Merritt v. State

ELDRIDGE, J. The defendant in this criminal case, Christopher Merritt, was convicted by a jury in the Circuit Court for Baltimore City of first degree premeditated murder, first degree felony murder, attempted armed robbery, and use of a handgun in the commission of a felony. Approximately two days after the trial, the State learned that the search warrant for the defendant’s home and other documents, not admitted into evidence, were mistakenly sent to the jury room during deliberations. Defense counsel’s motion for a new trial, based upon the erroneous submission of the documents, was denied. We issued a writ of certiorari to decide whether Merritt is entitled to a new trial.

I. The instant case arises from the murder of Brian Owens. The principal witness against the defendant Merritt was Arti-nus Shands, who claimed that he participated in the crime with Merritt. Shands testified for the State pursuant to a plea agreement. Under the agreement, in exchange for his ²⁰ truthful testimony and his guilty plea, Shands would receive a life sentence for murder, with all but fifty years suspended, and a concurrent sentence of twenty years for use of a handgun in the commission of a felony.

Shands’s testimony was as follows. Ronald Laboard, Owens, Merritt, Shands, and several others gathered for a dice game in the outside stairwell of the apartment building at 2404 Winchester Street in Baltimore City. At some point during the game, Owens had won more than a hundred dollars from each of the other players. As a result, according to Shands, Merritt became upset and decided to regain his money.

Merritt showed Shands a gesture with his hand suggesting a gun. Merritt and Shands then left the game and walked to the parking lot adjacent to the building. There, Merritt retrieved two handguns from his car. Shands said that Merritt gave Shands a nine millimeter handgun and Merritt took a .380 caliber handgun.

As they returned to the game, Merritt approached Owens, who was seated on the steps, and ordered him and the other players to lie down. Merritt pointed his gun at Owens and demanded the return of his money. Shands stated that Owens did not hand over the money, that Merritt’s gun “went off,” and that Shands and Merritt continued to shoot Owens. Owens fell to the bottom of the stairs, and Merritt, Shands, and Laboard fled in Merritt’s car without taking Owens’s money.

The police obtained arrest warrants for Merritt, Shands, and Laboard, charging each with the victim’s murder. In a taped statement, Merritt stated that he, Shands, Laboard and several others were rolling dice and drinking when two men approached and ordered them to get down. One of the men held a gun to Merritt’s head and took the money that was in his hand. When the men demanded money from Owens, he moved and was shot several times.

Following the shooting, everyone got up and ran from the scene. Merritt stated that he, Shands, and Laboard left together in Merritt’s car. Shands initially denied any knowledge of the incident. The police played him the portion of Merritt’s taped statement in ²¹ which Merritt said that Shands was present during the shooting.

Believing that Merritt had told the police that only Shands shot the victim, Shands told the police that both he and Merritt had been the shooters. At trial, Shands corroborated his taped statement. The State also introduced into evidence letters exchanged between Shands and Merritt after both of them were incarcerated awaiting trial. In those letters, each asked the other to tell his attorney that they had given false taped statements to the police because their families had been threatened.

Ronald Laboard, who is Merritt’s cousin, initially told the police that Merritt and Shands shot the victim. Laboard identified Merritt and Shands as the shooters from separate photographic arrays. The State eventually dropped the murder charges against Laboard. At the trial, however, Laboard testified that his initial statement to the police was false.

Laboard stated that he was with the others at the dice game but that he left the game after he lost his money. He testified that he was not present when the shooting took place. The State presented several police witnesses. Officer Eric Isom was the patrol officer who responded to the call that shots had been fired.

At the scene, Isom observed dice, a Bacardi rum bottle, and two baggies containing a white, rock-like substance. Kimberly Fowler was the crime lab technician on the scene. She recovered 19 cartridge casings as well as bullets and fragments. She also recovered two liquor bottles and some dice.

James Wagster, an expert on firearms, testified that the cartridge casings recovered from the scene were fired from a .380 caliber handgun and a .40 caliber Smith and Wesson handgun. As an explanation for Shands’s testimony that a .380 handgun and a nine millimeter handgun were used in the shooting, Wagner testified that a nine millimeter handgun and a .40 caliber handgun look alike. Two days after Merritt was convicted, the State learned from a juror that defense exhibit 6, which included the application for the search and seizure warrant for Merritt’s home, the warrant, the affidavit in support of the warrant, the inventory ²² return, and a copy of Merritt’s taped statement to police, were present in the jury room during deliberations. Exhibit 6 had been marked for identification only and had not been admitted into evidence.

The courtroom clerk, however, marked “Evid” on the exhibits list next to the line referring to exhibit 6, reflecting her erroneous belief that the exhibit had been admitted into evidence. Exhibit 6 contained an affidavit setting forth the credentials of Detective Carol Opher. Specifically, the affidavit stated that Opher had been a member of the Baltimore City Police Department for more than seventeen years and that, by executing search and seizure warrants in the past, she had obtained evidence that resulted in the convictions of over one hundred defendants. The affidavit also contained a statement from Detective Opher that, during interviews of witnesses, it was revealed that “one of the persons responsible for the murder of Brian Owens is Chris Merritt.” The affidavit disclosed that, while being interviewed, Merritt admitted to owning a .38 caliber handgun which he said could be found in his home.

According to the affidavit, Merritt also admitted owning a .380 caliber handgun. Furthermore, a transcript of Merritt’s taped statement to the police was included in exhibit 6. A redacted copy of that statement had been admitted into evidence at trial. In the portions of the statement which had been redacted before being admitted into evidence, but were not redacted in the statement included in exhibit 6, Merritt admitted to selling drugs before the murder and to owning a .38 caliber handgun.

Finally, the inventory return contained a listing of the property actually seized from Merritt’s residence. The list included a shoe box containing a green leafy substance, plastic baggies, and rolling papers. These items had not been admitted into evidence. In the motion for a new trial, defense counsel argued that the presence of exhibit 6 in the jury room during deliberations resulted in probable prejudice to Merritt.

The trial court denied the defense’s motion, stating: “After considering the ²³ quantity and quality of the other evidence produced at trial, it cannot be said that the” presence of exhibit 6 “in the jury room probably resulted in prejudice to the defense.” The court continued that “the information is harmless in light of the overpowering evidence in this case.” The Circuit Court concluded that Merritt “received a fair trial despite the unintentional submission by the courtroom clerk of extraneous material into the jury room during deliberations.” The Court of Special Appeals, in an unreported opinion, affirmed. Merritt filed in this Court a petition for a writ of certiorari which we granted. Merritt v. State, 359 Md. 28 , 753 A.2d 1 (2000).

II

The certiorari petition presented two questions, one relating to the appropriate standard for appellate review in this case and the other relating to the merits of the trial court’s denial of the motion for new trial. Merritt argues (petitioner’s brief at 11,16): “I. Under the circumstances [of this case], the proper standard of appellate review of the denial of a motion for a new trial is error, not abuse of discretion. * * * II. The court either erred, or in the alternative, abused its discretion in denying the motion for a new trial, when the motion was based on the fact that prejudicial documentary evidence which was never entered into evidence was erroneously submitted to the jury at the start of its deliberations.” The State, relying on a lengthy Court of Special Appeals’ opinion concerning the subject (Isley v. State, 129 Md.App. 611 , 743 A.2d 772 (2000)), and on language in older Court of Appeals’ opinions, first argues that trial judges’ rulings on motions for new trials are always discretionary matters, that a trial judge’s exercise of discretion in refusing to grant a new trial is “absolutely]” unreviewable on appeal, and that, in fact, “ ‘no appeal lies from the action of the court in overruling a ²⁴ motion for new trial’ ” (respondent’s brief at 7). According to the State, a trial judge’s denial of a motion for a new trial is subject to appellate review “only ... where no discretion was exercised by the judge in rendering his decision.” (Id. at 8).

Alternatively, the State argues that, if the denial of the motion for a new trial were renewable on appeal, the appropriate standard under the circumstances of this case is “the abuse of discretion standard of review” and that the trial judge’s “discretion to deny Merritt’s motion for a new trial ... was a proper exercise of his discretion.” (Id. at 10,18). A. Initially, we flatly reject the State’s argument and the thesis of Isley v. State, supra, 129 Md.App. at 639-674 , 743 A.2d at 784-806 , that the denial of a motion for new trial is absolutely unreviewable on appeal except for the situation where the trial judge has failed to exercise any discretion. As explained in detail by Judge McAuliffe for the Court in Buck v. Cam’s Rugs, 328 Md. 51, 54-59 , 612 A.2d 1294, 1296-1298 (1992), the Maryland case law governing appellate review of rulings on motions for new trials has changed and evolved over the years. Moreover, language from older cases has sometimes been carelessly repeated in more recent cases without taking into consideration the changes in the law.

The State’s argument in the case at bar, however, represents an effort to change the present law, to adopt a rule from the past, and to require that our most recent cases on the subject be overruled. This we decline to do. The early opinions of this Court clearly took the position that a trial court’s ruling on a motion for a new trial was not subject to appellate review under any circumstances. The ruling would not have been subject to appellate review even when the trial judge refused to exercise any discretion.

This principle of non-reviewability, set forth in the early cases, seems to have been based, at least in part, on the limited scope of, and requirements of, writs of error and bills of exceptions. See Anderson v. State, 5 H. & J. 174, 175 (1821). See also, e. g., Marine Ins. Co. v. Hodgson, 10 U.S. 206 , 6 ²⁵ Cranch 206, 218, 3 L.Ed. 200, 203-204 (1810); Balto.

Paint Works v. Parts Co., 173 Md. 210, 215 , 195 A. 558, 561 (1937) (referring to “the common-law rule that exceptions must be settled and signed before verdict”); Davis v. Carroll, 71 Md. 568, 569 , 18 A. 965 (1889); Bond v. Citizens’ National Bank, 65 Md. 498, 501-502 , 4 A. 893, 895-896 (1886); Donohue v. Shedrick, 46 Md. 226, 229-231 (1877); Archer v. State, 45 Md. 457, 460 (1876) (“The facts which were relied upon ... for a reversal of the ruling ... on the motion for a new trial, are contained in a bill of exceptions, and all of them were offered ... upon the motion for a new trial. It is very clear that no such bill of exceptions is authorized by law”); Baltimore v. Reynolds, 18 Md. 270, 272-273 (1862); Wall’s v. Wall’s, 2 H. & G. 79, 81 (1827). Furthermore, the principle that rulings on motions for new trials were unreviewable on appeal appears to have been simply an application of the more general rule, adhered to by appellate courts at an earlier time, that any trial court ruling on a discretionary matter was insulated from appellate review. As this Court stated in Wall’s v. Wall’s, supra, 2 H. & G. at 81 , “where the subject decided by the inferior Court is left by law to their discretion, ... it has been adjudged that a writ of error will not lie.” See, e.g., Marine Ins.

Co. v. Hodgson, supra, 10 U.S. 206 , 6 Cranch at 217-218 , 3 L.Ed. at 203-204 ; Wash., B. & A. Railroad Co. v. Kimmey, 141 Md. 243, 251 , 118 A. 648, 651 (1922) (referring to the “ ‘rule that a discretionary ruling is not reviewable on appeal’ ”). An exception to the principle that rulings on motions for new trials were not reviewable on appeal was first discussed by this Court in Browne v. Browne, 22 Md. 103, 112-113 (1864). In Browne , after a jury verdict, counsel for the losing party filed a motion for a new trial accompanied by affidavits of four jurors who stated that another juror was sick during the trial and the jury deliberations, that the sick juror was opposed to the verdict arrived at by the other jurors, and that the sick juror “assented to it in order to obtain his release from the confinement of the jury room.” Id. at 113 . The trial ²⁶ court held that the statements by the four jurors were inadmissible and denied the motion for a new trial.

On appeal, in setting forth the general rule of non-reviewa-bility, this Court in Browne for the first time qualified what had previously been stated as an absolute rule. The Court said (id. at 112, emphasis added): “[EJvery motion for a new trial, is addressed to the sound legal discretion of the court; and therefore no error can be ordinarily assigned with regard to the decision of the court below upon such motion.... ” The Browne opinion went on to explain the exception argued for by the appellant (ibid.): “[B]ut it is argued that the refusal to admit the evidence offered in support of the motion, was error in law, from which appeal lies; because thereby the appellant was deprived of the exercise of the judgment and discretion of the court upon the case as presented by the proof, to which he had a legal right. This is certainly a very nice distinction, but we are not prepared to say it may not be a sound one.... ” The Court then assumed arguendo that the exception should be recognized and held that the trial judge did not err (id. at 113): “Without meaning to express any opinion upon the general proposition involved in the appellant’s argument, it is very clear, that even conceding the right of appeal on this branch of the case, the decision of the Superior Court ought not to be reversed, if this Court should be of opinion, either that the testimony was properly excluded, or that it was immaterial and insufficient if admitted, to affect the validity of the verdict.” The Court upheld the trial judge’s ruling on the ground “that ‘the testimony of jurors cannot be heard to impeach their verdict....’”Ibid. The “exception” discussed in the Browne opinion was applied by this Court in Wash., B. & A. Railroad Co. v. Kimmey, supra, 141 Md. 243 , 118 A. 648 , which involved a motion for a ²⁷ new trial based on newly discovered evidence.

In Kimmey , as in Browne , the motion for a new trial was accompanied by affidavits setting forth testimony, and the trial judge excluded the evidence. This Court, holding that the exclusion of the evidence constituted error, and relying on the language from Browne , reversed the denial of the motion for a new trial. The Court explained ( 141 Md. at 250 , 118 A. at 650-651 , emphasis added): “The general rule is that the disposition of a motion for a new trial is within the sound discretion of the trial court and is not a subject of appeal____ The exception now under consideration, however, is not directed to the action of the court in overruling the motion for a new trial, but to its exclusion of evidence by which its judgment and discretion in regard to the motion should properly have been influenced. The defendant was entitled to the exercise of a sound discretion, in the disposition of its motion.

A discretion could not be characterized as sound which wholly disregarded evidence by which its exercise should have been aided.” It has been suggested that the language in Browne and the