Harris v. State

Opinion by SHARER, J. A jury in the Circuit Court for Baltimore City convicted Chester Harris of automobile manslaughter, in violation of Md.Code, Criminal Law Article § 2-209 (2002 and 2003 Supp.), and related offenses. 1 ⁷⁵ Harris raises three issues on appeal, which we have rephrased as follows: 1. Whether the trial court properly accepted the jury’s verdict where the record does not show that the jury was sworn. 2. Whether the trial court abused its discretion in restricting counsel’s closing argument. 3. Whether the trial discretion in admitting evidence.

Finding neither error nor abuse of discretion, we shall affirm. BACKGROUND Harris does not contest the sufficiency of the evidence. Because we assume the parties’ familiarity with the record and course of proceedings, we therefore need only recite those facts and proceedings that serve to provide a context for the discussion of the issues before us. See Martin v. State, 165 Md.App. 189, 193 , 885 A.2d 339 (2005), cert. denied, 391 Md. 115 , 892 A.2d 478 (2006).

This case arises from the death of Michael Edwards on November 22, 2003. The State charged that Mr. Edwards was struck and killed by an automobile driven by Harris. Following a trial on October 28 and 29, 2004, the jury and the court rendered guilty verdicts as we have noted, and sentences were imposed at that time. By counsel, Harris filed a motion for a new trial, which was denied after a hearing on February 23, 2005.

This timely appeal followed. We shall recite additional facts as they relate to the issues raised on appeal. 1. Whether the trial court properly accepted the jury’s verdict where the record does not show that the jury was sworn. Harris first maintains that the trial court “erred in not swearing the jury.” The State responds, first, that this issue has not been preserved because defense counsel failed to ⁷⁶ request that the trial judge administer the oath.

The State, assuming that this question is before us, posits in the alternative that Harris has failed to overcome the presumption that the trial judge properly performed his duty to swear the jury. Finally, the State argues that any demonstrated error is harmless beyond a reasonable doubt. The Proceedings Following jury selection, the trial court inquired of counsel about pending pretrial motions. Anticipating that a suppression motion would be heard, the court stated its intent to excuse the jurors until later in the day, after conclusion of the motion hearing.

The transcript reflects the following exchange at the bench: THE COURT: I will let this Jury go. THE CLERK: Do you want me to swear them in first? THE COURT: Yes, I’ll have you swear them first. I’ll pick the forelady or Foreman first, too.

I’m trying to figure out how long to excuse them for. No more than 2 o’clock. Maybe 1:30. Think we can do this [motion] in a half hour? [PROSECUTOR]: I would think so.

THE COURT: Okay. Let me handle it from here. Go back to the trial table. The bench conference was concluded, and the following occurred in open court.

THE COURT: Ms. [Juror], I’m going to appoint you the forelady of this panel. Exchange places with Mr. [Juror] who is sitting beside you. Your obligations as Forelady are very limited. If there is ■ a question either during the trial or during deliberations, please have it reduced to writing by the Juror asking the question so that I can consult with the lawyers about it and I can have exactly what is being asked.

Then when the panel does begin their deliberations after the case is entirely over with, everyone can say what they want to say and do what they want to do, but I will ask you ⁷⁷ to organize and get the system going. You look like a person who can organize my children. THE JUROR: Thank you. THE COURT: And be fair about it, but, you know, know what you’re doing.

Now, folks, I’m going to — I have a number of other things I have to do this morning and I don’t want you to sit around and wait, so I will excuse you for lunch now while I do them during the lunch period. I will excuse you until 1:30. I will ask the Sheriff to take you to the jury room. Frankly, I don’t know where it is myself.

Sheriff, you know where it is. Lead the Jurors to the room and then make sure you know how to get back to that room after lunch. Sheriff, tell them. I guess they come through the courtroom.

If we’re in the process of trial in the courtroom, please don’t come in. I’m going to ask you to wait until we’re finished, then come through the courtroom if that is blocking you. Now you can remain in the jury room if you want. That’s your room.

You can come and go as you see fit. But please be on time at 1:30 so we can get right on with this case. You are excused. Follow the Sheriff. [DEFENSE COUNSEL]: Your Honor, is the Jury going to be sworn?

THE COURT: They’re going to lunch. Why? [DEFENSE COUNSEL]: I was just asking if they will be sworn. THE COURT: They are excused until 1:30. And, Sheriff, tell the Sheriff not to have them come back this way.

Go out the other door. The trial transcript does not indicate that the jurors were sworn. Citing Schowgurow v. State, 240 Md. 121 , 213 A.2d 475 (1965), Harris maintains that the trial court’s failure to swear the jury mandates that we reverse. He suggests that a juror acting without having taken an oath deprives the trial court of jurisdiction.

We do not disagree with the proposition that a jury that sits and returns a verdict without having been sworn would raise questions of structural error and potential want of jurisdiction. That, however, does not end our inquiry. ⁷⁸ We acknowledge the rule of Schowgurow , but suggest that it is not apposite to the issue before us, for in that case the jurors did take the oath then prescribed by law. On appeal, the issue was not a lack of swearing of the jurors; rather, it was the oath itself that came under challenge. Schowgurow, a Buddhist, challenged the composition of both the grand jury that indicted him and the petit jury that convicted him on the basis that jurors were required to show a belief in God as a qualification for jury service.

That requirement, Schowgurow argued, violated his constitutional rights. The Court of Appeals agreed, citing Torcaso v. Watkins, 367 U.S. 488 , 81 S.Ct. 1680 , 6 L.Ed.2d 982 (1961), and reversed. (“We repeat and again reaffirm that neither a State nor the Federal Government can constitutionally force a person ‘to profess a belief or disbelief in any religion.’ ”) 2 In the instant case, the State initially asserts that Harris’s objection is waived, pointing out that defense counsel “never requested that the jury be sworn.” As is apparent from the portion of the trial transcript that we have set out above, counsel twice asked whether the trial judge would administer the oath. The transcript does not reveal the court’s response, only the reply that the panel would be excused for lunch.

Following this recess, the trial judge heard and denied additional defense motions. When the jury returned from the recess, counsel began opening statements. The record does not reveal any further mention, or inquiry, by anyone about the jurors’ oath. 3 Without deciding whether ⁷⁹ counsel has an obligation to see that the ministerial conduct of the proceedings is properly discharged, we are satisfied that counsel’s two inquiries to the court regarding swearing of the jury were sufficient to negate the State’s waiver argument. Jury Oath “The right of a criminally accused person to trial by an impartial jury is guaranteed by the Sixth Amendment of the United States Constitution, made applicable to the states through the due process clause of the Fourteenth Amendment, as well as Articles 5, 21, and 24 of the Maryland Declaration of Rights.” Owens v. State, 170 Md.App. 35, 62-63 , 906 A.2d 989 , cert. granted, 396 Md. 12 , 912 A.2d 648 (2006) (footnotes omitted). “[B]oth grand and petit jurors are an integral part of our judicial system; they are regarded as fundamental safeguards to individual liberty, and, in their deliberation, each member exercises a part of the sovereign power of government in the administration of justice.” 4 Schowgurow, supra, 240 Md. at 125 , 213 A.2d 475 .

Maryland Rule 4-312 governs jury selection and provides, in pertinent part: (h) Impaneling the jury. The jurors and any alternates to be impaneled shall be called from the qualified jurors remaining on the list in the order previously designated by the court and shall be sworn. The court shall designate a juror as foreman. ⁸⁰ There is conflicting authority on whether the failure to administer the jury oath is a jurisdictional defect that nullifies the verdict. For example, in Ex parte Benford, 935 So.2d 421, 429-30 (Ala.2006), the Alabama Supreme Court observed that the complete failure to administer the two oaths that are required for juries in that state is a jurisdictional defect which renders the jury’s verdict a nullity.

Accord, e.g., State v. Frazier, 339 Mo. 966 , 98 S.W.2d 707, 715 (1936); State v. Bainter, 2006 WL 1527131 , ² (Mo.App. E.D. Jun.6, 2006) (jury does not exist until sworn); rev’d on other grounds sub nom., State v. Davis, 211 S.W.3d 86 (Mo.2006); 5 Keller v. State, 261 Ga.App. 769 , 583 S.E.2d 591, 593 (2003). See generally State v. Vogh, 179 Or.App. 585 , 41 P.3d 421 , 425-26 n. 6 (2002) (citing cases). On the other hand, the Oregon Court of Appeals has noted: Much of that formalism [regarding jury oaths] has since given way to a more functional approach. For example, courts now appear uniformly to hold that the untimely administration of the oath is subject to both waiver and harmless error analysis.

Likewise, a substantial body of case law holds that other irregularities in the tuning and administration of the oath are reversible error only if raised timely and if prejudicial to the defendant’s interests. Most importantly, in recent years, some courts have squarely rejected the proposition that a criminal verdict by an unsworn jury is a nullity, concluding instead that a complete failure to swear the jury is akin to other objections to the jury’s competency or the impartiality of its deliberations, and likewise must be raised timely and must be prejudicial. ⁸¹ See, e.g., State v. Arellano, 125 N.M. 709, 712 , 965 P.2d 293 (1998); Sides v. State, 693 N.E.2d 1310,1312 (Ind.1998); see also United States v. Pinero, 948 F.2d 698, 700 (11th Cir.1991) (per curiam) (questioning the existence of a requirement to swear the jury in criminal cases tried in federal courts). Thus, in determining what the rule should be in Oregon, we have neither direct precedent in our own jurisprudence nor a clear consensus among other jurisdictions to guide us. Logic and principle, however, lead us to reject defendant’s suggestion that a criminal verdict rendered by an unsworn jury is a nullity and therefore can be challenged at any time, including after judgment.

Vogh, supra, 41 P.3d at 426 (footnotes and citation omitted). Vogh was convicted by a jury of criminal trespass. At the sentencing hearing, Vogh’s counsel revealed to the court that the jury had not been sworn, a premise accepted by the trial court and later by the appellate court. Counsel then moved for a new trial, but failed to renew the motion after sentencing had resulted in a final judgment.

Counsel also suggested that the jury be reassembled and instructed to deliberate anew. That proposal was rejected by both the trial court and the appellate court as contrary to Oregon law. As a final tact, counsel moved for a mistrial. That motion was denied by the trial court as untimely.

The Oregon intermediate appellate court also rejected the defendant’s claim that the failure to administer the jury oath was a structural error: We can conceive of no reason to treat a failure to administer the oath to the jury as more fundamental in nature — and thus, “structural” — than the jurors’ actual performance of their duties in conformance with that oath, or the jurors’ eligibility or competence to be jurors. In so observing we do not denigrate the significance of the jury’s oath or its value in “vindicating] a defendant’s fundamental constitutional rights to a fair trial before an impartial jury.” But neither do we elevate it above the other aspects of our trial ⁸² procedures that serve the same ends. The absence of the oath does not mean — at least not in any necessary way— that the defendant was unfairly tried. The oath does not stand alone as the sole procedure that guarantees that the jury will try the case based on the admissible evidence and the applicable law.

To the contrary, numerous additional mechanisms serve the same purpose, including but not limited to voir dire, peremptory juror challenges, precautionary instructions channeling the jury’s deliberations, the vigilance of an unbiased trial judge, and representation by competent counsel. Consequently, we conclude that defendant’s claim in this case should be held to the same standard that is applied to other “fair trial” objections, in particular those involving the qualifications of the jurors and the fairness or integrity of the jury’s deliberations. In the absence of a timely objection, the failure to administer an oath to the jury, without any other showing of juror misconduct or prejudice, will not serve as a ground for overturning an otherwise lawful verdict. A defendant may not obtain an automatic reversal of a conviction by raising an objection to the court’s failure to swear the jury only after an adverse judgment has been returned and the jury has been discharged.

Instead, such an objection, like others that also seek to ensure defendant’s fair trial interests, must be raised timely, and prejudice must be shown, for a defendant to be entitled to relief. Id. 41 P.3d at 428-29 (footnotes and citation omitted). Accord Sides v. State, 693 N.E.2d 1310,1312 (Ind.1998). We have found no Maryland case that addresses this point, nor have counsel referred us to any such authority.

However, we need not hold at this juncture that the complete failure to swear the jury panel as required by Rule 4-312(h) renders the jury’s verdict a nullity. “There is a strong presumption that judges and court clerks ... properly perform their duties.” Schowgurow, supra, 240 Md. at 126 , 213 A.2d 475 ; see also State v. Chaney, 375 Md. 168,181 , 825 A.2d 452 (2003). This presumption also applies to the trial court’s duty to be certain that the jury was sworn. ⁸³ In United States v. Pinero, 948 F.2d 698 (11th Cir.1991), the defendant urged a reversal of his conviction on the basis that the district court failed to administer the jury oath. The Eleventh Circuit rejected this challenge, primarily because the defendant failed to make an adequate record to support his allegation: Appellants must meet their burden of proving that the jury was not sworn before being permitted to take advantage of that fact. Suarez and Pinero offer this court no affidavits from attorneys, the court reporter, or anyone else present in the courtroom on February 1, 1990 to support their assertion that the jury did not receive its oath.

Instead, appellants direct our attention solely to the record. The mere absence of an affirmative statement in the record, however, is not enough to establish that the jury was not in fact sworn. In State v. Mayfield, 235 S.C. 11 , 109 S.E.2d 716 (1959), cert. denied, 363 U.S. 846 , 80 S.Ct. 1616 , 4 L.Ed.2d 1728 (1960) ... the Supreme Court of South Carolina held that the “[ajbsence of [an] affirmative statement in the transcript that the jury was sworn furnishes no factual support for appellant’s contention that it was not. Appellant’s statement that the jury was not sworn stands alone, and is, in our opinion insufficient to overcome the contrary presumption.” Mayfield, 109 S.E.2d at 723 .

(citations omitted). Id. at 700 (footnote omitted). Motion for New Trial Motions for a new trial are governed by Md. Rule 4-331. In his extensive opinion discussing the genesis and application of the motion for new trial in Isley v. State, 129 Md.App. 611, 674 , 743 A.2d 772 (2000), rejected on other grounds by Merritt v. State, 367 Md. 17, 24 , 785 A.2d 756 (2001), Judge Charles Moylan concluded by observing: At a hearing on a Motion for New Trial, the burden of persuading the trial judge that such a remedy is called for is on the defendant, as the moving party.

In the context of affirming the denial of a Motion for New Trial on the ⁸⁴ ground of newly discovered evidence, Chief Judge Bell concluded for the Court of Appeals in Argyrou v. State, 349 Md. 587, 609 , 709 A.2d 1194 (1998): As the proponent of the new trial motion, the petitioner had the burden of establishing ... newly discovered evidence. The petitioner simply failed to carry it. (Emphasis in original). As to the issue before us, it was then incumbent upon Harris to persuade the trial court that, in fact, the jurors had not been given an oath.

We believe the observations in Pinero to be persuasive. Harris offered no evidence at the motion hearing, nor did he even argue the point of the suggested non-swearing. After a brief argument on Harris’s assertion that voir dire was incomplete, defense counsel submitted on the other grounds, saying, “As to the other grounds, Your Honor, I would suggest they speak for themselves in the motion I filed.” Thereafter, the court said: The Jury was sworn. What [defense counsel is] talking about — I was trying to figure out what he was talking about there.

The Jury was sworn, but what happened is they came over on a day we actually didn’t start the trial until the next day. And I hadn’t even voir dired the Jury yet and we started over. He wanted me to swear — I didn’t know what he meant by it. But before the trial began, [the] Jury was sworn.

So, I think that’s what he ... was referring to. My memory is backed up by the file. I’m not sure of the date, but like the 28th versus the 29th, when the case began, you requested that I swear them ahead of time and this was before the Voir Dire took place. I couldn’t reach them that day.

We started the next day. That’s when the voir dire took place. That is when the Jury was sworn. (Emphasis added).

At the hearing on his motion for new trial, Harris might have presented testimony or affidavits from jurors, court staff, or others present at the time of jury selection or the com ⁸⁵ mencement of trial, to reflect a failure of the required oath. The record reveals that the recording of the trial was made by videotape. Surely the stenographer’s recording would have provided proof of the swearing, or lack of swearing, of the jurors. No such information was before the court, however.

Moreover, in denying the motion for a new trial, the trial judge found to the contrary, stating “that the evidence has been properly presented, ... the jury was sworn and that the motion for a new trial is denied.” 6 (Emphasis added.) See Carlisle v. State, 936 So.2d 415 , 422 ¶24 (Miss.App.2006) (although record did not contain references to reading of oath, record revealed references by judge to oath). While the record may not be sufficient to establish