Lopez-Villa v. State ( 2022 )

Brigido Lopez-Villa v. State, No. 22, September Term, 2021. Opinion by Hotten, J.
CRIMINAL LAW — REVIEW — PRESENTATION AND RESERVATION IN
LOWER COURT OF GROUNDS OF REVIEW — SUMMONING AND
IMPANELING JURY
For a party to preserve its objection to a trial court’s omission or modification of proposed
voir dire questions, the party must object or indicate disagreement at the time the trial court
makes its ruling. This is true unless the party is not given the opportunity to object at the
time of the trial court’s ruling, the trial court expressly recognizes the party’s objection, or
the party later retracts the waiver of the objection under certain circumstances. Simply
because a party expresses a desire to have certain questions posed prior to the court’s ruling
does not provide the court insight into the direction the party wishes the court to take at the
time of its decision. Trial strategies and legal opinions of counsel often change over the
course of litigation, and the failure to object or express disagreement at the time of the
court’s ruling deprives the court with the opportunity to correct any perceived error in its
action and deprives the opposing party with the opportunity to respond.
Circuit Court for Anne Arundel County
Case No. C-02-CR-18-001709
Argued: December 2, 2021 IN THE COURT OF APPEALS
OF MARYLAND
No. 22
September Term, 2021
__________________________________
BRIGIDO LOPEZ-VILLA
v.
STATE OF MARYLAND
__________________________________
Getty, C.J.,
*McDonald,
Watts,
Hotten,
Booth,
Biran,
Gould,
JJ.
__________________________________
Opinion by Hotten, J.
Gould, J., concurs.
Biran, J., dissents.
__________________________________
Filed: March 14, 2022
*McDonald, J., now retired, participated in
the hearing and conference of this case
Pursuant to Maryland Uniform Electronic Legal
while an active member of this Court; after
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic. being recalled pursuant to Maryland
2022-03-14 15:42-04:00 Constitution, Article IV, Section 3A, he
also participated in the decision and
adoption of this opinion.
Suzanne C. Johnson, Clerk
In Kazadi v. State, 467 Md. 1, 48, 223 A.3d 554, 582 (2020), we held that a trial
court is required, upon request, to ask potential jurors voir dire questions directed at a
defendant’s fundamental rights related to the burden of proof, the presumption of
innocence, and the right not to testify. We held that this ruling applied retroactively to any
case that was currently pending on appeal, so long as the relevant question was preserved
for appellate review. Id. at 54, 223 A.3d at 586. The present appeal involves one such case
that was pending when we decided Kazadi and in which a trial court declined a defendant’s
request to ask voir dire questions pertaining to such fundamental rights. We now consider
whether defense counsel in this case properly preserved for appellate review, Petitioner
Brigido Lopez-Villa’s claim based on the trial court’s failure to ask such questions now
required by Kazadi. We granted certiorari to address the following question:
Where Petitioner submitted a written request for Kazadi [voir dire] questions
and the trial court “reviewed” the questions and ruled that it was “not inclined
to ask” them “because the Court will instruct on those areas of law,” did the
Court of Special Appeals err in holding that Petitioner “failed to preserve his
objection to the court’s refusal to read his proposed [voir dire] questions,”
because he “failed to ask or tell the court that he objected to the failure to ask
those specific questions,” and because when, at the end of [voir dire], the
trial court inquired, “[d]id I miss any questions . . . what you previously
objected to, which I will preserve for the record,” counsel responded “no”?
We answer in the negative and affirm the decision of the Court of Special Appeals.1
1
In his petition for certiorari, Petitioner also asked, “[d]id the trial court err by not
asking the venire panel certain requested [voir dire] questions that are required by Kazadi
v. State, 467 Md. 1 (2020)?” Since we hold that Petitioner did not preserve this issue for
appellate review, we decline to reach that question.
FACTUAL AND PROCEDURAL BACKGROUND
The Underlying Incident
Petitioner was convicted of one count of sexual abuse of a minor and four counts of
third-degree sexual offense, following a four-day jury trial in the Circuit Court for Anne
Arundel County. As aptly stated by the Court of Special Appeals, “the underlying facts
are largely irrelevant to the issues on appeal. Suffice it to say that the evidence, when
viewed in the light most favorable to the State, was sufficient to support the convictions.
[Petitioner] does not contend otherwise.” Lopez-Villa v. State, No. 240, Sept. Term, 2019,
2020 WL 6130896, at *1 (Md. Ct. Spec. App. Oct. 19, 2020).
Legal Proceedings
A. Circuit Court Proceeding
Prior to trial, both Petitioner and the State submitted proposed voir dire questions
to the trial court. Petitioner submitted a total of twenty-six questions, the following two of
which are presently at issue:
2. Do you understand a Criminal Defendant is presumed innocent and it
is solely the burden of the State to produce evidence to convince you, the
Jury unanimously, of the accused’s guilt beyond a reasonable doubt?
22. Do you have any moral, ethical or religious convictions and/or
opinions that would prohibit you from rendering a fair and impartial verdict
in this case, and from following the Court’s instructions on the Law,
including[:] that the accused is presumed innocent, and can only be convicted
upon competent evidence produced by the State, convincing you beyond a
reasonable doubt of the Defendant’s guilt?
The trial court reviewed the parties’ proposed questions and, after discussion with
counsel prior to voir dire, rejected some and accepted others from both sides. The
2
following colloquies took place between the court and defense counsel pertaining to the
two questions at issue here:
THE COURT: . . . The Court has reviewed Defendant’s [voir dire]. The
Court would not be inclined to ask, because the Court believes it is
duplicative with the State’s questions, number 1. The Court is not inclined
to ask question number 2, as the jury will be instructed as to the law.
Question 3 is duplicative, 4 is duplicative, 5 is duplicative, 6 is duplicative.
[Defense counsel], I don’t know. The question about teachers or work in the
education field. The jurors should have their occupations listed on the jury
profile sheet. So do I need to ask question number 7? It should be on the
profile sheet when we get it.
[DEFENSE COUNSEL]: Judge, it should be, but it isn’t always there. And
the nature of this case, since we will have educators testifying, I think the
Defendant has a right to know that.
THE COURT: All right. I will ask it.
[DEFENSE COUNSEL]: And if I can return to number 6?
THE COURT: Yes.
* * *
THE COURT: . . . The Court is not inclined to give [question] 22 as it is
stated, because the Court will instruct on those areas of the law. But the
Court would be inclined to give a modified 22 that indicates whether they
have moral, ethical, religious convictions or opinions that would prevent
them from returning a verdict.
[DEFENSE COUNSEL]: Your Honor, I am sorry. What happened to 21, my
21?
THE COURT: I am going to add it into 22. Okay?
[THE STATE]: And I apologize, Your Honor. You may [have] just said it
in 22. And you are just saying rendering a verdict, not fair and impartial?
3
THE COURT: No. I would change it to say prevent them from returning a
verdict no matter what the circumstances of the case were.
[THE STATE] Thank you, Your Honor.
The court then proceeded with voir dire, during which it did not ask Petitioner’s
proposed question 2 and asked the following modified version of Petitioner’s proposed
question 22: “[i]s there any member of the jury panel who has any political, religious or
other convictions that would prevent you from sitting as a juror in this case and returning
a verdict based solely upon the law and the evidence?”
After the conclusion of voir dire, the court held a bench conference with counsel
and the following ensued:
THE COURT: Did I miss any questions?
[THE STATE]: I don’t believe so.
THE COURT: All right. Any additional questions from the State?
[THE STATE]: No, thank you.
THE COURT: [Defense Counsel], anything? --- what you previously
objected to, which I will preserve for the record.
[DEFENSE COUNSEL]: No.
Following trial, the jury acquitted Petitioner of three counts of second-degree rape
and two counts of second-degree sexual offense, but convicted him of one count of sexual
abuse of a minor and four counts of third-degree sexual offense. He was sentenced to
twenty years of imprisonment.
4
B. Kazadi v. State
Petitioner appealed his convictions to the Court of Special Appeals, which stayed
the matter pending this Court’s decision in Kazadi v. State, determining that case had
bearing on Petitioner’s appeal. See Lopez-Villa, 2020 WL 6130896, at *1. In Kazadi, we
held 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 long-standing
fundamental principles of the presumption of innocence, the State’s burden of proof, and
the defendant’s right not to testify.” 467 Md. at 35–36, 223 A.3d at 574–75. In doing so,
we overruled our previous precedent in Twining v. State, which was still good law at the
time Petitioner’s case was decided and which held that a trial court was not so required.
234 Md. 97, 100, 198 A.2d 291, 293 (1964). Kazadi expressly stated that its holding was
applicable to any cases that were currently pending on direct appeal, so long as “the
relevant question has been preserved for appellate review.” 467 Md. at 47, 223 A.3d at
581.
C. The Opinion of the Court of Special Appeals
Following this Court’s decision in Kazadi, the Court of Special Appeals considered
Petitioner’s appeal, but determined in an unreported opinion that his objection to the
exclusion of his voir dire questions impacted by Kazadi was not preserved for appellate
review.2 Lopez-Villa, 2020 WL 6130896, at *1. In reliance on Maryland Rule 4-323(c), it
2
Petitioner also asked the Court of Special Appeals whether the trial court abused
its discretion in denying Petitioner’s motion to strike four prospective jurors for cause.
(continued. . .)
5
determined that Petitioner’s defense counsel did not “make[] known to the court . . . the
objection to the action of the court.” Id. at *3 (quoting Md. Rule 4-323(c)). Specifically,
the Court of Special Appeals stated that “defense counsel did not identify the questions that
the court had failed to ask or tell the court that he objected to the failure to ask those specific
questions. Instead, he asked what the court intended to do with some of his other proposed
questions.” Id. It also reasoned that Petitioner failed to preserve his objection when
defense counsel requested no additional questions following voir dire after being prompted
by the court. Id. In so finding, the Court of Special Appeals rejected Petitioner’s argument
that “any additional ‘protest’” would have antagonized the court, as it found that Petitioner
never made any initial protest to the court’s actions. Id.
Following the decision of the Court of Special Appeals, Petitioner filed a petition
for certiorari to this Court, which we granted on August 3, 2021. Lopez-Villa v. State, 475
Md. 698, 257 A.3d 1161 (2021).
DISCUSSION
Contentions of the Parties
Petitioner alleges that the Court of Special Appeals erred in finding that he waived
his objection to the trial court’s denial of his proposed voir dire questions 2 and 22, which
he asserts are now required by Kazadi. He argues that his objection is preserved under
Maryland Rule 4-323(c) because, by submitting written proposed voir dire questions to the
(. . . continued)
Lopez-Villa, 2020 WL 6130896, at *1. It answered that question in the negative and
Petitioner does not appeal that decision before this Court. Id. at *6.
6
trial court, it understood the action that he “desired the court to take[,]” in satisfaction of
the Rule. Petitioner alleges that no contemporaneous objection to the court’s decision to
exclude question 2 and modify question 22 was necessary under Md. Rule 4-323(c).
Petitioner also argues that his objections were preserved based on the trial court’s statement
following voir dire that it would preserve what defense counsel had previously objected to,
alleging that questions 2 and 22 were the only two questions proposed by Petitioner that
the court declined to ask as written (apart from those questions that the court determined
were duplicative).
The State replies that the Court of Special Appeals correctly concluded that
Petitioner’s objections were not preserved for appellate review, asserting that Petitioner
never objected at any point to the court’s respective rejection and modification of his
proposed voir dire questions 2 and 22. As such, the State argues that Petitioner is barred
from objecting to the trial court’s treatment of those questions on appeal under Md. Rules
8-131(a) and 4-323(c). The State also argues that Petitioner further waived any alleged
objection to the court’s actions when the court asked following voir dire if he had missed
any questions and defense counsel replied that he had not. It argues that the court’s
reference following voir dire to preserving what defense counsel had “previously objected
to” did not refer to the court’s omission and modification of Petitioner’s proposed questions
2 and 22, but instead referred to Petitioner’s anticipatory objection to the State’s request
for alternating preemptory strikes, which the State asserts was Petitioner’s only objection
on the record.
7
Standard of Review
“An appellate court reviews for abuse of discretion a trial court’s decision as to
whether to ask a voir dire question.” Pearson v. State, 437 Md. 350, 356, 86 A.3d 1232,
1235 (2014). We have held that Article 21 of the Maryland Declaration of Rights
“guarantees a defendant the right to examine prospective jurors to determine whether any
cause exists for a juror’s disqualification.” Bedford v. State, 317 Md. 659, 670, 566 A.2d
111, 116 (1989). As such, the “[f]ailure to allow questions that may show cause for
disqualification is an abuse of discretion constituting reversible error.” Marquardt v. State,
164 Md. App. 95, 144, 882 A.2d 900, 929 (2005) (citing Casey v. Roman Catholic
Archbishop of Balt., 217 Md. 595, 605, 143 A.2d 627, 631 (1958)). Yet, it remains a
requirement that “[t]o preserve 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.” Foster
v. State, 247 Md. App. 642, 647, 239 A.3d 741, 744 (2020), cert. denied sub nom. State v.
Foster, 475 Md. 687, 257 A.3d 1156 (2021).
Petitioner’s question requires us to interpret the Maryland Rules. “[T]he principles
applied to statutory interpretation are also used to interpret the Maryland Rules.” Lisy
Corp. v. McCormick & Co., 445 Md. 213, 221, 126 A.3d 55, 60 (2015) (quoting Duckett
v. Riley, 428 Md. 471, 476, 52 A.3d 84, 87 (2012)). We begin with the plain language of
the rule, and “[i]f that language is clear and unambiguous, we need not look beyond the
provision’s terms to inform our analysis[.]” Duckett, 428 Md. at 476, 52 A.3d at 87
(quoting Davis v. Slater, 383 Md. 599, 604–05, 861 A.2d 78, 81 (2004)).
8
[H]owever, the goal of our examination is always to discern the legislative
purpose, the ends to be accomplished, or the evils to be remedied by a
particular . . . part of the Rules. To that end, we must consider the context in
which the . . . rule appears, including related statutes or rules, and relevant
legislative history. Also, where the language of the rule is ambiguous,
external evidence may be referred to for discerning the purpose of the
legislature, including the bill’s title or function paragraphs, relevant case law,
and secondary sources.
Id. at 476–77, 52 A.3d at 87 (quoting Davis, 383 Md. at 604–05, 861 A.2d at 81).
The Preservation Requirement of Maryland Rule 4-323(c)
Maryland Rule 4-323(c) governs the method through which a party must make an
objection to rulings and orders other than evidentiary rulings, and states:
For purposes of review by the trial court or on appeal of any other ruling or
order, it is sufficient that a party, at the time the ruling or order is made or
sought, makes known to the court the action that the party desires the court
to take or the objection to the action of the court. The grounds for the
objection need not be stated unless these rules expressly provide otherwise
or the court so directs. If a party has no opportunity to object to a ruling or
order at the time it is made, the absence of an objection at that time does not
constitute a waiver of the objection.
Maryland Rule 4-323(d) further elaborates that, “[a] formal exception to a ruling or order
of the court is not necessary.”
Petitioner is incorrect that merely submitting proposed voir dire questions, which
are later rejected or modified by the trial court, is sufficient to satisfy the preservation
requirement of Md. Rule 4-323(c). The plain language of the Rule requires that “a party,
at the time the ruling or order is made or sought, makes known to the court the action that
the party desires the court to take or the objection to the action of the court.” Md. Rule 4-
323(c) (emphasis added). This requirement is excused when “a party has no opportunity
9
to object to a ruling or order at the time it is made[.]” Id. (emphasis added). Thus, the
plain language of Md. Rule 4-323(c) twice references that an objection or indication of
disagreement must be made contemporaneous with the court’s action. This requirement
holds unless the party does not have the opportunity to object, as the Rule expressly
recognizes, unless the court expressly advises the party that their objection is noted, see,
e.g., Baker v. State, 157 Md. App. 600, 609, 853 A.2d 796, 801 (2004) (holding an
objection to omission of proposed voir dire questions was preserved where defense counsel
declined to be heard on the omission of the questions but “requested that a copy of his
proposed voir dire be put into the court’s file[]” and the court “told defense counsel that a
copy was already in the court file and noted the exceptions[]”), or unless the party later
retracts its waiver of the objection under certain circumstances, see Brice v. State, 225 Md.
App. 666, 688, 126 A.3d 246, 259 (2015) (holding that the trial court erred in not permitting
retraction of a waiver where the waiver “(1) would not have prevented the selection of a
jury from the venire remaining at the time of the retraction, (2) would not have prejudiced
the State in its approach to voir dire, and (3) would not have amounted to a trial tactic
aimed at manipulating the judicial process[]”) (internal quotations omitted).
Petitioner argues that a contemporaneous objection or expression of disagreement
is not required under Md. Rule 4-323(c), because submitting written proposed voir dire
questions to the trial court prior to its decision, “makes known to the court the action that
the party desires the court to take[,]” in satisfaction of the Rule. We are not persuaded.
Strategies and positions of a party often change over the course of litigation and even within
10
the course of a conversation during trial. Cf. Brown v. State, 169 Md. App. 442, 459, 901
A.2d 846, 856 (2006) (“In regard to the issue of lawyerly diligence, defense counsel had a
good reason, based on trial tactics, not to object to the court’s change of the pattern jury
instruction.”). A failure to object in the face of the court’s ruling could indicate that the
party has abandoned their previous position or acquiesced with the court’s reasoning for
rejecting the proposed question. Absent a contemporaneous objection or expression of
disagreement, the court has no way of knowing “the action that the party desires the court
to take[,]” Md. Rule 4-323(c), and may very well believe that defense counsel agrees with
its rejection or modification of its previously submitted proposed voir dire questions.
The requirement of such a contemporaneous objection is likewise supported by the
purpose of the preservation rules. We have explained that “[t]he rules for preservation of
issues have a salutary purpose of preventing unfairness and requiring that all issues be
raised in and decided by the trial court[.]” Conyers v. State, 354 Md. 132, 150, 729 A.2d
910, 919 (1999). Preservation rules like Md. Rule 4-323(c) are designed to provide fairness
to the trial court, which should be permitted “to resolve as many issues as possible so as to
avoid unnecessary appeals.” In re A.B., 230 Md. App. 528, 535, 148 A.3d 371, 375 (2016).
The Rule is also designed to provide fairness to opposing parties, who should be afforded
the opportunity to respond to any alleged error in the court’s ruling in their favor. See In
re Kaleb K., 390 Md. 502, 513, 889 A.2d 1019, 1025 (2006) (“[T]he application of the rule
limiting the scope of appellate review to those issues and arguments raised in the court
below ‘is a matter of basic fairness to the trial court and to opposing counsel, as well as
11
being fundamental to the proper administration of justice.’”) (summarizing Medley v. State,
52 Md. App. 225, 231, 448 A.2d 363, 366 (1982)). Without a contemporaneous objection
or expression of disagreement, the trial court is unable to correct, and the opposing party
is unable to respond to, any alleged error in the action of the court.
The case law relied upon by Petitioner does not reflect otherwise. In Newman v.
State, the Court of Special Appeals held that the rejection of proposed voir dire questions
was preserved for appellate review where a party made two objections to the court’s failure
to include its proposed questions, “first in writing and second at the close of the questioning
section of [voir dire].” 156 Md. App. 20, 50, 845 A.2d 71, 89 (2003), rev’d on other
grounds, 384 Md. 285, 863 A.2d 321 (2004). Defense counsel in Baker, likewise,
effectively made clear his disagreement with a court ruling by requesting that a copy of his
proposed instructions be put in the court’s file after the court rejected some of his proposed
instructions and the court expressly noted his objection. 157 Md. App. at 609–10, 853
A.2d at 801–02. The same is true of Smith v. State, where the trial court asked the parties
if they had objections to any of their proposed questions being skipped by the court during
voir dire, to which defense counsel expressly challenged the omission of a question which
later became the subject matter of his appeal. 218 Md. App. 689, 699–700, 98 A.3d 444,
450 (2014). Finally, in Marquardt v. State, the Court of Special Appeals found that an
appellant had successfully preserved an objection under Md. Rule 4-323 when, “after being
asked if there were any problems with [voir dire], appellant told the [trial] court that he
objected to his proposed questions 11, 12, 14, and 15 not being asked.” 164 Md. App. 95,
12
143, 882 A.2d 900, 928 (2005). Newman, Baker, Smith, and Marquardt stand for the
proposition that, pursuant to Md. Rule 4-323(d), “[a] formal exception to a ruling or order
of the court is not necessary[,]” and a party may express their disagreement with a court’s
actions in a myriad of ways. They do not stand for the proposition, as Petitioner asserts,
that Md. Rule 4-323(c) does not require a party to object or indicate its disagreement at all
when the court makes its decision.
In Brice, like in the case at bar, defense counsel submitted a written list of proposed
voir dire questions, some of which were omitted by the trial court when questioning the
jury. 225 Md. App. at 667, 126 A.3d at 252–53. There, the Court of Special Appeals found
that by failing to object to the trial court’s omission of those questions when given the
opportunity by the trial court, defendant waived any objection to the court’s omission of
those questions, and that such objection was preserved only because defense counsel later
retracted that waiver during the court’s voir dire questioning. Id. at 679–80, 126 A.3d at
254. The Court of Special Appeals correctly noted that
[a]n appellant preserves the issue of omitted [voir dire] questions under
[Md.] Rule 4-323 by telling the trial court that he or she objects to his or her
proposed questions not being asked. If a defendant does not object to the
court’s decision to not read a proposed question, he cannot complain about
the court’s refusal to ask the exact question he requested.
Id., 126 A.3d at 253–54 (internal citations and quotations omitted). This preservation
requirement was expressly maintained by Kazadi. 467 Md. at 47, 223 A.3d at 581 (“[W]e
determine that our holding applies to this case and any other cases that are pending on
direct appeal when this opinion is filed, where the relevant question has been preserved for
13
appellate review.”); see also Kumar v. State, No. 21, Sept. Term, 2021, 2021 WL 5993511,
at *9 (Md. Dec. 20, 2021) (finding an objection to the trial court’s omission of Kazadi voir
dire questions preserved where defense counsel asked the trial court to note his “continuing
exception to its refusal” to ask such questions).
Application to this Case
Unlike the appellants in Newman, Baker, Smith, and Marquardt, defense counsel in
the case before us neither made an objection nor expressed any indication of disagreement
when the court stated prior to voir dire that it was “not inclined”3 to give Petitioner’s
proposed question 2 or proposed question 22 as written. Instead, defense counsel
immediately asked the court about its treatment of different questions he had proposed, but
did not mention the court’s rejection of question 2 or modification of question 22 at all.
Petitioner did not merely object or disagree informally or without explanation; he did not
object or disagree with the court’s ruling at all. The fact that the court was aware of
Petitioner’s proposed questions and made rulings contrary to them does not mean that
Petitioner made the court aware that he objected or disagreed with the court’s ruling.
Indeed, the court could have reasonably perceived that, by failing to object or indicate his
3
While the trial court expressed this ruling in tentative terms, we hold that it is clear
from the context that the court was making a definitive ruling, requiring an objection or
expression of disagreement from Petitioner under Md. Rule 4-323(c). Nearly all of the
court’s decisions on the parties’ proposed questions were expressed in terms of the court
being “inclined” or “not inclined” to ask the questions. Even if we determined that such
statements were not definitive rulings, they were certainly invitations to defense counsel to
express disagreement with the court’s “inclination” if it wished, and when defense counsel
failed to do so, the “inclination” became definitive.
14
disagreement, Petitioner had abandoned those claims or ultimately agreed with the court’s
determination that they were unnecessary because the jury would be instructed on the law.
Likewise, neither are Petitioner’s preservation claims redeemed by defense
counsel’s discussion with the trial court following voir dire. As stated above, at the
conclusion of voir dire, the court asked the State whether it had missed any questions, to
which the State responded that it had not. The court then turned to defense counsel and
asked: “[Defense Counsel], anything? --- what you previously objected to, which I will
preserve for the record[,]” to which defense counsel replied “No.” Petitioner argues that
the court’s reference to what defense counsel “previously objected to” must have been
referring to the court’s rejection of question 2 and modification of question 22, because
those were the only questions that the court declined to ask as proposed by Petitioner.
Petitioner’s argument fails for several reasons. In the first place, question 2 and question
22 were not the only questions proposed by Petitioner that the court declined to ask. It also
declined to ask Petitioner’s proposed questions 1, 3, 4, 5, 6, 10, 15, 16, 17, 18, and 19,
because it determined that they were duplicative of, or incorporated in, other questions
proposed by the State or Petitioner that the court had already agreed to ask.
Second, it is unlikely that the court’s reference to what defense counsel “previously
objected to,” (emphasis added), was intended to reference the court’s treatment of
questions 2 and 22, because, as discussed above, Petitioner never objected to the court’s
15
respective omission and modification of those questions.4 Instead, it is more plausible that
the court was referring to the only thing Petitioner had objected to, which was an
anticipatory objection of the State’s request for alternating strikes.5 Rather, we conclude
4
Petitioner indeed concedes that he failed to object to questions 2 and 22 being
asked, but argues instead that his claims are preserved under Md. Rule 4-323 because he
had made known to the court the action that he desired the court to take.
5
Immediately prior to voir dire, the trial court had the following colloquy with
defense counsel:
[DEFENSE COUNSEL]: Judge, on that note, if I may? I had intended to ask
the Court to permit – I understand the rule as a simultaneous selection of the
jury as opposed to alters. I think with the crowd in here that is a problem,
and I am going to make an objection to – I understand the rule of 318, if a
party requests it, and I see [the State], I think, nodding that she is requesting
alternating strikes.
But I suggest that in this case, particularly with the crowd, particularly
because that mode --
THE COURT: You want to pick a juror right then and there?
[DEFENSE COUNSEL]: No, Judge. What I am asking is after all of the
strikes for cause and we are left with a room full of people, you tell us
whether we are picking from the top or the bottom of the list.
THE COURT: We are going to pick from the top.
[DEFENSE COUNSEL]: And without calling each individual juror up, that
I exercise my 10 or less, the State exercises their 10 or less. The first 12 to
go in the box, that is the jury. I think it is –
* * *
THE COURT: We are not there yet. I understand what you are asking. I
will research it, and we will get there. Okay?
(continued. . .)
16
that defense counsel’s response of “no” when asked by the trial court following voir dire
if the court had missed any questions was another instance of Petitioner waiving his right
to object to the trial court’s omission and modification of his proposed questions allegedly
impacted by Kazadi.6 See Hayes v. State, 247 Md. App. 252, 276, 236 A.3d 680, 694
(2020) (“If an opportunity to object presents itself and a defendant fails to object to a court’s
refusal to read a proposed question, the objection is waived.”).7
(. . . continued)
[DEFENSE COUNSEL]: Thank you. (Emphasis added).
6
To the extent that the court’s reference to “questions” he had missed at the
beginning of the colloquy could be considered ambiguous because defense counsel’s only
previous objection did not refer to a missed voir dire question, defense counsel had the
burden to make clear what action of the court he objected to in order to preserve the issue
for appellate review. See Md. Rule 4-323(c).
7
The Dissent argues that we should consider Petitioner’s Kazadi claims preserved
based on the court’s statement that it would preserve what defense counsel had “previously
objected to[.]” Lopez-Villa v. State, No. 22 Sept. Term, 2021, slip op. at 3–12 (Biran, J.,
dissenting). The Dissent asserts that we must view the matter from the point of view of a
reasonable defense attorney, and in this case, “a reasonable defense attorney could have
concluded that the trial court was effectively saying: ‘I already understand that you want
me to ask the nonduplicative questions as you proposed them; you do not have to tell me
that again. Is there anything else besides those questions that you want me to ask?’” Id. at
9. We do not think a reasonable defense attorney could conclude that a trial court’s
reference to what had been previously objected to could refer to an issue about which
defense counsel had never objected. The Dissent asserts that, in circumstances where “only
one party has requested a question and the court declines to give it[,] . . . a trial court
reasonably may expect that the requesting party will disagree with the court’s decision.”
Id. at 8 n.4. This inference is at odds with our understanding that without a
contemporaneous objection by trial counsel, the trial court could fairly conclude that
defense counsel has abandoned their proposed question or agrees with the trial court’s
reasoning as to why it need not be asked. We therefore do not agree that it would have
been reasonable for Petitioner’s defense attorney to assume, in spite of a failure to make
any objection, the trial court to have effectively said “I already understand that you want
(continued. . .)
17
For us to hold otherwise and determine that Petitioner’s claims are preserved for
appellate review simply because he submitted a written list of proposed questions that was
not accepted in full by the court would largely erase Md. Rule 4-323(c)’s preservation
requirement in the context of voir dire questions. Under Petitioner’s interpretation, any
question proposed by a party and not accepted, as written, by the trial court would be
preserved for appellate review, regardless of whether the party made any indication to the
trial court that it disagreed with the court’s decision when it was made. In Petitioner’s case,
it would mean that Petitioner had also preserved for appellate review any objection to the
court’s findings that 1, 3, 4, 5, 6, 10, 15, 16, 17, 18, and 19 were duplicative, even though
Petitioner never made any such claim at the time the court made that determination. Such
an interpretation is not aligned with the text of Md. Rule 4-323(c), does not advance the
Rule’s purpose of providing fairness to the trial court and opposing parties, and is not
supported by our case law. Accordingly, we decline to find that Petitioner’s claims, based
on the court’s treatment of his questions allegedly impacted by Kazadi, are preserved for
appellate review under Md. Rule 4-323(c).
Maryland Rule 8-131(a)
We likewise cannot determine that Petitioner’s claims of preservation are salvaged
by the general preservation rule in Md. Rule 8-131(a). Maryland Rule 8-131(a) provides:
(. . .continued)
me to ask the nonduplicative questions as you proposed them[.]” See id. at 9. To hold
otherwise would prevent trial courts and any reviewing court from ever being certain
whether a defendant has actually abandoned their position on a question.
18
The issues of jurisdiction of the trial court over the subject matter and, unless
waived under [Md.] Rule 2-322, over a person may be raised in and decided
by the appellate court whether or not raised in and decided by the trial court.
Ordinarily, the appellate court will not decide any other issue unless it plainly
appears by the record to have been raised in or decided by the trial court, but
the Court may decide such an issue if necessary or desirable to guide the trial
court or to avoid the expense and delay of another appeal.
We have held that, “Md. Rule 8-131(a) requires an appellant who desires to contest a
court’s ruling or other error on appeal to have made a timely objection at trial. The failure
to do so bars the appellant from obtaining review of the claimed error, as a matter of right.”
Robinson v. State, 410 Md. 91, 103, 976 A.2d 1072, 1079 (2009) (emphasis added). This
is because, “[f]airness and the orderly administration of justice is advanced by requiring
counsel to bring the position of their client to the attention of the lower court at the trial so
that the trial court can pass upon, and possibly correct any errors in the proceedings.” Id.
at 103, 976 A.2d at 1079 (cleaned up). As discussed above, Petitioner failed to make a
timely objection, or object at all, to the trial court’s omission of his proposed question 2
and modification of his proposed question 22. As such, Petitioner has no right to appellate
review under Md. Rule 8-131(a), and we decline to exercise our discretion to provide such
a review. See Chaney v. State, 397 Md. 460, 468, 918 A.2d 506, 511 (2007) (explaining
that appellate courts should “rarely exercise” their discretion to review unpreserved issues
under Md. Rule 8-131(a), “as considerations of both fairness and judicial efficiency
ordinarily require that all challenges that a party desires to make to a trial court’s ruling,
action, or conduct be presented in the first instance to the trial court”); see also Robinson,
410 Md. at 104, 976 A.2d at 1079 (“Such prerogative to review an unpreserved claim of
19
error, however, is to be rarely exercised and only when doing so furthers, rather than
undermines, the purposes of the rule.”).
CONCLUSION
Petitioner failed to preserve his claims based on Kazadi by failing to object when
the trial court informed him that it was not inclined to ask his proposed voir dire questions,
and by responding “[n]o” when the trial court asked if he had missed anything during voir
dire. Petitioner’s desired actions were not made known to the court at the time of its
decision merely because Petitioner had submitted, at an earlier time, a list of proposed
questions to the court. Such an action is insufficient to satisfy either the plain language
requirements of Md. Rule 4-323(c) or the Rule’s purpose of providing the trial court with
the opportunity to correct, and the opposing party the opportunity to respond to, any
perceived errors. Neither is it sufficient to preserve Petitioner’s claims under Md. Rule 8-
131(a).
JUDGMENT OF THE COURT OF
SPECIAL APPEALS IS AFFIRMED.
COSTS TO BE PAID BY
PETITIONER.
20
Circuit Court for Anne Arundel County
Case No. C-02-CR-18-001709
Argued: December 2, 2021
IN THE COURT OF APPEALS
OF MARYLAND
No. 22
September Term, 2021
______________________________________
BRIGIDO LOPEZ-VILLA
v.
STATE OF MARYLAND
______________________________________
Getty, C.J.
*McDonald
Watts
Hotten
Booth
Biran
Gould,
JJ.
______________________________________
Concurring Opinion by Gould, J.
______________________________________
Filed: March 14, 2022
*McDonald, J., now retired, participated in the
hearing and conference of this case while an
active member of this Court; after being recalled
pursuant to Maryland Constitution, Article IV,
Section 3A, he also participated in the decision
and adoption of this opinion.
Notwithstanding the compelling arguments made by the Dissent, I am persuaded by
the Majority’s opinion that Mr. Lopez-Villa did not preserve an objection to the trial court’s
failure to give his proposed voir dire questions 2 and 22. I write separately to express why,
in addition to the reasons set forth in the Majority’s opinion, I believe the Majority reached
the right result.
Even if we were inclined to find that Mr. Lopez-Villa preserved the objections to
the court’s failure to ask questions 2 and 22, in my view, those questions do not survive
scrutiny on the merits. The point of Kazadi is that a defendant is entitled to ferret out a
prospective juror’s “inability or unwillingness to follow jury instructions” on the
“presumption of innocence, the State’s burden of proof, and the defendant’s right not to
testify.” Kazadi v. State, 467 Md. 1, 41-42, 36 (2020).
Mr. Lopez’s proposed question 2 asks whether the prospective jurors “understand”
that the defendant is presumed innocent and that it’s the State’s burden to prove the
defendant’s guilt beyond a reasonable doubt. Kazadi does not apply to that question.
Kazadi doesn’t entitle the defendant to a jury consisting of individuals who, when they are
selected for the venire, are already possessed with an understanding of these fundamental
constitutional rights. Rather, Kazadi is concerned with the jurors’ willingness to protect
those rights when instructed by the court to do so. See Kazadi, 467 Md. at 44-45. So, even
if Mr. Lopez-Villa had preserved that question, the failure to ask it was not reversible error
because it was not required under Kazadi.
Mr. Lopez-Villa’s proposed question 22 has other problems. Mr. Lopez-Villa
phrased question 22 as follows:
Do you have any moral, ethical or religious convictions and/or opinions that
would prohibit you from rendering a fair and impartial verdict in this case,
and from following the Court’s instructions on the Law, including[] that the
accused is presumed innocent, and can only be convicted upon competent
evidence produced by the State, convincing you beyond a reasonable doubt
of the Defendant’s guilt.
For starters, this question is a grammatical mess and contains multiple subparts.
This Court stated in Kazadi that “[a] trial court is not required to use any particular language
when complying with a request to ask during voir dire whether any prospective jurors are
unwilling or unable to comply with the jury instructions on the presumption of innocence,
the burden of proof, and the defendant’s right not to testify.” 467 Md. at 47. But the Court
provided this guidance: “The questions should concisely describe the fundamental right at
stake and inquire as to a prospective juror’s willingness and ability to follow the trial
court’s instruction as to that right.” Id. As worded, question 22 does not comply with this
standard.
Moreover, question 22 is defective under Pearson v. State, because it impermissibly
required the prospective jurors to decide for themselves whether they had any convictions
or opinions that would have prevented them from rendering a fair and impartial verdict.
Pearson v. State, 437 Md. 350, 361-64 (2014). And while it is true that the court used a
modified version of question 22 which possibly avoided a Pearson problem,1 the unused
1
The modified version used by the court was: “Is there any member of the jury
panel who has any political, religious or other convictions that would prevent you from
sitting as a juror in this case and returning a verdict based solely upon the law and the
evidence?”
-2-
parts of question 22—i.e., the parts that implicate Kazadi—would need to be re-worded
and broken up into multiple questions.
One might respond that the trial judge on remand could revise question 2 and the
remaining parts of question 22 to fix the problems discussed above. True enough, but that
supports the Majority’s conclusion on preservation. Such revisions are generally the
product of discussions among the trial judge and counsel when a timely objection is raised.
Because Mr. Lopez-Villa remained silent after the court said it was not inclined to ask
questions 2 and 22, neither the State nor the trial court had any reason or opportunity to
consider if there were other problems with questions 2 and 22, and if so, how to fix them.
Similarly, Mr. Lopez-Villa’s silence deprived the State of the opportunity to consent
to the questions, which, in turn, may have persuaded the trial court to reconsider its initial
inclination not to ask them. After all, such questions were not prohibited before Kazadi:
By making such voir dire questions mandatory on request, we help ensure
that a juror’s inability or unwillingness to follow instructions involving these
three important fundamental rights will be discovered before trial, and that
all defendants—not just ones whose trials are presided over by circuit
court judges who chose to exercise the discretion to grant requests to ask
such voir dire questions—will have the opportunity to move to strike
prospective jurors for cause on the ground of an unwillingness or inability to
adhere to these fundamental rights.
Id. at 46 (emphasis added).
Put simply, Mr. Lopez-Villa’s silence foreclosed the possibility of a discussion that
could have resulted in revisions to questions 2 and 22 that would have satisfied both the
State and the trial court. Thus, in my view, even if the issues were preserved, our review
-3-
would have to be cabined to the questions as written. And, as written, the two questions
were inappropriate for the reasons set forth herein.
-4-
Circuit Court for Anne Arundel County
Case No. C-02-CR-18-001709
Argued: December 2, 2021
IN THE COURT OF APPEALS
OF MARYLAND
No. 22
September Term, 2021
______________________________________
BRIGIDO LOPEZ-VILLA
v.
STATE OF MARYLAND
______________________________________
Getty, C.J.
*McDonald
Watts
Hotten
Booth
Biran
Gould,
JJ.
______________________________________
Dissenting Opinion by Biran, J.
______________________________________
Filed: March 14, 2022
*McDonald, J., now retired, participated in the
hearing and conference of this case while an
active member of this Court; after being recalled
pursuant to Maryland Constitution, Article IV,
Section 3A, he also participated in the decision
and adoption of this opinion.
I agree with much of the well-written Majority Opinion. However, in concluding
that Petitioner Brigido Lopez-Villa’s claim of error under Kazadi v. State, 467 Md. 1(2020), is not preserved for appellate review, despite the unique circumstances of this case,
the Majority holds defense trial counsel to an unrealistic and unfair standard. The
consequence is that Lopez-Villa is unjustly deprived of the benefit of this Court’s decision
in Kazadi. Therefore, I must respectfully dissent.
I
In Kazadi, defense counsel included several questions concerning the presumption
of innocence and the prosecution’s burden of proof in their proposed voir dire 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?
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?
Kazadi, 467 Md. at 9-10. The trial court declined to ask these questions (as well as a
proposed question concerning the defendant’s right not to testify). See id. at 10.
When Kazadi’s case came before this Court, we overruled Twining v. State, 234
Md. 97 (1964), and held 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
long-standing fundamental principles of the presumption of innocence, the State’s burden
of proof, and the defendant’s right not to testify.” Id. at 35-36. We reached this conclusion
because of the importance of these rights in ensuring a fair trial:
Because these long-standing fundamental rights are critical to a fair jury trial
in a criminal case, on request, a defendant should be entitled to voir dire
questions that are aimed at uncovering a juror's inability or unwillingness to
honor these fundamental rights. By making such voir dire questions
mandatory on request, we help ensure that a juror’s inability or unwillingness
to follow instructions involving these three important fundamental rights will
be discovered before trial, and that all defendants – not just ones whose trials
are presided over by circuit court judges who chose to exercise the discretion
to grant requests to ask such voir dire questions – will have the opportunity
to move to strike prospective jurors for cause on the ground of an
unwillingness or inability to adhere to these fundamental rights.
Id. at 46.
We stated that our holding would apply to Kazadi’s case “and any other cases that
are pending on direct appeal when this opinion is filed, where the relevant question has
been preserved for appellate review.” Id. at 47.
In his proposed voir dire question 2, Lopez-Villa’s defense counsel requested that
the trial court ask: “Do you understand a Criminal Defendant is presumed innocent and it
is solely the burden of the State to produce evidence to convince you, the Jury unanimously,
of the accused’s guilt beyond a reasonable doubt?” And in his proposed question 22,
defense counsel requested that the trial court ask: “Do you have any moral, ethical or
religious convictions and/or opinions that would prohibit you from rendering a fair and
impartial verdict in this case, and from following the Court’s instructions on the Law,
including; that the accused is presumed innocent, and can only be convicted upon
-2-
competent evidence produced by the State, convincing you beyond a reasonable doubt of
the Defendant’s guilt?”
It is clear that defense counsel requested questions covering two of the three
fundamental rights at issue in Kazadi and that the trial court declined to ask those questions.
Thus, there was a Kazadi error in the voir dire at Lopez-Villa’s trial that necessitates a new
trial if Lopez-Villa sufficiently preserved the claim of error for appellate review.1 As
discussed below, I would hold that the Kazadi question is preserved in the unique
circumstances of this case.
II
I agree with the Majority that a pretrial written request for a particular voir dire
question does not, by itself, preserve a claim of error for appellate review if the trial court
declines to put the question to potential jurors. Maryland Rule 4-323(c) provides: “For
1
In his Concurring Opinion, Judge Gould acknowledges that parts of defense
counsel’s proposed question 22 “implicate Kazadi,” but posits that those portions of the
proposed instruction “would need to be re-worded and broken up into multiple questions”
to comply with Pearson v. State, 437 Md. 350, 361-64 (2014). Concurring Op. at 2-3. Thus,
Judge Gould would hold that, “even if the issues were preserved, our review would have
to be cabined to the questions as written.” Concurring Op. at 3-4. Notably, the State did
not argue in the Court of Special Appeals and has not argued before this Court that, if
Lopez-Villa preserved a Kazadi claim of error, Lopez-Villa would not be entitled to relief
under Kazadi due to a Pearson problem. And that is for good reason. It is clear from the
record that the trial court and defense counsel were well aware of Pearson, collectively
referring to Pearson four times during the discussion concerning proposed voir dire
questions. Indeed, as Judge Gould notes, the trial court modified defense counsel’s
proposed question 22 to avoid a Pearson problem with respect to the non-Kazadi-related
part of the question. See Concurring Op. at 2-3 & n.1. Thus, it is reasonable to assume that,
if the trial court had been inclined to ask the potential jurors whether they could follow the
court’s instructions concerning the fundamental rights at issue in Kazadi, the trial court
would have ensured that such a question also complied with Pearson.
-3-
purposes of review by the trial court or on appeal of any other ruling or order, it is sufficient
that a party, at the time the ruling or order is made or sought, makes known to the court the
action that the party desires the court to take or the objection to the action of the court.”
Thus, either after the trial court told defense counsel that the court was “not inclined” to
ask defense counsel’s proposed questions 2 and 22, or after the court completed the voir
dire questions without asking questions 2 and 22, it was incumbent upon defense counsel
to “make[] known to the court” that he still wanted the court to ask his questions 2 and 22
if that indeed was the case.
It is clear that defense counsel did not state any position with respect to his proposed
questions 2 and 22 after the trial court said it was “not inclined” to ask those questions.
Therefore, the resolution of the preservation issue turns on the interaction between the trial
court and defense counsel after the court completed its questioning without having asked
questions 2 and 22. At that point, the following discussion occurred:
THE COURT: Okay. Come on up.
(Whereupon, a Bench Conference followed.)
THE COURT: Did I miss any questions?
[STATE]: I don't believe so.
THE COURT: All right. Any additional questions from the State?
[STATE]: No, thank you.
THE COURT: [Defense counsel], anything? — what you previously
objected to, which I will preserve for the record.
[DEFENSE]: No.
-4-
In my view, after the trial court told defense counsel that “what you previously
objected” would be “preserved for the record,” defense counsel reasonably could believe
that the trial court understood the defense still wanted the court to ask questions 2 and 22,
as trial counsel had proposed them. That being the case, I would hold that defense counsel
was not required to do anything else to preserve a claim of error relating to questions 2 and
22, and that counsel’s answer “No” was not a waiver of such a claim of error.
Importantly, the trial court specifically asked the parties about “additional
questions” they wanted the court to put to the potential jurors. The court first asked the
prosecutor, “Any additional questions from the State?” After the prosecutor replied, “No,
thank you,” the court immediately turned to defense counsel and began his inquiry by
asking, “anything?” Reasonable defense counsel would understand that question to be
asking – just as the court a moment earlier had asked the prosecutor – if defense counsel
wished the court to ask “[a]ny additional questions.”
If the trial court had ended its inquiry to defense counsel after “anything?” and if
defense counsel had then responded, “No,” I would agree with the Majority’s disposition
of this case. However, the trial court changed the landscape by stating that what defense
counsel “previously objected to” the court “will preserve for the record.” It was in this
context that defense counsel replied, “No.”
It is true, as the Majority explains, that during the discussion about voir dire
immediately before the potential jurors were brought into the courtroom for questioning,
defense counsel did not state an objection regarding question 2 or 22 or any of the other
questions that the court indicated it would ask or not ask the potential jurors. This begs the
-5-
question, then, to what the trial court was referring when the court told defense counsel
after asking the voir dire questions, “what you previously objected to, which I will preserve
for the record.”
The Majority finds it “unlikely” that the trial court was referring to “the court’s
treatment of questions 2 and 22,” slip op. at 15, because the court used the word “objected”
and defense counsel had not stated an objection regarding those questions during the earlier
discussion of voir dire. Thus, the Majority opines that “it is more plausible” that the court
was referring to an objection defense counsel expressly made during the earlier discussion,
namely, an anticipatory objection to the State’s request for alternating peremptory strikes.
Slip op. at 16.
In my view, the trial court was not referring to defense counsel’s anticipatory
objection concerning alternating strikes in the course of inquiring whether defense counsel
wished the court to ask the potential jurors any additional questions. That would have been
a non sequitur and premature.2 Rather, I believe there are only two plausible explanations
2
After defense counsel made an anticipatory objection to alternating strikes, the
trial court stated, “We are not there yet. I understand what you are asking. I will research
it, and we will get there.” The trial court still had not “gotten there,” and therefore had not
ruled on the issue of alternating strikes, when the court asked defense counsel if he had any
additional questions he wanted the court to ask the potential jurors. In the absence of a
ruling concerning alternating strikes, there was no reason for the court to refer to defense
counsel’s having “previously objected” to alternating strikes and preserving that objection
for the record. Relatedly, I disagree with the Majority’s suggestion that “the court’s
reference to ‘questions’ he had missed at the beginning of the colloquy” perhaps could be
considered “ambiguous.” Slip op. at 17 n.6. There was nothing ambiguous about what the
trial court was attempting to discover in that colloquy. The court had just finished putting
the voir dire questions to the potential jurors and was inquiring whether either the
prosecutor or defense counsel wanted him to ask any additional questions.
-6-
for the trial court’s reference to defense counsel having “previously objected”: (1) either
the trial court was indicating that it understood defense counsel not to have abandoned his
request from earlier that morning that the court give questions 2 and 22 as counsel proposed
them, and used “previously objected” to describe its interpretation of defense counsel’s
lack of assent to the court’s decisions;3 or (2) the trial court erroneously believed that
defense counsel had expressly objected with respect to the court’s decision to ask or not to
ask a question during the discussion that had occurred shortly beforehand.
I find it difficult to believe that the experienced and meticulous trial judge who
presided over Lopez-Villa’s trial meant to reference an express objection to one or more
questions, when defense counsel made no such express objection during the discussion that
occurred that same morning. Nor would the trial court have referred to defense counsel
having “previously objected” if the court did not believe there to be at least one question
upon which there was a continuing disagreement between the court and counsel. Thus, I
believe the only explanation for the trial court’s statement is that: (1) the court recognized
that defense counsel disagreed with the court’s decisions to the extent the court declined to
give defense counsel’s requested questions that were not duplicative of questions the court
3
Notably, at one point during the pretrial discussion concerning voir dire questions,
defense counsel affirmatively assented to a decision of the trial court that was contrary to
the defense’s initial request: defense counsel agreed with the trial court that one of
counsel’s proposed questions could be reserved for potential follow-up if there was a
positive response to another question.
-7-
did ask; and (2) the court intended to obviate the need for defense counsel to reiterate that
he wanted the trial court to ask the non-duplicative questions.4
Ultimately, however, it should not matter what the Majority believes or what I
believe the trial court was referring to when it spoke of defense counsel having “previously
objected” and told counsel that it would “preserve” such objection(s) “for the record.” In
my view, the only thing that matters is what trial counsel reasonably could have believed
when the court made that statement. Of course, we do not know – and, in the absence of
testimony by trial counsel at a postconviction hearing, we cannot know – what defense
counsel actually believed the trial court was referring to. Nor can we know how defense
4
The Majority notes that the trial court declined to ask Lopez-Villa’s proposed
questions 1, 3, 4, 5, 6, 10, 15, 16, 17, 18, and 19, because the court determined that they
were duplicative of, or otherwise covered by, other questions proposed by the State or
Lopez-Villa that the court had already agreed to ask. See slip op. at 15. The Majority’s
point is that we cannot assume that the trial court’s reference to “what you previously
objected” was tied to questions 2 and 22. But there realistically was nothing else that the
trial court could have been referring to besides questions 2 and 22. It is very doubtful that
the trial court believed there was any remaining disagreement between the court and
defense counsel with respect to any questions that were covered by other questions the
court had agreed to ask. It usually is the case that the prosecution’s and the defense’s
proposed voir dire questions substantially overlap. After the trial court confirms that it will
ask those questions that both parties agree in substance should be asked, it is reasonable
for the trial court to assume (in the absence of express objection) that neither party is
dissatisfied with the court’s chosen formulations of those questions. A different situation
occurs when only one party has requested a question and the court declines to give it. In
that instance, a trial court reasonably may expect that the requesting party will disagree
with the court’s decision. To be sure, under Rule 4-323(c), an unstated expectation or
assumption in the mind of the trial court does not relieve the requesting party of the
obligation to make their position known to the court. However, where, as here, the trial
court indicates awareness of disagreement about a question and further indicates that the
requesting party need not reiterate their request for the question in order to preserve a claim
of error, the requesting party reasonably should be able to rely on the court’s promise of
preservation.
-8-
counsel would have answered the trial court’s inquiry about any “additional” questions
counsel wanted the court to ask, had the court not referred to “what you previously objected
to, which I will preserve for the record.” However, a reasonable defense attorney could
have concluded that the trial court was expressing its understanding that counsel had not
abandoned his position that the court should give questions 2 and 22 as counsel had
proposed them. Put another way, a reasonable defense attorney could have concluded that
the trial court was effectively saying: “I already understand that you want me to ask the
nonduplicative questions as you proposed them; you do not have to tell me that again. Is
there anything else besides those questions that you want me to ask?”
The Majority disagrees, but its analysis is unconvincing. The Majority contends
that, because defense counsel had not stated an objection during the discussion prior to the
start of voir dire, counsel could not reasonably have interpreted the court’s subsequent
“previously objected” comment to mean that the court understood counsel still wanted the
court to ask questions 2 and 22. See Slip op. at 17 n.7. But the Majority cannot get around
the fact that the trial court told defense counsel that it was preserving counsel’s previous
objection(s) for the record. That had to mean something. Knowing that he had not
previously expressly objected, defense counsel reasonably could have interpreted the
court’s comment to refer to something other than an express objection. The Majority does
not offer a satisfactory explanation for why it would be unreasonable for defense counsel
to have interpreted the trial court’s comment as I have stated above. Instead, the Majority
focuses on the trial court’s state of mind, opining that the court “could have reasonably
perceived that, by failing to object or indicate his disagreement, [Lopez-Villa] had
-9-
abandoned [his requests for questions 2 and 22] or ultimately agreed with the court’s
determination that they were unnecessary because the jury would be instructed on the law.”
Slip op. at 14-15. In a case lacking a comment like the one the trial court made here, the
Majority’s point would be well taken. However, we cannot ignore that the trial court
materially altered the circumstances facing defense counsel by indicating that the court
understood counsel to have “previously objected” and assuring counsel that such
objection(s) were “preserved for the record.” Once the trial court made that comment,
defense counsel’s state of mind necessarily came into play, thereby distinguishing this case
from the cases discussed in the Majority Opinion. See slip op. at 10-14. And, as discussed
above, counsel reasonably could conclude that he did not need to reiterate a request to give
questions 2 and 22 in order to make his position known to the trial court. That being the
case, defense counsel’s “No” response following the trial court’s preservation comment,
contrary to the Majority’s conclusion, should not be deemed a waiver of Lopez-Villa’s
right to object regarding questions 2 and 22. Rather, defense counsel reasonably could have
believed that he was answering “No” to whether he wanted the court to ask any questions
besides numbers 2 and 22 and those that were covered in other questions the court did ask.
The fundamental problem with the Majority’s analysis is that it fails to recognize
that a trial judge’s comment concerning preservation can alter defense counsel’s reasonable
expectations of what is required of counsel at that moment in order to effectively preserve
a claim of error. This is especially the case when the trial court and counsel are engaged in
the dynamic and often hectic process of voir dire. The Majority’s position apparently is
that, even if defense counsel reasonably believes, based on the trial court’s comments, that
- 10 -
the court’s adverse decision regarding a voir dire question is preserved for appellate review
without the need for an express objection, counsel must nevertheless make a confirmatory
objection. I do not read Rule 4-323(c) or prior Maryland caselaw as imposing such a
requirement. Nor should we engraft such a requirement onto Rule 4-323(c). If the trial
court makes a statement that leads counsel reasonably to believe that the court is aware of
counsel’s position regarding an unasked question, counsel should not be required on the
fly to consider and address alternative interpretations of the trial court’s statement. Doing
so imposes an unrealistic burden on defense counsel in the midst of jury selection. And
doing so unfairly penalizes those defendants whose attorneys reasonably interpret a trial
court’s comments as indicating the court is aware of defense counsel’s position, but who
do not have the foresight to anticipate that an appellate court may disagree with their
interpretation of the trial court’s remarks.
This case highlights the problem. The Majority concludes that defense counsel
waived a Kazadi claim of error by not telling the judge after the completion of the voir dire
questions that he wanted the judge to ask questions 2 and 22. But imagine that defense
counsel testifies at a postconviction hearing that the reason he did not say he still wanted
the court to ask questions 2 and 22 was that he understood the court to have just told him
that his claim of error with respect to those questions was preserved. Would the
postconviction court find that trial counsel performed deficiently by interpreting the trial
court’s remarks that way and then acting accordingly? That we can imagine a scenario
where a postconviction court would conclude that defense counsel acted reasonably in light
of the trial court’s preservation comment demonstrates the error of the Majority’s approach.
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This Court should not create the opportunity for a defendant like Lopez-Villa to be
whipsawed in this manner.
To be clear, the trial court did nothing wrong in this case. The record reflects that
the court was trying to conduct jury selection efficiently. To that end, the court tried to save
some time by indicating to defense counsel that there was no need to reiterate that he
wanted the court to ask the questions that the court had declined to ask. This was a practical
and efficient way to proceed. We should acknowledge, however, that the trial court’s
statement reasonably could have led defense counsel to answer the court’s question “No,”
whereas, in the absence of the court’s comment, counsel might have answered “Yes” and
gone on to expressly reference questions 2 and 22. For this reason, it is unfair to hold that
Lopez-Villa failed to preserve a claim of error based on Kazadi.
Conclusion
Lopez-Villa has a valid Kazadi claim, but the Majority’s holding concerning
preservation means that he will not obtain relief under Kazadi. The Majority reaches this
conclusion even though defense counsel reasonably could have interpreted the trial court’s
statement at the bench to mean that the court was aware that counsel still wanted the court
to ask questions now required under Kazadi. I would reverse the judgment of the Court of
Special Appeals and remand this case for a new trial that complies with Kazadi.
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