Circuit Court for Baltimore City Case No. 116042016
Graeff, Beachley, Thieme, Raymond G., Jr., (Senior Judge,
Specially Assigned), JJ.
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
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
3. Did the circuit court abuse its discretion in refusing to
propound defense counsel's proposed jury instruction on
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.
AND LEGAL PROCEEDINGS
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. 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.
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
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.
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.
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.
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
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."
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.
shall add pertinent facts in our discussion of the issues
raised by appellant.
Voir Dire of Prospective Jurors
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."
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?
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,
[https://perma.cc/D5LY-AZ6B] (last visited December 10,
Standards Governing Voir Dire of Prospective Jurors
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
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
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.
that his voir dire challenge is foreclosed under
Twining, appellant tests that precedent, arguing
[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.
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
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").
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."
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." 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.
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."
reviewing the relevant record, we shall address the discovery
and cross-examination rulings in turn, explaining why neither
warrants appellate relief.
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.'"
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."
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."
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.)
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."
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.
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 ...