# White v. State

> Court of Appeals of Maryland · September 13, 1984 · 300 Md. 719

URL: https://www.frixlaw.com/law-library/cases/9517818

## Case

- **Full name:** Derrick Quinton WHITE v. STATE of Maryland
- **Court:** Court of Appeals of Maryland
- **Decided:** September 13, 1984
- **Citations:** 300 Md. 719; 481 A.2d 201; 1984 Md. LEXIS 342
- **Precedential status:** Published
- **Opinion:** Dissent by Cole
- **Judges:** Rodowsky
- **Cited by:** 50 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9517818

## How later opinions describe it (automated extraction)

- stating that "the claimed bias of [a prospective juror unsuccessfully challenged for cause] did not influence the verdict because [the prospective juror] did not serve on the jury"

## Opinion text

*749 COLE, Judge,
dissenting.
Today, the majority sends a loud and poignant signal of a thousand decibels to the criminal defense bar: that challenges to jurors for cause made during voir dire examination go for naught and are not preserved unless particularized and restated prior to the jury being sworn. Indeed, even if the court on its own recognizes that objections for cause have been made and ruled upon, such objections are nevertheless waived and of no effect, if counsel, with no peremptory challenges remaining, indicates that he will proceed to trial with the jury then in the box. What I find more alarming, however, is that the majority in this case holds that the defendant waived his voir dire objections by accepting the jury, when the record clearly reveals that he never indicated that the jury that was sworn was acceptable to him. I, therefore, respectfully dissent.
It is unnecessary to relate the facts which gave rise to the charges against the defendant in this case, because the point I address could arise in any case, irrespective of the alleged misconduct, where the defendant seeks to select a fair and impartial jury to determine his fate. I shall, however, relate certain principles to help clarify my position.
A challenge for cause in a voir dire proceeding is the first step in securing an impartial jury. The granting of such a challenge represents a finding that a particular juror is biased or otherwise unable to fulfill his function as an impartial trier of fact. As this Court recognized over a century ago in Waters v. State, 51 Md. 430, 436 (1879):
It is a fundamental principle underlying the trial by jury, that each juror shall so far as it is possible be entirely impartial and unbiased, in order that he may hear the evidence, and decide the matter in controversy uninfluenced by any extraneous considerations whatever.
Discovering bias or partiality in a particular juror is a difficult, often subjective task. Accordingly, this Court has consigned the conduct of voir dire largely to the discretion *750 of the trial court. Connor v. State, 225 Md. 543 , 171 A.2d 699 (1961); Brown v. State, 220 Md. 29 , 150 A.2d 895 (1959). 1 Nevertheless, several areas of that discretion have been supplanted by principles of law established by this Court. Although the trial judge is the principal interrogator during voir dire, the parties have a right to have proper questions propounded to the jury venire, and a failure by the trial court either to propound such questions or to allow counsel to propound such questions is an abuse of discretion. Casey v. Roman Catholic Archbishop, 217 Md. 595 , 143 A.2d 627 (1958). The questions cannot be in a form so general that they do not indicate to the panel the nature of the bias being probed. Id. Moreover, the trial judge must tailor the questioning to the circumstances of each case to ensure that any biases peculiar to that case are exposed. Bryant v. State, 207 Md. 565 , 115 A.2d 502 (1955).
For example, if the circumstances surrounding the case give rise to a potential racial bias and the defendant seeks to question the veniremen along those lines, the failure of the trial court to elicit such information is an abuse of discretion. Brown v. State, 220 Md. 29 , 150 A.2d 895 (1959). This Court also has stated that it is error to fail to exclude a prospective juror who had incurred a loss because of allegedly illegal business practices by the defendant, and to fail to ask questions designed to reveal whether a juror has a pecuniary interest in the outcome of the litigation. Lockhart v. State, 145 Md. 602 , 125 A. 829 (1924); Alexander v. Grier & Sons Co., 181 Md. 415 , 30 A.2d 757 (1943).
More recently, and more particularly for the purposes of this case, in Langley v. State, 281 Md. 337 , 378 A.2d 1338 *751 (1977), this Court crafted another principle to guide the trial court’s discretion in conducting voir dire. The defendant in Langley was on trial for the robbery of a taxicab driver; the State’s principal evidence was the testimony of the victim and the arresting officer. The trial judge refused to ask prospective jurors whether any of them would give “more credit” to the testimony of a police officer than they would give to other witnesses, simply because of his status as a police officer. This Court reversed, holding that “where a principal part of the State’s evidence is testimony of a police officer diametrically opposed to that of the defendant, it is prejudicial error to fail to propound a question such as that requested in this case.” Id. at 349 , 378 A.2d at 1344 . The Court’s rationale was straightforward:
A juror who states on voir dire that he would give more credit to the testimony of police officers than to other persons has prejudged an issue of credibility in the case. Regardless of his efforts to be impartial, a part of his method for resolving controverted issues will be to give greater weight to the version of the prosecution, largely because of the official status of the witness. The argument by the State that police officers are entitled to greater credibility because they have less interest in the outcome of the case is not sufficient to overcome such an objection.
Id. at 348 , 378 A.2d at 1344 .
This is not a case in which the trial court failed to propound counsel’s requested question about juror bias toward police testimony—Cardarelli generated the issue himself by volunteering that he had such a bias. Because police testimony was a part of the State’s proof, Cardarelli’s statement was relevant to his fitness to serve on the jury. Once this bias had surfaced, it was incumbent upon the trial judge to explore the nature of the bias, and, if it subsisted, to dismiss the juror for cause. As we concluded in Langley , a juror with this type of prejudice “has prejudged an *752 issue of credibility in the case.” Id. at 348 , 378 A.2d at 1344 .
The State argued in its brief that Cardarelli’s bias was cured by his answers to the subsequent questions by the trial judge and the State’s Attorney. My reading of the record, however, indicates that this effort at rehabilitation did not purge Cardarelli of his avowed inclination to give more weight to police testimony. The majority does not pursue the State’s argument but assumes, arguendo, that even if Cardarelli should have been struck for cause, its conclusion would be unchanged because defense counsel waived this challenge.
Nor does the majority seriously contend that there was no prejudice to the defendant because he was forced to use one of his twenty peremptory strikes to keep Cardarelli from serving on the jury—as well it should not. The law is clear that the right to exercise peremptory challenges is very different from, and a complement to, the right to challenge a venireman for cause. If a defendant must exercise a peremptory challenge to strike a venireman when a challenge for cause should have already removed that person from the jury array, and the defendant, as in this case, subsequently exhausts his peremptory challenges, the defendant has been deprived of the use of one discretionary challenge. Because this deprivation can be traced directly to the failure to strike the venireman for cause, the error is prejudicial and reversible, unless the trial court extended and the defendant accepted the means to cure the error in the court’s prior ruling. See, e.g., United States v. Nell, 526 F.2d 1223 (5th Cir.1976); People v. Culhane, 33 N.Y.2d 90 , 305 N.E.2d 469 , 350 N.Y.S.2d 381 (1973).
This conclusion is in accord with this Court’s decision in Lockhart v. State, 145 Md. 602 , 125 A. 829 (1924). There the Court found that the trial court erred in refusing to strike a juror for cause. The Court held, however, that the error was not reversible because the trial judge had allotted *753 to the defendant more peremptory strikes than he was entitled to under the existing law. Thus, there had been “no impairment of the defendant’s right to be tried by a properly qualified jury.” The Court, nonetheless, was unequivocal on the basic principle:
If the statutory limitation as to the number of peremptory challenges had been duly applied in the selection of the jury, a ruling which rejected a valid challenge for cause, and thus required the employment of a peremptory challenge to dismiss the objectionable talesman, would be reversible error because of its practical reduction to that extent of the number of such challenges which the defendants were legally entitled to use in the exercise of their own discretion. Id. at 619 , 125 A. at 834 .
The Lockhart Court buttressed this point by citing Stroud v. United States, 251 U.S. 15 , 40 S.Ct. 50 , 64 L.Ed. 103 (1919) , reh. denied, 251 U.S. 380 , 40 S.Ct. 176 , 64 L.Ed. 317 (1920) , where the defendant was allowed and used twenty-one peremptory challenges, when he was entitled to only twenty, and one of those challenges was used against a juror as to whom a challenge for cause was improperly overruled. The Supreme Court held the defendant’s rights had not been abridged.
In this case, the trial court offered the defendant no means to restore the peremptory challenge lost when he was forced to strike Cardarelli, who was incompetent to sit as a juror. Thus, the prejudice to the defendant remained unabated. Despite this circumstance, the majority maintains that it avails the defendant nothing because he waived the objection by stating that the jury was acceptable. The majority distorts the facts.
Although defense counsel did state “Jury Panel acceptable as constituted”, he was not referring to the jury that decided the defendant’s case. When defense counsel made this remark there were twelve prospective jurors in the box and two alternates, all of whom defense counsel approved. *754 But the State then challenged jurors No. 6 2 and No. 3 and two other jurors . took their- places. The State further changed the prospective jury by challenging alternate No. 2. Obviously, at this point in the proceedings the jury which had been acceptable to the defense was no longer the jury in the box. The State, at this point, indicated that this jury was acceptable, but defense counsel was never asked if this jury was acceptable and never indicated his approval. Therefore, even if “acceptable” and “satisfied” are magic words creating waiver, they were never spoken by defense counsel pertaining to this jury.
After the Assistant State’s Attorney accepted the jury, he requested to approach the bench, whereupon the trial judge proceeded to resolve certain pending matters before beginning the actual trial, as evidenced by the following colloquy:
MR. LEVITZ: ....
Members of the jury panel presently constituted is acceptable to the State.
THE COURT: Thank you, Mr. Levitz. Mr. Kaplan.
* * * sis * *
MR. LEVITZ: May we approach the bench on another matter?
(Conference at Bench with the Defendant present)
THE COURT: Mr. Kaplan, you advised the Court at a time before the jury was sworn you would like to withdraw your plea of not guilty by reason of insanity.
MR. KAPLAN: That’s right.
THE COURT: I think I ruled on it, but if not—
MR. KAPLAN: Yes, you did.
THE COURT: I now rule that the death penalty statute is constitutional in the State of Maryland. You have *755 made that point for the record. You have your ruling on it.
MR. KAPLAN: I have informed you of the reason I filed the motion, Your Honor.
THE COURT: Sometime ago, for the record, Mr. White filed a plea of not guilty by reason of insanity. Do you understand?
DERRICK QUINTON WHITE: Yes, sir.
THE COURT: He now says that after discussions with you he wishes to withdraw that plea so that he doesn’t now claim that you are legally insane at the time of the commission of this crime. Do you understand that?
MR. WHITE: Yes, sir.
THE COURT: All right.
MR. KAPLAN: Just for the record, I think I should state in view of the opinion of the Perkins staff we have no choice but to withdraw our plea, therefore, we are withdrawing our plea.
MR. LEYITZ: Is the Court going to appoint a foreman of the jury as the rules apply?
THE COURT: I am a little concerned about that, yes. I’d like to have somebody with a little bit more education. I propose to appoint Mrs. Herman, who is the registered nurse.
MR. KAPLAN: All right.
MR. LEVITZ: I don’t have any objection.
THE COURT: Let me look at the panel, again. This is the kind of thing that gets judges in a little bit of trouble, but it’s up to me to designate a foreman. I am going to appoint Mr. Cohen as foreman. I appoint Mr. Cohen solely because in my judgment based on his occupational experience he would be more adverse in handling this type of critical situation. That is discretionary on my part, and it’s not meant to do anything that expresses my best judgment, so if you will trade seats with number one.
*756 Mr. Kaplan, do you have any objection you wish to register, you have made an objection when the Court has excused or failed to excuse a juror for cause. That’s already on the record. Do you have any objection to the proceeding by which this jury was empaneled. I tried to honor everybody’s wishes.
MR. KAPLAN: No, I have no objection to any of that. My only objection would be that I felt Harris should have been called, if you insist she be struck for cause.
THE COURT: The record clearly indicates that Vanessea Harris was challenged for cause. It was done over your objection.
MR. KAPLAN: Yes, Your Honor.
THE COURT: All right. Swear the jury.
(Whereupon the jury was duly sworn).
The majority in summarily disposing of this issue says:
In the case at bar the defense expressly accepted the panel when it included ten of the twelve jurors who actually served. After White’s peremptories were1 exhausted, the membership of the panel changed by two. After those two persons were seated and before the jury was sworn, the court invited objections to the proceeding by which the jury was impaneled. Defense counsel told the court he had none. He further told the court that his “only objection” related to the exclusion of a prospective juror for cause, even though the court had pointed out that objections to excusing or failing to excuse a juror were already on the record, and, in effect, need not be repeated. Counsel’s voluntary limitation on objections made to jury selection, coupled with his having shortly before pronounced as acceptable the jury as then constituted, demonstrate the defense’s continued satisfaction with the panel and acceptance of the jury that served. Therefore, any error in denial of the challenge for cause was waived. The substance of the statements and their effect in this case are the same as in Calhoun v. State, supra, (emphasis in original).
*757 The majority readily concedes that the jury defense counsel found acceptable was different from the jury finally selected. Then, the majority says that defense counsel, in reply to the court’s inquiry as to whether he had any objections to the proceeding by which the jury was impaneled, told the court “he had none.” Of course, this is not what counsel said. Defense counsel said “No, I have no objection to any of that”—“that” referring to the procedures used during the voir dire examination. Defense counsel then said: “My only objection would be that I felt Harris should have been called, if you insist she be struck for cause.” The majority states this was a voluntary limitation on counsel’s previous objections to the jury selection. This conclusion is a convenient interpretation of the record bordering on absurdity.
The majority agrees that the trial court “had pointed out that objections to excusing or failing to excuse a juror were already on the record, and, in effect, need not be repeated.” The majority fails, however, to credit defense counsel with fully understanding what the court meant and responding accordingly. Defense counsel had ample reason for raising the Harris matter again. During in-chambers voir dire, the trial judge struck Harris for cause over defense counsel’s objection. Nevertheless, Harris appeared in court as a part of the qualified pool from which the ultimate jury was to be selected. Defense counsel again inquired about her eligibility. The trial judge again excused Harris from the array. Thus, defense counsel had justifiable reason to raise the issue again to ensure that the record was clear. This was no “voluntary limitation” on any other objection defense counsel had made.
Furthermore, it is clear to me that in light of the majority’s concession, not to mention plain common sense, the trial court’s remarks were intended to ask the question: “I have noted your other objections which are on the record, is there any additional objection you have to the manner in which the jury was impaneled?” Defense counsel’s response was to emphasize the fact that the trial court had *758 disqualified Harris on two occasions even though he felt her qualified. Defense counsel’s remarks were responsive to the court’s inquiry; they did not constitute an abandonment of what the trial judge indicated was preserved on the record.
In my view, the majority’s holding makes a mockery or a game of the jury selection procedure. In order for an objection to a ruling on a challenge for cause to be preserved, counsel will have to repeat his objections at the end of the process or move that the jury be quashed or discharged before being sworn. This is contrary to what I believe the bar of Maryland understands and what our case law requires. 3 This is not a case like Glover, Robinson & Gilmore v. State, 273 Md. 448 , 330 A.2d 201 (1975), where defense counsel, after objecting to the trial court’s failure to follow the statutory procedure for selecting talesman, expressly abandoned his objection by having his clients state unequivocally on the record their satisfaction with the jury. Nor is this case like Neusbaum v. State, 156 Md. 149 , 143 A. 872 (1928), where the trial court, after being informed that a prejudicial remark had been made in front of the entire jury array, offered counsel the opportunity to start over with an entirely new panel. In each of these cases both counsel and the court understood that the objection was being abandoned.
Here, however, the transcript demonstrates that neither the court nor counsel had any idea that counsel’s remarks at the bench would vitiate all objections made in the extensive in-chambers voir dire. It is more reasonable to conclude that counsel was following Tisdale v. State, 30 Md. App. 334 , 353 A.2d 653 (1976), which squarely held that “counsel’s response—that the jury ultimately selected was *759 ‘acceptable’—was merely obedient to the court’s rulings and obviously not a withdrawal of the request, timely made, that the jurors be excused for cause.” Id. at 340 , 353 A.2d at 657 .
The majority cites Calhoun v. State, 297 Md. 563 , 468 A.2d 45 (1983), as being dispositive. Calhoun , however, is inapposite because the magic words “I accept” or “I am satisfied” were never uttered. In any event, to the extent that Calhoun’s “short answer” may be considered as controlling, I depart from its holding. Not only does the short answer in Calhoun fail to justify its result with any reasoned analysis, its conclusion simply does not follow from the holdings in cases such as Glover and Neusbaum , where the record plainly indicated an unequivocal abandonment of a previous objection. I believe that justice requires this case to be remanded for a new trial. I, therefore, respectfully dissent.
I am authorized to state that Judge DAVIDSON concurs in the views here expressed.
. Maryland Rule 752 states:
Rule 752. Voir Dire.
The court may permit the parties to conduct an examination of prospective jurors or may itself conduct the examination. If the court conducts the examination, it shall permit the parties to supplement the examination by any further inquiry it deems proper or shall itself submit to the prospective jurors the additional questions proposed by the parties it deems proper.
. After the State challenged Juror No. 6, defense counsel challenged the next talesman, Lester Stufft, with his twentieth peremptory. This plainly indicates that the jury became unacceptable to defense counsel when Juror No. 6 was struck. And, because he exhausted his peremptory challenges before the jury selection process was completed, his ability to remedy any defects was handicapped.
. Under the common practice in many courts in this State, the judge or the clerk at the end of voir dire routinely asks counsel whether the jury is acceptable. Now, however, the majority holds that an affirmative answer to that pro forma question constitutes an abandonment of any prior challenges for cause unless those challenges are reaffirmed on the record.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9517818. Public record. Not legal advice.