*1 647 A.2d Lamont JOYNER-PITTS Jason
v. Maryland. STATE of 1789, Term, Sept. 1993. No. Maryland. Special Appeals
Court Sept. 1994. *2 E. Peabody, (Stephen Bradford Asst. Public Defender C. Harris, Defender, brief), Baltimore, appel- on the for Public lant. (J. Ince, Curran, Jr., Atty. Inn
Mary Joseph Asst. Gen. Gen., Baltimore, Williams, Jr., and Alexander Atty. State’s Marlboro, County Prince on the Atty. George’s Upper brief), for appellee. WILNER, C.J., and GARRITY and
Submitted before HARRELL, JJ.
HARRELL, Judge. was with the murder of Joyner-Pitts charged Jason Lamont child, month girlfriend’s Following seventeen old Shalinia. trial, appellant by jury a third was convicted a the Circuit George’s County for Prince of second murder. Court twenty years the court to by imprisonment. He was sentenced The first mistrial occurred as a result of an utterance the in the course of the trial. The trial prosecutor made second tried place May Although appellant took 1993. was murder, charging under a one count indictment first count, that, jury single the court instructed the under the Joyner- could consider whether the State had proven (1) (2) degree; Pitts was of: murder the first murder (3) intent; murder degree—specific the second (4) heart; or, as a degree—depraved manslaughter second in its jury To aid the grossly negligent of a act. result deliberations, a with jury paper the apparently gave the court The defense charac- variations of homicide listed.1 these four The court verdict sheet.” paper “special terized gave them to characterizing it as “a scorecard disagreed, guilty under four could be keep ways person track of the of this charge.” indictment count] this [one to the on 20 1993. Around jury May The case went stating hour sent the court note May, jury noon 10-2 we do and how?” When the jury. “We have a What do question foreperson respond unable to to the court’s in movement one whether further deliberation would assist other, lunch so the was excused for way or next, counsel. do after consultation with could consider what to recess, the luncheon court was reconvened after When *3 delibera- jury whether further judge sent the back to consider in to a unanimous verdict would assist movement tion in. irrevocably locked positions whether the were another note was sent out Thirty passed minutes before will opinion in our not It said “Further deliberations jury. the brought jury The the judge in a unanimous decision.” result back, a few charge, them an Allen and sent them back gave veryA p.m. before 2:00 to resume deliberations. minutes later, indicating “After jury sent a third note short time the deliberation[,] we still at deadlock. Please advise.” further of the counsel and the court discussed jury’s presence, Out judge bring Defense counsel wanted the the the situation. of the set out in the any in and “take a verdict on offenses jury as to offenses any verdict sheet and declare mistrial special they judge can’t reach a on.” The refused to do that verdict that, “10-2” explaining interpreted jury’s that he the vote as unable to reach a unanimous they an indication were ar- on count Defense counsel single verdict the indictment. subject Joyner-Pitts “absolutely unjust” it would be gued part with this 1. This document was not a of the record transmitted appeal. jeopardy yet any another trial on of the submitted versions of homicide if jury unanimously the could him find not guilty State, hand, as to that version. The on the urged other court to make the jury continue to deliberate. The judge was that, that, unwilling observing to do jury’s view of the position, to do so would be coercive. jury was returned to the courtroom. After the fore-
person advised the court that further deliberation would not productive, counsel judge defense asked the to “inquire they’ve whether any reached a verdict as to of the offenses Instead, were set out on the verdict sheet.” inquired jury whether would be “able to give us unanimous verdict as to this one count indictment?” After foreperson responded negative, a mistrial was declared due to the jury deadlock. trial,
Prior to commencement of his third appellant filed a motion to dismiss on the ground that the court’s refusal in the second trial to ask if it could find appellant not guilty degree either first or second murder right violated his not motion, to be retried for first In murder. appellant asserted that there was a “substantial basis to believe that may defendant have acquitted been of first degree murder or first and second degree murder this case.” The relief sought the motion was that the court “dismiss charges against the defendant to which previously has reached a verdict.”
At the hearing appellant’s motion to dismiss conducted on 21 September the judge, ruling after it was *4 hearsay inadmissible for the foreperson jury of the trial, witness, second called as appellant’s to answer defense questions counsel’s about what in happened prior jury deliberations, himself asked the witness what the result of the jury’s deliberations had been on each of the varieties of homicide that had been submitted to it. The respond- witness (a) (b) murder; ed: 12-0 not guilty degree as to first 12-0 not (c) guilty murder, as to degree intent; second specific 10 voting murder, degree heart; as to second depraved (d) and, Quixotically, the guilty manslaughter. of voting testimony opinion foregoing that the judge restated his trial get “to to but because he wanted hearsay, inadmissible as contention, testimony of he admitted appellant’s the nub” “nub,” judge The as the hearing.” of purposes “for the this partial to take it, required the court was saw was whether verdicts. of law that argued Maryland
Appellant anomaly that the for indictment first permits single under a count varieties of homi- the consideration of lesser included murder of a constitutional recognition defendant’s requires, cide offense, the same jeopardy twice right put not any on of accept partial verdicts judge receive 4-327(d) homicide, not- Maryland Rule included varieties way, analysis, another for constitutional withstanding. Stated varieties includ- that each the homicide appellant contended separately single count should be viewed ed under the charged offenses. In explaining denied the motion to dismiss. trial earlier, somewhat he seemed at first to recant his ruling, ruling admissibility as to the
ambiguous evidentiary “I don’t believe the foreperson’s testimony. He stated jury ruled, evidence evidence is the Court because as I before contin- hearsay was blatant evidence.” He before the Court ued, however, saying: think it makes difference going beyond
But don’t I do not the state of the law is this because believe indictment to the moment that when submit one count ten to two that says and the comes back and we’re duty Judge the—that the then has the you have ten two? regard what At between the court’s denial the motion point some on 21 and the commencement the third September dismiss “dumped trial the State the first morning, the next we are from comment charge.” murder This able to infer early proceedings made defense counsel Thus, on the proceeded only the third trial September. *5 434
remaining varieties of homicide—second in- degree (specific tent), heart), second degree (depraved murder and manslaugh- ter. The returned its verdicts of not to second guilty intent) (specific murder and of second heart) (depraved September murder on 28 1993. appeal This followed.
ISSUES Appellant posed questions has three for our consideration: I. Did the trial court in denying err the motion to dismiss the charge degree specific of second intent murder and sending jury?. count to the II. Did the trial court give improper an instruction on the meaning proof “beyond a reasonable doubt”? III. Did the trial court in admitting err state- Appellant’s ment police? to the
Because our reply affirmative to appellant’s ques- second tion, we need not address his third question. We do deem it however, necessary, to reach query his initial in this opinion.
FACTS Friday, August a.m., On 14 at about 3:00 appellant, time, who was seventeen years old at arrived basement apartment of his seventeen year girlfriend, old Shannon, Landover, Wilhandest Prince George’s County. Ms. children, Shalinia, Shannon lived there with her two age months, Daniel, 17 and 2 age years.
Sunday evening, August, Ms. appellant Shannon and had Shalinia,” “an argument____about and going “about to bed.” Afterwards, appellant slept on the floor. Monday
On morning, August, work, Ms. Shannon left for after leaving landlady, Herrera, Shalinia with her Gloria who upstairs lived the same Appellant house. walked with Ms. Shannon to stop the bus at about 8:30 a.m. Ms. Shannon told home,” appellant “go explaining to him: “That we was having a problem things and weren’t going change.” appellant returned landlady, when According to the went downstairs. he took Shalinia morning, house *6 tell the came to afternoon, upstairs appellant Later Herrera phone.” on the to “call of the house occupants other on her breathing downstairs, where “he was appellant followed rubbing her chest.” and mouth [Shalinia’s] was that appellant testified firefighters responding die, saying “don’t child and on the perform to CPR attempting firefight- one appellant told happened, die.” Asked what don’t to baby leave and he “told “trying sleep” was to that he er wanting play.” to alone, kept wouldn’t. She but she me in that find her and returned to Then, upstairs,” he “went condition. injuries” and “multiple from blunt force
The child died loss.” blood “associated he detective, said appellant ato
In his written statement He him. kept “kicking” baby to but the trying sleep, was injured. baby how the was not to know professed
DISCUSSION I. interesting one if be an question first would Appellant’s on the addressing it us necessitated our the record before for the of this discussion we to sake merits. Were assume jeopardy error, constitutional double under a of the inquire to have declined for the trial analysis, unanimously had voted whether in the second trial murder, degree or second degree of first acquit appellant denied, his motion erroneously, also thus to have and how demonstrate dismiss, cannot appellant we would hold that errors under the by the assumed harmed or prejudiced he was explain. We of this ease. circumstances stated, in pertinent part: motion to dismiss Appellant’s highly It is had probable reached unanimous verdicts with to one more respect charges.
sjc [*] [*] [*] [*] s}: is a There substantial basis to believe that the defendant may have been acquitted degree first murder or first degree second murder this In case. the event the defendant has acquitted been first murder it be a would clear violation of his right Constitutional to avoid retry double jeopardy the defendant for first degree murder this case.
WHEREFORE, requests Defendant that the Court any charges against dismiss the defendant to the jury which has previously reached verdict and that matter be set hearing prior to third scheduled trial this case on September 1993.
Appellant offered no factual in allegations his motion to sup- port high his assertions of the “probability” or “substantial jury acquit basis” that the had voted degree him of first sub-species murder either of second murder. Even if we were to testimony consider also the of the former jury foreperson adduced at the motion hearing on September, that appellant most was in able to adduce of the in support allegations his motion was that second not unanimously had voted to find him guilty of first degree-specific and second intent murder. As was earlier, noted was not appellant subject to conviction for first degree murder in the third trial due the State’s withdrawal of that particular charge prior to of the commencement trial. Moreover, the third trial found specifically appel- lant not of second guilty degree—specific intent murder. Giv- ing appellant the full benefit of the “evidence” viewed in a contention, light most favorable to his through a combination of State’s action the first withdrawing degree murder charge jury’s and the third as acquittal to second degree— specific murder, intent appellant received the full benefit of “proved” what he the second jury would have done had the trial and judge requested “partial received verdicts” at the hold, beyond a we Accordingly, the second trial. close of way harmed or no appellant that reasonable of the sense, judge’s denial by the trial legal in a prejudiced, motion to dismiss.
II. notwith first argument of disposition appellant’s Our trial, new he is entitled to a standing, persuaded we are murder heart charges degree—depraved of second as to the due to variety, grossly negligent manslaughter instruc the trial error committed prejudicial reasoning Our reasonable doubt. jury regarding to the tions course, rather judge’s with the begins, for this conclusion home-spun instruction: lengthy, burden, called to the State’s
Let us return back requires that proof This burden of proof. burden of State’s said, I that a you, 12 of Maryland convince the State committed, Joyner- and Mr. Jason Lamont has crime been you they convince twelve say the actor. When Pitts is doubt. beyond reasonable must convince up crime of his together make Of all the elements of a involvement, doubt is sort this is the name we phrase That lawyer mouthful talk. of mental ago attached to the state law centuries put your can you must arrive before at which conviction short Anything on that. will vote for hand and *8 guilty, square- voting you you of that must vote—not of innocence. in the corner ly as that variously described of mind has been
That state this prove be proven of what need you be as convinced something have to be convinced you would guilt man’s child, lives, a adopting such as your own very weighty it actually I heard home, married. have getting buying 60s, just used judges I practiced back described when you gentlemen ladies and up to sit here and doubt when said will be you certainty. They are convinced to a moral usually shook their finger. I problem always with that was that found sort one
replaced totally incomprehensible legal concept with totally incomprehensible legal concept. another Amazingly the jury would sit there like' the judge knew what talking about.
I sort of tend to deal in examples. appreciate You I trust my that in life and in life your every day, every day we literally. make hundreds of decisions It is get how we through day. Some of them are almost mindless in there importance.
I you use this as an of that example got when this up put on. morning you your shoes Think to when you back got up put back this and shoes morning your on. How thought much you did this on the spend morning following I I question: wonder what shoe will on put today? first I will for you just you answer like would have if called upon. just like I put every day my shoes on did true, life. I think it much. didn’t about That is not you did think about it. It is a whole series of conscious decisions. Your have eyes relay to make observations to the informa- tion to the brain. The brain transmits information and arms, hands, feet, instructions to the the legs. you your put your Otherwise would shoes on up ears. It is a whole series of conscious decisions. You can’t put your your sleep, not shoes and stay happily married. It is a level making. Why? low of decision The conse- quences your your well life are daily almost nil. If you your get wrong shoe on the will change foot because it hurts.
On the other hand when suppose you got up this morning you had to decide whether or not get married. Who amongst would give not bit thought more to that question than the question what will put shoe on? you. Once again answer for Bet you. Marriage is a biggie. Marriage one of those life decisions that will *9 you get wall. It will up against you right smash which you every turn financially, emotionally, physically, enters into sane man or woman loose. Before a way but who, the want to know the they state allegedly holy what, when, why. forbid the and the God I to be would have you, especially
To the extent married, be convinced of you need get convinced You participation. man’s of the crime and this elements participation of those elements and must be convinced in your matter you weighty would have to be own lives. guilt or taking pass upon an oath to
For indeed weighty matter in human is a of a fellow innocence you at which personally That is the level your own life. I will you may your raise hand must arrive before for guilty. vote is Iway I no There no have idea.
What is that level? beings. human As You are different you. Why? can tell you things will beings impress human you are different values, a different You a different sense differently. have of weight. sense Over that years. I been married
My wife and have of familial have made tens of thousands period bet we decisions, having family. to do with the But joint decisions buy furniture it takes heck of lot go if want to out and me. She my wife than takes convince more to convince buy everything if me into a store will get knows she can out. I’m not an informed get me and the door between I’m a psychotic I’m consumer. paranoid consumer. consumer. hand, my buys nothing steps before she
On the other wife it, it, asks it, up light, on holds it to the bounces tastes think of she never met before there what people four see she Bounty. That a roll of You should her it. is when experience. it is an buying everything, sofas and joint It a heck a lot We will make a decision. takes her than it takes to convince me. We more to convince bring our experiences individual to bear on it. don’t So *10 think that I pick go buy My her. You out to a car. wife only question. asks one Will it show dirt? I live on a mirror, country Not have road. does it a does it come with warranty, a does it all four have tires? Does it show dirt? I live on country a road. around, hood, hand I look
On other crawl under the underneath, it, it, bang look kick I what pretend know I’m doing, which I don’t of course. It takes more to convince to an than buy me automobile it would to convince her. is a joint decision decision. I do not know what you individually level will be said to beyond be convinced a doubt, I just explained you. reasonable the standard to Whatever that level is you you that is the level at which decide, you must arrive before can Mrs. mark Lindsay, me down column. short of level Anything is guilty. not am telling you
Please note I not must you be convinced beyond all not the It is standard of law. is not duty you of the State to convince to a mathematical certainty 'of these elements. Let’s honest about it. If nobody married got beyond until were convinced all (cid:127) single. doubt we would all be Why? Because we are human We beings. always have that nagging reticence making If important something decisions. can go wrong it name, will me. happen give We it a we Murphy’s call it Law. are not talking
We about nagging reticence. We are talking a doubt you about to which can reason. I ascribe a am not convinced this because I do not believe this.
The reason itself has to be reasonable. say You can’t don’t believe is that because it can raining say outside. You that, reason, but not that is reasonable. it is Indeed but it anot reasonable reason. We talking but [sic] reason, beyond doubt based upon a reasonable doubt. of 12. decision the unanimous note must be please
Also beyond of all the elements must be convinced 12 of of his participation doubt and convinced be found. guilt verdict of can before a doubt a reasonable as follows: instruction objected to the trial counsel Appellant’s on reasonable object your instruction NILAND: I MR. example marriage. using the object your doubt. to how example respect with using the object your of whether make a determination might personally something. do would or wouldn’t that? one is THE COURT: Which certain kinds you go buy when NILAND: You MR. things. *11 this. The I from the case was gather NILAND:
MR. What your in thing of important an giving example danger say make an example, you if an thing you give It is one life. in in an decision important involved analysis of all the facts your you then make those facts and you life and assess your If are following way. you in so determination then without reservation you facts that would act from the a reasonable doubt. would not have you never, I have That is a terrible instruction. THE COURT: That was bad instruction. give and will never act requirement you of law that That is not the instruction. hesitation. without
(cid:127) say I act without hesitation. I’m MR. NILAND: didn’t married. getting an
saying you give example when THE COURT: Yes. example of— You this is the kind
MR. NILAND: decision. important THE COURT: An your is in life. important —an act which MR. NILAND: and it would would make determination one The I think doubt to a reasonable determination. comparable example. is a bad THE COURT: You fully protected on the record. I do think it is so. I know don’t want these things clarified. I know it has been and I would do exactly the same thing, don’t want the to have a clear idea of what we mean. I’m the judge, do want them to have a clear idea. MR. NILAND: I want them to have as clear idea as possible. With the divorce rate today, obviously a whole lot of people marriage enter with a whole lot less conviction. THE COURT: To me that is the best example you can give. However may laudable it be to attempt to translate some- abstract, times sometimes ancient legal concepts princi- into ples prosaic images intended to better communicate meaning, great care must be exercised undertaking such experiments, particularly criminal jury trials. danger lies, course, mostly the potential for unintentionally trivializing these important concepts and principles. We are not unmindful of the leeway that should be accorded trial courts the matter of jury that, instructions. We only note instance, in this the court went too far in its creativity. no precise While definition of reasonable doubt is required, the Maryland Criminal Instructions, Pattern Jury 2:02 (1991), sets out the following helpful guide for trial judges:
A reasonable doubt is a doubt
upon
founded
reason.
It is
not fanciful
a whimsical doubt or a capricious doubt.
Proof
a reasonable doubt requires
proof
such
would
convince
of the truth of a fact to the extent
*12
you would be willing
upon
to act
such belief without reserva-
tion in an important matter in your own business or person-
However,
al affairs.
if you are not satisfied of the defen-
guilt
extent,
dant’s
to that
then reasonable doubt exists and
the defendant must be found
guilty.
not
Appeals
Court of
has subsequently and generally blessed
State,
instruction. Wills v.
proposed
this
370, 383-84,
329 Md.
(1993).
443 Ginsburg, concurring part opinion in her Justice and Sandoval v. cases of Victor v. Nebraska consolidated -, 1239, 127 114 S.Ct. L.Ed.2d 583 511 U.S. California, (1994), believed another instruction she pattern endorsed “clear, definition of and accurate” conveys straightforward, a reasonable doubt: defendant proving has burden of government
“[T]he you may have a reasonable doubt. Some beyond guilty cases, that it is jurors in civil where were told served than likely is true necessary prove that a fact more only cases, must be government’s proof In criminal not true. beyond must be a reasonable more than that. It powerful doubt. proof is that leaves a reasonable doubt
Proof guilt. very of the defendant’s There are firmly convinced with absolute certain- things in this world that we know few proof require in criminal cases the law does not ty, and If, your on consid- every possible doubt. based overcomes evidence, you firmly convinced that the eration must find him charged, you of the crime defendant is hand, is If think there a real on the other guilty. must him the guilty, you give that he not possibility him Federal guilty.” of the doubt and find not benefit Center, Jury Pattern Criminal Instructions 17-18 Judicial 21).” (instruction (1987) U.S.-, 114 at 127 at 603. As she S.Ct. L.Ed.2d circuits, observed, recognition certain federal
also
defining properly
difficulties identified in
reasonable
historical
doubt,
gone
adopt positions forbidding
have
so
as to
far
their
on
juries
from
judges
instructing
federal
trial
(4th
requested
do so
specifically
unless
Cir.),
upholding
judge’s
give
a district court
refusal
the jury
of reasonable doubt even where
solicited
definition
(7th Cir.). Victor,
at-,
1252-53,
S.Ct.
one
U.S.
Trial and
will continue
with
into
indefinite future. For
reasonable doubt instructions
struggle,
the crux of that
considered
appellate judges,
*13
basis,
case-by-case
asking
involves
oneself a question suggest-
by
opinion,
ed
Justice Blackmun’s
in
concurring
part and
instruction,
in
in
dissenting
part, Victor: “Does the
taken as a
whole, create a reasonable likelihood that the jury was misled
or
suggestion
confused
of an improperly high degree of
doubt for
an
acquittal
improperly
low
proof
-,
1254-55,
conviction?”
We
with the trial
effort here on a number
of counts. The instructions failed to
clearly
communicate
decision,
convict,
if
jury’s
must be made “without
reservation” or the functional equivalent of that
It
concept.
did not include
even
reference to the disfavored “without
Wills,
description.
383-4,
hesitation”
See
The rambling particular nature of the instruction under review here heightens danger of confusion and misunder- standing jury’s part. on the the difficulty Given of the task at hand, greater risk of failure to communicate accurately when one aspires explain exists too much or inserts too illustrations, many disparate in their significance, a defini- case, tional instruction. In the instant the trial al- judge, he though may have harbored more limited and benign pur- so, poses doing made use of exemplars domestic of the shifting and relatively high or low thresholds of certitude that he or his wife may require before purchasing furniture or a car. He followed those with:
Please note am not telling you must be convinced beyond all that is not the standard of law. It is not duty State convince to a mathematical certainty these elements. Let’s be honest about it. nobody got If married until were all doubt we would all single. Why? Because we are beings. human always nagging We have that reticence in *14 it wrong something go If can decisions. making important name, it Murphy’s a we call give me. it happen to We will Law. are reticence. We nagging about that talking are not
We reason. can ascribe a a doubt to which talking about this. I do not believe this because am not convinced of say You can’t don’t to be reasonable. reason itself has that, outside. You can raining it is believe that because Indeed, reason, is is a but it that is not reasonable. but talking [sic] but reason. We not a reasonable reason, a reasonable upon a doubt based (emphasis supplied). a jury to instruct a that entirely appropriate it is While is doubt fanciful, imaginary, possibility or mere speculative, (Victor, at -, at S.Ct. doubt 511 U.S. not a reasonable 597), “nag attempted at elimination 1248, 127 L.Ed.2d doubt, partic of reasonable from the definition ging reticence” employed scenarios with the humble ularly conjunction explanation, proximity to such an or in close the same context of doubt quantum to the very likely confused buy beings human consum necessary acquittal. Many for an They ofttimes impulse. on goods, large, er both small They do so impulse. also decline get even married they could feelings explain no than based on more articulable trial, it is the In criminal acting contrary. for to the of witnesses and credibility to assess the jury’s province If, in these tasks performing all of evidence. weigh but conscience, nagging, is left with a juror an individual good to convict scientifically unquantifiable, reticence perhaps defendant, from juror voting be dissuaded why should to articulate he or she is unable or her because conscience finitely doubt? saving that the grace also lacks
The instant instruction in Victor. challenged instruction Supreme Court found Court, com- O’Connor, opinion delivering Justice mented: a reasonable primary argument equating is
Victor’s
overstated the
doubt with a “substantial doubt”
agree
for
that this construc-
necessary
acquittal.
doubt
We
hand,
On the one
“substan-
problematic.
tion is somewhat
other, it
on the
seeming
imaginary”;
tial” means “not
Webster’s Third
specified
large degree.”
means “that
2280.;
The former
Dictionary, supra,
New International
that a reason-
jury only
as it informs the
unexceptionable,
one; but
speculative
more than a
something
able doubt is
required
than
imply
greater
the latter could
a doubt
358, 90 S.Ct.
Winship, [397
under
re
U.S.
acquittal
[In
]
(1970)
however, is
Any ambiguity,
].
In
the instruction
would cause a
definition
reasonable doubt: a doubt that
a
to hesitate to act. This is
formulation
person
reasonable
extent the word
approved, and
the
repeatedly
we have
necessary for
the
of doubt
quantum
substantial denotes
gives
a common-sense
the hesitate
act standard
acquittal,
how
such a doubt must be.
just
benchmark for
substantial
reasonably likely
that the
do not think it
We therefore
the
this instruction to indicate that
interpreted
would have
one. 511
other than
reasonable
anything
doubt must be
(some
-,
In case sub “nag- explain that use opportunity, presumably would arising of Victor’s “doubt ging equivalent reticence” fanciful imagination, from mere from bare from possibility, be, case, conjecture.” If that were the as we believe it must reticence,” in a distinguish “nagging the instruction failed to Victor, actual and equivalent to that found from “an manner provide or to an alternative definition substantial doubt” of a doubt that expressed Victor terms would cause a reasonable to hesitate act. person pressed judge’s would be hard with trial quarrel We are, legal dogma lay jury. to translate We intention however, of case opinion that the effort this blurred *16 a of reasonable to the extent there is concept doubt jury applied that the the instruction reasonable likelihood either a of doubt than way require higher degree such a as a proof or a lower of for required acquittal is guilt than under reasonable doubt finding required of is the standard. an instruction appellant appropriate
Because was denied doubt, we critical issue of reasonable shall jury the the our of second disposition appellant’s reverse. In view of relative argument, we need not address his contention admissibility appellant’s Fulginiti. statement to Detective
JUDGMENT REVERSED. THE FOR REMANDED TO CIRCUIT COURT
CASE A TRIAL. PRINCE GEORGE’S COUNTY FOR NEW BY BE PAID PRINCE COUN- COSTS TO GEORGE’S TY.
GARRITY, J., dissents.
GARRITY, Judge, dissenting. that it a far agree majority with the is better Although Maryland adhere to the Criminal Pattern practice closely Instructions, in this matter I believe that the instruction Jury whole, considered as a was when explaining Additionally, majority makes although not erroneous. not an “nagging phrase, much of the reticence” concern of defense counsel and was therefore not assigned event, clearly In the trial for our review. preserved from that of con- “nagging “being reticence” distinguished reason, upon a doubt based a a reasonable vinced doubt.” State, v. Wills 329 Md. Appeals
The Court (1993), an explained scope appellate A.2d 295 review considering jury given court when whether the has been of the “reasonable doubt” standard: proper explanation court considers an appeal appellate explanation On whole; as a it does not determine the reasonable doubt from an isolated statement. It explanation of an propriety statement on the suspect views the effect of explanation---- of the entire the instruction is light [I]f erroneous, way appellate but it is some actually given the error is so prejudicial court must determine whether be excused as harmless. may to call for reversal According majority, principal shortcoming to the judice the case sub failure trial effort was his judge’s decision, convict, jury’s that the if to clearly to communicate hesitation,” reservation,” “without must be made “without There equivalent concept. or the functional of that conveys in the instruction that to the nothing *17 in order must have certainty that proper of added). (Emphasis guilt. to find juror’s and on reasonable given In his instruction vote, the trial casting to certainty prior explained: burden, to called the the State’s
Let us return back that proof requires This burden of proof. burden of State’s said, as I that you, convince Maryland the State of committed, Joyner- Mr. and Jason Lamont crime has been twelve say you convince Pitts is the actor. When you beyond a reasonable doubt. must convince of his together up make crime Of all the elements involvement, of a reasonable doubt is sort beyond this is the name that we phrase talk. That lawyer mouthful of of mental ago attached to the state the law centuries put can you you at which must arrive conviction before Anything I will vote that. your say hand for guilty, you are you voting short must vote—not for innocence. squarely in comer of H* % H*
He # I would have to be you, especially To extent that married, you need be convinced of the get You participation. of the crime and this man’s elements participation must convinced of those elements and weighty your of a matter you would have to be convinced own lives. pass upon guilt an taking
For indeed oath matter in weighty of a human is a innocence fellow you personally life. That is the level at which your own your hand and will you may must arrive before raise guilty. vote for v
s¡: sjs $ % you individually ... at level will be I do not know what doubt, the stan- said be convinced a reasonable explained you. dard I that level is just Whatever level which must arrive before can is the *18 decide, me column. Lindsay, guilty Mrs. mark down guilty. of that level is not Anything short must be convinced telling you you Please note am not doubt, that is not the standard law. It is not beyond all to a mathematical duty the the State to convince honest about it. these elements. Let’s be certainty of they beyond If married until were convinced all nobody got single. Why? all be Because we are doubt we would in that reticence beings. always nagging human We have If can making important something go wrong decisions. name, give Murphy’s to me. it a we call it happen will We Law. reticence. We are talking nagging
We are not about to which can ascribe a reason. talking about doubt because I do not this. am not convinced of this believe say itself has to be reasonable. You can’t The reason raining that because it is outside. You can don’t believe that, reason, not reasonable. Indeed it is a but it but that is talking being not a reason. We are but [sic] is reason, upon a doubt based a reasonable beyond doubt. 12.
Also note it must be the unanimous decision of please of all the elements Twelve of must be convinced and convinced of his be- participation a reasonable doubt can yond guilt a reasonable doubt before a verdict of added). found. (Emphasis absolutely require- the there is no majority recognizes,
As juror’s ment in determination of certain assuring use the about his or her decision to vote for conviction to or “without specific words “without hesitation” reservation.” Indeed, the Court Wills made clear that the inclusion of phrases “without hesitation” or “hesitate to act” the reason- standard able doubt justice better
may tend to confuse by substituting phrase served “without reservation” visualize, can verbiage. the “hesitant” We the Commit- tee[2] did, the “hesitate” jury, given apparently instruction, that, they if did not well think may phrase of guilty a verdict support sufficient to find evidence without they if did not reach a conviction “immediately,” and debate, because a reasonable doubt must exist some hesitation.” or did not act “without “hesitated to act” Id. at 384. whole, particular as a with the instruction examining
When we “certainty,” over should majority’s reference to the concern certain that painstakingly made that the trial consider their decision to vote for instructed that jurors were analyzing made after each element plea only must be *19 case proved that the its case and then satisfied State the that the repeating It is worth a reasonable doubt. beyond doubt” phrase that “reasonable judge emphasized trial ago centuries attached to the the name that we the law you must arrive before of mental conviction at which state on that. hand and will vote for put your can for voting guilty, that must vote—not Anything short of of innocence. squarely corner whole, I firmly am convinced Taking instruction as of concept instructed on the properly was guilt only by its doubt and need establish every needed unanimously deciding the State establish raising before beyond of the crime a reasonable doubt element “I will say, guilty.” hands to vote their Indeed, if a reasonable doubt one must conviction, guilt casting before vote of an accused’s is but reservation” a rote redundance phrase mere “without Nevertheless, the basic admonition to each its truest sense. casting vote before was well to be confident their juror event, instance, In in this covered the trial court. phrase “without hesi- superfluous mere failure to recite not improper because tation” or “without reservation” Jury Maryland Instruc- fashioned the Pattern 2. The Committee (MPJI-CR). tion—Criminal certainty. to define language of equivalent the court’s use would affirm. A.2d 127 AMBER MEADOWS HOMEOWNERS
NORTH
ASSOCIATION, INC., et al.
v. HAUT ENTERPRISES. 1791, Sept. Term, 1993. No. Maryland. Appeals of Special
Court Sept. 1994.