State v. Magwood

Digges, J., delivered the opinion of the Court. At common law, jurors were "prisoners of the court ... kept together without meat, drink, fire or candle till they [were] agreed.” 1 Fortunately for those chosen citizens, modern jury service is less onerous — how much so being the issue in this criminal cause. At the instance of the State, we here review the judgment of the Court of Special Appeals in Magwood v. State, 46 Md. App. 668 , 420 A.2d 1253 (1980), reversing the jury conviction of respondent Aaron Magwood for distribution of cocaine. In essence, the intermediate appellate court ruled that, absent an emergency or a personal waiver by the defendant, no jury may be separated after a criminal case has been submitted to it for decision.

We reverse. At respondent’s trial in the Circuit Court for Montgomery County (Cahoon, J.), the judge called the attorneys to the bench after the jury had been instructed with regard to the law, but before it began deliberating. There, the following colloquy took place: THE COURT: Would there be any disagreement if I advise the jury that they should proceed with their deliberations themselves and that if they conclude that they need a rest for dinner, that it can be made available to them, and if they conclude the dinner and are unable to arrive at a verdict tonight, that they can be recessed until tomorrow, and they would not be sequestered? MR.

LOHM [defense counsel]: I have no objection. MR. BINSTOCK [assistant state’s attorney]: Well, I have no objection to the first part, but the second ⁶¹⁷ part, I don’t want to encourage them to think that they can at 7:00 o’clock say they are going to come back tomorrow when it is more appropriate for a time later on when we determine they are unable to reach a verdict. THE COURT: My problem with that ... is that these people were in the panel sometime after 3:00 o’clock, and they have had no opportunity to communicate with their homes or anything like that, and if they get in there and decide they are unable to arrive at a verdict today, and you know it is going to be protracted and prolonged, that if there is any question in their minds, I want them to know they can ask leave of the Court to rest tonight.

MR. LOHM: I agree with that. MR. BINSTOCK: I have no objection under the circumstances.

Then, in open court in the presence of the accused, the judge informed the jurors that arrangements could be made for them to have dinner together at a nearby restaurant. The court continued: I would [also] want you to know that if you believe that you are unable to arrive at a verdict tonight and wish to make a request of the Court, I will consider such a request for a recess overnight, and then you would have to return here tomorrow to finish your deliberations. [Emphasis added.] Neither the accused nor his counsel objected to these remarks and the jury retired to begin deliberating at 6:55 p.m. When, at 9:50 p.m., the jurors informed the court that quick agreement was unlikely and they wished to be excused for the night, the judge so advised the parties in open court and announced that he intended to grant the request. Again, no objection was heard, although defense counsel did request an instruction that the jury not pursue any unresolved questions they may have by consulting sources at home.

This was agreed to and, when the jurors returned to the courtroom, ⁶¹⁸ the judge admonished them not to discuss the case during their overnight separation or to consult outside references. Neither the defendant nor his counsel posed an objection, and the jurors dispersed for the night. Upon reassembling the next morning, and after deliberating for a little more than an hour, the jury informed the court that it was in agreement on the first count, distributing cocaine, but "hung” as to the second count, conspiracy. As a consequence, the judge declared a mistrial on the conspiracy allegation and received the jury’s guilty verdict, again without objection, on the distribution charge.

The Court of Special Appeals reversed this conviction and we granted certiorari. . In its reported opinion, the intermediate appellate court concluded that, absent an emergency, no jury in a criminal case may be separated, after the issue has been submitted to them, and before verdict, unless the record affirmatively shows that the accused has personally waived the right to require the jury to be sequestered during its deliberative process. [ 46 Md. App. at 678 , 420 A.2d at 1259 (footnote omitted).] From this premise, the court held that since Magwood was not present at the bench conference where his counsel initially consented to the jury’s overnight separation interrupting deliberations, there was no personal waiver by the defendant of his right to require the jury to remain together during that period and reversal was required. Id. at 675 , 420 A.2d at 1257 . Moreover, reasoned the court, "[w]hile it may be argued that the appellant was present [when the trial judge announced his intention to allow the jury to separate overnight,] and thereby waived his right to object to the separation ..., the happenings in the instant case are too fundamental to the rights of a defendant... to infer waiver [either by counsel’s consent out of his presence or] by silence.” id. at 678 , 420 A.2d at 1259 .

We do not agree. Our analysis begins with the observation that the facts of this case make it unnecessary to decide whether a defendant ⁶¹⁹ is entitled to be present when the decision to allow the jury to separate is made, and, consequently, we here intimate no view with respect to this question. See Hughes v. State, 288 Md. 216 , 421 A.2d 69 (1980). This is so because, although Magwood did not attend the bench conference where his attorney first expressed his assent to the jury separation, the defendant was present when the intent to allow the jurors to part overnight was expressed several times in open court before the jury was actually sent home.

Magwood was in attendance when the court informed the jury concerning the proposed recess, when the court announced that the jury wished to be excused for the night, and, after the jurors entered the courtroom, when the judge admonished and sent them home for the evening. In our view, Magwood being in attendance when the judge announced several times his intention to allow the jury to separate satisfied the presence requirement, if one exists, and sufficed to ensure that if the defendant had any real objection to the proposal, he could have so informed his counsel or voiced it himself prior to the separation; thus, assuming that this is a stage of the trial requiring the defendant’s presence, we perceive no violation of that right here. Rather, given the silence of Magwood and his counsel in the face of these later opportunities to object to the breach of jury sequestration, the question is whether the right to a separated jury, if it exists, can be waived in this manner. 2 As we conclude that it can, it becomes unnecessary to decide whether, and if so under what circumstances, a criminal defendant possesses a right to a secluded jury after the commencement of deliberations. We note, however, that Maryland Code (1974, 1980 Repl.

Vol.), Courts and Judicial Proceedings Article, § 8-304, places the analogous issue of jury separation prior to the submission of the case to the ⁶²⁰ panel in the discretion of the court. See, e.g., Veney v. Warden, 259 Md. 437, 442 , 271 A.2d 133, 137 (1970); Midgett v. State, 223 Md. 282, 294-99 , 164 A.2d 526, 633-35 (1960), cert. denied, 365 U.S. 853 (1961). 3 In explaining why the asserted right to a sequestered jury can be waived by a defendant through his failure to object, we note that the term waiver "is ambiguous, susceptible to numerous meanings depending upon the particular context in which it is used.” Curtis v. State, 284 Md. 132, 141 , 395 A.2d 464, 469 (1978). In Johnson v. Zerbst, 304 U.S. 458, 464 , 58 S. Ct. 1019 , 82 L. Ed. 1461 (1938), for example, the United States Supreme Court, in deciding whether a defendant relinquished his sixth amendment right to counsel, set forth the generally applicable standard for waiver of what has become known as "fundamental” constitutional rights: It has been pointed out that 'courts indulge every reasonable presumption against waiver’ of fundamental constitutional rights and that we 'do not presume acquiescence in the loss of fundamental rights.’ A waiver is ordinarily an intelligent relinquishment or abandonment of a known right or privilege. [Emphasis added.] ⁶²¹ On the other hand, in Schneckloth v. Bustamonte, 412 U.S. 218, 235 , 93 S. Ct. 2041 , 36 L.Ed.2d 854 (1973),wherethe accused was held to have consented to a search even though he was not informed of his right to require a warrant, the High Court declared that "[o]ur cases do not reflect an uncritical demand for a knowing and intelligent waiver in every situation where a person has failed to invoke a constitutional protection.” Likewise, in Estelle v. Williams, 425 U.S. 501, 512 , 96 S. Ct. 1691 , 48 L. Ed. 2d 126 (1976), the Supreme Court held that, although the defendant has a constitutional right not to be tried before a jury in identifiable prison clothes, "the failure to make an objection to the court... for whatever reason, is sufficient” to preclude assertion of the right on appeal. In determining that there is no duty on the trial court to inquire of the defendant "whether he was deliberately going to trial in jail clothes,” the Court declared that [t]o impose this requirement suggests that the trial judge operates under the same burden here as he would in the situation in Johnson v. Zerbst, [supra], where the issue concerned whether the accused willingly stood trial without the benefit of counsel.

Under our adversary system, once a defendant has the assistance of counsel the vast array of trial decisions, strategic and tactical, which must be made before and during trial rests with the accused and his attorney. Any other approach would rewrite the duties of trial judges and counsel in our legal system. [ 425 U.S. at 512 .] In attempting to verbalize the dichotomy between the fundamental constitutional rights that can only be waived by the defendant personally and the vast majority of rights that are relinquished through inaction or by consent of counsel, the Supreme Court in Schneckloth declared that "[ajlmost without exception, the requirement of a knowing and intelligent waiver has been applied only to those rights which the Constitution guarantees to a criminal defendant ⁶²² in order to preserve a fair trial.” 412 U.S. at 237 . 4 Speaking for this Court in Curtis v. State, supra, Judge Eldridge cogently reviewed the authorities on waiver and summarized them as follows: It is clear ... that whether one is precluded from asserting a constitutional right because of what may have occurred previously, even though the failure was not "intelligent and knowing,” depends upon the nature of the right and the surrounding circumstances. A defendant may forego a broad spectrum of rights which are deemed to fall within the category of tactical decisions by counsel or involve procedural defaults. In the broadest sense of the word, any tactical decision by counsel, inaction by counsel, or procedural default, could be described as a "waiver.” For example, an attorney must make numerous decisions in the course of a trial.

Whenever he makes one, choosing to take or forego a particular action, the alternate choice could be said to have been waived. However, with regard to constitutional rights in a criminal proceeding, in a much narrower sense the term "waiver” could be said to connote the intelligent and knowing relinquishment of certain basic constitutional rights under circumstances where the courts have held that only such intelligent and knowing action will bind the defendant. [ 284 Md. at 147-48 , 395 A.2d at 473 .] It thus appears that whether a defendant must be personally apprised of a particular right before he can be deemed to have relinquished it depends upon how basic that right is to a fair trial. Most decisions as to trial tactics, strategy and procedural maneuvers rest with the defendant’s attorney, for, to require an intelligent and knowing waiver of every ⁶²³ trial right of whatever kind would, in our view, adversely alter the role of the trial judge and counsel and disrupt the orderly workings of a criminal trial already designed to ensure justice for the accused. Curtis v. State, supra, 284 Md. at 149 , 395 A.2d at 474 (case interpreting the reach of "intelligent and knowing” waiver of rights as statutory bar to post conviction relief under Md. Code (1957, 1976 Repl.

Vol.), Art. 27, § 645A). On the other hand, certain trial rights of constitutional origin, whether federal or State, cannot be relinquished by counsel but, to be effective, must be directly and personally waived by the defendant. 5 For instance, the accused when pleading guilty in open court must personally waive his right to trial of the general issue. State v. Priet, 289 Md. 267, 287-90 , 424 A.2d 349, 359-60 (1981); Davis v. State, 278 Md. 103, 108 , 361 A.2d 113, 121 (1976). The defendant likewise must personally waive the right to be present at each stage of the trial, Bunch v. State, 281 Md. 680, 688 , 381 A.2d 1142, 1146 (1977).

Of course, only the accused may waive his right to counsel, Thompson v. State, 284 Md. 113, 122-23 , 394 A.2d 1190, 1196 (1978); State v. Bryan, 284 Md. 152, 157-58 , 395 A.2d 475, 477-78 (1978), the right to confront witnesses against him, State v. Collins, 265 Md. 70, 79-80 , 288 A.2d 163, 168 (1972), and the right to trial by jury, Countess v. State, 286 Md. 444, 449-50 , 408 A.2d 1302, 1304 (1979). Finally, the accused may waive a unanimous verdict, but only if he "competently and intelligently” relinquishes that right. State v. McKay, 280 Md. 558, 572 , 375 A.2d 228, 236 (1977). The parties before this Court, seizing upon the apparently bifurcated approach to the doctrine of waiver, have taken predictably contrary positions as to the relative importance of the right to a sequestered jury during deliberations.

The State urges that the assertion or relinquishment of this right to such an isolation of the jury is in the nature of a tactical ⁶²⁴ trial decision, which may be waived by the express consent of counsel or the simple failure to note an objection. The defendant, on the other hand, seeks to bring the right at issue into the select group of "fundamental” rights which may only be waived by the