v.
State
Tshibangu Kazadi v. State of Maryland, No. 11, September Term, 2019 VOIR DIRE – FUNDAMENTAL RIGHTS – PRESUMPTION OF INNOCENCE – BURDEN OF PROOF – RIGHT NOT TO TESTIFY – STARE DECISIS – SIGNIFICANT CHANGES IN LAW AND FACTS – DISCOVERY – CROSS- EXAMINATION – IMMIGRATION STATUS – In 1964, fifty-five years ago, in Twining v. State, 234 Md. 97, 100, 198 A.2d 291, 293 (1964), Court of Appeals held that voir dire questions concerning jury instructions were not appropriate. Thus, voir dire questions concerning jurors’ ability and willingness to follow jury instructions on fundamental principles of presumption of innocence, burden of proof, and defendant’s right to remain silent were not permitted. Given opportunity to review this issue and upon thorough consideration of recent developments—most importantly, Court’s subsequent holdings in Stevenson v. State, 289 Md. 167, 179-80, 423 A.2d 558, 565 (1980) and Montgomery v. State, 292 Md. 84, 91, 437 A.2d 654, 658 (1981), that instructions as to law are binding and not advisory only—Court determined that holding in Twining is based on outdated reasoning and has been superseded by significant changes in law. As such, to extent that Court held in Twining that it is inappropriate to ask on voir dire questions concerning presumption of innocence, burden of proof, and defendant’s right to remain silent, Court overruled that holding and concluded that, on request, during voir dire, trial court must ask whether any prospective jurors are unwilling or unable to comply with jury instructions on fundamental principles of presumption of innocence, burden of proof, and defendant’s right not to testify. Court also held that, absent additional circumstances—such as allegations of quid pro quo or leniency in immigration case—State’s witness’s status as undocumented immigrant, or person subject to deportation order, does not show character of witness for untruthfulness or demonstrate motive to testify falsely. Without more, State’s witness’s status as undocumented immigrant, or person subject to deportation order, is not required to be disclosed by prosecutor during discovery and is not proper subject of cross-examination. Circuit Court for Baltimore City Case No. 116042016 Argued: October 7, 2019 IN THE COURT OF APPEALS
OF MARYLAND No. 11
September Term, 2019 ______________________________________
TSHIBANGU KAZADI v. STATE OF MARYLAND ______________________________________
Barbera, C.J. McDonald Watts Hotten Getty Booth Wilner, Alan M. (Senior Judge, Specially Assigned), JJ. ______________________________________
Opinion by Watts, J. McDonald, Hotten, and Getty, JJ., dissent in part. ______________________________________
Filed: January 24, 2020
Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic.
Suzanne Johnson 2020-06-18 11:27-04:00
Suzanne C. Johnson, Clerk This case presents another in a series of questions about the voir dire process in Maryland. In recent years, this Court has addressed matters concerning the proper form of voir dire questions and whether certain questions, when requested, are mandatory. See Pearson v. State, 437 Md. 350, 354, 86 A.3d 1232, 1234 (2014); Collins v. State, 463 Md. 372, 379, 205 A.3d 1012, 1015-16 (2019). In this case, we must decide whether, upon request, a trial court must ask voir dire questions concerning a prospective juror’s ability to follow jury instructions on the long-standing fundamental principles of the presumption of innocence, the burden of proof, and a defendant’s right to remain silent. Fifty-five years ago, in Twining v. State, 234 Md. 97, 100, 198 A.2d 291, 293 (1964), this Court held that a trial court need not ask during voir dire whether any prospective jurors would be unwilling to follow jury instructions on the presumption of innocence and the State’s burden of proof. In the decades between then and now, this Court has never before expressly addressed whether Twining remains good law. In this case, for the first time, we are explicitly asked to reexamine Twining. And, as another matter, we must also determine whether, during discovery, a prosecutor must disclose immigration-related information concerning a State’s witness who is an undocumented immigrant, and whether a defendant may cross-examine such a witness concerning his or her immigration status. In the Circuit Court for Baltimore City, the State, Respondent, charged Tshibangu Kazadi, Petitioner, with first-degree murder, use of a firearm in the commission of a crime of violence or felony, and wearing, carrying, or transporting a handgun. Kazadi requested that the circuit court ask during voir dire whether any prospective jurors were unwilling or unable to follow jury instructions on the presumption of innocence, the burden of proof, and the defendant’s right not to testify. The circuit court declined to do so. Before trial, Kazadi filed a motion to compel the State to disclose the Alien Registration Number,1 immigration case number, and immigration-related paperwork of one of the State’s witnesses, S.L., who, according to Kazadi, was an undocumented immigrant subject to a deportation order and who, along with her son, M.L.,2 were allegedly attempting to avoid complying with the deportation order. The State filed an opposition to the motion to compel and a motion in limine to preclude Kazadi from cross- examination about S.L.’s immigration status. The circuit court denied the motion to compel and granted the State’s motion in limine. After being convicted, Kazadi appealed, and the Court of Special Appeals affirmed. Kazadi filed a petition for a writ of certiorari, which this Court granted. Upon careful consideration of developments that have occurred in the fifty-five years since this Court decided Twining, 234 Md. 97, 198 A.2d 291—including this Court’s subsequent holdings that, other than with respect to the crime charged, jury instructions are binding, see Stevenson v. State, 289 Md. 167, 179-80, 423 A.2d 558, 565 (1980), and Montgomery v. State, 292 Md. 84, 91, 437 A.2d 654, 658 (1981)—we determine that this Court’s holding as to voir dire questions in Twining is based on outdated reasoning and has been superseded by significant changes in the law. To the extent that this Court held in Twining that it is inappropriate to ask on voir dire questions concerning the presumption of innocence, the burden of proof, and a defendant’s right to remain silent, we overrule the holding in Twining, and conclude that, on request, during voir dire, a trial court must ask whether any prospective jurors are unwilling or unable to comply with the jury instructions on the fundamental principles of presumption of innocence, the State’s burden of proof, and the defendant’s right not to testify.
[*555]We also hold that, absent additional circumstances—such as evidence of a quid pro quo arrangement or allegations of leniency in an immigration case—a State’s witness’s status as an undocumented immigrant, or the existence of a deportation order applicable to the witness, do not show the character of the witness for untruthfulness or demonstrate a motive to testify falsely. Without more, a State’s witness’s status as an undocumented immigrant, or any deportation order to which the witness is subject, are not required to be disclosed by a prosecutor during discovery, and are not proper subjects of cross- examination.
BACKGROUND
Voir Dire
On January 17, 2017, jury selection occurred. On that date, Kazadi’s counsel provided the circuit court with a document that was entitled “Defendant’s Proposed Voir Dire[,]” and that included the following questions: The Court will instruct you that the State has the burden of proving the Defendant guilty of the offenses charged beyond a reasonable doubt. Are there any of you who would be unable to follow and apply the Court’s instructions on reasonable doubt in this case?
[*556]Is there any member of the [] jury panel who would hesitate to render a verdict of not guilty if you had hunch that the Defendant had committed the alleged crime, but were not convinced of that fact beyond reasonable doubt?
The Court will instruct you that the Defendant is presumed of be innocent of the offenses charged throughout the trial unless and until the Defendant is proven guilty beyond a reasonable doubt. Is there any member of the jury panel who would be unable to give the Defendant the benefit of the presumption of innocence?
Under the law[,] the Defendant has an absolute right to remain silent and to refuse to testify. No adverse inference or inference of guilt[] may be drawn from the refusal to testify. Does any prospective juror believe that the Defendant has duty or responsibility to testify[,] or that the Defendant must be guilty merely because the Defendant may refuse to testify? (Numbers omitted). Kazadi’s counsel requested that the circuit court ask the four questions during voir dire. The circuit court declined, stating: “Those are covered adequately in the instruction portion of the case and I think are covered in other questions that [I] ask.”
During voir dire, after asking questions of the jury panel, the circuit court asked counsel whether there were any objections. Kazadi’s counsel stated that he wanted the circuit court to ask the questions in his proposed voir dire that the court had declined to give. The circuit court responded: “[Y]ou’ve preserved your objection[.]”
Motion to Compel, Motion in Limine, and Motion to Suppress
On December 8, 2016, Kazadi filed a “Motion to Compel Discovery.” (Some capitalization omitted). In the motion to compel, Kazadi advised that one of the State’s witnesses, S.L., had provided a statement in which she said “that she was hesitant to come forward with information because she was worried about an outstanding deportation order[.]” Kazadi’s counsel requested from the prosecutor, but was not provided, S.L.’s Alien Registration Number, “her immigration case number, and any paperwork [that] she ha[d] regarding her immigration status, including a copy of the deportation order[.]” Kazadi’s counsel met with S.L. and the prosecutor, who instructed S.L. not to disclose her Alien Registration Number or answer any questions about the deportation order. Kazadi contended that the deportation order gave S.L. and her son, M.L., a motive to testify against Kazadi, in that their testimony could make them eligible for relief from deportation. Kazadi argued that S.L.’s and M.L.’s alleged noncompliance with the deportation order demonstrated a character trait of untruthfulness.
[*557]On December 22, 2016, the State filed an Opposition to Defendant’s Motion to Compel Discovery and State’s Motion In Limine. The State contended that it was not obligated to comply with the discovery requests for immigration-related information because the State had not promised S.L. that she would receive special treatment in exchange for her cooperation. The State argued that Kazadi had provided no evidence that S.L. was attempting to evade the deportation order. The State asserted that Kazadi’s “speculation should not serve as a basis for a fishing expedition into [S.L.’s] immigration status[.]”
Addressing the motion in limine, the State requested that the circuit court preclude Kazadi from cross-examining S.L. about her immigration status. The State contended that information about a witness’s immigration status is admissible only where there is a connection between the witness’s immigration status and a motive to fabricate testimony.
[*558]The State argued that S.L. had no such motive as she had no connection to the murder, apart from being a witness who decided to come forward with material information.
On January 13, 2017, the circuit court issued a “Memorandum and Discovery Order[,]” denying the motion to compel and reserving on the motion in limine for a ruling by the circuit court judge who would preside over the trial. (Some capitalization omitted). The circuit court concluded that, without a showing by Kazadi of some “special relationship” between S.L. and the State as to immigration, or a promise, inducement, or benefit that the State extended concerning immigration, Kazadi failed to show a basis to compel disclosure of the requested information. The circuit court noted that Kazadi had not identified any promise or inducement that the State extended to S.L. or M.L. in connection with S.L.’s immigration status. The circuit court explained that, seemingly, Kazadi wanted to attempt to confirm the information that S.L. had provided with some hope that it might develop into a credibility issue.
Before the start of trial, the circuit court conducted a hearing on a motion to suppress any in-court identification of Kazadi by S.L. or M.L. At the hearing, S.L. and M.L. testified through an interpreter. Neither S.L. nor M.L. testified concerning any immigration-related matters. S.L. testified that she did not expect any benefit in exchange for testifying, and that, apart from requesting and receiving moving expenses and rent for a new home, she had neither requested nor received any benefits from the Office of the State’s Attorney for Baltimore City. M.L. testified that he had not thought that he or his relatives would receive any benefit in exchange for speaking to law enforcement officers.
[*559]After S.L. and M.L. testified, the circuit court denied the motion to suppress. Before the circuit court heard argument on the motion in limine, the following exchange occurred:
THE COURT: I’ve not heard anything from [S.L. and M.L.] indicating to me that there is an immigration issue that would have been factor in them testifying. But[,] obviously[,] if you have an argument to make on that point[,] I would love to hear it.
[KAZADI’S COUNSEL]: Okay.
THE COURT: And let me tell you, I have significant concern about -- and we have no idea how this jury’s going to react -- there is some level of hostility in some circles in our society to people who are perceived as being here illegally. Whether that is valid or not valid, I don’t want to be in situation where we prejudice a jury by raising an issue [that] may not be germane to the case. Obviously[,] if it is germane to the case, if they’ve been promised to stay in the U.S. indefinitely while they were, you know, in exchange for testimony[,] that obviously is a very valid factor[,] and in which case the prejudice is something that would not be outweighed. But I’m open to hear whatever you may have to say about that.
Kazadi’s counsel stated that law enforcement officers had interviewed S.L., who said that one of the reasons why she did not come forward sooner was that she was subject to a deportation order. The circuit court asked whether there was any evidence of “quid pro quo for immigration status.” Kazadi’s counsel responded that S.L.’s social worker told her that the Baltimore Police Department would not enforce the deportation order. The prosecutor and the circuit court observed that there had not been any testimony to that effect. The following exchanges occurred:
THE COURT: [U]nless you have something more concrete about her immigration status[,] I am really concerned about putting into the record possibly that [S.L.] is an illegal immigrant -- an undocumented alien, if you will[,] or that [M.L.] is[,] given the fact that there is, as I say, among circles in our society[,] strong bias, prejudice, in fact, even among people [whom] I know socially[,] against people who are undocumented aliens. And I don’t want to -- I think [that] it’s legitimate to pursue areas of legitimate inquiry on cross[-]examination. [Kazadi] has a right to that[,] and that’s your obligation. But[,] by the same token[,] I don’t want to get into areas that I think are going to shed more heat than light. This is one. So unless you can make a proffer to me, let’s say tomorrow[,] when [S.L.] comes on to testify[ at trial,] that you’ve got something that would constitute something -- quid pro quo on the immigration status[,] I’m uncomfortable with letting that in. I truly am.
[*560]*** [KAZADI’S COUNSEL]: [T]here’s a difference between having a deportation order and being an illegal immigrant because there are many legal immigrants or legal visitors to this country who could be ordered deported. I mean, and then they become -- they kind of -- THE COURT: They become illegal if they overstay. [KAZADI’S COUNSEL]: Far -- THE COURT: Well, even the, you know, you’re, again, I mean, the -- you’ve raised another aspect of this, okay. So[,] that may be true[,] but that doesn’t help much either because[,] why do you get deported? People who know -- who follow these things will know [that] one of the reasons [why] you get deported is you’re found guilty of a crime of some type. And you know that there’s significant limitations on the ability to use history of [prior] bad acts for impeachment. And we don’t know that anything that [S.L.] did, if there was something [that] she did, and we don’t know what she may have done, we don’t know that any of that has anything to do with honesty or a likelihood to lie on the stand. And there’s no evidence of the quid pro quo. So she’s being asked to leave because, you know, she was picked up for, you know, possession of heroin, let’s say. Yeah, that’s a bad thing, but that’s not an impeachable offense, basically. So that would also concern me a little bit, that, you know, I don’t want to -- I mean, I think you have a right, obviously, to question these witnesses as to what they saw[,] and when they saw it[,] and the circumstances[,] and all that. And[,] if they have a motive to bias, I would -- sure. You know, if you were going to argue that it’s -- this is the result of neighborhood feud[,] and not a result of the witness of a crime, I mean, sure, that’s fine. But I really am uncomfortable with the notion that we’re going to put into the record the existence of deportation order[,] or the suggestion of a quid pro quo[,] without some stronger evidence that that is[,] in fact[,] the case because I think [that] there’s an impermissible level of prejudice that could result from her if that were to happen.
[*561][KAZADI’S COUNSEL]: I guess I would have two responses. One, I think [that] the act of evading a deportation order is itself evidence of deceit[,] much like -- analogous to the way that the Court of Appeals has said drug dealers necessarily are surreptitious[,] and that’s --
THE COURT: Boy, I sure don’t buy the notion that a family who comes to America to try to make something of themselves[,] and get their kids in school[,] is equivalent to a drug dealer.
[KAZADI’S COUNSEL]: No, I -- that’s not --
THE COURT: I mean, I’m not saying it’s legal, but I’m saying, boy, it -- the one is really understandable[,] and the one really is a pox on the community.
[KAZADI’S COUNSEL]: Well, I would say [that] I’m -- it’s not just that they came here illegally. It’s that they were told to leave[,] and didn’t. And I think [that] that’s what makes it different.
THE COURT: Well, it may be under, you know, I mean, again, if there’s an appeal[,] and if they’re -- I mean, it just -- I just, you know, we’re not going to do an immigration trial here in this court as part of this criminal case. And again, as I said, think that this is one of those circumstances in which the equities think really militate against allowing that particular thing to become an issue in [this] case. Now, if it turns out that you can come up with something that makes it more than a speculation that there’s a quid pro quo, and obviously that’s legitimate. But[,] I’m not hearing it. And[,] unless you come up with something [that] you can show me out of the hearing of the jury to indicate that there is more to this than just a notion, I just think [that] it would be unfairly prejudicial to [S.L.] At the conclusion of the hearing, the circuit court granted the motion in limine, and stated: “As I said, if you discover something that is relevant and that is concrete, I am open to changing my mind. Based on what I know at this moment, however[, t]hat’s my ruling.”
S.L.’s and M.L.’s Trial Testimony3 and Verdicts
On January 18, 2017, at trial, as a witness for the State, through an interpreter, S.L.
[*562]testified that, in August 2015, she and her son, M.L., lived in Baltimore City near Kazadi. On August 18, 2015, S.L. sent M.L. outside of their house to retrieve trashcans. While M.L. was outside, S.L. heard four or five gunshots. S.L. went outside and saw M.L. running toward her. M.L. said that “the guy had killed someone.” S.L. saw Kazadi hide a gun and run into his basement. S.L. looked in the alley and saw a man who had been shot. Kazadi’s mother and sister, who lived with him, came out of their house and spoke to S.L., who told them that she had seen Kazadi shoot the victim. Law enforcement officers came to S.L.’s house, but she did not speak with them because she was afraid. The prosecutor asked S.L. why she was afraid. S.L. responded: “Because they realized that we had said that [Kazadi] was the one [who] had killed [the victim].” For months, S.L. continued to live near Kazadi. On January 19, 2016, S.L. spoke to a detective, and identified Kazadi as the person who “killed the [victim]” in a photographic array.
After S.L.’s direct-examination, at a bench conference, the prosecutor stated that there had been “no additional evidence . . . with regards to the immigration issue.” Kazadi’s counsel disagreed, contending that, although S.L. had testified that she did not come forward sooner because she was afraid of Kazadi, she had previously told law enforcement officers that she did not come forward sooner because of “fear of immigration[.]” The following exchanges occurred:
THE COURT: I ruled yesterday, and I really am concerned about this[.] I don’t want to get this jury upset with [S.L.] possibly being here without documents. And I just really am concerned about that. What I will allow you to do is ask [whether] she gave a different reason. So she said she was - - what did she say? She was afraid of being deported.
[KAZADI’S COUNSEL]: Yes, because she has an outstanding --
- 10 - [THE PROSECUTOR]: She said she[] was scared. And then[,] when they sort of flushed it out[,] that’s when the additional part of the documentation issue came out. But she had initially indicated that she was scared for her safety and the safety of her children. So that is consistent. THE COURT: Mm-hmm. [THE PROSECUTOR]: I obviously didn’t go any further because of the Court’s order. THE COURT: No, I know. So[,] if you go in[,] you’re trying to prove what, that she’s lying? [KAZADI’S COUNSEL]: Right. Well, one, I don’t -- one, when she was given a chance to say why she was afraid, one, she didn’t say because she felt threatened. And, two, because she said something else. Because[,] right now[,] the jury thinks that [Kazadi]’s family was threatening her the entire time. THE COURT: I know they certainly -- well, I don’t know if they thin[k] -- [KAZADI’S COUNSEL]: Or could[.] I don’t know if they think that. Correct. THE COURT: I mean, yeah. I think[ that] she didn’t say that they were threatening her, what she said was[: “]I lived next door to the guy [whom] I was going to finger.[”] So they can assume that that probably is not a good thing to do. Not a safe thing to do. It’s a good thing to do. Well[,] I don’t know how one does that and avoid[s] bringing up the fact that she possibly is undocumented. And I really am uncomfortable having that come out. I’m really absolutely uncomfortable, particularly when there’s no indication[,] and she specifically testified[, that] she got no quid pro quo, [and] you have no concrete evidence that there was a quid pro quo. And the inconsistency[,] I don’t think[,] is material[,] qui[te] honestly. I’m not going to permit it[,] and if I’m wrong[,] I’m wrong. But -- [KAZADI’S COUNSEL]: So I can’t get into it at all? Not even like[,] she gave a different reason? THE COURT: I would allow that, but I want to keep a tight rein on this[,] as I said. And the reason is, quite honestly, there is an atmosphere of intolerance out there about people who are here in an undocumented capacity, who are
- 11 - illegal. And[,] some people[,] it doesn’t make a big difference to. I don’t honestly think it goes to credibility[,] particularly. And I don’t want to have a jury be prejudiced against [S.L.] Yeah, I’m going to allow you to ask if there’s an inconsistent reason. If you get into the question of immigration[,] then [the prosecutor] will object[,] and I will likely sustain it. [THE PROSECUTOR]: Okay. [KAZADI’S COUNSEL]: All right. THE COURT: If you feel that there’s an inconsistent reason, you can ask[: “Y]ou didn’t blame it on the family[?”] I think that’s a legitimate issue for you to explore. I don’t have a problem with that. [THE PROSECUTOR]: Your Honor, my concern is that [Kazadi’s c]ounsel will follow up with [--] is that other inconsistent reason [--] the fact that, you know, you have deportation order. You can’t unring that bell. THE COURT: Well, you’re not going to do that. [KAZADI’S COUNSEL]: I figured [that] I couldn’t do that. THE COURT: Yeah, thank -- [KAZADI’S COUNSEL]: I mean, I would like to do that, but I’m assuming that the order was that I could not do that. THE COURT: Yeah[.] During S.L.’s cross-examination, the following exchanges occurred: [KAZADI’S COUNSEL: W]hen you talked to [the police] in January, they asked you why you didn’t come forward initially. [S.L.:] Because I was scared. [KAZADI’S COUNSEL:] Okay. And I’m going to ask you this question very carefully. But[,] at the time[,] you didn’t tell the police that you were scared of [] Kazadi or his family[. Y]ou told them [that] you were scared of something else, correct? [S.L.:] Yes.
- 12 - *** [KAZADI’S COUNSEL:] The other thing that you’re scared of is not connected to [] Kazadi or his family? [S.L.:] I said -- I said both. I said why I was worried. *** [KAZADI’S COUNSEL:] You remember talking to the police and it being recorded in January, right? Now[,] I’m going to show you something that I had prepared about what you said. . . . [T]his is the part where you’re talking to the police about what you’re afraid of. . . . [Y]ou talk about the other thing, not [] Kazadi or his family, correct? [S.L.:] I repeat again, I spoke about both. I was afraid of his family and something else. [KAZADI’S COUNSEL:] Okay. I guess [--] why don’t you just read the next page. And[,] at that point[,] you still just continue to talk about something else[,] and not [] Kazadi or his family? [S.L.:] Yes, I said that. As a witness for the State, through an interpreter, M.L. testified that, on August 18, 2015, he retrieved trashcans that were behind his house. As M.L. was walking back to his house, he heard a gunshot. M.L. turned and saw Kazadi and another man in the alley. Kazadi was holding a revolver. The other man said: “[C]hill.” Kazadi shot the other man two or three times, then ran toward the back of his house. M.L. saw his mother, S.L., at the back door of their house and told her what he had seen. M.L. did not speak to law enforcement officers that night because he was “afraid” and “in shock.” Eventually, however, M.L. spoke to detectives, and identified Kazadi as the shooter in a photographic array. During M.L.’s cross-examination, Kazadi’s counsel requested a bench conference, - 13 - which the circuit court granted. At the bench conference, Kazadi’s counsel stated that he wanted to ask “immigration-related questions,” but he was not going to do so “based on the Court’s earlier order.” The circuit court responded: “[T]he questions are ruled out as far as the immigration question.” The State entered a nolle prosequi on the remaining charge of wearing, carrying, or transporting a handgun. The jury found Kazadi not guilty of first-degree murder, but guilty of second-degree murder and use of a handgun in the commission of a crime of violence. Opinion of the Court of Special Appeals Kazadi appealed. On February 4, 2019, the Court of Special Appeals affirmed Kazadi’s convictions. See Kazadi v. State, 240 Md. App. 156, 162, 201 A.3d 618, 622 (2019). The Court of Special Appeals held that the circuit court did not abuse its discretion in declining to ask voir dire questions concerning jury instructions. See id. at 164, 201 A.3d at 623. The Court of Special Appeals concluded “that Twining is still controlling” because, “[c]ontrary to [Kazadi]’s contention, the Court of Appeals has affirmed the continuing vitality of Twining[.]” Kazadi, 240 Md. App. at 168, 201 A.3d at 625. The Court of Special Appeals held that the circuit court did not err or abuse its discretion in denying the motion to compel. See id. at 183, 201 A.3d at 634. The Court of Special Appeals determined that, “[a]bsent any evidence of an immigration-related quid pro quo indicating a bias or motive to testify falsely, [the motion to compel] amounted to a fishing expedition for information that would not be admissible to impeach [S.L.]” Id. at 183, 201 A.3d at 634. The Court of Special Appeals noted that there was no link between the deportation order or S.L.’s and M.L.’s immigration status and their identification of - 14 - Kazadi as the killer. See id. at 183, 201 A.3d at 634. The Court of Special Appeals concluded that the circuit court did not abuse its discretion in precluding cross-examination of S.L. and M.L. about their immigration statuses. See id. at 188, 201 A.3d at 637. The Court of Special Appeals explained: From the initial written pleadings, to the pretrial suppression hearing, to the trial, this record is devoid of any evidence that S.L.[] or M.L. received or expected an immigration-related benefit as a result of either their [pretrial] identification[s] of [Kazadi] or their testimony against him. . . . To the contrary, the prosecutor insisted [that] she had never discussed immigration status with S.L.[] At the suppression hearing before trial, S.L.[] testified that the only benefit [that] she received was relocation expenses, which were not tied to the family’s immigration status. She maintained that she did not expect any benefit for coming forward to identify [Kazadi] or testify against him. Her trial testimony was consistent on that point. Absent any link between [S.L.’s and M.L.’s] immigration status and their credibility, the [circuit] court did not abuse its discretion in foreclosing cross-examination of S.L.[] and M.L. about immigration matters. Significantly, the [circuit] court’s ruling only disallowed cross-examination about immigration status, without preventing [Kazadi’s] counsel from asking whether S.L.[] hoped to receive any other benefit from her testimony, such as relocation expenses. Accordingly, [Kazadi]’s concern that S.L.[]’s testimony was influenced by her immigration status was simply speculative, and evidence of her immigration status – if relevant at all to her bias and partiality – would have had very little probative value. As alternative grounds for affirming the [circuit] court’s decision to restrict cross-examination, we hold that the [circuit] court did not abuse its discretion in ruling, pursuant to [Maryland] Rule 5-403, that questioning S.L.[] and M.L. about their immigration status and/or the deportation order would unfairly prejudice the jury by introducing the possibility of invidious discrimination on the basis of alienage. As the [circuit] court emphasized, such evidence had a significant potential both to prejudice jurors against the [State’s] witnesses and to confuse jurors by injecting unrelated immigration issues involving mere bystanders into this murder trial against [Kazadi]. Id. at 186-87, 201 A.3d at 636-37 (cleaned up). Petitions for a Writ of Certiorari On March 12, 2019, on his own behalf, Kazadi petitioned for a writ of certiorari. - 15 - On March 26, 2019, on Kazadi’s behalf, his appellate counsel petitioned for a writ of certiorari, raising the following three issues: 1. Is a criminal defendant entitled, upon request, to voir dire questions aimed at identifying prospective jurors who are unable or unwilling to apply the principles that the State has the burden of proving the defendant guilty beyond a reasonable doubt, that the defendant is presumed innocent[,] that the defendant has the right to remain silent and refuse to testify[,] and that no adverse inference may be drawn from the defendant’s silence?
Clearly, the Majority Opinion is comfortable that these questions are not indispensable to selecting a fair-minded impartial jury, either in the future or in the past.
To reverse a trial court decision for abuse of discretion requires, according to a description frequently quoted by Maryland courts, that “[t]he decision under consideration has to be well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable,” not whether the appellate court would have made a different decision. North v. North, 102 Md. App. [1], 14 (1994) (emphasis added). It seems very odd to say that a trial judge who conducted the jury selection process by following Maryland appellate precedent, not to mention the prevailing rule in other jurisdictions, acted in a way “well removed from any center mark” and “beyond the fringe.”
In the end, it seems that reversal of a murder conviction that would otherwise be affirmed, in which the trial judge conducted voir dire in compliance with the existing law, and in which there is no indication that the jury was other than fair and impartial, is an unwieldy and unnecessary way to modify the voir dire process in Maryland state courts. If we believe that it is a good idea to mandate new questions for voir dire, we should do so by a rule that would apply to all like cases simultaneously rather than by reversal of one murder conviction.[2]
2 When the Majority Opinion was originally issued, it applied its holding only to Mr. Kazadi’s case. It has subsequently been revised to apply to other cases pending on direct review. If one accepts the rationale of the Majority Opinion, that is a fairer result, as it treats like cases alike. In my view, however, it also demonstrates the questionable reasoning of the Majority Opinion – which now effectively holds that an unknown number Judge Hotten and Judge Getty have authorized me to state that they join in this opinion.
of trial judges each abused his or her discretion and committed reversible error when they each failed to anticipate that this Court would adopt, by adjudication, new mandatory voir dire questions not required by most other jurisdictions.
Circuit Court for Baltimore City Case No. 116042016 Argued: October 7, 2019 IN THE COURT OF APPEALS
OF MARYLAND No. 11
September Term, 2019 ______________________________________
TSHIBANGU KAZADI v. STATE OF MARYLAND ______________________________________
Barbera, C.J. McDonald Watts Hotten Getty Booth Wilner, Alan M. (Senior Judge, Specially Assigned), JJ. ______________________________________
Opinion by Getty, J., dissenting in part, which McDonald and Hotten, JJ., join. ______________________________________
Filed: January 24, 2020
I respectfully dissent from the Majority’s conclusion that voir dire questions concerning a jury’s willingness to follow a trial court’s subsequent instructions on the law are mandatory. I join Judge McDonald’s dissent and write separately to further explain my disagreement with the Majority’s interpretation of Twining v. State, 234 Md. 97 (1964). I would hold that questions regarding a jury’s willingness to follow basic legal principles during voir dire are not mandatory and a trial court does not abuse its discretion in declining to ask such questions. The Majority misconstrues this Court’s basis for our holding in Twining and fails to demonstrate how that holding is “clearly wrong and contrary to established principles[, or] has been superseded by significant changes in the law or [the] facts.” Majority Slip. Op. at 22 (quoting Wallace v. State, 452 Md. 558, 582 (2017)). In my view, the circuit court did not abuse its discretion by declining to ask Mr. Kazadi’s requested voir dire questions because Twining and its progeny remain good law.
In Twining, this Court considered whether a trial court’s refusal to grant two requested jury instructions constituted an abuse of discretion. 234 Md. at 99–100. The latter refusal is relevant to the instant case. Id. at 100. Specifically, Twining sought to inquire whether prospective jurors would “give the accused the benefit of the presumption of innocence and the burden of proof.” Id. We found no abuse of discretion and dispensed of the issue in a single paragraph:
The [second] question sought to be propounded [by the trial court] related to whether the [jury] would give the accused the benefit of the presumption of innocence and the burden of proof. We find no abuse of discretion here. The rules of law stated in the proposed questions were fully and fairly covered in subsequent instructions to the jury. It is generally recognized that it is inappropriate to instruct on the law at this stage of the case, or to question the jury as to whether or not they would be disposed to follow or apply stated
rules of law. See 50 C.J.S.Juries § 275(2). This would seem to be particularly true in Maryland, where the courts’ instructions are only advisory. . . . Twining, 234 Md. at 100 (emphasis added).
The Majority reads this paragraph to state three reasons for the Court’s holding. Majority Slip. Op. at 31–32. I only discern two reasons. First, Twining’s proposed voir dire questions were “fully and fairly covered” in the subsequent jury instructions. Second, it is “inappropriate” to question the jury about legal principles during voir dire. The Twining Court did not, as the Majority concludes, rely on the advisory nature of jury instructions as a basis for its holding. That language amounts only to dicta. Instead, we referenced the lack of binding jury instructions because it only fortified our decision on the first two bases. Twining, 234 Md. at 100 (“This would seem to be particularly true in Maryland. . . .”) (emphasis added).
As described comprehensively in the majority opinion, a court’s instructions on the law only became binding upon a jury in the early 1980s. Majority Slip. Op. at 40. See Stevenson v. State, 289 Md. 167, 180 (1980); Montgomery v. State, 292 Md. 84, 91 (1981). In the decades after this Court decided Twining, and since jury instructions became binding, we have reaffirmed the notion espoused in Twining that it is improper to question jurors on principles of law during voir dire. In State v. Logan, the issue concerned whether a trial court had properly refused voir dire questions about a juror’s willingness to accept a defense of not criminally responsible. 394 Md. 378, 384 (2006). This Court concluded that one proposed question “amount[ed] to a solicitation of whether prospective jurors would follow the court’s instructions on the law,”1 and found no abuse of discretion in the trial court’s refusal to ask it. Id. at 398–99. We concluded that asking jurors if they would follow the court’s instructions on the law, during voir dire, is “generally disfavored in Maryland. . . .” Id. at 399 (quoting Twining, 234 Md. at 100). The Logan Court similarly found no abuse of discretion with regard to another proposed voir dire question.[2] We explicitly relied on Twining for the proposition that “voir dire is not the appropriate time for the trial judge to instruct the jury on the law applicable to the case.” Id. at 400. (Citation omitted).
Yet again in Stewart v. State, we noted that “questions asking whether prospective jurors would follow the court’s instructions on the law are disfavored in Maryland and a court does not abuse its discretion in refusing to ask them.” 399 Md. 146, 162–63 (2007) (citing Logan, 394 Md. at 399). To now rely on the fact that jury instructions are binding as a “significant change[] in the law” is improper. The Majority offers no persuasive argument as to how our post-1981 decisions in Logan and Stewart can now be overruled without violating fundamental principles of stare decisis.
I would not overrule Twining. I agree with the Majority to the extent that the language the Court used in Twining–“[i]t is generally recognized that it is inappropriate to instruct on the law at this stage of the case, or to question the jury as to whether or not they
1 “[I]f the defendant satisfies his burden in this regard, will any member of the jury be unable to find the defendant not criminally responsible?” Logan, 394 Md. at 398. 2 “[D]oes any juror anticipate having difficulty following the Court’s instructions on the defense of ‘not criminally responsible,’ particularly in view of the crimes charged in the indictment?” Logan, 394 Md. at 399.
would be disposed to follow or apply stated rules of law”–is now antiquated. However, while I agree that such language is outdated, I maintain that the proposed voir dire questions regarding a juror’s willingness to follow purely legal principles should not be mandatory at defense counsel’s request given the circuit court’s broad discretion. See Stewart v. State, 399 Md. 146, 160 (2007) (“The manner of conducting voir dire and the scope of inquiry in determining the eligibility of jurors is left to the sound discretion of the judge.”). Therefore, I would affirm the judgment of the Court of Special Appeals.
I would hold that the circuit court did not abuse its discretion in refusing to ask Mr. Kazadi’s requested questions. The Majority’s opinion paves the way toward creating a patchwork of mandatory voir dire questions. I believe this will serve to only complicate the voir dire process, confuse trial judges in the exercise of their broad discretion, and lead courts astray from the purpose of limited voir dire, which is to solely identify jurors who should be struck for cause, “not to aid counsel in the intelligent use of peremptory strikes.” Majority Slip. Op. at 44.
Judge McDonald and Judge Hotten have authorized me to state that they join in this opinion.
The correction notice(s) for this opinion(s) can be found here: https://mdcourts.gov/sites/default/files/import/appellate/correctionnotices/coa/11a19cn.pdf https://mdcourts.gov/sites/default/files/import/appellate/correctionnotices/coa/11a19cn2.pdf