Sidbury v. State

BATTAGLIA, Judge. In the present case, involving a first degree murder conviction, we are called upon to address one question on certiorari, that being: Did the trial court err in failing to appropriately respond to the jury question: “Judge, if the jury is hung on the degree of murder “first or second,” will the defendant go free?” Sidbury v. State, 410 Md. 559 , 979 A.2d 707 (2009). We shall hold that the Circuit Court judge did not abuse his discretion in responding, “[tjhat’s not an issue for you to concern yourselves with,” because the consequences of a hung jury are not a proper consideration for the jury, as we recognized in Mitchell v. State, 338 Md. 536 , 659 A.2d 1282 (1995). Background On the morning of November 30, 2006, Herbert Roosevelt Sidbury, Petitioner, was sitting on a bicycle in front of his grandmother’s house on Greenleaf Road in Prince George’s County, when Kelly Hodge-Grier, a neighbor, returned home.

She parked her car in front of her house, and she and Sidbury ¹⁸³ had a brief conversation, during which she saw the handle of a gun in his jacket pocket. When a car driven by the victim, Kevin Hardy, drove up, although Sidbury said “I hope he don’t stop,” he got off his bike, approached the passenger side of the car, and started talking to Hardy through an open window. Ms. Hodge-Grier overheard Hardy say to Sidbury, “I’m not scared of you or your gun,” and Sidbury then pulled the gun out and shot Hardy. After Ms. Hodge-Grier ran into her house, Sidbury shot Hardy a second time and rode away on his bicycle.

Hardy was pronounced dead at the scene. Sidbury was charged with murder and use of a handgun in the commission of a felony and was tried in the Circuit Court for Prince George’s County. At the close of all of the evidence, Judge Thomas P. Smith, who presided, instructed the jury on its task, stating “[i]t is your duty to decide the facts and apply the law to those facts,” 1 and also described the ¹⁸⁴ elements of first degree murder, second degree murder, and use of a handgun in the commission of a felony. The verdict sheet read: 1) First Degree Murder of Kevin Hardy: NOT GUILTY GUILTY [If your answer is “Guilty,” answer Question # 3; if your answer is “Not Guilty,” answer Question # 2;]. 2) Second Degree Murder of Kevin Hardy: NOT GUILTY GUILTY [If your answer is “Not Guilty,” STOP and return your Verdict to the Court; if your answer is “Guilty,” answer Question # 3]. 3) Use of a Handgun in the Commission of a Felony: NOT GUILTY GUILTY During its deliberations, the jury sent the trial judge a note asking: Judge: If the jury is hung on the degree of murder (first or second), will the defendant go free?

Judge Smith read the note to counsel and asked for comment: [Defense Counsel]: The defense suggests that you answer no, which is correct. [State’s Attorney]: Your Honor, that is not—that is not a part of the consideration that they need to come to a decision on. The Court: I will bring them back in and reinstruct them that their function, that I received their note and that I can’t answer their note, because that is not their function or determination, that it is up to the court. Their function and determination is to decide what the facts are and apply the law as I have explained it. Any objection to that? [Defense Counsel]: I would ask for an instruction that they are not obligated to reach a verdict. ¹⁸⁵ The Court: What I will do is read them the instruction which I have not yet, which is the jury’s duty to deliberate, criminal instruction 2:01.

That’s what it’s for. Bring the jury in. [Defense Counsel]: Judge, after you instruct can I make that exception before he goes back out? The Court: What exception? [Defense Counsel]: Saying I just want you to tell them no. The Court: You have made it. [Defense Counsel]: Okay.

When the jurors entered the courtroom, Judge Smith instructed them as follows: Ladies and gentlemen, I received your note. That’s not an issue for you to concern yourselves with. The trial judge also gave an instruction at that time concerning the jurors’ responsibilities regarding their deliberations, 2 as indicated: The verdict must be the considered judgment of each of you. In order to reach a verdict all of you must agree.

Your verdict must be unanimous. You must consult with one another and deliberate with a view to reaching an agreement if you can do so without violence to your individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. During deliberations do not hesitate to reexamine your own views.

You should change your opinion if convinced you are wrong, but do not surrender your honest beliefs as to the weight or effect of ¹⁸⁶ the evidence only because of the opinions of your fellow jurors or for the mere purpose of reaching a verdict. Thirty-nine minutes later, the jury found Sidbury guilty of first degree murder and use of a handgun in the commission of a felony. Sidbury appealed to the Court of Special Appeals, which affirmed in an unreported opinion, holding that “the trial court did not abuse its discretion in dechning to discuss with the jury the possible consequences of their failure to agree on a verdict,” citing Mitchell v. State, 338 Md. 536 , 659 A.2d 1282 (1995). Standard of Review Rule 4-325(a), governing instructions to the jury, provides: The court shall give instructions to the jury at the conclusion of all the evidence and before closing arguments and may supplement them at a later time when appropriate.

In its discretion the court may also give opening and interim instructions. The decision of whether to give supplemental instructions is within the sound discretion of the trial judge and will not be disturbed on appeal absent a clear abuse of discretion. Roary v. State, 385 Md. 217, 237 , 867 A.2d 1095, 1106 (2005); see Lovell v. State, 347 Md. 623, 657 , 702 A.2d 261, 278 (1997) (“Whether to give a jury supplemental instructions in a criminal cause is within the discretion of the trial judge.”); see also Brogden v. State, 384 Md. 631, 640-41 , 866 A.2d 129, 134 (2005); Smith v. State, 371 Md. 496, 508 , 810 A.2d 449, 456 (2002). Discussion Sidbury argues that the trial judge abused his discretion in refusing to answer “no” to the question presented by the jury, because he was being held without bail and was awaiting trial on a charge of attempted murder, had a prior conviction for first degree assault, and was on probation at the time of the shooting in this case, such that, “[tjhere was no ¹⁸⁷ way any judge was going to release [me].” Sidbury relies upon Erdman v. State, 315 Md. 46 , 553 A.2d 244 (1989), asserting Erdman makes clear that when a “non-speculative answer” is possible, a trial judge must instruct the jury on the consequences of a verdict.

Sidbury also argues that this Court in Erdman recognized that when jurors are concerned that a defendant might go free, the trial judge must instruct the jury so as “to alleviate these potential concerns.” Sidbury suggests that Mitchell, 338 Md. at 536 , 659 A.2d at 1282 , contradicts these principal tenets of Erdman , and asks us to disregard the underpinnings of our holding in Mitchell , because he would not have “go[ne] free,” given his prior conviction and pending charge. The State counters that the trial judge did not abuse his discretion in answering “[t]hat’s not an issue for you to concern yourselves with,” because Mitchell, 338 Md. at 536 , 659 A.2d at 1282 , makes clear that the consequences of a hung jury are not a proper consideration of the jury. The State further argues that any substantive answer given by the trial judge would have been inappropriate, because the decision to retry a defendant in the event of a mistrial as a result of a hung jury is within the sole discretion of the State’s Attorney. In Erdman , we considered whether a defendant was entitled to an instruction that if the jury found him “not criminally responsible,” he would be committed to the Department of Health and Mental Hygiene.

In the case, David Allen Erdman was tried by a jury in the Circuit Court for Baltimore County for robbery and related offenses and requested an instruction before deliberations ensued, regarding the consequences of a finding that he was not criminally responsible: If the defendant is found not criminally responsible, the court will commit the defendant to the Department of Health and Mental Hygiene for institutional inpatient care. In the future, the defendant will be entitled to release from custody of the Department of Health and Mental Hygiene only if this court or a jury finds he will not be a danger to himself or the person or property of another. ¹⁸⁸ Id. at 51 , 553 A.2d at 246 . We determined that although, generally, “the jury has no concern with the consequences of a verdict,” the Circuit Court erred in refusing to give the instruction, because, by virtue of a comprehensive statutory scheme in Maryland, commitment of a defendant found not criminally responsible is practically “automatic.” Id. at 52-53 , 553 A.2d at 247 . We further noted that a reasonable interpretation of the verdict sheet, containing spaces for the jury to designate “Criminally Responsible” or “Not Criminally Responsible,” might lead the jury to conclude that a defendant found to be not responsible for his criminal conduct would “walk out of the court room, not only unpunished but free of any restraint.” Id. at 57 , 553 A.2d at 249 .

To alleviate such concerns, we reasoned that the instruction was warranted. 3 In Mitchell v. State, 338 Md. 536 , 659 A.2d 1282 (1995), subsequent to Erdman , we considered whether a trial judge abused his discretion in refusing to answer a question presented by the jury during deliberations remarkably similar to that posed in the instant case. In the case, John Michael Mitchell was charged with attempted first degree murder, arson, harassment, and telephone misuse stemming from the burning of his former girlfriend’s residence and entered pleas of not guilty and not criminally responsible. After nearly five hours of deliberation, the jurors sent a note asking: If the decision of the group is a hung jury, will the case be dismissed and John Mitchell walk, or will he be retried? After hearing arguments from counsel, the trial judge told the jury that, “[t]he question is not going to be answered, it’s none ¹⁸⁹ of your concern” 4 and re-instructed the jurors on their duty to deliberate. 5 Fifteen minutes later, the jury rejected Mitchell’s not criminally responsible defense and convicted him of all counts.

Mitchell argued that in refusing to answer the question presented by the jury, the trial judge abused his discretion, asserting that “[w]hen the jurors sent a note to the judge inquiring whether Petitioner would ‘walk’ in the event of a hung jury, there can be no serious doubt that they were disagreeing over the issue of criminal responsibility,” and that when the trial judge declined to indulge the jury’s question, the jury found him guilty “in order to keep him off the street....” This Court rejected that argument, holding that the Circuit Court did not abuse its discretion, because “the jury’s only task was determining Mitchell’s guilt or innocence. The consequences of a ‘hung’ jury were irrelevant to accom ¹⁹⁰ plishing that task and therefore not a proper consideration.” Mitchell, 338 Md. at 542 , 659 A.2d at 1285 . In so doing, we relied upon our reasoning in Chambers v. State, 337 Md. 44, 48 , 650 A.2d 727, 729 (1994), in which we stated: With the exception of death penalty and insanity cases, the sole function of the jury in a criminal case in Maryland is to pass on whether the defendant is guilty as charged, a decision based on the evidence presented at trial and the law pertaining to the case. We emphasized that answering the question presented by the jury of whether Mitchell would “walk” or “be retried” would inappropriately “invite the jury to consider punishment,” outside of its purview, and “risks distracting the jurors from their designated task, and from their obligation to decide the case based on the evidence and the law.” Mitchell, 338 Md. at 542 , 659 A.2d at 1285 , quoting Chambers, 337 Md. at 53 , 650 A.2d at 731 .

We further noted that the trial judge properly exercised his discretion in answering “it’s none of your concern,” because whether to retry a defendant after a mistrial as a result of a hung jury was a matter for the State’s Attorney to decide, such that “[a]ny definitive answer that the court would have given to the jury’s question ... would necessarily have been speculative.” Id. at 542-43, 659 A.2d at 1285 . The issue we addressed and resolved in Mitchell is proximate to that in the present case. As in Mitchell , in which the jury asked the trial judge whether the defendant would “walk” in the event of a hung jury, the jury here asked if Sidbury would “go free” if jurors were “hung on the degree of murder.” The trial judge in Mitchell declined to answer the question, stating that it was “none of [their] concern,” and the Circuit Court in the present case offered a nearly identical response, stating: “That’s not an issue for you to concern yourselves with.” According to our jurisprudence and that of many of our sister states, Judge Smith’s response was appropriate and not an abuse of discretion. See Starr v. Arkansas, 297 Ark. 26 , 759 S.W.2d 535, 539 (1988) (refusing to answer questions presented by the jury regarding “the meaning of life without parole” and “what a hung jury is,” was not an abuse of ¹⁹¹ discretion, because matters of parole are not a proper consideration for the jury and “stick[ing] to the standard instructions” is appropriate), rev’d on other grounds by Starr v. Lockhart, 23 F.3d 1280 (8th Cir.1994); People v. Hines, 15 Cal.4th 997 , 64 Cal.Rptr.2d 594 , 938 P.2d 388, 439, 441 (1997) (declining to answer the jury’s question, “[wjhat happens if the jury becomes hopelessly deadlocked,” posed during deliberations in the penalty phase of a capital trial, was appropriate, because “an instruction explaining the consequences of a hung jury ‘would have the potential