Brown v. State

BELL, Judge. In this case, Terrence Brown, the petitioner, presents three questions for our resolution: 1. Did the trial court’s variation of the modified Allen 1 charge coerce the jury, which had announced it was hopelessly deadlocked, into returning a guilty verdict? ³⁸⁸ 2. Did the trial court err in permitting improper prosecutorial closing argument? 3.

Did the trial court err in admitting evidence that, on prior occasions, the alleged victim had exercised “proper firearms discipline”? We shall reverse the judgment of the Court of Special Appeals, which affirmed the judgment of the Circuit Court for Prince George’s County. Contrary to those courts, we are of the opinion that reversible error was committed when the State informed the jury, in its rebuttal closing argument, that it could recommend mercy to the trial court. We do not reach, therefore, the other two issues raised by the petitioner.

I Ryan Johnson, the victim, was an off-duty Prince George’s County police officer. The incident during the course of which he was killed occurred while Johnson was working on his car outside of a friend’s home. Although dressed in civilian clothing, and, as indicated, off-duty, Johnson was armed with his service revolver. Petitioner was a passenger in an automobile driven by his co-defendant, Harry Mayo.

Mayo drove past Johnson, made a U-turn, and returned to where Johnson was standing. Petitioner got out of the car carrying a handgun in his crotch area and approached Johnson. The two men exchanged words. During the exchange, Johnson pulled out his service revolver and shot the petitioner in the lower abdomen.

The petitioner returned fire, mortally wounding Johnson. The petitioner was taken to a District of Columbia hospital, where he underwent surgery. The petitioner was charged with first degree felony murder, attempted robbery with a deadly weapon and use of a handgun in the commission of a felony or a crime of violence. The State’s theory was that the petitioner’s purpose in approaching Johnson was robbery.

It adduced testimony to that effect from a detective who interviewed the petitioner hours after the surgery and from the petitioner’s co-defendant, Mayo. For his part, the petitioner maintained that he approached ³⁸⁹ Johnson to offer assistance with his disabled vehicle and that he returned Johnson’s gunfire only in self-defense. In its rebuttal closing argument to the jury, the State argued: [Defense counsel] made it very clear to you what kind of sentence [the appellant] is facing if you find him guilty, and you shouldn’t be swayed by that in rendering your verdict because that’s for the judge to do. But before all of you, or those of you who are concerned, who are concerned that perhaps the punishment may be too harsh because this young man did lead a good life up until April 16, because perhaps he made that decision because he was foolish, there is something that you can do, and that is, if you find him guilty, as I suggest to you the evidence when you look at it in the totality of the circumstances, when you weigh the credibility of the different individuals, I suggest it does establish that he was trying to rob the officer, no other explanation, and that is supported by the evidence, and you can recommend to the Court that the Court have mercy on the Defendant. [DEFENSE COUNSEL]: Objection.

THE COURT: That’s a matter of law that they can, Maryland law allows it. Objection overruled. [PROSECUTOR]: So if you have concerns about what may happen to him after you have done your duty, you may relay that to the Court and ask the Court to have mercy when imposing the sentence. The petitioner believes that this ruling was error. Consequently, it was one of the issues he raised on his appeal to the Court of Special Appeals, which, he maintained, required reversal of his conviction.

The intermediate appellate court, in an unreported opinion, agreed with the petitioner that the ruling was error. It held, however, that the error was harmless. The court reasoned: The State refrained from suggesting either probation or a suspended sentence as possibilities; and the comment con ³⁹⁰ cerning a recommendation of leniency was a correct, albeit incomplete, statement of the law. Appellant has not convinced us that the trial judge’s error contributed in any way to the jury’s verdict.

We issued a writ of certiorari at the petitioner’s request. II A. This Court recently addressed Maryland Rule 4—327(f) 2 and concluded that it was not a proper subject of jury instructions. Chambers v. State, 337 Md. 44, 47 , 650 A.2d 727, 728 (1994). 3 In that case, after the close of all of the evidence, but before the jury had begun deliberations, the petitioner asked the court to instruct the jury as follows: Members of the Jury, you have found the Defendant guilty. I am going to ask you to return to your jury room and decide whether or not the Court should show mercy to the Defendant in sentencing.

When you have reached a deci ³⁹¹ sion, either yes or no, on whether the Court should show mercy upon the Defendant in sentencing please knock on the door, the bailiff will escort you back to your seats and the Clerk will ask the Foreperson for your answer. Id. at 46 , 650 A.2d at 728 . The trial court refused to give the requested instruction and the petitioner preserved the point. Having been unsuccessful in the Court of Special Appeals, he sought certiorari, which we granted “to consider whether Maryland Rule 4—827(f) requires a trial court, upon request, to instruct the jury that it may recommend that the court show mercy to a criminal defendant.” Id. at 45 , 650 A.2d at 727 (footnote omitted).

Answering that question in the negative, the Court held that juries should not be instructed that they may return a recommendation of mercy. If the jury returns such a recommendation, it is not a part of the verdict, it is not binding on the trial court, and it should receive such weight as the trial judge deems appropriate after consideration of the evidence presented at trial, as well as additional information which may be presented at sentencing. If during the course of deliberation the jury inquires whether they may return a verdict with a recommendation of mercy, leniency, clemency, or the like, the court should respond that they may do so, but that their recommendation is not binding upon the court. Furthermore, they should be advised that it is within the sole discretion of the court to determine the appropriate sentence in the case.

Id. at 47 , 650 A.2d at 728 . The Court explained its holding in two ways. First, recognizing the interrelationship between Rules 4-325(c) and 4-327(f), it rejected the notion that Rule 4—327(f) is “the applicable law” and thus creates a “right” in the defendant to require that a mercy recommendation instruction be given. 4 Id. at 48 , 650 A.2d at 728-29 . This was so, the Court said because the ³⁹² only purpose of Rule 4—327(f) was to restate the common law in the form of a rule, ie., to “recognize the right of a jury to append to its verdict a recommendation of mercy,” but not to imbue a defendant with “a ‘right’ to require an instruction informing them of this prerogative.” Id. at 49 , 650 A.2d at 729 .

The Court also viewed the giving of a mercy instruction as being “dangerously misguided.” Id. at 51 , 650 A.2d at 730 . It opined that “such an instruction has enormous potential to compromise the jurors’ evaluation under the reasonable doubt standard, to inject emotion into the deliberative process, and to introduce the consideration of punishment into the guilt or innocence stage.” Id. at 51 , 650 A.2d at 730 . With regard to the former rationale, the court explained that a mercy instruction “might entice the- jury to relieve the State of its burden of proof beyond a reasonable doubt; the jury, in an effort to compromise, might instead find a defendant guilty under a lesser standard, under the belief that the court will be merciful in sentencing.” Id. at 52 , 650 A.2d at 730-31 . The concurring opinion recognized the same danger: “[B]y being given a recommendation of mercy instruction, the jury acquires knowledge that may induce it, or members of it, to abdicate responsibility to resolve the case on the basis of reasonable doubt in favor of reliance on the trial court to ameliorate that abdication through the exercise of its sentencing prerogative.” Id. at 58 , 650 A.2d at 734 (Bell, J., concurring).

The concern about giving a jury instruction with the potential adversely to impact the jury’s legitimate and exclusive function has been expressed in our cases. See Johnson v. State, 325 Md. 511, 518-19 , 601 A.2d 1093, 1096 (1992); Doering v. State, 313 Md. 384, 408-09 , 545 A.2d 1281, 1293-94 (1988); Shoemaker v. State, 228 Md. 462, 469 , 180 A.2d 682, 685 (1962); La Guardia v. State, 190 Md. 450, 460 , 58 A.2d 913, 918 (1948). See also Tripp v. State, 36 Md.App. 459, 484 , 374 A.2d 384, 398 , cert. denied, 281 Md. 745 (1977). The first case to reach this Court which required us to focus on the issue this case presents was Shoemaker v. State, supra.

Although a capital case, which necessarily presents different considerations because it is the jury that is the sentencing ³⁹³ authority, see Doering v. State, supra, 313 Md. at 410 , 545 A.2d at 1294 (“We conclude that the basic rationale of Shoemaker , entirely correct in its own setting, is not directly applicable to proceedings involving determination of sentence by a jury.”), the posture in which the case reached us is extremely informative and instructive on the issue sub judice. The issue as presented in that case concerned the prosecutor’s reference to the defendant’s possibility of parole. Having conveyed to the jury that it was not seeking the death penalty, the prosecutor suggested the “possible release on parole after, or perhaps even before, the defendant, if convicted, should have served one-third of whatever term of imprisonment might be imposed, and the obligation of the Parole Board to consider his eligibility for parole after he had served one-third of the term.” Shoemaker, 228 Md. at 468 , 180 A.2d at 685 . While pointing out that one reason for finding the possibility of parole argument to be reversible error was that it was not based upon evidence, the Court was of the view that “[t]he chief vice of the reference in this case to the possibility of parole is that it suggested to the jury that it might in part shift its responsibility for a finding of the defendant’s guilt to some other body,” id. at 469 , 180 A.2d at 685 ; that “the natural tendency and effect of the statements about parole was to suggest to the members of the jury that they might resolve any question about the defendant’s guilt beyond a reasonable doubt with the thought that, even if they made a mistake, no great harm would be done since he might soon be paroled.” Id. at 469 , 180 A.2d at 685 .

In Johnson , in response to. the defense counsel’s argument urging the jury to be sure of its verdict inasmuch as it would be too late for a juror to change his or her verdict after the jury’s verdict had been established as unanimous, the prosecutor, in rebuttal closing argument commented: Let me just tell you ladies and gentlemen a couple of things that bothered me about what my learned friend has said. She said that when you go back there and come up with a verdict you can’t change your minds, make sure, make sure. She wants to elevate reasonable doubt more than it is in ³⁹⁴ your minds. Well, let me tell you ladies and gentlemen, if your verdict is not guilty you can’t change it.

If it is guilty it is reviewed by the appellate— And the rights of the appeal go all the way up to the Supreme Court. So what she is telling you, saying that to you, she is not being quite honest to you. She wants to elevate that reasonable doubt in your mind which is what her job is to make it harder for you all to find him guilty. 325 Md. at 513 , 601 A.2d at 1093-94 . The defendant’s objections to that argument were overruled by the trial judge.

This Court held that “[t]he rationale of Shoemaker with respect to a reference to parole is equally applicable to the reference to the right of appeal here.” Id. at 519 , 601 A.2d at 1096 . See also Poole v. State, 290 Md. 114, 125 , 428 A.2d 434, 440 (1981),