Harris v. State

ZARNOCH, Judge. On March 5, 2008, Thomas B. Harris, appellant, was convicted by a jury in the Circuit Court for Baltimore County of second-degree depraved heart murder of Karim Cross. On May 5, 2008, the court sentenced Harris to fifteen years’ incarceration. On May 15, 2008, he timely appealed.

For the reasons set forth in this opinion, we reverse and remand. FACTS AND LEGAL PROCEEDINGS On the evening of August 12, 2006, Eric Sneed, Karim Cross, and some of their friends visited the Rush Hour Bar in Randallstown, Maryland. Before entering the bar, Sneed stayed outside to make a phone call. While standing in the parking lot “[r]ight outside the front door,” Sneed observed an “upset” man leave the bar.

Sneed saw the man pace back and forth, and then walk to a “champagne or gold” 1 vehicle, either ²³³ a “Trailblazer or a GMC Envoy,” and open the door of the vehicle. The man then “walked over to another group of guys” who “came out of the bar,” and then attempted to reenter the bar. When the upset man came to the bar’s entrance, he had an “exchange ... [o]f words” with the bar’s bouncer. Sneed also observed a “light purplish” Cadillac “with rims on it” pull into the parking lot, and caught a “glimpse” of the driver.

Sneed walked into the bar. Later that night, he saw the driver of the Cadillac talking with the upset man inside the bar. Sneed stayed at the bar for several hours and consumed three or four alcoholic drinks. He also consumed some beer earlier that afternoon.

Sneed left the bar when it closed, at approximately 1:40 a.m. on August 13, 2006. While walking towards his truck, he “heard arguing and a commotion going on that’s still at the front of the bar.” In his vehicle, Sneed turned to look at the disturbance because it had grown “louder and louder,” and saw Karim Cross “running to the middle of the parking lot like he was being chased” out of a “crowd of people.” Two men separated themselves from the crowd along with Cross. Sneed identified one of the men as the “upset man” he had seen earlier pacing in the parking lot, and identified the other man as Bland Gatewood. Sneed jumped out of his truck and “proceeded to go over there to see what was going on.” Sneed testified that Bland Gatewood “swung a punch” at Cross, but was uncertain whether the punch connected.

Sneed turned to look at the crowd, which included “people we [came] to the bar with,” and the onlookers were “basically standing around watching.” Sneed tried to “intervene in the middle,” but everybody was “just looking at [Sneed], like, you know, leave it alone.” Sneed saw Cross take two steps backward and fall, and saw that the victim had been stabbed in the stomach. Sneed saw the attacker “move something fast on [his] side.” The object was “shiny,” and Sneed believed it was a three-inch knife. Cross died from an approximately three-and-a-half inch deep stab wound to the abdomen. Sneed witnessed these events ²³⁴ from about twenty feet away, and admitted that there “wasn’t much light” and the events happened “really fast.” Sneed testified that he was “100 percent” certain that the man wielding the knife was the same upset man he witnessed earlier pacing in the parking lot.

The man was “dark-skinned,” “about 5'5” with a “medium, stocky build,” and had “no facial hair” and a “bald head.” Sneed testified that Bland Gatewood swung the punch at Cross, and did not have a knife. He saw the man with the knife run to the same vehicle to which he had walked earlier that evening. Sneed described to the police a portion of the vehicle’s tag number. Detective Phillip Marll investigated the partial tag number provided by Sneed, and discovered that it was similar to the license plate of a “beige colored” Chevrolet Trailblazer rented by Harris’s girlfriend and driven by him during the week of the murder.

The vehicle was returned to the rental agency on August 14, 2006, the day after the murder. Detective Marll also discovered that Harris’s cousin, Benjamin Scott, drove a blue Cadillac Concourse and met Harris at the bar that night. Sneed testified that photographs of those two vehicles produced by the State were “representative” of the cars he had observed in the parking lot. Benjamin Scott testified that when he first arrived at the bar, he was not allowed in because he did not have any identification.

Harris came out to “talk to the bouncer so [Scott] can get in.” Scott had asked Harris to get him a bottle of liquor, and Scott observed Harris go to his car and come back with a bottle. Scott told police detectives that Harris was stopped by the bouncer when he tried to re-enter, and the bouncer told him to “take it back to the car.” Scott testified that Harris put the bottle of liquor back in the car. Detective Marll interviewed Reginald White, the Rush Hour Bar’s bouncer, and asked him “whether [he] recalled an incident in which [he] told a customer that [the customer] couldn’t come back in the bar unless he put whatever he got from his vehicle back.” White indicated in a written statement to police that on the night of the murder he thought he saw an ²³⁵ upset man leave the bar and try to re-enter the bar with something in his pocket. White “didn’t let him back in.” During cross-examination, defense counsel asked White, “So under no circumstances did that person come back in the bar?” White answered, “I don’t think so.

Not to my knowledge.” 2 White picked Harris’s photo as the one that most closely resembled the man who left the bar and tried to reenter. At trial, White said that he did not recall having any “problems, arguments, or anything” with Harris. At the close of the State’s case, Harris moved for a judgment of acquittal, arguing that the evidence was insufficient to convict him. The court denied the motion.

The defense presented no evidence, and the court denied Harris’s renewed motion for judgment of acquittal. The jury acquitted Harris of second-degree specific intent murder, but convicted him of second-degree depraved heart murder. Harris appeals that conviction. QUESTIONS PRESENTED This appeal presents two questions: 1.

Did the trial court abuse its discretion when it refused to declare a mistrial after it failed to promptly disclose to the defendant a communication between a juror and the trial judge’s secretary? 2. Did the trial court err when it failed to enter a judgment of acquittal for appellant based on insufficiency of the evidence? 3 ²³⁶ DISCUSSION I. Communication With the Juror At trial, after voir dire was completed and the jury was empaneled and sworn, a juror indicated to the court that he had a question. The following discussion took place: THE COURT: Sir. THE JUROR: Now can I ask my question?

My grandmother went in the hospital. She’s 89 years old and it was last Wednesday. They don’t expect her to live. I think they don’t expect—she fell and punctured her lung and then they’re finding stomach fluids from where they were draining so they think she had a puncture in the stomach.

She was going in today for an operation, and they don’t expect her to live. I just don’t know if there will be a funeral. THE COURT: Okay. THE JUROR: She’s 89.

That was the only thing. If there’s no funeral, then I’m fine being her [sic]. ²³⁷ THE COURT: Right. Do you recall my asking you a question about your ability to serve? THE JUROR: I thought it was something else to it, like, because then you continued that thought.

THE COURT: All right. THE JUROR: Because I asked people around me should I go up there. THE COURT: Okay. What hospital is she in?

THE JUROR: Anne Arundel County. THE COURT: When was she admitted? THE JUROR: Last Wednesday. THE COURT: Thank you, sir.

Any questions? [PROSECUTOR]: No, sir. [DEFENSE COUNSEL]: Just, sir, that being concerned about your grandmother, would you have to leave, or would your energies and focus be on what’s going on with your grandmother or your family? THE JUROR: When they took my cell phone today, I was concerned because I lost contact. You know, I was waiting to hear, and, like I said, if something happens, I would want to go to the funeral. If I had a chance that they said it looked like it was the end coming, I would be like to be able to go before that [sic].

THE COURT: We can certainly provide you with a contact number to give your family so even though you don’t have a cell phone they could contact my chambers, and they’ll get a message to you immediately. THE JUROR: That works, if I can still go in the evening. If they call, they will come get me? THE COURT: Yes.

THE JUROR: Okay. THE COURT: Thank you so much. THE JUROR: I didn’t mean to— THE COURT: That’s okay. You can take a seat. ²³⁸ The evidentiary portion of the trial concluded two days later.

At about 1:45 p.m. on March 5, 2008, shortly after the jury began deliberating, that juror sent a note to the court, at which time the following exchange occurred: THE COURT: I have received another communication. This time from Juror No. 7 seated in Seat 6. It says, Judge, may I be excused from jury duty for family preparations? His grandmother passed away earlier today, but let me read to you what’s his message.

Judge, may I be excused from jury duty for family preparations? If you can exchange me for an alternate jury member without disrupting anything, that will be great. If it is a big deal, please discuss with me. Thank you.

He signs it. One of my staff was contacted by one of his family members to tell him about the death of his grandmother, and we inquired whether he would be able to continue, and he said he would be able to continue. That discussion took place prior to my discharging the alternates. Now, we have this letter. [DEFENSE COUNSEL]: ...

I wish I had known about the communication earlier because maybe we would have decided to go ahead and replace him anyway because, as you recall, when we were doing voir dire, he did seem to express some hesitation and concern that he could go and visit his grandmother at night, but he did have some concern that this could happen. I would say that I’m a little distraught that we didn’t know about it sooner so that I could—so we could have replaced him with an alternate, which would have been my suggestion. THE COURT: Of course, at the time he said he was fine to continue. [DEFENSE COUNSEL]: I know but we didn’t know anything about the communication. That’s what I’m trying to put on the record. ²³⁹ THE COURT: I didn’t either, I believe, until more recently- [DEFENSE COUNSEL]: My concern is that I don’t want him rushing to make a decision because he wants to leave.

I don’t know if we can get any of the alternates so on behalf of Mr. Harris in light of this I think that it’s unfair to ask this juror to continue, particularly when there’s been a death in the family. I would ask for a mistrial. THE COURT: All right. The judge’s secretary then stated on the record 4 what had taken place: [SECRETARY]: I’m Jennifer Stalfort, Judge Finifter’s secretary. [The juror]’s father called and informed me that his grandmother had just passed.

I asked—I thought he would like to speak to his son so I had his son speak to him and then I asked—it was a short conversation. He told his father that he would soon be finished he thought, and I asked him. When he was finished, I said, are you all right to continue? He said, yes, he was. [DEFENSE COUNSEL]: When did that communication happen? [SECRETARY]: Before lunch. [DEFENSE COUNSEL]: After closing argument? [SECRETARY]: [The juror], would probably know that.

I’m trying to think. Yes. Because he was in the jury room. He was in the jury room, but they hadn’t started to deliberate.

They weren’t all back. [DEFENSE COUNSEL]: But it was after they were discharged? THE COURT: No. Before they were discharged. Before he was discharged. The alternates. [DEFENSE COUNSEL]: No. But the jury had been discharged at that point.

THE CLERK: To get lunch. ²⁴⁰ [DEFENSE COUNSEL]: They went to get lunch; in other words, we were finished with everything here in the courtroom as far as closing arguments and instructions, and the jury had been discharged. They were allowed to go get lunch and were directed to bring it back. Once all of them were back, then they would begin their deliberations so I think the point was that they hád been discharged. THE COURT: Discharged. [PROSECUTOR]: Had they begun deliberating?

THE CLERK: No. They had not. In opposition to the defense’s request for a mistrial, the State argued that the juror had said that he could continue. Then, the following colloquy occurred: [DEFENSE COUNSEL]: But their [sic] note now says he’s not okay. THE COURT: It doesn’t say that. [DEFENSE COUNSEL]: Well, it says that he wants to get out of jury service.

THE COURT: It says, if you can exchange me for an alternate jury member without disrupting anything, that will be great. [DEFENSE COUNSEL]: So, he’s asking to be relieved. THE COURT: He’s saying, if you can exchange me for an alternate jury member without disrupting anything that would be great. Implying he’s fine otherwise. If it is a big deal, please discuss with me.

I don’t think he’s saying he can’t serve. The court did not declare a mistrial and, in response to the defense’s question whether the court would send anything back to the juror or respond to the juror’s note, the judge said, “I guess I should say something to him. I’ll just write, I cannot excuse you at this time. I cannot excuse you.” The jury continued deliberating.

At 4:30 p.m., the court reconvened to read a note sent by the jury at 4:24 p.m., stating that it agreed about count one—second-degree specific ²⁴¹ intent murder—but disagreed about count two—second-degree depraved heart murder. The prosecutor indicated that it had been “about four hours” since the jury began deliberating. Counsel agreed that the court should simply answer, “please continue to deliberate,” which the court did. Later that day, the jury reached a verdict, acquitting appellant of second-degree specific intent murder, but convicting him of second-degree depraved heart murder.

The transcript does not indicate the time that the verdict was rendered. Harris subsequently moved for a new trial, in part based on the juror-secretary communication. The court denied his motion. Appellant argues that the court abused its discretion when it refused to grant a mistrial after failing to promptly disclose the juror-secretary communication. 5 Maryland Rule 4—326(d) provides: The court shall notify the defendant and the State’s Attorney of the receipt of any communication from the jury pertaining to the action as promptly as practicable and in any event before responding to the communication.

All such communications between the court and the jury shall be on the record in open court or shall be in writing and filed in the action. The clerk or the court shall note on a written communication the date and time it was received from the jury. In Stewart v. State, 334 Md. 213, 222-23 , 638 A.2d 754 (1994), the Court of Appeals discussed the rule 6 : The court is obliged to notify the defendant and the State’s Attorney of the receipt of such communication before responding to it. “All such communications between the court ²⁴² and jury shall be on the record in open court or shall be in writing and filed in the action” (emphasis added). These prescriptions are mandatory, not directory____ * * The Court of Special Appeals explored Rule [4—826(d)] in Allen v. State, 77 Md.App. 537 , 551 A.2d 156 , cert. denied, 315 Md. 692 , 556 A.2d 674 (1989).

The intermediate appellate court held that the Rule requires full communication of the contents of a jury communication so that both parties can have input into the response. Id. at 545, 551 A.2d 156 . The court quoted from its Smith v. State, 66 Md.App. 603 , 505 A.2d 564 , cert. denied, 306 Md. 371 , 509 A.2d 134 (1986) that “while the rule expressly requires notice to the parties of any communication from the jury, its very spirit is to provide an opportunity for input in designing an appropriate response to each question in order to assure fairness and avoid error.” Allen, 77 Md.App. at 545 , 551 A.2d 156 . In Graham v. State, 325 Md. 398, 415 , 601 A.2d 131 (1992), we agreed with Allen that the spirit of the Rule is to provide relevant information to those most vitally concerned with the trial____ The defendant’s right to be notified of a communication from the jury before the court responds to the communication is rooted in the defendant’s constitutional right to be present at every stage of trial.

Taylor v. State, 352 Md. 338, 346, 350 , 722 A.2d 65 (1998) (citations omitted). A judge is required to notify the parties whether the judge “receives a communication from the jury or wishes to communicate with the jury.” Winder v. State, 362 Md. 275, 322 , 765 A.2d 97 (2001). Two important elements of Rule 4-326(d) are relevant in this case. First, the rule refers to the receipt of communication by “[t]he court” and “communications between the court ²⁴³ and the jury.” Here, the communication was between the trial judge’s secretary and the juror.

In Smith v. State, 64 Md.App. 625, 633 , 498 A.2d 284 (1985), this Court held that a judge’s communication to a party through his law clerk violated the prohibition on ex parte communications with a party in the case. Other courts have also held that rules pertaining to ex parte communication apply whether the communication is to the judge or the judge’s staff. See Kamelgard v. Am. Coll. of Surgeons, 385 Ill.App.3d 675 , 324 Ill.Dec. 282 , 895 N.E.2d 997, 1002 (2008) (noting that for the purpose of ex parte communication rules “the judge’s law clerk is an extension of the judge”); Martinez-Jones v. Dulce Indep.

Sch., No. CIV07-0703 JB/WDS, 2008 WL 2229472 , at ⁵, 2008 U.S. Dist. Lexis 42320, at ¹² (D.N.M. Mar. 5, 2008) (stating that ex parte communication prohibitions apply to communications “with the judge or judge’s staff’); McQuay v. State, 352 So.2d 1276 (Fla.Dist.Ct.App.1977) (holding it to be reversible error when a bailiff responded to a jury’s question about the possible effect of the jury’s failure to agree on a verdict and advised the jury of their duty to deliberate). We hold that for the purposes of Rule 4-326(d), the judge’s secretary is included within the meaning of “court.” Second, the Rule relates to communications “pertaining to the action.” 7 Graham v. State, 325 Md. 398, 415 , 601 A.2d 131 (1992). When considering whether this juror’s communication to the secretary pertained to the action, Stewart and several out of state cases are instructive.

In Stewart , the jury had begun deliberating in a criminal case when the judge was informed that “there was a problem” with one of the jurors. 334 Md. at 217 , 638 A.2d 754 . The ²⁴⁴ judge went to the jury room and was handed a note signed by a juror stating that she needed to talk to the judge. Id. The female juror was “upset and tearful” and told the judge outside the jury room that “she was nervous and upset and afraid she was going to say something she shouldn’t say to one of the other jurors.” Id.

Outside the presence of the defendant and counsel, the judge told the juror that he did not understand why she felt that she could not speak to another juror and that she should use her conscience in deciding how to handle disagreements. Id. “From her comments and from her attitude it seemed apparent [to the judge] there was a division of opinion among the jurors. So the judge asked her to go back and continue deliberating and exercise her best judgment as to how her duty should be discharged. She agreed to do that.” Id. at 217-18 , 638 A.2d 754 .

The Court of Appeals held that the judge’s communication pertained to the action because “[a] juror’s reluctance to continue to deliberate with the other jurors and separating from the other jurors by leaving the jury room cannot be divorced from the action.” Id. at 223-24 , 638 A.2d 754 . People v. Beeler, 9 Cal.4th 953 , 39 Cal.Rptr.2d 607 , 891 P.2d 153, 173-76 (1995), is somewhat similar to this case. In Beeler , during jury deliberations, a juror informed the court that his father had died, and the following was said on the record: THE COURT: Juror Coley called in this morning, indicated there was a death in his family. Other than that, no other formal message other than he expected to fly out of state at two o’clock in the afternoon today.

I asked the clerk to get hold of him and find out the particulars of it. Court called both counsel. Neither have honored their 20-minute call. They’ve gone to Westminster Court.

The court has been able to contact one of the parties, I believe, and they were beyond an hour limit. The court is going to cause the jury to begin deliberations again. I’m simply making a record of the information I’ve received from this juror, and that is that the family member that is ²⁴⁵ deceased is his father, they have a close relationship, he needs to be there, and he will be back—Monday? JUROR COLEY: Monday.

THE COURT: The court’s going to cause the jury to begin deliberations again and we’ll recess early for the convenience of this juror, sometime before noon. And after I speak to the attorneys, the probability is that I will not excuse this juror and will not place an alternate in his seat and will expect that we will begin deliberations again on Monday. So even if the attorneys do not show, that is the information that Mr. Coley will have and he will be required to come back on Monday, unless there’s some other severe family problem that you notify us of by phone. Okay?

JUROR COLEY: Okay. Id. at 173. Counsel arrived shortly thereafter and the court provided them with a transcript of the earlier conference between the court and the juror. Id.

Defense counsel objected to the court’s decision to not replace the juror, arguing that the jury would be pressured to reach a verdict that day, and objected to the judge’s ex parte communication with the juror. Id. Later that morning, the jury reached a verdict. Id. at 174.

Defense counsel reiterated his objection that the verdict had been coerced, but the court rejected the contention. Id. The court then queried the jury whether it was pressured to reach a verdict in order to allow the bereaved juror to leave, and the jury indicated it was not pressured. Id.

The Supreme Court of California held that the trial court did not err when it instructed the juror to continue deliberating. Id. at 174-75. The court further held that the judge’s communication with the juror did not violate the rules prohibiting ex parte communication, holding “[i]t is simply not error for a trial court to engage in a brief, administrative communication when informed of a death in a juror’s family. Reality and common sense dictate that a court be allowed to learn what has happened.” Id. at 175-76. ²⁴⁶ State v. Phillips, 508 S.W.2d 240 (Mo.Ct.App.1974), also appears similar to this case.

In Phillips , the Court of Appeals of Missouri addressed the following scenario: