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Sean D. Fowlkes v. State of Maryland, No. 1302 September Term, 1996

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JURY VOIR DIRE - CRIMINAL LAW: The court's failure to ask a question as to whether any prospective juror would be unduly swayed by sympathy because the victim was a teenager rendered paraplegic because of gun violence was not error.

REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1302 September Term, 1996

SEAN D. FOWLKES

v.

STATE OF MARYLAND

Wenner, Eyler, Fischer, Robert F., (Retired, specially assigned), JJ.

Opinion by Eyler, J., Dissenting Opinion by Wenner, J.

Filed: October 30, 1997

Appellant, Sean Fowlkes, was convicted by a jury in the Circuit Court for Baltimore City of assault and carrying a handgun. He was sentenced to consecutive terms of twenty and three years, respectively. questions: I. Did the trial court abuse its discretion in refusing to voir dire the jury panel on sympathy for the paraplegic, teenaged, innocent female victim of gun violence? Did the trial court err in admitting extensive, unduly prejudicial evidence concerning the victim's physical disabilities and suffering, after the injury? On appeal, appellant presents us with the following

II.

We will answer appellant's first question in the negative, not reach the second question, and affirm the judgments of the circuit court.

FACTS At about 10 p.m., on 30 March 1994, Marquites "Christian" Williams, 13, her cousin, Dasha Hinton, 14, and their two friends, Shanta Harrison and Tameka Winder, had just left a store and were walking along Chester Street in Baltimore City. As they approached

the intersection of Chester and Lafayette Streets, they saw a man get out of a car and begin arguing with some young men who were standing on the corner. Christian and Dasha recognized one of the

men on the corner as appellant, who is known in the neighborhood as "Swo." During the argument, someone began shooting, and a gun Christian was struck by a stray bullet.

battle ensued.

-2In investigating the incident, the police recovered seven spent bullet casings in the area of the gun battle. Five of the

casings were determined to have been fired by the same .32 caliber automatic, and two of the casings were determined to have been fired from a .380 caliber automatic. Broken automobile glass was man get out

found in the area where witnesses described seeing the of the car.

The witnesses to the shooting all agreed that Christian was an innocent victim of a bullet meant for someone involved in the argument; however, some witnesses reported seeing different people shooting. Christian testified that as she watched the man who had

been in the car walk away from appellant, appellant "started shooting," and that the other men on the corner were not shooting. Dasha Hinton, one of the three girls walking with Christian, testified that she saw appellant step out into the street and start shooting at the man who had been in the car. appellant shot two or three times. Dasha estimated that

Shanta Harrison, who was

fourteen at the time of trial, testified she was sure the man who had been in the car fired shots, but did not see whether any of the men on the corner engaged in the shooting. Tameka Winder, who was

seventeen at the time of the shooting, testified that after the man who had been in the car told the men on the corner he was going to kill them all if they were there when he got back, the shooting began. During direct examination, Tameka testified that both the

-3man who had been in the car and the men on the corner, including appellant, started shooting. was not positive Tameka she saw On cross-examination, she said she appellant that shoot. to On trial re-direct she had

examination,

confirmed

prior

identified appellant as a shooter. The defense called Harry Morgan, a resident of the area where the shooting occurred, who testified that upon hearing gun shots he looked up and saw a man standing outside a car shooting a gun, the same man identified by other witnesses as having exited from the car. Although he knows appellant from the neighborhood and he saw

the group of young men standing on the corner, Harry Morgan said he did not see appellant in that group. Appellant testified on his

own behalf and stated that he was walking towards the corner when he saw the man described by other witnesses as having exited from a car engaged in a fist fight with Rollo, an acquaintance. The man

fighting with Rollo then threatened to "kill everyone on the corner" and started shooting. Appellant testified he never fired No one known as "Rollo"

a shot, nor did he have a gun with him. testified at trial.

Christian was shot in the back as she ran to escape the gun violence. She was initially treated at University Hospital, where Later she was transferred to Mount

she remained for three months.

Washington Pediatric Hospital, where she remained for five months

-4before returning to live with her grandmother. wounded in the gun fight. In August 1994, appellant was arrested in connection with this shooting. storm. His first trial ended in a mistrial due to a severe snow No one else was

Appellant was later convicted by a jury of assault and of

wearing a handgun, but found not guilty of the remaining charges. After appellant was sentenced to a term of twenty years for assault, and to a consecutive term of three years for the handgun violation, he noted this appeal.

I. Appellant first contends the trial court abused its discretion in failing to inquire of the voir dire panel as to its ability to render a fair verdict without being influenced by sympathy for Christian, an innocent victim of gun violence. The State

maintains that this issue was not properly preserved for our review. Preservation of the Issue According to the State, Gilchrist v. State, 340 Md. 606, 667 A.2d 876 (1995), is dispositive because defense counsel said the panel chosen was satisfactory, without again noting his objection. disagree. We

In Gilchrist, defense counsel systematically used his

preemptory challenges to eliminate white persons from the jury. This was challenged by the State. After conducting an inquiry, the

-5trial judge excused the entire panel and brought in a new venire panel from which a new jury was selected. On appeal, the Court of

Appeals held that defense counsel did not waive his exclusion of prospective jurors on the first panel by responding when asked that he approved of the second panel, and that Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), was not apposite. 618.1 In Gilchrist,the Court of Appeals said that "a defendant's claim of error in the inclusion or exclusion of a prospective juror or jurors `is ordinarily abandoned when the defendant or his counsel indicates satisfaction with the jury at the conclusion of the jury selection process.'" 340 Md. at 617 (quoting Mills v. State, 310 Md. 33, Id. at

40, 527 A.2d 3 (1987), vacated on other grounds, 486 U.S. 367 (1988)). "Nevertheless, where the objection was not directly `aimed at the composition of the jury ultimately selected,' we have taken the position that the objecting party's `approval of the jury as ultimately selected . . . did not explicitly or implicitly waive his previously asserted . . . [objection, and his] objection was

The Court went on to say that "the Batson principle is not limited to the exclusion from juries of historically oppressed minorities. . . . Thus, under both Article 24 of the Maryland Declaration of Rights and the Equal Protection Clause of the Fourteenth Amendment, peremptory challenges may not be exercised on the basis of race." Gilchrist, 340 Md. at 624-25.

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-6preserved for appellate review.'" Id. at 618 (quoting Couser v. State,

282 Md. 125, 130, 383 A.2d 389, cert. denied, 439 U.S. 852 (1978)). Here, defense counsel objected to the trial court's failure to ask a particular question during voir dire, not to the ultimate composition of the jury. Therefore, defense counsel did not waive Gilchrist, 340 Md. at

the objection by approving the panel selected. 617.

In Ingoglia v. State, 102 Md. App. 659, 651 A.2d 409 (1995), appellant requested that a particular question be posed to the venire panel during voir dire. The request was denied, and at the

conclusion of the voir dire, defense counsel approved the panel selected. Just as in the case at hand, the State argued that, by

approving the panel selected, appellant waived the objection to the trial judge's failure to pose the requested question. According to

Ingoglia, under these circumstances, "we are convinced that defense counsel's acceptance of the jury `was merely obedient to the court's ruling and obviously [was] not a withdrawal of the prior objection, timely made.'" Id. at 664 (quoting Miles v. State, 88 Md.

App. 360, 377, 594 A.2d 1208, cert. denied, 325 Md. 94, 599 A.2d 447 (1991)). In Couser v. State, supra, 282 Md. 125 (1978), defense

counsel sought a list prepared by the State concerning the venire panel. The trial judge declined to permit defense counsel to see After the jury was

the list, considering it to be work product.

-7selected, defense counsel said he was satisfied with the panel chosen. On appeal, the State claimed that appellant had not The Court of Appeals did not agree because

preserved this issue.

the objection was not directly aimed at the composition of the jury and, therefore, a statement of satisfaction with the panel selected did not waive collateral issues. Id. at 129-30.

Hence, just as in Ingoglia, Miles, and Couser, appellant did not fail to preserve this issue for our review. Merits of the Issue Regarding the Proposed Voir Dire Question Prior to being rendered paraplegic by a stray bullet, the victim was a normal thirteen-year-old female. The trial judge was

aware that the victim was to testify for the State, and that it would be necessary for her to testify either from a wheelchair or from a stretcher. informed of the Nonetheless, the prospective jurors were not extent of the victim's injuries until the

prosecutor's opening statement. The venire panel was given only the name of the defendant involved, that the defendant was charged with attempted murder and related offenses, the date and location of the incident, the name of the victim, and that there had been a newspaper article concerning the case. The victim was not present

in the court room and the prospective jurors were afforded no further information concerning the incident or the suffered by the victim. injuries

-8The trial judge posed the following question to the

prospective jurors: Is there any member who for any religious reason or any other reason whatsoever cannot judge a person - cannot reach a fair verdict, cannot decide a case, religious, prejudice, or any other reason whatsoever, this [sic] you could not sit as a member of this jury and reach a verdict, render a fair and impartial trial based solely upon the evidence this [sic] you hear in this courtroom and nothing else? This was followed by the following statement and question: must consider and decide this case fairly and impartially. "[Y]ou You are

to perform this duty without bias or prejudice as to any party. You should not be swayed by sympathy, prejudice or public opinion. That's the law. law?" Is there any prospective juror who cannot obey the

There was no affirmative response.

As we said earlier, defense counsel asked the presiding judge to inquire of the venire panel if it would be able to deliver a fair verdict, without being swayed by sympathy for the victim, a teenager who was rendered paraplegic and permanently confined to a wheelchair because of gun violence.2 following ensued: STATE: In other words what Counsel is asking is if you have sympathy. Everybody in this As to this request, the

We note that the question proposed by defense counsel was far from clear and was not included in the defense counsel's initial proposed voir dire. Since it was, however, made clear by the prosecutor, it has been preserved for our review. Moreover, the trial judge obviously understood the proposed question and denied it.

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-9room has sympathy for a paraplegic and they have to decide based on what they hear in the courtroom. * THE COURT: * * * I've never asked that question before and I've had quadriplegics in in [sic] beds before the jury and my fear is it gives fair notice to the jury to say now, they may have sympathy for them, but telling them they ought to have sympathy for this, and that's a legitimate thing to do so far as deciding this case is concerned? No, I don't believe it's legitimate, sir, at all. Sympathy -* THE COURT: * * * There is an instruction that you can't decide this case based upon fear and sympathy. I don't want to highlight this and I think [your request] would be too much of a highlight. There is an instruction in civil as well as criminal instructions saying you must decide this case without fear, without sympathy. * * * * I'll tell the jury instruction number 204, impartiality in considerations. . . . You are to perform this duty without bias or prejudice as to any party. You should not be swayed by sympathy, prejudice or public opinion and that's the law. * * * * So, I don't wish to give it because I don't think it's required and I think it would do more harm than good and I so find. It is the State's position that the question was not required, and the trial judge, in denying defense counsel's request, acted within the permissible scope of his discretion. We agree with the

DEFENSE:

-10State with respect to the narrow issue presented, but as explained below, trial judges should generally provide a brief summary of the nature of the case to the panel before asking specific voir dire questions. Under certain circumstances, this may include a

reference to the nature of any injury sustained. In Boyd v. State, 341 Md. 431 (1996), Judge Karwacki, writing for the Court of Appeals, reviewed the evolution and requirements of the voir dire process in Maryland. The purpose of voir dire is Id. at

to ascertain the existence of cause for disqualification. 435.

The scope of voir dire and the form of the questions

propounded generally rest within the discretion of the trial judge. Id. at 436. The "limited arena of mandatory questioning" extends

only to those areas of inquiry "reasonably likely to reveal cause for disqualification." Id. at 436. The two areas of inquiry that

may uncover cause for disqualification are (1) whether prospective jurors meet minimum statutory qualifications for jury service and (2) "the state of mind of the juror in respect to the matter in hand or any collateral matter reasonably liable to unduly influence him." Id. The proper focus of voir dire examination has been

described as being limited to "the venireperson's state of mind and the existence of bias, prejudice, or preconception, i.e., a mental state that gives rise to cause for disqualification. . . ." v. State, 339 Md. 275, 280 (1995). Hill

-11The Court of Appeals has identified "several areas of inquiry where, if reasonably related to the case at hand, a trial judge must question prospective jurors." Davis, 333 Md. at 36. These

include racial bias, religious bias, unwillingness to convict in a death penalty case founded upon circumstantial evidence, and a tendency to afford more weight to the testimony of a police officer solely because of his or her official status. Id. (Citations

omitted.) Maryland appellate courts have yet to address a situation such as that in the case before us, i.e., a fact specific question tied to sympathy, as opposed to bias or prejudice. Applying the above legal principles, we conclude (1) that the requested voir dire question was discretionary and not mandatory and (2) that the trial court did not abuse its discretion. With

respect to the latter, there is nothing in the case before us to support a holding that the trial court abused its discretion, other than the existence of a serious injury to a young person, which, in our opinion, is insufficient. The purpose of voir dire is to ferret out bias or prejudice conceived prior to entry into the courtroom that would prevent a juror from fairly and impartially deciding the case based on the evidence presented in the courtroom. The appellate courts of this

State have rightfully presumed that a person with racial, ethnic, or gender bias cannot render such a fair and impartial verdict but, in our view, sympathy falls into a different category. The

-12question, with respect to a specific bias, is whether the bias exists. If determined to exist, a trial judge may excuse a

prospective juror even if the person purports to be able to render a fair verdict. In contrast, we expect normal people to experience sympathy, and the question in that instance is whether the person will be unduly swayed by sympathy. In other words, a jury is

expected to decide a case without bias or prejudice; it is not expected to do so without sympathy but is expected to follow the court's instruction that it not be unduly swayed by it. In most

cases, it would be difficult for a prospective juror to know the degree to which feelings of sympathy would be aroused until the evidence is presented. In every case, there are factors that may To require trial judges to ask

evoke feelings of sympathy.

questions relating to all such facts would expand voir dire beyond that traditionally required in this State. In criminal and civil cases generally, trial judges are routinely called upon to exercise discretion in deciding whether

to admit evidence that has some probative value but which also has a propensity to arouse natural feelings of sympathy. trial courts to exercise sound discretion in We rely on the

performing

balancing test and thereby ensure a fair and impartial trial to the litigants. In this case, the specific concern of defense counsel was unclear. The concern may have been that a prospective juror unduly

-13swayed by sympathy would be more likely to believe a seriously injured person or it may have been that such a prospective juror would be more likely to hold anyone -- specifically, the defendant -- responsible for the injury. In the absence of an identifiable concern tied to a specific fact, a different conclusion on the issue presented would make it line between mandatory difficult in future cases to draw a and permissible, but not

questioning

required, questioning. For example, a contrary holding, at the very least, would imply that the nature of all serious injuries in all attempted murder cases, and the nature of the injuries causing death and the impact upon the decedent's survivors in all murder cases, would have to be disclosed to all prospective jury members as part of an inquiry as to sympathy. A contrary holding could easily be read to

imply that any sad or tragic fact would have to be the subject of such an examination in all cases. In sum, absent a cause for concern that a prospective juror may not be able to put aside sympathy because of specific facts -- as distinguished from general human experience -- a general inquiry of the panel, plus a correct instruction of the law with respect to the role of sympathy ordinarily is sufficient. Although concluding that the failure to ask the specific question before us was not reversible error, we believe a sound practice, and one that should generally be followed by trial

-14judges, is to provide prospective jurors, at or near the beginning of the voir dire process, with a brief summary of relevant

particulars of the case before it.

Frequently, the identity of the

parties, the nature of the dispute or charge, and a reference to time and location will be sufficient. In many cases, it will be

advisable to include additional particulars. The case before us was described by the trial court as follows: The case we have now before this Court is called State of Maryland versus Sean Derrick Fowlkes. Mr. Fowlkes is charged with attempted murder and certain related offenses relating to handgun, etcetera. The alleged crime occurred on the 30th day of March, 1994, in the 1800 block of North Chester Street here in the City of Baltimore. The alleged victim was one Marquites Williams. . . and a newspaper article appeared concerning this case on May the 22nd, 1995. In our view, the better practice would have been for the trial judge to inform the venire panel of the nature and extent of the disability sustained by the victim. Thereafter, a general inquiry

concerning sympathy, bias, and prejudice would have been more likely to ferret out a prospective juror who might have been unduly influenced by sympathy for the victim. a particular recitation is an abuse Whether the failure to omit of discretion, and thus

reversible error, however, must be determined on a case by case basis.

-15II. Appellant also contends the trial judge erred in admitting extensive, unduly prejudicial evidence concerning the victim's physical disabilities and suffering after the injury. was permitted extensively to question the victim The State as to the

disabilities she suffered from the incident.

Moreover, the trial

court also permitted the introduction of extensive medical records, which highly appellant contends were not relevant to his guilt, were prejudicial, and were introduced merely to encourage

sympathy for the victim.

The Victim's Testimony After the victim testified that she has been unable to stand or walk since the incident, the State continued to question the victim about her physical infirmities. Although appellant claims

the trial court erred in admitting such testimony, the State contends that the issue has not been preserved for our review. During the colloquy between State's counsel and the witness, defense counsel sporadically objected, but failed to object to each question eliciting infirmities. testimony describing the victim's physical

In addition, defense counsel consistently failed to Such a delay is

object until the question had been answered.

inappropriate, because the information being sought was clear from the question.

-16Maryland Rule 4-323(a) requires that [a]n objection to the admission of evidence shall be made at the time the evidence is offered or as soon thereafter as the grounds for objection become apparent. Otherwise, the objection is waived. The grounds for the objection need not be stated unless the court, at the request of a party or on its own initiative, so directs. The court shall rule upon the objection promptly. In Bruce v. State, 328 Md. 594, 627-30, 616 A.2d 392 (1992), cert. denied, 508 U.S. 963 (1993), the Court of Appeals reemphasized Rule 4-323(a), and explained: "[I]f opposing counsel's question is

formed improperly or calls for an inadmissible answer, counsel must object immediately. is Counsel cannot wait to see whether the answer Id. at 628

favorable before deciding whether to object."

(citations omitted).

The question is "whether or not [defense]

counsel could or should have known from the question that the answer would be objectionable." Id. at 629; see also Byrd v. State, 98 Md.

App. 627, 631, 634 A.2d 988 (1993) (defense counsel's objection was not properly preserved because it was not made until after the answer was given and under the facts "counsel knew the basis for the objection as soon as the question was asked"). "Cases are legion in the Court of Appeals to the effect that an objection must be made to each and every question, and that an objection prior to the time the questions are asked is insufficient to preserve the matter for appellate review." App. 309, 316, 334 A.2d 126 (1975). Sutton v. State, 25 Md.

In the case at hand, defense

-17counsel objected sporadically. "[F]or appellant's `objections to be timely made and thus preserved for our review, defense counsel would have had to object each time a question concerning [the objectionable issue] was posed or to request a continuing objection to the entire line of questioning. As he did neither, his

objection is waived, and the issue is not preserved for our review.'" Snyder v. State, 104 Md. App. 533, 557, 657 A.2d 342, cert.

denied, 340 Md. 216 (1995) (quoting Brown v. State, 90 Md. App. 220, 225, 600 A.2d 1126, cert. denied, 326 Md. 661 (1992)). Additionally,

extensive medical records relating to the victim's treatment were admitted without objection. Despite our failure to reach the issue in this case, we observe, as we did earlier in this opinion, that trial judges must exercise sound discretion a fair in ruling on the admissibility the rejection of of

evidence to

ensure

trial,

including

evidence when its tendency to evoke sympathy weighed against its probative value is unfairly prejudicial.

Medical Records After the incident the victim was initially transported to University Hospital, where she remained for three months. Her

medical records from University Hospital were admitted without objection. Upon being transferred to Mount Washington Pediatric Her medical

Hospital, the victim remained there for five months.

-18records from Mount Washington, consisting of 500 detailed pages, over objection, were admitted into evidence. The State believes the victim's medical records from Mount Washington Pediatric Hospital were necessary for the jury to understand why the victim had not identified appellant as the shooter until five months after the incident. During cross-

examination, defense counsel extensively questioned the victim as to these circumstances. erred Thus, we do not believe the trial court

in admitting the medical records from Mount Washington

Pediatric Hospital. JUDGMENTS AFFIRMED; COSTS TO BE PAID BY APPELLANT.



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