by Douglas Ankney

The Court of Appeals of Maryland (“MCOA”) held that its holding in Kazadi v. State, 223 A.3d 554 (Md. 2020) applies to cases where a defendant had not yet noted an appeal when Kazadi was issued but had preserved a Kazadi issue at trial.

In Kazadi, the MCOA held “that, on request, during voir dire, a trial court must ask whether any prospective jurors are unwilling or unable to comply with the jury instructions on the fundamental principles of presumption of innocence, the State’s burden proof, and the defendant’s right not to testify.” The Kazadi decision overruled Twining v. State, 198 A.2d 291 (Md. 1964), that had held trial courts are not required to ask such questions during voir dire.

On March 2, 2020, the MCOA modified Kazadi with an Order based on the reasoning of Griffith v. Kentucky, 479 U.S. 314 (1987), stating: “Additionally, consistent with this Court’s case law, we provided Kazadi with the benefit of the holding in this case, and we determine that our holding applies to this case and any other cases that are pending on direct appeal when this opinion is filed, where the relevant question has been preserved for appellate review.” The MCOA also cited Hackney v. State, 184 A.3d 414 (Md. 2018), and State v. Daughtry, 18 A.3d 60 (Md. 2011), in support of its modification Order.

At Amit Kumar’s murder trial in November 2019 (before Kazadi was decided), his attorney requested that the circuit court ask several questions of the jury during voir dire. Two of those questions—numbered 15 and 16—were “Kazadi-type” questions regarding the jury’s ability (or inability) to presume Kumar was innocent, the State’s burden of proof, and Kumar’s right not to testify. The circuit court, relying on Twining, refused to ask the questions. Kumar’s counsel objected, and his exceptions were noted. The jury found Kumar guilty of first-degree murder (Count 1) and openly carrying a dangerous weapon (Count 2).

Kumar filed a motion for new trial, alleging, inter alia, that the trial court erred in not asking questions 15 and 16. At Kumar’s sentencing on February 21, 2020, the circuit court denied the motion for new trial and sentenced Kumar to life imprisonment on Count 1 and three years on Count 2. On March 20, 2020, Kumar filed his notice of appeal.

The Court of Special Appeals (“COSA”) reversed the Count 2 conviction for lack of evidence but affirmed the murder conviction, reasoning that Kazadi was inapplicable because Kumar did not file his notice of appeal until after the Kazadi decision was issued, as modified. Thus, the COSA ruled that Twining applied to Kumar’s case. The MCOA granted Kumar’s petition for writ of certiorari.

The MCOA observed that in Griffith the U.S. Supreme Court held that the “failure to apply a newly declared constitutional rule to criminal cases pending on direct review violates basic norms of constitutional adjudication.” The Supreme Court explained that the nature of judicial review “precludes [courts] from simply fishing one case from the stream of appellate review, using it as a vehicle for pronouncing new constitutional standards, and then permitting a stream of similar cases subsequently to flow by unaffected by that new rule.” Id. In Griffith, the U.S. Supreme Court used the terms “not yet final” and “pending on direct review” interchangeably to describe cases to which new rules were applicable, according to the MCOA.

In the instant case, the MCOA stated “[t]his language indicates that, where the term ‘pending on direct appeal’ is used in Kazadi, the term indeed refers to cases that were not yet final—i.e., cases in which there had not yet been final dispositions. That the replacement of the language in Kazadi was made in light of the Supreme Court’s holding in Griffith demonstrates that our holding in Kazadi applies to all cases pending appeal or pending direct review, i.e., cases in which there had not yet been a final disposition as opposed to only cases in which a notice of appeal had already been filed.” (Note: In Franklin v. State, 235 A.3d 1 (Md. 2020), the MCOA stated the term “‘final disposition of the case’ means the point where the judgment of conviction was rendered, the availability of (final) appeal exhausted, and the time for petition for certiorari had elapsed.”)

Additionally, the modification Order in Kazadi cited Hackney and Daughtry in support—meaning Kazadi has the same retroactive effect as those two cases. In Hackney, the MCOA adopted the “prison mailbox rule” and relying on Griffith held that Hackney’s ruling applies to all similarly situated prisoners whose case was then pending. And in Daughtry, the MCOA indicated that application of a new rule would apply to “all other pending cases where the relevant question has been preserved for appellate review.”

Having concluded that Kazadi is applicable to Kumar, the MCOA then—in the interests of judicial economy and to avoid unnecessary appellate litigation—addressed the merits of Kumar’s appeal. The MCOA concluded that questions 15 and 16 were Kazadi-type questions, and the circuit court erred in refusing to ask them. The MCOA also concluded that Kumar’s trial counsel properly preserved the issue for appellate review.

Accordingly, the MCOA reversed the judgment of the COSA and remanded to the circuit court with instructions to vacate the murder conviction and sentence and ordered a new trial on the first-degree murder charge. See: Kumar v. State, 266 A.3d 295 (Md. 2021). 

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