State of Maryland v. Latoya Jordan , No. 23, September Term, 2021. Opinion by Gould,

J. HARMLESS ERROR – FAILURE TO ASK VOIR DIRE QUESTION – RIGHT NOT TO TESTIFY The harmless error doctrine applies to the failure to ask on voir dire questions related to the defendant’s right not to testify. HARMLESS ERROR – FAILURE TO ASK VOIR DIRE QUESTION – RIGHT NOT TO TESTIFY The failure to ask on voir dire questions related t o the defendant’s right not to testify is a trial error, not a structural error. HARMLESS ERROR – FAILURE TO ASK VOIR DIRE QUESTION – RIGHT NOT TO TESTIFY The jury verdict in a case in which the trial court failed, during voir dire, to ask a question related to the defendant’s right not to testify doe s not render the jury verdict inherently infirm from a constitutional standpoint. HARMLESS ERROR – FAILURE TO ASK VOIR DIRE QUESTION – RIGHT NOT TO TESTIFY Voir dire questions related to the defendant’s righ t not to testify are tools for identifying individuals who should be struck for cause. The po ssibility that an individual was empaneled who would have been stricken for cause do es not render the trial fundamentally unfair.Circuit Court for Baltimore City

Case No.: 819290001 Argued: December 6, 2021 IN THE COURT OF APPEALS
OF MARYLAND
No. 23 September Term, 2021

STATE OF MARYLAND

v. LATOYA JORDAN

*Getty, C.J., *McDonald, Watts, Hotten, Booth, Biran, Gould,
JJ.

______________________________________

Opinion by Gould, J. Watts and Biran, JJ., dissent.

______________________________________ Filed: August 15, 2022
*Getty, C.J. and McDonald, J., now Senior Judges, participated in the hearing and conference of this case while active members of this Court. After being recalled pursuant to Md. Const., Art. IV, § 3A, they also participated in the decision and adoption of this opinion.In Kazadi v. State , this Court held that “on request, during voir dire , a trial court

must ask whether any prospective jurors are unwilli ng or unable to comply with the jury instructions on the fundamental principles of presu mption of innocence, the State’s burden of proof, and the defendant’s right not to testify. ” 467 Md. 1, 9 (2020). In Latoya Jordan’s trial on two counts of second-degree assault, which took place before our decision in Kazadi , she requested a voir dire question on the third o f those fundamental rights—a defendant’s right not to testify. The trial court declined to ask the question. In the jury trial that followed, Ms. Jordan testified in her de fense and was convicted on one of the assault counts and acquitted on the other. Although Kazadi was decided after her trial, the parties agree tha t its holding applies to Ms. Jordan’s case and that the trial court erred by refusing to ask Ms. Jordan’s requested voir dire question. 1 The issue here is what to do about the error, whi ch hinges on: (1) whether the harmless error doctrine applies to the specific error under Kazadi concerning the right not to testify, and (2) if so, whether th e error in Ms. Jordan’s case was harmless. The Court of Special Appeals assumed the former and answered “no” to the latter; therefore, it reversed Ms. Jordan’s conviction and granted her a new trial.

1 Although we will use the word “error” in this opin ion, we recognize the unfairness of doing so because Kazadi was not decided until after Ms. Jordan’s trial. T hus, we acknowledge that the trial judge did not actually e rr in applying this Court’s precedent at the time Ms. Jordan’s trial took place. See Kazadi , 467 Md. at 55-57 (McDonald, J., dissenting).2

The State petitioned this Court for a writ of certi orari, State v. Jordan , 475 Md. 698 (2021), which we granted on the following question: Is it harmless error to fail to propound a voir dir e question regarding a defendant’s right to remain silent and not testify where the defendant actually testifies? For the reasons explained below, we hold that the Kazadi error committed here was a trial error subject to the harmless error doctrin e. We further hold that under the facts of this case, the error was harmless. Accordingly, we reverse the judgment of the Court of Special Appeals.
BACKGROUND The assault charges against Ms. Jordan arose out of an altercation during a program created by a nonprofit organization called Unique F abrics, which teaches sewing skills to girls and women. The program was run by Mary Alexa nder. Ms. Alexander also supervised a “Youth Works” program through which sh e hired youths for summer jobs, including for Unique Fabrics. Ms. Jordan’s 17-year -old niece, K.J., 2 was one such studentemployee in the 2019 summer session. The Youth Works program is designed to teach young people the skills necessary to succeed in the workforce, including the appropri ate use of a cell phone for personal use during working hours. When a student had difficult y complying with the cell phone policy, Ms. Alexander would enlist the involvement of the p arent or guardian to facilitate an agreement with the student on cell phone usage. Ac cording to Ms. Alexander, the

2 Because she is a minor, we will refer to Ms. Jorda n’s niece by her first and last initials.3

paperwork listed K.J.’s grandmother as her guardian . It was K.J.’s cell phone use that prompted an altercation between Ms. Alexander and M s. Jordan on July 12, 2019, which resulted in the charges against Ms. Jordan. More d etails will be supplied below.
The Trial Ms. Jordan was charged with one count of second-deg ree assault against Ms. Alexander and a separate count of second-degree ass ault against Milroy Harried. At Ms. Jordan’s trial, during voir dire, defense counsel r equested that the court ask the following question (the “ Kazadi question”): Every person accused of a crime has the absolute co nstitutional right to remain silent and not testify. If the defendant ch ooses not to testify the jury may not consider his/her silence in any way in dete rmining whether he/she is guilty or not guilty. Is there any member of th e jury who is unable or unwilling to uphold and abide by this rule of law? The court declined the request. The court reasoned that the question would be “covered extensively in the [court’s] instructions at the end,” and by a separate voir dire question that “discusses . . . that the defendant i s presumed innocent unless the State can prove him guilty beyond a reasonable doubt.” The c ourt also determined that, without knowing whether Ms. Jordan would testify, the quest ion would be “confusing[.]” Opening Statements The State told the jury that it would call two witn esses. One witness, Ms. Alexander, would testify that K.J.’s cell phone use on July 12 , 2019 led to a phone call with Ms. Jordan. During this call, Ms. Jordan yelled at Ms. Alexande r and threatened to come to the
program.4

Sometime later, Ms. Jordan arrived at the program a nd interrupted a parent conference. Ms. Jordan then “tr[ied] to swing at” Ms. Alexander. Ms. Jordan also hit Mr. Harried, who sustained several blows and injuries w hen he attempted to separate Ms. Jordan and Ms. Alexander. In her opening statement, defense counsel did not d ispute the State’s contention that an altercation occurred between Ms. Jordan and Ms. Alexander, with Mr. Harried caught in the middle. Rather, defense counsel maintained that Ms. Alexander was the aggressor, not Ms. Jordan. Defense counsel told the jury that Ms. Jordan was K.J.’s aunt, that Ms. Jordan had raised K.J. since she was nine years old , that Ms. Jordan was K.J.’s legal guardian and referred to her niece as her daughter, and that she never gave Ms. Alexander permission to take K.J.’s cell phone. Further, defense counsel told the jury that on July 12, 2019, Ms. Alexander took K.J.’s phone without permission and called K.J. a m ute and a liar. Upset, K.J. called Ms. Jordan. During this call, Ms. Jordan heard a loud voice in the background. Ms. Alexander then took the phone from K.J. and proceeded to yell and curse at Ms. Jordan. Ms. Jordan later arrived at the program to check on K.J., and when she found Ms. Alexander, Ms. Alexander initiated the altercation. Ms. Alexander’s Testimony The State called Ms. Alexander to testify first. A ccording to Ms. Alexander, she discovered K.J. on her phone in class and asked her to put it in her purse. Several hours later, Ms. Alexander saw K.J. on her phone again, a nd confronted her about it. K.J. began5

“crying and screaming,” which prompted Ms. Alexande r to call K.J.’s grandmother, who didn’t answer. K.J. then called her aunt, Ms. Jordan. Ms. Alexand er asked K.J. for the phone so she could speak with Ms. Jordan. Their conversatio n lasted “less than 30 seconds[,]” and ended when Ms. Alexander hung up the phone because Ms. Jordan was screaming and “cussing [her] out left and right.” Later that day, Ms. Alexander and Mr. Harried were meeting with another student’s parents. Ms. Jordan entered the conference room “w ith force” and asked to speak with “that B who [she] was talking to on the phone.” Ms . Alexander told Ms. Jordan that she was in a meeting and asked her to leave. Instead o f leaving, Ms. Jordan lunged at and hit Ms. Alexander, catching her by surprise. Ms. Jorda n and Ms. Alexander called each other “a bitch.” Mr. Harried tried to separate the two a nd “blocked” Ms. Alexander from hitting Ms. Jordan. While Mr. Harried was blocking Ms. Alexander, Ms. J ordan hit him several times. Ms. Alexander told Mr. Harried “to move out [of] th e way [and] don’t stand there.” Mr. Harried asked for someone to call the police. Ms. Jordan then picked up a wet floor sign and attempted to hit both Ms. Alexander and Mr. Har ried with it. Shortly thereafter, another person took the sign from Ms. Jordan and as ked her to leave the building, which she did. In addition, in response to questions posed by the State in anticipation of the defense’s version of events, Ms. Alexander denied k icking off her shoes at any point,6

denied that Ms. Jordan’s conduct was warranted, den ied that anyone ever hit Ms. Jordan, and claimed to be following protocol during this in cident. On cross-examination, Ms. Alexander denied that she had left K.J.’s grandmother a voicemail in which she impugned K.J.’s intelligence and called her a “mute.” Ms. Alexander admitted that she accused K.J. of lying a bout putting the phone away. She acknowledged she could not hear what K.J. was telli ng Ms. Jordan on the phone but told the police that K.J. must have told Ms. Jordan “inf lammatory things” that prompted Ms. Jordan to start the fight. Ms. Alexander disputed defense counsel’s contention that Ms. Alexander told K.J. that she would not amount to an ything in life. Defense counsel also questioned Ms. Alexander about her telephone conversation with Ms. Jordan. Ms. Alexander denied telling Ms. Jordan that she “had time today[,]” that she told Ms. Jordan to “pull up[,]” or that sh e gave Ms. Jordan the address of the facility. As to the physical altercation, Ms. Alexander denie d that Ms. Jordan calmly entered the room or that she (Ms. Alexander) “hoppe d up and began cursing at” Ms. Jordan. Ms. Alexander admitted to picking up a fire extingu isher and pointing its hose at Ms. Jordan, but stated that she did so to “defend” hers elf after Ms. Jordan picked up the wet floor sign. On redirect, Ms. Alexander stated that she did not incite Ms. Jordan and that neither she nor Mr. Harried hit Ms. Jordan. Mr. Harried’s Testimony Mr. Harried recounted a similar version of events. During the parent conference, Ms. Jordan “came in and [] busted open the door and said, where is the bitch that hung up7

the phone on me when I was cussing her . . . a-s-s out.” At this point, he immediately went to the door to separate Ms. Alexander and Ms. Jorda n. While blocking the door, he was hit several times by Ms. Jordan and asked for someo ne to call the police. He saw Ms. Jordan pick up the wet floor sign but noted that Ms . Jordan was only in the process of swinging the sign before she was stopped by another person. Mr. Harried maintained that he never hit Ms. Jordan or called her or K.J. any n ames. Mr. Harried’s glasses were damaged during the altercation, which cost $5.00 to get fixed. He also went to the hospital for injuries sustained to his knee. He received a hospital bill totaling $711.51. Mr. Harried testified on cross-examination that he observed Ms. Alexander talking to K.J. about her phone use in the hallway. Howeve r, he did not see K.J. crying. He saw Ms. Alexander on the phone with Ms. Jordan. Althoug h he did not know what they were saying, he testified that Ms. Alexander’s voice was not raised. Mr. Harried was also cross-examined about the event s that occurred after Ms. Jordan arrived. According to Mr. Harried, when Ms. Jordan came into the classroom, Ms. Alexander remained seated near the parents and did not kick her shoes off. Rather, Ms. Jordan “bust[ed]” the door open and kicked her shoe s off. When he saw this, he immediately “ran to the door” to inform her they we re “in the middle of a parent conference.” When at the door, Ms. Alexander was b ehind him and he was facing Ms. Jordan. Mr. Harried did not see Ms. Alexander pick up the fire extinguisher. On redirect, Mr. Harried stated that when police ar rived, Ms. Jordan told him that she “got something for you. You was smiling.” He also reemphasized that it was Ms. Jordan, not Ms. Alexander, who kicked off her shoes

.8

After Mr. Harried finished testifying, the State re sted and the court denied defense counsel’s motion for judgment of acquittal. K.J.’s Testimony The defense called K.J. to testify first. K.J. tes tified that during a CPR class, without explanation, Ms. Alexander came in and put K.J.’s p hone case and purse on the other side of the room. After class, K.J. spoke with Ms. Alex ander about her cell phone usage. K.J. told Ms. Alexander that her cell phone was currentl y in her back pocket and was never in her purse as Ms. Alexander had thought. Ms. Alexan der then raised her voice and called K.J. “a liar [who] . . . was[] never going to be no thing in life if [she] ke[pt] lying. . . .” This caused K.J. to cry. Ms. Alexander then called K.J.’s grandmother, who d id not answer. Still crying, K.J. called Ms. Jordan to tell her what was happeni ng. During the call, “Ms. [Alexander] was yelling . . . in the background . . . . [T]hen Ms. [Alexander] took [the] phone out [of her] hand and started yelling at [Ms. Jordan].” Al though K.J. was unable to hear what Ms. Jordan was saying to Ms. Alexander, she heard Ms. A lexander tell Ms. Jordan “to pull up” and gave Ms. Jordan the program’s address. K.J. th en went outside to wait for Ms. Jordan. When Ms. Jordan arrived, they went inside to collec t K.J.’s things, after which Ms. Jordan went to find Ms. Alexander. When Ms. Jordan found Ms. Alexander, she opened the door and asked “where is the lady[] that I was talking to on the phone[?]” Ms. Alexander responded by “hopp[ing] up and [taking] her shoes off and started trying to fight [Ms. Jordan].” During this time,9

K.J. was between Mr. Harried and Ms. Jordan. K.J. observed Ms. Jordan “[w]alking back and forth saying stuff[,]” but could not recall exa ctly what she said. K.J. did not see Ms. Jordan hit Ms. Alexander or Mr . Harried; however, she did see Ms. Jordan “[p]ick up a wet floor sign[,]” but didn ’t see her do anything with it. After Ms. Jordan picked up the sign, K.J. saw Ms. Alexander p ick up a fire extinguisher and try to hit Ms. Jordan with it. Ms. Jordan went outside an d then the police arrived. On cross-examination, K.J. admitted that she was te stifying at Ms. Jordan’s request, that she and Ms. Jordan rode to court together, and that she didn’t want her aunt to go to jail. There was no redirect. Ms. Jordan’s Testimony After K.J.’s testimony, defense counsel advised Ms. Jordan of her right not to testify and told her that the court would instruct the jury “that they would not even be able to consider it, let alone think about it, in determini ng if the State has met their burden” of proving her guilt beyond a reasonable doubt. Ms. J ordan chose to waive her Fifth Amendment right against self-incrimination and proc eeded to take the stand. Ms. Jordan explained that even though K.J. was her niece, she referred to her as one of her four children. Ms. Jordan had custody of K. J. since she was nine years old and took care of her between the ages of two and five. On t he morning of July 12, she was struggling to braid a client’s hair due to limited movement in her right hand caused by sickle cell anemia. Later that day, K.J. called her crying. M s. Jordan could hear Ms. Alexander “in the background screaming.” Ms. Alexander then took the phone and told Ms. Jordan to10

“pull up. . . . I will drag you today.” Ms. Alexan der also gave Ms. Jordan the address of the program. Ms. Jordan came to the program “to see what was wro ng with [K.J.].” When she arrived, she saw K.J. outside. They went inside to gather K.J.’s things and, thereafter, Ms. Jordan searched for Ms. Alexander. Ms. Jordan foun d Ms. Alexander in a conference room and entered the room. Ms. Jordan was in the proces s of introducing herself when Ms. Alexander suddenly “was like, it’s me bitch. What’ s up. [Ms. Alexander] [k]icked her shoes off [to] try to fight [Ms. Jordan].” Ms. Ale xander “threw something at [Ms. Jordan] first[,]” which prompted Mr. Harried to get in betw een them. Ms. Alexander picked up a fire extinguisher and “was trying to hit [Ms. Jorda n] with it.” In response, Ms. Jordan “picked up the wet floor sign . . . .” Ms. Jordan, however, was never able to swing the sign because a man in a purple shirt asked her to exit t he building and she obliged. Once outside, Ms. Jordan called campus security. She denied ever hitting either Mr. Harried or Ms. Alexander. Ms. Jordan concluded her testimony emphasizing that she was K.J.’s guardian and that she never gave Ms. Alexander permission to tak e her cell phone. On cross-examination, the State called into questio n Ms. Jordan’s parenting. Specifically, the State pointed out that Ms. Jordan “didn’t know where [K.J.] was working[,]” yet was “responsible for” her. The Sta te also confirmed that although Ms. Jordan claimed to be K.J.’s legal guardian, she did not bring any documentation to prove it. There was no redirect.11

The State’s Closing Argument The State’s closing argument focused on the credibi lity of the State’s witnesses as compared to the defense witnesses. The State downp layed K.J.’s testimony, arguing that she only recalled that her phone was taken, that Ms . Jordan picked up a wet floor sign, and that Ms. Alexander picked up the fire extinguisher. The State argued that K.J. did not “remember any of the details that were described by Ms. Alexander as well as Mr. Harried.” Moreover, the State argued that K.J. was not even p resent when the altercation occurred. The State also attacked Ms. Jordan’s credibility. The State questioned her alleged side business of braiding hair despite battling sic kle cell anemia. The State also called into question Ms. Jordan’s parenting of K.J. and asserte d that Ms. Jordan picked a fight because Ms. Alexander did not recognize her as K.J.’s guard ian. The State argued that the testimony from Ms. Jordan and K.J. was not as detailed as the State’s witnesses. The State commented on the demeanor of both Ms. Jordan and K.J., describing their body language as “very stiff[,]” a n indication of defensiveness. The State encouraged the jury to rely on Ms. Alexan der’s and Mr. Harried’s testimony because they were teachers and had no rea son to be dishonest. The State argued that they both presented detailed testimony, corrob orated each other’s statements, and were merely trying to help youngsters acquire life skill s. Defense Counsel’s Closing Argument Defense counsel reminded the jury that Ms. Jordan w as to be presumed innocent and that the State bore the burden of proof. As su ch, it was unfair of the State to suggest that it was incumbent on Ms. Jordan to bring to cou rt proof of her guardianship over K.J.12

Defense counsel further argued that Ms. Jordan’s pa renting skills are irrelevant and that the State raised the issue to distract the jury. Defense counsel contended that both Ms. Alexander and Mr. Harried were engaged in a “cover up” and a “clean up” to salvage the pro gram, which was jeopardized by the incident. Defense counsel argued that Ms. Alexande r was not forthcoming in her testimony, reminding the jury that it was only on c ross-examination that she admitted to calling K.J. a liar and being frustrated with her. Defense counsel argued that Ms. Jordan gave very ca ndid testimony; that Ms. Jordan came to the program because her niece was di straught; that Ms. Jordan acknowledged picking up the wet floor sign and expl ained she did so because Ms. Alexander picked up the fire extinguisher; and that Ms. Jordan candidly described her medical condition, which made it difficult to close her hand. Defense counsel argued that the State wanted the jury to believe that a woman w ith that disability “came there months after having another [health] crisis in March and c ame there to fight these two people.” The Verdict The jury convicted Ms. Jordan of assaulting Mr. Har ried but found her not guilty of assaulting Ms. Alexander. The court sentenced Ms. Jordan to two years of prison, with all but 10 days suspended, plus two years of supervised probation. Appeal to Court of Special Appeals Ms. Jordan appealed her conviction. In a per curi am opinion, the Court of Special Appeals determined that the trial court erred under Kazadi , that the issue was preserved and not waived, and that the error was not harmless

. Jordan v. State , No. 2594, 2021 WL13

1311194, at *1-2 (Md. Ct. Spec. App. Apr. 8, 2021). The Court reversed the judgment and remanded the case for a new trial. Id. at *1.
DISCUSSION The State contends that the error was a trial erro r subject to a harmless error analysis. The State argues that because Ms. Jordan testified, the error was harmless beyond a reasonable doubt. The State views the jury’s split decision as evidence that Ms. Jordan’s decision to testify helped her cause. Ms. Jordan counters that the failure to ask the Kazadi question constitutes structural error because it implicates a defendant’s fundament al rights. Further, even if the harmless error doctrine did apply, Ms. Jordan argues that th e error was not harmless. As Ms. Jordan sees it, the failure to ask the question resulted i n unquantifiable harm from the moment the jury was impaneled, thereby rendering her subsequen t testimony irrelevant to the harmless error analysis. The question before us is whether the specific Kazadi error in this case—the failure to ask the voir dire question concerning the right not to testify—was harmless. Our analysis will proceed in the following sequence. First , we will outline the salient points from Kazadi

. Second , we will explain why the Kazadi error committed here is subject to the harmless error doctrine. 3 And third , having determined that such error is subject to

3 It should be noted that we are not addressing in t his opinion whether the failure to ask the venire about their willingness and ability to comply with the court’s instructions on the presumption of innocence and the State’s burden of proof—that is, the other two Kazadi questions—are structural errors. The State has not asked us to provide such an expansive holding, and we do not have the benefit of briefing on such issues.14

harmless error review, we will explain why, under t he facts of this case, the error was harmless. Kazadi v. State From at least 1964, trial judges were not required to ask the prospective jurors whether they would comply with jury instructions on the presumption of innocence and burden of proof. Twining v. State , 234 Md. 97, 100 (1964). In fact, we characterized such questions as “inappropriate.” Id. We decided Twining in an era when jury instructions were merely advisory. Id. ; Kazadi , 467 Md. at 24. So, there was no point in asking prospective jurors whether they’d comply with an in struction with which they were under no obligation to comply. The advisory nature of jury instructions, or, more precisely, of some jury instructions, gave way over the ensuing seventeen y ears after we decided Twining . In 1980, in Stevenson v. State , this Court pared back the jury’s role as the “jud ges of law” to judges of “the law of the crime, or the definition of the crime, as well as the legal effect of the evidence before the jury.” 289 Md. 167, 177-78 (19 80) (cleaned up), overruled by Unger v. State , 427 Md. 383 (2012). This left “all other legal i ssues . . . for the [trial court] alone to decide.” Id. at 179. Shortly after deciding Stevenson , we decided Montgomery v. State , where we held that a trial court may not instruct a jury that it “could pay no attention to instructions” regarding the presumption of innocenc e, burden of proof, and the right to not testify. 292 Md. 84, 91 (1981), overruled by Unger v. State , 427 Md. 383 (2012). Fast forward to 2020, when this Court decided Kazadi v. State . In Kazadi , this Court recognized that the erosion of the jury’s right to disregard the court’s instructions on15

fundamental rights came with a concomitant need to allow defendants to identify prospective jurors who lacked either the willingnes s or ability to comply with such instructions. 467 Md. at 46. This observation der ives from the notion that a court’s instruction on the defendant’s fundamental rights a fter the jury is chosen would “be too little, and too late to uncover the basis for disqu alification[]” of those jurors unwilling or unable to follow such instructions. Id . at 39. Thus, we held that, on request, during voir dire , a trial court must ask whether any prospective jurors are unwilling or unable to comply with the j ury instructions on the fundamental principles of presumption of innocence, the State’s burden of proof, and the defendant’s right not to testify. [4]
Id. at 9. Notably, we did not hold that a trial by a fair and impartial jury was impossible without asking such questions; such questions were required only if requested, and the court was under no obligation to ask them sua sponte

. Id . at 46-47. Our holding was grounded on the more modest premise that such a que stion “undoubtedly helps to safeguard a defendant’s right to be tried by a fair and impar tial jury.” Id . at 41. And we kept intact Maryland’s longstanding policy that “ voir dire ’s sole purpose is to elicit specific cause for disqualification, not to aid counsel in the intelli gent use of peremptory strikes.” Id . at 46 (quoting Collins v. State , 463 Md. 372, 404 (2019)).

4 There is, of course, much more to the rationale fo r the Court’s decision in Kazadi to overturn Twining

than what is covered here. Nothing in this opinio n should, therefore, be construed as changing either the holding in Kazadi or the Court’s reasoning behind the same.16

The issue of harmless error was not before us in Kazadi . But it has now been placed squarely before us. The threshold inquiry is wheth er the harmless error doctrine applies to the Kazadi error here. It is to this issue that we now turn.
Structural v. Trial Errors

A The harmless error doctrine is grounded in the noti on that a defendant has the right to a fair trial, but not a perfect one. Dorsey v. State , 276 Md. 638, 647 (1976) (quoting State v. Babb , 258 Md. 547, 552 (1970)). So, errors that do not contribute to a defendant’s guilty verdict do not warrant reversal. See id. at 653. Once error is established, the State must convince an appellate court, beyond a reasonab le doubt, “that the error in no way influenced the verdict[.]” Id . at 659; see also Chapman v. California , 386 U.S. 18, 24 (1967). But not all errors must run through the harmless er ror gauntlet; only “an error in the trial process itself[]” does. Weaver v. Massachusetts , ____ U.S. ___, 137 S. Ct. 1899, 1907 (2017) (quoting Arizona v. Fulminante , 499 U.S. 279, 310 (1991)); Ramirez v. State , 464 Md. 532, 539 n.1 (2019). Such trial errors may inc lude violations of both constitutional rights and rights derived from elsewhere. See Chapman , 386 U.S. at 22; see also Arizona , 499 U.S. at 306-07. The United States Supreme Court has found trial err ors in a variety of instances. Such errors include a jury instruction containing a n improper presumption, Carella v. California , 491 U.S. 263, 266 (1989); a prosecutor’s comment on a defendant’s silence at trial in violation of a defendant’s Fifth Amendment right, United States v. Hasting , 46117

U.S. 499, 500, 512 (1983); barring a party’s cross- examination of a witness for bias in violation of the Confrontation Clause of the Sixth Amendment, Delaware v. Van Arsdall , 475 U.S. 673, 684 (1986); and failing to instruct t he jury on the defendant’s presumption of innocence, Kentucky v. Whorton , 441 U.S. 786, 789-90 (1979). Likewise, this Court has found trial errors in vari ous contexts, including giving an anti-CSI effect jury instruction, Taylor v. State , 473 Md. 205, 235 (2021); requiring a defendant to decide whether he would testify prior to the testimony of the last defense witness, Stoddard v. State , 423 Md. 420, 438 (2011); deciding incorrectly tha t the defendant waived the attorney-client privilege, Greenberg v. State , 421 Md. 396, 413-14 (2011); and failing to ascertain a co-defendant’s b asis for invoking his Fifth Amendment right against self-incrimination when an improper p lea deal was involved, Bhagwat v.
State , 338 Md. 263, 279-80, 282 (1995). Although the harmless error doctrine casts a wide n et, there are certain types of errors that elude its application because of their “unquantifiable and indeterminate[]” effect on the framework of trial. Sullivan v. Louisiana , 508 U.S. 275, 281-82 (1993). Such errors are known as structural errors, which have been des cribed as “defects in the constitution of the trial mechanism, which defy analysis by ‘harmle ss-error’ standards.” Arizona , 499 U.S. at 309; see also Redman v. State , 363 Md. 298, 303 n.5 (2001). The Supreme Court identified three “broad categorie s” of structural errors. First , an error may be structural “if the right at issue i s not designed to protect the defendant from erroneous conviction but instead protects some othe r interest[]” such as the “right to conduct [one’s] own defense[.]” Weaver , 137 S. Ct. at 1908. Second , an error may be18

structural if its effect is not susceptible to meas urement, such as the denial of the right to counsel of one’s choosing. Id. And third , errors that “always result[] in fundamental unfairness[]” have been deemed structural, such as the failure to give a reasonable doubt instruction. Id. The Supreme Court has found structural errors in re latively few cases, including a complete denial of counsel, Gideon v. Wainwright , 372 U.S. 335, 343-45 (1963); a judge who lacks impartiality, Tumey v. Ohio , 273 U.S. 510, 535 (1927); the exclusion of individuals from a grand jury because of race, Vasquez v. Hillery , 474 U.S. 254, 263-64 (1986); and interference with a defendant’s right o f self-representation at trial, McKaskle v. Wiggins , 465 U.S. 168, 187-88 (1984). Similarly, this Court has found structural errors i n a limited number of situations, including “giving [an] advisory only jury instructi on[,]” State v. Waine , 444 Md. 692, 705 (2015); giving a flawed reasonable doubt jury instr uction, Savoy v. State , 420 Md. 232, 254 (2011); violating a defendant’s right to a public t rial, Robinson v. State , 410 Md. 91, 109- 10 (2009); and failing to swear-in a jury, Harris v. State , 406 Md. 115, 130-31 (2008).
B Ms. Jordan argues that the trial court’s failure to propound the Kazadi question amounts to structural error because (1) it ensures the jury is unbiased, which is akin to the swearing-in of a jury; and (2) unlike other types o f voir dire questions, fundamental rights are implicated. The State counters that the failur e to ask the question required under Kazadi should be considered trial error because such failu re does not fit into any of the structural error categories outlined by the Supreme Court in Weaver

.19

For guidance, certain cases are instructive. In Sullivan v. Louisiana , the issue was whether a constitutionally deficient reasonable dou bt instruction always requires a reversal or may be subject to a harmless error analysis. 5 508 U.S. at 276. There, the Court explained that the Sixth Amendment entitles a defendant to a trial by an impartial jury, and the Fifth Amendment imposes a “proof beyond a reasonable doub t” standard on the government. Id . at 278. Construed together, “the jury verdict re quired by the Sixth Amendment is a jury verdict of guilty beyond a reasonable doubt.” Id . Thus, if the jury receives a defective instruction on reasonable doubt, the defendant is d eprived of the jury trial guaranteed by the Sixth Amendment. Id . at 277-78.
In Sullivan , the Court set up its analysis of structural versu s trial error by observing that under Chapman , the harmless error inquiry “is not what effect th e constitutional error might generally be expected to have upon a reasonab le jury, but rather what effect it had upon the guilty verdict in the case at hand.” Id . at 279. The Court in Sullivan explained that the erroneous reasonable doubt instruction was not susceptible to harmless error review because the defective instruction deprived t he jury of the means to render a guilty “verdict within the meaning of the Sixth Amendment[ .]” Id . at 280. Without such a verdict, “[t]here is no object, so to speak, upon w hich harmless-error scrutiny can operate.” Id. (emphasis omitted). Thus, the Chapman inquiry of “whether the same verdict of guiltybeyond-a-reasonable-doubt would have been rendered absent the constitutional error is utterly meaningless.” Id.

5 As this Court has previously noted, “not all error s in a reasonable doubt instruction are of constitutional magnitude.” Savoy , 420 Md. at 238.20

The case of United States v. Hasting is also instructive. 461 U.S. 499 (1983). There, in closing argument, the prosecutor improperly comm ented on the defendants’ decision not to testify. Id. at 502. The Court concluded that a harmless error analysis was possible through a careful evaluation of the trial record. Id. at 509-10. After examining the evidence adduced by the State, the Court concluded that “a m ore compelling case of guilt [was] difficult to imagine.” Id . at 511. In contrast, after examining the defense ’s evidence, the Court concluded that the defense advanced “patently and totally inconsistent theories [that] could hardly have escaped the attention of the juro rs.” Id. at 512. Thus, the Court concluded the error was a harmless trial error. Id.
In Ramirez v. State , this Court addressed an ineffective assistance of counsel claim in the context of a post-conviction proceeding. 6 464 Md. at 539. During voir dire, a prospective juror admitted to an inability to be fa ir and impartial due to a recent burglary of his home. Id. at 539-40. Yet, defense counsel failed to move to strike that juror for cause, and that juror was impaneled. Id. at 540. On appeal from the denial of his post-conviction pe tition, the defendant argued that his counsel rendered ineffective assistance by allo wing a biased juror to be seated, which amounted to structural error. Id. at 541. We concluded that defense counsel’s representation was deficient for failing to move to strike the juror. Id. at 566-67. But we also observed that “[n]ot every claim with respect to the failure to strike or challenge an

6 Ramirez

addressed the interplay between structural errors and the prejudice element of an ineffective assistance of counsel cla im. 464 Md. at 538-39. Because the elements of an ineffective assistance of counsel cl aim are not relevant here, we will confine our discussion of Ramirez to the structural error analysis.21

allegedly biased juror will result in a determinati on that a trial was fundamentally unfair.” Id. at 573. In other words, the seating of a biased j uror is not necessarily a structural error.
In Ramirez , we also held that even if the error was structura l, the defendant would not have been relieved of his burden to prove that defense counsel’s error was prejudicial in a post-conviction claim of ineffective assistanc e of counsel. Id . And although the prejudice analysis is different than the harmless e rror analysis, we find it instructive that,
in Ramirez , we were able to evaluate the strength of the Stat e’s case to determine whether the inclusion on the jury of an allegedly biased ju ror prejudiced the defendant. See id. at 578. We recognized that the State produced substan tial evidence of the defendant’s guilt. Id. at 580. Such evidence included testimony from the victims, the getaway driver, and physical evidence corroborating the witnesses’ test imony. Id. at 579-80. Thus, we found no significant possibility that the jury would have reached a different verdict without the allegedly biased juror. Id . at 580. There are two Maryland cases worth discussing that involve the failure to swear-in the jury as required under common law and Article 5 of the Maryland Declaration of Rights. In Harris v. State , we held that the complete failure to swear-in a j ury constituted structural error because “the administration of the oath is an essential ingredient of a legally constituted . . . and . . . impartial jury.” 406 M d. at 124, 129. Thus, the defendant was not “adjudged guilty by any authorized trier of fact[,] ” rendering the verdict a “nullity.” Id. at 129. In addition, we noted that the error was stru ctural because jeopardy does not attach if the jury that rendered the verdict was not sworn in

. Id . at 131-32.22

In contrast, in Alston v. State , the court did not realize until the fourth day of trial, after the State had rested, that the jury had not b een sworn. 414 Md. 92, 98 (2010). At that point, the court proceeded to swear-in the jury and questioned the jurors to ensure their ability to abide by the oath. Id. at 99. We determined that, in contrast to Harris , the belatedly sworn jury allowed jeopardy to attach and , in conjunction with the court’s questioning of the jurors, alleviated the concerns about impartiality. Id. at 105-06. Indeed, the jury’s acquittal of the defendant on various ch arges indicated that the jurors diligently and impartially considered each count. Id. at 109. Thus, the error was deemed to be a harmless trial error as opposed to a structural er ror. Id. at 107. Our assessment of the caselaw brings us to the conc lusion that the error here falls on the trial error side of the ledger. There is no claim that the jury was not properly instructed on matters pertaining to Ms. Jordan’s fu ndamental constitutional rights, or that the jury was never sworn. Thus, unlike Sullivan , where the jury received a deficient reasonable doubt instruction, and unlike Harris , where the jury was never sworn, the jury verdict here was not inherently infirm from a const itutional standpoint. In other words, unlike in Sullivan , here there was an “object, so to speak, upon which harmless-error scrutiny can operate.” 508 U.S. at 280 (emphasis o mitted). The error committed here can readily be assessed fo r its impact or influence on the jury verdict. In that regard, this case aligns wit h Ramirez v. State . In Ramirez , the defendant’s Sixth Amendment right to an impartial j ury was at stake. 464 Md. at 567. Similarly here, Ms. Jordan’s Fifth Amendment right against self-incrimination was at stake. In Ramirez , the error was the seating of a juror identified i n the voir dire process as23

someone who should have been stricken for cause. Id. at 559-60. Here, the error was depriving the defendant of a tool for identifying i ndividuals who should be struck for cause.
We know that in Ramirez , a juror who have been stricken for cause made it on to the jury; id. at 540, here we can only speculate that someone wh o should have been stricken for cause was seated on the jury. In Ramirez , we determined that the actual seating of a biased juror did not automatically render the trial fundam entally unfair, and therefore we could not say that the error was structural. Id. at 573. Thus, here, we determine that the possibility that an individual was empaneled who should have s tricken for cause did not render Ms. Jordan’s trial fundamentally unfair. This case also favorably compares to Hasting , where the Supreme Court found harmless error in the prosecution’s improper commen ts on the defendant’s silence at trial. 461 U.S. at 512. The danger in such an error was t hat one or more jurors could have been persuaded by the prosecution to infer guilt from th e defendant’s failure to testify. That is akin to the risk presented by the failure to ask th e Kazadi question about the right to remain silent—namely, that an individual who would view th e defendant’s failure to testify as evidence of guilt would make it on to the jury. As in Hasting , we too conclude that the error here was a trial error subject to the harmles s error doctrine.
C Now we must determine whether the State has demonst rated beyond a reasonable doubt that the refusal to ask the Kazadi question did not contribute to the guilty verdict. The court’s refusal to ask the question deprived Ms . Jordan of a tool for identifying individuals who should have been stricken for cause for their unwillingness or inability to24

comply with the court’s instruction on the defendan t’s right to remain silent. We perceive two ways in which a refusal of this nature could co nceivably contribute to a guilty verdict. First, a possible consequence of not asking the Kazadi question is that a juror who is unwilling or unable to comply with the right to sil ence instruction could have been empaneled on the jury. Second, the refusal could h ave been the deciding factor in the defendant’s decision to testify. We can summarily rule out the first possibility bec ause Ms. Jordan testified. The trial court never gave the jury instruction concern ing a defendant’s right not to testify. Thus, none of the jurors had an opportunity to disr egard such an instruction. The second scenario is theoretically possible here. Testifying can be risky for some defendants for a variety of different reasons. For example, if a defendant knows that he will be impeached with a prior conviction if he tes tifies, but is more concerned the jury would see his failure to testify as evidence of gui lt, it’s possible the defendant will choose to testify when he otherwise would have chosen not to. In that case, the refusal to ask the Kazadi question could conceivably contribute to the guilt y verdict. Thus, we must examine the evidentiary record to determine if that possibi lity was realized in this instance. At trial, the central issue was whether Ms. Jordan was the aggressor as alleged by the State, or whether Ms. Alexander was the aggress or as argued by the defense. It was a classic credibility contest. Ms. Jordan neither di sputed that she had an altercation with Ms. Alexander, nor that Mr. Harried got caught in the m iddle of the two. That these facts were not disputed was evident in defense counsel’s openi ng statement, cross-examination of Ms.25

Alexander and Mr. Harried, direct examination of K. J. and Ms. Jordan, and closing argument. Two witnesses testified for the State: Ms. Alexande r and Mr. Harried. Ms. Alexander explained in detail her interactions with both K.J. and Ms. Jordan. Ms. Alexander portrayed Ms. Jordan as the aggressor, an d Mr. Harried corroborated Ms. Alexander’s statement. Thus, when the State rested , the jury had more than enough credible, unrebutted testimony to convict Ms. Jorda n on both counts of assault. And the jury had heard only Ms. Alexander’s side of the sto ry. As a practical matter, therefore, Ms. Jordan was al l but required to put on a defense. Although K.J. testified in her defense, it is not s urprising that Ms. Jordan decided that the jury should hear her side of the story directly fro m herself. Having examined closely Ms. Jordan’s trial testimon y, we are convinced beyond a reasonable doubt that her testimony did not contrib ute to the guilty verdict on the charge of assaulting Mr. Harried. Defense counsel’s direc t examination of Ms. Jordan was focused and concise. Much of her testimony establi shed her status as K.J.’s guardian and refuted Ms. Alexander’s testimony. Ms. Jordan did not just deny Ms. Alexander’s account, she painted Ms. Alexander as the aggressor, spoilin g for a fight. In contrast, very little of Ms. Jordan’s testimony touched upon the specific allegation that she hit Mr. Harried. Such testimon y consumed, by our estimate, less than three percent of Ms. Jordan’s direct testimony, con sisting of the following exchange: Q: Mr. Milroy?26

A: Mr. Milroy, yeah. He was in the middle of bot h of us. She had the fire extinguisher. She was trying to hit me with i t. She was swinging it like this. So when she was swinging it, I picke d up the wet floor sign because you not about to hit me with a fire ex tinguisher. Q: []Ms. Jordan, you said that [Mr. Harried] was in between you. Where were you standing at, ma’am? A: I was in the hallway and he was in directly betw een the doors like this (indicating). Q: And . . . at any point in time, Ms. Jordan, did you swing at Ms. Alexander[?] A: No. I didn’t swing at neither one of them. And I told the police that. That last answer—in response to a question that did n’t even include Mr. Harried— was the only denial the jury heard from Ms. Jordan that she hit Mr. Harried. On cross, the State sought only to undermine Ms. Jo rdan’s credibility, not to affirmatively support the assault charges. The Sta te asked questions designed to sow doubt about Ms. Jordan’s claimed status as K.J.’s legal g uardian and to paint Ms. Jordan as a neglectful guardian. But the State did not catch M s. Jordan in any lies; in fact, the State did not even try to do so. Nor did the State ask M s. Jordan a single question about her version of the incident. It is likely that Ms. Jordan’s testimony had a posi tive effect on the jury, as evidenced by the jury’s acquittal of her on the charge of ass aulting Ms. Alexander. But to find harmless error, we need not engage in such speculat ion—we need only determine beyond a reasonable doubt that her testimony did not contr ibute to the guilty verdict on the charge of assaulting Mr. Harried. We have no such difficu lty here. As shown above, Ms. Jordan’s testimony was limited to denying the allegation tha t she struck Mr. Harried. And although27

her denial clearly did not provide the jury with re asonable doubt that she struck Mr. Harried, her testimony provided no evidence that sh e did assault him. At worst, therefore, the jury declined to credit her denial of hitting M r. Harried, which is a far cry from providing evidence tending to establish her guilt. See Fuentes v. State , 454 Md. 296, 320 (2017) (“While denial of scienter may permit a find ing of scienter, [the defendant’s] denial that he made a statement . . . does not, alone, per mit an evidentiary finding that he, in fact, made this statement.”); see also Grimm v. State , 447 Md. 482, 510 (2016) (quoting Carter
v. State , 10 Md. App. 50, 54 (1970) (“The defendant may, if he wishes, testify in his defense. If he does so, ordinarily, disbelieving h is testimony is not the same as finding positive evidence to the contrary . . . .”)); see also Att’y Grievance Comm’n v. Clements , 319 Md. 289, 298 (1990) (“A refusal to believe evid ence of a respondent, however, does not, of itself, supply affirmative evidence of the dishonesty, fraud, deceit or misrepresentation charged.”). Accordingly, we find that the Kazadi error here was harmless.

J UDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED

. C OSTS TO BE PAID BY RESPONDENT

.IN THE COURT OF APPEALS
OF MARYLAND
No. 23 September Term, 2021

______________________________________

STATE OF MARYLAND

v. LATOYA JORDAN

______________________________________

*Getty, C.J. *McDonald Watts Hotten Booth Biran Gould,
JJ.

______________________________________ Dissenting Opinion by Watts, J., which Biran,

J., joins.

______________________________________

Filed: August 15, 2022 *Getty, C.J., and McDonald, J., now Senior Judges, participated in the hearing and conference of this case while active members of this Court. After being recalled pursuant to Maryland Constitution, Article IV, Section 3A, they also participated in the decision and adoption of this opinion. Circuit Court for Baltimore City Case No. 819290001 Argued: December 6, 2021Respectfully, I dissent. I would affirm the judgme nt of the Court of Special Appeals

and conclude that the Circuit Court for Baltimore C ity’s failure to ask a mandatory upon request voir dire question about a constitutional right constituted r eversible error, i.e ., not harmless error. I would hold that a trial court’s failure to propound the voir dire question at issue—namely, a question concerning prospective jurors’ willingness or ability to follow an instruction concerning a defendant’s right not t o testify—results in reversible error regardless of whether the defendant testifies at tr ial. In Kazadi v. State, 467 Md. 1, 35-36, 223 A.3d 554 , 574-75 (2020), this Court held that, “on request, during voir dire , a trial court must ask whether prospective jurors are unwilling or unable to comply with jury instruction s on the long-standing fundamental principles of the presumption of innocence, the Sta te’s burden of proof, and the defendant’s right not to testify.” We overruled Twining v. Sta te, 234 Md. 97, 100, 198 A.2d 291, 293 (1964), an almost sixty-year-old case, which held t hat it was not an abuse of discretion for a circuit court to decline to ask during voir dire about a prospective juror’s ability to follow instructions on “presumption of innocence and the b urden of proof[,]” because, since the decision in Twining, jury instructions had become b inding on the jury as opposed to advisory. Kazadi, 467 Md. at 24, 36, 223 A.3d at 5 68, 575 (citations omitted). We explained that the rights at issue in Kazadi—the pr esumption of innocence, the burden of proof, and the right not to testify—“have existed f or more than two centuries[,]” and “are critical to a fair jury trial in a criminal case[.] ” Id. at 44-45, 223 A.3d at 580-81. With respect to the right not to testify, we state d that “[t]he Fifth Amendment to the Constitution of the United States, which was ratifi ed in 1791, expressly enshrines the right- 2 -

not to testify, stating in relevant part: ‘No perso n shall be . . . compelled in any criminal case to be a witness against him[- or her]self[.]’” Id. at 45, 223 A.3d at 580 (last two alterations in original). We noted that “[a]lthoug h the Constitution does not explicitly refer to the burden of proof or the presumption of innoce nce, both of those principles existed under the common law at least since around the time of the country’s founding.” Id. at 45, 223 A.3d at 580 (citations omitted). We concluded that with respect to all three of the rights at issue—the two fundamental rights and the constitutional right not to testify—the criteria forth in Collins v. State, 463 Md. 372, 37 6-77, 205 A.3d 1012, 1014 (2019) 1 for when a circuit court is required to ask a voir dire question upon request were satisfied. Kazadi, 467 Md. at 44-45, 223 A.3d at 580. In this case, Ms. Jordan indisputably requested a voir dire question involving a prospective juror’s ability to follow an instructio n concerning the defendant’s constitutional right not to testify—one of the Kaza di questions. 2 I see no reason to depart

1 In Kazadi, 467 Md. at 44-45, 223 A.3d at 580, we st ated: In Collins, 463 Md. at 376-77, 205 A.3d at 1014, we explained the criteria as follows: On request, a trial court must ask a voir dire question if and only if the voir dire question is reasonably likely to reveal specific c ause for disqualification. There are two categories of spec ific cause for disqualification: (1) a statute disqualifies a pros pective juror; or (2) a collateral matter is reasonably liable to have undu e influence over a prospective juror. The latter category is comprise d of biases that are directly related to the crime, the witnesses, or the defenda nt. (Paragraph break and brackets omitted).

2 The State acknowledges that it did not argue below that Kazadi should not apply to Ms. Jordan given the timing of her appeal. In a ny case, this Court recently clarified that “Kazadi applies to any case pending in a trial or a ppellate court that had not become final- 3 -

from our holding in Kazadi—that upon request a tria l court must ask whether prospective jurors are unwilling or unable to comply with a jur y instruction on the defendant’s right not to testify—where the defendant testifies at tri al. In Kazadi, we provided no qualification with respect to the application of ou r holding. In other words, in Kazadi, we did not conclude that the voir dire question concerning a juror’s ability or willingne ss to follow an instruction on the defendant’s right not to testify is mandatory upon request only where the defendant does not testify. Indeed, in m ost instances, it would not be possible for the trial court to know whether a defendant wil l ultimately testify at the point that voir dire questions are asked of prospective jurors. It is clear that the voir dire question concerning a defendant’s right not to testify is re quired to be asked, i.e ., mandatory, upon

on direct appeal when the opinion was issued,” or s tated otherwise, to “cases in which there had not yet been a final disposition at the time th at the opinion was issued, and in which the issue was preserved for appellate review.” Kum ar v. State, 477 Md. 45, 68, 266 A.3d 295, 309 (2021). To the extent that there is a question about whethe r new interpretations of the law should be promulgated by referral to the Standing C ommittee on Rules of Practice and Procedure (the Rules Committee), rather than by cas e law, in Kazadi, where the new holding concerned an issue of constitutional signif icance in criminal law, this Court followed the well-established precedent of reversin g a judgment of the circuit court or the Court of Special Appeals and giving application of the new holding to all pending cases in which there had not yet been a final disposition. Indeed, after Kazadi, in Rochkind v. Stevenson, 471 Md. 1, 38, 236 A.3d 630, 652 (2020), reconsideration denied (Sept. 25, 2020), a civil case, this Court adopted the Daubert standard in Maryland, “a new interpretation of Rule 5-702,” and made the holding applicable to the case and any other cases that wer e pending on appeal when the opinion in Rochkind was filed, “where the relevant question has been preserved for appellate review.” In refusing to implement the new evidenti ary standard by rulemaking, this Court stated that it “is well suited to weigh the advanta ges and disadvantages of modifying our approach to any area of the law—as we often do. Th at this change implicates our interpretation of the Maryland Rules does not neces sitate a referral to the Rules Committee.” Id. at 29 n.15, 236 A.3d at 646 n.15.- 4 -

request in a criminal case, regardless of whether a defendant later decides to testify. In other words, the question is not whether under Kaza di a trial court’s failure to ask a voir dire question concerning a juror’s ability to follow an instruction on the defendant’s constitutional right not to testify is error—it is. Rather, the question is whether the error constitutes reversible error. I would conclude th at it does. In a criminal trial, one of the most difficult deci sions that defense counsel makes is how to advise a client concerning whether to testif y and one of the decisions left solely to the discretion of the defendant, albeit with the ad vice of counsel, is whether to testify. Some jurors take it as evidence of guilt if a defen dant elects not to testify. See, e.g., Mitchell J. Frank & Dr. Dawn Broschard, The Silent Criminal Defendant and the Presumption of Innocence: In the Hands of Real Juro rs, Is Either of Them Safe? , 10 Lewis & Clark L. Rev. 237, 264-65 (2006). It goes withou t saying that where a defendant decides to testify, the defendant’s testimony is critical t o the outcome of the case. A trial court not asking upon request, in keeping with the Court’s ho lding in Kazadi, a voir dire question to ascertain whether prospective jurors would be able to follow an instruction that the defendant has a constitutional right to remain sile nt or is not required to testify cannot be deemed harmless. A defendant who testifies has a c onstitutional right not to and it is critical when a defendant testifies that jurors und erstand that the defendant was not required or mandated to do so. In the absence of a voir dire question being asked upon request concerning the right, it cannot be ruled out that a defendant will feel compelled to testify as the trial court will have refused the defendant an opportunity to assess whether jurors would equate silence with guilt and the defendant w ho testifies will be forced to face the- 5 -

scrutiny of jurors who may believe that the defenda nt was compelled or had no choice but to testify. The purpose of the question at issue is not solely to uncover a prospective juror’s ability to follow an instruction by the trial court but rather the intent of the question— indeed of all three of the Kazadi questions—is to u ncover a prospective juror’s regard for the important fundamental principles and constituti onal right at stake. The circumstance that an instruction as to the defendant’s right not to testify is not given where a defendant testifies does not eliminate the need for the inqui ry. No reasonable person would argue that a juror who disclosed during voir dire that the juror did not believe that the defendant had a right not to testify, or held the view that t he defendant should be compelled to testify, should not be subject to disqualification. See Md. Code Ann., Cts. & Jud. Proc. (1974, 2020 Repl. Vol.) § 8-404(b)(2). In other words, a juror who disclosed during voir dire that the juror did not believe that a defendant had a co nstitutional right not to testify would not be deemed qualified to serve as a juror if the juro r could be assured that the defendant would indeed testify. Our decision to grant the petition for a writ of certiorari , vacate the judgment, and remand in Soule illustrates the point that the Kaza di voir dire questions serve a purpose broader than literally uncovering whether prospecti ve jurors are able to follow jury instructions. See Soule v. State, 467 Md. 689, 226 A.3d 234 (2020); Soule v. State, 467 Md. 432, 225 A.3d 415 (2020). In Soule, the defend ant filed a petition for a writ of
certiorari raising two questions, including one as to whether this Court should revisit its case law concluding that it was inappropriate for a trial court to ask voir dire questions- 6 -

concerning the presumption of innocence. Specifica lly, Soule raised the following question: “Should this Court revisit its cases hold ing it inappropriate to question venirepersons regarding the presumption of innocenc e, given the widespread use of such questions throughout the State?” The question did not ask whether the Court should revisit the issue of questioning jurors as to their unwilli ngness or inability to follow a jury instruction on the presumption of innocence. This Court placed the petition on hold pending the disposition of Kazadi. After issuance of the opinion in Kazadi, on March 2 , 2020, this Court issued an order granting the petition for a writ of certiorari in Soule and an order vacating the judgment of the Court of Special Appeals and remand ing the case to that Court to consider whether the holding in Kazadi should be applied in the case and, if so, to reconsider its prior opinion. See Soule, 467 Md. 689, 226 A.3d 23 4; Soule, 467 Md. 432, 225 A.3d 415. Only a few weeks later, on March 20, 2020, in an un reported opinion, the Court of Special Appeals determined that Kazadi applied to Soule and reconsidered the issue of whether the trial court abused its discretion in denying Soule’ s requested voir dire questions. See Joseph Patrick Soule v. State of Maryland, No. 903, Sept. Term, 2017, 2020 WL 1330201, *1 (Md. Ct. Spec. App. Mar. 20, 2020). The Court o f Special Appeals observed that Soule had asked the trial court “to inquire about the wei ght jurors would assign to [his] testimony, their ability to maintain a presumption of innocenc e, and their understanding of the reasonable doubt standard[,]” and that in refusing the request, the trial court had stated that jury instructions would cover those issues and that the law “regarding the State’s burden would be addressed in the jury instruction exactly as required pursuant to the holding of- 7 -

Twining [.]” Id. at *2. The Court of Special Appeals con cluded that, in light of this Court’s holding in Kazadi, the trial court’s reliance on Tw ining was misplaced and that the court was required to ask upon request the proposed voir dire questions concerning the jurors’ understanding of the defendant’s fundamental rights . See id. Apart from the significance of the constitutional r ight not to testify and the need to ascertain a prospective juror’s ability to understa nd the right, this Court has consistently held that a circuit court’s failure to propound a m andatory upon request voir dire question is not harmless error. See Moore v. State, 412 Md. 635, 668, 989 A.2d 1150, 1168 (2010); Bowie v. State, 324 Md. 1, 11, 595 A.2d 448, 453 (1 991); Langley v. State, 281 Md. 337, 348-49, 378 A.2d 1338, 1344 (1977). In Langley, 28 1 Md. at 349, 378 A.2d at 1344, we held that “where a principal part of the State’s ev idence [was] testimony of a police officer diametrically opposed to that of a defendant, it [w as] prejudicial error to fail to propound” upon request a question asking whether jurors would give more credence to a witness merely because of the witness’s status as a law enf orcement officer. In Bowie, 324 Md. at 11, 595 A.2d at 453, this Cou rt relied on Langley in determining that the trial court erred in refusing to propound upon request questions asking whether jurors would believe the testimony of law e nforcement witnesses more than that other witnesses or whether any juror would accord l ess credence to defense witnesses, and held that the error in refusing to ask such questio ns was not harmless. In so holding, we rejected the State’s contention that Langley applie s only when a defendant testifies and gives testimony that is “diametrically opposed” to the testimony of law enforcement witnesses. Bowie, 324 Md. at 9-10, 595 A.2d at 452 . We observed that, because the State- 8 -

has the burden of proof in a criminal case, credibi lity of the State’s witnesses is relevant even in the absence of conflicting narratives and r egardless of whether the defendant testifies. See id. at 10, 595 A.2d at 452. As suc h, we concluded that the trial court’s refusal to ask voir dire questions concerning whether jurors would give mor e weight to the testimony of law enforcement officers than to other witnesses was reversible error. See id. at 10-11, 595 A.2d at 452-53. In Moore, 412 Md. at 641-42, 989 A.2d at 1153, the trial court refused to ask voir dire questions aimed at discerning whether potential jur ors would be biased against witnesses because the witnesses were witnesses for the defense. Applying the holdings in Bowie and Langley, we concluded that a juror who wo uld assign less credibility to a defense witness simply because of the witness’s aff iliation with the defense “may be prejudiced” and it was therefore an abuse of discre tion to deny the requested vior dire question where the question was “directed” at this potential bias. Id. at 654, 989 A.2d at 1160. We stated that “[t]he purpose of voir dire is to ensure and secure a defendant’s right to a fair and impartial trial by permitting the sel ection of a jury comprised of venirepersons who do not hold preconceived notions or biases that would affect the outcome of the trial.” Id. at 664, 989 A.2d at 1166. Relying on Bowie, 32 4 Md. at 10, 595 A.2d at 452, we reiterated that a defendant has a right to “determi ne whether witnesses called by the State will start with a presumption of credibility simply because of the positions occupied rather than the facts of the case.” Moore, 412 Md. at 665 , 989 A.2d at 1167 (cleaned up). We held that the failure to ask the defense-witness voir dire question was reversible error and not harmless. See id. at 668, 989 A.2d at 1168.- 9 -

There is no basis on which to distinguish the abov e precedent on reversible error where, as in this case, a trial court has failed to ask upon request a voir dire question concerning jurors’ ability to follow an instruction on the defendant’s constitutional right not to testify and the defendant testifies at trial . The question is aimed at uncovering bias against the defendant. In this case, the question— whether any juror would be unable to “abide” by the rule of law that a defendant possess es a constitutional right not to testify— addresses not only whether a juror would hold a dec ision not to testify against the defendant but also whether a proposed juror holds the view th at a defendant is required to testify or must testify to establish innocence. A juror who b elieves that a decision not to testify should be held against a defendant, i.e. , a defendant is required to testify or compelled t o testify to establish innocence, would be as biased against a defendant who elects to testify as the juror would be against a defendant who elect ed not to testify. In Kazadi, 467 Md. at 45, 223 A.3d at 580, we explained: On request, a trial court must ask voir dire questions that are reasonably likely to reveal a cause for disqualification invol ving matters that are liable to have undue influence over a prospective juror. Such matters may be comprised of biases related to the crime or the def endant. Certainly, the belief that a defendant must testify or prove innoc ence, or an unwillingness or inability to comply with jury instructions on th e presumption of innocence, burden of proof, or a defendant’s right not to test ify, otherwise would constitute a bias related to the defendant. As a m atter of fact, it is difficult to conceive of circumstances that could be more prejud icial to a defendant's right to a fair trial. The principle that the failure to ask, upon request , a voir dire question concerning a defendant’s right not to testify constitutes revers ible error applies with equal force whether the defendant testifies or not because the question relates to the concern that a juror might- 10 -

be biased against a defendant by holding a failure to testify against the defendant or discounting a defendant’s testimony because the jur or believes that the defendant had no right to remain silent or not to testify. In that regard, the voir dire question at issue is similar to the questions at i ssue in Moore, Bowie, and Langley, cases in which this Cour t concluded the trial court’s failure to ask upon request constituted reversible error. If there is any distinction at all between the cases, it is that unlike in Moore, Bowie, and L angley, where the voir dire questions addressed specific witnesses who may or may not hav e testified at a given trial, the question at issue in this case concerned a defendant’s absol ute constitutional right not to testify at a criminal trial. This Court has already held that t he failure to ask the Kazadi voir dire questions upon request is reversible error. See St ate v. Ablonczy, 474 Md. 149, 153-54, 166, 253 A.3d 598, 600-01, 607-08 (2021) (holding t hat a defendant did not waive an objection to a trial court’s failure to ask upon re quest a voir dire question containing all three Kazadi questions and affirming the Court of S pecial Appeals’s reversal of the trial court’s judgment.). I would not depart from our pr ecedent on reversible error established in Kazadi and Ablonczy where the failure to ask upo n request a mandatory voir dire question concerning the constitutional right not to testify is concerned. Separate and distinct from the holding in Kazadi ma king the question at issue mandatory upon request and the holdings in Moore, B owie, and Langley making the failure to ask upon request voir dire questions concerning bias against a defendant reve rsible error, the error in this case was plainly not harmless. I n this case, Ms. Jordan’s credibility as a witness was of paramount importance considering the diametrically opposed testimony of- 11 -

other witnesses presented at trial. In Dorsey v. S tate, 276 Md. 638, 659, 350 A.2d 665, 678 (1976), this Court explained the harmless error standard as follows: [W]hen an appellant, in a criminal case, establishe s error, unless a reviewing court, upon its own independent review of the recor d, is able to declare a belief, beyond a reasonable doubt, that the error i n no way influenced the verdict, such error cannot be deemed ‘harmless’ and a reversal is mandated. Such reviewing court must thus be satisfied that th ere is no reasonable possibility that the evidence complained of-whether erroneously admitted or excluded-may have contributed to the rendition of t he guilty verdict. [3]
Ms. Jordan was convicted of assault. The State’s t heory of the case was that Ms. Jordan was the aggressor in an altercation involving Mary Alexander, a person who ran a youth program that Ms. Jordan’s niece attended. At trial , as witnesses for the State, Ms. Alexander and another person, Milroy Harried, testi fied that after yelling at Ms. Alexander on the telephone, Ms. Jordan burst into a meeting w ith Ms. Alexander and Mr. Harried, kicked off her shoes, and hit both of them.
Ms. Jordan and her niece testified that the opposite ha d occurred. Ms. Jordan testified that it was actually Ms. Alexander who ye lled at and threatened her on the phone, and that Ms. Alexander removed her shoes and attemp ted to hit her with a fire

3 In Newton v. State, 455 Md. 341, 353, 168 A.3d 1, 8 (2017), this Court explained that the United States Supreme Court “has acknowled ged that certain constitutional rights are so basic to a fair trial that their infraction can never be treated as harmless error. These errors are known as structural errors because they affect the framework within which the trial proceeds and are not simply an error in the t rial process itself.” (Cleaned up). Thus, “[i]f a structural error is objected to at trial an d raised on direct appeal, the defendant is entitled to automatic reversal regardless of the er ror’s actual effect on the outcome.” Id. at 353, 168 A.3d at 8 (cleaned up). Although a strong argument can be made that a trial court’s failure to ask upon request a voir dire question concerning a juror’s ability to follow an instruction on the defendant’s right not to test ify is structural error, because I would conclude that the failure to propound the mandatory voir dire question upon request cannot be harmless, from my perspective, there is no need to address the issue of structural error.- 12 -

extinguisher—in essence, Ms. Jordan testified that she was the victim. Ms. Jordan’s niece’s testimony was basically the same. 4 As a result of this conflicting testimony, credibility was essential in the jury’s fact-findin g process. If a juror were unwilling or unable to accept the court’s instruction as to a de fendant having a constitutional right not to testify, undoubtedly, the juror may have viewed Ms. Jordan’s testimony as less than credible, or at a minimum, with suspicion. On this basis alone, it cannot be determined that the failure to ask the requested voir dire question did not influence the verdict. 5 The State’s theory that the circuit court’s refusa l to propound the requested question was harmless because, according to the State, the v erdict showed that Ms. Jordan’s testimony helped and did not harm the defense as th e jury returned a partial acquittal, is speculative at best and based on flawed reasoning. Consistent with the State’s logic, if Ms.

4 On cross-examination, though, Ms. Jordan’s niece ac knowledged that she did not want her aunt to go to jail and that they had trave lled together to court.

5 In the past, this Court has declined to find harmle ss error in circumstances in which the error did not implicate a constitutionally prot ected right but involved an issue concerning the defendant’s credibility. For instan ce, in Howard v. State, 324 Md. 505, 515, 517, 597 A.2d 964, 969, 970 (1991), where the trial court erred in admitting evidence of the defendant’s prior conviction of an offense t hat was the same as the charged offense, this Court held that the error was not harmless bec ause the case essentially involved a credibility determination between the defendant and a witness for the State. We stated: “In a case that largely turned on whom the jury was goi ng to believe, the improperly admitted evidence of the defendant’s prior conviction may ha ve been the weight which caused the jurors to accept one version rather than the other. ” Id. at 517, 597 A.2d at 970. In Martin v. State, 364 Md. 692, 695, 775 A.2d 385, 386-87 (2 001), where a Baltimore City police officer was charged with criminal offenses and the trial court prohibited cross-examination of a State’s witness as to action taken in contempl ation of a civil lawsuit against the city, this Court held that the denial of cross-examinatio n regarding the witness’s intent to bring a civil action was reversible error and not harmles s. We explained that the defendant was denied the opportunity to establish bias on the par t of the witness and was denied the opportunity to impeach the witness’s credibility. See id. at 703, 775 A.2d at 391.- 13 -

Jordan’s testimony swayed the jury in part, the pos sibility that a juror viewed her testimony with bias or heightened suspicion, due to the belie f that as a defendant she was required to testify, may have precluded an acquittal on all cha rges. The conclusion that Ms. Jordan’s decision to testif y cured any error with respect to the circuit court’s refusal to ask the voir dire question concerning her constitutional right not to testify is based on faulty logic. To be sur e, where a defendant elects to testify, the contemplated instruction would not be given. But, as explained above, a juror’s acknowledged unwillingness or inability to follow a n instruction concerning a defendant’s right not to testify means that the juror may belie ve that a defendant is testifying because the defendant is required to do so or is obliged to prove innocence. There is no requirement that a defendant show actual prejudice to avoid a d etermination of harmless error. 6 See Perez v. State, 420 Md. 57, 60, 75-76, 21 A.3d 1048 , 1050, 1059 (2011) (holding that the Court of Special Appeals applied a weakened harmles s error standard when it determined that a failure to notify defense counsel of jury no tes was harmless error because Perez failed to show prejudice). The harmless error standard establishes a demandin g burden for the State to meet. See Dionas v. State, 436 Md. 97, 109, 80 A.3d 1058, 1065 (2013). Harmless error will not be found where there is a reasonable possibility th at the error influenced the verdict. See

6 In contrast, under Strickland v. Washington, 466 U. S. 668 (1984), to establish the second prong of an ineffective assistance of counse l claim, a petitioner must demonstrate that trial counsel’s performance resulted in actual prejudice and that but for the errors at issue there would have been a reasonable probabilit y of a different result. See Ramirez v. State, 464 Md. 532, 561, 212 A.3d 363, 380 (2019).- 14 -

id. at 121, 80 A.3d at 1072. In this case, Ms. Jor dan testified at trial after the circuit court refused to ask a mandatory voir dire question upon request to determine whether prospective jurors would be unwilling or unable to follow the court’s instruction that she had the right not to testify. I would conclude tha t, under this Court’s holding in Kazadi and our case law on reversible error concerning the failure to ask mandatory upon request voir dire questions, the question concerning Ms. Jordan’s co nstitutional right not to testify was required to be asked and there was more than a reasonable possibility that the failure to ask the question affected the verdict. For the above reasons, respectfully, I dissent. Judge Biran has authorized me to state that he join s in this opinion.IN THE COURT OF APPEALS
OF MARYLAND
No. 23 September Term, 20 21

____________ __________________________

STATE OF MARYLAND

v. LATOYA JORDAN

__________ ____________________________

* Getty , C.J. * McDonald Watts Hotten Booth Biran Gould , JJ.

____________ __________________________ Dissenting Opinion by Biran , J. , which Watts, J., joins.

__________ ____________________________

Filed: August 15, 2022

* Getty, C.J., and McDonald, J., now Senior Judges , participated in the hearing and conference of this case while active member s of this Court

. A fter being recalled pursuant to Maryland Constit ution, Article IV, Section 3A, they also participated in the decision and adoption of the majority opinion

. Circuit Court for Baltimore City Case No. 819290001 Argued: December 6, 2021Respectfully, I dissent. In my view, two paths lead to affirmance of the Court of

Special Appeals’ judgment in this case . The first is the one that Judge Watts has laid out persuasively in her d issenting o pinion, which I am pleased to join. As Judge Watts explains, the State cannot meet its burden to show that the trial court’s failure to ask the Kazadi question concerning the right not to testify is harmless. I write separately to discuss the other rationale for affirmance. I would hold that : (1) a t rial court must ask all three of the Kazadi questions whether or not they are requested by the defendant ; and ( 2) a trial court’s
failure to ask a ny one of the Kazadi question s constitutes a structural error subject to automatic reversal. Because the trial court in this case failed to ask the Kazadi question concerning the defendant’s right not to testify, a structural error occurred that mandates reversal and a new trial. In 1964, the Court of Appeals decided Twining v. State , in which “ this Court held that a trial court need not ask during voir dire whether any prospective jurors would be unwilling to follow jury instructio ns on the presumption of innocence and the State ’ s burden of proof. ” Kazadi v. State , 467 Md. 1, 7 (2020) (citing Twining v. State , 234 Md.
97 , 100 (1964)). The Court’s holding in Twining was based, in part, on the fact that “[t] he rules of law stated in the proposed questions were fully and fairly covered in subsequent instructions to the jury ” and 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 o r not they would be disposed to follow or apply stated rules of law. ” Twining v. State , 234 Md. 97 , 100 (1964). Th e Court found that this conclusion “ would seem to be particularly true in Maryland, where the courts ’ instructions are only advisory. ” Id

.- 2

-

Tw ining remained the controlling law on voir dire questions in Maryland for over half a century. However, in 2020, the Court once again revisited the issue of voir dire questions concerning the presumption of innocence , the burden of proof , and the defendant’s right not to testify

. In Kazadi , the Court “ determine [d] that this Court ’ s holding

as to voir dire questions concerning jury instructions in Twining

. . . is based on outdated reasoning and has been superseded by significant changes in the law. ” 467 Md. at 35. As such, the Court decided to “ overrule the holding in Twining , and conclude 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 long

- s tanding fundamental principles of the presumption of innocence, the State ’ s burden of proof, and the defendant ’ s right not to testify. ” Id . at 35

- 36. In reaching its holding in Kazadi , the Court noted that asking jurors voir dire questions concerning thes e three fundamental rights “u ndoubtedly helps to safeguard a
defendant ’ s right to be tried by a fair and impartial jury ” as “ responses indicating an inability or unwillingness to follow jury instructions give rise to grounds for disqualification

— i.e., a basis for meritorious motions to strike for cause the responding prospective jurors, that may not be discovered until it is too late, or may not be discovered
at all. ” Id . at 41

- 42 (citations omitted)

. The Court highlighted that “ i n the decades since
this Court decided Twining , it has become apparent that not all jurors are willing and able to follow jury instructions on the presumption of innocence and the burden of proof. ” Id

. at 36

- 37. The Court concluded that simply giving jury instructions on these rights is “ not an effective remedy for a prospective juror who is unwilling or unable to follow such jury- 3

-

instructions ” as “[j] ury instructions cannot bring a prospective juror ’ s inability to understand, or adversity toward, fundament al rights to the attention of the trial court and the parties

— only voir dire questions can. ” Id . at 38

- 39. “ Simply put, if a trial court seats a prospective juror who is unwilling or unable to follow jury instructions on the presumption
of innocence and th e burden of proof, jury instructions, which are given at the end of trial will be too little, and too late to uncover the basis for disqualification. ” Id . at 39. The Court
concluded: On request, a trial court must ask voir dire questions that are reasonably likely to reveal a cause for disqualification involving matters that are liable to have undue influence over a prospective juror. Such matters may be comprised of biases related to the crime or the defendant. Certainly, the b elief that a defendant must testify or prove innocence, or an unwillingness or inability to comply with jury instructions on the presumption of innocence, burden of proof, or a defendant’s right not to testify, otherwise would constitute a bias related to the defendant. As a matter of fact, it is difficult to conceive of circumstances that could be more prejudicial to a defendant’s right to a fair trial

. Id . at 45. In the Court’s view , “[b] y making such voir dire questions mandatory on request, we help en sure that a juror ’ s inability or unwillingness to follow instructions involving these three important fundamental rights will be discovered before trial, and that all
defendants

— not just ones whose trials are presided over by circuit court judges who chose to exercise the discretion to grant requests to ask such voir dire questions

— will have the opportunity to move to strike prospective jurors for cause on the ground of an unwillingness or inability to adhere to these fundamental rights. ” Id . at 46.- 4

-

However , despite the language quoted above explain ing the importance of these
fundamental principles and the role they play in ensuring a defendant’s right to a fair and impartial jury, we stated “ that a trial court is not required, on its own initiative, to ask voir dire questions concerning fundamental rights. Instead, a trial court must ask such voir dire questions only if a defendant requests them. ” Id . at 47. The Court reasoned that this was

“ consistent with prior cases in which this Court has required trial courts to grant requests
to ask certain voir dire questions, as opposed to requiring trial courts to ask those voir dire questions sua sponte

. ” Id . (citing Washington v. State , 425 Md. 306, 315 (2012) and
Pearson v. State , 437 Md. 350, 354 (2014) )

. In my view, it is time for us to hold that t he three Kazadi questions are mandatory in all criminal jury trials, whether or not defense counsel requests them

. Given that the requirement that a trial court ask these questions upon request is meant to help “ safeguard
a defendant ’ s right to be tried by a fair and impartial jury ” and that “ it is difficult to conceive of circumstances that could be more prejudicial to a defend ant’s right to a fair
trial ” than allowing someone who would not respect these fundamental rights onto a jury, Kazadi , 467 Md. at 41, 45 , it is not clear why it should be defense counsel’s job to ensure
that this safeguard is deployed. If the giving of subsequent jury instructions on these fundamental rights is inadequate to cure the error of failing to ask the Kazadi questions during voir dire , it seems peculiar that an attorney’s failure to request that they be asked
would not necessar ily be deemed an error in the first place. A holding that explicitly makes
the Kazadi questions mandatory would extend Kazadi ’s rationale to its logical conclusion.- 5

-

In any event, post

- Kazadi , the three questions already are effectively mandatory
because e very competent defense attorney will request that the trial court put these questions to the potential jurors. After Kazadi, I cannot imagine any circumstance in which a defense attorney who fails to request that the court ask all three questions would not provide constitutionally deficient representation under the “performance prong” of the test for ineffective assistance of counsel set forth in S trickland v. Washington , 466 U.S. 668 (1984). See, e.g. , Newton v. State , 4 55 Md. 341, 355 (2017) (discussing S trickland ’s performance prong). Once we accept that giving the three Kazadi questions must be mandatory regardless of a defense request, it becomes clear that the failure to ask any of the three questions is a structural error requiring automatic reversal. As the M ajority notes , the Supreme Court has identified three “broad catego ries” of structural errors that are not subject to harmless error review

. See Majority O p. at 1 7 ; see also Weaver v. Massachusetts , 137 S. Ct. 1899, 1908 (2017)

. First, an error may be structural if the right at issue is not designed to protect the
de fendant from erroneous conviction , but rather protects ano ther interest. Second , an error may be structural if its effect cannot be measure d. Third, an error that always result s in
fundamental unfairness is structural

. At a minimum, the second and third of these rationale s support a finding of
structural error when the trial court fails to ask one or more of the Kazadi questions

. As applied to this case, i t is impossible to gauge the effect of the trial court’s failure to ask the potential jurors if they would follow a jury instruction concerning the defendant’s right not to testify

. As Judge Watts points out in her d issenting opinion, “[i] f a juror were unwilling- 6

-

or unable to accept the court’s instruction as to a defendant h aving a constitutional right not to testify, undoubtedly, the juror may have viewed Ms. Jordan’s testimony as less than credible, or at a minimum, with suspicion. ” Dissenting Op. at 12 (Watts, J., dissenting)

. We do not know, nor c an we possibly know, if any such jurors were part of Ms. Jordan’s jury. Thus, separate and apart from any aspect of the evidentiary presentation at trial, there is no way to determine whether the failure to ask the voir dire question concerning the defendant’s right not to testify contributed to the guilty verdict. Moreover, a holding of structural error in these circumstances is aligned with the Court’s statement in Kazadi that “ if a trial court seats a prospective juror who is unwilling or unable to follow ju ry instructions on the presumption of innocence and the burden of proof, jury instructions, which are given at the end of trial will be too little, and too late to uncover the basis for disqualification .” 467 Md. at 39. If jury instructions cannot cure the
failure to ask these fundamental voir dire questions because the composition of the jury has already been established at that point , the same is true of a defendant’s subsequent decision to testify. T he right not to testify is the most tangible of the Kaz adi rights and helps illuminate the other two. If a juror believes that a defendant must testify, by definition, they cannot faithfully apply the presumption of innocence or hold the State to its burden of proof.
In Harris v. State , th is Court determined that “ a jury which has never been sworn
falls into the same ‘ structural error ’ category as a defective reasonable doubt instruction, the denial of a right to a jury trial, the total deprivation of counsel, discrimination in the
selection of juries, etc. ” 406 Md. 115 , 130 (2008). In reaching this conclusion, we noted- 7

-

that there is “ no basis to distinguish between a judge who is not impartial and a jury which is not impartial. And, as the cases in other states all hold, an unsworn jury depri ves the defendant of the constitutional right to an impartial jury. ” Id . at 130

- 31. Under Harris , a Kazadi

- compliant jury must be sworn or else the trial will be
infected with a structural error. That being the case, it is difficult to understand how
empa neling a sworn, but non - Kazadi

- compliant jury

– a jury that may contain one or two or more jurors who are unable to respect a defendant’s fundamental rights

– does not also give rise to structural error. If the failure to make the jurors promise that they will decide the case impartially is a structural error, so too is the failure to ensure that only people who

can be impartial become the jurors who make that promise

. For these reasons , I would hold that a trial court is always required to ask th e questions outlined in Kazadi during voir dire , regardless of whether they a re requested by the defendant, and that a trial court ’s failure to ask such questions constitutes a structural error subject to automatic reversal.
J udge Watts has authorized me to state that she joins this opinion.