Lead Opinion
In a trial court judge’s management of a trial, few circumstances come fraught with as much peril as the receipt of a note from a deliberating jury. Whether to deal with it? How to deal with it? Some jury notes contain innocuous questions or statements to which a presiding judge may respond with ease. Other notes may pose, however, more problematic questions or statements that place a judge between a modern Scylla and Charybdis. Although the judge may want to be helpful in responding to the jury, he or she must take care not to be coercive or suggestive of an outcome. A quick response may be in the best interests of everyone involved, but rashness is rewarded with reversal oft-times. Always at the ready are the litigants and their attorneys, on edge after a hard-fought trial, with motions, requests for curative instructions, or other proposed courses of action that may be influenced by their respective advocacy interests in the outcome of the trial. Looming too are we, the appellate courts, ready to swoop in from our high perch to scrutinize, in hindsight and with the benefit of briefs, every aspect of the decisions the trial judge had to make in real-time.
The present criminal case embraces most of these rhetorical considerations. We consider three challenges to the course of action chosen by a trial judge in response to a note from the foreperson of the jury, received during deliberations after 5:00 PM on the Friday before a three-day holiday weekend, claiming that a fellow juror stated she was willing to change her original position of voting “not guilty” if it would mean she could go home and not return to the courthouse. We shall hold that the trial judge, in dealing with this note, did not abuse her discretion by denying the defendant’s motion for a mistrial and refusing a defense request to give a modified Allen instruction; nor did she violate Maryland Rule 4-326(d) by recessing for the long weekend, after giving additional instructions reminding the jurors of their proper duties. Accordingly, we shall affirm the judgment of the Court of Special Appeals, which affirmed the judgment of the trial court.
On 17 December 2009, a grand jury, sitting in Prince George’s County, returned an indictment charging Troy Sherman Nash with one count of murder in the first degree, based on an investigation into the death of Vanessa Riddick. The case proceeded to trial in the Circuit Court for Prince George’s County, beginning with jury selection on Tuesday, 30 August 2011. On that day, the venire arrived at the courthouse at 7:00 AM. Voir dire started at 9:50 AM. After the jury was selected and the court’s opening instructions delivered, the trial continued with opening statements from counsel for both parties, followed by the testimony of two State’s witnesses. The court recessed for the day just after 4:00 PM, after instructing the jurors to return the following morning by 9:15 AM. The trial resumed with the testimony of four additional witnesses on Wednesday and five on Thursday. The proceedings on each of those days began before 10:00 AM and ended after 4:30 PM.
On Friday, 2 September 2011, the fourth day of trial, the jury began hearing evidence at 10:14 AM. Upon completion of the testimony of the final witness at 10:57 AM, the court excused the jury with a direction to return at 12:30 PM. A medical problem with a juror resulted in the substitution of an alternate juror and delayed the resumption of proceedings until 1:18 PM. For the next hour and twenty minutes, the jury heard the court’s concluding instructions and closing arguments from counsel. At 2:40 PM, the jury retired to begin deliberations. At 5:02 PM, the court received a note from the jury (the “Note”), which read literally: “I dont believe the defendant is being give a fair verdict based on one of the juror stating out loud that she will vote guilty because she want to go home and not return! When she previously said no guilty.” The Note was signed by the foreperson and dated “9/2/11.”
Following the court’s receipt of the Note, counsel for the parties were brought back to the courtroom. The trial judge read the contents of the Note into the record. The following colloquy between the court and counsel ensued:
*59 Defense Counsel: Your Honor, as the Court can understand, the note is of some concern to us, and we would be— and based on the concern expressed by the foreman in that note, we would move for a mistrial.
Prosecutor: And the State is objecting to that, Your Hon- or. And the reason why, is because that note — in my opinion, that’s an impermissible note, because that’s diving into what’s happening in the jury room, and that’s something that we really shouldn’t be made aware of, of what’s going on in the jury room.
The State, at this point, would advise that perhaps we should release them for the night.
The Court: Well, I was thinking that I would maybe release them. It might just be that people are tired and they need to go home and relax and come back the next day. Because it just seems, to me, that somebody was just tired and wants to go home. I’m inclined to do that, rather than grant your mistrial.
Defense Counsel: Well, the only thing that I would say is, is that I understand that the Court is trying to find a solution to the problem, short of a mistrial, because we’ve put, you know, four hard days in. But the difficulty that I have is, if we were to come back on Tuesday morning,[1 ] it would be Tuesday morning, and essentially, if they then go back and there’s a quick verdict, then this problem still exists.
It seems like the foreman — that the foreman has alerted the Court — and I think properly so — has alerted the Court that a juror has voted guilty for convenience and expediency, rather than from a sense of, that’s the proper verdict after our deliberations.
And so, I don’t — I foresee that, coming back Tuesday, that it isn’t going to change the desire of — you know, or the problem, that the Court is addressing this afternoon.
*60 So based on that, I understand what the Court has said you’re inclined to do, but I would renew my motion for a mistrial.
Prosecutor: Your Honor, I see no difference between this note and your previous instruction to the jury that they should not tell you what the numbers are.
And that’s because, what’s going on back there, where they are, before a verdict, is not something that we should know about, and that’s what that note is doing and that’s information that we shouldn’t have known.
The Court: Well, but we know about it, so we have to deal with it.
Defense Counsel: And we know about it now.
The Court: Okay.
Prosecutor: And so, what I’m suggesting, is that we do release the jury at this point and have them return on Tuesday.
Defense Counsel: And the other thing that I would point out — and again, the foreperson, while there’s an inference in the note about what the split may have been or might be, the—
The Court: But we don’t know that.
Defense Counsel: Well, I’ll tell the Court that I’ve had notes which I thought were saying exactly that the jury was about to return a verdict one way, and then the opposite— and then the jury came back the other way.
So what I’m saying to you is that that — that I know that the foreman was careful to follow the Court’s instructions, and it’s—
The Court: Yeah, well I don’t think it’s—
Defense Counsel: And I would—
The Court: First, wait a minute.
It’s not a numerical breakdown, by any means, this note. And because I don’t — it’s just a — it’s a concern that the foreman has, and that’s okay. He has a concern he thought he should bring to the Court’s attention, which he has done.
*61 But I — you know, it is almost 20 minutes after 5:00, and the jury has been deliberating since — what was that — 2:40, which isn’t a lot of time, if you’re earlier in the day, but they had been here all day. And if you’ll recall, we did give them a very lengthy break. And I just think it may be a matter of just someone being really tired.
So I am inclined to release them and have them come back Tuesday.
The conversation continued with defense counsel addressing three additional points. First, he requested that the judge refuse to receive a verdict that evening, in light of the Note and anticipating the jury might claim to have reached a verdict between sending out the Note and being brought back into the courtroom. Second, defense counsel proposed that another judge receive the jury on Tuesday morning for further deliberations because the presiding judge would not be available that day at the normal start of court. The presiding judge agreed to the latter suggestion. Third, defense counsel asked that the Court inquire of the jury as to whether it would be impossible for any of the jurors to return on Tuesday and asked the court to grant a mistrial if any of them could not return, because no alternate jurors remained.
Before the judge could respond to counsel’s third request, the jury was escorted back into the courtroom. At 5:25 PM, the judge stated the following to the jurors:
The Court: All right. I have received your note and counsel is aware of your notes — or your note as well.
And what Pm going to do at this time is to excuse you for today, but you’re going to have to return on Tuesday to continue your deliberations. I expect to see you on Tuesday, at 9:30....
Counsel asked to approach the bench and the following conversation occurred:
*62 Prosecutor: Judge, would you also instruct them not to investigate?
Defense Counsel: Yes.
The Court: Yes.
Defense Counsel: And since the Court won’t be here Tuesday morning, I think that the Court maybe at this time should give them the Allen Charge.
The Court: No. No. No. This is not a situation in which the Allen Charge applies. It really is not.
Prosecutor: Thank you, Your Honor.
The Court: I’m not going to give the Allen Charge.
Defense Counsel: My exception is noted?
The Court: That’s fine.
The trial judge issued additional instructions to the jury:
The Court: Okay. There’s just one other matter, and you’ve heard this more times than not, but I’ll remind you.
Do not discuss the case with anyone.
... You must all be together, in the room, deliberating, before you can discuss the case.
Do not do any independent investigation, or any research, about anything concerning the matter.
As I’ve instructed you, your decision must be based upon what has been presented here during the course of the trial.
I expect that you will comply with my instructions. It’s the only way this process works.
So you are excused for today. But again, I expect to see you on Tuesday, at 9:30.
On the following Tuesday, 6 September 2011, all of the jurors returned as instructed. Another judge of the Circuit Court, substituting for the presiding judge, swore the bailiff and instructed him to take the jury to the deliberation room and instruct them to resume their deliberations. Court recessed at 9:39 AM to await a verdict. At 10:45 AM, with the presiding judge back on the bench, court reconvened to receive the jury’s verdict.
After the jury was re-seated, the foreperson announced that the jury found Nash guilty of murder in the first degree. At defense counsel’s request, the courtroom clerk polled the jury. Each juror agreed with the verdict. The court dismissed the jury. Defense counsel renewed Nash’s mistrial motion and stated his intent to file a motion for a new trial. The court reserved ruling on the mistrial and set a date for a hearing on the anticipated motion for a new trial.
On 28 October 2011, the court conducted a hearing on Nash’s motion for a new trial. Nash argued, in sum, that the court erred in failing to grant a mistrial based on the Note and, alternatively, that the court’s failure to give the requested Allen instruction, specifically the portion of the instruction that states that a juror should not change his or her vote simply as an expedient to reach a verdict, warranted a new trial. The court denied Nash’s mistrial motion and motion for a new trial.
Nash appealed to the Court of Special Appeals. In addition to the two arguments posed at the Circuit Court hearing on his motion for a new trial, Nash argued to the intermediate appellate court that the trial judge violated Maryland Rule 4-326(d) by failing to respond to the substance of the Note.
In an unreported opinion, the Court of Special Appeals affirmed the judgment of the Circuit Court. With regard to the argument that the Circuit Court should have declared a mistrial based on the allegations in the Note, the Court of Special Appeals held that the potential action of the juror who may have indicated she was willing to change her vote (the “Subject Juror”), as described in the Note, was not “conduct by a juror that would compromise the ability of the jury to render a fair and impartial verdict,” and, therefore, did not constitute juror misconduct as such circumstances are recognized in Maryland. As to the contention that the trial judge erred in refusing to give the requested Allen instruction, the
Nash filed timely a Petition for Writ of Certiorari with this Court. We granted Nash’s Petition. Nash v. State,
We answer the question, in all of its parts, in the negative. For the following reasons, we shall affirm the judgment of the Court of Special Appeals.
DISCUSSION
I. The Trial Judge Did Not Abuse Her Discretion In Denying Nash’s Mistrial Motion
Nash’s first argument focuses on the Circuit Court’s denial of his motion for a mistrial following the reading of the Note. He opines that the Subject Juror’s reported statement constitutes juror misconduct, and that, by refraining from conducting voir dire of the jurors following receipt of the Note, the trial judge failed to accomplish one or more of three necessary things prior to acting on his motion for a mistrial: (1) receive evidence to rebut a presumption of prejudice to Nash arising from the Subject Juror’s alleged conduct; (2) resolve factual questions to determine whether the presumption of prejudice was applicable or whether the judge had sufficient information upon which to exercise her discretion in ruling on the mistrial
The State disagrees fundamentally with Nash’s arguments and requests that we reject “Nash’s attempt to ‘pigeon-hole’ the circumstances of his case into the case law that this Court and the Court of Special Appeals have developed addressing juror misconduct.” The State asserts that the presumption of prejudice discussed in some of the authorities on which Nash relies is not applicable in this case because there was no “egregious juror-witness or juror-third party contact.” In the State’s view, the circumstances of the record of Nash’s trial presented the trial judge with only a possibility that misconduct might occur prospectively, and, in such eases, the trial judge’s decision not to conduct voir dire of the jurors is reviewed for an abuse of discretion. Under this deferential standard of review, the State contends, Nash has the burden to show that he was prejudiced so clearly that a reversal of the trial court’s ruling is required, and “the record evidence demonstrates that he has failed to shoulder this burden.” Additionally, the State argues that there was no material fact-finding necessary for the trial judge to resolve prior to ruling on the mistrial motion.
The State concedes that to have done nothing in response to the Note would have been an abuse of the trial judge’s discretion. The State notes, however, that the trial judge’s “decision to recess was based upon her thoughtful consideration of the record and the jury’s service up to that point in time.”
Before we parse the merits of the parties’ respective arguments, we pause to consider the lens through which we must review a trial court’s disposition of a motion for a mistrial. Like many aspects of a trial, we review a court’s ruling on a mistrial motion under the abuse of discretion
In regards to the multitude of varying definitions of “abuse of discretion,” as we recognized previously, “[o]ne of the more helpful pronouncements on the contours of the abuse of discretion standard comes from Judge ... Wilner’s opinion in North v. North,102 Md.App. 1 ,648 A.2d 1025 (1994),” when he was the Chief Judge of the Court of Special Appeals. King v. State,407 Md. 682 , 697,967 A.2d 790 , 798 (2009). In North, Judge Wilner explained:
“Abuse of discretion” ... has been said to occur “where no reasonable person would take the view adopted by the [trial] court,” or when the court acts “without reference to any guiding rules or principles.” It has also been said to exist when the ruling under consideration “appears to have been made on untenable grounds,” when the ruling is “clearly against the logic and effect of facts and inferences before the court,” when the ruling is “clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result,” when the ruling is “violative of fact and logic,” or when it constitutes an “untenable judicial act that defies reason and works an injustice.”
North,102 Md.App. at 13-14 ,648 A.2d at 1031-32 (alterations in original) (emphasis added) (internal citations omitted). Judge Wilner observed that a “certain commonality [exists] in all these definitions”: “the notion that a ruling reviewed under an abuse of discretion standard will not be reversed simply because the appellate court would not have made the same ruling.” Id.,102 Md.App. at 14 ,648 A.2d at 1032 (emphasis added). Rather, “[a] court’s decision is an abuse of discretion when it is ‘well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable.’ ” Gray v. State,388 Md. 366 , 383,879 A.2d 1064 (2005) (quoting Dehn v. Edgecombe,384 Md. 606 , 628,865 A.2d 603 (2005)) (some internal quotation marks omitted).
*68 As Judge Wilner explained, “That kind of distance can arise in a number of ways.” North,102 Md.App. at 14 ,648 A.2d at 1032 . For example, the circuit court’s ruling is “beyond the fringe” if it “either does not logically follow from the findings upon which it supposedly rests or has no reasonable relationship to its announced objective.” Id. Because we give such deference to a trial court’s decision under the abuse of discretion standard of review, it is well established that “[t]he exercise of discretion ordinarily will not be disturbed by an appellate court.” Gatewood [v. State], 388 Md. [526] at 540-41, 880 A.2d [322] at 330 [ (2005) ] (citing Tierco Maryland, Inc. v. Williams,381 Md. 378 , 413,849 A.2d 504 , 525 (2004)).
Alexis v. State,
Part of the difficulty in defining and parsing the abuse of discretion standard stems from the lack of fixed channels through which we can squeeze the Play-Doh of each trial judge’s discretionary decision into the same analytical shape or mold. See Alexis,
Regarding the range of a trial judge’s discretion in ruling on a mistrial motion, reviewing appellate courts afford generally a wide berth. See Alexis,
When a party moves for a mistrial based upon the conduct of jurors, we impose on trial judges the duty to conduct voir dire sua sponte, prior to ruling on the motion, in two sets of circumstances. The first circumstance occurs when a juror’s actions constitute misconduct sufficient to raise a presumption of prejudice that must be rebutted before a mistrial motion may be denied. See Jenkins,
A. Presumption of Prejudice
Our consideration of whether the facts of the present case raise a presumption of prejudice begins with a review of how Maryland’s appellate courts approach this analysis. We considered the doctrine of presumptive prejudice for the first time in Jenkins v. State,
Several days after the jury returned a guilty verdict against Jenkins, the female detective had occasion to be in the State’s Attorney’s Office on an unrelated matter and mentioned casually to the Assistant State’s Attorney who prosecuted Jenkins’s case her contact with the juror. The prosecutor notified immediately the court and Jenkins’s defense counsel. The trial judge held an evidentiary hearing on the defense’s motion for a new trial, at which the juror and detective both testified consistently (as above) regarding their contact at the retreat. The trial judge denied the motion, finding that the conduct, although improper, did not prejudice the defendant. Jenkins,
On certiorari review, we reversed the judgment of the intermediate appellate court. We observed that “private, intentional communications and/or contacts between jurors and witnesses are generally improper,” and went on to quote from Remmer v. United States,
“In a criminal case, any private communication, contact, or tampering directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of known rules of the court and the instructions and directions of the court made during the trial, with full knowledge of the parties. The presumption is not conclusive, but the burden rests heavily upon the Government to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to the defendant.”
Jenkins,
We explained in Jenkins that, although this Court had “not had occasion to interpret the Remmer presumption of prejudice, the Court of Special Appeals has applied it in the case[s]
In Allen, a co-defendant had breakfast with an alternate juror, during which conversation he implicated himself and cleared his brother of some of the charges against him. The alternate juror related the co-defendant’s statements to a sitting juror during a recess in deliberations. After being informed of the misconduct and conducting voir dire of the affected jurors, the trial court denied the defendant’s motion for a mistrial. As in Eades, the Court of Special Appeals held that the Remmer presumption of prejudice applied, but that the presumption was rebutted by the jurors’ responses to the trial judge’s voir dire questions. See Allen,
After our review in Jenkins of Remmer, Eades, and Allen, we rejected the State’s argument that two later Supreme Court opinions
The Court of Special Appeals revisited the presumption of prejudice principle in Wardlaw v. State,
The Court of Special Appeals reversed the judgment of the circuit court. The intermediate appellate court determined that the juror’s research on ODD and subsequent reporting of her finding to the other jurors “constituted egregious misconduct,” in part because the credibility of the witness who was afflicted purportedly by ODD was “a crucial issue, as there was no evidence to substantiate her allegations,” and that such egregious misconduct was “presumptively prejudicial to either the State or [Wardlaw].” Wardlaw,
On at least three occasions, Maryland’s appellate courts concluded that allegations of juror or juror-related misconduct or mishaps were not sufficient to raise a presumption of prejudice. In Bruce v. State,
In a quite recent case, the Court of Special Appeals determined that a juror’s note stating “we have already looked it up,” which the court received minutes after a prior note asking if the jurors could have a dictionary, was not the type of “excessive or egregious misconduct” or “serious juror misconduct” that would give rise to a presumption of prejudice. Colkley v. State,
We declined also to conclude that a presumption of prejudice applied in a case quite similar factually to the present one. In Butler v. State,
Following argument from counsel for the parties, the court voiced its concern that if the statement in the third note was true, it would mean that one of the jurors committed perjury in his or her response to a voir dire question asked during the jury selection process. The court stated, “I don’t believe that necessarily one juror would never trust the police under any circumstances. I think that may just be an exhausted or frustrated reaction.”
“The [third] note we’re essentially going to ignore. It says we have one juror who does not trust the police no matter the circumstance. Anybody who had felt that way should have said so in voir dire so a challenge could have occurred, and if anybody deliberates with that spirit now, I suggest they might be violating their oath.”
We reversed the judgment of the Court of Special Appeals, which had affirmed the judgment of the trial court. We held that the trial judge’s instruction regarding the illegality of the one juror’s position of not trusting the police “was potentially coercive and, as a result, [the defendants] may have been denied their constitutional right to a fair trial.”
Turning to Nash’s case,
Nash relies on Wilson v. Morris,
We are not persuaded by Nash’s comparison of Wilson to the facts of the present case. Although we held that voir dire was necessary in Wilson, the “allegation of juror bias” in that case occurred in the middle of trial when the plaintiff recognized one of the sworn jurors as the person she had overheard saying, prior to jury selection, that “ ‘these cases are costing too much money’ and need to be stopped.” See Wilson,
A second reason to decline to apply a presumption of prejudice in Nash’s case is that, to the extent that the Subject Juror’s statement could be considered actual misconduct, it does not fit within the type of “limited” circumstance in which the presumption applies. Jenkins,
It may be argued reasonably that the Subject Juror’s alleged statement is more concerning than the misconduct occurring in Colkley and the potential for prejudice at issue in Bruce, and is, perhaps, more troublesome than the statement at issue in Butler, because the statement there prejudiced the State, which is not afforded the same constitutional protections as a criminal defendant, like Nash. In our view, however, the Subject Juror’s reputed statement in the present case does not constitute the type of “excessive or egregious jury misconduct” that raises a presumption of prejudice. Jenkins,
To be clear, a voir dire of the jurors would not have been improper under the present circumstances. We hold only that, to the extent voir dire could have been useful in ferreting-out and resolving any potential prejudice, the burden was on Nash to request it.
B. Resolving Factual Issues
We consider next Nash’s assertion that the trial judge did not have sufficient information upon which to exercise her discretion and, therefore, abused her discretion by failing to conduct voir dire sua sponte to obtain necessary information from the jurors before denying Nash’s mistrial motion. We begin with a review of the two cases upon which Nash bases this assertion.
The seminal case upon which Nash relies is Dillard v. State,
Dillard appealed to the Court of Special Appeals, which affirmed the judgment of the circuit court. The intermediate appellate court concluded that: the jurors did not commit misconduct because they did not violate any of the trial court’s instructions; the actions of the jurors were not egregious enough to raise a presumption of prejudice; it was not improper for the jurors to reach tentative opinions about Dillard’s guilt or innocence; their comments did not demonstrate bias; and, it could be presumed that the jurors followed the trial judge’s subsequent instructions regarding the State’s burden of proof and the presumption of innocence. Dillard,
On certiorari review, we reversed the judgment of the Court of Special Appeals. We explained first that “private communications” between a juror and a third party are “ ‘deemed presumptively prejudicial’ ” when they constitute “ ‘excessive and egregious’ ” juror misconduct, and that, where the presumption of prejudice applies, “the burden of proof shifts to the State, which may overcome the presumption by showing that the contact was harmless.” Dillard,
The contact was particularly troubling for several reasons. First, Detective Smith was a key witness for the State. Contact between a juror and a key witness is more likely to be prejudicial than contact between a juror and an uninterested party. Second, the jurors specifically sought out the witness to make a comment about his testimony, as opposed to “mere casual contact,” like saying “hello” or exchanging passing pleasantries. Further, the contact was not, on its face, an “instinctive human reaction” or a mere passing observation arising out of some detail of the testimony, as asserted by the Court of Special Appeals, but rather was a comment about the content of the witness’s testimony that may be related to the question of guilt or innocence. Third, the contact is evidence that the jurors may have formed an opinion as to Dillard’s guilt before Dillard presented his case. “If a juror has formed a fixed opinion on a defendant’s guilt prior to deliberations, the juror may stand by the opinion even if contradicted by subsequent evidence. A juror may also form premature conclusions without the benefit of final arguments, instructions of law, and jury deliberations.” Finally, the fact that two jurors independently made the same comment about Detective Smith’s testimony suggested that the jurors may have discussed the case or engaged in premature deliberation about the question of Dillard’s guilt or innocence, or Detective Smith’s credibility, prior to the completion of testimony. Because the content of the contact raised these potential factual issues, it was incumbent upon the trial judge to resolve the factual controversy that relates to the jurors’ ability to render an impartial verdict.
Dillard,
Nash relies also on Johnson v. State,
The trial judge replied to the initial note by instructing the jurors that they had received all of the evidence and needed to rely on their memories of the evidence presented. Johnson,
On direct appeal, the Court of Special Appeals, in an unreported opinion, affirmed the judgment of the circuit court.
On certiorari review, we reversed the judgment of the Court of Special Appeals. We declined to resolve the dispute between the parties regarding whether the conduct was sufficient to raise a presumption of prejudice. Johnson,
Under the holdings of Dillard and Johnson, when a party moves for a mistrial following an allegation of juror misconduct, but does not request voir dire of the jury, a trial judge must conduct voir dire sua sponte if he or she lacks sufficient information regarding the juror’s conduct from which to determine (1) whether a presumption of prejudice attaches, or, (2) whether a mistrial motion should be denied. In the present case, the only unresolved factual issues appear to be the identity of the Subject Juror, whether she said what the Note reported, and the number of other jurors who heard the Subject Juror’s statement, if any. As discussed supra, a presumption of prejudice is not applicable to the facts of the present case, and determining the above unresolved facts
We conclude that the trial judge had sufficient information before her to rule on the mistrial motion. She was not faced with the type of alarming factual issues arising from juror-witness contact that went unresolved in Dillard — i.e., what precipitated the contact between jurors and the witness, whether any of the jurors formed an opinion as to Dillard’s guilt before he presented his case, and whether two or more jurors engaged inappropriately in discussions or conducted premature deliberation regarding Dillard’s guilt or the credibility of the witness with whom the inappropriate contact was made.
Moreover, unlike in Johnson,, the Subject Juror’s alleged statement did not concern the introduction into deliberations of extrinsic “information ... of central importance to what the jury ultimately had to decide.” Johnson,
Accordingly, we hold that the trial judge had sufficient facts upon which to base her ruling on the mistrial motion, and, thus, she did not abuse her discretion, on grounds of insufficient factual information, by denying the motion without first conducting voir dire sua sponte.
We turn now to Nash’s third challenge regarding the trial judge’s denial of his mistrial motion — whether she abused her discretion by denying his motion without first “ask[ing] for or receiving] any assurance that the jury’s verdict would be fair, impartial, and based on the evidence after a clear indication to the contrary.”
We think the range of discretion allotted to the trial judge in ensuring fairness and impartiality is greater than with respect to Nash’s arguments based on presumption of prejudice and the alleged failure to resolve factual questions. Where a presumption of prejudice applies, garnering evidence through voir dire to rebut the prejudice is likely the “only method” at a trial judge’s disposal to ensure a fair and impartial verdict. Wardlaw,
Where there exists more than one reasonable course a trial judge may take with respect to a discretionary decision, our job is not to weigh merely whether one option is better than the other. Nor is it to determine whether the trial
The [trial] judge is physically on the scene, able to observe matters not usually reflected in a cold record. The judge is able to ascertain the demeanor of witnesses and to note the reaction of the jurors and counsel to inadmissible matters. That is to say, the judge has his finger on the pulse of the trial.
State v. Hawkins,
In light of the nature of our task, our understanding that the trial judge was the one with her “finger on the pulse of the trial,” and the timing of the court’s receipt of the Note, we cannot conclude that the trial judge’s choice to respond to the Note by sending the jurors home and providing a curative instruction, instead of directly “ask[ing] for or receiv[ing]” an assurance of impartiality from the jurors, was an abuse of discretion. Indeed, her conclusion that the reported comment of the Subject Juror in the Note was likely a product of fatigue and her decision to send the jurors home for the long weekend was not only within the range of what is “minimally acceptable” under the circumstances, Alexis,
In the case sub judice, we agree with the trial judge’s assessment that the note “may just be an exhausted and frustrated reaction.” As a result, his decision to allow the jury to continue deliberations may have been proper had he refrained from admonishing the juror.[10 ]
Butler v. State,
If it was reasonable for the trial judge in Butler to deduce, from a note concerning a juror’s lack of trust in law enforcement, that the jury was exhausted and frustrated and for that judge to allow the jury to continue deliberating without conducting voir dire, or otherwise asking for or receiving a direct assurance of impartiality, we cannot say that the trial judge in the present case abused her discretion. The Subject Juror’s reported statement indicated that, on a Friday evening before a three-day weekend, after four days of trial, she wanted to go home. That statement is even more susceptible to interpretation as being the result of fatigue and frustration, as the trial judge in the present case inferred, than the statement at issue in Butler, particularly in light of the fact that the note in Butler came from the jury in the morning, after they had been sent home the night before to take a rest from their deliberations. See Butler,
On this record, we do not know, and are not permitted to speculate about, what happened in the jury deliberation room on that Tuesday morning. We may not postulate, as the State seems to suggest, that the presence of all of the jurors on Tuesday morning and the lack of any additional notes or expressions of uncertainty from them indicates conclusively that all of the jurors followed the court’s instructions. But, by the same token, we may not divine, as Nash seems to invite, that the relatively brief period of deliberation on Tuesday morning or the use of the words “and not return” in the Note following the statement that the Subject Juror wanted to “go home” indicate that the weekend break was not sufficient to prevent prejudice to Nash.
The information concerning the events of that Tuesday morning to which we are privy do not matter for the purposes
Accordingly, we hold that the trial judge did not abuse her discretion in denying the mistrial motion. Even in light of a criminal defendant’s constitutional rights, we cannot conclude that “a fair and impartial jury could not be had under the circumstances,” or that the trial court’s handling of Nash’s mistrial motion resulted in “palpable injustice.” Rent-A-Car Co. v. Globe & Rutgers Fire Ins. Co.,
II. The Trial Judge Did Not Abuse Her Discretion in Refusing to Give a Modified Allen Instruction
Like the decision whether to grant or deny a mistrial motion, a trial judge’s decision whether to give a modified Allen charge is subject to review by this Court for an abuse of discretion. See Kelly v. State,
The term “Allen instruction” is a legal eponym derived from a United States Supreme Court opinion “approving] the use of an instruction in which the jury was specifically asked to conciliate their differences and reach a verdict.” Kelly v. State,
Due to concerns about coercion of jurors, “we have disapproved the giving of an original Allen charge, and have instead approved an instruction that closely follows the language of [ABA] Standard 15 — 4.4 (formerly Standard 5.4) of the Standards for Criminal Justice (1978, 1986 Supp.), provided there is no deviation in substance from the language of that standard.” Graham v. State,
The verdict must be the considered judgment of each of you. In order to reach a verdict, all of you must agree. In other words, your verdict must be unanimous. You must consult with one another and deliberate with a view to reaching an agreement, if you can do so without violence to your individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. During deliberations, do not hesitate to reexamine your own views. You should change your opinion if convinced you are wrong, but do not surrender your honest belief as to the weight or effect of the evidence only because of the opinion of your fellow jurors or for the mere purpose of reaching a verdict.
Nash fixes on the final clause of the instruction, which, he argues, “specifically addresses the issue raised in the jury’s note” here. He concedes that the modified Allen charge is given typically “in deadlock situations and the jury here did not indicate they were deadlocked,” but he contends nonetheless that proper use of the instruction is not confined to deadlock situations. According to Nash, the trial judge “con
The intermediate appellate court compounded the trial judge’s error, according to Nash, when it relied in its opinion here on this Court’s opinion in Kelly v. State,
We can find no merit in Nash’s argument. We have long held “that the decisions as to whether the ABA recommended Allen-type charge should be used and ‘when to employ it ... are best left to the sound discretion of the trial judge.’ ” Mayfield v. State,
Nash’s contentions, which rest on shaky premises, fall well short of demonstrating an abuse of discretion with regard to the trial judge’s refusal to give the modified Allen charge in the present case. As a threshold matter, despite Nash’s
Additionally, we are not persuaded by Nash’s criticism of the intermediate appellate court’s statement that for the modified Allen charge to be applicable “a deadlock must exist.” Although Nash is correct that, in Kelly, we condoned the use of the modified Allen charge in at least one other context than a deadlock — specifically, prior to the commencement of deliberations — that is the only other context in which we have approved expressly the use of the modified Allen charge. See Butler,
Here, Nash concedes that he requested the modified Allen charge after deliberations commenced, but before a deadlock was apparent. Nash’s logic, that because this Court allowed previously the use of the modified Allen charge in one context other than a deadlock, we should fault the trial court and intermediate appellate court for not applying the charge in yet another context, is faulty.
III. The Trial Judge Did Not Violate Maryland Rule 4-326(d)
We reach now Nash’s final argument, that the trial judge’s decision to recess for the day on Friday violated Maryland Rule 4-326(d) and was an “unsuitable response” to the Note. We address first the portion of Nash’s argument concerning the plain meaning of the language of Rule 4-326(d). The first sentence of subsection (d), which is the only part of the Rule relevant to Nash’s argument, reads: “The court shall notify the defendant and the State’s Attorney of the receipt of any communication from the jury pertaining to the action as promptly as practicable and in any event before responding to the communication.” Md. Rule 4-326(d) (emphasis added). Nash imagines that the words “before responding” in the Rule presuppose a response to a note “pertaining to the action.” Because, Nash contends, the Note in the present case pertained to the action within the meaning of the Rule, a response was required, and the trial judge’s actions following receipt of the Note did not constitute a response as contemplated by the Rule. He asserts that recessing without addressing directly “the issue raised in the note” does not fit within the plain meaning of the regulatory use of the word “responding.” Nash offers the Merriam-Webster
We reject Nash’s plain language argument. Even assuming, for present purposes, that the Note “pertain[s] to the action,” and that a response was required, we think the trial judge’s actions are not violative of the plain language of the Rule. The first thing the judge did when the jury was brought back to the court room was to advise the jurors that she and counsel were aware of the Note. Next, she stated “what I’m going to do at this time is to excuse you for today, but you’re going to have to return on Tuesday to continue your deliberations,” before she gave additional instructions — which Nash seems to ignore — that, in pertinent part, address implicitly the issue raised in the Note, “As I’ve instructed you, your decision must be based upon what has been presented here during the course of the trial. I expect that you will comply with my instructions. It’s the only way this process works.”
Nor are we persuaded, that, to the extent that the judge’s actions constituted a response, it was an unsuitable one under
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS TO BE PAID BY PETITIONER.
Notes
. Monday, 5 September 2011, was a court holiday.
. At the time of jury selection, the court and the parties thought the case would be over by the end of that week.
. The record does not indicate the precise time at which the jury alerted the court that it reached a verdict.
. We rephrase slightly the question presented in Nash's opening brief, which read:
Did the trial court commit reversible error when, after receiving a jury note indicating that one juror had changed her vote from not guilty to guilty "because she want[ed] to go home and not return,” it (1) denied a mistrial motion without conducting a voir dire of the juiy, (2) failed to take any action in response to the note other than recessing for the day, and (3) refused to give a modified Allen instruction as requested by defense counsel?
This question is a condensed version of the four questions Nash framed initially in his Petition for Writ of Certiorari:
1. Where the trial court received a note from the foreman that stated, "I don’t believe the Defendant is being give[n] a fair verdict based on one of the juror[s] stating out loud that she will vote guilty because she want[s] to go home and not return! When she previously said no[t] guilty,” did the trial judge abuse her discretion in denying defense counsel's mistrial motion and request for a supplemental instruction and by failing to conduct any voir dire of any of the jurors or otherwise address the issue with the jury but instead responded by recessing for the day based on the trial judge's conclusion that "it seems ... that somebody was just tired and wants to go home”?
2. Does recessing for the day constitute a "respon[se]” as contemplated by Rule 4-326(d) and case law to a jury note "pertaining to the action”?
3. Under this Court’s holding in Johnson v. State,423 Md. 137 ,31 A.3d 239 (2011), which presumes prejudice from juror misconduct and in such cases imposes on the trial judge a duty to sua sponte voir dire the jurors to ensure that they can still render a fair and impartial verdict, is juror misconduct limited to "improper communications with the parties, other jurors, or witnesses” and "conducting] independent research or bringing] into the jury room material that was not supposed to be before the jurors,” as the intermediate appellate court concluded, or does it also apply where the court receives information that one juror has changed her*65 verdict based solely on her desire to go home rather than her honest belief as to the weight of the evidence?
4. May Maryland Pattern Jury Instruction 2:01, which in pertinent part instructs jurors to “not surrender your honest belief as to the weight or effect of the evidence only because of the opinion of your fellow jurors or for the mere purpose of reaching a verdict,” only be given in a deadlock situation, or is it appropriate to give the instruction where a jury note indicates that a juror has changed her verdict from not guilty to guilty "because she want[ed] to go home and not return”?
. United States v. Olano,
. In Colkley, counsel for both defendants declined the trial judge's offer to voir dire the jurors.
. Not included in our consideration of applicable case law (other than in passing) are a few cases in which Maryland’s appellate courts mentioned the principle of the presumption of prejudice in the context
. Nash argues additionally that it would be impossible for him to prove prejudice in light of the longstanding rule against impeaching a verdict
. We linger briefly to address one additional argument posed by Nash. He contends that “even if this Court does not presume prejudice and applies a harmless error analysis to this case, it would be impossible based on the lack of inquiry to demonstrate beyond a reasonable doubt that the failure to conduct a voir dire in response to the note in no way influenced the guilty verdict.” Nash’s argument is misplaced. Harmless error analysis only applies, as its name suggests, when we conclude first that an error occurred. Here, because we hold that the trial judge did not abuse her discretion, we find no error in her actions, and, thus, harmless error analysis in inapplicable.
. The admonishment at issue, where the judge warned that a juror may be violating his oath, raised a question of coercion in that case. See Butler,
. We are not persuaded by Nash’s additional contention, raised at oral argument, that the trial judge could not have ascertained that the Subject Juror’s statement was a result of fatigue without identifying
. Although, as Nash sirgues, the trial judge never gave an instruction mentioning explicitly that the jurors should not change their position merely to reach a verdict, the judge did give the following instruction before closing arguments:
Your verdict must represent the considered judgment of each juror and must be unanimous. In other words, all 12 of you must agree. You must consider and decide this case fairly and impartially. You are to perform this duty without bias, or prejudice, as to any party. You should not be swayed by sympathy, prejudice, or public opinion. In making your decision you must consider the evidence in this case.
That instruction, combined with the additional instructions provided immediately before recessing for the holiday weekend, was, in our view, sufficient to apprise the jurors of their duty to deliberate fairly and impartially. "Jurors generally are presumed to follow the court’s instructions, including curative instructions.” Dillard,
. Nash also relies on Lovell v. State,
Dissenting Opinion
dissenting, which BATTAGLIA and ADKINS, JJ., join, dissenting in part.
On behalf of the majority, Judge Harrell has done his usual thorough and thoughtful review of the case law in this area. However, I cannot agree with the Majority’s conclusion that the trial judge need not have conducted any further inquiry in this case.
But what could be more alarming than that a juror, believing that a defendant is innocent, votes “guilty” simply in order to go home? Such misconduct would strike at the heart of the jury’s function. Neither of the two cases that the Majority distinguishes involved conduct so central to the decision-making process. Yet this Court held that further inquiry was mandatory in both instances.
Perhaps the foreman misunderstood the juror. Perhaps the juror did not mean what she said, and in fact had not abandoned her oath to decide the case based on the evidence. Perhaps the trial judge’s instinct that the note was a product
Although the trial judge did not respond directly to the question posed by the foreman, hopefully the juror who allegedly made the statement — and whichever jurors heard her— understood that they were to base their verdict on the law and the evidence. However, the quick return of the jury verdict on Tuesday would be perfectly consistent with a juror voting “guilty” just to go home and a foreman who may have surmised, from the court’s inaction, that such a statement was of no moment.
We like to think that our juries approach their task like the one in Twelve Angry Men ultimately did — where an earnest examination of the evidence prevails over the desire for an early exit from a civic obligation, overcomes whatever prejudices and predispositions we individually bring to the jury room, and enables a jury to work toward a consensus that is a just result.
. In Dillard v. State,
. In the film Twelve Angry Men (Orion-Ñova Productions 1957, screenplay by Reginald Rose), a jury in a murder case takes a preliminary vote upon entering the jury room and finds itself to be 11-1 in favor of conviction. Through questioning by the lone hold-out, and the jurors’ prodding of one another that exposes their individual aspirations and predispositions, they eventually reach a consensus that the prosecution had not proven its case beyond a reasonable doubt. See Ellsworth, One Inspiring Jury, 101 Mich. L.Rev. 1387 (2003). Ironically, it has been noted that at least one aspect of the deliberation portrayed in the film might itself constitute juror misconduct. Id. at 1399 n. 4.