Opinion
508-2021
11-16-2023
ROBERT JAMAR DAVIS v. STATE OF MARYLAND
UNREPORTED IN THE APPELLATE COURT OF MARYLAND [*]
Circuit Court for Anne Arundel County Case No. C-02-CR-20-001120
Berger, Reed, Beachley, JJ.
OPINION
Reed, J.
On June 2, 2021, a jury, sitting in the Circuit Court for Anne Arundel County, convicted Robert Jamar Davis ("Appellant") of (i) possession of a regulated firearm by a person convicted of a disqualifying crime, (ii) transporting a loaded handgun in a vehicle, (iii) carrying a loaded handgun on one's person, (iv) possession of ammunition by a prohibited person, and (v) assuming the identity of another to avoid identification, apprehension, or prosecution for a crime. The circuit court sentenced Appellant to an aggregate term of five years' incarceration. He timely appealed and presents two questions for our review, which we quote:
1. Did the trial court abuse its discretion in following a rigid policy of not permitting counsel to ask follow-up questions during voir dire?
2. Was the evidence insufficient to convict Appellant of identity fraud?
We answer the first question in the affirmative, the second question in the negative, and will therefore reverse and remand for a new trial.
Because Appellant challenges the sufficiency of the evidence to sustain his conviction for assuming the identity of another, we will present the facts in the light most favorable to the State. See Koushall v. State, 249 Md.App. 717, 723 n.1 (2021) ("This recitation of facts reflects that, when reviewing a conviction for evidentiary sufficiency, we view the evidence 'in the light most favorable to the prosecution.'" (quoting State v. Morrison, 470 Md. 86, 105 (2020))), aff'd, 479 Md. 124 (2022).
At approximately 10:50 p.m. on the evening of August 27, 2020, Officer Lamar Hylton was on routine patrol at or around the intersection of Solomon's Island Road and West Street in Annapolis when he observed a grey Lexus with an inoperable taillight. Officer Hylton activated his emergency lights and initiated a traffic stop. Upon exiting his vehicle, Officer Hylton approached the Lexus and spoke with its driver, whom he later identified as Appellant. Although Appellant failed to produce a driver's license, he told Officer Hylton that his name was "Gregory Lee Jacobs, Jr." Officer Hylton returned to his police vehicle and ran a records check, which revealed an outstanding warrant for Mr. Jacobs's arrest.
The Lexus was also occupied by a female passenger who identified herself as Appellant's girlfriend.
Officer Hylton then approached the Lexus, advised Appellant of the open warrant, and asked him to exit the vehicle. When Appellant complied, Officer Hylton handcuffed and frisked him. During the frisk, Appellant began "shifting around a whole lot" in an apparent attempt to close his legs and thereby prevent Officer Hylton from "touch[ing] certain areas to get a full determination o[f] whether he had something ... on his person." When the frisk did not yield any weapons, Officer Hylton escorted Appellant to his police cruiser and placed him in the front passenger's seat.
While en route to the Jennifer Road Detention Center, Officer Hylton noticed Appellant "fidgeting [with] his hands." Officer Hylton instructed him to stop, whereupon he heard "a small clang kind of sound." When they arrived at the detention center, Officer Hylton removed Appellant from the vehicle and accompanied him inside. While Appellant was being processed, Officer Hylton returned to his vehicle and conducted a "cursory search" thereof. During that search, Officer Hylton discovered a loaded Taurus PT-58.380 handgun resting on the floorboard behind the front passenger's seat in which Appellant had been sitting-a seat that had otherwise been unoccupied since Officer Hylton had searched the vehicle at the beginning of his shift. Officer Hylton reentered the detention center and reported the discovery to his supervisor, who, in turn, recovered the weapon.
At trial, Officer Hylton described a "cursory search" as "a search of your vehicle to make sure there's nothing illegal" contained therein.
We will include additional facts as necessary in our discussion of the questions presented.
DISCUSSION
I. VOIR DIRE
A. Parties' Contentions
Appellant contends that the trial court abused its discretion by failing to exercise that discretion when it refused to permit defense counsel "to ask follow-up questions during voir dire." He further asserts that, even if the court had exercised its discretion, it nevertheless committed reversible error by declining defense counsel's "offer to approach the bench each time he wanted to ask a follow-up question." Only after hearing those proposed questions, Appellant argues, "could the court's refusal to permit them be deemed a reasonable exercise of discretion."
Appellant also argues that the opportunity to pose additional follow-up questions would have aided defense counsel in the informed exercise of his peremptory challenges. This argument is clearly without merit, as the Supreme Court has consistently held that "'the sole purpose of voir dire is to ensure a fair and impartial jury by determining the existence of cause for disqualification, and not as in many other states, to include the intelligent exercise of peremptory challenges.'" Collins, 452 Md. at 622. See also Washington, 425 Md. at 312; Stewart, 399 Md. at 158; Pearson, 437 Md. at 35657; Dingle, 361 Md. at 13-14.
The State responds that Appellant's contentions are based on a misinterpretation of the record. "At no point," it asserts, did Appellant "complain that he was unable to proffer his desired line of questioning[.]" It further rejoins that the court did not, in fact, limit Appellant to "a pro forma blanket objection," as evidenced by defense counsel's having proffered how his desired questions differed from those propounded by the court. Finally, the State maintains that, even if the court had blanketly prohibited the parties from proposing follow-up voir dire questions, the plain language of Maryland Rule 4-312(e) expressly permitted it to do so.
The State also claims that on one occasion defense counsel "proposed what his line of questioning would have been."
Maryland Rule 4-312 governs the voir dire examination of prospective jurors in criminal cases and provides, in pertinent part:
(e) Examination and Challenges for Cause:
(1) Examination. The trial judge may permit the parties to conduct an examination of qualified jurors or may conduct the examination after considering questions proposed by the parties. If the judge conducts the examination, the judge may permit the parties to supplement the examination by further inquiry or may submit to the jurors additional questions proposed by the parties. The jurors' responses to any examination shall be under oath. On request of any party, the judge shall direct the clerk to call the roll of the array and to request each qualified juror to stand and be identified when called.
B. The Relevant Procedural History
Jury selection proceeded with the court first conducting general voir dire of the entire venire, followed by individual voir dire of those prospective jurors who responded affirmatively to one or more of the court's thirty-five general voir dire questions. During individual voir dire, defense counsel elicited clarification regarding the court's preferred procedure for requesting juror-specific follow-up questions, asking: "If we have any follow up questions, do you want us to approach the bench with them?" The court answered: "You can stand and then ... approach the bench." When defense counsel subsequently sought a follow-up question, the following transpired:
THE COURT: Okay. We are not going to be doing this. This is the last one. I checked. Madame Clerk -- normally, they are not allowing follow up questions, so this is your one shot.
[DEFENSE COUNSEL]: I will object to not being able to ask followup questions because many of these -- I just want to get an answer to what an AR Representative is. That is the description in the job description.
THE COURT: Okay. All right. I will ask her that. And then we are not going to --
* * *
THE COURT: Check. You can have a blanket objection for not being able to ask follow up.
While the court's comment suggests that defense counsel had previously elicited one or more follow-up questions, the record does not reflect his having done so.
After posing the requested follow-up question, the court asked the courtroom clerk: "Generally, we are not doing follow up, right? Other judges aren't allowing attorneys to do follow up, right?" The clerk answered: "Not that I have seen."
Following the individual voir dire of a prospective juror whose son had been convicted of a crime, the following colloquy occurred:
[DEFENSE COUNSEL]: Your Honor, I don't want to mu[ddy] the waters or delay this unnecessarily. Do you want me with each juror I would like to have a follow up question reference it or just blanket -- ?
THE COURT: No, you can just -- a blanket objection.
[DEFENSE COUNSEL]: Blanket objection is sufficient?
THE COURT: Um-hum. A blanket objection.
[DEFENSE COUNSEL]: That is fine.
THE COURT: That you are objecting to the process that we are using, that we are not allowing you to individually ask follow up questions.
[DEFENSE COUNSEL]: I am objecting to that process.
THE COURT: Okay.
Apparently dissatisfied with the court's acknowledgement of his continuing objection, defense counsel thrice challenged the adequacy of the court's individual voir dire.
Despite Juror No. 17's assurance that she could be fair and impartial, defense counsel moved to strike her for cause based on both her familial relationships with law enforcement and her prior employment as a paralegal. Counsel explained:
Your Honor, she has a family which is replete with law enforcement father who was a detective, bailiff, PO in Jessup, cousins who are also police. The [c]ourt followed up with one question as to whether she can be fair.
I would have followed up with some more questions[,] but the ruling is clear. She has also worked for a criminal attorney[.]
* * *
But on the basis of all that experience, I think follow up questions would have been necessary to determine whether she would have believed or been inclined to believe State's witnesses who were police officers, and they are police officers only in this case, over that of either pedantic witnesses or if no testimony would be given by the [d]efense.
Because I wasn't allowed to follow up, I can only guess, which is not exactly what you want to do in this particular profession, but I move for cause on that basis.
The court denied defense counsel's motion, reasoning:
[W]hen subject to the [c]ourt's questioning in here, she indicated that she could make the decision based on the facts and evidence in this case.
And the [c]ourt followed up with an additional question to see if she could evaluate the credibility in light of the facts, as opposed to any of her experiences, and she indicated that she could.
So based on that, the [c]ourt will deny the motion for cause.
Defense counsel next moved to strike Juror No. 19, whose uncle and cousin were retired police officers, asserting that the court's rehabilitative questions were "not the questions I would have asked." The court denied that motion without explanation.
While Juror No. 19 initially acknowledged a potential bias in favor of law enforcement, that prospective juror subsequently affirmed that he or she could compartmentalize any such bias so as not to place undue weight on police officer credibility.
Finally, the court conducted individual voir dire of Juror No. 22, whose daughter had pending criminal charges. When asked whether she thought that her daughter was being treated fairly, Juror No. 22 answered in the negative. The court then asked Juror No. 22 whether her daughter's experience "would impact [her] ability to be fair to the State's Attorney's Office in this case." Juror No. 22 initially responded, "I would hope not, however, I'm...." After further inquiry by the court, Juror No. 22 concluded that those pending charges would likely adversely affect her ability to serve as a juror. Accordingly, the State moved to strike Juror No. 22 for cause. Defense counsel objected, arguing:
[The court] chose to rehabilitate her, or not rehabilitate her in the same manner and fashion that it attempted to rehabilitate [the] other juror.
I would have asked different questions, and I would have ascertained whether the facts of this case alone, whether that would have been enough to in fact convince her of guilt beyond a reasonable doubt.
The [c]ourt didn't go into that in any way, shape, or form. And for that reason, I object.
Defense counsel appears to have been referring to Juror No. 19.
Evidently unpersuaded by defense counsel's argument, the court granted the State's motion.
After voir dire had been completed, the court permitted the parties to exercise their peremptory challenges. Defense counsel exercised all four of its peremptory strikes. See Md. Rule 4-313(a)(1) ("Except as otherwise provided by this section, each party is permitted four peremptory challenges."). In so doing, counsel struck Juror No. 19-but not Juror No. 17. When asked whether the jury as empaneled was acceptable to the defense, counsel answered: "Subject to the prior exceptions, acceptable."
C. The Law
The Sixth Amendment to the United States Constitution, made applicable to the states through the 14th Amendment, and Article 21 of the Maryland Declaration of Rights guarantee criminal defendants the right to be tried by an impartial jury. See Collins v. State, 452 Md. 614, 617 (2017). One critical way in which courts implement that right is by " expos[ing] the existence of factors which could cause a juror to be biased or prejudiced through the process of voir dire examination." Jenkins v. State, 375 Md. 284, 331 (2003).
Trial courts are "vested with broad discretion in the conduct of voir dire, subject to reversal for an abuse of discretion." Collins, 452 at 623. See also Washington v. State, 425 Md. 306, 313 (2012) ("'[T]he trial court has broad discretion in the conduct of voir dire, most especially with regard to the scope and the form of the questions propounded[.]'" (quoting Dingle v. State, 361 Md. 1, 13-14 (2000))). A court abuses its discretion where "no reasonable person would take [its] view ... or when the court acts without reference to any guiding rules or principles." Nash v. State, 439 Md. 53, 67 (2014) (cleaned up). In other words, "an abuse of discretion occurs when a decision is 'well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable.'" Consolidated Waste Indus., Inc. v. Standard Equipment Co., 421 Md. 210, 219 (2011) (quoting King v. State, 407 Md. 682, 711 (2009)).
We review a trial court's voir dire ruling "in the light of the questions actually propounded and the purpose of the voir dire examination[]" Shifflett v. State, 80 Md.App. 151, 156 (1989), aff'd, 319 Md. 275 (1990). See also Washington, 425 Md. at 314 ("We review the trial judge's rulings on the record of the voir dire process as a whole[.]"). Maryland adheres to "limited voir diref the exclusive purpose of which "'is to elicit specific cause for disqualification, not to aid counsel in the intelligent use of peremptory strikes.'" Kazadi v. State, 467 Md. 1, 46 (2020) (quoting Collins v. State, 463 Md. 372, 404 (2019)). Accordingly, "[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 [a specific] cause for disqualification[]'" Pearson v. State, 437 Md. 350, 357 (2014) (quoting Moore v. State, 412 Md. 635, 663 (2010)).
When determining whether a requested voir dire question is reasonably likely to reveal cause for disqualification, "a trial court should weigh the expenditure of time and resources in the pursuit of the reason for the response to the proposed voir dire question against the likelihood that pursuing the reason for the response will reveal bias or partiality." Id. at 360 (cleaned up). A court should therefore refrain from propounding questions that are "argumentative, cumulative, or tangential." Stewart v. State, 399 Md. 146, 163 (2007), abrogated on other grounds by Kazadi, 467 Md. 1. On request, a court need not, moreover, pose questions that are "speculative, inquisitorial, catechizing or 'fishing,' or those asked in aid of exercising peremptory challenges[.]" Id. at 162. Ultimately, "[t]he standard for evaluating a court's exercise of discretion during the voir dire is whether the questions posed and the procedures employed have created a reasonable assurance that prejudice would be discovered if present." White v. State, 374 Md. 232, 242 (2003).
"The court's failure to exercise ... discretion ... is, itself, an abuse of discretion, which ordinarily requires reversal." 101 Geneva LLC v. Wynn, 435 Md. 233, 241-42 (2013) (internal quotation marks and citations omitted). See also Gunning v. State, 347 Md. 332, 353-54 (1997). "That exercise of discretion must be clear from the record." Id. at 351. "'A proper exercise of discretion involves consideration of the particular circumstances of each case.'" 101 Geneva LLC, 435 Md. at 241 (quoting Gunning, 347 Md. at 351). A court fails to exercise discretion when "it attempts to resolve discretionary matters by the application of a uniform rule, without regard to the particulars of the individual case." Gunning, 347 Md. at 352. See also Cagle v. State, 462 Md. 67, 76 (2018) ("Applying a blanket and uniform rule, in lieu of considering the particular circumstances and facts of a case, may constitute an abuse of discretion."); Abrishamian v. Barbely, 188 Md.App. 334, 350 (2009) ("The duty to exercise discretion is a guard against . a judge's unyielding adherence to a predetermined position." (cleaned up)), cert. denied, 412 Md. 255 (2010). A general policy or rule is not, however, "in and of itself a failure to exercise discretion[.]" Cagle, 462 Md. at 75 (cleaned up). It is, instead, "one of the myriad ways in which discretion may be exercised." Id. (cleaned up). See also Holland v. State, 122 Md.App. 532, 547 ("That an experienced and veteran judge may fall into predictable and identifiable sentencing habits and patterns does not mean that that judge has thereby failed to exercise discretion."), cert. denied, 351 Md. 662 (1998). In other words, "discretion consistently exercised the same way is still discretion." Cagle, 462 Md. at 77 (cleaned up).
D. Analysis
We will first dispose of the State's counter-contentions. Notwithstanding the State's argument to the contrary, the record clearly reflects that defense counsel's continuing objection was to the court's refusal to permit him to propose more than a single follow-up voir dire question. Indeed, when noting his initial objection to the court's voir dire procedure, defense counsel stated unequivocally: "I will object to not being able to ask follow up questions[.]" Thereafter, the court granted the defense a continuing objection on that ground, stating: "You can have a blanket objection for not being able to ask follow up." The State's apparent assertion that the defense failed to preserve this issue for appellate review is therefore meritless.
The State's argument that Appellant's claim "fails because the court did not need to allow [Appellant's] counsel to voir dire the potential jurors" is likewise fatally flawed. Maryland Rule 4-312(e)(1) provides, in pertinent part:
The trial judge may permit the parties to conduct an examination of qualified jurors or may conduct the examination after considering questions proposed by the parties. If the judge conducts the examination, the judge may permit the parties to supplement the examination by further inquiry or may submit to the jurors additional questions proposed by the parties.(Emphasis added). Granted, Rule 4-312(e)(1) permits-but does not require-a court to "submit to the jurors additional questions proposed by the parties," thereby committing the matter to the court's discretion. See Tichnell v. State, 297 Md. 432, 438 (1983) (holding that the predecessor to Rule 4-312(e) "permits but does not require, individual voir dire examination of prospective jurors by counsel"). See also Brodsky v. Brodsky, 319 Md. 92, 98 (1990) ("The word 'may' is generally understood as permissive, as opposed to mandatory, language."). That does not, however, absolve the trial court of its duty to exercise that discretion.
Finally, we are unpersuaded by the State's assertion that appellant's "contention that the court . . . limited his opportunity to proffer his desired line of questioning is incorrect." Defense counsel made three fleeting references to unspecified follow-up questions he would have either posed or requested had the court permitted him to do so. Each such reference was made either in support of or in opposition to motions to strike made after the subject prospective jurors had been individually voir dired. Moreover, defense counsel clearly understood the court to have prohibited him from proposing or propounding followup questions, as evidenced by his having repeatedly stated what his desired follow-up questions would likely have elicited had they been asked. The State's contention that "the court did not limit [Appellant] to a pro forma blanket objection" is, therefore, unavailing.
Turning to the merits of Appellant's contention, the record before us does not reflect that the circuit court properly exercised its discretion in precluding counsel from requesting follow-up individual voir dire questions. The court's ruling was made in response to the first such request-prior to the court's even having heard defense counsel's desired question. That decision was categorical and depended on neither the likelihood that a venire member's response would reveal bias, nor the court's countervailing interest in judicial economy. Rather than an independent exercise of its own discretion, the court's decision appears to have been made in rote reliance on the ostensible practice of other trial judges. See 101 Geneva LLC, 435 Md. at 243-44 (holding that the court failed to exercise its discretion in vacating a foreclosure sale where the court did so in deference to the decision of an administrative judge). The court said:
THE COURT: Generally we are not doing follow up, right?
THE CLERK: Not that I have seen.
We are not, of course, holding that a trial court is required to consider each and every follow-up voir dire question the parties proposed. The record must, however, reflect that the court exercised its discretion rather than rigidly adhered to a predetermined position. In this case, it does not.
While we have applied harmless error analysis to the court's voir dire procedure, see, e.g., Muhammad v. State, 177 Md.App. 188, 312 (2007), cert. denied, 403 Md. 614 (2008), the State does not argue that the error in this case was harmless. Accordingly, we "need not, and will not, undertake a review of the record to decide that issue." Martinez v. State, 416 Md. 418, 432 n.9 (2010). See also Collins, 463 Md. at 403 n.5 ("[I]n its brief, the State does not contend that the circuit court's abuse of discretion was harmless.....As such, we do not address harmless error.").
II. Sufficiency of the Evidence
A. Parties' Contentions
Appellant also challenges the sufficiency of the evidence to sustain his conviction for assuming the identity of another. He contends that the State failed to produce any evidence that, when misidentifying himself as "Gregory Lee Jacobs, Jr.," he had acted with the specific intent "to avoid identification, apprehension, or prosecution for a crime[.]" Md. Code (2002, 2021 Repl. Vol.), § 8-301(c)(1) of the Criminal Law Article ("Crim. Law").The State responds that evidence that Appellant possessed a regulated firearm, coupled with the stipulation that he had been convicted of a crime disqualifying him from lawfully possessing such a weapon, supported a reasonable inference that he had "pretended to be someone else because he illegally possessed a firearm and sought to avoid apprehension and prosecution." We agree.
We must address this issue because "[i]n cases where this Court reverses a conviction, and a criminal defendant raises the sufficiency of the evidence on appeal, ... a retrial may not occur if the evidence was insufficient to sustain the conviction in the first place." Benton v. State, 224 Md.App. 612, 629 (2015) (citing Ware v. State, 360 Md. 650, 708-09 (2000)).
Crim. Law § 8-301(c) provides, in pertinent part:
(c) ProhibitedAssuming identity of another. - A person may not knowingly and willfully assume the identity of another, including a fictitious person:
(1) to avoid identification, apprehension, or prosecution for a crime[.]
B. Standard of Review
"When reviewing the sufficiency of evidence, we view the evidence and any reasonable inferences therefrom in the light most favorable to the State and determine whether 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Sewell v. State, 239 Md.App. 571, 607 (2018) (quoting Donati v. State, 215 Md.App. 686, 718, cert. denied, 438 Md. 143 (2014)). Such evidence need not, however, be direct. We will sustain a conviction based on either "a single strand of direct evidence or successive links of circumstantial evidence." Montgomery v. State, 206 Md.App. 357, 385 (quotation marks and citation omitted), cert. denied, 429 Md. 83 (2012). Indeed, where, as here, specific intent is an essential element of a crime, "without the cooperation of the accused, . . . its presence must be shown by established facts which permit a proper inference of its existence." State v. Earp, 319 Md. 156, 167 (1990) (emphasis added; quotation marks and citation omitted). See also State v. Harvey, 151 N.J. 117, 224 (1997) ("Because direct evidence of a defendant's intent to avoid apprehension is rarely available, the State may establish a defendant's motive through circumstantial evidence."), cert. denied, 528 U.S 1085 (2000). Accordingly, "the trier of fact can infer the requisite intent from surrounding circumstances such as the accused's acts, conduct and words." Jones v. State, 213 Md.App. 208, 218 (2013) (quotation marks and citations omitted), aff'd, 440 Md. 450 (2014). A jury may, moreover, permissibly presume that an accused "'intend[ed] the natural and probable consequences of his [or her] act.'" Chilcoat v. State, 155 Md.App. 394, 403 (quoting Ford v. State, 330 Md. 682, 704 (1993)), cert. denied, 381 Md. 675 (2004). See also Jones, 213 Md.App. at 218.
C. Analysis
In this case, the State presented sufficient circumstantial evidence to support a finding that Appellant had knowingly possessed the firearm found in Officer Hylton's vehicle. Moreover, Appellant stipulated that he had previously been convicted of a crime disqualifying him from possessing a regulated firearm and that the handgun in this case satisfies the statutory definition of a "regulated firearm." Against this evidentiary backdrop, the jury could have reasonably inferred from the fact that Appellant gave Officer Hylton a false name that he did so with the specific intent to conceal his identity to evade apprehension and/or prosecution for possession of a regulated firearm by a person convicted of a disqualifying crime. See United States v. Jernigan, 341 F.3d 1273, 1279 (11th Cir. 2003) ("It would have been ... reasonable to infer from the fact that Jernigan initially gave the arresting officers a false name that he was attempting to conceal his identity as a felon to avoid a prosecution for being a felon in possession of a firearm[.]"); United States v. Perry, 335 F.3d 316, 321 (4th Cir. 2003) (holding that evidence that the defendant provided police with a false name and birthdate was sufficient to support a finding that he did so with the intent to hinder an investigation "into [his] status as a felon in possession of a firearm").
For the foregoing reasons, we answer the first question in the affirmative, the second question in the negative, and will therefore reverse and remand for a new trial.
JUDGMENTS OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY REVERSED IN PART AND AFFIRMED IN PART. CASE REMANDED FOR A NEW TRIAL CONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY ANNE ARUNDEL COUNTY.
[*]This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B).