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Date: 04-15-2019
Case Style:
Gordon Collins v. State of Maryland
Case Number: No. 54, September Term, 2018
Judge: Shirley M. Watts
Court: COURT OF APPEALS
OF MARYLAND
Plaintiff's Attorney: Zoe Gillen White, Asst. Atty. Gen.
Defendant's Attorney: Julia Doyle Bernhardt, Asst. Public Defender
Description:
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On November 2, 2017, Collins, his counsel, the prosecutor, and forty-five
prospective jurors appeared before the circuit court. The courtroom clerk swore the
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prospective jurors, and the circuit court began to conduct voir dire. The circuit court asked
whether any prospective jurors knew Collins, his counsel, the prosecutor, the State’s
witnesses, certain law enforcement officers, or any of their fellow prospective jurors.
Multiple prospective jurors responded.2 The circuit court informed the prospective jurors
that the State alleged that, “on or about March 17, 2017, [] Collins committed a first-degree
burglary and theft of goods . . . by breaking into the home of Juliette Tower at 801 Severn
Avenue in Annapolis . . . with the intent to steal her property.” The circuit court asked
whether any of the prospective jurors had “heard anything about the facts of this case[,]”
whether Tower’s address “mean[t] anything to anyone[,]” and whether another address in
Annapolis “resonate[d] with anyone[.]” None of the prospective jurors responded. The
circuit court asked more questions to which no prospective juror responded, stating:
THE COURT: General question, has any member of this panel had something happen to you in the past that would prevent you from either returning a verdict of guilty or not guilty in a criminal case under any circumstances?
Again, we are trying to make sure nobody has any preconceived feelings about any of these issues because, ultimately, I will instruct you that[,] when you render a verdict, it is going to based only on the evidence that you hear in this case and nothing else.
(No audible response.)
THE COURT: Does any member of this panel have any political, religious, or philosophical beliefs about our system of criminal justice that would make you hesitate to sit as a juror in this case?
(No audible response.)
2For brevity’s sake, we omit the prospective jurors’ responses.
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The circuit court asked whether any of the prospective jurors had “ever testified as
a witness in a criminal case[.]” Multiple prospective jurors responded. The circuit court
asked more questions to which no prospective juror responded, stating:
THE COURT: Is there any member of this panel who would allow sympathy, pity, anger[,] or any other emotion to influence your verdict in any way in this case? The verdict should not be based on those feeling[s], they should be based on the evidence.
(No audible response.)
THE COURT: The State is required to prove the Defendant guilty beyond a reasonable doubt. Is there any member of this panel who feels that the State must prove its case beyond all doubt? And I will give you an instruction later on what the actual term reasonable doubt means.
(No audible response.)
THE COURT: But, no response. Is there any member of this panel who would allow the possible punishment of the Defendant to influence your verdict in this case?
(No audible response.)
The circuit court asked whether any of the prospective jurors, or any member of
their “immediate family[, had] ever been accused of a crime, been the victim of a crime, or
been a witness to a crime[.]” Multiple prospective jurors responded. The circuit court
judge who presided over the trial asked whether any of the prospective jurors knew him or
had had any prior dealings with him. One prospective juror responded. The circuit court
asked whether any prospective jurors, any members of their immediate families, or anyone
else with whom a prospective juror was “closely acquainted [had] ever been employed by
any law enforcement agency[.]” Multiple prospective jurors responded. The circuit court
asked whether any of the prospective jurors had ever been a juror in a criminal case.
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Multiple prospective jurors responded. The circuit court asked whether any of the
prospective jurors would “give either more or less weight to the testimony of a police
officer simply because they are a police officer and treat it differently than any other
witness[.]” None of the prospective jurors responded. The circuit court asked whether any
of the prospective jurors was “a member of the Maryland Crime Victim Resource Center,
Maryland Network Against Domestic Violence, Neighborhood Watch, the Stephanie
Roper Committee, House of Ruth, Sarah’s [H]ouse, YWCA[,] or a similar victim advocacy
group[.]” One prospective juror responded. The circuit court asked more questions to
which no prospective juror responded, stating:
THE COURT: Does any member of this panel hold any beliefs related to race, sex, color, religion, national origin, or other personal attributes of the accused or other witnesses that might affect your ability to render a fair and impartial verdict based only on the evidence and the law[?]
(No audible response.)
THE COURT: Does anyone on this panel have any strong feelings about the offense of burglary to the point where you could not render a fair and impartial verdict based on the evidence?
(No audible response.)
THE COURT: Does any member of this panel have strong feelings about the offense of theft to the extent that it would make you unable to be fair and impartial and base your decision only on the evidence in this case[?]
(No audible response.)
(Emphasis added). Immediately afterward, counsel approached the bench, and the
following exchange occurred regarding the compound “strong feelings” questions:
THE COURT: Anything else?
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[COLLINS’S COUNSEL]: I would ask for the question[s] to be asked --
THE COURT: I am not asking [them] that way.
[COLLINS’S COUNSEL]: Okay.
THE COURT: Nobody is going to have good feelings about any crimes. So, it is totally misleading.
[COLLINS’S COUNSEL]: Okay. Can I just put something on the record?
THE COURT: Sure.
[COLLINS’S COUNSEL]: So, the question that I had asked for was[: “]Does any member of this jury panel have strong feelings about the offense of burglary?[”]
THE COURT: Right.
[COLLINS’S COUNSEL]: And . . . [“D]oes any member of this panel have strong feelings about the offense of theft?[”]
THE COURT: And I simply supplemented it.
[COLLINS’S COUNSEL]: Okay. Could we just note my objection?
THE COURT: Okay[.]
The circuit court asked the following “catchall” question: “Is there any other reason
that we have not already explained or discussed why any member of this panel cannot be
a fair and impartial juror in this case, anything that we have not covered?” None of the
prospective jurors responded.
The circuit court excused three prospective jurors whom it had stricken for cause on
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its own initiative. Collins’s counsel exercised four peremptory strikes,3 and the prosecutor
did not exercise any. Twelve jurors and two alternate jurors were seated.
Start of Trial
The courtroom clerk swore the jurors and alternate jurors, the circuit court gave
preliminary jury instructions, counsel gave opening statements, and the circuit court
recessed for lunch at 11:39 a.m.
At 1:33 p.m., the trial court resumed. Outside the jury’s presence, the prosecutor
advised that there was an issue as to the compound “strong feelings” questions. The
prosecutor explained that, “where you basically allow the panel to sort of self-answer and
make their own determination as to their fairness and impartiality, it is reversible.” The
prosecutor suggested that, instead of declaring a mistrial, the circuit court could ask the
jury properly-phrased “strong feelings” questions. The circuit court asked Collins’s
counsel whether she believed that that would be an appropriate remedy. Collins’s counsel
responded in the negative. The circuit court asked Collins’s counsel whether she thought
that there was a remedy at all. Collins’s counsel responded: “I don’t think [that] there is .
. . [b]ecause the [‘strong feelings’] question[s] ha[ve] not been posed to the entire pool of
[prospective] jurors.” Collins’s counsel explained that, even if the circuit court asked the
jury properly-phrased “strong feelings” questions, she still would not know how the other
3Collins was permitted ten peremptory strikes. Maryland Rule 4-313(a)(3) provides: “Each defendant who is subject on any single count to a sentence of imprisonment for [twenty] years or more . . . is permitted ten peremptory challenges[.]” The maximum sentence for first-degree burglary is twenty years. See Md. Code Ann., Crim. Law (2002, 2012 Repl. Vol.) § 6-202(c).
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prospective jurors would have responded to such questions.
The circuit court stated that it would ask the jury properly-phrased “strong feelings”
questions. Collins’s counsel made a motion for a mistrial, which the circuit court denied.
Collins’s counsel stated: “[W]e already had opening[ statements], so that also might affect
how these jurors respond versus how the [other prospective] jurors might have responded
prior to opening[ statements.]” The circuit court responded: “[T]hat is too speculative[,]
though. I think [that] the question now is whether the jury [that] we have picked can be
fair and impartial[.] But I will leave that part [] of it off. I will simply ask the [‘strong
feelings’] question[s] as you stated[.]” Collins’s counsel stated: “[N]ot only am I moving
for a mistrial, I object to the[] jurors being asked those two [‘strong feelings’] questions.”
The jury returned to the courtroom, and the circuit court addressed it as follows:
THE COURT: Members of the jury, before you hear the first witness, I am going to re-ask two questions that we covered earlier[,] but I am going to ask them [in] a slightly different manner.
If either of these apply to you, please let me know, and we will take your response up here privately.
Does any member of this panel have strong feelings about the offense of burglary, is the first question?
(No audible response.)
THE COURT: I see no responses. The next question [is,] does any member of this panel have strong feelings about the offense of theft?
(No audible response.)
THE COURT: I see no responses.
(Emphasis added). The circuit court then allowed the State to call its first witness.
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Trial Testimony and Verdicts
As a witness for the State, Tower testified that, on March 17, 2017, at approximately
11:20 p.m., she and her husband were in bed in their home at 801 Severn Avenue in
Annapolis. Tower, who was awake, heard noises. Tower nudged her husband awake and
said: “I think there’s somebody downstairs.” Tower’s husband went downstairs. Tower
called 911, then went downstairs. Items were “scattered all over” the television room.
Tower’s Michael Kors jacket, her son’s Xbox, a few of his Xbox games, and his
headphones were missing.
As a witness for the State, Sergeant Kenneth Brown of the Annapolis Police
Department testified that, on March 17, 2017, at 11:21 p.m., he was informed of a report
of a burglary at 801 Severn Avenue. Sergeant Brown drove on Wells Avenue towards
Adams Street. According to Sergeant Brown, the intersection of Wells Avenue and Adams
Street is within five minutes’ walking distance from 801 Severn Avenue. To his right,
Sergeant Brown saw Collins walking in the opposite direction on the sidewalk on Wells
Avenue with a garbage bag over his shoulder. Sergeant Brown reached the intersection of
Wells Avenue and Adams Street, made a three-point turn, and started driving back on
Wells Avenue. Sergeant Brown saw Collins, who was no longer holding the garbage bag,
walk back onto the sidewalk on the south side of Wells Avenue from 408 Adams Street,
which is on the corner of Wells Avenue and Adams Street. Then, Collins resumed walking.
Sergeant Brown exited his vehicle and spoke to Collins. After another officer arrived,
Sergeant Brown checked the other side of a fence on one end of 408 Adams Street, and
found a garbage bag that contained a Michael Kors jacket, an Xbox, two Xbox games,
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headphones, and an empty cell phone case. Throughout his investigation, Sergeant Brown
did not see anyone else in the area besides Collins and the other officer.
After Sergeant Brown finished testifying, the State rested, and Collins rested
without offering any evidence. The jury found Collins guilty of first-degree burglary and
theft of property with a value of less than $1,000.
Opinion of the Court of Special Appeals
Collins appealed. On August 30, 2018, the Court of Special Appeals affirmed
Collins’s convictions. See Collins v. State, 238 Md. App. 545, 561, 192 A.3d 920, 929
(2018). The Court of Special Appeals held that the circuit court did not err during voir
dire, and, alternatively, that the circuit court cured any error after the jury was seated. See
id. at 557-58, 192 A.3d at 927-28. Writing for the panel of the Court of Special Appeals,4
Judge Charles E. Moylan, Jr. acknowledged that, “if the two originally posed compound
questions inquiring about ‘strong feelings’ with respect to burglary and theft respectively
were before us in a vacuum, [Collins] would be armed with a very viable contention.”
Collins, 238 Md. App. at 552, 192 A.3d at 925. Judge Moylan went on to state: “Those
originally posed compound questions, however, did not long remain in a vacuum. They
are, as we now look back upon the trial, but part of a larger and more significant totality.”
Id. at 553, 192 A.3d at 925. Judge Moylan observed that the circuit court asked whether
any prospective jurors had “any preconceived feelings about [certain] issues[,]” whether
4Judge Melanie Shaw Geter joined the majority opinion; Judge Kathryn Grill Graeff joined in the judgment only, and did not write separately. See Collins, 238 Md. App. at 561, 192 A.3d at 929.
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they had “any other emotion to influence [their] verdict in any way in this case[,]” whether
they had been the victim of a crime, and whether there was “any other reason” why they
could not be fair and impartial. See id. at 553-54, 192 A.3d at 925-26. Judge Moylan
addressed the significance of these questions—as well as this Court’s holding in Pearson,
437 Md. at 363, 86 A.3d at 1239, that compound “strong feelings” questions are
improper—as follows:
We are not suggesting that any one of these questions individually passed muster pursuant to Pearson, but only that, under the circumstances of this case, the sheer accumulation of the inquiries in their totality would have brought out anything significant that a direct question about “strong feelings” could have brought out. We cannot conceive of what ground for disqualification might have been unearthed by a simple, non-compound “strong feelings” question that was not unearthed by the totality of questions that actually were asked in this case. Whatever the compound questions about “strong feelings” may have failed to uncover directly was fully uncovered by the totality of questions that were asked. Everything was explored that reasonably should have been explored, even if by alternative interrogative avenues. That, of course, is the bottom-line goal of the voir-dire examination and not a preference for the simple over the compound question simply as an academic abstraction. We do not foreclose the possibility of some diabolical law-school hypothetical, but, as a practical matter, everything that should have been brought out was brought out. As for the law-school hypothetical, we will not anguish over whether Plato might have been disqualified as a juror based upon some arcane factor other than his own or familial life experiences. We are not administering the voir-dire process as a drill, or as a precise rubric, just for the sake of the drill.
Id. at 554-55, 192 A.3d at 926 (underlining in original). Addressing the issue of whether
the “victim” question could substitute for the “strong feelings” question, Judge Moylan
stated:
[A] properly framed question about “strong feelings” is at least the equivalent of, and therefore an adequate substitute for, a missing question about personal or familial involvement with the crime. But is the converse also
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true? Is a question about personal or familial involvement the equivalent of, and an adequate substitute for, a missing or improperly[-]phrased question about “strong feelings”? Equivalency can be a tricky thing. Is the more general question broader and the more specific question narrower? Might it be that a broader question could substitute for a missing narrower question, but that a narrower question would not substitute for a missing broader question? Or are we slicing the analysis too thinly, and should simply accept equivalency as a general truth? Pearson, of course, had no occasion to deal with its converse, and, therefore, does not answer our question. In our reading of Pearson, however, we find nothing to foreclose the acceptance of the converse. As a practical matter, a prospective juror with “strong feelings” and a prospective juror with some personal or familial experience with a similar crime would both have been called to the bench. They would both have been probed, by court and counsel, about the source of their “strong feelings” or their involvement with the crime. Both lines of inquiry would have led to the same place. It seems to us almost inevitable that both inquiries would have revealed the same underlying circumstances, whichever way the initial question, which triggered the further examination at the bench, had been put. Looking at the totality of this voir-dire examination, we conclude that no critical or dispositive fact was left undiscovered.
Collins, 238 Md. App. at 557, 192 A.3d at 927 (underlining in original). Judge Moylan
reasoned that, given that the circuit court asked the seated jurors whether they had strong
feelings about burglary and/or theft, Collins had “received, perhaps an hour and one-half
later, precisely what he had sought one hour and one-half earlier, a jury competent to return
a fair and impartial verdict. Nothing of any critical significance had occurred in that
intervening hour and one-half.” Id. at 558, 192 A.3d at 928.
Finally, Judge Moylan rejected Collins’s contention that the circuit court’s failure
to ask properly-phrased “strong feelings” questions during voir dire impaired his purported
right to intelligently exercise peremptory strikes, stating:
Unfortunately for [Collins], he mounts his argument in the wrong [S]tate. Although the law in many jurisdictions might be receptive to
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[Collins]’s contention, the law of Maryland is not and never has been. The voir-dire examination in Maryland does not exist, even partially, for the purpose of supplying information to trial counsel that may guide them in the strategic use of their peremptory challenges. . . . Thus, the “right” asserted by [Collins] does not exist in Maryland.
Id. at 559-60, 192 A.3d at 928-29 (underlining in original).
Petition for a Writ of Certiorari
On September 26, 2018, Collins petitioned for a writ of certiorari, raising the
following three issues:
1. . . . . Did the Court of Special Appeals err in this case when it held that the [circuit] court’s failure to ask the [prospective jurors] properly[-]phrased “strong feelings” questions was not reversible error in light of the fact that the [circuit] court asked the [prospective jurors] whether [they or] anyone . . . in their immediate family had been the victim of a crime?
2. Did the Court of Special Appeals err in this case when it held that the [circuit] court’s failure to ask the [prospective jurors] properly[-]phrased “strong feelings” questions was not reversible error in light of the fact that the [circuit] court asked the [] jury properly[-]phrased “strong feelings” questions after the jury had been sworn and had heard opening statements?
3. Did the Court of Special Appeals err when it held that the [circuit] court’s failure to ask the [prospective jurors] properly[-]phrased “strong feelings” questions was not reversible error in light of the fact that the [circuit] court asked a number of other generic questions?
On November 7, 2018, this Court granted the petition. See Collins v. State, 461 Md. 612,
196 A.3d 904 (2018).
DISCUSSION
The Parties’ Contentions
Collins contends that the circuit court abused its discretion by asking during voir
dire compound “strong feelings” questions and refusing to ask properly-phrased ones.
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Collins argues that, under Pearson, 437 Md. at 363, 86 A.3d at 1239, the compound “strong
feelings” questions were improper because they shifted to the prospective jurors the
responsibility to determine whether any strong feelings would render them unable to be
fair and impartial. Collins asserts that the “victim” question could not substitute for
properly-phrased “strong feelings” questions because some prospective jurors may have
had strong feelings about burglary and/or theft, even though neither they nor any of their
immediate relatives had been victims of crimes. Collins maintains that the “catchall”
question—as well as the “something in the past” question and the “sympathy, pity, anger,
or any other emotion” question—were compound questions, and thus shifted to the
prospective jurors the burden to determine whether they could be fair and impartial.
Collins contends that the circuit court did not cure its abuse of discretion by asking
the jury properly-phrased “strong feelings” questions. Collins argues that, when the circuit
court asked the selected jury properly-phrased “strong feelings” questions, the jurors—
none of whom had responded earlier to the compound “strong feelings” questions—may
have been reluctant to respond because they would appear to have changed their answer,
or because they would have been embarrassed to respond during the trial, as opposed to
during voir dire. Collins also asserts that the jurors may have already become invested in
this case, and may have formed ideas about the case as a result of the opening statements.
Alternatively, despite this Court’s case law establishing that voir dire does not exist to
facilitate the use of peremptory strikes, Collins maintains that the circuit court’s failure to
ask properly-phrased “strong feelings” questions during voir dire impaired his purported
right to intelligently exercise peremptory strikes.
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The State responds that the circuit court did not abuse its discretion because the
questions that the circuit court asked during voir dire elicited any potential bias based on
the nature of the charges of burglary and/or theft, and made clear which prospective jurors
would have responded to properly-phrased “strong feelings” questions. The State contends
that the prospective jurors who were most likely to have had strong feelings about burglary
and/or theft, yet believed that they could still be fair and impartial, were the prospective
jurors who responded to the “victim” question. The State argues that the “victim” question,
the “sympathy, pity, anger, or any other emotion” question, and the “something in the past”
question ensured that any of the prospective jurors who had experiences with crime were
brought to the attention of the circuit court and counsel. The State asserts that, by stating
“we are trying to make sure nobody has any preconceived feelings about any of these
issues” immediately after asking the “something in the past” question, the circuit court
helped ensure that any potential bias would be elicited. The State maintains that this Court
should not interpret Pearson, 437 Md. at 363, 86 A.3d at 1239, to require trial courts to
follow a precise rubric for voir dire questions. The State contends that, in Pearson, the
compound “strong feelings” question was improper not necessarily because a trial court
must ask the “strong feelings” question in non-compound form, but instead because, in
Pearson, the trial court did not ask any other questions that would have elicited the
information that a properly-phrased “strong feelings” question would have. The State
argues that the circuit court cured any error by asking the jury properly-phrased “strong
feelings” questions later.
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Standard of Review
An appellate court reviews for abuse of discretion a trial court’s “rulings on the
record of the voir dire process as a whole[.]” Pearson, 437 Md. at 356, 86 A.3d at 1235
(citation omitted).
Law
In Dingle v. State, 361 Md. 1, 8-9, 5-6, 759 A.2d 819, 823, 821 (2000), this Court
held that a trial court abused its discretion by asking during voir dire compound questions,
such as: “[H]ave you or any family member or a friend been the victim of a crime, and[,]
if the answer to that part of the question is yes, would that fact interfere with your ability
to be fair and impartial in this case?” This Court observed that a trial court “must decide
whether, and when, cause for disqualification exists for any particular [prospective juror].
That is not a position occupied, or a decision to be made, by . . . the individual [prospective
juror]s.” Id. at 14-15, 759 A.2d at 826. This Court determined that, in Dingle, the trial
court “avoid[ed] examination of each affected [prospective juror] as to the admittedly
relevant matters[,] and allow[ed] each such person to make his or her own call as to his or
her qualification to serve.” Id. at 14, 759 A.2d at 826. In other words, this Court concluded
that the compound questions “usurped the [trial] court’s responsibility” to “determine, in
the final analysis, the fitness of the individual” prospective jurors. Id. at 8-9, 759 A.2d at
823. This Court explained that the compound questions also “deprived [the defendant] of
the ability to challenge . . . for cause” any prospective jurors who did not respond to the
compound questions because the defendant lacked “information bearing on the relevant
experiences or associations of” those prospective jurors. Id. at 21, 759 A.2d at 830. This
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Court reiterated that the compound questions interfered with both the trial court’s ability
to determine whether prospective jurors were biased and the defendant’s ability to move to
strike prospective jurors for cause, stating:
Because [the trial court] did not require an answer to be given to the question as to the existence of the status or experience unless accompanied by a statement of partiality, the trial [court] was precluded from discharging [its] responsibility, i.e. exercising discretion, and, at the same time, the [defendant] was denied the opportunity to discover and challenge [prospective juror]s who might be biased.
Id. at 17, 759 A.2d at 828.
Despite having expressly disapproved of compound questions in Dingle, in three
subsequent cases, this Court held that trial courts abused their discretion by refusing to ask
compound “strong feelings” questions. In State v. Thomas, 369 Md. 202, 204-05, 798
A.2d 566, 567-68 (2002), this Court held that a trial court abused its discretion by refusing
to ask: “Does any member of the jury panel have such strong feelings regarding violations
of the narcotics laws that it would be difficult for you to fairly and impartially weigh the
facts at a trial where narcotics violations have been alleged?” (Footnote omitted). In Sweet
v. State, 371 Md. 1, 9-10, 806 A.2d 265, 270-71 (2002), this Court held that a trial court
abused its discretion by refusing to ask: “Do the charges stir up strong emotional feelings
in you that would affect your ability to be fair and impartial in this case?” And, in State v.
Shim, 418 Md. 37, 40, 42, 12 A.3d 671, 672-73, 674 (2011), this Court held that a trial
court abused its discretion by refusing to ask: “Does any member of the jury panel have
such strong feelings concerning the violent death of another human being that you would
be unable to render a fair and impartial verdict based solely on the evidence presented?”
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Notably, “although Thomas, Sweet, and Shim postdate Dingle, in none of the three
cases did this Court supersede Dingle; in Thomas, Sweet, and Shim, this Court did not
address any issue regarding the ‘strong feelings’ [] questions’ phrasings.” Pearson, 437
Md. at 363-64, 86 A.3d at 1240. In Thomas, 369 Md. at 204 n.1, 798 A.2d at 567 n.1, in a
footnote in the background section of this Court’s opinion, this Court commented, in dicta:
“When the inquiry is into the state of mind or attitude of the [prospective jurors] with regard
to a particular crime or category of crimes, it is appropriate to phrase the question as was
done in this case.” This Court did not explain how a compound “strong feelings” question
could be permissible under Dingle, or otherwise provide any reasoning for its dicta. See
Thomas, 369 Md. at 204 n.1, 798 A.2d at 567 n.1. In any event, in Thomas, no issue as to
the phrasing of the “strong feelings” question was before this Court, as the defendant
specifically requested that the trial court ask the “strong feelings” question in compound
form, and the trial court refused; thus, the question was whether the trial court abused its
discretion by refusing to ask the “strong feelings” question, not whether the “strong
feelings” question was phrased properly. See id. at 204, 798 A.2d at 567.
In Pearson, 437 Md. at 363, 86 A.3d at 1239, this Court overruled Thomas, Sweet,
and Shim to the extent that they required a trial court, on request, to ask the “strong
feelings” question in compound form, and held “that, on request, a trial court must ask
during voir dire: ‘Do any of you have strong feelings about [the crime with which the
defendant is charged]?’” (Brackets in original). This Court “reaffirm[ed] this Court’s
essential holding in Shim that, on request, a trial court must ask during voir dire whether
any prospective juror has ‘strong feelings’ about the crime with which the defendant is
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charged.” Pearson, 437 Md. at 363, 86 A.3d at 1239. This Court “simply recognize[d]
that, in Shim and its parent cases, the ‘strong feelings’ [] questions’ phrasings were at odds
with Dingle, 361 Md. at 21, 759 A.2d at 830.” Pearson, 437 Md. at 363, 86 A.3d at 1239
(citations omitted). This Court explained why compound “strong feelings” questions are
inconsistent with Dingle, stating:
Just like the phrasing of the [compound] questions in Dingle, [361 Md.] at 5, 759 A.2d at 821, the phrasing of the “strong feelings” [] question in Shim “shifts from the trial [court] to the [prospective jurors] responsibility to decide [prospective] juror bias.” Dingle, 361 Md. at 21, 759 A.2d at 830. In other words, as with the [compound] questions’ phrasings in Dingle, id. at 5, 759 A.2d at 821, the phrasing of the “strong feelings” [] question in Shim required each prospective juror to evaluate his or her own potential bias. Specifically, under Shim, 418 Md. at 54, 12 A.3d at 681, each prospective juror decides whether his or her “strong feelings” (if any) about the crime with which the defendant is charged “would [make it] difficult for [the prospective juror] to fairly and impartially weigh the facts.” That decision belongs to the trial court, not the prospective juror.
Pearson, 437 Md. at 362, 86 A.3d at 1239 (some alterations in original).
In Pearson, id. at 354-55, 86 A.3d at 1234, during voir dire, the trial court asked the
following compound “strong feelings” question: “Does any member of the panel hold such
strong feelings regarding violations of the narcotics laws that it would be difficult for you
to fairly and impartially weigh the facts of this trial where narcotics violations have been
alleged?” The trial court refused to ask whether any of the prospective jurors knew anyone
who had been the victim of a crime, or who had been a member of a law enforcement
agency. See id. at 354-55, 86 A.3d at 1234.
Before this Court, the defendant contended that the trial court abused its discretion
by refusing to ask the “victim” question. See id. at 356, 86 A.3d at 1235. “[F]or three
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reasons, [this Court] conclude[d] that a trial court need not ask during voir dire whether
any prospective juror has ever been the victim of a crime.” Id. at 359, 86 A.3d at 1237.
“First, a prospective juror’s experience as the victim of a crime lacks a demonstrably strong
correlation with a mental state that gives rise to specific cause for disqualification.” Id. at
359, 86 A.3d at 1237 (cleaned up). “Second, the ‘victim’ [] question may consume an
enormous amount of time.” Id. at 359, 86 A.3d at 1237 (citation omitted). “Third, this
Court ha[d] already held that, on request, a trial court must ask during voir dire whether
any prospective juror has ‘strong feelings about’ the crime with which the defendant is
charged.” Id. at 360, 86 A.3d at 1238 (quoting Shim, 418 Md. at 54, 12 A.3d at 681). This
Court explained: “The ‘strong feelings’ [] question makes the ‘victim’ [] question
unnecessary by revealing the specific cause for disqualification at which the ‘victim’ []
question is aimed”—“assuming that the ‘strong feelings’ [] question is phrased properly.”
Pearson, 437 Md. at 360, 361 n.4, 86 A.3d at 1238 & n.4 (footnote omitted). As discussed
above, this Court concluded that the “strong feelings” question is phrased properly if and
only if it is in non-compound form. See id. at 363, 86 A.3d at 1239. Accordingly, this
Court determined that, in Pearson, although the trial court did not abuse its discretion by
refusing to ask the “victim” question, the trial court abused its discretion by asking the
“strong feelings” question in compound form. See id. at 364, 86 A.3d at 1240.
The defendant also argued that the trial court abused its discretion by refusing to ask
the “law enforcement agency” question. See id. at 364, 86 A.3d at 1240. This Court held
that:
where all of the State’s witnesses are members of law enforcement agencies
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and/or where the basis for a conviction is reasonably likely to be the testimony of members of law enforcement agencies, on request, a trial court must ask during voir dire: “Have any of you ever been a member of a law enforcement agency?”
Id. at 369, 86 A.3d at 1243. This Court determined that, because all of the State’s witnesses
in Pearson were law enforcement officers, the trial court abused its discretion by refusing
to ask the “law enforcement agency” question. See id. at 369, 86 A.3d at 1243.
Analysis
In this case, we reaffirm our holding in Pearson, 437 Md. at 354, 86 A.3d at 1234,
that, on request, a trial court is required to ask a properly-phrased—i.e., non-compound—
“strong feelings” question. In other words, under Pearson, during voir dire, on request, a
trial court must ask: “Do any of you have strong feelings about [the crime with which the
defendant is charged]?” We reiterate that, during voir dire, on request, a trial court must
ask the “strong feelings” question in the form set forth above, and it is improper for a trial
court to ask the “strong feelings” question in compound form, such as: “Does any member
of the jury panel have such strong feelings about [the charges in this case] that it would be
difficult for you to fairly and impartially weigh the facts?”
We hold that, in this case, the circuit court abused its discretion by asking compound
“strong feelings” questions and refusing to ask properly-phrased “strong feelings”
questions during voir dire. We decline the State’s invitation to determine that the other
questions that the circuit court asked during voir dire could substitute for properly-phrased
“strong feelings” questions, and we hold that the circuit court did not cure its abuse of
discretion by later asking the selected jury properly-phrased “strong feelings” questions,
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after the conclusion of voir dire and opening statements.
By asking compound “strong feelings” questions and refusing to ask properly
phrased ones during voir dire, the circuit court prevented voir dire from fulfilling its
purpose of “ensur[ing] a fair and impartial jury by determining the existence of specific
cause for disqualification.” Pearson, 437 Md. at 356, 86 A.3d at 1235 (cleaned up).
Compound “strong feelings” questions are improper because they “‘shift[] from the trial
court to the prospective jurors [the] responsibility to decide prospective juror bias.’” Id. at
362, 86 A.3d at 1239 (quoting Dingle, 361 Md. at 21, 759 A.2d at 830) (brackets omitted).
Specifically, where a trial court asks a compound “strong feelings” question, “each
prospective juror decides whether his or her strong feelings (if any) about the crime with
which the defendant is charged would make it difficult for the prospective juror to fairly
and impartially weigh the facts.” Pearson, 437 Md. at 362, 86 A.3d at 1239 (cleaned up).
Compound “strong feelings” questions make it impossible to know whether any
prospective juror, in fact, had strong feelings about the crimes with which the defendant
was charged, yet determined for him- or herself that he or she could be fair and impartial
despite his or her strong feelings. For example, here, although no prospective juror
responded to the compound “strong feelings” questions, the record leaves us in the dark
regarding whether any prospective juror had strong feelings about burglary and/or theft,
but nonetheless judged him- or herself to be able to be fair and impartial.
Critically, by asking compound “strong feelings” questions, the circuit court failed
to elicit significant information, in response to which Collins’s counsel could have
followed up with further questions, and moved to strike prospective jurors for cause. As
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this Court explained in Dingle, 361 Md. at 21, 759 A.2d at 830, compound questions
“deprive[ the defendant’s counsel] of the ability to challenge [certain prospective juror]s
for cause” because compound questions fail to elicit “information bearing on the relevant
experiences or associations of the [prospective juror]s who were not required to respond[.]”
In short, the circuit court should have asked, but failed to ask, properly-phrased “strong
feelings” questions during voir dire.
Contrary to the position of the State and the Court of Special Appeals, see Collins,
238 Md. App. at 557, 192 A.3d at 927, the “victim” question cannot substitute for a
properly-phrased “strong feelings” question. Nor can the “law enforcement agency”
question, for that matter. It is possible for a prospective juror to have strong feelings about
a particular crime even though neither the prospective juror, nor any of his or her relatives
or friends, has ever been a victim of a crime or a member of a law enforcement agency.
For example, suppose that, in a murder case, a prospective juror has never been a victim of
a crime or a member of a law enforcement agency, and neither have any of the prospective
juror’s relatives or friends. The prospective juror, however, regularly watches television
shows that sensationalize various murders; as a result, the prospective juror has strong
feelings about murder. This is simply one of countless examples of prospective jurors who
would have strong feelings about a crime, yet would not respond to the “victim” question
or the “law enforcement agency” question. The “victim” question is also ineffective as a
substitute for a properly-phrased “strong feelings” question where, as here, a trial court
asks whether any prospective jurors or their close relatives have been victims of crime, but
does not ask whether any prospective jurors’ friends have been victims of crime. It is
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critical that a trial court ask a properly-phrased “strong feelings” question on request during
voir dire because, generally speaking, other questions are not as effective at eliciting bias
that is directly related to the crime with which the defendant is charged.
Like the “victim” and “law enforcement agency” questions, the other questions that
the circuit court asked could not substitute for properly-phrased “strong feelings”
questions. The circuit court asked whether any prospective jurors “had something happen
to [them] in the past that would prevent [them] from either returning a verdict of guilty or
not guilty in a criminal case under any circumstances[.]” Immediately afterward, the circuit
court added: “[W]e are trying to make sure nobody has any preconceived feelings about
any of these issues because, ultimately, I will instruct you that[,] when you render a verdict,
it is going to based only on the evidence that you hear in this case and nothing else.” Later,
the circuit court asked whether any prospective jurors “would allow sympathy, pity,
anger[,] or any other emotion to influence [their] verdict in any way in this case[.]”
Immediately afterward, the circuit court added: “The verdict should not be based on those
feeling[s], they should be based on the evidence.” Still later, the circuit court asked the
following “catchall” question: “Is there any other reason that we have not already explained
or discussed why any member of this panel cannot be a fair and impartial juror in this case,
anything that we have not covered?”
We disagree with the reasoning of the State and the Court of Special Appeals, see
Collins, 238 Md. App. at 553-55, 192 A.3d at 925-26, that it is consequential that none of
the prospective jurors responded to the “something in the past,” “sympathy, pity, anger, or
any other emotion,” and “catchall” questions. These questions essentially constituted
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compound questions because they “‘shift[ed] from the trial court to the prospective jurors
responsibility to decide prospective juror bias.’” Pearson, 437 Md. at 362, 86 A.3d at 1239
(quoting Dingle, 361 Md. at 21, 759 A.2d at 830) (brackets omitted). The “something in
the past” question required the prospective jurors to decide for themselves whether any
prior experiences would “prevent” them from reaching a particular verdict “under any
circumstances[.]” Similarly, the “sympathy, pity, anger, or any other emotion” question
required the prospective jurors to decide for themselves whether any emotion would
“influence” the verdicts. Finally, the “catchall” question required the prospective jurors to
decide for themselves whether any matter that had not already been covered would prevent
them from being “fair and impartial[.]”
Due to the way in which the circuit court phrased these three questions, it is
impossible to know whether any prospective juror refrained from responding because, even
though he or she was involved with a prior experience, emotion, or other matter that posed
a threat to his or her ability to be fair and impartial, the prospective juror determined for
him- or herself that the prior experience, emotion, or other matter would not prevent him
or her from being fair and impartial. To be clear, a trial court may ask the “something in
the past,” “sympathy, pity, anger, or any other emotion,” and “catchall” questions. Our
point with regard to the “something in the past,” “sympathy, pity, anger, or any other
emotion,” and “catchall” questions is that, contrary to the position of the State and the
Court of Special Appeals, see Collins, 238 Md. App. at 553-55, 192 A.3d at 925-26, these
questions did not substitute for properly-phrased “strong feelings” questions.
On a related note, the State is incorrect in arguing that, in Pearson, the compound
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“strong feelings” question was improper not necessarily because a trial court must ask the
“strong feelings” question in non-compound form, but instead because, in Pearson, the trial
court did not ask any other questions that would have elicited the information that a
properly-phrased “strong feelings” question would have. The State misapprehends this
Court’s holding in Pearson, 437 Md. at 364, 86 A.3d at 1240, which was that the trial “court
abused its discretion by phrasing the ‘strong feelings’ [] question” in compound form.
Indeed, the whole point of this Court’s holding was to specifically require a trial court, on
request, to ask the “strong feelings” question in non-compound form; this Court expressly
held that, “on request, a trial court must ask during voir dire: ‘Do any of you have strong
feelings about [the crime with which the defendant is charged]?’” Id. at 364, 86 A.3d at
1240 (brackets in original). Tellingly, in a line of cases that began more than a decade
before Pearson, this Court had held that trial courts abused their discretion by refusing to
ask compound “strong feelings” questions. See Thomas, 369 Md. at 204-05, 798 A.2d at
567-68; Sweet, 371 Md. at 9-10, 806 A.2d at 270-71; Shim, 418 Md. at 40, 42, 12 A.3d at
672-73, 674. Thus, by the time that this Court decided Pearson, it was already well
established that the “strong feelings” question is mandatory on request. In Pearson, 437
Md. at 362-63, 86 A.3d at 1239, this Court reaffirmed that principle, and determined that,
under Dingle, 361 Md. at 21, 759 A.2d at 830, where the “strong feelings” question is
requested, a trial court must ask it in non-compound form. In sum, although we understand
the Court of Special Appeals’s reasoning, we disagree with its determination that
“[w]hatever the compound questions about ‘strong feelings’ may have failed to uncover
directly was fully uncovered by the totality of questions that were asked.” Collins, 238
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Md. App. at 555, 192 A.3d at 926.
Having concluded that the other questions that the circuit court asked during voir
dire could not substitute for properly-phrased “strong feelings” questions, we now explain
why, contrary to the position of the State and the Court of Special Appeals, see Collins,
238 Md. App. at 558, 192 A.3d at 928, the circuit court did not cure its abuse of discretion
by later asking the selected jury properly-phrased “strong feelings” questions. To be sure,
“[a]n appellate court presumes that prospective jurors are honest in deciding whether to
respond affirmatively to a voir dire question.” Pearson, 437 Md. at 360 n.3, 86 A.3d at
1238 n.3 (citations omitted). That said, in this case, although none of the selected jurors
responded to the properly-phrased “strong feelings” questions, multiple circumstances cast
doubt on our ability to conclude that the jurors’ lack of response would have been the same
had the circuit court asked properly-phrased “strong feelings” questions during voir dire.
For one thing, the circuit court had already asked compound “strong feelings” questions
during voir dire; and, after the jury was seated, the circuit court prefaced the properly
phrased “strong feelings” questions by stating: “I am going to re-ask two questions that we
covered earlier[,] but I am going to ask them [in] a slightly different manner.” Under these
circumstances, it is not clear that the jurors would have appreciated the difference between
the compound “strong feelings” questions and the properly-phrased ones. Despite having
been asked properly-phrased “strong feelings” questions later, each juror may have been
left with the impression that, as the compound “strong feelings” questions had indicated
earlier, even if the juror had strong feelings about burglary and/or theft, he or she did not
need to respond if, in his or her view, such strong feelings would not have rendered him or
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her unable to be fair and impartial. If there were any jurors who had strong feelings about
burglary and/or theft, yet judged themselves to still be able to be fair and impartial, those
jurors, after having been exposed to the compound “strong feelings” questions, may have
opted not to respond to the properly-phrased “strong feelings” questions later.
Additionally, jurors may have failed to respond because they thought that
responding was unnecessary, as the circuit court had previously asked “strong feelings”
questions; or, the jurors may have been hesitant to respond because they were concerned
about appearing to have changed their response to the “strong feelings” questions. Such
hesitation could have been brought about by the circumstance that, when the circuit court
asked the jury properly-phrased “strong feelings” questions, the jurors were in a group of
fourteen people in the jury box. Accordingly, compared to responding to the compound
“strong feelings” questions during voir dire in a large group, responding to the properly
phrased “strong feelings” questions during the trial would have drawn much more attention
to any responding juror.
By the time that the circuit court asked the jury properly-phrased “strong feelings”
questions, the jurors had already been sworn, had already heard preliminary jury
instructions, and had already heard opening statements. In other words, the jurors knew
that the trial was underway, and that each of them was part of a select group of people who
had been chosen to be the triers of fact. As a result, it is reasonable to infer that, at this
point, the jurors may have felt invested in this case, and felt obligated to participate in the
trial to its conclusion. It would have been obvious that the circuit court might excuse any
juror who responded affirmatively to the properly-phrased “strong feelings” questions.
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Accordingly, the idea of responding to the properly-phrased “strong feelings” questions
may have prompted concerns for the jurors about being relieved of their positions on the
jury. Also, a juror may have felt that, if he or she were excused, the time that he or she had
spent listening to the preliminary jury instructions and the opening statements would have
been a waste.
None of these concerns would have existed during voir dire. At that time, none of
the prospective jurors knew whether they would be seated as jurors. Additionally, apart
from the circuit court’s one-sentence summary of the allegations against Collins, none of
the prospective jurors knew anything about this case’s facts. As a result, during voir dire,
the prospective jurors were not invested in this case in any way. There were forty-five
prospective jurors. Any response to the compound “strong feelings” question while there
was a group of forty-five prospective jurors in the gallery during voir dire would have
generated far less attention than a response to the properly-phrased “strong feelings”
questions while there was a group of fourteen jurors in the jury box during the trial. In
short, the circumstances that the selected jurors were under when the circuit court asked
the jury properly-phrased “strong feelings” questions did not exist during voir dire. We
cannot conclude that the circuit court court’s asking properly-phrased “strong feelings”
questions of selected jurors cured any abuse of discretion that was caused by asking the
compound “strong feelings” questions during voir dire.
In conclusion, asking the selected jury properly-phrased “strong feelings” questions
after preliminary jury instructions and opening statements was too little, too late. By the
time that the trial was underway, it was impossible to recreate the circumstances that had
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existed during voir dire, and the circumstances were such that the selected jurors were less
likely to disclose the existence of any strong feelings about burglary and/or theft. In other
words, we do not share the Court of Special Appeals’s certainty that “no juror with ‘strong
feelings’ served on [the] jury.” Collins, 238 Md. App. at 560 n.2, 192 A.3d at 929 n.2.5
Finally, to be clear, we reject Collins’s contention that asking the jury properly
phrased “strong feelings” questions did not cure the circuit court’s abuse of discretion
because the circuit court’s failure to ask such questions during voir dire impaired his
purported right to intelligently use peremptory strikes. As the Court of Special Appeals
aptly explained, Collins “mounts his argument in the wrong [S]tate” because, in Maryland,
voir dire “does not exist, even partially, for the purpose of supplying information to trial
counsel that may guide them in the strategic use of their peremptory challenges.” Collins,
238 Md. App. at 559, 192 A.3d at 928. In cases, from as recently as two years ago, see
Collins v. State, 452 Md. 614, 622, 158 A.3d 553, 558 (2017), to Pearson, 437 Md. at 356
57, 86 A.3d at 1235-36, to as far back as more than a century ago, see Handy v. State, 101
Md. 39, 43-44, 60 A. 452, 454 (1905), this Court has consistently confirmed that Maryland
employs limited voir dire—that is, in Maryland, voir dire’s sole purpose is to elicit specific
5Although this Court has applied the doctrine of harmless error to a trial court’s decision to ask a particular question during voir dire, see State v. Stringfellow, 425 Md. 461, 465, 42 A.3d 27, 29 (2012), curiously, in its brief, the State does not contend that the circuit court’s abuse of discretion was harmless. At oral argument, the Assistant Attorney General explained that the State’s contention “isn’t a ‘harmless error’ argument, but it’s a ‘correction of the error’ argument[.]” As such, we do not address harmless error. (Continued...)
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cause for disqualification, not to aid counsel in the intelligent use of peremptory strikes.6
Outcome: For the above reasons, the circuit court abused its discretion by asking compound
“strong feelings” questions and refusing to ask properly-phrased ones during voir dire, and
the circuit court did not cure its abuse of discretion by asking the jury properly-phrased
“strong feelings” questions. We reverse and remand for a new trial. On remand, the circuit
court must, on request, ask properly-phrased “strong feelings” questions during voir dire.
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