State v. Stringfellow

ADKINS, J.,

concurring, in which BATTAGLIA, J., joins.

I join the Majority opinion except with respect to its holding that Mr. Stringfellow waived his objection to the voir dire question. I write on this topic because our jurisprudence regarding waiver has wide-ranging consequences, and we must be cautious in its application.

Our precedents do not support finding that Stringfellow, after clearly stating his objection to the “CSI” question and obtaining the court’s ruling, proceeded to waive that objection simply by answering affirmatively when the court asked, at the conclusion of jury selection, whether the defense was satisfied with the jury. I see the Majority’s decision as extending Neusbaum beyond its intended scope, in a manner that fails to serve any valid policy goal. The question and answer at issue here were just a final opportunity, routinely provided by circuit courts, for the parties to raise new objections to the jury and obtain the court’s ruling. This procedure is not intended to lengthen the trial by having counsel repeat objections already stated or trap the unwary litigant who *478 believes his objection has received its Ml and final consideration by the judge.

As the Majority acknowledges, only objections “directed to the composition of the jury” are waived by later accepting the jury as empaneled. Maj. Op. at 465, 469-70, 42 A.3d at 29, 32. This is because, as we explained in Gilchrist v. State,

When a party complains about the exclusion of someone from or the inclusion of someone in a particular jury, and thereafter states without qualification that the same jury as ultimately chosen is satisfactory or acceptable, the party is clearly waiving or abandoning the earlier complaint about that jury. The party’s final position is directly inconsistent with his or her earlier complaint.

Nevertheless, where the objection was not directly aimed at the composition of the jury ultimately selected, we have taken the position that the objecting party’s approval of the jury as ultimately selected did not explicitly or implicitly waive his previously asserted objection, and his objection was preserved for appellate review. (Citations and quotation marks omitted.)

Gilchrist v. State, 340 Md. 606, 618 , 667 A.2d 876, 881-82 (1995) (emphasis added).

The Majority places Stringfellow’s objection in this narrow category, opining that his objection to the trial court’s question went to the jury’s “composition.”

Like the objections in Neusbaum and Glover, String-fellow’s objection asserted that the venire members, if the relevant question was posed, would be unfit to sit as jurors in his trial; therefore, his objection went to the inclusion of prospective jurors on the jury selected ultimately.... A prejudicial voir dire question, when propounded, may inject the very prejudice that voir dire attempts to filter out. Therefore, an objection to [a] propounded, purportedly prejudicial, voir dire question relates directly to the composition of the jury. (Citations and quotation marks omitted.)

Maj. Op. at 471, 472, 42 A.3d at 33, 34.

This logic is strained to the point of being false, because it misconstrues what actually occurred in the courtroom. *479 Stringfellow objected to the question posed by the trial court, saying: “I would object to it being asked in voir dire.” Maj. Op. at 466, 42 A.3d at 30. This was not an objection to any specific “venire members ... unfit to sit as jurors” for having heard the question. Rather, the objection was to anyone chosen to sit as a juror who had heard the question.

For an objection to relate to the “composition” of a collection of things, whether jurors or marbles, it must refer to which component parts are included or how they are chosen. See The American Heritage Dictionary of the English Lam guage (4th ed.2006) (defining “composition” as “[t]he combining of distinct parts or elements to form a whole ... [t]he manner in which such parts are combined or related ... [gjeneral makeup ... a mixture or compound ... [ajrrangement of artistic parts so as to form a unified whole”). On the other hand, an objection to something that taints an entire collection, without changing its component parts, has nothing to do with its “composition.” Like paint splattered on a collection of marbles, a prejudicial question heard by the entire venire simply does not affect the jury’s “composition.” In the case of a jury, “composition” refers to which jurors are included and how they are chosen, i.e., “the exclusion of someone from or the inclusion of someone in a. particular jury[.]” Gilchrist, 340 Md. at 618 , 667 A.2d at 881 .

Gilchri,st’s rule limiting waiver to objections “directly aimed at the composition of the jury” makes sense, because only such objections can fairly be said to be inconsistent with accepting the jury. Gilchrist v. State, 340 Md. at 618 , 667 A.2d at 881-82 . When the objection does not relate to the composition of the jury, accepting the jury is “not inconsistent” with the prior objection, and does not constitute waiver. Id.; see also Couser v. State, 282 Md. 125, 129-30 , 383 A.2d 389, 391-92 (1978) (holding that defense counsel’s objection to the court’s refusal to allow her to inspect the prosecutor’s notes on prospective jury members was not directly aimed at the jury’s composition, and therefore was not waived by accepting the jury); McFadden v. State, 197 Md.App. 238, 252 , 13 A.3d 68, 76 (2011) (“The State’s reliance on Gilchrist ... is misplaced, as *480 appellants’ claim of error does not lie upon the inclusion or exclusion of a prospective juror.”).

As in Gilchrist, Couser, and McFadden , Stringfellow’s objection, which was to the trial court’s proposed course of action, was not inconsistent with his later acceptance of the jury. Simply reviewing the cases cited by the Majority in which waiver was found reveals that Stringfellow’s situation is meaningfully different. The cases in which waiver was found involved:

(1) an objection to a judge’s refusal to strike prospective jurors for cause, Mills, 310 Md. at 39-40, 527 A.2d at 6; (2) an objection to the exclusion of a juror because of his beliefs about capital punishment, Foster v. State, 304 Md. 439, 450-51 , 499 A.2d 1236, 1241-42 (1985); (3) a defendant who failed to object to unacceptable venire members after using all of his peremptory strikes, White v. State, 300 Md. 719, 729-30 , 481 A.2d 201, 205-06 (1984); (4) an objection to a venire not selected randomly from registered-voter lists, Glover v. State, 273 Md. 448, 451-52 , 330 A.2d 201, 203-04 (1975); and, (5) an objection to prejudicial remarks made by the prosecutor in earshot of the venire, Neusbaum v. State, 156 Md. 149, 162-63 , 143 A. 872, 878 (1928).

Maj. Op. at 470, 42 A.3d at 32.

The first three cases clearly involved objections related to the composition of the jury, i.e., which jurors should be included and how they should be chosen. This is entirely different from Stringfellow’s objection to the trial court’s announced intention to ask the venire about the “CSI effect.” In the fourth case, the defendant objected to the inclusion of certain persons who were gathered in the streets by the sheriff to make up for the insufficient number of jurors in the venire. Again, this objection clearly went to the composition of the jury, unlike Stringfellow’s objection to the trial court’s proposed question. The last case, Neusbaum , found waiver for a different reason. The defendant did not waive his objection by accepting the jury, but rather waived by declining the trial court’s offer to have a new panel of jurors:

*481 [W]hen he had an opportunity of having an entirely new panel, but refused it and elected to take the panel the members of which had heard the remark, he cannot now be heard to say that they were prejudiced or unfair, and, while there was error in the ruling involved in the exception, defendant by accepting the panel when he could have had a new one admitted that it occasioned no injury, and it is not reversible.

Neusbaum v. State, 156 Md. 149, 163 , 143 A. 872, 878 (1928), superseded, by statute on other grounds, Maryland Code (1957, 1987 RepLVol., 1991 Cum.Supp.), Art. 27, § 388, as recognized in Forbes v. State, 324 Md. 335, 339 , 597 A.2d 427, 429 (1991).

Mr. Neusbaum’s waiver took the form of refusing the offer of a new panel, not simply stating that he accepted the panel. Id.; see also White v. State, 300 Md. 719, 758 , 481 A.2d 201, 220 (1984) (Cole, J., dissenting) (“Nor is this case like Neusbaum ... where the trial court ... offered counsel the opportunity to start over with an entirely new panel”). Unlike Neusbaum, Stringfellow was not offered a new venire untainted by the objectionable “CSI” question.

Limiting the Neusbaum rationale to cases in which a new panel is offered makes sense because, unlike the other cases cited by the Majority, Neusbaum’s objection was not to the jury’s composition. Therefore, simply accepting the jury, as we explained in Gilchrist , would not have been inconsistent. Refusing an entirely new jury, however, was inconsistent with Neusbaum’s objection, because empaneling a new jury would have removed any prejudice caused by hearing the prosecutor’s improper remarks. See Neusbaum, 156 Md. at 163 , 143 A. at 878 (“[Dlefendant by accepting the panel when he could have had a new one admitted that [the remarks] occasioned no injury[.]”). Thus, without the offer of a new panel, Neusbaum’s acceptance could not fairly be said to be inconsistent with his prior objection.

In all of the cases where a prior objection was waived by accepting the jury, the acceptance was directly inconsistent with the prior objection. In some cases, this was because the *482 objection was to the composition of the jury, and accepting the jury as composed was inconsistent. In other cases, like Neusbaum , it was because the objection related to a taint on the whole jury, and refusing the offer of a new panel was inconsistent. None of these cases presented the issue here, where Stringfellow’s objection was to a “CSI” question that, he claimed, tainted the entire venire, and no new jury panel was offered. I would not find waiver because the trial court did not offer to empanel a new jury.

Finding the issue preserved, I conclude that it was error for the Circuit Court to ask the voir dire question. See Stabb v. State, 423 Md. 454, 456-57 , 31 A.3d 922, 923 (2011) (holding that a “CSI” instruction was error); Atkins v. State, 421 Md. 434, 437-38 , 26 A.3d 979, 980 (2011) (same). Although these cases involved jury instructions, rather than voir dire questions, we should not treat as legitimate a message sent to the jury during voir dire, when we have held that same message is prejudicial when given during jury instructions. Ultimately, however, I agree with the Majority that the error was harmless, for the reasons stated in its opinion.

Judge BATTAGLIA has authorized me to state that she joins in this concurring opinion.