Benjamin v. State

WENNER, Judge. Appellant, Gregory Benjamin, was convicted by a jury in the Circuit Court for Baltimore City of second degree assault and related charges. After he was sentenced to a term of twenty-five years without parole for the use of a handgun ⁵²⁹ during the commission of a crime of violence conviction, to a term of ten consecutive years for the second degree assault conviction, to an additional term of five consecutive years for the possession of a firearm after being convicted of a crime of violence conviction, and to a concurrent term of five years for the reckless endangerment conviction, 1 he noted this appeal. On appeal, we are presented with the following question: Did the trial judge err in refusing to grant a mistrial in light of the apparent incompetence or unwillingness of a juror to effectively participate in jury deliberations, dismissing that juror, and subsequently allowing that juror to participate in jury deliberations upon discovering that no alternate jurors were available?

We shall answer “yes,” and reverse the judgments of the circuit court. Facts As the underlying facts are irrelevant to the issue presented by appellant, we shall not recount them. The only issue before us involves the trial court’s encounter with an uncooperative juror during jury deliberations. At the close of evidence and oral argument, the trial court instructed the jury and dismissed the alternate juror.

The jury then retired to begin deliberations. In approximately three hours, a note containing three questions was received from the jury. The trial court answered two of them, but did not answer the question of what would happen if the jury was unable to reach a decision on all counts. When the jury was directed to return to its deliberations, Juror # 3 was asked to remain in the court room.

In the presence of defense counsel and the defendant, the following exchange ensued: The Court: Ms. Watkins? ⁵³⁰ Juror # 3: Urn-hum. The Court: I’ve just noticed over this .little bit of time that you don’t seem comfortable or happy. You seem a little angry. I mean, I’ve been a judge for 15 years and you’ve got to sense or see things pretty quickly, even by body language.

And you were saying things just as you came out and I overheard — I’m not quite sure what you said, but it didn’t sound like you were a happy camper. Juror # 3: I asked her to write down to ask you could one of us leave, you know, could one of us just leave. I mean, can we leave? I mean, can I leave?

The Court: Well, you have to tell me why you want to leave? Juror # 3: Because they’re not sticking to the issue here, to me. I think if they stick to the issue, what we are supposed to, maybe we can come to some kind of agreement. They just don’t want to— The Court: Okay.

Because you have 11, if you have 11 jurors who think they are sticking to the issue— Juror # 3: They’re not. The Court: But if 11 think they are and one thinks they’re not, would that tell you something? Juror # 3: If we were sticking to the issue, it wouldn’t take that long, don’t you think so? The Court: Well, I think the question is whether— Juror # 3: All right.

I’ll stay. The Court: Just a minute. I’m not trying to twist your arm to stay. That would be equally wrong.

Okay? The question is whether, if you feel that you’re not able to reason with them and listen to them, not to surrender yourself to them, but to listen to them, that’s a serious matter because it really would thwart the jury process. It would be the same as if a judge were to come out and the lawyers were all sitting there ready to argue their case and the judge said, ⁵³¹ “I’m just not going to listen to you. I’ve made up my mind.” Juror # 3: You know why I ain’t listening to them?

Because they don’t listen to me. When I say something, they don’t listen to me. The Court: If I did that, then I would be wrong, and if you did that, you would be wrong. And judges sometimes have to sit in groups of judges, too.

They sit on what we call panels and we basically— Defense Attorney: Your Honor, I don’t mean to interject, but— The Court: I know where I am. So I want you to give some thought to it and I should tell you what I will tell the entire jury panel, what I did not say that I meant to say about one of the questions here, “What happens if we can’t reach a decision on all counts?” I think I won’t continue with that until I’ve talked to the lawyers about that. Do you want to just go over and have a seat there and just think about what I’ve said? Would you mind sitting way at the end there just so we don’t overhear one another and we don’t bother you in your thinking?

Prosecutor: Judge, my suggestion is just get her back in and try to start deliberating again. The Court: But there is certainly precedent for excusing jurors who are not cooperating in the jury process and I have no hesitation in doing that. Defense Attorney: Well— The Court: I understand your position and I understand you’ll take exception to it because you’re going to deduce what her position is. Defense Attorney: Well, I’m not sure — see, my problem with this whole conversation is I’m not sure that we understand what her problem is.

I don’t think its that she’s not participating. She’s come to a decision one way or the other, which she is entitled to. ⁵³² The Court: No, she didn’t say that. She said, “They’re not listening to me. Why should I listen to them?” I deduce from that that she’s not listening to them.

Defense Attorney: Well, I think that we’re treading on thin waters — thin ice when we say, you know, “The 11 think this and so maybe you should listen to them” because maybe she’s not. I mean, she could be whatever. I don’t know whether she is for the State or for the defense. The Court: With your permission, the question was put to the forelady who made it very clear that it was one person and there is no doubt who it is.

So that’s not even an issue and, of course, there is nothing morally or legally or technically -wrong -with one person reaching a decision different from 11. Defense Attorney: That’s right. The Court: But it’s not been told to them yet, by the way, well let me finish that thought. There’s nothing wrong -with one person being different from the other 11, but what is wrong and what I will not accept is a juror who is simply not participating in the process.

That is not going to be acceptable to me, I don’t care what side of the fence she is on. Defense Attorney: But I don’t think we know that. The Court: I think we know it because the forelady said it and she has said it, too. I don’t know what better evidence there is than the very two people who are, in effect, saying the same thing.

But let me go on to chapter two of this while we’re all here. I have not fully answered the question about “What happens if we cannot reach a decision on all counts?” I really didn’t emphasize — meaning that maybe they have a decision on some counts. Defense Attorney: Well, I thought the problem was one through six. Maybe that’s why I thought the problem was— The Court: Well, that’s a fair comment to make.

I didn’t read it that way. Well, I don’t mind — I’ll bring them back ⁵³³ and talk about that. I didn’t say something that’s important, which is a mistrial. Defense Attorney: Right.

The Court: All right. Let me bring them back. Juror number three, do you have any additional thoughts you want to share with us before we bring the jury back in? Juror # 3: No. The Court: What?

Juror # 3: No. The Court: Do you want to stay and continue to serve, or do you want to be excused? Juror # 3: I want to be excused. The Court: I’m sorry. You better come up and talk to us because it is not on the record.

(Juror # 3 approached the bench.) Juror # 3: I said, can I be excused? The Court: And the reason? Defense Attorney: Well, could I make a suggestion, Your Honor? Could you make the other announcement first and then give her the opportunity to decide whether she still wants to be excused?

The Court: Well, she’s already answered that question. Juror # 3: I do want to be excused. The Court: I don’t think there’s any doubt about that. What is the reason for?

Do you feel that you can or cannot participate with this jury? Juror # 3: I’ll participate if they stick to the issue. The Court: But other than that answer, can you give me a different answer, one that also reflects your thinking, because that one doesn’t help me very much. Juror # 3: I don’t have a reason why.

The Court: What? Juror # 3: I don’t really have a reason why. The Court: You don’t have a reason why? ⁵³⁴ Juror # 3: Why I want to leave. I just don’t want to be with them.

The Court: You don’t want to be with them? Juror # 3: No. The Court: You’re having a hard time consulting with them and talking with them about the facts? Juror # 3: I’m not saying anything. It’s not me, it’s them.

The Court: “Them” being all the other 11? Juror # 3: I can’t speak for the rest of them. You have to ask them. The Court: Well, when you say “them,” you mean the jurors in the jury room now, of which there are 11?

Juror #3: You have to ask them. I can only speak for myself. The Court: How would they tell me why you’re having— why you’re uncomfortable on this jury? I think only you can tell us that.

Juror # 3: I’m uncomfortable because they don’t want you checking anything and instead of focusing on what we are supposed to be focusing on. I mean, maybe it will help us get out of here. That’s how I look at it. I want to do what we’ve got to do so I can get out of here.

At the conclusion of this exchange, the jury returned to the courtroom and the final question posed by the note was answered. The jury was then directed to return to its deliberations, but Juror # 3 was again asked to remain in the courtroom. Following the jury’s departure, another exchange ensued: The Court: Now, having heard what I just said, does that influence your thinking? Juror # 3: There’s nothing wrong with my thinking.

The Court: No, I didn’t mean there is anything wrong with it. I’m saying if it makes any difference to you. Juror # 3: Yeah, if it makes any difference, you know. If they do like you say, I mean, there shouldn’t be no problem.

The Court: What did I just say that— ⁵³⁵ Juror # 3: You said if we can come to some kind of agreement on a couple of them, not all of them, but some of them. That’s fine. But I bet they didn’t. The Court: But you bet they didn’t?

Juror # 3: Um-hum. Okay. That’s fine. The Court: So now with that clarification, do you want to continue on this jury and continue — you’re saying “no”?

Juror # 3: No, I don’t but ain’t no way I can get out of it, is there? The Court: Yes, by my excusing you. Juror # 3: Well, can you excuse me, please? The Court: If I felt that you were not going to — if I felt that you weren’t comfortable with this jury in the way that I’ve asked you to perform your duty, which is to be part of — you don’t have to be best friends, but be part of a process where you’re listening to one another and you’re open to the views of other people, if I felt you couldn’t do that — and no one is wagging a finger at you like you’re a bad person.

It’s only a question of your mental attitude. All of us have been in situations where we felt we were not able to really be part of the process because of all sorts of reasons and it is not that unusual. If that is your state of mind, you see, because if that is your state of mind and you tell me that and you feel you can’t be part of this jury, is what it amounts to, then I’m going to have to honor that, but I can’t put words in your mouth and I can’t say, without you’re saying it, that you can’t participate. I can’t say that.

There’s nothing wrong with — I mean if there are differences, that’s part of the jury process and no juror is required to be in lock step with everybody else, but as they march down that road to a decision, they do march down together and they are listening to one another talk about the evidence and the law, and they’re listening to the people express their opinions and they’re open to why they have those opinions and they wonder if this is something that should influence their decision, but they don’t surrender their convictions either -without having that information ⁵³⁶ unless the change is caused by an intelligent process of your own, which comes about after you’ve listened to other people, if it comes about at all. That’s the process I’m talking about, and if you’re not able or willing to participate in the process that way, then you would be excused, but only you can tell me if you can or cannot. Juror # 3: What your saying, if I can sit down and listen to them? I mean, but why— The Court: Well, they listen to you, too.

Juror #3: They ain’t listening to me, because I already gave them my verdict. This is, like, we got the — okay? We wrote down the numbers of it and we just put whatever, right? They got mine.

It’s them. And I ain’t changing my mind. That’s all to it. The Court: It’s not a question about you changing your mind.

Juror #3: Well, I have nothing else to say. They got mine. It’s them. You need to be saying that to them that’s in there chit-chatting.

The Court: Ma’am, it’s not a question of whether you change your mind on the decision in the case that you may have reached. The question is whether you’ll change your mind by listening to other people. If you can’t do that, then you will be excused. Juror # 3: I can’t listen to them.

The Court: Then you’re excused. At this juncture, although Juror # 3 retrieved her belongings, she remained in the courtroom. Defense counsel then stated, “I would make a motion for mistrial, Your Honor. I just think — well, I’ve never seen this done and I just feel that what I hear her saying and you heard her saying was two different things.” Defense counsel believed Juror # 3 was the “hold out,” but the trial court believed she was simply not willing to participate in the jury’s deliberations.

Although Juror # 3 had been dismissed, upon learning from the forela-dy that a verdict had been reached on several of the nine ⁵³⁷ counts, the trial court suggested that a partial verdict be accepted. Defense counsel responded, “I just think there’s been too much communication with the jury, Your Honor. I’m going to renew my motion for [mistrial]. I think the case should be retried with a new jury, in all fairness to Mr. Benjamin.” The motion was denied, and the clerk was directed to recall the previously dismissed alternate juror.

On learning that the alternate could not be reached, Juror # 3 was reseated and directed to join in the jury’s deliberations, and she did so. 2 Approximately one half hour later, the jury reported that while it was deadlocked on four counts, it had reached a verdict on the remaining counts. On receiving this information, the trial court replied, “if you spend just a little more time, you may end up breaking the