Collins v. State

Collins v. State, No. 1992 of the 2017 Term, Opinion by Moylan J.

VOIR-DIRE QUESTIONING – A FLAWLESS TRIAL – A FIREBELL IN THE

NIGHT – AN IMMEDIATE RESPONSE – THE CONTENTION – SIMPLE VERSUS

COMPOUND QUESTIONS – THE INITIAL “STRONG FEELINGS” QUESTIONS

IN A VACUUM – THE INITIAL COMPOUND QUESTIONS ARE NOT NOW IN A

VACUUM – MAY ONE VOIR-DIRE INQUIRY PINCH HIT FOR ANOTHER? – BUT

IS THE CONVERSE ALSO TRUE? – LIFE OUTSIDE THE VACUUM REDUX –

DÉJÀ VU ALL OVER AGAIN
Circuit Court for Anne Arundel County
Case No. C-02-17-001278
REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 1992

September Term, 2017
______________________________________

GORDON ALEXANDER COLLINS

v.

STATE OF MARYLAND
______________________________________

Graeff,
Shaw Geter,
Moylan, Charles E., Jr.
(Senior Judge, Specially Assigned),

JJ.
______________________________________

Opinion by Moylan, J.
Graeff, J., joined in the judgment only.
______________________________________

Filed: August 30, 2018

2018-08-30
14:34-04:00
In the voir-dire examination of prospective jurors, can a relatively modest glitch in

the framing of a single question totally derail an otherwise flawless criminal trial? In

addressing that question, the magisterial opinion of Judge Watts in Pearson v. State, 437

Md. 350, 86 A.3d 1232 (2014), will be our Alpha and Omega. The appellant, Gordon

Collins, was convicted in the Circuit Court for Anne Arundel County by a jury, presided

over by Judge Paul F. Harris, Jr., of both first-degree burglary and the theft of goods with

a value under $1,000.

A Flawless Trial

The trial was as uncontroversial as it was brief. The opening statement for the

prosecution ran for three and one-half pages. That of the appellant was a page and one-half

long. Two witnesses testified for the State. The testimony of Juliette Tower covered slightly

fewer than ten pages in the trial transcript. The testimony of Sergeant Kenneth Brown ran

for 22 pages. No one testified for the defense and it offered no evidence. The motion at the

end of the State’s case, which turned out to be the motion at the end of the entire case,

could not have been more innocuous:

[THE STATE]: The State would rest, thank you.

[DEFENSE COUNSEL]: I would make my motion.

THE COURT: Okay, you want to be heard?

[DEFENSE COUNSEL]: No.

THE COURT: I will deny it. Does your client or any other evidence
you are going to –

[DEFENSE COUNSEL]: No.
THE COURT: No evidence?

[DEFENSE COUNSEL]: Correct.

The brief jury instructions were completely boiler-plate, with no objections being

lodged by either party either in the course of the jury instructions or at their conclusion.

The State’s closing argument ran for two and one-half pages in the transcript and its rebuttal

for a single page. Defense argument ran for eight pages. The jury returned verdicts of guilty

on both charges after deliberating for 40 minutes. This case was a slam-dunk for the

prosecution. The only issue before us is that of whether it was fatally flawed before it

began.

A Firebell In The Night

Juliette Tower testified that as of March 17, 2017, she and her husband were living

at 801 Severn Avenue in Annapolis. At 11:20 p.m. both Mr. and Mrs. Tower were in bed.

He was sleeping and she was trying to fall asleep. She heard a noise downstairs but initially

thought that their cat had knocked something over. When the noise persisted “again and

again,” however, she nudged her husband awake and said, “I think there’s somebody

downstairs.” He got up and ran downstairs. Mrs. Tower followed several minutes behind

her husband. She had already called 911, however, before coming downstairs.

The contents of their television room were in disarray, “things scattered all over.”

All of the cabinets in the kitchen had been opened. Mr. Tower noticed and pointed out to

his wife that a window next to the back door had been opened. When Mr. and Mrs. Tower

surveyed what, if anything, was missing, the missing items included their son’s Xbox, a

leather jacket belonging to Mrs. Tower, several games belonging to their son, and their

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son’s headphones. Mrs. Tower later identified these items when they were shown to her by

the police.

An Immediate Response

The only other witness in the case was Sergeant Kenneth Brown. He received a call

about a burglary at 11:21 p.m. He responded immediately and, within four minutes, was at

the intersection of Wells Avenue and Adams Avenue on his way to 801 Severn Avenue.

He saw the appellant, walking toward him and away from Severn Avenue. Sergeant Brown

estimated that the spot where he first saw the appellant was less than a five-minute walk

from 801 Severn Avenue. The appellant was the only person about. The streets were

otherwise empty. The appellant was wearing dark clothing and was carrying a plastic

garbage bag, slung over his shoulder.

Sergeant Brown, traveling in an opposite direction, continued past the appellant for

approximately one block, executed a three-point U-turn, and drove back toward the

appellant. The sergeant was out of direct visual contact with the appellant for about 20

seconds. After the sergeant made his U-turn, he again spotted the appellant in his dark

clothing. The plastic garbage bag, however, was gone. The appellant was actually returning

to the sidewalk from an area between a parked car and a fence. The appellant was detained

for further investigation. Another officer shortly arrived on the scene. Sergeant Brown

recovered the plastic garbage bag just over the fence. It contained the Xbox, Mrs. Tower’s

leather jacket, several games belonging to the Towers’ son and the son’s headphones. All

of these items were identified by Mr. and Mrs. Tower as their property. The appellant

offered neither denial nor explanation. The State’s case was, indeed, an open and shut one.

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The Contention

The appellant’s single appellate contention is framed as follows:

The trial court abused its discretion when it asked the venire two improperly
phrased “strong feelings” voir dire questions, and it did not cure the prejudice
from that error by subsequently asking the seated, sworn jury properly
phrased “strong feelings” questions.

What the appellant wanted were two “strong feelings” questions with respect to the

crimes of burglary and theft. The simple and direct “strong feelings” questions he requested

were:

1. Does any member of this panel have strong feelings about the offense of
burglary?1

2. Does any member of this panel have strong feelings about the offense of
theft?

Instead of getting the questions in that simple form, however, the appellant, to his

chagrin, got them in compound form:

1. Does anyone on this panel have any strong feelings about the offense of
burglary to the point where you could not render a fair and impartial verdict
based on the evidence?

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What kind of a question is that? One would assume that the decent and universal
answer would be, “Yes, I am against it.” Unlike sexual offenses or child abuse or the use
of drugs or firearms, there is no apparent emotional baggage attached to prosecutions for
burglary or for theft. One might as readily inquire, “Do you have strong feelings for or
against crime?”

As a philosophical abstraction, it is hard to imagine why strong feelings against
crime or against criminals should disqualify one as a juror. As a practical matter, however,
perhaps the voir-dire examination is looking for something other than one’s philosophical
or moral attitudes toward crime. If, as may be the case, the question is simply a preliminary
probe, possibly leading upon further inquiry at the bench to evidence of more personal
involvement, there are perhaps, as will be discussed infra, alternative ways of getting to
such direct or familial involvement.

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2. Does anyone on this panel have any strong feelings about the offense of
theft to the point where you could not render a fair and impartial verdict based
on the evidence?

Therein lurks the controversy.

Simple Versus Compound Questions

The semantic sin of the compound question lies in the possible ambiguity of its

answer. A “Yes or No” answer to the simple question tells us whether there are or are not

“strong feelings.” A “No” answer to the compound question, by contrast, does not. It may

mean that there are no strong feelings. It may, on the other hand, mean that the prospective

juror, indeed, harbors such feelings but feels that he or she can render a fair and impartial

verdict despite those feelings. We cannot deduce, from the “Q and A” itself, which end of

the compound question generated the negative response.

Lawyers engaged in the process of selecting juries want to know about “strong

feelings” and, more particularly, they want to know what life experiences may have

produced those “strong feelings.” The “strong feelings” themselves, of course, are not ipso

facto disqualifying. Pearson, 437 Md. at 364, was emphatic in that regard.

[W]e stress that we do not hold that a prospective juror is automatically
disqualified simply because the prospective juror responds affirmatively to
the “strong feelings” voir dire question.

The process, however, does not stop there, simply identifying “strong feelings” as

an unadorned abstraction. The initial inquiry is only the threshold or the opening round of

a fuller proceeding. The individualized further inquiry at the bench, with attorneys present

and participating, will dig far more deeply into the ultimate issue of juror qualification.

Pearson further explained:

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After the prospective juror is individually questioned by the attorneys or on
request by the trial court, the trial court determines whether or not that
prospective juror’s strong feelings about the crime with which the defendant
is charged constitute specific cause for disqualification.

Id. (Emphasis supplied). Whatever the judge does or does not do in terms of disqualifying

the prospective juror, moreover, the lawyers will know a lot more than they knew before.

In circumstances where a compound question had been asked on voir-dire and the

second half of the compound question had asked the prospective juror to appraise his or

her ability to render a fair and impartial verdict notwithstanding a compromising

circumstance, Dingle v. State, 361 Md. 1, 21, 759 A.2d 819 (2000), condemned the

inevitable consequence of allowing the issue of juror qualification to be decided by the

juror himself rather than by the trial judge:

[T]he procedure followed in this case shifts from the trial [court] to the
[prospective jurors] responsibility to decide [prospective] juror bias. Without
information bearing on the relevant experiences or associations of the
affected individual [prospective juror]s who were not required to respond,
the [trial] court simply does not have the ability, and, therefore, is unable to
evaluate whether such [prospective juror]s are capable of conducting
themselves impartially. Moreover, the [defendant] is deprived of the ability
to challenge any of those [prospective juror]s for cause. Rather than
advancing the purpose of voir dire, the form of the challenged inquiries in
this case distorts and frustrates it.

(Emphasis supplied). See also Pearson, 437 Md. at 361–63.

The Initial “Strong Feelings” Questions In A Vacuum

Whereas the underlying voir-dire question in Dingle had been whether the

prospective jurors had been the victim of a crime, the underlying voir-dire question in State

v. Shim, 418 Md. 37, 12 A.3d 671 (2011), had been, as in this case, whether the prospective

jurors had “strong feelings” about a particular crime. Pearson, 437 Md. at 361–63, applied

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the Dingle rationale about the flaw in the compound question in that case to Shim and

condemned the compound question in that context as well.

[W]e conclude that, here, the “strong feelings” voir dire question (i.e., “Does
any member of the panel hold such strong feelings regarding violations of
the narcotics laws that it would be difficult for you to fairly and impartially
weigh the facts of this trial where narcotics violations have been alleged?”)
was phrased improperly.

437 Md. at 361 (emphasis supplied; footnote omitted).

The Dingle rationale, therefore, applies with equal force to either underlying voir-

dire question, personal or familial involvement with the crime or “strong feelings” about

the crime.

Just like the phrasing of the voir dire questions in Dingle, the phrasing
of the “strong feelings” voir dire question in Shim “shifts from the trial
[court] to the [prospective jurors] responsibility to decide [prospective] juror
bias.” Dingle, 361 Md. at 21. In other words, as with the voir dire questions’
phrasings in Dingle, the phrasing of the “strong feelings” voir dire question
in Shim required each prospective juror to evaluate his or her own potential
bias. Specifically, under Shim, each prospective juror decides whether his or
her “strong feelings” (if any) about the crime with which the defendant is
charged “would [make it] difficult for [the prospective juror] to fairly and
impartially weigh the facts.” That decision belongs to the trial court, not the
prospective juror.

437 Md. at 362 (emphasis supplied; some internal citations omitted).

Thus, if the two originally posed compound questions inquiring about “strong

feelings” with respect to burglary and theft respectively were before us in a vacuum, the

appellant would be armed with a very viable contention.

The Initial Compound Questions Are Not Now In A Vacuum

Those originally posed compound questions, however, did not long remain in a

vacuum. They are, as we now look back upon the trial, but part of a larger and more

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significant totality. It is, of course, that totality that we review, because our ultimate and

primary concern is whether the jury that heard the case against the appellant was qualified

to render a fair and impartial verdict. We do not subject either the State or the trial judge

to a game of “Gotcha.” Judge Greene explained for the Court of Appeals in Washington v.

State, 425 Md. 306, 314, 40 A.3d 1017 (2012):

We review the trial judge’s rulings on the record of the voir dire
process as a whole for an abuse of discretion, that is, questioning that is not
reasonably sufficient to test the jury for bias, partiality, or prejudice.

(Emphasis supplied; citation omitted). See also Pearson, 437 Md. at 356.

As we review the totality of the circumstances, the record as a whole, for everything

bearing on the issue of juror disqualification, we find two evidences of doctrinal vitality

outside of the initial vacuum. Quite aside from the questions specifically inquiring about

“strong feelings,” there were other questions designed to root out causes for juror

disqualification, even if they appear under different categories. Immediately after the

“strong feelings” questions, Judge Harris asked the panel:

[H]as any member of this panel had something happen to you in the past that
would prevent you from either returning a verdict of guilty or not guilty in a
criminal case under any circumstances?

Again, we are trying to make sure nobody has any preconceived
feelings about any of these issues because, ultimately, I will instruct you that
when you render a verdict, it is going to be based only on the evidence that
you hear in this case and nothing else.

(Emphasis supplied). No prospective juror responded. Are not “strong feelings” the same

as “pre-conceived feelings”?

Judge Harris then asked the panel:

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Is there any member of this panel who would allow sympathy, pity, anger or
any other emotion to influence your verdict in any way in this case? The
verdict should not be based on those feeling[s], they should be based on the
evidence.

(Emphasis supplied). No prospective juror responded. Might not a “strong feeling” qualify

as “any other emotion”?

Judge Harris then posed the “crime victim question” (in simple not compound

form):

Has any member of this panel or your immediate family ever been accused
of a crime, been the victim of a crime, or [been] a witness to a crime?

A number of prospective jurors responded. Judge Harris and counsel questioned

them further, individually and at the bench. Three jurors were then stricken for cause

because, after recounting stories about break-ins, they admitted that those experiences

made them unable to judge fairly. One prospective juror said that his wife was an Assistant

State’s Attorney and described himself as “pro-prosecution.” He was excused. Seven other

prospective jurors had had some experience with theft, a robbery, or a break-in, but insisted

that they could keep an open mind. At the bench, they gave full details of those experiences.

After the compound questions about “strong feelings” were asked, Judge Harris

concluded with a catch-all question.

Is there any other reason that we have not already explained or discussed why
any member of this panel cannot be a fair and impartial juror in this case,
anything that we have not covered?

(Emphasis supplied). No prospective juror responded. Is a “strong feeling” possibly “any

other reason”? We are not suggesting that any one of these questions individually passed

muster pursuant to Pearson, but only that, under the circumstances of this case, the sheer

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accumulation of the inquiries in their totality would have brought out anything significant

that a direct question about “strong feelings” could have brought out.

We cannot conceive of what ground for disqualification might have been unearthed

by a simple, non-compound “strong feelings” question that was not unearthed by the

totality of questions that actually were asked in this case. Whatever the compound

questions about “strong feelings” may have failed to uncover directly was fully uncovered

by the totality of questions that were asked. Everything was explored that reasonably

should have been explored, even if by alternative interrogative avenues. That, of course, is

the bottom-line goal of the voir-dire examination and not a preference for the simple over

the compound question simply as an academic abstraction. We do not foreclose the

possibility of some diabolical law-school hypothetical, but, as a practical matter,

everything that should have been brought out was brought out. As for the law-school

hypothetical, we will not anguish over whether Plato might have been disqualified as a

juror based upon some arcane factor other than his own or familial life experiences. We

are not administering the voir-dire process as a drill, or as a precise rubric, just for the sake

of the drill.

May One Voir-Dire Inquiry Pinch Hit For Another?

In looking at the totality of the circumstances, our ever-present concern is with

whether a voir-dire question that was asked was, essentially, the equivalent of the question

at issue that was not asked. In such a case, no harm was done. That issue of equivalency

was a key part of the Pearson analysis. In Pearson, the direct voir-dire contention before

the Court was not about a prospective juror’s “strong feelings” but about whether the

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prospective juror’s status as either the victim of a crime or as a member of a law

enforcement agency. At the very outset of the opinion, Judge Watts posed the core issue:

We decide whether, on request, a trial court must ask during voir
dire whether any prospective juror has ever been: (I) the victim of a crime;
or (II) a member of a law enforcement agency.

437 Md. at 354 (emphasis supplied).

In Pearson, the defendant requested a voir-dire question asking whether any

prospective juror “had ever been the victim of a crime.” 437 Md. at 356. The trial judge

declined to ask it. Upon appeal, the “State argue[d] that the ‘strong feelings’ voir

dire questions [that were asked] [made] the ‘victim’ voir dire question unnecessary.” Id.

Conditionally, the Court of Appeals agreed with the State that a “strong feelings”

question could, under proper circumstances, render the question about victimhood

redundantly unnecessary. Judge Watts’s opinion explained:

[T]his Court has already held that, on request, a trial court must ask
during voir dire whether any prospective juror has “strong feelings about”
the crime with which the defendant is charged. State v. Shim, 418 Md. 37,
54, 12 A.3d 671, 681 (2011). The “strong feelings” voir dire question makes
the “victim” voir dire question unnecessary by revealing the specific cause
for disqualification at which the “victim” voir dire question is aimed.

437 Md. at 360 (emphasis supplied; footnote omitted).

The Pearson opinion, however, immediately attached a strict condition to that

tentative equivalency. It was the explanation for that condition that produced Pearson’s

analysis of the “strong feelings” voir-dire inquiry and Pearson’s holding that a simple

question about “strong feelings” is necessary and that a compound question about “strong

feelings” is fatally flawed. Thus, the Court’s response to the State’s argument based on

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equivalency was that a properly phrased question about “strong feelings” is an

adequate substitute for a missing question about victimhood, but that an improperly

phrased question about “strong feelings” is not.

[The State] contend[ed] that the “strong feelings” voir dire question makes
the “victim” voir dire question unnecessary. We agree with the State’s
contention—assuming that the “strong feelings” voir dire question is phrased
properly. For the below reasons, here, the “strong feelings” voir dire question
was phrased improperly.

437 Md. at 361 n.4 (emphasis supplied).

But Is The Converse Also True?

Thus, a properly framed question about “strong feelings” is at least the equivalent

of, and therefore an adequate substitute for, a missing question about personal or familial

involvement with the crime. But is the converse also true? Is a question about personal or

familial involvement the equivalent of, and an adequate substitute for, a missing or

improperly phrased question about “strong feelings”?

Equivalency can be a tricky thing. Is the more general question broader and the more

specific question narrower? Might it be that a broader question could substitute for a

missing narrower question, but that a narrower question would not substitute for a missing

broader question? Or are we slicing the analysis too thinly, and should simply accept

equivalency as a general truth?

Pearson, of course, had no occasion to deal with its converse, and, therefore, does

not answer our question. In our reading of Pearson, however, we find nothing to foreclose

the acceptance of the converse. As a practical matter, a prospective juror with “strong

feelings” and a prospective juror with some personal or familial experience with a similar

12
crime would both have been called to the bench. They would both have been probed, by

court and counsel, about the source of their “strong feelings” or their involvement with the

crime. Both lines of inquiry would have led to the same place. It seems to us almost

inevitable that both inquiries would have revealed the same underlying circumstances,

whichever way the initial question, which triggered the further examination at the bench,

had been put. Looking at the totality of this voir-dire examination, we conclude that no

critical or dispositive fact was left undiscovered. We see no error.

Life Outside The Vacuum Redux

Whatever error inhered in the initial posing of the compound question about “strong

feelings,” the ultimate legitimacy of the voir-dire examination as a totality was redeemed

at least twice. The first redemptive measures came, as discussed, in the course of the

entirety of the voir-dire questioning. The second came after the jury had been sworn and

seated but before any evidence had been presented.

Both the Assistant State’s Attorney and the trial judge concluded that the compound

question about “strong feelings” may, indeed, have been flawed. In an exercise of caution,

Judge Harris, over defense objection, questioned the jurors for a second time.

I am going to re-ask two questions that we covered earlier but I am
going to ask them [in] a slightly different manner.

If either of these apply to you, please let me know, and we will take
your response up here privately.

Does any member of this panel have strong feelings about the offense
of burglary, is the first question?

(No audible response.)

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I see no responses. The next question does any member of this panel
have strong feelings about the offense of theft?

(No audible response.)

(Emphasis supplied).

This follow-up questioning occurred before any witness had begun to testify and

before any evidence of any kind had been presented. No juror responded to either of the

follow-up questions. As Pearson assures us, 437 Md. at 360 n.3, “An appellate court

presumes that prospective jurors are honest in deciding whether to respond affirmatively

to a voir dire question.” Thus, the appellant received, perhaps an hour and one-half later,

precisely what he had sought one hour and one-half earlier, a jury competent to return a

fair and impartial verdict. Nothing of any critical significance had occurred in that

intervening hour and one-half.

Instead of being happy, however, with a jury absolutely free of any “strong

feelings,” the appellant contends that the later posing of the required questions somehow

interfered with his strategic employment of his peremptory challenges. In brief, he argues:

Here, because the Court refused to ask properly phrased “strong
feelings” questions to the entire venire, Mr. Collins was denied his right to
exercise his rejections [peremptories?] intelligently and strategically. The
court’s subsequent decision to ask the seated jury the strong feelings
questions approved of by Pearson, therefore, did not cure the prejudice that
Mr. Collins suffered from the court’s initial error. Accordingly, this Court
must hold that the trial court abused its discretion when denied Mr. Collins’
request for a mistrial, and it must reverse his convictions as a result.

(Emphasis supplied).

Unfortunately for the appellant, he mounts his argument in the wrong state.

Although the law in many jurisdictions might be receptive to the appellant’s contention,

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the law of Maryland is not and never has been. The voir-dire examination in Maryland does

not exist, even partially, for the purpose of supplying information to trial counsel that may

guide them in the strategic use of their peremptory challenges. Judge Watts’s opinion in

Pearson could not have been more emphatic.

Maryland employs “limited voir dire.” That is, in Maryland, the sole
purpose of voir dire “is to ensure a fair and impartial jury by determining the
existence of [specific] cause for disqualification[.]” Unlike in many other
jurisdictions, facilitating “the intelligent exercise of peremptory challenges”
is not a purpose of voir dire in Maryland. Thus, a trial court need not ask
a voir dire question that is “not directed at a specific [cause] for
disqualification[ or is] merely ‘fishing’ for information to assist in the
exercise of peremptory challenges[.]”

437 Md. at 356–57 (emphasis supplied; footnote and internal citations omitted).

Thus, the “right” asserted by the appellant does not exist in Maryland. This was,

moreover, the only argument even remotely suggested by the appellant to the effect that

the later, rather than the earlier, propounding of the “strong feelings” questions in their

simple form was not completely adequate to cure whatever flaw might theretofore have

existed. We hold that there was no error.2

2
At the risk of indulging in overkill, we cannot help but note that the appellant’s
argument about the possible utility of peremptories may be flawed tactically as well a
strategically. His argument asserts a hypothetical.

Had the trial court asked the entire venire, as it was required to do,
whether anyone had “strong feelings” about the crimes of burglary or theft,
a number of people almost certainly would have responded. At that point, the
court would have been required to ask follow-up questions designed to reveal
whether those individuals could nevertheless be fair and impartial. Based on
the responses to the follow-up questions, defense counsel may have chosen
to use her peremptory challenges differently. As defense counsel explained
to the trial court, “[S]ometimes even though they have strong feelings, they
appear to be very open minded and able to consider the situation

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Déjà Vu All Over Again

Having failed to win an appellate reversal for a trial that was completed, the

appellant also contends (without ever having listed it as a contention) that, for precisely the

same reason, he should have been awarded a mistrial at the very outset of the trial. Just as

his non-viable argument about the more strategic use of peremptory challenges does not

entitle him to an appellate reversal of his conviction directly, it would not have entitled him

to a mistrial earlier in the proceedings. It is the same argument all over again. For the same

reason it failed before, it fails again.

JUDGMENTS AFFIRMED; COSTS TO BE
PAID BY APPELLANT.

Judge Graeff joins in the judgment only.

independently and you are able to hear those responses. I may have used
more strikes, my left-over strikes, to get rid of some of these jurors and put
on other jurors that I would have wanted.”

(Emphasis supplied).

No hypothetical juror who had given an ambiguous response to the compound
question had to be culled out in this case, however, because no juror with “strong feelings”
served on this jury. The appellant’s hypothetical use of his peremptories, even laser sharp,
would never have been aimed at any juror who actually sat on the appellant’s panel. The
target of the appellant’s hypothetical peremptories was the ambiguity inherent in a
prospective juror who had “strong feelings” but nonetheless claimed to be able to overcome
them. Because none of the actual jurors even had any “strong feelings,” however, there was
no residual ambiguity that needed to be eliminated.

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