Kenney v. State

BISHOP, Judge. Appellant, Earl Michael Kenney, was convicted by a jury in the Circuit Court for Prince George’s County of battery and transporting a handgun. App'ellant was sentenced to imprisonment for five years, with all but two years suspended, for the battery conviction. For the handgun conviction, appellant was sentenced to imprisonment for three years, with all but one year suspended, to run consecutively with the sentence for the battery conviction.

Issues Appellant raises the following issues: ²⁹¹ I. The trial court erred by restricting his efforts to impeach the victim’s testimony by showing that her statements and conduct subsequent to the incident in question were inconsistent with appellant having committed the offenses against her.

II

The trial court erred by permitting the prosecutor to argue the missing witness rule during his closing argument.

III

The trial court erred by permitting the case to be decided by eleven jurors without engaging in any inquiry on the record to insure that this election was knowing and voluntary. Because we find merit in appellant’s third argument, we need not address the first and second issues. Facts Appellant’s convictions are the result of an alleged attack on Angela Yvonne Tillman, his former girlfriend. Following the trial, the jury left the courtroom to deliberate its verdict.

At the end of the day’s deliberations, the foreman of the jury advised the court that one member was scheduled to have surgery on the following Monday morning. The juror advised the court that she was to have breast surgery and that it could not be postponed. The following colloquy occurred: THE COURT: Okay. Wait a minute.

We have a choice. He [the defendant] can either go with 11, or I am not going to ask this lady to come back on Monday under the circumstances. We can either declare a mistrial, stay tonight or go with 11. [Defense Counsel]: I would assume it would have to be stay tonight or go with 11. I would have to ask my client if he would go with the 11, if that’s the alternative.

THE COURT: Why don’t you go down there and we will wait right now. [1] ²⁹² (The juror went back to the jury box.) ([Defense Counsel] returned to the bench and the following ensued:) [Defense Counsel]: Your Honor, could I ask the State’s Attorney if their intentions are to prosecute the case if it’s a mistrial? My client has advised me— THE COURT: You know they are going to prosecute him. [Defense Counsel]: My client has advised me that he does not want to interfere with this person’s surgery, and he will go with the 11. THE COURT: He will go with the 11? Okay.

Madam Foreman and ladies and gentlemen of the jury, this lady, there is no way I would ask her to come back on Monday under the circumstances, and both sides have agreed to go with 11, so we don’t have a problem. Discussion Appellant contends that the trial court erred in permitting an eleven member jury without engaging appellant in any inquiry on the record. We agree and explain. Maryland Rule 4-311 preserves the right to a trial by jury to parties in circuit court.

It also provides: (b) Number of Jurors. — A jury shall consist of 12 persons unless the parties stipulate at any time in writing or on the record that the jury shall consist of any number less than 12. This rule clearly allows for a stipulation to be made either in writing or orally on the record. In Williams v. State, 22 Md.App. 714 , 325 A.2d 427 (1974), we were asked to interpret Maryland Rule 743 which provided: Jurors — Number. A jury shall consist of twelve persons but at any time before verdict the parties may stipulate in ²⁹³ writing with the approval of the court that the jury shall consist of any number less than twelve.

The issue presented in Williams was whether Rule 743 required a written stipulation if a criminal case was to be tried with fewer than 12 jurors. Since this aspect of the Maryland Rule had not been construed previously, we relied on federal decisions which interpreted Rule 23(b) of the Federal Rules of Criminal Procedure. Rule 23(b), which is substantially similar to the former Maryland Rule 743, provided the following when Williams was decided: Jury of Less Than Twelve. Juries shall be of 12 but at any time before verdict the parties may stipulate in writing with the approval of the court that the jury shall consist of any number less than 12.

Currently Rule 23(b) provides: Jury of Less than Twelve. Juries shall be of 12 but at any time before verdict the parties may stipulate in writing with the approval of the court that the jury shall consist of any number less than 12 or that a valid verdict may be returned by a jury of less than 12 should the court find it necessary to excuse one or more jurors for any just cause after trial commences. Even absent such stipulation, if the court finds it necessary to excuse a juror for just cause after the jury has retired to consider its verdict, in the discretion of the court a valid verdict may be returned by the remaining 11 jurors. In Williams we held that a personal stipulation by an accused in open court, which is taken down by a court reporter, is equivalent to a stipulation in writing.