Alston v. State

JOHN C. ELDRIDGE, J., (Retired, Specially Assigned). This Court in Harris v. State, 406 Md. 115, 129-132 , 956 A.2d 204, 212-214 (2008), held that where a criminal defendant was convicted by a jury which had never been sworn, the failure to swear the jury was a “structural error” requiring the reversal of the conviction and the award of a new trial. Because the error was “structural,” it could not be cured by anything occurring at the original trial, and principles of ⁹⁶ waiver and harmless error were inapplicable. With regard to the situation “where the jury was sworn, but where the administration of the oath to jurors did not occur before all or a substantial part of the evidence had been introduced,” the Court in Harris stated: “we leave for another day the resolution of any issues arising when there is a belated administration of the oath to jurors.” Harris, 406 Md. at 128-129 , 956 A.2d at 212 . “Another day” has arrived, as the case at bar involves the belated swearing of the jury.

This case also presents an issue of whether the defendant-petitioner was lawfully convicted of and sentenced for conspiracy to commit first degree murder. I. Petitioner 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 or transporting a handgun. Alston was tried before a jury in the Circuit Court for Baltimore City on June 10, 11, 14, and 15, 2004. The jury returned a verdict of guilty on the charge of conspiracy to murder and acquitted Alston on the remaining charges.

Alston was sentenced to life in prison for conspiracy to commit murder. The Court of Special Appeals affirmed the judgment, and this Court granted Alston’s petition for a writ of certiorari. Alston v. State, 177 Md.App. 1 , 934 A.2d 949 (2007), cert. granted, 403 Md. 304 , 941 A.2d 1104 (2008). Testimony elicited at trial described the incidents that led to the death of the victim, Johnny Cabizza. 1 Shervan Easton, an alleged accomplice and co-conspirator, who was granted immunity in exchange for his testimony, testified at Alston’s trial that he had met Alston at around noon on July 10, 2003, along with another individual named “El,” at the main office of their ⁹⁷ employer in Capitol Heights, Maryland. 2 Easton stated that the three men chatted briefly and then decided to drive to Baltimore to “get some blow, some heroin.” Easton drove a blue Ford van and Alston and El followed him in a red Kia automobile.

Once in Baltimore, they located a group of four or five teenagers sitting on a stoop at the corner of Edmondson Avenue and an alley. They asked the group if there “was anything out, and they said, yes, you know, just walk around the corner.” Easton and Alston proceeded around the corner while El stayed behind. Easton testified that, as he and Alston walked down the alley, “a little guy ... pulled a pump shotgun from under a cardboard box and stuck it in my face and told me, that’s right, throw all the money down and take the phone off your hip too.” Easton also indicated that, at the time of this encounter, Alston was “like 10 feet behind me.” After the robbery, Easton testified that he and Alston “backed off’ slowly, and then the three men returned to their vehicles. As they drove away, Easton spotted one of the teenagers who had directed them down the alley, riding a bicycle.

Easton tried to turn his vehicle around to chase the teenager, but instead the vehicle struck a tree. Alston, Easton, and El continued to drive around the neighborhood searching for the person who had robbed them, but they eventually gave up and drove to a different part of Baltimore where they purchased heroin. They then returned to Easton’s house in Anne Arundel County. According to Easton’s testimony, once back at his house, Alston began to taunt Easton, saying, “hey, boy, you want your stuff back.” When Easton responded that he “would like to have [his] stuff back,” Alston asked for Easton’s gun, a .380 Taurus pistol, and the three men returned to Baltimore in Alston’s vehicle.

Easton testified that, once they arrived in the neighborhood where the robbery occurred, Easton remained in the parked car while ⁹⁸ Alston and El walked through the alley searching for the individual who had earlier robbed Easton. After 15 to 20 minutes, Easton heard two or three gunshots, followed by Alston and El returning to the car at a “fast jog.” When the police responded to a call for a shooting at about 5 p.m. on July 10, 2003, in the 1800 block of Edmondson Avenue, they found Johnny Cabizza lying on the sidewalk bleeding from multiple gunshot wounds. Cabizza was taken to a hospital where he was pronounced dead. A firearms examiner of the Baltimore City Police Department testified that the bullets removed from Cabizza’s body, as well as the cartridges recovered from the scene, came from a .380 pistol, and that all of the cartridges recovered had come from one gun, likely a Taurus or Beretta semiautomatic pistol.

After discovering Easton’s cell phone on the body of the victim, the police located Easton at his home on July 11, 2003, at approximately 3 a.m., and brought him to the police station for questioning. During the course of the investigation, Easton was granted immunity in return for his cooperation and agreement to testify for the State. In addition to Easton’s testimony, three of the teenagers who had initially directed Easton and Alston to the alley testified on behalf of the State. In some respects their testimony corroborated Easton’s testimony, and in other respects it differed somewhat.

All of the State’s evidence, except for a stipulation concerning gun shot residue, had been introduced by the end of the third day of trial. At the beginning of the fourth day of trial, defense counsel represented to the trial judge that, during the prior evening, defense counsel realized that the jury had never been sworn. Following conversations between the trial judge and counsel for each side, which were apparently not recorded, the case was called and the judge stated: “THE COURT: [I]t appears that no one swore the jury. Now, I’ve spoken to counsel about this at length.

Counsel has had a chance to talk to their client. What I proposed to do is, swear them now, question them as to whether or not they’ve in any way done anything or experienced anything ⁹⁹ that would violate their oath and whether they’re able to fulfill their oath. “The Defendant wishes, I know, to make a motion for mistrial, but a rapid review of the case law indicates there is no case law. So what I would rather do rather than try to do this in a helter-skelter way while the jury’s standing up there in the room is instruct the jury, close the case, wrap it up and you can refil[e] on the same grounds in a motion for a new trial. At that time, we’ll have the time to look up the law in other states and see if there’s any federal cases that apply to this jurisdiction, if there’s any other law that clarifies this point, rather than try to do this all of the sudden and throw away perhaps unnecessarily, perhaps necessarily, the efforts of the jury over the last two days and everybody else involved in this case.

So you want to make a motion for a mistrial? “MS. DAVIS [DEFENDANT’S ATTORNEY]: Your Honor, based on the fact the jury was not sworn, I would make a motion for 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 COURT: The motion is denied with leave to basically raise the same grounds in a motion for new trial depending on how the case comes out. Are we all clear on this?” The oath was then administered to the jury. Next, the trial judge addressed the jury as follows: “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 this oath and treating this oath as though it were administered at the beginning of this case. ¹⁰⁰ In other words, it’s as though you were sworn in at the beginning of this 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 would affect your ability to deliberate and decide this case in accordance with the oath you’ve just been given, in accordance with the evidence in this case, in accordance with the law of the State of Maryland?” The trial judge proceeded to inquire of each juror individually, “Is there anything?” Each juror responded “No,” with the exception of two jurors whose responses were inaudible to the transcriber, but which we shall assume were also “No.” 3 After questioning the jurors, the judge stated: “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.” As previously indicated, the State then filed a brief stipulation regarding gunshot residue and rested. The defendant moved for a judgment of acquittal, which was denied, and then rested without presenting any evidence. The trial judge gave detailed instructions to the jury concerning each of the offenses charged, and counsel then made closing arguments.

With respect to the count charging conspiracy to murder, the trial judge instructed the jury as follows: “The Defendant is charged with the crime of conspiracy to commit murder. Conspiracy is an agreement between two or more person[s] to commit a crime. In order to convict the Defendant of conspiracy, the State must prove, (1) that the Defendant entered into an agreement with at least one other person to commit the crime of murder and ¹⁰¹ that the Defendant entered into the agreement with the intent that that crime be committed.” Defense counsel made no objection to the instructions. Following deliberations, the jury returned verdicts of not guilty on the first and second degree murder charges and on the two handgun charges.

The jury, however, did find Alston guilty of conspiracy to murder. Specifically, the judge asked the jury: “THE COURT: [D]o you find that the Defendant, Anthony Alston, did conspire with certain other persons to murder Johnny Cabizza, not guilty or guilty? “JURY FOREPERSON: Guilty.” The jury was polled and the clerk announced to the jury that “[y]ou have found the Defendant guilty of conspiring with others to murder Johnny Cabizza.” The jurors all agreed. The trial judge thanked the jurors for their service and then dismissed the jury. Following a discussion with counsel concerning a presentence investigation and a date for sentencing, the trial judge posed a question to the attorneys for each side: “THE COURT: Let me ask you all a question.

I know we’ve had so many strange issues come up in this case. Tell me, Pm sure you probably are all correct that it doesn’t matter, but the Verdict Sheet as to Count I does not—‘did conspire with certain other persons to murder Johnny Cabizza.’ No degree is mentioned. “MS. AYRES [PROSECUTING ATTORNEY]: Your Honor, murder in the first degree. “THE COURT: It’s not what it says on the Verdict Sheet. “MS. AYRES: On the copy I have it says that. “THE COURT: Where did this come from? “CLERK: That’s— “MS.

DAVIS [DEFENDANT’S ATTORNEY]: And that’s on the copy I have just says murder. It doesn’t specify whether it was first. ¹⁰² “THE COURT: Where’s the Verdict Sheet they signed? It just says ‘Murder.’ What does that mean? Where did this Verdict Sheet come from? “CLERK: (Inaudible). “THE COURT: From the indictments.

So the indictment does say murder in the first degree, murder in the second degree? “MS. AYRES: No. I thinkit’s conspiracy to murder.[ 4 ] “THE COURT: All right. Well, this—-well, anyhow, you deal with that. All right.

You’ve got ten days. “MS. DAVIS: Yes. “THE COURT: And it might be there’s a presumption, therefore, it’s murder in the second degree, but I don’t know what it means. All right. Anything else?” Thus, it was the trial judge who initially saw and raised the issue concerning the charge of conspiracy to murder.

He instructed counsel to “deal with” it in the motion for a new trial which was due in 10 days. At oral argument on the motion for a new trial, defense counsel renewed her objection to the belated swearing of the jury. The trial judge rejected the argument, stating: “THE COURT: I mean I thought about the issue, and my reaction is that it probably is quite harmless. I can’t figure out why it would make any difference. “In other words, I swore them as best I could eventually in a retroactive way.

As I recall, I asked them, ‘Any issues with respect to being sworn now? Anything that you would have done previously that would have violated the oath?’ And I did the best I could. And I think, frankly, it is quite harmless and irrelevant. So I’ll deny the motion [on] that ground.” ¹⁰³ Alston’s attorney also addressed, inter alia, the conspiracy charge, arguing that a new trial was warranted “based upon the fact that the State charged my client with conspiracy to commit murder.

There’s no language in the indictment, nor was there any language in the jury instruction-]: watched the videotape. The Court instructed the jury that conspiracy to commit murder was an agreement between two persons to commit murder. It was not specific as to whether or not he was charged with conspiracy to commit first or second degree murder.” The defendant’s attorney continued: “[T]he Court [of Appeals] has left open the possibility that there is such a crime as conspiracy to commit murder [in the second degree]. Because that delineation was not made on the indictment, it was not made during jury instructions, it was not argued before the jury, I believe that the Court should allow my client to have a new trial based on that issue. “It makes a huge difference.

My client could be facing life imprisonment, or he could be facing a maximum penalty of 30 years.” The trial judge responded by pointing out that “nobody asked me to give an instruction on conspiracy to commit second degree murder.” The judge continued: “[I]f you thought there was such a thing as conspiracy to commit second degree murder, why didn’t you ask for an instruction?” Defense counsel answered that, “at that time, my issue was that it shouldn’t have been sent to the jury at all.” The judge alternatively ruled as follows: “[B]y the very definition of what a conspiracy is, how can it ever be second degree murder? In other words, you can’t have conspiracy if you didn’t plan, think, devise, and so forth.” The court denied the motion for a new trial and sentenced Alston to life in prison for conspiracy to murder. Alston appealed and, as previously mentioned, the Court of Special Appeals, affirmed. With regard to the belated administration of the jury oath, the Court of Special Appeals held “that the ¹⁰⁴ belated swearing of the jury was harmless error.” Alston v. State, supra, 177 Md.App. at 30 , 934 A.2d at 966 .

As to Alston’s contention that he should not have been convicted of conspiracy to commit first degree murder, the intermediate appellate court held that “Alston’s failure to challenge the jury instruction [relating to conspiracy to murder] ... now bars his asserted assignment of error.” Alston, 177 Md.App. at 40 , 934 A.2d at 972 . Alston filed a petition for a -writ of certiorari which this Court granted. Alston v. State, supra, 403 Md. 304 , 941 A.2d 1104 . The petition presented the following two questions: “1.

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? “2. Did the trial court err in sentencing Alston to life for conspiracy to murder where under the instructions given the jury could have found Alston was guilty only of conspiracy to commit second degree murder?” The State filed and this Court granted a conditional cross-petition for a writ of certiorari, raising the question of whether Alston waived his challenge to the belated swearing of the jury by not raising the issue at an earlier point in the trial. Since we shall answer the first question in Alston’s certiorari petition in the negative, we shall not reach the issue presented in the State’s cross-petition.

II

A. In Harris v. State, supra, 406 Md. at 129 , 956 A.2d at 212 , this Court held “that principles of waiver and harmless error are inapplicable when a jury in a criminal case has never been sworn.” We held that “a jury which has never been sworn falls into the same ‘structural error’ category as a defective reasonable doubt instruction, the denial of a right to a jury trial, the total deprivation of counsel,” etc., and that, therefore, “the complete failure to swear the jury can never be harmless error.” Harris, 406 Md. at 130 , 956 A.2d at 213 . ¹⁰⁵ In reaching these conclusions in Hards, this Court pointed out that Article 5 of the Maryland Declaration of Rights grants to litigants the right to a common law jury, and, to be “legally constituted,” a common law jury must be sworn, Harris, 406 Md. at 124-129 , 956 A.2d at 209-213 . See also Maryland Rule 4—312(f) (referring to jurors impanelled to hear the case as “sworn jurors”). The Harris opinion also relied on numerous cases which “have held that a sworn jury is an element of an ‘impartial’ jury,” guaranteed by Article 21 of the Maryland Declaration of Rights. Harris, 406 Md. at 125-129 , 956 A.2d at 209-213 .

Moreover, in Harris we reviewed an almost unanimous line of cases in other jurisdictions holding that the harmless error principle has no application when a defendant is convicted by a jury which was never sworn. Finally, we noted in Harris, 406 Md. at 131-132 , 956 A.2d at 213-214 , that, under double jeopardy principles, jeopardy attaches in a criminal jury trial when the jury is sworn. If the jury is never sworn, the accused arguably has never been placed in jeopardy and, therefore, runs the risk of being prosecuted a second time for the same offense. Turning to the present case, the belated administration of the oath to the jurors clearly violated Maryland Rule 4-312(f).

Consequently, it constituted error. The pertinent issues are whether the harmless error doctrine is applicable and, if applicable, whether the error was harmless. Unlike Hards, the present case does not involve a jury which was never sworn. The jury in this case was administered the oath near the end of the prosecution’s introduction of evidence, and the trial judge instructed the jury that it should treat the oath as if “it were administered at the beginning of the case.” This difference between the instant case and Harris is most significant.

The reasons set forth in Hards, for holding inapplicable the harmless error doctrine, are absent here. The jury in this case, having been sworn, was a “legally constituted” common law jury. It did not lack impartiality because of the absence of an oath. Because the oath was administered, even though belatedly, jeopardy at ¹⁰⁶ tached.

Any attempt to prosecute Alston again for the same offenses charged in this case would be prohibited by double jeopardy principles. As noted in Harris, 406 Md. at 126-129 , 956 A.2d at 210-212 , cases in other jurisdictions are in conflict with regard to the applicability of the harmless error principle when a jury is belatedly sworn. Nevertheless, a substantial majority of the cases have held that, as long as the oath is administered before the jury begins deliberations, the harmless error doctrine is applicable. See, e.g., State v. Godfrey, 136 Ariz. 471, 472 , 666 P.2d 1080, 1081 (1983) (After reviewing cases from several states, the court concluded: “These cases exemplify the apparent majority view that a failure to swear the jury until the case has commenced is generally harmless error ... where there is no actual prejudice shown and the oath is administered prior to deliberations”); People v. Clouse, 859 P.2d 228, 233 (Colo.App.1992) (“[W]e conclude that the failure to swear in the jury at this stage of the trial constituted harmless error____ The record confirms that the jury was sworn in long before deliberations, and the trial court informed the jury that the oath applied retroactively”); Adams v. State, 286 Ga. 496, 498 , 690 S.E.2d 171 (2010) (“[I]n the absence of a showing of actual prejudice ..., there is no reversible error if a belated oath is given prior to the jury’s deliberations”); People v. Abadia, 328 Ill.App.3d 669, 677 , 262 Ill.Dec. 881 , 767 N.E.2d 341, 349 (2001), leave to appeal denied, 201 Ill.2d 575 , 271 Ill.Dec. 929 , 786 N.E.2d 187 (2002) (“[F]ailing to administer the juror’s oath until after the close of the government’s case but before deliberation was harmless error,” citing United States v. Hopkins, 458 F.2d 1353, 1354 (5th Cir.1972)); State v. Apodaca, 105 N.M. 650, 654 , 735 P.2d 1156, 1160 (1987) (“Although a jury’s oath is not a mere formality, ... where the jury is sworn during trial, but prior to commencement [of] deliberations upon the verdict, the error does not warrant reversal in the absence of prejudice”); People v. Morales, 168 A.D.2d 85, 89 , 570 N.Y.S.2d 831, 833 (1991) (“[T]he jury was sworn prior to deliberations,” and “the delay in swearing the jury constituted harmless error”); State ¹⁰⁷ v. Roberge, 155 Vt. 121, 122-123 , 582 A.2d 142, 143 (1990) (“[A]bsent ... a showing of prejudice by the delay in swearing, there is no reversible error where a jury is sworn before deliberations in a criminal case”); State v. Block, 170 Wis.2d 676, 682 , 489 N.W.2d 715, 717-718 (1992) (The jury was not sworn until six prosecution witnesses had testified, and the court held: “Although the trial court here could have in the reasoned exercise of its discretion granted defendant’s mistrial motion,” nonetheless “[ajbsent prejudice, reversal is not warranted”).

See also, e.g., Cooper v. Campbell, Superintendent, Arkansas Department of Correction, 597 F.2d 628, 629 (8th Cir.1979), cert. denied, 444 U.S. 852 , 100 S.Ct. 106 , 62 L.Ed.2d 69 (1979); State v. Gallow, 452 So.2d 1288, 1290 (La.App.1984); State v. Saybolt, 461 N.W.2d 729, 736-737 (Minn.App.1990); Lester v. State, 767 So.2d 219, 223 (Miss.App.2000); State v. Barone, 329 Or. 210, 227 , 986 P.2d 5, 17-18 (1999). We agree with the majority view that draws a distinction between (1) a jury which is never sworn or not sworn prior to deliberations, and (2) a jury that is belatedly sworn, but the oath is administered before the commencement of jury deliberations. As previously discussed, the reasons for treating the former as structural error do not apply to the latter. Accordingly, in the latter situation, the error is subject to a harmless error analysis.

Where the defendant is not prejudiced by the delay, the late administration of