Gupta v. State

Getty, J. In this case we are asked to determine whether a trial judge’s ex parte communication with a juror violated Maryland Rule 4-326(d)(2) and, if so, whether such violation was harmless. In addition, we must determine whether a suspect can invoke his right to counsel under Miranda 1 by demanding to see a lawyer while in a holding cell before interrogation begins. For the reasons that follow, we conclude that although the trial judge did violate Rule 4-326(d)(2), that error was harmless beyond a reasonable doubt. In addition, we hold that the Petitioner did not invoke his Miranda right to counsel by demanding to see a lawyer from his holding cell before being interrogated, and therefore the circuit court did not err in denying the Petitioner’s motion to suppress the statements he made to detectives during his interrogation.

Accordingly, we will affirm the judgment of the Court of Special Appeals. BACKGROUND A. The Murder On Saturday, October 12, 2013, Petitioner Rahul Gupta and his girlfriend, Taylor Gould, went out to dinner in the Dupont Circle neighborhood of Washington, D.C. to celebrate Mr. Gupta’s twenty-fourth birthday. After dinner, the couple walked to a nearby bar, where they met up with two of Mr. Gupta’s friends—Mark Waugh and Josh White. Approximately an hour later, the group moved to another nearby bar, at which point they split up into pairs.

Mr. Gupta went outside with Mr. White, while Mr. Waugh remained inside the bar with Ms. Gould. Mr. Gupta testified that he went outside with ¹¹² Mr. White to smoke marijuana. He also testified that, during this time, Mr. White told Mr. Gupta that he thought Ms. Gould was flirting with him. Meanwhile, inside the bar, Ms. Gould confided in Mr. Waugh that she felt like Mr. White was hitting on her, and it was making her uncomfortable.

Later, after the group had moved to a third bar, Mr. Waugh confronted Mr. Gupta about the situation between Ms. Gould and Mr. White, telling Mr. Gupta that Mr. White was “trying to make a move on” Ms. Gould. Mr. White denied the accusation, and decided at that time to return to his apartment in the Woodley Park neighborhood of Washington, D.C. Mr. Gupta and Ms. Gould also decided to call it a night, and the couple took a taxi back to the apartment they shared in Silver Spring, Maryland, accompanied by Mr. Waugh. Surveillance cameras in the Silver Spring apartment building show that the trio arrived at 1:50 a.m. on Sunday, October 13, 2013. Once inside the apartment, they took shots of vodka, Mr. Gupta smoked more marijuana, and all three sat on the couch and began playing video games.

At some point, there was another discussion about whether there had been any flirting between Ms. Gould and Mr. White earlier in the night. Ms. Gould testified that Mr. Waugh helped her confront Mr. Gupta about the perceived flirting by Mr. White, while Mr. Gupta testified that Mr. Waugh did not believe Ms. Gould’s accusation that Mr. White was “hitting on her.” Both Mr. Gupta and Ms. Gould claimed that they could not clearly remember the events following this discussion, as both had been drinking heavily throughout the night. But at 3:25 a.m., Ms, Gould called 911 at Mr. Gupta’s direction. She told the operator that “my friend is ... here and I need emergency right now,” that “he’s not breathing,” and that “there’s blood everywhere.” When the operator asked Ms. Gould what had happened, she relayed the question to Mr. Gupta, and then responded to the operator, “I don’t know what happened.” Police officers arrived at the apartment at 3:36 a.m., and encountered a “very intoxicated” Ms. Gould at the front door. ¹¹³ She repeated to the officer that she did not know what happened, and they placed her in handcuffs and detained her outside the apartment.

The officers who entered the apartment found Mr. Gupta groaning and covered in blood, lying on the floor just to the left of Mr. Waugh’s body. When the officers asked Mr. Gupta what happened, he responded, “They were cheating. My 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 testified that Mr. Waugh had six stab wounds and five “cutting injuries.” Police recovered an eight-inch kitchen knife, identified as the murder weapon, from under Mr. Waugh’s leg. B. The Interrogation and Suppression Hearing Police officers transported Mr. Gupta and Ms. Gould, separately, to the Major Crimes Division of the Montgomery County Police Department.

Once there, they placed Mr. Gupta in a holding cell to await interrogation. In the holding cell, at 5:05 a.m., Mr. Gupta screamed at Officer Andrew Richardson, who was stationed nearby to keep an eye on Mr. Gupta, that he was “going to sue the shit out of all of you.” Mr, Gupta also pounded on the door of his cell, and screamed'—two to three times—“I want a lawyer.” Approximately ten to thirty minutes later, according to Officer Richardson’s estimate, Detectives Paula Hamill and Kathy Fumagalli arrived to speak with Mr. Gupta and Ms. Gould. Officer Richardson relayed to the detectives Mr. Gupta’s request for a lawyer. At the suppression hearing, Detective Fumagalli testified that she remembered receiving this information, while Detective Hamill testified that she did not remember learning that Mr. Gupta had requested a lawyer.

The detectives spoke to Ms. Gould first. Then, at 8:10 a.m., they moved Mr. Gupta from the holding cell into an interview room and began questioning him. After answering some preliminary questions about his background and current state of mind, Detective Hamill read Mr. Gupta his Miranda rights ¹¹⁴ and asked him whether he understood those rights. Mr. Gupta responded, “Yes.” After about eight seconds of silence, Mr. Gupta asked, “When do I get to talk ...,” before Detective Hamill interrupted him by stating, “Okay, do you ... here’s the deal.

We’re just trying to find out what the heck happened. You know what I mean?” Mr. Gupta cooperated with the detectives and answered their questions throughout the fifty-five-minute interrogation, and did not request to see or speak to a lawyer until approximately one hour after the interrogation had ended. At trial, the State questioned Mr. Gupta on cross-examination regarding some of the statements he had made during the interrogation. The statements themselves were not admitted into evidence.

The State charged Mr. Gupta with first- and second-degree murder in the Circuit Court for Montgomery County. Prior to trial, Mr. Gupta filed a motion to suppress the statements he made to police officers on the morning of his arrest. Specifically, and relevant to this appeal, Mr. Gupta argued that the statements he made while being interrogated by Detectives Hamill and Fumagalli should be suppressed because they were obtained in violation of his right to have counsel present during questioning under Miranda. Mr. Gupta asserted that his demands to see a lawyer while he was in the holding cell awaiting interrogation were made “in the context of custodial interrogation” or when interrogation was “imminent.” Upon learning of these requests, the detectives were required to cease questioning until Mr. Gupta had a chance to speak with a lawyer.

Therefore, Mr. Gupta concluded, any statements he made to the detectives during the interrogation must be suppressed as being obtained in violation of his Miranda right to counsel. Following a suppression hearing on July 30 and 31, 2014, the circuit court denied Mr. Gupta’s motion to suppress. The court found that Mr. Gupta had requested a lawyer “two to four times ... while in custody before interrogation took place,” and that “that communication was passed along to the detectives,” or at least to Detective Fumagalli, by Officer Richardson. However, the court concluded that these demands ¹¹⁵ did not equate to an invocation of the right to counsel under Miranda, because they were made prior to interrogation.

Furthermore, the court found that Mr. Gupta was advised of his Miranda rights, “that he made a knowing and intelligent waiver” of those rights, and that he “did not assert at all, let alone without equivocation, a desire to have counsel present.” C. The Trial Mr, Gupta’s trial began on Monday, March 2, 2015. During jury selection, the court advised the potential jurors that the trial was scheduled to “take eight days to try to completion,” meaning it would likely last until Wednesday of the following week, March 11. The court asked if anyone would be unable to serve during that time due to a substantial personal or financial hardship. Prospective Juror 18A, along with many others, responded in the affirmative.

When questioned individually about her response, Juror 18A explained that she works “for a very small non-profit, so [her] absence for an extended period of time will be difficult.” Additionally, she stated that she had “two children at home and no child care,” so she would “be in a position to try to find somebody to look after” them during the trial. These answers, along with the fact that Juror 18A stated that she was social friends -with defense counsel’s partner, caused the court concern. The court then asked if there would be any objection to striking this juror, to which the State responded, “No.” Defense counsel did object, however, and stated that “she’s a good juror.” Juror 18A remained on the jury panel, and ultimately became a member of Mr. Gupta’s jury. On Thursday, March 5, the circuit court was closed due to snow.

At the close of proceedings on Friday, March 6, the court told the jury that the trial was taking longer than originally expected. Thus, the court told the jurors to prepare to serve until the following Friday, March 13, and, “out of an abundance of caution, some days after that.” The court instructed the jurors to make the court aware when they ¹¹⁶ returned the following Monday if they foresaw any potential conflicts with serving during that period of time. On Monday, March 9, during an afternoon recess, the court informed the parties that Juror 18A had raised a potential conflict with continuing to serve beyond the end of that week: THE COURT: [Juror 18A] had 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 [sic]. 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— [DEFENSE COUNSEL]: 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 a few days. She’s coming back on Wednesday. So the worst case scenario, rather than have 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 if we’re still in trial—■ ¹¹⁷ [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. At the close of proceedings on Wednesday, March 11, the court had another conversation with the parties regarding Juror 18A. One of the parties 2 asked the court about its plans for the juror assuming the trial continued beyond that Friday.

The court thought there was a “really good chance that deliberations are going to carry over until Monday,” and stated that Juror 18A would not be deliberating if the deliberations started on Friday. Defense counsel stated that he did not want “to cut her,” and proposed postponing deliberations until Juror 18A returned from her conference. The court responded that the juror’s keynote speech was on Monday, and she would not return until Wednesday. The court told the parties, “I wouldn’t hold my breath on her being on the jury.” On Thursday, March 12 at 3:00 p.m., Juror 18A sent a note to the court again expressing her concern that she would not be able to serve on the jury the following Monday, Tuesday, or Wednesday.

The juror also stated in her note, “After investing 2 weeks in this trial, I would like to see it through but certainly understand if I am excused.” The court notified the parties of this note on the morning of Friday, March 13, before delivering jury instructions and hearing closing arguments. After reading the contents of the note on the record, the court stated its reaction: “I think it is inappropriate to compel her to forego her presentations. So I’m prepared to find that she is unable to perform her service and to place the first alternate in her place. Does anybody need to discuss that briefly?” Defense counsel asked to discuss the situation, and ¹¹⁸ stated that Juror 18A should not be excused.

Defense counsel again proposed that deliberations be postponed until the juror returned from her conference. Defense counsel also suggested that deliberations could begin that day (Friday), and could continue late into the night, if necessary. The court responded that it would be “highly burdensome on the other jurors to have them on hold for several days.” Therefore, the court stated that it was exercising its discretion under Maryland Rule 4-312 3 in finding that Juror 18A was “unable to adequately perform jury service” and replacing her with an alternate at the beginning of deliberations. The court noted that it would wait until Monday morning to officially excuse Juror 18A and the second alternate, in case something happened over the weekend that would leave them with less than twelve jurors.

In that case, the court would accept defense counsel’s proposal to delay deliberations until Juror 18A returned, “but only to avoid a mistrial with 11 or fewer jurors.” At the close of proceedings on Friday, March 13, before deliberations began, the court told Juror 18A to go to her conference, and that she would be excused on Monday morning assuming there were no problems with the other jurors. The court also told Juror 18A not to discuss their conversation with the other jurors. Juror 18A told the court that the other jurors already knew that she was leaving and that she “would probably be dismissed after today.” The court responded that that was fine, as long as she did not tell the other jurors about the back-up plan of potentially delaying deliberations until Thursday. On Monday, March 16, the court officially excused Juror 18A from her service, and replaced her with an alternate.

After approximately five hours of deliberations, the jury convicted Mr. Gupta of first-degree murder. On May 27, 2015, ¹¹⁹ the court sentenced Mr. Gupta to life imprisonment. Mr. Gupta appealed his conviction to the Court of Special Appeals, which affirmed the judgment of the circuit court in a reported opinion issued on April 29, 2016. Gupta v. State, 227 Md.App. 718, 749 , 135 A.3d 926 (2016).

On August 19, 2016, we granted Mr. Gupta’s petition for a writ of certiorari, limited to the following questions 4 : 1. When a judge violates Md. Rule 4-326(d) by communicating an ex parte answer to a juror’s question that “pertains to the action,” without disclosing it to the defendant or any lawyer, can the presumption of prejudice be overcome by adding a new standard of review claiming the judge’s ex parte answer was not “substantive” enough? 2. Did the trial court err by not granting pre-trial suppression of Petitioner’s custodial interrogation statement after finding he communicated repeated demands for a lawyer to police officers while he was locked-up in a cell just before being interrogated? Gupta v. State, 449 Md. 409 , 144 A.3d 704 (2016).

DISCUSSION A. Ex Parte Communication Between the Circuit Court and Juror 18A Mr. Gupta argues that the circuit court violated Maryland Rule 4-326(d)(2)(C) when it told Juror 18A that she would not miss her conference without first informing the parties of the communication and providing them an opportunity for input. ¹²⁰ Mr. Gupta asserts that the State has not met its burden of showing that this ex parte communication was harmless beyond a reasonable doubt, and therefore he is entitled to a new a trial. The State responds that the circuit court did not violate Rule 4-326(d)(2)(C) because the communication did not “pertain to the action.” Alternatively, the State asserts that even if the circuit court did violate the Rule, the violation was harmless beyond a reasonable doubt because Juror 18A did not participate in deliberations, and therefore could not have affected the outcome of the trial. Rule 4-326(d)(2) governs communications between the court and jurors: (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. The parties do not dispute that the communication between the trial judge’s law clerk and Juror 18A about whether she would be able to attend her conference is governed by this Rule. 5 Instead, the parties dispute whether the communication “pertain[ed] to the action,” such that the trial judge was ¹²¹ required to follow the procedures outlined in paragraph (C), or whether the communication did not “pertain to the action,” such that the trial judge was free to “respond as he ... deem[ed] appropriate” under paragraph (B).

Mr. Gupta argues that the communication pertained to the action because it concerned Juror 18A’s ability to continue serving on the jury and eventually deliberate. The State contends that the communication did not pertain to the action because it concerned a “routine administrative matter” regarding “a possible future scheduling problem,” rather than a “substantive discussion of trial matters [as] contemplated by the [R]ule.” “[Communications raising issues that ‘implicate and concern the juror’s ability to continue deliberating’ pertain[ ] to the action” under Rule 4-326(d)(2). Grade v. State, 431 Md. 85, 100 , 64 A.3d 197 (2013) (quoting State v. Harris, 428 Md. 700, 715 , 53 A.3d 1171 (2012)). For example, in Harris , the trial judge’s secretary received a phone call from a juror’s father, informing her that the juror’s grandmother had passed away. 428 Md. at 705-06 , 53 A.3d 1171 .

Without notifying counsel of the phone call, the secretary informed the juror of his grandmother’s death, and asked him “whether he was alright to continue” serving on the jury. Id. at 706 , 53 A.3d 1171 . The juror responded that he was. Id.

Shortly after the start of deliberations, the juror sent a note to the court asking to be excused so that he could help his family with preparations for his grandmother’s funeral. Id. The court informed the parties of the juror’s note, and refused to discharge the juror. Id. at 709 , 53 A.3d 1171 .

After a few hours of deliberations, the jury acquitted the defendant of second-degree specific intent murder, but convicted him of second-degree depraved heart murder. Id. This Court held that the communication between the judge’s secretary and the juror pertained to the action because it involved “information that implicates, and may impact, a juror’s ability to continue deliberation.” Id. at 716 , 53 A.3d 1171 . Such information is especially relevant when “the ¹²² juror suggests that his or her ability to continue is dependent upon a speedy conclusion of the trial.” Id.

In Grade , the trial court told the jury, including the alternates, to return to the courthouse at 9:15 a.m. the next day to begin deliberations. 431 Md. at 88 , 64 A.3d 197 . Assuming everyone showed up, the court stated it would dismiss the alternates at that time. Id. The next morning, the court received a phone call from one of the jurors stating that she would not be able to get to the courthouse until 10:30 a.m. at the earliest.

Id. at 89 , 64 A.3d 197 . Without informing the parties of the communication, the court elected to replace the juror with an alternate, rather than delay deliberations until she arrived. Id. This Court held that the communication “[fell] squarely within the ambit of Rule 4-326(d)” because “it was a communication directed to the court, about 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 and, in fact, it was later acted on with that very effect.” Id. at 100-01 , 64 A.3d 197 .

Similarly, in this case, Juror 18A’s communication with the trial judge’s law clerk about the progress of the trial and her conflict with serving beyond two weeks implicated her ability to continue serving and to deliberate. As in Harris , her “ability to continue [was] dependent upon a speedy conclusion of the trial,” Harris, 428 Md. at 716 , 53 A.3d 1171 , because she would only be able to deliberate if the presentation of evidence concluded well before the end of the second week of trial. Also, as in Grade , Juror 18A’s inquiry “was a communication directed to the court, about 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 and, in fact, it was later acted on with that very effect.” Grade, 431 Md. at 101 , 64 A.3d 197 . Therefore, we conclude, as we did in Harris and Grade , that Juror 18A’s inquiry about what would happen if the trial continued into a third week “falls squarely within the ambit of Rule 4-326(d).” Grade, 431 Md. at 100 , 64 A.3d 197 . ¹²³ Because the juror’s communication pertained to the action, the circuit court was required to adhere to the procedures outlined in Rule 4-326(d)(2)(C).

See Winder v. State, 362 Md. 275, 322 , 765 A.2d 97 (2001) (“These rules are not abstract guides. They are mandatory and must be strictly followed.”). This means the trial judge was required, before responding to the communication, to promptly notify the parties; to consider, on the record, the parties’ position on any response; and to respond to the communication in writing or orally on the record. Md. Rule 4-326(d)(2)(C); see also Harris, 428 Md. at 720 , 53 A.3d 1171 (“The mandate of Rule 4-326(d) is unambiguous!)]”).

These procedures “are basic and relatively simple to adhere to in practice.” Winder, 362 Md. at 322 , 765 A.2d 97 . The record reveals, and the parties do not dispute, that the trial judge did not adhere to the mandates of Rule 4-326(d)(2)(C). He did not notify the parties of Juror 18A’s inquiry before responding through his law clerk. He did not invite and consider, on the record, the parties’ position on any response.

Finally, he did not respond to the communication either in writing or orally on the record. Instead, the trial judge responded to the juror, off the record, through his law clerk, “[t]hat we’re not going to stand in the way of her going to her conference,” and informed the parties of the conversation the next business day. Therefore, the trial judge violated Rule 4-326(d)(2)(C). “A failure to comply with [the Rule’s] explicit mandate is error, and once such error is established, it only remains for this Court to determine whether that error was prejudicial to the defendant and, thus, requires reversal.” Harris, 428 Md. at 720 , 53 A.3d 1171 (citing Taylor v. State, 352 Md. 338, 354 , 722 A.2d 65 (1998)). Mr. Gupta argues that the trial judge’s violation of the Rule was prejudicial because it deprived him of the right to have notice of the evolving situation with Juror 18A and an opportunity to provide input before the judge responded to the juror’s inquiry.

Additionally, Mr. Gupta notes that it is the State’s burden to establish ¹²⁴ that the violation was not prejudicial, and he maintains that the State is unable to satisfy that burden based on the record before us. The State responds that any potential violation of the Rule was, “by definition,” harmless because Juror 18A was dismissed and replaced with an alternate before deliberations began. Therefore, the State asserts, “it was impossible” for the alleged violation to have harmed Mr. Gupta. “Any failure of the trial court to disclose a communication under Rule 4-326(d) is evaluated under the harmless error standard and will not be considered harmless ‘unless the record affirmatively shows that such communications were not prejudicial or had no tendency to influence the verdict of the jury.’ ” 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)). “As the beneficiary of the error, the State has the burden of establishing that it was not prejudicial,” and “[a] reversal of the ... conviction is required unless the record demonstrates that the trial court’s error in communicating with the jury ex parte did not prejudice the [defendant].” [Taylor, 352 Md. at 354 , 722 A.2d 65 .] Stated differently, it is error for a trial court to engage in 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. Harris, 428 Md. at 721 , 53 A.3d 1171 (alterations and ellipsis in original); see also Denicolis, 378 Md. at 658-59 , 837 A.2d 944 (“Once error is established, the burden is on the State to show that it was harmless beyond a reasonable doubt.

The record must affirmatively show that the communication (or response or lack of response) was not prejudicial.”). At the outset, we reject the State’s suggestion that a trial court can cure the presumed prejudice that arises from its ex parte communications with a juror by simply dismissing the “infected” juror and replacing her with an alternate. Of course, we recognize that “while [a defendant] has a right to a fair and impartial jury, [he] does not have a right to a jury ¹²⁵ composed of particular individuals.” State v. Cook, 338 Md. 598, 614 , 659 A.2d 1313 (1995). As such, “[a] defendant’s ‘valued right to have his trial completed by a particular tribunal’ should not be expanded to apply to a situation where a seated juror is replaced with an alternate who has undergone the same selection process as the seated jurors and has been present for the entire trial.” Id.

We also recognize “that a trial judge has discretion, pursuant to [Rule 4—312(g)(3)], to make a juror substitution, to replace a juror with an alternate before deliberation, if that juror” is unable to perform her duty. Grade, 431 Md. at 102 , 64 A.3d 197 . However, the trial judge’s discretion, pursuant to Rule 4-312(g)(3), even if exercised appropriately, does not automatically render harmless the judge’s violation of the prohibition against ex parte communications. See id. at 103 , 64 A.3d 197 (“Where ... more than one Rule addresses the same issue, neither overlapping Rule may be relied on, alone, to permit the trial court to fail to comply with all other applicable rules,”).

Where there is a triggering juror communication, compliance with Rule 4-326(d) neither infringes nor affects the trial judge’s responsibility or exercise of discretion under Rule [4-312(g)(3) ]. On the other hand, a trial court’s failure to follow Rule 4-326(d) undermines and, indeed, renders nugatory the defendant’s right, vindicated by that Rule, to be present at all stages of trial. Id. at 104 . Therefore, the fact that Juror 18A did not engage in deliberations, because she was dismissed pursuant to Rule 4-312(g)(3), is insufficient to establish that the trial judge’s violation of Rule 4-326(d)(2)(C) was harmless beyond a reasonable doubt.

Instead, we must look to the record of what transpired in the circuit court to determine whether it “affirmatively show[s] that the communication (or response or lack of response) was not prejudicial.” Denicolis, 378 Md. at 659 , 837 A.2d 944 . The record reveals that the trial judge first notified the parties of the ex parte communication with Juror 18A ¹²⁶ during an afternoon recess on Monday, March 9—the second Monday of the trial. At that time, the judge revealed that Juror 18A was concerned about the trial continuing beyond the end of that week, because she was leaving town that Saturday to attend a conference in Las Vegas and would not return until the following Wednesday. The judge also expressed a mistaken belief that the juror had mentioned this conflict during voir dire, when in fact the juror had not previously mentioned her conference on the record.

Furthermore, the judge explained that he had already responded to the juror’s inquiry, through his law clerk, by telling her that “we’re not going to stand in the way of her going to her conference.” Finally, the judge stated that he would resolve the situation on Friday, depending on the progress of the trial at that point. The record reveals that the parties had another conversation with the court regarding Juror 18A on Wednesday, March 11, during which defense counsel suggested postponing deliberations until the juror returned from her conference. On Thursday, March 12, Juror 18A sent a note to the court expressing her concern about the trial going into a third week, which the court read to the parties the next day. At that time, the court expressed that it was prepared to dismiss Juror 18A and replace her with an alternate, but asked the parties if they wanted to discuss this decision.

Defense counsel expressed his disapproval with the court’s decision, and suggested either postponing deliberations until the juror returned from her conference, or starting deliberations that day and going late into the night. The court considered and rejected these options, ultimately choosing to dismiss Juror 18A and replace her with an alternate as previously stated. Based on our review of this record, we hold that the trial judge’s violation of Rule 4-326(d)(2)(C) was harmless beyond a reasonable doubt. We recognize that, prior to the Court of Special Appeals’ opinion below, “no reported Maryland appellate case [had] held that the State met its burden of proving that a trial court’s ex parte communication with a juror was harmless.” Gupta, 227 Md.App. at 728 , 135 A.3d 926 .

However, ¹²⁷ we conclude, as did the intermediate appellate court, that this case is materially distinguishable from those previous cases. For example, in Harris , the defendant was prejudiced by the ex parte communication because he and his counsel were “not provided with the opportunity to evaluate the emotional state of the juror, nor to provide input on how to proceed.” Harris, 428 Md. at 722 , 53 A.3d 1171 . In that case, “had the communication been disclosed when it occurred, the alternate jurors would have been available to replace the juror. The trial court, by waiting until the alternates were dismissed to advise the respondent and the State