challenges[1] challenges are stated, being without ... without inquiry, a reason without for a real or control and either subject the court’s or demon easily designated is less partiality that imagined challenge for a for cause--- than that required strable jurors on a rejection of Conversely, challenges permit cause basis of narrowly specified, provable legally cognizable partiality[.] (2006) at 903 A.2d 927-928 393 Md. omitted) (emphasis citations add-

(quotation marks and some ed). dire, limited voir which means

Maryland recognizes a A challenge. related to cause parties only questions can ask a identify questions designed party may propose thus bias. or See juror’s competency, impartiality, prejudice, (1905). 43, 452, State, 39, 454 A party Md. 60 A. Handy v. 101 catech [inquiring], to go “speculating], not use voir dire may ” its which it will base for information on ‘fishing’ or izing, State, 146, 162, Md. v. 399 challenges. Stewart peremptory 44, (2007). 923 A.2d 53 in running discretion judge the trial broad

We allow 1150, State, 635, 644-46, 989 412 Md. A.2d voir dire. Moore v. however, (2010). discretion, by is circumscribed That 1155-56 pro- questions propounded have “right the defendant’s governed litigant challenges peremptory afforded 1. number Proceedings Article and Judicial 8-301 of Courts Section Maryland Rule 4-313.

45 dire, jurors on spective their voir which are directed to a Moore, specific cause 412 Md. 644- disqualification[.]” for 46, court, therefore, 989 A.2d at 1155-56. A trial abuses its regarding discretion when refuses a “a question specific 654, cause for Id. at 989 A.2d at 1160. disqualification.” Spe- cific causes are disqualification directly for biases related to (1) (2) (3) defendant, witnesses, the crime. See State, 1, 10, 819, (2000). Dingle v. 361 Md. 759 A.2d 824 This Court has questions identified in each mandatory of these three areas.

First, we regarding juror’s require questions potential State, bias towards the See Hernandez v. 357 Md. defendant. 204, (1999) (whether 232, 952, 742 A.2d jurors had bias towards criminal defendant’s “race ethnicity, or cultural heri tage.”); Casey 595, v. Roman Archbishop, Catholic Md. 607, (in 627, (1958) 143 A.2d a civil involving case religious organization, jurors’ religious whether beliefs would Zorn, bias against them either party). Landon v. 389 Md. Cf. 206, 222, 142, 151 (2005) (not 884 A.2d an abuse of discretion to refuse question regarding bias a tort against plaintiff).

Second, require the trial court to ask proposed questions regarding bias towards witnesses and certain types of evi State, dence. See Langley v. 281 Md. 378 A.2d 1338 (1977) (juror witnesses); police State, deference to Bowie v. witnesses). 448, (1991) (bias 324 Md. against Defense’s (1946) orens 45 A.2d 340 Cf. C (not error ask regarding bias towards circumstan tial, direct, case). as to opposed capital evidence in But see Stewart, (not 399 Md. at mandatory 923 A.2d at 55 to ask, alia, juror inter whether a prospective give would greater weight and consideration to the of the arguments assistant counsel). state’s attorney than to those of defense Third, here, and most relevant we required have in a series of cases that uncovering trial courts ask aimed at a questions juror’s “strong feelings” the crime In these charged. towards cases, we have to established limits the trial discretion judge’s regarding questions, they these inform here and our result today.

46 Thomas, (2002), 202, 566 we Md. 798 A.2d

In State v. 369 it to its when refused held that a trial court abused discretion strong feelings regarding jury the had panel ask whether in to ask the proposed laws. The defendant Thomas narcotics jury panel of the “any [had] whether member panel venire of the narcotics laws regarding violations strong feelings such weigh you fairly impartially it be difficult for and that would 204, ....”, the Id at trial court refused. facts must be appeal, A.2d at 567. On we held asked, signifi- that a knowledge that “it is common reasoning believes, public as matter society a of segment cant of our marijuana should relating criminal laws policy, 211, 798 at 571. in one Id at A.2d way another[.]” modified dire questions further that “evidence explained We revealing strong feelings are effective in drug on attitudes ability to may juror’s narcotics laws that hinder a towards at 572. serve.” Id. Thomas, ask held that a trial court must after we

Shortly of molestation charge similar sexual question regarding of (2002). The child. Sweet v. 806 A.2d See trial unsuccessfully there court ask requested defendant you in feelings stir emotional charges up strong whether “the Id ability impartial----” to be fair and your that would affect we held that Thomas was appeal, A.2d at 270-71. On abused its discretion and that the trial court controlling, question. To feelings” ask the emotional “strong refusing conclusion, holding the Thomas interpreted reach this we like that in analysis not “bias” broadly, engage any and did Thomas: is essentially case petitioner’s decision Court’s In that in Thomas [.]

controlled our recent decision an of discretion for the held that was abuse if them panel of court to refuse to ask venire narcot- regarding violations “strong feelings harbored with in a trial the defendant was ics laws” which dangerous sub- distribution a controlled possession inquiry was directed at reasoned that stance. We biases, specifically alleged those related to Thomas’s act, that, uncovered, criminal if disqualifying would be they impaired ability juror when of the to be fair and impartial. The regard fully rationale of Thomas this applicable to the instant case. Accordingly, we hold that the trial court abused its discretion failing pose peti- tioner’s requested voir dire question, and is enti- petitioner tled to a new trial. added) (some

Id. at 806 A.2d at 271 (emphasis citations omitted). This passage Thomas, demonstrates that after this Court apparently did not believe it necessary to compare contrast individual crimes determine which could create disqualifying biases.

In a third we held that a question directed at biases towards “handguns” was not mandatory, thus distinguishing Curtin, Thomas and Sweet. See 393 Md. at A.2d at 926. In the defendant was alleged to have participated in an armed bank robbery, and charged with robbery dire, and assault. During the defendant unsuc- cessfully requested the following voir dire question: “Does anyone have strong feelings concerning the use of hand- guns they would be unable to render a fair impartial verdict based on the evidence?” Id. at 903 A.2d at 925. We held that the trial court’s refusal of question permissible, distinguishing the case from Thomas and Sweet:

Although Mr. Curtin alleges that his requested voir dire question comes within the Sweet, strictures of Thomas and recognized those cases charges of narcotics possession and child molestation in and of themselves could evoke strong feelings that unduly could bias a venireman. case, however, the present Mr. Curtin was with robbery, armed use of handgun in the commission of a violence, crime of first degree assault and conspiracy. We believe that ... Mr. Curtin’s was not mandated in this merely case because a handgun was used[.] Id. at 903 A.2d at 932-33. holding

Our Curtin raised the question of whether we had narrowed Thomas and Sweet and embarked on a crime- Indeed, the ma- mandatory questions. to

by-crime approach dissent, and a both a concurrence jority opinion sparked Curtin signaled approach. that a new concern expressed which wrote: concurring opinion, Judge In a Wilner to obviously presume [child It is not reasonable only are the kinds violations] sexual abuse and narcotics may high. Surely, run public crimes about which emotion criminal found that those kinds of Having there are others. to jurors require as activity may enrage prospective so bias, what possible voir dire to ferret out specific questions crime from distinguish use to one standard will the Court another? judicial people notice that some essentially have taken

We about narcotics strong feelings have may particularly have the same Is it not that some will equally likely crimes. robbery, burglary, about other strong feelings crimes — arson, be incensed may not to mention murder. Some rape, wanton, assault, or vicious or prostitution, over gambling animals, as question phrased or fraud. If the cruelty to feel- juror strong has such prospective here —whether (or crime to impossible) as to make it difficult ings about the does it make what fairly the facts difference weigh —what the crime is? (Wilner, J., 903 A.2d at 934-35.

concurring). Bell, dissent, joined by Judge Judge in Chief

Similarly, all for Raker, adopt mandatory to urged Court crimes: charged in concurrence Judge a lot to be said for Wilner’s

There is well, that quite It makes the and point, this case. questions designed already required has Court bias, charged on certain based arising ferret out and/or em- offenses, that, already has regard, in that this Court endorsed, different from approach an barked on and case law existing our approach and touted as espoused Thomas and our decisions Acknowledging supports. Sweet, presuming the unreasonableness recognizes he only cases “are kinds of that the crimes issue in those which public may high.” crimes about emotion run addition, Judge Wilner concedes that additional dire crime not required inquire likely into bias is delay. or cause undue lengthy already We have certain agreed decided crimes —we have out specifically singled child sexual of- fenses and narcotic may trigger sufficiently offenses — strong potential jurors reactions as to questionable make If, their ability render a fair and impartial verdict. cases, narcotics child sex inquiry abuse of the venire is required we because have determined those crimes to evoke bias, strong may emotional reactions which to why amount do we recognize not that are other there crimes that may evoke the or same more extreme is reactions. It uncon- cases, scionable we that would in some inquire those we have specifically in recognized, but refuse to do so those cases, other it simply might because take long too and perhaps may because difficult to too decide which cases into the Thomas fall and Sweet category. Under that regime, the categories Court two cases allowing of to be while targeted, allowing the vast to majority go unchecked clear; for possible bias. The answer is require, must as ask, trial, matter of to in policy, every courts criminal prospective juror whether has such strong feelings charged about the crime as to make it difficult or impossible the facts weigh fairly. (Bell, C.J., 903 A.2d at 935-38. (citations omitted). dissenting) opinions This has array engaged led some to believe that we have in a understandably crime-by-crime approach mandatory questions. See, State, v. 1, e.g., Sanders 4 9- Md.App. 194 (2010) (stating Curtin majority, declining Judge mandatory question of a adopt suggestion Chief Bell’s cases, among all embraced an which approach distinguishes crimes). Here, adopted the State has this and interpretation, of Thomas holdings should not “extend” that we

argued murder, or “violent death.” the crime of Sweet Curtin, however, demonstrates A reading close approach. such an far as to embrace majority go did not so above, the Curtin sure, quoted in the short passage To be on the inherent differences rely that it would suggested Court those of Thomas crimes at issue and between however, the Court passage, after this Immediately Sweet. of the inter- approach reasoning. Adopting its amplified court, Md.App. see Curtin appellate mediate (2005), explained: A.2d 758 this Court suggesting were based on theories defenses Appellant’s or, robbery in the bank participant was not a appellant a real was gun was no evidence that that there alternatively, used. fact does handguns bias about juror ... potential this case directly Appellant the crime. go to the nature of not so who was accomplice bank with an robbing accused of was analysis weighing or of issues [N]o brandishing gun.... gun required jurors pertaining to the evidence dem- rejecting the State’s accepting other than of the in the commission gun that a was used onstrating for or juror’s feelings strong that a proposition crime. or her him necessarily preclude would handguns against there in this case—where the evidence fairly weighing or to the “reasonableness” relating no clearly question under the circum- gun the use of the “justifiableness” of reasoning line of a transcendental upon stances—is based disagree. which we with

[*] sis si: juror a charges against appellant, nature of the the Given could handguns for or feelings against strong who had after impartial. Additionally, fair and nonetheless be likelihood into the probing interest of judicial the balancing bias with the juror, partiality uncovering disqualifying of a court’s efficiency preservation judicial interests of

51 resources, are precedential limited we troubled the con- of ... a to sequences effectively court ask requiring] juror “strong whether has on prospective feelings hand- guns” every case which evidence jury the will receive that a the a handgun was used in commission of crime. Curtin, that 393 Md. at 903 A.2d at 933. We held juror’s voir dire not “proposed question directly did address ability weigh to or render verdict fairly impartial issues an 612, this case.” Id. at 903 A.2d at v. (quoting Curtin State, 68, (2005)). 758, 165 Md.App. 884 A.2d 763-764 court, therefore, Curtin was more with collater- concerned al nature the handgun issue in that than with any case fundamental differences between crimes. moreover,

The majority, that a explicitly acknowledged “strong feelings” question could appropriate be other cases involving handguns, citing favorably and to Baker repeatedly State, of Specials Court case which held that a Appeals handguns instruction was required. See Baker v. 600, 613, (2004) (where

Md.App. 853 A.2d criminal argued defendant he defense, that shot victim in self meaning jury might have to decide appellant whether used force; thus, reasonable the “trial court should have asked juror whether any prospective had strong feelings about hand- guns would have affected his or her ability weigh issues fairly.”)

Additionally, since we have an signaled intent treat all charges criminal during the same voir dire. See Stewart, Stewart, 44. In we dealt with a court’s refusal to ask voir dire as to question whether the jury would give weight undue to the Assistant Attor- State’s ney’s arguments. man- holding was not datory, we also opined crime-specific questions should asked: we

Although judge conclude that the trial not abuse did his discretion in ask declining proposed questions, think it and one practice, judges sound follow, jurors, should when prospective ask asked to do so, charged is -with that the defendant whether fact to be fair and ability crime affect their particular would strong have such they or whether impartial case be fair they could not about crime feelings solely on the the case based impartial decide us, defense counsel In the case before presented. evidence did not such an instruction. request 56 n. In this passage Id. n. 923 A.2d at 6. at 167 to a any give crime could rise implicitly recognized juror, holding in a bias our Curtin disqualifying prospective notwithstanding.

Curtin, therefore, as a remind- more understood properly is must be aimed proposed question er that a crime, witnesses, directly related to the biases uncovering Indeed, recently character- this is how we the defendant. Curtin, rejecting interpretation a broader ized our opinion forwarded the State: voir would not requested question

If a dire response bias among voir dire and uncover goal further need not asked and jury, members of the prospective not its in not so. doing the court will abuse discretion illustrative____ The distin- [Curtin Court ] [] Curtin other which were questions guished question during “adequately the voir dire which addressed included the nature of armed regarding issues of bias potential therefore, whether the re- focused on robbery.” pursuit in the dire would assist quested question and, way, the court and bias in that assist uncovering selecting an unbiased jury. counsel (citations Moore, 989 A.2d at 1165-66. omitted). This in Moore clarified Curtin discussion because armed regarding was not bias required addressed. adequately bias—was robbery disqualifying —a in the handguns, a collateral issue Any juror bias towards bias the nature of given not a disqualifying Costley Md.App. case. also in that See issues (2007) (when charged with mur- defendant was

53 mother-in-law, dering his required trial court not to ask the jury questions problems). about divorce in-law Curtin should therefore be limited to its facts. in holding provides

Our Moore guidance, additional as that a case resolved similar over the classes dispute of witnesses Moore, 635, that a question. deserved See 989 A.2d In the 1150. line of voir dire cases involving bias witnesses, towards certain our initial decision in Lang- came 337, ley, Md. 378 A.2d In Langley, 1338. we addressed whether the following question dire was required: “Is there anyone who would more give here credit to the testimo- police ny civilian, of a officer over that aof merely because of 338, this status a police as officer?” Id. at 378 A.2d at 1338 added). (emphasis question We held that was mandatory, and that it was reversible error for the trial court to have refused it.

After our holding in much Langley, like the cases follow- Thomas, ing we were asked to consider whether Langley broadly applied questions regarding all the State’s wit- nesses, or whether it holding narrow only addressed at Moore, police officers. See 412 Md. at at A.2d 1150. Moore, we considered the general more “Defense-Witness” question:

“Would any prospective juror tend to view the testimony of by witness called the defense with more skepticism than witnesses called the merely they because were called by the defense?” at

Id. 989 A.2d at 1153. The State limit sought to holding Langley officers, apply only police reasoning mandatory Defense-Witness was not inqui- ry because previous listing mandatory cases voir dire ques- tions had not expressly mentioned this Id. at 655- question. 656, 989 A.2d 1161. In responding argument, to the State’s that, we first acknowledged first glance holding “[a]t viewed, as, Langley may interpreted limited to wit- police nesses who are officers.” Id. at 1155. and their more Langley, the cases cited We then examined and held: propositions, broad outset, Court, from the Langley apparent

[I]t that, addressing police it was officer although understood on and, thus, directly some the cases were not credibility prejudgment encompassed issue of point, underlying officers, many occupations more police than more sure, it was were To be potentially implicated. categories were nature of the issue and who witnesses questions, occupations about which determine which would or prejudicial to be asked to uncover categories, and had bias. disqualifying stated, principles “[t]he

Id. 989 A.2d at 1158. thus at We in its Langley and and embodied prescribed enunciated seen, be, narrowly interpreted so cannot as we have holding Bowie, Id. also applied police officers.” See require a (interpreting Langley Defense-Witness question). case, that adopt has we similarly suggested

In this the State of dire and limit interpretation principles, a our voir narrow in factual circumstances. As specific our to their precedents Moore, so. fails to see approach we decline to do The State’s for “trees” are of dire the principles the “forest” our voir initial the of our decisions. factual circumstances Therefore, not to the this Court has extent so, for bias recognize today potential already done crimes, dire require most and thus we will exists these biases. targeted uncovering which are questions crime, defendant, of the regardless a and requested by When any “Does member general question, should ask the court feelings charges strong [the have such about jury panel of the fairly you that it would be difficult for case] this is a question targeted the facts.” This impartially weigh crime, to a even if directly “[t]he related uncovering bias mandatory areas involve question does not holding This already has identified.” that this inquiry Court cases, “on approach but an previous is departure not a which already we have embarked.” 393 Md. at (Wilner, J., 903 A.2d at 934. concurring).

If a question charge-specific generally required when proposed, the final issue here is whether the Shim’s is distinguishable general from this he question, because used “violent death of phrasing another human being,” and not “murder” or “the criminal charges this case.” The State argues that broad, this is too it is not phrasing directed enough to the charges murder but instead could uncover a spectrum deaths, of biases other violent regarding such as deaths, suicides military that would not be dis- qualifying biases.

We disagree. While “violent death” and “murder” are not perfectly synonymous, they Here, are close enough. victim, violent death of two, mother of working jobs, two is the central only event and jury issue. A member with exceedingly strong feelings regarding “violent death” may be unable verdict, to render a and impartial fair subject and be disqualification. The defendant is thus entitled to inquire into this potential bias.

To moreover, hold differently, make would an exercise in semantics and a minefield for criminal defen dants and the State. We decline to make such fine distinc tions or create more A uncertainty. proposed voir dire ques tion need perfect form, not be in and the court is free to modify the proposed question as Casey, needed. See 217 Md. 606, (“We at 143 A.2d at say, 631 do not even intend to intimate, that the was required court propound precise questions The form submitted. of the to be asked questions is court.”). clearly within the sound discretion of the Gun Cf. (1997) 332, 350, 374, ning 347 Md. 701 382-83 (“It ... judge should be noted that a is under no obligation by to use the counsel in precise language suggested submitting jury] instruction. The fact that counsel’s formu [a lation the law accurately preclude states does not court instruction, judicial that the fashioning provided its own ly-crafted is ‘fairly instruction accurate and covers’ the re-

56 312, Carroll, 329 n. instruction.”); 355 Md. Bentley v.

quested (“[T]he (1999) jury 697, particular 10, 706 n. 10 734 A.2d should not have probably by Appellant instructions requested rather, the court should presented; in the form given been addressing adequately instructions have crafted its own jury’s for the appropriate that were by Appellant issues raised consideration.”) Judge follow a trial court should generally,

More ‘mar a ‘doubtful’ that it “resolve Murphy’s suggestion and/or request of the who has party favor ginal’ question suggested, has further Judge Murphy asked.” ed that concurrences, later problems trial courts can avoid two ask the trial court should inquiry, which simplified with a condition that would be for question probe itself “does this case on the juror’s to decide likely impair ability 78, 884 A.2d at Md.App. evidence presented?” (2006) C.J., A.2d 922 (Murphy, aff'd, Moore, 1169 (Murphy, 989 A.2d at Md. concurring), states J., question “yes,” If the answer to that concurring). should be asked. Judge Murphy, Instruction Flight 2. The is whether must consider here

The second issue we by giving an instruction the trial court abused its discretion The State the defendant. regarding flight the jury abundance of evidence Shim that “there was an argues a bor including driving apprehension,” to avoid steps took whereabouts, and car, about his wearing gloves, lying rowed This from his car. shotgun to remove a asking friend a flight evidence, generate was sufficient argues, the State instruction, alternative, a harmless error.2 or in the flight verbatim from explains instruction was taken 2. The State Maryland State flight concealment. See pattern for instructions Ass'n, Jury Instructions 3:24 at Maryland Pattern Bar Criminal (1997). term "concealment” pattern include the instructions argues “flight.” The State every of the word next to instance brackets 'concealment,' 'flight' in the instead of court substituted that “had the instruction, object to the apparently would have had no cause Shim the Shim evidence was insufficient to show argues “flight,” merely because it shows that “someone drove into the shack, Fed Ex the shot facility, guard Lynch, entered and left.” “there was no the car Shim states that evidence left facility high police the at a rate of or that the had speed pursued Instead, him in a vehicle.” Shim fleeing “returned to his home was placed and continued his routine until he under arrest.”

We should be flight given addressed when instruction State, (2006). Thompson v. 393 Md. 901 A.2d 208 In that case, robbed, shot, three men and one man were Balti- by more’s Inner Harbor two unknown perpetrators. Police defendant, saw investigating the crime who fit the descrip- tion of one of the A officer perpetrators. police approached defendant, attempted who to flee. The defendant was subsequently and charged robbery arrested with and attempt- ed murder. At the close of the court an gave identical instruction to the instruction at issue here. Defen- dant appealed, arguing he had because he fled was in possession of the and the trial drugs, court erred giving instruction falsely because it assumed a connection between defendant’s flight guilt for the more serious crimes of certiorari, robbery and attempted murder.3 granted We explained our for standards when a instruction flight appro- priate: Thomas v. (2002), 812 A.2d 1050

adopted the test four-prong set forth United States Court of United States v. for the Fifth Appeals Circuit (5th Myers, Cir.1977), respect F.2d 1036 with to the probative value of evidence consciousness of indicating guilt and the assessing jury rubric for propriety instruc- tions based on such evidence. encourages interpret "flight”

instruction.” The State this Court broadly, "flight justice” so as to include and thus "concealment.” 3. drug possession. drugs The defendant was not with suppressed. recovered were of for Appeals Court ... United States Myers, [t]he In flight of value probative concluded that the the Fifth Circuit upon guilt depends of circumstantial evidence evidence as be inferences can which four confidence with degree of (2) from (1) flight; behavior to from the defendant’s drawn: (3) of from consciousness of guilt; to consciousness flight charged; the crime concerning of guilt to consciousness guilt the crime (4) guilt concerning of from consciousness and Moreover, the charged. of the crime guilt to actual charged improper is unless flight that “a instruction held Court all for support furnish reasonable is sufficient to evidence inferences.” necessary four of the which have determined jurisdictions with those agree We the four unless given should not flight that a instruction be drawn. reasonably may in Myers inferences explicated Therefore, flight given properly, on to be for an instruction to be be able reasonably inferences must following four tried: that ultimately case as from the facts of the drawn flight flight; suggests of the defendant the behavior of the consciousness of that guilt; a consciousness suggests related closely or a charged to the crime is related guilt of the crime crime; guilt of and that the consciousness or a the crime guilt actual of charged suggests closely related crime. (some citations 901 A.2d at 220 Md. at

Thompson, 393 omitted). the third inference— we found that Thompson, the crime related to of guilt the consciousness to the defen- drawn due reasonably not be charged —could instruc- flight thus found that We drug possession. dant’s given. improperly tion was clarified court appellate the intermediate

In another departure: and flight the distinction between “depar- word for the is often misused flight The term has been after a crime from the scene Departure ture.” of itself, guilt. an inference committed, does not warrant of circum- range a broad may be established ‘Flight’ depar- that for rule to be proper believe stances. We there must be of flight, the legal significance to take on ture which, in present unexplained conjunc- circumstances reasonably tion with the an that it leaving, justify inference an guilt was done with consciousness pursuant effort to apprehension prosecution avoid based on guilt. 292, 324-25, 178 Md.App. 941 A.2d

Hoerauf (2008) deleted). (emphasis The Court of Special Appeals in this case flight held the trial court erred in giving instruction only when evidence showed departure.

In this the Court of with Special Appeals agreed Shim that the first inference —that the behavior of the defendant suggests flight not been met: —had hand,

In at the case there no flight. evidence of rational inferences to drawn from the evidence demon- strated only that the shooter left the Fed Ex after facility the shooting. There was no evidence that the shooter fled. The evidence that appellant took to steps being avoid appre- result, hended did not amount to flight. As a the trial court abused its discretion in giving flight instruction.

We consider the intermediate appellate court’s decision sound, and agree that the “flight” instruction should not have been given in this case.

CONCLUSION The trial court its abused discretion when it refused to give Shim’s proposed question. We a generally require question asking whether member of the venire has panel such “strong feelings about the charged crime as make difficult or impossible weigh fairly,” facts and the here is the equivalent functional of that question. The trial court also abused its discretion in giving instruction when flight only the evidence showed a from the crime departure scene. COURT OF SPECIAL APPEALS AFFIRMED. JUDG- MENTS OF THE CIRCUIT PRINCE COURT FOR REVERSED; GEORGE’S COUNTY REMANDED CASE TO THAT COURT TRIAL. IN FOR NEW COSTS THIS TO APPEALS

COURT AND THE COURT OF SPECIAL BE PAID BY GEORGE’S COUNTY. PRINCE

HARRELL, J., concurs. J.,

HARRELL, concurring. I out Majority separately I with the write opinion. concur my my During of and to conscience. self-indulgence purge Court, have full circle on the my time views come on required court should be general issue of whether so, if whether ask a voir dire do question, requested feel- jurors strong in a criminal case “have such prospective (insert charged) crime ings concerning pertinent nature of render a fair and impartial would be unable to they Court, joined after I verdict.” its first manifestation (narcotics (2002) Thomas, Md. 798 A.2d 566 State v. offense), opinion, 369 Md. joined Judge concurring I Raker’s that, 575-76, expressed the view which of case-by-case inqui- a trend consideration such assuming ries, acquisition will between the blurring eventually occur strikes, and peremptory information aid of for-cause strikes of trial limiting judges with a concomitant of the discretion repetitive litigation of dire. Id. To avoid control Raker and I by case-by-case approach, Judge a necessitated would a process “a voir dire enable generally endorsed a develop elicit to rational lawyer to sufficient information juror, whether for cause or potential basis for excluding 218-19, at Id. 798 A.2d 575-76. challenges.” at peremptory State, (2002) Md. 806 A.2d 265 Next came Sweet v. 371 (child molestation), Judge I with Raker again where stood of to a like form Majority) require question. for (writing 9-10, Id. at 806 A.2d at 270-71. policy my jurisprudential position,

Departing previous in I veered in another direction Curtin (2006) (use joining Majority handgun), 922 of A.2d of a for request question, denial opinion justifying of counts among charges, multiple in a other involving, in the handgun use deadly weapon with a robbery violence, regarding “strong feelings commission of a crime of Id. at 596-97, concerning the use of 903 A.2d at handguns.” hindsight, handgun nearly 924-25. as seems use likely inspire potential strong feelings among law-abiding to venire as narcotics child molestation. I in persons way no here purport critique of the re-imagine reasoning Curtin so as to evade for Majority opinion myself I, one, question of whether for was consistent there with the prior I myself Judge views associated with in Raker’s concur- in Thomas and her rence Sweet. Suffice it Majority opinion to say join I in Curtin perhaps Majority was moved because the case-by-case inexorable march feared in the Thomas concurrence was coming I pass, and thought stop erect a sign sorts to future cases. discourage That time, failed At obviously. point I am content to abide Judge (Maj. Adkins’s at op. rationalizations A.3d 678-80) in the that Curtin case opinion Shim’s ... “should Id. limited to facts.” its 265.

Case Details

Case Name: State v. Shim

Court Name: Court of Appeals of Maryland

Date Published: Jan 25, 2011

Citation: 12 A.3d 671

Docket Number: 18, September Term, 2010

Court Abbreviation: Md.