Grade v. State

BELL, C.J. The issue in this case is whether the trial court’s substitution of a juror with an alternate, without having first notified counsel of the juror communication that prompted that action and sought counsel’s response or input, violated Maryland Rule 4-326(d). Because Rule 4-326(d) vindicates the well-established right of a defendant to be present throughout the trial, including during jury deliberations, we shall hold that, under the facts of this case, it did. A. Jaron Grade, the petitioner, was charged with, and, on December 3, 2004, was convicted by a jury in the Circuit Court for Baltimore County of, two counts of first-degree murder and use of a handgun in the commission of a crime. He was sentenced to two concurrent life sentences and a consecutive twenty year term of imprisonment.

He contends that the trial court’s replacement of a juror with an alternate juror without the knowledge or acquiescence of his counsel was a violation of Rule 4-326(d) and, therefore, reversible error. On December 2, 2004, before adjourning for the day, the court inquired of the jury as to its preference with regard to when to begin deliberations, either immediately or on the ⁸⁸ following day, and whether any one of them had “any problem with being back” the next day. Having ascertained that the jury’s preference was to begin deliberations the next day and acquiescing in that preference, it being satisfied that no juror or alternate had “any problem” with coming back, the court addressed the jurors and the alternates as follows: “THE COURT: What I am going to ask you to do is this: As to the alternates, I am not going to excuse you yet, because something [could] happen with one of the regular jurors before deliberation begins tomorrow morning. I am going to ask you all please to come back tomorrow morning[.] When everybody gets here, I will excuse the alternates at that time, but please be back tomorrow....

Thank you. “Do not begin to discuss anything with anyone yet. Do not begin deliberating until you get back together and everyone is here. I will ask you to come back, if you can come back earlier than 9:30. It might be helpful because it could be sometime while you are out deliberating.

I would like to get started as early as possible, 9:15 or something like that works. “All right. Please report to the jury room [then] at 9:15 tomorrow. Thank you.” The jury and the alternates thereafter were excused. The court then addressed counsel with regard to the next day’s procedure: “THE COURT: I will, of course, do what I just said I would do tomorrow morning, make sure we have twelve jurors here and ready to deliberate before deliberations begin, and I will excuse the alternates then. “MS MEAD [Defense Counsel]: When do you want us here tomorrow, judge? “THE COURT: Good question.

I would think that you ought to be available not later than ten, I would think, because things will get started by that time. There may be questions and problems arise. ⁸⁹ “MS MEAD: I will plan on being here at ten. Your law clerk has my cell phone. I will give him my cell phone and home number.

I will probably be here earlier, but if he wants to call, if something else comes up.” When counsel arrived at court the next morning, they were informed of the court’s communication with a juror and the action the court took in response to that communication: “THE COURT: Here is the situation.... Okay. Just a matter of substituting a juror. I want to put it on the record what happened, we got a call about 20 after 9, 9:25 from Juror number 10, indicating she had an emergency of an undisclosed nature and she would at least 10:30 or later getting here, so I made a decision I would like to run by counsel.

Nobody — Garrett was available, you were not here, so we seated Alternate Number 1 in lieu of Juror 10. They began deliberations about 9:30.... I’m sorry I couldn’t bring it to your attention, I wanted to make sure I did as soon as possible.... As far, as substitution of alternates were concerned, we talked about it, I talked about it, said what the procedure would be if we turned up short, that’s what happened, so we will just continue with----” Following that statement, the petitioner’s counsel objected “for the record.” In response, the court accurately observed: “Well, you are certainly free to do that.

You have a right to, I can’t do anything about it now. What’s done is done.” The petitioner posits that Rule 4 — 326(d) recognizes a defendant’s right to be present at the various stages of the trial, a right reflected in our case law, see, e.g., Midgett v. State, 216 Md. 26, 36 , 139 A.2d 209, 214 (1958), Brown v. State, 272 Md. 450, 457 , 325 A.2d 557, 560 (1974), and in our rules, see Md. Rule 4-321, 1 as well as his right to counsel. Because the issue ⁹⁰ in this case involves the replacement of a juror who could have served, but not in the time frame that the court desired, he submits that it was one requiring counsel’s presence and his input. Nevertheless, he complains, neither the petitioner nor his defense counsel was made aware promptly of either the juror communication or the court’s decision, based on the juror communication and in the absence of counsel, to substitute an alternate for that person.

The petitioner argues that his counsel was available, although not physically present, when the juror communication occurred and, therefore, that the court, at the least, should have waited until he was physically present and could provide input before replacing the juror with an alternate. In the alternative, the petitioner emphasizes that the juror should not have been replaced. The juror, he points out, indicated simply that she would be tardy, not that she would be unable to come to court or otherwise was unable, or unwilling, to perform her duties as a juror. Therefore, the petitioner asserts, the court could, and should, have waited for the juror’s arrival.

Additionally, the petitioner denies that he acquiesced in the court’s actions. Noting that his counsel received notification of the juror substitution only after it had been made and the jury had begun deliberating, and promptly objected to the trial judge’s actions, he asserts that the December 2, 2004 colloquy with the trial court was limited to whether, and when, the alternate jurors would be dismissed. It did not address whether, or under what circumstance, they would be used to replace the jurors, who also were instructed to appear so that deliberations could begin. The petitioner asserts that his counsel provided contact information in anticipation of a situation, such as occurred in this case, in which input from counsel would be required to be given.

Failure to notify him in ⁹¹ advance of substituting the alternate, the petitioner argues, violated Rule 4-326(d), requiring a reversal of his conviction. The State’s argument is threefold. First, it argues that the petitioner’s counsel acquiesced in the trial court’s “abundantly clear” plan of action for the alternate jurors, which was for them to return to the court the following morning before deliberation was to begin, in case one, or more, of the jurors was not available. Thus, the State argues, juror replacement was contemplated, and, therefore, prior consultation with counsel was not necessary.

For that reason, the State further posits that the petitioner’s objection was untimely; the petitioner objected the day the jury began deliberations, instead of the day before, when the critical colloquy with counsel, advising of his “abundantly clear” plan of action, occurred. Acknowledging that the petitioner has a right to be present at all stages of trial, including all communications between the judge and the jury, the State secondly submits that Rule 4-326(d) is not applicable to the juror communication at bar. This is so, it asserts, because the communication does not “pertain to the action” or, in this ease, the trial proceedings. The state further posits that even if Rule 4-326(d) contemplated the juror communication sub judice, the manner in which the court responded to the communication did not prejudice, or have a tendency to influence, the verdict.

Third, the State argues, alternatively, that reversal of the petitioner’s conviction is “unwarranted” because the petitioner suffered no prejudice. The State submits that a trial judge has the discretion to replace the juror with an alternate to avoid delay, and abuses his or her discretion only when the judge acts “arbitrarily] and capricious[ly] or acts beyond the letter or reason of the law.” Although it maintains that no abuse of discretion occurred in this case, the State argues that, even had there been, there was no prejudice to the petitioner and, thus, no basis for reversal. For this argument, the State relies on, inter alia, State v. Cook, 338 Md. 598 , 659 A.2d 1313 (1995). There, the trial court dismissed a juror whom it “decided was unable to follow the court’s instruc ⁹² tions.” Id., 338 Md. at 617 , 659 A.2d at 1323 .

Rejecting the petitioner’s argument that, in so doing, the trial court committed reversible error, the Court explained: “[Wjhere, as here, a judge excludes a juror on grounds which are particular to the juror, rather than on characteristics which the juror may hold in common with a particular class of persons, we will give deference to the trial judge’s determination and will not substitute our judgment for that of the trial judge unless the decision is arbitrary and abusive or results in prejudice to the defendant. The reason for such deference is based not only on the fact that the “remedy” for the exclusion of such a juror results in a jury no fairer than that which originally decided the case, but is also based on the fact that in evaluating the excluded juror, the trial judge has the opportunity to question the juror and observe his or her demeanor.” Id., 338 Md. at 615 , 659 A.2d at 1322 . In addition to several other cases from various federal circuits, 2 the State finds United States v. Evans, 352 F.3d 65 (2d Cir.2003), to be illustrative of the juror substitution cases and instructive. In Evans , a juror had a severe asthma attack, causing the judge to replace that juror with an alternate, without consulting counsel. 3 Id. at 68 .

The appellate court found the error to be harmless because “situations may arise when a respect for the rights of jurors will require the judge to take immediate action ⁹³ without consulting counsel — e.g., if a juror is taken so ill that he cannot come to court or has a family emergency requiring him to leave during the night or over a weekend.” Id. at 69 (quoting United States v. Houlihan, 332 F.2d 8, 13 (2d Cir. 1964)). Thus, the State asks this court to uphold the petitioner’s conviction by affirming the judgment of the Court of Special Appeals. In an unreported opinion, the Court of Special Appeals affirmed the trial court’s ruling that there was no reversible error. Holding that the replacement of a juror with an alternate was neither an abuse of discretion nor prejudicial to the defendant, it concluded that the ruling did not affect the verdict.

Although acknowledging that the Rule alleged to have been violated was Rule 4-326(d), the intermediate appellate court primarily focused on Rule 4-312(b)(3), 4 pursuant to which, as interpreted by Diaz v. State, 129 Md.App. 51, 59 , 740 A.2d 81, 85 (1999), trial judges have the discretion to replace an unfit juror with an alternate juror. The Rule provides for the replacement before deliberation of a juror who “becomes or is found to be unable ... to perform a juror’s duty” with an alternate juror. See id. In Diaz , the trial court replaced a juror after a delay of only seven and a half minutes, and without inquiring into the reasons for the juror’s absence.

Id., 129 Md.App. at 59 , 740 A.2d at 85 . Rejecting the argument that the substitution of the alternate prejudiced the defendant, the Court of Special Appeals stressed that the Maryland Rules are interpreted to “secure simplicity in procedure, fairness in administration, and elimination of unjustifiable expense and delay,” Md. Rule 1-201(a), and held that while the trial judge’s decision was not ideal, “even a premature dismissal of a juror would not be ⁹⁴ cause for reversal.” Diaz, 129 Md.App. at 61-62 , 740 A.2d at 87 . Again, its focus was Rule 4-312(b)(3) and whether an abuse of the discretion authorized by that rule had occurred. As to whether the petitioner had been prejudiced by the substitution, the intermediate appellate court concluded that he had not.

In the case sub judiee, the replaced juror informed the trial court that she would be “arriving within the hour.” Rejecting the petitioner’s assertion that there was no harm in waiting for the juror to arrive, the Court of Special Appeals, characterizing “the issue [as] not so much one of fairness but of efficiency,” (quoting Tisdale v. State, 41 Md.App. 149, 156 , 396 A.2d 289, 293 (1979)), and emphasizing the trial judge’s opposition to a delay of that length, determined that the trial judge did not abuse his discretion when he replaced the juror with the alternate, nor was the petitioner prejudiced, the intermediate appellate court concluded. The intermediate appellate court thus held that the petitioner’s claim that the removal of a “very responsive and very attentive and very interested” juror affected the verdict, being pure speculation, did not “show how prejudice did or might have occurred.” (Quoting Diaz, 129 Md.App. at 63 , 740 A.2d at 87 ). We granted the petitioners’ petition to this Court for a writ of certiorari 5 and the State’s cross-petition. 6 Grade v. State, 399 Md. 32 , 922 A.2d 573 (2007). ⁹⁵ B. In a criminal case, the defendant and the State have a right to be present at all stages of the trial. Md. Const.

Declaration of Rights, art. V; Denicolis v. State, 378 Md. 646, 656 , 837 A.2d 944, 950 (2003); Taylor v. State, 352 Md. 338, 345 , 722 A.2d 65, 68 (1998); Stewart v. State, 334 Md. 213, 224 , 638 A.2d 754, 759 (1994); Bunch v. State, 281 Md. 680, 683-84 , 381 A.2d 1142, 1143 (1978); Midgett v. State, 216 Md. 26, 36 , 139 A.2d 209, 214 (1958). This right extends to any communication between the trial judge and the jury. State v. Harris, 428 Md. 700, 713 , 53 A.3d 1171, 1178-79 (2012); Midgett, 216 Md. at 36-37 , 139 A.2d at 214 ; see also Maryland Rule 4-231.

We recently expanded on this point: “This Court consistently has recognized that ‘an accused in a criminal prosecution for a felony has the absolute right to be present at every stage of his trial from the time the jury is impaneled until it reaches a verdict or is discharged, and there can be no valid trial or judgment unless he has been afforded that right.’ Midgett v. State, 216 Md. 26, 36 , 139 A.2d 209, 214 (1958). This well settled constitutional and common law right, as we have often recognized, is guaranteed by Article 5 of the Maryland Declaration of Rights, see Bunch v. State, 281 Md. 680, 683-4 , 381 A.2d 1142, 1143 (1978); Brown v. State, 272 Md. 450, 457 , 325 A.2d 557, 560 (1974), and, in some measure, by the Fourteenth Amendment to the United States Constitution. It is also preserved by Maryland Rule 4-231. It is, moreover, well settled that any communications between a judge and the jury which pertain to the action constitute just such stages of trial at which the defendant is entitled to be present.

See Taylor v. State, 352 Md. 338, 345 , 722 A.2d 65, 68 (1998); Stewart v. State, 334 Md. 213, 224-25 , 638 A.2d 754, 759 (1994); Bunch, 281 Md. at 685 , 381 A.2d at 1144 . Indeed, the Supreme Court of the United States, too, has recognized that it is important, ‘especially in a criminal case,’ for the defendant ‘to be present from the time the jury is impaneled until its discharge after rendering the verdict.’ Shields v. United States, 273 U.S. 583, 589 , 47 S.Ct. 478, 479 , 71 L.Ed. ⁹⁶ 787, 790 (1927). Therefore, and in that regard, the Supreme Court has cautioned against a court receiving ‘a communication from the jury and answer[ing] it, without giving the defendant and his counsel an opportunity to be present in court to take such action as they might be advised.... ’ Id., 273 U.S. at 587 , 47 S.Ct. at 479 , 71 L.Ed. at 789 .” Harris, 428 Md. at 712-14 , 53 A.3d at 1178-79 . In that context, we also addressed the office of Rule 4-326(d): “Rule 4-326(d) codifies these principles by providing that a court is ‘obliged to notify the defendant and the State’s Attorney of the receipt of [any juror or jury] communication before responding’ to it.

Stewart, 334 Md. at 222 , 638 A.2d at 758 . ‘These prescriptions are mandatory, not directory. ...’ Id. We interpreted the Rule more recently in Winder v. State, 362 Md. 275, 322 , 765 A.2d 97, 122-23 (2001), summarizing its mandate as follows: ‘The rules governing communications between the judge and the jury are basic and relatively simple to adhere to in practice. If a judge receives a communication from the jury or wishes to communicate with the jury, he or she is required to notify the parties. The communication with the jury shall be made in open court on the record or shall be made in writing and the writing shall become part of the record.... [A] defendant has a recognized right to be present during communications between the judge and the jury during ... trial.

These rules are not abstract guides. They are mandatory and must be strictly followed.’ ” Id., 428 Md. at 714 , 53 A.3d at 1179 . See Stewart, 334 Md. at 222-23 , 638 A.2d at 758 ; Winder v. State, 362 Md. 275, 322 , 765 A.2d 97, 122-23 (2001); Taylor, 352 Md. at 345-46 , 722 A.2d at 68 ; Fields v. State, 172 Md.App. 496, 513-14 , 916 A.2d 357, 367 (2007). Md. Rule 4-326(d) calls for open communication of all relevant information to the individuals whom the trial most affects.

Graham v. State, 325 Md. 398, 414-15 , 601 A.2d 131, 139 (1992); Wagner v. State, 160 Md.App. 531, 558 , 864 A.2d ⁹⁷ 1037, 1053 (2005). The Rule calls for timely notification of jury communication so that counsel can have the opportunity to offer input. Stewart, 334 Md. at 223 , 638 A.2d at 758 ; Allen v. State, 77 Md.App. 537, 545 , 551 A.2d 156, 159-160 (1989). If the communication is not disclosed in a timely fashion or there has been no chance for input, then there has not been a “valid trial or judgment.” Midgett, 216 Md. at 36 , 139 A.2d at 214 .

Violation of this rule undercuts the defense’s right to be present at all stages of trial. The State contends that the record indicates that the court’s previously announced decision, to retain the alternates to guard against problems that might occur with regard to regular jurors, put defense counsel on notice of its intention to use the alternates to address any such problems, and that counsel acquiesced in that decision. 7 Not surprisingly, the petitioner does not agree; he argues that, at no point did they agree that the judge could act to replace a juror selected by the parties, without notice being given and an opportunity to be heard being afforded him. The State’s position is that the trial judge informed the parties prior to the release of the jury and the alternates of how he would proceed and that, by not raising an issue with regard to the stated procedure, the parties acquiesced in, accepted, it. It relies on the colloquy the court engaged in with the jury and the alternates: “As to the alternates, I am not going to excuse you yet, because something could happen with one of the regular jurors before deliberation beings tomorrow morning.

I am going to ask you all please to come back tomorrow morning, and if the twelve original jurors are all here, when everybody gets here, I will excuse the alternates at that time[,]” and his follow-up comments to counsel after the jury and alternates had been dismissed: ⁹⁸ “THE COURT: I will, of course, do what I just said I would do tomorrow morning, make sure we have twelve jurors here and ready to deliberate before deliberations begin, and I will excuse the alternates then.” We do not believe the petitioner’s counsel acquiesced in the judge’s replacement of any member of the jury with an alternate. The focus of the discussion on which the State relies was on the dismissal of all of the alternates, not on their replacement of regular jurors. Instead, therefore, the petitioner acquiesced only in the dismissal of the alternates, if all twelve of the original jurors were present. To be sure, what is clear from the colloquy with the jury and the alternates and the follow-up with counsel is that the court was concerned about having sufficient jurors to proceed and, so, was focusing on when it would be wise and appropriate to dismiss them.

It said as much when it informed the alternates that they were not going to be dismissed immediately “because something could happen with one of the regular jurors before deliberations begin.” And the court confirmed that focus when it informed the alternates that “if the twelve original jurors are all here, when everybody gets here, I will excuse the alternates at that time,” and told counsel that it would “do what [it] said [it] would,” i.e., “make sure we have twelve jurors here and ready to deliberate before deliberations begin, and I will excuse the alternates then.” Of course, one may infer from the colloquy that the court intended both to take action to remedy the situation should something happen to a regular juror before deliberations began and the