Adams v. State

BELL, C.J. I. Tracy Wendell Adams, the petitioner, was charged both with possessing cocaine and distributing it to a Salisbury Police Department police officer, who was working undercover, in Salisbury, Wicomico County. The drug transaction was video recorded, although, because he never went to the passenger side of the undercover vehicle, where the video camera was situated, only the voice, and not the image, of the seller was reflected on the videotape. The petitioner was tried by jury in the Circuit Court for Wicomico County. Officer Drawer, the undercover officer, testified as to the authenticity and the contents of the videotape and, upon his sponsorship, the videotape was admitted into evidence.

With regard to the petitioner’s involvement in the drug transaction, he testified that the petitioner, whom he identified by description, in court and by photographic array, was the person who sold him the cocaine. After all the evidence was in, the jury had been instructed and just before it was excused to begin deliberating, a juror inquired, “Judge Truitt, can we take the evidence with us?” The trial judge responded: “I’m going to send it in there.” The jury retired to deliberate. Twenty-four minutes after the jury retired to begin deliberations, “the jury sent a note requesting to see the videotape that had been admitted as [an] [e]xhibit,” Adams v. State, 183 Md.App. 188, 201 , 960 A.2d 1215, 1222 (2008), prompting the following colloquy: “THE COURT: Mr. [Bailiff], you say you have a note. ⁵⁸⁸ “[BAILIFF]: They want to see the video. “THE COURT: No. “[DEFENSE COUNSEL]: No? “THE COURT: No. “[DEFENSE COUNSEL]: Your Honor, if the video is part of the evidence— “THE COURT: That’s right. “[DEFENSE COUNSEL]: You didn’t want to let them look at it again? “THE COURT: You want them to take all the witnesses in there and hear from them again? What’s the difference?

Hearing none. Tell them they will have to recall or you can bring them in and I’ll tell them. “[BAILIFF]: Bring them out? “[DEFENSE COUNSEL]: Your Honor, that’s like saying you can’t look at a document again. It’s been admitted. “THE COURT: It’s singling out testimony---- (Whereupon the jury returned to the courtroom.) “THE COURT: [Jury Foreman], what was the question? “[JUROR FOREMAN]: If we could view the tape again. “THE COURT: You’ll just have to recall— “[JUROR FOREMAN]: Okay. “THE COURT:—what you saw. “[JUROR FOREMAN]: Okay, that’s fine. “THE COURT: I can’t single out any testimony. Then I’d have to let each witness come in. “[JUROR FOREMAN]: Oh, I see.

Okay.” The petitioner was found guilty and sentenced to twenty years imprisonment. On appeal, the Court of Special Appeals affirmed the judgment of the Circuit Court, concluding that the trial judge did not abuse his discretion because the “trial court articulated an acceptable reason for refusing the jury’s request.” Adams, 183 Md.App. at 206 , 960 A.2d at 1225 . The intermediate appellate court elaborated: ⁵⁸⁹ “[T]he trial court made a discretionary determination that allowing the jury to have the videotape of the alleged incident would overemphasize it.... [W]e are not persuaded that the trial court abused its discretion in making that determination.” Id. at 205 , 960 A.2d at 1225 . We granted the petitioner’s petition for writ of certiorari, Adams v. State, 407 Md. 529 , 967 A.2d 182 (2009), to answer the question: whether the trial judge erred in refusing to permit the jury to review the videotape of an alleged drug transaction which had been admitted into evidence.

We shall answer that question in the affirmative and, thus, hold that, where, as here, evidence has been admitted and the trial judge has not made a good cause determination as to its appropriateness to be taken into the jury room, the trial judge abuses his or her discretion when he or she thereafter denies the jury the right to review that evidence in the jury room. Accordingly, we shall reverse.

II

The issue to be resolved in this case is which section of Rule 4-326, “Jury—Review of Evidence—Communications,” applies when the jury asks to review an exhibit, which has been admitted into evidence, but has not been, although the court indicated to the jury that it would be, sent to the jury room. The question thus presented is one of Rule construction, the precepts of which are well established: “The primary goal of statutory interpretation is ‘to ascertain and effectuate the intention of the legislature.’ Oaks v. Connors, 339 Md. 24, 35 , 660 A.2d 423, 429 (1995). The familiar point of departure for statutory interpretation is the plain language of the statute itself. Stanford v. Maryland Police Training & Correctional Comm’n, 346 Md. 374, 380 , 697 A.2d 424, 427 (1997).

When construing a statutory provision within a single statutory scheme, we must consider the statutory scheme as a whole to determine the legislative intent. See Marsheck v. Board of Trustees of the Fire & Police Employees’ Retirement System of the City of Baltimore, 358 Md. 393, 403 , 749 A.2d 774, 779 (2000); ⁵⁹⁰ Government Employees Ins. Co. v. Insurance Comm’r, 332 Md. 124, 131-32 , 630 A.2d 713, 717 (1993); In re: Stephen K., 289 Md. 294, 298 , 424 A.2d 153, 155 (1981). The same principles which are applied in statutory interpretation apply with equal force to our interpretation of the Maryland Rules.

See Johnson v. State, 360 Md. 250, 264 , 757 A.2d 796, 804 (2000).” In re Mark M., 365 Md. 687, 711 , 782 A.2d 332, 346 (2001). At the time of trial, Maryland Rule Section 4-326 provided 1 “(a) Jurors’ notes. The court may, and upon request of any party shall, provide paper notepads for use by jurors during trial and deliberations. The court shall maintain control over the jurors’ notes during the trial and promptly destroy the jurors’ notes after the trial.

A juror’s notes may not be reviewed or relied upon for any purpose by any person other than the juror. If a juror is unable to use a notepad because of a disability, the court shall provide a reasonable accommodation. “(b) Items taken to jury room. Jurors may take their notes with them when they retire for deliberation. Unless the court for good cause orders otherwise, the jury may also take the charging document and exhibits which have been admitted into evidence, except that a deposition may not be taken into the jury room without the agreement of all parties and the consent of the court.

Electronically recorded instructions or oral instructions reduced to writing may be taken into the jury room only with the permission of the court. On request of a party or on the court’s own initiative, the charging documents shall reflect only those charges ⁵⁹¹ on which the jury is to deliberate. The court may impose safeguards for the preservation of the exhibits and the safety of the jurors. “(c) Jury request to review evidence. The court, after notice to the parties, may make available to the jury testimony or other evidence requested by it.

In order that undue prominence not be given to the evidence requested, the court may also make available additional evidence relating to the same factual issue. “(d) Communications with jury. The court shall notify the defendant and the State’s Attorney of the receipt of any communication from the jury pertaining to the action as promptly as practicable and in any event before responding to the communication. All such communications between the court and the jury shall be on the record in open court or shall be in writing and filed in the action. The clerk or the court shall note on a written communication the date and time it was received from the jury.” Although section (d) certainly is relevant to the question we are called upon to answer and, indeed, was in play in this case, as it prescribes the manner in which jury communications are to be handled, it does not address either what the jury may take to the jury room during deliberations, what it is privileged to review without court permission or when it must seek court permission to review evidence.

Section (a) is not implicated by the issue presented in this case; it involves a discrete matter, juror notes, their control and use, that is in no way pertinent to its resolution. Thus, the sections relevant to the issue we are to address are sections (b) and (c). Section (b) covers what the jury is permitted to have in the jury room when deliberating. With the exception of juror notes, for which there is no condition, the determination of what will accompany the jury when it retires for that purpose is entrusted to the trial judge.

Thus, the charging document and, with the exception of depositions, exhibits admitted into evidence may be taken into the jury room during deliberations, “[ujnless the court for good cause[ 2 ] orders otherwise.” ⁵⁹² Depositions require “agreement of all parties and the consent of the court.” “[Ojnly with the permission of the court,” may a jury have “electronically recorded instructions or oral instructions reduced to writing ... taken into the jury room.” Section (c) applies to requests by the jury to review evidence to which it does not have access. Such evidence would include “testimony,” specifically identified in the Rule, and “other evidence.” The latter reference necessarily suggests that it contemplates and refers to evidence that was not admitted into evidence as an exhibit, i.e., evidence that was not allowed to be taken to the jury room pursuant to section (b). We think it important to discuss the history of the Rule. The Maryland Rule which governs what may accompany a jury once it begins to deliberate derives from common law.

The predecessor to Rule 4-326 was Rule 757, promulgated by this Court, on recommendation of the Rules Committee, on September 15, 1961, to take effect, January 1, 1962. See Twentieth Report Rules Order (Sept. 1, 1961). Rule 757 did not expressly address what the jury may take to the jury room; instead, for that purpose, it referred to Rule 558, its civil equivalent. Rule 757 provided: “The provisions of Rule 558 (Jury Room-What May Be Taken to) shall apply to a criminal case.” Therefore, we must start our historical review with the history of Rule 558.

Rule 558 was enacted in 1956 and took effect January 1, 1957. See Twelfth Report Rules Order (July 18, 1956). “Pri- or to the adoption of Rule 558, the case law in Maryland left to the trial court’s discretion the question of what the jury was ⁵⁹³ permitted to take with them upon retiring for their deliberation.” See Rule 558—What The Jury May Take To The Jury Room, 17 Md. L. Rev, 172, 172 (1957). See, e.g., Nichols v. Meyer, 139 Md. 450 , 115 A. 786 (1921), Fleischmann v. Clark, 137 Md. 171 , 111 A. 851 (1920), Cahill v. Baltimore, 129 Md. 17 , 98 A. 235 (1916), Moore v. McDonald, 68 Md. 321 , 12 A. 117 (1888). The same approach was applied also to criminal cases.

See Bell v. State, 200 Md. 223 , 88 A.2d 567 (1952). In Bell, “after the jury retired, they returned and asked for all the exhibits in the case.” Id. at 227 , 88 A.2d at 569 . The trial judge, with the exception of the search warrant, and over the defendant’s objection, “allowed all the exhibits to go to the jury.” Id. On review, this Court relied on the Cahill v. Baltimore decision.

In Cahill , the Court held that: “[I]n the absence of a statute, whenever it is desired that papers shall be given to the jury, without the consent first had of the other side, the question is one left exclusively to the discretion of the trial court. It is said in 38 Cyc. 1832: ‘Whether or not permission shall be given to the jury to take out books, papers or documents, and the determination as to what papers shall be taken out by the jury, is very generally held to be a matter resting in the sound discretion of the court, which is not reviewable except where there has been an abuse of such discretion.’ ” Id. at 25-26 , 98 A. at 238 ; see also Bell, 200 Md. at 228 , 88 A.2d at 569 . The Court of Appeals, in Bell , thus, applied the long standing rule that the matter of what papers or objects the jury could take with them upon retiring rested in the sound discretion of the trial court and was not reviewable except where there has been a clear abuse of such discretion. In 1957, as we have seen, the common law rule was codified as Rule 558.

Captioned, “Jury Room-What May Be Taken to,” it provided, in relevant part: “a. In Court’s Discretion. “Upon retiring for deliberation, the jury may take with them into the jury room such of the pleadings, granted prayers or written instructions, and exhibits which have ⁵⁹⁴ been received in evidence, as the court may deem necessary for a proper consideration of the case. “b. As of Right—Notes. “The jury may also take with them notes of the testimony or other proceedings taken by themselves but none taken by any other person. “c. Return to Clerk. “All such papers or exhibits, except the notes mentioned in section b hereof, shall be returned to the clerk before the jury is discharged. “d.

Exception. “A deposition may not be taken into the jury room, except by agreement of all parties and with consent of the court.” According to the “Editor’s note,” “[t]his Rule [was] new. However, much of section[ ] a ... is existing case law.” Thus, “[t]he new Rule substantially follow[ed] the doctrine enunciated in the Bell case[,] that it is within the sound discretion of the trial court what objects and papers may be taken by the jury into the jury room.” Rule 558—What The Jury May Take To The Jury Room, 17 Md. L.Rev. at 173. See also Jimmy’s Cab, Inc. v. Isennock, 225 Md. 1, 10 , 169 A.2d 425, 429 (1961) (“The adoption of this rule was merely a restatement of the practice in this State.”). Neither Rule 558 nor 757 provided for those instances in which the jury, after deliberations had commenced, made a request to review evidence.

On December 29, 1975, the Rules Committee, in the Fifty-Third Report of the Standing Committee on Rules of Practice and Procedure, “recommend[ed] adoption of’ its “proposed Maryland and Maryland District Rules, Chapter 700, (Criminal Causes).” 3 This was to be a major revision of the Chapter 700 Rules. Upon adoption, Rule 758 would replace what had been Rule 757. 4 The proposed Rule 758 provided: ⁵⁹⁵ “Jury—Review of Evidence—Communications.” “(a) Items Taken to Jury Room. Upon retiring for deliberation, the jury may take into the jury room all exhibits which have been admitted into evidence and charging documents which reflect only the charges upon which the jury is to deliberate, subject only to such safeguards imposed by the court for the preservation of the exhibits and the safety of the jurors. “(b) Notes. Jurors may take notes regarding the evidence which they may keep with them when they retire for their deliberations. “(c) Jury Request to Review Evidence.

Whenever the jury makes a request for a review of any testimony or other evidence[ 5 ], the court, after notice to the parties, may submit the testimony or evidence requested by the jury. The court also may submit other evidence relating to the same factual issue on which the jury requested testimony or evidence in order that undue prominence not be given to the evidence requested.” On January 31, 1977, the Court filed a Rules Order which provided for the rescission of all Rules in Chapter 700 (Criminal Causes) of the Maryland Rules of Procedure and the ⁵⁹⁶ promulgation of new Rules, effective July 1, 1977. See Fifty-Third Report Rules Order (Jan. 31, 1977). In the final version, the Rules adopted by the Court contained changes to Rule 758 as proposed by the Rules Committee.

Id. The Court deleted, from section (a), the provision that the jury “may take into the jury room all exhibits which have been admitted into evidence,” and added that the jury may take exhibits into the jury room, but only with the court’s approval (emphasis added). The Rule stated: “(a) Items Taken to Jury Room. Upon retiring for deliberation, the jury may, with the approval of the court, take into the jury room the exhibits which have been admitted into evidence and the charging documents.

Upon the request of a party or upon the court’s own motion, the charging documents shall reflect only those charges upon which the jury is to deliberate. The court may impose safeguards for the preservation of the exhibits and the safety of the jurors.” (emphasis added). Section (c) was also amended to read: “(c) Jury Request to Review Evidence. Whenever the jury makes a request for a review of any testimony or other evidence, the court, after notice to the parties, may submit the testimony or evidence requested by the jury.

The court also may submit other evidence relating to the same factual issue on which the jury requested testimony or evidence in order that undue prominence not be given to the evidence requested.” That is how the Rule remained until 1984, when the Court, in adopting the Reorganization of the Rules, recommended by the Eighty-Seventh Report of the Standing Committee on Rules of Practice and Procedure, amended Section (a) to its present form. See Rules Order (April 6,1984). The history of the latter change began in April of 1981, when Judge McAuliffe, formerly a member of this Court, but then a member of the Court of Appeals Standing Committee on Rules of Practice and Procedure, presented, as a part of ⁵⁹⁷ the Reorganization process, Rule 2-525, the civil equivalent of Rule 758. As presented, it read: “What May Be Taken To Jury Room.” “Jurors may take notes regarding the evidence and they may keep the notes with them when they retire for their deliberation.

Unless the court for good cause shown orders otherwise, the jury may also take exhibits which have been received in evidence except that a deposition may not be taken into the jury room without the agreement of all parties and consent of the court. Written instructions may be taken into the jury room only when the court, in its discretion, so permits.” See Minutes, Court of Appeals Standing Committee on Rules of Practice and Procedure, 41-42 (April 21, 1981). The Rule was accompanied with an explanatory note: “Reorganization Rule 2-525 differs from present Maryland practice in two respects. First, the proposed Rule, unlike current Rule 558, does not permit pleadings to be taken into the jury room.

Second, exhibits