Johnson v. State

CATHELL, Judge. The conduct of the presiding trial judge in this case requires us to reverse petitioner’s criminal conviction. 1 Petitioner asks us to determine whether a “presumption of prejudice” is created by inappropriate conduct such as the conduct that occurred in this case or whether a stricter standard of “actual prejudice” must be demonstrated before a reversal is warranted. Because we believe petitioner suffered actual prejudice at his trial below, we shall not address whether a “presumption of prejudice” would exist. BACKGROUND We first shall review briefly the facts leading up to the trial.

Petitioner John Howard Johnson owned and managed a 7-11 convenience store in Baltimore City. On July 24, 1993, while he was conducting a sales transaction with a customer, petitioner allegedly observed the victim, Andre Burton, shoplifting some goods. Petitioner ran over to Burton and attempted to restrain him, but Burton freed himself and fled the store. After quickly completing the sale interrupted by the altercation, petitioner armed himself with a handgun and left the premises in his car to search for the alleged shoplifter.

Petitioner eventually found and confronted Burton, forced him into petitioner’s car at gunpoint and, holding him there, drove away. At some point, Burton attempted to flee. Petitioner shot Burton in the back either while he was exiting petitioner’s car or immediately thereafter. According to the defense, ³⁷⁶ the gun accidentally discharged as it became entangled in the straps of a bag Burton attempted to take with him as he fled.

Wounded, Burton escaped to a nearby gas station for help but died there before help could be rendered. The defense asserted at trial that petitioner’s gun went off accidentally and that he left the scene unaware that Burton had been shot. Petitioner was indicted in the Circuit Court for Baltimore City of first degree murder, unlawful use of a handgun in the commission of a felony, and illegally wearing and carrying a handgun. A second indictment charged petitioner with kidnaping and' the two proceedings were joined.

Petitioner was tried by a jury, which convicted him of involuntary manslaughter, illegally wearing and carrying a handgun, and kidnaping. The jury failed to render a verdict as to the unlawful use of a handgun charge. The defense attorney filed a timely notice of appeal to the Court of Special Appeals on petitioner’s behalf, but that appeal was dismissed subsequently because a timely brief in conformance with the requirements of Rule 8-503 was not filed. Petitioner, however, was granted post-conviction relief by the Circuit Court for Baltimore City due to ineffective assistance of counsel in that appeal.

The remedy granted was this belated appeal. The Court of Special Appeals affirmed petitioner’s convictions and we subsequently granted certiorari. Petitioner argues several points on appeal, but his central claim and the only one we shall concern ourselves with is the repeated allegedly inappropriate conduct by the trial judge that, petitioner argues, denied him the right to a fair and impartial trial. The trial commenced, as it ended, with continuous, contentious side disputes between defense counsel and the trial judge.

Even during his opening statement, defense counsel not only was threatened with contempt of court in the presence of the jury, but was told by the trial judge that if she were to find him in contempt, she would do so in front of the jury. [DEFENSE COUNSEL]: ³⁷⁷ Now, that’s the procedure. Now, during the case—and different judges handle it differently. Some judges simply say “overruled” or “sustained.” You may find that this judge makes comments. THE COURT: ... [DJon’t comment on my practice or things I do. ...

I—it is not appropriate for you to distinguish my Court from any others as far as the jurors are concerned. [DEFENSE COUNSEL]: Now, if it please the Court, we should take a balanced view, with as a[sic] little intervention as possible, except to call the balls and strikes, but I’m afraid there is going to be a lot of intervention. THE COURT: ... I asked you, and I’m going to insist on telling you that you are not to comment about whatever you think of my way of conducting my court. [DEFENSE COUNSEL]: Very well. THE COURT: The jurors are to take what they hear in this courtroom and not hear it from you. [DEFENSE COUNSEL]: And, of course, the law is that whoever is presiding should—if they make comments, should— THE COURT: ... [/]/ you do any more of this, I am going to find you, in front of this jury, in contempt of the Court.

Now, stop it right now, and stop it throughout the trial. [DEFENSE COUNSEL]: And counsel has the duty to make objections if counsel feels that the presiding authority has gone too far. There will be a lot of objections in this case. Now, we are—and I want to explain that because if you don’t explain it to the jury in advance sometimes they misunderstand what’s going on. Now, in this particular case this is going to be a hard-fought case.

And I want to ask you to forgive me if you think I’m fighting too hard because I’m going all out in this case.... ³⁷⁸ Now, before we get into the facts, just let me point out one other procedure. Both Ms. Saxon and I are not rookies. Ms. Saxon has tried many, many, many murder cases. So have I. So don’t get the impression that you need to give either one of us any kind of break or special consideration.

We are both pros. We have both been doing it for a long time. Now, obviously, I’m a lot older than Ms. Saxon so I’ve been doing it a little bit longer. But you’re not talking about a rookie State’s Attorney or a rookie defense lawyer. [Emphasis added.] Thereafter, throughout the trial, numerous incidents occurred between the trial judge and defense counsel in the presence of the jury: interruptions, insults, and other forms of inappropriate conduct.

We note in particular some of these incidents. For instance, a troubling exchange occurred during defense counsel’s cross-examination of State witness Mark Tackas, a crime lab technician with the Baltimore City Police Department. During that examination, the trial judge had defense counsel arrested for contempt in front of the jury: BY [DEFENSE COUNSEL]: Q. And, ... you also assumed that there may have been a blood trail and so you went to look for one? MS.

SAXON [State’s Attorney]: Objection. THE COURT: He didn’t assume it. He saw it____ [DEFENSE COUNSEL]: Judge, will you stop please? THE COURT: No....

You must ask him properly phrased questions. [DEFENSE COUNSEL]: I’ve only been doing this for twenty-five years and, honestly, I’ve never had this much interference in twenty-five years. THE COURT: ... [D]o you want a repetition of something that happened? [ 2 ] I don’t want— ³⁷⁹ [DEFENSE COUNSEL]: So be it. I want to represent my client. THE COURT: All right, so be it.

Mr. Sheriff, take him back. [DEFENSE COUNSEL]: Are you going to lock me up again? THE COURT: Afraid so.... [DEFENSE COUNSEL]: All right, Mr. Sheriff. THE COURT: We are taking another recess. [DEFENSE COUNSEL]: —my second arrest. THE CLERK: All rise, please. [Emphasis added.] On December 21, 1994, during the cross-examination of another State witness, Alexander Jason, the judge interrupted defense counsel’s questioning.

She supplied her own version of the question, claiming it to be more proper. When defense counsel asked his version of the question again, the State’s Attorney objected, but the trial judge overruled her: [DEFENSE COUNSEL]. Was it [the seat in petitioner’s car] aflat seat like this table? THE COURT: What kind of seat did the one have that you examined? [DEFENSE COUNSEL]: Objection, Judge.

May I ask my questions, Judge? THE COURT: Not if you do it improperly. Let’s get this done. [DEFENSE COUNSEL]: Was that improper? [ 3 ] THE COURT: / think mine would have made the same thing much simpler.... Q. Was it aflat seat, Mr. Jason? ³⁸⁰ MS.

SAXON: Objection. THE COURT: Overruled. Was it? [Emphasis added.] The exchange that followed was ripe with improper interjections by the judge and retorts by defense counsel. It also involved another contempt citation of him by the judge in front of the jury: [DEFENSE COUNSEL]: Mr. Jason, was this a bucket seat?

MS. SAXON: Objection.[ 4 ] THE COURT: Overruled. What kind of a seat was it[?] Can’t he tell us, not what kind of seat it wasn’t ... ? [DEFENSE COUNSEL]: I don’t know what to do, Judge. [THE WITNESS]: Yes, it was a bucket seat. THE COURT: I know what to do, have him describe the seat. [DEFENSE COUNSEL]: You want to take over the case ?

If you try the case for me— THE COURT [Addressing defense counsel]: ... I’m not going to sit here— [DEFENSE COUNSEL]:—you will lose it.[ 5 ] Q. Mr. Jason, would how the hand and the gun were positioned have— THE COURT: Sustained.[ 6 ] The preface is improper. ³⁸¹ [DEFENSE COUNSEL]: Judge, you are doing all of her work. THE COURT: ... I am not allowing the questions to be asked in this form. [DEFENSE COUNSEL]: Judge, can you—can I ask a favor, can you stop interfering?

THE COURT: No. No____ You may not. I’ll ask you to obey my rulings. [DEFENSE COUNSEL]: All right. Do you want to ask the questions because every question I ask is wrong[?] THE COURT: ... [ 7 ]t’s contempt again.m Please just ask questions in accordance to my rulings which you well understand. [DEFENSE COUNSEL], All right, Mr. Jason, she asked for a series of incomplete demonstrations. Would you step forward and demonstrate exactly what happened in this case?

THE COURT: Sustained.[ 8 ] He doesn’t know what happened but he can demonstrate what his hypothesis or theory is as to what happened. [DEFENSE COUNSEL]: Judge, there’s an extra chair down here if— THE COURT [Addressing defense counsel]: ... I’ve already got my list but let’s deal with that later. Now— [DEFENSE COUNSEL]: Are you threatening me with contempt again? THE COURT: Yes, I not only threaten you, I’ve found ³⁸² you in contempt.[ 9 ] Would you want to demonstrate what your theory is as to how it happened? [Emphasis added.] The exchange continued: [DEFENSE COUNSEL]: Now, Mr. Jason, would you come to the jury box without pointing the gun at the jury and demonstrate— THE COURT: Maybe they’d like to point it at you as well as us.

Come on, ... let’s not go back and forth. [DEFENSE COUNSEL]: You are unbelievable, Judge. Can I hold you in contempt of Court? [Emphasis added.] Later that day, apparently with the jury present, the judge insinuated that defense counsel was attempting to steal a marker from the courtroom: MS. SAXON: ... Where is the marker please ..., that you used? [DEFENSE COUNSEL]: Right here.

THE COURT: They cost five bucks a piece. Belong to the City of Baltimore. MS. SAXON: Would you mark—Your Honor, I’d like to mark— [DEFENSE COUNSEL]: Judge, I know you weren’t suggesting that [I] was going to be a thief about that, were you?

THE COURT: It was in your pocket. I saw you— [DEFENSE COUNSEL]: Judge, see wasn’t [sic] in my pocket. It was here on the table. THE COURT: You gave it back so— [DEFENSE COUNSEL]: Boy. [Emphasis added.] During defense counsel’s cross-examination of a witness, the judge encouraged the State to object, which resulted in another retort by defense counsel: ³⁸³ [DEFENSE COUNSEL]: Okay.

But you were not asked to look for other signs in the car that would not look to your naked eye to be blood but which might be blood, correct? A. This question cannot be answered yes or no and you know it. THE COURT: All right. Q. Excuse me?

THE COURT: ... I will sustain if I heard an objection because— [DEFENSE COUNSEL]: Judge, do we have two prosecutors here? [Emphasis added.] Further examples of inappropriate conduct occurred on January 4, 1995, while Donald Wright, a medical examiner called as an expert by the State, was on the stand. After an extensive exchange between defense counsel and the trial judge during the direct examination of Wright, the judge sent the jury out, held the defense counsel in contempt, and sent him to the court holding cell. After the proceedings resumed, the following occurred: [DEFENSE COUNSEL]: Now, Judge, I want to—I have a preliminary matter.

THE COURT: Bring the jury in____ [DEFENSE COUNSEL]: Now, Judge, I want to address the Court— THE COURT: Now [addressing defense counsel], I do not wish to hear from you. [DEFENSE COUNSEL]: Judge, you don’t have the option, unfortunately because— THE COURT: I do have the option---- I have the option of bringing the jury in. [DEFENSE COUNSEL]: I want to make a timely motion for mistrial and, Judge, I want to state my grounds because I want you to do the job to react to counsel ... and if I’m right I want you to agree with me and if I’m wrong, I want you to disagree with me. THE COURT: I disagree with you. The motion’s denied. ³⁸⁴ [DEFENSE COUNSEL]: Well, Judge, you haven’t heard my reasons. That’s arbitrary and capricious.

THE COURT: I’m being arbitrary and capricious then but I’m being— [DEFENSE COUNSEL]: Well, Judge, you’ve got to stop. That is not fair— THE COURT: Bring the jury in. [DEFENSE COUNSEL]:—because you’re losing sight of the fact that [this] isn’t [you] versus [me]. This is a trial involving Mr. Johnson and you have ceased to become an— . THE COURT: Bring the jurors in. [DEFENSE COUNSEL]:—impartial and fair judge and, Judge, you’ve got to change back.

THE CLERK: Here they come. THE COURT: Bring the jurors in. [Emphasis added.] Later, during defense counsel’s recross-examination of Wright, the judge frequently interrupted the proceedings to ask her own questions and to prevent defense counsel from asking his questions. Similar occurrences took place during the examinations of Ronald Staffer and Lieutenant Charles J. Keys, firearms examiners with the Baltimore City Police Department. The judge often would rephrase counsel’s questions or “sustain” objections never made by the State prior to the interruptions.

We note further that on the same day, during questioning by the State, the judge occasionally instructed the State’s Attorney on how to ask proper questions of her witnesses. During these incidents, the defense counsel often complained about the judge acting as a prosecutor. DISCUSSION The conduct of the trial judge impaired petitioner’s right to a fair and impartial trial. This Court recently addressed the right to a fair and impartial trial in Jefferson-El v. State, 330 Md. 99 , 622 A.2d 737 (1993).

In that case, we stated: ³⁸⁵ A defendant in a criminal case has a right to a fair trial. Spence v. State, 296 Md. 416, 423 , 463 A.2d 808, 811 (1983); Scott v. State, 289 Md. 647, 655 , 426 A.2d 923, 928 (1981); Smith v. State, 64 Md.App. 625, 635 , 498 A.2d 284, 289 (1985). See also Chapman v. California, 386 U.S. 18, 23 , 87 S.Ct. 824, 827-28 , 17 L.Ed.2d 705, 710 (1967). It is well settled in Maryland that fundamental to a defendant’s right to a fair trial is an impartial and disinterested judge.

Boyd v. State, 321 Md. 69, 78 , 581 A.2d 1, 9 (1990); In re Turney, 311 Md. 246, 253 , 533 A.2d 916, 920 (1987); Costello v. State, 237 Md. 464, 473 , 206 A.2d 812, 817 (1964); Thanos v. Superintendent, 204 Md. 665, 667-68 , 104 A.2d 926, 927 (1954); Bd. of Medical Examiners v. Steward, 203 Md. 574, 581 , 102 A.2d 248, 251-52 (1954); Western Md. Dairy Corp. v. Brown, 169 Md. 257, 268 , 181 A. 468, 473-74 (1935). “A fair and impartial trial is a judicial process by which a court hears before it decides; by which it conducts a dispassionate inquiry and renders judgment only after receiving evidence.” Spence, 296 Md. at 423 , 463 A.2d at 811 , citing People v. Diaz, 1 Ill.App.3d 988 , 275 N.E.2d 210, 212-13 (1971). “It is beyond dispute that the trial judges perform a unique and persuasive role in that system: ‘confidence in the judiciary is essential to the successful functioning of our democratic form of government.’ ” Scott v. U.S., 559 A.2d 745, 748 (D.C.App.1989), citing U.S. v. Quattrone, 149 F.Supp. 240, 242-43 (D.D.C.1957). It is because judges occupy a distinguished and decisive position that they are required to maintain high standards of conduct. Dempsey v. State, 277 Md. 134, 149 , 355 A.2d 455, 463 (1976); Patterson v. State, 275 Md. 563, 579 , 342 A.2d 660, 669 (1975); See also Elmer v. State, 239 Md. 1, 10-11 , 209 A.2d 776, 781-82 (1965); Vandegrift v. State, 237 Md. 305, 311 , 206 A.2d 250, 254 (1965). Their conduct during a trial has a direct bearing on whether a defendant will receive a fair trial because their opinion or manifestations thereof usually will significantly impact the jury’s verdict.

In addition, if the defendant has elected to be tried ³⁸⁶ by a jury, it is the province of that jury to decide the guilt or innocence of the defendant. Id. at 105-06, 622 A.2d at 740-41 . In Apple v. State, 190 Md. 661 , 59 A.2d 509 (1948), the defendant’s counsel, as in this case, argued that the .trial judge’s abrupt and harsh behavior toward him and his client when he took the stand demonstrated the judge’s prejudice against the defense’s case. We stated: A judge should at all times be impartial and courteous and should not permit his personal feelings, if he has any, to be exhibited before a jury, but unless there is some clear showing ... that his words or his actions influenced the jury adversely to the appellant, the mere fact that the trial was conducted in an impatient and somewhat peremptory way, does not justify a reversal.

Id. at 670 , 59 A.2d at 513 . We ultimately affirmed the conviction in Apple , holding that the record, as a whole, did not show that the defendant “was prejudiced by any conduct of the judge trying the case.” Id. In another case questioning judicial conduct, Bryant v. State, 207 Md. 565, 584-85 , 115 A.2d 502, 510 (1955), we stated that “[i]t is a precept of the law that a judge should be impartial and courteous, and should not allow his personal feelings to be exhibited before the jury, but should be careful in his remarks during the progress of the trial.” Like the defense attorney here, the defense counsel in Bryant argued that the trial judge had “exhibited an antagonistic attitude” toward him and his client. In particular, the counselor in Bryant argued that the trial judge “insinuated that he was impeding the progress of the trial” and often made “gestures and grimaces and ... brusque comments [that] manifested bias, created an