Sayles v. State

Karon Sayles v. State of Maryland, No. 2794, Sept. Term, 2018; Dalik Daniel Oxely v. State of Maryland, No. 2797, Sept. Term 2018, Bobby Jamar Johnson v. State of Maryland, No. 2798, Sept. Term 2018. Opinion filed on April 1, 2020, by Berger, J. CRIMINAL LAW – JURY NULLIFICATION Jury nullification is a jury’s knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself or because the result dictated by law is contrary to the jury’s sense of justice, morality, or fairness. The power of juries to nullify is well-established. CRIMINAL LAW – JURY NULLIFICATION – ARGUMENT TO THE JURY AND INSTRUCTION BY THE COURT It is improper for parties to argue nullification to the jury and for the trial court to expressly instruct the jury that it is permitted to disregard the court’s instructions on the law.

CRIMINAL LAW – JURY NULLIFICATION – RESPONSE TO JURY QUESTION REGARDING NULLIFICATION When a trial judge received a question from the jury asking about its power to nullify a verdict, the trial court committed reversible error when it instructed the jury that nullification is “contrary to law” and would “violate” a court order. Because a jury’s power to nullify is well-established, it cannot be said to be “contrary to law.” The trial court’s instruction that nullification would “violate” a court’s order suggested that jurors could face legal consequences for engaging in jury nullification, and there is no legal authority to support such an instruction. CRIMINAL LAW – JURY NULLIFICATION – RESPONSE TO JURY QUESTION REGARDING NULLIFICATION – DEFINITION OF JURY NULLIFICATION When instructing the jury that nullification was “contrary to law,” the trial court defined jury nullification as “a juror’s knowing and deliberate rejection of the evidence or refusal to apply the law.” It is the motivation for the rejection of evidence that makes a rejection jury nullification, not simply the rejection itself. It is the jury’s role to determine the credibility of witnesses, weigh conflicting evidence, and determine what evidence to accept and what to reject.

By instructing the jury that jury nullification, which the court defined as the “knowing and deliberate rejection of the evidence or refusal to apply the law,” was contrary to the law and would violate a court order, the trial judge not only provided an instruction containing an inaccurate statement of law but also usurped the jury’s role as factfinder. CRIMINAL LAW – MOTION TO SUPPRESS – IMPERMISSIBLY SUGGESTIVE PHOTO ARRAY The trial court did not err by denying a motion to suppress when digital alterations to the other photographs in an array, which were made in order to make all of the faces appear to have a similar facial tattoo, were not obvious and did not draw attention to the appellant’s photograph. Circuit Court for Montgomery County Case Nos. 132377, 132379, 132381 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND Nos. 2794, 2797, 2798 September Term, 2018 ______________________________________ KARON SAYLES v. STATE OF MARYLAND ______________________________________ DALIK DANIEL OXELY v. STATE OF MARYLAND ______________________________________ BOBBY JAMAR JOHNSON v. STATE OF MARYLAND ______________________________________ Berger, Arthur, Eyler, James R. (Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Berger, J. Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document ______________________________________ is authentic.

Suzanne Johnson 2020-04-01 12:04-04:00 Filed: April 1, 2020 Suzanne C. Johnson, Clerk Karon Sayles, Dalik Daniel Oxely and Bobby Jamar Johnson (collectively, the “appellants”) were convicted of multiple offenses stemming from a home invasion and armed robbery that occurred in Silver Spring, Maryland on August 1-2, 2017. Also charged with committing the home invasion and related crimes were Younus Muayad Alaameri and Edwin Ajeo, both of whom entered guilty pleas before the appellants’ trial began. The appellants were tried together before a jury in the Circuit Court for Montgomery County. On appeal, the appellants present six issues for our review,1 which we have rephrased as follows: 1.

Whether the circuit court abused its discretion by denying the appellants’ motion to recuse the trial court judge. 2. Whether the circuit court’s jury instructions regarding jury nullification contained inaccurate statements of law. 3. Whether the circuit court’s jury instructions regarding jury nullification were impermissibly coercive and violated the appellants’ constitutional right to a fair trial. 4. Whether the circuit court abused its discretion by denying the appellants’ motions for mistrial. 5.

Whether the circuit court erred by denying Sayles’s motion to suppress photographic identifications. 6. Whether all but one of the appellants’ convictions and sentences for conspiracy should be vacated. 1 Each appellant filed a separate brief in this case and not all of the appellants presented argument on each of the issues. Sayles presented argument on all of the appellate issues. Oxely and Johnson each presented argument on some of the appellate issues, but, in addition, Oxely and Johnson adopted by reference any arguments asserted by co-appellants to the extent that those arguments could be asserted by and applied to each appellant.

For the reasons explained herein, we shall hold that the trial court’s instructions regarding jury nullification contained inaccurate statements of law that prejudiced the appellants. We, therefore, shall vacate the appellants’ convictions and remand for a new trial. Because the issue premised upon the trial court’s denial of Sayles’s motion to suppress is likely to arise on retrial, we shall also address this issue. We shall not address the remaining appellate issues.

FACTS AND PROCEEDINGS2 At the time of the incidents forming the basis for the appeal, Aracely Ochoa resided in a two-bedroom apartment in Silver Spring, Maryland, which she shared with her husband, David Rivera; Ms. Ochoa’s mother and stepfather, Blanco Armina Campos and Rolando Callejas; and Ms. Ochoa and Mr. Rivera’s minor son, D.R. Ms. Ochoa worked as a manager at a nearby Cash Depot store, where customers would come to cash checks and send money orders. On August 1, 2017, Ms. Ochoa worked until approximately 8:30 p.m., after which she took the bus home. She left shortly thereafter to pick up her son from her sister’s home. When leaving for her sister’s home, Ms. Ochoa observed a group of men outside her apartment who were dressed like maintenance workers.

After Ms. Ochoa left, four men knocked on the apartment door. Mr. Rivera opened the door; the men claimed they were there for maintenance and insisted on entering the apartment. When Ms. Ochoa returned 2 The issues raised on appeal are largely unrelated to the evidence presented at trial. We present the following limited factual background in order to provide context.

We do not endeavor to present the evidence adduced at trial in detail. 2 with D.R., the apartment door was open and four men were inside with Mr. Rivera. Mr. Callejas was also present in the apartment, but Ms. Campos was still at work. Ms. Ochoa took D.R. to a bedroom to put him to bed. When Ms. Ochoa returned to the living room, the four men asked her about remodeling the apartment.

A fifth man entered the apartment shortly thereafter. Ms. Ochoa recalled that all five men were wearing gloves. Ms. Ochoa recognized one of the men, Younus Alaameri, as a regular customer at Cash Depot. Alaameri would come into Cash Depot to wire money to Iraq; Ms. Ochoa referred to him as “Iraq” or “the Iraqi.” Alaameri asked the rest of the men if they were “ready,” after which four of the men suddenly attacked Mr. Rivera while the man Ms. Ochoa identified as Bobby Johnson held her down.

Mr. Rivera, Ms. Ochoa, and Mr. Callejas were bound with zip-ties and forced to lie face- down on the floor. Alaameri asked Ms. Ochoa for the keys to the Cash Depot and for the alarm system code. Alaameri hit Ms. Ochoa in the head with a pocket-knife and threatened to harm D.R. if Ms. Ochoa did not cooperate. Ms. Ochoa told Alaameri that the keys were in her purse and provided the code to the safe.

Ms. Ochoa told Alaameri that she did not have the code to the alarm system. Ms. Ochoa explained at trial that the alarm system activated automatically at 10:00 p.m. and would always be deactivated by the time she arrived at work at approximately 7:30 a.m. the next morning. Alaameri sent Johnson and Oxely to the Cash Depot. Alaameri told Ms. Ochoa that if the alarm went off at the Cash Depot and she received a telephone call from the alarm company, she should tell them that the two people were cleaning the store.

Johnson and 3 Oxely returned to the home and informed the other men that the alarm had sounded when they attempted to enter the Cash Depot. Alaameri threatened to gouge Ms. Ochoa’s eye if she did not provide the alarm code. At approximately midnight, Mr. Callejas’s telephone rang. Ms. Campos was attempting to call and tell her husband that she was on her way home from work.

After the telephone rang, the men took Ms. Ochoa, Mr. Rivera, and Mr. Callejas into a bedroom and put them on the bed. When Ms. Campos arrived home at approximately 1:00 a.m., she was dragged through the door. One of the men took her purse and put a knife to her side. She was taken to the bedroom where the other family members were located and a blanket was thrown over her face.

Alaameri brought Ms. Ochoa to the living room and told her that she would be going to Cash Depot with some of the men. Alaameri threatened to kill D.R. if Ms. Ochoa made “any stupid step.” Johnson and Oxely accompanied Ms. Ochoa to Cash Depot in Ms. Ochoa’s family’s van. When they arrived, Ms. Ochoa’s boss was there, so they returned to the apartment. After they returned, Alaameri told Ms. Ochoa that the new plan was that Ms. Ochoa would go to work in the morning and retrieve the money then.

On the morning of August 2, 2017, Ms. Ochoa was driven to Cash Depot again. This time, she was accompanied by Johnson only. When they arrived, they discovered a crossbar on the door preventing access. At some point while Ms. Ochoa and Johnson were gone, Oxely put a knife to Mr. Rivera’s neck and Mr. Rivera’s neck began to bleed.

Mr. Rivera and Oxely engaged in “a scuffle” and Oxely dropped the knife, after which Sayles handed Oxely another knife and 4 Oxely “slashed” Mr. Rivera. Mr. Rivera was able to gain possession of the knife and went out to the living room. Mr. Rivera yelled “police” repeatedly, and Oxely ran out the front door. Mr. Callejas broke a window and climbed out to seek help.

Mr. Callejas went to a bus stop, where he found a telephone to call police. Ms. Campos also climbed through the window. When Ms. Ochoa and Johnson returned from the Cash Depot, Ms. Ochoa saw Ms. Campos running across the street. Johnson told Ms. Ochoa to make Ms. Campos go back into the apartment and threatened D.R.’s life.

Ms. Ochoa, Ms. Campos, and Johnson returned to the apartment; Mr. Rivera opened the door and pulled Ms. Ochoa and Ms. Campos inside. Johnson “took off running.” At this point, all of the assailants had left the apartment. Police were called. After the incident, several items, including a computer, watches, documents, and currency, were missing from the apartment.

Police officers arrived at the apartment at approximately 8:00 a.m. The appellants, Alaameri, and Ajeo were ultimately identified as the men involved in the home invasion and were each charged with forty-two offenses, including home invasion, kidnapping, armed robbery, assault, multiple conspiracy offenses, and other associated offenses. Ajeo entered a guilty plea and testified against the appellants at trial. His testimony described the agreement among the five men to make “quick money” by using Ms. Ochoa to rob the Cash Depot store.

Ajeo further testified regarding the planning undertaken by the five men in the days preceding the home invasion. Following a jury trial, Sayles was found guilty of home invasion, multiple counts of armed robbery, kidnapping, second-degree burglary, first-degree assault, multiple counts of second-degree assault, multiple counts of false imprisonment, motor vehicle theft, and 5 associated conspiracies. Sayles was sentenced to a total term of forty-two years in prison. Oxely was found guilty of home invasion, multiple counts of armed robbery, kidnapping, second-degree burglary, first-degree assault, multiple counts of second-degree assault, multiple counts of false imprisonment, motor vehicle theft, and associated conspiracies.

Oxely was sentenced to a total term of fifty years’ imprisonment. Johnson was found guilty of home invasion, multiple counts of armed robbery, kidnapping, second-degree burglary, multiple counts of second-degree assault, multiple counts of false imprisonment, motor vehicle theft, and associated conspiracies.3 Johnson was sentenced to a term of forty years’ imprisonment.4 Additional facts shall be discussed as necessitated by our consideration of the issues on appeal. DISCUSSION I. The first issues we shall address on appeal focus on the circuit court’s response to several jury notes inquiring about jury nullification. 3 Unlike his co-defendants, Johnson was found not guilty of first-degree assault and conspiracy to commit first-degree assault. 4 The length of sentences set forth for each appellant includes multiple sentences that were ordered to be served concurrently. 6 A. Relevant Procedural Background On the first day of jury deliberations on August 29, 2018, the jury sent its first of three notes5 about jury nullification, inquiring, “Do we have the right to use jury nullification of a charge?” Counsel for Oxely deferred to the court on how to respond. Counsel for Johnson argued, “[O]ur position would be that [the circuit court should] instruct the jury that deliberations and rendering the verdicts [are] in the sole providence [(sic)] of the jury.” Counsel for Sayles asked the court to answer, “Yes.” The trial court instructed the jury (the “First Nullification Instruction”) as follows: “Your verdict must be based solely on the evidence.

Your choices are not guilty or guilty. Reread your instructions.” The court noted Johnson’s and Sayles’s objections to the court’s supplemental instruction. Later the same day, the jury sent another note, asking, “Can you answer the jury nullification with a yes or no response?” The record reflects that the circuit court met with counsel in chambers to discuss the note, but the record is silent as to the content of the discussion in chambers. Thereafter, the circuit court verbally instructed the jury as follows (the “Second Nullification Instruction”): Now, I am not a hundred percent sure that the juror or jurors that wrote the question have the same definition of jury nullification as the law has it.

But if it is, then here’s the answer. Here’s what jury nullification is. Jury nullification, a juror’s knowing and deliberate rejection of the evidence or refusal to apply the law, 5 The jury sent a total of nineteen notes over three days of deliberation. 7 that’s considered jury nullification.[6] And the answer is no, you can’t have jury nullification. You have to decide this case based on the evidence as you find it and apply the law as I gave it to you.

You decide the facts, the weight of the evidence, you, the 12, then you apply the law. To say you can do jury nullification would be a miscarriage of justice because there’d be no reason reading you the law and no reason you considering the evidence. And that wouldn’t make sense would it? You are the only ones that weigh the evidence.

You decide what weight you want to give it, what you find. Once you get to where you are with the evidence, you take the law as I give it to you, you put it together and apply it and try and reach a verdict. So, your decision is going to be made on the evidence, applying your common sense, your past life experiences and you’re going to take the law and apply it to all of that. So, nullification shouldn’t even be a consideration.

It’s not on the verdict sheet. It’s not in the instructions. Okay, I think I’ve said enough on that. After the circuit court finished instructing the jury, counsel for Sayles placed his objection to the court’s instruction on the record, explaining “we object to the instruction that was given.

What we asked for [was] that the jury be told that they are the ones who will ultimately decide the facts as they see them and apply the law.” Thereafter, the jury was dismissed for the evening. The jury returned to continue deliberations the next morning. The circuit court received another note inquiring about jury nullification, which provided as follows: 6 It appears that the trial court’s definition of jury nullification was drawn from the Black’s Law Dictionary, which defines “jury nullification” as “[a] jury’s knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself or because the result dictated by law is contrary to the jury’s sense of justice, morality, or fairness.” Jury Nullification, Black’s Law Dictionary (11th ed. 2019). 8 Why if there is a legal definition of jury nullification where a juror can refuse to apply the law, there’s no legal circumstances where that can occur. Can you please cite the specific law that does not allow a juror the right to jury nullification in the State of Maryland.

From juror 112. Counsel for Johnson argued that the jury had already been provided a definition of jury nullification and asserted that “it seems that there’s some inkling of belief that the elements are not being met.” Counsel for Johnson requested the court instruct the jury that “it is not the providence [(sic)] of the Court to second-guess the juror’s analysis of the evidence” and to reiterate that the options were guilty or not guilty. Counsel for Sayles argued that “there is no law that does not allow a juror the right to jury nullification.” Counsel for Sayles continued: [T]he best that I’ve been able to find is there’s case law saying that it’s not proper for the judge to instruct the jury at the attorney’s request and it’s not proper to make arguments in closing, but I’m not aware of any law that says that the jury cannot use nullification. I would suggest that we cite the Maryland Constitution Article 23 in the trial [of all] criminal cases, the jury shall be the judges of the law as well as of fact.

The clause ends, except that the Court could pass upon a sufficiency of the evidence to sustain a conviction, I don’t know that that last clause is necessary, but I think that what the jury wants to know is, is there any law that does nor does not allow a juror the right to jury nullification in the State of Maryland, I think the answer is no. But I think the Maryland Constitution does provide the closest possible answer which is the jury shall be the judge of law as well [of] fact . . . . The circuit court responded that the jury is “not the judge of the law” and the court explained that it was “not going to advise [the jury] of anything close to it.” The court explained that it intended to direct its written instruction to Juror 112, who had been identified on the jury note. Counsel for Johnson asked the court to direct the note to the 9 foreperson, explaining, “I just don’t want [Juror 112] to feel like we’re ganging up on him.” The circuit court acquiesced and did not address the response to Juror 112 specifically.

The circuit court informed the parties of its intended instruction and commented, “I believe that the Defense, all three defendant[s] would object to that instruction for the reasons you’ve stated, correct?” The transcript reflects that counsel for Sayles and counsel for Johnson responded, “Yes.” The court subsequently instructed the jury (the “Third Nullification Instruction”) as follows: Ladies and gentlemen of the jury you may not use, implement or resort to jury nullification. It is improper, it’s contrary to the law [and] would be a violation of your oath to truly try and reach a verdict according to the evidence, which you all took that oath. Furthermore, nullification would violate this Court’s order and it’s the law of Maryland that “you must apply the laws I explained it in arriving at your verdict,” sincerely me. I’ll give you a copy of that.[7] 7 The written instruction given to the jury was slightly different than the trial court’s oral instruction and provided: Jurors: You may not use or implement or resort to jury nullification.

It is improper, contrary to the law and would be a violation of your oath to “truly try to reach a verdict according to the evidence.” Furthermore, nullification would violate to [(sic)] Court’s Order that “you must apply to [(the)] law as I explain it in arriving at your verdict.” Sincerely, [The Trial Judge] The minor differences between the oral instruction and written instruction are irrelevant to our analysis. 10 The circuit court followed its instruction on jury nullification with a modified Allen instruction.8 The appellants assert that the circuit court’s Second and Third Nullification Instructions contained inaccurate statements of law that deprived the appellants of their constitutional rights to a fair trial. In the alternative, the appellants assert that the circuit court’s instructions on jury nullification were impermissibly coercive and violated the appellants’ rights to a fair trial. As we shall explain, we agree with the appellants that the trial court’s Second and Third Nullification Instructions were legally incorrect and prejudicial. B. Preservation First, we briefly address preservation arguments raised by the State in response to certain of the appellants’ arguments regarding the alleged impropriety of the circuit court’s responses to the jury’s notes regarding jury nullification.

The State asserts that appellant Oxely’s challenge to the circuit court’s nullification instructions is not preserved. The State emphasizes that Oxely did not lodge an objection to the circuit court’s First or Second Nullification Instructions and did not answer in the affirmative when the trial court 8 While the circuit court was considering its response to the third jury nullification note, the jury sent another note asking, “What do we do in the case of the presence of guilty and non-guilty votes and we feel that further deliberations will not change these votes.” In response, the circuit court gave the modified Allen charge. “The term Allen instruction is a legal eponym derived from a United States Supreme Court opinion approv[ing] the use of an instruction in which the jury was specifically asked to conciliate their differences and reach a verdict.” State v. Hart, 449 Md. 246 , 255 n.1 (2016) (quotation omitted). 11 inquired, before issuing the Third Nullification Instruction, “all three defendant[s] would object to that instruction for the reasons you’ve stated, correct?” With respect to Johnson, the State acknowledges that Johnson objected to the First Nullification Instruction, but asserts that the only basis for Johnson’s objection was that the instruction was “a little bit coercive.” The State observes that Johnson did not raise an objection to the Second Nullification Instruction and that, although Johnson answered “yes” after the trial court inquired as to whether he was objecting to the Third Nullification Instruction, Johnson did not object after the trial court provided the supplemental instruction. The State further emphasizes that Johnson specifically argued that the court should instruct the jury that the court would not “second-guess the juror’s analysis of the evidence” and did not argue -- as did Sayles -- that the court’s proposed instruction was an inaccurate statement of law. The State acknowledges that Sayles argued before the circuit court that the Second and Third Nullification Instructions were not accurate statements of law, but Sayles did not specifically argue that the content of the court’s instructions was coercive.

We are left to untangle this procedural thicket of which issues are preserved as to which appellants. Rule 4-323(c) governs objections to rulings or orders beyond those concerning evidence and provides as follows: For purposes of review by the trial court or on appeal of any other ruling or order, it is sufficient that a party, at the time the ruling or order is made or sought, makes known to the court the action that the party desires the court to take or the objection to the action of the court. 12 Generally, “in cases involving multiple defendants each defendant must lodge his own objection in order to preserve it for appellate review and may not rely, for preservation purposes, on the mere fact that a co-defendant objected.” Williams v. State, 216 Md. App. 235, 254 (2014). “One defendant, of course, may expressly join in an objection made by a co-defendant but he must expressly do so. It is not implicit.” Id. An exception to this rule exists when the trial court makes clear that its ruling applies to all defendants.

Bundy v. State, 334 Md. 131, 145-47 (1994). We are persuaded that Sayles objected to all three of the nullification instructions on the basis that the instructions were inaccurate statements of law. Johnson objected to the First and Third Nullification Instructions, arguing that the court should instruct the jury that the court would not second-guess the verdict of the jury. Oxely did not expressly place his objection on the record, but the circuit court declared its belief, before giving the Third Nullification Instruction, that “all three defendant[s] would object to that instruction.” The circuit court’s stated belief could have caused counsel for Oxely to conclude that voicing an express objection would be, at that point, redundant.

Furthermore, the court’s express belief that all three defendants intended to object to the instruction indicates that the trial court’s ruling was expressly applicable to all defendants. Bundy, supra, 334 Md. at 145-47 . To the extent that the issues related to the nullification instructions may be unpreserved, and to the extent that the appropriateness of the trial court’s nullification instructions was challenged before the trial court on different grounds by different appellants, we shall nonetheless exercise our discretion to consider the issues as to all appellants. Pursuant to Maryland Rule 8-131(a), “[o]rdinarily, [we] will not decide any 13 other issue unless it plainly appears by the record to have been raised in or decided by the trial court,” but we “may decide such an issue if necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal.” “[T]he animating policy behind Rule 8-131(a) is to ensure fairness for the parties involved and to promote orderly judicial administration.” Jones v. State, 379 Md. 704, 714 (2004).

This Court and the Court of Appeals “usually elect to review an unpreserved issue only after it has been thoroughly briefed and argued, and where a decision would (1) help correct a recurring error, (2) provide guidance when there is likely to be a new trial, or (3) offer assistance if there is a subsequent collateral attack on the conviction.” Bailey v. State, 464 Md. 685, 698 (2019) (quotation and citation omitted). In this case, to the extent that the appellate issues regarding the trial court’s nullification instructions are not preserved as to certain appellants, we choose to exercise our discretion to review the unpreserved issues as to all appellants. The issues have been fully briefed and argued. Furthermore, we believe this decision may be of assistance to trial courts in responding to inquiries regarding jury nullification in the future.

Finally, were we to address the propriety of the nullification instructions for certain appellants but not for others, the issues would likely arise in a subsequent collateral attack. Therefore, we will review these issues on their merits.9 9 Our decision to exercise our discretion to consider issues that may be unpreserved as to certain appellants in this particular case should not be viewed as an indication that we will review unpreserved issues in future cases. 14 C. Standard of Review for Jury Instructions When reviewing a trial court’s decision to propound a particular jury instruction, we apply the abuse of discretion standard. Appraicio v. State, 431 Md. 42, 51 (2013). When considering whether the trial court abused its discretion in this context, we consider whether: (1) the instruction is a correct statement of law; (2) the instruction is applicable to the facts of the case; and (3) the content of the instruction was fairly covered elsewhere in instructions actually given.

Carroll v. State, 428 Md. 679, 689 (2012) (quotations and citations omitted). A trial court has no discretion to give a legally incorrect jury instruction. Armacost v. Davis, 462 Md. 504, 523 (2019) (“A trial court abuses its discretion if it commits an error of law in giving a particular jury instruction.”). The Court of Appeals has explained that “[t]rial judges walk a fine line when answering questions posed by jurors during the course of their deliberations.

Any answer given must accurately state the law and be responsive to jurors' questions without invading the province of the jury to decide the case.” Appraicio, supra, 431 Md. at 44 . The trial judge must give instructions that are “correct statement[s] of the law and . . . applicable under the facts of the case” and “must respond to a question from a deliberating jury in a way that clarifies its confusion, such that the judge's response is not ambiguous or misleading.” State v. Bircher, 446 Md. 458, 463-64 (2016). The Court of Appeals has further instructed that “[a] trial judge, moreover, should avoid answering questions in a way that improperly comments on the evidence and invades the province of the jury to decide the case.” Id. at 465 . We shall keep these principles in mind when evaluating the 15 instructions propounded by the trial court in response to the jury’s questions regarding its power to nullify.

When assessing the appropriateness of the trial court’s instructions, we shall focus on the following specific portions of the trial court’s Second and Third Nullification Instructions:10 • Jury nullification, a juror’s knowing and deliberate rejection of the evidence or refusal to apply the law, that’s considered jury nullification. • You may not use or implement or resort to jury nullification. • [Jury nullification] is improper, contrary to the law and would be a violation of your oath to ‘truly try to reach a verdict according to the evidence.’ • [N]ullification would violate this Court’s order . . . . 10 When arguing that the court’s Second Nullification Instruction contained an inaccurate statement of law, the appellants focus specifically on the court’s definition of jury nullification as “a juror’s knowing and deliberate rejection of the evidence or refusal to apply the law.” We observe that the following portions of the trial court’s Second Nullification Instruction are potentially problematic as well: • Here’s what jury nullification is . . . And the answer is no, you can’t have jury nullification. • To say you can do jury nullification would be a miscarriage of justice . . . . • [N]ullification shouldn’t even be a consideration. Because the appellants have focused their appellate argument on whether the definition of jury nullification in the Second Nullification Instruction, as well as the Third Nullification Instruction, contained inaccurate statements of law, we shall not address the legal correctness of other portions of the Second Nullification Instruction. 16 Specifically, we shall evaluate whether the above-quoted instructions were legally correct. This is an assessment we undertake de novo.

See, e.g., Carter v. State, 236 Md. App. 456, 475 , cert. denied, 460 Md. 9 (2018) (“Although the overall determination is one of abuse of discretion, we review without deference . . . whether the jury instruction was a correct statement of the law.” (internal quotation and citation omitted)). D. Jury Nullification and the Instructions at Issue in this Appeal As we referenced supra in footnote 5, Black’s Law Dictionary defines jury nullification as “[a] jury’s knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself or because the result dictated by law is contrary to the jury’s sense of justice, morality, or fairness.” Jury Nullification, Black’s Law Dictionary (11th ed. 2019). Juries have engaged in nullification since the founding of the United States. See generally Paul Butler, In Defense of Jury Nullification, LITIGATION, Fall 2004.

Indeed, as the Court of Appeals for the District of Columbia observed in 1972, “[t]he pages of history shine on instances of the jury’s exercise of its prerogative to disregard uncontradicted evidence and instructions of the judge,” such as in acquittals of prosecutions under the fugitive slave law. United States v. Dougherty, 473 F.2d 1113, 1130 (D.C. Cir. 1972). See also Bradley J. Huestis, Jury Nullification: Calling for Candor from the Bench and Bar, 173 MIL. L. REV. 68, 72-88 (2002) (discussing the history of jury nullification at length).

Jury nullification has long been a controversial concept. Butler, In Defense of Jury Nullification, supra, at 46-48; see also Dougherty, supra, 473 F.2d at 1130-37 . Some scholars advocate for the use of jury nullification in certain cases, such as in cases involving 17 African American defendants who are accused of nonviolent drug crimes. Leigh Ainsworth, Jury Nullification: Fixing the Law When Politicians Won’t, 53 AM.

CRIM. L. REV. ONLINE 26, 26 (2016) (citing Paul Butler, Jurors Need to Take the Law into Their Own Hands, WASH. POST (Apr. 5, 2016), available at https://www.washingtonpost.com/news/in-theory/wp/2016/04/05/jurors-need-to-take-the- law-into-their-own-hands/).

Other scholars disagree and assert that jury nullification undermines the sanctity of the legal system. Id. (citing John W. Bissell, Comments on Jury Nullification, 7 CORNELL J. L. & P. 51, 51 (1997) (“To ignore the law and render an ad hoc decision, which occurs with jury nullification, is a gross perversion of the legal system.”)). There are also advocates on either side of the nullification debate who ground their respective arguments on a re-energized interpretation of Maryland’s Article 23.

See, e.g., Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 YALE L.J. 677, 704 n.147 (1995) (discussing Maryland’s Article 23 in support of his argument for jury nullification); Richard St. John, License to Nullify: The Democratic and Constitutional Deficiencies of Authorized Jury Lawmaking, 106 YALE L.J. 2563, 2569-71 (1997) (discussing Maryland’s Article 23 in support of his argument against jury nullification).11 The power of juries to nullify is well-established and long-acknowledged. The United States Supreme Court addressed jury nullification over a century ago in the case of 11 For additional scholarship on jury nullification, see Teresa L. Conaway, Carol L. Mutz, & Joann M. Ross, Jury Nullification: A Selective Annotated Bibliography, 39 VAL. U.L.REV. 393 (2004). 18 Sparf v. United States, 156 U.S. 51 (1895).12 In Sparf, the Supreme Court observed that juries have the “physical power” to disregard the law, but do not “have the moral right to decide the law according to their own notions of pleasure.” Id. at 74 . Federal appellate courts have held