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HEADNOTE: RICKY DINGLE v. STATE OF MARYLAND, No. 87, September Term, 1999 CRIMINAL LAW - VOIR DIRE - Voir dire inquiry requiring response from the prospective juror, only if that juror believes he or she can be impartial, usurps the trial court's role in jury selection.

Circuit Court for Baltimore County Case No. 97CR04265 IN THE COURT OF APPEALS OF MARYLAND No. 87 September Term, 1999

RICKY DINGLE v. STATE OF MARYLAND

Bell, C.J. Eldridge Rodowsky Raker Wilner Cathell Harrell, JJ.

Opinion by Bell, C.J. Raker, Wilner and Harrell, JJ. Dissent

Filed: September 15, 2000

The issue this case presents,1 which involves the voir dire process, had its genesis in the Circuit Court for Baltimore County, in the trial, for robbery with a dangerous and deadly weapon and related charges, of the petitioner, Ricky Dingle and two co-defendants.2 During the voir dire process, the petitioner sought to have the trial court inquire of the venire panel whether any of them had certain experiences or associations.3 While the court agreed to, and did, make the inquiries the petitioner requested, it did so by joining with each of the petitioner's requested inquiries, one suggested by the State, namely an inquiry into whether the experience or association posited would affect the prospective juror's ability to be fair and impartial.4
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Thus,

In his Petition for Writ of Certiorari, the petitioner asked this Court to address the following question: "Did the lower court err in approving, over defense objection, a method of voir dire (a two-part question, respond only if your answer to both parts is in the affirmative) which made the jurors, rather than the trial judge, the final arbiter of impartiality and prevented defense counsel from exercise of his challenges for cause?"
2

The facts of the case and the evidence produced at trial are neither relevant nor in dispute. Thus, we will not set them out in this opinion.
3

The areas of concern to the petitioner, about which the petitioner asked the court to inquire, were: 1) experience as a victim of crime; 2) experience as an accused or convicted person; 3) experience as a witness in a criminal case; 4) experience as a petit juror in a criminal case or as a member of a grand jury; 5) membership in any victims' rights group; 6) connection with the legal profession; and 7) association with law enforcement.
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The specific questions asked were: "Have you or any family member or close personal friend ever been the victim of a crime, and if your answer to that part of the question is yes, would that fact interfere with your ability to be fair and impartial in this case in which the state alleges that the defendants have committed a crime? "Have you or any family member or close personal friend ever been accused of committing a crime other than a minor traffic violation, and if your answer to the question is yes, would the fact that you or your family member or friend has

the inquiry the court conducted to satisfy the petitioner's concerns consisted of a series of two part questions, the answers to which, the court instructed, need not be revealed unless a member of the venire panel answered both parts in the affirmative.5 As to that, the venire panel was instructed as

been accused of a crime interfere with your ability to be fair and impartial in this case? If so, if your answer is yes to both parts of the question, please stand. "Have you or any family member or close personal friend ever been a witness in a criminal case, and if your answer to that question is yes, would that fact affect your ability to be fair and impartial in this case? "Have you or any of your family members or close personal friends ever served before as a juror either in a criminal case on a petit jury or on the grand jury, and if your answer to that question is yes, would that prior service as a juror interfere with your ability to be fair and impartial if you were seated as a juror in this case? "Do you or any family member or close personal friend belong to a victims' rights group such as the Roper Group, the Stephanie Roper Group, or Mothers Against Drunk Drivers, and if, in fact, your answer to that question is yes, would that fact interfere with your ability to be fair and impartial in this case? "Have you or any family member or close personal friend ever attended law school, studied the law, criminology, or corrections or been employed in the legal profession, either as a lawyer, a paralegal, or clerk or secretary, and if your answer to that question is yes, would that fact interfere with your ability to be fair and impartial in this case? "Are any of you or your family members or close personal friends associated with members of any law-enforcement agency, like the Baltimore County Police Department, the Baltimore City Police Department, the Federal Bureau of Investigation, the Maryland State Police, the Secret Service? That's part A. "Part B of the question, and if you are so associated, would that fact interfere with your ability to be fair and impartial if you were seated as a juror in this case?" A review of the record reveals that the trial court did not use only two-part questions and the format at issue in this case in the conduct of voir dire. At times, it asked one part
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follows: "You should only stand if your answer is yes to both parts of the question. If your answer is no to either part of the question, then you should not stand. So once again, only stand if your answer is yes to both parts of the question." The prospective jurors who stood and confirmed that their answer to the second part of the question was in the affirmative, thus indicating that they could not be fair, were, if reached, excused for cause, either on motion of the State or of the defense. What occurred during the inquiry into the prospective jurors' experience with crime victimization is illustrative: "THE COURT: Again, a number of two-part questions, ladies and gentlemen. Only stand if your answer is yes to both parts of the question. "Have you or any family member or close personal friend ever been a victim of a crime, and if your answer to that part of the question is yes, would that fact interfere with your ability to be fair and impartial in this case in which the state alleges that the defendants have committed a crime? "So again, have you or any family member or a friend been the victim of a crime, and if the answer to that part of the question is yes, would that fact interfere with your ability to be fair and impartial in this case? If so, please stand. questions, specifically so advising the venire. When any one part question received a response, the court followed up with an additional question to determine if the prospective juror nevertheless could be fair. One such question inquired about an association that members of the panel might have, whether any member of the venire either had an account or conducted business with a particular bank. Those who stood in response were then asked if that relationship would "interfere with [their] ability to be fair and impartial in this case." The record also reflects that 22 venire persons were excused the cause. The issue in this case is not about how well the trial court conducted voir dire; how well the trial court may have conducted the voir dire it allowed does not impact whether it erred in the manner in which it handled the propounding of the questions at issue here. If the questions at issue here should have been asked, and an answer obtained, without the State's suffix, reversal is required, however excellently the remainder of the process may have been conducted. Nor is it relevant how many persons were excused for cause. If the petitioner were potentially denied the right to challenge others, or even one person, who might have been subject to discharge because of the information generated, the many who were excused will matter not one whit.
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"All right. The gentleman in the white shirt.
"MR. BLANEY: Bruce Blaney, 639.

"THE COURT: And because of some involvement with a - a crime, you feel you couldn't be fair and impartial, sir? "MR. BLANEY: A friend of mine "THE COURT: Nope, I didn't - please just answer the question. "MR. BLANEY: Yes, sir. "THE COURT: Thank you very much. You may be seated. "Again, ladies and gentlemen, if you'd please simply answer the question without elaborating, it would be very helpful. "Yes, ma'am. "MS. CARRIGAN: 679, Barbara Carrigan. "THE COURT: Miss Carrigan, you're saying because of some exposure to crime, you couldn't be fair and impartial? "MS. CARRIGAN: I could be fair. I'm sorry.[6] "THE COURT: Okay. You could be fair. Then you may be seated. "Again, only stand if your answer is yes to both parts of the question. "Yes, sir. "MR. MARSHALL: Tom Marshall, 643. "THE COURT: All right . Mr. Marshall, you're saying that you could not be fair and impartial as a result of some exposure to crime? "MR. MARSHALL: That's correct. "THE COURT: All right. Thank you. Be seated. "All right. The gentleman in the gray sports shirt. "MR. FLANNIGAN: George Flannigan, 329. "THE COURT: And you're saying you couldn't be fair and impartial, Mr. Flannigan? "MR. FLANNIGAN: Yes, sir. "THE COURT: Thank you. Be seated. "The other gentleman in the gray sports shirt. "MR. WORTH: James Worth, 637. "THE COURT: And your answer is the same, sir? "MR. WORTH: Yes. "THE COURT: All right. You may be seated. Thank you. "Ma'am. "MS. MALICKI: Joan Malicki, number 658.

Fortuitously, because she misunderstood the question, Ms. Carrigan inadvertently provided the court, and thus the petitioner, with relevant information.
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"THE COURT: All right. Miss Malicki, your answer is the same? "MS. MALICKI: Yes. "THE COURT: Be seated. "MS. KNIGHT: Jeannine Knight, number 321. "THE COURT: And Miss Knight, your answer is the same? "MS. KNIGHT: Yes. "THE COURT: All right. Thank you. You may be seated. "Ma'am? Your name and juror number? "MS. SPOHN: Suzanne Spohn, number 76. "THE COURT: All right. Miss Spohn, your answer is the same? "MS. SPOHN: I don't think I could be impartial in this crime. "THE COURT: Well, again, you can't be fair and impartial then. Thank you. You may be seated. "All right. The gentleman in the white shirt. "MR. FAKERI: Alexander Fakeri, number 87. "THE COURT: And Mr. Fakeri, your response is the same? "MR. FAKERI: Yes, sir. "THE COURT: All right. Thank you. Be seated. "Ma'am? "MS. BURMAN: Pamela Burman, 673. "THE COURT: And Miss Burman, you also feel the same way? "MS. BURMAN: Correct. "THE COURT: Thank you. Be seated." The petitioner objected to the use of the two part format on a number of grounds, principally because he believed, and therefore argued, that asking compound questions and requiring an answer only if the prospective juror thought that he or she could not be fair, would, and, in fact did, result in a jury in which the venire persons themselves, by "unilateral decision," determined their fitness to serve on the jury. The petitioner also argued that conducting the voir dire in the manner the trial court did would, and in fact did, deprive the petitioner of information relevant and critical to the exercise of his challenges for cause. The objections were overruled. The court's rationale for the ruling is instructive: "The court has asked the questions which the defense has presented in the
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two-part format I described on many occasions, and on many occasions we've had people stand up in response to those questions and say, Yes, Judge, I can't be fair and impartial, so it would appear to the court that the only reason for calling up the venire men here to the bench for individual voir dire is to allow the defense to develop more information which the defense intends to use in exercising its peremptory challenges, and therefore, the court declines to do so." The petitioner's appeal to the Court of Special Appeals was unsuccessful. That court affirmed the judgment of the Circuit Court in an unreported opinion. We shall reverse the judgment of the intermediate appellate court, in the process confirming that the trial judge is charged with the impaneling of the jury and must determine, in the final analysis, the fitness of the individual venire persons. We shall hold that the voir dire procedure utilized in this case usurped the court's responsibility in this regard. Voir dire, the process by which prospective jurors are examined to determine whether cause for disqualification exists, see Boyd v. State, 341 Md. 431, 435, 671 A.2d 33, 35 (1996), is the mechanism whereby the right to a fair and impartial jury, guaranteed by Art. 21 of the Maryland Declaration of Rights,7 see Grogg v. State, 231 Md. 530, 532, 191 A.2d 435, 436 (1962), is given substance. See Hill v. State, 339 Md. 275, 280, 661 A.2d 1164, 1166 (1995); Bedford v. State, 317 Md. 659, 670, 566 A.2d 111, 116 (1989). The over arching purpose of voir dire in a criminal case is to ensure a fair and impartial jury. See Boyd, 341 Md. 431, 435, 671 A.2d 33, 35

Article 21 of the Maryland Declaration of Rights guarantees, "[t]hat in all criminal prosecutions, every man hath a right ... to a speedy trial by an impartial jury, without whose unanimous consent he ought not to be found guilty." The Sixth Amendment of the United States Constitution similarly guarantees a criminal defendant, inter alia, "the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed."
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(1996); Hill, 339 Md. 275, 279, 661 A.2d 1164, 1166 (1995); Davis v. State, 333 Md. 27, 34, 633 A.2d 867, 871 (1993); Bedford, 317 Md. 659, 670, 566 A.2d 111, 117 (1989); Casey v. Roman Catholic Archbishop, 217 Md. 595, 605, 143 A.2d 627, 631 (1958); Adams v. State, 200 Md. 133, 140, 88 A.2d 556, 559 (1952). In Davis, 333 Md. at 33, 633 A.2d at 871, quoting Langley v. State, 281 Md. 337, 340, 378 A.2d 1338, 1339 (1977) (citing Waters v. State, 51 Md. 430, 436 (1879)), we said, "a fundamental tenet underlying the practice of trial by jury is that each juror, as far as possible, be "impartial and unbiased." We recognized in Davis that: "There are two areas of inquiry that may uncover cause for disqualification: (1) an examination to determine whether prospective jurors meet the minimum statutory qualifications for jury service, see Maryland Code (1974, 1989 Repl.Vol., 1992 Cum.Supp.), Courts & Judicial Proceedings Article,

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