Eades v. State

KARWACKI, Judge. A jury in the Circuit Court for Montgomery County convicted Robert Joseph Eades, the appellant, of robbery and assault with intent to rob. Appellant moved for a new trial pursuant to Rule 4-331, alleging that he was prejudiced by juror misconduct. After a hearing, Judge DeLawrence Beard denied appellant’s motion and sentenced him to two concurrent four year terms of imprisonment.

Appellant presents three questions for our consideration in this appeal. I. Was the juror’s communication with her husband prejudicial?

II

Was Officer McCauley’s rebuttal testimony improperly allowed?

III

Was the evidence legally sufficient to establish appellant’s criminal agency? At approximately 3:00 a.m. on the morning of January 24, 1987, Nat Johnson and Coleman Pensor approached Officer Scott McCauley of the Takoma Park Police Department to report that they had just been robbed of a twenty dollar bill while they were sitting in their parked car on Lee Avenue. They described their three assailants as a black man clothed in a checkered jacket, a heavier black man wearing a brown jacket, and a black woman dressed in a long purple jacket. After they had been robbed, Johnson and Pensor observed their assailants flee into an apartment building on 7513 Maple Avenue.

Several police officers, including Officer McCauley, conducted a floor to floor search of the multi-storied apartment ⁴¹⁴ building on 7513 Maple Avenue, while Johnson and Pensor waited outside, but did not find the assailants. Shortly after one of the officers escorted the victims back to the police station, however, Officer McCauley observed three people who matched the description of the assailants exit the front of the apartment building. McCauley detained the three while another officer brought the victims to the scene. From the back seat of a police cruiser, Johnson and Pensor identified appellant, who was wearing a checkered jacket, and the other two individuals under detention.

The three were then arrested. Officer McCauley discovered a twenty dollar bill in the right pocket of the man in the brown jacket when he searched him following his arrest. At appellant’s trial, Charlene Hunt, the woman dressed in the long purple jacket who was arrested along with appellant, testified for the defense that, on January 24,1987, she, appellant and his brother Anthony Eades accompanied Johnson and Pensor in their vehicle to purchase marijuana. Ms. Hunt claimed that, when they arrived at their destination, Johnson gave appellant twenty dollars to purchase marijuana.

Appellant entered an apartment building and returned approximately 10 minutes later, announcing that he had been “beat out” of Johnson’s money. After this incident, Hunt related, Johnson and Pensor brought them back to Lee Avenue. Later that evening, Ms. Hunt learned that appellant had lied to Johnson and Pensor because he still possessed the twenty dollars that he had been given to purchase marijuana. On cross-examination, the State’s Attorney asked Ms. Hunt: Q. Now, Ms. Hunt, isn’t it also a fact that the first words you said to the police officers once they stopped you outside the building there at 7513, the first words you spoke to those officers once you were stopped and placed up against the building was “I knew we were going to get caught?” ⁴¹⁵ Ms. Hunt denied that she made such a statement.

The State’s Attorney called Officer McCauley as a rebuttal witness after appellant concluded the presentation of his case. Over appellant’s objection, Officer McCauley testified that Charlene Hunt exclaimed, “I knew we were going to get caught,” immediately after she was stopped. The jury commenced deliberations on Thursday, July 2, 1987. When the jurors failed to reach a verdict on their first day of deliberations, the court declared a recess for the long holiday weekend.

On Monday, July 6, 1987, the jurors resumed their deliberations and found appellant guilty of robbery and assault with intent to rob. At appellant’s request, the court polled the jury after its verdict was announced by the forelady and also asked each juror, individually and out of the presence of the other jurors, whether he or she had discussed the facts of the case or the substance of the jury deliberations with anyone over the course of the weekend. When the court addressed Juror Roseanne Skinner, the following exchange took place: MRS. SKINNER: No, I did not.

At one point I asked my husband 1 whether a statement—because you kept saying—why she could say—it was okay for her to say it, “I knew I had been caught,” and my husband said that was a spontaneous utterance. THE COURT: Okay. MS. SKINNER: —hearsay.

MR. MONOHAN (Defense Counsel): I do not know if the Court wants me to ask the juror any questions. THE COURT: No. All right. Thank you, ma’am.

Other than that one statement, nothing substantively about the facts or how the jury was standing? MS. SKINNER: No. The State did not object to appellant’s request that the court interview the jurors after their verdict had been ⁴¹⁶ announced or juror Skinner’s account of her discussion with her husband. After the court completed its interview of the jurors, the court clerk harkened them to their verdict as it had been recorded and they unanimously agreed that the verdict was correct.

Juror Misconduct Reasoning that the discussion between juror Skinner and her husband “was all but innocuous,” the trial court denied appellant’s motion for a new trial, despite the fact that the juror had violated the court’s instruction that she not discuss the case with anyone during the weekend recess. Appellant asserts that he was prejudiced by the juror’s discussion of the case with her husband because the husband’s characterization of Ms. Hunt’s statement as a “spontaneous utterance” reinforced Officer McCauley’s rebuttal testimony concerning the fact that Ms. Hunt did, indeed, exclaim, “I knew we were going to get caught,” when she was arrested. Citing only Dixon v. State, 27 Md.App. 443 , 340 A.2d 396 , cert. denied, 276 Md. 741 (1975), appellee argues that, because a juror may not impeach his or her own verdict, the court was required to disregard juror Skinner’s statements relating her discussion of the case with her husband. We will first address this contention of the appellee.

In Williams v. State, 204 Md. 55 , 102 A.2d 714 (1954), Chief Judge Sobeloff reviewed the question of whether a juror could attest to an improper influence on the jury’s deliberations—racial prejudice harbored by the individual jurors. He opined that “[t]he 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.” Id. at 67 , 102 A.2d 714 . Judge Sobeloff explained that American courts derived the rule that a juror will not be heard to impeach his verdict from Lord Mansfield’s opinion in Vaise v. Delaval, 1 Term R. 11 (K.B. 1785). 2 Public policy requires the exclusion of such evi ⁴¹⁷ dence because the alternative “would disclose the secrets of the jury room and afford an opportunity for fraud and perjury.” Id., quoting Brinsfield v. Howeth, 110 Md. 520, 530 , 73 A. 289 (1909). 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.

In an offer to prove facts nullifying the verdict on a motion for a new trial, the theory for exclusion of the jurors’ deliberations during retirement, their expressions, argumented [sic], motives, and beliefs, may, according to Prof. Wigmore, embrace both the Privileged Communications Rule and the Parol Evidence Rule. Id. at 67-68, 102 A.2d 714 . Furthermore, he contrasted Lord Mansfield’s Rule with the modification of that rule adopted by the Supreme Court in United States v. Reid, 53 U.S. (12 How.) 361 , 13 L.Ed. 1023 (1851), and Mattox v. United States, 146 U.S. 140 , 13 S.Ct. 50 , 36 L.Ed. 917 (1892).

Now known as the “Iowa Rule,” from the opinion of the Iowa Supreme Court in Wright v. Illinois and Mississippi Telegraph Co., 20 Iowa 195 (1866), the rule is followed in the federal courts. It allows certain juror testimony in situations in which an “extraneous influence” is alleged to have affected the jury. Under the rule, while a juror generally cannot testify about the mental processes by which the jurors reached their verdict, a juror may testify concerning any mental bias in matters unrelated to the specific issues that the juror was called upon to decide and whether extraneous prejudicial information was improperly brought to the juror’s attention. Rushen v. Spain, 464 U.S. 114 , 121 n. 5, 104 S.Ct. ⁴¹⁸ 453, 457 n. 5, 78 L.Ed. 267 (1983).

The distinction between “external” and “internal” influences is presently codified in Federal Rule of Evidence 606(b). 3 Tanner v. U.S., — U.S. -, -, 107 S.Ct. 2739, 2748 , 97 L.Ed.2d 90, 106 (1987). Williams v. State, supra, held that under Maryland law the affidavit of a juror is inadmissible as evidence to disclose what took place in the jury room at a hearing on a motion for a new trial. Christ v. Wempe, 219 Md. 627, 641 , 150 A.2d 918 (1959), subsequently held that such information may not be obtained through interrogation of individual jurors at a hearing on a motion for new trial. While Judge Sobeloff declined to classify the Maryland cases as following the strict Lord Mansfield’s Rule, the “Iowa Rule,” or some intermediate rule, Williams v. State, supra 204 Md. at 72 , 102 A.2d 714 , subsequent Maryland cases have not deviated from the rule precluding a juror from testifying as to any matter that may have affected the verdict.

See Wernsing v. General Motors Corp., 298 Md. 406, 411-12 , 470 A.2d 802 (1984); Oxtoby v. McGowan, 294 Md. 83, 101 , 447 A.2d 860 (1982); Braun v. Ford Motor Co., 32 Md.App. 545, 551-54 , 363 A.2d 562 , cert. denied, 278 Md. 716 (1976); Dixon v. State, supra, 27 Md.App. at 448 , 340 A.2d 396 . ⁴¹⁹ But even if we assume that Maryland adheres to the strict application of Lord Mansfield’s Rule, an exception to that rule permits the court to question individual jurors about matters which may have affected their deliberations before the jury is discharged. The reasons for [Lord Mansfield’s Rule], namely, the dangers of uncertainty and of tampering with the jurors to procure testimony, disappear in large part if such investigation as may be desired is made by the judge and takes place before the jurors’ discharge and separation. When therefore the jury brings in its verdict, the judge, in his just and usual control of the proceedings, may refuse to accept it as final and may require the jury to retire again to make the verdict more specific or more clear. This procedure is a traditional part of jury trial.

In principle it is equivalent to holding the first utterance of the foreman as tentative and informal only; and even after an initial discharge, the judge may reconvene them nunc pro tunc for making such correction. It is not that the jury adds explanations to the verdict; there is no verdict as yet. They retire to restate it and to give it a final form. 8 Wigmore, Evidence, § 2350 (McNaughton rev. 1961) (emphasis in original; footnote omitted). Accordingly, the court may examine the jury before it is discharged to ascertain the grounds on which a general verdict is founded.

Because the court in the case sub judice elicited juror Skinner’s statements during his interview of the individual jurors immediately following the return of their verdict, juror Skinner’s response to the court’s question did not run afoul of Lord Mansfield’s rule. It was therefore properly received and considered. We begin our review of appellant’s assertion with the well-settled proposition that the grant or denial of a motion for a new trial is committed to the sound discretion of the trial judge, whose ruling upon such a motion will not be disturbed on appeal except for the most extraordinary ⁴²⁰ and compelling reasons. Mack v. State, 300 Md. 583, 600 , 479 A.2d 1344 (1984); Treece v. State, 72 Md.App. 644, 654 , 532 A.2d 175 (1987), cert. granted, 311 Md. 698 , 537 A.2d 262 (1988); Ellison v. State, 56 Md.App. 567, 581 , 468 A.2d 413 (1983); Harker v. State, 55 Md.App. 460, 474 , 463 A.2d 288 (1983). “The trial judge’s discretion extends to matters concerning juror misconduct or other such irregularity in the conduct of others which may affect the jury.” Walker v. Hall, 34 Md.App. 571, 591 , 369 A.2d 105 (1977).

But in the exercise of his or her discretion, the trial judge must account for the fact that due process requires “a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen.” Smith v. Phillips, 455 U.S. 209, 217 , 102 S.Ct. 940, 946 , 71 L.Ed.2d 78 (1982). See also Irvin v. Dowd, 366 U.S. 717, 721-22 , 81 S.Ct. 1639, 1641-42 , 6 L.Ed.2d 751 (1961). The Due Process Clause of the Fourteenth Amendment guarantees accuseds in the state courts the right to be tried by an impartial jury. Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 551 , 96 S.Ct. 2791, 2799 , 49 L.Ed.2d 683 (1976); Duncan v. Louisiana, 391 U.S. 145 , 88 S.Ct. 1444 , 20 L.Ed.2d 491 (1968); Owen v. Duckworth, 727 F.2d 643, 645 (7th Cir.1984).

Therefore, a motion for a mistrial or a new trial because of alleged jury misconduct will be granted if the misconduct was such as to indicate that a fair and impartial trial could not be had under the circumstances. Cf. Morris v. Wilson, 74 Md.App. 663, 677 , 539 A.2d 1151 (1988). A private communication between a third party and a deliberating juror raises a serious concern that the juror may reach a verdict on the basis of the matters communicated, rather than the trial evidence.

United States v. Day, 830 F.2d 1099, 1103 (10th Cir.1987); Owen v. Duckworth, 727 F.2d 643, 646 (1984). Addressing this concern, the Supreme Court long ago adopted the rule that private communications between jurors and third persons are absolutely “forbidden” and require the court to order a new trial ⁴²¹ “unless their harmlessness is made to appear.” Mattox v. United States, 146 U.S. 140, 150 , 13 S.Ct. 50, 53 , 36 L.Ed. 917 (1892). In Remmer v. United States, 347 U.S. 227, 229 , 74 S.Ct. 450, 451 , 98 L.Ed. 654 (1954), the Court developed the standards for determining whether prejudice results from an improper contact with jurors. In a criminal case, any private communication, contact, or tampering directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of known rules of the court and the instructions and directions of the court made during the trial, with full knowledge of the parties.

The presumption is not