Jenkins v. State

CATHELL, Judge. Marvin Jenkins, petitioner, seeks review of a judgment of the Maryland Court of Special Appeals affirming a trial judge’s dismissal of petitioner’s motion for a new trial. As relevant here, that motion had alleged, as grounds, an improper contact between a juror and a detective witness for respondent, the State of Maryland. After various pre-trial motions were heard, petitioner was tried by a jury from March 19th to March 30th, 2001.

Petitioner was convicted in the Circuit Court for Montgomery County on several counts stemming from an April 13, 2000 shooting. He was convicted of second degree murder of Steven Dorsey, Jr., use of a handgun in the commission of a crime of violence as a result of his actions in the shooting, and he was convicted of attempted first degree murder, attempted second degree murder and first degree assault on Michael Clark, a companion of Dorsey during the incident. 1 He was found not guilt of conspiracy to commit first degree murder. The trial judge sentenced petitioner to the following: thirty years imprisonment for the second degree murder conviction in respect to the victim Dorsey; a consecutive term of ten years imprisonment for the use of a handgun in the commission of a crime of violence conviction; a consecutive term of twenty years for the conviction of attempted first degree murder and a concurrent twenty-year sentence for first degree assault of Clark. 2 ²⁸⁸ On April 9, 2001, petitioner filed a motion for a new trial pursuant to Md. Rule 4-331(a), 3 including, as one ground, that there had been improper contact between a State’s witness and a juror during the trial causing prejudice to petitioner and thus precluding his right to a fair trial. It is only this issue that is before us.

The evidentiary hearing on the motion for a new trial was held on April 19, 2001, and counsel’s arguments on the same motion were heard on June 20, 2001. On July 13, 2001, the trial judge issued an order denying the motion for a new trial, finding that the State’s witness’ contact with a juror constituted improper conduct, but that the conduct, under the circumstances in this case, did not prejudice petitioner. Petitioner filed an appeal to the Court of Special Appeals. On September 4, 2002, the Court of Special Appeals affirmed the trial court’s ruling in denying the motion for a new trial.

Jenkins v. State, 146 Md.App. 83 , 806 A.2d 682 (2002). The Court of Special Appeals used an “abuse of discretion” standard to determine that, while the contact between the witness and the juror was improper, the trial court did not abuse its discretion in finding that the State properly rebutted any presumption of prejudice, if such a presumption even existed. 4 Id. at 116 , 806 A.2d at 701 . Petitioner then filed a Petition for Writ of Certiorari to this Court. Along with an answer to that petition, the State filed a Conditional Cross-Petition, to which petitioner replied.

The State subsequently submitted a reply brief to petitioner’s reply to the State’s Cross-Petition. On December 19, 2002, ²⁸⁹ this Court granted both petitions. Jenkins v. State, 372 Md. 429 , 813 A.2d 257 (2002). In his brief, petitioner presents one question for our review: “Did the trial judge err in refusing to grant Petitioner’s motion for a new trial after it was ascertained that one of the jurors engaged in ex parte communications with a crucial state’s witness during the trial?” Respondent presents this Court with two questions: “1.

Did the Court of Special Appeals properly affirm the lower court’s refusal to grant Jenkins’s motion for new trial? “2. Has Supreme Court precedent eviscerated the holding of Remmer v. United States, 347 U.S. 227 , 74 S.Ct. 450 , 98 L.Ed. 654 (1954), that a presumption of prejudice arises when improper communication with a juror occurs?” We hold that denial of petitioner’s motion for a new trial was a clear abuse of discretion under the specific egregious circumstances in the case sub judice, where, during a recess in a criminal trial, both the juror and the State’s detective witness clearly ignored the trial court’s orders prohibiting interaction between jurors and witnesses, where the juror not only intentionally sought out interaction with the detective during a weekend religious retreat, but, after such retreat, went to lunch with the detective while the trial was still pending and where they discussed personal details of their lives, 5 and the State’s detective witness drove the juror to his car in her own personal vehicle. Regardless of whether details of the ongoing trial were discussed, personal and prolonged contact as occurred in this case not only interjects an inherent prejudice to petitioner in the form of possible bias in favor of the State’s case, but also creates an appearance of serious impropriety and causes subsequent serious harm to the perception of the integrity of the jury process itself. ²⁹⁰ I. Facts A. Background Facts On April 13, 2000, Michael Clark, Stephen Dorsey, Jr. and several friends were spending the day smoking PCP and marijuana, when, after nearly six hours of using drugs, Clark briefly blacked out. Later, at approximately 8:40 p.m., the group went to the home of Sean Riley and continued to smoke PCP.

Clark admitted to being under the influence' of drugs to the extent that he needed assistance when walking after this session of using drugs. After leaving Riley’s home with Dorsey, walking up the street and vomiting, Clark alleged that he became more sober. Clark testified that at approximately 11:15 p.m., two men, unknown to Clark at the time, approached him and Dorsey while they were walking near the comer of Spring and Douglas Streets in the Lincoln Park area of Montgomery County. One of the men, later identified as David Barnett, a co-defendant of petitioner, informed Dorsey that Barnett was looking for him.

Dorsey responded by saying, “I still got that for you.” Clark stated that the other man, the petitioner, walked to a parked car and Barnett pulled out a gun and started shooting. Clark fled. ' After unsuccessfully attempting to find assistance, Clark returned to the scene of the shooting and saw Dorsey laying on the ground. The police soon arrived and Officer William Nierberding was unable to immediately procure information from the “emotionally upset” Clark. Clark, however, soon gave a brief description of the two assailants and was placed in the backseat of a police cruiser where Detective Patricia Pikulski interviewed him for approximately 45 minutes. 6 ²⁹¹ Detective Pikulski testified that Clark was emotional and “somewhat evasive” with his responses to her questions.

Clark told her that he and Dorsey were not walking together and that he could not hear the conversation between the two men who approached Dorsey. Detective Pikulski testified that Clark was coherent and did not appear to be under the influence of drugs. Later, however, Clark changed this story and testified that he did overhear the conversation and said that he lied to the police because he was afraid of the police due to the fact that he was high on drugs. Barnett and petitioner were tried separately for their actions related to this shooting.

B. Witness/Juror Interaction The Petition to this Court stems from an extensive non-incidental, improper contact between a juror and Detective Pikulski 7 during the weekend of March 23rd and 24th, 2001. Detective Pikulski was called as a State witness and testified in petitioner’s trial on Wednesday, March 21, 2001. In addition to her testimony, the defense marked her notes, taken during her interview with Mr. Clark immediately after the shooting, as an exhibit and questioned her about them. On redirect examination, those notes were read into the record as evidence.

After she concluded her testimony, the trial court stated the following: “You may step down and ... you are subject to the subpoena but you may leave. There is a rule on witnesses so don’t discuss your testimony with any other witness or permit any other witness to discuss their testimony with you. We will notify you if we need you at a future time.” On April 4, 2001, after the jury had issued their verdict in petitioner’s case and after the trial court had accepted its verdict, Detective Pikulski had reason to be present in the State’s Attorney’s Office for a matter unrelated to petitioner. While there, Detective Pikulski saw the prosecutor in petition ²⁹² er’s case and told her, during a casual conversation, that she had contact with Mr. McDonald, 8 a juror, at a religious retreat during the course of the trial.

The State’s attorney immediately contacted the court and defense counsel. The next day, six days after the jury convicting petitioner rendered its verdict and that verdict was accepted and the jury discharged, an emergency hearing took place. On April 19, 2001, the trial court heard testimony from Detective Pikulski and Juror McDonald. 9 They testified regarding the extensive contact they had during and immediately following a weekend religious retreat in Virginia that the two had attended while the proceedings against petitioner were in mid-trial. Juror McDonald testified that he attended a small religious retreat, i.e., 25-30 people were in attendance, from Friday evening, March 23, 2001, until Saturday afternoon, March 24, 2001.

Juror McDonald said that on Friday evening he recognized Detective Pikulski from the trial and first attempted to avoid contact with her. Later, in violation of the court’s order, he approached the Detective and said, “Look, you don’t know who I am, but I’m a juror in a case that you testified in, and I can’t have any dealings with you,” 10 to which Pikulski later replied, “Oh, did you, you know, did you find him guilty?” Mr. ²⁹³ McDonald testified that he thought this comment to mean that Detective Pikulski thought that he was a juror from a different, completed trial and that he then told her that the trial remained in progress. ²⁹⁴ Mr. McDonald said that the two did not discuss the matter further, although in further violation of the court’s order they continued the contact, discussing only general, non-trial, topics. The following day, he stated that the two, unintentionally, 11 sat next to each other during the seminar. After the early completion of the seminar, the two, at McDonald’s invitation, went to lunch together where they were alone for most of the meal. 12 According to them, their conversation over lunch focused on Mr. McDonald’s employment in environmental matters and Pikulski’s son’s schooling in chemistry and interest in the environment.

Following their lunch, Mr. McDonald testified that Detective Pikulski offered to give him a ride to his car, which was being repaired at a dealership approximately one-half of a mile away. He stated that after the Detective took him to his car, the two had no more contact. Detective Pikulski’s account of her interaction with Mr. McDonald was similar. She testified that she arrived at the religious retreat in Virginia at approximately 6:50 p.m. on Friday evening, March 23, 2001.

She stated that within a short period of time after her arrival she engaged in a conversation with Mr. McDonald. After several minutes, Mr. McDonald walked away only to return to state that he was “on the jury.” Detective Pikulski stated that she replied with something similar to “Oh, you’re one of the ones that convicted him?” She said that McDonald replied by saying, “I can’t talk about it.” Detective Pikulski then inquired whether Mr. McDonald was on a current active jury, to which he replied in the affirmative. She then stated, “You’re right. We can’t talk about this.” She stated that the seminar ended around 9:30 that evening. ²⁹⁵ At 9:00 a.m. the following morning, the seminar resumed and concluded at approximately 1:30 p.m., earlier than expected.

According to Detective Pikulski, she briefly talked to Mr. McDonald, who invited her to eat lunch with him. She agreed and the two ate lunch at a nearby restaurant for approximately an hour and a half, where each paid for their own meals. Detective Pikulski testified that the topic of conversation included the sharing of personal information about each other and their families. She also learned that Mr. McDonald volunteered at a soup kitchen where she attends Sunday school.

After lunch, Detective Pikulski said that she gave Mr. McDonald a ride to his car, which she said was about two miles away. On Monday, March 26, 2001, while the trial was ongoing, Detective Pikulski informed another detective, Detective Pen-rod, about her contact with Mr. McDonald, yet neither Juror McDonald, Detective Penrod or Detective Pikulski brought the matter to the attention of the court at that time.

II

Discussion A. Standard of Review This Court has very recently discussed the standard of review of a trial judge’s denial of a motion for a new trial in the case of Campbell v. State, 373 Md. 637 , 821 A.2d 1 (2003). In Campbell , in the context of a motion for a new trial based on new evidence, we stated: “[Djenials of motions for new trials are reviewable on appeal and rulings on such motions are subject to reversal when there is an abuse of discretion. Mack v. State, 300 Md. 583, 600 , 479 A.2d 1344, 1352 (1984); Wernsing v. Gen. Motors Corp., 298 Md. 406, 420 , 470 A.2d 802, 809 (1984).

We have noted that the discretion afforded a trial judge ‘is broad but it is not boundless.’ Nelson v. State, 315 Md. 62, 70 , 553 A.2d 667, 671 (1989). The abuse of discretion standard requires a trial judge to use his or her discretion soundly and the record must reflect the exercise of that discretion. Abuse occurs when a trial judge exercises discretion in an ²⁹⁶ arbitrary or capricious manner or when he or she acts beyond the letter or reason of the law. Ricks v. State, 312 Md. 11, 31 , 537 A.2d 612 (1988)....

In the context of the denial of a motion for a new trial in a criminal case, we have noted that ‘under some circumstances a trial judge’s discretion to deny a motion for a new trial is much more limited than under other circumstances.’ Merritt v. State, 367 Md. 17, 29 , 785 A.2d 756, 764 (2001). We stated, ‘it may be said that the breadth of a trial judge’s discretion to grant or deny a new trial is not fixed or immutable; rather, it will expand or contract depending upon the nature of the factors being considered, and the extent to which the exercise of that discretion depends upon the opportunity the trial judge had to feel the pulse of the trial and to rely on his own impressions in determining questions of fairness and justice.’ Wernsing, 298 Md. at 420 , 470 A.2d at 802 .” Id. at 665-66, 821 A.2d at 18 . Petitioner argues that the Court of Special Appeals erred in failing to reverse the trial court’s order denying his motion for a new trial because that court utilized the abuse of discretion, rather than a harmless error, standard of review. 13 Petitioner relies on the recent case of Merritt v. State, 367 Md. 17 , 785 A.2d 756 (2001), a case where this Court applied a harmless error standard of review where a court clerk erroneously submitted documents to the jury that had not been admitted into evidence. The State agrees that Merritt applies, but it proffers a narrower interpretation of Merritt under the facts in the case sub judice, which would require the use of an abuse of discretion, not harmless error, standard. ²⁹⁷ In Merritt , Judge Eldridge, writing for this Court, discussed in great detail the history of this Court’s cases that have reviewed a trial court’s denial of a motion for a new trial.

Id. at 24-31 , 785 A.2d at 760-65 . The defendant in Merritt was convicted of several offenses related to a murder. Two days after the verdict, the State learned that a defense exhibit, which had been marked for identification but had not been admitted into evidence, was mistakenly submitted to the jury during the deliberative stage by the court clerk. The defendant moved for a new trial, which was denied by the trial judge.

Petitioner relies on the following language of Merritt , where the Court ultimately held, in reference to the proper standard of review in that case, that: “some denials of new trial motions are reviewable under a standard of whether the court erred rather than under an abuse of discretion standard. Accordingly, when an alleged error is committed during the trial, when the losing party or that party’s counsel, without fault, does not discover the alleged error during the trial, and when the issue is then raised by a motion for a new trial, we have reviewed the denial of the new trial motion under a standard of whether the denial was erroneous. Also, in these criminal cases where we concluded that error did occur, the matter of prejudice was reviewed under the harmless error standard of Dorsey v. State, 276 Md. 638 , 350 A.2d 665 (1976).” Id. at 30-31, 785 A.2d at 764-65 (some citations omitted). Petitioner argues, since the errors in the both the case sub judice and in Merritt occurred at trial, were not the fault of the parties and were not discovered until after the return of the jury’s verdict, that this case falls under the same harmless error standard used in Merritt .

The State, however, proffered that there is a crucial distinction between Merritt and the present case. As the State points out, had the clerk’s error in Merritt been discovered while the trial was still in progress and the defense objected and the trial court nevertheless allowed the inadmissible defense exhibit to go to the jury at the close of the evidentiary stage, the court’s ruling, under those circumstances, would be ²⁹⁸ reviewed under a harmless error standard, not an abuse of discretion standard. We stated in Merritt : “[The defense exhibit] was submitted to the jury as if it had been admitted into evidence. The substance and result of the clerk’s action was essentially the same as the action of a trial judge in erroneously admitting an exhibit into evidence.

The only real difference would be that, in the latter situation, defense counsel would have been aware of the action and would have had an opportunity to object.” Id. at 32 , 785 A.2d at 765 (alteration added). The State argues that we reviewed Merritt , therefore, under the same error standard that would have been utilized if the inadmissible evidence had been admitted during the trial. The State’s position appears to be that, in Merritt , we did not use the stricter standard of review generally used for review of motions for new trials, the abuse of discretion standard, only because the failure to preserve the issue was due to no fault of the defense and the lower standard would have been used if the error occurred during the trial itself. Accordingly, it appears to be the State’s position that the rule to be deduced from Merritt is that the standard of review used, in cases where the error occurs during the course of the trial but, not due to any fault of the moving party, and is not discovered until after a verdict is rendered, is the same standard under which the error would have been reviewed if it had been discovered during the trial.

The problem in this case, unlike Merritt , does not involve an error in respect to the admissibility of evidence. It involves the matter of whether a juror was improperly influenced by improper contacts and whether, if so, that juror improperly influenced other jurors. And finally, the present situation concerns whether the trial court had lost the power to make sufficient inquiry once the verdict had been rendered and accepted and the jury excused. Moreover, in this case there is no issue of evidence admissibility.

If the juror/witness misconduct and been discovered during the trial, petitioner could have either moved to remove the juror and replace him with an alternate juror or moved for a mistrial. The trial ²⁹⁹ court’s decision involving either of these courses of action under those circumstances would have been reviewed under an abuse of discretion standard. See Ware v. State, 360 Md. 650, 666 , 759 A.2d 764, 772 (2000)(criminal defendants are entitled to a fair and impartial jury under the United States Constitution and Maryland law and any decision to exclude a juror for cause is left to the discretion of the trial judge, and thus will not be disturbed unless an abuse of discretion occurred). Thus, the standards of review in Merritt and in this case are different. 14 We will review the trial judge’s denial of petitioner’s motion for a new trial in the case sub judice under an abuse of discretion standard.

B. Juror Misconduct A criminal defendant’s right to have an impartial jury trial is one of the most fundamental rights under both the United States Constitution and the Maryland Declaration of Rights. Inherent in both documents are the paramount notions of justice and fair process during criminal proceedings. Specifically, the Sixth and Fourteenth Amendments to the United States Constitution and Article 21 of the Maryland Declaration of Rights require impartiality and fairness. The Sixth Amendment states: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed; which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.” [Emphasis added.] Article 21 of the Maryland Declaration of Rights similarly states: ³⁰⁰ “Rights of accused; indictment; counsel; confrontation; speedy trial; impartial and unanimous jury. “That in all criminal prosecutions, every man hath a right to be informed of the accusation against him; to have a copy of the Indictment, or charge, in due time (if required) to prepare for his defence; to be allowed counsel; to be confronted with the witnesses against him; to have process for his witnesses; to examine the witnesses for and against him on oath; and to a speedy trial by an impartial jury, without whose unanimous consent he ought not to be found guilty.” [Emphasis added.] Additionally, this Court has acknowledged that the Fourteenth Amendment to the United States Constitution 15 is an important tool in ensuring the impartiality of juries.

In Couser v. State, 282 Md. 125, 138 , 383 A.2d 389, 396-97 (1978), we said: “It is true, of course, that the due process clause of the fourteenth amendment and Article 21 of the Maryland Declaration of Rights guarantee the right to an impartial jury to an accused in a criminal case; these constitutional guarantees do not, however, insure that a prospective juror will be free of all preconceived notions relating to guilt or innocence, only that [the juror] can lay aside his impressions or opinions and render a verdict based solely on the evidence presented in the case. See Irvin v. Dowd, 366 U.S. 717 , 81 S.Ct. 1639 , 6 L.Ed.2d 751 (1961); Newton v. State, 147 Md. 71 , 127 A. 123 (1924); Garlitz v. State, 71 Md. 293 , 18 A. 39 (1889).” [Alteration added.] See also Ware, 360 Md. at 670 , 759 A.2d at 774 . In summary, we have long recognized that these provisions of the United States Constitution and the Maryland Declaration of Rights guarantee that a criminal defendant requesting a trial by jury will be tried fairly by an impartial jury. See Evans v. State, 333 Md. 660, 668 , 637 A.2d 117, 121 (1994); see also Turner v. Louisiana, 379 U.S. 466, 471-72 , 85 S.Ct. 546, 549 , 13 L.Ed.2d ³⁰¹ 424, 428 (1965); Irvin v. Dowd, 366 U.S. 717, 722 , 81 S.Ct. 1639, 1642 , 6 L.Ed.2d 751, 755 (1961) (in a case that overturned a state conviction where the process was corrupted by extensive press coverage, the Supreme Court stated, “the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, ‘indifferent’ jurors.

The failure to accord an accused a fair hearing violates even the minimal standards of due process”). It has long been held that, in a jury trial, private, intentional communications and/or contacts between jurors and witnesses are generally improper, and convictions in such cases are subject to reversal unless the contacts are proven to be nonprejudicial to the defendant. See Mattox v. United States, 146 U.S. 140 , 13 S.Ct. 50 , 36 L.Ed. 917 (1892). Such contacts raise fundamental concerns on whether the jury would reach their verdict based solely upon the evidence presented at trial or whether it would be improperly influenced by the inappropriate contacts.

See Turner, 379 U.S. at 472 , 85 S.Ct. at 549 , 13 L.Ed.2d at 429 (stating, “The requirement that a jury’s verdict ‘must be based upon the evidence developed at the trial’ goes to the fundamental integrity of all that is embraced in the constitutional concept of trial by jury”)(referencing Sinclair v. United States, 279 U.S. 749, 765 , 49 S.Ct. 471, 476 , 73 L.Ed. 938, 946 (1929)); see also Patterson v. Colorado, 205 U.S. 454, 462 , 27 S.Ct. 556, 558 , 51 L.Ed. 879 (1907)(“The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print”). Once misconduct or improper contact is found, the United States Supreme Court has even recognized that some such juror contacts with third parties and/or misconduct can reach a level of being presumptively prejudicial to a defendant, thus placing the burden of showing harmlessness on the State. In Remmer v. United States, 347 U.S. 227, 229 , 74 S.Ct. 450, 451 , 98 L.Ed. 654, 656 (1954), the Supreme Court stated: “In a criminal case, any privóle communication, contact, or tampering directly or indirectly, with a juror during a ³⁰² trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of known rules of the court and the instructions and directions of the court made during the trial, with full knowledge of the parties. The presumption is not conclusive, but the burden rests heavily upon the Government to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to the defendant.

Mattox v. United States, 146 U.S. 140, 148-150 , 13 S.Ct. 50, 52-53 , 36 L.Ed. 917 ; Wheaton v. United States, 8 Cir., 133 F.2d 522, 527 . “... A juror must feel free to exercise his functions without the F.B.I. or anyone else looking over his shoulder. The integrity of jury proceedings must not be jeopardized by unauthorized invasions. The trial court should not decide and take final action ex parte on information such as was received in this case, but should determine the circumstances, the impact thereof upon the juror, and whether or not it was prejudicial, in a hearing with all interested parties permitted to participate.” [Emphasis added.] In that case, a juror was contacted by an unknown person suggesting that the juror could profit in finding a verdict in favor of the petitioner in that case.

The juror immediately reported the incident to the court during the trial itself and the court, without the defendant’s knowledge of the incident, held an ex parte hearing. Additionally, the Federal Bureau of Investigation launched an investigation into the incident and subjected the jurors to the investigation during the trial. The Supreme Court ultimately held that the situation was presumptively prejudicial and that a hearing in which all the parties were allowed to participate should take place on remand. While this Court has not had occasion to interpret the Remmer presumption of prejudice, the Court of Special Appeals'has applied it in the case of Eades v. State, 75 Md.App. 411 , 541 A.2d 1001 (1988), and Allen v. State, 89 Md.App. 25 , 597 A.2d 489 (1991), both of which were decided after Smith ³⁰³ but before Olano. 16 In Eades , during a weekend recess, a juror violated the court’s instruction not to discuss the case with third persons when she asked her husband (not a witness), who was an Assistant United States Attorney for the District of Columbia, an evidentiary question.

After the verdict had been initially rendered but before it had been accepted in Eades , the defendant requested that the trial court poll the jury and ask each juror, individually and out the presence of the other jurors, whether, over the weekend recess, the juror had discussed the facts or substance of the case with anyone. At this point the court retained the power to not accept the verdict and direct the jury to continue deliberations. The trial court’s questioning of juror Skinner, the juror whose conduct was in question in Eades , went as follows: “MRS. SKINNER: No, I did not.

At one point I asked my husband [an Assistant United States Attorney for the District of Columbia] whether a statement — because you kept saying — why she could say-it was okay for her to say it, T knew I had been caught,’ and my husband said that was a spontaneous utterance. THE COURT: Okay. MS. SKINNER: — hearsay.

MR. MONOHAN (Defense Counsel): I do not know if the Court wants me to ask the juror any questions. THE COURT: No. All right. Thank you, ma’am.

Other than that one statement, nothing substantively about the facts or how the jury was standing? MS. SKINNER: No.” [Footnote omitted.] Eades, 75 Md.App. at 415 , 541 A.2d at 1003-04 (alteration added). After the completion of the individual questioning of each juror, the trial court harkened them to their verdict and ³⁰⁴ the jurors all agreed that the verdict was correct.

The trial court denied the defendant’s motion for a new trial, reasoning that Juror Skinner’s question “was all but innocuous.” Id. at 416 , 541 A.2d at 1004 . In discussing whether the Remmer presumption of prejudice standard applied in Maryland, Judge Karwacki, writing for the Court of Special Appeals, stated: “Maryland appellate courts have not had occasion to decide the legal standards for evaluating the effect of an improper communication between a juror and a person who is unrelated to the judicial proceeding.[ 17 ] The standards that have been applied to improper communications between the trial judge and the jury, made outside the defendant’s presence, are instructive. Where the record affirmatively shows that a criminal defendant was prejudiced by the improper communications by the trial judge with the jury, that error requires reversal of the conviction. La Guardia v. State, 190 Md. 450, 458 , 58 A.2d 913 (1948).[ 18 ] Also, if the record discloses an improper communication but does not show whether the error prejudiced the defen ³⁰⁵ dant, prejudice will be presumed requiring reversal.[ 19 ] Id. at 458 , 58 A.2d 913 .

But when the record affirmatively shows that a judge’s improper communication with the jury out of the presence of the defendant was not prejudicial or had no tendency to influence the verdict of the jury, reversal is not required. Id. at 458 , 58 A.2d 913 ; see also Midgett v. State, 216 Md. 26, 36-37 , 139 A.2d 209 (1958); Smith v. State, 66 Md.App. 603, 624 , 505 A.2d 564 , cert. denied, 306 Md. 371 , 509 A.2d 134 (1986); Campbell v. State, 12 Md.App. 637, 641 , 280 A.2d 292 (1971); Winegan v. State, 10 Md.App. 196, 203 , 268 A.2d 585 (1970).... “In Hitchcock v. State, 213 Md. 273, 285 , 131 A.2d 714 (1957), the Court of Appeals held that a trial court did not abuse its discretion in denying the defendant’s motion for a new trial, which was based on the affidavit of a spectator at the trial who had observed two members of the jury engaged in a discussion with the prosecutor during a recess. The Court did not presume that this discussion was prejudicial, but instead affirmed the trial court that the conversation was [not] in any way connected with the case. Id. at 285 , 131 A.2d 714 .

But in Oliver v. State, 25 Md.App. 647, 650 , 334 A.2d 572 (1975), we held that an improper communication between a bailiff and deliberating jurors gave rise to a ‘spectre of prejudice.’ “We mil assume that the Supreme Court’s holding in Remmer as to the presumptively prejudicial effect of any ³⁰⁶ private communication with a juror concerning a matter pending before the jury remains the law. Nevertheless, we hold that the trial court in the case sub judice did not abuse its discretion in denying appellant’s motion for a new trial, because the inquiry of the trial court and the juror’s response thereto effectively overcame the presumption operating in appellant’s favor.” Eades, 75 Md.App. at 422-24 , 541 A.2d at 1007-08 (emphasis added)(alteration added). In holding that the presumption of prejudice had been rebutted, the court cited the relatively brief discussion that the juror had with her husband, her responses to the trial court’s questioning, that the conversation was not “inherently suspect” and the fact that the improper contact merely dealt with an evidentiary problem unrelated to the question of guilt. The court concluded by stating, “Because the presumption that the improper juror communication was prejudicial was effectively overcome, appellant was not deprived of a fair trial.

We therefore hold that the court did not abuse its discretion in denying appellant’s motion for a new trial.” Id. at 425 , 541 A.2d at 1008 . It is important to note that the juror’s husband in Eades did not have any interest in the outcome of that case. He was a prosecutor in another jurisdiction. In the case sub judice, the juror was in extensive contact with a prosecution witness still subject to recall in the middle of the trial.

In Eades , the trial court still had the power to act to mitigate any impropriety prior to accepting the verdict. In the present case it did not. In Allen , after the jurors retired to consider the evidence, a co-defendant ate breakfast with a dismissed alternate juror and implicated himself and cleared his brother of some of the charges against him. The alternate juror, in turn, relayed this" information to a sitting juror during a recess in the jury’s deliberations.

Upon recommencement of deliberations, the sitting juror immediately informed the foreperson of the incident, who promptly reported it to the trial court. After conducting a voir dire of the affected jurors, the trial court denied the defendants’ motion for mistrial. After finding that the co-defendant deliberately acted in a manner to cause the ³⁰⁷ jury taint, which, in and of itself may have been cause to dismiss the motion, the intermediate appellate court held: “ ‘It is well established in Maryland that in determining whether jury contact is prejudicial, a trial court must balance the ‘probability of prejudice from the face of the extraneous matter in relation to the circumstances of the particular case.’ Harford Sands, Inc. v. Groft, 320 Md. 136, 138-39 , 577 A.2d 7 (1990) (quoting Wernsing v. General Motors Corp., 298 Md. 406, 411 , 470 A.2d 802 (1984)). Where the record affirmatively shows prejudice by improper communications, the error requires reversal; but where the record affirmatively shows no prejudice, reversal is not required.

See Eades v. State, 75 Md.App. 411, 422-23 , 541 A.2d 1001 , cert. denied, 313 Md. 611 , 547 A.2d 188 (1988). See also Smith v. Phillips, 455 U.S. 209, 217 , 102 S.Ct. 940, 946 , 71 L.Ed.2d 78 (1982) (due process does not require a new trial every time a juror has been placed in a potentially compromising situation). If the record does not show whether the error prejudiced the defendant, prejudice is presumed, and the burden falls on the state to rebut the presumption of harm. Id.; see Remmer v. United States, 347 U.S. 227, 229 , 74 S.Ct. 450, 451 , 98 L.Ed. 654 (1954).

The decision as to whether the State has met this burden is committed to the trial court’s discretion and, like other motions for mistrial or new trial, will be reversed only upon a finding of abuse of that discretion. Harford Sands, 320 Md. at 146 , 577 A.2d 7 . See also Joseph F. Hughes & Co., Inc. v. Stockhausen, 212 Md. 559, 563 , 129 A.2d 844 (1957) (question as to whether contact with jurors requires a new trial is ‘left to the sound discretion of the trial court, whose decision will only be disturbed in those cases where there has been a plain abuse of discretion, resulting in palpable prejudice’). “Here, the affected jurors made absolutely no attempt to hide the extraneous information. Rather, they promptly and discreetly reported it to the trial judge.

The judge then conducted a thorough and careful voir dire on the issue. He asked both jurors if the extrinsic information ‘in ³⁰⁸ any way affected (their) deliberations’ and if they could still be ‘fair and impartial.’ Both jurors stated that their deliberations would not be affected by the extrinsic evidence and that they could remain fair and impartial. Both also testified that no other jurors had learned of the extrinsic information. Because the trial judge ‘has a unique opportunity to observe the jurors during trial,’ Dickson v. Sullivan, 849 F.2d 403, 405 (9th Cir.1988), we are unwilling to second guess the trial judge’s conclusion that the jurors in this case could legitimately continue their deliberations.

Accordingly, we hold here, as we did in Eades v. State, 75 Md.App. at 423-24 , 541 A.2d 1001 , that the trial judge did not abuse his discretion in denying the motions for mistrial because the judge’s inquiry and the jurors’ responses thereto effectively overcame the presumption that the jury’s deliberations would be prejudiced by the extrinsic evidence.” Allen, 89 Md.App. at 46-48 , 597 A.2d at 499-500 (footnotes omitted)(emphasis added). The court applied the Remmer presumption, but at the relevant point below the trial court still had the power and opportunity to protect the impartiality of the jurors. The Court of Special Appeals subsequently found that the State had rebutted that presumption due, in significant part, to the facts that, unlike the case at bar, the jurors committed no misconduct, i.e., they did not affirmatively disobey the trial court’s order, the two jurors immediately reported the incident before the jury reached a verdict and the trial court was able to conduct a thorough voir dire of the affected jurors (in which both jurors indicated that the improper contact would not affect the future impartiality of their deliberations) prior to the rendering of the verdict. Perhaps even more important, the incidents were brought to the trial court’s attention while it still had the power to assure itself that the two jurors could continue fair and impartial deliberations.

In the present case, the verdict was in and Maryland Rule 5-606 20 prohibited inquiry into the verdict or into the respective jurors’ motives or impartiality. There simply is no ³⁰⁹ way in a specific case for the trial court in that case to meaningfully investigate the matter of juror motives and impartiality during jury deliberations after the verdict is in and accepted. Had the contacts in the case sub judice, like the contact in Allen , been brought to the trial court’s attention prior to verdict, the trial court might have been able to determine whether the jurors would be able to continue to be impartial. Once a verdict is rendered, however, the focus changes from whether a juror could be impartial in the future to whether a juror has been impartial in the past.

To overcome the presumption of prejudice when the verdict has already been rendered and the court lacks the power to inquire as to individual jurors’ participation in deliberations, is much more difficult given the constraints on attacking the sanctity of jury deliberations and verdicts. There were three alternate jurors chosen at the outset of the case sub judice. At the time this case went to the jury, on March 28, 2001, the alternate jurors were available to potentially replace Juror McDonald. All original 12 jury members partook in the entire trial and were available to commence deliberations, thus all the alternates were excused on March 28, 2001.

The State contends in its Cross-Petition that the Remmer presumption of prejudice, and any subsequent reliance on it by the Court of Appeals, has been eroded by the Supreme Court’s subsequent cases of Smith v. Phillips, 455 U.S. 209 , 102 S.Ct. 940 , 71 L.Ed.2d 78 (1982), and United States v. Olano, 507 U.S. 725 , 113 S.Ct. 1770 , 123 L.Ed.2d 508 (1993). 21 In Smith, the Supreme Court reversed a lower court’s finding of a presumption of prejudice where a juror had applied to work in the office of the prosecutor during the trial. After the verdict had been rendered and accepted, during the state ³¹⁰ hearing in the criminal case concerning the alleged improper juror misconduct, the following facts, inter alia, were elicited: “After being selected and sworn as a juror on September 28, Mr. Smith lunched with Criminal Court Officer Rudolph Fontaine, who had attended the John Jay College of Criminal Justice with Mr. Smith’s wife. They discussed jobs in law enforcement. Mr. Fontaine told Mr. Smith of opportunities for persons with investigative backgrounds in the District Attorney’s office.

Mr. Smith evinced interest.” People v. Phillips, 87 Misc.2d 613, 617 , 384 N.Y.S.2d 906, 909 (1975). Although Mr. Fontaine was not involved in the trial proceedings for which Juror Smith was a sitting juror, this conversation led to Smith sending his employment application to the District Attorney’s Office, the prosecution’s office, during the course of the trial. Mr. Smith’s action in sending an application for employment to the District Attorney’s Office during the trial was the alleged misconduct in Smith. The Supreme Court, in Smith, held that it was improper to presume prejudice in that situation, as the pre-trial voir dire and the post-trial hearing were sufficient to protect the defendant’s rights.

The Court said: “These cases demonstrate that due process does not require a new trial every time a juror has been placed in a potentially compromising situation. Were that the rule, few trials would be constitutionally acceptable. The safeguards of juror impartiality, such as voir dire and protective instructions from the trial judge, are not infallible; it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote. Due process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen.

Such determinations may properly be made at a hearing like that ordered in Remmer and held in this case.” Smith, 455 U.S. at 217 , 102 S.Ct. at 946 , 71 L.Ed.2d at 86 . Although Smith stands for the proposition that, in certain ³¹¹ cases, it is improper to impute prejudice where procedures have taken place to protect the defendant’s rights, it does not stand for the proposition that it is improper to presume prejudice in all cases. The relevant facts in Smith indicate that the juror in question was extensively questioned about his intentions of pursuing a career in law enforcement during the pre-trial voir dire. In fact, he admitted to this career track, to applying to a federal drug enforcement agency, to his wife’s interest in law enforcement, to his wife’s being previously assaulted, to his working as a store detective and to his familiarity with contacts at the prosecutor’s office.

Even after these admissions, he testified that he could be a fair and impartial juror and the defendant chose not to strike him from the jury. Id. at 213 n. 4, 102 S.Ct. at 944 n. 4, 71 L.Ed.2d at 84 n. 4. Even then, Justice O’Connor, in her concurring opinion in the 6-3 decision in Smith, vigorously expressed her view that a presumption of prejudice still exists for certain, egregious cases. Justice O’Connor stated: “I concur in the Court’s opinion, but unite separately to express my view that the opinion does not foreclose the use of‘implied bias’ in appropriate circumstances.

I “Determining whether a juror is biased or has prejudged a case is difficult, partly because the juror may have an interest in concealing his own bias and partly because the juror may be unaware of it. The problem may be compounded when a charge of bias arises from juror misconduct, and not simply from attempts of third parties to influence a juror. “Nevertheless, I believe that in most instances a postconviction hearing will be adequate to determine whether a juror is biased. A hearing permits counsel to probe the juror’s memory, his reasons for acting as he did, and his understanding of the consequences of his actions. A hearing also permits the trial judge to observe the juror’s ³¹² demeanor under cross-examination and to evaluate his answers in light of the particular circumstances of the case. “I am concerned, however, that in certain instances a hearing may be inadequate for uncovering a juror’s biases, leaving serious question whether the trial court had subjected the defendant to manifestly unjust procedures resulting in a miscarriage of justice.

While each case must turn on its oum facts, there are some extreme situations that would justify a finding of implied bias. Some examples might include a revelation that the juror is an actual employee of the prosecuting agency, that the juror is a close relative of one of the participants in the trial or the criminal transaction, or that the juror was a witness or somehow involved in the criminal transaction. Whether or not the state proceedings result in a finding of ‘no bias,’ the Sixth Amendment right to an impartial jury should not allow a verdict to stand under such circumstances. “None of our previous cases preclude the use of the conclusive presumption of implied bias in appropriate circumstances. Remmer , ... on. which the Court heavily relies, involved not juror misconduct, but the misconduct of a third party who attempted to bribe a juror.

Under those circumstances, where the juror has not been accused of misconduct or has no actual stake in the outcome of the trial, and thus has no significant incentive to shield his biases, a postconviction hearing could adequately determine whether or not the juror was biased.” Id. at 221-23, 102 S.Ct. at 948-49 , 71 L.Ed.2d at 89-90 (emphasis added)(footnote omitted). Justice Marshall, joined by Justices Brennan and Stevens, dissenting, noted: “Not only is the probability of bias high, it is also unlikely that a post-trial evidentiary hearing would reveal this bias. As the Court of Appeals stated, given the human propensity for self-justification, it is very difficult ‘to learn from a juror’s own testimony after the verdict whether he was in fact “impartial.” ’ Certainly, a juror is unlikely to admit ³¹³ that he had consciously plotted against the defendant during the course of the trial. Such an admission would have subjected juror Smith to criminal sanctions.” Id. at 230 , 102 S.Ct. at 953 , 71 L.Ed.2d at 94-95 (citation omitted).

We agree with Justice O’Connor that Smith was not a case of such egregiousness that a presumption of prejudice necessarily followed in light of the extensive voir dire and post-trial hearings afforded the defendant in that case. Moreover, the record in Smith does not indicate that the trial judge in that case was subject to restraints similar to those imposed on Maryland judges by Maryland Rule 5-606 when a jury verdict has been accepted. Later, in Olano , the Supreme Court overturned a Ninth Circuit Court of Appeals decision finding presumed prejudice in a criminal trial resulting in the grant of a new trial when an alternate juror was allowed to remain in the jury deliberation room while the jury reached a verdict. While the State claims that Olano precludes all presumptions of prejudice, 22 the Olano Court, itself, rejected such a broad preclusion.

That Court stated: “There may be cases where an intrusion should be presumed prejudicial, see, e.g., Patton[ v. Yount], supra, at 467 U.S., [1025] at 1031-1035, 104 S.Ct., [2885] at 2888-2890[, 81 L.Ed.2d 847 (1984) ]; Turner v. Louisiana, 379 U.S. 466 , 85 S.Ct. 546 , 13 L.Ed.2d 424 (1965), but a presumption of prejudice as opposed to a specific analysis does not change the ultimate inquiry: Did the intrusion affect the jury’s deliberations and thereby its verdict? We cannot imagine why egregious comments by a bailiff to a juror (Parker [v. Gladden, 385 U.S. 363 , 87 S.Ct. 468 , 17 L.Ed.2d 420 (1966) ]) or an apparent bribe followed by an official investigation (Remmer) should be evaluated in terms of ‘preju ³¹⁴ dice,’ while the mere presence of alternate jurors during jury deliberations should not. Of course, the issue here is whether the alternates’ presence sufficed to establish remedial authority under Rule 52(b), not whether it violated the Sixth Amendment or Due Process Clause, but we see no reason to depart from the normal interpretation of the phrase ‘affecting substantial rights.’ “The question, then, is whether the instant violation of Rule 24(c) prejudiced respondents, either specifically or presumptively. In theory, the presence of alternate jurors during jury deliberations might prejudice a defendant in two different ways: either because the alternates actually participated in the deliberations, verbally or through ‘body language’; or because the alternates’ presence exerted a ‘chilling’ effect on the regular jurors.

See [U.S. v. ]Watson, supra, [ 669 F.2d 1374 ] at 1391 [11th Cir.1982]; United States v. Allison, 481 F.2d 468, 472 (CA5-1973). Conversely, ‘if the alternate in fact abided by the court’s instructions to remain orally silent and not to otherwise indicate his views or attitude ... and if the presence of the alternate did not operate as a restraint upon the regular jurors’ freedom of expression and action, we see little substantive difference between the presence of [the alternate] and the presence in the jury room of an unexamined book which had not been admitted into evidence.’ Id., at 472 .[ 23 ] “... Respondents have never requested a hearing, and thus the record before us contains no direct evidence that the alternate jurors influenced the verdict.... “Nor will we presume prejudice for purposes of the Rule 52(b) analysis here. The Court of Appeals was incorrect in finding the error ‘inherently prejudicial.’ [U.S. v. Olano,] 934 F.2d, [1425] at 1439 [9th Cir.1991].

Until the close of ³¹⁵ trial, the 2 alternate jurors were indistinguishable from the 12 regular jurors. Along with the regular jurors, they commenced their office with an oath ... received the normal initial admonishment, heard the same evidence and arguments, and were not identified as alternates until after the District Court gave a final set of instructions. In those instructions, the District Court specifically enjoined the jurors that ‘according to the law, the alternates must not participate in the deliberations,’ and reiterated, ‘we are going to ask that you not participate.’ Ibid.” Olano, 507 U.S. at 739-40 , 113 S.Ct. at 1780-81 , 123 L.Ed.2d at 522-24 (some citations omitted). As the Court’s analysis of “inherent prejudice” demonstrates, it is willing to presume prejudice in certain situations, although an alternate juror, who has been properly instructed not to deliberate, sitting in on the deliberations of a jury is not such a situation.

While Smith and Olano may somewhat limit the scope of presumptive prejudice, they do not preclude such a presumption in all situations, i.e., where excessive or egregious jury misconduct or improper contact by a third party occurs. The parties in the case sub judice outline wide-ranging decisions of the various Circuit Courts in their interpretations of the Supreme Court’s Remmer doctrine. See United States v. Boylan, 898 F.2d 230, 261 (1st Cir.1990); United States v. Console, 13 F.3d 641, 665-66 (3rd Cir.1993); United States v. Cheek, 94 F.3d 136, 139-42 (4th Cir.1996); Stockton v. Virginia, 852 F.2d 740, 743-45 (4th Cir.1988); United States v. Sylvester, 143 F.3d 923, 934 (5th Cir.1998); United States v. Walker, 1 F.3d 423, 431 (6th Cir.1993); United States v. Hall, 85 F.3d 367, 371 (8th Cir.1996); United States v. Dutkel, 192 F.3d 893, 896 (9th Cir.1999); United States v. Scull, 321 F.3d 1270 , 1280 n. 5 (10th Cir.2003); Parker v. Head, 244 F.3d 831 , 839 n. 6 (11th Cir.), reh’g and suggestion for reh’g en banc denied, 260 F.3d 628 (11th Cir.), cert. denied, 534 U.S. 1046 , 122 S.Ct. 627 , 151 L.Ed.2d 548 (2001); United States v. Perkins, 748 F.2d 1519, 1533 (11th Cir.1984); United States v. Williams-Davis, 90 F.3d 490, 496-97 (D.C.Cir.1996), cert. denied, 519 U.S. 1128 , 117 S.Ct. 986 , 136 L.Ed.2d 867 (1997). ³¹⁶ The State argues that a Remmer presumption may only occur in cases of jury tampering. See Cheek, 94 F.3d at 138 ; Dutkel, 192 F.3d at 896 .

This argument is unpersuasive in light of Turner, supra, and its similarity to the egregious facts in the case at bar. In fact, jury tampering, as Dutkel defines it, “an effort to influence the jury’s verdict by threatening or offering inducements to one or more of the jurors,” Dutkel, 192 F.3d at 895 (emphasis added), is akin to what can possibly occur in situations like the case at bar. A police prosecution witness having lunch with a juror during the trial might possibly be construed, in essence, as being an “inducement.” It might appear to be an attempt, outside of the confines of the trial itself, to establish rapport with the juror, and thus to enhance the State’s position. Whether that “inducement” is meant to intentionally affect the juror’s deliberations is of no consequence.

The harm done is patent due to the difficulty of proving such contentions post-verdict where in Maryland the court’s ability to inquire into jury motives is, to a large degree, proscribed by rule. Therefore, a presumption of prejudice is appropriate in such eases. In fact, the Supreme Court has spoken to circumstances where such an inherent prejudice exists. In Turner, supra, a case subsequent to, but not reliant on, Remmer and cited by Olano , the United States Supreme Court dealt with such concerns in a situation, similar and instructive to the case at bar, where two State’s witness, Deputy Sheriffs Rispone and Simmons, had extensive contacts with the entire jury during the three-day sequestration.

In that case, the jury, pursuant to local law, 24 was to be continuously in the company of a deputy sheriff during the trial. Deputies Rispone and Simmons were two of several parish deputy sheriffs that drove the jurors to and from the hotel, took them to restaurants, ate with them, talked and associated with them and even ran ³¹⁷ errands for them. After each of the deputies testified, Turner’s counsel brought separate motions for a mistrial. The trial court, however, denied the motions after a hearing because there was no showing that the deputies had discussed the case with any of the jurors.

When the trial continued, the deputies resumed their roles as caretakers of the jury. After a verdict was rendered, Turner filed a motion for a new trial. The Supreme Court said: “The question ... goes to the nature of the jury trial which the Fourteenth Amendment commands when trial by jury is what the State has purported to accord.... “The requirement that a jury’s verdict ‘must be based upon the evidence developed at the trial’ goes to the fundamental integrity of all that is embraced in the constitutional concept of trial by jury. ‘The jury is an essential instrumentality — an appendage — of the court, the body ordained to pass upon guilt or innocence. Exercise of calm and informed judgment by its members is essential to proper enforcement of law.’ Sinclair v. United States, 279 U.S. 749, 765 , 49 S.Ct. 471, 476 , 73 L.Ed. 938 [1929].

Mr. Justice Holmes stated no more than a truism when he observed that ‘Any judge who has sat with juries knows that, in spite of forms they are extremely likely to be impregnated by the environing atmosphere.’ Frank v. Mangum, 237 U.S. 309, at 349 , 35 S.Ct. 582, at 593 , 59 L.Ed. 969 [1915] (dissenting opinion). “In the constitutional sense, trial by jury in a criminal case necessarily implies at the very least that the ‘evidence developed’ against a defendant shall come from the witness stand in a public courtroom where there is full judicial protection of the defendant’s right of confrontation, of cross-examination, and of counsel. What happened in this case operated to subvert these basic guarantees of trial by jury. It is to be emphasized that the testimony of Vincent Rispone and Hulon Simmons was not confined to some uncontroverted or merely formal aspect of the case for the prosecution. On the contrary, the credibility which the jury attached to the testimony of these two key witnesses must ³¹⁸ inevitably have determined whether Wayne Turner was to be sent to his death.

To be sure, their credibility was assailed by Turner’s counsel through cross-examination in open court. But the potentialities of what went on outside the courtroom during the three days of the trial may well have made these courtroom proceedings little more than a hollow formality. “It is true that at the time they testified in open court Rispone and Simmons told the trial judge that they had not talked to the jurors about the case itself. But there is nothing to show what the two deputies discussed in their conversations with the jurors thereafter. And even if it could he assumed that the deputies never did discuss the case directly with any members of the jury, it would be blinking reality not to recognize the extreme prejudice inherent in this continual association throughout the trial between the jurors and these two key witnesses for the prosecution.

We deal here not with a brief encounter, but with a continuous and intimate association throughout a three-day trial — an association which gave these witnesses an opportunity, as Simmons put it, to renew old friendships and make new acquaintances among the members of the jury. “It would have undermined the basic guarantees of trial by jury to permit this kind of an association between the jurors and two key prosecution witnesses who were not deputy sheriffs. But the role that Simmons and Rispone played as deputies made the association even more prejudicial. For the relationship was one which could not but foster the jurors’ confidence in those who were their official guardians during the entire period of the trial. And Turner’s fate depended upon how much confidence the jury placed in these two witnesses.” Turner, 379 U.S. at 471-74 , 85 S.Ct. at 549-50 , 13 L.Ed.2d at 428-29 (citation omitted)(footnotes omitted)(emphasis added).

As we will discuss infra, we believe that the case sub judice is more akin to Turner than to Remmer or its progeny and thus warrants a presumption of prejudice against petitioner. ³¹⁹ As our analysis indicates, we do not agree that the Remmer presumption or Turner precedent has been eroded in cases where egregious juror and witness misconduct occurs, such as when a witness and a juror go to lunch together during the middle of a trial when both have been admonished, in one way or another, to avoid each other. Even if we have misread Smith and Olano and the Supreme Court has intended to erode the presumption of prejudice in cases such as the case sub judice, an interpretation with which we do not agree, we hold that Maryland’s own Declaration of Rights requires such a presumption in limited egregious cases of juror and witness misconduct to insure that a criminal defendant receives adequate due process. A right as fundamental as the right to an impartial jury cannot be compromised by even the hint of possible bias or prejudice that is not affirmatively rebutted. Even if the presumption of prejudice doctrine does not exist for all cases of misconduct, in