Dorsey v. State

HOLLANDER, Judge. Following a trial in September 2007, a jury sitting in the Circuit Court for Frederick County convicted Theodore Randolph Dorsey, appellant, of second degree arson, in violation of Maryland Code (2002, 2006 Supp.), § 6-103 of the Criminal Law Article (“C.L.”). The conviction arose from an automobile fire that occurred on September 2, 2006, involving a vehicle that belonged to appellant’s girlfriend, Elizabeth Anderson. 1 On appeal, appellant focuses on two issues: the jury deliberations, which were the subject of his unsuccessful motion for new trial, and the admission of his medical records. Dorsey asks: 1.

Whether a new trial should be ordered because jurors disobeyed explicit jury instructions and discussed the defendant’s refusal to testify in his own defense!.] 2. Whether the lower court erred by admitting into evidence Mr. Dorsey’s confidential medical records when the State obtained these records in violation of both Maryland’s Confidential Medical Records Act, and Mr. Dorsey’s constitutional privacy rights!.] ⁸⁸ For the reasons set forth below, we shall affirm the judgment of conviction. FACTUAL AND PROCEDURAL BACKGROUND 2 In September 2006, Dorsey was a deputy sheriff who had been employed for fifteen years in the Frederick County Sheriffs Office; Anderson was a police officer in the Brunswick Police Department. They met for dinner on September 2, 2006, at a restaurant in Frederick.

After dinner, Anderson left her car at the restaurant, because she had been drinking; appellant drove her home. Late that night, Anderson’s car was set afire, at a location approximately six to ten minutes from the restaurant. State Deputy Fire Marshal K. Arthur McGhee determined that the fire was an arson. No fingerprints, footprints, tire tracks, gasoline cans, or other physical evidence linked appellant to the scene.

At trial, McGhee testified as an expert in the cause of fires and fire investigation. Moreover, he testified that he has been an emergency medical technician since 1981, and had seen burn injuries on “[t]oo many [occasions] to count.” McGhee questioned appellant about the fire on September 5, 2006. Appellant told McGhee that, after he dropped off Anderson, he went to several bars in Harrisburg with a friend, Dale Williams, and got into a fight. During the altercation, Dorsey “got hit in the face with a bottle.” He explained that the bottle “broke [and] cut his face.” McGhee recalled that, at the time of questioning, appellant had “four inch by four inch medical gauze taped to the [left] side of his face and his left hand and wrist area [were] covered in gauze.” He stated: ⁸⁹ While [appellant] was filling out the statement and was talking to me, he was sitting on my left at a, just like a dining room table and he was filling out the form and he would have to reach up and try to put—this bandage kept, as he was talking would—it wasn’t put on very well.

It was kind of taped on and it kept trying to come off his face and it would stick and he’d put it back. And then I noticed it was a like red and there was, I could see what looked like skin, um, that had, like the first layer of the epidermis had started to come off. It looked like skin hanging. I, I wasn’t exactly sure, but that’s what it looked like.

And then I noticed on the gauze that he had on his hand, it didn’t cover every inch of his hand. I mean I could see the web area between his thumb and his finger, his index finger on his left hand, the, the epidermis, the skin was coming off, which looked like a burn. The colloquy continued: [PROSECUTOR]: Okay. And the, let’s first start, again, the hand injury you believe was a burn?

Is that correct? [MCGHEE1: Yes. [PROSECUTOR]: And how about the injury to his face? [MCGHEE]: It looked like it might have been a burn also. [PROSECUTOR]: Okay. Have you had occasion to see cutting wounds before? [MCGHEE]: Yes. [PROSECUTOR]: Okay. Did these appear, did the, the wound on his face, did that appear to be a cutting wound to you? [MCGHEE]: No. [PROSECUTOR]: Did it appear to be consistent with something, with being struck with something sharp like a bottle? [MCGHEE]: No. ⁹⁰ The court received into evidence photographs of the injuries to appellant’s face and hands, which were taken on September 15, 2006. Under one of the photographs, McGhee had written: “Suspect’e [sic] right hand (apperars [sic] to be a burn injury).” Under another he wrote: “Suspect’s injury to left hand (apperars [sic] to be burn injury).” Dale Williams testified that he saw appellant on the morning of September 2, 2006, around noon on September 8, 2006, and at some point after September 3, 2006.

Williams recalled that appellant had no injuries on September 2, 2006. But, on September 3, 2006, Williams “saw bandages” on appellant’s “face and hands.” He described appellant’s skin as “kind of pinkish.” John Allen Turner, a constable with the Frederick County Sheriffs Office who had known appellant for about seven years, testified that he saw appellant at Advanced Urgent Care in Frederick on September 8, 2006. The following is relevant: [PROSECUTOR]: ... Did you speak with Mr. Dorsey that day? [TURNER]: Ah, yes.

I spoke to him for about three to five minutes, which he was there filling out paperwork. I noticed that he was coming out of the door and, you know, I had to do a double-take and ..., you know, I was concerned. I was like man, what happened to you? [PROSECUTOR]: Why’d you say that? [TURNER]: Well, he had what appeared to be, was like pink, more or less burns or spots on his face.... And then his hand was wrapped and his wrist on his left. [PROSECUTOR]: Were you able to see the injuries to his hands or were they all wrapped up? [TURNER]: No, they were wrapped.

Turner added that, when he asked appellant what happened, appellant stated “that he got in a fight with a grill and that was it.” ⁹¹ On cross-examination, Turner agreed that in his written statement he said he “noticed what appeared to be burns.” On redirect examination, the prosecutor asked Turner about “any further- comment [he made] as to the injuries to Mr. Dorsey.” The following ensued: [PROSECUTOR]: What’d you say? [TURNER]: ... I was just concerned for his welfare and since they appeared to be burns and what, I believe that they were burns. I’ve seen burns and they looked like burns, so that’s ... [PROSECUTOR]: And specifically, what did you see that ... led you to that conclusion— [TURNER]: ... [W]hen the skin was pink and on, on his face and then when his, ah, arm was bandaged up, you know, that’s why I thought that they were burns. They appeared to be and therefore I thought they were and then after we had our little discussion about being in a fight wth [sic] a grill I was like okay, then they were. [PROSECUTOR]: Did, did you make any comment as to whether skin was missing from Mr. Dorsey? [TURNER]: I noticed that skin was missing ... and his skin was pink in color.

That’s correct— The State sought to offer appellant’s medical records from Advanced Urgent Care, dated September 8, 2006. 3 Defense counsel objected, and the court heard argument regarding the admissibility of the evidence, outside the presence of the jury. Defense counsel argued: [W]hat we really have is evidence that should never have gotten into the prosecution’s hands in the first place if it wasn’t properly subpoenaed and Urgent Care released it ⁹² without the consent of Mr. Dorsey then he can’t testify to it and that’s why I’m going to move to preclude him from being able to do so. Moreover, defense counsel insisted that the State had to prove that it had written procedures in place when it issued the subpoena. Relying on the Maryland Confidentiality of Medical Records Act (the “Act”), Md.Code (2005 Repl.Vol., 2007 Supp.), § 4-301 to .4-309 of the Health-General Article (“H.G.”), he asserted: “[T]he plain reading of the statute would require that before you enter those medical records [the State] has to produce written guidelines of [the] office’s procedures and unless that’s met I don’t think that that comes in.” As to compliance with the Health Insurance Portability and Accountability Act, Pub.

Law 104-191, 110 Stat.1936 (1996) (“HIPAA”), defense counsel argued: “HIPAA is, is a quagmire of information to try to, to figure out how to comply with it.... ” But, he maintained that “the whole purpose of that reform was to enhance the confidentiality of medical records .... ” The State countered that, under H.G. § 4-306, appellant’s authorization was not required for disclosure. The prosecutor also claimed that the subpoena was issued pursuant to § 6-310 of the Public Safety Article. See Md.Code (2005, 2007 Supp.), § 6-310 of the Public Safety Article (“P.S.”). The court ruled: [I]t’s clear and there are sections under HIPAA that make it clear that the purpose is to protect confidentiality of patients but is not to prevent disclosure as otherwise authorized by law.

So I’m not going to focus on HIPAA.... The records have been disclosed. The records were disclosed by the health care provider pursuant to a subpoena issued under the Public Safety [Article]. The subpoena itself under the Public Safety [Article] did not have the required language under Health General.

However, despite that the information came into the possession of the State. It is a, an area where they are, the health care provider is authorized to disclose the records without the permission or ⁹³ without notice to the record-holder.... The only reported case deals with the impropriety of the Court ordering disclosure of the records without the written requirements of the confidentiality but that is disclosure for investigatory purposes for whatever reason or without any other, there’s no evidence that there was compliance with the second section of, urn, [H.G. 4—]306(b)(7) or not. I’m going to overrule the objection and allow the witness to testify with the authentication of the record.

Ronald Golden, office manager and radiologic technician at Advanced Urgent Care, was called to authenticate the record, and appellant requested “a brief voir dire.” When appellant asked Golden if he had “written procedures for dealing with the release of medical information of patients,” the State objected that it had “been ruled upon.” Appellant said that he would “discontinue that line of questioning at this point” and “[r]est on [his] prior objection.” The court again overruled the objection. Appellant’s medical records, dated September 8, 2006, were admitted. They provide: HISTORY OF PRESENT ILLNESS (PHYSICIAN): L side of face and L hand were burned 6 days ago when his gas grill ignited with a fireball. He has been using Zim’s wound cream on his face and blister pads on his hand.

The burn on his face is looking much improved. His hand has several open wounds and one large deflated blister. Denies purulent drainage. No fever or malaise.

INSPECTION: Skin on L side of face/nose healing well. No edema, erythema, drainage. Intact blisters on dorsal fingers of L hand. Large, deflated blister on dorsal hand.

Several small areas of missing epidermis. No purulent d/c. Burn on hand is not circumferential. During the State’s case, the defense entered photographs that McGhee took of the vehicle during his investigation.

At the close of the State’s case, defense counsel moved for a judgment of acquittal, arguing that “none of the elements were, were made out on a prima facie case even looking at it ⁹⁴ ... in the light most favorable to the State.” Specifically, he contended that there was no proof of malice, and “the willfulness is ... not 100 percent clear.” The State countered that “there is certainly enough circumstantial evidence to, ah, for any reasonable jury certainly at this stage to find Mr. Dorsey guilty. I think the plain reading of the statute as well as the jury instruction gives maliciously a definition that frankly we’ve met in this case.” The court denied the motion, stating: “[PJursuant to the language of the jury instruction with the new second degree arson ... there is sufficient evidence to go to the jury.... ” Appellant did not testify or call any witnesses. The court instructed the jury, in part: “The Defendant has an absolute constitutional right not to testify. The fact that the Defendant did not testify must not be held against the Defendant.

It must not be ... even considered by you in any way or even discussed by you during your deliberations.” In its closing, the State quoted almost verbatim from the medical records. Appellant’s attorney argued: Let me talk for a minute before I go into the rest of my case about [appellant] not testifying. I know that the jury instruction says that you’re not even to discuss it. I know that it’s not to be held against him.

But I also know that’s a little bit against human nature and I ask you that if it comes up, I forgive you. [If] [i]t happens to come up in deliberations put it on me, not on [appellant]. After the jury returned a guilty verdict, appellant moved for a new trial. He alleged, inter alia, that the medical records were inadmissible, and that the jury engaged in misconduct because it considered appellant’s failure to testify. Regarding the alleged jury misconduct, appellant asserted: After the jury was polled and allowed to leave the courtroom, this Honorable Court indicated it would speak to the jurors.

Counsel waited in the hallway until the jurors left and asked to speak with them. One juror spoke with Counsel and indicated that despite the Court’s instruction, the jury wanted to hear from the Defendant and that this fact was a dispositive one. ⁹⁵ At a motion hearing on January 16, 2008, appellant’s counsel proffered the information he had obtained about the jurors’ deliberations. 4 He argued that Md. Rule 5—606(b) 5 did not preclude the court from hearing testimony from an investigator about jury misconduct. He also insisted that the medical records were inadmissible because there was no proof of a written policy guarding their confidentiality. The following excerpts from counsel’s argument are pertinent: The most troubling part of this case, Your Honor, I have to say occurred when I talked to one of the jurors afterwards and she was kind enough to speak with me and indicated that there was some discussion about the fact that [appellant] didn’t testify... .

And Ms. Lynn was the only juror who, ah, who took the time to speak to me and, and told me about that. So what we did was, as I provided the materials to you in chambers, was have Mr. Chase, an investigator, go out and see which jurors would care to speak to us and I was very, very careful to let him know, you know, not to pressure anybody and let them know if they don’t want to talk then he just walks and he did. And he did on many of them that they just simply didn’t want to talk to him. But several of the jurors that sat in this case, ah, gave him clear indication that they disregarded your instruction. ... [M]ultiple folks did, ah, did admit that there was a discussion about it.... ...

What they said, several of them in, in Mr. Chase’s report is they felt it didn’t influence the case but that they admitted that it was discussed. Only one juror out of the folks that talked about it indicated that he did not overhear ⁹⁶ anyone talking about the, ah, the fact that [appellant] didn’t testify. In denying the motion, the court said: I read [Rule] 5-606 as being an absolute prohibition for the Court inquiring into what mental processes juries go through in the jury room. The Jenkins case [ 375 Md. 284 , 825 A.2d 1008 (2003) ] where you have a witness talking to a juror at lunch is different than you’re talking about what the jurors are talking about in the jury room and I read 8-606(b)(2)(sic) as to a real question whether I can even consider the statements made to the investigator for the purpose of determining whether they properly or improperly applied my instructions because I read that as being an inquiry into the validity of the verdict.

Jenkins is factually very different. You’re not talking about what the jury was doing in the jury deliberation room to the, as most essential processes that a jury does, which is deliberate on the evidence in the case. The case where they put the alternates in in Baltimore City is different. The case in Jenkins where you’re talking about a witness interviewing a, having lunch with a juror is different because you’re not talking about what the juries are doing inside the jury room.

I think 5-606 is very clear that the statements made to [defense counsel] ... and to any investigator, I can’t consider for the purpose of inquiring into the verdict as to a matter or a statement that occurred during the course of their deliberation. So I don’t think I have, ah, I can consider it under 5-606 as a way to inquire in to set aside the verdict on that ground. So I’m denying the motion for new trial on that ground. The court also rejected the challenge to the admission of the medical records.

It said: “I’ve ruled on that already and I don’t see any reason to, for me to reverse my finding.” DISCUSSION I. Maryland Rule 5-606(b) is at the center of the dispute pertaining to the jury verdict. It provides: ⁹⁷ Rule 5-606. Competency of juror as witness. (b) Inquiry into validity of verdict.

(1) In any inquiry into the validity of a verdict, a sworn juror may not testify as to (A) any matter or statement occurring during the course of the jury’s deliberations, (B) the effect of anything upon that or any other sworn juror’s mind or emotions as influencing the sworn juror to assent or dissent from the verdict, or (C) the sworn juror’s mental processes in connection with the verdict. (2) A sworn juror’s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying may not be received for these purposes. (3) Notes made under Rule 2-521 (a) or Rule 4-326(a) may not be used to impeach a verdict. Appellant contends that the trial court “erred” or “abused its discretion” in denying his motion for a new trial, which was premised on his claim that the “jurors disobeyed” the court’s “explicit instructions” by “openly discussing Mr. Dorsey’s failure to testify in his own defense.” In his view, such conduct “compromised the integrity of the proceedings” and deprived him of “a fair trial.” Dorsey concedes that “Rule 5-606 upholds the general preRule principal [sic] that jurors cannot be called upon to impeach their verdict....” But, he claims that the trial court misinterpreted Md. Rule 5—606(b) as an absolute bar to the consideration of evidence as to jury misconduct.

In Dorsey’s view, the trial court’s narrow interpretation of the Rule “simply does not make sense,” because it would mean that no verdict could be set aside “if doing so required using any type of evidence involving jurors after they retired to the jury room.” He adds: “From a policy perspective, the lower court’s interpretation of Md. Rule 5-606 is unreasonable because it leaves courts with no recourse in the face of compel ⁹⁸ ling evidence that jurors violated fundamental fairness by discussing a defendant’s refusal to testify in his own defense.” Moreover, Dorsey argues that the circuit court’s “reading of Maryland Rule 5-606 is erroneous because it effectively strikes this entire first clause of 5—606(b)(1) by reading it out of the rule.” In his view, the trial court’s “interpretation also renders the entire heading to section (b) of the Rule meaningless.” In addition, appellant complains that the court did not recognize “the difference between an ‘inquiry into the validity of a verdict,’ and the inquiry Mr. Dorsey actually requested: an inquiry into whether there was a systemic breakdown before the verdict, because an extraneous and inherently prejudicial matter was placed before the jury.” He maintains that Rule 5-606(b) permitted the court to consider evidence that the jurors discussed appellant’s silence, “because the jurors[’] comments had nothing to do with the verdict.” Dorsey explains: “As long as the court’s inquiry was limited to whether jurors broke the rule [of not discussing appellant’s silence], the focus remained on ‘the integrity of the process,’ and it was not even relevant whether the error affected the verdict or not.” Dorsey insists that “the constitutional interests in a fair trial can be vindicated without even implicating the policy against asking jurors to impeach their verdict because the violation is unrelated to the verdict. An error of constitutional magnitude can be established—or ruled out— based solely on whether the rule was broken.” Further, Dorsey contends that the jury’s conduct was presumptively prejudicial because it went “to the very heart of constitutional fairness in any criminal proceeding.” Claiming that the court failed to balance “the constitutional rights at stake,” appellant posits: “This case presents a perfect storm that implicates one of the most core constitutional principals [sic] that exists in criminal proceedings, and one that commands additional vigilance because of the predisposition to assume the worst from a silent defendant.” ⁹⁹ The State responds that “[b]oth the language of Rule 5-606(b) and case law fully support the trial court’s refusal to consider the jurors’s [sic] comments to Dorsey’s attorney and the investigator, as well as the trial court’s ruling.” In its view, appellant’s “logic” is “flawed” because his efforts to prove that he was denied a fair trial “necessarily involve[ ] an inquiry into how the verdict was reached” as well as the “validity of the verdict.” It argues: “[I]f Dorsey were allowed to present evidence that the jurors talked about Dorsey’s failure to testify, but the discussion had ‘nothing to do with the verdict,’ then his claim that he was denied a fair trial, and thus is entitled to a new trial, must fail.” Pointing to the fallacy in appellant’s argument, the State asserts: “The reality is that Dorsey does want to impeach the verdict, and get a new trial, by showing that the jurors disobeyed the court’s instructions.” Furthermore, the State maintains that “Rule 5-606 exists, in part, to prevent exactly what happened in this case.” While recognizing that the rule permits “an inquiry into the validity of the verdict using other evidence,” the State argues: “The trial court was correct in finding that Rule 5-606(b) precluded considering ... evidence [that] involved the deliberations and mental processes of the jurors in reaching their verdict.” Alternatively, the State maintains that, even if the trial court could have considered appellant’s proffer, appellant did not offer sufficient proof of prejudice. In reply, appellant reiterates that “no juror was asked to impeach their verdict, nor was any juror asked to take the witness stand.” Instead, appellant offered third-party testimony that the court should have considered as “other” evidence. Dorsey asserts: In essence, this Court is confronted with two interpretations of Rule 5-606(b).

We respectfully submit that [appellant’s] interpretation ... makes more sense. It would allow a third party to testify post-verdict about something jurors report occurring during deliberations, as long as the inquiry is limited to determining whether there was a systemic breakdown relating to the constitutional fairness of the proceeding, and the inquiry does not require jurors to ¹⁰⁰ comment on the validity of the verdict. This interpretation does a better job of balancing the important public policy interests at stake against the constitutional right to a fair trial. It does not violate cannons of interpretation by rendering an important clause in the Rule meaningless.

Most importantly, if a juror later confesses to a third party that during deliberations there were discussions of explicitly forbidden topics that could undermine the integrity of the entire process, some limited inquiry can proceed.! ] In construing Rule 5-606, quoted earlier, we apply the same canons and principles that apply to the construction of statutes. See Knox v. State, 404 Md. 76, 85 , 945 A.2d 638 (2008); State v. Williams, 392 Md. 194, 206 , 896 A.2d 973 (2006). Therefore, we look first to the words of the rule. Knox, 404 Md. at 85 , 945 A.2d 638 .

Chief Judge Bell explained for the Court in Brown & Williamson Tobacco Corp. v. Gress, 378 Md. 667, 676 , 838 A.2d 362 (2003): “When the words [of the rule] are clear and unambiguous, ordinarily we need not go any further. Only when the language of the rule is ambiguous is it necessary that we look elsewhere to ascertain legislative intent. We are also to give effect to the entire rule, neither adding, nor deleting, words in order to give it a meaning not otherwise evident by the words actually used. Finally, we seek to give the rule a reasonable interpretation, not one that is illogical or incompatible with common sense.” (Quoting New Jersey v. Strazzella, 331 Md. 270, 275 , 627 A.2d 1055 (1993)) (internal citations omitted).

In our view, the trial judge correctly interpreted Rule 5-606. We explain. “The well-settled Maryland rule is that jurors cannot be heard to impeach their verdict.” Colvin-el v. State, 332 Md. 144, 184 , 630 A.2d 725 (1993), cert. denied, 512 U.S. 1227 , 114 S.Ct. 2725 , 129 L.Ed.2d 849 (1994). Indeed, jurors’ discussions are “sacrosanct.” John Crane, Inc. v. Puller, 169 Md.App. 1, 53 , 899 A.2d 879 (“In our system of justice, the jury is sacrosanct and its importance is unquestioned.”) (cita ¹⁰¹ tions and quotation marks omitted), cert. denied, 394 Md. 479 , 906 A.2d 943 (2006). In Stokes v. State, 379 Md. 618, 638 , 843 A.2d 64 (2004), the Court observed: Jury deliberations are private and are to be conducted in secret.

The rule prohibiting verdict impeachment is stringent and of long standing; one reason for the rule is to protect the secrecy of jury deliberations. It has been said that while privacy is not a constitutional end in itself, it is the means of ensuring the integrity of the jury trial itself. (Internal citations omitted.) See also Clark v. United States, 289 U.S. 1, 13 , 53 S.Ct. 465 , 77 L.Ed. 993 (1933) (“Freedom of debate might be stifled and independence of thought checked if jurors were made to feel that their arguments and ballots were to be freely published to the world. The force of these considerations is not to be gainsaid.”).

Maryland Rule 5-606(b) “codifies Maryland’s strict common law juror nonimpeachment rule.” Lynn McLain, Maryland Rules of Evidence, Rule 5-606, at 110 (2007) (“McLain”). It was adopted by the Court, effective July 1, 1994. 6 But, the ¹⁰² veil surrounding jury deliberations predates the adoption of the rule. See Jenkins v. State, 375 Md. 284, 331-32, 825 A.2d 1008 (2003). About forty years before the Rule was enacted, the Court of Appeals observed in Williams v. State, 204 Md. 55, 67 , 102 A.2d 714 (1954): The law in Maryland is well settled that a juror cannot be heard to impeach his verdict, whether the jury conduct objected to be misbehavior or mistake.

Browne v. Browne, 22 Md. 103, 113 [ (1864) ]. The reasons for the rule have been stated by this Court in Brinsfield v. Howeth, 110 Md. 520, 530 [, 73 A. 289 ] [ (1909) ], in these impressive words: “Such evidence is forbidden by public policy, since it would disclose the secrets of the jury room and afford an opportunity for fraud and perjury. It would open such a door for tampering with weak and indiscreet men that it' would render all verdicts insecure; and, therefore, the law has wisely guarded against all such testimony and has considered it unworthy of notice. It would be a most pernicious practice, and in its consequences dangerous to this much valued mode of trial, to permit a verdict, openly and solemnly declared in the Court, to be subverted by going behind it and inquiring into the secrets of the jury room.” Other risks sought to be averted, it has been said, are harassment of jurors by disgruntled losing parties; removal of an element of finality from judicial decisions; and through allowing jurors to swear to alleged examples of reprehensible conduct, a decrease in public confidence in the judicial process.

See also Harford Sands, Inc. v. Groft, 320 Md. 136, 145 , 577 A.2d 7 (1990). Williams, 204 Md. 55 , 102 A.2d 714 , provides guidance. In that case, an African-American defendant convicted of assault and battery moved for a new trial, alleging that racial prejudice influenced the jury. Id. at 58, 65 , 102 A.2d 714 .

She ¹⁰³ supported her motion with a juror’s post-trial affidavit, which said, id. at 65-66 , 102 A.2d 714 (quoting affidavit): “This was an all white jury. From the beginning of the discussion in the jury room it was the race of the defendant, not the facts, which were weighed by the majority of the jurors. They freely discussed the race of this girl and said that where colored people are concerned the police have got to be right. Bandied back and forth between the jurors were the statements that these colored people are smart alecs, especially the educated ones; that they overassert their rights; that we must teach them a lesson.

Four of the jurors, including myself, were for complete acquittal at the first of the discussion. A fifth juror was undecided. The other jurors kept hammering at us. One of the jurywomen exclaimed to me, ‘You’re taking that colored girl’s word against the police.

You must be in trouble with the police!’ 1 told her I had never been in trouble with the police, that I had many friends who were police officers, but I felt this girl was innocent. The last half hour, I held out alone. I finally threw in the towel when some of the jurors accused me of being a ‘nigger-lover.’ ” After the trial court denied the motion, the defendant appealed. Id. at 58, 66 , 102 A.2d 714 .

In affirming the conviction, the Court of Appeals concluded that the affidavit should not have been considered because “[t]he law in Maryland is well settled that a juror cannot be heard to impeach his verdict,” id. at 67 , 102 A.2d 714 , and the Court could not “ignore the rules as to the manner in which claimed prejudice may be shown____” Id. at 72 , 102 A.2d 714 . Further, it declared: “[T]he affidavit of a juror is inadmissible as evidence at the hearing on the motion for a new trial.... ” Id. And, said the Court: “We have been referred to no case, and careful independent research has disclosed none, where a verdict was set aside on appeal in any jurisdiction, because of fallacious, unfair or biased arguments advanced by jurors to one another in their deliberations.” Id. at 70 , 102 A.2d 714 . The Court remarked that it reached this conclusion even though the “claim that a litigant has been denied justice on ¹⁰⁴ account of his or her race ... rais[es] an issue of utmost gravity.” Id. at 72 , 102 A.2d 714 .

As we indicated, appellant argues that a presumption of prejudice arose in his case based on the evidence of the jurors’ discussion of appellant’s silence. But, prejudice is only presumed in circumstances concerning an outside influence. Compare Remmer v. United States, 347 U.S. 227, 229 , 74 S.Ct. 450 , 98 L.Ed. 654 (1954) (outside influence is “presumptively prejudicial”) and Stokes, supra, 379 Md. at 631, 638 , 843 A.2d 64 (presuming prejudice based on the presence of alternate jurors in the jury room) with Summers v. State, 152 Md.App. 362, 379 , 831 A.2d 1134 (no presumption of prejudice when discussion occurs among jurors), cert. denied, 378 Md. 619 , 837 A.2d 929 (2003). Jenkins, supra, 375 Md. 284 , 825 A.2d 1008 , is illustrative.

There the defendant was charged with second degree murder and other crimes. Id. at 287 , 825 A.2d 1008 . The detective who interviewed the State’s key witness testified for the State at Jenkins’s trial. Id. at 290-91 , 825 A.2d 1008 .

Her interview notes “were read into the record as evidence.” Id. at 291 , 825 A.2d 1008 . Five days after the jury’s guilty verdict, the detective ran into Jenkins’s counsel and told the attorney that she had had contact with a juror during the course of the trial. Id. at 291-92 , 825 A.2d 1008 . Jenkins then moved for a new trial, alleging “improper contact between a juror and a detective,” which prejudiced Jenkins.

Id. at 287-88 , 825 A.2d 1008 . At an emergency motion hearing, the detective and the juror testified about what the Court characterized as their “extensive contact” with each other at a weekend religious retreat, held while the trial was still in progress. Id. at 292 , 825 A.2d 1008 . The juror testified that he initially tried to avoid the detective but then approached her and told her he could not talk to her.

Id. The detective, apparently thinking he was a juror on a different case, asked if the jury found the defendant guilty. Id. at 292-93 , 825 A.2d 1008 . According to the juror, he “told her that the trial remained in progress,” but the two did not ¹⁰⁵ discuss the case further.

Id. at 293-94 , 825 A.2d 1008 . However, they sat together at a seminar, had lunch alone, and the detective drove the juror to his car at the end of the retreat. Id. at 294 , 825 A.2d 1008 . The detective gave similar testimony.

Id. at 294-95 , 825 A.2d 1008 . The trial court found the contact improper but denied the motion, concluding that it did not prejudice Jenkins. Id. at 288 , 825 A.2d 1008 . The Court of Appeals reversed, id. at 341 , 825 A.2d 1008 , ruling that “denial of [Jenkins’s] motion for a new trial was a clear abuse of discretion under the specific egregious circumstances in the case sub judice .... ” Id. at 289 , 825 A.2d 1008 .

It elaborated, id. at 289 , 825 A.2d 1008 : Regardless of whether details of the ongoing trial were discussed, personal and prolonged contact as occurred in this case ... interjects an inherent prejudice to [Jenkins] in the form of possible bias in favor of the State’s case, [and] creates an appearance of serious impropriety and causes subsequent serious harm to the perception of the integrity of the jury process itself. The Court noted that “the strong possibility of prejudice ... invokes the presumption” of prejudice that “the State must effectively rebut....” Id. at 329 , 825 A.2d 1008 . Yet, the State’s “only method of affirmatively rebutting” the presumption would be by asking the juror how his contact with the detective affected his ability to decide the case. Id. at 329-30 , 825 A.2d 1008 .

The Court concluded that Rule 5-606(b) precluded such an inquiry. Id. at 331 , 825 A.2d 1008 . In contrast, in Summers, 152 Md.App. at 378 , 831 A.2d 1134 , this Court did not presume prejudice based on juror misconduct involving two jurors who discussed the case at lunch, outside the presence of the other jurors. We observed, id. at 379 , 831 A.2d 1134 (internal citation omitted): This case differs from all of these cases we have discussed [about improper communications] because the allegedly improper communication here occurred between two jurors, not between a juror and a witness, defendant, or third party.

We find that distinction significant. Third party ¹⁰⁶ communication with a juror raises a concern that the juror may reach a verdict On the basis of the improper extrinsic communication rather than the evidence. That concern is greatly diminished when, as in this case, the improper extrinsic communication occurred solely between two jurors. To be sure, the rule does not bar all inquiries with respect to a jury verdict.

With regard to permissible inquiries, Smith v. Pearre, 96 Md.App. 376 , 625 A.2d 349 , cert. denied, 332 Md. 454 , 632 A.2d 151 (1993), a medical malpractice action, is noteworthy. In that case, the trial court admonished the jury not to read the newspaper or watch the news on television, so as to avoid hearing “ ‘anything about this case or medicine in general or anything about civil suits.’ ” Id. at 389, 625 A.2d 349 (quoting trial court). After the jury delivered its verdict for the defendants, plaintiffs’ counsel learned of a relevant “60 Minutes” program that aired while the trial was in progress. Id. at 389-90 , 625 A.2d 349 .

Therefore, he “engaged the services of an investigator to conduct a telephone survey of the jurors.” Id. at 390 , 625 A.2d 349 . After the investigator determined that the jury foreman watched the program, plaintiffs moved for a new trial, alleging juror misconduct. Id. at 389-90 , 625 A.2d 349 . The circuit court denied the motion and this Court affirmed.

Id. at 379-80 , 625 A.2d 349 . In our analysis, we addressed whether evidence that the jury foreman watched the program could “be properly considered by the trial court.” Id. at 390 , 625 A.2d 349 . The Court reasoned that such evidence “constitute[d] extraneous material that occurred outside the sanctity of the jury room,” and therefore the trial court could consider it. Id.

We distinguished such information from “what occurred during jury deliberations,” which the court could not consider. Id. The Court observed, id. at 388 , 625 A.2d 349 : What appellant’s'counsel did in this case—employing an investigator to question