Adkins v. State ( 2023 )

Christian Eric Adkins v. State of Maryland, No. 735, September Term, 2022. Opinion by
Zarnoch, J.
AUTOMOBILES – To convict a defendant for driving with a revoked license, the State
must show that 1) the defendant was driving a motor vehicle, 2) at the time the defendant’s
license had been revoked, and 3) the defendant knew that the license had been revoked.
STATUTORY CONSTRUCTION – Section 16-303(c) of the Transportation Article
(“Transp.”) of the Maryland Code prohibits driving a motor vehicle with a suspended
license and has been interpreted to require knowledge by the defendant that the license was
suspended. Section 16-303(d) prohibits driving on a revoked license and should be
interpreted in pari materia with § 16-303(c).
CRIMINAL LAW – JURY INSTRUCTIONS – HARMLESS ERROR – The circuit
court erred in failing to instruct the jury that knowledge of the revocation was required to
be proven before a defendant could be convicted of Transp. § 16-303(d). However, the
error was harmless because the defendant stipulated that his driver’s license was under
revocation at the time he was driving and that he was properly notified of the revocation.
CRIMINAL LAW – POSTPONEMENT – The court did not abuse its discretion in
denying a motion to postpone. Because the defendant failed to identify what information
he was unable to present due to the court’s denial, he was not prejudiced.
CRIMINAL LAW – JURIES – The defendant waived his argument that a juror was
improperly seated who asserted she would “judge harshly” a case involving “alcoholism,
use of alcohol, or any alcohol driving offenses.”
Circuit Court for Queen Anne’s County
Case No.: C-17-CR-21-000332
REPORTED
IN THE APPELLATE COURT
OF MARYLAND*
No. 735
September Term, 2022
______________________________________
CHRISTIAN ERIC ADKINS
v.
STATE OF MARYLAND
______________________________________
Friedman,
Zic,
Zarnoch, Robert A.
(Senior Judge, Specially Assigned),
JJ.
Pursuant to the Maryland Uniform Electronic Legal Materials ______________________________________
Act (§§ 10-1601 et seq. of the State Government Article) this
document is authentic.
Opinion by Zarnoch, J.
2023-05-24 09:36-04:00
______________________________________
Filed: May 24, 2023
Gregory Hilton, Clerk
*At the November 8, 2022 general election, the voters of Maryland ratified a constitutional
amendment changing the name of the Court of Special Appeals of Maryland to the
Appellate Court of Maryland and the Court of Appeals of Maryland to the Supreme Court
of Maryland. The name change took effect on December 14, 2022.
Appellant, Christian Eric Adkins, was convicted by a jury in the Circuit Court for
Queen Anne’s County of driving while impaired by alcohol, driving without a required
license, and driving on a revoked license. After Appellant was sentenced to an aggregate
term of eight years’ incarceration, he was granted the right to file a belated appeal to this
Court, asking us to address the following questions:
1. Did the lower court err in failing to instruct the jury, as requested,
concerning the mens rea required to convict Mr. Adkins of Driving on a
Revoked License?
2. Did the lower court err in failing to postpone either the trial or
sentencing proceedings?
3. Did the lower court err in failing to strike Juror 9 for cause?
For the following reasons, we shall affirm.
BACKGROUND
Considered in the light most favorable to the prevailing party, on January 3, 2021,
at around 3:50 p.m., Deputy George Betts, a patrol officer from the Queen Anne’s County
Sheriff’s Office, was stationed at the Atlantic Tractor store near 13716 Main Street in the
town of Queen Anne. At around that time, Deputy Betts saw a silver 2016 Nissan Rogue
come to a complete stop near a Royal Farms convenience store, proceed, and then “nearly
run off the roadway[.]” That vehicle then entered a Shell gas station parking lot, circled the
building twice, and then crashed into an unoccupied tractor trailer parked behind another
nearby store, Vanishing Point Race Car.
As he was approaching the scene, Deputy Betts saw an individual running from the
area near the Nissan Rogue towards the tractor trailer. When he got closer to that trailer,
the deputy found Appellant lying face down underneath the tractor trailer. Appellant was
directed to come out, and Deputy Betts immediately smelled a strong odor of an alcoholic
beverage on his breath, and also noticed that he slurred his speech. Asked why he tried to
run, Appellant replied that he had been drinking and he was running from his girlfriend,
who he claimed was nearby. The area was searched for Appellant’s girlfriend and no other
individuals were located near the scene.
Deputy Betts then searched the area where Appellant laid under the trailer and found
keys to the Nissan Rogue, a cellphone, and a phone charger. He then searched the Nissan
Rogue and found two empty mini liquor bottles in the driver’s side door panel and an empty
bottle of vodka in the back seat. Appellant was arrested for driving under the influence of
alcohol and driving while impaired.
Back at the police station, Appellant declined to submit to either field sobriety tests
or a breathalyzer. The Nissan Rogue was not registered to Appellant. Further, and
significant to Appellant’s first issue on appeal, Deputy Betts then learned, and the parties
stipulated, that Appellant’s driver’s license was revoked on the date of the incident, and
that Appellant had been properly notified of that revocation.1
Based on his training, knowledge, and experience, Deputy Betts opined that
Appellant was under the influence of alcoholic beverages. In addition, the parties further
stipulated:
1
The parties stipulated to the following: “Defendant’s license was revoked on June
25, 2014, and that the MVA mailed proper notice on June 10, 2014, February 20, 2018 and
March 16, 2018 and that notice was not returned. Defendant did not have a valid license
on the date of the incident.”
2
On January 9th 2021, Christian Eric Adkins stated on a recorded line at 22
hours, 28 minutes and 52 seconds, when asked if he wrecked the girl’s car,
he states: Yeah, I did it on purpose. I was in one of my escapades, right, a
manic bipolar episode. At 22 hours, 49 minutes and 23 seconds, I go and buy
a couple of drinks. I come back and I get back there and what she do, she
starts acting crazy so I took her car, end up in Queen Anne’s County and I
got a fucking DUI right up by the barns. They can’t charge me for that
because they didn’t even see me get out of the car.
We shall include additional detail in the following discussion.
DISCUSSION
I.
Appellant first contends that the trial court erred in failing to instruct the jury as to
the mens rea required to prove driving on a revoked license. The State responds that any
error was harmless beyond a reasonable doubt because Appellant stipulated that his license
was revoked and that he was notified of this status by the Motor Vehicle Administration.
We agree with the State.
Before trial, Appellant requested the court give certain pattern jury instructions,
including but not limited to driving under the influence of alcohol and driving while
impaired by alcohol or drugs. There was no pretrial written request as to driving on a
revoked license. Thereafter, the State requested a number of jury instructions, including,
pertinent to our discussion, that the court read section 16-303(d) of the Transportation
Article (“Transp.”) of the Maryland Code (1977, 2020 Repl. Vol.) for driving on a revoked
license. Prior to instructions, Appellant argued the court should amend the State’s proposed
instruction by informing the jury that knowledge was an element of driving on a revoked
license, as follows:
3
[DEFENSE COUNSEL]: Thank you, Your Honor. With the jury
instructions, the only addition I would make is to the driving revoked charge.
I’m not sure if the Court’s jury instruction has the element of knowledge, the
mens rea, actual knowledge or wil[l]ful blindness, essentially. Also --
THE COURT: There isn’t a jury instruction. Basically, it’s the law.
[DEFENSE COUNSEL]: Right.
THE COURT: Which says: In order to convict a defendant, the State
must prove that the defendant drove a motor vehicle on a highway or public
use property in this state and that at the time the defendant’s license and
privilege to drive was revoked in the state.
[DEFENSE COUNSEL]: Okay. I would like to add the language
about the mens rea, that he knew that he was driving with a revoked license.
Additionally, the fact that the State also has to show that he had a license at
one point and that’s Sullivan v. State. If you’ve never had a license, you’ve
never had a privilege that can be revoked, even with, you know, fictionally
it is revoked. So it would be driving without a license, if you’ve never had a
license.
[PROSECUTOR]: I don’t think all that comes in. I think the jury
instruction is just the statute.
THE COURT: [Defense Counsel], there is not a specific jury
instruction for driving while revoked. So the Court is using the exact statute.
[DEFENSE COUNSEL]: Okay. Just for the record, I just wanted to
make my objection.
THE COURT: All right.
The court then gave the following instruction:
A person driving a motor vehicle on a highway or public use property
on revoked license and privilege. In order to convict the defendant, the State
must prove that the defendant drove a motor vehicle on a highway or public
use property in the state and that at the time the defendant’s license or
privilege to drive was revoked in this state.
At the end of the jury instructions, Defense Counsel asked to approach the bench
and the following ensued:
4
[DEFENSE COUNSEL]: I’m satisfied subject to the objections that I
made and suggestions that I made for the driving revoked.
THE COURT: Okay.
[DEFENSE COUNSEL]: I just wanted to put that on the record.
THE COURT: So the objection prior that was made about adding
language for the mens rea.
[DEFENSE COUNSEL]: Correct.
THE COURT: Why don’t you make that objection.
[DEFENSE COUNSEL]: The mens rea and that the State has to prove
--
THE COURT: That he has a valid license.
[DEFENSE COUNSEL]: -- that he actually has a license or had one
at some point.
THE COURT: All right. Objection is noted. Thank you.[2]
Maryland Rule 4-325(c) provides: “The court may, and at the request of any party
shall, instruct the jury as to the applicable law and the extent to which the instructions are
binding.” “[T]he decision whether to give a jury instruction ‘is addressed to the sound
discretion of the trial judge,’ unless the refusal amounts to a clear error of law.” Preston v.
State, 444 Md. 67, 82 (2015) (citation omitted). In determining whether a trial court has
abused its discretion we consider whether “(1) the requested instruction is a correct
statement of the law; (2) the requested instruction is applicable under the facts of the case;
2
On appeal, Appellant only maintains his objection that the court should have
instructed the jury that knowledge is required to prove driving on a revoked license.
5
and (3) the content of the requested instruction was not fairly covered elsewhere in the jury
instruction[.]” Ware v. State, 348 Md. 19, 58 (1997).
There is no pattern jury instruction for driving on a revoked license, so the court
read the statute. We have previously held that reading a statute is an acceptable form of
instruction. See Pearlstein v. State, 76 Md. App. 507, 517 (1988) (holding there was no
error when, instead of giving instructions in the form requested by appellant, trial court
read verbatim from the language of the statute (discussing Cardin v. State, 73 Md. App.
200, 219 (1987))); accord Mattingly v. State, 89 Md. App. 187, 193 (1991). However, we
have also cautioned that incomplete or inaccurate instruction may amount to reversible
error. See, e.g., Abbott v. State, 190 Md. App. 595, 644-45 (2010) (vacating appellant’s
conviction where, although court read the applicable statutory provision during
instructions, those instructions were incomplete).
As both parties recognize, although there is no case interpreting the instructional
requirements of Transp. § 16-303(d) for driving on a revoked license, Transp. § 16-303(c),
driving on a suspended license, has been the subject of prior case law.3 Those cases have
concluded that “[k]nowledge is an essential element of driving with a suspended license”
as ‘“[m]ens rea is required for the charge of driving while suspended.”’ Steward v. State,
218 Md. App. 550, 560 (2014) (quoting State v. McCallum, 321 Md. 451, 457 (1991)).
3
Transp. § 16-303(c) provides that “[a] person may not drive a motor vehicle on
any highway or on any property specified in § 21-101.1 of this article while the person’s
license or privilege to drive is suspended in this State.” Section 16-303(d) states that “[a]
person may not drive a motor vehicle on any highway or on any property specified in § 21-
101.1 of this article while the person’s license or privilege to drive is revoked in this State.”
6
In order to prove that an individual had the requisite mens rea at the time of
the offense, the State must present evidence that the defendant either had
actual knowledge that his or her drivers’ license was suspended, or that the
defendant was deliberately ignorant or willfully blind to the suspension.
Id. (citing McCallum, 321 Md. at 458; Rice v. State, 136 Md. App. 593, 604 (2001)).
And:
Actual knowledge exists when a person has “an actual awareness or an actual
belief that a fact exists.” Deliberate ignorance, on the other hand, exists when
a person “believes it is probable that something is a fact but deliberately shuts
his or her eyes or avoids making reasonable inquiry with a conscious purpose
to avoid learning the truth.”
Id. (citations omitted).4
In our view, § 16-303(d) requires an identical interpretation for those driving on a
revoked license. Both prohibitions have existed for more than a century. See Md. Code
(1911), Art. 56, § 139. They were enacted at the same time. And for some 75 years, they
were included in the same sentence. See, e.g., Md. Code (1977), Transportation Article, §
16-303 (“A person may not drive a motor vehicle on any highway in this State while his
license or privilege to drive is refused, canceled, suspended or revoked.”).
They were divided into separate subsections by Chapter 472, Laws of 1986. This
change was apparently authored by the General Assembly’s Code Revision Division and
was clearly non-substantive, as is apparent from the purpose paragraph of the bill’s title:
An ACT concerning
Maryland Vehicle Law Transportation Article Revision
4
In addition, Transp. § 12-114(a) provides that the MVA will provide notice in
either of the following two manners: “(1) [b]y personal delivery to the person to be notified;
or (2) [b]y mail to the person at the address of the person on record with the
Administration.”
7
FOR the purpose of renumbering certain provisions of the Maryland Vehicle
Law Transportation Article; directing the Michie Company renumber
certain cross-references; and making stylistic changes.
Moreover, as appellant cogently observes:
[T]he language of subsections (c) and (d) are verbatim, save for the
substitution of “suspended” for “revoked.” Moreover, the offense of driving
while revoked is no more of a “public welfare” offense than the offense of
driving while suspended. Last, should there be any doubt, the sentences for
each offense are identical. . . .
We agree with appellant and add we can think of no reason why a suspended license should
be treated differently than revocation for purposes of elements of proof. The two provisions
are poster children for the in pari materia doctrine. See Chen v. State, 370 Md. 99, 106
(2002) (“Two statutory provisions concerning the same subject matter are considered to be
in pari materia and must be interpreted accordingly.”); Murphy v. State, 100 Md. App.
131, 135 (1994) (statutes in pari materia must be construed harmoniously). Therefore,
knowledge of the revocation is demanded as part of the proof under § 16-303(d). We are
persuaded that the trial court erred by not instructing the jury that knowledge is a required
element of driving while a person’s license is revoked in this State. Nevertheless, that
conclusion is not the end of our discussion.
An instructional error is subject to harmless error analysis. The United States
Supreme Court has held that “the omission of an element is an error that is subject to
harmless-error analysis.” Neder v. United States, 527 U.S. 1, 15 (1999). And, this Court
has explained Neder as follows:
In applying harmless error analysis in Neder, the Supreme Court
framed the question before it as “whether the record contains evidence that
could rationally lead to a contrary finding with respect to the omitted
8
element.” Id. at 19. If, in answering that question, “a reviewing court
concludes beyond a reasonable doubt that the omitted element was
uncontested and supported by overwhelming evidence, such that the jury
verdict would have been the same absent the error, the erroneous instruction
is properly found to be harmless.” Id. at 17.
Nottingham v. State, 227 Md. App. 592, 611 (2016); see generally Dorsey v. State, 276
Md. 638, 659 (1976) (error will be harmless when reviewing court, upon independent
review, is able to declare a belief beyond a reasonable doubt that there is no reasonable
possibility that the error contributed to the verdict).
With respect to whether Appellant had the requisite mens rea, i.e., the knowledge
that his driver’s license was revoked, that issue was uncontested as he stipulated that his
driver’s license was revoked on the date of the incident, and that he was properly notified,
three times, of that revocation. Moreover, Defense Counsel presented a theory of the case
that a primary reason he ran from the police was because “[h]e was driving without a
license[.]” Under these circumstances, we have no difficulty concluding that the trial
court’s error in failing to instruct as to the mens rea to support the offense was harmless
beyond a reasonable doubt. See Geiger v. State, 235 Md. App. 102, 112 (2017) (“It is in
cases where the facts are hotly contested and where contradictory credibilities clash with
one another that a trial error might readily shift the balance.”).
9
II.
Appellant next asserts trial court error for failing to postpone the trial and
sentencing. We shall address the claims sequentially.5
Trial
Appellant argues the court failed to exercise discretion and this “reflexive” denial
amounted to an abuse of discretion. The State responds that Appellant made no such
argument in the trial court and that the court properly exercised its discretion, especially
given the case history.
Here, Appellant’s case was transferred to the Circuit Court for Queen Anne’s
County when he made a jury demand in the District Court on June 3, 2021. Appellant
moved for a speedy trial under the Sixth Amendment to the United States Constitution on
June 7, 2021 and a jury trial was set for August 20, 2021.6
On August 18, 2021, the State moved to continue the trial because one of the State’s
witnesses was unavailable. Appellant initially objected to this continuance, but then
withdrew that objection. Appellant then filed a consent to postpone the trial date to
5
We note that the charges herein were transferred to the circuit court on June 7,
2021, and the case was tried on September 3, 2021, when Maryland courts were still
operating pursuant to administrative orders related to the Covid-19 pandemic. See
generally Murphy v. Liberty Mut. Ins. Co., 478 Md. 333, 351-63 (2022) (providing
background of changes to court administration during the Covid-19 pandemic);
https://mdcourts.gov/sites/default/files/import/coronavirus/marylandjudiciarycovid19time
line.pdf and https://www.mdcourts.gov/coronavirusorders.
6
Notably, this was well within the 180-day time limit discussed in State v. Hicks,
285 Md. 310 (1979); see also Md. Rule 4-271; Md. Code (2001, 2018 Repl. Vol.), § 6-103
of the Criminal Procedure Article.
10
September 3, 2021, and the trial date was reset accordingly. Attached to the court’s order
changing the trial date was a provision that trial was set for one (1) day and that requests
for further postponements were subject to the case management plan attached to the notice
of jury trial. That plan provided the following procedure:
Change of trial, hearing, or conference dates. A party who desires a
change of the time of any trial, hearing or conference must obtain several
possible alternate times from the Assignment Commissioner and, within 5
days thereafter (i) attempt to secure the agreement of all other parties to one
of those alternate times and (ii) file with the Clerk a written request for
change to one of those alternate times. On its own initiative, or if all parties
are not agreed, the Court may act upon the request. Whether or not the parties
have discussed and/or agreed upon an alternate date, any existing Notice of
Trial, Scheduling Order or Pretrial Order remains in full effect until the
change has been approved in writing by the Court or the Assignment
Commissioner. If a change of date is approved, all instructions or provisions
of the original Notice or Order so modified remain fully applicable to the
new date.
All written requests for a change in date must include a certificate of service
pursuant to Maryland Rule 1-323 and a Notice of exclusion of personal
identifier information per Maryland Rule 1-322.1.
No such request was made until the morning scheduled for Appellant’s jury trial
when the following ensued:
[DEFENSE COUNSEL]: Yes, Your Honor, brief preliminaries. In
speaking with Mr. Adkins, he is just now beginning to work and seeking to
retain private counsel and wanted to ask the Court to postpone this matter to
allow him to obtain private counsel.
THE COURT: Absolutely not, absolutely not. This was set for a jury
trial. We brought in a full panel. Another jury trial was bumped today so that
this one would go forward. We are proceeding today with a jury trial.
[DEFENSE COUNSEL]: Thank you, Your Honor. May we stand
down?
THE COURT: Yes.
11
Sentencing
Appellant also asserts that the court placed “expediency and case management” over
the reasons for his request to postpone sentencing and that this was an abuse of discretion.
The State responds that the court properly exercised its discretion, contending that
Appellant was not prejudiced given that the court was presented with his criminal history
and facts related to mitigation.
After the jury returned its verdict, Defense Counsel asked for a postponement of
sentencing, as follows:
Your Honor, Mr. Adkins asked if we could postpone sentencing. He,
quite frankly, may be getting some time here and he has two children that are
living with him and he needs to make arrangements, ages two and three.
Now, he is -- I can understand the Court’s concern, perhaps, but he is living
at a halfway house. He is living at Grace House, attending their intensive
outpatient program, as well, getting random urinalysis. I do have a letter from
them, if you wish to see it. I’ll be presenting it, also, when I come back -- if
we come back to court for sentencing.
After hearing that the State was ready, the court denied the motion, stating: “Court
is prepared for sentencing today. This case has been hanging out there for some time. I
think it’s time to go ahead and proceed.”
The State then recounted Appellant’s criminal history in open court. That included:
one (1) conviction for driving under the influence per se; five (5) prior convictions for
driving while impaired; two (2) prior convictions for driving while revoked; as well as
prior convictions for trespass, impersonating an officer, and second degree assault. The
State also referred to the sentencing guidelines, noting that the guidelines were five to ten
years under the subsequent offender statute because Appellant had prior DUIs. Because
12
Appellant had a “major record,” with a number of probation violations, the State asked for
a sentence of seven years without any suspended time. In the alternative, the State
requested Appellant be sentenced to ten years, seven to serve.7
In response, Defense Counsel informed the court Appellant was being treated for
his alcohol addiction and was an inpatient for two weeks. He went from that treatment to a
halfway house where he remained as a resident at the time of trial and sentencing. Appellant
attended daily meetings at the halfway house, submitted to urinalysis and attended an
“intensive outpatient program.” He had two children, ages two and three, whom he
provided for by working “some odd jobs here and there when he can get it.” Defense
Counsel asked the court to consider this history of recent treatment and to impose a
suspended sentence.
Appellant then addressed the court and stated: “I’m just growing older, I’m at a good
spot in my life right now. Just trying to get better for me and my kids. That’s it.” He also
admitted that, when this occurred, “I was in a bad alcohol problem back then. That’s when
the other stuff happened, too, but I got let off of that, January 3rd.”
Having heard this, the court sentenced Appellant to an aggregate sentence of eight
(8) years. The court stated, in part:
I’m not going to order probation. He’s been down that road before. Mr.
Adkins, if you’re going to take care of your addictions problem, it is now on
you. The State has attempted many, many times to give the opportunity to
rehabilitate yourself and you’ve chosen not to do so. You’ve continued to
drive and place our citizens at risk[.]
7
The sentencing guidelines are not included with the record on appeal.
13
Merits
“[A]ny circuit court judge may deny a motion to postpone[.]” Howard v. State, 440
Md. 427, 431 (2014). Such a ruling is reviewable on appeal for abuse of discretion. Id. at
441. A trial court abuses its discretion when “no reasonable person would take the view
adopted by” the trial court, “or when the court acts without reference to any guiding rules
or principles.” Kusi v. State, 438 Md. 362, 386 (2014) (quotation marks and citations
omitted). Unless we conclude that the trial court acted arbitrarily, we will reverse only in
“exceptional instances where there was prejudicial error.” Prince v. State, 216 Md. App.
178, 203 (quotation marks and citation omitted), cert. denied, 438 Md. 741 (2014).
Here, the only asserted basis of Appellant’s argument is that the court failed to
exercise any discretion and adhered to a “predetermined notion of how to rule” in denying
his request.8 Assuming arguendo that this claim is even preserved, despite the failure to
raise it in the trial court, see Hartman v. State, 452 Md. 279, 299 (2017) (review of
unpreserved claims is discretionary, not mandatory), generally “[a] failure to exercise
discretion – for whatever reason – is by definition not a proper exercise of discretion.” State
v. Alexander, 467 Md. 600, 620 (2020). However, a “general rule” is not in and of itself a
failure to exercise discretion, but rather ‘“one of the myriad ways in which discretion may
be exercised.”’ Cagle v. State, 462 Md. 67, 75 (2018) (quoting Holland v. State, 122 Md.
App. 532, 547 (1998)). And, “discretion consistently exercised the same way is still
discretion[.]” Id. at 77 (cleaned up).
8
There is no claim under Maryland Rule 4-215.
14
We are not persuaded by Appellant’s argument that the trial court acted reflexively
in denying his belated requests for postponements. Indeed, we conclude that the court did
not apply a blanket policy but considered the circumstances attendant to this case. The
court noted that a jury had been called for and was waiting, while another trial was
“bumped” so Appellant’s could proceed. These factors weighed into the court’s decision
to deny the belated request. As the United States Supreme Court has explained, “[t]rial
judges necessarily require a great deal of latitude in scheduling trials. Not the least of their
problems is that of assembling the witnesses, lawyers, and jurors at the same place at the
same time, and this burden counsels against continuances except for compelling reasons.”
Morris v. Slappy, 461 U.S. 1, 11 (1983).
We are also unpersuaded as to Appellant’s claim with respect to sentencing. See
Kelly v. State, 195 Md. App. 403, 439 (2010) (concluding no abuse of discretion in denying
a postponement of sentencing where “Appellant has failed to identify what information he
was unable to present due to the court’s denial of his request”), cert. denied, 417 Md. 502,
cert. denied, 563 U.S. 947 (2011). This was a relatively straightforward case, with
generally uncontested facts, some of which were supported by stipulation. Appellant’s
criminal history was proffered without objection, and Appellant and his Defense Counsel
both addressed the court on Appellant’s behalf in favor of mitigation. We discern no abuse
of discretion in the court’s denial of the request to postpone sentencing.
III.
Appellant finally avers that the trial court erred in not striking Juror Number 9 for
cause. Conceding that the juror stated she could be fair and impartial after she was asked
15
about her familial relationship with law enforcement, Appellant observes that she was not
asked if she could be fair and impartial after she was then asked about her feelings about
drinking and driving.
The State responds that this issue is not preserved because Defense Counsel:
specifically accepted Juror Number 9 when she was called during individual jury selection;
used all her peremptory challenges and accepted the jury without objection; and, lodged no
objection when Juror Number 9 was appointed to be the foreperson. We concur with the
State.
In voir dire, Juror Number 9 responded affirmatively to the question asking if any
member of the prospective panel had strong feelings about “alcoholism, the use or abuse
of alcohol, or alcohol-related traffic driving offenses?” During individual voir dire, Juror
Number 9 first volunteered that members of her family served in law enforcement in Queen
Anne’s County. The trial court then inquired:
THE COURT: So would your experience being raised in a law
enforcement family affect your ability to listen to the evidence and judge it
fairly and render an impartial and fair verdict?
THE JUROR: I can judge fairly.
Immediately thereafter, and as to the issue raised on appeal, the following
transpired:
THE COURT: All right. You also answered strong feelings about
alcoholism, use of alcohol, or any alcohol driving offenses.
THE JUROR: Yeah, that’s a problem for me. I’m very concerned
about that -- that would be a -- I think I would judge probably harshly in
regards to that because I feel like there’s so many options. I’m a nurse.
16
There’s treatment options out there. You can do something besides put other
people at risk.
THE COURT: All right. We appreciate your honesty and those are all
the questions that you answered.
THE JUROR: Thank you.
At the conclusion of voir dire, Defense Counsel moved to strike Juror Number 9,
and the following ensued:
[DEFENSE COUNSEL]: The second one I had was No. 9, was the
second one. I’m not going through every single one, Your Honor, don’t
worry about that, line by line, but she did say that she would judge harshly
and was very concerned about DUIs. I think that, again, shows that she would
not necessarily be fair and impartial.
THE COURT: I think -- I remember her.
[PROSECUTOR]: She said that she could be fair and impartial.
THE COURT: Yeah, she thought she could. All right. Anybody else
for cause?
There was no claim that the prospective juror was responding to a different question
when asked whether she could be fair and impartial. No further objection was raised as to
Juror Number 9. Indeed, Appellant did not strike Juror Number 9 when the option was
available, and stated that she was “[a]cceptable to defense.” Appellant also did not object
to the selected jury, confirming that the panel was “[a]cceptable to the Defense, Your
Honor.” Moreover, Appellant did not object when Juror Number 9 was named the
foreperson of his jury. Defense Counsel used all four of his allotted peremptory challenges
during jury selection. See Md. Rule 4-313(a) (except as specifically provided by rule, each
party is permitted four peremptory challenges); Md. Code (1974, 2020 Repl. Vol.) § 8-
420(c) of the Courts and Judicial Proceedings Article (same).
17
The Supreme Court of Maryland has made clear that appellate questions concerning
errors in the search for cause for qualification are subject to the rules on waiver. In White
v. State, 300 Md. 719 (1984), cert. denied, 470 U.S. 1062 (1985), the Court ruled that even
if a disqualification for cause is improperly denied, there will not be reversible error if the
accused has not exercised all his allowable peremptory challenges. White, 300 Md. at 728
(citing Parker v. State, 227 Md. 468, 471 (1962)); accord Ware v. State, 360 Md. 650, 665
(2000), cert. denied, 531 U.S. 1115 (2001). Additionally, the general rule is that challenges
with respect to the jury selection process may be waived:
“When a party complains about the exclusion of someone from or the
inclusion of someone in a particular jury, and thereafter states without
qualification that the same jury as ultimately chosen is satisfactory or
acceptable, the party is clearly waiving or abandoning the earlier complaint
about that jury. The party’s final position is directly inconsistent with his or
her earlier complaint.”
State v. Tejada, 419 Md. 149, 169 (2011) (quoting Gilchrist v. State, 340 Md. 606, 618
(1995)); accord White, 300 Md. at 729.
It is true that Juror Number 9 never indicated whether she could be fair and impartial
after informing the court that she would “judge harshly” in a case involving “alcoholism,
use of alcohol, or any alcohol driving offenses.” Although a criminal defendant has a clear
and obvious right to an impartial jury, see Dingle v. State, 361 Md. 1, 14 (2000) (“[T]he
task of the trial judge is to impanel a fair and impartial jury[.]”), not all prospective jurors
are “automatically disqualified simply because the prospective juror responds affirmatively
to the ‘strong feelings’ voir dire question.” Pearson v. State, 437 Md. 350, 364 (2014).
Here, Appellant waived any challenge to the court’s denial of excusing the juror for cause
18
by exercising all his peremptory challenges, announcing that the juror and the final selected
jury were “acceptable,” and even failing to raise any objection when this same juror was
appointed to be the foreperson. As it was waived, we conclude the issue is not preserved
for our review and decline to consider it further.
JUDGMENTS OF THE CIRCUIT
COURT FOR QUEEN ANNE’S
COUNTY AFFIRMED.
COSTS TO BE ASSESSED TO
APPELLANT.
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