Caldwell v. State

DEBORAH S. EYLER, J. In the Circuit Court for Baltimore City, Corey Caldwell, the appellant, was charged in two indictments with crimes arising from the shooting of Darían Nelson and the attempted shooting of Davon Jackson, in a single incident. The charges were tried together to a jury. ⁶²⁰ In the Nelson case, the jury returned verdicts of not guilty of attempted first-degree murder and guilty of first-degree assault, reckless endangerment, use of a handgun in the commission of a crime of violence, carrying a handgun, and discharging a handgun in Baltimore City. It did not return a verdict on the charge of attempted second-degree murder. In the Jackson case, the jury returned a verdict of guilty of first-degree assault, reckless endangerment, use of a handgun in the commission of a crime of violence, carrying a handgun, and discharging a handgun in Baltimore City.

It did not return a verdict on the attempted first-degree murder and attempted second-degree murder charges. The court sua sponte declared a mistrial on the three counts on which no verdicts were returned. The reasons were that the courthouse was closing in less than an hour because Hurricane Isabel was approaching Baltimore and the subways had been shut down; the courthouse likely would be closed the following day, due to the storm; one of the jurors could not return to deliberate the next business day thereafter, without losing a prepaid vacation the court and counsel had assured her, during voir dire, she would not lose; and the defense was not willing to proceed with an 11-member jury. After denying a new trial motion, the court vacated one conviction for carrying a handgun and one conviction for discharging a firearm in Baltimore City, and merged the remaining convictions on those charges.

It then imposed sentences in both cases. 1 The appellant noted a timely appeal. We have rephrased and reordered his questions as follows: ⁶²¹ I. Did the trial court err by taking a partial verdict on ■ the ten counts on which guilty verdicts were returned?

II

Did the trial court err by declaring a mistrial on three counts?

III

Must the docket entries be corrected to properly reflect that the appellant was acquitted of attempted first-degree murder of Darían Nelson?

IV

Did the trial court err by permitting the State to impeach the appellant with statements he allegedly made to a person who was not called as a witness? V. Did the sentencing court err by not merging the appellant’s sentences for reckless endangerment into his sentences for first-degree assault? We answer Question I in the affirmative and therefore shall reverse the ten judgments of conviction and remand the counts on which they are based to the circuit court, for further proceedings. Question II is not properly before us, because there is no final judgment on the three counts on which a mistrial was declared.

We answer Question III in the affirmative, and direct the circuit court to correct the docket entries to reflect that the verdict on the count of attempted first-degree murder in the Nelson case was not guilty. Because of our disposition of Question I, and because it is highly speculative whether the issues will resurface on retrial, we shall not address Questions IV and V. FACTS AND PROCEEDINGS The key events in this case took place around 8:00 p.m. on September 3, 2002, on Berger Avenue in Baltimore City. Darían Nelson, then ten years old, was standing in front of his family’s house, at 4348 Berger Avenue, with his mother and two brothers. He heard a sound like firecrackers and felt a burning pain in his side.

He exclaimed, “firecrackers hit me.” At the same time, a man later identified as Davon Jackson ran past him on the street. Jackson continued around the corner, into the Nelson family’s backyard. A few minutes later, ⁶²² Jackson emerged and apologized to Mrs. Nelson, saying, “they were trying to shoot at me.” Emergency medical workers and police arrived on the scene. Nelson was found to have suffered a gunshot wound and was taken to the hospital.

The police arrested Jackson and took him to the station house. Jackson told them the shooter was a man he knew as “Ron,” who was angry with him because he thought Jackson was having an affair with Muriel Brewington, “Ron’s” stepsister. Brewington is the mother of “Ron’s” best friend’s children. Jackson showed the police a house near the Nelsons’ house where “Ron’s” family was living.

In a search of the house based on a warrant, the police found information that led them to think the appellant and “Ron” were the same person. The police prepared a photographic array that included the appellant’s picture and showed it to Jackson. Jackson selected the appellant’s photograph as depicting “Ron,” the shooter. As stated previously, the appellant was charged in two indictments with crimes arising out of the shooting of Nelson and the attempted shooting of Jackson.

The cases were tried together before a jury beginning on September 11, 2003. The State called as witnesses Nelson, his two brothers, and his mother. They testified about the events surrounding the shooting, as we have recounted them. A neighbor, Michelle Coward, testified that she saw the appellant chase Jackson down Berger Avenue and fire a gun at him.

She gave the police that information on the day of the shooting, but told them she did not want to be involved. Nine months later, on June 8, 2003, the police showed Coward a photographic array. She selected the appellant’s picture from the array. She testified that she was certain that the appellant was the shooter.

The State also called Brewington as a witness. She testified that, in a telephone conversation the morning after the shooting, the appellant told her that he and Jackson had been “tussling” over a gun. ⁶²³ When the State called Jackson to testify, he recanted his statement to the police. He testified that he and the appellant were victims of an attempted robbery by an unknown third person. He said he had blamed the shooting on the appellant because he thought the appellant had “set up” the robbery.

Ballistics evidence showed that two cartridge casings recovered at the scene were fired by the same gun. The appellant testified in his own defense. He said he had not known Jackson well but had been -with him on the evening in question, before the shooting. They were approached by a third man, whom the appellant did not know, who tried to rob them.

They ran in opposite directions. As he was running, the appellant heard gunshots. He did not have a gun and did not fire a gun. He never told Brewington that he and Jackson had tussled over a gun.

He thought Jackson had “set [him] up” for the robbery. Another neighbor of the Nelsons, Darrell Brown, testified for the defense. He said that, on the night in question, he saw a man running up Berger Avenue with a gun. The man was not the appellant.

Brown did not know the appellant. We shall include additional facts as necessary to our discussion of the issues. DISCUSSION I. Did the trial court err in taking partial verdicts? (a) The jury was selected and sworn on September 11, 2003.

The evidence phase of the trial lasted three days: September 12, 15, and 16. The case went to the jury for deliberation at about noon on September 17. The jurors deliberated until 5:35 p.m., at which time they sent a note saying they “ha[d] not decide [sic] a verdict yet. Please let us know when it’s time to leave.” The court released the jurors for the evening. ⁶²⁴ The jurors returned at 9:30 a.m. the next day, September 18, and resumed deliberation.

In the days before September 18, Hurricane Isabel was moving north, on a path to strike the mid-Atlantic coastline. Forecasts were calling for the hurricane to be severe. In anticipation that it would be, and based on tracking information from the National Weather Service, the Governor of Maryland issued an Executive Order declaring a state of emergency as of 11 p.m. on September 16. See Md. Regs.

Code tit. 01, § 01.2003.30. The storm was slow-moving, however, and by the morning of September 18, it had not yet made landfall. See National Weather Service, “Service Assessment, Hurricane Isabel, September 18-19, 2003,” available at http://www.weather.gov/os/assessments/pd fs/isabel. Around noon, as the jury was deliberating, the trial judge was alerted that the Administrative Judge had directed that the courthouse would close at 1:00 p.m., due to the impending hurricane.

Counsel and the appellant were convened and the jury was brought into the courtroom. The trial judge announced that the courthouse was closing and was unlikely to be open the next day (Friday September 19), given the weather forecast. He asked the jurors to return Monday, September 22, to resume deliberating. 2 At that point, Juror Number Two motioned that there was a problem, and was brought to the bench. Both lawyers reminded the judge that during voir dire Juror Number Two had made it known that she was leaving on Saturday, September 20, for a prepaid vacation to New Orleans, and had voiced concern about whether sitting on the jury would cause her to lose her vacation.

Because the court and counsel all thought the trial would be over by September 19, at the latest, they had assured Juror Number Two that sitting on the jury would not interfere with her travel plans. Juror Number Two could ⁶²⁵ not return to deliberate on Monday, September 22, without losing her prepaid vacation. Juror Number Two was reseated and the judge and counsel conferred at the bench. Defense counsel said he would not agree to proceed with an ]1-person jury.

The following ensued: THE COURT: I just don’t think in good conscious [sic] I think [sic] tell this woman [Juror Number Two] — I remember her discussing this at the bench. [DEFENSE]: I do too. At that point, the court called the foreperson to the bench and this colloquy took place: THE COURT: And — can the foreperson come up here a second? Ma’am. Are you making progress?

JUROR: Mmm-hum. We are. It’s hard. THE COURT: Okay.

Thanks. JUROR: We’re on the last one. THE COURT: You’re what? JUROR: (inaudible).

THE COURT: Okay. Thanks. The foreperson returned to her seat, but immediately was called back to the bench: THE COURT: Let me make sure I understand you. Were you suggesting that a vote — there was one person who is not agreeing or that you, had agreed to a unanimous verdict on every count, but one.

JUROR: Right. THE COURT: You have a unanimous verdict on every count but one. What count is that? [PROSECUTOR]: What number as opposed to — do you remember— THE COURT: Hand me the verdict sheet. THE CLERK: Yes.

THE COURT: Do you have it? [DEFENSE]: I have it. ⁶²⁶ CALDWELL v. STATE [ 164 Md.App. 612 (2005).] [PROSECUTOR]: Do you have a problem with that? [DEFENSE]: No. THE COURT: Which count is it? JUROR: It’s the one on this one. THE COURT: That is the count [attempted] first-degree murder of Davon Jackson? JUROR: Jackson.

THE COURT: You haven’t agreed to a verdict on that. You’ve agreed on everything else? JUROR: Mmm-hum. THE COURT: Twelve to nothing.

Right? JUROR: We want to change one if they change that one. It’s like five people. [DEFENSE]: Can you say that again? I didn’t hear that one.

JUROR: It’s like five people that’s against. THE COURT: Pardon. JUROR: Five people that’s against the (inaudible). THE COURT: All right.

Thanks. Do you — all right. You can sit down---- The clerk interjected to say that the subways were closing at 2:00 p.m. and that the rain had started. Defense counsel repeated that he would not agree to an 11-person jury.

He objected to the court’s taking partial verdicts, saying the jurors “need to make a decision with regard to everything or not.” The judge ruled that he was going to take verdicts “on what they have a verdict on.” Counsel returned to their tables and the judge announced: All right. Let me explain what I’m going to do. I’m confronted with a situation where juror number two who told me when we did voir dire originally that she had to be out of here Saturday. Still has to be out of here Saturday because she has travel plans.

Counsel will not agree to accept an 11 person jury so we can’t do that. ⁶²⁷ The foreman has told me which I trust is correct, that you have a 12 to nothing verdict on all but a couple of counts, correct? What I’ve decided to do and counsel and I will discuss the problems involved with this later, but I’m going to take the verdict on the counts you’ve reached a unanimous verdict on and end this as far as you’re concerned. So, you understand what I’m saying? Can you stand up, madame foreperson?

Am I correct in my understanding of what has occurred? All right. At the bench, defense counsel expressed concern about the court’s declaring a mistrial on any count the jurors were not “deadlocked” on. The judge acknowledged that the jury “possibly could” reach verdicts on the undecided counts, if left to deliberate further, but because of the circumstances, he was going to declare a mistrial on those counts.

In open court, the judge addressed the foreperson: THE COURT: Okay. Stand up again. Am I correct that you have a verdict on all but — how many counts? JUROR: Two.

THE COURT: Two. You have a unanimous 12 to nothing verdict? I’m going to ask the clerk at this point — stand down — to take the verdict. Defense counsel objected, saying, “I just want to point out that they’re still talking.

She [the foreperson] came down here and she’s still talking to them.” The judge overruled the objection and summarized the situation: Everyone had been directed by the Administrative Judge to vacate the courthouse; counsel would not agree to an 11-person jury to return on Monday; and one juror could not return on Monday. The judge said he was “declaiming] a mistrial on the remaining counts lor th[ose] reason[s] so the record is clear.” The clerk then took the verdicts, addressing the foreperson and asking her, count by count, to announce each verdict. In the Nelson case, the foreperson stated that the appellant was not guilty of attempted first-degree murder; there was no ⁶²⁸ verdict on attempted second-degree murder; and the appellant was guilty of first-degree assault, reckless endangerment, unlawful use of a handgun, carrying a handgun, and discharging a handgun in Baltimore City. In the Jackson case, the foreperson announced that there was no verdict on the attempted first-degree murder count.

She then announced a verdict of guilty on the attempted second-degree murder count, but said, “[i]n the first-degree— the first one we don’t have no charge on that one. Assault — ” The clerk interrupted and asked the foreperson a second time for the jury’s verdict on the attempted second-degree murder count in the Jackson case. The foreperson responded but her answer was recorded as “inaudible.” She proceeded to announce verdicts of guilty on the counts of first-degree assault, reckless endangerment, unlawful use of a handgun, carrying a handgun, and discharging a firearm in Baltimore City. 3 The clerk repeated each count in each case and the verdict announced on it. It is clear from the clerk’s words that the “inaudible” response by the foreperson to the clerk’s question had been that there was no verdict on the count of attempted second-degree murder in the Jackson case.

Regarding the attempted murder counts, the clerk repeated the counts and verdicts as follows: [A]s to the first count [of] attempted murder in the first-degree of Darían Nelson you said not guilty. As to attempted murder in the second-degree of Darían Nelson you said no answer .... as to attempt to kill and murder Davon Jackson there was no answer to either the first or second degrees.... The jurors agreed to the verdicts as recited by the clerk. Defense counsel requested a poll, which was taken.

Each juror , agreed to the verdicts as announced by the foreperson ⁶²⁹ and repeated by the clerk. The clerk then hearkened the jury to their verdicts, as the court had recorded them. 4 After some unproductive discussion about the possibly of entering a nol prosequi on the three counts on which no verdicts were returned, the court declared a mistrial on those counts, saying: For the reasons we’ve discussed at length on the record, I’m going to find that with respect to all the other issues there’s manifest necessity to declare a mistrial for the reasons that I discussed on the unresolved issues. The jury then was discharged. The appellant filed a motion for new trial, asserting that the jurors should have been allowed to continue deliberating until they reached an agreement on all counts.

The State filed an opposition. At a hearing on the motion, defense counsel argued that the jurors had been “forced into making a rushed judgment.” He asserted that there was a sense of urgency on the part of the jurors to deliver a verdict “before we all get swept away by this storm,” and that there was confusion in the jury box before the verdicts were taken, from which it appeared that the verdicts were not the product of “a whole lot of consensus and confidence.” He maintained that, if the jurors had been kept to deliberate until they had decided all the counts in both cases, they might have changed their minds to the appellant’s benefit on the counts on which guilty verdicts were returned. Defense counsel argued that the appellant’s “right to a jury trial really was taken — in essence was taken away from him.” The judge denied the new trial motion. He pointed out that the jurors had reached agreement on some of the counts before they were brought into the courtroom and told the courthouse was closing.

Also, in the judge’s observation, there was not a sense of urgency in the courtroom and the verdicts were not rushed or coerced. Furthermore, the ver- ⁶³⁰ diets were made clear by polling. Any confusion that preceded the poll appeared to him to have been about the correct numbers of the counts that were decided, not about the decisions themselves. The judge gave the following assessment of the situation that existed when the partial verdicts were taken: I didn’t perceive there to be any question in [the jurors’] minds, but that they had a unanimous verdict on that which they had a[ ] unanimous verdict on.

I did sense, as I recall, •that there was some confusion as to whether or not [the foreperson] was identifying the right counts and identifying what she was entering a verdict on because that could have been a little confusing.... While there may have been a little confusion over which counts they were, that was more a matter of — not a matter of whether they agreed upon the counts, but as to what their numbers were. The — I didn’t perceive their verdict was coerced. (b) A criminal defendant in a Maryland court is guaranteed an “impartial jury” by the Sixth Amendment, as applied to the States through the Fourteenth Amendment, Attorney Grievance Com’n of Maryland v. Gansler, 377 Md. 656, 675 , 835 A.2d 548 (2003), and by Article 21 of the Maryland Declaration of Rights.

Article 21 further guarantees an accused in a criminal prosecution the right to a jury “without whose unanimous consent he ought not be found guilty.” 5 ⁶³¹ In Maryland, for a verdict in a criminal case tried by jury to be final, the jury must intentionally render a unanimous verdict. Smith v. State, 299 Md. 158, 163-64 , 472 A.2d 988 (1984); Pugh v. State, 271 Md. 701, 706 , 319 A.2d 542 (1974). A case is removed from the province of the jury when the jury is hearkened to its verdict and the verdict is accepted by the court; or when the jury is polled, and the verdict as polled is accepted by the court. Smith, supra, 299 Md. at 168-69 , 472 A.2d 988 .

Moreover, Until the case is removed from the jury’s province the verdict may be altered or withdrawn by the jurors, or by the dissent or non-concurrence of any one of them. While the case is still within the province of the jury, the court may permit [the jurors] to reconsider and correct the verdict, provided nothing be done amounting to coercion or tending to influence conviction or acquittal. Id. Rule 4-327 governs the procedure for jury verdicts in criminal cases.

Subsection (a) implements Article 21, stating that the verdict of a jury in such a case “shall be unanimous.” Subsection (d) of Rule 4-327 allows for a partial verdict, i.e., a verdict on less than all counts in a multi-count case. Generally, each count in an indictment is regarded as if it were a separate indictment, and the jury is required to determine whether to make a finding of guilt on each count without regard to the disposition of other counts. Mack v. State, 300 Md. 583, 595 , 479 A.2d 1344 (1984); Poole v. State, 295 Md. 167, 174-75 , 453 A.2d 1218 (1983). Under subsection (d) of Rule 4-327, in a criminal trial on two or more counts, the jury “may return a verdict with respect to a count as to which it has agreed, and any count as to which the jury cannot agree may be tried again.” See also State v. Woodson, 338 Md. 322, 325-27 , 658 A.2d 272 (1995) (a jury that is in ⁶³² agreement on fewer than all counts in a multi-count indictment may return a partial verdict on the count or counts it has agreed upon, and return to deliberate further on the count or counts it has not agreed upon); Harris v. State, 160 Md.App. 78, 104 , 862 A.2d 516 (2004) (same).

Subsection (e) of Rule 4-327 provides that, on request of a party or on the court’s initiative, after the jury has returned a verdict and before it has been discharged, the jury shall be polled. This subsection further implements the state constitutional right of an accused to a unanimous verdict, under Article 21, by providing a means to establish that the verdict is with the jurors’ unanimous consent. Smith, supra, 299 Md. at 163-64 , 472 A.2d 988 . For a verdict “to be considered final in a criminal case it must be announced orally to permit the defendant the opportunity to exercise the right to poll the jury to ensure the verdict’s unanimity.” Jones v. State, 384 Md. 669, 685 , 866 A.2d 151 (2005).

A juror is free to repudiate a verdict upon a poll of the jury. Maloney v. State, 17 Md.App. 609, 626 , 304 A.2d 260 , cert. denied, 269 Md. 762 (1973). See also Jones, supra, 384 Md. at 683 , 866 A.2d 151 (explaining that a verdict is final only if the jurors unanimously concur in the verdict when polled); Smith, supra, 299 Md. at 169 , 472 A.2d 988 (“Any member of the jury has the right sua sponte to dissent from the verdict as announced by the foreman at any time before it is recorded and affirmed by the jury.”) (internal quotation marks omitted). When, upon a poll, “the jurors do not unanimously concur in the verdict, the court may direct the jury to retire for further deliberations or may discharge them if satisfied that a unanimous verdict cannot be reached.” Rule 4-327(e).

A verdict that is defective is not cured by hearkening or polling. Smith, supra, 299 Md. at 169 , 472 A.2d 988 . When a verdict is “ambiguous, inconsistent, unresponsive, or otherwise defective,” the trial judge should call the jury’s attention to the defect and direct the jurors to put it in proper form, if the defect is one of form; or return them to the jury ⁶³³ room for further deliberations, if the defect is one of substance. Id. at 170 , 472 A.2d 988 ; Heinze v. State, 184 Md. 618, 617 , 42 A.2d 128 (1945).

(c) The appellant complains that, in the unusual circumstances of this case, the trial judge accepted partial verdicts on tentative votes that were not yet final. This error violated his right to a unanimous jury. Furthermore, “forcing” the verdicts denied the appellant his right to an impartial jury. The appellant supports his tentativeness argument by pointing to a number of factors that, in his view, show the jurors had not reached a final agreement on any count when the partial verdicts were taken.

First, the deliberation did not end of its own accord, but was interrupted, suddenly. Second, according to the foreperson, before the deliberation was interrupted, the jurors were bargaining over their decisions on some counts. Third, the foreperson herself was so uncertain about whether agreements had been reached that she changed her report to the court about the number of counts on which verdicts were agreed, from all but one to all but more than one. Fourth, immediately before the verdicts were announced, there was confusion in the jury box, signaling that other members of the jury likewise were uncertain about what they had decided.

Finally, that uncertainty continued during the announcement of the verdicts. One verdict first was returned as guilty and then was changed to “no verdict.” When all was said and done, there were three counts — not one or two — on which no verdict was returned. In support of his coercion argument, the appellant posits that the exigency of the situation — the imminent closure of the courthouse and the inability of the full jury to return to conclude its deliberation — compelled the jurors to reach and return verdicts that had not been agreed to. He asserts that, to the extent the jurors were discussing and deciding the case in the jury box, their deliberation took place under coercive ⁶³⁴ circumstances and their votes were not freely and voluntarily made.

In anticipation of the State’s response, the appellant also argues that, because the partial verdicts were defective as not being the product of final agreements by the jurors, polling and hearkening did not cure their defects. The State responds that the jurors knew during deliberation that each verdict on each count had to be unanimous, because they were so instructed before deliberation began. When the jurors were returned to the courtroom and told that the courthouse was going to be closed, the foreperson volunteered at the bench that they already had reached unanimous agreement as to most of the counts. The court double checked that the verdicts so reached were unanimous, asking, more than once, whether they were “12 to 0.” The trial judge’s assessment of the situation was that the jurors were in actual agreement on verdicts on the ten counts of guilty.

The State maintains that the foreperson’s remark, “[w]e want to change one if they change that one,” was vague and did not show, affirmatively, that the jurors still were deliberating on any of the counts on which verdicts then were returned. According to the State, the murkiness in the record — especially that it does not show that the foreperson was pointing to particular charges when saying “this one” and “that one” and that it does not reveal whatever was taking place in the jury box that the appellant now contends was “confusion” — militates against the appellant’s tentative agreement and coercion arguments, because he bears the burden to present an adequate record on appeal. Also, the trial judge’s observations of what transpired, made later at the hearing on the motion for new trial, belie the appellant’s assertion that there was confusion in the jury box. The State argues, in addition, that any confusion that may have occurred in the jury box and that may have been evidenced by the foreperson’s changing statements about how many counts were agreed to are of no moment because the jurors were polled and hearkened to their verdicts. ⁶³⁵ The determinative issue here is whether, when the jurors ceased their deliberation, upon being interrupted and called into the courtroom, they had reached a final agreement on the counts on which the court then accepted verdicts.

A jury only may return a verdict with respect to a count on which it has agreed. Rule 4-327(d). Accordingly, unless the jury has agreed on a verdict on a count, the court may not accept a partial verdict on that count. It is legal error to do otherwise.

An agreement sufficient to produce a valid verdict must be unanimous because unanimity of decision is a fundamental aspect of the jury trial. Davis v. Slater, 383 Md. 599, 613 , 861 A.2d 78 (2004). In a jury trial, “ ‘[ujnanimity is indispensable to the sufficiency of the verdict.’ ” Smith, supra, 299 Md. at 164 , 472 A.2d 988 (quoting Ford v. State, 12 Md. 514, 519 (1859)) (emphasis omitted). As we have explained, Article 21 of the Declaration of Rights guarantees that a criminal defendant “ought not be found guilty without the unanimous consent of the jurors.” The concept of unanimity thus 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.

See Bishop v. State, 341 Md. 288, 294 , 670 A.2d 452 (1996) (noting that, while the case is within the province of the jury, the court may permit the jury to reconsider verdicts upon which it is not unanimous but may do nothing to coerce or influence the verdicts); Harris, supra, 160 Md.App. at 101 , 862 A.2d 516 (same). A jury verdict that is not unanimous is defective and will not stand. The Court of Appeals has held that, when, upon polling, a verdict is revealed not to be unanimous, there is no verdict. Smith, supra, 299 Md. at 179-80 , 472 A.2d 988 .

In that situation, the trial court must take corrective action, either by returning the jury to its room for further deliberations or by noncoercively attempting to clarify a juror’s ambiguous response through questions. Heinze, supra, 184 Md. at 617 , 42 A.2d 128 ; Glickman v. State, 190 Md. 516, 525 , 60 A.2d 216 (1948); Harris, supra, 160 Md.App. at 101 , 862 A.2d 516 . ⁶³⁶ A verdict is defective for lack of unanimity when it is unclear whether all of the jurors have agreed to it. See Lattisaw v. State, 329 Md. 339, 346-47 , 619 A.2d 548 (1993) (holding that trial court erred by enrolling guilty verdict and not taking steps to cure ambiguity after, in response to poll asking whether jurors agreed with verdict as announced by foreperson, juror gave ambiguous response, “Yes, with reluctance”). See also Bishop, supra, 341 Md. at 294 , 670 A.2d 452 (holding that trial court erred in re-polling the jury when one juror said his verdict was given reluctantly; and further holding that not taking action sufficient to clarify the juror’s ambiguous response and instead immediately re-polling the jury “generated a significant possibility” that the reluctant juror’s “yes” vote was coerced, by communicating to him that any other vote was not acceptable); Rice v. State, 124 Md. App. 218, 222 , 720 A.2d 1287 (1998) (holding that trial court properly acted to cure ambiguity in verdict as originally returned in noncoercive manner).

Likewise, a verdict does not satisfy the unanimity of assent requirement, and hence is not a valid verdict, when the decision of a juror or the jury as a whole is conditional. See Biggs v. State, 56 Md.App. 638, 652 , 468 A.2d 669 (1983) (recognizing the principle but holding that juror’s response on polling was not conditional or uncertain). See also Matthews v. United States, 252 A.2d 505, 506 (D.C.1969) (contrasted and distinguished in Biggs) (reversing judgment of conviction entered after one juror, on polling, said her vote was guilty but “conditional” and holding that, upon hearing that response, trial judge was required to return the jury to its room for further deliberation). See also United States v. Austin, 231 F.3d 1278, 1282 (10th Cir.2000) (holding that, “[w]hen there is doubt cast on the unqualified nature of the verdict, ... th[e] court must take a closer look at the circumstances of the jury’s recommendation”); Cook v. United States, 379 F.2d 966, 970 (5th Cir.1967) (holding that jurors’ exceptional request, on poll of verdict, for extreme leniency was a circumstance strongly suggesting that verdict was conditioned upon court’s acceptance of jury’s mercy recommendation, and had ⁶³⁷ the effect of nullifying the verdict); Lewis v. United States, 466 A.2d 1234, 1238 (D.C.App.1983) (holding that test for validity of verdict is whether it is certain, unqualified, and unambiguous in light of, among other things, the circumstances surrounding its receipt).

Although it has never been addressed directly by the Maryland appellate courts, federal