Jones v. State

BATTAGLIA, Judge. This case requires us to determine whether a guilty verdict must be orally given prior to a request to have the jury polled and hearkened 1 to its verdict. We conclude a sentence is illegal if based upon a verdict of guilt that is not orally announced 2 in open court in order to permit the jury to be polled and hearkened to the verdict. I. Background On November 5, 2001, Kerwin Jones held up Mohammed Shaik at gunpoint as Shaik was walking to the First Union Bank at 1515 Reisterstown Road to make a deposit encased in a money bag from the gas station where he was employed.

Shaik struggled with Jones, and within moments, Jones had shot Shaik-in the leg, had run from the scene, and entered a car driven by Samuel Murray. Through their investigation, the police determined that Jones was the individual who shot Shaik. ⁶⁷³ On November 19, 2001, Jones was arrested; the police executed a search warrant on Jones’s home and discovered a bulletproof vest, ammunition, and a box for a .380 semiautomatic handgun. Thereafter, Jones and Murray were charged in one indictment: Jones was charged with two counts of assault in the first degree, 3 attempted robbery with a dangerous and deadly weapon, 4 attempted robbery, 5 attempted theft and theft, 6 three counts of wearing, carrying or transporting a ⁶⁷⁴ handgun, 7 and three counts of possession of a restricted firearm. 8 The charges against Murray were identical to those ⁶⁷⁵ against Jones, except that Murray was not charged with three counts of possession of a firearm by a person previously convicted of a felony or crime of violence or the theft count. On September 80, 2002, trial began, and on its third day, the State abandoned Counts one (assault — in the first degree), four (assault in the first degree), five (attempted theft), and eight (use of a handgun in the commission of a felony).

The Court also entered judgments of acquittal for Counts six (wearing, carrying, or transporting a handgun) and twelve (theft); and entered judgments nolle prosequi at the request of the State for Counts ten (possession of a firearm by a person convicted of a violent crime classified as a felony) and eleven (possession of a firearm by a person convicted of a violent crime classified as a misdemeanor). On the same day, the jury received instructions from the judge, a verdict sheet, and began its deliberations on the remaining four counts against Jones: attempted robbery with a dangerous and deadly weapon (Count two), attempted robbery (Count three), possession of a firearm by a person convicted of a crime of violence (Count nine), and use of a handgun in the commission of a crime of violence (Count seven), and three counts against Murray: attempted robbery with a dangerous and deadly weapon (Count two), attempted robbery (Count three), and the use of a handgun in the commission of a crime of violence (Count seven). After deliberating for approximately two hours, the jury returned a guilty verdict against Murray on all three counts and was polled and hearkened to the verdict. In the proceedings pertaining to Jones, 9 the following dialogue ensued: ⁶⁷⁶ THE CLERK: Madam forelady, ladies and gentlemen of the jury, have you agreed upon a verdict in the case of State v. Kerwin Jones, case number 01-CR-4391.

JUROR: We have. THE CLERK: Who shall say for you? JUROR: Our forelady. THE CLERK: Madam forelady, if you would stand.

As to the case 01-CR-4391, State of Maryland v. Kerwin Jones, how do you find as to attempted robbery with a dangerous and deadly weapon, not guilty or guilty as charged? MADAM FORELADY: Guilty as charged. THE CLERK: As to Count two, attempted robbery, not guilty or guilty as charged? MADAM FORELADY: Guilty as charged.

THE CLERK: As to possession of a handgun in the commission of a crime of violence, not guilty or guilty as charged? MADAM FORELADY: Guilty as charged. MR. PARVIZIAN [counsel for Jones]: Would you poll the ladies and gentlemen of the jury please.

THE CLERK: You can be seated. The Court has recorded in the aforesaid case, in case number 01-CR-4391, State of Maryland v. Kerwin Jones you have found a verdict of guilty of attempted robbery with a dangerous and deadly weapon, you have found him guilty of attempted robbery, and you have found him guilty of the use of a deadly weapon in the commission of a crime of violence. Is that your verdict juror number 1? The clerk polled the jurors individually and each juror responded affirmatively.

The clerk then hearkened the jury to the verdict stating: Hearken to the verdict as the Court has recorded it, in case No. 01-CR-4319, State of Maryland v. Kerwin Jones, your ⁶⁷⁷ forelady said that you find him guilty of attempted robbery with a dangerous and deadly weapon; find him guilty of attempted robbery, find him guilty of possession of a handgun in the commission of a crime of violence and so say you all? JUROR[S]: Yes. The trial court then excused the jury and postponed sentencing for Jones until November 6, 2002, without there having been any acknowledgment of the discrepancy between the verdict sheet upon which Jones was found guilty of the four Counts submitted and the hearkened verdicts. On November 6, 2002, Jones was sentenced to twenty years incarceration for the charge of attempted robbery with a dangerous and deadly weapon (Count two), twenty years incarceration without the possibility of parole for the first five years for the use of a handgun in the commission of a crime of violence (Count seven), and five years incarceration for the possession of a firearm by a person previously convicted of a felony or crime of violence (Count nine). 10 Each of the sentences was to be served concurrently.

Jones did not object to the imposition of the sentence for the use of a firearm after a conviction, which had not been orally conveyed in the courtroom and to which the jury had not been polled or hearkened. On March 26, 2003, Jones noted his appeal to the Court of Special Appeals. Before that court, Jones argued that “his conviction for possession of a firearm by a person previously convicted of a felony or crime of violence should not stand because the jury foreman did not announce the guilty verdict in open court.” In an unpublished opinion, the Court of Special Appeals noted, where it is unmistakable that the jury found the defendant guilty, “substance will prevail over form even if the guilty verdict is not announced and even if it is neglected again when the jury is polled.” Ultimately, the ⁶⁷⁸ court declined to disturb the sentence imposed for the firearm possession charge and concluded that the issue was not properly preserved by Jones because he had failed to object at any time when the verdict was delivered or when he was sentenced. Jones filed a petition for writ of certiorari in this Court for consideration of the following question: When a jury returns a verdict sheet showing a guilty verdict, but fails to announce the verdict in open court, does the trial court violate Maryland Rule 4-327 by accepting the verdict, and does such a violation render the imposed subsequent sentence illegal?

On August 25, 2004, we granted Jones’s petition and issued the writ of certiorari. Jones v. State, 382 Md. 688 , 856 A.2d 723 (2004). We hold that the trial court could not legally impose a sentence for a verdict that was not orally conveyed in open court and to which the jury was neither polled nor hearkened. Therefore, we reverse the decision of the Court of Special Appeals.

II

Standard of Review A court’s revisory power over a defendant’s sentence is provided in Maryland Rule 4-345, which states in relevant part: (a) Illegal sentence. The court may correct an illegal sentence at any time. As we have oftentimes stated, a sentence may be corrected even on appeal. See Evans v. State, 382 Md. 248, 278 , 855 A.2d 291, 308 (2004); Ridgeway v. State, 369 Md. 165, 171 , 797 A.2d 1287, 1290 (2002); State v. Kanaras, 357 Md. 170, 183-84 , 742 A.2d 508, 516 (1999); State v. Griffiths, 338 Md. 485, 496 , 659 A.2d 876, 882 (1995); Matthews v. State, 304 Md. 281, 288 , 498 A.2d 655, 658 (1985), quoting Walczak v. State, 302 Md. 422, 427 , 488 A.2d 949, 951 (1985).

In Ridgeway , we explained that “when the trial court has allegedly imposed a sentence not permitted by law, the issue should ordinarily be reviewed on direct appeal even if no objection was made in the trial ⁶⁷⁹ court. Such review and correction of an illegal sentence is especially appropriate in light of the fact that Rule 4-345(a) ... provides that ‘[t]he court may correct an illegal sentence at any time.’ ” Ridgeway, 369 Md. at 171 , 797 A.2d at 1290 , quoting Walczak, 302 Md. at 427 , 488 A.2d at 951 ; see also Evans, 382 Md. at 278 , 855 A.2d at 308-09 .

III

Discussion Jones argues that because the verdict for the charge of possession of a firearm by a person previously convicted of a felony or crime of violence was not orally announced in open court, the trial court’s imposition of sentence on that count was illegal. He asserts that Maryland Rule 4-327(a) 11 requires that the verdict not merely be handed to the clerk but that it also be read aloud into the record. He maintains that announcement in open court is required because of its relationship to a party’s right to poll the jury as a means of ensuring the unanimity of the verdict. Alternatively, Jones states, the announcing in open court permits polling of jurors to that verdict if requested to do so and hearkening of the jury to that verdict.

He asserts that because the verdict was not announced in open court, he was deprived of his opportunity to poll the jury and the jury was never properly hearkened to Count nine of the indictment, possession of a firearm by a person previously convicted of a felony or crime of violence. As such, Jones notes that there was no assurance that the guilty verdict on the verdict sheet with respect to Count nine was in fact unanimous. Jones argues that the use of “shall” in Rule 4-327(a) makes the announcing of the verdict in open court mandatory for the verdict to be effective. Conversely, the State urges this Court to affirm the decision reached by the Court of Special Appeals.

The State asserts that Jones did not properly preserve this issue for appeal because he did not bring the missing verdict for Count nine to ⁶⁸⁰ the trial court’s attention and did not object at the time the trial court imposed the sentence. Moreover, the State contends that Jones should have objected to the trial court’s instruction that the jury was to return its verdict on the verdict sheet if he intended to argue that to “return” a verdict requires it to be announced in open court rather than simply recorded on a form that appears in the record. The State argues that the probable handing of the verdict sheet to the clerk should be considered “returning” the verdict in open court for the purposes of Rule 4-327(a). It maintains that Jones’s claim regarding the failure to announce the verdict with respect to Count nine should only be considered an attack on the form of the verdict rather than its substance.

The State asserts that the delivery of the verdict sheet to the clerk in open court in Jones’s presence satisfied the requirements of Maryland Rule 4-327. Therefore, according to the State, there is no support for Jones’s claim that the verdict at issue is invalid. A. Historic Procedures for Returning the Verdict The protocol for the return of verdicts at trial in Maryland in the late Nineteenth Century was articulated in Givens v. State, 76 Md. 485, 487 , 25 A. 689, 689 (1893): When the jury have come to a unanimous determination with respect to their verdict, they return to the box to deliver it. The clerk then calls them over, by their names, and asks them whether they agree on this verdict, to which they reply in the affirmative.

He then demands who shall say for them, to which they answer, their foreman. This being done, he desires the prisoner to hold up his right hand and addresses them: ‘Look upon the prisoner at the bar; how say you, is he guilty of the matter whereof he indicted or not guilty?’ The foreman then answers guilty or not guilty, as the verdict may be. The officer then writes the word ‘guilty' or ‘not guilty’ as the verdict is, on the record and again addresses the jury: ‘Hearken to your verdict as the court hath recorded it. You say that_is guilty (or ⁶⁸¹ not guilty) of the matter whereof he stands indicted, and so say you all.’ This procedure for returning a verdict is nearly identical to those used in the Provincial Court established during the colonial period.

See Proceedings of The Provincial Court, 1666-1667, at 64 (describing how the jurors returned to the courtroom, the clerk called their names, asked if they agreed on their verdict, and who was to speak for them). Moreover, it was standard practice throughout the rest of the United States as long ago as the early Nineteenth century. See James Parker, The Conductor Generalis, 323-24 (1801) (providing procedures identical to those used in the Provincial Court); Samuel Freeman, The Massachusetts Justice, 40 (1802) (same); Samuel Bayard, An Abstract of those Laws of the United States Which Relate Chiefly to the Duties and Authority of the Judges of the Inferior State Courts, and the Justices of the Peace, Throughout the Union, 230 (1804) (same); 1 Joseph Chitty, A Practical Treatise on the Criminal Law, 436-37 (1819) (stating that verdicts in criminal cases must be given publicly, not privately, in the accused’s presence); 4 Joseph Chitty, A Practical Treatise on The Criminal Law, 318, 421 (1819) (providing procedures identical to those used in the Provincial Court of Maryland). Maryland Rule 4-327(a) and (e) 12 embody the essence of this historical procedure for “returning” a verdict.

This Rule is identical to former Maryland Rule 759, 13 which was derived ⁶⁸² from Rule 40 of the Uniform Rules of Criminal Procedure promulgated by the National Conference of Commissioners on Uniform State Laws. 14 Former Md. Rule 759, ed. note. Former Rule 759(a) and (e) were recodified without any change on April 7, 1986 as Maryland Rule 4-327(a) and (e). Md. Rule 4-327(a), (e). Throughout the Rule’s many incarnations there has been no comment on what procedures are necessary for a jury to “return” a verdict.

Nevertheless, we do know that the “return” of a verdict by a jury has been comprised of three distinct procedures, each fulfilling a specific purpose. After the jury returned to the jury box to deliver its verdict, the foreman, speaking for the jury,, orally answered the inquiry of the clerk and stated the verdict to the trial court. Givens, 76 Md. at 487 , 25 A. at 689 . Although in the colonial period, polling occurred immediately upon the jury’s return to the court regardless of a failure to request to do so, id., at some point after 1893, the request to poll the jury came to be made after the oral announcement of the verdict.

Smith v. State, 299 Md. 158, 166 , 472 A.2d 988, 992 (1984). A poll of the jury is conducted to ensure the unanimity of the verdict prior to its entry on the record. Id. at 166 , 472 A.2d at 991 . “The underlying requirement of a final verdict is that it be unani ⁶⁸³ mous.” Id. at 163 , 472 A.2d at 990 . The requirement of unanimity is, of course, a constitutional right set forth in Article 21 of the Maryland Declaration of Rights, which states that “every man hath a right ... to a speedy trial by an impartial jury, without whose unanimous consent he ought not to be found guilty,” and implemented through Rule 4-327(a).

This Court explained this constitutional right in Ford v. State, 12 Md. 514 (1859): ‘The verdict is the unanimous decision made by the jury and reported to the court, on the matters lawfully submitted to them in the course of the trial.’ Unanimity is indispensable to the sufficiency of the verdict. Id. at 549 , quoting 10 Bacon’s Abridged Title Verdict, 306 (emphasis in original). 15 A defendant has the absolute right to poll the jury, Smith, 299 Md. at