*1
v. Maryland. STATE of Term, Sept. No. 2013. Appeals Maryland.
Court of June *3 (Paul Rasin, B. P. Assistant Public Defender Katherine *4 brief, Defender, Baltimore, MD), for Peti- DeWolfe, on Public tioner. F. Brockmeyer, Atty. (Douglas Asst. Gen.
Cathleen C. MD) Baltimore, brief, for Gansler, Maryland, on Atty. Gen. Respondent. HARRELL, BARBERA, C.J.,
Argued before BATTAGLIA, GREENE, ADKINS, McDONALD and WATTS, JJ.
HARRELL, J. trial,
In judge’s management a trial court of a few circum- fraught peril stances come with as much as the of a receipt deliberating jury. note from a to deal with it? Whether How to deal with it? Some notes contain questions innocuous or statements to which a presiding judge may respond with however, may pose, ease. Other notes more problematic questions place or statements that a judge between a modern Scylla Charybdis. Although judge may want to be helpful in to responding jury, he or she must take care not to be coercive or suggestive of an outcome. A quick response may be in the involved, best interests of everyone but rash- ness is rewarded with reversal Always ready oft-times. at the are the litigants and their attorneys, edge after a hard- trial, motions, fought instructions, for requests curative proposed other courses of may action that be by influenced respective their in advocacy interests the outcome of the trial. we, Looming courts, too are appellate ready swoop high perch scrutinize, from our in hindsight and with the briefs, benefit of every aspect of the decisions the trial judge had to make real-time. present criminal case embraces most of these rhetorical
considerations. challenges We consider three to the course of action by chosen a trial response to a from note foreperson of the jury, received during deliberations after 5:00 PM on the Friday weekend, before a three-day holiday claim- ing that a fellow stated she was willing change her original position of voting “not if it guilty” would mean she go could home and not return to the courthouse. shall We hold that the judge, note, in dealing with this did not abuse her discretion by denying the defendant’s motion for a mistrial and refusing defense request give a modified instruction; 4-326(d) Allen nor did Maryland she violate Rule weekend, recessing long giving after additional instructions reminding proper their duties. Ac- cordingly, we shall affirm the judgment of the Court of Special Appeals, which affirmed judgment of the trial court. *5 BACKGROUND
PERTINENT FACTS & PROCEDURAL in Prince jury, sitting a grand 17On December Troy Sher- charging an indictment County, returned George’s degree, in the first based one count of murder man Nash with The Riddick. into the death Vanessa investigation on an for Prince in the Circuit Court to trial proceeded case jury Tuesday, selection on County, beginning with George’s arrived at the court- day, the venire 2011. On August jury the at 9:50 AM. After at 7:00 AM. Voir dire started house delivered, opening court’s instructions was selected and the from counsel for statements opening the trial continued with of two wit- by testimony the State’s parties, followed both PM, just after 4:00 day recessed for the nesses. The court following morning by the the to return instructing after testimony the of four addi- trial resumed with 9:15 AM. The Thursday. five on The Wednesday and tional witnesses on before 10:00 AM and days began of those proceedings on each 4:30 PM. ended after trial, the day the fourth Friday, September
On Upon completion at 10:14 AM. hearing evidence jury began AM, court final witness at 10:57 testimony of the APM. to return at 12:30 jury direction excused of an the substitution juror with a problem medical resulted resumption proceedings delayed alternate minutes, jury twenty hour and until 1:18 PM. For the next closing argu- instructions and concluding the court’s heard PM, begin At 2:40 retired ments from counsel. PM, a note from the At the court received 5:02 deliberations. (the “I “Note”), literally: read dont believe on one of the a fair verdict based being give defendant is because she want guilty out loud that she will vote stating guilty.” she said no previously home and not return! When go and dated by foreperson signed The Note “9/2/11.” Note, counsel for the receipt court’s Following The trial back to the courtroom. brought were parties following of the Note into the record. read the contents ensued: the court and counsel colloquy between Honor, Defense Your as Counsel: the Court can under- stand, us, is of the note some concern to and we would be— expressed based the concern the foreman in *6 note, we would move for a mistrial. that,
Prosecutor: And the State objecting is Your Hon- or. And why, the reason is my because that note—in opinion, impermissible note, that’s an because that’s diving room, into what’s happening jury and that’s some- thing that really of, we shouldn’t be made aware of what’s on in going room. point,
The at this would advise that perhaps we should release them for night. Well, I Court: was I thinking maybe that would
release them. It might just be that people are tired and they to go need home and relax and come back the next seems, me, day. just Because it somebody just that go that, tired and wants to home. I’m inclined to do rather grant your than mistrial. Well, is,
Defense Counsel: I only thing say that would I is that understand that trying Court is to find a mistrial, solution to the problem, short of a because we’ve know, put, four you days hard in. I difficulty But the is, if have we were to come back on Tuesday morning,[1]it would Tuesday morning, be if essentially, they then go verdict, back and there’s a quick 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 has voted guilty for expedien- convenience and cy, of, rather than from a sense proper that’s the verdict after our deliberations. so, I that,
And don’t—I coming foresee back Tuesday, that it going know, isn’t change you desire or the of— problem, that the Court is addressing this afternoon. Monday, September holiday. was a court that, I what the Court has said on understand
So based do, motion for a my but I would renew inclined to you’re mistrial. Honor, I no difference between Your see
Prosecutor: they to the instruction your previous note and are. what the numbers you should not tell there, because, where going what’s back And that’s verdict, that we should are, something is not before they is and that’s about, doing that’s what that note know have known. information that we shouldn’t it, Well, have to deal we know about so we The Court: but it. it And we know about now. Defense Counsel: Okay. The Court: so, that we do I’m suggesting,
Prosecutor: And what *7 and have them return point the at this jury release Tuesday. I thing point the other that would
Defense Counsel: And an while there’s inference again, foreperson, out—and the be, split may might have been the note about what the— that. But we don’t know
The Court: Well, had I’ll tell the Court that I’ve Defense Counsel: jury was saying exactly I were thought notes which opposite— and then the way, a verdict one about to return way. other came back the jury and then the that that —that I know that you I’m saying So what instructions, careful to follow the Court’s the foreman was and it’s— Yeah, I don’t think it’s—
The Court: well And I would— Defense Counsel: First, minute. wait a The Court: breakdown, means, note. by any a numerical It’s not just a—it’s a concern I don’t—it’s And because has, thought He has a concern he okay. and that’s foreman attention, which he has done. to the Court’s bring he should know, you But 5:00, it is almost 20 minutes after and I— jury has been deliberating 2:40, since—what was that — time, you’re which isn’t a lot of if day, earlier but they recall, had been here all if day. you’ll And we did give them very I lengthy just break. And think it may be matter just being really someone tired. I am So inclined to release them and have them come Tuesday. back
The conversation continued with defense counsel addressing First, points. three additional requested he that the judge refuse to receive a verdict that evening, light of the Note anticipating the jury might claim to have reached a verdict between out sending brought the Note and being back Second, into the courtroom. defense counsel proposed that another judge jury receive the on Tuesday morning for fur ther deliberations because presiding judge would not be available that day the normal start of presiding court. The judge agreed to suggestion. Third, the latter defense counsel asked that the Court inquire as to whether it would be impossible any Tuesday return on asked the court grant a mistrial if any of them could not return, because no alternate remained.2
Before the could respond to request, counsel’s third PM, escorted back into the courtroom. At 5:25 stated following jurors: to the The Court: All I right. have your received note and counsel is aware of your notes—or your note as well.
And what Pm going do at this time is to you excuse today, you’re but going to have to Tuesday return on your continue deliberations. I expect to see on you Tues- day, at 9:30....
Counsel asked to approach the bench following and the con- versation occurred: selection, jury
2. At the time of parties thought the court and the case would be over the end of that week. instruct them not you also Judge, would Prosecutor: investigate?
Defense Yes. Counsel: Yes.
The Court: won’t be here And since the Court Defense Counsel: time at this maybe I think that the Court Tuesday morning, Charge. the Allen them give should not a situation which No. No. This is The Court: No. not. really It Charge applies. Allen Thank Your Honor. you, Prosecutor: Charge. Allen give I’m not going The Court: is noted? My exception Defense Counsel: fine. The Court: That’s jury: instructions to issued additional
The matter, you’ve just one other Okay. There’s Court: not, I’ll you. than but remind this more times heard anyone. the case with Do not discuss room, deliberating, together, all ... You must be the case. you can discuss before research, any investigation, or any independent Do not do matter. concerning the anything about upon must be based your decision you, As I’ve instructed the trial. the course of during here presented what has been It’s instructions. you comply my will expect I works. only way process to see expect But I today. again, are excused for you So Tuesday, at 9:30. you all of Tuesday, September following
theOn the Circuit Another returned as instructed. Court, swore the bailiff presiding judge, for the substituting room to the deliberation jury him to take the and instructed Court re to resume their deliberations. and instruct them AM, with the a verdict. At 10:45 at 9:39 to await cessed AM bench, to re court reconvened on the presiding judge back back brought verdict.3 Before jury’s ceive the precise time at which the indicate 3. The record does not court that it reached a verdict. alerted the *9 courtroom, into the defense counsel renewed Nash’s earlier mistrial motion on based the contents of the Note. The court denied the motion. re-seated, jury
After the foreperson the announced that jury the found Nash guilty degree. murder the first At request, defense counsel’s the courtroom polled jury. clerk the juror Each agreed with the verdict. The court dismissed the jury. Defense counsel renewed Nash’s mistrial motion and stated his intent to file motion for a new trial. The court ruling reserved on the mistrial and set a date for a on hearing the motion anticipated for a new trial.
On 28 October the court conducted a hearing sum, Nash’s motion for a new trial. argued, Nash court erred in to failing grant a mistrial based on the Note and, alternatively, that the court’s to give failure the requested instruction, Allen specifically portion of the instruction that a juror states should not change his or her vote verdict, as an simply expedient to reach a warranted a new trial. The court denied Nash’s mistrial motion and motion for a new trial. appealed
Nash to the Court Special Appeals. In addition to two arguments posed at the Circuit Court hearing on trial, his motion for a new argued Nash to the intermediate court that appellate the trial judge violated 4- Maryland Rule 326(d) by failing to respond to the substance of the Note.
In an unreported opinion, the Court of Special Appeals judgment affirmed the of the Circuit Court. With regard argument that the Circuit Court should have declared a mistrial based on Note, allegations the Court of Special Appeals held that the potential action of juror who may (the have indicated she was willing change her vote Juror”), “Subject Note, as described in the was not “conduct aby that would compromise ability verdict,” and, render a fair impartial therefore, did not constitute misconduct as such circumstances are recog- in Maryland. nized to As the contention that in refusing give instruction, erred the requested Allen the instruction court determined appellate
intermediate deadlock did proper because not have been would wager, of Nash’s tri-fecta part to the last respect exist. With *10 4-326(d), the Court violated Rule the trial that consti- actions concluded Special Appeals to the Note. response an adequate tuted of Certiorari with a Petition for Writ timely filed Nash State, 432 Md. Nash v. Nash’s Petition. granted Court. We (2013). following shall consider We question:4 brief, opening slightly question presented in Nash's rephrase
4. We which read: when, receiving after a error court commit reversible Did the trial changed juror her vote from indicating one had jury note that return,” go it to home and not guilty guilty want[ed] she to "because (1) conducting a voir dire of the without a mistrial motion denied than (2) any response to the note other action in juiy, failed to take (3) give modified Allen day, refused to a recessing for the and by requested defense counsel? instruction as questions Nash framed version of the four question a condensed This is initially for Writ of Certiorari: in his Petition the foreman that a note from the trial court received 1. Where stated, being give[n] verdict a fair the Defendant is "I don’t believe guilty stating that she will vote juror[s] out loud on one of the based previ- go and not return! When she to home want[s] because she judge abuse her discretion guilty,” did the trial ously no[t] said supple- request for a motion and denying defense counsel's mistrial any any by failing voir dire of to conduct mental instruction jury with the but instead address the issue or otherwise judge's recessing day the trial by for the based on responded somebody just tired and that "it seems ... conclusion go to home”? wants "respon[se]” contem- recessing day a as for the constitute 2. Does 4-326(d) "pertaining to and case law to a note plated Rule the action”? holding in Johnson v. Under this Court’s (2011), juror presumes prejudice from misconduct A.3d 239 sponte duty imposes to sua cases and in such they can still render a fair jurors to ensure that voir dire the verdict, "improper commu- juror misconduct limited to impartial jurors, and "con- parties, or witnesses” with the other nications bringing] into the room ducting] independent research or jurors,” as the supposed be before the was not to material concluded, apply where it also appellate court or does intermediate changed her that one has information the court receives when, after error trial court commit reversible Did the willing- indicated a stating that one receiving jury note “because she guilty guilty from not change her vote ness (1) return,” it denied the home and not go want[ed] dire conducting voir motion without first defendant’s mistrial (2) give request defense counsel’s jury, of the refused (3) instruction, and, to recess over a chose modified Allen to continue and have the return three-day weekend deliberations? negative. in all of its question, parts, answer the
We reasons, affirm judgment we shall following For the of Special Appeals. Court
DISCUSSION In Judge Did Not Her Discretion I. The Trial Abuse *11 Denying Mistrial Motion Nash’s on the Circuit Court’s denial argument Nash’s first focuses following reading mistrial of the Note. of his motion for a Subject Juror’s statement consti- opines reported He misconduct, that, by refraining tutes from conduct- Note, of ing jurors following receipt voir dire of the judge accomplish necessary trial failed to one or more of three (1) acting to on his motion for a mistrial: receive things prior arising to of to Nash presumption prejudice evidence rebut (2) conduct; factual Subject alleged from the Juror’s resolve presumption prejudice to determine whether the questions information judge or whether the had sufficient applicable was in on the mistrial upon ruling which to exercise her discretion go solely her home rather than her verdict based desire to weight to the of the evidence? honest belief as 2:01, perti- May Maryland Jury which in Pattern Instruction jurors your to part instructs to “not surrender honest belief as nent only opinion weight evidence because of the or effect of the verdict,” purpose reaching your jurors or for the mere fellow situation, only give given appropriate to be in a deadlock or is it changed indicates that a has her instruction where a note guilty go guilty want[ed] to "because she to home verdict from not and not return”? (3) motion; or, assurance from that they receive in impartial light alleged could render a fair and verdict of the Failing accomplish misconduct. one or more of those asserts, an things, judge’s Nash abuse of the trial discre- requiring tion and constitutes an error reversal of Nash’s conviction. disagrees fundamentally
The State with Nash’s arguments reject that we requests attempt ‘pigeon-hole’ “Nash’s the circumstances of his case into the case law that this Court and the Court of have Special Appeals developed addressing juror misconduct.” The asserts that State in prejudice discussed some authorities on which Nash relies applicable is this case because there was no juror-witness juror-third “egregious party contact.” In the view, State’s the circumstances of the record of Nash’s trial presented the trial only possibility that miscon- and, eases, duct occur might prospectively, such judge’s decision not to conduct voir dire of the is reviewed for an abuse of discretion. Under this deferential review, contends, standard of the State Nash has the burden to show that prejudiced clearly he was so that a reversal of the trial ruling required, court’s and “the record evidence that demonstrates he has failed to shoulder this burden.” Additionally, argues State there was no material fact- finding necessary prior ruling for the to resolve on the mistrial motion. nothing
The State concedes to have done response an Note would have been abuse of the trial *12 notes, however, discretion. The State upon “decision to recess was based her thoughtful consider- jury’s ation of the record and the up point service time.”
Before of parse parties’ respective we the merits arguments, we to consider pause through the lens which we must a trial disposition review court’s of a motion for a trial, mistrial. many aspects Like of we review a court’s ruling on a mistrial motion under the abuse of discretion
67 art that is a term of “abuse of discretion” Although standard. define, we reiterated continuously to struggled courts have description appropriate to be an we deem recently what standard: of “abuse varying multitude of definitions
In
to the
regards
discretion,”
recognized previously, “[o]ne
as we
the abuse
on the contours of
helpful pronouncements
more
opin-
...
Judge
comes from
Wilner’s
of discretion standard
(1994),”
North,
1,
“Abuse of discretion”
adopted by
would take the view
person
no reasonable
court,”
reference to
or when the court acts “without
[trial]
It has also been said to
any guiding
principles.”
rules or
“appears
under consideration
ruling
exist when the
grounds,”
ruling
on untenable
when the
have been made
infer-
logic
and effect of facts and
“clearly against
is
court,”
unten-
ruling
“clearly
when the
ences before
able,
right
of a
unfairly depriving
litigant
substantial
result,”
ruling
when the
is “violative
denying just
or when it constitutes an “untenable
logic,”
fact and
injustice.”
an
judicial act that defies reason and works
(altera-
North,
13-14,
at
As Wilner “That kind of distance can arise North, 14, ways.” a number of 102 at Md.App. 648 A.2d example, at 1032. For the circuit court’s is ruling “beyond if fringe” logically it “either does not follow from the it findings upon supposedly rests or has no reason- able relationship objective.” to its announced Id. Because give we such deference to a trial court’s decision under the review, abuse of discretion standard of it is well established exercise of discretion ordinarily “[t]he will not be State], disturbed an court.” appellate Gatewood 388 [v. Md. [526] 540-41, 880 A.2d [322] at 330 [ (2005) ] (citing Williams, 378, 413, Maryland, Tierco Inc. v. 381 Md. 849 (2004)). 504, A.2d 525 State, 457, 477-78, 1243,
Alexis v. 437 Md. 87 A.3d 1254-55 (2014).
Part difficulty defining and parsing the abuse of discretion standard stems from the lack of fixed channels through which we can squeeze Play-Doh of each trial judge’s discretionary analytical decision into the same shape Alexis, 457, 478, or mold. See 437 Md. 87 A.3d 1255 (“The range notion of a of discretion ... is not an immutable and invariable criterion in all myriad applications.” of its (quoting Canterbury Investors, v. Riding Chesapeake Condo. Inc., (1986))). 635, 648, Md.App. Rather, 505 A.2d the standard represents a flexible model whose range is on the dependent type discretionary decision a trial judge is called upon make and the relevant circumstances State, 632, 668, case. See v. Washington Md. 37 A.3d (2012) that, 952-53 (noting respect to motion for a new “ ” trial, a trial discretion ‘is fixed and immutable’ “ ” expand but ‘will or contract’ based on the circumstances of 17, 30, the case Merritt v. (quoting 367 Md. 785 A.2d (2001))). Regarding of a trial range judge’s discretion in motion, ruling on a mistrial reviewing appellate courts afford Alexis, 457, 478, generally wide berth. See 1243, 1255 (noting range of a trial judge’s discretion motion, with other of a as the merits mistrial assessing when “ trial,” Very of a handling progress “[i]n decisions ” *14 reversed,’ as ruling] rarely will be or her [his broad “ discretionary in which ‘the other circumstances compared to ”) Canterbury Riding (quoting narrow’ is far more range 864). Condo., 648, Competing A.2d at 505 Md.App. 66 respect range of discretion potentially affect forces hand, one in this case. On the mistrial motion the particular a may implicate or misconduct of bias allegation an impartial to a fair and verdict. right constitutional defendant’s 454-55, 403, State, 445, 3 A.3d 408-09 415 Md. Dillard v. See 1008, State, 299-300, 284, 825 A.2d (2010); Md. v. 375 Jenkins an (2003). hand, declaring a mistrial is other On the 1017-18 State, Burks v. lightly. not to ordered See remedy be extreme (1993) (“It 187, 1257, 1265 is rather 173, 624 A.2d Md.App. 96 to when sometimes must be resorted sanction that an extreme reme- occurred that no other overwhelming has prejudice such State, 82 Ezenwa v. cure the prejudice.”); suffice to dy will (1990) (“Because 1101, 489, 518, [a 1115 572 A.2d Md.App. measure, only grant- it should be extraordinary is an mistrial] transitory light necessity opposed manifest as ed where shown.”). reasons, is upon for a mistrial based party a moves
When
judges
duty
on trial
jurors,
impose
of
we
conduct
motion, in
on the
sponte, prior
ruling
sua
conduct voir dire
circumstance occurs
of circumstances. The first
two sets
sufficient to raise
actions constitute misconduct
juror’s
when a
a
rebutted before
that must be
prejudice
a presumption
Jenkins,
A.
Our consideration of whether the facts of
present
case
raise a presumption
prejudice begins
with a review of how
Maryland’s appellate
approach
analysis.
courts
We con-
sidered the doctrine of presumptive prejudice for the first
Jenkins v.
(2003).
time
71 v. (citing it. See id. Jenkins the State rebutted applicable, (2002)). 682, 116, 701 83, A.2d Md.App. of the review, judgment we reversed certiorari On “private, observed that court. We appellate intermediate between contacts intentional communications and/or to quote and went on improper,” generally are and witnesses 227, 229, States, 74 S.Ct. 347 U.S. v. United from Remmer (1954): 654, 98 L.Ed. communication, contact, case, any private “In a criminal during indirectly, juror with directly or or tampering is, pending about the matter before if reasons, prejudicial, presumptively deemed obvious court and the rules of the of known pursuance made during court made of the instructions and directions trial, parties. of the knowledge full heavily conclusive, upon rests but the burden is not establish, hearing notice to and after Government juror was harmless defendant, such contact with the defendant.” 301-02, Rem-
Jenkins,
(quoting
We
of
presumption
preju-
Remmer
interpret
occasion to
had
it in
dice,
applied
case[s]
has
Special Appeals
of
Court
State,
Eades v.
411,
of
(1988),
Md.App.
A.2d 1001
and
”
Allen v.
25,
(1991)....
89 Md.App.
Id.
In
a co-defendant had breakfast with an alternate
juror, during which conversation he implicated himself and
cleared his brother of
charges
some of the
against him. The
alternate
related the co-defendant’s statements
to a
sitting juror
in
during
recess
being
deliberations. After
informed of the misconduct and conducting voir dire jurors,
affected
the trial court denied the defendant’s motion
Eades,
for a mistrial.
inAs
the Court of Special
held
Appeals
that the Remmer prejudice
applied, but that
the presumption was
jurors’
rebutted
responses to the
Allen,
trial judge’s voir dire questions. See
After our
rejected
we
the State’s argument
two later Supreme
opinions5
Court
of the Remmer pre
application
eroded the
Jenkins’s,
sumption to cases such as
“where egregious Jenkins,
witness misconduct occurs.”
319,
73 cases egregious in limited presumption such a requires Rights a criminal ensure that misconduct to and witness of Id. adequate process.” due receives defendant revisited Special Appeals The Court State, 440, 971 Md.App. 185 v. Wardlaw prejudice principle note (2009). Wardlaw, received a the trial court In 331 A.2d deliberations, indicating day of on the second jury, from the opposi- Internet research conducted jurors of the that one afflicting (ODD), problem a mental disorder tional defiant witnesses, lying and “found that of the State’s one purportedly also “I am note stated illness.” The of the part was a undue is an [regarding ODD] that her statement concerned An okay?” jurors. of the Was on the rest influence handwrit- note, in different in the written sentence additional contents, stated “And of the note’s than the rest ing of the illness.” See lying part know is needs to foreman reading Wardlaw, A.2d at 334. After at 971 Md.App. denied parties, for the note to counsel declaring Rather than motion for a mistrial. counsel’s defense mistrial, a curative instruction judge opted give instruction to jurors given preliminary of the reminding investigation. conducting any from research refrain any research jurors disregard that the should judge explained during occurred delibera- of such research that or discussion only on the tions, their verdict and advised base trial and during courtroom presented evidence 445-46, Wardlaw, 971 A.2d at Md.App. at nothing else. 334-35. of the judgment Appeals reversed Special
The Court
court determined
appellate
The intermediate
circuit court.
subsequent reporting
research on ODD and
juror’s
egregious miscon-
the other
“constituted
finding
her
witness who was
duct,”
credibility part
because the
issue,
crucial
as there
was “a
purportedly
afflicted
ODD
and that such
allegations,”
her
no evidence to substantiate
to either
prejudicial
“presumptively
misconduct was
egregious
Wardlaw,
Md.App.
the State or [Wardlaw].”
1008;
Jenkins,
825 A.2d at
(citing
A.2d at 338
State,
169, 189-91,
(2006);
Butler v.
In a quite recent
the Court of Special Appeals deter
juror’s
mined that a
stating
note
“we have already looked it
up,” which the court received minutes
prior
after a
note asking
if
jurors
could have a dictionary, was not the type of
egregious
“excessive or
misconduct” or “serious
miscon
duct” that would
to a
give
presumption
rise
of prejudice.
State,
593,
Colkley
622-25,
v.
204 Md.App.
646, 663-64,
42 A.3d
606,
cert. granted,
605,
denied,
427 Md.
50 A.3d
and cert.
427
608,
607,
Md.
50 A.3d
granted,
and cert.
429 Md.
54 A.3d
(2012),
State,
rev’d on other grounds sub nom. Fields v.
(2013).
Rather,
Md.
175-76,
A.2d at 363. The next
the court received
morning,
896
jury requesting
videotape
a note from the
to watch the
of
Butler,
176,
closing arguments.
Following argument from counsel for the
the court
parties,
if
voiced its concern that
the statement in the third note was
true, it
jurors
perjury
would mean that one of the
committed
in his or her
to a
response
question
during
voir dire
asked
stated,
selection
The court
“I
believe
process.
don’t
necessarily
any
one
would never trust the
under
juror
police
I
may just
circumstances.
think that
be an exhausted or
177,
at
(empha-
reaction.”
Md.
6. to voir dire jurors. Md.App. & at 624 & n. A.3d at 664 n. 2. into the courtroom and the brought were let them watch the In videotape.
advised them he would
note,
trial judge
to their third
stated:
regard
essentially
says
we’re
It
going
ignore.
“The
note
[third]
police
have one
who does not trust the
no matter
we
Anybody
way
who had felt that
should
the circumstance.
occurred,
challenge
so in voir dire so a
could have
have said
now,
I
spirit
suggest
deliberates with that
anybody
and if
their oath.”
they might
violating
be
at
896 A.2d
364. Counsel for both defendants
objected,
for a mistrial on the
ground
and moved
Butler,
178-79,
at
judge’s instruction was coercive.
motions,
Turning to Nash’s we decline his invitation in Al- apply presumption prejudice the of doctrine his case. (other applicable 7. Not included in our consideration of case law than passing) Maryland’s appellate in are a few cases in which courts principle presumption prejudice of the context mentioned the in
77 Subject Juror, true, if though alleged statement face, reasons, it troublesome its is different two in our view, from the cases in which applied we the presumption. First, we agree argument with the State’s that the reputed statement of Subject Juror constituted but possibility of future misconduct. Here—unlike the cases considered so far in opinion juror witness, contact concerning case, parties to parties, or third and independent investi- gations by jurors had ability prevent preju- —the words, dice from In occurring Nash. other the actual misconduct if Subject would have been Juror acted on his or her stated desire of reaching merely verdict to go home return, and not as opposed threatening to act in that fashion. The judges the cases discussed attempted here cure any prejudice through voir dire questions, curative in- structions, and efforts to obtain assurances of jurors’ verdicts, abilities to reach impartial but the misconduct had place taken already juror the form of contact with witnesses or third parties, or the receipt dissemination of outside evidence through independent jurors. investigations by Morris, 284,
Nash relies on
v.
Wilson
317 Md.
State’s preju- of presumption The juror of misconduct.” possibility Wilson, it in because perhaps was not mentioned principle dice and, thus, did not address the injury case personal was Nonetheless, a criminal defendant. rights of constitutional “an the that proposition it stands for contends that Nash to necessary all that juror bias” is of allegation patent dire court in sponte a sua voir by response. the require comparison of Wilson to by Nash’s persuaded are not We dire Although we held that voir case. present the facts of the Wilson, in that juror of bias” “allegation in the necessary plaintiff recog- of trial when the in middle case occurred she had overheard person as the nized one of the sworn “ selection, costing are that ‘these cases saying, prior Wilson, 317 See stopped.” and need to be money’ too much Therefore, 400, question 302, 303, A.2d at 401. at Md. juror bias” “patent a preexisting Wilson in was whether empan- from being particular precluded should have Here, Id. there is no evidence in that case. eled contrary, bias. To the preexisting patent had a Subject Juror stated, point at some Subject that the Juror the Note asserts deliberations, guilty, to find Nash not a desire earlier she had a bias preexisting conclusion that foreclosing thus of commencement jury selection or the prior Nash against Subject assessment deliberations. opposed as fatigue, was the result alleged statement Juror’s bias, given the circumstances. was reasonable patent to a apply A reason to decline second Subject that, the extent that the case is Nash’s prejudice misconduct, it actual could be considered statement Juror’s in which of “limited” circumstance type not fit within the does Jenkins, A.2d at presumption applies. did not single juror, A statement made witnesses, not have does any evidence or concern the as the well of deliberations poisoning likelihood of the same case, witnesses, to the parties contact with type Jenkins, Eades, Remmer, took parties place third See, e.g., Allen. Summers v. Md.App. (2003) (noting
A.2d 1143 that an discussion improper jurors between two outside the rest of presence of the the in a “greatly results diminished” a concern of tainted verdict compared when to contact a party). between and third likely Nor such a statement to an have as harmful effect on as type independent investigation deliberations the and resulting prejudicial introduction of “outside” evidence that Dillard, in occurred Wardlaw. See at Md. A.3d at (“[Tjhere (Adkins, J., dissenting) is no possibility contact, jurors were influenced some ex or by parte that their was by verdict tainted some inappropriate outside information This opinion. fact isolates the instant case from Jenkins ”). and cases.... [similar] may
It be argued reasonably Subject that the Juror’s statement is more the alleged concerning than misconduct in occurring Colkley potential for prejudice issue Bruce, is, more perhaps, troublesome than the statement Butler, prejudiced at issue because the statement there State, which is not afforded the same constitutional protec- defendant, view, as a however, tions criminal like Nash. In our Subject Juror’s statement in reputed present case does not constitute the type egregious jury “excessive or miscon- Jenkins, presumption duct” raises a of prejudice.
atMd.
To
a voir dire of the
would
have been
under
improper
present
We
only
circumstances.
hold
that, to the extent voir dire could
useful in
have been
ferret
ing-out and resolving any potential prejudice, the burden request
on Nash to
request
it.8 Because Nash
failed
voir
argues additionally
impossible
prove
Nash
it would be
for him to
light
prejudice
longstanding
against
impeaching
rule
a verdict
mistrial,
did
dire
at the
of his motion for
time
discretion,
prejudice grounds,
her
not abuse
dire
sponte.9
voir
sua
refraining
from
by
conducting
Resolving Factual
B.
Issues
did
consider next Nash’s assertion that
We
her
upon
information
which
exercise
not have sufficient
therefore,
and,
failing
her discretion
discretion
abused
sponte
voir
dire sua
necessary
to obtain
information
conduct
Nash’s
motion. We
denying
from the
before
mistrial
upon
cases
Nash
review of
two
bases
begin
assertion.
which Nash relies is Dillard v.
upon
The seminal case
(2010).
question
Dillard
to the Court of
appealed
Special Appeals,
affirmed the
of
judgment
the circuit court. The intermediate
appellate
that:
jurors
court concluded
did not commit
they
any
misconduct because
did not
of
violate
the trial court’s
instructions;
jurors
the actions of the
were
egregious
enough to raise a
it
not im-
prejudice;
proper
for the
to reach
Dil-
opinions
tentative
about
innocence;
lard’s guilt or
their
did not
comments
demonstrate
bias; and,
it could be
presumed
followed the
judge’s subsequent
instructions regarding the State’s
Dillard,
burden
proof
and the presumption of innocence.
tact. We to the factual issues: resolve for several reasons. particularly troubling contact was
First, key a witness the State. Detective Smith was to juror key likely a witness is more between Contact juror and an uninter- than contact between prejudicial be Second, sought the out the jurors specifically party. ested testimony, opposed a comment about his as witness to make contact,” saying exchanging like “hello” or “mere casual to Further, not, its the was on passing pleasantries. contact face, passing human reaction” or a mere an “instinctive as testimony, out of detail of the arising some observation of but by Special Appeals, the Court rather asserted that testimony about the content of the witness’s comment Third, question guilt to the or innocence. may be related have an jurors may formed the contact evidence his guilt presented as Dillard’s before Dillard to opinion opinion “If a has formed a fixed a defen- juror case. deliberations, juror may stand prior dant’s the guilt A by subsequent if contradicted evidence. opinion the even the premature form conclusions without may also law, arguments, of final instructions benefit Finally, indepen- the fact that two deliberations.” made same Detective Smith’s dently comment about have discussed testimony may suggested ques- deliberation about the premature or engaged case innocence, guilt or Detective Smith’s tion Dillard’s testimony. Because credibility, prior completion raised factual potential content of the contact these issues, it was incumbent resolve upon jurors’ ability to the controversy factual relates an verdict. impartial render (internal
Dillard, 410-11 citations 8 A.3d at Md. omitted). 137, A.3d v. relies also on Johnson
Nash
(2011).
to factual informa-
involved
access
Johnson
deliberations, during
During
trial.
presented
tion not
following:
stating
a note
“One
received
*25
jurors turned on the cell phone (using their
battery)
own
and
found a
placed
call was
at
[Defendant]
3:08 AM. What
should we do with this
disguard
information
it?” John-
[sic]
son,
144,
423 Md. at
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
Johnson,
memories of
presented.
the evidence
144,
On direct the Court of Special Appeals, in an unreported opinion, affirmed the judgment of the circuit court. juror’s court determined that: appellate
The intermediate *26 indepen- conducting did to the level of outside conduct not rise court; research; the the jurors immediately the informed dent testimony was in contradiction to discovered evidence trial; and, the instructions following during elicited the could the demeanor jury, judge and of the observe polling them of curative instruc- jurors impact the and the on his of “unable Accordingly, Id. court was to appellate tions. the into juror’s battery a the placing conclude that the action to Id. egregious cell amounted misconduct.” phone review, we reversed the of the Court judgment On certiorari dispute to the be- Special Appeals. of We declined resolve parties the whether the conduct was suffi- regarding tween Johnson, 423 a of Md. presumption prejudice. cient raise Dillard, Instead, relying primarily at 31 A.3d at “fell of what judge’s response held that the trial short we necessary the court could have exercised its properly before mistrial,” requested the deny judge discretion to because factual such questions, failed to conduct voir dire to resolve as juror investigating “the of the who obtained the identity among remaining information from the cell who phone, learned, degree or the was aware of what the had jurors and information highly prejudicial [af- the extrinsic Johnson, jurors.” or all of the fected] some at 249. A.3d Johnson, party of when a holdings
Under the Dillard allegation an miscon- following moves a mistrial of duct, of the a trial request jury, but does not voir dire sua if he or lacks sponte must conduct voir dire she sufficient juror’s conduct regarding information from which deter- (1) attaches, or, (2) prejudice mine of presumption whether present motion In the whether mistrial should be denied. case, unresolved factual issues to be the only appear Juror, Subject whether she said what the Note identity jurors heard and the number of other who reported, statement, Subject supra, if As discussed any. Juror’s is not to the facts prejudice applicable case, unresolved facts present determining above had little or no material on our bearing would have conclusion then, of the application presumption. question, as trial judge upon whether lacked sufficient information in ruling which to exercise her discretion on Nash’s motion for a mistrial.
We conclude that the trial had sufficient infor mation her to rule on before the mistrial motion. She was not faced with the type alarming factual issues from arising juror-witness i.e., contact that went unresolved in Dillard — precipitated jurors witness, what the contact between and the any whether formed an as opinion to Dillard’s guilt case, presented before he his and whether two more engaged inappropriately discussions or conducted *27 premature deliberation Dillard’s regarding guilt or the credi bility of the witness with whom the inappropriate contact was made.
Moreover, Johnson,, unlike in Subject alleged Juror’s statement did not concern the introduction into deliberations of extrinsic “information ... of central importance to what the Johnson, jury ultimately had to decide.” A.3d argues at 249. Nash Subject that the reputed Juror’s statement was, thus, concerned the issue of guilt, his central importance to what the jury had to decide ultimately. His argument is misplaced. The information at issue in Johnson consisted of evidence not presented at trial that bore directly on the credibility key of a witness for the State. By contrast, Subject supposed Juror’s statement in the pres- ent case did not add to or otherwise affect the universe of upon evidence as a whole was to base its Thus, deliberation. the trial judge in Nash’s case did not have essential factual issues to resolve before ruling on the mistrial motion.
Accordingly, we hold that judge had sufficient facts upon which to base her ruling motion, and, on the mistrial thus, discretion, she did not abuse her grounds of insuffi- information, cient factual by denying the motion without first voir conducting dire sua sponte. Impartial Obtaining a Fair and Assurance of Ver-
C. dict challenge regarding third turn now to Nash’s
We motion—whether she abused her denial of his mistrial judge’s “ask[ing] motion first for or by denying his without discretion fair, would be jury’s assurance that the verdict receiving] any a clear indication to and based on the evidence after impartial, contrary.” discretion allotted to the trial range think the We is than with impartiality greater fairness and ensuring arguments presumption preju- based on respect to Nash’s factual questions. failure to resolve alleged dice and the evidence prejudice applies, garnering Where likely “only is prejudice voir dire to rebut through to ensure a fair and judge’s disposal method” at a trial Wardlaw, 971 A.2d at Md.App. verdict. impartial Thus, voir dire in such a trial failure to conduct Similarly, an likely an instance will be abuse of discretion. factual that must be questions where there are essential has a of informa- quantum answered before sufficient discretion, of her voir dire tion on which to base the exercise only judge may obtain likely way of the needs, and, thus, information he or access to the additional she a failure to voir dire those circumstances constitutes neces- an of discretion. As to the need to ensure sarily abuse facts light particular viewed impartiality, fairness *28 case, than present of the there was more one avenue available the decision what to do judge confronting to the trial before Johnson, See, motion. e.g., with Nash’s mistrial nature, 149, (“[Djepending scope, at 246 upon 31 A.3d misconduct, or [alleged] judge may of have one timing to the curing possible prejudice more reasonable means of defendant.”). than one reasonable course a
Where there exists more decision, discretionary with to a judge may respect trial take job merely option not to whether one is better weigh our is than Nor is it to determine whether the other. 87 taken in the one we would have his course was judge’s chosen 1243, Alexis, 457, 477, A.3d 1254 437 Md. 87 her position. 1032). task, North, 14, Our at 648 A.2d at Md.App. 102 (citing route the trial is to determine whether the supra, as discussed findings from the logically “does not follow judge traveled relation- it rests or has no reasonable supposedly upon and, thus, an objective,” constituted to its announced ship Alexis, 478, 1243, 457, 87 A.3d 437 Md. abuse of discretion. 1032). North, 14, In at A.2d at Md.App. (quoting so, judge’s unique must remember the trial role and doing we to a advantage evaluating questions prejudice of distinct criminal defendant: scene, is on the able to observe judge physically
The [trial] judge reflected in a cold record. The usually matters not demeanor of witnesses and to note the able to ascertain the to inadmissible jurors reaction of the and counsel matters. on the of the say, finger pulse That is to has his trial. (1992). Hawkins, 270, 278, Md. 604 A.2d
State v. to applies equally judge’s ability That observation to the trial jurors allegations of to of regard ascertain the demeanor juror misconduct. task, light understanding
In of the nature of our our “finger pulse that the trial was the one with her on the Note, trial,” timing receipt of the and the of the court’s of to respond we cannot conclude that the trial choice sending providing home and a curative the Note instruction, receiv[ing]” of for or an directly “ask[ing] instead an impartiality jurors, from the was abuse assurance Indeed, reported her conclusion that the comment discretion. Subject likely product in the Note was Juror long home for the fatigue and her decision send the only “minimally within the of what is range weekend was circumstances, Alexis, 437 Md. acceptable” under the 477-78, at (quoting Gray, 87 A.3d 1254-55 1064), suggested it was on with what we point circumstances in appropriate response very an similar case, In declining apply presumption Butler. after *29 stating particular juror to the note that a “does not prejudice circumstance,” trust no matter the we stated the police following: judice, agree
In the case sub
we
with the trial
just
“may
assessment
that the note
be an exhausted and
result,
As a
frustrated reaction.”
his decision to allow the
jury
may
proper
to continue deliberations
have been
had he
admonishing
juror.[10]
refrained from
Butler v.
If it
trial
in
judge
was reasonable
Butler to
juror’s
from a
a
lack
in
concerning
note
of trust
law enforce
ment,
jury
was exhausted and
for that
frustrated and
judge
to allow the
to continue
con
deliberating without
dire,
voir
or otherwise
for or
a
ducting
asking
receiving
direct
impartiality,
say
assurance of
we cannot
that the trial
in
judge
present
Subject
case abused her discretion. The
Juror’s
that,
indicated
reported
Friday evening
statement
a
before
weekend,
trial,
after four
three-day
days
go
she wanted to
home. That statement is even more susceptible
interpreta
frustration,
tion as
the result of
being
fatigue and
as the trial
inferred,
in
than
judge
present
case
the statement at issue
Butler,
in
particularly
light of the fact that
the note
morning,
they
Butler came from the
after
had been
night
sent home the
before to take a rest from their delibera
Butler,
175-76,
Thus,
tions. See
On this we do not are not permitted about, speculate happened jury what in the deliberation room Tuesday morning. may on that not as the postulate, We State suggest, seems to that the of all of the on presence Tuesday morning and the lack of additional notes or any expressions of from uncertainty conclusively them indicates But, that all of the by followed the court’s instructions. token, divine, invite, the same we not may as Nash seems to relatively that period Tuesday brief of deliberation morning or the use of the words “and not return” in the Note following Subject “go the statement that the Juror wanted to home” indicate that the weekend was not sufficient to break prevent prejudice to Nash.
The information concerning Tuesday events morning privy purposes to which we are do not matter for the of, dire), (through assessing particular juror voir the demeanor
who made the
No
statement.
identification was made in Butler.
view,
fatigue,
In our
it is reasonable for a trial
to sense
frustra-
tion,
emanating
group, particularly
or restlessness
from a
as a
in
light
timing
receipt
present
of the court’s
of the Note in the
case.
of review which we must measure
of the standard
motion. The determination
of Nash’s mistrial
judge’s denial
only
us to look
requires
she abused her discretion
of whether
rationality
the realm of
at whether her decision was within
Friday evening.
it—the
As
preceding
the time that she made
above,
analysis
of our
particularly
light
we discussed
Butler,
trial
actions on that
say
we cannot
irrational.
Friday evening were so
her
we hold that the
did
abuse
Accordingly,
Even in
of a
denying
light
the mistrial motion.
discretion
cannot conclude
rights,
criminal defendant’s constitutional
we
“a fair and
could not be had under
impartial
*31
circumstances,”
of
handling
or that
the trial court’s
Nash’s
injustice.”
motion resulted in
Rent-A-Car
“palpable
mistrial
Co.,
401, 408-09,
Fire Ins.
163 Md.
163
Rutgers
Co. v. Globe &
(1933).
702,
In the words of Justice Oliver Wendell
A.
705
Holmes, Jr.,
Supreme
his tenure on the
Judicial Court
during
“
Massachusetts,
ju[dge]
‘The
was the best
presiding
juror’s
any
particular
did
harm in this
whether [the
conduct]
If
a new trial
given
h[er]
case.
had
the defendant
[s]he
criticism,
to
and we cannot
open
decision would not have been
”
Co.,
one.’ Rent-A-Car
wrong
refusing
was
say
[s]he
409,
v.
(quoting
Like the decision whether motion, a modified give a trial decision whether for an abuse of subject Allen to review Court charge 538, State, 139, 144, 270 Md. 310 A.2d Kelly discretion. See v. (1973). 542 from legal eponym instruction” is a derived
The term “Allen the use Supreme opinion “approving] Court a United States asked to specifically an instruction in which the Kelly v. their differences and reach verdict.” conciliate (1973) 538, State, 139, 1, 540 n. 1 270 Md. 140 n. 310 A.2d 91 States, v. 41 (citing Allen United 164 U.S. 17 S.Ct. (1896)). L.Ed. 528 jurors, disap-
Due to concerns about coercion of “we have of an Allen have proved giving original charge, instead approved closely language an instruction that follows the 5.4) 15—4.4 (formerly [ABA] Standard Standard Stan- (1978, Supp.), provided dards Criminal Justice there language is no deviation substance from the of that stan- State, 398, 409, dard.” Graham v. 325 Md.
(1992)
State,
622-23,
v.
(citing Goodmuth
302 Md.
(1985);
State,
88, 96,
A.2d 682
Burnette v.
280 Md.
A.2d
(1977);
139, 144,
Kelly
v.
The intermediate Nash, it in its error, opinion to when relied according judge’s State, 270 Md. Kelly in v. opinion here on this Court’s (1973), that, charge Allen stating in “for the modified A.2d 538 exist,” concluding must deadlock appropriate, be not have been because charge proper Allen “would a modified Ac- indication that the was deadlocked.” there was no Nash, charge an suggest does not Allen cording Kelly and, contrary, to the in deadlock situations may given only be in circumstances. charge an Allen other condones the use of of a Allen we have condoned the use modified Nash notes that that the trial begin, concludes charge before deliberations court “failed to assess the appellate court and intermediate may have had requested instruction effectiveness in the note.” addressing the concern raised have argument. long in Nash’s We can find no merit We ABA to whether the recommended held “that the decisions as it ... employ used and ‘when to charge should be Allen-type ” judge.’ discretion of the trial left to the sound are best (1985) 624, 630, v. Mayfield 538). A.2d at Further- (quoting Kelly, more, electing “to exercise of that discretion judge’s a trial ABA with or without an deliberating, continue have the Aiiew-type charge, to declare a mistri- approved or whether al,.... only for reversal when ground will furnish a of discretion because of an abuse appellant demonstrates Id. at 490 A.2d at particular in a case.” circumstances added). (emphasis 691-92 contentions, fall well shaky premises, rest on
Nash’s
regard
an
of discretion with
demonstrating
abuse
short
charge
the modified Allen
give
refusal
matter,
Nash’s
despite
As a threshold
case.
present
*33
appellate posture
key
request
pattern
to his
for the
clause,
instruction was the last
which he claims “addresses the
note,”
issue raised in the
jury’s
faults the trial
that,
in
considering
he did not refer to that clause
his
request
judge.
contrary,
actual
to the trial
To the
the context
in which counsel
posed
request
since the Court
—“And
I
Tuesday morning,
maybe
won’t be here
think that the Court
give
at this time should
them the Allen Charge”
sugges-
—is
for,
tive of concerns
a perceived,
potential
about
deadlock.
Additionally, we are not persuaded by Nash’s criticism of
the intermediate appellate court’s statement that for the modi-
fied
charge
applicable
Allen
to be
“a deadlock must exist.”
that,
Although Nash is correct
in Kelly, we condoned the use
of the modified Allen
charge
at least one other context than
specifically, prior to the commencement of delib-
deadlock—
erations —that
is
only
other context in which we have
approved expressly the use of the
charge.
modified Allen
See
Butler,
185,
(“Originally,
19,
We need before us is question in this case. The the instruction given trial vested with a wide judge, decision of the whether the in to a modified choosing give whether breadth of discretion present to the instruction the give to refuse charge, Allen “ any imagined from center mark was ‘well removed case of what that court beyond fringe and the reviewing the court ” Alexis, 457, 477- minimally acceptable.’ See deems (quoting Gray, 1254-55 1064). facts of the case and present the A.2d Given pre- has not charge jurisprudence, Nash prior Allen Court’s which to conclude that basis from sented us with sufficient we hold lacking. Accordingly, was so trial court’s decision refusing not abuse her discretion judge that the trial did charge. the modified Allen give Nash’s to request Maryland Rule 4- Judge Did Not III. The Trial Violate 326(d) argument, now Nash’s final
We reach day Friday for the violated decision to recess judge’s 4-326(d) response” an “unsuitable Rule and was Maryland Nash’s portion argument first the of the Note. We address of Rule 4- meaning language of the concerning plain 326(d). (d), only which is the The first sentence subsection reads: “The argument, the Rule relevant Nash’s part of Attorney of the defendant and the State’s notify court shall jury pertaining from the any communication receipt any and in event practicable as promptly the action as before (em 4-326(d) Rule to the communication.” Md. responding added). re imagines that the words “before Nash phasis “per to a note presuppose response in the Rule sponding” contends, Because, Note in Nash taining to the action.” meaning action within the case present pertained the trial Rule, required, response not constitute a of the Note did following receipt actions that recess by the Rule. He asserts response contemplated as “the issue raised the note” addressing directly ing without regulatory use plain meaning fit does not within Nash offers the Merriam-Webster “responding.” the word Dictionary definition of the word “respond,” which includes “to say something answer,” in return: make an argues the trial did not “make an answer” to the foreman’s expressed concern in the Note. reject plain language argument.
We Nash’s Even assum ing, for present purposes, the Note “pertain[s] to the action,” and that a response was think required, we judge’s actions are not violative of the plain language of the Rule. The thing first did when the was brought back to the court room was to advise the that she and Next, counsel were aware of the Note. she I’m stated “what going to do at this time is to excuse you for but today, you’re *35 going to have to return on Tuesday to your continue delibera tions,” gave before she additional instructions —which Nash seems to ignore that, in pertinent part, implicitly address the — Note, issue in raised the “As I’ve instructed you, your decision must be based upon what has presented been during here the course of the trial. I expect that you will comply my with instructions. It’s only way the this process works.” In our view, her statements “say did in something return” to the Note, and thus constituted a response meaning within the the Rule’s language. that,
Nor are we persuaded, to the extent that judge’s the actions response, constituted a it was an unsuitable one under Although, sirgues, judge gave as Nash the trial never an instruction mentioning explicitly jurors that change the position should not their verdict, merely to give reach a the following did the instruction closing arguments: before represent Your verdict must judgment considered of each words, and must be unanimous. In other you agree. all 12 of must You must fairly consider and decide impartially. this case You bias, perform duty are to prejudice, without any party. or as to swayed by You sympathy, should not be prejudice, public opinion. or making your In you decision must consider the evidence in this case. instruction,
That
combined with the
provided
additional instructions
weekend, was,
immediately
recessing
view,
holiday
before
for the
in our
apprise
sufficient to
duty
fairly
of their
to deliberate
impartially.
generally
presumed
"Jurors
are
to follow the court’s
instructions,
Dillard,
including curative instructions.”
Ezenwa,
(quoting
1115).
3 A.3d at
Md.App.
at
572 A.2d at
here,
in
v.
that
unlike
State
with the State
agree
the Rule. We
(2008),
cases on
and similar
Md.
Baby, 404
relies,13
question
from
pose
the Note did
Nash
clarifica
required specific
law that
applicable
jury regarding
(requiring
JUDGMENT BY PETITIONER. BE PAID COSTS TO AFFIRMED. McDONALD, JJ., *36 dissent BATTAGLIA, ADKINS, and part.
McDONALD, J., BATTAGLIA and dissenting, which ADKINS, JJ., part. in join, dissenting his usual Harrell has done majority, Judge behalf of the
On case law in this area. of the thoughtful and review thorough that Majority’s conclusion However, I cannot agree in further any inquiry conducted not have the trial need this case. 623, (1997), State, A.2d 261 347 Md. on Lovell v.
13. Nash also relies
1033,
(4th
Lines, Inc.,
509 F.2d
Motor
Price v. Glosson
and
Cir.1975),
Baby.
are discussed in
both of which
foreman
note from the
received a
Here the trial
in
had
earlier
the deliberations
juror,
that a
who
reporting
had more
guilty,
was not
a
that the defendant
belief
expressed
for the sole
change
her vote
stated an intention
recently
Majority
concedes
home sooner. While
going
purpose
face,”
ultimately
on its
it
this note
“troublesome
that
was
alarming
not raise “the
type
that the note did
concludes
in which this Court held that
prior
factual issues” as two
cases
court to
a defense
deny
an abuse of discretion for a trial
it was
conducting
investigation.
for a
without
further
motion
mistrial
77-78, 85,
Perhaps the foreman
said,
not
what she
fact had
juror did
mean
her oath to decide the
based on the evidence.
abandoned
case
product
instinct that the note was a
Perhaps
the trial
State,
(2010), during
415 Md.
We like to think that our their approach task like the one in Twelve Men Angry ultimately did—where an earnest examination of the evidence prevails over the desire for an early obligation, exit from a civic overcomes whatever preju dices and predispositions individually bring jury we to the room, and to work a jury enables toward consensus that is a just worked, result.2 that is how this I Perhaps jury hope But, view, my that is true. when a jury reports foreman that one of the ready concede his or her vote for law, reasons unrelated to the evidence a trial should do more than that it simply hope is not true.
Judge join and Judge opinion. BATTAGLIA ADKINS (Orion-Ñova Angry In the film Twelve Men Productions screen Rose), play Reginald preliminary in a murder case takes a vote upon entering room and finds itself to be 11-1 in favor of hold-out, Through questioning by jurors’ conviction. the lone and the prodding exposes aspirations of one another that their individual predispositions, they eventually prosecution reach consensus that the Ellsworth, proven beyond had not its case a reasonable doubt. See One (2003). Inspiring Jury, Ironically, 101 Mich. L.Rev. 1387 it been has aspect portrayed noted that at least one of the deliberation in the film might itself constitute misconduct. Id. 1399 n. 4.