Lewis v. State

Cameron Darnell Lewis v. State of Maryland, No. 28, September Term 2022. Opinion by
Woodward, J.

CRIMINAL LAW – RENDITION OF JURY’S VERDICT – FAILURE TO USE
WORDS “GUILTY” AND “NOT GUILTY” DOES NOT RENDER THE VERDICT
A “NULLITY”

CRIMINAL LAW – VOIR DIRE – IMPROPER COMPOUND QUESTION – TRIAL
COURT’S FINAL, “CATCH-ALL” QUESTION IS NOT AN IMPROPER
COMPOUND QUESTION

Cameron Darnell Lewis, appellant, was arrested after fleeing a traffic stop and was charged
with, among other offenses, possession of fentanyl and cocaine with the intent to distribute,
altering physical evidence, and attempting to elude uniformed police by failing to stop.
Another man, Damontrall Miles, was in the vehicle and was also arrested. Appellant’s case
went to trial, and, during voir dire, defense counsel requested that the trial court ask the
venire whether they had a medical condition that would prevent them from performing
their duties as a juror. The court declined to ask the requested question and determined that
the question fell under the court’s final “catch-all” question, which was, “Do you know of
any reason whatsoever why you cannot sit as a juror in this case and render a fair and
impartial verdict based on the evidence and the law?”

At trial, the trial court accepted the arresting officer as “an expert in the fields of slang or
street terminologies, controlled dangerous substances and street value of controlled
dangerous substances.” The officer then testified as to the meaning of slang terms in text
messages located on two phones recovered from appellant’s vehicle. After the close of the
evidence, the court gave an accomplice liability instruction to the jury on the alternate
theory that appellant was an accomplice to Miles. Appellant argued that the instruction was
not generated by the evidence, but the court declined to withdraw the instruction.

After the jury reached a verdict, the foreperson announced it in open court. The verdict
sheet, which had been submitted by defense counsel, read: “Do you find that the State has
proven its case beyond a reasonable doubt as to:” and then listed each of the eighteen counts
before the jury. Below each count were spaces for a “yes” or “no” answer. The foreperson
said “yes” for all counts. The jury was then polled, to which all jurors affirmed the verdict,
and the verdict was then hearkened by the clerk.

Appellant noted a timely appeal, challenging (1) the rendition of the jury’s verdict, (2) the
failure to ask defense counsel’s proposed question during voir dire and the trial court’s
final “catch-all” question, (3) the accomplice liability jury instruction, and (4) the
acceptance of the arresting officer as an expert in slang terms for narcotics.

Held: Affirmed.
On appeal, the Appellate Court of Maryland first discussed the rendition of the jury’s
verdict. As a preliminary matter, the Court addressed the uncertainty in existing case law
regarding whether challenges to the rendition of a jury’s verdict are subject to waiver or
the requirement of preservation. The Court ultimately determined that, due to such
uncertainty, it would address appellant’s challenge to the verdict despite the lack of
preservation. The Court then discussed the three steps in the rendition of a jury’s verdict:
(1) oral announcement of the verdict, (2) polling of the jury, and (3) hearkening of the
verdict. The Court explained that Givens v. State, 76 Md. 485 (1893), and its progeny,
which was relied upon by appellant, does not require that the words “guilty” or “not guilty”
be used in the oral announcement of the verdict. In addition, the Court held that the use of
“yes” instead of “guilty” did not create confusion as to the meaning of the foreperson’s
words and satisfied the purpose of the oral announcement of the verdict. Regarding the
hearkening of the verdict, the Court concluded that the use of the words “guilty” or “not
guilty” again were not required by Givens, and that the important substantive aspect of the
hearkening was that all the jurors assented to the verdict in the manner stated by the
foreperson, which happened in the instant case.

The Court next addressed the voir dire issue and whether the trial court’s final “catch-all”
question was an improper compound question. The Court first held that asking whether
any juror had a “medical condition” was not asking about a mandatory subject of inquiry
(i.e., whether any juror has a certified disability that prevents him or her from providing
satisfactory jury service) and was fairly covered by the court’s final question. Next, the
Court held that the issue of whether the court’s final question was an improper compound
question was not preserved for appellate review. Even if it was preserved, however, the
Court determined that the question was not an improper compound question because the
two parts to the question were separate and independent of each other. Finally, the Court
held that, even if the trial judge erred in not asking defense counsel’s proposed question,
the error was harmless.

Turning to the third issue on appeal, the accomplice liability instruction, the Court held that
evidence from both before and after the traffic stop was relevant to determining whether
appellant was acting as an accomplice to Miles. Considering all relevant evidence, the
Court concluded that there was sufficient evidence to give the accomplice liability
instruction to the jury as an alternate theory of criminal culpability. Finally, the Court
addressed the trial court’s acceptance of the arresting officer as an expert and held that the
officer had sufficient training and experience to testify about “slang or street terminologies,
controlled dangerous substances and street value of controlled dangerous substances.”
Circuit Court for Kent County
Case No.: C-14-CR-21-000024
REPORTED

IN THE APPELLATE COURT

OF MARYLAND

No. 28

September Term, 2022
______________________________________

CAMERON DARNELL LEWIS

v.

STATE OF MARYLAND
______________________________________

Arthur,
Friedman,
Woodward, Patrick, L.,
(Senior Judge, Specially Assigned),

JJ.
______________________________________

Opinion by Woodward, J.
Concurring Opinion by Friedman, J.
______________________________________

Filed: June 27, 2024

Pursuant to the Maryland Uniform Electronic Legal
*Kehoe, Stephen, J., did not participate in the
Materials Act (§§ 10-1601 et seq. of the State Court’s decision to designate this opinion for
Government Article) this document is authentic.
publication pursuant to Md. Rule 8-605.1.
2024.06.27
14:51:10 -04'00'

Gregory Hilton, Clerk
Cameron Darnell Lewis, appellant, was arrested on January 29, 2021, and charged

with multiple offenses, including possession of fentanyl and cocaine with the intent to

distribute, altering physical evidence, and attempting to elude uniformed police by failing

to stop. Later, appellant was indicted on twenty-two counts. After a jury trial in the Circuit

Court for Kent County on November 29 and 30, 2021, appellant was convicted on all of

the eighteen counts that were submitted to the jury. 1 The court sentenced appellant to a

total term of forty-one years’ imprisonment, with all but ten years suspended, and

supervised probation for a period of five years upon release.

Appellant presents four questions for our review on appeal, which we have

rephrased slightly: 2

1. Did the court err in accepting the jury’s verdict?

2. Did the court abuse its discretion by declining to ask defense counsel’s
requested voir dire question?

3. Did the court abuse its discretion by instructing the jury on accomplice
liability?

1
Counts 1, 3, and 7 were entered nolle prosequi by the State after the jury was sworn and
count 15 was entered nolle prosequi by the State during the State’s case-in-chief.
2
Appellant originally phrased his questions as:
1. Did the court err in accepting the jury’s verdict?
2. Did the court err in failing to ask a mandatory voir dire question?
3. Did the court err and abuse its discretion in instructing the jury on accomplice
liability?
4. Did the court err and abuse its discretion in accepting a State’s witness as an expert
in “the fields of slang or street terminologies, controlled dangerous substances and
street value of controlled dangerous substances”?
4. Did the court abuse its discretion in accepting a State’s witness as an expert
in “the fields of slang or street terminologies, controlled dangerous
substances and street value of controlled dangerous substances”?

For the following reasons, we shall affirm the judgments of the circuit court.

BACKGROUND

On January 29, 2021, at approximately 2:00 p.m., Deputy David Nolan of the Kent

County Sheriff’s Office was on routine patrol in the area of Routes 20 and 21 near

Chestertown, Kent County, Maryland. Deputy Nolan was parked at an abandoned store

when he was approached by a person who was concerned about a vehicle traveling on

Route 20 because the person could smell marijuana coming from the vehicle. The person

advised Deputy Nolan that the vehicle was a light blue Honda car with a Delaware license

plate traveling east on Route 20 toward Chestertown.

Deputy Nolan proceeded in the direction of the vehicle and found a matching

vehicle within minutes. Deputy Nolan conducted a registration check of the vehicle, which

showed that the license plate was registered to a Chevy Cavalier. Deputy Nolan then

conducted a traffic stop, and the vehicle pulled over. As Deputy Nolan exited his patrol car

and got about halfway to the stopped vehicle, the vehicle fled from the stop location.

Deputy Nolan ran back to his patrol car and radioed other officers that the vehicle

was fleeing the scene. As Deputy Nolan engaged in pursuit, he observed a bag fly out of

the vehicle. The bag “looked like a sandwich bag,” appeared to have some weight to it, and

had “something lightly colored in it.” Upon later review of the police car’s video camera,

the bag flew out of the passenger window. Deputy Nolan radioed the location of the bag,

and Lieutenant Harry Kettner of the Sheriff’s Office responded to that area. Ultimately,

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Deputy Nolan stopped the vehicle and identified appellant as the driver. Another person

was in the vehicle, and he was later identified as Damontrall Miles.

Appellant was searched, and Deputy Nolan retrieved money from appellant’s pants

pocket totaling $403.00. The vehicle was searched, and a digital scale with white residue

on it was recovered in the open center console of the vehicle in front of the automatic

shifter, as well as an iPhone, two Alcatel flip phones, and an eTalk flip phone. No

contraband was found on either appellant or Miles.

Meanwhile, Lieutenant Kettner went to the described location and observed

capsules on the shoulder of the road that had an off-white powder type substance inside.

Lieutenant Kettner, using gloves, put the capsules in an evidence envelope. Lieutenant

Kettner also observed two clear plastic bags on the shoulder of the road that contained a

white powder substance. Lieutenant Kettner placed the bags in the same envelope as the

capsules. Lieutenant Kettner then went to the scene of the stop with the suspected

controlled dangerous substances and gave them to Deputy Nolan.

Appellant was arrested and subsequently indicted on twenty-two counts, eighteen

of which were submitted to the jury: Counts 2. Possession with Intent to Distribute of

Narcotic Fentanyl; 4. Possession with Intent to Distribute of Narcotic Crack Cocaine; 5.

Possession with Intent to Distribute of Narcotic Powder Cocaine; 6. Altering Physical

Evidence in Criminal Proceeding; 8. Possession of Fentanyl; 9. Possession of Crack

Cocaine; 10. Possession of Powder Cocaine; 11. Possession of Controlled Dangerous

Substance (“CDS”) Paraphernalia (Clear Capsules); 12. Possession of CDS Paraphernalia

(Clear Plastic Bags); 13. Displaying Registration Plates Issued for Other Vehicle; 14.

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Operating an Unregistered Motor Vehicle on Highway; 16. Speeding; 17. Negligent

Driving; 18. Reckless Driving; 19. Failure to Drive Right of Center; 20. Attempting to

Elude Uniformed Police by Failing to Stop; 21. Eluding an Official Police Vehicle by

Failing to Stop; and 22. Driving without Current Tags.

After a trial on November 29 and 30, 2021, the jury found appellant guilty on all 18

counts. On February 11, 2022, the court sentenced appellant to a total term of forty-one

years’ imprisonment, with all but ten years suspended, and supervised probation for a

period of five years upon release. On March 4, 2022, appellant filed his notice of appeal.

We shall provide additional facts as necessary for the resolution of the questions presented.

DISCUSSION

I. Rendition of the Jury’s Verdict

A. Facts

On November 30, 2021, the trial court received the jury’s verdict in open court. The

verdict sheet, which had been submitted by defense counsel, 3 set forth at the beginning:

JURY VERDICT SHEET

(1) Do you find that the State has proven its case beyond a reasonable doubt
as to:

3
The State argues extensively in its brief that appellant’s challenge to the rendition of the
verdict was not preserved for appellate review because of defense counsel’s submission of
the verdict form and the lack of any objection to the announcement, polling, or hearkening
of the verdict. Appellant responds that the requirement of preservation does not apply
because a defective verdict is a nullity. Our review of the case law indicates that there is a
lack of certainty as to whether an alleged defect in the rendition of a jury’s verdict is or is
not subject to waiver or the requirement of preservation. See Jones v. State, 384 Md. 669,
686 (2005) (although the State argued that Jones did not preserve for appeal the issue of
Continued
4
COUNT TWO: CDS POSSESSION WITH THE INTENT TO DIST.
NARC. FENTYL

__________ __________
YES NO

COUNT FOUR: CDS POSSESSION WITH THE INTENT TO DIST.
NARC. CRACK COCAINE

__________ __________
YES NO

The verdict sheet then listed all of the remaining counts submitted to the jury in the same

manner. On the returned verdict sheet, the jury indicated “yes” as to each of the counts.

The announcement of the verdict went as follows:

THE COURT: It is my understanding that you all have a verdict; is that
correct?

(Chorus of yeses.)

THE COURT: All right. Madam Clerk, please take the verdict.

THE CLERK: Members of the jury, are you agreed upon your verdict?

(Chorus of yes, we have.)

whether the verdict was illegal, our Supreme Court did not address the issue); State v.
Santiago, 412 Md. 28, 41 (2009) (the State argued that Santiago’s failure to request that
the jury be polled or object to the clerk’s failure to hearken the verdict constituted a waiver
on appeal; however, the Supreme Court held that “[t]he defect in this case was not subject
to waiver[]” and that “[t]he failure to hearken the verdict rendered the verdict a nullity.”);
Smith v. State, 299 Md. 158 (1984) (although the Supreme Court noted Smith’s failure to
object to the foreperson’s request to be polled a second time, waiver or preservation was
not raised by the State or addressed by the Court); Givens v. State, 76 Md. 485 (1893)
(waiver or preservation was not raised by the State or addressed by the Supreme Court);
Ogundipe v. State, 424 Md. 58, 72 (2011) (although Ogundipe did not object to the verdict
when it was rendered, the Supreme Court did not address whether the issue was properly
preserved). In light of such uncertainty, this Court will address appellant’s challenge to the
rendition of the jury’s verdict.
5
THE CLERK: Who shall say for you?

(Chorus of Madam Foreperson.)

THE COURT: Thank you.

UNIDENTIFIED SPEAKER: We have a teacher in this courtroom.

THE CLERK: Members of the jury, look upon the Defendant at the bar, what
say you as to Count II, CDS Possession with the Intent to Distribute Narcotic
Fentanyl.

MADAM FOREPERSON: Yes.

THE COURT: Guilty or not guilty. Does it say yes? Okay. So I don’t have a
copy in front of me. My fault. Go ahead.

THE CLERK: Count IV, CDS Possession with the Intent to Distribute
Narcotic Crack Cocaine.

MADAM FOREPERSON: Yes.

All eighteen counts were announced by the foreperson in the same fashion. The court then

proceeded to ask about the polling of the jury:

THE COURT: All right. Does anybody want the jury polled?

[DEFENSE COUNSEL]: Yes, please.

[PROSECUTOR]: No, Your Honor.

THE COURT: May we poll the jury, please.

THE CLERK: Seat No. 2, Juror No. 251, is her verdict your verdict?

JUROR NO. 251: Yes.

Each juror, other than the foreperson, was polled in the same manner, with the same

response of “yes.” The court then told the clerk to proceed with the hearkening of the

verdict:

6
THE COURT: You may harken the verdict, please.

THE CLERK: Members of the jury, harken unto your verdict as the Court
has recorded it. Your Foreman has said that Cameron Lewis –

THE COURT: Said that you find that the State has proven the case beyond a
reasonable doubt as to, that’s why I was confused.

THE CLERK: Count II, CDS Possession with the Intent to Distribute
Narcotic Fentanyl, yes.

The clerk hearkened the verdict using the same form for each count, asking the jury at the

end whether the verdict was correct, and the jury collectively affirmed the verdict. No

objection was made by the defendant during the announcement of the verdict, the polling

of the jury, or the hearkening of the verdict.

B. Standard of Review

Our review of the rendition of a “jury verdict in a criminal case is ‘de novo,

considering the totality of the circumstances.’” Jones v. State, 173 Md. App. 430, 451

(2007) (quoting Caldwell v. State, 164 Md. App. 612, 643 (2005)); see also Simms v. State,

240 Md. App. 606, 619 (2019); Teixeira v. State, 213 Md. App. 664, 668 (2013).

C. The Law

Under Article 21 of the Maryland Declaration of Rights, every person has a right

“to a speedy trial by an impartial jury, without whose unanimous consent he ought not to

be found guilty.” Md. Const. Decl. of Rts. art. 21. The procedure for returning a verdict in

a criminal trial in Maryland is governed by Maryland Rule 4-327. Section (a) of the rule

provides that “[t]he verdict of a jury shall be unanimous and shall be returned in open

court.” Md. Rule 4-327(a). Further, on the request of either party or on the court’s own

7
initiative, “the jury shall be polled after it has returned a verdict and before it is discharged.

If the sworn jurors do not unanimously concur in the verdict, the court may direct the jury

to retire for further deliberation, or may discharge the jury if satisfied that a unanimous

verdict cannot be reached.” Md. Rule 4-327(e).

In State v. Santiago, 412 Md. 28, 40 (2009), the Supreme Court of Maryland stated

that the rendition of a jury’s verdict has three distinct procedures: “(1) oral announcement

of the verdict, (2) unanimity, except that a defendant may waive the requirement of

unanimity and that he has an absolute right to poll the jury, [and] (3) after polling, the

traditional third step is to hearken the verdict.” “[E]ither hearkening or polling is the final

third step, depending upon the circumstances of the case.” Id. Hearkening and polling are

conducted to “secure certainty and accuracy, and to enable a jury to correct a verdict, which

they have mistaken, or which their foreman has improperly delivered.” Jones v. State, 384

Md. 669, 684 (2005) (internal quotation marks omitted). “[A] jury verdict, rendered and

announced in open court, that is neither polled nor hearkened is not properly recorded and

is therefore a nullity.” Santiago, 412 Md. at 32.

D. Analysis

i. Oral Announcement of the Verdict

In Givens v. State, 76 Md. 485, 486 (1893), the jury announced its verdict of guilty

in open court but was discharged before the jurors were hearkened to their verdict. The

Maryland Supreme Court stated that “[t]he sole question, then, is whether this omission by

the clerk in a criminal case is such an error as to entitle a party to a reversal of the judgment

and the granting of a new trial.” Id.

8
The Court observed at the outset:

Now, it is admitted that it has been the invariable practice in the court where
the appellant was tried, and the uniform practice in the courts of Maryland,
for the clerk to call upon the jury to hearken to their verdict, when they return
to the court to render it.
And while it may be a matter of form and practice, yet it is a juridical
form; and matters of form when they become established, and are supported
by reasons of justice and propriety, are regarded as matters of substance.

Id. The Court then set forth the procedure for the rendition of verdicts that, “according to

both the English practice and that in this country, is substantially and formally as follows:”

When the jury have come to a unanimous determination with respect to their
verdict, they return to the box to deliver it. The clerk then calls them over, by
their names, and asks them whether they agree on this verdict, to which they
reply in the affirmative. He then demands who shall say for them, to which
they answer, their foreman. This being done, he desires the prisoner to hold
up his right hand, and addresses them: ‘Look upon the prisoner at the bar;
How say you, is he guilty of the matter whereof he stands indicted or not
guilty?’ The foreman then answers guilty or not guilty, as the verdict may be.
The officer then writes the word ‘guilty’ or ‘not guilty’ as the verdict is, on
the record and again addresses the jury: Hearken to your verdict, as the court
hath recorded it. You say that ––– is guilty (or not guilty) of the matter
whereof he stands indicted, and so say you all.

Id. at 487 (quotation marks omitted).

According to the Court, the purpose of a jury hearkening to its verdict “is to secure

certainty and accuracy, and to enable the jury to correct a verdict, which they have

mistaken, or which their foreman has improperly delivered[.]” Id. at 488. The Court

concluded that, because “it has been the uniform practice in this State, in criminal cases, to

observe this form in the rendition of verdicts, the practice should be continued and not

changed. And as the [appellant] in this case was denied this right, we shall reverse the

judgment and award a new trial.” Id.

9
Appellant first argues that the announcement of the verdict in this case is a nullity

because “[i]n gross deviation from the form that is a matter of substance, the foreperson’s

verdict did not include a single use of ‘guilty’ or ‘not guilty’; no form of the root word

‘guilt’ was mentioned at all.” Appellant contends that Givens provides the “required form”

of the return of a jury’s verdict, which involves the foreperson saying either “guilty” or

“not guilty.” In response, the State argues that, although the return of a jury verdict requires

an oral announcement in open court, “neither Rule 4-327 nor the caselaw requires that the

verdict be announced in a particular way. Nor do they specify that the foreperson utter the

word ‘Guilty.’” According to the State, Givens does not “mandate the proper

announcement of a verdict by using the word, ‘Guilty,’” but rather “addressed a complaint

that the jury had not hearkened the verdict.” (Emphasis in original).

Appellant is correct that “[t]he procedure in the rendition of verdicts[]” set forth in

Givens uses the words “guilty” and “not guilty”. Givens, however, does not mandate the

use of specific words in the oral announcement of a verdict, nor does Givens indicate in

any way that the failure to use those specific words renders the verdict a “nullity.” The

“sole” issue in Givens was whether the clerk’s omission of having the jury hearken to its

verdict resulted in a reversal of the judgment and the granting of a new trial. 76 Md. at 486.

No issue was raised or decided by the Court regarding the propriety of using words other

than “guilty” or “not guilty” in the oral announcement of the verdict. Moreover, Rule 4-

327 does not specify any procedure, or litany, to be used for announcing the verdict “in

open court.” Finally, we believe that if our Supreme Court had intended that the trial courts

use certain words and phrases for the oral announcement of a verdict, and that failure to do

10
so would render the verdict invalid, the Court would have said so in Givens or in a

subsequent case. Appellant has not pointed us to any such case, and we have found none.

Appellant next argues that “[a]n indeterminate ‘yes’ is no substitute for a definitive

‘guilty[,]’” because “‘yes’ . . . could mean any number of things.” The State counters that

the “yes” answers “were the culmination of a simple chain of reasoning:” if the jury found

that the State proved a charge beyond a reasonable doubt, appellant was guilty; if the State

did not prove a charge beyond a reasonable doubt, appellant was not guilty; and “[t]he jury

was asked on the defense-submitted verdict sheet whether the State had proven each charge

beyond a reasonable doubt as to each charge and answered ‘yes’ with respect to each

count.” Therefore, according to the State, “[i]t logically and necessarily follows that the

jury’s verdict was that [appellant] was guilty of each crime charged.”

The purpose of an oral announcement of a verdict in open court is two-fold. First,

the oral announcement enables the defendant to exercise the right to poll the jury to ensure

the verdict’s unanimity. Jones, 384 Md. at 684. Second, “orally announcing each count of

the verdict prevents possible confusion during polling and hearkening where there are

multiple counts considered by the jury[.]” Id. at 684-85. Further, to prevent possible

confusion there must be a clear articulation of the jury’s verdict as to each charge. See id.

A foreperson’s statement of “guilty” or “not guilty” to a charge when read aloud easily

satisfies such purpose and is commonly employed by trial courts of this State.

The words “guilty” and “not guilty,” however, are not the only words that can

clearly convey a jury’s verdict. Here, prior to their deliberations, the jurors were instructed

by the trial court that “the State has the burden of proving the guilt of the Defendant beyond

11
a reasonable doubt[,]” and that if the jurors were “not satisfied with the Defendant’s guilt

to that extent for each and every element of each crime charged, then reasonable doubt

exists and the Defendant must be found not guilty of that crime.” Then, as set forth above,

the Jury Verdict Sheet asked the jurors: “Do you find that the State has proven its case

beyond a reasonable doubt as to:” and then listed each charge with a space for the jury to

respond “yes” or “no” to that question. In this context, a marking of “yes” to a particular

charge indicated a verdict of “guilty,” and a marking of “no” indicated a verdict of “not

guilty.” Therefore, we conclude that when the jury foreperson said “yes” to each charge

during the oral announcement, she clearly meant “guilty.”

Finally, relying on Ogundipe v. State, 424 Md. 58, 72 (2011), appellant asserts that,

even though the verdict sheet stated, “Do you find that the State has proven its case beyond

a reasonable doubt as to[,]” “[t]he verdict sheet cannot be used to fill in the blanks because

the contents of the verdict sheet do not constitute the jury’s verdict.” (Internal quotation

marks omitted). The State answers that “the verdict sheet supported a properly announced

verdict[]” and that this Court “should reject [appellant’s] effort to elevate form over

substance in arguing” that the verdict sheet cannot clarify the meaning of the verdict.

In Ogundipe, our Supreme Court addressed the issue of whether the signed verdict

sheet constituted the jury’s verdict. Id. at 68. There, the verdict sheet specified, and the trial

judge so instructed, that for each first degree charge, the jury was to consider the second

degree charge only if the jury’s answer to the corresponding first degree charge was “not

guilty.” Id. at 66. Instead, after marking each of the five first degree charges as “guilty,”

the jury marked the corresponding second degree charge as “not guilty.” Id. at 65.

12
Nevertheless, during the oral announcement of the verdict, the clerk did not ask the

foreperson to recite the jury verdict for the second degree charge where the jury found the

appellant guilty of the corresponding first degree charge. Id. at 67. The jury was hearkened

and polled to the verdict as orally announced in open court. Id. at 65.

On appeal, the appellant argued that the verdict sheet constituted an inconsistent

verdict with that which was orally announced. Id. at 67. Our Supreme Court rejected the

appellant’s argument, holding:

[I]n the present case, any questions on the verdict sheet that were not
announced orally in court cannot be considered verdicts in themselves. The
verdict sheet is merely a tool used to aid the jury in reaching its verdict; it
therefore does not bind the jury or the court to its contents.

Id. at 72-73.

In the instant case, unlike Ogundipe, there was no inconsistency between the verdict

as set forth on the Jury Verdict Sheet and as orally announced by the jury foreperson.

Indeed, they were identical. In other words, there is no contention here that the verdict

sheet constitutes the jury’s verdict, as opposed to the orally announced verdict. At most,

the Jury Verdict Sheet provides context for the meaning of the foreperson’s response of

“yes” to each charge as read by the clerk, and thus is “a tool used to aid the jury in reaching

its verdict.” Id.

In conclusion, we have not found a case in any other jurisdiction that has addressed

the issue before us. We note, however, that some courts in other jurisdictions have tried

cases involving verdict sheets that state “yes” and “no” and have not disapproved of them.

See State v. Barbour, 229 N.C. App. 635, 639-40 (2013) (involving the use of “yes” and

13
“no” on a verdict sheet for robbery and murder); United States v. McCourty, 562 F.3d 458,

465-66 (2d Cir. 2009) (involving the use of “yes” and “no” on a verdict sheet in response

to the question “[h]as the government proved beyond a reasonable doubt that the defendant

possessed with the intent to distribute more than five grams of crack”); State v. Biegenwald,

106 N.J. 13, 55-57 (1987) (involving the use of “yes” and “no” on a verdict sheet in

response to questions about whether the jury had found beyond a reasonable doubt that

aggravating and mitigating factors existed).

ii. Polling of the Jury

Appellant argues that the polling of the jury “did nothing more than recapitulate the

defective form of the announcement of the verdict and, thus, did nothing to cure the

defective verdict.” The State responds that the jury was properly polled, as appellant

requested, and the polling established the unanimity of the jury’s verdict.

The second step of the rendition of a jury verdict is the polling of the jury. Santiago,

412 Md. at 40. “A defendant has the absolute right to poll the jury[.]” Jones, 384 Md. at

683. “In order to exercise the right to poll, the defendant must request to poll the jury.” Id.

In Smith v. State, the Maryland Supreme Court stated that “[t]he polling provides a means

of establishing that the verdict was with the unanimous consent of the jurors.” 299 Md.

158, 166 (1984). “The underlying requirement of a final verdict is that it be unanimous.”

Id. at 163.

Here, appellant requested the polling of the jury, and the clerk polled the jury by

confirming with each juror that his or her verdict was the same as the one announced by

the foreperson. Appellant does not argue that the form of the polling itself was defective or

14
that the polling would have been insufficient had the verdict been valid; instead, appellant

simply argues that the polling of the jury “did nothing to cure the defective verdict.”

Because we have determined that the oral announcement of the verdict by the foreperson

was not defective, we conclude that the polling of the jury was proper.

iii. Hearkening of the Verdict

Turning now to the third step in the rendition of the verdict, the hearkening of the

verdict, appellant contends that the hearkening did not cure the defective verdict because

the form of hearkening given to the jury was not the form required by Givens. According

to appellant, Givens states that the hearkening of the verdict is a matter of substance, not

just form. We are not persuaded.

In Givens, our Supreme Court stated that the form of hearkening is “substantially

and formally” that the clerk “addresses the jury: Hearken to your verdict as the court hath

recorded it. You say that ––– is guilty (or not guilty) of the matter whereof he stands

indicted, and so say you all.” 76 Md. at 487. Although the Court in Givens used the words

“guilty” and “not guilty” in the hearkening, we are again of the view that the Court did not

mandate the use of specific words in the hearkening of the verdict. Because of the failure

to hearken the verdict in Givens, the Court held that hearkening must be conducted; it did

not dictate a required form for the hearkening. See id. at 488. Further, the other cases cited

by the Court in Givens do not state that the hearkening requires the use of the words

“guilty” or “not guilty.” See Com. v. Gibson, 4 Va. 70, 70 (Va. Gen. Ct. 1817) (“After a

verdict in Felony has been received and read, it is the duty of the Clerk to direct the jury to

15
hearken to their verdict, as the Court has recorded it: then to repeat it to them, and poll

them, or say, ‘And so say you, all,’ or words to that effect[]”).

In Glickman v. State, 190 Md. 516 (1948), the appellant contended that the

hearkening of the verdict was ineffectual “because the Clerk omitted the words ‘as the

court hath recorded it.’” Id. at 527. The Supreme Court of Maryland rejected the appellant’s

contention, holding that the omitted words were “a mere matter of immaterial form. The

important matter of substance is that all the jurors assented to the verdict in the manner in

which it had been stated by the foreman and accepted by the Court.” Id. (Emphasis added);

Smith, 299 Md. at 165 n.5 (same). Similarly, in Santiago, the Court stated that “[t]he reason

that hearkening, in the absence of polling, is essential lies in the defendant’s constitutional

right to a unanimous verdict, and the concept of finality with respect to jury verdicts. . . .

Accordingly, the jury is asked to hearken to the verdict as delivered by the foreman.” 412

Md. at 37-38 (footnote omitted) (emphasis added).

When announcing the verdict in the instant case, the foreperson stated “yes” as to

each count. In order to keep the form between the announcement and the hearkening the

same, the trial court interrupted the clerk at the beginning of the hearkening to ensure that

the clerk said “yes” instead of “guilty.” The clerk proceeded to say “yes” as to each count.

Because, according to Smith, the substantive aspect of hearkening is ensuring that jurors

have an opportunity to assent to the verdict as it was announced by the foreperson, the

hearkening in this case fulfilled that purpose and thus was valid. See Smith, 299 Md. at 165

n.5.

16
Appellant also argues that the form of the hearkening given by the clerk had a

“dimension of ambiguity” because saying “yes” made it unclear whether the jury was

referring to the appellant or Miles, the passenger in appellant’s vehicle. In Smith, the Court

stated that if a verdict is ambiguous, then “‘it is the duty of the trial judge to call the jury’s

attention to the defect and to direct them to put the verdict in proper form either in the

presence of the court or by returning to their consultation room for the purpose of further

deliberation.’” Smith, 299 Md. at 170 (quoting Glickman, 190 Md. at 525). In Ogundipe,

the Court stated that, although the verdict sheet did not constitute the jury’s verdict, the

verdict sheet “did not evidence any confusion by the jury as to the charges.” 424 Md. at

73.

Here, there is no indication that the trial judge thought that the verdict was in any

way ambiguous. Although the trial judge stated that he was “confused,” his confusion

related to the form of the announcement and hearkening and not as to whether the jury

thought that the appellant was guilty as to all charges. Furthermore, unlike Ogundipe, there

were no inconsistencies between the verdict sheet and the announced verdict, and thus no

confusion by the jury or the trial court as to the charges. See Ogundipe, 424 Md. at 73.

Finally, Miles was not a co-defendant, as appellant was the only defendant in this case. We

are confident that the jurors were aware that each of the counts announced by the

foreperson applied to appellant and appellant only. Because the jury foreperson properly

17
announced the verdict, and the hearkening and polling confirmed the jury’s verdict, we

hold that the rendition of the jury’s verdict was valid. 4

II. Voir Dire Question

A. Facts

On November 29, 2021, at 9:03 a.m., the trial court began the voir dire process. The

first venire consisted of 38 potential jurors numbered between 220 and 334. The court

asked a number of questions to the venire, ending with a final question: “Do any of you

have any reason whatsoever why you cannot sit as a juror in this case and render a fair and

impartial verdict based on the evidence and the law?” The court then asked counsel if they

had any objections to the voir dire questions, to which defense counsel responded, “no

objections.” At 11:17 a.m., after receiving the jurors’ responses individually and dismissing

a number of jurors for cause, the trial judge determined that additional potential jurors

would be required in a second venire.

At 1:55 p.m., the trial court resumed the voir dire process with a second venire,

asking the same questions as posed to the first venire. Before the court asked the final

question, however, defense counsel approached the bench and stated:

4
Appellant argues, in the alternative, that “this Court should find that trial counsel rendered
ineffective assistance under Strickland v. Washington, 466 U.S. 668 (1984).” Appellant
explains that “by failing to preserve the issue, counsel deprived [a]ppellant of appellate
review of an issue that had a reasonable probability of succeeding on appeal.” Because we
have addressed appellant’s issue regarding the rendition of the jury’s verdict, there can be
no ineffective assistance of counsel claim based on defense counsel’s waiver or failure to
preserve the issue for our review. In other words, appellant’s ineffective assistance of
counsel claim on this issue is moot. See footnote 3, supra.

18
[DEFENSE COUNSEL]: There was a question that I wanted last time that I
didn’t have asked, it’s about whether anybody has a medical condition that
would cause them to be unable to sit and listen to the jury [sic].

THE COURT: I think that would fall under the last question.

[DEFENSE COUNSEL]: Okay. All right.

(Emphasis added). The trial court’s final question, which was asked immediately after the

preceding interaction, was as follows:

THE COURT: All right. Ladies and gentlemen, here’s the last question. So
if there’s something you thought you should respond to, but for whatever
reason didn’t, please respond to this one. Do you know of any reason
whatsoever why you cannot sit as a juror in this case and render a fair and
impartial verdict based on the evidence and the law?

(Emphasis added). Three jurors responded to the question, none of whom raised a medical

condition. The jury was sworn just before 4:30 p.m.

B. Arguments of the Parties

Appellant argues that the trial court abused its discretion by failing to ask defense

counsel’s proposed question. Specifically, appellant asserts that the question “was directed

at a statutory cause for disqualification[,]” namely a certified disability that prevents an

individual from providing satisfactory jury service. Appellant also claims that the court’s

final question was not an adequate substitute for his requested question, and was, in any

event, “an improperly phrased compound question.”

The State responds that the trial court appropriately exercised its discretion in

declining to ask appellant’s proposed voir dire question. According to the State, “[w]hereas

[appellant] now describes that request as having sought a ‘statutory cause for

disqualification,’ the question his counsel actually sought asked only about ‘medical

19
issues’ that could make a juror unable to sit through the trial.” (Emphasis in original).

Further, the State contends that the trial court correctly believed that appellant’s requested

question was covered by the court’s final question. The State also points to the fact that

defense counsel raised the requested question only for the second venire panel, and thus

the question was “almost an afterthought[.]” Finally, the State contends that “any error in

the court’s declining to pose the question was harmless.”

C. Standard of Review

Decisions of a trial court during voir dire are generally reviewed under an abuse of

discretion standard. See Thomas v. State, 454 Md. 495, 504 (2017). The “standard is

whether the questions posed and the procedures employed have created a reasonable

assurance that prejudice would be discovered if present.” Washington v. State, 425 Md.

306, 313 (2012). In order to make this determination, “an appellate court looks at the record

as a whole to determine whether the matter has been fairly covered.” Id. at 313-14. Failure

of a trial court to ask a mandatory question upon request is an abuse of discretion. See

Curtin v. State, 393 Md. 593, 609 n.8 (2006).

D. Analysis

The Sixth Amendment of the United States Constitution and Article 21 of the

Maryland Declaration of Rights grant a defendant a right to an impartial jury. U.S. Const.

amend. VI; Md. Const. Decl. of Rts. art. 21. Voir dire “‘is critical to’ implementing the

right to an impartial jury.” Pearson v. State, 437 Md. 350, 356 (2014) (quoting Washington,

425 Md. at 312). In Maryland, “the sole purpose of voir dire is to ensure a fair and impartial

jury by determining the existence of cause for disqualification[.]” Washington, 425 Md. at

20
312. Trial judges have “broad discretion in the conduct of voir dire, especially regarding

the scope and form of the questions propounded, and that he or she need not make any

particular inquiry of the prospective jurors unless that inquiry is directed toward” that

purpose. Thomas, 454 Md. at 504. “On request, a trial court must ask a voir dire question

if and only if the voir dire question is ‘reasonably likely to reveal [specific] cause for

disqualification[.]’” Pearson, 437 Md. at 357 (quoting Moore v. State, 412 Md. 635, 663

(2010) (alteration in original). The two categories of specific causes for disqualification are

“(1) a statute disqualifies a prospective juror; or (2) a ‘collateral matter [is] reasonably

liable to have undue influence over’ a prospective juror.” Id. (quoting Washington, 425

Md. at 313).

Appellant’s proposed voir dire question was “whether anybody has a medical

condition that would cause them to be unable to sit and listen to the jury [sic].” Appellant

first argues that such question was likely to elicit disqualifying information about whether

any potential juror had a certified disability. Appellant’s argument is not persuasive.

Section 8-103(b)(3) of the Courts and Judicial Proceedings Article provides, in

relevant part:

(b) Notwithstanding subsection (a) of this section and subject to the federal
Americans with Disabilities Act, an individual is not qualified for jury
service if the individual:
***
(3) Has a disability that, as documented by a health care provider’s
certification, prevents the individual from providing satisfactory jury
service[.]

21
Md. Code Ann., Cts. & Jud. Proc. § 8-103(b)(3) (footnote omitted). Appellant’s proposed

voir dire question, which asks about any “medical condition,” makes no reference to “a

disability” that is “documented by a health care provider’s certification[.]” Thus appellant’s

question is unlikely to reveal statutory disqualifying information. Moreover, defense

counsel never advised the trial court that the requested question was intended to elicit a

statutory basis for disqualifying a juror.

In denying defense counsel’s requested voir dire question, the trial court ruled that

the final voir dire question would cover defense counsel’s question. The final voir dire

question, often referred to as the “catch-all” question, was: “Do you know any reason

whatsoever why you cannot sit as a juror in this case and render a fair and impartial verdict

based on the evidence and the law?” Appellant argues that the court’s catch-all question

was not an “adequate substitute” for his proposed voir dire question, citing Davis v. State,

333 Md. 27, 47 (1993), overruled on other grounds by Pearson, 437 Md. at 368. 5 We

disagree and shall explain.

Although the trial court’s catch-all question did not specifically refer to a “medical

condition” as a reason for an individual’s inability to sit as a juror, the question did ask for

“any reason” why a prospective juror could not sit as a juror. “Any reason” clearly includes

a “medical condition” and thus the court correctly ruled that appellant’s proposed question

was covered by the court’s catch-all question. Furthermore, Davis does not compel a

5
Appellant also argues that defense counsel’s statement, “Okay. All right[,]” after the trial
court’s ruling did not constitute acquiescence to that ruling, and thus did not waive
appellant’s right to challenge the ruling on appeal. See Md. Rule 4-323(c). Because we
have chosen to review the trial court’s ruling, appellant’s argument is moot.
22
different result. In Davis, our Supreme Court stated that a general voir dire question, “such

as, ‘is there any reason why you could not render a fair and impartial verdict,’ is not an

adequate substitute for properly framed questions designed to highlight specific areas

where potential jurors may have biases that could hinder their ability to fairly and

impartially decide the case.” 333 Md. at 47. Here, unlike in Davis, appellant’s question did

not seek to uncover any biases that could hinder a potential juror’s ability to render a fair

and impartial verdict. Instead, appellant’s question sought only a specific reason, i.e., any

medical condition, that would prevent a potential juror from sitting on the jury.

Regarding the trial court’s catch-all voir dire question, appellant also complains that

such question is an “improperly phrased compound question.” Appellant is wrong, not just

because the catch-all question is not an improper compound question, but because appellant

never preserved the issue for appellate review.

Writing for this Court in Robson v. State, 257 Md. App. 421, cert. denied, 483 Md.

520 (2023), Judge Charles E. Moylan, Jr., stated that “[t]o preserve successfully for appeal

‘any claim involving a trial court’s decision about whether to propound a voir dire question,

a defendant must object to the court’s ruling.’” Id. at 459 (quoting Foster v. State, 247 Md.

App. 642, 647 (2020)). In Robson, the challenged voir dire questions were concededly

improper compound questions. Id. at 457; see Dingle v. State, 361 Md. 1, 3-4, 17 (2000)

(holding improper a compound voir dire question, i.e., a question inquiring about certain

experiences or associations of a potential juror coupled with an inquiry into whether the

experience or association would affect the juror’s ability to be fair and impartial); accord,

Pearson, 437 Md. at 362-63. In holding that the appellant’s challenge to the forbidden

23
compound questions had not been preserved for appellate review, Judge Moylan noted that

“[t]o neither the representative compound question now being considered nor to any of the

five allegedly compound questions which the appellant challenges was there raised so

much as a murmur of objection during the voir dire examination.” Robson, 257 Md. App.

at 459.

Similar to the facts in Robson, there is nothing in the record in the instant case that

shows appellant objected to the trial court’s catch-all question as an improper compound

question. Indeed, when the court gave the same catch-all question to the first venire, 6

defense counsel stated that he had “no objection” to any of the voir dire questions.

Therefore, we conclude that appellant’s challenge to the trial court’s catch-all question as

an improper compound question is not preserved for appellate review.

Even if preserved, however, appellant’s challenge to the trial court’s catch-all

question would not prevail. Simply stated, the catch-all question is not an improper

compound question.

An example of an improper compound question is: “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

6
The catch-all question to the first venire was, “Do any of you have any reason whatsoever
why you cannot sit as a juror in this case and render a fair and impartial verdict based on
the evidence and the law?” The catch-all question to the second venire was “Do you know
of any reason whatsoever why you cannot sit as a juror in this case and render a fair and
impartial verdict based on the evidence and the law?” The only difference is the italicized
portion, which we view as immaterial.
24
been alleged?” Pearson, 437 Md. at 361. In Robson, Judge Moylan expounded on the

concept of an improper compound question in the context of a voir dire examination:

A compound question, in this Dingle-Pearson analysis, consists of
two parts which are very different in their basic nature and function.
The first part is the “protasis” or the “conditional clause.” It addresses
the “potential existence of a specified condition.” The second part
addresses “the potential effect of the specified condition,” if that
condition exists. That second or consequential part is the “apodosis,” or
the “conclusion clause.” The apodoses tend to “remain constant,” always
yielding a simple “Yes” or “No.” The protases, by contrast, are widely
variable, “relative to each particular experience or association of concern.”
It is the protasis that identifies the actual condition that might represent
a challenge for cause. The apodosis represents only what the prospective
juror believes would be his or her response to such a condition.

257 Md. App. at 450 (emphasis added).

Judge Moylan went on to identify the “negative answer, the non-response,” as “the

problem.” Id. at 453. He wrote:

A negative answer to the apodosis, signified only by the juror’s continuing
to sit silent, tells us nothing. What does, “No, I can be impartial” mean? Does
it mean, “No. Notwithstanding the existence of the circumstance you ask
about, I can overcome that and still be fair and impartial?” Or does it mean,
“No, I can be impartial because the circumstances you asked about do not
even exist in my case and there is no reason, therefore, why I cannot be fair
and impartial?” The unspoken answer to the apodosis will be “No” regardless
of whether the unspoken answer to the protasis would have been “Yes” or
“No.” Even in the face of a tentative challenge for cause, it would have been
the prospective juror himself rather than the trial judge who made the
ultimate decision as to whether a challenge for cause existed.

Id. at 453-54.

As previously stated, the trial court’s catch-all question in the instant case was: “Do

you know of any reason whatsoever why you cannot sit as a juror in this case and render a

fair and impartial verdict based on the evidence and the law?” Although the catch-all

25
question has two parts, the first part is not a “conditional clause” and the second part is not

a “conclusion clause.” The two parts are separate and independent of each other. They are,

in reality, two different questions put together by the conjunction “and.” More importantly,

a negative answer, or non-response, provides all of the information requested by the

question, i.e. the prospective juror does not know of any reason why he or she cannot sit

as a juror, and the juror does not know of any reason why he or she cannot render a fair

and impartial verdict based on the evidence and the law.

Finally, even if the trial judge erred in not asking defense counsel’s proposed

question, the error was harmless. In a criminal case, an error is harmless only if a court

finds that the error was “harmless beyond a reasonable doubt.” Gross v. State, 481 Md.

233, 257 (2022). In other words, “the State must show beyond a reasonable doubt that the

‘evidence admitted in error in no way influenced the verdict.’” Id. at 259 (quoting Dorsey

v. State, 276 Md. 638, 659 (1976)). Where “a ‘reviewing court, upon its own independent

review of the record, is [un]able to declare a belief, beyond a reasonable doubt, that the

error in no way influenced the verdict, such error cannot be deemed ‘harmless’ and a

reversal is mandated.’” Moore, 412 Md. at 666 (alteration in original) (quoting Dorsey,

276 Md. at 659).

In the instant case, appellant points to no evidence that any juror had a medical

condition that prevented him or her from sitting on the jury, and no juror raised a medical

condition in response to the court’s final catch-all question. More importantly, all twelve

jurors selected by the parties sat through the entire trial, participated in jury deliberations,

and rendered a verdict on all eighteen charges. The alternate juror was excused before the

26
jury began its deliberations. Therefore, there is no evidence that any juror failed to sit as a

juror for the entire trial or was otherwise unable to provide “satisfactory jury service[.]”

Md. Code, Cts. & Jud. Proc. § 8-103(b)(3).

III. Accomplice Liability Instruction

A. Facts

After the close of the evidence and before closing arguments, the trial court

instructed the jury that appellant may be found guilty of the crime of possession with intent

to distribute as an accomplice. The court stated:

The Defendant may be guilty of the crime of possession with intent to
distribute as an accomplice even though the Defendant did not personally
commit the acts that constitute the crime. In order to convict the Defendant
of possession with the intent to distribute as an accomplice, the State must
prove that the possession was with the intent to distribute occurred and that
the Defendant with the intent to make the crime happen, knowingly aided,
counseled, commanded or encouraged the commission of the crime or
communicated to a participant in the crime that he was ready, willing, and
able to lend support if needed.
The mere presence of the Defendant at the time and place of the
commission of the crime is not enough to prove that the Defendant is an
accomplice. If presence at the scene of the crime is proven, that fact may be
considered along with all of the surrounding circumstances in deciding or
determining whether the Defendant intended to aid, participate and
communicated that willingness to a participant.

At the end of the jury instructions, appellant objected to this instruction on the basis that

the evidence did not warrant the instruction. The trial court declined to withdraw the

instruction.

In his closing argument, the prosecutor explained to the jury the relevance of the

accomplice liability instruction in relation to the facts of the instant case:

27
Now, the Judge also gave you another instruction on accomplice
liability. So you may say, you know, I’m not sure if he actually had the drugs
on him. I’m not sure if he constructively possessed them, but the accomplice
liability instruction that the Judge gave you and that you’ll get in the jury
room is that if you are assisting in the commission of a crime, you’re
culpable. Why did [appellant] take off? Why did he take off? They’re either
his drugs that were thrown out the window, which I would submit to you the
circumstantial evidence shows that they were his drugs, or he was helping
somebody who was possessing them with intent to distribute. Under either
circumstance, [appellant] is culpable for that crime.

B. Arguments of the Parties

Appellant claims that the State can use appellant’s actions after the initial traffic

stop only as evidence that appellant was an accessory after the fact, not an accomplice to a

crime. Appellant argues that none of the “pre-stop” actions attributed to appellant show

that appellant aided “another’s commission of possession with intent to distribute[.]”

Specifically, appellant asserts that (1) there was no “pre-stop” evidence “of an ‘actual

perpetrator’ other than [a]ppellant[,]” and (2) appellant’s purported joint-possession of the

same controlled dangerous substances as Miles does not show that appellant aided or

encouraged Miles’s commission of a crime; in other words, “[p]ossession by appellant is

redundant.” Therefore, according to appellant, the accomplice instruction was not

generated by the evidence.

The State responds that the jury instruction on accomplice liability “was proper as

generated by the evidence: the jury could have found that the passenger in the car, Miles,

possessed controlled dangerous substances with intent to distribute, and that [appellant]

aided in and encouraged commission of that crime.” The State points to evidence that Miles

at some point possessed the controlled dangerous substances, “given that he threw it out

28
the window,” that appellant was aware of the drugs by the presence of the scale and phones

in plain view, and that appellant tried to flee from the police after stopping the car. Because,

according to the State, only “some evidence” is required, the accomplice liability

instruction was properly generated. Lastly, the State contends that “[a] court may instruct

on alternate theories of liability where the evidence supports each theory.”

C. Standard of Review

Decisions of a trial court to give a jury instruction are reviewed under an abuse of

discretion standard. See Nicholson v. State, 239 Md. App. 228, 239 (2018).

D. Analysis

Maryland Rule 4-325(c), which governs how trial courts are required to deliver jury

instructions, states:

How given. The court may, and at the request of any party shall, instruct the
jury as to the applicable law and the extent to which the instructions are
binding. The court may give its instructions orally or, with the consent of the
parties, in writing instead of orally. The court need not grant a requested
instruction if the matter is fairly covered by instructions actually given.

In Ware v. State, the Supreme Court of Maryland explained that Rule 4-325(c)

requires the trial court to give a requested jury instruction when: “(1) the requested

instruction is a correct statement of the law; (2) the requested instruction is applicable under

the facts of the case; and (3) the content of the requested instruction was not fairly covered

elsewhere in the jury instruction[s] actually given.” 348 Md. 19, 58 (1997). Further, “[i]f a

party requests an instruction . . . the trial judge should first evaluate whether the evidence

29
adduced at trial suggests the need for the requested instruction.” Gunning v. State, 347 Md.

332, 348 (1997).

The party requesting a jury instruction “must only produce some evidence to support

the requested instruction.” Rainey v. State, 252 Md. App. 578, 591 (2021), aff’d, 480 Md.

230 (2022) (internal quotation marks omitted). A determination of the sufficiency of the

evidence is assessed “in the light most favorable to the requesting party.” Rainey, 480 Md.

at 255. Such determination requires an appellate court to “independently determine

whether the requesting party . . . ‘produced [the] minimum threshold of evidence necessary

to establish a prima facie case that would allow a jury to rationally conclude that the

evidence supports the application of the legal theory desired.’” Id. (quoting Bazzle v. State,

426 Md. 541, 550 (2012)).

At the outset, we reject appellant’s assertion that “any actions attributed to

[a]ppellant from the point in time of the initial stop forward are relevant only with respect

to a charge of being an accessory after the fact.” Appellant is under the misapprehension

that the possession of illegal drugs with the intent to distribute by Miles somehow ended

at the time of the initial stop, and thus appellant could not be convicted as an accomplice

based upon what happened after the initial stop. According to appellant, he could only be

charged with being an accessory after the fact, which he was not. In our view, the evidence

supported the crime of possessing controlled dangerous substances with the intent to

distribute by Miles after the initial stop because the illegal drugs, scale, and phones were

in the vehicle when appellant drove away, and Miles was in possession of the drugs when

he threw them out of the window. Therefore, appellant’s actions after the initial stop are

30
relevant as to whether appellant was an accomplice to Miles’s possession of CDS with the

intent to distribute. Appellant points to no authority supporting his claim that appellant’s

actions after the initial stop cannot be used to prove that appellant was an accomplice to a

crime committed by Miles.

Considering the evidence both before and after Deputy Nolan initially stopped

appellant’s vehicle, there is “some evidence” to support the jury instruction on accomplice

liability and raise the inference that appellant was aiding Miles in the possession of

narcotics with the intent to distribute. First, Miles was in the same car as appellant, and

appellant was the one who fled the scene of the initial stop by speeding away from Deputy

Nolan. Second, Miles was in actual possession of the drugs at least for a short period when

he threw them out the window. Third, a scale with CDS residue on it was recovered in the

open center console of the vehicle, meaning that it was in plain view of appellant while he

was driving. It is a reasonable inference for the jury to make that Miles was the one in

possession of the scale and the narcotics recovered from the shoulder of the road, and thus

appellant was aiding him in the possession and distribution of those narcotics by fleeing

from the police after the initial stop. Further, the State is permitted to present and argue

alternate theories of liability. See, e.g., Selby v. State, 76 Md. App. 201, 207 (1988), aff’d

319 Md. 174 (1990); Cruz v. State, 407 Md. 202, 222 (2009). Therefore, the trial court did

not abuse its discretion by giving the jury instruction on accomplice liability.

31
IV. Acceptance of the State’s Witness as an Expert

A. Facts

At trial, Deputy Nolan was called by the State as an expert in “[t]he identification,

packaging, distribution of controlled dangerous substances including the amounts, usages,

values, packaging, modus operandi, techniques, activities, and schemes of drug

traffickers.” Deputy Nolan testified that he received narcotics training at a week-long

course at the police academy in 2016, which covered the packaging, quantity, street value,

and slang terms of CDS. According to Deputy Nolan, he had been involved in twenty-six

narcotics investigations over the previous five years, including investigations involving

cocaine, heroin, and fentanyl. In addition, Deputy Nolan testified that he had spoken with

individuals whom he had arrested, as well as others, about slang terms for various

substances over the previous five years.

The trial court allowed defense counsel to voir dire Deputy Nolan, during which

Deputy Nolan testified that he has no specialized training in the identification, packaging,

or distribution of CDS and had never previously been accepted as an expert witness in a

court in Maryland. Following the voir dire, defense counsel objected to the acceptance of

Deputy Nolan as an expert in the proffered fields, and the court stated as follows:

THE COURT: I’m going to deny the request to recognize him as an
expert for what you previously proffered in that. If you’re offering him as
an expert in slang or street terminology and/or street value, then I will
qualify him as an expert in those limited fields. 7

7
The trial court then allowed defense counsel to conduct additional voir dire in the fields
of street terminology and value of CDS, and in response to defense counsel’s question
about cell phones, Deputy Nolan testified that in the course of his work over the previous
Continued
32
(Emphasis added.)

Regarding the facts of the instant case, Deputy Nolan testified that four phones were

recovered from appellant’s vehicle, two of which had evidentiary value, and that he took

photographs of text messages on those two phones. Deputy Nolan then testified as to the

meaning of various slang terms in those text messages.

B. Arguments of the Parties

Appellant argues that the trial court abused its discretion by accepting Deputy Nolan

as an expert because the instant case was the first time that Deputy Nolan had been accepted

as an expert by a court, he had no specialized training in narcotics enforcement, and his

only narcotics training was a week-long course in the police academy that occurred six

years prior to appellant’s arrest. Although Deputy Nolan had been a patrol officer since

leaving the academy, appellant argues that Deputy Nolan was not qualified as an expert

because he had “only participated in eight cases involving heroin and fentanyl and six cases

involving cocaine[,]” and only had experience in interpreting text conversations related to

illegal drugs on approximately two cellphones.

The State responds that “Deputy Nolan’s qualifications, training, and experience

qualified him in the areas where the court accepted him[.]” Specifically, the State argues

that the week-long class Deputy Nolan took at the police academy “covered the packaging

five years he looked at approximately two phones to determine whether they were drug
related. Defense counsel re-raised his objection, but the court recognized Deputy Nolan as
“an expert in the fields of slang or street terminologies, controlled dangerous substances
and street value of controlled dangerous substances.”
33
of narcotics, and the amount of CDS typically found on a user versus a distributor.” The

State also points to the fact that Deputy Nolan was involved in the investigation of twenty-

six narcotics cases and had talked with suspects about street terms and terminology.

Finally, the State contends that appellant’s attacks on the length of time Deputy Nolan had

been on patrol and the fact that he had never previously been admitted by a court as an

expert go to the weight, rather than the admissibility, of his testimony.

C. Standard of Review

Decisions by a trial court to admit a witness as an expert are reviewed under an

abuse of discretion standard. See Frankel v. Deane, 480 Md. 682, 701 (2022). A trial

court’s decision whether to admit expert testimony is also discretionary. Sissoko v. State,

236 Md. App. 676, 712 (2018). A trial court’s ruling to admit expert witness testimony

“‘will seldom constitute a ground for reversal.’” State v. Matthews, 479 Md. 278, 306

(2022) (quoting Rochkind v. Stevenson, 471 Md. 1, 10 (2020)). A trial court’s decision

warrants reversal only when it is “‘well removed from any center mark imagined by the

reviewing court and beyond the fringe of what that court deems minimally acceptable.’”

Id. at 305 (quoting Devincentz v. State, 460 Md. 518, 550 (2018)).

D. Analysis

A trial judge “must ensure that any and all scientific testimony or evidence admitted

is not only relevant, but reliable.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579,

589 (1993); see Rochkind, 471 Md. at 31. This gatekeeping function applies “not only to

testimony based on ‘scientific’ knowledge, but also to testimony based on ‘technical’ and

‘other specialized’ knowledge.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141
34
(1999); see Rochkind, 471 Md. at 36, 38. Maryland Rule 5-702, which governs the

admissibility of expert testimony, states:

Expert testimony may be admitted, in the form of an opinion or otherwise, if
the court determines that the testimony will assist the trier of fact to
understand the evidence or to determine a fact in issue. In making that
determination, the court shall determine
(1) whether the witness is qualified as an expert by knowledge, skill,
experience, training, or education,
(2) the appropriateness of the expert testimony on the particular subject, and
(3) whether a sufficient factual basis exists to support the expert testimony.

Md. Rule 5-702.

For a witness to qualify as an expert under subsection (1), the witness “must have

special knowledge of the subject so that the expert ‘can give the jury assistance in solving

a problem for which [its] equipment of average knowledge is inadequate.’” Samsun Corp.

v. Bennett, 154 Md. App. 59, 67-68 (2003) (quoting Baltimore Gas & Electric Co. v.

Flippo, 112 Md. App. 75, 98 (1996)) (alteration in original). A witness may be allowed to

give an expert opinion if they are “‘reasonably familiar with the subject under

investigation, regardless of whether this special knowledge is based upon professional

training, observation, actual experience, or any combination of these factors.’” Roy v.

Dackman, 445 Md. 23, 41 (2015) (quoting Radman v. Harold, 279 Md. 167, 169 (1977)).

An expert witness “need not possess special knowledge if he or she is generally conversant

with the subject of the controversy.” Bennett, 154 Md. App. at 68.

In the instant case, the trial court did not abuse its discretion in admitting Deputy

Nolan as an expert. Appellant cites to no Maryland case law in support of his argument

that the acceptance of Deputy Nolan as an expert was an abuse of discretion. Although

35
Deputy Nolan’s only official training on illegal drugs was a week-long course at the police

academy, his experience working on patrol for five years and conducting twenty-six

narcotics investigations during that time period, fourteen of which involved heroin,

fentanyl, and/or cocaine, provided evidence that he was “‘reasonably familiar with the

subject under investigation[.]” Dackman, 445 Md. at 41. In addition, although Deputy

Nolan may not have specialized training in narcotics enforcement and street terminology

of CDS, the trial court did limit his expert designation to specific, narrow fields consistent

with his experience as a patrol officer. The decision to allow Deputy Nolan to testify as an

expert thus was not “well removed from any center mark imagined by the reviewing court

and beyond the fringe of what that court deems minimally acceptable.” Matthews, 479 Md.

at 305 (internal quotation marks omitted). Accordingly, the trial court did not abuse its

discretion in accepting Deputy Nolan as an expert witness.

JUDGMENTS OF THE CIRCUIT COURT
FOR KENT COUNTY AFFIRMED. COSTS
TO BE PAID BY APPELLANT.

36
Circuit Court for Kent County
Case No.: C-14-CR-21-000024

REPORTED

IN THE APPELLATE COURT

OF MARYLAND

No. 28

September Term, 2022

______________________________________

CAMERON DARNELL LEWIS

v.

STATE OF MARYLAND
______________________________________

Arthur,
Friedman,
Woodward, Patrick, L.,
(Senior Judge, Specially Assigned),

JJ.
______________________________________

Concurring Opinion by Friedman, J.
______________________________________

Filed: June 27, 2024
I concur in the majority’s opinion and join its analysis with regards to Sections I-III

of its opinion. I write separately only to identify my concerns with respect to Deputy

Nolan’s expert testimony as discussed in Section IV of the majority’s opinion. As I

explained in my concurrence in Ingersoll v. State, I am very skeptical of the State’s use of

law enforcement officers as experts in the sociology of the criminals that they try to arrest.

Ingersoll v. State, ---- Md. App. ---- (filed May 31, 2024) (Friedman, J. concurring). Wile

E. Coyote is simply not an expert in the sociology of roadrunners.

Despite this, I do not think that the trial court erred in admitting Deputy Nolan “as

an expert in slang or street terminology and/or street value.” Slip Op. at 32 (quoting

Transcript). I think that Deputy Nolan had the “skill, experience, training, [and] education”

to testify on these subjects. See generally, Ragland v. State, 385 Md. 706 (2005). Some of

the questions asked, and Deputy Nolan’s responses, however, suggest that a tighter judicial

leash is necessary to ensure that expert testimony by law enforcement officers is

appropriate and appropriately confined. See Ingersoll, Slip Op. at 47 n.8 (Friedman,

concurring) (describing that law enforcement officer expert testimony regarding gang

vernacular “often matches—quite precisely—the meaning needed to convict.”). Two

examples from this case demonstrate my point.

In the first example, State’s Exhibit 5 was shown to Deputy Nolan. It is a picture of

a text message in which someone asks Lewis: “How much did you say for 50?” And Lewis

responds “325.” Deputy Nolan gave his expert testimony that “in this case, 50 is an amount

or quantity of some kind of drug and 325 would be a response, which would be a dollar

amount.” Without Deputy Nolan assuming that Lewis is a drug dealer, nothing about this
text exchange identifies it as a drug transaction. A purchaser asks to be quoted a price for

50 units and the seller says $325 dollars (or $6.50 per unit). It could be tomatoes or turnips.

Or it could be heroin. But Deputy Nolan—expert or not—has no way to know which it is.

The second example is even worse:

State’s Attorney: Deputy, do you see any slang or coded language in this
exchange?
Deputy Nolan: I don’t see any slang. I just see who – the person who
sent is saying, “Hey, are you good?”
State’s Attorney: And have you seen that phrase before –
Deputy Nolan: Yes.
State’s Attorney: -- in the context of drug transactions?
Deputy Nolan: Yes. It’s just – it looks like someone who’s selling
drugs checking on somebody that they sell it to to see
if they need more.
(Emphasis added). I don’t think that is expert testimony at all. The text could have meant

precisely what it said; one person asking if another is okay. I probably have a text just like

it on my phone. Deputy Nolan’s testimony proceeds from the assumption that he and the

State were trying to prove—that Lewis is a drug dealer.

These questions and Deputy Nolan’s answers to them were not objected to and are

not preserved for appellate review. MD. R. 8-131(a); Nalls v. State, 437 Md. 674, 691

(2014). Nonetheless, it suggests that careful control must be exercised to ensure that when

accepted, expert testimony is carefully confined to topics about which the experts have

expertise.

I concur.

2