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Md. high court finds harmless error exception to mandatory voir dire question

The defendant’s decision to testify was not compelled by the judge’s refusal to ask the question but was a legitimate defense strategy to counter her victim’s testimony, Judge Steven B. Gould wrote for the Court of Appeals majority. (The Daily Record/File Photo)

A judge’s failure to ask prospective jurors if they respect a criminal defendant’s constitutional right not to testify is generally rendered harmless if the defendant does in fact take the stand at trial, a divided Maryland high court ruled this week.

In it 5-2 decision, the Court of Appeals said such a testimonial exception exists to its January 2020 decision in Kazadi v. State requiring judges to ask would-be jurors, upon the defense’s request, if they could still presume the defendant innocent if the defendant does not testify.

The high court ruled in reinstating a woman’s assault conviction that had been overturned because the judge had declined to ask the question during voir dire, the pretrial screening of would-be jurors.

The judge’s failure to ask prospective jurors their views on a defendant’s silence did not affect the jury’s ultimate finding of Latoya’s Jordan’s guilt because she was not silent, having testified in her own defense, the court said.

But the court cautioned that a failure to ask the question might not be “harmless error” if the defendant felt compelled to testify for fear his or her silence would be viewed as an admission of guilt.

“Testifying can be risky for some defendants for a variety of different reasons,” Judge Steven B. Gould wrote for the majority.

“For example, if a defendant knows that he will be impeached with a prior conviction if he testifies, but is more concerned the jury would see his failure as evidence of guilt, it’s possible the defendant will choose to testify when he otherwise would have chosen not to,” Gould added. “In that case, the refusal to ask the Kazadi question could conceivably contribute to the guilty verdict.”

Jordan’s decision to testify, however, was not compelled by the judge’s refusal to ask the question but was a legitimate defense strategy to counter her victim’s testimony, the court said, adding that Jordan said nothing incriminating.

In Kazadi, the Court of Appeals said judges must ask prospective jurors — when requested by defense counsel – if they can presume the defendant innocent, require the prosecution to prove its case beyond a reasonable doubt and not presume the defendant guilty if he or she exercises the right not to testify.

Of the three questions, only the right not to testify was at issue in Jordan’s case before the high court.

Gould was joined in the opinion by Judges Michele D. Hotten, Brynja M. Booth, Joseph M. Getty and Robert N. McDonald. Getty and McDonald are retired judges who were sitting by special assignment.

In dissent, Judge Jonathan Biran said a judge’s failure to ask any of the three Kazadi questions – regardless of a request by the defense — is never harmless and must always nullify a subsequent conviction at trial.

“Given that the requirement that a trial court ask these questions upon request is meant to help ‘safeguard a defendant’s right to be tried by a fair and impartial jury’ and that ‘it is difficult to conceive of circumstances that could be more prejudicial to a defendant’s right to a fair trial’ than allowing someone who would not respect these fundamental rights onto a jury, it is not clear why it should be defense counsel’s job to ensure that this safeguard is deployed,” Biran wrote, quoting from Kazadi. “Once we accept that giving the three Kazadi questions must be mandatory regardless of a defense request, it becomes clear that the failure to ask any of the three questions is a structural error requiring automatic reversal.”

Biran was joined in dissent by Judge Shirley M. Watts.

Watts, in a separate dissent, limited her remarks to what she called a judge’s never-harmless failure to ask prospective jurors about the defendant’s right to remain silent.

“A defendant who testifies has a constitutional right not to and it is critical when a defendant testifies that jurors understand that the defendant was not required or mandated to do so,” Watts wrote in a dissent Biran joined.

“In the absence of a voir dire question being asked upon request concerning the right, it cannot be ruled out that a defendant will feel compelled to testify as the trial court will have refused the defendant an opportunity to assess whether jurors would equate silence with guilt and the defendant who testifies will be forced to face the scrutiny of jurors who may believe that the defendant was compelled or had no choice but to testify,” Watts added.

The Maryland Attorney General’s Office and Jordan’s appellate attorney, Assistant Maryland Public Defender Stephanie Asplundh, declined to comment on the court’s decision.

Jordan was facing trial in Baltimore City Circuit Court on a charge of having assaulted a woman at a summer youth program attended by Jordan’s niece in July 2019.

Having not been asked their views on a defendant’s right not to testify, the jurors were told by Jordan that she never hit the woman but rather picked up a “wet floor sign” to prevent the woman from striking her with a fire extinguisher.

The jury found Jordan guilty of second-degree assault in December 2019. She was sentenced the following month to two years in prison, with all but about 10 days suspended, and two years’ supervised probation, according to online court records.

The Court of Special Appeals overturned the conviction in April 2021, citing the judge’s failure to ask the requested voir dire question on the defendant’s right not to testify. The state then sought review by the high court.

The Court of Appeals rendered its decision in State of Maryland v. Latoya Jordan, No. 22, September Term 2021.