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Kazadi v. State

Court of Special Appeals of Maryland

February 4, 2019

TSHIBANGU KAZADI
v.
STATE OF MARYLAND

          Circuit Court for Baltimore City Case No. 116042016

          Graeff, Beachley, Thieme, Raymond G., Jr., (Senior Judge, Specially Assigned), JJ.

          OPINION

          THIEME, J.

         On the evening of August 18, 2015, in an alley behind the 200 block of North Conkling Street in Baltimore, twenty-one-year-old Brandon Smith was fatally shot. The State tried appellant Tshibangu Kazadi, a resident of that street, for Mr. Smith's murder. Critical to that prosecution was eyewitness testimony by two of appellant's next-door neighbors - a mother and her minor son, whose immigration statuses were the subject of discovery and cross-examination rulings that are challenged in this appeal. After both witnesses identified appellant as the killer, a jury in the Circuit Court for Baltimore City convicted appellant of second degree murder and using a firearm in a crime of violence. Appellant was sentenced for the murder to thirty years, with all but twenty-five years suspended, consecutive to fifteen years for the weapon offense, the first five of that served without parole, for a total executed time of forty years.

         Appellant challenges his convictions on three grounds, which we have re-ordered chronologically as follows:

1. Did the circuit court abuse its discretion in refusing to propound Mr. Kazadi's requested voir dire questions?
2. Did the circuit court abuse its discretion in denying defense counsel's motion to compel discovery and, thereafter, in refusing to allow defense counsel to question the State's two main witnesses regarding their immigration issues?
3. Did the circuit court abuse its discretion in refusing to propound defense counsel's proposed jury instruction on eyewitness identification?

         Concluding there was no error or abuse of discretion, we shall affirm appellant's convictions. In doing so, we address the limited circumstances in which a criminal defendant is entitled to discovery and cross-examination regarding the immigration status of prosecution witnesses.

         FACTS AND LEGAL PROCEEDINGS

         On August 18, 2015, fifteen-year-old M.L. and his mother S.L.H. had been living in their family home at 208 North Conkling Street, next door to appellant, for more than two years.[1] That evening, S.L.H. asked M.L. to retrieve garbage cans from the alley behind their house. While M.L. was doing so, Brandon Smith was shot three times.

         Although M.L. saw appellant fire at the victim, and both he and S.L.H. saw appellant running from the scene with a handgun, they did not tell police until months later. On January 19, 2016, M.L. and his mother, "afraid of what could happen," told police what they witnessed. Both made photo identifications of appellant as the person who shot Mr. Smith and ran from the scene.

         Before trial, the parties litigated disputes over whether the State was required to disclose information and documents pertaining to the immigration status of M.L. and S.L.H. and whether defense counsel could cross-examine both witnesses about immigration matters, including a deportation order that S.L.H. mentioned to police. (See our discussion infra, in Part II.) As detailed in our discussion, the circuit court denied appellant's motion to compel discovery and foreclosed cross-examination regarding the immigration status of both witnesses.

         At trial, M.L. testified that as he was on his back deck that August evening, he heard a gunshot and looked into the alley. He saw appellant fire a handgun at the victim two or three times. When his mother came to the back door, they both saw appellant run into the back of his house, still carrying a gun in his hand.

         S.L.H. recounted that while M.L. was out back collecting their trash cans, she heard gunfire. Stepping out her back door, she saw her son running toward her, saying "that the guy had killed someone." S.L.H. saw appellant "running" and "hiding his weapon," as he fled into his basement with a handgun.

         Outside, S.L.H. found a "kid" she did not know, who was "agonizing" with three gunshot wounds. Her scream drew others. S.L.H. and M.L. told members of appellant's family what they had seen, but they did not tell police or other emergency responders, because S.L.H. "was scared" after appellant's family "realized that [they] had said that [appellant] was the one that had killed him."

         S.L.H. and M.L. waited five months, until January 19, 2016, to disclose to police what they saw. After the trial court foreclosed mention of their immigration status, S.L.H. testified that she did not come forward earlier because she was scared of both "[appellant] or his family" and "something else" that was "not connected to [appellant] or his family."

         Her disclosure to police occurred after she revealed information to her sons' doctor, who put her in contact with a social worker in the State's Attorney's Office. S.L.H. and M.L. separately met with police, reported what they observed on the night of the shooting, and identified appellant in photo arrays as the person who shot Brandon Smith.

         We shall add pertinent facts in our discussion of the issues raised by appellant.

         DISCUSSION

         I. Voir Dire of Prospective Jurors

         Appellant contends that the trial court abused its discretion in denying his request for voir dire questions asking whether prospective jurors would comply with the reasonable doubt standard, the presumption of innocence, and the right not to testify. We agree with the State that the court correctly followed Court of Appeals precedent and did not abuse its discretion in declining to ask about prospective jurors' "willingness to follow points of law covered in the court's jury instructions."

         A. Trial Record

         Defense counsel's written request for voir dire questions included the following queries:

17. The Court will instruct you that the State has the burden of proving the Defendant guilty of the offenses charged beyond a reasonable doubt. Are there any of you who would be unable to follow and apply the Court's instructions on reasonable doubt in this case?
18. Is there any member of the prospective jury panel who would hesitate to render a verdict of not guilty if you had a hunch that the Defendant had committed the alleged crime, but were not convinced of that fact beyond a reasonable doubt?
19. The Court will instruct you that the Defendant is presumed to be innocent of the offenses charged throughout the trial unless and until the Defendant is proven guilty beyond a reasonable doubt. Is there any member of the jury panel who would be unable to give the Defendant the benefit of the presumption of innocence?
20. Under the law the Defendant has an absolute right to remain silent and to refuse to testify. No adverse inference or inference of guilty may be drawn from the refusal to testify. Does any prospective juror believe that the Defendant has a duty or responsibility to testify or that the Defendant must be guilty merely because the Defendant may refuse to testify?

         The trial court declined to include these questions in its voir dire, ruling that the legal principles addressed in them would be "covered adequately in the instruction portion of the case" and by "other questions" that it planned to ask. Instead, the court used questions taken from the pattern voir dire approved for criminal trials. See Maryland State Bar Ass'n, Model Jury Selection Questions for Criminal Trials, http://www.msba.org/uploadedFiles/MSBA/Member_Groups/Committees/Publications/C riminal%20Voir%20Dire%20Model%20Questions%20(2).pdf [https://perma.cc/D5LY-AZ6B] (last visited December 10, 2018).

         B. Standards Governing Voir Dire of Prospective Jurors

         "Voir dire is critical to assure that the Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights guarantees to a fair and impartial jury will be honored." Stewart v. State, 399 Md. 146, 158 (2007). Under Maryland law, "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 v. State, 452 Md. 614, 622 (2017) (citation and quotation marks omitted). Although trial courts have "significant latitude in the process of conducting voir dire and the scope and form of questions presented to the venire[, ]" we are mindful that

[u]ndergirding the voir dire procedure and, hence, informing the trial court's exercise of discretion regarding the conduct of the voir dire, is a single, primary, and overriding principle or purpose: to ascertain the existence of cause for disqualification. [W]e do not require perfection in its exercise. The trial court reaches the limits of its discretion only when the voir dire method employed by the court fails to probe juror biases effectively.

Id. at 622-23 (citations and quotation marks omitted).

         Appellate courts "review a judge's conduct of voir dire for abuse of discretion and, when a judge's approach provides reasonable assurance that prejudice will be discovered, the judge has acted within his or her discretion." Id. at 628. The Court of Appeals has held that, to accomplish that objective,

certain substantive elements [must] be incorporated. If relevant to the case and requested by one of the parties, we have held that it is reversible error for a trial court not to question the venire regarding racial, ethnic, cultural or religious bias; whether more or less credence would be given to a police officer simply because of that officer's position; and whether the venire harbors an unwillingness to convict a defendant of a capital crime. Yet, even for these mandatory subjects of inquiry, generally, neither a specific form of question nor procedure is required.

Id. at 624 (citations, quotation marks, and footnote omitted).

         Long ago, in Twining v. State, 234 Md. 97, 100 (1964), the Court of Appeals decided that a trial court does not abuse its discretion by refusing to ask whether prospective jurors "would give the accused the benefit of the presumption of innocence and the burden of proof." The Twining Court stated that "[i]t is generally recognized that it is inappropriate to instruct on the law at this stage of the case, or to question the jury as to whether or not they would be disposed to follow or apply stated rules of law." Id.

         C. Appellant's Challenge

         Acknowledging that his voir dire challenge is foreclosed under Twining, appellant tests that precedent, arguing that

[i]n the fifty-three years since Twining was decided, . . . two advances in the law have made the opinion an artifact of its time: First, Twining is simply inconsistent with subsequent Court of Appeals decisions that emphasize that "it is the venire person's state of mind, in particular, whether there is some bias, prejudice, or preconception, that is the proper focus of voir dire." Accordingly, these decisions recognize a defendant's right to a voir dire question if the area of inquiry "entail[s] potential biases or predispositions that prospective jurors may hold which, if present, would hinder their ability to objectively resolve the matter before them." [State v. Thomas, 369 Md. 202, 211-12 (2002)]. Second, the holding in Twining rests on the premise that the court's instructions to the jury on the law, including instructions on the presumption of innocence and the burden of proof, are "only advisory." [Twining, ] 234 Md. at 100. Since 1964, when Twining was decided, the Court has made clear that jury instructions are not advisory only.

         In support of the latter point, appellant cites Stevenson v. State, 289 Md. 167, 188 (1980), and Montgomery v. State, 292 Md. 84, 91 (1981), which hold "that instructions on the presumption of innocence and burden of proof are 'binding' on the jury and are 'not advisory.'" See also Unger v. State, 427 Md. 383, 411 (2012) ("the Stevenson and Montgomery opinions set forth a new interpretation of Article 23 and established a new state constitutional standard"). Appellant maintains that, because the trial court must excuse for cause "[p]rospective jurors who would be unable to apply the presumption of innocence and proof beyond a reasonable doubt standards, and jurors who believe that a defendant has a duty or responsibility to testify and that if he refuses to testify he must be guilty," the trial court's "refusal to ask defense Questions 17 through 20" denied him "the opportunity to discover and challenge such jurors for cause."

         We conclude that Twining is still controlling. Contrary to appellant's contention, the Court of Appeals has affirmed the continuing vitality of Twining in decisions issued long after Montgomery and Stevenson. For example, twenty-five years after jury instructions were declared binding in Montgomery, the Court, in State v. Logan, 394 Md. 378, 398-99 (2006) (some internal citations omitted), invoked Twining in holding that a voir dire question proposed by the defense

was not a proper voir dire question because it asked prospective jurors whether they would apply the rules of law as instructed by the trial court. We agree that Question 7a amounts to a solicitation of whether prospective jurors would follow the court's instructions on the law. This practice is generally disfavored in Maryland, and we find no abuse of discretion on this point. See Twining v. State, 234 Md. 97, 100 (1964) (stating it is "generally recognized that it is inappropriate . . . to question the jury as to whether or not they would be disposed to follow or apply stated rules of law").

         Similarly, in Stewart v. State, 399 Md. 146, 162-63 (2007), the Court continued to follow the policy and practice established in Twining, stating that, "[a]s we noted in Logan, questions asking whether prospective jurors would follow the court's instructions on the law are disfavored in Maryland and a court does not abuse its discretion in refusing to ask them."

         The Court of Appeals mandate on this question is clear. Consequently, any challenge to such binding precedent must be pursued in that Court. We do not address the out-of-state cases cited by appellant for the proposition "that a defendant has a right to voir dire questioning aimed at identifying prospective jurors who are unable or unwilling to apply the presumption of innocence."[2] Even if the Court of Appeals had not foreclosed consideration of such extra-jurisdictional decisions, they are inapposite to the extent those jurisdictions do not share Maryland's limitations on the scope of voir dire.

         II. Immigration Issues

         Appellant next argues that "the [trial] court abused its discretion in denying defense counsel's motion to compel discovery and, thereafter, in refusing to allow defense counsel to question the State's two main witnesses regarding their immigration issues." In his view, "[t]he court's denial of the motion to compel discovery regarding the [witnesses'] immigrations issues and deportation order and the foreclosure of cross-examination on these issues combined to deprive [appellant] of his right to confrontation guaranteed by the Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights."

         After reviewing the relevant record, we shall address the discovery and cross-examination rulings in turn, explaining why neither warrants appellate relief.

         A. Relevant Record

         Before trial, appellant moved to compel the State to disclose information regarding the immigration status of S.L.H. In support, defense counsel proffered that in her statement to police, S.L.H. said "that she was hesitant to come forward with information because she was worried about an outstanding deportation order." Defense counsel asked the court to order the State to disclose information regarding S.L.H.'s immigration status, including her Alien Number ("A Number") and a copy of any deportation order, on the ground that testifying in the criminal case would make S.L.H. and her minor son, M.L., "eligible for relief from the deportation order." In addition, counsel argued that both witnesses' "efforts to avoid compliance with the deportation order involved conduct that reflects upon a character for untruthfulness 'under [Md.] Rule 5-608.'"

         The State opposed the motion, arguing that S.L.H.'s immigration status was "neither relevant nor discoverable," under Brady v. Maryland, 373 U.S. 83 (1963), and Md. Rule 4-263, which require disclosure of impeachment material, including "the witness's prior conduct that would show untruthful character pursuant to [Md.] Rule 5-608(b)" and "any relationship between the State and the witness that may constitute an inducement to cooperate or testify on behalf of the State." The prosecutor maintained that no disclosure was required because "the State has not represented to [S.L.H.] that she would receive special treatment for her cooperation in this case." Moreover, the prosecutor continued, "defense counsel has proffered no evidence to show that [S.L.H.] is actively attempting to evade her outstanding deportation order[, ]" and "speculation should not serve as a basis for a fishing expedition into the immigration status of a witness." Accompanying its response, the State proffered an executive order from the Mayor of Baltimore, "encourag[ing] any and all residents of Baltimore to report crimes to law enforcement, regardless of race, ethnicity, or immigration status."

         The State also moved in limine to restrict cross-examination of S.L.H. and M.L., citing case law that "[i]mmigration status alone does not reflect upon an individual's character and is thus not admissible for impeachment purposes." Ayala v. Lee, 215 Md.App. 457, 480 (2013). The State distinguished S.L.H. from the witnesses who were subject to cross-examination in Carrero-Vasquez v. State, 210 Md.App. 504 (2013), and United States v. Blanco, 392 F.3d 382 (9th Cir. 2004), on the ground that she "has no connection to the crimes," no special immigration status based on a relationship with the government, and no other motive to testify falsely. Nor had she been "promised or induced . . . to provide any information that she has already given, or which may be elicited during trial testimony."

         In a memorandum opinion, the motion court denied appellant's discovery request, reasoning that

[u]nlike United States v. Blanco, where the witness at issue was a paid federal informant who had been granted special immigration status based on his cooperation with the government, [appellant] does not identify any specific promise or inducement extended by the State to either witness in connection with the witness's immigration status. See Briggs v. Hedgpeth, 2013 WL 245190 at *6-10 (N.D. Cal. Jan. 22, 2013) (denying habeas relief based on alleged Brady violation despite certain statements made to victim by police that they could help him with immigration matter). [Appellant] apparently simply wants to confirm the information stated by [S.L.H.], with some hope that it might be developed into a credibility issue. The only case cited by [appellant], Carrero-Vasquez v. State, did not involve any discovery issue. Without a showing by [appellant] of some special relationship between the witness and the State relating to immigration or some promise or inducement or benefit extended by the State concerning immigration, [appellant] has failed to show a basis to compel any further disclosure.

(Emphasis added; some citations omitted.)

         The motion court reserved the ruling on the State's motion in limine, for decision by the trial court. At a suppression hearing conducted on the eve of trial, S.L.H. explained that she waited to tell police that she saw appellant run from the alley with a gun in hand, because she was afraid of appellant, who was living next door, and of "the weapons that they had in there." Outside the presence of the jury, S.L.H. explained that after disclosing to appellant's family members that she saw appellant at the murder scene, she believed "[t]he life of [her] family was in danger." Afterward, appellant and his friends "would be in front of [her] house," staying there whenever she opened the door. They warned that she "should not be outside with [her] sons" because "something could happen."

         After she and M.L. identified appellant to police, the family received relocation assistance, which included payment of rent. But S.L.H. did not receive or ask for any other benefits. Nor did she expect any benefits for testifying.

         The trial court accepted that testimony, pointing out that it had "not heard anything from this family indicating to me that there is an immigration issue that would have been a factor in them testifying." The court also expressed "significant concern" about "how ...


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