Claybourne v. State

HOTTEN, J. Appellant, William Claybourne (“Mr.Clayborne”),* 1 was indicted for first degree murder of Zachary Thompson (“Mr.Thompson”), and two related weapons offenses. During trial, appellant informed the Circuit Court for Baltimore City of his purported waiver of jury unanimity when the jury indicated that it failed to reach a unanimous decision. Appellant was convicted of first degree murder by an eleven-to-one vote and unanimously convicted of carrying a dangerous weapon openly with the intent to injure. See Md.Code (1957, Repl.Vol.2012), § 2-201(a) of the Criminal Law Article (“C.L.”) (first degree murder); 2 C.L. § 4-101(e)(2) (carrying a dangerous weapon openly with the intent to injure). 3 During ⁷¹² the sentencing hearing, the court imposed sentences of life imprisonment, suspending all but twenty-five years for first degree murder and three concurrent years for carrying a dangerous weapon openly with the intent to injure.

Appellant noted an appeal, and presents three questions for our consideration: 1. Was Mr. Clayborne’s waiver of his right to a unanimous verdict knowing and voluntary? 2. Did the trial court abuse its discretion when it permitted testimony that one of the State’s key witnesses had expressed concerns about her safety? 3. Under the law of the case doctrine, was the evidence insufficient to sustain Mr. Clayborne’s conviction for openly carrying a dangerous weapon?

For the reasons that follow, we (1) answer the first question in the affirmative; (2) answer the second question in the negative; and (3) decline to rule on the third question. We affirm the judgment of the circuit court. I. FACTUAL AND PROCEDURAL BACKGROUND The underlying material facts of this case are not in dispute. The State provided critical circumstantial evidence to support its theory that Mr. Clayborne committed first degree murder.

Mr. Clayborne raises no challenge to the sufficiency of the murder conviction. 4 Although the focus of this review is the waiver of appellant’s right to a unanimous verdict and an ⁷¹³ abuse of discretion issue, we present an overview of the trial’s history for purposes of this appeal. On April 3, 2009, at approximately 2:13 a.m., a police officer responded to 433 Watty Court in Baltimore, Maryland for a report of a fatal stabbing. The officer discovered Mr. Thompson lying on his back in the doorway of his home, suffering from an apparent stab wound to his back. 5 Following a police investigation, appellant was indicted on charges of first degree murder and two related weapons offenses. A trial occurred between January 11 through January 19, 2011, where the State called several witnesses to establish its prima facie case.

Valerie Leak (“Ms.Leak”), a resident of the McCulloh Homes neighborhood, which was approximately one block from 433 Watty Court, testified that at approximately 2:00 a.m. or 2:30 a.m. on April 3, 2009, appellant 6 and Mr. Thompson were arguing on her lawn, when she told them to “get the hell away from in front of my door with all that noise.” Mr. Thompson removed a switchblade from his possession and swung it in appellant’s direction. After this commotion, Mr. Thompson placed the blade into his pocket and walked towards his home. Ms. Leak further stated that ⁷¹⁴ appellant entered her home, grabbed a knife from her kitchen drawer, and proceeded outdoors. 7 Appellant returned to Ms. Leak’s home about six or seven minutes later, displayed the knife, which was covered in blood, and stated, “[t]his is what I do if somebody messes with me.” Appellant retrieved his jacket from Ms. Leak’s home, and never returned her knife. The police arrived and transported her to the Baltimore City Homicide Unit, where she was interviewed and identified appellant’s picture from a photo array of possible suspects.

Angela Gibbs (“Ms.Gibbs”) testified that she was good friends with Mr. Thompson, and had known him and Ms. Leak for approximately one to two years. She was also friends with appellant, but had only known him for two months. However, she noted that he occasionally visited her home. Ms. Gibbs was in the neighborhood on the night in question, seeking to partake in a drug transaction.

As she neared Ms. Leak’s house, she observed Ms. Leak engaged in a dispute with a man. She noticed Ella Gregg (“Ms.Gregg”), Mr. Thompson’s girlfriend, “banging on [Ms. Leak’s] door asking [Ms. Leak], what’s going on? Who was that?” Ms. Gibbs admitted that she had previously indicated to the police that she witnessed the murder of Mr. Thompson, but stated in court that she had not “witness[ed] that exactly,” and was under the influence of drugs at the time. She explained that subsequent to Mr. Thompson’s murder, she had been arrested and that the police indicated to her that if she possessed information “about a murder or anything” that she could be released from jail.

She was then interviewed by Detectives Aaron Pittman (“Det.Pittman”) and Art Brummer (“Det.Brummer”) on May 14, 2009, and she stated the following: 8 ⁷¹⁵ [DET. PITTMAN]: Ok it was brought to our attention that you had information regarding the uh incident that took place on Walley [sic][C]ourt[.] [MS. GIBBS]: Yes. [DET. PITTMAN]: Ok, ok ma’am can you explain for if anything that you saw or witnessed? [MS.

GIBBS]: We was all sitting at the table getting highf.] Zack came in threw two pills on the table, Bishop picked them up and Zack said “man put, put my shit down,” he put it down. Bishop said “man you don’t have to come at me like that.” Zack said “if you want to purchase something you just tell me and I’ll go back and get it, but put those down[.]” [U]h, they got to arguing, and as they got to arguing!,] uh[,] Zack turned around and go [sic] out the door and Zack went out the door[.] Peachesr[ 9 ] gave Bishop the knife, Bishop stabbed Zack in the back, [and] he stabbed Zack, uh, Bishop was stumbling towards his house. A[sic] he was stumbling towards his house[,] he fell again and Bishop had hit him again in his back, he was banging on the door front. Manny, Manny never respond [sic], but his girl did and she told Bishop “you had killed my man,” but by then we don’t [sic] know if, if Zack was dead or not.

We don’t [sic] think he was. Came [sic] the paramedics came and she stand [sic] out. During trial, Ms. Gibbs noted that she falsified information regarding witnessing the murder because she believed that she would be released from jail. 10 She clarified that while Dets. Pittman and Brummer interviewed her, she was not ⁷¹⁶ promised anything in exchange for her information concerning Mr. Thompson’s murder, and that she never received any personal benefit from her participation in the investigation.

In light of the inconsistencies between Ms. Gibbs’ testimony and her statements to the police, the State, over objection, questioned Ms. Gibbs regarding her concern about being a witness: [STATE’S ATTORNEY]: Ms. Gibbs, isn’t it true that in the meeting on July 1, 2009 you expressed concerns for your safety if you were a witness in this case? I need you to answer yes or no[.] [MS. GIBBS]: Yes. [STATE’S ATTORNEY]: And isn’t it true, Ms. Gibbs, that during that meeting on July 1, 2009, based on those same concerns you specifically requested a referral to the Victim Witness Assistance Unit? [MS. GIBBS]: Yes.

The State also presented testimony of Ms. Gregg. She testified that she was Mr. Thompson’s girlfriend, and that they resided in the same household. On the night in question, Ms. Gregg found Mr. Thompson lying unresponsive on the floor. She proceeded to the door and observed a man walking away from her home with a shiny object in his hand.

She then scanned the neighborhood and noticed the same man standing in front of Ms. Leak’s house. However, when she spotted him, he ran. Ms. Leak indicated that the man’s name was “Bishop.” 11 Appellant was arrested on April 17, 2009, and acknowledged that his nickname was “Bishop.” He explained to the police that he had a verbal disagreement with Mr. Thompson over a drug transaction involving the purchase of some “ready.” 12 ⁷¹⁷ Appellant told police, however, that the disagreement occurred early in the day and recited his alibi to the police. 13 Appellant stated that he socialized with others throughout the day, but refused to identify them. Jocelyn Carlson, a forensic examiner, testified that in analyzing Mr. Thompson’s fingernail clippings, she found that they yielded a DNA profile consistent with a mixture of Mr. Thompson’s and appellant’s DNA.

She further indicated that the chances that an unrelated individual in the African American population could have been a contributor to that mixture was approximately one in 34.2 million. At the conclusion of the State’s case, appellant’s counsel motioned for judgment of acquittal: [APPELLANT’S COUNSEL]: Well, I’ll—as to count one I’ll submit. As to counts two and three, the only direct testimony we have regarding a deadly weapon in either case is from Ms. Leak and Ms. Gregg. Actually I guess Ms. Gibbs also testifies.

I know that’s an issue of credibility, which therefore is in the province of the jury but I would proffer to the Court simply that, particularly Ms. Gibbs, the credibility is so suspect that I believe it should not get to the jury and other than that, Your Honor, I’ll submit. The court denied appellant’s motion regarding the counts for murder and for carrying a dangerous weapon with the intent to injure, finding that ample evidence existed through which the jury could find the elements of those offenses. During the close of the defense’s case, appellant’s counsel renewed his motions for judgment of acquittal concerning the ⁷¹⁸ remaining counts. The motions were again denied by the court.

On January 14, 2011, before 3:00 p.m., the jury began its deliberations. Later, after failing to reach a unanimous decision, and with agreement of the parties, the jury was released for the three-day weekend and resumed deliberations on the following Tuesday. On January 18, 2011, after several hours of deliberations, the trial judge received a note from the jury, which read, “[w]e respectively cannot reach a unanimous decision on the counts.” After a discussion with the parties, the court issued the pattern “duty to deliberate” instruction to the jury, 14 stating: THE COURT: ... You have the option of breaking now, if you wish to, until tomorrow, or you can go further this evening and then break later on.

I just wanted to make sure that you know that you have that option, of either breaking now or deliberating further today and breaking again, if you wish to. While the jury attempted to make a decision regarding its continuation, the trial judge made the following statement to the parties: THE COURT: Counsel, I need to give you one other piece of information. When the jury foreperson came down and gave the note that I read to my law clerk, she also said that the vote was 11 to one and while I would not encourage jurors to disclose the vote, the foreperson apparently did that voluntarily and you need to know any communication that came from the jury as well. All right.

When the proceedings resumed, appellant requested to waive his right to a unanimous verdict and to accept the majority verdict of the jury. During a brief recess, the parties and the court researched the legality of such a waiver. The court announced that its research indicated that a defendant could in fact waive his or her right to a unanimous ⁷¹⁹ verdict when the parties and the court agreed to permit the waiver. Though appellant reiterated his request for waiver, the State was unwilling to acquiesce at that time, and the jury was released and set to reconvene the following day.

During the commencement of the proceedings on January 19, 2011, both parties informed the court that they would consent to a waiver of appellant’s right to a unanimous verdict. The following colloquy, regarding appellant’s waiver, occurred: [APPELLANT’S COUNSEL]: ... Mr. Clayborne, you and I have discussed this step you wish to take here, right? That’s what I’m calling you consenting or agreeing to allow the Judge to accept a majority verdict. [APPELLANT]: Yes. [APPELLANT’S COUNSEL]: Okay.

And what—and that’s not a unanimous verdict. You understand that? [APPELLANT]: Yes. [APPELLANT’S COUNSEL]: And do you know what a unanimous verdict is? [APPELLANT]: Yes. [APPELLANT’S COUNSEL]: Okay. Just in case and so that the record is clear, a unanimous verdict means that all 12 of the jurors have to decide, either one way or another beyond a reasonable doubt that you’re guilty or not guilty, based on the evidence that they received. Do you understand that? [APPELLANT]: Yes. [APPELLANT’S COUNSEL]: And that’s your absolute Constitutional Right to have a unanimous verdict by a jury of your peers.

Do you understand that? [APPELLANT]: Yes. [APPELLANT’S COUNSEL]: And I had told you that-well, you’ve heard that the jury is right now saying that they are deadlocked and can’t reach a unanimous verdict. As a matter of fact, we now know that they are 11 to one. ⁷²⁰ We don’t know if it’s guilty or not guilty but they are split along the lines of 11 to one; is that correct? [APPELLANT]: Yes. [APPELLANT’S COUNSEL]: Okay. And I have advised you that I believe we’re on the path to a hung jury. In other words, that they can’t reach a unanimous verdict and there will come a time if it stays that way and this one person doesn’t change their mind, that His Honor will decide that they’ve deliberated long enough and declare the jury hung, meaning a mistrial will be declared and this case—for today, this jury trial will be over.

Now, the State has the absolute right to try the case again for as many times as they wish to but there may be a hung jury in this case. Do you understand that? [APPELLANT]: Yes. [APPELLANT’S COUNSEL]: Now, and you understand that I have advised you to wait for a unanimous verdict; correct? [APPELLANT]: Yes. [APPELLANT’S COUNSEL]: Okay. Now, understanding what your right to a unanimous jury verdict is; do you wish to waive that right? [APPELLANT]: Yes. [APPELLANT’S COUNSEL]: And—I don’t know how far Your Honor wishes me to go. Are you thinking with a clear head here today, Mr. Clayborne? [APPELLANT]: Yes. [APPELLANT’S COUNSEL]: Are you under the influence of any drugs or alcohol? [APPELLANT]: No. [APPELLANT’S COUNSEL]: Okay.

Is there any questions you wish to ask me on or off the record? [APPELLANT]: No. [APPELLANT’S COUNSEL]: And as a matter of fact, just to continue to make the record clear, you have—your largest or biggest concern was if you agree, which you are ⁷²¹ agreeing to accept this majority verdict, your biggest concern is if it’s a guilty verdict, you’re worried that you can still appeal this case; correct? [APPELLANT]: Yes. [APPELLANT’S COUNSEL]: And I have explained to you that yes, you can. You have an automatic and absolute right of appeal, but that’s why His Honor is making the record clear here today that you’re waiving your right to that unanimous verdict and it’s unlikely you would be able to win a reversal on the fact that the Court accepted a non-unanimous verdict. Do you understand that? [APPELLANT]: Yes. [APPELLANT’S COUNSEL]: Okay. Your Honor, if you wish me to make further inquiry, I will or I turn him over to the Court.

THE COURT: All right. Mr. Clayborne, I want to ask you a few questions myself just to make sure that I’m satisfied. Have you been treated for any mental illness or any mental problem in the last five years? [APPELLANT]: No. THE COURT: All right. You’re not on any medication now? [APPELLANT]: No. THE COURT: And you feel that you’re thinking clearly today? [APPELLANT]: Yes.

THE COURT: All right. Now, [appellant’s counsel] has already explained to you very well what it is that you’re giving up. You understand you will have the right to appeal, but it is very unlikely if I find that you are proceeding voluntarily with waiving the unanimous jury that you would be able to appeal on that ground. Do you understand that? [APPELLANT]: Yes.

THE COURT: Now, I will be very frank with you. I believe and no one can predict this, but I believe that the ⁷²² jury is weighted toward convicting you and I believe that by doing this, you are going to get a conviction of at least some counts in this case. Do you understand that? [APPELLANT]: Yes. THE COURT: All right.

So, you’re taking—you realize that you’re taking the chance that the 11 to one might be in your favor or it might be against you? [APPELLANT]: Yes. THE COURT: And because you have the right to insist on a unanimous verdict as [appellant’s counsel] has already told you, if even that one juror were holding out to find you not guilty, that would result in no verdict in this case and a retrial of the case. Do you understand that? [APPELLANT]: Yes. THE COURT: Are you proceeding because of—with this waiver because you simply don’t want to be held in jail any longer? [APPELLANT]: No, it’s not that.

It’s—I just have strong beliefs in the jury right now as far as—you know what I mean? And I— THE COURT: So, you think that the jury is heading towards acquittal? [APPELLANT]: Yes. THE COURT: All right. And you wish to take that chance? [APPELLANT]: Yes.

THE COURT: And you understand you’re giving up the possibility that it would be a hung jury and risking the chance that it will be a conviction? [APPELLANT]: Yes. THE COURT: And you realize that on a conviction in this case, you face a substantial amount of incarceration? [APPELLANT]: Yes. THE COURT: All right. Do you have any other questions for me? ⁷²³ [APPELLANT]: For example, like the hung jury, how long would it actually take if it was a hung jury to get back into trial?

THE COURT: To get back for retrial? [APPELLANT]: Yeah. THE COURT: Your case would be sent back to postponement court. The court would have to schedule a new trial date. I can’t predict that exactly, but I would guess that it’s going to be at least a matter of months, if not closer to a year. [APPELLANT]: Okay.

That’s long. THE COURT: Any other questions? [APPELLANT]: No. THE COURT: [Appellant’s counsel], anything else? [APPELLANT’S COUNSEL]: Your Honor, simply that he had made that inquiry of me also about the length of time if there was a retrial and I indicated—I didn’t say a year. I said it was out of my hands and it would be up to the Administrative Judge. A large factor would be my ordering of the transcript and how long it took to compile that and get it into my hands, because that would be a necessary part in the retrial.

But, we did discuss that matter and I believe it was answered satisfactorily and no, Your Honor. Other than that, I have no further inquiry. THE COURT: All right. Mr. Clayborne, this is how you wish to proceed? [APPELLANT]: Yes.

THE COURT: And this is your free and voluntary act in choosing to waive your right to a unanimous verdict? [APPELLANT]: Yes. THE COURT: All right. I find on the record, based on Mr. Clayborne’s responses that he is proceeding freely and voluntarily with the waiver of his right to unanimous verdict in this case. Let’s bring the jury down. ⁷²⁴ Appellant was convicted of first degree murder by majority verdict wherein eleven jurors found him guilty, and one juror found him not guilty.

All twelve jurors found appellant guilty of carrying a dangerous weapon with the intent to injure. On March 30, 2011, the court imposed sentences of life imprisonment, suspending all but twenty-five years for first degree murder and three years concurrent for the weapons offense. Thereafter, appellant noted an appeal. Additional facts will be provided as they bear on the issues.

II

DISCUSSION (A) Appellant’s Waiver Was Knowing, Intelligent, and Voluntary. Appellant preliminarily asserts that his waiver of a unanimous verdict was neither competently nor intelligently rendered for two reasons. First, appellant contends that he was misled by his counsel’s statement that if the jury were “hung,” that “the State ha[d] the absolute right to try the case again for as many times as they wish[ed].” Stated differently, he attests that the impression given by counsel’s statement leads to an erroneous conclusion that the State could repeatedly try him until he was convicted. Second, appellant additionally argues that his waiver was not knowing because he was not informed by the court whether the eleven jurors were favoring conviction or acquittal.

Conversely, the State asserts that when the record is “viewed in its totality,” appellant’s waiver was competently and intelligently made, and that “the vote of eleven jurors to convict him of first-degree murder should be affirmed.” We find the State’s argument more persuasive. To be sure, Maryland generally adheres to the common law system of trial by jury of twelve persons who must unanimously agree on a verdict. State v. Gorman, 315 Md. 402, 405 , 554 A.2d 1203 (1989) (citing Maryland Rules 4-311(b) 15 and 4- ⁷²⁵ 327(a) 16 , and State v. McKay, 280 Md. 558 , 375 A.2d 228 (1977)). See also Caldwell v. State, 164 Md.App. 612, 630 , 884 A.2d 199 (2005).

This practice comports with the Sixth Amendment to the United States Constitution 17 and with Article 21 of the Maryland Declaration of Rights. 18 Id. (citing Swain v. Alabama, 380 U.S. 202, 211 , 85 S.Ct. 824 , 13 L.Ed.2d 759 (1965), and Maryland Rule 4-311(a)). The Court of Appeals has previously explained this State and federally recog ⁷²⁶ nized constitutional right in Ford v. State, 12 Md. 514 (1859), stating: ‘The verdict is the unanimous decision made by the jury and reported to the court, on the matters lawfully submitted to them in the courts of the trial.’ Unanimity is indispensable to the sufficiency of the verdict. Id. at 549 (quoting 10 Bacon’s Abridged Title Verdict, 306) (emphasis in Ford, supra, 12 Md. at 549 ), quoted in Jones v. State, 384 Md. 669, 683 , 866 A.2d 151 (2005).

Nonetheless, the United States Supreme Court has concluded that neither the Sixth Amendment nor the Fourteenth 19 Amendment is offended by a state provision imposing less-than-unanimous verdicts in all but capital cases—notwithstanding a defendant’s refusal to consent to a non-unanimous verdict. See Apodaca v. Oregon, 406 U.S. 404, 406, 410-12 , 92 S.Ct. 1628 , 32 L.Ed.2d 184 (1972) (holding that a state law providing that criminal defendants could be convicted by a nonunanimous verdict, as long as ten members of the jury agreed, did not violate the Sixth Amendment applicable to the states via the Fourteenth Amendment to the Constitution); Johnson v. Louisiana, 406 U.S. 366 , 368-69, 92 S.Ct. 1635 , 32 L.Ed.2d 162 (1972) (Powell, J., concurring), discussed in McKay, 280 Md. at 565-66 , 375 A.2d 228 . As a consequence, neither the Sixth Amendment nor the Fourteenth Amendment to the United States Constitution are abridged when the defendant does consent and waives his or her right to a unanimous verdict. McKay, 280 Md. at 566 , 375 A.2d 228 . ⁷²⁷ In addition, the Court of Appeals had explicitly concluded that “[t]here is no historical support ... for an interpretation of Article 21 that would make jury unanimity an imperative requirement as opposed to a right which can be waived.” Id. at 569 , 375 A.2d 228 .

Like other constitutional rights, it exists for the primary benefit of the criminal defendant. Id. at 571 , 375 A.2d 228 . Accord Allen v. State, 77 Md.App. 537, 543 , 551 A.2d 156 (1989). Indeed, this principal is well established in Maryland.

Allen, 77 Md.App. at 543-44 , 551 A.2d 156 . See also State v. Santiago, 412 Md. 28 , 38 n. 4, 985 A.2d 556 (2009); Rice v. State, 311 Md. 116, 129 , 532 A.2d 1357 (1987). Thus, a defendant’s right to a unanimous verdietalthough a fundamental constitutional right—may be duly waived by the express consent of the defendant, the State, and the court. See McKay, 280 Md. at 567 , 375 A.2d 228 (relying on Patton v. United States, 281 U.S. 276, 312 , 50 S.Ct. 253 , 74 L.Ed. 854 (1930).

Accord Allen v. State, 77 Md.App. 537, 544 , 551 A.2d 156 (1989). See also Jones, 384 Md. at 683 , 866 A.2d 151 ). A defendant’s waiver to a unanimous verdict, however, is “not without its qualifications.” McKay, 280 Md. at 572 , 375 A.2d 228 . Because the right to a unanimous verdict is a “fundamental constitutional right guaranteed the defendant in a criminal case,” Id. at 572 , 375 A.2d 228 , “he may forgo this right only if, upon consideration of the particular facts and circumstances in each case, he ‘competently and intelligently’ decides to waive the right.” Allen, 77 Md.App. at 544 , 551 A.2d 156 (quoting Johnson v. Zerbst, 304 U.S. 458, 469 , 58 S.Ct. 1019 , 82 L.Ed. 1461 (1938)).

Cf. Bruce v. State, 328 Md. 594, 603 , 616 A.2d 392 (1992) (“different standards exist for assessing the validity of defendants’ waivers of rights, depending upon the nature of the right involved. The greatest protection is afforded fundamental constitutional rights under [the standard required by the Supreme Court in] Johnson v. Zerbst [.]”) (citation omitted). Thus, in the case of a fundamental constitutional right—like the right to a unanimous jury verdict in a criminal proceeding—the inquiry required to assure a valid waiver of the defendant’s right ⁷²⁸ ... imposes a serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused.

While an accused may waive the right to [a unanimous jury verdict], whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for the determination to appear upon the record. Johnson v. Zerbst, 304 U.S. at 465 , 58 S.Ct. 1019 . “Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused ... intelligently and understanding^ rejected the [right]. Anything less is not a waiver.” Carnley v. Cochran, 369 U.S. 506, 516 , 82 S.Ct. 884 , 8 L.Ed.2d 70 (1962) (applying the Johnson v. Zerbst standard to the waiver of an accused’s right to counsel), quoted in Boykin v. Alabama, 395 U.S. 238, 242 , 89 S.Ct. 1709 , 23 L.Ed.2d 274 (1969) (adopting the inquiry to a determination of whether a guilty plea by an accused is voluntarily made).

See also McKay, 280 Md. at 573-74 , 375 A.2d 228 ; Allen, 77 Md.App. at 544-45 , 551 A.2d 156 ; Bruce, 328 Md. at 604 , 616 A.2d 392 . Cf. Martinez, 309 Md. at 133-34, 522 A.2d 950 . Because arguments of “[i]gnorance, incomprehension, coercion, terror, inducements, [and] subtle or blatant threats might be a perfect cover-up of unconstitutionally,” Boykin, 395 U.S. at 242-43 , 89 S.Ct. 1709 , we turn to the previously established authority of the Court of Appeals and this Court.

We find the Court of Appeals opinion in State v. McKay, 280 Md. 558 , 375 A.2d 228 (1977), and this Court’s opinion in Allen v. State, 77 Md.App. 537 , 551 A.2d 156 (1989), instructive. In the watershed case of State v. McKay, the defendant, McKay, had been charged with armed robbery and seven related offenses. 280 Md. at 559 , 375 A.2d 228 . At the conclusion of the McKay’s trial, the charges to which the trial court did not grant him a judgment of acquittal were submitted to the jury for deliberation. Id. 20 After the jury had ⁷²⁹ deliberated for “approximately one hour,” the jury’s forelady proceeded to announce that the jury had found appellee not guilty under the first count of armed robbery, but “could not come to a unanimous decision” as to the third count of robbery.

Id. at 559-60 , 375 A.2d 228 . Following the court’s admonishment to the jury that it must make a unanimous decision, the jury resumed deliberations. Id. at 560 , 375 A.2d 228 . Those deliberations, however, were ephemeral, as the jury returned to the court ninety minutes later, “still unable to reach a unanimous verdict on the third count.” Id.

As a consequence, McKay’s counsel informed the court that he would be willing to accept a majority vote on the third count. Id. In response, the trial court reminded McKay that he had a constitutional right to “insist upon a unanimous vote” or, “alternatively,” a right to retrial. Id.

Uncertain of the court’s advisement, McKay asked the court to clarify, at which the following colloquy ensued: DEFENDANT MCKAY: What will that mean, I’ll have to be tried again [?] THE COURT: Yes. DEFENDANT MCKAY: The whole trial [?] [MCKAY’S COUNSEL]: The whole trial. DEFENDANT MCKAY: We’ll take what’s up. [MCKAY’S COUNSEL]: You will take what the majority is? DEFENDANT MCKAY: Yes.

Id. at 561 n. 2, 375 A.2d 228 (emphasis in original). After being further cautioned that McKay maintained the “absolute right under the law to have the whole trial tried all over again,” McKay, again, informed the court that he would accept a majority verdict. Id. at 561 , 375 A.2d 228 . The jury returned, “and the forelady announced that the appellee had been found not guilty under counts one and eight, but nine ⁷³⁰ jurors had voted ‘guilty’ as to count three and three had voted ‘not guilty.’ ” Id.

McKay subsequently appealed his conviction to this Court, which held that unanimity could not be waived and we therefore reversed his conviction. Id. at 559, 561 , 375 A.2d 228 (citing McKay v. State, 32 Md.App. 451, 462-63 , 362 A.2d 666 (1976)). As a result, State petitioned the Court of Appeals for a writ of certiorari. The Court of Appeals granted certiorari to determine whether waiver of a defendant’s right to a unanimous verdict was prohibited by the Maryland Declaration of Rights.

Id. at 559 , 375 A.2d 228 . Disagreeing with this Court’s reasoning, the Court of Appeals held that a defendant may waive unanimity of verdict “provided not only that the court and prosecution consent, but also that the waiver by the defendant conforms strictly with applicable constitutional standards.” Id. at 572 , 375 A.2d 228 . Nonetheless, the High Court concluded that McKay’s waiver was invalid because of his obvious misunderstanding of his rights on retrial. Id. at 573-74 , 375 A.2d 228 .

Specifically, it noted: [McKay’s] paramount concern was apparent from the colloquy with the court: whether a mistrial for lack of unanimity on the third count would mean a new trial not only on that count, but also on the first and eighth, and possibly even on those which had been the subject of judgment of acquittal. This was evident from his repeated questions concerning the “whole trial.” Not only did the court remain silent when defense counsel advised his client that a retrial would mean “the whole trial,” but the court itself informed [McKay] that he had “an absolute right under the law to have the whole trial tried all over again” and asked him whether he wished to accept “a majority vote” on count three or “have the case retried?” Only then did appellee reply that he would “take the majority vote.” Given what we regard as a clearcut understanding on the part of [McKay] that a mistrial for lack of unanimity on the third count would have meant, at the very least, a retrial on counts one and eight as well, even though the jury had found him not guilty of those charges, his decision to accept ⁷³¹ a majority verdict on the third count was hardly surprising. His consent, however, did not amount to an intelligent and competent waiver, since it rested on a grossly inaccurate premise. That he could not be retried on the charges of which he had been acquitted, without being placed in double jeopardy, was settled in Pugh v. State, 271 Md. 701, 706-707 , 319 A.2d 542 (1974).

McKay, 280 Md. at 572-74 , 375 A.2d 228 . As a consequence, the Court of Appeals affirmed the judgment of this Court and concluded that “[n]o consent founded on such defective grounds can amount to an intelligent and competent waiver of a constitutional right.” Id. at 574 , 375 A.2d 228 . Twelve years after the Court of Appeals’ decision in McKay, this Court, in Allen v. State, 77 Md.App. 537, 539, 544-46 , 551 A.2d 156 (1989), reversed an accused’s criminal conviction based on a majority vote of eleven to one and determined that the trial court had erred in the procedures used in connection with an accused’s agreement to accept a majority verdict. There, we noted, however, that it was “quite clear” from the record that the defendant, Allen, “understood the implication of a waiver.” Id. at 544 , 551 A.2d 156 .

Alternatively, we concluded that the trial court’s failure to inform Allen of the full contents of a jury communication pursuant to Md. Rule 4-326(d) 21 (then, Md. Rule 4-326(c))—which would have informed Allen that the sole juror precluding unanimity was preventing the jury from reaching a unanimous verdict of guilty 22 —had rendered his waiver unintelligent and unknow ⁷³² ing. Id. at 545-46 , 551 A.2d 156 . 23 ⁷³³ Following our conclusion that Allen’s waiver failed to satisfy constitutional standards and, therefore, required reversal, we “felt compelled” to address another “troubling aspect” of Allen’s waiver: “the fact that the trial judge initiated the waiver by suggesting to appellant, via defense counsel, that he might consider going with a majority verdict.” Id. at 546-47 , 551 A.2d 156 . Expressing grave concern about the potential for coercion where the trial judge suggests acceptance of a majority verdict, we determined that ... we [could] think of no circumstances where it is appropriate for a trial judge to suggest a waiver. It should be remembered that, in the instant case, the trial judge was the only person (with the exception of the jury) who knew that the 11 members of the jury had voted to convict [the defendant].

Thus, the trial judge knew when he made the suggestion to [the defendant], that if [the defendant] agreed he would be convicted. As the instant case illustrates, such a suggestion can place a reviewing court in the uncomfortable position of wondering whether the trial judge was truly impartial. Id. at 549 , 551 A.2d 156 (emphasis in original). Therefore, we concluded that the trial judge’s suggestion amounted to a “subtle form of coercion,” and that “the safe practice ... is for trial judges to refrain from making such suggestions.” Id. 24 As a result, we reversed the judgment of the trial court.

Id. at 551 , 551 A.2d 156 . The circumstances present in McKay or Allen , however, are inapposite to the case at bar. In the instant case, appellant, against the advice of counsel, express his wish to waive his right to a unanimous verdict and accept the majority ⁷³⁴ verdict. As a consequence, appellant’s counsel and the trial court engaged in an extensive waiver inquiry with appellant.

The waiver inquiry included questions relating to appellant’s capacity to make a voluntary decision and ruled out the possibility of drugs, alcohol, and mental illness or impairment. To ensure appellant’s understanding of his selection, his counsel not only advised appellant regarding the meaning of an unanimous verdict, he further informed appellant of his constitutional right to that unanimous verdict: [APPELLANT’S COUNSEL]: Okay. Just in case and so that the record is clear, a unanimous verdict means that all 12 of the jurors have to decide, either one way or another beyond a reasonable doubt that you’re guilty or not guilty, based on the evidence that they received. Do you understand that? [APPELLANT]: Yes. [APPELLANT’S COUNSEL]: And that’s your absolute Constitutional Right to have a unanimous verdict by a jury of your peers.

Do you understand that? [APPELLANT]: Yes. All of the jury’s communications to the court were properly disclosed to the parties, including the communication which prompted appellant to request a majority verdict. Even though the jury’s communication did not indicate the nature of the eleven to one split, the judge explicitly cautioned appellant of the court’s belief that the majority likely favored appellant’s conviction: THE COURT: Now, I will be very frank with you. I believe and no one can predict this, but I believe that the jury is weighted toward convicting you and I believe that by doing this, you are going to get a conviction of at least some counts in this case.

Do you understand that? [APPELLANT]: Yes. THE COURT: All right. So, you’re taking—you realize that you’re taking the chance that the 11 to one might be in your favor or it might be against you? [APPELLANT]: Yes. ⁷³⁵ After appellant’s counsel further noted on the record his disapproval of his client’s selection and advised appellant against the requested waiver, the trial court additionally cautioned appellant of the risk involved in making such a selection: [APPELLANT’S COUNSEL]: Now, and you understand that I have advised you to wait for a unanimous verdict; correct? [APPELLANT]: Yes. THE COURT: And you understand you’re giving up the possibility that it would be a hung jury and risking the chance that it will be a conviction? [APPELLANT]: Yes.

THE COURT: And you realize that on a conviction in this case, you face a substantial amount of incarceration? [APPELLANT]: Yes. Notwithstanding the advisement by both the court and counsel that accepting a majority verdict could lead to a conviction by less than a unanimous jury and that such a conviction would result in a substantial period of incarceration, appellant’s concern regarding the possibility of a hung jury was the length of time that would lapse between the court’s finding of a mistrial and his retrial. [APPELLANT]: For example, like the hung jury, how long would it actually take if it was a hung jury to get back to trial? THE COURT: To get back for retrial? [APPELLANT]: Yeah. THE COURT: Your case would be sent back to postponement court.

The court would have to schedule a new trial date. I can’t predict that exactly, but I would guess that it’s going to be at least a matter of months, if not closer to a year. [APPELLANT]: Okay. That’s long. ⁷³⁶ Appellant never suggested that he was concerned with the length of time he would remain incarcerated if he had been acquitted. In fact, appellant informed the court that he wished to waive his right to a unanimous verdict, and, alternatively opt for a majority verdict, because he believed the jury was headed toward an acquittal: THE COURT: Are you proceeding because of—with this waiver because you simply don’t want to be held in jail any longer? [APPELLANT]: No, it’s not that.

It’s—I just have strong beliefs in the jury right now as far as—you know what I mean? And I— THE COURT: So, you think that the jury is heading toward acquittal? [APPELLANT]: Yes. THE COURT: All right. And you wish to take that chance?

Thus, his dialogue with the court demonstrated an understanding that an acquittal would not result in a retrial of the same criminal charges. Appellant clearly understood that an acquittal would bar the State from retrying the case, otherwise he would not have had any incentive to accept a majority verdict in the first place. A review of the record leads to the conclusion that appellant’s choice to waive his right to a unanimous verdict was based solely on his opposition to a lengthy delay prior to his retrial in the event of a hung jury and prior to any right to appeal should retrial result in a conviction. Indeed, appellant’s only concern if the majority verdict resulted in a conviction was whether he maintained an absolute right to appeal: [APPELLANT’S COUNSEL]: And as a matter of fact, just to continue to make the record clear, you have—your largest or biggest concern was if you agree,