Allen v. State

Opinion by ROSALYN B. BELL, Judge. After agreeing to accept a majority verdict of the jury, Timothy Jackson Allen was convicted of robbery with a deadly weapon and the use of a handgun in a crime of violence, both of which were charges stemming from the early morning robbery of the Frederick Sheraton Inn on ⁵³⁹ May 10, 1985. 1 We describe this robbery to provide a factual setting for this appeal, but for brevity’s sake, we provide further and more facts only as needed for those issues reached. Robert Preston, the Frederick Sheraton Inn night auditor, was alone in the lobby at 4:04 a.m. on May 10, 1985 when two men entered. One of the men, later identified as Allen, held a small gun which he pointed directly at Preston.

Allen was wearing a wool cap, sunglasses, and a bandanna across his face. The other man brandished a knife and wore a ski mask. Preston was told to lie on the floor but got up to assist when the man with the knife could not open the cash register. The two men left with the money and Preston called the police.

Preston simultaneously wrote descriptions of the two men on a blotter and described them to the police. Preston identified Allen from a photographic array. Robert Windon, the man with the knife, confessed to participating in the robbery. Pursuant to a plea agreement, Windon testified at Allen’s trial identifying Allen as the man wielding the gun.

Allen was sentenced to a total of 30 years. He presents the following issues on appeal: —Did the trial court err in the procedures used in connection with Allen’s agreement to accept a verdict that was not unanimous? —Should the trial court have suppressed the photographic identification of Allen? —Did the trial court properly refuse Allen’s request for alibi and missing witness instructions? —Were the trial court’s evidentiary rulings consistent with Allen’s right to a fair trial? —Did the trial court err in denying Allen a new trial based on the weight of the evidence? Since we shall reverse on the first issue, we reach only that and the second issue. We do so as the balance of the issues ⁵⁴⁰ may not be reached in a new trial and, if they are, probably will not be reached in the same context.

MAJORITY VERDICT The jury began deliberations at appellant’s trial at approximately 12:30 p.m. on January 27, 1987. At about 6:00 p.m., the trial judge advised both counsel that he had received a message from the jury. This communication, note # 1, was signed by the jury forelady, and stated: “We are unable to reach a unanimous decision and we seem to be at an impasse. Do you have any suggestions or recommendations?” The trial judge read note # 1 to both counsel and appellant.

At defense counsel’s request, the trial court read the jury what is commonly referred to as an “Allen” charge, 2 an instruction designed to encourage the jury to reach a verdict. At approximately 7:07 p.m., the jury forelady gave the trial court another note. This note, note # 2, also signed by the jury forelady, read as follows: “To let you know where we stand, we are 11 guilty, 1 not guilty. We could be here 3 months and he says he will not change his mind.

We will deliberate as long as you wish, but this is what we are up against.” (Emphasis in original.) The trial judge discussed note # 2 in a meeting in chambers with both counsel, informing them only that the jury was irreparably hung. The trial judge did not, however, disclose the exact number of the vote or in whose favor it stood. Because the chambers discussion was unrecorded, we do not have the benefit of exactly what was said. Appellant contends that his attorney asked the trial judge to reveal the numerical posture, of the vote, without disclosing in whose favor it stood.

The trial judge at appellant’s ⁵⁴¹ new trial hearing stated that, during the in-chambers conference, “[njeither [appellant’s counsel] nor [appellant] made any objection to the fact that they did not have the contents of the note, meaning the count, in order to make an intelligent waiver.” Except where we state to the contrary, we shall assume appellant’s recollection of the in-chambers discussion to be accurate, as the State, in its brief, accepted appellant’s statement of facts. We also rely on the new trial hearing, where the facts surrounding the chambers discussion were reviewed and discussed. Defense attorney consulted with appellant, returning to chambers to inform the trial judge that appellant had decided to accept a majority verdict. The trial judge then advised counsel that he had received another jury note, note # 3, which he read to counsel, withholding nothing except the names of the six jurors who signed the note.

Note # 3 is set forth below: “Your Honor: “It is clear to us that one of the jurors should have excused himself. He has made statements to the effect that he has significant differences with our system of justice. We are unsure how to act on this information.” Appellant discussed with his counsel the import of this note and, against his counsel’s advice, stuck to his decision to accept a majority vote. The trial judge then conducted an on-the-record voir dire of appellant, making a finding that appellant knowingly and voluntarily waived his right to a unanimous verdict.

During the on-the-record colloquy, the trial judge instructed appellant that his right to a unanimous verdict was “absolute”; a right “nobody can take ... from you, to have a unanimous verdict of twelve jurors,” and that by agreeing to a majority verdict appellant was “giving up that right.” The trial judge inquired as to whether appellant’s counsel had fully explained to appellant the ramifications of the waiver. The trial judge determined further that appellant had asked his attorney to confer with his family. Appellant’s counsel indicated that he had done so and the family ⁵⁴² felt that the decision was appellant’s alone to make. The trial judge also questioned appellant’s counsel as to counsel's opinion of the decision.

Appellant’s counsel responded: “[APPELLANT’S COUNSEL]: Your Honor, I have advised [appellant] that in my opinion he should not make that decision. However, I do respect [appellant’s] understanding of the ramifications of the issue and I of course have to respect his position. “THE COURT: All right. Do you feel that he understands the decision that he’s making at this time? “[APPELLANT’S COUNSEL]: Yes, sir, I do. “THE COURT: Do you feel that he’s competent to make that decision? “[APPELLANT’S COUNSEL]: Yes, sir, I do. “THE COURT: Do you feel that that decision on his part is a free and voluntary act on his part? “[APPELLANT’S COUNSEL]: Yes, I do.” —Waiving the Right to a Unanimous Verdict— At common law, unanimity was an essential element of trial by jury, and the Supreme Court has held that the right to trial by jury provided by the Sixth Amendment 3 and Art. Ill, § 2, cl. 3 4 of the federal constitution includes the right to a unanimous verdict in federal criminal cases. See Johnson v. Louisiana, 406 U.S. 356, 369-70 , 92 S.Ct. 1620, 1637 , 32 L.Ed.2d 152 (1972).

In the companion case of Apodaca v. Oregon, 406 U.S. 404, 406 , 92 S.Ct. 1628, 1630 , 32 L.Ed.2d 184 (1972), the Supreme Court held that a state law providing that criminal defendants could be convicted by a nonunanimous verdict, as long as ten members of the ⁵⁴³ jury agreed, did not violate the Sixth Amendment applicable to the states via the Fourteenth Amendment. Apodaca, 404 U.S. 410 -12, 92 S.Ct. 1632 -34. The Supreme Court has never considered whether a criminal defendant in a federal court can constitutionally waive his right to a unanimous verdict, nor has it commented in regard to what a valid waiver would contain. With the exception of the 11th Circuit, see Sanchez v. United States, 782 F.2d 928 , reh’g denied, 788 F.2d 1570 (1986), the federal Courts of Appeal which have considered the question have held that a criminal defendant cannot waive his constitutional right to a unanimous verdict.

See United States v. Smedes, 760 F.2d 109 (6th Cir.1985); United States v. Pachay, 711 F.2d 488 (2d Cir.1983); United States v. Morris, 612 F.2d 483 (10th Cir.1979); United States v. Lopez, 581 F.2d 1338 (9th Cir.1978); United States v. Scalzitti, 578 F.2d 507 (3d Cir.1978); United States v. Gipson, 553 F.2d 453 (5th Cir.1977). 5 In State v. McKay, 280 Md. 558, 559 , 375 A.2d 228 (1977), the Court of Appeals was faced with the question of whether waiver of a defendant’s right to a unanimous verdict was prohibited by the Maryland Declaration of Rights. 6 The Court held that a defendant may waive unanimity of verdict “provided not only that the court and the prosecution consent, but also that the waiver by the defendant conforms strictly with applicable constitutional standards.” McKay, 280 Md. at 572 , 375 A.2d 228 . Important to the Court’s holding in McKay was that, because the rule of unanimity existed primarily to benefit a defendant, a defendant ought to be able to waive it if he competently and intelligently chooses to do so. The Court in McKay, 280 Md. at 569 , 375 ⁵⁴⁴ A.2d 228, pointed out that a defendant could waive other similar rights, 7 and that there was no support for an interpretation of the Maryland Constitution “that would make jury unanimity an imperative requirement as opposed to a right which can be waived.” Indeed, a defendant may waive completely his or her right to a jury trial. State v. Zimmerman, 261 Md. 11, 14-19 , 273 A.2d 156 (1971).

Because the right to a unanimous verdict, however, is a “fundamental constitutional right guaranteed the defendant in a criminal case,” McKay, 280 Md. at 572 , 375 A.2d 228 , he may forgo this right only if, upon consideration of the particular facts and circumstances in each case, he “competently and intelligently” decides to waive the right. Johnson v. Zerbst, 304 U.S. 458, 469 , 58 S.Ct. 1019, 1025 , 82 L.Ed. 1461 (1938). In McKay, the Court held the defendant’s waiver was invalid because of his obvious misunderstanding of his rights on retrial. The on-the-record colloquy in McKay showed that the defendant thought that, if he did not accept a majority verdict on a particular count, he would be retried on even those counts on which the jury had acquitted him.

The Court held, therefore, “[h]is consent ... did not amount to an intelligent and competent waiver, since it rested on a grossly inaccurate premise.” McKay, 280 Md. at 574 , 375 A.2d 228 . —Knowing and Voluntary Waiver?— In the instant case, we are not faced with the type of obvious misunderstanding making the waiver invalid in McKay. It is quite clear from the trial judge’s inquiries and the responses that appellant understood the implication of a waiver. Instead, appellant seeks to equate his situation with that presented in McKay by contending that, ⁵⁴⁵ because he did not know the exact contents of note # 2, he could not intelligently make a decision when presented with the last note accusing one juror of misconduct. We agree and explain.

Rule 4-326 provides in pertinent part: “(c) 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 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.” We hold that Rule 4-326(c) requires full communication of the contents of a jury communication so that both parties can have input into the response. In Smith v. State, 66 Md.App. 603, 624 , 505 A.2d 564 , cert. denied, 306 Md. 371 , 509 A.2d 134 (1986), we stated that “[wjhile the rule expressly requires notice to the parties of any communication from the jury, its very spirit is to provide an opportunity for input in designing an appropriate response to each question in order to assure fairness and avoid error.” A review of the legislative history of Rule 2-521(c) provides support for our interpretation of the requirements of Rule 4-326(c). Rule 2-521(c) is the civil counterpart of Rule 4-326(c), and the two Rules are almost identically worded. 8 The Rules Committee notes in regard to Rule 2-521(c) reveal that the Committee intended that the trial court notify the parties of the receipt of any communication from the jury before the trial court developed a response.

Rules Committee Minutes, May 22-23, (1981). Therefore, the general rule is that a judge shall not answer questions without first informing counsel and then giving counsel a chance to “address the court’s proposed answer.” Exxon ⁵⁴⁶ Corp. v. Yarema, 69 Md.App. 124, 143 , 516 A.2d 990 (1986). “Before responding to an oral or written