Ogundipe v. State

GREENE, J. Petitioner Olusegun Ogundipe (Ogundipe) was convicted of multiple offenses following a jury trial in the Circuit Court for Washington County. 1 Before this Court, Ogundipe argues that thé trial court erred in not disclosing the contents of the verdict sheet used by the jury in its deliberations. Specifically, Ogundipe presented one question for our review, which we have reworded for clarity: Whether there is a duty of the trial court to disclose a signed verdict sheet to a defendant or his counsel before the jury is discharged? 2 ⁶¹ Ogundipe argues that the verdict sheet was a “communication” between the court and the jury, which was required to be disclosed in accordance with Maryland Rule 4 — 326(d). 3 Rule 4-326(d) requires the court to notify and disclose to counsel any jury communication received, before responding to the communication. We shall hold that the jury verdict sheet is not a communication within the meaning of the Rule, and we therefore affirm the judgment of the Court of Special Appeals in holding that the trial court did not err in failing to disclose the contents of the verdict sheet prior to dismissing the jury. FACTS AND PROCEDURE Ogundipe was charged with multiple crimes stemming from his involvement in an incident that occurred on July 23, 2006, in which Jackson Augustin Rodriguez was killed, Tony Perry was seriously injured, and Steven Ramel Broadhead was assaulted. 4 We adopt the following facts as stated by the ⁶² Court of Special Appeals in Ogundipe v. State, 191 Md.App. 370 , 991 A.2d 200 (2010): After a two-day trial, which began on May 13, 2008, the judge instructed the jury concerning its deliberations, as follows: Alright, ladies and gentlemen of the jury, you will retire to consider your verdict in this matter.

As I indicated, there is a verdict sheet that will be given to you. It consists of twelve questions. Questions One and Two relate to the charges of first and second degree murder of Jackson Rodriguez. Question is: As to the charge of first degree murder of Jackson Augustin Rodriguez, on or about July twenty-three 2006, how do you find the defendant Olusegun Hakeem Ogundipe, guilty or not guilty?

You’re given further instruction then: If your answer to that question would be not guilty, then I would ask you to consider Question Number Two, which is second degree murder of Jackson Rodriguez. After you have done that, then Question[s] Three and Four relate to the attempted first and second degree murder of Tony Perry. You would consider first degree murder. If your answer to that would be not guilty then you would consider attempted second degree murder of Tony Perry.

Questions Five and Six relate to the first degree assault of Jackson Augustin Rodriguez. Using the same means of analysis, Questions Seven and Eight relate to the first and second degree assault of Tony Perry. And Questions Nine and Ten relate to the first and second degree assault of Steven Broadhead. Question Eleven relates to the charge of the use of a handgun in the commission of a crime of violence.

I would ask you to once again consider the instructions that ⁶³ were given. Before you consider that question and the last question is as to the charge of wearing and carrying and transporting a handgun. How do you find the defendant, guilty or not guilty? Once again, I would remind you that your decision must be unanimous.

In other words, all twelve of you must agree. Two hours after the jury retired to deliberate, the court reconvened, and the following discourse took place: The Court: Alright, the defendant is present. Please bring the jury in. (The jury returns to the jury box.) Alright, the jury is present.

The defendant and counsel are present. It’s my understanding the jury has reached a verdict. Is that correct? Foreman: Yes, sir.

The Court: Okay. Mr. Clerk, if you would take the verdict of the jury, please. Clerk: Yes, sir. Ladies and gentlemen of the jury, are you agreed as to your verdict?

If so, please answer, “We are.” Jury: We are. Clerk: Who shall say for you? Jury: Our foreman. Clerk: Please stand.

As to the charge of first degree murder of Jackson Augustin Rodriguez ... how do you find the defendant ... guilty or not guilty? Foreman: Guilty[.] Clerk: As to the charge of attempted first degree murder of Tony Perry ... how do you find the defendant ... guilty or not guilty? Foreman: Guilty[.] Clerk: As to the charge of first degree assault of Jackson Augustin Rodriguez ... how do you find the defendant ... guilty or not guilty? Foreman: Not guilty. ⁶⁴ Clerk: As to the charge of second degree assault of Jackson Augustin Rodriguez ... how do you find the defendant ... guilty or not guilty?

Foreman: Not guilty. Clerk: As to the charge of first degree assault of Tony Perry ... how do you find the defendant ... guilty or not guilty? Foreman: Guilty[.] Clerk: As to the charge of use of a handgun in the commission of a crime of violence ... how do you find the defendant ... guilty or not guilty? Foreman: Guiltyf.] Clerk: As to the charge of wearing, carrying and transporting a handgun ... how do you find the defendant ... guilty or not guilty?

Foreman: Guilty. After the foreman [announced] the jury’s verdict, the clerk of the court hearkened the verdict. The clerk stated: Ladies and gentlemen of the jury, hearken your verdict as the Court hath recorded it. Your foreman saith that Olusegun Hakeem Ogundipe is guilty of first degree murder of Jackson Augustin Rodriguez on or about July 23, 2006.

That Olusegun Hakeem Ogundipe is guilty of attempted first degree murder of Tony Perry on or about July 23, 2006. That Olusegun Hakeem Ogundipe is not guilty of first degree assault of Jackson Augustin Rodriguez on or about July 23, 2006. That Olusegun Hakeem Ogundipe is not guilty of second degree assault of Jackson Augustin Rodriguez on or about July 23, 2006. And Olusegun Hakeem Ogundipe is guilty of first degree assault of Tony Perry on or about July 23, 2006.

That Olusegun Hakeem Ogundipe is guilty of first degree assault of Steven Ramel Broadhead on or about July 23, 2006. That Olusegun Hakeem Ogundipe is guilty of the charge of use of a handgun in the commission of a crime of violence on or about July 23, 2006. And that Olusegun Hakeem Ogundipe is guilty of wearing, ⁶⁵ carrying and transporting a handgun on or about July 23, 2006. And so say you all?

If so, please answer, “We do.” After the jury replied, “We do,” Ogundipe’s counsel requested that the jury be polled. Each juror was asked individually, “[I]s this your individual verdict?” Each responded, “Yes.” Ogundipe, 191 Md.App. at 373-76 , 991 A.2d at 202-04 (emphasis added). Once the verdict was announced orally, and the jury was polled and hearkened, the verdict was recorded. Following trial, defense counsel obtained the completed verdict sheet, which listed the charges and the corresponding verdicts: Question Number Question or Instruction Verdict 1 [First degree murder of Rodriguez] -x — GUILTY_NOT GUILTY If your answer to Question 1 is not guilty, please consider Question 2.

If your answer to Question 1 is guilty, please answer Question 3. 2 [Second degree murder of Rodri- _GUILTY -x — NOT GUILTY guez] 3 [Attempted first degree murder of -x — GUILTY_NOT GUILTY Perry] If your answer to Question 3 is not guilty, please consider Question 4. If your answer to Question 3 is guilty, please answer Question 5. 4 [Attempted second degree murder _GUILTY -x — NOT GUILTY of Perry] 5 [First degree assault of Rodriguez] _GUILTY -x — NOT GUILTY If your answer to Question 5 is not guilty, please consider Question 6. If your answer to Question 5 is guilty, please answer Question 7. 6 [Second degree assault of Rodri- _GUILTY -x — NOT GUILTY guez] 7 LFirst degree assault of Perry] -x — GUILTY_NOT GUILTY ⁶⁶ If your answer to Question 7 is not guilty, please consider Question 8. If your answer to Question 7 is guilty, please answer Question 9. 8 [Second degree assault of Perry] _GUILTY-x — NOT GUILTY 9 [First degree assault of Broadhead] -x — GUILTY_NOT GUILTY If your answer to Question 9 is not guilty, please consider Question 10.

If your answer to Question 9 is guilty, please answer Question 11. 10 [Second degree assault of Broad- _GUILTY -x — NOT GUILTY head] 11 [Use of a handgun in commission of -x- — GUILTY_NOT GUILTY a crime of violence] 12 [Wearing, carrying, and transport- -x — GUILTY_NOT GUILTY ing a handgun] With regard to the issue on review, we focus on Ogundipe’s objection to the contents of the verdict sheet and the failure of the trial court to disclose to counsel the verdict sheet. The trial judge instructed the jury to “consider” the second degree charge if the jury’s answer to the corresponding first degree charge was not guilty. Reinforcing this, the language in the verdict sheet instructed the jury, following the charge of first degree murder of Rodriguez, “If your answer to Question 1 is not guilty, please consider Question 2. If your answer to Question 1 is guilty, please answer Question 3,” where Question 2 asked the jury to determine whether the defendant was guilty of second degree murder, and Question 3 asked about a separate charge.

The same language was employed for the charges of first degree murder of Perry and the first degree assaults of Rodriguez, Perry, and Broadhead. This instruction implies that if the jury finds the defendant guilty of the charge in the first degree, the jury should skip the next question, containing the same charge in the second degree, and should presumably leave that question blank because it merely inquires about the lesser included offense. The jury did not follow verbatim the trial judge’s instructions on how to utilize the verdict sheet; rather than leaving the second degree offenses blank when it determined that ⁶⁷ Ogundipe was guilty of the first degree offenses, the jury instead checked the boxes marked “NOT GUILTY.” For example, the jury found Ogundipe guilty of the offense listed in Question 1, first degree murder of Rodriguez. Rather than leaving Question 2, second degree murder of Rodriguez, blank, the jury instead checked the box marked “NOT GUILTY.” Pursuant to the instructions, however, the clerk did not ask the foreperson to recite the jury verdict for Questions 2, 4, 8, or 10, which contained the lesser included offenses for which the jury found Ogundipe guilty of the greater offenses.

Ogundipe appealed the verdict to the Court of Special Appeals, arguing that the trial judge erred in not reading the verdicts for the lesser included offenses and that the verdict sheet constituted an inconsistent verdict. Ogundipe, 191 Md.App. at 377 , 991 A.2d at 205 . The Court of Special Appeals affirmed the jury’s verdict and held: The clerk of the court was following the directions of the circuit court by skipping the second degree questions after the jury announced that the defendant was guilty of the charges in the first degree. Once the jury found the defendant guilty of the crimes in the first degree, there was no reason to consider the second degree charges as they legally merged with the greater charges.

Ogundipe, 191 Md.App. at 382 , 991 A.2d at 207-08 . The intermediate appellate court stated that “the verdict sheet itself is a tool for the jury to utilize in deciding its verdict but it does not constitute the verdict” in itself. Ogundipe, 191 Md.App. at 381 , 991 A.2d at 207 . The court concluded that the hearkening and polling of the jury as to the questions which were orally announced “reflected the jury’s unanimous verdict,” and the verdict was therefore valid.

Ogundipe, 191 Md.App. at 383 , 991 A.2d at 208 . Ogundipe argued, in the alternative, that the verdict sheet was a “communication” under Rule 4 — 326(d), and he therefore asserted that the Circuit Court erred in failing to disclose the contents of the verdict sheet. The Court of Special Appeals ⁶⁸ stated that whether Rule 4-326(d) applies to a jury verdict sheet “appears to be a question of first impression.” Ogundipe, 191 Md.App. at 384 , 991 A.2d at 209 . To answer the question, the court consulted the procedure for returning a jury verdict under Rule 4-327, 5 in order to determine whether the proper procedure was followed.

Id. The court held that Rule 4-327 does not require the judge to review the verdict sheet or to show the verdict sheet to the defendant at any time during the return of the verdict. Moreover, the jury verdict sheet is not a “communication” from the jury to the court seeking a response by the court. Its purpose is to facilitate the deliberations of the jury.

Ogundipe, 191 Md.App. at 385 , 991 A.2d at 209 . Therefore, the court held, “the [trial] court was not required to notify or disclose the verdict sheet to the parties[.]” Ogundipe, 191 Md.App. at 385 , 991 A.2d at 209-10 . We granted Ogundipe’s petition for writ of certiorari. Ogundipe v. State, 415 Md. 40 , 997 A.2d 791 (2010).

DISCUSSION The question presented in the petition for writ of certiorari encompasses ..two separate issues. First, in addressing Ogundipe’s claim that there was an inconsistent or confusing verdict, we will discuss whether the signed verdict sheet constituted the jury’s verdict. Second, we will address whether the ⁶⁹ verdict sheet was a “communication” which was required to be disclosed under Maryland Rule 4-326(d). In order to determine whether a verdict sheet constitutes the jury’s verdict, we first turn to Jones v. State, 384 Md. 669 , 866 A.2d 151 (2005).

In Jones , four counts against the defendant relating to a robbery were submitted to the jury. Jones, 384 Md. at 675 , 866 A.2d at 154-55 . After deliberations, when the jury returned to the courtroom, the courtroom clerk asked the foreperson for the verdict on three of the four counts, and the foreperson answered “guilty” on each of those three counts. Jones, 384 Md. at 675-76 , 866 A.2d at 155 .

The jury was then polled and the verdict was hearkened only as to the three counts. Jones, 384 Md. at 676-77 , 866 A.2d at 155 . The clerk never inquired about the fourth count. Id.

The completed verdict sheet, however, reflected that the jury marked Jones guilty on all four counts. Jones, 384 Md. at 676 n. 9, 866 A.2d at 155 n. 9. The verdict sheet was filed in the record, Jones, 384 Md. at 675 n. 9, 866 A.2d at 155 n. 9, and Jones was later sentenced for all four counts. Jones, 384 Md. at 677 , 866 A.2d at 156 .

On appeal, Jones argued that the verdict as to the count that was not orally conveyed, polled, or hearkened “should not stand because the jury foreman did not announce the guilty verdict in open court.” Id. We agreed with Jones, reversing the Court of Special Appeals, which held that “substance will prevail over form even if the guilty verdict is not announced[.]” Id. We held that a verdict is not valid until orally conveyed and either polled or hearkened. Jones, 384 Md. at 678 , 866 A.2d at 156 .

In reaching this conclusion, we reviewed the historic procedures for returning a verdict, and we stated that the “ ‘return’ of a verdict by a jury has been comprised of three distinct procedures, each fulfilling a specific purpose.” Jones, 384 Md. at 682 , 866 A.2d at 159 . First, the foreman orally answers the inquiry of the clerk, stating the verdict of the jury in open court. Id. (citation omitted).

Second, the jury is polled “to ensure the unanimity of the verdict prior to its entry on the record.” Id. (citing Smith v. State, 299 Md. 158, 166 , 472 A.2d 988, 992 (1984)). Third, the jury is heark ⁷⁰ ened to its verdict as a “ ‘traditional formality announcing the recording of the verdict.’ ” Jones, 384 Md. at 684 , 866 A.2d at 160 (quoting Smith, 299 Md. at 166 , 472 A.2d at 991 ). We noted that hearkening and polling are conducted to “ ‘secure certainty and accuracy, and to enable the jury to correct a verdict, which they have mistaken, or which their foreman has improperly delivered.’ ” Id.

(quoting Smith, 299 Md. at 165 , 472 A.2d at 991 ). Turning to the issue before us in Jones , we held that “for a verdict to be considered final in a criminal case it must be announced orally,” and thus the verdict for the count which was not announced orally, polled, or hearkened, was not valid. Jones, 384 Md. at 685-86 , 866 A.2d at 160-61 . Subsequently, in State v. Santiago, 412 Md. 28, 40 , 985 A.2d 556, 562 (2009), we reaffirmed the procedure outlined in Jones .

In Santiago , the foreperson stated the verdict for multiple charges in open court, but the jury was not polled and the verdict was not hearkened. Santiago, 412 Md. at 33-34 , 985 A.2d at 559 . We held that “the clerk’s failure to hearken the verdict was fatal and rendered the jury’s verdict defective____ The failure to hearken the verdict rendered the verdict a nullity.” Santiago, 412 Md. at 41-42 , 985 A.2d at 563 ; see also Heinze v. State, 184 Md. 613, 616 , 42 A.2d 128, 130 (1945) (“It is a fundamental principle that the verdict of a jury in a criminal case has no effect in law until it is recorded and finally accepted by the court.”). In the present case, while Ogundipe focuses his argument on whether or not the verdict sheet was a communication, Ogundipe also implies that the verdict sheet itself was the verdict, referring to the verdict sheet as “the ultimate communication,” and arguing that a “large portion of the verdict ... went unspoken and unaddressed[.]” Ogundipe claims that the contents of the verdict sheet constituted “evidence of confusion, inconsistency, and potential acquittal[.]” Ogundipe also maintains that the verdict sheet evidenced an inconsistent verdict, stating that