Hall v. State

MATRICCIANI, J. Rickey Hall, appellant, was indicted in the Circuit Court for Baltimore City for possessing a regulated firearm after having been previously convicted of a disqualifying crime; wearing, carrying, or transporting a handgun; and wearing, carrying, or transporting a handgun in a vehicle. After a jury trial, appellant was convicted of the possession charge and acquitted of knowingly wearing, carrying, or transporting a handgun in a vehicle. The court declared a mistrial as to the wearing, carrying, or transporting a handgun charge. Appellant was ²¹¹ sentenced to five years of incarceration.

He then noted this timely appeal. Questions Presented Appellant presents the following questions, which we have consolidated and rephrased to facilitate review: 1 I. Did the trial court err in giving an Allen-type 2 instruction which did not strictly conform to the pattern “duty to deliberate” instruction and by conferring with a juror who, during polling, indicated that she did not agree •with the foreperson’s announced verdict for Count Two?

II

Did the trial court err in limiting cross-examination of a police officer concerning other persons having been charged with possession of the handgun at issue in this trial? For the reasons that follow, we answer no to both questions and affirm the judgment of the circuit court. Factual and Procedural History On March 23, 2010, Detectives Gary Schaekel and Frank Friend, Jr., 3 of the Baltimore City Police Department, were patrolling the Wildwood area of Baltimore City in a marked ²¹² police vehicle. The detectives spotted a maroon Buick that failed to display a Maryland license plate on the front end of the vehicle.

They engaged the lights and sirens of their police vehicle and followed the Buick, but the Buick did not stop. After further pursuit, and with the assistance of other officers in the area, Detectives Schaekel and Friend were eventually able to stop the Buick. There were three occupants in the Buick: a driver, a front passenger, and appellant, the rear passenger. Upon stopping the Buick, Detective Friend jumped out of the police vehicle with his gun drawn.

When Detective Friend approached the Buick on the passenger side, he could observe appellant through the windshield. Appellant reached into his waistband, pulled his arm out, and then leaned forward as if to put something on the floor. Detective Friend then walked around to the driver’s side of the vehicle, opened the rear door, and observed appellant kicking something. Detective Friend looked down and noticed the barrel of a gun.

Detective Friend arrested appellant. The detectives did not find any other weapons or contraband in the vehicle or on any of the individuals. The detectives learned later that the gun found in the car did not belong to appellant or anyone else in the car. As noted above, appellant was charged with several firearm offenses, and he was tried before a jury in the Circuit Court for Baltimore City.

At trial, during the cross-examination of Detective Schaekel, defense counsel attempted to question Detective Schaekel about charges against the other two individuals who had been in the car during the stop. Appellant attempted to establish that both of these individuals may have been charged with possession of the same handgun at issue in the present case. Although defense counsel was successful in asking whether the driver of the car, Dontate Anderson, had been charged, the court precluded, upon the State’s objection, any further questioning related to charges against these individuals: [DEFENSE COUNSEL]: And in that arrest, case disposition report, you indicate that there’s been a handgun violation with respect to Mr. Anderson, correct? ²¹³ DETECTIVE SCHAEKEL: Correct. [DEFENSE COUNSEL]: And as a matter of fact, Mr. Anderson was charged with that handgun, correct? DETECTIVE SCHAEKEL: Correct. [DEFENSE COUNSEL]: And Mr. Anderson was indicted— THE STATE: Objection.

COURT: Sustained. [DEFENSE COUNSEL]: Well, was there a time when Mr. Anderson was Mr. Hall’s co-defendant? THE STATE: Objection. THE COURT: Why are we talking about cases not in the courtroom? The jury is sitting here patiently for this case.

Can’t wait for it to get back to it. [DEFENSE COUNSEL]: I— THE COURT: Objection is sustained. [DEFENSE COUNSEL]: Okay. Now with respect to— THE COURT: And the jury is instructed to disregard any reference to that testimony or those references made by Counsel, because they are absolutely not part of this case and I don’t have any idea what they’re about. And so, therefore, we do not encourage them to be mixing in with cases that we do know about, which is this one. Moving right along. [DEFENSE COUNSEL]: With respect to Defense Exhibit for ID purposes, for No. 4, who does that relate to?

DETECTIVE SCHAEKEL: Anthony Stevenson. [DEFENSE COUNSEL]: And he was— THE COURT: Are we—do you want to come up here? I mean, are we going to have this repeated one after the other? [DEFENSE COUNSEL]: Of course we are, Your Honor. They’re relevant. THE COURT: Well, why don’t I just put it on tape and I’ll push a button. ²¹⁴ [DEFENSE COUNSEL]: Your Honor, that’s— THE COURT: The objection is sustained by the Court.

After approximately one hour of deliberation, the jury submitted a question to the court concerning the legal definition of “transport”—an element associated with two of the counts with which appellant was charged. “Transport” was not legally defined in the jury instructions or in relevant annotations, so the court provided the jury with the Merriam-Webster Dictionary definition, which the court read: “ ‘to transfer or convey from one place to another,’ which is the common sense understanding of it too.” After the lunch recess and another 30 minutes of deliberation, the jury indicated that it had reached a unanimous verdict on all counts. When the foreperson began announcing the jury’s verdict, however, there was confusion as to the verdict for Count One, 4 possession of a handgun after having been previously convicted of a disqualifying offense, and the court instructed the jury to continue deliberating. Approximately six minutes later, the jury submitted a note to the court, which read: “We have a juror who is holding out & it will be impossible [underlined twice] to come to a unanimous verdict.” The court conferred with appellant’s counsel and the State and indicated that it was going to give an Allen-type charge to the jury. Appellant’s counsel objected, noting that the jurors had been deliberating for less than two hours total.

Despite counsel’s objection, the court administered the following instruction to the jury: Thank you, ladies and gentlemen. Please be seated. We have a note which I have read to Counsel and [appellant] that you have a juror who is holding out and it will be impossible to come to a unanimous verdict. Now, you have told us without a question from us the nature of this inability to reach a unanimous verdict.

Meaning, specifically, that it’s possibly a single juror. So, of course, I don’t ²¹⁵ want to know who that is and I don’t want to in any way seem critical of any juror’s decision. Because as I’ve said often, it’s none of my business legally or otherwise. But I do have a responsibility as the judge to remind you of your duty to decide the case and as I said earlier and I’ll just reread what I said earlier.

I said it must be the considered judgment of each of you, in order to reach a verdict, all of you must agree. Your verdict must be unanimous. You must consult with one another and deliberate with a view to reaching an agreement. That is an important element of this as important as the other elements.

If you can do so without violence to your own individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. During deliberations, do not hesitate to reexamine your own views. You should change your opinion if convinced you are wrong, but do not surrender your honest belief as to the weight or affect [sic] of the evidence only because of the opinion of your fellow jurors or the mere purpose of reaching a verdict.

So what that says, in addition to my having said, that you have a duty to decide the case. What that says it [sic] that you are as jurors and judges of the fact obligated to reach decisions in your own head so to speak, based upon the evidence and the law and no other standard. And at the same time, listen to one another and be prepared, if persuaded, to change your opinion, as I speak this to all 12 jurors and that’s—it’s a really important element of the jury process, where the jurors speak to one another, you know. Civil juries are now six, not 12, but serious criminal cases are tried by 12 and there’s a reason for that in addition to history.

There is a reason, because it means that 12 people are listening to the evidence and listening to the facts and listening to those facts and listening to my instruction of law and then collaborating with an open mind to what everyone else is saying and opining about what they have seen and heard in this courtroom during this trial. ²¹⁶ So it’s my responsibility to send you back to the jury room, keeping that important direction in mind and that keeping in mind the importance of decision making as jurors. So, I know it’s not something that you will receive with great pleasure but that’s my duty and I send you back and ask you to continue to deliberate and remember what deliberate means? Expressing yourself and listening to one another. That’s very important.

Thank you very much. You’re excused to continue your discussions. Following the court’s instruction, appellant’s counsel raised again his objection to the court’s instruction, additionally objecting to the form of the instruction given. Counsel argued that the court did not adhere to a formal Allen-type charge and instead gave an informal, “ad-libb[ed]” version of the instruction.

The court responded that it “respect[ed]” counsel’s comments, but took no further action. About an hour later, the jury again indicated that it had reached a unanimous verdict. As the clerk began reading each count individually, the foreperson announced the verdicts on behalf of the jury. The foreperson indicated that the jury found appellant guilty of Count One, possession of a firearm after having been convicted of a disqualifying crime; guilty as to Count Two, wearing, carrying, or transporting a handgun; and not guilty as to Count Three, wearing, carrying, or transporting a handgun in a vehicle.

During juror polling, however, one juror stated that she disagreed with the foreperson’s announced verdict for Count Two: CLERK: Juror No. 6, you heard the verdict of your Foreperson, is your verdict the same? THE JUROR: No. THE COURT: Who was that, please? CLERK: Juror No. 6, Your Honor. THE COURT: Ma’am, didn’t we just ask if there was unanimity. ²¹⁷ THE JUROR: But I didn’t agree with number two, the transport.

That’s what I didn’t understand. THE COURT: Okay. Now, Juror No. 6, we’re looking now at the same verdict sheet, correct? THE JUROR: Yes.

THE COURT: And you’ve heard the verdict of guilty as to the first paragraph of the first count, yes? You heard that? THE JUROR: Yes. THE COURT: And you agree with that or not?

THE JUROR: Yes. THE COURT: All right. Now we’re on number 2. Do you find that Rickey Hall did wear, carry, or transport a handgun?

The verdict rendered by your foreman was guilty. Do you agree or disagree with that? THE JUROR: I disagree because I did not get the transport part. THE COURT: So, the verdict is not unanimous as to number 2?

Is that what you’re saying, ma’am? THE JUROR: Yes, because the transport part. THE COURT: When you say that, when you say, because of the transport part. What do you mean by that question or comment?

THE JUROR: Like the transport part, because he was in the back seat, I do not believe that he was transporting. THE COURT: All right. Well I can’t have a discussion with you, I mean not—because of my role, okay. But in terms of my role as a judge of the law, I’m reading that question to read this way, do you find that Rickey Hall did wear, comma, carry or transport a handgun.

THE JUROR: And I did not believe that he had the gun. No, I don’t. THE COURT: Okay.... ²¹⁸ All of the remaining jurors agreed with the foreperson’s announced verdict. After juror polling concluded, the clerk hearkened the jury as to Count One.

The Court then asked the jury: “And that’s unanimous, correct?” One juror, the record is unclear as to which juror, responded, “Yes.” The Court then asked, “Juror No. 6, you agree with that verdict, yes?” Juror Number Six responded: “Yes, I agree with it.” In a bench conference immediately following, defense counsel requested a mistrial, arguing that Juror Number Six was “not comfortable with the verdict.” Defense counsel asked the court to either allow the jurors to continue deliberating or to declare a mistrial. Although the court stated that it was denying counsel’s motion, it did declare a mistrial as to Count Two. The clerk then hearkened the jury as to Count Three, and the Court asked the jury: “Everyone, right?” The jurors responded: “Yes.” Appellant was sentenced to five years of incarceration, and he noted this timely appeal. Discussion I. A. Appellant first contends that the Allen-type instruction given to the jury deviated impermissibly from the approved pattern instruction, infra, and was unduly coercive.

Appellant argues that the trial court overemphasized the jury’s responsibility to reach an agreement, and that the court erred in advising the jury of a duty to decide the case rather than a duty to deliberate. Appellant also contends that the trial court’s preface to this instruction, in which it noted that a single juror appeared to be the barrier to a unanimous verdict, made the instruction impermissibly coercive. Although we do not recommend or condone all of the language used by the trial court here, when viewing the instruction in its entirety, we do not believe that it deviates in substance from the pattern instruction, and reversal is therefore not required. An Allen-type charge refers to the type of instruction administered to juries upon an indication that they are ²¹⁹ deadlocked, or initially as a general unanimity and duty to deliberate instruction before the jury commences deliberations.

Thompson v. State, 371 Md. 473, 483 , 810 A.2d 435 (2002). “[T]he decisions as to whether to utilize an Allen-type charge, when to employ it, and what words should be selected are best left to the sound discretion of the trial judge.” Kelly v. State, 270 Md. 139, 143 , 310 A.2d 538 (1973). When giving an Allen-type instruction following an indication that the jury is deadlocked, a trial court must be careful that its instruction does not coerce the jury into reaching a verdict. Id. at 144 , 310 A.2d 538 . Avoiding the coercion of a verdict is critical, because the jury’s verdict must be unanimous, and unanimity “embraces not only numerical completeness but also completeness of assent, Le., each juror making his or her decision freely and voluntarily, without being swayed or tainted by outside influences.” Caldwell v. State, 164 Md.App. 612, 635 , 884 A.2d 199 (2005) (citing Bishop v. State, 341 Md. 288, 294 , 670 A.2d 452 (1996)).

Out of concern that the language of a traditional Allen-charge may pressure jurors in the minority to abandon their own views and agree with the views of the majority, the Court of Appeals has rejected traditional Allen- charge language in favor of the instruction recommended by the American Bar Association. See, e.g., Burnette v. State, 280 Md. 88, 96 , 371 A.2d 663 (1977) (“[The ABA-approved instruction] is superior to the traditional Allen instruction in several respects. It does not charge the minority to doubt the reasonableness of its convictions when they are not concurred in by the majority. It thus avoids the coercive tendency of the Allen charge.”).

Maryland Criminal Pattern Jury Instruction (MPJI-Cr) 2:01 closely follows this instruction, and provides: The verdict must be the considered judgment of each of you. In order to reach a verdict, all of you must agree. In other words, your verdict must be unanimous. You must consult with one another and deliberate with a view to reaching an agreement, if you can do so without violence to your individual judgment.

Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. During deliberations, do not hesitate to reexamine your own views. ²²⁰ You should change your opinion if convinced you are wrong, but do not surrender your honest belief as to the weight or effect of the evidence only because of the opinion of your fellow jurors or for the mere purpose of reaching a verdict. Maryland Pattern Jury Instructions § 2:01 (2012). 5 When an AUen-type instruction is given as the result of an apparent deadlock, the trial court “should closely adhere to the wording of the ABA recommended instruction.” Kelly, 270 Md. at 144 , 310 A.2d 538 . However, the court is not “imprison[ed] ... within the walls of foreordained verbiage!,]” and the trial judge may personalize the charge.

Burnette, 280 Md. at 98 , 371 A.2d 663 (citing Kelly, 270 Md. at 142 , 310 A.2d 538 ). When the trial court does not adhere closely to the language of the approved instruction, we must review the court’s instruction carefully to determine “whether the province of the jury has been invaded and the verdict unduly coerced.” Kelly, 270 Md. at 144 , 310 A.2d 538 . Any deviation from the pattern instruction should be largely in form and style, and the instruction must adhere to the spirit and substance of the ABA-approved instruction. See Burnette, ²²¹ 280 Md. at 98, 101 , 371 A.2d 663 (“Deviations in substance will not meet with our approval.

Coercion of the jury for the purpose