Gupta v. State

⁷²⁴ NAZARIAN, J. Rahul Gupta was charged with the first-degree murder of his friend, Mark Waugh, who died from multiple stab wounds on the floor of an apartment that Mr. Gupta shared with his girlfriend, Taylor Gould. No physical evidence definitively identified Mr. Gupta as the assailant, and Ms. Gould claimed not to remember anything from that night (all three had been out drinking with friends). But something had obviously gone wrong among the three, and as the police investigated, Mr. Gupta told an officer, among other things, that “[his] buddy and [his] girl were cheating” and that he had “killed [his] buddy.” At trial in the Circuit Court for Montgomery County, Mr. Gupta contended instead that Ms. Gould had stabbed Mr. Waugh. The jury found Mr. Gupta guilty of first-degree murder, and he contends on appeal that the circuit court erred in refusing to give the jury a “missing evidence” instruction, mishandled a communication from a juror, unfairly restricted his counsel’s cross-examination of Ms. Gould, and wrongfully denied his motion to suppress statements he made during interrogation.

We find no reversible errors and affirm. I. BACKGROUND Mr. Gupta and Ms. Gould met while studying biomedical engineering as undergraduates at George Washington University. They began dating their senior year, graduated in May 2012, and in February 2013, Mr. Gupta moved into Ms. Gould’s Silver Spring apartment. On the night of October 12, 2013, the two went for a night out in Washington D.C.’s Dupont Circle neighborhood to celebrate Mr. Gupta’s birthday.

After a steak dinner, they moved to a neighboring bar where they met Mr. Waugh, a friend of Mr. Gupta’s from high school, and Josh White, a friend from college. An hour and several drinks later, the group relocated to another bar, where all four consumed more alcohol and split into pairs: Mr. Gupta and Mr. White went outside to smoke marijuana while Ms. Gould talked with Mr. Waugh inside. Mr. Gupta testified that during this time, Mr. ⁷²⁵ White told him that Ms. Gould had been flirting with him. Ms. Gould, on the other hand, testified that she confided in Mr. Waugh that she felt uncomfortable because she thought Mr. White was flirting with her.

The conflict came to a head some time later (at yet another bar) when Mr. Waugh confronted Mr. Gupta and told him, “Your friend, [Mr. White], is trying to make a move on your girlfriend.” Mr. White denied the accusation, but it was enough to break up the party — Mr. White returned to his apartment in Woodley Park, while Mr. Gupta and Ms. Gould returned to the Silver Spring apartment with Mr. Waugh. Ms. Gould testified that she wanted Mr. Waugh to return to the apartment with them to “be a witness to what had happened [between her and Mr. White] at the bar, and to help [her] tell [Mr. Gupta] what had happened.” Mr. Gupta testified that he did not recall such a conversation, and that Mr. Waugh had merely accepted his invitation to return to Silver Spring with them. The parties returned to the apartment without incident; they took shots of vodka and Mr. Gupta smoked more marijuana. Mr. Gupta testified that there was another discussion about who had been flirting with whom at the bar.

Neither Mr. Gupta nor Ms. Gould could clearly recount the events occurring next, but there is no dispute that at 3:25 AM on October 13, 2013, Ms. Gould placed a call to 911 and told the operator that “my friend is ... here and I need emergency right now,” that “[h]e’s not breathing,” that “[tjhere’s blood everywhere,” and that “I don’t know what happened.” Police officers arrived on the scene quickly and encountered a “very intoxicated” Ms. Gould at the entrance to the apartment. She told the officers she wasn’t sure what happened, and officers placed her in handcuffs and detained her outside the apartment, while others continued inside. The officers who went inside found Mr. Gupta lying on the floor, groaning and “[cjovered in blood,” just to the left of Mr. Waugh’s body. He too was intoxicated, and when officers asked him what happened, he said, “They were cheating.

My ⁷²⁶ girlfriend was cheating on me. My buddy and my girlfriend were cheating. I walked in on my buddy and my girlfriend cheating. I killed my buddy.” Medical technicians on the scene confirmed that Mr. Waugh was dead.

The medical examiner later testified that he suffered six stab wounds as well as five “cutting injuries.” One stab wound punctured a lung, another severed his jugular vein, killing him in a matter of minutes. The murder weapon, a kitchen knife, was recovered under Mr. Waugh’s leg. Officers transported Mr. Gupta and Ms. Gould to police headquarters, where they were questioned separately. While placed in a holding cell to await interrogation, Mr. Gupta blurted out to the police officer assigned to guard him, unsolicited: “[P]lease, sir, look, I fucked up.

He tried to stab me, though” as well as, “[G]uy’s a real dick. He tried to kill me and my family.” He also screamed, two or three times, “I want a lawyer.” Later, two detectives moved Mr. Gupta to an interrogation room. Before asking Mr. Gupta any questions, an officer read him his Miranda rights and asked whether he understood. He responded, “Yes.

When do I get to — ” just as the detective interrupted him to start the interrogation. Mr. Gupta did not request counsel during the rest of the interrogation, but cooperated with the detectives and answered their questions. At trial, Ms. Gould testified that she did not remember much of the night because she was intoxicated and “blacking out.” She had no memory of attacking Mr. Waugh and claimed that she could not have been involved because she is “not capable of doing that.” Mr. Gupta’s theory of the case was that Ms. Gould was the assailant, and that she was angry and upset about what had happened at the bar. He testified that Ms. Gould became even angrier when, after returning to the Silver Spring apartment, Mr. Waugh suggested that he and Mr. Gupta leave for the evening in order to give everyone time to cool off.

While looking for his shoes, Mr. Gupta said, he fell and hit his head; when he got up, he saw that Mr. Waugh had been attacked. He explained that he yelled for Ms. Gould to call 911, tried to slow Mr. Waugh’s bleeding, and ⁷²⁷ administered CPR before emergency personnel arrived. In support of his theory, Mr. Gupta produced evidence that Ms. Gould’s hairs were on the murder weapon, in blood spatter on the wall near the victim, and found in one of the victim’s hands. He also tried to introduce evidence that Ms. Gould carried a knife for protection, but the State objected and the court sustained the objection.

In addition, Mr. Gupta testified that he told police falsely that he had killed Mr. Waugh to keep Ms. Gould out of trouble. The jury convicted Mr. Gupta of first-degree murder, and the court sentenced him to life imprisonment. Mr. Gupta’s timely appeal followed. We will discuss additional facts below, particularly details relating to the conduct of the trial.

II

DISCUSSION Although there was copious physical evidence and forensic professionals featured prominently among the witnesses, the CSI testimony did not definitively plug the gaps between the participants’ stories. Instead, this case turned largely on credibility, particularly the relative credibility of Mr. Gupta and Ms. Gould. Mr. Gupta raises four issues on appeal 1 that we address in a slightly different order: we analyze first whether the circuit court violated Maryland Rule 4-326 when it responded to a communication from a juror before informing the parties of the communication; second, whether the court erred by refusing to give a missing evidence instruction; ⁷²⁸ third, whether the court improperly limited the scope of Ms. Gould’s cross-examination, and fourth, whether Mr. Gupta’s statements during custodial interrogation should have been suppressed. And we find no error except as to the juror communication, an error that, we hold (for the first time in a reported decision), was harmless.

A. The Only Challenged Ex Parte Communication Between The Court And Juror 18A Was Harmless. Although it’s his second argument, we look first at what we find to be the strongest of Mr. Gupta’s four contentions: that the circuit court violated Rule 4-326(d)(2)(C) when it communicated with an eventually-excused juror without first permitting the parties (and particularly him) the opportunity for input. Mr. Gupta is right that the court does appear, one time among the many communications from this jury, to have responded to a juror’s scheduling query without first convening the parties and discussing its proposed response on the record. He is right as well that no reported Maryland appellate case has held that the State met its burden of proving that a trial court’s ex parte communication with a juror was harmless.

Until now. Jury selection in this case began on Monday, March 2, 2015, and jurors were advised that the trial would take eight days. During voir dire, Juror 18A raised her hand in response to a number of questions. She advised the court and the parties that she was social friends with defense counsel’s partner and that she donated to Mothers Against Drunk Driving and certain anti-gun causes, but denied that either of these associations would impair her ability to be fair and impartial.

Then, in response to the question about whether jury service would cause substantial personal or financial hardship, Juror 18A revealed work and child care constraints: THE COURT: You also said that there would be a substantial personal or financial hardship if you were to serve in this case? ⁷²⁹ PROSPECTIVE JUROR NO. 18A: Yeah, I’m sure everybody has their issues. I work for a very small non-profit, so my absence for an extended period of time will be difficult. I also have two children at home and no child care, so if, you know, my son for instance does not have school next Tuesday and Wednesday so I’ll be in a position to try to find someone to look after him if I’m here. THE COURT: Okay.

Thanks very much. After Juror 18A stepped down from the bench, the court suggested that she be excused, but the defense objected: THE COURT: I’m a little concerned about her child care, combined with knowing [defense counsel’s partner]. Would anybody object if the court strikes her? [THE STATE]: No. [DEFENSE COUNSEL]: No, she’s a good juror. I object.

At the close of voir dire, neither side struck Juror 18A, so she was seated and the trial got under way. And from the very beginning, the transcript reveals that this was a fully engaged jury. Right after opening statements, for example, a juror realized that he might know Mr. White, one of Mr. Gupta’s witnesses, and advised the judge’s law clerk. The law clerk told the juror to put the concern in writing, which he did, and when everyone came back from a break, the court consulted with counsel, brought the juror out, and clarified through questioning that his acquaintance was a different Josh White.

The next day, some jurors told the law clerk at a break that they had heard a lot of talking in the courtroom during bench conferences, but the court determined that the jurors hadn’t heard anything relating to the trial: THE COURT: During the last break, some jurors or a juror — One juror told my law clerk that during the time that we’re up here with the husher on, that there’s a lot of talking in the courtroom, so much so that she wishes there would be a husher for the gallery. So I did ask my law clerk to go into the — tell me if you did it any differently — to go into the jury room just now and just say there’s a question from the judge, all we want is a yes or no — did ⁷³⁰ anyone hear anything from the gallery that in any way is related to the trial, yes or no. And his report is that there was no affirmative responses. I can ask them that on the record if you want me to do that. [THE STATE]: I don’t think it’s necessary.

We’ll waive any further inquiry in that regard, but maybe an admonition to the audience. [DEFENSE COUNSEL]: Maybe a caution to the gallery. THE COURT: Oh yes. Of course. As the proceedings broke for lunch that same day a juror tried to ask a question about the testimony that had just finished, to which the court responded in open court (only to say that jurors can’t ask questions).

Then on Friday morning, two jurors sent a note advising the court that another juror had smelled strongly of alcohol each day. In each instance— we haven’t tried to catalogue all of them — the parties and the court worked well and worked together to keep the trial on track and proceeding properly. The broader point, though, is that the parties were well aware that the judge’s law clerk served as the jury’s initial point of contact and that the court would determine whether any communications related to the case. And, importantly, nobody objected or raised any concern about proceeding in that fashion. 2 As complicated trials often do, the testimony proceeded more slowly than all had hoped, plus snow closed the court on Thursday, March 5.

So by the conclusion of proceedings on ⁷³¹ Friday, March 6, the court informed the jurors that they should plan for the trial to continue another full week, and perhaps into the week after that. At some point after this warning, and the record doesn’t reflect exactly when, Juror 18A told the law clerk that she had to attend an out-of-state conference that would prevent her from deliberating if the trial stretched into a third week. The judge advised the parties after a break on Monday afternoon, March 9, that Juror 18A had informed the law clerk that she needed to leave town the upcoming Saturday for the conference. The judge told the parties that he had directed his law clerk to tell Juror 18A that they would assess the situation as it got closer and that she would not miss her conference, then walked through different scenarios with the parties: THE COURT: [Juror 18A] mentioned to us, I think during voir dire that she had a conflict with next Saturday. [THE STATE]: Oh she started to raise her hand at the tail end of the testimony yesterday.

THE COURT: Yes, so she had mentioned to my law clerk, you know how do things look? Or she was concerned because she’s a keynote speaker at a conference in Las Vegas and she’s leaving on Saturday. So she’s brought up about 3 or 4 times so I just had my law clerk — did you tell her what I told you? I just said tell her that we’ll deal with it on Friday.

That we’re not going to stand in the way of her going to her conference. My intention is that maybe we’ll be done, maybe not. If we’re not we’ll just see how we look on Friday and we have everybody, all 14 still going, my thought would be we can talk about this more later if you want to talk about it. My thought would be to tell her to go to Las Vegas, do your thing.

Come Monday morning, excuse her once we know that we’ve got at least 12 or 13 people left— [THE STATE]: Do we know how long she’s going to be there? THE COURT: —and if we find out Monday morning that we’re in trouble without her, we may end up having to skip ⁷³² a few days. She’s coming back on Wednesday. So the worst case scenario, rather than a mistrial we’ll just skip a couple of days. [THE STATE]: Have them continue deliberation assuming they started something on a Wednesday instead of on a Monday?

THE COURT: Yes, well I don’t know that we need to keep her on if we’re going into deliberations. I’m just saying that if we’re still in trial— [THE STATE]: If we’re still presenting evidence? THE COURT: I’m really giving you a heads-up mainly to tell you about the communication that my clerk told her you know, this won’t keep you from going to Las Vegas for your conference, okay. [DEFENSE COUNSEL]: Thank you. [DEFENSE CO-COUNSEL]: Thank you. (Emphasis added).

Again, nobody objected. But it’s true that in this instance, the judge did not notify the parties about Juror 18A’s communication with the law clerk until sometime after the law clerk had responded, albeit generally, at the court’s direction. The testimony continued, and at 3:00 PM on Thursday, March 12, Juror 18A sent a note to the judge reiterating her concern that she would not be able to attend trial on Monday, Tuesday, or Wednesday of the following week. The court notified the parties about the note on Friday, March 13, and after hearing argument (and over defense counsel’s objection), decided to replace Juror 18A with an alternate at the beginning of deliberations.

See Md. Rule 4-312 (permitting trial judges to replace with an alternate a jury member who is unable to perform his or her service). Juror 18A remained as part of the jury through closing arguments that afternoon, but was cleared to leave for her conference that weekend, and was formally dismissed immediately before deliberations began on Monday, March 16. ⁷³³ Mr. Gupta does not challenge the court’s decision to dismiss Juror 18A itself, nor does he raise any concerns about the juror’s communications with the court on Thursday, March 12 or his opportunity on Friday, March 13 for input into the court’s response. Instead, he argues that the court committed reversible error a week earlier when, in response to Juror 18A’s question about “how do things look,” the judge directed his law clerk to respond that the court would deal with the issue later and that the trial would not stand in the way of her conference. We look first to Maryland Rule 4-326(d), which requires the court to discern whether a communication from a juror pertains to the action.

If it doesn’t, the judge may respond to the juror as he or she deems appropriate. But if the communication does pertain to the action, the judge must notify the parties promptly, and before responding to the communication, so that they can be heard before the judge responds: (A) A court official or employee who receives any written or oral communication from the jury or a juror shall immediately notify the presiding judge of the communication. (B) The judge shall determine whether the communication pertains to the action. If the judge determines that the communication does not pertain to the action, the judge may respond as he or she deems appropriate.

(C) If the judge determines that the communication pertains to the action, the judge shall promptly, and before responding to the communication, direct that the parties be notified of the communication and invite and consider, on the record, the parties’ position on any response. The judge may respond to the communication in writing, or orally in open court on the record. Md. Rule 4-326(d)(2). We agree with Mr. Gupta that Juror 18A’s query about the progress of the trial “pertain[ed] to th[is] action.” A communication “pertains to the action” for the purposes of Md. Rule 4-326(d) when it “implicate[s] the effectiveness of the juror’s continued service” or concerns the juror’s ability to perform ⁷³⁴ his duty.

State v. Harris, 428 Md. 700, 718 , 53 A.3d 1171 (2012). In Hams, for example, the Court of Appeals held that a communication by the court prior to the start of deliberations informing a juror of his grandmother’s death, and asking whether he was “alright to continue,” pertained to the action because it implicated the juror’s ability to continue. Id. at 706, 715 , 53 A.3d 1171 ; see also Stewart v. State, 334 Md. 213, 217 , 638 A.2d 754 (1994) (a juror’s communication to a judge during the course of deliberations that she was “nervous and upset” pertained to the action because “a juror’s reluctance to continue deliberating ... cannot be divorced from the action”). More recently, in Grade v. State, 431 Md. 85 , 64 A.3d 197 (2013), the Court of Appeals held that a communication from a juror to the court concerning her ability to arrive on time for deliberations fell “squarely within the ambit of Rule 4-326(d)” because it concerned “a subject, the effect of which, if acted on, could, or would, affect the make-up of the fact-finding panel as determined by the parties.” 431 Md. at 100-01 , 64 A.3d 197 .

Juror 18A’s communication about her impending scheduling conflict bore on her ability to continue as a juror and, eventually, to deliberate. And as such, the letter of Rule 4-326(d) was violated when, through the law clerk, the court replied to Juror 18A without informing the parties of the communication or providing a chance for input. Mr. Gupta contends, then, that this violation entitles him to a new trial. The Rule is grounded in a defendant’s constitutional right to be present at every stage of his trial, Md. Const.

Declaration of Rights, Art. V; Midgett v. State, 216 Md. 26, 36 , 139 A.2d 209 (1958), and any jury communications pertaining to the action “constitute just such stages of trial at which the defendant is entitled to be present.” Grade, 431 Md. at 95 , 64 A.3d 197 . As such, “it is error for the trial court to engage in [such] a communication with the jury, or jurors, off the record, and without notification to counsel, and that error is presumably prejudicial unless the State can affirmatively prove otherwise.” Id. at 105-06 , 64 A.3d 197 (quoting Harris, 428 Md. at 720-21 , 53 A.3d 1171 ). But if the State can prove affirmatively that the communication “had no ⁷³⁵ tendency to influence the verdict of the jury,” the court may find that the error was harmless. Ogundipe v. State, 424 Md. 58, 74 , 33 A.3d 984 (2011) (quoting Denicolis v. State, 378 Md. 646, 656 , 837 A.2d 944 (2003)).

No reported opinion has actually found harmless error, but there are important and dispositive differences between those cases and this one. Denicolis involved an altogether different kind of communication, one that related to the elements of the crime the jury was considering. The defendant was charged with solicitation to commit murder, and after the jury retired to deliberate, it sent a note to the court asking for a definition of solicitation. 378 Md. at 651-53 , 837 A.2d 944 . The note was not time-stamped, and the record was silent as to whether the court responded.

Id. There was no doubt, though, that the court had not informed the parties of the communication— the defense discovered the note in the record after the jury’s verdict had been taken and sentence had been imposed — and there was no way to tell whether the judge responded, and if so, what the response might have been. Id. The Court of Appeals explained that the definition of solicitation went to the heart of the case, and made clear that “a silent record will not support a harmless error argument.” Id. at 659 , 837 A.2d 944 .

Where, unlike here, the jury’s query related directly to the elements of the offense the jury was considering, it is difficult to imagine how the State, or this Court, could rule out the possibility that a communication, even an uncertain one, influenced the verdict. But communications about jurors are different, and in the two cases involving communications about jurors’ ability to serve — Harris and Grade — the court not only received an ex parte communication, but acted on it. Harris involved a juror whose grandmother passed away just before deliberations were scheduled to begin. 428 Md. at 705-06 , 53 A.3d 1171 . Without notifying counsel that the juror’s father had called with this news, and outside the presence of the parties, the court informed the juror of his grandmother’s death and inquired whether he was “alright to continue.” Id. at 706 , 53 A.3d 1171 .

The juror indicated that he could, and the court ⁷³⁶ allowed deliberations to begin and excused the alternates. 3 Id. The Court of Appeals found that the circuit court’s actions deprived counsel of the opportunity to evaluate the emotional state of the juror and his ability to continue deliberating, and to provide input on how to proceed. Id. at 722 , 53 A.3d 1171 . Letting the juror deliberate “created a significant risk that [he], in an effort to be able to attend the funeral, which he expressed a strong desire to do, would rush to a decision.” Id.

Had the communication been properly disclosed, alternate jurors would have been available. Id. Grade is another step worse. At the conclusion of a jury trial, but before adjourning for the day, the court inquired whether the jury would prefer to begin deliberating immediately or wait until the following day. 431 Md. at 88-89 , 64 A.3d 197 .

After determining that the jury preferred to return the next day, the court instructed both jurors and alternates to return the next morning “because something [could] happen with one of the regular jurors before deliberation begins.” Id. at 89 , 64 A.3d 197 . Deliberations were scheduled to begin around 9:15 AM, and the court instructed counsel to return at 10:00 AM in case “questions and problems ar[o]se.” Id. at 88 , 64 A.3d 197 . And a problem did arise: at 9:20 AM the next morning, a juror called to tell the court that an emergency would prevent her from arriving for deliberations on time. Id.

Without consulting either party, the court actually substituted an alternate for the absent juror, and deliberations began as scheduled. Id. The Court held that the court’s failure to inform the parties before replacing the juror with an alternate was prejudicial because it “necessarily deprivefd] the defense of the opportunity to provide the input on how to proceed. ...” Id. at 106 , 64 A.3d 197 In this case, the court didn’t respond substantively to the juror’s request. The juror communicated a scheduling concern through the channel the jury had used throughout the case, with the parties’ knowledge and blessing, to communi ⁷³⁷ cate with the court about the mechanics of the trial.

The court’s response to the juror merely acknowledged the potential for a problem and promised to resolve it later. The response embodied no decisions, and the court took no action in connection with the response. Instead, the court brought the problem to the parties’ attention in open court the next day, four days before the problem actually ripened. Only after the trial stretched to the end of the week, and only then after hearing from both sides, did the court consider replacing Juror 18A with an alternate, and Mr. Gupta does not challenge the ultimate decision to replace her on its merits.

Communications between juries or jurors and the court implicate defendants’ fundamental rights, and a court that communicates with jurors without first bringing the parties together in open court and obtaining their input skates on ice that can be dangerously thin. But we also cannot forget that trials happen in real life, and that trial judges must make complex, on-the-fly decisions that strike a delicate balance among the competing rights and needs and logistics of everyone involved. We are satisfied that the circuit court’s non-substantive ex parte response to the juror’s scheduling question, attenuated as it was from any decisions about her participation in the case, could not possibly have affected the jury’s deliberations or its