by Douglas Ankney

The Court of Appeals of Maryland affirmed a decision of the Court of Special Appeals (“CSA”) that held a defendant’s acceptance of a jury as empaneled did not waive his earlier objection to a trial court’s denial of the defendant’s request to propound a proposed voir dire question to the jury.

Anthony George Ablonczy was tried by jury on charges that included armed robbery. Prior to trial, Ablonczy, by counsel, proposed several voir dire questions for the trial court to propound to potential jurors. Among these was question 18, consisting of four parts:

18a. explained the presumption of innocence and asked if any juror would have trouble applying it;

18b. explained the prosecution’s burden of proof beyond a reasonable doubt and asked if any juror would have difficulty in applying it;

18c. explained Ablonczy’s right to remain silent, his right not to testify, and his right to not produce any evidence in his defense and asked if this would cause any juror to believe he was guilty or affect any juror’s ability to presume him innocent; and

18d. explained the principle of reasonable doubt and asked if any jury would have difficulty applying it.

The trial court declined to pose the question, reasoning it concerned the law and was inappropriate under Maryland law. Defense counsel objected. After 12 persons were seated in the jury box, the trial court asked if the parties had any objections. Neither the State nor defense counsel raised any objection. Nor was any objection raised when two additional alternate jurors were seated with the 12 jurors.

Ablonczy was found guilty and appealed. He argued that per Kazadi v. State, 223 A.3d 554 (Md. 2020), the trial was obligated to ask question 18. The State argued that the issue was not properly preserved because defense counsel waived the objection when it accepted the seated jury without objection. The CSA rejected the State’s argument and reversed the trial court’s decision. The CSA remanded for a new trial, and the Court granted the State’s petition for certiorari.

The Court observed “[t]he Sixth Amendment of the United States Constitution and Article 21 of the Maryland Declaration of Rights both guarantee a criminal defendant the right to ‘an impartial jury.’” Voir dire is the process by which prospective jurors are examined to determine whether cause for disqualification exists. Dingle v. State, 759 A.2d 819 (Md. 2000). Parties are entitled to question the impartialness of jurors by objecting during voir dire; accordingly, the use of objections is critical to the “mechanism” of seating an “impartial jury.” Id. However, the extent of the examination of potential jurors rests in the sound discretion of the trial court. Langley v. State, 378 A.2d 1338 (Md. 1977).

Previously, the Maryland Court of Appeals’ jurisprudence held that “[voir dire] is not the appropriate time for the trial court to instruct the jury on the law that is applicable to the case.” Kazadi. But in Kazadi, the Court ruled 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 of proof, and the defendant’s right not to testify.” Id.

But Kazadi did not address how to determine whether the relevant question had been preserved for appellate review. Maryland Rule 4-323(c) delineates the method of objecting to an adverse ruling of a trial court on a proposed voir dire question and states in pertinent part: “For purposes of review by the trial court or on appeal of any other ruling or order, it is sufficient that a party, at the time the ruling or order is made or sought, makes known to the court the action that the party desires the court to take or the objection to the action of the court.”

While the record in the instant case clearly revealed that Ablonczy had objected to the trial court’s refusal to propound question 18 to the prospective jurors, the State contended that he waived that objection when he accepted the jury that was empaneled. In State v. Stringfellow, 42 A.3d 27 (Md. 2012), the Court differentiated objections during voir dire into two categories.

The first category of objections concern the inclusion or exclusion of prospective jurors or even the entire venire. Id. Those types of objections are waived upon unqualified acceptance of the jury panel. Id. Examples include: an objection to a judge’s refusal to strike prospective jurors for cause an objection to the exclusion of a juror because of his beliefs about capital punishment. The Stringfellow Court explained that these types of objections are waived upon unqualifiedly accepting the jury panel because the acceptance of the jury “is directly inconsistent with the earlier complaint about the jury, which the part is clearly waiving or abandoning.”

The second category of objections, however, include those that are “incidental to the inclusion [or] exclusion of a prospective juror or the venire [and are] not waived by accepting a jury panel at the conclusion of the jury-selection process.” Id. A specific example of an objection included within the second category is “an objection to a judge refusing to ask a proposed voir dire question.” Marquardt v. State, 882 A.2d 900 (Md. App. 2005). These types of objections are not waived because acceptance of the empaneled jury is not deemed inconsistent with the earlier complaint, the Stringfellow Court explained. 

The Court further explained that there’s a critical difference between an objection to a propounded voir dire question and an unpropounded voir dire question. With respect to the former, it is treated as directly related to the composition of the jury because the “question, when propounded, may inject the very prejudice that [voir dire] attempts to filter out.” Stringfellow. In contrast, an unpropounded question “cannot likewise prejudice the venire.” Id. Therefore, propounded questions are treated as “direct” and waived while unpropounded questions are treated as “indirect” and not waived, according to the Court.

Applying the foregoing principles to the present case, the Court held that Ablonczy didn’t waive his earlier objection by accepting the jury, and thus, the trial court abused its discretion when it declined to propound the proposed question to the jury during voir dire. The Court stated that the defense counsel timely objected; the objection was not waived when the defense accepted the empaneled jury; and the question was properly preserved for appellate review.

 Accordingly, the Court affirmed the judgement of the CSA. See: State v. Ablonczy, 253 A.3d 598 (Md. 2021). 

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