Alston v. State

ADKINS, J. What is the significance of the jury oath in a criminal trial? We answer that question as we decide Anthony Alston’s challenge to his conviction for conspiracy to murder on the ⁶ ground that the jury was not sworn until after the State completed its case. Standard Of Review We are reviewing the court’s denial of appellant Alston’s motion for a mistrial, as well as its failure to grant Alston’s post-verdict motion for a new trial. The decision to grant a motion for a mistrial is a matter within the discretion of the trial judge.

See Hunt v. State, 321 Md. 387, 422 , 583 A.2d 218 (1990), cert. denied, 502 U.S. 835 , 112 S.Ct. 117 , 116 L.Ed.2d 86 (1991). A denial of a motion for mistrial will only be reversed on appeal when there was clear prejudice to the defendant. See Johnson v. State, 303 Md. 487, 516 , 495 A.2d 1 (1985), cert. denied, 474 U.S. 1093 , 106 S.Ct. 868 , 88 L.Ed.2d 907 (1986). This Court may reverse a denial of a new trial motion if the trial court made an error of law, or abused its discretion.

See Merritt v. State, 367 Md. 17, 30-31 , 785 A.2d 756 (2001). FACTS Johnny Cabizza was shot and killed in Baltimore City on July 10, 2003. Anthony Alston was charged with first degree murder; second degree murder; conspiracy to murder; use of a handgun in the commission of a felony or crime of violence; and wearing, carrying, and transporting a handgun. The State presented testimony from Shervin Easton, an alleged accomplice and coconspirator, at Alston’s trial.

According to Easton, Easton met up with Alston and another man, El, shortly after noon on the day of the incident. The three men gathered at Easton’s workplace in Prince George’s County and then drove to Baltimore, with Easton in his blue Ford van, and Alston and El in Alston’s red Kia. Easton said the men went to Baltimore to “get some blow, some heroin, sniff.” When in Baltimore, the three men parked their cars and walked down Fulton Street to Edmondson Avenue. They approached a group of four or five teenagers sitting on a stoop ⁷ at the corner of Edmondson and an alley.

Easton asked the teenagers if there was “anything out” and they told Easton “yes ... just walk around the corner.” El stayed on the corner, and Easton and Alston walked around the corner. Easton testified that, when he and Alston went where directed, “a little guy ... pulled a pump shotgun from under a cardboard box and stuck it in [his] face.” The man robbed him of his cell phone and $50.00. All of this happened with Alston standing about five to ten feet behind Easton. Easton, Alston, and El returned to their cars after Easton was robbed.

They drove around for a while and spotted the teenagers, but were unable to catch up with them. The men eventually drove to Easton’s home in Anne Arundel County. At Easton’s home, Alston said to Easton, “Hey boy, you want your stuff back[.]” Easton testified that he replied, “yes, you know, I would like to have my stuff back, you know.” Alston then asked Easton for his gun, a Taurus .380, and the three men drove back to Baltimore in Alston’s Kia. When the men returned to Baltimore, they parked on West Franklin Street, near the location of the earlier robbery.

According to Easton, he stayed in the car while Alston and El walked through an alley. After fifteen or twenty minutes, Easton heard two or three shots. Alston and El returned quickly, telling him to drive away. Alston told Easton that he did not have time to retrieve the phone.

Officers testified that they responded to a call about a shooting at approximately 5:00 p.m. that evening. The officers found Cabizza lying on the sidewalk on Edmondson Avenue. Cabizza was pronounced dead at the hospital from multiple gunshot wounds. The medical examiner testified that there was no evidence of stippling or soot, indicating that the shots were fired from more than two feet away.

The examiner removed two large caliber bullets from the body. A crime lab technician testified that he removed three cartridge casings from the scene. A firearms examiner testified that the bullets and cartridges were all ,380’s, each coming from one ⁸ gun. The examiner also indicated that the gun was probably a Taurus or Beretta semi-automatic.

The State also presented testimony from three of Cabizza’s friends: Brandon Sims, Ray Issac, and Kevin Morgan. Sims testified that he first encountered two men on July 10, 2003, while sitting with Issac and Morgan at the corner of Edmondson and Fulton. The two men asked them for drugs. Cabizza then came over and took the men down the alley.

Sims did not see what happened in the alley, nor did he see the men come out. Sims said that the group left and then later returned to Edmondson Avenue. This time, a man came around the corner and “start[ed] firing or shooting and was like, give me my money back”; however, Sims did not see the man’s face. Sims indicated he previously picked Alston’s photograph out of a photo array because he thought he was the man who killed Cabizza.

Issac’s testimony of the events at Edmondson Avenue that afternoon was similar to Sims’ account. When the friends returned to Edmondson Avenue, Issac said that one person came out of the alley “real quick” saying, “Where’s my mother-fucking money[?]” Issac indicated that the man then started shooting. Issac also did not see the man’s face, but indicated that he had previously picked out Alston’s photo as the “same guy in the red Jeep and the same guy who was there when Johnny got shot.” Morgan also gave an account of the July 10, 2003 events similar to Sim’s and Issac’s. Morgan first recounted that two men approached him and the others, with whom he was standing, earlier in the afternoon at the corner of Fulton and Edmondson.

The men asked if they had any heroin. He and the others said no, but Cabizza then said he had some and told the two men to follow him to the end of the alley. The men followed Cabizza around the corner. Morgan then saw the two men come “skipping back around the corner” after a minute or two as if something had just happened to them.

Morgan then testified about his observations at the time of the shooting. He indicated that two men came out of the ⁹ alley. Morgan asked them if they wanted heroin and the men denied his offer. He thought that one of the men looked familiar.

Morgan said that the two men walked toward the teens in an unusual way. The men then turned and walked away. But one of the men then turned around, pulled out a gun, and said “bitch, give me my money[.]” Morgan testified that he recognized this individual as one of the two men Cabizza had robbed, and that the second man was not one of the original two. Morgan said that he was only a short distance away.

Morgan ran at this point and saw the shooter fire off the first shot. In court, Morgan identified Alston as the shooter. LEGAL PROCEEDINGS Alston was indicted in the Circuit Court for Baltimore City on September 5, 2003. On June 10, 2004, Judge Ellen Heller heard and decided Alston’s motions to suppress pretrial identifications.

Judge Heller also presided over jury selection. Alston’s case was tried before a jury on June 11, 14, and 15, 2004, with Judge John Glynn presiding. The jury returned verdicts of not guilty on the charges of first and second degree murder, not guilty on the handgun charges, and guilty on the charge of conspiracy to murder. On March 23, 2005, Judge Glynn denied Alston’s motions for a new trial, and then sentenced Alston to life in prison for conspiracy to murder.

Alston appealed, asking us to consider the following questions: I. Did the trial court err in denying Alston’s motions for a mistrial and for a new trial where the jury was not sworn until after the essential conclusion of the State’s case?

II

Did the trial court err in permitting an in-court identification by a witness whose pre-trial identification had been suppressed as the product of improper suggestion and not reliable?

III

Did the trial court err in sentencing Alston to life for conspiracy to murder where under the instructions ¹⁰ given the jury could have found Alston was guilty only of conspiracy to commit second degree murder?

IV

Was the evidence insufficient to sustain a conviction of conspiracy to murder where the only pertinent evidence was direct evidence from an alleged co-conspirator establishing at most an agreement to commit robbery? We answer no to all four questions. DISCUSSION I. Jury Swearing Md. Rule 4-312(h) requires that a jury be sworn. Although the rule does not specify what exact words comprise the juror’s oath, the language typically used is the following: Ladies and gentlemen of the jury, please stand and raise your right hands to be sworn.

You, and each of you, solemnly promise and declare you shall well and truly try, and a true deliverance make, between the State of Maryland and [Mr. Alston], whom you shall have in charge, and a true verdict give, according to the evidence. On the morning of the third day of trial, June 15, 2004, defense counsel informed the court that the jury had not yet been sworn. Alston moved for a mistrial, and his motion was denied without prejudice. The circuit court then had the jury sworn, and inquired of the jury: Now, what I’m going to ask you individually, and I’ll ask each of you in turn, is whether anything has occurred during the course of this trial or whether now, having been sworn in, you’re aware of anything that in any way would interfere with your fulfilling of this oath and treating this oath as though it were administered at the beginning of this case.

In other words, it’s as though you were sworn in at the beginning of the case, you heard the oath, you swore to the oath, you’re now under oath. Is there anything that would interfere with or anything that has occurred or ¹¹ would affect your ability to deliberate and decide this case in accordance with the oath you’ve just given, in accordance with the evidence in this case, in accordance with the law of the State of Maryland [?] (Emphasis added.) Then each juror was asked, “is there anything” and each replied “[n]o” with the exception of jurors number 2 and 7, whose responses were inaudible. 1 At this point, the court said: Okay. I’m going to find that you have been duly sworn, that there has been no violation of the oath and that from as best as I can gather from the answers to your questions and the questions I have asked, you are able and have fulfilled that oath up to this point and will presumably fulfill that oath through the conclusion of this case. The State then rested its case.

After Alston’s motion for judgment of acquittal was denied, Alston rested without putting on any evidence. When the jury returned a guilty verdict on the conspiracy to murder charge, Alston moved for a new trial on this same ground, which was denied. Alston now contends that his motions for a mistrial and for a new trial should have been granted, arguing that a verdict by an unsworn jury has no legal effect. He sees the court’s attempt to “cure” the error as insufficient, because the question to the jurors did not include an inquiry as to whether they considered themselves, throughout the trial, to be bound by the obligations of the juror’s oath.

Preservation Of The Issue Although the State agrees that the jury was not sworn until after the last witness, it argues that this issue was not ¹² properly preserved for our review, claiming that Alston waived his challenge to the unsworn jury because he failed to object at the beginning of trial. To support its argument, the State points to this Court’s holding that the failure to object to voir dire questions constitutes waiver of the appellate issue. See Allen v. State, 91 Md.App. 705, 745-46 , 605 A.2d 960 (1992), cert. denied, 327 Md. 625 , 612 A.2d 256 (1992). Allen differs substantially from this case.

In Allen , the trial court asked the jury questions during voir dire regarding their relationships with law enforcement personnel, and their ability to judge the case fairly. Allen did not object to these questions until he appealed to this Court, when he argued that the trial court’s failure to instruct the jury on law enforcement witness bias was compounded by the voir dire questioning. See id. In contrast, at the beginning of the third day of Alston’s trial, June 15, 2004, defense counsel stated the following during her motion for a mistrial: I would note for the record that it came to my attention when I was, you know, over-overnight.

I asked the Court Clerk. It was reflected in the court file, the jury had been sworn, however, based on our further investigation it appears as though the jury was not sworn. So on behalf of Mr. Alston, I would make a motion for mistrial. The issue is preserved.

Jury Oath We review here a conviction not by an unsworn jury, but by one that was belatedly sworn. Our threshold analysis, though, is the same as if the jury were never sworn, because in order to assess fully the consequences of an eleventh hour jury swearing, we must understand the purpose and import of the juror’s oath. This is so because we need to decide whether a failure to swear the jury may be reviewed under the harmless error standard that the circuit court applied in denying the motion for a new trial. 2 We explain. ¹³ In Arizona v. Fulminante, 499 U.S. 279, 309-10 , 111 S.Ct. 1246, 1265 , 113 L.Ed.2d 302 (1991), the Supreme Court held that if an error in a criminal trial is considered a structural error or defect, a reviewing court cannot apply the harmless error standard. A structural defect or error is one that “affect[s] the framework within which the trial proceeds, rather than simply an error in the trial process itself[,] .... [and] ‘transcends the criminal process.’ ” Id., 499 U.S. at 310-11 , 111 S.Ct. at 1265 .

Trial defects that the Supreme Court has held to be structural error include: deprivation of the rights to counsel at trial, to an impartial judge, to self-representation, and to a public trial, as well as unlawful exclusion of members of the defendant’s race from a grand jury. See id., 499 U.S. at 310 , 111 S.Ct. at 1265 . The types of trial error that the Supreme Court has held not to be structural include the admission of an involuntary confession, a defendant’s statements obtained in violation of the Sixth Amendment or the Fourteenth Amendment, and an out-of-court statement by a non-testifying co-defendant. See id., 499 U.S. at 309-311 , 111 S.Ct. at 1265 .

In Payne v. Arkansas, 356 U.S. 560, 568 , 78 S.Ct. 844, 850 , 2 L.Ed.2d 975 (1958), which involved the admission of an illegally obtained confession, the Supreme Court articulated that classification of the error or defect as structural or not will depend on whether the Court is able to say “what credit and weight the jury gave to the confession.” Trial errors that have been considered “structural” are said to “defy analysis by ‘harmless-error’ standards.” Fulminante, 499 U.S. at 309 , 111 S.Ct. at 1265 . Speaking for the majority in Fulminante , Chief Justice Rehnquist explained that an involuntary confession, although ¹⁴ having a significant effect on the trial, was not structural because the harmless error test was readily applicable: Of course an involuntary confession may have a more dramatic effect on the course of a trial than do other trial errors-in particular cases it may be devastating to a defendant-but this simply means that a reviewing court will conclude in such a case that its admission was not harmless error; it is not a reason for eschewing the harmless-error test entirely. Id., 499 U.S. at 312 , 111 S.Ct. at 1266 . The Supreme Court has explained structural errors: Each of these constitutional deprivations is a similar structural defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself. “Without these basic protections, a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair.’ Id.

(citation omitted). In Redman v. State, 363 Md. 298 , 304 n. 5, 768 A.2d 656 (2001), a capital murder case, our Court of Appeals pointed out that structural error was found only in limited circumstances: As in the presumed prejudice cases, the Supreme Court has found an error to be structural and subject to automatic reversal in a very limited number of cases. Moreover, in those cases where the Supreme Court, and indeed other courts, have found structural error mandating automatic reversal, the errors appear to be of constitutional magnitude. Such defects include a defective reasonable doubt instruction, racial discrimination in grand jury selection, denial of a public trial, total deprivation of counsel, and a judge who is not impartial.

(Citations omitted.) It declined to apply a structural error analysis to Redman’s Strickland claim that trial counsel was ineffective because he did not request removal to a different venue: Petitioner is inappropriately scrambling the eggs of Arizona v. Fulminante, 499 U.S. 279 , 111 S.Ct. 1246 , 113 L.Ed.2d ¹⁵ 302 (1991), and Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). Fulminante was a refinement of the federal harmless error analysis; Strickland involved an evaluation of counsel’s performance and an assessment of prejudice. Our research has disclosed only one case actually applying structural error analysis as a part of the Strickland prejudice inquiry. See McGurk v. Steinberg[Stenberg], 163 F.3d 470 (8th Cir.1998).

Id. Instead, the Court required a showing of actual prejudice, as required by Strickland. 3 On the other hand, outside the Strickland context, in Carter v. State, 356 Md. 207, 224-25 , 738 A.2d 871 (1999), the Court held that the trial court’s closing of the courtroom during the testimony of a minor child sexual abuse victim, without making specific findings of fact justifying that closure, was structural error. 4 As we will discuss infra, the Court, in other cases, has held that certain types of error are presumptively prejudicial, without using the term “structural error.” 5 It is not important in this opinion to ¹⁶ decide what difference, if any, there may be between presumptively prejudicial error and structural error, as either would mandate reversal. Thus, as we discuss the cases and their implications, we shall use the terms somewhat interchangeably. 6 The Supreme Court recently affirmed the concept of structural error in United States v. Gonzalez-Lopez, 548 U.S. 140 , 126 S.Ct. 2557 , 2564 n. 4, 165 L.Ed.2d 409 (2006), in which the Court “rest[ed] [its] conclusion of structural error upon the difficulty of assessing the effect of the error.” There, the Court held that erroneous deprivation of the right to counsel of choice was structural error because, in light of the “myriad aspects of representation, the erroneous denial of counsel bears directly on the ‘framework within which the trial proceeds[.]’” Id. at 2564-65 (citation omitted). In its words: We have little trouble concluding that erroneous deprivation of the right to counsel of choice, “with consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as ‘structural error.’ ” Different attorneys will pursue different strategies with regard to investigation and discovery, development of the theory of defense, selection of the jury, presentation of the witnesses, and style of witness examination and jury argument.

And the choice of attorney will affect whether and on what terms the defendant cooperates with the prosecution, plea bargains, or decides instead to go to trial. In light of these myriad ¹⁷ aspects of representation, the erroneous denial of counsel bears directly on the “framework within which the trial proceeds!.]” Id. at 2564 (citations omitted). Conducting a criminal trial with an unsworn jury is a different type of error from any of those analyzed by the Supreme Court in the cases discussed earlier in this section. In those cases, the Court considered what effect the trial error had on the minds of the jurors in determining whether the State met its burden of showing guilt beyond a reasonable doubt.

It was able to apply an objective standard in doing so, basing its decision on what other evidence the State presented that supported a conclusion that the defendant was guilty, and whether a juror could have maintained reasonable doubt about the defendant’s guilt. Notably, harmless error only occurs when the State’s proof is compelling. The question of whether a juror could have been influenced by not having taken an oath is a more elusive one, and will arise in cases that are not so clear-cut as those meeting the harmless error standard. It also requires understanding more about each juror, such as, what expectations and sense of obligation each has in undertaking his or her jury service, without having made the typically solemn promise to the court that she “shall well and truly try, and a true deliverance make ... and a true verdict give, according to the evidence.” We do not interpret the Supreme Court in either Gonzalez-Lopez or Fulminante as saying that difficulty in ascertaining prejudice from a constitutional error is, by itself, sufficient to qualify the error as “structural.” Although the Gonzalez-Lopez Court said, “we rest our conclusion of structural error upon the difficulty of assessing the effect of the error!,]” 126 S.Ct. at 2564 n. 4, it prefaced that comment with a discussion of the importance and breadth of the Sixth Amendment right to counsel. 7 So, our next step is to examine the nature and ¹⁸ importance of the jury oath.

We start that task by recounting briefly some history about the jury and its oath, followed by a review of some out-of-state cases discussing the purpose of the oath. History, Purpose, And Importance Of Oath “From its earliest institution, the jury was formally sworn to declare the truth as between parties[.]” 1 Francis X. Busch, Law and Tactics in Jury Trials 9 (Encycl. ed.1959). The jury originated in 11th century England, “when it took the form of a group of the defendant’s neighbors who were called in to answer questions from their own knowledge. Thus, jurors served as both witnesses and triers of the facts.” Rita J. Simon, The Jury: Its Role in American Society 5 (1980).

At the end of the 15th century, jurors began to function only as triers of the facts. See id. 8 The jury system came to America in 1607, in the Virginia colony of Jamestown. See id. “[T]he right to a trial by jury, of twelve persons, has been part of the common law for centuries, along with the requirement of unanimity. The right to trial by jury is guaranteed by the Maryland Declaration of Rights and the ¹⁹ Maryland Rules, as well as the United States Constitution.” Stokes v. State, 379 Md. 618, 625-26 , 843 A.2d 64 (2004).

Although historically established by legislation, today, Maryland’s requirement that a jury be sworn is found in the Maryland Rules: “The jurors and any alternates to be impaneled shall be called from the qualified jurors remaining on the list in the order previously designated by the court and shall be sworn.” Md. Rule 4-312(h). 9 The swearing of the jury has been recognized as an integral step in the conduct of a criminal trial. Maryland courts have repeatedly declared that the swearing of the jury is the critical demarcation of when a trial commences for double jeopardy purposes. See State v. Woodson, 338 Md. 322, 329 , 658 A.2d 272 (1995) (“The double jeopardy prohibition against retrial for the same offense attaches in a jury trial when the jury is empaneled and sworn”); Blondes v. State, 273 Md. 435, 444 , 330 A.2d 169 (1975) (“with respect to a jury trial, a defendant is placed in jeopardy when the jury is selected and sworn”) (citing Illinois v. Somerville, 410 U.S. 458, 467 , 93 S.Ct. 1066, 1072 , 35 L.Ed.2d 425 (1973), and other Supreme Court cases). The Supreme Court explained: When the trial of an indictment has been commenced by the swearing of the jury, the defendant is in their charge, and is entitled to a verdict of acquittal if the case on the part of the prosecution is, for any reason, not made out against him, unless he consents to the discharging of the jury without giving a verdict, or unless there is such a legal necessity for discharging them as would, if spread on the record, enable a court of error to say that the discharge was proper.

Downum v. United States, 372 U.S. 734 , 738 n. 1, 83 S.Ct. 1033 , 1036 n. 1, 10 L.Ed.2d 100 (1963) (citation omitted). ²⁰ Cases Emphasizing Importance Of Oath And Reversing Convictions State courts outside Maryland have varied in their decisions regarding the effect of the failure to properly swear the jury at the start of a criminal trial. At least nine states have ruled that the omission of the jury oath is incurable error. See Dyson v. Alabama, 722 So.2d 782, 786 (Ala.Crim.App.1997); California v. Pelton, 7 P.2d 205 , 206 (Cal.App. Dep’t Super. Ct.1931); Grant v. Georgia, 272 Ga. 213 , 528 S.E.2d 512 , 513 (2000); Steele v. Indiana, 446 N.E.2d 353, 354 (Ind.Ct.App. 1983); Michigan v. Pribble, 72 Mich.App. 219 , 249 N.W.2d 363, 368 (1976); Miller v. Mississippi, 122 Miss. 19 , 84 So. 161 , 163 (1920); Missouri v. Mitchell, 199 Mo. 105 , 97 S.W. 561, 562 (1906); Howard v. Texas, 80 Tex.Crim. 588 , 192 S.W. 770, 773 (1917); West Virginia v. Moore, 57 W.Va. 146 , 49 S.E. 1015, 1016 (1905).

These cases have focused largely on the important role that the oath plays. As the Indiana court in Steele explained, The oath given to a jury prior to the commencement of a trial is not a mere formality. It is intended to impress upon the jury its solemn duty to carefully deliberate on the matter at issue. Most importantly the oath serves as a safeguard of a criminal defendant’s fundamental constitutional right to trial by an impartial jury.

Steele, 446 N.E.2d at 354 . In a similar vein, a Michigan court articulated: The oath is administered to insure that the jurors pay attention to the evidence, observe the credibility and demeanor of the witnesses and conduct themselves at all times, as befits one holding such an important position. The oath is designed to protect the fundamental right of trial by an impartial jury. Pribble, 249 N.W.2d at 366 . 10 “The weighty and responsible duties of jurors are impressed upon them by the force and ²¹ solemnity of an oath, which is administered generally after the full number have been obtained by challenge and examination.” John Proffatt, A Treatise on Trial By Jury, Including Questions of Law and Fact 254 (1877).

In Slaughter v. Georgia, 100 Ga. 323 , 28 S.E. 159, 160 (1897), the Georgia court explained the purpose and benefits of the oath: The solemnity of calling the juror before the prisoner, in the presence of the court, and his there taking the solemn oath prescribed by law to well and truly try and true deliverance make of that prisoner, not only gives the prisoner a comfortable assurance that he is to have a fair and impartial trial, but has a salutary tendency to prepare the mind of the juror for the solemn duty he is assuming. We think the jury should be sworn in each case. (Citation omitted and emphasis added.) Cases Affirming Conviction,s With No Oath Or Belated Oath Other jurisdictions have upheld verdicts despite a failure to swear the jury or a belated swearing of the jury. Many of these cases turned on the defendant’s failure to object until after the verdict, which the courts considered a waiver of any objection.

See United States v. Hopkins, 458 F.2d 1353, 1354 (5th Cir.1972); Sides v. Indiana, 693 N.E.2d 1310, 1312 (Ind. 1998); Manix v. Mississippi, 895 So.2d 167, 179 (Miss.2005); Missouri v. Frazier, 339 Mo. 966 , 98 S.W.2d 707, 716 (1936); 11 Minnesota v. Saybolt, 461 N.W.2d 729, 737 (Minn.Ct.App. 1990); New Mexico v. Arellano, 125 N.M. 709 , 965 P.2d 293, 295 (1998); Oregon v. Vogh, 179 Or.App. 585 , 41 P.3d 421, 428 (2002); South Carolina v. Mayfield, 235 S.C. 11 , 109 S.E.2d 716, 723-24 (1959), cert. denied, 363 U.S. 846 , 80 S.Ct. 1616 , 4 ²² L.Ed.2d 1728 (1960); 12 Hobbs v. Tennessee, 121 Tenn. 413 , 118 S.W. 262 , 263 (1908); Vermont v. Roberge, 155 Vt. 121 , 582 A.2d 142, 145 (1990). These waiver cases are conceptually different from those in which the court relies on harmless error because their outcomes rest on a defendant’s failure to object, rather than a court’s assessment that the error made no difference. Thus, none of these cases guide our decision, because Alston objected and asked for a mistrial before the verdict. In other jurisdictions affirming convictions by unsworn juries, the defendants objected before the verdict, and the courts found the error was harmless because the jury ultimately took the oath before the verdict, albeit belatedly.

See Cooper v. Campbell, 597 F.2d 628, 629 (8th Cir.), cert. denied, 444 U.S. 852 , 100 S.Ct. 106 , 62 L.Ed.2d 69 (1979); Garner v. Alabama, 206 Ala. 56 , 89 So. 69, 70 (1921); Arizona v. Godfrey, 136 Ariz. 471 , 666 P.2d 1080, 1082 (App.1983); Hollis v. Colorado, 630 P.2d 68, 70 (Colo.1981); 13 Stark v. Mississippi, 133 Miss. 275 , 97 So. 577 (1923); New York v. Morales, 168 A.D.2d 85, 87 , 570 N.Y.S.2d 831 , cert. denied, 78 N.Y.2d 970 , 574 N.Y.S.2d 950 , 580 N.E.2d 422 (1991); Wisconsin v. Block, 170 Wis.2d 676 , 489 N.W.2d 715, 718 (App.1992). All but one of these cases were decided before Fulminante , and did not discuss the “structural error” concept that the Supreme Court introduced in Fulminante . 14 Failure To Swear Jury Is Presumptively Prejudicial Based on our examination of the history and purpose of the jury oath, and the decisions of other jurisdictions, we ²³ have no doubt that the jury oath is a fundamental part of the criminal jury trial, and that omission of the oath is presumptively prejudicial. Any impairment to the impartiality or integrity of the jury constitutes denial of one of a citizen’s most cherished constitutional protections. See Owens, 399 Md. at 395-96, 924 A.2d 1072 (“There can be no question that the jury trial is a vital and cherished institution of United States and Maryland law”).

The oath, for centuries, has been viewed as a solemn promise to undertake one of the most serious of legal, civic, and moral responsibilities. Without an oath, a defendant is denied full assurance of a fair and impartial jury. The Court of Appeals’ opinion in Stokes v. State, 379 Md. 618, 638 , 843 A.2d 64 (2004), is illuminating in that it addresses the deprivation of a right with similarly intangible benefits, the right to have only regular jurors present during jury deliberations, without the extraneous influence of alternate jurors. The Court of Appeals ruled that “[t]he presence of alternate jurors who have no legal standing as jurors injects an improper outside influence on jury deliberations and impairs the integrity of the jury trial.

Prejudice must be presumed where alternates breach the sanctity of the jury room.” Id. The Court held the presence of alternates during deliberation to be a fundamental and presumptively prejudicial error, despite identical selection procedures for the regular and alternate jurors. See id. at 634-42 , 843 A.2d 64 . An important reason assigned by the Court for presuming prejudice from the presence of the alternate jurors was Maryland’s longstanding refusal to “inquire into the deliberations and mental processes of the jurors.” Id. at 642 , 843 A.2d 64 (emphasis added).

The Court declined to assess the impact of the alternate jurors on the minds and deliberations of the regular jurors, an impact that, like the jury oath, would have required assessment of highly subjective factors. The application of a presumptive prejudice test is consistent with our prior cases where the type of error involved made it difficult to prove actual prejudice. For example, this Court has held that a violation of Rule 4 — 361(b), dealing ²⁴ with substitution of a judge during a jury trial, warrants a presumption of prejudice____“[W]e believe the creation of a presumption of prejudice for a violation of this Rule recognizes the importance of compelling compliance with its requirements and recognizes as well the difficulty of proving actual prejudice____” Id. at 638 , 843 A.2d 64 (citation omitted and emphasis added). The Stokes Court also relied on its earlier decision in Hayes v. State, 355 Md. 615 , 735 A.2d 1109 (1999), holding that prejudice was presumed when an alternate juror was substituted for a regular juror after deliberations had begun: The standard we adopted in Hayes we deemed to be a practical one, “because compliance with it can be established through objective and extrinsic evidence, without the need to question jurors as to what went on in the jury room after the door was closed-when deliberations really started.” Stokes, 379 Md. at 636-37 , 843 A.2d 64 (citation omitted).

The crux of the Stokes decision, that prejudice is presumed when an error potentially affects jury deliberations, but permits no objective measures to discern prejudice, applies here equally well. We bear in mind that the formality of the courtroom, the presence of the judge, and the orderly process by which a jury is selected, as well as the potentially severe consequences of a verdict, might be sufficient to impress upon a juror the solemnity and significance of his or her duties. We simply cannot know, however, whether a juror might take these civic, legal and moral obligations less seriously if he or she were not asked to take an oath. Unlike the task of deciding, on an objective basis, whether there is so much legitimately admitted evidence of guilt that an erroneous admission of inadmissible evidence would not affect the verdict, an assessment of what the oath means to any one juror is much more subjective, and would require that we understand the mental processes of that juror, and his or her individual appreciation of the judicial process and sense of civic and moral responsibility. ²⁵ We also view the failure to swear the jury as akin to violation of the public trial guarantee addressed in Waller v. Georgia, 467 U.S. 39 , 104 S.Ct. 2210 , 81 L.Ed.2d 31 (1984), the effects of which are often intangible and difficult to prove.

In Waller , the Supreme Court presumed that the closure of a suppression hearing was prejudicial, without further proof of prejudice, and vacated the conviction. See id., 467 U.S. at 44-48 , 104 S.Ct. at 2214-16. The Supreme Court reasoned, in part, that the public trial guarantee “embodies a view of human nature ... that judges, lawyers, witnesses, and jurors will perform their respective functions more responsibly in an open court than in secret proceedings[.]” Id., 467 U.S. at 46 n. 4, 104 S.Ct. at 2215 n. 4 (quoting Harlan, J., concurring, in Estes v. Texas, 381 U.S. 532, 588 , 85 S.Ct. 1628, 1662 , 14 L.Ed.2d 543 (1965)). 15 By analogy, the historic faithfulness to using an oath in judicial proceedings embodies the view of human nature that people will act more responsibly if they have taken an oath to perform certain duties. See Samuel McCart, Trial by Jury 3 9-40 (1964) (“The larger part of the value of the juror’s oath is that jurors individually and collectively take upon themselves a formal, moral obligation to the litigants and to each other, to honorably perform their duty to the best of their ability”).

For reasons discussed, we conclude that the total failure to swear a jury is an error that requires a presumption of prejudice. This conclusion, however, does not compel us to decide that the belated swearing of a jury carries the same presumptive prejudice. We turn to that question now. Belated Swearing Of Jury Is Different The jury was sworn before it retired to deliberate, so we can presume that it followed the duties and responsibility imposed by the oath while discussing the evidence and arriving at its verdict.

Our next logical step is to ask whether the ²⁶ jury’s mere listening to the evidence without being sworn is a presumptively prejudicial error. Obviously, listening to the evidence is critical to the jury’s decision. No juror can make a decision without having knowledge of the information that forms the basis for that decision. Yet, as is customary, the trial court carefully instructed the jury, before any evidence was presented, about its duties to listen to the evidence.

The court said: Let me explain how this will work. When we get to the end, right, you’ll be asked — you’ll be told really by me that you have to decide this case based on the evidence in the case. Other material that you glean from what goes on around here that is not evidence you may not consider. Evidence is quite simply, comes to you in three ways.

Most of it will be out of the mouth of witnesses on that witness stand. You may also receive certain documents, photographs, things. That you’ll get to take up to the jury room once the case goes to you as a jury. [Except for stipulations between counsel and the court] [everything else you see or hear in here is not evidence. Arguments of Counsel, comments I may make upon the evidence, none of that is evidence To the extent that we talk about evidentiary evidence here at the bench where you can’t hear, don’t take it personally.

It’s our doing our job making sure you get the evidence you need in order to render a fair and impartial verdict. Please do not talk to parties in the courtroom during your comings and goings Please do not go out and investigate the crime on your own You have to base your decision on what you hear in this courtroom which is evidence. Arguments are not evidence. They’re counsel’s attempt to help you decide the evidence.

With these instructions, the jury gained an understanding of what evidence was, and that they must listen carefully to the evidence because that was the only basis for their decision. Thus, the jury was educated as to its role from the beginning. ²⁷ When the error in failing to swear the jury was discovered, the court voir dired the jury, asking, is there “anything that would interfere with or anything