McKay v. State

Orth, J., delivered the opinion of the Court. Johnny McKay went to trial before a jury in the Criminal Court of Baltimore upon a general plea of not guilty to an ⁴⁵² indictment presenting that he committed armed robbery and seven related offenses. The trial ran a normal course to the retirement of the jury to consider their verdicts. The State presented its case.

Motions for judgment of acquittal to all but the first count, charging armed robbery, the third count, charging robbery, and the eighth count, charging the use of a handgun in the commission of a crime of violence, were granted at the close of evidence offered by the State. The defense put on its case. Motions for judgment of acquittal to the three remaining counts were denied at the close of all the evidence. Counsel made their arguments to the jury, the judge instructed, and the jury retired to deliberate the verdicts.

After deliberating an hour the jury returned to the courtroom. Upon the usual inquiry by the Clerk of the Court the jury announced through its forelady that they had agreed upon a verdict of not guilty as to the first count, but as to the third count that they were unable to arrive at a verdict: “As to the third count we could not come to a unanimous decision.” At this point the judge said: “Ladies and gentlemen of the jury, I thought I explained to you that you cannot come in with a verdict unless it is unanimous, otherwise you cannot return if you have not agreed unanimously. You must return to the jury room. If you cannot arrive at a verdict, then it is known as what is a hung jury and the entire verdict is thrown out, but you cannot come in and say you find for a certain portion of the verdict and that you cannot agree on the other portion.

You must make a definite determination, a unanimous determination.” The jury again retired, deliberated about an hour and a half and returned to the courtroom. At this point defense counsel asked to approach the bench, and there was a bench conference, at the conclusion of which defense counsel said, in open court: “I have discussed this with my client, Your Honor.” The judge requested counsel to “come back up to the bench”, and another bench conference ensued. The ⁴⁵³ proceedings at these bench conferences were not recorded. When counsel returned to the trial table, the judge announced: “Outside of the presence of the jury counsel for the Defendant, Mr. [Karl B.] Brockman, advised the Court that his client would accept a majority vote on the third count, which could not be unanimously agreed upon between the jurors.

Is that correct?” The transcript of the proceedings reads: “MR. BROCKMAN: That is correct, Your Honor. I explained to him that a vote for acquittal or conviction means that he could be found guilty on that count. Of course, the other two counts they said they had reached a verdict on.

DEFENDANT MC KAY: Have they — have ya’ll already had the number of the vote? MR. BROCKMAN: No, we don’t know what it is, that’s what is going to be decided now. It’s not even, it’s not six and six, I don’t think.

THE COURT: Nobody knows what the vote is. If you have more votes it’s not guilty and if you have seven to six it’s not guilty. Let me explain it to you so that you will understand. You are asking the Court to have the jury render a verdict on this case based on a majority vote.

Under the law of this State you have a right to insist upon a unanimous vote and if they do not come in with a unanimous vote you have a right for retrial, that is your constitutional right. DEFENDANT MC KAY: What will that mean, I'll have to be tried again? THE COURT: Yes. DEFENDANT MC KAY: The whole trial?

MR. BROCKMAN: The whole trial. DEFENDANT MC KAY: We’ll take what’s up. MR.

BROCKMAN: You will take what the majority is? ⁴⁵⁴ DEFENDANT MC KAY: Yes. THE COURT: The only thing is that I assume what they said earlier, and they have indicated that the first count is for acquittal and there seems to be a tie-up on the third count. I do not know what the third count is, guilty or not guilty, and as a result of what happens now if they come in with a guilty verdict on the third count, then it is guilty on the third count. If they come in with a majority for guilty then it would be guilty on the third count.

If the third count is a majority vote in your favor and they find for acquittal, then you will be found not guilty, that is the chance you will be taking. I want to explain everything to you because you have an absolute right under the law to have the whole trial tried all over again if you want to, and I will give you your option if you want to talk to anybody.” McKay said he would like to talk to his lawyer and the jury were directed to return to the jury room. After McKay and his counsel conferred, there was another bench conference at defense counsel’s request. Again the proceedings were unrecorded.

Then, in open court, but out of the jury’s presence, the judge queried McKay: “THE COURT: Now, Mr. McKay, you have had an opportunity to talk to your lawyer and I think he explained the situation very clearly to you. Do you have any members of your family here with you? DEFENDANT MC KAY: Yes, sir. THE COURT: Do you want to talk to any members of your family?

DEFENDANT MC KAY: No, sir. THE COURT: You do not? DEFENDANT MC KAY: No, sir. THE COURT: What is your option, do you want to accept a majority vote from the jury on any of the counts that they could not agree upon or do you want to have the case retried? ⁴⁵⁵ DEFENDANT MC KAY: Take the majority vote.

THE COURT: You want a majority vote? DEFENDANT MC KAY: Yes, sir. THE COURT: Do you understand what a majority vote is? DEFENDANT MC KAY: Yes, sir.

THE COURT: I have explained it to you and your attorney has explained it to you; is that right? DEFENDANT MC KAY: Yes, sir.” The jury returned to the jury box and their verdicts were received: “THE CLERK: Johnny McKay, stand up, please. Members of the jury, have you agreed upon a verdict? THE FORELADY: Yes.

THE CLERK: Madam Forelady, how do you say, is Johnny McKay guilty or not guilty as to Indictment No. 57501019 as to the first count? THE FORELADY: Not guilty. THE CLERK: As to the third count? THE FORELADY: The third count was undecided.

THE CLERK: What would the vote be as to the third count? THE FORELADY: The count was nine for guilty and three for not guilty. THE CLERK: The majority vote is guilty. As to the eighth count?

THE FORELADY: Not guilty. THE CLERK: Harken to the verdict as the Court has recorded it, you say that Johnny McKay as to Indictment No. 57501019 as to the first count is not guilty, as to the third count guilty by majority vote, and as to the eighth count not guilty.” The jury was polled and the verdict of nine for conviction, three for acquittal on the third count was confirmed. A ⁴⁵⁶ sentence of ten years incarceration under the jurisdiction of the Department of Correction was imposed. 1 McKay noted a timely appeal. The basic issue for decision concerns the requirement of unanimity in criminal jury trials.

Is unanimity of the jury’s verdict basic to the concept of trial by jury so as to be an imperative requirement of a legal verdict, or is it a right of the accused which he may waive? Trial by jury was looked upon as “the glory of the English law.” It was deemed “the most transcendant privilege which any subject can enjoy, or wish for, that he cannot be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbors and equals.” 3 W. Blackstone, Commentaries ³⁷⁹. The elements of a trial by jury at the common law were set out in Patton v. United States, 281 U. S. 276, 288 (1930): “(1) That the jury should consist of twelve men, neither more nor less; (2) that the trial should be in the presence and under the superintendence of a judge having power to instruct them as to the law and advise them in respect of the facts; and (3) that the verdict should be unanimous.” “When Englishmen colonized what came to be called the United States, they brought with them their common law heritage, including the right to jury. Although later scholars have disputed the Magna Carta as the source of that right, the colonists, as did other Englishmen, appealed to that declaration for the protection of the right to trial by jury.

The first ordinance passed by the Plymouth Colony in 1623 required that all criminal facts be tried by a jury of twelve honest men. In 1774, the colonies were party to the National Declaration of Rights which included the right to jury as the ‘birthright and inheritance’ of all Englishmen. Among the grievances ⁴⁵⁷ cited in the Declaration of Independence was the frequent deprivation by the Crown of the colonists’ right to jury.” (footnotes omitted) 22 DePaul L. Rev. 635 , 637 (1973). See Maxwell v. Dow, 176 U. S. 581 (1900), dissenting opinion of Mr. Justice Harlan at 605, which at 609-610 traces the history of trial by jury in England and colonial America.

As early as 1367, unanimity was required under English case law, even though the particular reasons for its initial development had abated. 26 U. Miami L. Rev. 277 , 279 (1971). 2 See 2 Pollock & Maitland, History of English Law before the Time of Edward I, (2d ed. 1898, reissued by Cambridge University Press, 1968) 625. The Constitution of the United States doubly guarantees the right to jury in criminal trials. Article III, § 2, provides: “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury . .. .” The sixth amendment declares: “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 ....” Patton construed the jury trial contemplated by Art. Ill and the sixth amendment. It said, at 288: “That it means a trial by jury as understood and applied at common law, and includes all the essential elements as they were recognized in this country and England when the Constitution was adopted, is not open to question.” Thus, as the common law jury required the unanimous verdict of twelve men, the federal jury could require nothing less.

That is the rule today. See Maxwell v. Dow, supra; Thompson v. Utah, 170 U. S. 343 (1898). 3 It seemed, however, ⁴⁵⁸ that although twelve member juries and unanimity were constitutionally required in federal courts, they were not necessities in state courts. Maxwell held that the states were not bound by the mandates of the United States Constitution; due process did not require states to have the same provisions as required in federal courts by the first eight amendments, and the privileges and immunities clause did not prohibit the states from having different jury provisions from those required by the federal constitution. 176 U. S. at 595 . Selective incorporation, making the Bill of Rights applicable to the states through the fourteenth amendment eroded this position.

The non-incorporation views of Maxwell were repudiated in Duncan v. Louisiana, 391 U. S. 145, 155 (1968). Duncan specifically held that the sixth amendment provision for trial by jury was applicable to the states. Id., 154-155 . The note in 43 U. Cin.

L. Rev. supra, at 586-587, points out that ordinarily when the Court held that a given amendment was applicable to the states, the federal standards also applied. See for example, Aguilar v. Texas, 378 U. S. 108 (1964); Malloy v. Hogan, 378 U. S. 1 (1964); Mapp v. Ohio, 367 U. S. 643 (1961). Thus, it seemed that states would be required to have twelve member juries rendering unanimous verdicts. Not so.

Williams v. Florida, 399 U. S. 78, 86 (1970) held that the fourteenth amendment did not require a state to have a twelve member jury. 4 Williams left open the question of whether a unanimous verdict would be required in the state courts by the due ⁴⁵⁹ process clause. 5 The question was resolved in the companion cases of Apodaca v. Oregon, 406 U. S. 404 (1972) and Johnson v. Louisiana, 406 U. S. 356 (1972). 6 Apodaca was convicted by a vote of eleven to one, the Oregon constitution permitting the jury to render a verdict with the concurrence of ten jury members. Johnson was convicted by a vote of nine to three, under a Louisiana constitutional provision allowing verdicts with the concurrence of nine jurors. Each argued that due process required unanimity. The Supreme Court first looked to the history of unanimity and of the sixth amendment and, as in Williams , was unable to divine the “intent of the Framers” as to what is meant by a jury.

Apodaca , at 407-410. It looked, therefore, to other than purely historical considerations and focused upon the function served by the jury in contemporary society. In Duncan, 391 U. S. at 156 , the Court said that the purpose of trial by jury is to prevent oppression by the government by providing a “safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge.” “Given this purpose,” the Court said in Williams, 399 U. S. at 100 , “the essential feature of a jury obviously lies in the interposition between the accused and his accuser of the commonsense judgment of a group of laymen ... .” Apodaca concluded that a “requirement of unanimity, however, does not materially contribute to the exercise of this commonsense judgment.” 406 U. S. at 410. Even in cases where unanimity is not required, the judgment will still be made by the accused’s peers.

Johnson dealt with the argument that unanimity also served the purpose of giving substance to the ⁴⁶⁰ reasonable doubt standard required by the due process clause in criminal cases. This argument is bottomed on the entity theory as to jury verdicts. The entity theory suggests that the jury returns its verdicts only as a whole, and that the reasonable doubt of one juror creates a reasonable doubt in the whole jury. Thus unanimity is required.

Johnson rejected this. It apparently followed the theory which views the jury as composed of individuals. The doubt of one juror does not permeate the entire jury’s verdict. The reasonable doubt standard is retained but the verdict of less than unanimity lessens the number of jurors who must be convinced that the standard has been met. “In our view disagreement of three jurors does not alone