Opinion
No. 2087
02-04-2021
MASHOUR E. HOWLING v. STATE OF MARYLAND
Circuit Court for Montgomery County
Case No. 135898C
UNREPORTED
Fader, C.J., Beachley, Wilner, Alan M. (Senior Judge, Specially Assigned), JJ. Opinion by Beachley, J. *This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.
A jury in the Circuit Court for Montgomery County convicted appellant, Mashour Howling, of possession of a firearm by a prohibited person, possession of ammunition by a prohibited person, and transporting a loaded handgun in a vehicle. After the trial court sentenced him to a suspended term of nine years' imprisonment, Howling filed a timely notice of appeal.
Howling presents the following questions for our review:
1. Did the circuit court err by declining to give defense counsel's proposed instructions on the offenses of illegal possession of a firearm and illegal possession of ammunition?For the reasons that follow, we affirm the judgments of the trial court.
2. Did the circuit court err by denying defense counsel's request to ask a version of a voir dire question that would not be in compound form?
3. Did the circuit court commit plain error by asking several other compound questions during voir dire?
FACTS AND LEGAL PROCEEDINGS
On March 20, 2019, Maryland Park Police Corporal Brian Rumsey was on his lunch break at a shopping center on Layhill Road, Montgomery County, when he observed two men who caught his attention because they appeared to be "checking their surroundings, constantly looking around," without any apparent purpose. One of the men walked to a vehicle with what appeared to be a beer in a bag in his hand, stood behind the vehicle, and looked back toward the liquor store in the shopping center.
Neither of the men was Howling. They were later identified as John Gordon and Michael Brandon.
Worried that "something [was] not right," Corporal Rumsey entered the liquor store, where he observed the second man at the counter buying beer and a cigar. As he approached the man, Corporal Rumsey smelled the odor of marijuana coming from his person. Corporal Rumsey watched the man leave the liquor store and join the first man; the two men then crossed Layhill Road together and entered the passenger side of a parked Dodge Ram pickup truck.
Corporal Rumsey flagged down a marked Montgomery County Police Department cruiser and explained his observations to Officer Sean McKinney, who approached the pickup truck. The passenger door was open, and one of the men was outside the vehicle. As Officer McKinney approached, he smelled a "strong odor of marijuana" emanating from the vehicle and/or its passengers. When the man outside the vehicle looked over his shoulder and saw Officer McKinney, he "made a series of movements towards the inside of [the] vehicle." The man told Officer McKinney that his friend, later identified as Howling, was getting a haircut and that he and the second man were waiting for him.
The encounter was captured on Officer McKinney's body-worn camera, and the recording was admitted into evidence.
The pickup truck was eventually searched, yielding a rental agreement in Howling's name, a loaded Glock semiautomatic handgun, two magazines, and approximately $4,000 in cash. Two officers then located Howling in the barbershop and arrested him.
The parties stipulated that the gun was operable.
During a recorded interview with the police, Howling explained that he lives in Pennsylvania, but that his mother has lived in Montgomery County since he was a child. He explained that he was in the area for a doctor's appointment, and his friends "just wanted to ride down with [him]." Howling said he did not realize the gun, which was legally registered to him in Pennsylvania, was in the truck "until on the way down" and that the money was for "stuff he had to pick up for work. Howling acknowledged that he had been convicted of assault while attending college in Pennsylvania, which the officer explained prohibited him from possessing a firearm in Maryland, but he claimed he did not intentionally bring the gun into the State.
The parties stipulated that Howling had been convicted of simple assault in Pennsylvania in 2002.
DISCUSSION
I. Jury Instructions
Howling first contends that the trial court erred as a matter of law when it declined to propound his proposed jury instructions relating to the charges of illegal possession of a firearm and illegal possession of ammunition, and instead gave applicable pattern jury instructions. He maintains that, in light of the United States Supreme Court's recent decision in Rehaif v. United States, ___ U.S. ___,139 S. Ct. 2191 (2019), his requested instructions properly identified a scienter element of the charged crimes and should have been given to the jury.
At the close of the State's case-in-chief, defense counsel moved for judgment of acquittal on the charges of illegal possession of the firearm and ammunition on the ground that Howling was unaware that he could not legally possess either in Maryland. The court denied the motion, ruling that "[w]ith respect to the argument of scienter of knowledge about the gun laws in Maryland, the statute that prohibits [ ] certain persons from having a firearm is a strict liability offense. It does not require that intent be proven."
After declining to present evidence, Howling renewed his motion for judgment of acquittal, citing Rehaif for the proposition that, as a Pennsylvania resident who was convicted of assault in Pennsylvania, the burden was on the State to show that he should have known of the status that would make him a person prohibited from possessing a firearm in Maryland. Defense counsel analogized Howling's case with the facts in Rehaif, in which the United States Supreme Court held that the government must show that the defendant knowingly possessed a firearm and that he knew he belonged to a group whose status would make him a person prohibited from possessing a firearm in the United States. See id. at 2194. Counsel explained that, if the court were to deny the motion for judgment of acquittal, she would request proposed jury instructions "that add essentially the element that says the Government must prove [that] he knew that he was a prohibited person based on his conviction" in Pennsylvania.
Howling moved to supplement the appellate record with defense counsel's proposed jury instructions containing the requested language, but this Court denied his motion on the ground that the written instructions he sought to add to the record were "never actually presented to the trial court, except insofar as they were described or referred to verbally, which is reflected in the transcript. As a result, they were not before the trial court and are not properly made part of the appellate record."
The prosecutor countered that Rehaif involved federal law. In light of what she considered to be a "very clear" pattern jury instruction on the charged crimes, Maryland Pattern Jury Instruction-Criminal ("MPJI-Cr") 4:35.6, the prosecutor requested that the court deny the motion for judgment of acquittal and find the pattern jury instructions sufficient, especially because the Rehaif case was based on the interpretation of a federal criminal statute and the defense's requested instructions therefore improperly added an element to the pertinent State statute.
MPJI-Cr 4:35.6 provides:
The defendant is charged with possessing a regulated firearm after having been convicted of a crime that disqualified [him] [her] from possessing a regulated firearm. In order to convict the defendant, the State must prove:
(1) that the defendant knowingly possessed a regulated firearm; and
(2) that the defendant was previously convicted of a crime that disqualified [him] [her] from possessing a regulated firearm.
[The State and the defendant agree and stipulate that the gun in this case is a regulated firearm.]
* * *
[[The State and the defendant agree and stipulate that the defendant was previously convicted of a crime that disqualifies [him] [her] from possessing a regulated firearm.]]
Possession means having control over the firearm, whether actual or indirect. More than one person can be in possession of the same firearm at the same time. A person not in actual possession, who knowingly has both the power and the intention to exercise control over a firearm, has indirect possession of that firearm. In determining whether the defendant has indirect possession of a firearm, you should consider all of the surrounding circumstances. These circumstances include the distance between the defendant and the firearm, and whether the defendant has some ownership or possessory interest in the location where the firearm was found.
The trial court ruled:
Well, a trial court that uses a jury instruction other than a pattern jury instruction when there is a pattern jury instruction that directly addresses the elements at issue, does so at the trial court's own peril.
The appellate court in Annapolis has repeatedly in many cases warned trial judges about essentially going off base and giving instructions that are not the approved Maryland pattern jury instructions. There are some occasions upon which there is an issue that is not addressed by a Maryland pattern jury instruction but this isn't that case. I think this case does what is appropriate in this case and that is put the issue before the jury and the jury can decide whether the elements have been proven. . . . This jury instruction clearly cites correctly the law and it does not preclude the defense from arguing the issue that you're raising at all.
During jury instructions, the trial court recited almost verbatim MPJI-Cr 4:35.6 relating to possessing a regulated firearm and ammunition after having been convicted of a disqualifying crime. Defense counsel declared herself satisfied with the instructions as given, "[s]ubject to our previous objection."
In her closing argument, defense counsel told the jury:
So in Pennsylvania, he legally transferred this gun to himself. So he's somebody who has an address in Johnson Town, Pennsylvania, his phone number is in Pennsylvania and he told detectives, he came down with his mother because he had the gun for eight to 10 years. He's had other guns. It just didn't even occur to him that he couldn't have that gun in Maryland.
And the issue really is how could he have known. I mean the State just got up here and said the law applies to anyone. But did you know? And it's different when he was actually in Pennsylvania and he did everything he was supposed to do to have that, that he would expect to know that here in Maryland, it's a problem.
There are three different counts today. The first count is the possession of a firearm by a prohibited person. And then the third count as
the State said is possession [of ammunition] by a prohibited person. One of the instructions that the Judge read to you is to look at each count. And those are the two counts that we're asking that you find Mr. Howling not guilty because he didn't know that he couldn't have that gun.
* * *
So, ladies and gentlemen, we'd ask the State, because it's their burden to get back up here and talk to you again about this case, and this is one of those somewhat unusual cases because we already conceded that, yes, Mr. Howling shouldn't have had a handgun. But we are asking that you, as he is, presumed innocent until they prove to you beyond a reasonable doubt because it is their burden that he knew and understood that he couldn't have that gun in Maryland because he did legally have that gun in Pennsylvania, the place where he's from, the place where he lives, the place where he got the conviction almost 18 years ago, a place where he's purchased and owned a firearm since then.
He was just trying to come here to run some errands. It doesn't mean he knows every law in the [S]tate of Maryland. And most people don't actually know every law in the [S]tate of Maryland. So for that reason, we're asking that you find him not guilty of possession of a firearm by a prohibited person and not guilty of possession of ammunition by a prohibited person.
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." We review "a trial court's refusal or giving of a jury instruction under the abuse of discretion standard." Stabb v. State, 423 Md. 454, 465 (2011) (citing Gunning v. State, 347 Md. 332, 351 (1997)). In evaluating whether an abuse of discretion occurred, we consider the following factors: "(1) whether the requested instruction was a correct statement of the law; (2) whether it was applicable under the facts of the case; and (3) whether it was fairly covered in the instructions actually given." Id. (citing Gunning, 347 Md. at 348). Howling's assignment of error rests on the first factor.
Howling claims that the trial court abused its discretion in declining to give his requested jury instructions on illegal possession of a firearm and ammunition in light of Rehaif, which held that the government must prove that a defendant knew both that he possessed a firearm and that he belonged to the relevant class of persons barred from possessing a firearm. In Howling's view, the trial court abused its discretion in declining to give instructions advising the jurors that they were required to find that he knew he was barred from possessing a firearm and ammunition in Maryland, particularly where he could legally possess those items in Pennsylvania. We disagree.
In Rehaif, the defendant attended a university in the United States on a nonimmigrant student visa but was dismissed and informed that his "'immigration status' would be terminated unless he transferred to a different university or left the country. Rehaif did neither." 139 S. Ct. at 2194. After Rehaif went shooting at a firing range, he was prosecuted and convicted of possessing firearms while unlawfully present in the United States. Id.
On review, the Supreme Court concluded, based upon the plain language of the applicable statutes, that in prosecutions under 18 U.S.C. § 922(g), in combination with § 924(a)(2), which provides penalties for those who "knowingly" violate § 922(g), the government is required to prove "both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm." Id. at 2200.
Rehaif is not dispositive in this case. As the United States Court of Appeals for the Second Circuit explained in Mata v. United States:
The Supreme Court's Rehaif decision resolved only a question of statutory interpretation and did not announce a rule of constitutional law (much less a new one, or one that the Supreme Court has made retroactive on collateral review or that was previously unavailable). Rehaif clarified the mens rea applicable to a violation of 18 U.S.C. § 922(g), holding that the government must prove that a defendant knew both that he possessed a firearm and that he belonged to the relevant class of persons barred from
possessing a firearm. In reaching that decision, the Supreme Court applied a standard 'interpretive maxim' to discern 'congressional intent' about the meaning of the word 'knowingly' as it appears in the text of § 922(g). In other words, the Supreme Court was simply construing a statute.969 F.3d 91, 93 (2d Cir. 2020) (internal citations omitted). Because the Rehaif decision was based on statutory interpretation of a federal statute, rather than on constitutional law, we are not bound by Rehaif's precedent. See State v. Matusky, 343 Md. 467, 490 (1996) (When the Supreme Court's decision does not rely on federal constitutional principles, it "is not binding on the states."); see also Dravo v. State, 46 Md. App. 622, 630 (1980).
Moreover, as the State points out in its brief, the federal statute at issue in Rehaif contains language that is materially different from the Maryland statutes under consideration here.
We therefore reject Howling's reliance on Rehaif and instead apply the analysis set forth in Brice v. State, 225 Md. App. 666 (2015). In Brice, the appellant argued that "the evidence was insufficient to sustain [his] conviction for illegal possession of a regulated firearm because the State introduced no evidence that appellant had knowledge that he was disqualified from possessing a firearm." Id. at 693.
We first set out to determine "whether there is a knowledge of disqualification element" to the crime of illegal possession of a regulated firearm, as codified in Md. Code (2003, 2018 Repl. Vol.), § 5-133(b)(1) of the Public Safety Article ("PS"). Id. We explained that "'[w]hile ignorance of fact may sometimes be admitted as evidence of lack of criminal intent, ignorance of the law ordinarily does not give immunity from punishment for crime, for every man is presumed to intend the necessary and legitimate consequences of what he knowingly does.'" Id. at 694 (quoting Hopkins v. State, 193 Md. 489, 498-99 (1949)).
PS § 5-133(b)(1) prohibits a person from possessing a regulated firearm if he or she has been convicted of a disqualifying crime. PS § 5-133(c)(1)(iii), at issue in this matter, is similar and prohibits a person from possessing a regulated firearm if he or she has been convicted of "an offense under the laws of another state or the United States that would constitute one of the crimes listed in item (i) or (ii) of this paragraph if committed in this State." And, pursuant to PS § 5-133.1(b), a person prohibited from possessing a firearm under § 5-133(b) or (c) may not possess ammunition. There appears to be no dispute that Howling's assault conviction in Pennsylvania constitutes a crime of violence in Maryland.
We noted that, under the express language of the statute,
a defendant may not "knowingly participate in . . . possession . . . of a regulated firearm." PS § 5-144(a)(1). There is no language in the statute requiring a defendant to know that he is disqualified. In McNeal v. State, this Court held that, to satisfy the mens rea requirement for a violation of Section 5-133, the State was required to prove only that defendant knew that he was in possession of a handgun. 200 Md. App. 510, 524, 28 A.3d 88 (2011), aff'd, 426 Md. 455, 44 A.3d 982 (2012). The facts of the instant case clearly satisfy such requirement, because appellant admitted to Agents Boroshok and
Tolomeo that "he acquired the handgun from what he termed a junkie in the White Marsh area. That he made a trade for an eight ball of crack cocaine for it."Id. (alterations in original).
The penalty provision, set forth in PS § 5-144, states, in pertinent part:
(a) Except as otherwise provided in this subtitle, a dealer or other person may not:
(1) knowingly participate in the illegal sale, rental, transfer, purchase, possession, or receipt of a regulated firearm in violation of this subtitle[.]
Although Brice involved a challenge to evidentiary sufficiency, the same analysis applies to Howling's proposed jury instructions. As Brice makes clear, the State was only required to prove that Howling knew he was in possession of a firearm and ammunition, not that Howling knew his Pennsylvania conviction disqualified him from possessing a regulated firearm and ammunition in Maryland. The State supplied proof of Howling's requisite knowledge of possession through his recorded statement to the police, in which he admitted that he knew the firearm was in his vehicle when he traveled to Maryland on March 20, 2019.
We conclude that the non-pattern jury instructions requested by Howling, which sought to add an element to the charged crimes, were not correct statements of Maryland law. Therefore, the trial court did not abuse its discretion in declining to give them and by giving pattern jury instruction MPJI-Cr 4:35.6 instead.
II. & III. Voir dire
Howling also asserts that the trial court erred or abused its discretion in declining to propound his requested version of a voir dire question regarding the prospective jurors' prior experiences as witnesses, victims, or participants in a criminal proceeding as redundant after it had propounded a similar question requested by the State. He contends that the compound question propounded by the court impermissibly asked the prospective jurors to decide for themselves whether or not their previous experiences affected their impartiality, and should have been replaced with his requested non-compound question.
Prior to trial, defense counsel filed a written request for voir dire. Question number 17 asked:
17. Is there any member of the prospective jury panel or any member of your immediate family or a close personal friend who have been:
a. The victim of any crime;
b. A victim of shootings or crimes involving firearms;
c. A witness to any crime; or
d. Charged with or arrested for any crime?
If the answer to any part of this question is yes, please stand and approach the bench one by one, so that the Court can question you individually at the bench.
During voir dire, the trial court asked the venire panel: "Is there any member of the prospective jury panel or member of your immediate family who has ever had a prior experience as a party, as a witness, as a victim, or participant in any criminal proceeding? If so, would that experience in any way, impair your ability to sit as an impartial juror in this case?" Two prospective jurors responded. One explained that his or her daughter had witnessed a drug crime and shooting and was treated by defense counsel at the perpetrators' trials in a manner that caused the daughter to have nightmares. That experience, the juror continued, would not permit him or her to be impartial during Howling's trial. The second prospective juror explained that he or she had been "caught with paraphernalia" in 2006. In response to the court's follow-up question whether that experience would affect his or her ability to be fair and impartial in this matter, the prospective juror answered, "No."
After asking several other questions, the trial court summoned the parties to the bench, and the following colloquy occurred:
THE COURT: Question number [17], I think is redundant. We've already asked a question about whether or not they've been a witness or juror or party or involved in any criminal proceedings. But I think the part of the question that says has any member of your family or personal friend been a -- well, we've asked them that question. I don't think we need to -- do you think?
[DEFENSE COUNSEL]: I'm fine with it but can we amend it or ask for clarification on the shooting aspect, Your Honor.
THE COURT: Well, they were asked have you been a party.
[DEFENSE COUNSEL]: Right.
THE COURT: A witness.
[DEFENSE COUNSEL]: Right.
THE COURT: And this question says the same thing.
[DEFENSE COUNSEL]: Right. I think the question that you asked was the State's version and this one is the defendant's version. My concern would be the way that Your Honor asked it. You also asked if they would be fair and impartial and information about whether or not they've been the victim or witness.
THE COURT: You lost me.
[DEFENSE COUNSEL]: So I think the previous question was a two-part question and one, which it was asked if they've been, and sort of immediately
asked if that would affect their ability to be fair and impartial as opposed to clarifying whether or not they had been a victim or witness.
THE COURT: Right. But a number of people came forward and said that they had been a victim of a crime. The question was asked had you the opportunity--
[DEFENSE COUNSEL]: I think there was issue [sic] whether they're going to be fair and impartial.
THE COURT: Right. Been charged or arrested, they had the opportunity to answer that. And one person in fact did come forward.
[DEFENSE COUNSEL]: That's true.
THE COURT: Okay. So you can note your objection for the record if you wish but I don't think I'm going to ask that question. Do you object?
[DEFENSE COUNSEL]: Yes.
THE COURT: Okay.
The court referred to question number 24, but it appears from the context of the discussion that the court meant to reference question number 17. The State does not suggest otherwise in its brief.
"Voir dire, the process by which prospective jurors are examined to determine whether cause for disqualification exists, is the mechanism whereby the right to a fair and impartial jury, guaranteed by Art. 21 of the Maryland Declaration of Rights, is given substance." Dingle v. State, 361 Md. 1, 9 (2000) (footnote omitted) (internal citations omitted). "To that end, '[o]n request, a trial court must ask a voir dire question if and only if the voir dire question is reasonably likely to reveal specific cause for disqualification.'" Collins v. State, 463 Md. 372, 376 (2019) (alteration in original) (quoting Pearson v. State, 437 Md. 350, 357 (2014)). "There are two categories of specific cause for disqualification: (1) a statute disqualifies a prospective juror; or (2) a collateral matter is reasonably liable to have undue influence over a prospective juror." Id. (quoting Pearson, 437 Md. at 357). This Court "review[s] the trial judge's rulings on the record of the voir dire process as a whole for an abuse of discretion, that is, questioning that is not reasonably sufficient to test the jury for bias, partiality, or prejudice." Washington v. State, 425 Md. 306, 314 (2012) (citing White v. State, 374 Md. 232, 243 (2003)).
The Court of Appeals addressed the propriety of compound voir dire questions in Dingle. There, during jury selection, the defendant requested that the trial court ask a series of questions regarding whether prospective jurors "had certain experiences or associations" (e.g., whether they had been victims of, witnesses to, accused of, or convicted of crimes, were involved with law or law enforcement, or were members of any victims' rights groups). 361 Md. at 3 & n.3. The court agreed to do so, but joined with each of the defendant's requested inquiries an additional question asking "whether the experience or association . . . would affect the prospective juror's ability to be fair and impartial." Id. at 3-4. The court instructed each prospective juror to stand only "if your answer is yes to both parts of the question." Id. at 5.
The Court of Appeals reversed Dingle's convictions, holding that the trial court had abused its discretion in posing the questions in compound form. Id. at 21. The Court observed that it is the trial court, not the prospective jurors, that "must decide whether, and when, cause for disqualification exists for any particular venire person." Id. at 14-15. By asking prospective jurors to divulge certain experiences or associations only if they first concluded that they could not be fair and impartial as a result, the trial court had failed to exercise its "responsibility to decide . . . whether any of the venire persons occupying the questioned status or having the questioned experiences should be discharged for cause," and "denied [the defendant] the opportunity to discover and challenge venire persons who might be biased." Id. at 17.
In Pearson v. State, the Court addressed the use of compound questions in connection with mandatory "strong feelings" voir dire questions, holding that when a requested voir dire question is mandatory, the use of "Dingle-type" compound questions constitutes reversible error. 437 Md. at 363-64.
The Court of Appeals also held, however, that the trial court is not obligated to ask if a member of the venire has been the victim of a crime. Id. at 359. Pearson had argued that the trial court abused its discretion by declining to ask that question, because it was "reasonably likely to reveal specific cause for disqualification" or to "facilitate the exercise of peremptory challenges." Id. at 356.
The Court disagreed, holding that the trial court "need not ask during voir dire whether any prospective juror has ever been the victim of a crime" for three reasons. Id. at 359-60. First, the experience of a crime victim "lacks 'a demonstrably strong correlation [with] a mental state that gives rise to [specific] cause for disqualification.'" Id. at 359 (alterations in original) (quoting Curtin v. State, 393 Md. 593, 607 (2006)). Second, the question may be too time consuming, as many, if not most, prospective jurors have been victims of some type of crime. Id. at 359-60. Third, the court is already required to ask, if requested, whether any juror has "'strong feelings about' the crime with which the defendant is charged," and that question is better tailored to reveal bias. Id. (citing State v. Shim, 418 Md. 37, 54 (2011), abrogated on other grounds by Pearson, 437 Md. 350)).
In Collins, the Court reaffirmed that when a voir dire question is mandatory, "it is improper for a trial court to ask the . . . question in compound form." 463 Md. at 396. In so holding, the Court rejected an argument by the State that other questions asked by the trial court were an adequate "substitute for a properly-phrased 'strong feelings' question." Id. at 398.
Against this backdrop, we hold that the trial court in this case did not abuse its discretion in asking prospective jurors if they "ha[d] ever had a prior experience as a party, as a witness, as a victim, or participant in any criminal proceeding," and, if so, whether that experience would "in any way, impair [their] ability to sit as an impartial juror in this case." Although the Court of Appeals has cautioned trial courts to refrain from using compound questions when conducting voir dire, doing so does not automatically constitute reversible error. See Collins v. State, 452 Md. 614, 625 n.5 (2017) (citing White, 374 Md. at 243).
The trial court was not required to ask the party, witness, or victim of crime question. See Pearson, 437 Md. at 359; Perry v. State, 344 Md. 204, 218 (1996) ("A juror's having had prior experience as a juror, witness, victim or defendant in a criminal proceeding of any kind, or in one involving a crime of violence, is not per se disqualifying."). And, any likelihood that the question would have uncovered a potential for bias is mitigated by the fact that Howling was charged only with possessory crimes that did not involve a victim. The Pearson Court's observation that the experience of a crime victim "lacks 'a demonstrably strong correlation [with] a mental state that gives rise to [specific] cause for disqualification,'" 437 Md. at 359 (alterations in original), has particular relevance in this case where there is no identified crime victim. Pearson's second reason why a court need not ask a "victim of crime" question also applies here in that the party, witness or victim of crime question may have been too time consuming, as many, if not most, prospective jurors likely had been victims or witnesses of some crime. Moreover, the trial court did ask questions designed to ensure that the prospective jurors would: apply the appropriate legal standards of burden of proof, presumption of innocence, and right of the defendant not to testify; decide the case based solely on the evidence; not rely on preconceived notions of Howling's guilt or innocence; not exhibit bias toward either the prosecution or the defense; and adhere to the jury instructions.
Although the court should have avoided the compound question, we cannot say that its use denied Howling a reasonable, fair, and comprehensive voir dire process. Considering all of the above factors, including the fact that the court was not even required to propound appellant's voir dire question number 17, we conclude that any error in asking the question in compound form was harmless.
Howling also argues that the trial court committed plain error in asking several other compound questions during voir dire. Acknowledging that he offered no objection to those questions during trial, he nonetheless contends that "the pervasiveness and egregiousness of the compound questions asked by the trial court demand plain-error review" because the questions "curbed the ability of the judge and parties to gauge juror bias."
Objections made during jury selection are governed by Maryland Rule 4-323(c), which states, in pertinent part, that "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." Because Howling failed to object to the various voir dire questions about which he now complains, and accepted the jury as empaneled subject only to his prior objection, he waived his objection to the contested questions, and it is not properly before us on appeal. See Md. Rule 8-131(a); see also Wimbish v. State, 201 Md. App. 239, 265-66 (2011). We note that Howling was permitted to participate fully in the voir dire process, strike jurors for cause, and exercise peremptory strikes. In our view, the public's confidence in the fairness of judicial proceedings was not undermined by the outcome of this case, and plain error review is not warranted.
JUDGMENTS OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY AFFIRMED. APPELLANT TO PAY COSTS.