Butler v. State

CATHELL, J. This case concerns the propriety of a trial judge’s comments after jury deliberations had commenced in a criminal trial, in responding to a jury note stating that an unidentified juror did not trust the police under any circumstances. On July 3, 2003, a jury found Anthony H. Butler guilty of distribution of a controlled dangerous substance, possession with intent to distribute a controlled dangerous substance, possession of a controlled dangerous substance, and three counts of conspiracy accompanying the previously mentioned convictions. The jury also found Donald N. Lowery, Butler’s co-defendant, guilty of conspiracy to distribute a controlled dangerous substance, conspiracy to possess with intent to distribute a controlled dangerous substance, and conspiracy to possess a controlled dangerous substance. Lowery was acquitted of the charges of distribution, possession with intent to distribute, and possession.

The Court of Special Appeals, in an unreported opinion, affirmed the convictions. Butler and Lowery, petitioners, filed a joint petition for writ of certiorari, which this Court granted on November 10, 2005. Butler v. State, 389 Md. 398 , 885 A.2d 823 (2005). The following question is presented for our review: “Where in a prosecution based upon police testimony the jury first indicated that it was deadlocked and subsequently that ‘We have one juror who does not trust the police no matter the circumstance,’ did the trial court improperly coerce a guilty verdict by instructing the jury that such a ¹⁷² sentiment should have been disclosed during the jury selection process, ‘and if anybody deliberates with that spirit now, I suggest they might be violating their oath’?” We find that the trial judge improperly addressed the jury in such a way that the defendants may have been denied their right to a fair trial; therefore, we reverse the Court of Special Appeals and remand for a new trial.

I. Facts This case arose from a Baltimore City Police Department undercover operation entitled “Red-E-Rock,” which took place in 2002. The purpose of the operation was to arrest as many “street-level drug dealers” as possible. Undercover police officers would purchase drugs from dealers, but deferred the arrests until a later date to allow the same police officer to make multiple purchases in the same locations. On February 7, 2002, at approximately 12:55 p.m., Detective Will Farrar, an undercover agent participating in the operation, met a man who claimed to have “green tops.” Detective Farrar understood “green tops” to mean that the man, who the detective identified as petitioner Lowery, had cocaine for sale.

Lowery and the detective then walked down the street and approached another individual identified by Farrar as petitioner Butler. Butler asked Detective Farrar how many green tops he wanted, to which the detective responded that he wanted one. Butler gave Detective Farrar a small packet, which was later determined to contain not cocaine, but .007 grams of heroin, and the detective gave Butler a twenty dollar bill in return. Detective Farrar left the scene and provided a description of the two men to Detective David Clasing and Sergeant Mark Janicki.

The officers found Butler and Lowery at the place where Detective Farrar had stated the exchange took place. The officers asked petitioners to produce photo identifications, to which they complied. Detective Farrar drove by the location while the officers were questioning petitioners and positively identified Butler and Lowery. Petitioners were not ¹⁷³ arrested at that time.

Detective Farrar gave the following explanation for the delay in the arrests: “[AJfter the buy is made, [the suspects] are identified, positively identified. We go back, do reports, get a case folder ready. After the project has ended, the case folders are turned over to the State’s Attorney’s office. State’s Attorney’s office gets the paperwork ready for indictment.

It’s taken to the Grand Jury. The case is read in front of the Grand Jury and if they see sufficient evidence to issue— If they see sufficient evidence in what they hear to issue an indictment warrant, they’ll issue an indictment warrant. [State:] Detective, why aren’t the dealers—your goal wasn’t to arrest but why weren’t they arrested? [Detective Farrar:] Because the detail lasts anywhere from 30 to 45 days or longer. If we arrest them, it limits the job that 1 can do because if I make a buy and they arrest them that day, they get out the next day on bail or whatever. They will be back out on the corner, then I can’t go back in that area because they know that I’m the one who bought from them and I’m the reason why they got arrested.

It becomes a safety issue. It limits my job that I can go back into that area. If we don’t make an arrest, we make a positive ID. It allows me to go back into this area as long as this project is kept going.

So, I can return to this area later on that day, the next day for weeks at a time. However long the project runs.” On March 7, 2003, a Grand Jury issued an indictment against the petitioners and, on March 20, 2002, the State’s Attorney filed a motion to issue a warrant for their arrest. The Circuit Court issued the warrants on March 22, 2002. Petitioner Lowery was arrested on June 6, 2002; petitioner Butler was arrested on August 9, 2002. ¹⁷⁴ Petitioners’ trial commenced on July 1, 2003.

During voir dire, the trial judge asked the following question to the prospective jurors: “Would any member of the panel automatically believe or automatically disbelieve the testimony of a law enforcement officer strictly because of that officer’s occupation or training? Or if given the choice between the testimony of a civilian and a law enforcement officer, automatically believe one over the other just because one is a law enforcement officer[?]” The judge also asked whether the prospective jurors were related to a law enforcement officer or officer of the court. To this question, no one who became a juror responded. Some of the prospective jurors came forward and provided relevant information to the judge and counsel.

At the end of voir dire, a jury was selected and the State presented its case, which consisted of identifying and admitting into evidence the substance allegedly purchased from the petitioners, a copy of the twenty dollar bill used to pay for the drugs, and testimony from five witnesses-four police officers, and the police department’s chemical analyst as an expert. At the close of the State’s case petitioners’ motions for judgment of acquittal were denied and the defense rested without calling any witnesses on behalf of the petitioners. The trial judge instructed the jury and closing arguments were heard. Before the jury retired for deliberations the trial judge explained to the jury, among other things, that: “If you need help [during] the time you’re deliberating, just write a note saying you need help.

For instance, if you need to deliberate for an hour or so and decide you don’t want to go any further, then write us a note saying, please excuse us for the night. Then I’ll give you instructions on how to come back tomorrow morning or afternoon or whenever you want to come back.” The jury was then sent out for deliberations. Approximately four and a half hours later, the trial judge stated: “We have a note from the jury. It says group can’t agree or don’t agree.” ¹⁷⁵ The following exchange then took place out of the presence of the jury: “[THE COURT]: Starting with [Butler’s counsel], how do you wish to handle that? [Butler’s counsel]: Your Honor, I wish for a mistrial to be declared.

THE COURT: [Lowery’s counsel]? [Lowery’s counsel]: I concur, Sir. THE COURT: [State]. [State]: I would ask for an Allen charge. The modified Allen charge. THE COURT: Any argument with respect to that? [Butler’s counsel]: Your Honor, I think with an Allen instruction, we are talking about 8:30 at night.

The Jury has deliberated at length and the court did, in fact, give them instructions that if they were unable to make a decision, come back tonight and give them the alternative for coming back tomorrow and the Jury has indicated they have not reached a decision. THE COURT: [Lowery’s counsel]? [Lowery’s counsel]: I concur. And I believe that an Allen charge tonight would be unduly stressful on them. THE COURT: All right.

I agree that the Allen charge would be coercive if I give it tonight when it is 8:30 and they are tired. Therefore, I will allow them to break for the evening and the first time they tell me they can’t agree, at that point I’ll give them an Allen charge, unless they say further deliberations would not be fruitful in reaching a verdict. I don’t know to what extent this is fatigue or to what extent this is whatever, but four and a half hours of deliberation in a case that took as long as this did is not enough. So bring the Jury out and tell them to bring their belongings.” [Emphasis added.] The jury was then brought into the court room, the trial judge cautioned them against speaking to anyone about the case or ¹⁷⁶ trying to conduct any research on the case overnight and released them until the following morning.

When the jury returned the next morning to renew deliberations, the trial judge received a note requesting that the jury be allowed to watch the videotape of closing arguments. Both petitioners’ counsels objected to the request. The trial judge conducted some research on the issue. While the trial judge was determining whether to allow the request to view the tapes, another note was received which stated: “We have one juror who does not trust the police no matter the circumstance.” The trial judge asked counsel for their input on the problem generated by the new question, and the following discussion ensued: “[Butler’s counsel]: Your Honor, I think with that note in conjunction to the request, again, my fear is that, again, they are going to use the closing arguments, which is not evidence, to coerce somebody who is reluctant to believe the police into recapitulating their verdict, whatever it may be.

And I think at this point it would be coercive and it would be unfair to play back the closing argument. This is not evidence. They didn’t request evidence. They didn’t request clarification as to evidence or the law.

They are to apply the evidence to the facts to the law and not—they are not reviewing evidence or facts or law, they are reviewing argument and I don’t think that’s fair at this point, Your Honor. THE COURT: [Lowery’s counsel]? [Lowery’s counsel]: I adopt and further say to Your Honor that you ought to ask them, that being so, are you deadlocked, you cannot reach a decision? THE COURT: [State]? [State]: Your Honor, I would ask you to proceed at this time. They don’t say they are deadlocked.

I think that this may make a difference to play the closing arguments. It’s not additional evidence, it is a repeat of what was said during the trial. There is nothing prejudicial about it. It is clearly still within your discretion and I believe that in the ¹⁷⁷ interest of justice, the case did take two days.

They did not deliberate more than two hours last night by the time the juror got back from moving his car. They have been deliberating for the last two hours for this information. I think that, based upon that, they should have one chance to observe [the tape of closing arguments] and then if they send us a note later, that would be different. But they are not saying they are deadlocked.

THE COURT: The note is somebody’s perception on the jury. If that perception is accurate, it means that somebody on the jury committed perjury in the voir dire. I don’t wish to think ill of my fellow citizens. I don’t believe that necessarily one juror would never trust the police under any circumstances.

I think that may just be an exhausted and, frustrated, reaction. I think that further repetition of the closing argument may bring more harmony to the jury in a non-coercive manner. So rather than give an Allen charge I will give the jury what they want which is about basically to review the closing arguments. Mr. Needleman? [Lowery’s counsel] [Lowery’s counsel]: Well Mr. Lowery would say that, Your Honor, I don’t know if Your Honor has even thought about this, but maybe as a result of this case, they can’t believe the police.

May be that should be your rationalization. Not that anybody committed perjury. THE COURT: Even if it were—no, no, no, I didn’t say any witness committed perjury I’m saying tibe juror committed perjury. [Lowery’s counsel]: The juror. They see what they saw in this courtroom and they now come to this unalterable conclusion.

THE COURT: I know, but I don’t think that a repetition of the closing arguments will be coercive in attempting to see if we can achieve harmony among them. [Lowery’s counsel]: Absolutely it will, Your Honor. I know you are about going to rule for the State, I understand that, but Mr. Lowery objects. ¹⁷⁸ THE COURT: All right, the issue is preserved. [Butler’s counsel]: We note our objection also, Your Honor. THE COURT: All right. Bring the Jury out please.

Madam Forelady, ladies and gentlemen we received two notes from you. The first note occasioned lengthy legal research and argument. The second note we’re essentially going to ignore. It says we have one juror who does not trust the police no matter the circumstance.

Anybody who had felt that way should have said so in voir dire so a challenge could have occurred, and if anybody deliberates with that spirit now, I suggest they might be violating their oath. [Lowery’s counsel]: We object to that, Your Honor. THE COURT: The objection is overruled. We have determined, after extensive legal argument and somewhat of a case of first impression in Maryland, that it would be appropriate for you to review the closing arguments and we’ll allow you to do so at this time. [Lowery’s counsel]: Before that’s done, can we approach? THE COURT: You may.

(Whereupon, the parties approached the bench and the following proceedings ensued on the record.) [Butler’s counsel]: I join in the objection by [Lowery’s counsel]. [Lowery’s counsel]: On behalf of Mr. Butler and Mr. Lowery, we move for a mistrial. It is my— THE COURT: Go ahead. [Lowery’s counsel]: I firmly believe that His Honor’s sua sponte comment to a juror as a result of the note—it was not requested by the State, it was not requested by the defense and it did nothing but put a chilling effect on that juror to be cornered out, to be isolated and, therefore, to ¹⁷⁹ give up that juror’s personal opinion as to the evidence in this case. And, like I said prior to that, it may be as a result of what that juror saw during the trial that caused, him to have that kind of thinking and not during the voir dire process. So— THE COURT: Whether it’s during the voir dire or whether it’s during the trial, if it’s not trust, no matter the circumstance, then the person should be challenged for cause.

We’re in a position now where it’s too late to challenge for cause other than to have a mistrial. [Lowery’s counsel]: But you scolded that juror, Your Hon- or. THE COURT: If the jur[or] persists in her illegal attitude, then there will ultimately be a mistrial, but in the event that the juror wants to rethink what her legal obligation is after what I consider to be a very gentle mention of that fact, because I didn’t accuse anybody of anything, I said the note said, and if it were true, it might suggest that frivolity and hopefully they will listen to the arguments again and in rethinking, even without an Allen charge, might mean that whoever’s perception this is isn’t borne out. So, if somebody got up and said I don’ t trust the police no matter what and I said you can’t do that, I think your argument might be better taken. But nobody is admitting to it and, you know, I don’t think you can empirically say that it was coercive or chilling.

We’ll now watch the video. [Lowery’s counsel]: I just thought that manifest necessity had been reached, thank you, Sir. [Butler’s counsel]: I join in the objection, Your Honor.” [Emphasis added.] After that exchange, the jury was allowed to watch the video of the closing arguments. The jury then resumed deliberations, 1 found Butler guilty on all counts and Lowery guilty on the conspiracy counts. ¹⁸⁰ II. Discussion The right to a jury trial under the Maryland Constitution was described by Judge Raker recently in Stokes v. State, 379 Md. 618 , 843 A.2d 64 (2004), where she stated for the Court: “The 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 Maryland Rules, as well as the United States Constitution.

See Kawamura v. State, 299 Md. 276 , 473 A.2d 438 (1984). Article 5 of the Maryland Declaration of Rights provides, in pertinent part, ‘That the Inhabitants of Maryland are entitled to ... trial by Jury.... ’ Article 21 of the Declaration of Rights provides, in pertinent part, ‘That in all criminal prosecutions, every man hath a right ... to a speedy trial by an impartial jury, without whose unanimous consent he ought not to be found guilty.’ Article 23 of the Declaration of Rights provides, in pertinent part, ‘In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction.’ Article 24 of the Declaration of Rights provides, ‘That no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges ... or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land.’ The reference to ‘jury’ in our organic laws, refers to a jury as constituted under the common law, unless the contrary plainly appears. See State v. Kenney, 327 Md. 354, 361 , 609 A.2d 337 , 340 (1992); State v. Ledger, 175 Wis.2d 116 , 499 N.W.2d 198, 202 (Ct.App. 1993) (citing State v. Gollmar, 32 Wis.2d 406 , 145 N.W.2d 670, 671-72 (1966)). Cf.

Bryan v. State Roads Comm’n, 356 Md. 4, 14 , 736 A.2d 1057, 1061 (1999) (holding that the 1992 amendment to Article 5 of the Maryland Declaration of Rights permits a six person jury in all cases except criminal cases); Thompson v. State, 278 Md. 41, 53 , 359 A.2d 203, 210 (1976) (noting that common law right to a jury trial ¹⁸¹ exists absent a rule or statute taking the right away where it would be constitutionally permissible to do so).” Id. at 625-26, 843 A.2d at 68-69 . One of the requirements embodied in the right to a jury trial is that of a unanimous verdict. With respect to unanimity we have stated: “The verdict is the unanimous decision made by a jury and reported to the court, on the matters lawfully submitted to them in the course of the trial. Unanimity is indispensable to the sufficiency of the verdict.” Smith v. State, 299 Md. 158, 163-64 , 472 A.2d 988, 990 (1984) (quoting Ford v. State, 12 Md. 514, 549 (1859)) (internal quotations omitted); see also Caldwell v. State, 164 Md.App. 612, 635 , 884 A.2d 199, 212 (2005) (“The concept of unanimity ... embraces not only numerical completeness but also completeness of assent, i.e., each juror making his or her decision freely and voluntarily, without being swayed or tainted by outside influences.”) (emphasis added).

In the case mb judice, it is possible, if not likely, that at least one of the jurors may have been coerced into joining the majority’s verdict by the admonition of the trial judge. A judge’s role during a jury trial makes his or her statements subject to a high level of scrutiny, when they may result in an unfair advantage to either party, because, as the Court has previously stated: “ We must zealously guard against any actions or situations which would raise the slightest suspicion that the jury in a criminal case had been [improperly] influenced ... so as to be favorable to either the State or the defendant. Any lesser degree of vigilance would foster suspicion and distrust and risk erosion of the public’s confidence in the integrity of our jury system.’ ” Jenkins v. State, 375 Md. 284, 339-40 , 825 A.2d 1008, 1041 (2003) (quoting State v. Wilson, 314 N.C. 653, 656 , 336 S.E.2d 76,77 (1985)). Furthermore, in regards to the trial judge’s actions, we explained in State v. Hutchinson, 287 Md. 198 , 411 A.2d 1035 (1980): “The trial judge is the central figure at the trial, having the chief responsibility of steering the jury through the maze of ¹⁸² evidence.

In such role, the trial judge may influence the jury by the inflection of his voice, his words, his conduct and his assessment of the evidence, if revealed. Thus, the trial judge must remain ever vigilant in order to avoid conveying any idea as to what he thinks the jury’s verdict should be or suggesting the slightest partiality.” Id. at 206 , 411 A.2d at 1040 ; Johnson v. State, 352 Md. 374, 385-86 , 722 A.2d 873, 878 (1999). The judge’s actions need not be intentional to inappropriately influence the jury. In Hutchinson , for example, the trial judge failed to instruct the jury that they could find the defendant “not-guilty,” although a “not-guilty” option was included in the verdict sheet used by the jury.

The Court found that the judge’s failure to properly instruct the jury on the possibility of a “not-guilty” verdict constituted reversible error. Id. at 208 , 411 A.2d at 1041 . In the present case, the trial judge stated that he considered the statement to the jury “a very gentle mention of’ the alleged illegality of the juror’s position and that, therefore, the statement was not coercive. As gentle as the admonishment may have appeared to the judge, it may have carried great weight in the minds of the jurors (especially the mind of the juror who allegedly held certain views about police officers) who may be very susceptible to a judge’s words and instructions.

Furthermore, the judge acknowledged that his purpose in making the statement was to advise the juror to “rethink her legal obligation.” Such “rethinking” could have led the juror to put aside his or her firmly held opinion and to vote with the majority even