The Office of the Maryland Attorney General got just part of what it wanted Monday, when the state’s highest court revived a gun-possession conviction but declined to revisit an earlier ruling against asking potential jurors questions to combat the “CSI effect.”
The Court of Appeals said Reginald Stringfellow’s trial attorney, who had objected to asking jurors whether they could convict in the absence of “scientific” evidence, waived the right to appeal on that ground by failing to object a second time when the jury was sworn in.
Stringfellow’s conviction was overturned last year by an intermediate court, which found the “CSI”-inspired question impermissibly told potential jurors to discount one of the defense’s key arguments: the absence of fingerprint evidence linking him to the gun.
Reinstating the conviction Monday, the Court of Appeals also said any such harm was balanced by the defense’s closing argument, which told jurors that the state’s failure to present fingerprint evidence could provide reasonable doubt as to Stringfellow’s guilt.
The high court also said Baltimore City Circuit Judge Barry G. Williams cured his mistake by instructing the jury that guilt must be proven beyond a reasonable doubt.
“While the error occurred during an important part of the trial process, the judge’s management of closing argument ameliorated significantly any prejudice to Stringfellow,” Judge Glenn T. Harrell Jr. wrote for the Court of Appeals. “[T]he jury instructions here, although a limited kind of cure, assisted in dislodging any residual bits of potential prejudice concerning the weight of presented (or unpresented) evidence and reminded the jury of the state’s fixed burden of proof.”
Criminal-procedure professor David Gray said Monday that the question in Stringfellow’s case “does not strike me as a very loud and large bell” that could not be un-rung by a closing argument and curative jury instruction.
“It seems like a circumstance where the actual conduct of the trial and the instructions to the jury were legally accurate,” said Gray, who teaches at the University of Maryland Francis King Carey School of Law. “If there is ever a circumstance where a cure can remove any concerns about prejudice, this is one of them.”
Monday’s decision was the latest in a series on the “CSI effect,” the theory that jurors have been conditioned by TV crime dramas to expect to hear scientific evidence conclusively linking the defendant to the crime.
In June 2010, the top court held in Charles and Drake v. State that the defendants’ right to a fair trial was violated when a judge asked prospective jurors if they could put the television show, “CSI: Crime Scene Investigation,” aside and “convict a defendant without scientific evidence.”
And last year, it held in Stabb v. Maryland and Atkins v. Maryland that a defendant’s right to a fair trial is violated when a judge instructs jurors before deliberations that prosecutors need not present scientific evidence to prove their case.
Brian S. Kleinbord, of the Maryland attorney general’s office, said the state was “pleased to prevail” in the case but had wanted the high court to review its earlier ruling that voir dire questions aimed at combating the CSI effect are improper.
“We hoped that the court would take an opportunity to take another look at the Charles and Drake opinion, but they did not address that question,” said Kleinbord, who heads the office’s criminal appeals division.
Assistant Public Defender Edie Cimino, Stringfellow’s trial counsel, said she “felt the issue was properly preserved.”
“I do believe Mr. Stringfellow was wrongfully convicted,” Cimino added. Assistant Public Defender Piedad Gomez, who argued Stringfellow’s case before the high court, declined to comment on the decision.
According to trial testimony, Baltimore police officers saw Stringfellow holding a handgun in the 5300 block of Beaufort Avenue on Nov. 21, 2009. Stringfellow dropped the gun and ran when he saw their car approaching.
The officers caught Stringfellow, arrested him and recovered the gun.
He was charged with possessing a regulated firearm after having been convicted of a felony and with wearing, carrying or transporting a gun. The officers never examined the gun for fingerprints.
At the state’s request — and over defense counsel’s objection — the judge asked prospective jurors if they “believe that the state is required to utilize specific investigative or scientific techniques such as fingerprint examination in order for the defendant to be found guilty beyond a reasonable doubt.”
After jury selection, the clerk asked the prosecution and defense if the jury was “acceptable.” Both sides said yes.
At trial and in closing argument, the prosecution highlighted the officers’ eyewitness identification while the defense focused on the failure to check the gun for fingerprints.
The judge made no mention of scientific evidence in instructing the jury and told the panel the state had the burden of proving Stringfellow’s guilt beyond a reasonable doubt.
The jury convicted Stringfellow on both counts in March 2010.
The Court of Special Appeals overturned the conviction last year. The state then successfully sought review by the Court of Appeals.
Chief Judge Robert M. Bell joined in the high court’s judgment but not in the opinion.
Judge Sally D. Adkins, in a concurring opinion, said she disagreed that Stringfellow had waived his right to appeal the question because Cimino did not object to the jury being sworn in. However, she agreed the judge’s error in asking the question was harmless.
Judge Lynne A. Battaglia joined Adkins’ opinion.
WHAT THE COURT HELD
Maryland v. Stringfellow, CoA No. 62, Sept. Term 2011. Reported. Opinion by Harrell, J. Concurrence by Adkins, J. Argued Dec. 6, 2011. Filed April 23, 2012.
Did the defendant waive objection to a “CSI” question in voir dire by accepting the jury? Was the judge’s error in asking the question rendered harmless by defense’s closing argument and jury instruction?
Yes. (1) The objection must be raised again when jury is empaneled; (2) closing argument and the jury instruction stressed that lack of physical evidence can be considered and proof of guilt must be beyond reasonable doubt.
Daniel J. Jawor for petitioner; Piedad Gomez for respondent.
RecordFax # 12-0423-22.