Smoot v. State

Moore, J., delivered the opinion of the Court. As in Pinder v. State, decided this date, 1 we are here confronted with a contention that a guilty verdict was coerced. For reasons different from those found and explained in Pinder, we sustain appellant’s contention. The judgment of conviction of larceny upon which appellant was sentenced to a term of six years (execution of which was suspended and supervised probation for six years imposed) will be reversed and a new trial ordered.

I Appellant was employed as a maintenance worker at the Blair Plaza Apartments in Silver Spring, Montgomery County, Maryland in October, 1974. The occupant of Apartment 907, Annie Drew Derrick, age 84, reported to the management and to the police on October 9,1974 the theft of two rings — her own three-diamond ring with a Tiffany setting, and a gold ring of her daughter, twenty years deceased. (The value of her own ring was established at approximately $1,000 but the testimony did not develop a value for her daughter’s ring.) These two rings had been kept by her in a box on the top of her “chiffonier” in her bedroom together with a third ring — a bloodstone — which had not been touched. On Wednesday, October 8, 1974, appellant was dispatched to Mrs. Derrick’s apartment to repair a thermostat.

According to her testimony, while appellant was in the process of examining the thermostat in her bedroom, he inquired if she had a small screwdriver. She withdrew from the bedroom for several minutes and returned with the ¹⁴⁰ screwdriver requested by him. The next day, she discovered the loss of the two rings. Asked to describe how she discovered that the rings were missing, she responded: “A Well, I go to church on the second Wednesday in the month, and I didn’t notice my ring until I opened the box to put my rings on, and the first I noticed was my daughter’s ring gone.

I never touch that ring. And then mine. But my bloodstone ring was left in the box. This one I have on. “Q Is it your habit to wear that diamond ring when you go to church? “A Yes.

I wear them whenever I go out. “Q And where are those rings kept? “A Right on the chiffonier.” Other testimony of the elderly widow revealed that she lived alone, went grocery shopping about once each week, on Friday, did not “hear too well,” was on prescribed medicines, including sleeping pills, and that a key to her apartment was also in the possession of the front office. The State’s case against the appellant under an indictment charging him with larceny of the value of $100 or more and of larceny under the value of $100 was presented through the testimony of Annie Drew Derrick and of Dorothy L. Murphy, resident manager of the Blair Plaza Apartments. The latter confirmed the employment of appellant in maintenance and general repair work during the period September 27 through October 11, 1974. During her testimony, a repair order for the thermostat in the living room and master bedroom of Apartment 907 on October 8, 1974 was introduced.

Appellant’s initials appeared in the right-hand corner and signified his performance of the work. No other witnesses testified for the State and appellant did not take the stand in his own behalf. The trial commenced at approximately 10:00 a.m. and the jury retired at approximately 3:15 p.m., after a luncheon recess, oral argument and instructions by the trial court. At ¹⁴¹ 4:35 p.m. the jury sent a note to the trial judge (Fairbanks, J.), requesting pencils and paper and inquiring, “May we have a copy of Mrs. Derrick’s testimony?” Upon receipt of this communication the transcript discloses that the court summoned the State’s Attorney and defense counsel and read it to them.

With the concurrence of both sides, the court sent a note back to the jury that Mrs. Derrick’s testimony would not be transcribed. 2 A second note was received from the jury at 5:23 p.m., reading as follows: “The jurors at present have firm judgments on the defendant’s guilt or lack of it. 8 consider him guilty 4 not guilty & all have stated that they are adamant in their beliefs.” Without disclosing the contents of the second communication to either side, the trial court reassembled the jurors in the jury box. It appears that the State’s Attorney, the defendant (appellant) and defense counsel were present in the courtroom. In response to the second note the court made the following remarks: “THE COURT: Now, ladies and gentlemen of the jury, I am advised that you are having some difficulty in coming to a verdict. The note which you have just sent out would at first blush lend one to believe that you can’t come to a verdict. “Well, I will not accept that.

You have only been deliberating for about two hours, approximately two hours. I am sure that if you continue your deliberations, you will be able to reconcile your various views, and come to a verdict. I propose to require you to go back and do some more deliberating. I don’t consider that a two-hour deliberation on a matter of this kind as any ¹⁴² indication that you are, or ultimately will remain deadlocked, so you ladies and gentlemen will return to the jury room and continue your deliberations.” {Emphasis added.) After the jury returned to the jury room, the court then addressed itself to counsel, stating: “Now, what this is all about is that they came out with a note in which they say that they are divided in a particular way, and that they think they are hopelessly deadlocked.

My experience with juries is that they don’t deadlock in two hours, and I just don’t accept that, and if necessary, and I will tell you this — I won’t tell it in front of them — I’m going to keep them here all night, if I have to. “MR. HOGAN [Defense Counsel] May I be heard, Your Honor? “THE COURT: Yes, you may. “MR. HOGAN: Your Honor, for the record, I object to the instruction the Court just gave the jury. “THE COURT: What instruction is that? “MR. HOGAN: That they had to go back and find a decision. “THE COURT: I said go back and continue their deliberations. “MR.

HOGAN: Perhaps I took it a little stronger than Your Honor did, but I felt that you ordered them to make a decision in the case. “THE COURT: I didn’t do anything. I simply told them, Mr. Hogan, that I thought two hours was not a sufficient time, and that if they continued to work, they could reconcile their differences, and to go back and continue their deliberations. If necessary, I’ll have the reporter read it back. “MR. HOGAN: Well, my motion is for a mistrial ' at this time because of that instruction.

I believe it has a coercive effect upon them. ¹⁴³ “THE COURT: Well, you wait. If they are out there long enough, I’m going to give them the Allen Charge. Then maybe you will have something to complain about. “MR. HOGAN: The Allen Charge is generally acceptable, but I don’t think Your Honor’s instruction — Your Honor’s instruction at this point was stronger than the Allen Charge. “THE COURT: I told them to continue their deliberations.

Now, I didn’t tell them to continue to a verdict one way or the other. I told them that I thought they could reconcile their differences. There is nothing the matter with that. They might reconcile their differences in a not guilty verdict.

Did that occur to you? “MR. HOGAN: Also, Your Honor, I think from the tone of the instruction it could have a coercive effect upon them. “THE COURT: Well, sir, if they come out with a guilty verdict, you may take an appeal on that basis. I recognize your motion, and I deny it.” (Emphasis added.) In the continuing colloquy between court and counsel for appellant, the latter observed that the jury had “apparently” indicated to the court a numerical division although counsel had not seen the note. Defense counsel pursued this point, stating: “MR.

HOGAN: I believe, Your Honor, that that is grounds for a mistrial, because they are not supposed to indicate numerically that they are split at all.” The following thereafter ensued: “THE COURT: I didn’t ask for it. It’s in their note. “MR. HOGAN: I think that’s unfortunate. “THE COURT: Well, you get me some authority ¹⁴⁴ on that. I don’t know of any authority that says that. “MR.

HOGAN: I think if they reveal what their division process is before they reach a decision, it tends to influence a further deliberation in the case in the way that we answer in the note, and the way we ask them to go back and decide again, or not. I would think, Your Honor, I would be a little bit better able to argue this if I could see the note. “THE COURT: Sure. Hand him the note. “MR. HOGAN: Thank you, Your Honor. “THE COURT: Now, what’s your authority for the fact that they have disclosed their numerical decision, that that calls for a mistrial? “MR.

HOGAN: I don’t have that in front of me. I’ll have to supply that at a later time, but I believe that there have been decisions that if the jury has revealed how it’s standing, and what its feelings are, that either then it’s clear there should be a mistrial, or there’s just — “THE COURT: Maybe that’s more preferable to the defendant, but I don’t know of any law that says that that requires a mistrial. Do you know of any, Mr. Scheraga? “MR. SCHERAGA [Assistant State’s Attorney]: No, TH*«r Honor, and I think the Court’s direction to tiftrm was neutral. “THE COURT: Well, I intended it to be.

I don’t know whether it sounded that way or not, but I intended it to be.” The court recessed at 5:30 p.m. The jury suspended deliberations for dinner from 6:30 p.m. until 8:15 p.m. A third communication was sent to the trial judge at 9:20 p.m.: “The jury feels that based on the evidence we have, ¹⁴⁵ we can not come to a unanimous decision. We are still at a deadlock on the same 8 to 4 combination — 8 for the verdict of guilty & 4 for the verdict of not guilty. “What do we do now?” The trial judge summoned the attorneys and stated that “I do not propose to discharge them, and I simply wish to send back the message, without taking the time to bring them in here, and tell them to stay at it.” With respect to the time and circumstances, the court also then observed: “Now, they haven’t been deliberating hardly an hour since they went to eat.

They had a good, long, pleasant dinner hour, which lasted from six-thirty until a quarter past eight, and they should have gotten nice and thoroughly relaxed over that. Now, they came back, and they have been going only another hour. When that note came in to me it was about ten minutes past nine.” Thereupon counsel for appellant renewed his motion for a mistrial, contending: “In addition to the other two bases I believe we have a hung jury. They have indicated through two notes they are hung, irreparably hung, and I think at this time, in considering the trial was only a few hours, they have been deliberating longer than the trial was at this point.

In fairness, we should have a hung jury and a mistrial.” With the concurrence of defense counsel who preserved for the record, however, his motion for a mistrial, the court instructed the bailiff to inform the jury that they were to continue their deliberations. The transcript discloses that the court thereafter reconvened at approximately 10:30 p.m., at which time the ¹⁴⁶ trial judge spread on the record the sequence of events since the jury first retired to deliberate arid then stated: “Now, I propose to call them in in a moment and read them the charge recommended in the American Bar Association standards relating to trial by jury Section 5.4. This instruction has been approved by the Court of Appeals.” The State offered no comment. Defense counsel, however, interposed an objection to the court’s instruction and to the continuation of the case.

He argued: “It seems to me in five hours and twenty-five minutes of actual deliberation time, with two notes, both commenting they are completely and irrevocably separated, and with a trial that lasted approximately three hours, that balancing those factors out we must come to the conclusion that further deliberation would be fruitless, and that to send them back again is an attempt to coercing a verdict from them, which I do not believe is fair to the defendant. “THE COURT: Very well. Bring in the jury. “MR. HOGAN: Your Honor, I would again move for a mistrial as a result of that. “THE COURT: Denied.” At the conclusion of this exchange between court and counsel, the jury returned to the courtroom and the trial judge sua sponte delivered the following supplemental instruction: “THE COURT: Now, ladies and gentlemen of the jury, I propose to give you a further instruction. I am authorized to do this by