Smith v. State

CHARLES E. ORTH, Jr., Retired, Specially Assigned Judge. Kevin Bernard Smith was tried by a jury in the Criminal Court of Baltimore (now the Circuit Court for Baltimore City) on charges that he committed the crimes of murder in the first degree (the first count of indictment no. 18136309), robbery with a deadly weapon, and using a handgun in the commission of a crime of violence, (the first and eighth counts respectively of indictment no. 18136310). The court declared a mistrial as to all three charges on the ground that the jury was unable to reach unanimous verdicts. Smith was promptly retried before a jury, which found him not guilty of the murder charge and guilty of the armed robbery and handgun offenses.

He was sentenced to a total of 35 years. The Court of Special Appeals affirmed the judgments in an unreported opinion (Smith v. State, No. 1687, September Term, 1982, filed 1 August 1983). We granted Smith’s petition for a writ of certiorari, and ordered that the record and proceedings be certified to us, but we limited our review solely to the question whether Smith was placed twice in jeopardy by the retrial. The resolution of this question depends on whether the verdicts of the jury at the ¹⁶³ first trial as presented to the court reflected an actual agreement of the jury and represented a final acquittal on the charges. 1 I In Pugh v. State, 271 Md. 701 , 319 A.2d 542 (1974), we found it to be “settled that once the trier of fact in a criminal case, whether it be the jury or the judge, intentionally renders a verdict of ‘not guilty,’ the verdict is final, and the defendant cannot later be retried on or found guilty of the same charge.” 2 Id. at 706 , 319 A.2d 542 .

We must determine what is sufficient to constitute the intentional rendition of a final verdict by a jury. (a) Unanimity of the Verdict The underlying requirement of a final verdict is that it be unanimous. “[T]he People of the State of Maryland” declared in what is now Article 21 of the Declaration of Rights of their Constitution: “That in all criminal prosecutions, every man hath a right ... to a speedy trial by an impartial jury, without whose unanimous consent he ought not to be found guilty.” This Court explicated this constitutional declaration in Ford v. State, 12 Md. 514 (1859): “ ‘The verdict is the unanimous decision made by a jury and reported to the court, on the matters lawfully submitted ¹⁶⁴ to them in the course of the trial.’ Unanimity is indispensable to the sufficiency of the verdict____” Id. at 549 , quoting 10 Bacon’s Abridg. Title Verdict, 306 (emphasis in original). 3 The constitutional provision is implemented by Maryland Rule 759 a, which flatly states: “The verdict of a jury shall be unanimous.. . . ” (b) Hearkening the Verdict Lewis Hochheimer, Esq., immortalized as a member of the Baltimore bar by his book on criminal law published at the turn of this century, had this to say about the rendition and receiving of a jury verdict in a criminal case: “The verdict must be given and received in the presence of the accused, .. . in open court, all the jurors being present. ...” L. Hochheimer, The Law of Crimes and Criminal Procedure (2d ed. 1904) § 179. Hochheimer warns that “[t]he prescribed formulas must be substantially complied with.” Id.

The formula for the rendition of verdicts is set out in Givens v. State, 76 Md. 485 , 25 A. 689 (1893): “When the jury have come to a unanimous determination with respect to their verdict, they return to the box to deliver it. The clerk then calls them over, by their names, and asks them whether they agree on this verdict, to which they reply in the affirmative. He then demands who shall say for them, to which they answer, their foreman. This being done, he desires the prisoner to hold up his right hand and addresses them: ‘Look upon the prisoner at the bar; how say you, is he guilty of the matter whereof he indicted or not guilty?’ The foreman then answers guilty or not guilty, as the verdict may be.

The officer then writes the word ‘guilty’ or ‘not guilty’ as the verdict is, on the record and again addresses the jury: ‘Hearken to your verdict as the court hath recorded ¹⁶⁵ it. You say that_is guilty (or not guilty) of the matter whereof he stands indicted, and so say you all.’ ” 4 Id. at 487 , 25 A. 689 . This is in substance the formula stated by Hochheimer § 179. Although there is no reference in the Maryland Rules of Procedure about “hearkening,” the procedure detailed in Givens is substantially that followed today.

In Glickman v. State, 190 Md. 516, 525 , 60 A.2d 216 (1948), we observed that the procedure whereby the clerk calls upon the jury to hearken to their verdict when they return to the court to render it, is “uniformly practiced in the courts of Maryland. ... ” We quoted with approval what was said in Givens 76 Md. at 486 , 25 A. 689 : “And while it may be a matter of form and practice, yet it is a juridical form; and matters of form when they become established, and are supported by reasons of justice and propriety, are regarded as matters of substance.” 5 Glickman 190 Md. at 525 , 60 A.2d 216 . See Heinze v. State, 184 Md. 613, 616-617 , 42 A.2d 128 (1945); Ross v. State, 24 Md.App. 246, 252-255 , 330 A.2d 507 (1975), rev’d on other grounds, 276 Md. 664 , 350 A.2d 680 (1976). “It is 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, that they are called upon to ‘hearken thereto.’ ” Givens, 76 Md. at 488 , 25 A. 689 . (c) Polling the Jury A defendant has the absolute right to poll the jury. Coby v. State, 225 Md. 293, 299 , 170 A.2d 199 (1961).

Coby ¹⁶⁶ merely iterates what this Court asserted a century ago in Williams v. State, 60 Md. 402, 403 (1883): “[A defendant is] entitled, as a matter of right, to a poll of the jury, and he [may] not be convicted, except upon the concurrence of each juror.” See Hochheimer § 179. A poll of the jury serves the same purpose as that of hearkening the verdict. Givens, 76 Md. at 487 , 25 A. 689 . “[I]t has never been the law in Maryland that hearkening is the prerequisite to an acceptable verdict where the jury has been polled. In other words it has not been doubted that polling is a fully commensurable substitute for hearkening.” Ross, 24 Md.App. at 254 , 330 A.2d 507 .

It is in the absence of a demand for a poll that a hearkening is required for the proper rendition of a verdict. Under our practice the hearkening of a verdict is the traditional formality announcing the recording of the verdict. A jury poll has the same effect. Id.

The poll of the jury is an effective way to determine the adherence of the jurors to the verdict. 5 Wharton’s Criminal Law and Procedure § 2142 (1957). The polling provides a means of establishing that the verdict was with the unanimous consent of the jurors. 6 Maloney v. State, 17 Md.App. 609, 622 , 304 A.2d 260 , cert. denied, Keller v. State, 269 Md. 761 , cert. denied, Maloney v. State, 269 Md. 762 (1973). It once was that a demand to poll the jury had to precede the recordation of the verdict upon a hearkening. Once the verdict was hearkened it was “too late to poll the panel.” Ford, 12 Md. at 546 .

The right to a poll was deemed to have been waived by the failure to demand it at the proper time, that is before the verdict had been effec ¹⁶⁷ tively hearkened. Hommer v. State, 85 Md. 562, 564 , 37 A. 26 (1897). 7 This rule persisted until 1 January 1957, the effective date of what is now Rule 759 e of the Maryland Rules of Procedure. 8 The common law right to have the jury polled, 9 recognized in Williams a hundred years ago and recalled by Hochheimer, is perpetuated in Rule 759 e, but without the limitation expressed in Ford and Hommer . Md. Rule 759 e provides: “Upon the request of a party or upon the court’s own motion, the jury shall be polled after it has returned a verdict and before the jury is discharged. If upon the poll the jury do not unanimously concur in the verdict, the court may direct the jury to retire for further deliberation or may discharge the jury.” (Emphasis supplied).

It is readily apparent on the face of the Rule that the criterion for timeliness of a demand to have the jury polled is no longer the hearkening of the verdict to the jury and the ensuing recordation. Rather, it is the discharge of the jury from its consideration of the case. Maloney, 17 Md. App. at 621 , 304 A.2d 260 . In other words, after the verdict is rendered, either party, or the court sua sponte, may have the jury polled at any time before the jury is discharged. “The assent of each juror [polled] must be free and unqualified.” Hochheimer § 179. “We all know that jurors sometimes, upon the poll, dissent from the verdict declared for them by their foreman, and it is for the purpose of compelling each juror to declare his own verdict, in his own ¹⁶⁸ language, that a poll of the panel is allowed.” 10 Williams, 60 Md. at 403.

(d) The Finality of the Verdict Until the case is removed from the jury’s province the verdict may be altered or withdrawn by the jurors, or by the dissent or non-concurrence of any one of them. While the case is still within the province of the jury, the court may permit them to reconsider and correct the verdict, provided nothing be done amounting to coercion or tending to influence conviction or acquittal. See Hochheimer § 179. In the absence of a proper demand to have the jury polled, the hearkening and ensuing acceptance of the verdict finally removes the matter from the jury’s consideration.

But, despite a hearkening, if a demand for a poll is duly made thereafter, it is the acceptance of the verdict upon the poll that removes the verdict from the province of the jury. In other words, the jury has control of the verdict until it is final. Absent a demand for a poll, the verdict becomes final upon its acceptance when hearkened. When a poll is demanded, the verdict becomes final only upon its acceptance after the poll.

When our opinions in cases decided prior to the adoption of what is now Rule 759 e are considered in the light of the Rule, their rationale remains sound. We stated in Givens “that until the assent of the jury is expressed [by a hearkening], or by a poll, the jury has a right to retract, and that the verdict is not perfected until after the jury has expressed ¹⁶⁹ their assent in one of these ways.” Id. 76 Md. at 487 , 25 A. 689 . See Hechter v. State, 94 Md. 429 , 50 A. 1041 (1902) (jury cannot be allowed to make alteration after the verdict is recorded). We summed up this rule in Heinze v. State, 184 Md. 613 , 42 A.2d 128 (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. . ..

Until the announcement that the verdict has been recorded, the jury have the right to amend or change any verdict; and when it is so amended it is the real verdict of the jury and it may be properly accepted by the court.” Id. at 616-617 , 42 A.2d 128 . Accord, Glickman, 190 Md. at 526 , 60 A.2d 216 . It follows that: “Any member of the jury has the right sua sponte to dissent from the verdict as announced by the foreman at any time before it is recorded and affirmed by the jury. Heinze 184 Md. at 616 , 42 A.2d 128 ; Glickman 190 Md. at 526 , 60 A.2d 216 .” It is only if no objection “is made by any of the jurors or by the State or the accused [that] the verdict as announced is the verdict of the whole panel; and it is then the duty of the clerk to record the verdict and have it affirmed by the jury in the presence of the court” by hearkening the jury to their verdict or, when required, by polling the jury.

Heinze 184 Md. at 616 , 42 A.2d 128 ; Glickman 190 Md. at 526 , 60 A.2d 216 . Thus it is that the basic teachings of Ford and its progeny are not disturbed by Rule 759 e. The Rule does no more than change the common law as to the finality of a judgment when, in the face of a completed hearkening, there is a demand for the jury to be polled. Of course, neither hearkening nor polling cures a verdict that is defective when it is hearkened or polled in its defective form.

Williams, 60 Md. at 403-404 ; Ford, 12 Md. at 547-549 . We declared in Heinze, 184 Md. at 617 , 42 A.2d ¹⁷⁰ 128, and reiterated in Glickman, 190 Md. at 525 , 60 A.2d 216 , that “[wjhere a verdict is ambiguous, inconsistent, unresponsive, or otherwise defective, it is the duty of the trial judge to call the jury’s attention to the defect and to direct them to put the verdict in proper form either in the presence of the court or by returning to their consultation room for the purpose of further deliberation.” 11 Heinze notes a caveat: “The law does not permit the judge to suggest the alteration of a verdict in substance. He must not throw the weight of his influence into the deliberations of the jury as to matters exclusively within their province.” Id. 184 Md. at 618 , 42 A.2d 128 . II The Facts The facts leading to the declaration of a mistrial are as follows.

As we have seen, the case went to the jury on three charges, murder in the first degree (the first count of indictment no. 18136309), robbery with a deadly weapon (the first count of indictment no. 18136310), and the use of a handgun in the commission of a crime of violence (the eighth count of that indictment). To appreciate the full flavor of what occurred when the jury returned to the courtroom to deliver their verdicts, we deem it necessary to set out the transcript of the proceedings verbatim. ¹⁷¹ THE COURT: Members of the jury, have you agreed upon a verdict? THE JURY: Yes. THE CLERK: Who shall say for you?

THE JURY: Forelady. THE CLERK: Madam Forelady, will you stand? (Complies.) What is your verdict in the State of Maryland v. Kevin Bernard Smith, Indictment 18136309, as to the first count, charging murder in the first degree, felony murder? THE FORELADY: Not guilty.

THE CLERK: In Indictment 18136310, first count, charging robbery with a deadly weapon? THE FORELADY: Not guilty. THE CLERK: As to the eight count, charging use of a handgun in the commission of a crime of violence? THE FORELADY: Guilty.

MR. LESSER [Assistant State’s Attorney]: Your Honor, could we poll the jury as to the first two counts? THE COURT: Would you poll the jurors, please? Repeat the verdicts and poll the jury.

THE CLERK: Madam Forelady, you may be seated. The verdicts are, in Indictment 18136309, as to the first count, charging murder in the first degree, felony murder, not guilty. As to Indictment 18136310, first count, charging robbery with a deadly weapon, not guilty. Guilty of the eighth count and in the same indictment charging use of a handgun in the commission of a crime of violence.

MR. LESSER: Your Honor, could we do the individual charges when we poll the jury? THE COURT: I trust all the jurors understand that you have announced a verdict in which you have found the defendant not guilty of the murder and robbery, and guilty of the use of a handgun. Is that what you understand the verdicts to be?

Madam Forelady, would you stand again, please. The court and the clerk understood that your verdicts are unanimous verdicts. That is, all 12 of you had agreed that ¹⁷² the defendant was not guilty of murder, not guilty of robbery; but guilty of using a handgun in the commission of a crime of violence. Is that a correct record of your decision?

THE FORELADY: Well, they understood, well, I guess. THE COURT: Well, all right. Then, Mr. Clerk, you will poll each of the jurors and as to each of the counts. THE CLERK: Juror No. 2, will you stand.

Are those your verdicts? THE COURT: Are those your verdicts, Juror No. 1? THE CLERK: You have heard the verdicts— THE COURT: Because of this confusion, why don’t you take No. 1 as well as the others. THE CLERK: Start with 1 over again?

THE COURT: Yes. THE CLERK: Madam Forelady, will you stand. The verdict in Indictment 18136309 as to the first count is not guilty. The Verdict in Indictment— THE COURT: Is that your verdict, madam?

THE FORELADY: You mean personally? THE COURT: Ladies and gentlemen, as to the forelady and as to all of you, the court has tried to advise you, and I thought you understood that whatever verdict is reached as to any of the three charges, had to be reached individually by each one of the 12 before you had a verdict. It is not a majority verdict. It is not 11 to 1, 10 to 2 or any other number.

Each of the 12 of you