Scott v. State

SHARER, Judge. A jury in the Circuit Court for Baltimore City convicted Terrance Scott of possession with intent to distribute heroin, cocaine, and marijuana. 1 On appeal, Scott raises three issues, which we have rephrased: I. Whether the trial court abused its discretion in denying the defense motion for a new trial, based on a claim of juror misconduct.

II

Whether the evidence is sufficient to sustain Scott’s convictions.

III

Whether the trial court abused its discretion by denying a motion to recuse. For the reasons that follow, we shall affirm the judgments of the circuit court. FACTUAL BACKGROUND The jury heard testimony from Detective Mark Lunsford, of the Baltimore City Police Department, that, on February 21, 2003, he was working in an undercover capacity in a parked ¹³⁴ car in the 500 block of Laurens Street. Shortly after 3:00 pm, a black Chevrolet Malibu parked about 20 feet in front of Lunsford’s car.

The driver of the Malibu, later identified as Terrance Scott, got out and opened the trunk. He then stood by the back of the vehicle. While Scott was standing next to the open trunk, a man approached and handed him what Lunsford described as “U.S. currency in bill form.” After Scott accepted the cash, he “reached in the trunk [and] ... handed ... this black male small items, which were consistent in size and shape of street level packaged narcotics.” Scott then closed the trunk and walked towards a nearby store. Lunsford formed the opinion that he had just witnessed a narcotics transaction, and called for an arrest team.

When the arrest team arrived, Lunsford exited his car and together they arrested Scott “right by the store.” A search incident to the arrest yielded $237 in currency and a “remote car opening device.” Scott denied that he had been driving the Malibu, and explained that the keys he had been holding belonged to a cousin, and that he had driven his cousin’s car without permission. Lunsford took the keys from Scott and operated the remote, which unlocked the vehicle. The passenger compartment of the car was searched, and police found a temporary vehicle registration in Scott’s name, 81 vials of a substance later identified as cocaine, and four bags of marijuana. Recovered from the trunk were 244 gel-caps containing heroin.

Scott was taken into custody and the vehicle was towed from the scene. Lunsford, who was accepted by the court as an expert in the fields of drug enforcement, identification, packaging, and street-level narcotics distribution, opined that, based on his training and experience, the drugs were packaged not for personal use, but for distribution. One of the arrest team members, Detective Kenneth Ramberg, testified that the keys recovered from Scott fit the black Malibu. The jury also heard from Savitri Sharma, a criminologist with the Baltimore City Police Department, who was accepted ¹³⁵ as an expert in the analysis of controlled dangerous substances.

Her analysis of the contraband was recorded on a Baltimore City Police Department Form No. 442 Drug Analysis Report, which was admitted as State’s Exhibit 41. Surveying “trace” amounts, Sharma reported, and testified at trial, that the samples tested positive for heroin, cocaine, and marijuana. The defense presented the testimony of two witnesses who contradicted the State’s case, especially the State’s theory that Scott had driven the Malibu. Latasha Young recounted that, as she looked out of her window overlooking the scene, she saw Scott walk up the street and enter a store.

She denied seeing Scott drive the Chevrolet Malibu, and further denied seeing any drug transaction. Damon Bowen said that he was “job hunting” with Scott that day. He recounted that they drove to Laurens Street that afternoon in Bowen’s green Grand Cherokee, and that they both went into the store that was owned by Bowen’s uncle. We shall review additional facts as they relate to the issues raised on appeal.

DISCUSSION 1. Whether the trial court abused its discretion in denying the defense motion for a new trial, based on a claim of juror misconduct. Scott moved for a new trial, primarily on a claim of juror misconduct, arguing that juror number 496 failed to respond truthfully to a voir dire question. After a hearing, the court denied his motion.

Scott asserts that, subsequent to the verdict, the defense learned that juror number 496 had a “negative history with Mr. Scott with respect to her sons.” Scott also maintains that this juror “instilled a fear of the defendant” that caused the members of the jury to express “concern for their safety.” 2 ¹³⁶ He maintains, therefore, that because of the asserted juror misconduct, the trial court “erred” by denying his motion for a new trial. We are not persuaded. We review the trial court’s denial of Scott’s motion for a new trial based on juror misconduct for an abuse of discretion. Jenkins v. State, 375 Md. 284, 298-99 , 825 A.2d 1008 (2003).

During the jury selection process, the court asked the prospective jurors whether anyone knew the defendant. Prospective juror 496 did not respond to this query, but did respond in the affirmative when later questioned about another matter. In his motion for a new trial, Scott asserted in part that “a juror did not answer truthfully to voir dire posed to the panel; namely ... [that she] did not stand when asked by the Court whether she knew Mr. Scott, and it has been revealed on information and belief that [the juror] in fact has known or known of Mr. Scott for many years.” The motion was initially summarily denied by a chambers judge, and then heard fully by the trial judge at the disposition hearing on June 13, 2005. The Motion Hearing The transcript of the hearing on Scott’s motion for a new trial reflects the following: [DEFENSE COUNSEL]: ...

Your Honor ... [w]e did not receive any response to [our subpoena request for information about the juror] in our office and what we wanted to do, Your Honor, was we wanted to subpoena Juror No. 496____ And what we had learned after the trial was that [the juror] ¹³⁷ has a history with Mr. Scott and that came to our attention after the trial as well as the specifics of that history. Your Honor, on information [and] belief the defense has learned that [the juror] has a negative history with Mr. Scott with respect to her sons. Her sons and Mr. Scott used to be in the same neighborhood. They used to run together and there is a negative history between [the juror’s] children and Mr. Scott.

After the jury verdict was read and after the jurors were about to, actually right before they were about to be released there came a note to the court where the jurors were expressing some concern over their safety. We believe it was [juror 496] who had precipitated that concern among the jurors. She knows Mr. Scott. She did not disclose any of that information [on] voir dire....

Your Honor, we wanted to subpoena [the juror] to question her. I never received this. I would have made every attempt in the world to get [the juror] here today for this motion for a new trial for her testimony. * * * She did not stand up when it was asked whether or not she knew him. THE COURT: ... we agree on that. [DEFENSE COUNSEL]: And, Your Honor, what we wanted, I’m sorry— THE COURT: Let me finish.

And now of course you’re stating that it’s, I believe the words you use is has known or known of Mr. Scott for many years. There’s really a, I don’t know who knew this. I assume you’re getting this from your client and if so, he probably knew it all along all through the trial, if that’s true and he didn’t say anything. I mean when did he suddenly have this sudden shot of enlightenment?

And the other problem I have is that you’re asking me to disregard that whether or not the juror was truthful or not and I have to then look at whether or not your client is a truthful person or is trying to get out of ¹³⁸ this trial. And in this case it’s obvious that the jury didn’t believe him.... * * * And you come into court and I’m supposed to grant a motion for a new trial based upon the belief that your client suddenly discovered after the trial was over that this child of this woman had disputes with somebody connected with his family and didn’t like him in the neighborhood. [DEFENSE COUNSEL]: Well, if I could clarify my exact request at this point. Because I did not receive a copy of the certificate of record what I’m simply asking, Your Honor, is to be given the opportunity to summons [the juror] and bring her before the court to find out exactly what she knew, if anything, about Mr. Scott on the day of trial. That’s what I’m asking.

The trial judge inquired about Scott’s address and that of the juror, and pointed out that these addresses were “far apart.” Defense counsel reiterated his request to question the juror at a hearing about the extent, if any, of her knowledge, and again complained that the jury commissioner failed to respond to his subpoena. The trial judge then inquired about the nature and extent of Scott’s knowledge of this juror: THE COURT: When did your client tell you this? [DEFENSE COUNSEL]: My client intimated to me at the close of evidence that he suspected he knows who that juror is. He did not give a name. He just said— THE COURT: When did he tell you this?

When? [DEFENSE COUNSEL]: At the close of evidence. THE COURT: Close of evidence. [DEFENSE COUNSEL]: He suspected he knew who that person was. THE COURT: Did you bring this to my, did you bring this to my attention when I could have asked the juror once the juror was in the courtroom? ¹³⁹ [DEFENSE COUNSEL]: I did not bring it to your attention, Your Honor, because he did [not] give me information. He just simply said, I suspect I know who that person is.

THE COURT: When I not only had the jury in the courtroom but I also still had alternates in the courtroom. [DEFENSE COUNSEL]: And it wasn’t until afterwards. It wasn’t until everything had closed that the family came back days later with more specific information about who this person was. And yes, Your Honor, I will grant you that. I will grant you that, that once there was a suggestion even the remotest hint that there could be some knowledge between these two individuals I should have come up to the court.

That’s right. I should have done that. [Emphasis added.] THE COURT: What’s your position? [PROSECUTOR]: The Court of Special Appeals in Burkett [v. State, 21 Md.App. 438 , 319 A.2d 845 (1974) ] said they look dis-favorably [sic] upon challenges to juror prejudice after the defendant has been convicted. In this case the defense knew prior to that conviction that the defendant might know this person, that they might have some history and I think the defense has waived their right to challenge that juror by not bringing that up prior to the close of the trial prior to that guilty verdict. And Your Honor, I will also point out the defendant participated in the entire voir dire process.

If he recognized this [juror], likely he recognized her the very first time that she stood up and this juror came to the bench to answer a different question. The defendant was at the bench with his counsel. He had an opportunity at that time to say also, I know this person and to question her about the relationship. That didn’t happen.

Your Honor, it’s the State’s position that the defendant knew the entire time of whatever relationship he may have to [the juror]. The defendant possibly thought ... knowing [the juror] would [be] to his benefit and so he decided not to say anything and now he’s been convicted and all of a sudden it’s an issue. ¹⁴⁰ * * H= THE COURT: I might point out that the defendant did not take all the strikes that were available to him ... and if there was any doubt in his mind that there might have been some reason why this Juror ... might have known him through ... family, through [the] neighborhood, then he could have, you could have done something at that time. It seems like this is another way to try to avoid the verdict. In addition to that everything you’ve told me doesn’t add up.

The addresses are entirely different including the current address of the juror but including the past address of the juror. Motion for a new trial is denied. The Need for Juror Candor The Court of Appeals has recently emphasized that “[v]oir dire is critical to assure that the Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights guarantees to a fair and impartial jury will be honored.” Stewart v. State, 399 Md. 146, 158 , 923 A.2d 44 (2007) (citing cases). The Court added in Stewart that “ ‘[wjithout an adequate voir dire the trial judge’s responsibility to remove prospective jurors who will not be able impartially to follow the court’s instructions and evaluate the evidence cannot be fulfilled.’ ” Id.

(quoting Rosales-Lopez v. United States, 451 U.S. 182, 188 , 101 S.Ct. 1629 , 68 L.Ed.2d 22 (1981)). In Williams v. State, 394 Md. 98 , 904 A.2d 534 (2006), the Court addressed the issue of whether the defendant was entitled to a new trial because of juror misconduct. The juror at issue in Williams failed to disclose that a member of her family was employed as a secretary in the office of the State’s Attorney charged with prosecuting Williams. Id. at 101 , 904 A.2d 534 .

The juror had not been questioned about her failure to answer the voir dire inquiry. Nevertheless, after hearing argument, the trial court concluded that the relationship was “pretty remote; a sister of a secretary in the State’s Attorney’s Office.” Id. at 105 , 904 A.2d 534 . The trial judge denied the motion for new trial. ¹⁴¹ The Court of Appeals granted a writ of certiorari before oral argument in this Court. Writing for the Court, Chief Judge Bell emphasized the defendant’s right to trial by an impartial jury, and pointed out that “'one of the ways to protect a defendant’s constitutional right to an impartial jury is to expose the existence of factors which could cause a juror to be biased or prejudiced through the process of voir dire examination.’ ” Id. at 107 , 904 A.2d 534 (quoting Jenkins v. State, 375 Md. 284, 331 , 825 A.2d 1008 (2003)).

The Court emphasized that “[i]f there is any likelihood that some prejudice is in the juror’s mind which will even subconsciously affect the juror’s decision of the case, or ‘any circumstances which may reasonably be regarded as rendering a person unfit for jury service,’ the defendant may challenge that juror for cause, and, if that fails, strike him or her peremptorily.” Id. at 108, 904 A.2d 534 . (citations and footnote omitted). The Court of Appeals reviewed decisions of this Court wherein the trial judge had examined the jurors in question before exercising its discretion to grant or refuse further relief. See Leach v. State, 47 Md.App. 611 , 425 A.2d 234 (1981); and Burkett v. State, 21 Md.App. 438 , 319 A.2d 845 (1974).

Unlike those cases, the trial court in Williams made “no comparable inquiry as a predicate [for the exercise of discretion].” Williams, supra, 394 Md. at 112 , 904 A.2d 534 . The Court held: We endeavor to be clear on this point. Where the juror is available for further voir dire and is further voir dired, a trial court may exercise the discretion Burkett requires it to exercise. But, the trial court’s sound discretion can only be exercised on the basis of the information that the voir dire reveals and the findings the trial court makes as a result.

On the other hand, where the juror is not available or is not voir dired, there simply is neither a basis for the findings of fact, which must form the predicate for the exercise of discretion, nor for the exercise of discretion that Burkett contemplates. That the trial court may believe that it is “pretty remote” that an answer to a voir dire question would uncover bias or prejudice does not, and cannot, ¹⁴² replace the need for the court to make findings of fact on the issue. We hold that, where there is a non-disclosure by a juror of information that a voir dire question seeks and the record does not reveal whether the non-disclosure was intentional or inadvertent, the defendant is entitled to a new trial. That the disclosure would not automatically have required a strike for cause does not matter; it is the inability of the defendant to have the benefit of a further investigation by the court, he or she being deprived of the ability to delve into the juror’s state of mind for bias and of a finding in that regard, that is decisive.

The perceived “remoteness” of the potential bias does not preclude bias; without a finding of fact in confirmation, it cannot be a sufficient reason to deny a new trial. Williams, 394 Md. at 113-15 , 904 A.2d 534 (footnotes omitted). Waiver On the record before us, however, we need not reach the issue of whether the assertion that the juror’s children had “negative issues” with Scott would be sufficient to prompt the factual inquiry that he sought from the trial court, and that Williams requires. We reach that conclusion because it is clear that, on these facts, Scott has waived any complaint about a jury that included the juror in question.

Notwithstanding counsel’s acknowledgment that he should have alerted the trial court to a potential conflict, Scott and his counsel chose to remain silent, apparently hoping for a favorable verdict, rather than bring the matter to the court’s attention at a time when the problem could have been resolved. The trial court emphasized that, until the jury retired to deliberate, there were alternate jurors available to replace juror 496. The Court of Appeals has made clear in Williams that, in the circumstance of a possibly compromised juror, the trial court must afford a defendant the opportunity to be heard before ruling on a motion for new trial. Nonetheless, we do not find in either Williams or Burkett, or other Maryland cases, a discussion of whether, in given circumstances, a ¹⁴³ defendant can waive that right by not acting on information known to him.

Put another way, can a defendant, possessed of information that might disqualify a juror, withhold that information until after the verdict and then assert it as a basis for a new trial? Other jurisdictions, however, have taken up the question. In State v. Bianco, 391 N.J.Super. 509 , 918 A.2d 720 (App. Div.2007), the New Jersey intermediate appellate court addressed the issue of whether the trial court erred in denying a defense motion for a new trial because of a juror’s failure to disclose his past acquaintance with the defendant and a relative of the victim. The juror had realized during deliberations that he knew the defendant, but did not come forward.

The trial court conducted a hearing on defendant’s motion for a new trial, and concluded that the juror had not recalled, during voir dire, that the defendant or the victim’s grandmother were known to him. The court also made a factual finding that, during the trial, the defendant was aware that the juror knew him. In denying the motion, the trial court also found that defendant had made a “strategic decision” not to raise the matter during trial. The New Jersey appellate court affirmed.

Although the trial court in Bianco conducted a hearing on the misconduct claim, and no examination of the juror was conducted in the case sub judice, we consider the Bianco case to be instructive because one of the alternate bases for the appellate court’s affirmance in Bianco was the defense’s waiver of the issue. The appellate court discussed its earlier opinion in State v. Thompson, 142 N.J.Super. 274 , 361 A.2d 104 (App.Div.1976), a case cited by the Court of Appeals in Williams . The New Jersey court’s treatment of this issue is apposite: When the court and counsel are misinformed, or inadequately informed, and the parties’ ability to exercise peremptory challenges is infringed, then it may be said that there has been a