Jones-Harris v. State

SALMON, Judge. Charelles Lamar (“Ace”) Jones-Harris (“Mr.Harris”) was tried and convicted by a jury on July 19, 2006, in the Circuit Court for Washington County, on seven charges: second-degree sex offense (Count 1); second-degree sex offense (Count 2); fourth-degree sex offense (Count 3); fourth-degree sex offense (Count 4); second-degree assault (Count 5); false imprisonment (Count 6); and sodomy (Count 7). He was sentenced to concurrent twenty-year sentences for Counts 1 and 2, and a consecutive ten-year sentence for Count 6. For ⁷⁷ purposes of sentencing, Counts 3, 4, and 5 were merged with Counts 1 and 2.

Count 7 was merged with Count 6. Mr. Harris presents four issues for our review: I. Whether reversal of [his] conviction is required because the trial court failed to strike the medical opinion testimony of a non-expert witness, where the testimony provided the only physical evidence of a sexual assault[.] II. Whether reversal of [his] conviction is required because the trial court expressly encouraged premature jury deliberations and participation by an alternate juror in the deliberative process[.] III. Whether [his] ten-year sentence for false imprisonment must be vacated because the State presented no evidence of false imprisonment beyond the restraint intrinsic to the sexual assault[.] IV.

Whether reversal of [his] conviction is required because tactics engaged in by the Assistant State’s Attorney during closing statements unfairly prejudiced the jury against [him][.] I. EVIDENCE PRESENTED BY THE STATE Jessica Manning (“Jessica”) was walking home from a friend’s house at approximately “midnight or a little after” on December 31, 2005, when she ran into Shaumorris Robinson (“Mario”) and appellant on a street near her home in Hagerstown, Maryland. Jessica considered both men to be friends. She had previously dated Mario for about a month and appellant for a few days. 1 Jessica told the two men 2 that she ⁷⁸ was turning eighteen that day (December 31). The trio decided to celebrate at Mario’s apartment, which he shared with Jennifer Starliper (“Jen”).

The apartment was at 660 North Prospect Street in Hagerstown. Jen was home when the three arrived, and a person named “Steven” joined them shortly thereafter. The group all hung out together, drinking alcohol, 3 watching movies, and listening to music. At one point during the party, Mario observed Jessica rub lotion on appellant’s back and either blow or talk into appellant’s ear, while the two were sitting together on a loveseat.

By 3:15 a.m., Jessica said she had to leave but was unfamiliar with the area. Appellant offered to walk her home, and she accepted the offer. As they were alone and walking down an alley, Jessica felt a punch to the side of her head. The blow caused her to fall and for her ear to bleed.

She asked appellant why he hit her. Appellant denied doing so. Jessica then said, “You’re the only one that was here.” Appellant next took his sleeve and attempted to wipe off the blood from the side of Jessica’s head. After being hit, Jessica called her father on her cell phone and asked him to pick her up.

She could not, however, give an accurate description of where she was located because she was scared and did not know her location. Appellant then carried Jessica into a storage bin and threw her down, causing her to hit her head. Jessica again tried to call her father, but appellant took her phone and threw it away. While inside the storage bin, appellant forced Jessica to perform fellatio.

Jessica had to stop at one point because she began coughing up blood. Appellant then took her head and placed it back on his penis, making her continue to perform that act. When she accidentally bit his penis, appellant picked ⁷⁹ her up and threw her across the storage bin, and she hit her head once again. According to Jessica, while in the storage bin, appellant grabbed her and caused her to fall “five or six times.” Appellant also forced Jessica to lean against a wall and drop her pants.

When she did so, appellant attempted anal intercourse. He was unable to keep an erection while sodomizing Jessica, and as a result, he forced her to perform oral sex on him again. Appellant next forced Jessica to submit to anal intercourse once more, causing her to accidentally defecate. At that point, Jessica asked appellant to take her back to Mario’s apartment so she could clean up.

The following then occurred, according to Jessica’s testimony: [JESSICA:].... He asked me how was I going to hide my face, and I said I could put my hood over my head so I could like hid[e] the marks and stuff on my face. And so we went out of the storage bin, and we were walking down the alleyway, and he asked me to go back with him to get his jacket, and I told him just forget about your jacket, I just want to go to the house and get cleaned up. And so we went to ...

Mario’s house, and he told me, “You’re not gonna tell the police about this are you?” And I said, “No.” He’s like, “Because I have a record behind me and everything ...” Q. [PROSECUTOR:] Uh, You can’t ... don’t talk about that. A. Sorry. Q. You basically ... you told him you wouldn’t tell the police, correct? A. Yes.

Jessica arrived back at Mario’s apartment about thirty to forty minutes after she and appellant left the first time. Mario and Jen testified that they both observed that Jessica had a black eye and fresh bruising on the side of her face. Jessica was crying and told them that she was raped by appellant. ⁸⁰ Mario took Jessica to her parents’ home, and her parents were told that Jessica had been sexually assaulted by appellant. Jessica then took a shower and slept in bed with her mother.

That afternoon, around 4 p.m., Jessica called the police, who came to her house to investigate. Jessica gave the police her clothes that she was wearing when she was sexually assaulted. Her jeans, t-shirt, and jacket were covered with dirt, and there was feces on her underwear. Stephen Manning (“Mr.Manning”), the victim’s father, testified that Jessica called him in the early morning hours of December 31, 2005; she was upset and in tears, and said, “Daddy, come get me.” Mr. Manning then left his house and attempted to find her, but the victim had given him the wrong street address.

He returned home and remained there until Mario brought Jessica home. Mr. Manning testified that his daughter looked like she had been punched in the face; her eye was black and her left temple was swollen. Jessica received treatment at Washington County Hospital on December 31, 2005. After a CAT scan and x-rays were taken, she met with Cynthia Lewis, a SAFE 4 nurse, who conducted a four-hour examination.

Ms. Lewis testified that she observed bruises on Jessica’s legs and face and noted that the x-rays revealed that Jessica’s nose was broken. To ascertain whether there were any lacerations present that were not apparent to the naked eye, Ms. Lewis applied blue toluidine dye to Jessica’s anal region. The dye responds to any breaks in the skin, and if there are any lacerations, the dye will ⁸¹ remain on the skin after one tries to wipe it away. During the exam, Ms. Lewis authored a SAFE Report.

In her report, she noted that the toluidine dye revealed positive findings that she described as “scattered uptake from 3 to 9 o’clock in the knee chest position,” meaning that there were lacerations in Jessica’s external anal region. Defense counsel elected not to cross-examine Ms. Lewis.

II

EVIDENCE PRESENTED BY DEFENDANT Appellant elected not to testify. He called one witness, Karen Hinchee, a Hagerstown police officer who interviewed Jessica when she was at Washington County Hospital on December 31, 2005. Jessica, who was very scared, told Officer Hinchee that she did not immediately go to Mario’s apartment with Mario and appellant after she happened to meet them in the early morning hours of December 31, 2005. Instead, she, Mario, and appellant initially went to an unfurnished apartment and drank Smirnoffs. 5 She also told the officer, several times, that she did not “think that she had a lot” of alcohol that night.

III

ANALYSIS A. Cynthia Lewis’ Testimony Appellant argues that the trial court erred in allowing Ms. Lewis to give “expert opinion testimony” regarding her observation of lacerations in Jessica’s anal region, because she was not called as an expert. On the morning of trial, defense counsel made a motion in limine to exclude the SAFE Report, arguing that: [The] report, which I believe the State feels would show evidence of there being a sexual assault, ought to be precluded from being introduced or used at trial, because ... ⁸² there’s never been any official notice provided that [Ms. Lewis is] an expert in any particular field and can express an expert opinion. And absent that, the language that’s in this particular document ... does not contain terms and explanations that are self-evident. It would need somebody to testify as to what that means and why this would indicate a sexual assault.

And I don’t believe any of that type of expert testimony is available today, and I’ll ask the court not to allow the report that the State would like to be introduced at trial through ... Ms. Lewis, to be used. And we’d ask the court not to allow it to be discussed during opening statement either. The specific language in the SAFE Report that defense counsel objected to was the phrase “scattered uptake.” The State indicated that it had a “graphic photograph of uptake of the toluidine dye” that it was prepared to introduce if the court requested.

Although the trial judge acknowledged that it was not clear to him what that phrase meant, he assumed it was something that was “simply observable by an examination” and was “not necessarily an opinion.” Defense counsel also said that the main problem that he had with the report was that the State would argue that the term “scattered uptake” signified sexual assault. The prosecutor assured counsel that she would not ask Ms. Lewis, a non-expert, whether the existence of uptake was evidence of sexual assault. The prosecutor’s position was that the fact that toluidine dye shows a laceration to the skin was not an opinion. 6 The court agreed with the State and denied defendant’s in limine motion. The SAFE Report was admitted into evidence pursuant to ⁸³ Maryland Rule 5-902(a)(4), 7 over defense counsel’s objection.

Ms. Lewis testified that, at first glance, Jessica’s face and knees demonstrated obvious cuts and bruising. After photographing those injuries, Ms. Lewis applied toluidine dye to the victim’s anal region to better detect any lacerations that might be present. Once the dye was applied, she wiped it off and observed “scattered uptake” meaning that she saw that there was a laceration. The purpose of the dye was to look for “uptake anywhere there is a break in the integrity of the skin.” Prior to allowing Ms. Lewis to testify concerning the observed lacerations, appellant’s counsel objected, and the following colloquy ensued: THE COURT: Is this something that you can observe? [MS.

LEWIS:] This is something I observe. This is something I was trained to do in my training to become a forensic nurse. ⁸⁴ THE COURT: But is this something you can simply observe with your eyes? [MS. LEWIS:] Yes. THE COURT: Overruled.

Appellant argues that the trial court erred in allowing Ms. Lewis to testify that dye uptake indicated the presence of a laceration, characterizing such a statement as “expert opinion testimony.” We disagree. Ms. Lewis’ testimony regarding what she saw after applying blue dye to Jessica’s anal area was a report of an observation, not an opinion. In the portion of the nurse’s testimony to which appellant objected, Ms. Lewis did not testify that, in her opinion, the presence of the laceration was evidence of a sexual assault; instead, she merely stated that after applying the dye and wiping it away, she saw a laceration. It must be stressed that the issue upon which the trial court ruled was whether the witness was rendering an expert opinion when she testified as to what she saw after the dye was wiped away.

As the Court of Appeals made clear in Dorsey v. Nold, 362 Md. 241, 251 , 765 A.2d 79 (2001), a medical care provider does not testify as an expert when his or her testimony is limited to what the provider did and what he or she observed while treating the patient. While Ms. Lewis indisputably had medical knowledge far superior to that of a layperson, the objected to testimony did not call for the expression of an opinion by her. This distinguishes this case from Ragland v. State, 385 Md. 706, 725 , 870 A.2d 609 (2005), where the Court held that “opinions or inferences that rely on scientific, technical or specialized knowledge must be excluded unless the witness is qualified as an expert.” Ms. Lewis testified that when she trained to become a forensic nurse she was taught how to use toluidine dye. That testimony plainly did not mean that in the absence of such training she would be unable to observe the dye uptake after she wiped away portions of the dye.

Appellant acknowledges that a lay witness may be able to observe dye uptake but asserts that it takes specialized training to arrive at the ⁸⁵ conclusion that dye uptake suggested a break in the skin. We once again disagree. As the prosecutor pointed out to the court, Ms. Lewis testified that, when toluidine dye is applied to the skin and wiped off, if there is any break in the skin, the dye will adhere to the injury site, making it easier to visualize. She could see the laceration as could any person with normal vision.

To prove this last point, the State offered to introduce a picture demonstrating the break in the skin observed after the dye uptake. The result of the dye uptake was simply to enhance what the human eye can perceive. Reporting what can be seen after dye has been applied and wiped away is no more an expression of an opinion than a witness testifying as to what he could see when using night vision goggles or an eye doctor who testifies that he could see a scratch of the cornea once he put colored drops in the eye to make clear what otherwise could not be seen. The trial court did not err in admitting the objected to evidence.

B. Jury Instructions The Maryland Pattern Jury Instruction for criminal cases dealing with discretionary preliminary instructions reads in relevant part: During the trial and during any recess, do not express any opinion about the case. Do not even discuss the case, either among yourselves or with any other person. Do not allow yourself to overhear anyone discussing the case.... You must base your decision only on the evidence presented in this courtroom.

Keep an open mind throughout the trial. MPJI-Cr 1:00: Pretrial Introductory Instruction. The trial court gave two improper instructions to the jury during the trial. The first instruction at issue was given immediately after the jury was sworn.

The trial judge said: You’re not to discuss this case amongst yourselves or with anyone else until and unless all of you are assembled in the jury room together. So when all thirteen of you are in the ⁸⁶ jury room together, that is the only time that you can speak about the case. (Emphasis added.) The second improper instruction was given immediately prior to the one hour and fifteen minute lunch recess, when the judge said: “You’re not even going to talk about the case until and unless all thirteen of you are assembled in the jury room together.” (Emphasis added.) Neither instruction was objected to by appellant’s trial counsel. Maryland Rule 4-325(e) reads: Objection.

No party may assign as error the giving or the failure to give an instruction unless the party objects on the record promptly after the court instructs the jury, stating distinctly the matter to which the party objects and the grounds of the objection. Upon request of any party, the court shall receive objections out of the hearing of the jury. An appellate court, on its own initiative or on the suggestion of a party, may however take cognizance of any plain error in the instructions, material to the rights of the defendant, despite a failure to object. In Walker v. State, 343 Md. 629, 645 , 684 A.2d 429 (1996), the Court said: Maryland Rule 4-325(e), as well as a multitude of cases in this Court, make it clear that the failure to object to a jury instruction ordinarily constitutes a waiver of any later claim that the instruction was erroneous.

See, e.g., Bowman v. State, 337 Md. 65, 67 , 650 A.2d 954 (1994) (“review of a jury instruction will not ordinarily be permitted unless the appellant has objected seasonably so as to allow the trial judge an opportunity to correct the deficiency before the jury retires to deliberate”); Ayers v. State, 335 Md. 602, 627-628 , 645 A.2d 22 (1994), cert. denied, [513] U.S. [1130], 115 S.Ct. 942 , 130 L.Ed.2d 886 (1995) (“a party who fails to object to a jury instruction at trial may not later raise the issue”); Baker v. State, 332 Md. 542, 563 , 632 A.2d 783 (1993), cert. denied, 511 U.S. 1078 , 114 S.Ct. 1664 , 128 L.Ed.2d 380 (1994); Collins v. State, 318 Md. 269, 284 , 568 A.2d 1 , cert. ⁸⁷ denied, 497 U.S. 1032 , 110 S.Ct. 3296 , 111 L.Ed.2d 805 (1990) (“Counsel’s failure to except to the reinstruction is indicative of an acceptance____Under these circumstances, defense counsel has failed to preserve the challenge to the court’s instructions”); Johnson v. State, 310 Md. 681, 685-689 , 531 A.2d 675 (1987). Appellant asserts that we should entertain the question as to whether the above two jury instructions warrant reversal. According to appellant, giving the instructions constituted “plain error.” Appellant argues: Here, the trial court’s instruction to the jury that they could discuss the case whenever they were assembled in the jury room grossly undercut Mr. Jones-Harris’ ability to receive a fair and impartial trial and was even more egregious than the plain error found in Garrett [v. State, 394 Md. 217 , 905 A.2d 334 (2006) ]. First, the ability of the jury to deliberate prematurely meant that the jurors may have begun deliberating after hearing only some of the State’s evidence, during one of the numerous recesses taken before the defense’s case.

From that point on, a juror may have selectively heard only what evidence from Mr. Jones-Harris’ case that reinforced his or her preliminary inclinations. Second, as stated above, the presence of the alternate juror during the premature discussions in the jury room suggests that Mr. Jones-Harris’ jury consisted actually of thirteen members, which is unconstitutional in the State of Maryland. Finally, in cases where the potential for premature deliberations is combined with the outside influence of an alternate juror’s presence, prejudice is presumed. The fact that a case with such serious charges against the defendant merited less than an hour of deliberation is highly suggestive that the jury had been deliberating throughout the trial.

Because an alternate was allowed to participate in jury deliberations, in contradiction of the Court of Appeals’ holding in Stokes [v. State, 379 Md. 618 , 843 A.2d 64 (2004) ], prejudice resulting from the erroneous jury instruction ⁸⁸ must be presumed and his conviction must be reversed under the “plain error” doctrine. We agree with appellant that the trial judge erred when he gave the two instructions about which appellant complains. While it is not required, “constitutionally, or by statute, rule or decision,” that a court instruct the jury at the beginning of a trial not to discuss the case until they are sent back to the jury room to reach a verdict, it is nevertheless a beneficial practice that serves to preclude any possibility of juror misconduct. Wilson v. State, 4 Md.App. 192, 200-01 , 242 A.2d 194 (1968). “The purpose of admonishing the jury not to discuss the case among themselves during trial is to avoid having the jurors form opinions regarding the verdict before they have heard all of the evidence in the case.” Summers v. State, 152 Md.App. 362, 379 , 831 A.2d 1134 (2003).

This general rule was enunciated almost fifty years ago in Midgett v. State, 223 Md. 282, 293 , 164 A.2d 526 (1960), when the Court said: It is, however, our established practice that an admonition be given by the trial court to the members of the jury, prior to their separation, against discussing the case with others or among themselves. Unquestionably, such a specific admonition would have been given, if requested, just as the trial judge of his own motion gave such an admonition on several occasions. The State, relying on Wilson v. State, supra, contends that it was not “error” for the court to give the two instructions at issue. We disagree.

In Wilson , the trial judge told the jury immediately before each of seven separations that it was not to discuss the case unless all jurors were together in the jury room. 4 Md.App. at 195 , 242 A.2d 194 . After the first admonition, defense counsel objected, arguing that the jury should be told that it was not to discuss the case until the end of trial when the case is sent to it. Id. The trial court disagreed, reasoning that it was not practical to think the jury would not discuss the case during a recess, and, so long as the jury is instructed not to take a vote or make any final ⁸⁹ determination, it was permissible to give the instruction it did.

Id. at 195-96 , 242 A.2d 194 . After Wilson was convicted, he appealed and argued that “before the case is finally submitted to the jury, [jurors] may not properly discuss it among themselves whether or not they are separated and therefore, the trial judge committed prejudicial error.” Id. at 196 , 242 A.2d 194 . This Court rejected that argument, noting that we “[did] not agree that it necessarily follows that an accused is denied a fair trial and due process of law because of the absence of an admonition not to discuss the case before its final submission to them or because they are told, in effect, that they may so discuss it.” Id. at 198, 242 A.2d 194 (emphasis added). Because there was “no hint or suggestion that the verdict of the jury was not based solely on the evidence and the whole of the evidence or that the jurors committed their minds until all the evidence was presented to them” we held that the defendant was not prejudiced by the trial court’s instruction to the jury.

Id. at 199-200 , 242 A.2d 194 . As noted, in this case the trial judge told the jury, before any witnesses were called, that they were not to discuss the case unless all thirteen were together in the jury room. After receiving this instruction, but before any evidence was presented, the court had a short recess and instructed the jury to retire to the jury room. All told, prior to being sent back to reach a verdict, there were three recesses, including the luncheon recess, where the twelve jurors, plus the alternate, were left alone in the jury room after they had heard evidence.

At the close of all the evidence at appellant’s one-day trial, and after hearing closing arguments and receiving instructions, the alternate juror was excused, and the remaining twelve jurors were sent back into the jury room to deliberate. This case is not controlled by Wilson , because here the court said, in effect, that the jurors and the alternate could discuss the case prior to hearing all the evidence. The Court of Appeals has recognized that alternate jurors “clearly are different than regular jurors ... and, in a sense, their status ⁹⁰ is that of a third party.” Stokes v. State, 379 Md. 618, 633 , 843 A.2d 64 (2004) (citing Commonwealth v. Smith, 403 Mass. 489 , 531 N.E.2d 556, 559 (1988)) (“alternate jurors, as long as they remain alternates, really are not jurors”). The Stokes Court explained that the presence of alternate jurors during the jury deliberations is considered by the Court of Appeals “as sufficiently impinging upon [a] defendant’s constitutional right to a jury trial as guaranteed by the Maryland Constitution and Maryland Rules of Procedure to create a presumption of prejudice.” Id. at 638 , 843 A.2d 64 .

The participation of an alternate not only “breachfes] the sanctity and privacy of the jury deliberations” but results in the alternate lacking any accountability for his participation. Id. at 634 , 843 A.2d 64 (reasoning that “[a]n alternate juror, as an unauthorized individual, is not committed to the decision and is not faced with the ultimate and weighty responsibility to decide the case”). As noted supra, appellant relies heavily on Stokes to support his claim that we should reverse his conviction based on unpreserved error. In Stokes , the defendant entered a plea of “not criminally responsible,” and the trial judge, during the guilt/innocence phase of the trial, retained four alternate jurors and permitted them to participate in jury deliberations. 8 Id. at 623 , 843 A.2d 64 .

The jury was initially instructed by the court that all sixteen of the jurors needed to be unanimous when reaching a verdict. Id. At some point after the case was submitted to the jury and deliberations had begun, the trial court realized that the alternate jurors should not have been permitted to partake in deliberations. Id. at 623-24 , 843 A.2d 64 .

Over objection by defense counsel, the trial court instructed the jury that the alternate jurors could remain in the jury room, yet could not participate while the twelve jurors reached a verdict. Id. at 625 , 843 A.2d 64 . In reversing the defendant’s conviction, the Stokes Court noted that “[t]he presence of alternate jurors who have no legal standing ⁹¹ as jurors injects an improper influence on jury deliberations and impairs the integrity of the jury trial. Prejudice must be presumed where alternates breach the sanctity of the jury room.” Id. at 638 , 843 A.2d 64 .

Appellant argues that here, as in Stokes , the presence of the alternate juror during “deliberations” in this case requires this Court to recognize “plain error” and reverse his conviction. Contrary to appellant’s argument, Stokes is not dispositive. In this case, because appellant’s counsel never objected at trial or asked the judge to question the venireperson as to what, if anything, had been discussed, we have no way of knowing whether any juror discussed the case in the presence of an alternate juror. All we do know is that the alternate juror was not present “when the jury retire[d] to consider its verdict.” Stokes, 379 Md. at 636 , 843 A.2d 64 (quoting Hayes v. State, 355 Md. 615, 635 , 735 A.2d 1109 (1999)).

This is important because it is only when the door closes for jury deliberation that prejudice is presumed. In Stokes , one of the major issues was: At what point can an alternate juror be substituted for a regular juror. The Stokes Court said: We had the occasion in Hayes v. State, 355 Md. 615 , 735 A.2d 1109 (1999), to consider whether an alternate juror may be substituted for a regular juror after the alternate juror had been excused and after the jury had begun deliberations. Judge Wilner, writing for the Court, discussed the history of the use of alternate jurors in Maryland as well as in federal and other state courts.

At issue was the meaning of “when the jury retires to consider its verdict,” contained in Rule 4-312(b)(3). We concluded as follows: “[A]n alternate juror who remains qualified to serve may be substituted for a regular juror who is properly discharged, until s'wch time as the jury enters the jury room to consider its verdict and closes the door. We view the closing of the door as marking the point at which the ⁹² ability to substitute ends—the effective point at which we consider the jury to have commenced deliberations.” Id. at 635 , 843 A.2d 64 . Once the door has closed, prejudice to the defendant is presumed and reversal is required.

In so holding, we rejected “the Federal approach of circumventing the rule through an expansive harmless error or presumptive non-prejudice doctrine that is entirely foreign to our jurisprudence.” Id. The standard we adopted in Hayes we deemed to be a practical one, “because compliance with it can be established through objective and extrinsic evidence, without the need to question jurors as to what went on in the jury room after the door was closed—when deliberations really started.” Id. at 636 , 735 A.2d 1109 . * * ❖ The presence of alternate jurors during deliberations creates a presumption of prejudice that is effectively unrebuttable under most circumstances. The presumption may be rebutted, for example, by showing that the alternate juror was not in the jury room after the door was shut, see Hayes, 355 Md. 615 , 735 A.2d 1109 , or where the alternate juror entered the jury room merely to get a coat and deliberations had not yet begun, see People v. Rhodes, 38 Ill.2d 389 , 231 N.E.2d 400 (1967) (where alternate juror went into the jury room to get her coat and was not present during jury deliberations, her presence did not require reversal of defendant’s conviction). Id. at 636-37, 642, 843 A.2d 64 (footnote omitted) (emphasis added). 9 ⁹³ To summarize, the point at which the jury is considered to have “commenced deliberations” so that prejudice can be presumed is at “such time as the jury enters the jury room to consider its verdict and closes the door.” Id. at 636 , 843 A.2d 64 (emphasis added).

We would have to engage in the rawest form of speculation to conclude that the alternative juror ever deliberated or even discussed the case with the regular jurors. No such speculation would have been necessary if appellant had objected at a point when the trial court’s error could have been corrected. As shown from the excerpt from appellant’s brief, quoted supra, appellant contends that the unobjected to error in this case was “more egregious” then the error at issue in Garrett v. State, 394 Md. 217 , 905 A.2d 334 (2006). In Garrett , the Court of Appeals ruled that a panel of this court abused its discretion in failing to recognize plain error.

Id. at 224 , 905 A.2d 334 . In Garrett, the error committed by the trial judge occurred when it instructed the jury that the defendant could be convicted of attempted first-degree murder based on the doctrine of transferred intent. Id. at 225 , 905 A.2d 334 . In Harrison v. State, 382 Md. 477, 506-08 , 855 A.2d 1220 (2004), the Court of Appeals had previously held that the doctrine of transferred intent did not apply to attempted murder of an unintended victim.

In Garrett , a panel of this Court in an unreported decision, acknowledged that transferred intent was not the correct theory but refused to recognize plain error because the defendant could have been convicted under the legal theory of concurrent intent—even though the jury was not instructed as to that theory. 394 Md. at 225 , 905 A.2d 334 . Another panel of this Court, in Brady v. State (an unreported opinion), construing similar facts to those set forth in Garrett , recognized plain error and reversed Brady’s conviction. Id. The Court in Garrett held that we had abused our discretion in failing to recognize plain error.

Id. at 226-27 , 905 A.2d 334 . We disagree with appellant’s argument that the error by the trial judge in this case was as egregious as that in Garrett . In ⁹⁴ Garrett , the jurors were told that they could convict appellant of two serious crimes on a theory that was inapplicable. The jury then proceeded to convict Garret of those two crimes.

The Court of Appeals has previously held that a defendant is prejudiced when the court inaccurately supplies or omits in a jury instruction an element of a charged offense. State v. Brady, 393 Md. 502, 509-10 , 903 A.2d 870 (2006). In this case, as noted earlier, it is completely speculative as to whether the jurors ever discussed the case prior to the discharge of the alternate. Research has been conducted by the National Center for State Courts into the issue of whether pre-deliberation discussions are actually prejudicial: From June 1997 to January 1998, researchers from the National Center for State Courts (NCSC), in cooperation with the Arizona Supreme Court, conducted a field experiment on pre-deliberation discussions in civil jury trials in the superior courts of four Arizona counties.

In this six-month study, trials were randomly assigned a “Trial Discussions” designation, signifying a trial in which jurors were instructed that they could discuss the evidence before final deliberations, or a “No Discussions” designation, signifying a trial in which pre-deliberation discussions were prohibited. Pre-deliberation discussion juries were advised that they could only discuss the evidence in the jury room and only when all of the other jurors were present. After every trial, questionnaires asking for a variety of information about the case were distributed to jurors, judges, attorneys, and litigants. Approximately 160 civil trials were studied.

Based on an evaluation of the results of the questionnaires, the researchers offered the following findings about pre-deliberation discussions among jurors. First, the researchers found that many of the juries that were permitted to discuss the case before deliberations did not. This result was related to the length and complexity of the cases. “Jurors in short, uncomplicated trials were less ⁹⁵ likely to discuss the