Appraicio v. State

BARBERA, J. Trial judges walk a fine line when answering questions posed by jurors during the course of their deliberations. Any answer given must accurately state the law and be responsive to jurors’ questions without invading the province of the jury to decide the case. We are asked here whether the trial court acted within its discretion in responding to a jury question concerning evidence that was not presented at trial. ⁴⁵ A jury sitting in the Circuit Court for Montgomery County convicted Petitioner Jorge Aparicio 1 of second-degree assault on October 5, 2010, in connection with an attack on his girlfriend, Clara Moran. 2 He was sentenced to five years of imprisonment, with all but 18 months of the sentence suspended, followed by three years of supervised probation. Petitioner appealed his conviction to the Court of Special Appeals, which affirmed the Circuit Court in an unpublished opinion.

We granted a petition for a writ of certiorari, Appraicio v. State, 427 Md. 605 , 50 A.3d 605 (2012), to answer the following question: Where the deliberating jury asked, “[c]an we consider the fact that there was no police report in evidence or no police testimony or to what extent can we consider the lack of above,” did the trial court err in responding that they were to decide the case based on “what is in evidence,” which the court defined as, “the testimony from the witness stand, [the] physical items of evidence, and any exhibits that have been given to you,” thereby excluding from the universe of what the jury could consider in reaching a verdict the lack of testimony and/or evidence presented? For the reasons that follow, we hold that the trial court did not abuse its discretion in answering the jury’s question in the manner it did. We therefore affirm the decision of the Court of Special Appeals upholding Petitioner’s conviction. I. In the early morning hours of July 12, 2010, Petitioner returned home to an apartment in Gaithersburg, Maryland, that he shared with his girlfriend Moran and his friend Oscar Romero.

Petitioner roused Moran, who had been sleeping in ⁴⁶ the bedroom. Moran testified at trial 3 through an interpreter that she was afraid of Petitioner because he frequently would come home drunk and hit her. Moran testified that she joined Petitioner in the living room, where he called her a “damn bitch” and threw a glass at her, which she dodged. After he missed hitting her, Moran testified that Petitioner started striking her with his fists.

At one point, he grabbed her by her hair and she fell down, after which he repeatedly kicked her until she was able to escape outside. Moran testified that she hid outside for approximately 15 minutes before returning to the apartment, where she saw Petitioner throwing some of her possessions out of a window and onto the street. At 1:54 a.m., she called 911, and a recording of that call was played for the jury at trial. In the call, Moran stated that Petitioner was “very violent,” had hit her in the head, and was throwing her possessions into the street.

The police arrived shortly afterwards and found Petitioner sitting outside of the apartment. The officers told Petitioner to leave the property and indicated to Moran that she should go back to sleep. Moran went back inside the apartment. Approximately a half hour later, she heard knocking on the front door.

Assuming it was the police, she opened the door and Petitioner came back inside the apartment. Moran testified that Petitioner struck her again on the left side of her neck and her left shoulder. Moran ran out of the apartment through the front door and hid behind several cars in the parking lot until a passerby called 911 to report the incident at 3:25 a.m. Moran told the 911 operator what had happened and the police returned to the apartment.

Moran did not go to the hospital and the police did not take photographs or write a report, although the officers told Moran that she could file a report if she wished to do so. Petitioner was taken into custody by the police and returned to the apartment around 7 a.m. ⁴⁷ Although Petitioner told Moran to leave immediately, she stayed in the house for three more days because she said she had nowhere else to go. Two days after the incident, Moran made a videotape of her injuries, which was shown to the jurors during the trial. Petitioner and Moran broke off their relationship on July 27, 2010, about two weeks after the incident.

At the urging of her friends, Moran filed a complaint against Petitioner in the District Court of Maryland on August 4, 2010. She claimed she did not report her injuries to the police sooner because she was scared. The case came on for a trial before the Circuit Court for Montgomery County on October 4, 2010. The State called Moran as its only witness and introduced the tape of her two 911 calls as well as the videotape of her injuries.

The defense called no witnesses and presented no evidence. In instructing the jury, the trial court hewed closely to Maryland Criminal Pattern Jury Instruction 3:00, which describes what constitutes evidence. 4 During closing argument, defense counsel asserted that Moran fabricated the story of the attacks in order to get ⁴⁸ revenge against Petitioner, who had broken up with her and evicted her from his apartment. Along this line of argument, defense counsel suggested that the lack of police testimony or a police report in the case demonstrated that Moran’s account of events was false, arguing as follows: Now as citizens of Montgomery County, you all know that Montgomery County Police are very well trained, very diligent, and they take real incidents very seriously. Real incidents of domestic violence, they take seriously.

They file reports, they take photos, they collect evidence, they collect statements of witnesses. You have none of that in this case. There is no report, there are no police photos. Most importantly, there is no police officer.

The police did show up that night, if the police did show up, there would be an officer to testify either that Ms. Moran was telling the truth, or testify that what she was saying wasn’t. But what’s for sure is that if police showed up, they didn’t observe any injuries on her because if so, there would be some kind of record. After retiring to deliberate, the jury presented the judge with the following note: Question 1: Can we consider the fact that there was no police report in evidence or no police testimony or to what extent can we consider the lack of above.[ 5 ] ⁴⁹ The discussion that followed among counsel and the trial court takes up more than 25 pages of transcript in the record. The State acknowledged that the jury could be aware that there was no police report or police testimony in evidence.

The State pointed out, though, that the jurors should not infer “anything against the State from that fact” and expressed concerns about the jury speculating on the absence of certain evidence. In response, defense counsel stated, “I think that the jury can consider the lack of evidence, just as they can consider the evidence.” The Circuit Court had concerns about discussing an item of potential evidence with the jury, namely the police report, that likely would have been inadmissible had the prosecution sought to admit it at trial: But don’t I need to be careful not to mislead the jury, because if what they’re asking about in whole or in part would otherwise not be admissible, isn’t that something that needs to be given some thought? ... So how do I fairly answer the question without misleading the jury? Petitioner’s counsel noted that “this question is prompted by many of the statements that were made by Defense, in Defense closing which is, no police officer testified to corroborate that there was broken glass, or there was, all the things that were testified to.” Defense counsel suggested that the jury be instructed that it may consider the evidence or the lack of evidence in reaching its verdict.

The court observed that there is a difference between what counsel may argue and the instructions that a judge presents to the jury, and the court expressed concerns about making sure the response to the jury’s question was “legally correct and fair to all sides.” The court noted: “[W]hen it comes out of the mouth of a judge, it’s so powerful that it has the, at least, potential to tilt the balance one way or the other.” The court stated its fear that, if the response to the jury was too detailed, it could end up as a lecture on what is and is not admissible in evidence and under what circumstances. ⁵⁰ Ultimately, the Circuit Court gave the following response in reply to the jury’s question: With respect to the first two topics of the note about what you can consider or not consider and what, if anything, you should do about it. Let me tell you this, members of the jury, you have to decide this case based on what is in evidence in this case. In making your decision, you consider the testimony from the witness stand, you consider physical items of evidence, and any exhibits that have been given to you. In considering the evidence which is solely the province of the jury, consider it in light of your own commonsense and your experiences.

You may draw any reasonable inferences or conclusion from the evidence that you have that you believe to be justified by your own experiences. That’s the best I can do. If you have any additional questions, I would be happy to try to answer them. Please return to the jury room and when you are all together, then and only then may you resume your deliberations.

The jury returned a verdict of guilty on the first count of second-degree assault, related to the first attack on Moran, but acquitted Petitioner of the second count of second-degree assault in connection with the second alleged attack. The court sentenced Petitioner to five years of imprisonment with all but 18 months suspended, followed by three years of supervised probation. Petitioner appealed the conviction to the Court of Special Appeals, challenging the Circuit Court’s response to the jury’s question. 6 In an unreported opinion, the Court of Special Appeals upheld the conviction, holding that the trial judge properly exercised his discretion in giving the instruction he did in response to what was “a fact question about the evidence.” The Court observed that the jury was properly instructed on the presumption of innocence and the burden of ⁵¹ proof and that the trial court’s response was an accurate statement of the law that responded to the jury’s query. The present appeal followed.

II

We review a trial court’s decision to give a particular jury instruction under an abuse of discretion standard. Stabb v. State, 423 Md. 454, 465 , 31 A.3d 922 (2011) (citing Gunning v. State, 347 Md. 332, 351 , 701 A.2d 374 (1997)). “Where the decision or order of the trial court is a matter of discretion it will not be disturbed on review except on a clear showing of abuse of discretion, that is, discretion manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.” Atkins v. State, 421 Md. 434, 447 , 26 A.3d 979 (2011) (quoting Gunning, 347 Md. at 351-52 , 701 A.2d 374 ). “The main purpose of a jury instruction is to aid the jury in clearly understanding the case, to provide guidance for the jury’s deliberations, and to help the jury arrive at a correct verdict.” Chambers v. State, 337 Md. 44, 48 , 650 A.2d 727 (1994). Maryland Rule 4-325(a) states that “[t]he court shall give instructions to the jury at the conclusion of all the evidence and before closing arguments and may supplement them at a later time when appropriate.” Upon a party’s request, the court shall “instruct the jury as to the applicable law and the extent to which the instructions are binding.” Md. Rule 4-325(c). Supplemental instructions can include an instruction given in response to a jury question.

When the jury asks such a question, “courts must respond with a clarifying instruction when presented with a question involving an issue central to the case.” Cruz v. State, 407 Md. 202, 211 , 963 A.2d 1184 (2009). Trial courts must avoid giving answers that are “ambiguous, misleading, or confusing.” Battle v. State, 287 Md. 675, 685 , 414 A.2d 1266 (1980) (quoting Midgett v. State, 216 Md. 26, 41 , 139 A.2d 209 (1958)). Petitioner argues that the trial court abused its discretion by failing to give a more responsive answer to the jury’s question. Petitioner cites State v. Baby, 404 Md. 220, 263 , 946 ⁵² A.2d 463 (2008), for the proposition that trial courts are required to respond directly to jury questions related to major issues in a case, and that failing to provide “an accurate and responsive answer is error.” Quoting Atkins, 421 Md. at 452 , 26 A.3d 979 , Petitioner argues that, “because a reasonable doubt could arise from a lack of evidence, ‘a defendant has the right to raise a defense based on the lack of evidence presented by the State.’ ” Petitioner notes that the United States Supreme Court and other jurisdictions have approved of reasonable doubt instructions that state that jurors may consider the lack of evidence, as well as the evidence presented. 7 Petitioner argues that the trial court’s instruction not only failed to mention the jury’s ability to consider the lack of evidence, but the instruction affirmatively negated the jury’s ability to do so by instructing jurors that they had to decide the case based on “what is in evidence.” Petitioner argues that the trial court’s instruction undermined the defense theory presented in closing argument that Moran concocted the story to get revenge against Petitioner.

Petitioner asserts that the jury did not ask a fact question about the evidence, but a question of law that should have been addressed by explaining that a reasonable doubt can arise from the evidence or the lack thereof. In conclusion, Petitioner contends that the error was not harmless beyond a reasonable doubt because the State provided only one witness, Moran; her credibility was a major part of the State’s case; and the jury struggled with the outcome, as evidenced by the multiple questions it asked the judge and a statement the foreperson made expressing how difficult it was for the jury to ⁵³ reach an agreement on the charges. The State counters that the trial court acted within its discretion in crafting the jury response it did. We agree with the State.

The trial court here was right to be cautious concerning its response to the jury’s question because too much commentary on the evidence can cross the line into being inappropriate. “[A] Judge, because of his high and authoritative position, should be exceedingly careful in any remarks made ... and should carefully refrain, either directly or indirectly, from giving expression to an opinion upon the existence or not of any fact, which should be left to the finding of the jury.” Dempsey v. State, 277 Md. 134, 149 , 355 A.2d 455 (1976) (quoting Elmer v. State, 239 Md. 1, 10-11 , 209 A.2d 776 (1965)). Certainly, trial courts have a duty to answer, as directly as possible, the questions posed by jurors. Our decision in Baby makes the point. In Baby , the jury twice asked during a rape trial whether a woman could withdraw consent after intercourse had begun. 404 Md. at 263 , 946 A.2d 463 .

We held that it was error for the trial court to refer the jury back to the legal definition of rape because that definition “was not sufficient to address either of the jury’s questions.” Id. at 263-64 , 946 A.2d 463 . It is important to understand, though, that the jury’s question in Baby sought an answer to a purely legal concern. When the jury’s question seeks guidance on how to find the facts, however, the judge’s response must be more circumscribed, so as not to invade the province of the jury. We have said that: “[ijnstructions as to facts and inferences of fact are normally not required.” Patterson v. State, 356 Md. 677, 684 , 741 A.2d 1119 (1999).

This is because an instruction regarding particular evidence “may have the effect of overemphasizing just one of the many proper inferences that a jury may draw.” Id. (quoting Davis v. State, 333 Md. 27, 52 , 633 A.2d 867 (1993)). The question asked of the trial court was, “Can we consider the fact that there was no police report in evidence or no police testimony or to what extent can we