State v. Cook

CHASANOW, Judge. In the present ease, we are asked to review a trial judge’s decision in a criminal trial to remove a seated juror and replace him with an alternate juror pursuant to Maryland Rule 4-312. We hold that the defendant is not entitled to a new trial by virtue of the juror replacement. I. This case stems from the 1993 conviction in the Circuit Court for Harford County of Harold Thomas Cook on charges of sexually abusing his stepdaughter from the summer of 1974 until December, 1977. 1 At trial, the victim testified that the abuse began on a family vacation in Ocean City and continued until she reported the abuse to an aunt in 1982.

Cook’s stepdaughter testified at trial as to the nature of the abuse. She stated that Cook showed her pornographic movies, fondled her breasts and genitals, performed cunnilingus, and tried to force the victim to perform fellatio. The victim testified that the abuse occurred on a nightly basis: ⁶⁰¹ “I know to me it was just every night. It was for sure every time that my Mom was away, my Mom was at work, he was in my room.

And it went on — there were times that my Mom would be in bed and he would come in.” The victim further testified that her bedroom was right next to her parents’ bedroom. She stated that she did not inform her mother of the abuse because Cook told her that her mother was ill and if her mother was told, she would “end up being put in a ... mental institution.” ' The State rested its case against Cook on July 14, 1993 and the defense case began the following day. A recess was taken shortly after proceedings began on July 15th. At that time, the trial judge (Carr, J.) held a meeting in chambers and shared with counsel the contents of a note sent to the judge by juror number six.

The note read: “Your Onor [sic], [The victim] stated her stepfather came into her bedroom every night. The mother & stepfather’s bedroom right next door. The mother was home in bed some times before he got home from work. If he left there [sic] bedroom and went into the step-daughter[’]s bedroom did the mother know it?

Why not right next door? ‘If so!’ What for? If the daughter was raped every night, was the mother having sex with him? How often? Working a full time job and 2 nights on a part time job. ‘Had to be a good man! ’ Strike that!

Remark.” (Emphasis in original). The State moved to have the juror stricken, arguing that the note indicated that the juror had “made up his mind at this point. He is ... not considering the remainder of the evidence.” The defense argued that the note did not necessarily indicate that the juror had come to any conclusion or had violated the court’s instructions about not forming an opinion prior to deliberations. Defense counsel argued that: ⁶⁰² “[Fjirst of all I don’t know that this man writing this note in and of itself constitutes any sort of impropriety.

It constitutes something rather unusual. $ $ $ $ $ $ He has in quotes ‘had to be a good man’ end quotes. As I think the Court can take judicial notice that that remark immediately follows a description of what his view of the testimony is, which is having sexual relations every night with one, perhaps two females. And I think that’s what ‘had to be a good man’ means and doesn’t mean anything concerning guilt or innocence. He may mean that he thinks that he is guilty.” (Emphasis added).

The trial judge did not dismiss the juror at that time, but noted: “It seems to me he is doing something I have never seen before and that is midway through the case giving us a status report of what his opinion is of what has happened before, which is highly unusual. However, we are not at the end of the case yet and let me think about this and do a little research on this. Certainly I’m going to take this into consideration. If I choose to dismiss, I can do it at the end of the case....

Let’s give it some thought and get some cases on point and we will take it from there.” The court considered the issue again at the close of all of the evidence. At this point, the trial judge questioned the juror and permitted counsel to question the juror regarding the meaning of his note: “COURT: You sent me a note this morning. I was wondering why you did that? JUROR: I feel we had gotten part of the evidence from the daughter, her statement and it was not followed up to the mother right there in the household.

COURT: Why did you send me a note? JUROR: That is what the bailiff told me to do. ⁶⁰³ COURT: Only if you had questions that you wanted to ask questions of the witness, is that right? JUROR: That’s right. COURT: The witnesses were gone.

This note came to me • this morning. That witness finished testifying yesterday. JUROR: I didn’t understand that they were dismissed of the hearing either. COURT: Well, they finished testifying and other people testified, didn’t they, after they finished?

I don’t understand your remark. What was the purpose of that remark in the second paragraph? They aren’t questions; they are comments aren’t they? JUROR: It’s not meant as a comment---- I didn’t mean it to be but it is, but what was really on my mind, I could not see, I mean, I’m a parent also, what went on in the household really; the daughter answered the questions that she was asked about the household, different things but it was not followed up with the same thing with the mother so that the mother could answer them.

With them being in the next room with one partition between them, that’s what I couldn’t understand. ****** STATE: You made a statement in there that he is a good man or you’re a good man, do you remember that is one of the last things that you said, sir; and it’s underlined. * * * * * * STATE: What was that intended for? ****** JUROR: It wasn’t any definite remark or like a remark about that. What it was, the man had to be in good health to be in this kind of shape, well-being, in good shape to be in that kind of health. If a man is going to have sex with his daughter or adopted daughter, he has got to be in good shape to provide his wife with what she needs too. ⁶⁰⁴ One time when I got married I put myself in the same category. My wife couldn’t have children for 5 and a half years.

For sixty days I had to be with my wife every night. It was mighty hard and I lost weight and everything else on account of it, and I was a young man. And it takes a strong adult and a good man to continue on, because he is going to drop in health; his weight. I meant it because of my circumstances that I was involved in.” After questioning the juror, the State again moved to have the juror stricken.

The defense argued that the note reflected the juror’s desire to hear from a witness again and that the comment that the defendant “had to be a good man” simply reflected that the juror was relating his own experiences to the facts of the case. The court decided to dismiss the juror, noting: “I’m very concerned about the last paragraph which I think is a gratuitous evaluation of certain portions of the evidence that were presented at that time in this case. There’s a serious question in my mind whether this particular juror has followed the instructions that he was given ... specifically keep an open mind throughout the entire case. ^ # & # Just the overall tenor about the way he handled these particular aspects of this case and I don’t think it’s in anyone’s best interest to have someone on the jury, and this includes the Defendant’s best interest, who isn’t listening to what he is being told.” The court then replaced juror number six with an alternate juror and jury instructions and closing argument were given. Following four hours of deliberations, the jury found Cook guilty on all counts.

Prior to sentencing on September 15, 1993, a hearing was held on a motion for a new trial filed by Cook based on alleged error in dismissing the juror. Defense counsel again argued that the juror’s note indicated only that the juror had questions about the evidence and that he was relating the evidence ⁶⁰⁵ to his own experiences. Defense argued that Cook had a right to be tried by the particular jurors selected to try him and that the removal of juror number six was not harmless error. The State argued that the removal of the juror was discretionary and that the juror’s explanation for his note was not logical.

The court denied the motion for a new trial noting: “I’ll say now, if I didn’t say it at that time, that I found [the juror’s] explanation [for the comments in his note] somewhat dubious; I guess is the best word. I base that opinion not only on the words that he used, but also by the way he gave his explanation. He was, to me, somewhat at first hesitant and then came across with an explanation for the reasons ... for his editorial comment in a way that there was more to his answer than what he told us, and I gave it very little credibility. SjC * íjí Hi 5k If a juror sends out [a note] with an editorial comment and then doesn’t have a candid ... rationale or ... rational explanation for what he does; I doubt whether that juror is capable of providing either side with a fair evaluation of what is going on in the case.

And so that is the reason that I struck him.” Cook appealed to the Court of Special Appeals, which reversed and held that the removal of juror number six was both improper and prejudicial. Cook v. State, 100 Md.App. 616, 628-29 , 642 A.2d 290, 296 (1994). The intermediate appellate court interpreted the removal of juror number six as a removal for cause under Md.Rule 4-312(e) and found that when a removal for cause is requested, a trial court’s discretion is more limited than when the removal is due to the juror’s inability to continue, as set forth in Md.Rule 4-312(b)(3), because “a criminal defendant is entitled to have his case heard to completion by the chosen jury the defendant believes may decide in his favor.” Cook, 100 Md.App. at 626 , 642 A.2d at 295 . The court held that a trial judge “may strike a juror for cause ‘ “only where he or she displays a predisposition against innocence or guilt because of some bias extrinsic ⁶⁰⁶ to the evidence to be presented.” ’ ” Cook, 100 Md.App. at 626-27 , 642 A.2d at 295 (quoting Stokes v. State, 72 Md.App. 673, 677 , 532 A.2d 189, 191 (1987), in turn quoting McCree v. State, 33 Md.App. 82, 98 , 363 A.2d 647, 657 (1976)).

Applying this standard to the instant case, the Court of Special Appeals found that the juror gave an adequate explanation for the content of his note and the note did not reflect a failure to follow the court’s instructions. Cook, 100 Md.App. at 627-28 , 642 A.2d at 295-96 . The intermediate appellate court also held that the trial court’s interpretation of the statement “had to be a good man” was incorrect and the comment did not reflect any predisposition on the part of the juror. Cook, 100 Md.App. at 628 , 642 A.2d at 296 .

The court held that the error in removing the juror was not harmless because “the accused maintains a substantial right to have his case decided by the particular jurors selected to try him.” Id. We granted certiorari to review the trial judge’s decision to dismiss the seated juror.

II

Cook relies on the Court of Special Appeals’s characterization of the issues in the instant case. He argues that he has a “valued right to have his trial completed by a particular tribunal” and that the juror should not have been removed when there was “no direct evidence of any bias or predisposition.” Cook further asserts that the State requested that the juror be removed and therefore, the removal of the juror was properly analyzed by the Court of Special Appeals as a challenge for cause by the State under Md.Rule 4-312(e). Under Md.Rule 4-312(e), Cook argues, the court’s discretion in removing a juror is more limited than a removal under Md.Rule 4-312(b)(3). The State, on the other hand, argues that the removal of the juror in the instant case is purely discretionary and should be analyzed under Md.Rule 4-312(b)(3)’s provision for the replacement of jurors.

It argues that the trial judge found the juror to be “incapable of following the court’s instructions to ⁶⁰⁷ keep an open mind” and that no showing of good cause was required for the judge to remove the juror on this basis. Md.Rule 4 — 312(b)(3) provides in pertinent part: “Norir-Capital Cases. — [T]he court may direct that one or more jurors be called and impanelled to sit as alternate jurors. Any juror who, before the time the jury retires to consider its verdict, becomes or is found to be unable or disqualified to perform a juror’s duty, shall be replaced by an alternate juror in the order of selection.” Md.Rule 4-312(e) provides: “(e) Challenges for Cause. — A party may challenge, an individual juror for cause. A challenge for cause shall be made and determined before the jury is sworn, or thereafter for good cause shown.” In the. instant case, we need not determine whether the removal of juror number six must be analyzed on appellate review under Md.Rule 4-312(b)(3) or 4-312(e) because we find that under either rule the judge’s removal of the juror does not warrant a new trial.

We note that under Md.Rule 4-312(e), the requirement of “good cause shown” refers to the justification for a party making the challenge for cause after the jury is sworn and does not refer to the standard which must be applied by an appellate court in reviewing a trial judge’s determination to remove a juror. As will be discussed, infra, we hold that when a judge determines to remove a juror and substitute an alternate juror for a reason particular to that juror, whether the juror is removed based on the trial judge’s determination of the juror’s unavailability or disqualification or based on the judge’s determination of some other cause for the removal of the juror, the trial judge’s decision is a discretionary one and will not be reversed on appeal absent a clear abuse of discretion or a showing of prejudice to the defendant. This Court has previously reviewed a trial court’s decision to remove a juror for a reason particular to that juror, albeit in the context of jury selection. See Hunt v. State, 321 Md. 387 , 583 A.2d 218 (1990), cert. denied, 502 U.S. 835 , 112 S.Ct. ⁶⁰⁸ 117 , 116 L.Ed.2d 86 (1991); King v. State, 287 Md. 530 , 414 A.2d 909 (1980).

In King , we considered the assertions of two criminal defendants that the trial court erred by excluding from the panel of jurors two people who stated that they felt the laws concerning marijuana, under which the defendants were charged, should be changed. We held that the dismissal of the potential jurors was improper, noting that: “[T]he mere statement by a juror of his belief that the criminal law concerning marijuana ought to be modified, without more, does not indicate that the juror is biased, prejudiced or unqualified to be a juror in a prosecution for possession and distribution of marijuana. Many people may personally believe that a particular law is undesirable or should be changed, yet the existence of such a belief does not necessarily mean that the holder would refuse or be unable to apply the existing law to the facts of the case.” King, 287 Md. at 535-36 , 414 A.2d at 912 . The State argued that the removal of the jurors was not reversible error because the jury ultimately seated was unobjectionable.

King, 287 Md. at 537-38 , 414 A.2d at 913 . We rejected this argument, stating “[although this principle may be applicable in cases where the reason for excusing a juror is related to that particular juror, it is inapplicable when an entire class holding a certain belief is excluded.” King, 287 Md. at 538 , 414 A.2d at 913 (emphasis added). Similarly, in Hunt , we considered the trial court’s removal of a prospective juror who was the cousin of the attorney who had previously represented the defendant. In affirming the trial court’s dismissal of the potential juror, we noted that, “excusing jurors for cause because of their abstract beliefs is an abuse of discretion.” Hunt, 321 Md. at 419 , 583 A.2d at 233 .

We pointed out that the prospective juror was not dismissed for abstract beliefs, but rather for his personal relationship with someone who had strong interests in the case. Hunt, 321 Md. at 419 , 583 A.2d at 234 . We held that, even had there been insufficient cause to excuse the potential juror, this would not constitute reversible error if the jurors actually seated were unobjectionable. Hunt, 321 Md. at 420 , ⁶⁰⁹ 583 A.2d at 234 .

We found that “[tjhis principle is applicable where, as here, the reason for excusing a juror is related to the particular juror and not to a general class of people.” Id. (emphasis added) (citing King, 287 Md. at 538 , 414 A.2d at 913 ). The distinction made in Hunt and King is significant in considering the remedy available if an appellate court finds that jurors have been improperly excluded. When an appellate court grants a new trial based on the trial court’s exclusion of a class of jurors, upon retrial the jury will represent a fair cross-section of the community and the new jury may contain members of the originally excluded class.

The resulting jury will therefore, at least theoretically, be fairer than that which existed as a result of the improper exclusion of the class of jurors. In contrast, where an individual juror is improperly dismissed for reasons particular to that juror, the dismissed juror will not serve on a new jury if retrial is granted, and a new jury will be no fairer than the jury which originally decided the case. A litigant who argues on appeal that he or she did not receive a fair trial without the excused juror and seeks a new trial will have exactly what he or she got in the first trial — a jury which will not contain the juror excused from the original trial and is unlikely to contain any jurors similar to the juror excused from the original jury. In the instant case, were Cook to prevail in his appeal, he would be granted a new trial with a jury that would again not contain the excluded juror, nor would it contain any juror with characteristics similar to that which caused the exclusion of the original juror.

As there is no evidence that the alternate juror who replaced the excluded juror was partial or biased, the fair and impartial jury Cook would get on retrial is exactly what he got after juror number six was excused from the original trial. Because the “remedy” for the exclusion of a juror for a reason particular to that juror results in a new trial with a jury composed in the same manner as that in the original trial, there is no reason to reverse a trial judge who excludes an individual juror unless the removal of the juror constitutes a clear abuse of discretion on the part of the trial ⁶¹⁰ judge or the defendant can demonstrate that he or she suffered some prejudice. Absent such abuse or prejudice, the new jury on retrial will not be any fairer to the defendant than the jury which resulted after the dismissal of the original juror and the replacement of that juror with an alternate. This point was illustrated in our decision in Bluthenthal & Bickart v. May Co., 127 Md. 277 , 96 A. 434 (1915).

In Bluthenthal, this Court considered the defendant’s objection to the removal and substitution of the jury foreman after the plaintiffs counsel noticed the foreman nod to defense counsel upon being seated as foreman. In noting that the defendant was not injured by the removal and substitution of the juror, the Court stated: “The authorities support the proposition that it is not reversible error for the Court of its own motion to exclude a juror, even for insufficient cause, if an unobjectionable jury is afterwards obtained. In Pittsburgh, etc., Ry. Co. v. Montgomery, 152 Ind. 1 , [ 49 N.E. 582 ,] in discussing an objection such as that now under consideration, the Court said: ‘It is complained under the motion for a new trial that the Circuit Court erred in excusing on its own motion the juror ..., who it is alleged was a competent juror, over appellant’s objection.

But it is not shown that the jury which was finally impaneled was not a fair and impartial jury. In such a case, the matter is very much in the discretion of the trial Court, and no error is committed where no injury results from the Court’s action in excusing the juror.’ ” Bluthenthal, 127 Md. at 285-86 , 96 A. at 438 . See also Myers v. State, 58 Md.App. 211, 234-35 , 472 A.2d 1027, 1039 (citing the above passage from Bluthenthal), cert. denied, 300 Md. 484 , 479 A.2d 373 (1984); Campbell v. State, 500 N.E.2d 174, 181 (Ind.1986) (finding that replacement of juror with alternate did not deprive defendant of his right to trial by an impartial jury). We note in the instant case that Cook has presented no evidence and we have found no evidence that the jury, which resulted after juror number six was dismissed, was ⁶¹¹ partial or biased in any way or that Cook was prejudiced in any way.

We therefore see no reason to reverse the discretionary decision made by the trial judge to dismiss juror number six. The Court of Special Appeals has previously addressed the issue of removal of a seated juror under Md.Rule 4-312 and has found that the judge’s determination is a discretionary one which will not be disturbed absent an abuse of discretion. In James v. State, 14 Md.App. 689 , 288 A.2d 644 (1972), the Court of Special Appeals considered the propriety of the removal of a seated juror under a predecessor to Md.Rule 4—312(b)(3), which provided that alternate jurors shall replace jurors who, prior to the time for retiring to consider a verdict, become unable or disqualified to perform their duties. In James , a seated juror in a murder trial had failed to respond affirmatively in voir dire that she had previously served as a juror in a criminal case.

This was brought to the attention of the Assistant State’s Attorney, who informed the trial judge and suggested that the juror be removed “for cause.” The trial judge replaced the juror with an alternate and denied the defendant’s motion for a mistrial. Despite the request for the removal of the juror “for cause,” the Court of Special Appeals cited former Rule 748, a predecessor to Md.Rule 4 — 312(b)(3), and noted that: “It is pellucid that Maryland’s supernumerary juror rule provides for a substitution or replacement of regular jurors by alternates up to the juncture occurring when the jury retires to deliberate its verdict. í¡: * * * * * Our rule does not define the circumstances under which a juror shall ‘become unable or disqualified’ to perform his duties and each case must stand on its own facts. Though the directive of the Maryland