State v. Hart, 144 A.3d 609

Background

Kenneth Hart was tried on four possession/distribution counts; after two days of trial the jury began deliberations and sent a note saying it was split on Count 1 and asked what to do.
The court informed counsel of the note and attempted to bring Hart (in custody) back; while waiting defense counsel asked for a "preview" of the note and consented to limited inquiry in Hart’s absence.
Counsel was later informed Hart had been taken to a hospital for a medical emergency; the court nevertheless summoned the jury foreperson, questioned the foreperson in open court, then received a partial verdict finding Hart guilty on three counts.
The court declared a mistrial sua sponte as to Count 1 (the allegedly deadlocked count). Defense counsel objected to proceeding beyond fact-finding without Hart present.
The trial court later acknowledged error in accepting the partial verdict in Hart’s absence and ordered a new trial on the convicted counts but denied dismissal of Count 1; the intermediate appellate court reversed and held double jeopardy barred retrial of Count 1. The Court of Appeals affirmed.

Issues

Issue	State's Argument	Hart's Argument	Held
1) Did Hart have a right to be present when the judge questioned the jury foreperson about the deadlock, and was that right waived by counsel?	The foreperson colloquy was permissible and counsel previewed the note, effectively waiving Hart’s presence.	The colloquy "pertained to the action" under Rule 4-326 and Hart had a right to be present; counsel only consented to a limited factual inquiry, not to further proceedings.	Court: Hart had a right to be present; defense counsel consented only to a limited fact-gathering colloquy and did not waive Hart’s presence for the court’s ultimate response.
2) Did Hart have a right to be present at the declaration of mistrial and, if so, was proceeding harmless error?	The judge acted within discretion because the jury was deadlocked; any absence was harmless.	Hart’s involuntary absence meant Rule 4-231 required his presence; declaring mistrial without him was prejudicial and barred retrial absent manifest necessity.	Court: Hart had a right to be present; proceeding in his involuntary absence without adequate inquiry and without exploring reasonable alternatives was error and not harmless.
3) If the mistrial was erroneous, is retrial barred or should dismissal be denied?	Retrial should be allowed because a genuinely deadlocked jury justified mistrial.	Retrial is barred by double jeopardy because no manifest necessity supported the mistrial declared in Hart’s involuntary absence.	Court: Manifest necessity did not exist under these facts; double jeopardy bars retrial of Count 1.

Key Cases Cited

State v. Harris, 428 Md. 700 (discussing defendant’s right to be present for communications between court and jury)
Grade v. State, 431 Md. 85 (communications between judge and jury pertaining to action are stages where presence is required)
Williams v. State, 292 Md. 201 (circumstances where counsel can waive defendant’s right to be present)
Denicolis v. State, 378 Md. 646 (communications from jury in defendant’s absence presumptively prejudicial absent record showing otherwise)
Fennell v. State, 431 Md. 500 (manifest necessity analysis for mistrial and need to explore alternatives)
Cornish v. State, 272 Md. 312 (retrial barred where reasonable alternatives to mistrial existed)
Arizona v. Washington, 434 U.S. 497 (Supreme Court discussion of "manifest necessity" standard for mistrial)
Renico v. Lett, 559 U.S. 766 (trial judge’s discretion in mistrial decisions entitled to deference)