A Black Man and Woman Were Tried for Murder but Only the Shooter Will Get a New Trial b/c Only his Atty Objected to the Judge’s Refusal to Ask Jurors About Whether They Could Presume Innocence

From [HERE] They were tried together but only the shooter will get a new trial because his attorney objected to the judge’s refusal to ask prospective jurors if they could presume the defendants innocent while the lawyer for the co-defendant convicted of handgun offenses failed to object, Maryland’s second-highest court ruled this week.

In fact the DA acknowledged that the judge made an error and conceded that both defendants were entitled to reversal and a new trial but the appeals court rejected the concession saying that the Black woman’s attorney failed to make a timely objection.

The Court of Special Appeals of Maryland summarized the case by stating:

“A popular [*2]  bartender, Alex Wroblewski, was shot and killed at a Royal Farms store in Locust Point, where he had stopped on his way home after a shift. After a joint trial in the Circuit Court for Baltimore City, a jury found Tonya Hayes guilty of transporting a handgun in a vehicle and conspiracy to transport a handgun in a vehicle and Marquese Winston guilty of second-degree murder, use of a handgun in the commission of a crime of violence, transporting a handgun in a vehicle, conspiracy to transport a handgun in a vehicle, and carrying a handgun on his person. Ms. Hayes and Mr. Winston raise numerous challenges to their convictions. We affirm Ms. Hayes's convictions but reverse Mr. Winston's, and we remand his case for further proceedings consistent with this opinion.”

The court explained,

“Surveillance cameras captured the incident, and the jury heard eyewitness testimony alongside the footage.

On November 14, 2017, Lawrence Greene worked the graveyard shift at the Royal Farms. That night, Mr. Wroblewski, who was a regular, came in at around 1:00 a.m., whereas he "normally [came] in between [*3]  2:30 and 3:00 in the morning." According to Mr. Greene, Mr. Wroblewski "was toasted when he came in." He remained in the store for about fifteen minutes and ordered food, but as he was leaving, "[h]e was stumbling all over the place." At that point, Mr. Greene saw "a young boy and then a older woman, the woman, heavyset, light skinned" come into Royal Farms. When the two saw Mr. Wroblewski, "the young man got really happy" and "was jumping up and down, skipping." When Mr. Wroblewski left the store, the two followed him. Video surveillance at Royal Farms confirmed everything to this point.

Mr. Wroblewski's condition and the behavior of the young man and older woman led Mr. Greene to go check on Mr. Wroblewski. As he approached, he heard a "bang" and went "all the way up by [Mr. Wroblewski]," saw that he was "laying on his back," and "checked his pulse and [saw] that he was still living, he was still breathing and everything." Mr. Greene observed that Mr. Wroblewski still had "his food, his bag, his cell phone and [] his wallet . . . beside him." He went back in the store and told another employee to call 911.

Kiara Giddons was the cashier on duty that night. She described Mr. Wroblewski [*4]  as "wasted" when he arrived. She testified that after he paid for his food, he went towards the window where there was a bar stool, and he sat there for a minute. Ms. Giddons saw "three people—two people getting out the car, [] a lady and a man getting out the car. And the other guy [] just sat in the car. They parked [near] the gas station." Ms. Giddons saw the woman and the man come into the store, and when Mr. Wroblewski left, the pair immediately left as well. Ms. Giddons testified that she walked outside and saw Mr. Wroblewski walking up the street, then she "heard one gunshot." She and Mr. Greene ran to where Mr. Wroblewski was lying, and Ms. Giddons then ran back in the store to call 911.

Lasheka Moore was the manager on duty. She testified that Mr. Wroblewski "was a regular" at the Royal Farms, but that night, "he spent a little bit more time than usual in the deli area" and "[a]ctually laid his head on top of the deli." Ms. Moore "walked over to [Mr. Wroblewski] and was, like, hey, why don't you go ahead and sit down, eat your food, wait for your friends to come[,]" and he replied "that he was okay." She testified that Mr. Wroblewski was in the store for about "10, 15 minutes" [*5]  and when he left, "he was staggering on his way out the door." She observed that the Black male and the Black female to whom Mr. Greene and Ms. Giddons referred in their testimony seemed "a little off" because "they came and pulled up to the gas pump, but didn't purchase anything." Ms. Moore identified Mr. Winston as the Black man and Ms. Hayes as the Black woman.

Ms. Moore testified further that Mr. Wroblewski left the store and walked "towards the Bank of America ATM machine." Mr. Winston then walked out ahead of Ms. Hayes, but when Ms. Hayes "was exiting the store, she looked in the direction of [Mr. Wroblewski], then looked back at the car." Ms. Moore saw Mr. Winston go to the back seat of the car, where "another male pops up out the car." Mr. Winston walked off a little bit, "and then the male that's in the backseat gets out the car and throws his hood over his head." They both "went walking across the parking lot towards the direction that [Mr. Wroblewski] was going in." Ms. Hayes "jumped in the driver's side, pulled off slow, like as if she was behind them."

Ms. Moore testified that at that point, she "grabbed a broom and [] went outside to sweep the sidewalk, [] made it to about [*6]  the Bank of America ATM machine, [when she] heard a gunshot." She later identified all individuals involved through a photo array.

Dr. Patricia Aronica was the medical examiner who performed Mr. Wroblewski's autopsy. She testified that Mr. Wroblewski had "an entrance gunshot wound to the abdomen and there were also some additional injuries which were multiple abrasions which are like scrapes and scratches where the top layer of the skin comes off and then some bruising were also noted." She assigned the cause of death as the gunshot wound and the manner of death as homicide. Dr. Aronica described how the gunshot wound killed him:

[THE STATE]: And what type of wound would you have considered this as far as—would it have been considered a rapidly fatal wound or not so rapid, how would you describe this wound?

[DR. ARONICA]: Well, this is a fatal wound but because it hit—the bullet hit all these veins, it's a slower bleeding wound then say if it hit arteries. It's going to bleed slower, it's also going to cause intestinal contents to come out into the abdomen so it has great potential for infection, if they were able to stop all of the bleeding, but there was massive amount of blood loss [*7]  but it would be slower and very difficult because of all the injuries that it did create to the veins.

She opined that there was "no evidence of close range firing" and that "[t]he level of alcohol had no effect on [Mr. Wroblewski's] death."

Tivontre Gatling-Mouzon, who pled guilty to conspiracy to commit armed robbery for his involvement in the killing of Mr. Wroblewski, testified on behalf of the State. Mr. Mouzon is Ms. Hayes's son. He testified that Ms. Hayes picked him and Mr. Winston up in Richmond, Virginia to drive to Baltimore to pick up his younger sister, Tiana Witherspoon, who was living there with her father. They stopped that night at Royal Farms to get gas after picking up Ms. Witherspoon.

Mr. Mouzon testified that Mr. Winston and Ms. Hayes went into the store while he sat in the car with his sister. While they waited, Mr. Winston came back to the car and "reached down by [his] leg." Mr. Winston asked Mr. Mouzon "to come with him around the corner . . . ." Mr. Mouzon followed Mr. Winston and saw him "conversating with the victim, arguing . . . ." He described this encounter as "a confrontation." Then Mr. Winston approached Mr. Wroblewski, and Mr. Mouzon "s[aw] the gun[]" in Mr. Winston's hand. After more confrontation, he began to head back to the car, but before he got in he "heard a shot." By then, Mr. Winston "was already coming to the passenger side to get in." They all left the area and went back to Richmond.

Detective Jonathan Riker was the homicide detective assigned to the case. He testified that he put the Royal Farms surveillance video on social media to try to locate the individuals responsible for killing Mr. Wroblewski. Through social media, Detective Riker was able to identify the woman as Ms. Hayes. He then reached out to Ms. Witherspoon's father, Steven Witherspoon. Mr. Witherspoon identified Mr. Winston as the male in the video and he also was able to identify Mr. Mouzon. Detective Riker located Mr. Mouzon in Richmond. The Detective put Ms. Hayes's vehicle information in the National Crime Information Center database and was able to locate her and Mr. Winston in Atlanta, Georgia; Officer Justin Hartsfield, a police officer in Atlanta, pulled Ms. Hayes over in her vehicle in response to a "Be On The Lookout" ("BOLO") alert identifying her as "armed and dangerous." The Atlanta Police then contacted Detective Riker, who along with Detective [*9]  Dave Moynihan, flew to Atlanta to interview Ms. Hayes and Mr. Winston. No gun was ever recovered.

Mr. Winston testified in his own defense. He testified that on the evening of November 14, 2017, Ms. Hayes drove up from Atlanta, where she was living, and picked him up to drive to Baltimore to "pick up her daughter." According to Mr. Winston, they did not intend to stay the night in Baltimore and planned to travel immediately back to Richmond after picking up Ms. Witherspoon. He testified that before and while heading to Baltimore, he had been drinking vodka and beer, had used cocaine and marijuana, and was intoxicated.

Mr. Winston testified that after they picked up Ms. Witherspoon, they stopped at Royal Farms. When they approached the store, he saw "Mr. Wroblewski coming out the store, [and] witnessed [Mr. Wroblewski] hock spit in [Ms. Hayes's] direction." This made him feel "disrespected." He said that he did not immediately confront Mr. Wroblewski because he was "under the influence, it didn't sink in right then and there." He was "carrying [his] gun" into the Royal Farms because he did not want "to leave a gun inside of a car with the kids." He left the store to "catch up" with Mr. [*10]  Wroblewski "[t]o make him aware of his actions and to get an apology." Mr. Winston "confront[ed] [Mr. Wroblewski] and let[] [Mr. Wroblewski] know that he just spit at [Ms. Hayes] and he needed to give . . . an apology." Mr. Winston testified that during the confrontation, Mr. Wroblewski "started to swing with his [right] hand." Mr. Winston then "backed up," "pull[ed] a gun from [his] right hand and fir[ed]" "[o]ne time." After he shot Mr. Wroblewski, he "ran to the car" and "told [Ms. Hayes] to drive."

The jury found Ms. Hayes guilty of transporting a handgun in a vehicle and conspiracy to transport a handgun in a vehicle. The jury acquitted Ms. Hayes of attempted robbery with a dangerous weapon, attempted robbery, conspiracy to use a handgun in the commission of a crime of violence, conspiracy to commit robbery with a dangerous weapon, and conspiracy to commit robbery. The court sentenced her to three years' incarceration for transporting a handgun in a vehicle and three years' incarceration for conspiracy to transport a handgun in a vehicle, all but one year suspended, consecutive to the sentence for transporting a handgun in a vehicle. The court also imposed a probation period of [*11]  thirty days.

The jury found Mr. Winston guilty of second-degree murder, use of a handgun in the commission of a crime of violence, transporting a handgun in a vehicle, conspiracy to transport a handgun in a vehicle, and carrying a handgun on his person. The court sentenced Mr. Winston to forty years' incarceration, suspending all but thirty, for second-degree murder; ten years' incarceration for use of a handgun in the commission of a crime of violence, consecutive to the sentence for second-degree murder; three years' incarceration for transporting a handgun in a vehicle, concurrent with all other sentences; three years' incarceration for conspiracy to carry a handgun in a vehicle, to run concurrent with all other sentences; and three years' incarceration for carrying a handgun, concurrent with all other sentences.

Ms. Hayes and Mr. Winston filed timely notices of appeal. We consolidated their appeals because they present overlapping issues, arise from the same operative facts, and were tried together in the circuit court. We supply additional facts as needed below.

abused its discretion in declining to ask voir dire questions about the State's burden of proof and the defendant's right not to testify. Second, both Ms. Hayes and Mr. Winston raise challenges to certain jury instructions the court gave, or declined to give, before deliberation. Third, Mr. Winston lodges a constitutional challenge, asserting that his right to a speedy trial under the Sixth Amendment was violated. Fourth, Ms. Hayes challenges the sufficiency of the evidence to support her convictions. Finally, Ms. Hayes asserts that she received ineffective assistance of counsel at trial. We affirm Ms. Hayes's convictions but reverse Mr. Winston's convictions on the ground that the circuit court abused its discretion when it failed to propound the voir dire questions regarding the State's burden of proof and the defendant's right not to testify.

A. The Voir Dire Questions.

During voir dire, Mr. Winston's counsel requested that the court ask the following questions, which the court declined:

[MR. WINSTON'S COUNSEL]: Yes. The next request would be, as far as defense voir dire would be question number 20, defense's proposed voir dire for Mr. Winston, "In a criminal case like this one, each side may present arguments about the evidence but only the State has the burden of proof. The defendant need not testify on his own behalf nor present any evidence. Would you hold it against the defendant if he were to exercise his Constitutional right to remain silent and/or his right to not present evidence?" I would ask that this question be asked, included in the Court's voir dire. I would also point out that during jury selection in this case, [*14]  the last time there were individuals that answered this question.

THE COURT: Okay. That is covered by the instructions, it is a classic catechizing voir dire question and the case law is again clear that not only is not required but it's disfavored so I'm not going to ask that.

[MR. WINSTON'S COUNSEL]: All right. Just but again note my objection for the record. I would also request defense jury voir dire question number 21, "You must presume the defendant innocent of the charges now and throughout the trial unless and until after you have heard all of the evidence, the State convinces you of his guilt beyond a reasonable doubt. If you do not consider the defendant innocent now or if you are not sure you will require the State to convince you of his guilt beyond a reasonable doubt, please stand." I would again ask that this question be read and again indicate that people did answer this question when it was on the proposed voir dire during our last jury selection.

THE COURT: All right. Again, that is a classic catechizing question, believe me, the jurors when they come up for their individual responses will be reminded repeatedly that your client and Ms. Hayes are presumed to be innocent [*15]  and that the burden rests with the State but I'm not going to ask that question.

[MR. WINSTON'S COUNSEL]: And again, I just note my objection. . . .

(emphasis added). Both Ms. Hayes and Mr. Winston assert that the circuit court was required to ask this question, and that reversal is required in light of a recent Court of Appeals decision in Kazadi v. State, 467 Md. 1, 223 A.3d 554 (2020), which reversed Twining v. State, 234 Md. 97, 198 A.2d 291 (1964). HN1 We review "for abuse of discretion a trial court's decision as to whether to ask a voir dire question." Pearson v. State, 437 Md. 350, 356, 86 A.3d 1232 (2014).

1. Ms. Hayes failed to preserve this issue for appellate review.

Because Kazadi was decided in the midst of the briefing in these cases, the parties filed supplemental briefs addressing the impact and application of that decision to these defendants. In its supplemental briefs in both cases, the State acknowledged that Kazadi, by its own terms, applied to "'any other cases that are pending on direct appeal when th[at] opinion was filed, where the relevant question has been preserved for appellate review'" (quoting Kazadi, 467 Md. at 47). From there, the State concedes that both Mr. Winston and Ms. Hayes are entitled to reversal and a new trial under Kazadi. Our review of the transcript, however, reveals that during the court's review of proposed  [*16] voir dire questions, Mr. Winston's counsel objected to the court's refusal to ask questions 20 and 21, but Ms. Hayes's counsel didn't. And because the preservation requirement identified in Kazadi was not met as to Ms. Hayes, she is not entitled to relief under Kazadi.

Under Maryland Rule 8-131, we "will not decide any [] issue unless it plainly appears by the record to have been raised in or decided by the trial court. . . ." Rule 4-323(c) governs, among other things, objections made during voir dire and jury selection:

[I]t 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. The grounds for objection need not be stated unless these rules expressly provide otherwise or the court so directs. HN2 If a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection at that time does not constitute a waiver of the objection.

But if an opportunity to object presents itself and a defendant fails to object to a court's refusal to read a proposed question, the objection is waived. Brice v. State, 225 Md. App. 666, 679, 126 A.3d 246 (2015). And in cases involving multiple defendants, "each defendant [*17]  must lodge his own objection in order to preserve it for appellate review and may not rely, for preservation purposes, on the mere fact that a co-defendant objected." Williams v. State, 216 Md. App. 235, 254, 85 A.3d 367 (2014). A defendant "may expressly join in an objection made by a co-defendant but he must expressly do so." Id.

The State's concession of error, although well-intentioned, does not bind us, Coley v. State, 215 Md. App. 570, 572 n.2, 81 A.3d 650 (2013) (an appellate court is not bound by a party's erroneous concession of error on a legal issue), and we cannot discern any way in which Ms. Hayes preserved this contention for appellate review. In its concession, the State "acknowledge[d] that Hayes's case was pending on direct appeal at the time of the Court's decision, that the relevant question has been preserved for appellate review through objections filed during jury selection and renewed prior to accepting the composition of the jury," but doesn't say how the issue was preserved. Ms. Hayes claims in her opening brief that her counsel joined Mr. Winston's request for the two voir dire questions, but as reproduced above, the transcript reveals no joining or objection or statement of any kind at the time Mr. Winston asked the court to read the questions. The citation in Ms. Hayes's brief [*18]  identifies a statement by counsel a day later, and although counsel did say at that point in the transcript "I just want to say I want to incorporate the arguments of my co-counsel," the statement came after a discussion of voir dire question number 10. There is another passing (and uncited) mention (by Mr. Winston's counsel) of questions 20 and 21 shortly after, but no reaction or joining then by Ms. Hayes's counsel either.3 Nobody cites, and we haven't found, any omnibus statement that both defendants joined each other's objections or any other way to bring Ms. Hayes within Mr. Winston's objection. So as strange as it may seem in a case where the State joins in a defendant's request for a new trial, we are constrained to find that Ms. Hayes has not preserved this issue and is not entitled to relief under Kazadi.“