Nash v. State , 439 Md. 53 ( 2014 )

Troy Sherman Nash v. State of Maryland, No. 60, September Term, 2013
Criminal Law – Allegations of Juror Misconduct – Voir dire –
The trial judge did not abuse her discretion by failing to conduct a sua sponte voir dire of
the jurors before denying defendant’s mistrial motion, which was based on a note from
the foreperson, received during deliberations after 5:00 PM on the Friday before a three-
day holiday weekend, stating that another juror indicated a willingness to change her
initial position of voting not guilty if it would allow her to go home and not return. The
note did not constitute the type of excessive or egregious juror misconduct for which the
Court applied previously a rebuttable presumption of prejudice that would require voir
dire by the trial judge, nor were there factual issues that had to be resolved necessarily by
voir dire. Additionally, it was not necessary for the trial judge to conduct voir dire to
obtain assurance from the jurors of their ability to render an impartial verdict.
Criminal Law – Jury Instructions – Modified Allen Charge –
The trial judge did not abuse her discretion by refusing defense counsel’s request to give
the modified Allen instruction, reflected in Maryland Criminal Pattern Jury Instruction
2:01, following the jury note issued while deliberations were in progress, but before a
deadlock was confirmed.
Criminal Law – Maryland Rules – Adequacy of Response to a Jury Note –
The trial judge did not violate Maryland Rule 4-326(d) by choosing, after receiving a
note from the foreperson of the jury, to recess for a holiday weekend with additional
instructions reminding the jurors of their duties. Although the judge’s additional
instructions did not refer explicitly to the concern raised in the foreperson’s note to the
court, the judge’s actions constituted a response, within the plain meaning of the Rule’s
language, and the response was not unsuitable under the circumstances.
Circuit Court for Prince George’s County
Case No. CT 09-1808X
Argued: 6 March 2014
IN THE COURT OF APPEALS OF
MARYLAND
No. 60
September Term, 2013
TROY SHERMAN NASH
v.
STATE OF MARYLAND
Barbera, C.J.,
Harrell,
Battaglia,
Greene,
Adkins,
McDonald,
Watts,
JJ.
Opinion by Harrell, J.
Battaglia, Adkins, and McDonald, JJ.,
dissent in part.
Filed: June 20, 2014
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.
PERTINENT FACTS & PROCEDURAL BACKGROUND
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
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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:
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 Honor. 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
1
Monday, 5 September 2011, was a court holiday.
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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.
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 –
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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.
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. 2
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:
2
At the time of jury selection, the court and the parties thought the case would be over by
the end of that week.
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The Court: All right. I have received your note and counsel is aware of
your notes – or your note as well.
And 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. I
expect to see you on Tuesday, at 9:30. . . .
Counsel asked to approach the bench and the following conversation occurred:
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.
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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. 3 Before the jury was brought back into the courtroom, defense counsel renewed
Nash’s earlier mistrial motion based on the contents of the Note. The court denied the
motion.
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
3
The record does not indicate the precise time at which the jury alerted the court that it
reached a verdict.
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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 intermediate appellate court determined that the instruction would
not have been proper because a jury deadlock did not exist. With respect to the last part
of Nash’s tri-fecta wager, that the trial judge violated Rule 4-326(d), the Court of Special
Appeals concluded that the trial judge’s actions constituted an adequate response to the
Note.
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Nash filed timely a Petition for Writ of Certiorari with this Court. We granted
Nash’s Petition. Nash v. State, 432 Md. 466, 69 A.3d 474 (2013). We shall consider the
following question: 4
4
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 jury, (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 (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 “conduct[ing] independent research
(continued…)
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Did the trial court commit reversible error when, after receiving a jury note stating
that one juror indicated a willingness to change her vote from not guilty to guilty
“because she want[ed] to go home and not return,” it (1) denied the defendant’s mistrial
motion without first conducting voir dire of the jury, (2) refused defense counsel’s
request to give a modified Allen instruction, and, (3) chose to recess over a three-day
weekend and have the jurors return to continue deliberations?
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
(…continued)
or bring[ing] 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 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”?
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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 motion; or, (3) receive assurance from the
jurors that they could render a fair and impartial verdict in light of the alleged
misconduct. Failing to accomplish one or more of those things, Nash asserts, was an
abuse of the trial judge’s discretion and constitutes an error requiring reversal of Nash’s
conviction.
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 cases, 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
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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 standard. Although “abuse of discretion” is a term of art
that courts have struggled continuously to define, we reiterated recently what we deem to
be an appropriate description of the standard:
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
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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).
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, 388 Md.
at 540–41, 880 A.2d at 330 (citing Tierco Maryland, Inc. v. Williams, 381
Md. 378, 413, 849 A.2d 504, 525 (2004)).
Alexis v. State, ___ Md. ___ (2014) (No. 45, September Term, 2013) (filed 24 March
2014) (slip. op. at 19-20).
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, ___
Md. ___ (slip. op. at 20) (“The notion of a range of discretion . . . is not an immutable and
invariable criterion in all of its myriad applications.” (quoting Canterbury Riding Condo.
v. Chesapeake Investors, Inc., 66 Md. App. 635, 648, 505 A.2d 858, 864 (1986))).
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Rather, the standard represents a flexible model whose range is dependent on the type of
discretionary decision a trial judge is called upon to make and the relevant circumstances
of the case. See Washington v. State, 424 Md. 632, 668, 37 A.3d 932, 952-53 (2012)
(noting that, with respect to a motion for a new trial, a trial judge’s discretion “‘is not
fixed and immutable’” but “‘will expand or contract’” based on the circumstances of the
case (quoting Merritt v. State, 367 Md. 17, 30, 785 A.2d 756, 764 (2001))).
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, ___ Md. ___ (slip.
op. at 20) (noting that the range of a trial judge’s discretion when assessing the merits of
a mistrial motion, as with other decisions “[i]n handling the progress of a trial,” is “‘very
broad and [his or her ruling] will rarely be reversed,’” as compared to other
circumstances in which “‘the discretionary range is far more narrow’”) (quoting
Canterbury Riding Condo., 66 Md. App. at 648, 505 A.2d at 864). Competing forces
affect potentially the range of discretion with respect to the particular mistrial motion in
this case. On the one hand, an allegation of juror bias or misconduct may implicate a
defendant’s constitutional right to a fair and impartial verdict. See Dillard v. State, 415
Md. 445, 454-55, 3 A.3d 403, 408-09 (2010); Jenkins v. State, 375 Md. 284, 299-300,
825 A.2d 1008, 1017-18 (2003). On the other hand, declaring a mistrial is an extreme
remedy not to be ordered lightly. See Burks v. State, 96 Md. App. 173, 187, 624 A.2d
1257, 1265 (1993) (“It is rather an extreme sanction that sometimes must be resorted to
when such overwhelming prejudice has occurred that no other remedy will suffice to cure
the prejudice.”); Ezenwa v. State, 82 Md. App. 489, 518, 572 A.2d 1101, 1115 (1990)
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(“Because [a mistrial] is an extraordinary measure, it should only be granted where
manifest necessity as opposed to light or transitory reasons, is shown.”).
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, 375 Md. at 327-30, 825 A.2d at 1034-35;
see also Wardlaw v. State, 185 Md. App. 440, 453-54, 971 A.2d 331, 339 (2009). The
second, ancillary circumstance occurs when a material and relevant fact regarding a
juror’s conduct is unknown or obscure and must be resolved before a trial judge has
“sufficient information to determine whether the presumption of prejudice attached to the
[conduct] or to rule on [the] motion for a mistrial.” Dillard, 415 Md. at 457, 3 A.3d at
410. Nash asks us to consider a third circumstance, whether the absence of a sua sponte
voir dire by the trial judge in the present case constituted reversible error for failure to
obtain assurance from the jurors that they could render a fair and impartial verdict.
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, 375 Md. 284, 825 A.2d 1008 (2003). In Jenkins, it was claimed that the
trial court erred in denying the defendant’s motion for a new trial based on an assertion
that there was improper interaction between a State’s witness and a juror during the trial.
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The State’s witness, a detective, and the juror happened (by chance) to attend the same
weekend religious retreat, occurring during a recess in Jenkins’s trial, where “in sum,
they spoke of the trial, knew of each other’s role, intentionally violated a court order, . . .
went to lunch together, discussed personal details of their lives . . . and then failed to
timely report the misconduct to the proper authorities.” 375 Md. at 323-24, 825 A.2d at
1031-32.
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, 375 Md. at 288,
825 A.2d at 1010. Jenkins appealed to the Court of Special Appeals, which affirmed the
judgment of the Circuit Court, concluding that the trial court did not abuse its discretion
in finding that, if a presumption of prejudice was applicable, the State rebutted it. See id.
(citing Jenkins v. State, 146 Md. App. 83, 116, 806 A.2d 682, 701 (2002)).
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, 347 U.S. 227, 229, 74 S. Ct. 450, 451, 98 L. Ed. 654, 656 (1954):
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“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, 375 Md. at 301-02, 825 A.2d at 1018 (quoting Remmer, 347 U.S. at 229, 74 S.
Ct. at 451, 98 L. Ed. at 656) (citations omitted) (emphasis added in Jenkins). We
discussed the facts of Remmer, which involved an unknown person contacting a juror to
suggest that the juror could profit from finding a verdict in favor of the defendant. The
juror alerted the court. The trial judge held an ex parte hearing, without notifying the
defendant of the incident. Additionally, the FBI conducted an investigation of the
incident, which included questioning the jurors, during the trial. See Jenkins, 375 Md. at
302, 825 A.2d at 1019 (discussing Remmer). The Supreme Court held that the
circumstances were prejudicial presumptively and remanded the case with instructions to
the trial court to hold a hearing in which all parties could participate. Id.
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] of Eades v. State, 75 Md. App. 411, 541 A.2d 1001 (1988), and Allen v.
State, 89 Md. App. 25, 597 A.2d 489 (1991) . . . .” Id. Eades involved a juror who,
during a weekend recess, asked her husband, who was an Assistant United States
Attorney, questions about the admissibility of hearsay evidence. The Court of Special
Appeals held that, although the Remmer presumption of prejudice applied likely, the trial
-17-
court did not abuse its discretion in denying a motion for a new trial, after the court
questioned the juror and determined that, because the juror did not discuss anything
substantive about the facts of the case or how the jury was deliberating, the juror’s
question to her husband was innocuous. See Eades, 75 Md. App. at 424-25, 541 A.2d at
1008.
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, 89 Md. App. at 47-48, 597 A.2d at 500.
After our review in Jenkins of Remmer, Eades, and Allen, we rejected the State’s
argument that two later Supreme Court opinions 5 eroded the application of the Remmer
presumption to cases such as Jenkins’s, “where egregious juror and witness misconduct
occurs.” Jenkins, 375 Md. at 319, 825 A.2d at 1028 (emphasis in original). Even if “the
Supreme Court has intended to erode the presumption of prejudice in cases such as the
case sub judice, an interpretation with which we do not agree, we hold that Maryland’s
own Declaration of Rights requires such a presumption in limited egregious cases of juror
5
United States v. Olano, 507 U.S. 725, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993); Smith
v. Phillips, 455 U.S. 209, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982).
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and witness misconduct to ensure that a criminal defendant receives adequate due
process.” Id.
The Court of Special Appeals revisited the presumption of prejudice principle in
Wardlaw v. State, 185 Md. App. 440, 971 A.2d 331 (2009). In Wardlaw, the trial court
received a note from the jury, on the second day of deliberations, indicating that one of
the jurors conducted Internet research on oppositional defiant disorder (ODD), a mental
problem afflicting purportedly one of the State’s witnesses, and “found that lying was a
part of the illness.” The note stated also “I am concerned that her statement [regarding
ODD] is an undue influence on the rest of the jurors. Was this okay?” An additional
sentence in the note, written in different handwriting than the rest of the note’s contents,
stated “And the foreman needs to know is lying part of the illness.” See Wardlaw, 185
Md. App. at 445, 971 A.2d at 334. After reading the note to counsel for the parties, the
trial judge denied defense counsel’s motion for a mistrial. Rather than declaring a
mistrial, the judge opted to give a curative instruction reminding the jurors of the given
preliminary instruction to refrain from conducting any research or investigation. The
judge explained that the jurors should disregard any research or discussion of such
research that occurred during deliberations, and advised the jurors to base their verdict
only on the evidence presented in the courtroom during the trial and nothing else.
Wardlaw, 185 Md. App. at 445-46, 971 A.2d at 334-35.
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
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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, 185 Md. App. at 452, 971 A.2d at 338 (citing Jenkins, 375 Md. at 319, 825
A.2d at 1008; Butler v. State, 392 Md. 169, 189-91, 896 A.2d 359 (2006); Summers v.
State, 152 Md. App. 362, 375, 831 A.2d 1134 (2003)). The Court of Special Appeals
concluded that, because the trial judge did not voir dire the jury regarding the effect of
the juror’s research and statements on the deliberative process, “the presumption of
prejudice was not rebutted and the trial court denied the motion without exercising its
discretion.” Wardlaw, 185 Md. App. at 453-54, 971 A.2d at 339.
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, 351 Md. 387, 718 A.2d 1125 (1998), on which the State
relies here, we held the trial judge did not abuse his discretion when he declined to voir
dire the jury, prior to denying the defendant’s motion for a mistrial, regarding
information displayed on an electronic bulletin board in the courthouse showing that the
defendant had two other criminal cases pending simultaneously against him. 351 Md. at
396, 718 A.2d at 1129. In doing so, we upheld the trial judge’s finding that there was no
reasonable likelihood that the jurors saw or were prejudiced by the information on the
bulletin board, and determined that “[t]he trial judge in the instant case exercised the
discretion vested in him to deal with the ‘problem’ presented by the electronic bulletin
board.” Bruce, 351 Md. at 393, 718 A.2d at 1128.
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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, 204 Md. App. 593, 622-25, 42 A.3d 646,
663-64, cert. granted, 427 Md. 606, 50 A.3d 605, and cert. denied, 427 Md. 608, 50 A.3d
607, and cert. granted, 429 Md. 81, 54 A.3d 759 (2012), rev'd on other grounds sub
nom. Fields v. State, 432 Md. 650, 69 A.3d 1104 (2013). Rather, the intermediate
appellate court opined, although the jurors should not have looked up the word, “if a
mistake this relatively minor could precipitate a mistrial, the criminal justice system
would collapse.” 204 Md. App at 625, 42 A.2d at 664. 6
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, 392 Md. 169, 896 A.2d 359
(2006), the court received three notes from the jury. The first note, received at 8:30 PM,
after four-and-a-half hours of deliberations, stated that the jurors could not agree. Butler,
392 Md. at 174-75, 896 A.2d at 362-63. Defense counsel moved for a mistrial. The State
requested a modified Allen charge. Butler, 392 Md. at 175, 896 A.2d at 363. The trial
judge found that an Allen charge would be coercive at that point, and decided to recess
for the evening and have the jury return the following morning to resume deliberations.
Butler, 392 Md. at 175-76, 896 A.2d at 363. The next morning, the court received a note
6
In Colkley, counsel for both defendants declined the trial judge’s offer to voir dire the
jurors. 204 Md. App at 624 & n.2, 42 A.2d at 664 & n.2.
-21-
from the jury requesting to watch the videotape of closing arguments. Butler, 392 Md. at
176, 896 A.2d at 363. While the court was deciding whether to allow the jurors to watch
the tape, the jury sent out a third note, which stated, “We have one juror who does not
trust the police no matter the circumstance.” Id.
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.” 392 Md. at 177, 896 A.2d at 364 (emphasis in original). The court declined to
give an Allen charge, but agreed to allow the jurors to watch the videotape of closing
arguments. Id.
The jurors were brought into the courtroom and the judge advised them he would
let them watch the videotape. In regard to their third note, the trial judge stated:
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.”
392 Md. at 178, 896 A.2d at 364. Counsel for both defendants objected, and moved for a
mistrial on the ground that the judge’s instruction was coercive. Butler, 392 Md. at 178-
79, 896 A.2d at 365. The court denied the motions, and the jurors resumed deliberations
after watching the videotape of closing arguments. Butler, 392 Md. at 179, 896 A.2d at
-22-
365. The jury found Butler guilty on all counts and his co-defendant, Lowery, guilty on
the conspiracy counts. Id.
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.” 392 Md. at 192, 896 A.2d at 373. Prior to declaring our holding, however, we
touched upon the presumption of prejudice principle. After noting Jenkins for the
proposition that voir dire is a way in which to assess juror bias or prejudice, we
concluded that “[t]he trial judge, however, is not required to conduct voir dire every time
there is an allegation that the jury is prejudiced.” See Butler, 392 Md. at 189-90, 896
A.2d at 371-72 (discussing Jenkins and Bruce).
Turning to Nash’s case, 7 we decline his invitation to apply the presumption of
prejudice doctrine in his case. Although the alleged statement of the Subject Juror, if
7
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 of juror misconduct, but did not apply it directly
or elaborate on its application. They are distinguishable significantly also on their facts.
See, e.g., Williams v. State, 394 Md. 98, 116, 904 A.2d 534, 545 (2006) (“Intentional
concealment of relevant facts or the giving of false answers by a juror during the voir dire
examination constitutes misconduct . . . and the occurrence of such misconduct raises a
rebuttable presumption of prejudice . . . . Prejudicial jury misconduct constitutes grounds
for a new trial.” (quoting People v. Blackwell, 236 Cal. Rptr. 803, 805 (Cal. Ct. App.
1987))); Wright v. State, 131 Md. App. 243, 256, 748 A.2d 1050, 1057 (2000) (“In
assessing the necessity of a new trial, the California Supreme Court stated the ‘well
settled’ rule that ‘such juror misconduct raises a presumption of prejudice that may be
rebutted by proof that no prejudice actually resulted.’ Finding no factor to rebut that
(continued…)
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true, is troublesome on its face, it is different for two reasons, in our view, from the cases
in which we applied the presumption. First, we agree with the State’s argument that the
reputed statement of the Subject Juror constituted but the possibility of future
misconduct. Here—unlike in the cases considered so far in this opinion concerning juror
contact with witness, parties to the case, or third parties, and independent investigations
by jurors—the judge had the ability to prevent prejudice from occurring to Nash. In other
words, the actual misconduct would have been if the Subject Juror acted on his or her
stated desire of reaching a verdict merely to go home and not return, as opposed to
threatening to act in that fashion. The judges in the cases discussed here attempted to
cure any prejudice through voir dire questions, curative instructions, and efforts to obtain
assurances of the jurors’ abilities to reach impartial verdicts, but the misconduct had
taken place already in the form of juror contact with witnesses or third parties, or the
receipt and dissemination of outside evidence through independent investigations by
jurors.
Nash relies on Wilson v. Morris, 317 Md. 284, 563 A.2d 392 (1989), superseded
by statute on other grounds, Maryland Rule 5-407, as recognized in Tuer v. McDonald,
347 Md. 507, 701 A.2d 1101 (1997), in an effort to “illustrate the flaw in the State’s
argument that the note in this case presented only the possibility of juror misconduct.”
The presumption of prejudice principle was not mentioned in Wilson, perhaps because it
(…continued)
presumption, the court reversed the defendant's conviction.” (citations omitted) (quoting
People v. Holloway, 790 P.2d 1327 (Cal. 1990), overruled on other grounds, People v.
Stansbury, 889 P.2d 588 (Cal. 1995))).
-24-
was a personal injury case and, thus, did not address the constitutional rights of a criminal
defendant. Nonetheless, Nash contends that it stands for the proposition that “an
allegation of patent juror bias” is all that is necessary to require a sua sponte voir dire by
the court in response.
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, 317 Md. at 302,
303, 563 A.2d at 400, 401. Therefore, the question in Wilson was whether a preexisting
“patent juror bias” should have precluded the particular juror from being empaneled in
that case. Id. Here, there is no evidence that the Subject Juror had a preexisting patent
bias. To the contrary, the Note asserts that the Subject Juror stated, at some point earlier
in the deliberations, a desire to find Nash not guilty, thus foreclosing the conclusion that
she had a preexisting bias against Nash prior to jury selection or the commencement of
deliberations. The trial judge’s assessment that the Subject Juror’s alleged statement was
the result of fatigue, as opposed to a patent bias, was reasonable given the circumstances.
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, 375 Md. at 319, 825 A.2d at 1028. A statement made by a
single juror, which did not concern the evidence or any of the witnesses, does not have
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the same likelihood of poisoning the well of deliberations as the type of juror contact
with witnesses, parties to the case, or third parties that took place in Remmer, Jenkins,
Eades, and Allen. See, e.g., Summers v. State, 152 Md. App. 362, 379, 831 A.2d 1134,
1143 (2003) (noting that an improper discussion between two jurors outside the presence
of the rest of the jury results in a “greatly diminished” concern of a tainted verdict when
compared to contact between a juror and a third party). Nor is such a statement likely to
have as harmful an effect on deliberations as the type of independent investigation and
resulting introduction of prejudicial “outside” evidence that occurred in Wardlaw. See
Dillard, 415 Md. at 469, 3 A.3d at 417 (Adkins, J., dissenting) (“[T]here is no possibility
that the jurors were influenced by some ex parte contact, or that their verdict was tainted
by some inappropriate outside information or opinion. This fact isolates the instant case
from Jenkins and [similar] cases . . . .”).
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,
375 Md. at 315, 825 A.2d at 1026. Because the presumption does not apply to the facts
of the present case, the burden of proof as to the mistrial motion did not shift from Nash,
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and, thus, the trial judge did not inherit the responsibility to conduct a voir dire sua
sponte (in the absence of a request for voir dire from either of the parties).
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. 8 Because Nash failed to request voir dire at the time of his motion for a mistrial, the
trial judge did not abuse her discretion, on presumption of prejudice grounds, by
refraining from conducting voir dire sua sponte. 9
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
8
Nash argues additionally that it would be impossible for him to prove prejudice in light
of the longstanding rule against impeaching a verdict once rendered. See Black v. State,
426 Md. 328, 343-44, 44 A.3d 362 (2012) (citing Stokes v. State, 379 Md. 618, 637, 843
A.2d 64, 75 (2004); Williams v. State, 204 Md. 55, 70, 102 A.2d 714, 721 (1954)). His
argument misses the point—the burden of proving prejudice from the Note belonged to
Nash before the verdict was rendered. That prejudice, if any, could have been sorted-out
or cured potentially through voir dire, had Nash requested it. The trial judge’s duty to
conduct voir dire sua sponte arises only where the presumption of prejudice applies (or,
as discussed infra in the following section of this opinion, where factual issues must be
resolved).
9
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.
-27-
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, 415 Md. 445, 3 A.3d
403 (2010). The question of juror misconduct arose in that case when, during a lunch
break while the trial was in progress, two jurors passed in a courthouse hallway two of
the State’s primary witnesses, both law enforcement officers who had testified, patted one
of them on the back, and said, “Good job.” Dillard, 415 Md. at 451, 3 A.3d at 406. The
officers did not respond. Rather, they notified the prosecutor of the incident, who
notified the court and defense counsel. Id. At Dillard’s request, the trial judge brought in
the jurors so that the officers could identify which jurors approached them, but the judge
did not voir dire the jurors (nor did Dillard or his counsel request voir dire). Dillard, 415
Md. at 452, 3 A.3d at 407. The trial judge denied defense counsel’s motion for a mistrial
and his request to replace one of the offending jurors with the remaining alternate juror.
Id. Ultimately, the jury convicted Dillard of three of the six offenses with which he was
charged. Id.
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
-28-
jurors followed the trial judge’s subsequent instructions regarding the State’s burden of
proof and the presumption of innocence. Dillard, 415 Md. at 453, 3 A.3d at 407-08.
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, 415 Md. at 455-56, 3 A.3d at 409 (citing Remmer, 347
U.S. at 229, 74 S. Ct. at 451, 98 L. Ed. at 656; Jenkins, 375 Md. at 340-41, 825 A.2d at
1041). We could not “determine from the record whether the contact between the jurors
and Detective Smith was sufficiently egregious to create a presumption of prejudice to
Dillard.” Thus, we concluded that the trial court abused its discretion by denying the
mistrial motion without conducting voir dire to investigate factual issues arising from the
juror-witness contact. We explained the problem with the trial judge’s failure to resolve
the factual issues:
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
-29-
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, 415 Md. at 458, 3 A.3d at 410-11 (internal citations omitted).
Nash relies also on Johnson v. State, 423 Md. 137, 31 A.2d 239 (2011). Johnson
involved juror access to factual information not presented during the trial. During
deliberations, the trial judge received a note stating the following: “One of the jurors
turned on the cell phone (using their own battery) and found a call was placed to
[Defendant] at 3:08 AM. What should we do with this information disguard [sic] it?”
Johnson, 423 Md. at 144, 31 A.2d at 243. The note referred to at least one of two cell
phones that were admitted into evidence, presumably without batteries or with dead ones,
and followed an earlier note in which the jurors inquired as to whether there was any
evidence to corroborate a key witness’s testimony that he received a call from the
defendant at 3:08 AM on the morning of the crime in question. Johnson, 423 Md. at 143-
44, 31 A.2d at 243.
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, 423 Md. at 144, 31 A.2d at 243. The judge advised the parties and
their counsel of the note indicating that a juror used the battery from his cell phone to
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conduct an investigation into the evidence. Defense counsel moved for a mistrial.
Johnson, 423 Md. at 145, 31 A.2d at 244. Rather than granting the mistrial motion, the
judge elected to admonish the jury for violating his earlier instruction, reminded them to
base their deliberations only on evidence presented during the trial, and instructed them
to strike from their memories any additional evidence that was revealed by the use of the
cell phone and any related discussion that may have occurred during their deliberations.
Johnson, 423 Md. at 145-46, 31 A.2d at 244. Following that instruction, the judge asked
the jurors, “Now is there anyone who is unable to comply with that instruction during
deliberation? Raise your hand.” None of the jurors responded. Johnson, 423 Md. at
146, 31 A.2d at 244. Four and a half hours later, the jury returned a verdict of “guilty” on
four charges and “not guilty” on several other charges. Johnson, 423 Md. at 146, 31
A.2d at 245. The judge denied the defendant’s motion for a new trial based on the jury
conduct involving the cell phone. Johnson, 423 Md. at 147, 31 A.2d at 245.
On direct appeal, the Court of Special Appeals, in an unreported opinion, affirmed
the judgment of the circuit court. The intermediate appellate court determined that: the
juror’s conduct did not rise to the level of conducting outside independent research; the
jurors informed immediately the court; the evidence discovered was not in contradiction
to testimony elicited during trial; and, following the judge’s instructions and polling of
the jury, the judge could observe the demeanor of the jurors and the impact on them of
his curative instructions. Id. Accordingly, the appellate court was “unable to conclude
that the juror’s action in placing a battery into the cell phone amounted to egregious
misconduct.” Id.
-31-
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, 423 Md. at 151, 31 A.2d at
247. Instead, relying primarily on Dillard, we held that the trial judge’s response “fell
short of what was necessary before the court could have properly exercised its discretion
to deny the requested mistrial,” because the judge failed to conduct voir dire to resolve
factual questions, such as “the identity of the investigating juror who obtained the
information from the cell phone, who among the remaining jurors was aware of what the
juror had learned, or the degree to which the extrinsic and highly prejudicial information
[affected] some or all of the jurors.” Johnson, 423 Md. at 154, 31 A.2d at 249.
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
would have had little or no material bearing on our conclusion as to application of the
presumption. The question, then, is whether the trial judge lacked sufficient information
upon which to exercise her discretion in ruling on Nash’s motion for a mistrial.
-32-
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, 423 Md. at 153, 31 A.3d
at 249. Nash argues that the Subject Juror’s reputed statement concerned the issue of his
guilt, and was, thus, of 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 of a key witness for the State. By
contrast, the Subject Juror’s supposed statement in the present case did not add to or
otherwise affect the universe of evidence upon which the jury as a whole was to base its
deliberation. Thus, 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 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.
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C. Obtaining Assurance of a Fair and Impartial Verdict
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 receiv[ing] 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,
185 Md. App. at 453, 971 A.2d at 339. Thus, a trial judge’s failure to conduct voir dire
in such an instance likely will be an abuse of discretion. Similarly, where there are
essential factual questions that must be answered before a judge has a sufficient quantum
of information on which to base the exercise of her discretion, voir dire of the jurors is
likely the only way that the judge may obtain access to the additional information he or
she needs, and, thus, a failure to voir dire in those circumstances constitutes necessarily
an abuse of discretion. As to the need to ensure fairness and impartiality, viewed in light
of the particular facts of the present case, there was more than one avenue available to the
trial judge before confronting the decision what to do with Nash’s mistrial motion. See,
e.g., Johnson, 423 Md. at 149, 31 A.3d at 246 (“[D]epending upon the nature, scope, and
timing of [alleged] misconduct, the judge may have one or more reasonable means of
curing possible prejudice to the defendant.”).
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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 judge’s chosen course was
the one we would have taken in his or her position. Alexis, ___ Md. ___ (slip op. at 19)
(citing North, 102 Md. App. at 14, 648 A.2d at 1032). Our task, as discussed supra, is to
determine whether the route the trial judge traveled “does not logically follow from the
findings upon which it supposedly rests or has no reasonable relationship to its
announced objective,” and, thus, constituted an abuse of discretion. Alexis, ___ Md. ___
(slip op. at 20) (quoting North, 102 Md. App. at 14, 648 A.2d at 1032). In doing so, we
must remember the trial judge’s unique role and distinct advantage in evaluating
questions of prejudice to a criminal defendant:
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, 326 Md. 270, 278, 604 A.2d 489, 493 (1992). That observation applies
equally to the trial judge’s ability to ascertain the demeanor of jurors with regard to
allegations of juror misconduct.
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.
-35-
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, ___ Md. ___ (slip. op. at 19-20) (quoting Gray, 388 Md. at 383,
879 A.2d at 1064), it was on point with what we suggested was an appropriate response
to very similar circumstances in Butler. In that case, after declining to apply a
presumption of prejudice to the note stating that a particular juror “does not trust the
police no matter the circumstance,” we stated the following:
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, 392 Md. at 190, 896 A.2d at 372.
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
10
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, 392 Md. at 181, 896 A.2d at
366. There is no coercion argument in the present appeal.
-36-
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, 392 Md. at 175-76, 896 A.2d at 363. Thus,
we cannot say here that it was grossly unreasonable for the trial judge to respond to the
Note by allowing the jurors to go home for the long holiday weekend, with an additional
instruction reminding them of their duties, before returning to continue their deliberations
the following Tuesday. 11
In reaching our conclusion as to the course of action chosen by the trial judge with
regard to acting on Nash’s mistrial motion, we decline to consider the events of Tuesday
morning, when the jurors resumed their deliberations and reached a verdict of guilt in
approximately one hour. In the State’s effort to convince us of the legitimacy of the
jury’s verdict, it notes that: the jurors all returned on Tuesday morning; the foreperson,
who signed the Note, expressed no further concern; and, none of the jurors voiced
concern about the verdict during the polling process. Conversely, Nash argues that: we
cannot require a foreperson or other juror to voice a concern repeatedly; the polling
process consisted of an opportunity to answer a particular question—“Is your foreman’s
11
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 (through voir dire), and assessing the demeanor of, the
particular juror who made the statement. No juror identification was made in Butler. In
our view, it is reasonable for a trial judge to sense fatigue, frustration, or restlessness
emanating from a jury as a group, particularly in light of the timing of the court’s receipt
of the Note in the present case.
-37-
verdict your verdict?”—not a general opportunity to speak; and, the speed with which the
jurors returned their verdict on Tuesday morning is evidence that the Subject Juror ended
promptly her jury service, in the fashion her earlier statement suggested.
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 of the standard of review by which we must measure
the trial judge’s denial of Nash’s mistrial motion. The determination of whether she
abused her discretion requires us to look only at whether her decision was within the
realm of rationality at the time that she made it—the preceding Friday evening. As we
discussed above, particularly in light of our analysis in Butler, we cannot say that the trial
judge’s actions on that Friday evening were so irrational.
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,”
-38-
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., 163 Md. 401, 408-09, 163 A.
702, 705 (1933). In the words of Justice Oliver Wendell Holmes, Jr., during his tenure
on the Supreme Judicial Court of Massachusetts, “‘The presiding ju[dge] was the best
judge whether [the juror’s conduct] did any harm in this particular case. If [s]he had
given the defendant a new trial h[er] decision would not have been open to criticism, and
we cannot say that [s]he was wrong in refusing one.’” Rent-a-car Co., 163 Md. at 409,
163 A. at 705 (quoting Commonwealth v. Poisson, 32 N.E. 906, 907 (Mass. 1893)).
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, 270 Md. 139, 144, 310 A.2d 538, 542 (1973).
The term “Allen instruction” is a legal eponym derived from a United States
Supreme Court opinion “approv[ing] the use of an instruction in which the jury was
specifically asked to conciliate their differences and reach a verdict.” Kelly v. State, 270
Md. 139, 140 n.1, 310 A.2d 538, 540 n.1 (1973) (citing Allen v. United States, 164 U.S.
492, 17 S. Ct. 154, 41 L. Ed. 528 (1896)).
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
-39-
language of that standard.” Graham v. State, 325 Md. 398, 409, 601 A.2d 131, 136
(1992) (citing Goodmuth v. State, 302 Md. 613, 622-23, 490 A.2d 682 (1985); Burnette v.
State, 280 Md. 88, 96, 371 A.2d 663 (1977); Kelly v. State, 270 Md. 139, 144, 310 A.2d
538 (1973)). We noted in Graham that Maryland Criminal Pattern Jury Instruction
(MCPJI) 2:01, which is now commonly referred to as a “modified Allen” instruction or
“Allen-type” instruction, conforms to the ABA Standard. Id. MCJPI 2:01, titled “Jury’s
Duty to Deliberate,” reads:
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 “conducted an
improper analysis by considering only deadlock situations” before denying his request for
use of the instruction, in which she relied on factors applicable only to deadlocks, such as
the length of deliberations leading up to the proposal to use the instruction.
-40-
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, 270 Md.
139, 310 A.2d 538 (1973), in stating that, “for the modified Allen charge to be
appropriate, a deadlock must exist,” and concluding that a modified Allen charge “would
not have been proper because there was no indication that the jury was deadlocked.”
According to Nash, Kelly does not suggest that an Allen charge may be given only in
deadlock situations and, to the contrary, condones the use of an Allen charge in other
circumstances. Nash notes that we have condoned the use of a modified Allen charge
before deliberations begin, and concludes that the trial court and intermediate appellate
court “failed to assess the effectiveness that the requested instruction may have had in
addressing the concern raised in the note.”
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, 302
Md. 624, 630, 490 A.2d 687, 691 (1985) (quoting Kelly 270 Md. at 143, 310 A.2d at
538). Furthermore, a trial judge’s exercise of that discretion in electing “to have the jury
continue deliberating, with or without an ABA approved Allen-type charge, or
whether to declare a mistrial, . . . . will furnish a ground for reversal only when the
appellant demonstrates an abuse of discretion because of circumstances in a particular
case.” Id. at 632, 490 A.2d at 691-92 (emphasis added).
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
-41-
charge in the present case. As a threshold matter, despite Nash’s appellate posture that
the key to his request for the pattern instruction was the last clause, which he claims
“addresses the issue raised in the jury’s note,” and faults the trial judge for not
considering that, he did not refer to that clause in his actual request to the trial judge. To
the contrary, the context in which counsel posed the request—“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”—is suggestive of concerns about a perceived, or potential for, deadlock.
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, 392 Md. at 185, 896
A.2d at 369 (“Originally, the Allen-type charge was given when the jury communicated
to the trial judge that they were deadlocked. Eventually, however, the Court allowed the
use of an Allen-type instruction to the jury before deliberations commenced, in addition
to the use of the Allen-type instruction under some circumstances if the jury appeared
deadlocked.” (citing Thompson v. State, 371 Md. 473, 810 A.2d 435 (2002); Goodmuth v.
State, 302 Md. 613, 490 A.2d 682 (1985); Mayfield, 302 Md. 624, 490 A.2d 687 (1985);
Burnette v. State, 280 Md. 88, 371 A.2d 663 (1977); Kelly, 270 Md. 139, 310 A.2d 538;
Leupen v. Lackey, 248 Md. 19, 234 A.2d 573 (1967))).
-42-
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.
We need not decide whether the trial judge could have given the instruction in this
case. The question before us is whether the decision of the trial judge, vested with a wide
breadth of discretion in choosing whether to give a modified Allen charge, to refuse to
give the instruction in the present case was “‘well removed from any center mark
imagined by the reviewing court and beyond the fringe of what that court deems
minimally acceptable.’” See Alexis, ___ Md. ___ (slip. op. at 19-20) (quoting Gray, 388
Md. at 383, 879 A.2d at 1064). Given the facts of the present case and this Court’s prior
Allen charge jurisprudence, Nash has not presented us with a sufficient basis from which
to conclude that the trial court’s decision was so lacking. Accordingly, we hold that the
trial judge did not abuse her discretion in refusing Nash’s request to give the modified
Allen charge.
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
-43-
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 Dictionary definition of the word “respond,” which includes
“to say something in return: make an answer,” and argues that the trial judge did not
“make an answer” to the foreman’s concern expressed in the Note.
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
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way this process works.” 12 In our view, her statements did “say something in return” to
the Note, and thus constituted a response within the meaning of the Rule’s language.
Nor are we persuaded, that, to the extent that the judge’s actions constituted a
response, it was an unsuitable one under the Rule. We agree with the State that here,
unlike in State v. Baby, 404 Md. 220, 946 A.2d 463 (2008), and similar cases on which
Nash relies, 13 the Note did not pose a question from the jury regarding applicable law that
required specific clarification. See Baby, 404 Md. at 263, 946 A.2d at 488 (requiring that
the trial judge respond to [a jury’s] questions in a manner that directly addressed the
difficulty,” where the “questions made explicit [the jury’s] difficulty with an issue central
to the case”). Rather, the Note posed a concern of one member of the jury about another
juror’s purported statement, which the trial judge addressed by recessing for the long
12
Although, as Nash argues, 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, 415 Md. at 465, 3 A.3d
at 415 (quoting Ezenwa, 82 Md. App. at 518, 572 A.2d at 1115).
13
Nash also relies on Lovell v. State, 347 Md. 623, 702 A.2d 261 (1997), and Price v.
Glosson Motor Lines, Inc., 509 F.2d 1033, 1037 (4th Cir.1975), both of which are
discussed in Baby.
-45-
weekend, based on her interpretation that the Subject Juror’s assumed statement was the
result of exhaustion or frustration, as opposed to confusion about the applicable law or
the rules regarding how the jurors were required to discharge their duties. As discussed
supra in Section I.C., we approved implicitly the same conclusion in Butler with regard
to facts that were arguably less indicative of fatigue or frustration than the facts of the
present case. Thus, we hold that the trial judge’s decision to recess for the day, with the
original and additional instructions she provided, did not constitute a violation of Md.
Rule 4-326(d).
JUDGMENT OF THE COURT OF
SPECIAL APPEALS AFFIRMED. COSTS
TO BE PAID BY PETITIONER.
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Circuit Court for Prince George’s County
Case No. CT 09-1808X
Argued: March 6, 2014
IN THE COURT OF APPEALS
OF MARYLAND
No. 60
September Term, 2013
TROY SHERMAN NASH
v.
STATE OF MARYLAND
Barbera, C.J.
Harrell
Battaglia
Greene
Adkins
McDonald
Watts,
JJ.
Dissenting opinion by McDonald, J.,
which Battaglia and Adkins, JJ., join,
dissenting in part.
Filed: June 20, 2014
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.
Here the trial judge received a note from the jury foreman reporting that a juror, who
earlier in the deliberations had expressed a belief that the defendant was not guilty, had more
recently stated an intention to change her vote for the sole purpose of going home sooner.
While the Majority concedes that this note was “troublesome on its face,” it ultimately
concludes that the note did not raise “the type of alarming factual issues” as two prior cases
in which this Court held that it was an abuse of discretion for a trial court to deny a defense
motion for a mistrial without conducting further investigation. Majority slip op. at 24, 33.
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.1
1
In Dillard v. State, 415 Md. 445, 451, 3 A.3d 403 (2010), during a chance encounter
between two jurors and two law enforcement officers who had testified at the trial, the jurors
patted one of the officers on the back and said “good job.” This Court held that, without
further inquiry by the trial court, it was impossible to determine whether that contact was
“sufficiently egregious” to create presumption of prejudice, and ordered a new trial. In
Johnson v. State, 423 Md. 137, 31 A.2d 239 (2011), a juror was able, during deliberations,
to turn on a cell phone that had been introduced into evidence and found that the phone
corroborated a witness’ testimony about the timing of a call made from that phone. The trial
court instructed the jury that they should rely solely on evidence admitted during the trial and
should ignore any information from the cell phone; it further ascertained that the jurors
(continued...)
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 of juror fatigue after a long day
was correct. Had the judge conducted an inquiry, I would have accorded great deference to
whatever conclusion she reached. But she did not do so. And so the trial judge had little
more information than we do on which to assess whether there was juror misconduct or not.
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
1
(...continued)
intended to follow that instruction. Nevertheless, this Court later reversed the defendant’s
conviction on the ground that the trial court should have conducted further investigation into
circumstances of the juror’s examination of the cell phone. In neither Dillard nor Johnson
was there an allegation that a juror had expressed an intention to violate the juror’s oath.
2
just result.2 Perhaps that is how this jury worked, and I hope that is true. But, in my view,
when a jury foreman reports that one of the jurors is ready to concede his or her vote for
reasons unrelated to the evidence or the law, a trial judge should do more than simply hope
that it is not true.
Judge Battaglia and Judge Adkins join this opinion.
2
In the film Twelve Angry Men (Orion-Nova 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.
3