State v. Hart

²⁵⁴ GREENE, J. In this case, we address a defendant’s right to be present at trial as it pertains to communications with a jury foreperson during the deliberation phase of a trial as well as a trial court’s declaration of a mistrial on the ground of manifest necessity. Kenneth Hart (“Hart”), the defendant, was present throughout the two-day trial. On the second day of trial, after closing arguments and the administration of jury instructions, jury deliberations began at 7 p.m. After approximately three and a half hours of deliberation, the trial court received a jury note.

The judge informed the prosecutor and defense counsel of the communication, and made arrangements for the sheriffs to bring Hart, who was in custody, to the courtroom. While they were waiting for Hart to arrive, defense counsel requested a “preview” of the content of the jury note. The note indicated that the jury was deadlocked on a particular count and asked for guidance. Shortly thereafter, the judge was informed that Hart had been transported to a hospital due to a medical emergency.

After the judge discussed the note with the prosecutor and defense counsel, the court summoned the jury foreperson to discuss the nature of the deadlock. Although Hart was not present, and despite objections from defense counsel, the judge accepted a partial verdict from the jury. Hart was found guilty on three counts. The trial court then declared a mistrial on the perceived deadlocked count on the basis of manifest necessity.

At a post-trial hearing, the trial court recognized its error in receiving the partial verdict in Hart’s absence, and ordered a new trial for the counts on which Hart had been convicted. The trial judge concluded, however, that there was manifest necessity to declare a mistrial, and denied defense counsel’s motion to dismiss the deadlocked count. For the reasons explained below, we disagree with the entry of a mistrial on the perceived deadlocked count. We hold that the trial court erred when it responded to the jury note without first conducting an adequate inquiry into the volun-tariness of Hart’s absence from the court proceedings.

Fur ²⁵⁵ thermore, the trial judge erred in prematurely declaring a mistrial — an extraordinary remedy — -without first considering reasonable alternatives to the declaration, because Hart was involuntarily absent. These errors were not harmless, and resulted in prejudice to Hart. Because manifest necessity did not exist, under the unique facts of the case, a retrial on the particular count is barred on the grounds of double jeopardy. FACTUAL AND PROCEDURAL BACKGROUND As a result of a traffic stop, Hart was found to be in possession of controlled dangerous substances, including heroin, cocaine, and phencyclidine (“PCP”).

Hart was indicted on several counts, which resulted in a two-day jury trial. On May 19, 2014, the trial commenced in the Circuit Court for Montgomery County. After the State concluded its case-in-chief, Hart did not present any evidence, and rested his case. The trial court’s instructions to the jury included the modified Allen charge on the jury’s duty to deliberate. 1 Four charges were submitted to the jury: Count 1: possession of heroin with intent to distribute; Count 2: possession of heroin; Count 3: possession of cocaine; Count 4: possession of PCP.

At approximately 7 p.m., the jury began deliberations; a deputy sheriff took Hart into custody and escorted him to a holding area. At 10:21 p.m., the trial court received a written note from the jury. The judge summoned the prosecutor and defense counsel, and arranged for Hart to be brought to the courtroom. After a period of time, the court was still waiting for Hart’s arrival.

While the bailiff contacted the sheriffs to ascertain Hart’s whereabouts, the following conversation ensued between the trial judge, prosecutor and defense counsel: ²⁵⁶ THE COURT: Do you want your client present when I tell you about the note? [DEFENSE COUNSEL]: I would love a preview first. I’ll waive him for the preview. THE COURT: You’ll what? [DEFENSE COUNSEL]: I’ll fill — I’ll fill him in. THE COURT: Okay, here’s a copy.

The jury note stated: “After thorough deliberation the jury split on charge #1. No new information can help us reach consensus. What should we do?” Meanwhile, continued efforts were made to have the sheriffs escort Hart to the courtroom. At approximately 10:48 p.m., the judge was informed that Hart was absent due to a medical emergency: [DEFENSE COUNSEL]: I’m informed, your honor, or the court has just — the courtroom has been informed at this late hour, 10:48 or so, that Mr. Hart is experiencing medical problems and is likely en route by ambulance to the hospital.

THE COURT: Yes, we received a note from the jury at approximately 10:21[p.m.,] which reads, “After thorough deliberation the jury is split on charge number one. No new information can help us reach consensus. What should we do?” While we were waiting for the sheriffs to bring the defendant and after repeated calls we just found out that there’s a medical emergency. He’s on his way to the hospital.

What do you want to do about the note? [DEFENSE COUNSEL]: This is certainly a situation of first impression for me. I have no information on his medical condition aside from a call from the sheriffs department saying he’s en route with chest pains. Presumably he could be fine tomorrow morning. Maybe not.

Maybe not at all. The jury has deliberated for nearly four hours, after two full days of trial. One of two things I would suggest at this point — I mean, I don’t have Mr. Hart by my side, which makes me apprehensive to make any moves on his behalf. But perhaps an inquiry as to how seriously they’re deadlocked or— ²⁵⁷ THE COURT: Do you want me to bring the foreperson out and ask the foreperson? [DEFENSE COUNSEL]: I think that would at least give us some guidance, because my gut says ask them to come back in the morning and continue to deliberate, give them the Allen charge, find out what Mr. Hart’s status is.

I’d hate to — I don’t think I’m in a position to request a mistrial without him by my side and without his input. THE COURT: Counsel? [PROSECUTOR]: They haven’t been asked to continue to deliberate yet. I’ll defer to the court as to what we do. THE COURT: Well, I’ll bring the foreperson out and ask him whether or not — if they can’t come back tomorrow, you know, after having a good night’s sleep, do they think that they can deliberate some more?

Hi. JUROR 132: Hi. THE COURT: You can — you can just stand right there. We received your note.

And it indicates that no new information can help [the jury] reach consensus. But what I was wondering is — I mean, it’s been a long day. Do you think that after going home and maybe getting a good night’s rest and coming back tomorrow you can start deliberating again with a clearer head, or do you think it’s no use? JUROR 132: We had a very good process in there.

And there was (sic) a couple of times where we initially took a minute and everyone just thought and thought. We went around the room three times, we gave everyone a chance to talk, and then we all answered each other. We voted three times going around. And at the end, there was (sic) people in the room who said there was no information that could change their mind.

If you want to know, I can tell you what the vote count was. THE COURT: No, not right now. But when you say information, are you saying information that could be gained from you all discussing it with each other or information that we could give? ²⁵⁸ JUROR 132: I think either .... I think that there are people in the room who have unequivocal positions on each side.

And they said there’s nothing that could change their mind. THE COURT: Okay. And you don’t think a good night’s sleep would help. JUROR 132: No, I don’t think so.

The judge then asked the prosecutor and defense counsel if they had any questions for the foreperson. Each replied in the negative, and the foreperson returned to the jury room. The following exchange then took place: [DEFENSE COUNSEL]: I think the only thing that I am in a position to request at this moment is that they be excused for the night and read the Allen charge first thing in the morning, start deliberations again. If they pass a similar note suggesting that they’re deadlocked, we can deal with it accordingly.

But they haven’t been read the Allen charge. And most importantly I don’t know what Mr. Hart’s situation [is]. And without him to give me his input related to his desires, I would be I think delinquent in my duties if I requested a mistrial on his behalf. [PROSECUTOR]: Your honor, I can just tell you from the State’s perspective based on what I heard I don’t think anything is going to change. The people who are set on their positions are going to, after coming back, anything actually going to change materially to make the posture change (sic) — so the State is not interested in that.

But I’ll defer to — in terms of coming back and letting them get the Allen charge and continue to deliberate, in light of what I heard. But I’ll defer as to what ends up happening. THE COURT: Okay. With respect to what you’re referring to, the Allen charge, basically that’s already been given in the jury instruction — [a] jury’s duty to deliberate.

They’ve already got this. The foreperson came out. He indicated that, you know, they’ve taken breaks, they’ve gone over it, in response to my question, because the note wasn’t clear where it says no new information could help. And the ²⁵⁹ response to my question was whether he was talking about information from us or information from the deliberations, and he said both.

So based on his responses to my questions I’m not going to ask them to deliberate any further. I’m reluctant right now to say a mistrial as to charge number one, because I don’t know what the verdict sheet says 2 .... But I don’t see that there’s anything that would prohibit me from declaring a mistrial after we see the verdict sheet, do you? [DEFENSE COUNSEL]: I mean, I’ve stated my position. I think that they should be charged— THE COURT: No, I understand that.

But I’m just asking you at this point. [PROSECUTOR]: Your honor, I think we should look at the verdict sheet. [DEFENSE COUNSEL]: Mr. Hart is not even in the building. THE COURT: I understand that, but that’s through no fault of the court. And we don’t know what his circumstances are. [DEFENSE COUNSEL]: I agree with that, but I don’t want to — I mean, there’s only a couple of options. He’s either legitimately experiencing medical issues, which I think in light of him proceeding through this whole trial— and seemingly the stresses would at some point manifest and come to a head, and that would be appropriate with the timing associated with this, or he’s faking it which, you know, I don’t put any stock in whatsoever.

But I don’t think he should be punished by virtue of the fact that he’s fallen ill. THE COURT: I don’t see this as punishment. What do you see as punishment for it? I don’t understand what you’re— ²⁶⁰ [DEFENSE COUNSEL]: Taking a partial verdict in his absence, not allowing him to consult with me about the issue of mistrial.

Now I’ve stated my position. And that may or may not be his position, but we don’t know his position. THE COURT: So are you suggesting that this could be open-ended? We’ve got a verdict on at least some of the counts, and I’m inclined to accept that and then based on the verdict sheet declare a mistrial on one and two or just— I don’t know what it says.

So let’s bring the jury in. The court summoned the jury and received a partial verdict. The jury announced it was unable to reach a verdict as to Count 1; however, Hart was found guilty on the remaining possession counts. The jury was then hearkened, polled, and dismissed.

Thereafter, the judge declared a mistrial as to Count 1, the perceived deadlocked count. Nearly three months after the jury returned a partial verdict, on August 18, 2014, Hart filed, through counsel, a Motion to Dismiss Enumerated Counts and Motion for New Trial. He moved to dismiss Count 1 on the grounds of double jeopardy. He argued that the mistrial was not supported by manifest necessity because either the jury was not truly deadlocked, or Hart was involuntarily absent; without manifest necessity, a retrial is barred.

At a hearing, on August 22, 2014, the trial judge affirmed her finding of manifest necessity based on the jury deadlock, and denied the motion to dismiss Count 1. The Court did, however, recognize its error in accepting the partial verdict in Hart’s absence, and granted a new trial for the three counts on which Hart had been convicted. On August 26, 2014, Hart noted an interlocutory appeal to the Court of Special Appeals seeking review of the trial court’s decision to deny Hart’s motion to dismiss Count 1. Two days later, the trial court granted a stay of trial pending appellate review.

On August 12, 2015, in an unreported opinion, the Court of Special Appeals reversed the trial court’s denial of the motion to dismiss Count 1. It held, under Maryland Rule 4-231, that ²⁶¹ Hart had a right to be present at the declaration of the mistrial on Count 1; Hart neither waived his right to be present nor consented to the declaration of the mistrial, and none of the exceptions under Rule 4-231(b) existed. The intermediate appellate court determined that due to Hart’s involuntary absence, manifest necessity did not exist to declare a mistrial, and therefore, double jeopardy barred retrial. The State filed a petition for writ of certiorari with this Court.

We granted certiorari to answer the following questions, which we have rephrased: 3 1. Did Defendant have a right to be present at the colloquy with the jury foreperson, and, if so, was that right waived by defense counsel? 2. Did Defendant have a right to be present at the declaration of the mistrial? If so, was it harmless error for the court to declare a mistrial when Defendant was involuntarily absent? 3.

Assuming that the trial court committed reversible error in declaring a mistrial as to Count 1, is the appropriate remedy dismissal or retrial? State v. Hart, 445 Md. 487 , 128 A.3d 51 (2015). For the reasons stated below, we shall hold that Hart had a right to be present at the colloquy with the jury foreperson. Defense counsel, however, in his client’s absence, consented to a limited discussion between the court, the prosecutor, defense counsel ²⁶² and the jury foreperson concerning the content of the jury note.

Defense counsel did not waive Hart’s right to be present for any other stage of the trial, and defense counsel’s limited consent to an inquiry regarding the jury deadlock cannot be deemed a waiver of Hart’s right to be present for the trial court’s ultimate response to the jury note. Accordingly, the trial judge erred in declaring a mistrial in Hart’s involuntary absence without first continuing the case. The declaration was premature and manifest necessity did not exist, because the defendant was involuntarily absent, and the judge did not adopt any reasonable alternatives to the declaration. In the absence of manifest necessity, double jeopardy bars a retrial of Count 1.

Therefore, we affirm the judgment of the Court of Special Appeals. STANDARD OF REVIEW When a violation of a criminal defendant’s right to be present is at issue, we apply the harmless error analysis. [T]he harmless error principle is fully applicable to a defendant’s right to be present during a stage of the trial. Prejudice will not be conclusively presumed. If the record demonstrates beyond a reasonable doubt that the denial of the right could not have prejudiced the defendant, the error will not result in a reversal of his conviction.

Noble v. State, 293 Md. 549, 568-69 , 446 A.2d 844, 854 (1982). See Perez v. State, 420 Md. 57, 65 , 21 A.3d 1048, 1053 (2011) (“Md. Rule 4-326 protects an important right, and therefore we employ the harmless error analysis when reviewing violations of the rule.”) (citation omitted). In Dorsey v. State, we described harmless error: We conclude that when an appellant, in a criminal case, establishes error, unless a reviewing court, upon its own independent review of the record, is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict, such error cannot be deemed ‘harmless’ and a reversal is mandated. Such reviewing court must thus be satisfied that there is no reasonable possibility that the evidence complained of — whether erroneously admitted or ²⁶³ excluded — may have contributed to the rendition of the guilty verdict. 276 Md. 638, 659 , 350 A.2d 665, 678 (1976) (footnote omitted). “Once error is established, the burden is on the State to show that it was harmless beyond a reasonable doubt.

The record must affirmatively show that the communication (or response or lack of response) was not prejudicial.” Denicolis v. State, 378 Md. 646, 658-59 , 837 A.2d 944, 952 (2003) (citing Noble, 293 Md. at 563 , 446 A.2d at 850-51 ); see also State v. Yancey, 442 Md. 616, 628 , 113 A.3d 685, 692 (2015) (“We have steadfastly maintained, however, that the State has the burden to prove harmlessness.”). “The harmless error standard is highly favorable to the defendant .... ” Perez, 420 Md. at 66 , 21 A.3d at 1054 (quoting Dove v. State, 415 Md. 727, 743 , 4 A.3d 976, 985 (2010)). “[A]n ambiguous record cannot support a harmless error argument, and if an ambiguous record is insufficient, so, surely, is a silent record.” Denicolis, 378 Md. at 659 , 837 A.2d 944 (citing Taylor v. State, 352 Md. 338, 351 , 722 A.2d 65, 71 (1998)). Ordinarily, the decision whether to grant a mistrial is reviewed under the abuse of discretion standard. We explained in Simmons v. State: [O]ur cases make clear that we apply the abuse of discretion standard of review in cases of mistrial. “It is well-settled that a decision to grant a mistrial lies within the sound discretion of the trial judge and that the trial judge’s determination will not be disturbed on appeal unless there is abuse of discretion.” Carter v. State, 366 Md. 574, 589 , 785 A.2d 348, 356 (2001) .... Reading [State v. Fennell, 431 Md. 500 , 66 A.3d 630 (2013)], along with both United States Supreme Court precedent and our own prior case law demonstrates that although a reviewing court should not simply “rubber stamp” a trial judge’s ruling of a mistrial, the trial judge is “far more ‘conversant with the factors relevant to the determination’ than any reviewing court can possibly be” and, therefore, we review the trial judge’s grant of a mistrial for abuse of discretion ...

That is, we ²⁶⁴ look to whether the trial judge’s exercise of discretion was “manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.” Stabb v. State, 423 Md. 454, 465 , 31 A.3d 922, 928 (2011) (citations and quotations omitted); Wilson v. John Crane, Inc., 385 Md. 185, 198 , 867 A.2d 1077, 1084 (2005) (“There is an abuse of discretion where no reasonable person would take the view adopted by the trial court ... or when the court acts without reference to any guiding rules or principles .... or when the ruling is violative of fact and logic.”)[.] 436 Md. 202, 212-13 , 81 A.3d 383 , 389 (2013) (internal citations omitted). We apply the de novo standard, however, when there is an issue as to whether a trial court properly interpreted and applied the Maryland Rules when declaring a mistrial sua sponte: [E]ven with respect to a discretionary matter, a trial court must exercise its discretion in accordance with correct legal standards. Therefore, ... where an order involves an interpretation and application of Maryland constitutional, statutory or case law, our Court must determine whether the trial court’s conclusions are “legally correct” under a de novo standard of review. Schisler v. State, 394 Md. 519, 535 , 907 A.2d 175, 184 (2006) (internal citations and quotation marks omitted).

DISCUSSION In Maryland, a criminal defendant has a common law right to be present at all critical stages of the trial. See Grade v. State, 431 Md. 85, 95 , 64 A.3d 197, 202 (2013); Pinkney v. State, 350 Md. 201, 209 , 711 A.2d 205, 209 (1998); Stewart v. State, 334 Md. 213, 224 , 638 A.2d 754, 759 (1994). This right is implemented by Maryland Rule 4-231, which states: “A defendant shall be present at all times when required by the court.” We have explained the importance of this right: This Court consistently has recognized that “an accused in a criminal prosecution for a felony has the absolute right to be ²⁶⁵ 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.” This well settled constitutional and common law right, as we have often recognized, is guaranteed by Article 5 of the Maryland Declaration of Rights, and, in some measure, by the Fourteenth Amendment to the United States Constitution. It is also preserved by Maryland Rule 4-2B1.

State v. Harris, 428 Md. 700, 712-13 , 53 A.3d 1171, 1178 (2012) (citations and footnotes omitted). “The constitutional right of a defendant to be present at trial is rooted largely in the right to confront witnesses and is also protected in some situations by the Due Process Clause where the right of confrontation is not implicated.” Pinkney, 350 Md. at 209 , 711 A.2d at 209 (citations omitted). This right “vindicates two primary interests: enabling the defendant to assist in the presentation of a defense, and ensuring the appearance of fairness in the execution of justice.” Id. (citing State v. Hudson, 119 N.J. 165 , 574 A.2d 434, 438 (1990)). A criminal defendant’s right to be present at all stages of trial is not absolute, and includes limitations.

Md. Rule 4-231(b). For example, a defendant’s presence is not required “at a conference or argument on a question of law [.]” Id. Furthermore, this right is subject to waiver. Previously, in Maryland, this common law right could only be waived “by the defendant himself and be done expressly.” Williams v. State, 292 Md. 201, 216 , 438 A.2d 1301, 1308 (1981); see also Midgett v. State, 216 Md. 26, 37 , 139 A.2d 209, 214-15 (1958) (“[T]he right to be present is personal to the accused and cannot be waived by his counsel.”).

In Williams , this Court modified the common law right to permit, under certain circumstances, waiver by counsel in light of modern developments. 4 292 Md. at 218-19 , 438 A.2d at 1309-10 . The Williams Court explained: ²⁶⁶ Today, with the complexity of many criminal trials and the absolute right of counsel if there is a danger of incarceration, our system proceeds upon the assumption that it is primarily counsel’s function to assert or waive most “rights” of the defendant ... With respect to all criminal trials, or parts of trials, taking place after the issuance of our mandate in this case, an effective waiver of the defendant’s right to be present at every stage of the trial will not always require a personal waiver by the defendant. Where the right of confrontation is not implicated, and where there is involved no other right requiring intelligent and knowing action by the defendant himself for an effective waiver, a defendant will ordinarily be bound by the action or inaction of his attorney ... [I]f the defendant himself does not affirmatively ask to be present at such occurrences or does not express an objection at the time, and if his attorney consents to his absence or says nothing regarding the matter, the right to be present will be deemed to have been waived. 292 Md. at 218 , 438 A.2d at 1309-10 .

Pursuant to Rule 4-231(c), waiver of a defendant’s right to be present at a critical stage of trial may occur under the following conditions: The right to be present ... is waived by a defendant: (1) who is voluntarily absent after the proceeding has commenced, whether or not informed by the court of the right to remain; or (2) who engages in conduct that justifies exclusion from the courtroom; or (3) who, personally or through counsel, agrees to or acquiesces in being absent. Additionally, as explained in the Committee note to Rule 4-231, “[ejxcept when specifically covered by this Rule, the matter of presence of the defendant during any stage of the ²⁶⁷ proceedings is left to case law and the Rule is not intended to exhaust all situations.” In the case sub judice, the first issue presented is whether Hart had a right to be present at the colloquy with the jury foreperson, and, if so, whether that right was waived. The State argues that the Court of Special Appeals erred in addressing this issue, because it was not preserved for appellate review. Maryland Rule 8-131 (a) defines the scope of appellate review, and states, in pertinent part: Ordinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court, but the Court may decide such an issue if necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal.

The issue before the Court of Special Appeals was the propriety of the trial court’s denial of Hart’s motion to dismiss Count 1 on the grounds of double jeopardy. In its unreported opinion, the intermediate appellate court stated: We hold that Hart had a right to be present when the trial court declared a mistrial on Count 1, and the declaration of a mistrial in his absence was in error. Because the entry of a mistrial in Hart’s absence was erroneous in the first place, there could be no manifest necessity for declaration of the mistrial. As a result, retrial on that charge is barred by double jeopardy.

As part of its analysis, the intermediate appellate court necessarily had to explore the circumstances surrounding the trial judge’s decision to declare a mistrial. It determined that “[d]ue to the factual nature of the inquiries surrounding the trial court’s decision to declare a mistrial,” the declaration of a mistrial was not purely legal in nature. Finding no evidence of waiver or an applicable exception to the right to be present, under Rule 4-231(b)(1), 5 the intermediate appellate court held ²⁶⁸ that Hart’s right to be present had been violated twice by the trial court — at the colloquy and at the declaration of the mistrial — when the judge proceeded in Hart’s involuntary absence. To the extent that the issue regarding the propriety of the colloquy may have been unpreserved for appellate review, we hold that the Court of Special Appeals properly exercised its discretion to consider it.

The colloquy was sufficiently interrelated with the issue concerning the declaration of the mistrial in Hart’s absence. See Unger v. State, 427 Md. 383, 407-08 , 48 A.3d 242, 256 (2012) (“It is a settled principle of Maryland procedure that, for purposes of preservation in various contexts, where the issue raised by a litigant is sufficiently interrelated with another issue not raised, the court will treat them as if both issues were raised by the litigant.”); Stewart, 334 Md. at 222 , 638 A.2d at 758 (“The word ‘ordinarily’ [in Rule 8-131(a)] gives us discretion to consider issues not raised or decided below.”). Right to be Present at the Colloquy The right to be present “extends to any communication between the trial judge and the jury.” Grade, 431 Md. at 95 , 64 A.3d at 202 (citations omitted). “[Communications between the trial judge and the jury relating to the jury’s verdict are generally considered stages of the trial when the defendant has a right to be present.” Bunch v. State, 281 Md. 680, 685 , 381 A.2d 1142, 1144 (1978). We have explained: 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 ...

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. Indeed, the Supreme Court of ²⁶⁹ 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 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 . Harris, 428 Md. at 712-14 , 53 A.3d at 1178-79 (internal quotation marks and citations omitted).

These principles are codified by Maryland Rule 4-326, which governs communications between the court and jury. See Perez, 420 Md. at 63 , 21 A.3d at 1052 (“Md. Rule 4-326(d) provides explicit guidance to a trial court in dealing with communications from the jury.”). In pertinent part, Rule 4-326 states: (A) A court official or employee who receives any written or oral communication from the jury or a juror shall immediately notify the presiding judge of the communication. (B) The judge shall determine whether the communication pertains to the action.

If the judge determines that the communication does not pertain to the action, the judge may respond as he or she deems appropriate. Committee note: Whether a communication pertains to the action is defined by case law. See, for example, Harris v. State, 428 Md. 700 [ 53 A.3d 1171 ] (2012) and Grade v. State, 431 Md. 85 [ 64 A.3d 197 ] (2013). (C) If the judge determines that the communication pertains to the action, the judge shall promptly, and before responding to the communication, direct that the parties be notified of the communication and invite and consider, on the record, the parties’ position on any response.

The judge may respond to the communication in writing or orally in open court on the record. ²⁷⁰ Md. Rule 4-326(d)(2) (emphasis added). The “very spirit” of Rule 4-236 “is to provide an opportunity for input in designing an appropriate response to each question in order to assure fairness and avoid error.” Perez, 420 Md. at 64-65 , 21 A.3d at 1053 (quoting Smith v. State, 66 Md.App. 603, 624 , 505 A.2d 564, 574 (1986) cert. denied, 306 Md. 371 , 509 A.2d 134 (1986)). In the instant case, upon receiving the jury note, the judge’s first responsibility, pursuant to Rule 4-326, was to ascertain whether the communication “pertained to the action.” We have steadfastly maintained: [A]n accused in a criminal prosecution has the absolute right to be present at every stage of trial from the time the jury is impaneled until it reaches a verdict or is discharged, and that