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Voir dire error dooms murder conviction

Prospective jurors must be questioned about any potential biases related to the alleged criminal act before them, the Court of Appeals has held in affirming a lower court’s decision to overturn a murder conviction.

Previous rulings by the state’s highest court on mandatory voir dire questions have led some to “understandably believe that we have engaged in a crime-by-crime approach,” Judge Sally D. Adkins wrote. So the judges decided to clarify in unanimously ordering a new trial for Fabian Andre Shim.

“When requested by a defendant, and regardless of the crime, the court should ask the general question, ‘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?’” Adkins wrote.

Retired Judge Dennis M. Sweeney, an expert on jury trial issues, said the court’s “fill-in-the-blank” approach will make voir dire clearer for trial judges.

“That provides simplicity and certainty, which was definitely needed in voir dire questions,” said Sweeney, who chairs the Judiciary’s Committee on Jury Use and Management and writes an occasional column on the subject for The Daily Record. “It shouldn’t unduly delay picking the jury.”

How many criminal cases underway or on appeal will be affected by the court’s ruling is unknown, he added.

A Prince George’s County jury convicted Shim of first-degree murder in 2007 in the shooting death of Reina Tasha Lynch, the mother of his daughter. Lynch was found shot to death at her overnight security job in November 2006, nine days after she and Shim attended a pretrial settlement conference to determine Shim’s child support payment.

Shim’s lawyer at trial requested members of the jury panel be asked if they 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,” according to the opinion. Then-Circuit Judge Michele D. Hotten declined, saying it was “not related to the overriding purpose and goal of voir dire in this case,” according to the opinion. (Hotten is now a judge on the Court of Special Appeals.)

The state’s highest court previously held potential jurors must be asked if they have “strong feelings” regarding the crimes charged, but in one case held that a question about jurors’ views on handguns was not relevant to an armed robbery trial. In Shim’s case, lawyers for the state argued the “violent death” question was akin to the handgun one.

But Adkins said the underlying lesson in all of the rulings is that voir dire questions must uncover biases “directly related” to the crime. In the handgun case, jurors would only be accepting or rejecting prosecutors’ evidence showing the weapon was used to commit the crime, not “weighing issues” related to the gun.

In Shim’s case, by contrast, Lynch’s death “is the central event and only issue,” Adkins wrote.

“The State’s approach fails to see the ‘forest’ of our voir dire principles for the ‘trees’ that are the factual circumstances of our initial decisions,” Adkins wrote.

The phrase “violent death” used in the proposed question at trial was close enough to the term “murder,” Adkins added — another point the state contended in seeking to overturn the intermediate appellate court ruling.

“To hold differently, moreover, would make voir dire an exercise in semantics and a minefield for criminal defendants and the State,” she wrote. “We decline to make such fine distinctions or create more uncertainty.”

Brian S. Kleinbord, chief of the criminal appeals division at the Office of the Attorney General, said county prosecutors will be advised about voir dire questions accordingly, even though he did not agree with the court’s opinion.

“We think the trial judge was right not to ask this poorly-phrased question,” he said.

The Court of Appeals also affirmed an intermediate appellate court ruling that there was no evidence of flight by Shim, meaning Hotten should not have given jurors an instruction about the term.

Assistant Public Defender Amy E. Brennan, who handled Shim’s case at the appellate level, declined to comment.

WHAT THE COURT HELD

Case:

State of Maryland v. Fabian Andre Shim, No. 18, Sept. Term 2010. Opinion by Adkins, J. Harrell, J., Concurs. Filed Jan. 25, 2011

Issue:

Did the trial court err by not asking prospective jurors during a murder trial’s voir dire if they had “strong feelings concerning violent death”?

Holding:

Yes; prospective jurors must be questioned about any potential biases related to the alleged criminal act before them.

Counsel:

Jessica V. Carter for petitioner; Amy E. Brennan for respondent.

RecordFax#11-0125-00 (28 pages)