Prince v. State ( 2022 )

Radee Labeeb Prince v. State of Maryland, No. 106, September Term, 2021. Opinion by
Nazarian, J.
CRIMINAL LAW – EVIDENCE – AUTHENTICATION AND FOUNDATION –
PHOTOGRAPHS AND VIDEOS
The testimony of a business owner was sufficient to authenticate video surveillance footage
of a shooting at the business because the witness was knowledgeable about how the
cameras functioned and the process of accessing and downloading the footage; the
surveillance footage was taken from only one camera and there was no evidence that the
footage had been edited or compiled before it was obtained by the police.
CRIMINAL LAW – EVIDENCE – WEIGHT AND SUFFICIENCY
The evidence was sufficient to establish that the defendant committed murder, attempted
murder, and a crime of violence with a firearm even though the defendant asserted
imperfect self-defense through witness testimony; it is the jury’s task to assess the
credibility of witnesses and in doing so, they may choose whether or not they believe the
witnesses and accept their testimony.
JURY – COURSE AND CONDUCT OF TRIAL IN GENERAL – EXAMINATION
OF JUROR
The trial court’s denial of counsel’s request that venirepersons answer voir dire questions
while wearing clear face masks or unmasked during the COVID-19 pandemic was not a
violation of the defendant’s right to participate during voir dire because, under these
extraordinary circumstances, masking did not hinder the parties’ ability to evaluate
potential jurors adequately and the court provided sufficient reasoning for denying
counsel’s request.
Circuit Court for Harford County
Case No. 12-K-18-000013
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 106
September Term, 2021
______________________________________
RADEE LABEEB PRINCE
v.
STATE OF MARYLAND
______________________________________
Wells, C.J.,
Nazarian,
Zic,
JJ.
______________________________________
Opinion by Nazarian, J.
______________________________________
Filed: October 26, 2022
* Ripken, Laura S., J., did not participate in the
Pursuant to Maryland Uniform Electronic Legal
Materials Act
Court’s decision to designate this opinion for
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
publication pursuant to Maryland Rule 8-605.1.
2022-10-26 10:48-04:00
Suzanne C. Johnson, Clerk
Radee Labeeb Prince was found guilty and criminally responsible in the Circuit
Court for Harford County for the murder of three people, the attempted murder of two
others, and for committing a crime with a firearm. There is no dispute that he committed
the shootings. At trial, he asserted imperfect self-defense and argued that he subjectively
believed he was in imminent danger of bodily harm when he shot his victims. In this appeal,
Mr. Prince challenges the trial court’s decision to admit surveillance footage of the
shooting, its determination that there was legally sufficient evidence to uphold Mr. Prince’s
convictions, and its denial of defense counsel’s request that potential jurors answer voir
dire questions while unmasked or wearing clear face masks. We affirm the judgments of
the circuit court.
I. BACKGROUND
On the morning of October 18, 2017, Mr. Prince went to work at Advanced Granite
Solutions (“AGS”), a company that manufactures and installs countertops. He worked there
as a machine operator. Testimony from two victims and surveillance footage revealed that
inside the shop, Mr. Prince summoned five co-workers to come closer, then he shot each
of them. Three victims died from gunshot wounds: Bayarsaikhan Tudev, Enis Mrvoljak,
and Oscar Hidalgo. Two other victims, Enoc Sosa and Roberto Gillen, survived the attack
and testified during Mr. Prince’s trial.
Mr. Sosa testified that on October 18, 2017, Mr. Prince “call[ed] all [his] friends to
tell [them] to come close,” then started shooting. Mr. Gillen provided similar testimony.
Mr. Prince then left AGS and drove to Delaware, where he planned on confronting Jason
Baul, a former friend who Mr. Prince alleges was behind an attack on Mr. Prince in 2014.
In Delaware, Mr. Prince shot Mr. Baul.1 Ultimately, police arrested Mr. Prince while he
was walking through a neighborhood in Delaware.
Mr. Prince admitted to shooting all five people at AGS but maintained that he “shot
the people that [he] felt [were] an immediate threat to [him].” He testified at trial that on
the morning of the shooting, he heard Mr. Hidalgo say on the phone that “we’re going to
beat this puto2 n**** up.” In addition to hearing this statement, Mr. Prince testified that his
co-workers were “throwing things on the ground” and “banging on poles,” which together,
made him feel like he was about to be attacked. He explained that he asked his co-workers
to gather to “see how [they] could coexist” and how they “could get through the day.” But
Mr. Prince testified that he then perceived a “threatening motion” from Mr. Gillen, felt
threatened, and started firing his gun.
Mr. Prince’s experiences and conditions leading up to the shooting also provide
context for the shooting and the issues on appeal. In February 2014, Mr. Prince was
assaulted and suffered a large laceration on his face, a laceration on his finger, internal
injuries, and an injured back. He testified that he suffers from “emotional problems”
because of the attack. Mr. Prince’s girlfriend, Lakendra Harris, testified that after the
attack, she saw significant changes in his behavior. According to Ms. Harris, Mr. Prince
became “extremely paranoid” that “someone was trying to kill him.” She also testified that
Mr. Prince stopped eating and sleeping and would constantly guard the house. Mr. Prince
1
Because Mr. Baul was shot in Delaware, Mr. Prince was prosecuted there in
connection with that incident.
2
“Puto” is an expletive in the Spanish language.
2
testified that he often felt as if he was being followed or that he was about to be attacked
again. Dr. David Williamson, a forensic psychiatrist who evaluated Mr. Prince on several
occasions, testified that Mr. Prince suffered from major depression with psychotic features
or symptoms and that he exhibited symptoms of post-traumatic stress disorder. Dr.
Williamson also found that as a result of the attack in 2014, Mr. Prince had a “moderate
traumatic brain injury to the frontal lobe,” the part of the brain responsible for regulating
emotion and aggression. Dr. Williamson concluded “to a reasonable degree of medical or
psychiatric certainty” that Mr. Prince suffered from these mental disorders at the time of
the shooting.
The proceedings in this case were bifurcated. A jury trial on guilt was held from
October 13-27, and on October 28, the jury found Mr. Prince guilty on all counts. From
October 28 to November 2, the jury considered Mr. Prince’s criminal responsibility and
found him criminally responsible on all counts.
Mr. Prince filed a motion for new trial on November 16, 2020 and supplemented
that motion on February 18, 2021. On March 1, 2021, the circuit court denied the motion.
The court sentenced Mr. Prince on March 19, 2021 and Mr. Prince filed a timely notice of
appeal.
II. DISCUSSION
This appeal presents three issues: (1) whether surveillance footage recovered from
AGS was admitted improperly; (2) whether the evidence was legally sufficient to support
Mr. Prince’s convictions; and (3) whether the trial court erred in denying defense counsel’s
request that the venire either be provided clear face masks or answer questions unmasked
3
during voir dire.3 We hold that the surveillance footage was admitted properly, that the
evidence was sufficient to support Mr. Prince’s convictions, and that the trial court
exercised its discretion properly when it denied defense counsel’s request that
venirepersons wear clear face masks or remain unmasked during voir dire.
A. The Circuit Court Did Not Err In Admitting The Surveillance
Videotape Of The Shooting.
Mr. Prince argues that the surveillance video from AGS was not authenticated
properly before the court admitted it into evidence. He objected initially to the admission
of the surveillance footage after the State elicited testimony from Ibrahim Kucuk, the
owner of AGS, about how he provided police with the surveillance video and whether he
recognized the copy shown to the police as Exhibit No. 1. At that point, the court instructed
the State to lay more foundation for the footage before it could be admitted into evidence.
3
Mr. Prince phrased his Questions Presented in his brief as follows:
1. Did the trial court err in admitting surveillance video
without proper authentication?
2. Was the evidence legally sufficient to support Appellant’s
convictions?
3. Did the trial court err in denying Appellant’s request that
the jury venire wear transparent face masks during voir
dire?
The State phrased its Questions Presented as follows:
1. Did the trial court properly exercise its discretion in
admitting video footage of the mass shooting?
2. Was there sufficient evidence to support Prince’s
convictions?
3. Did the trial court properly exercise its discretion in
denying [Mr.] Prince’s request that the venirepersons wear
clear face coverings during voir dire and jury selection?
4
In response to more questions, Mr. Kucuk stated that the video equipment was located in
his office and that he, his business partner, and a “technical person in charge of the cameras
and making sure they are working and connected” were the “caretaker[s]” of the video. Mr.
Kucuk also testified that the cameras were used on a daily basis. Defense counsel objected
again on grounds that adequate foundation had not been laid, citing Washington v. State,
406 Md. 642 (2008). Again, the court found that sufficient foundation had not been laid
and ruled that the State needed foundation for how the equipment worked and captured
images. So, the State asked Mr. Kucuk a series of additional questions about the equipment,
how it worked, and how he had retrieved the video:
[THE STATE]: Mr. Kucuk, you indicated the video equipment
is in your office. How does that video equipment work? Can
you explain it to the ladies and gentlemen of the jury?
[MR. KUCUK]: Yes. We did—we have DVR and the recorder
in my office in unit 2 and it’s wired all around the building with
video wires and cameras are located in each unit.
[THE STATE]: Now, does someone have to physically turn the
video equipment on or is it constantly running?
[MR. KUCUK]: It’s constantly running.
[THE STATE]: And you indicated that you have a DVR and
video equipment in your office. Does that automatically record
what’s captured on the cameras?
[MR. KUCUK]: Yes. It automatically records.
[THE STATE]: And then in order for you to access that video,
how is that done?
[MR. KUCUK]: I would need to go in my office or I turn on
my cell phone and I could access from my cell phone. . . .
[THE STATE]: And on October 18th of 2017, when the police
5
were at your shop did you physically download the video for
the officer?
[MR. KUCUK]: I went into the office and physically showed
them how to access the video and the past of it.
[THE STATE]: And did you stay in the office while the
officers did that?
[MR. KUCUK]: Yes, I did.
[THE STATE]: And did you see them take a recording of it
and did you watch any of that that they took?
[MR. KUCUK]: I watched the video.
[THE STATE]: And what I’ve shown you in State’s Exhibit
No. 1, although a portion of it, is that the video that you
provided to the police on October 18th of 2017?
[MR. KUCUK]: That’s the video.
***
[THE STATE]: Has that video been changed in any way based
on what you have seen?
[MR. KUCUK]: No. It couldn’t be.
The defense continued to object to the video’s foundation, but the court overruled the
objection and admitted the surveillance video into evidence.
In this Court, Mr. Prince argues that none of the foundational elements for
authentication were present. He argues that “[e]ven the minimal information the court itself
stated was a prerequisite for admissibility was lacking” and that “the only information
about how the video got into the hands of the police was [Mr.] Kucuk’s testimony that he
‘physically showed them how to access’ the equipment.” He lists a series of “foundational
elements” that, he asserts, were missing from the testimony, including “the method used
6
by police to access the video, the equipment used to access the video, . . . the general
reliability of the surveillance systems, their maintenance history” and so on. And the error
in admitting the video wasn’t harmless, he contends, because portions of the video were
played several times for the jury and the State “relied heavily” on the surveillance footage
during closing arguments.
The State responds that the surveillance footage was authenticated properly since
Mr. Kucuk was “an owner of AGS and the business’s records custodian.” Citing the “silent
witness” theory of authentication, the State argues that the footage was authenticated
properly because “[Mr.] Kucuk testified to the general reliability of the recording system,
the accuracy of the exhibit, and the equipment that was used to produce it.” Though the
State didn’t elicit testimony about the reliability of the recording system and the equipment
used to produce the video, we find nevertheless that the State laid a foundation sufficient
to authenticate the surveillance footage.
This Court must determine whether the trial court abused its discretion in finding
that the surveillance footage was properly authenticated before admitting it into evidence.
Donati v. State, 215 Md. App. 686, 708 (2011). A trial court abuses its discretion when “no
reasonable person would take the view adopted by the trial court,” or when the ruling is
“clearly against the logic and effect of facts and inferences before the court.” King v. State,
407 Md. 682, 697 (2009) (cleaned up).
Under Maryland Rule 5-901, “[t]he requirement of authentication or identification
as a condition precedent to admissibility is satisfied by evidence sufficient to support a
finding that the matter in question is what its proponent claims.” Because photos and videos
7
can be manipulated, “[c]ourts . . . require authentication of photographs, movies, or
videotapes as a preliminary fact determination, requiring the presentation of evidence
sufficient to show that the evidence sought to be admitted is genuine.” Washington, 406
Md. at 651–52. The admissibility requirements for videotapes are the same as the
requirements for photographs. Id. at 651. Photographs and videotapes may be authenticated
either of two ways: through the pictorial testimony theory of authentication or the “silent
witness” theory of authentication. On the one hand, “the pictorial testimony theory of
authentication allows photographic evidence to be authenticated through the testimony of
a witness with personal knowledge”; on the other, the “silent witness” theory “authenticates
a photograph as a mute or silent independent photographic witness because the photograph
speaks with its own probative effect.” Id. at 652 (cleaned up). Under the “silent witness”
theory, then, a party can authenticate video evidence through “presentation of evidence
describing a process or system that produces an accurate result.” Id. Maryland courts have
not adopted “‘any rigid, fixed foundational requirements’ for admission of evidence under
the ‘silent witness’ theory” of authentication. Jackson v. State, 460 Md. 107, 117 (2018)
(quoting Dep’t of Pub. Safety & Corr. Servs. v. Cole, 342 Md. 12, 26 (1996)).
In this case, the State established that Mr. Kucuk was one of the “caretaker[s]” of
the surveillance footage. Mr. Kucuk testified that the cameras were used on a daily basis
and that they automatically recorded what they captured. He explained that the cameras
did not need to be turned on and that they were running constantly; he was able to access
the live feed from the cameras on his cellphone but needed to be in his office to access
recorded footage. Although Mr. Kucuk did not access and download the recorded footage
8
for the police himself, he knew the process and was able to show the officers how to do it
while he was present. Mr. Kucuk also watched the video that the police officers
downloaded and was able to identify State’s Exhibit No. 1 as the same surveillance footage.
Moreover, there was no evidence that the cameras were not working properly or that the
video had been altered. The State’s foundation authenticated the surveillance footage
sufficiently before it was admitted into evidence.
Mr. Prince relies heavily on Washington v. State in arguing that the State’s
foundation was insufficient. In Washington, the State introduced surveillance footage of a
shooting that occurred outside of a bar during the direct examination of the bar’s owner,
Mr. Kim. 406 Md. at 646. The footage was “compiled from the various cameras and was
transferred to a VHS tape” by a technician, a process unknown to Mr. Kim. Id. The State
relied on the “silent witness” theory of authentication and the trial court admitted the tape
into evidence over defense counsel’s objection. Id. at 646–47. The Court of Appeals held
that there was insufficient foundation as to “the process used, the manner of operation of
the cameras, the reliability or authenticity of the images, or the chain of custody of the
pictures.” Id. at 655. Because the recording was “made from eight surveillance cameras,
was created by some unknown person, who through some unknown process, compiled
images from the various cameras to a CD,” the Court held that the foundation was
insufficient. Id.But unlike Mr. Kim in Washington, Mr. Kucuk knew the process by which the
police could obtain the video. The circuit court found, and we agree, that Mr. Kucuk was
knowledgeable about the process of obtaining the surveillance footage and provided
9
sufficient foundation to admit the footage. The surveillance video admitted in this case
consisted of footage from the viewpoint of one camera; although the system involved 16
cameras, there is no evidence that the footage was “compiled from the various cameras.”
Compare id. at 646. The surveillance footage here took the form of a “simple videotape”
and required a less detailed foundation than the more complicated footage at issue in
Washington. Id. at 655. Given that “[t]he threshold of admissibility is . . . slight,” Jackson,
460 Md. at 116, and that the tape did not undergo any editing before being viewed by the
police and used during trial, we find that the State laid a sufficient foundation and that the
court did not abuse its discretion in admitting the surveillance tape into evidence.
B. There Was Legally Sufficient Evidence To Support Mr. Prince’s
Convictions.
At the close of the State’s case, Mr. Prince moved for judgment of acquittal on all
counts. The court denied the motion. The defense renewed the motion at the close of
evidence and the court denied it again. On appeal, Mr. Prince argues that the evidence was
insufficient to support his convictions because Mr. Prince offered evidence that he acted in
self-defense. As he put it in his brief, “[w]hen a defendant offers some evidence that he
acted in self-defense or defense of others—whether it be perfect or imperfect—the burden
shifts to the State to prove beyond a reasonable doubt that the defendant did not do so.”
Mr. Prince contends that the 2014 assault resulting in his mental disorders, the “incessant
harassment by his co-workers,” the sudden movement he perceived as an imminent threat
before firing the gun, and the expert witness testimony that Mr. Prince’s mental health
condition was consistent with his claim of self-defense all demonstrated that “[Mr. Prince]
10
actually and honestly believed he was in mortal danger when he shot the victims.” The
evidence was legally insufficient to support the convictions of murder, attempted murder,
and use of a firearm in the commission of a crime of violence, Mr. Prince argues, because
the State did not meet its burden of proving that he didn’t act in self-defense.
In response, the State argued that the evidence was legally sufficient to support the
convictions. There was no dispute that Mr. Prince brought a pistol to work, and that the
surveillance footage showed him summoning his co-workers to come closer, then shooting
them. Mr. Prince admitted to writing to his girlfriend, “If I don’t make it home, please
know that I tried.” As for Mr. Prince’s self-defense claim, the State contends that “the jury
did not need to credit any part of [Mr.] Prince’s testimony or evidence that supported his
view of the facts.” According to the State, the jury could have found that Mr. Prince’s
testimony wasn’t credible and in favor of the “evidence supporting findings that [Mr.]
Prince pre-planned the shooting and was the sole aggressor.”
When reviewing the sufficiency of evidence to support a criminal conviction, the
critical inquiry is “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” State v. Smith, 374 Md. 527, 533 (2003) (emphasis added).
“[C]ircumstantial evidence alone can provide a sufficient basis upon which a trier of fact
can rest its determination of guilt . . . .” Pinkney v. State, 151 Md. App. 311, 329 (2003).
Due to the fact-finder’s unique position in observing the testimony and credibility of the
witnesses in real-time, we won’t “re-weigh the credibility of witnesses or attempt to resolve
any conflicts in the evidence.” Tracy v. State, 423 Md. 1, 12 (2011). Instead, “[w]e defer
11
to the jury’s inferences and determine whether they are supported by the evidence.” Smith
v. State, 415 Md. 174, 185 (2010).
Mr. Prince was convicted of murder, attempted murder, and commission of a crime
of violence with a firearm, so we’ll examine each in turn.4
1. Murder and attempted murder
To sustain a conviction of first-degree murder, the State had to prove that the killing
was “deliberate, premeditated, and willful . . . .” Md. Code (2002, 2021 Repl. Vol.), § 2-201
of the Criminal Law Article. The Court of Appeals in Tichnell v. State defined “deliberate,
premeditated, and willful” succinctly:
For a killing to be “willful” there must be a specific purpose
and intent to kill; to be “deliberate” there must be a full
conscious knowledge of the purpose to kill; and to be
“premeditated” the design to kill must have preceded the
killing by an appreciable length of time, that is, time enough to
be deliberate.
287 Md. 695, 717 (1980). Mr. Prince was also convicted of attempted first-degree murder,
which consists of “the intent to commit the offense and some overt act towards its
commission.” Bruce v. State, 317 Md. 642, 646 (1989).
Among the evidence presented at trial, the State produced surveillance footage and
eyewitness testimony showing Mr. Prince summoning five of his co-workers to come
closer, pulling out a handgun, and shooting each of them. The State also produced evidence
that the gun used by Mr. Prince in this shooting was found later in Delaware, where Mr.
4
Mr. Prince was also convicted of possession of a regulated firearm after being
convicted of a disqualifying crime, but he isn’t challenging that conviction here.
12
Prince traveled, completed another shooting, and ultimately was arrested. The record
revealed that after the shooting, police found a note written by Mr. Prince in his home that
read: “If I don’t make it home, please know that I tried.” The jury readily could have
concluded beyond a reasonable doubt that Mr. Prince brought a gun to work and shot his
victims willfully and deliberately, with the purpose of killing them, and that he killed three
of them and wounded the other two.
2. Commission of a crime of violence with a firearm
“A person may not use a firearm in the commission of a crime of violence,” and the
list of crimes includes, among others, first- and second-degree murder. CR § 4-204(b); see
Md. Code (2003, 2018 Repl. Vol.), § 5-101(c) of the Public Safety Article (defining “crime
of violence”). Because there was legally sufficient evidence for a jury to find that Mr.
Prince committed first-degree murder with a firearm, there is sufficient evidence on the
record to uphold a conviction for committing that same crime of violence with a firearm.
3. Self-defense
Mr. Prince contends that because he produced evidence that his conduct qualified
as imperfect self-defense, the State failed to meet its burden to prove that Mr. Prince didn’t
act in self-defense, and thus, that the evidence is insufficient to support his convictions. We
disagree.
Maryland law recognizes two forms of self-defense: perfect and imperfect. Porter
v. State, 455 Md. 220, 234 (2017). Perfect self-defense requires an objectively reasonable
13
belief that the accused faced imminent or immediate danger of death or serious bodily
harm:
(1) The accused must have had reasonable grounds to believe
himself in apparent imminent or immediate danger of death
or serious bodily harm from his assailant or potential
assailant;
(2) The accused must have in fact believed himself in this
danger;
(3) The accused claiming the right of self-defense must not
have been the aggressor or provoked the conflict; and
(4) The force used must have not been unreasonable and
excessive, that is, the force must not have been more force
than the exigency demanded.
Id. at 234–35 (quoting State v. Smullen, 380 Md. 233, 252 (2004)).
There are three key differences between perfect self-defense and imperfect self-
defense. First, for an imperfect self-defense, the defendant need “only show that he actually
believed that he was in danger, even if that belief was unreasonable.” Id. at 235. Next, the
defendant is required only to prove that “he actually believed the amount of forced used
was necessary,” and his belief doesn’t have to be reasonable. Id. Finally, “a defendant must
have only ‘subjectively believe[d] that retreat was not safe’—that belief need not be
reasonable.” Id. (quoting Burch v. State, 346 Md. 253, 284 (1997)). Imperfect self-defense
is not a complete defense against criminal charges, though—an imperfect defense negates
the malice requirement and mitigates murder to voluntary manslaughter. State v. Faulkner,
301 Md. 482, 486 (1984).
In this case, Mr. Prince relied on his own testimony and expert witness testimony
from Dr. David Williamson to provide “some” evidence of an imperfect self-defense, and
14
that evidence was sufficient to submit the issue to the jury. See Porter, 455 Md. at 240
(“[T]he defendant has the burden of initially producing ‘some evidence’ on the issue of
mitigation or self-defense” before the jury can receive an instruction on the elements of
self-defense) (cleaned up). But it is up to the jury, not the court, to determine whether they
believe the witnesses. See Calloway v. State, 414 Md. 616, 635 (2010) (the jury, as the trier
of fact, is responsible for “resolving credibility issues”); Dawson v. State, 329 Md. 275,
281 (1993) (“[I]t is the jury’s task, not the court’s, to measure the weight of evidence and
to judge the credibility of witnesses.”). And on this record, Mr. Prince’s sufficiency
argument “amount[s] to nothing more than taking issue with the weight and credibility
determinations made by the jury.” Correll v. State, 215 Md. App. 483, 501–02 (2013). The
jury, the fact-finder tasked with determining the credibility of witness testimony at trial,
was free to believe Mr. Prince and his witnesses or not, and if they didn’t, his imperfect
self-defense claim necessarily would fail. On this record, the evidence before the circuit
court was legally sufficient to support his convictions and the jury’s rejection of his self-
defense theory.
C. The Trial Court Did Not Err In Denying Defense Counsel’s
Request That The Venire Be Provided Clear Face Masks Or
Answer Questions Unmasked During Voir Dire.
At the time of jury selection and trial in this case, everyone in Maryland’s
courthouses was required to wear face masks to prevent the contraction and transmission
of COVID-19. See Second Administrative Order Clarifying COVID-19 Health Measures
15
in Courthouses and Judicial Branch Facilities (Md. Ct. App. Oct. 2, 2020).5 During jury
selection, Mr. Prince asked the trial court to require prospective jurors either to wear a clear
mask or to answer voir dire questions unmasked. Defense counsel objected to the court’s
direction that potential jurors keep their face masks on during voir dire:
Well, the defense does have an objection when we are unable
to see fifty percent of an individual’s face. With the
understanding that we are in the pandemic and I know that
there are some measures to prevent the spread of the
coronavirus, but studies have shown that 55 percent of
communication is non-verbal. The defense cannot see in
essence 55 percent of an individual’s face. So, the defense is
not receiving greater than half of the communication.
The defense would like to note an objection to any [venire]
person actually wearing a mask. If they have a clear [mask on],
we have no problem with that.
In overruling defense counsel’s request, the court reasoned that the parties would be able
to see the eyes and expressions of potential jurors and to assess potential biases:
While I understand your desire to have the jurors remove their
mask and I have contemplated that that would occur, an
Administrative Order was issued most recently by Chief Judge
Barbera and that Administrative Order is very clear that masks
had to be worn at all times and that the only time that masks
could be removed, even in the proceedings, and if the juror had
a personal shield or a clear facemask. It is impossible for the
Court to accommodate every single juror with their facemask
or a personal shield. So, that can’t happen here. Because of that
Administrative Order, I cannot direct a juror to lower their
mask.
Now, I know you indicated 55 percent is body language. I don’t
5
This administrative order is available at: https://mdcourts.gov/sites/default/files/
admin-orders-archive/20201002secondorderclarifyingCOVID19healthmeasuresincour
thousesandjudicialbranchfacilities.pdf (last visited October 20, 2022), archived at
https://perma.cc/3LM8-XYZD.
16
know what study that is.6 What I do know is to determine
whether an individual is biased or disqualified from jury
service it is what the juror says pertaining to the questions.
While I recognize that sometimes body language may dictate
some hesitation, often times it is the body language and not
necessarily a facial expression. I believe that we will be able to
see the eyes of the jurors and from part of their nose up and
that you will be able to gauge whether or not their responses
would suggest that they have a bias and should be disqualified.
So, while I recognize that you’re noting the objection, I am
working in accordance with what has been directed to me.
Mr. Prince argues here that “the trial court denied him vital information in selecting
the jurors who would serve on his panel” in violation of his Sixth Amendment right to be
present and participate in voir dire. The State counters that the masks didn’t prevent Mr.
Prince from evaluating potential jurors and that the trial court exercised its discretion
properly when it denied the defense’s request.
We must determine whether the trial court abused its discretion during voir dire
when it denied defense counsel’s request to provide all venirepersons with clear face
masks. Collins v. State, 452 Md. 614, 623 (2017). A criminal defendant has the right to
participate in voir dire. See U.S. CONST. amend. VI; Md. Decl. of Rts., art. 21; Md. Rule
4-231; Bedford v. State, 317 Md. 659, 670 (1989). This right includes not only the right “to
be present during voir dire, but also to have adequate opportunity to gain a good perception
of the potential jurors.” Id. at 673. Because there are no specific instructions for how voir
6
Defense counsel later explained that the study was from the American Bar
Association.
17
dire must be conducted, “the nature and extent of the procedure lies solely within the sound
discretion of the trial judge.” Id. at 670.
The cases cited by Mr. Prince all highlight, correctly, the importance of ensuring
that a defendant has an adequate opportunity to examine potential jurors before they are
selected. See id. at 673 (Defendants “should be given the opportunity to read the faces of
his jurors” and “be afforded every opportunity to ‘size up’ his jury . . . so as to assist counsel
in determining which jurors should be disqualified for cause or even for no cause at all.”);
State v. Yancey, 442 Md. 616, 625 (2015) (“[A] defendant has the right to be physically
present during all critical stages of trial, including at voir dire proceedings, which includes
the substantial right of the prisoner to be brought face to face with the jurors at the time
when the challenges are made.”) (cleaned up); Lewis v. United States, 146 U.S. 370, 376
(1892) (emphasizing the importance of being “sensible [to] sudden impressions and
unaccountable prejudices we are apt to conceive upon the bare looks and gestures of
another” when selecting a jury). All the same, we don’t read the words “face-to-face”
literally to require the court to conduct voir dire with unmasked faces (and, more to the
point, noses and mouths) during a global pandemic. The phrases “face-to-face” and “read
the faces of his jurors” reinforce the basic requirement that the defendant must be able to
see and hear potential jurors when they answer questions, not to impart constitutional
significance to the ability to view a potential juror’s entire face. Although we acknowledge
that an individual’s facial expressions play a role in nonverbal communication, it was not
unreasonable for the court to observe the constraints posed by the COVID-19 pandemic
and the paramount importance of public health and safety.
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Nor does Mr. Prince argue, or the record in any way suggest, that he in fact was
denied an opportunity to see, hear, and evaluate the potential biases of members of the
panel during jury selection. The only issue defense counsel raised was that the potential
jurors would be masked while answering questions, but they were masked for all parties
and the court, and the marginal diminution of everyone’s ability to see the lower halves of
the potential jurors’ faces didn’t affect the answers they gave or the court’s ability to
evaluate and rule on motions to exclude them. The trial judge gave an “articulated and
legally sufficient reason” for overruling defense counsel’s objection to potential jurors
wearing opaque masks during voir dire, and we find that the court, under the extraordinary
public health circumstances, did not abuse its discretion by observing the Judiciary’s
COVID protocols during jury selection in this case. Bedford, 317 Md. at 375.
JUDGMENTS OF THE CIRCUIT COURT
FOR HARFORD COUNTY AFFIRMED.
APPELLANT TO PAY COSTS.
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