State v. Harris

BELL, C.J. Thomas B. Harris, the respondent, was convicted by a jury in the Circuit Court for Baltimore County of second-degree depraved heart murder. He appealed his conviction to the Court of Special Appeals, where he argued, inter alia, 1 that ⁷⁰⁴ the trial court’s failure to disclose to him a communication between a juror and the judge’s secretary violated Maryland Rule 4—326(d), 2 requiring reversal of his conviction. The intermediate appellate court agreed: it reversed the conviction, Harris v. State, 189 Md.App. 230, 255, 984 A.2d 314, 329 (2009), holding that the Circuit Court committed reversible error when it failed to disclose, in accordance with Rule 4-326(d), the communication, and remanding the case to the Circuit Court for a new trial. We shall affirm the judgment of the intermediate appellate court.

I. The respondent was charged with second-degree specific intent murder and second-degree depraved heart murder in the killing of Karim Cross. Subsequent to the empaneling and swearing of the jury, juror No. 7 (“the juror”), informed the trial court of a concern he had about serving on the jury, explaining that his grandmother had been hospitalized, and did not have long to live. That exchange, between the court, the juror, defense counsel and the Assistant State’s Attorney, proceeded, as follows: “THE JUROR: Now can I ask my question? 3 My grandmother went in the hospital. She’s 89 years old and it was last Wednesday.

They don’t expect her to live. I think they don’t expect — she fell and punctured her lung and then ⁷⁰⁵ they’re finding stomach fluids from where they were draining so they think she had a puncture in the stomach. She was going in today for an operation, and they don’t expect her to live. I just don’t know if there will be a funeral. “THE COURT: Okay. “THE JUROR: She’s 89.

That was the only thing. If there’s no funeral, then I’m fine being her[e], “THE COURT: Right. Do you recall my asking you a question about your ability to serve? “THE JUROR: I thought it was something else to it, like, because then you continued that thought. “THE COURT: All right ... Any questions? “[ASSISTANT STATE’S ATTORNEY]: No, sir. “[DEFENSE COUNSEL]: Just, sir, that being concerned about your grandmother, would you have to leave, or would your energies and focus be on what’s going on with your grandmother or your family? “THE JUROR: When they took my cell phone today, I was concerned because I lost contact.

You know, I was waiting to hear, and, like I said, if something happens, I would want to go to the funeral. If I had a chance that they said it looked like it was the end coming, I would ... like to be able to go before that. “THE COURT: We can certainly provide you with a contact number to give your family so even though you don’t have a cell phone they could contact my chambers, and they’ll get a message to you immediately. “THE JUROR: That works, if I can still go in the evening. If they call, the[y] will come get me? “THE COURT: Yes. “THE JUROR: Okay. “THE COURT: Thank you so much.” Two days later, after being instructed as to the evidence and the applicable law and hearing closing arguments, the jury was dismissed for lunch. During the luncheon recess, the judge’s secretary received a call from the juror’s father, ⁷⁰⁶ informing her that the juror’s grandmother had passed away.

Without notifying counsel of that communication, 4 and, therefore, outside their presence, the secretary spoke to the juror and, after informing the juror of his grandmother’s death, inquired whether he was alright to continue. The juror answered that he was, assuming that he would soon be finished with deliberations. As indicated, neither the defense nor the State was informed of this communication. Soon thereafter, before deliberations began, the alternate jurors were dismissed.

Shortly after the jury had begun its deliberations, the juror sent a note to the court, asking that he be excused. That note prompted the following colloquy between the court and defense counsel: “THE COURT: Please be seated. I have received another communication. This time from Juror No. 7 seated in Seat 6.

It says, Judge, may I be excused from jury duty for family preparations? His grandmother passed away earlier today, but let me read to you what’s in his message. ‘Judge, may I be excused from jury duty for family preparations? If you can exchange me for an alternate jury member without disrupting anything, that will be great. If it is a big deal, please discuss with me.

Thank you.’ He signs it. One of my staff was contacted by one of his family members to tell him about the death of his grandmother, and we inquired whether he would be able to continue, and he said he would be able to continue. That discussion took place prior to my discharging the alternates. Now we have this letter. “[DEFENSE COUNSEL]: ...

I wish I had known about the communication earlier because maybe we would have decided to go ahead and replace him anyway because, as you recall, when we were doing voir dire, he did seem to ⁷⁰⁷ express some hesitation and concern that he could go and visit his grandmother at night, but he did have some concern that this could happen. I would say that I’m a little distraught that we didn’t know about it sooner so that I could — so we could have replaced him with an alternate, which would have been my suggestion. “THE COURT: Of course, at the time he said he was fine to continue. “[DEFENSE COUNSEL]: I know but we didn’t know anything about the communication. That’s what I’m trying to put on the record. “THE COURT: I didn’t either, I believe, until more recently. “[DEFENSE COUNSEL]: My concern is that I don’t want him rushing to make a decision because he wants to leave. I don’t know if we can get any of the alternates so on behalf of Mr. Harris in light of this I think that it’s unfair to ask this juror to continue, particularly when there’s been a death in the family. “THE COURT: All right.” Pursuant to the State’s request for more information regarding the communication, the judge’s secretary was questioned, after which the juror’s request was considered and decided: “[SECRETARY]: I’m Jennifer Stalfort, Judge Finifter’s secretary. [The juror]’s father called and informed me that his grandmother had just passed.

I asked — I thought he would like to speak to his son so I had his son speak to him and then I asked — it was a short conversation. He told his fa[]ther that he would soon be finished he thought, and I asked him. When he was finished, I said, are you all right to continue? He said, yes, he was. “[DEFENSE COUNSEL]: When did that communication happen? “[SECRETARY]: Before lunch. “[DEFENSE COUNSEL]: After closing argument? ⁷⁰⁸ “[SECRETARY]: [The juror], would probably know that.

I’m trying to think. Yes. Because he was in the jury room. He was in the jury room, but they hadn’t started to deliberate.

They weren’t all back. “[DEFENSE COUNSEL]: But it was after they were discharged? “THE COURT: No. Before they were discharged. Before he was discharged. The alternates. [“DEFENSE COUNSEL]: No. But the jury had been discharged at that point. “THE CLERK: To get lunch. “[DEFENSE COUNSEL]: They went to get lunch; in other words, we were finished with everything here in the courtroom as far as closing arguments and instructions, and the jury had been discharged. They were allowed to go get lunch and were directed to bring it back.

Once all of them were back, then they would begin their deliberations so I think the point was that they had been discharged. “THE COURT: Discharged. “[ASSISTANT STATE’S ATTORNEY]: Had they begun deliberating? “THE CLERK: No. They had not. “[ASSISTANT STATE’S ATTORNEY]: The door wasn’t closed? “[SECRETARY]: No. I went back to see and ask was he there. I had [unidentified court personnel] ask for him. They were not all back. They were actually quite slow, some of them, in coming back. “[ASSISTANT STATE’S ATTORNEY]: At this point — I don’t know, if the [court] is opposed to or objecting to any motion for mistrial? “THE COURT: Are you finished? “[ASSISTANT STATE’S ATTORNEY]: Yes.

Thank you. “THE COURT: Thank you. “[ASSISTANT STATE’S ATTORNEY]: He did say he could continue. ⁷⁰⁹ “THE COURT: All right. “[ASSISTANT STATE’S ATTORNEY]: Maybe — I don’t want to give a time period, but, if this continues for some length of time, maybe there will be another communication of a different nature, but at this point since he said he would be okay, I would ask that they continue. “[DEFENSE COUNSEL]: But their [sic] note now says he’s not okay. “THE COURT: It doesn’t say that. “[DEFENSE COUNSEL]: Well, it says that he wants to get out of jury service. “THE COURT: It says, if you can exchange me for an alternate jury member without disrupting anything, that will be great. “[DEFENSE COUNSEL]: So he’s asking to be relieved. “THE COURT: He’s saying, if you can exchange me for an alternate jury member without disrupting anything that would be great. Implying he’s fíne otherwise. If it is a big deal, please discuss with me. I don’t think he’s saying he can’t serve. “[ASSISTANT STATE’S ATTORNEY]: I would ask him to continue given the circumstances. “[DEFENSE COUNSEL]: Judge, I would ask for a mistrial based on the jury communication and this juror’s— what I would characterize as a request to be replaced; thus inferring that he wants to leave.” The juror was not discharged.

Having denied the respondent’s motion for mistrial, the judge responded to the juror’s note by stating, simply, “I cannot excuse you.” A few hours later, the jury sent another note, stating that it had reached an unanimous verdict on the specific intent count, but was deadlocked on the depraved heart count. The court instructed the jury to continue deliberating. Later that day, the jury returned a verdict: it acquitted the respondent of second-degree specific intent murder, but convicted him of second-degree depraved heart murder. The respondent ⁷¹⁰ moved for a new trial, based, in part, on the undisclosed communication between the juror and the judge’s secretary. 5 That motion was denied and the respondent was sentenced to a term of 15 years in prison.

As we have seen, the Court of Special Appeals, to which the respondent noted an appeal, reversed the judgment of the Circuit Court and remanded the case for a new trial, holding that “the trial court erred when it refused to grant a mistrial after it failed to promptly disclose the juror’s communication with the judge’s secretary.” Harris v. State, 189 Md.App. 230, 255 , 984 A.2d 314, 329 . The State filed a petition in this Court for a writ of certiorari, which we granted, 6 State v. Harris, 412 Md. 689 , 990 A.2d 1046 (2010). It presents for our consideration the following question: “Did the Court of Special Appeals err in finding that the trial court abused its. discretion in refusing to declare a mistrial after informing the defendant of an innocuous communication between the judge’s secretary and a juror?” ⁷¹¹ We shall affirm the judgment of the Court of Special Appeals, and hold that the Circuit Court should have disclosed the communication between the judge’s secretary and the juror. Its failure to do so was error, in violation of Rule 4-326(d).

II

Rule 4-326(d) prescribes the manner in which jury communications are to be handled. It provides: “(d) Communications with jury. The court shall notify the defendant and the State’s Attorney of the receipt of any communication from the jury pertaining to the action as promptly as practicable and in any event before responding to the communication. All such communications between the court and the jury shall be on the record in open court or shall be in writing and filed in the action.

The clerk or the court shall note on a written communication the date and time it was received from the jury.” The crux of the State’s argument is that Rule 4-326(d) was not violated by the trial court because the communication at issue, between the judge’s secretary and the juror, did not “pertain[] to the action.” The State distinguishes between communications that originate with the court and involve general inquiries, and communications that originate with the jurors and address trial issues or a juror’s ability to serve. The latter, it submits, is the sort of communication that falls ■within the reach of Rule 4-326(d): it is, in accordance with the language of the Rule, a “communication from the jury,” and, thus, requires the court to formulate a response. The former, communications that originate with the court, by contrast, do not require a response, and therefore, are not covered by the language of Rule 4-326(d). The State submits that, in this case, the communication in question falls within the former category.

As the State sees it, “the exchange involved merely an administrative communication designed to further the orderly continuation of the proceedings.” This is so, the State reasons, because the ⁷¹² exchange was not a formal examination of the juror’s state of mind, but rather, “was designed simply to confirm the status quo ..., that the affected juror would return to continue deliberations.” The State thus also would have us hold that a communication between a trial court and a juror, concerning a juror’s willingness or ability to continue to serve, is an “administrative” one that does not fall within the ambit of Rule 4-326(d). The State finally urges us to hold that, even if the communication at issue, between the secretary and the juror, did violate Rule 4-326(d), the error was harmless. In support of this proposition, the State points to the fact that, albeit later, the respondent was provided with the opportunity to respond to the juror’s follow-up note. Conversely, the respondent maintains that, pursuant to the unambiguous mandate of Rule 4-326(d), the trial court was required to disclose to counsel the communication between his secretary and the juror.

He asserts and emphasizes that the principles underlying the Rule — a defendant’s right to be present, as well as the preservation of fairness throughout the proceedings — were abridged when the trial court failed to inform counsel of the communication. The respondent rejects the State’s argument that Rule 4-326(d) applies only to communications that originate with the jury, and not to communications directed to a juror by the trial court. In addition, the respondent submits that the communication between the trial judge’s secretary and the juror in the case sub judice did pertain to the action, the State’s argument to the contrary notwithstanding. We agree.

This Court consistently has recognized that “an accused in a criminal prosecution for a felony has the absolute right to be present at every stage of his trial from the time the jury is impaneled until it reaches a verdict or is discharged, and there can be no valid trial or judgment unless he has been afforded that right.” Midgett v. State, 216 Md. 26, 36 , 139 A.2d 209, 214 (1958). This well settled constitutional and common law right, as we have often recognized, is guaranteed by ⁷¹³ Article 5 of the Maryland Declaration of Rights, 7 see Bunch v. State, 281 Md. 680, 683-4 , 381 A.2d 1142, 1143 (1978); Brown v. State, 272 Md. 450, 457 , 325 A.2d 557, 560 (1974), and, in some measure, by the Fourteenth Amendment to the United States Constitution. 8 It is also preserved by Maryland Rule 4-231. 9 It is, moreover, well settled that any communications between a judge and the jury which pertain to the action constitute just such stages of trial at which the defendant is entitled to be present. See Taylor v. State, 352 Md. 338, 345 , 722 A.2d 65, 68 (1998); Stewart v. State, 334 Md. 213, 224-25 , 638 A.2d 754, 759 (1994); Bunch, 281 Md. at 685 , 381 A.2d at 1144 . Indeed, the Supreme Court of the United States, too, has recognized that it is important, “especially in a criminal case,” for the defendant “to be present from the time the jury ⁷¹⁴ is impaneled until its discharge after rendering the verdict.” Shields v. United States, 273 U.S. 583, 589 , 47 S.Ct. 478, 479 , 71 L.Ed. 787, 790 (1927).

Therefore, and in that regard, the Supreme Court has cautioned against a court receiving “a communication from the jury and answering] it, without giving the defendant and his counsel an opportunity to be present in court to take such action as they might be advised. ...” Id., 273 U.S. at 587 , 47 S.Ct. at 479 , 71 L.Ed. at 789 . Rule 4-326(d) codifies these principles by providing that a court is “obliged to notify the defendant and the State’s Attorney of the receipt of [any juror or jury] communication before responding” to it. Stewart, 334 Md. at 222 , 638 A.2d at 758 . “These prescriptions are mandatory, not directory....” Id. We interpreted the Rule more recently in Winder v. State, 362 Md. 275, 322 , 765 A.2d 97, 122-23 (2001), summarizing its mandate as follows: “The rules governing communications between the judge and the jury are basic and relatively simple to adhere to in practice.

If a judge receives a communication from the jury or wishes to communicate with the jury, he or she is required to notify the parties. The communication with the jury shall be made in open court on the record or shall be made in writing and the writing shall become part of the record.... [A] defendant has a recognized right to be present during communications between the judge and the jury during ... trial. These rules are not abstract guides. They are mandatory and must be strictly followed.” (Citations omitted).

Moreover, we recently made clear that Rule 4-326(d) extends to communications between jurors and court personnel. Black v. State, 426 Md. 328, 342 , 44 A.3d 362, 370 (2012). There, where the communication at issue was an unmarked jury note, which, although it was contained in the record, the trial judge indicated that he had never seen, id., 426 Md. at 332 , 44 A.3d at 365 , we stated that “court,” as contemplated by Rule 4-326(d), “includes the trial judge and all court personnel ⁷¹⁵ who are subject to the direction and control of the judge, including, but not limited to, the courtroom clerk, the judge’s law clerk, and the bailiff.” Id., 426 Md. at 342 , 44 A.3d at 370 . Accordingly, “receipt by the trial judge or any court personnel of a communication from the jury pertaining to the action at a time before the jury renders its verdict constitutes receipt within the meaning of Rule 4-326(d), and the mandates of the Rule are triggered at that time.” Id.

Rule 4-326 (d), by its terms, requires that a communication “pertaining to the action” between the court and the jury be disclosed to counsel for both parties prior to a response being given to that communication. It is clear that the communication in this case, between the judge’s secretary and the juror, falls squarely within the ambit of Rule 4-326(d). Here, the judge’s secretary communicated with the juror 10 for the purpose of informing him of the phone call she had received from the juror’s father, in which he related that the juror’s grandmother had died. That was not the end of the communication, however.

She went on to ask the juror if he was alright to continue. The subject of the communication— the health status of the juror’s close relative, his grandmother, as well as the actual discussions — the disclosure of the fact that she had died and the juror’s acknowledgment that he was alright to continue, issues discussed by the secretary and the juror, implicate and concern the juror’s ability to continue deliberating. Clearly, therefore, at the very least, the latter ⁷¹⁶ part of the communication — the inquiry as to whether the juror could continue — “pertain[ed] to the action.” To be sure, a communication, from the court to a juror, passing