State v. McKay

Levine, J., delivered the opinion of the Court. We granted certiorari in this case primarily to decide whether unanimity of a jury verdict under the Maryland Constitution is an imperative requirement that cannot be waived by the defendant in a criminal case. Following appellee’s purported waiver of jury unanimity, he was convicted of robbery by a nine-to-three vote of a jury in the Criminal Court of Baltimore. He then appealed the conviction to the Court of Special Appeals, which held that unanimity could not be waived and therefore reversed the conviction.

McKay v. State, 32 Md. App. 451, 462-63 , 362 A. 2d 666 (1976). Although we think a unanimous jury verdict is a right guaranteed the accused, which he can waive, we affirm the judgment of the Court of Special Appeals because in this instance the waiver did not meet constitutional standards. Subsequent to his indictment on a charge of armed robbery and seven related offenses, appellee came on for trial before a jury in the Criminal Court of Baltimore. At the conclusion of the State’s case, the court granted judgment of acquittal as to all but the first count charging armed robbery, the third count charging robbery, and the eighth count charging use of a handgun in the commission of a crime of violence.

Ultimately, those charges were submitted to the jury. The jury deliberated for approximately one hour; then, although the forelady had stated initially that the jury was in agreement, she proceeded to announce that the jury ⁵⁶⁰ had found appellee not guilty under the first count, but “could not come to a unanimous decision” as to the third count. The court then admonished the jury that it must make a “unanimous determination.” With that, the jury resumed its deliberations, but returned 90 minutes later, still unable to reach a unanimous verdict on the third count. With appellee present during the third of a series of bench conferences, his attorney informed the court that appellee would accept a majority vote on the third count. 1 The court reminded appellee that he had “a right to insist upon a unanimous vote,” or alternatively, a “consitutional right” to a “retrial.” Appellee then informed the court that he would accept a majority verdict. 2 After being cautioned by the court that he had “an absolute right under the law to have the whole trial tried all over again,” appellee requested permission to consult privately with counsel.

(Emphasis added). The court excused the jury for a few minutes; then, following his conference, appellee declined an opportunity to ⁵⁶¹ confer with members of his family who were present and again advised the court that he would accept “a majority vote.” 3 The jury then returned, and the forelady announced that appellee had been found not guilty under counts one and eight, but nine jurors had voted “guilty” as to count three and three had voted “not guilty.” The clerk hearkened the verdict as one of guilty under count three, which was confirmed by a poll of the jury. In reversing the conviction, the Court of Special Appeals expressed the view that the provision in Article 21 of the Maryland Declaration of Rights for “a speedy trial by an impartial jury, without whose unanimous consent [the accused] ought not to be found guilty” does not “bestow a right but imposes a mandate.” McKay v. State, 32 Md. App. at 462 (emphasis added). Accordingly, held the court, “unanimity is an imperative requirement of a legal verdict in a Maryland criminal prosecution before a jury, and not a right of the accused which he may waive.” Id. at 463 .

I The unanimous jury verdict traces its ancestry to the Middle Ages. Apodaca v. Oregon, 406 U. S. 404, 407-408 , 92 S. Ct. 1628 , 32 L.Ed.2d 184 (1972); see Johnson v. Louisiana, 406 U. S. 356 , 383 n. 2, 92 S. Ct. 1620 , 32 L.Ed.2d 152 (1972) (Douglas, J., dissenting). Although its origins are shrouded in obscurity, it is safe to say that the various reasons offered for its development have long since ceased to support its continued vitality. 4 By the 18th Century, the unanimous verdict had ⁵⁶² established itself as a basic attribute of the common law jury. Thus, wrote Blackstone, “the founders of the English law have with excellent forecast contrived .. . that the truth of every accusation, whether preferred in the shape of indictment, information, or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbors, indifferently chosen, and superior to all suspicion.” 4 W. Blackstone, Commentaries ³⁴⁹-50.

More expressively, perhaps, he wrote that “in order to avoid intemperance and causeless delay, [the jury] are to be kept without meat, drink, fire, or candle, unless by permission of the judge, till they are all unanimously agreed.” 3 id. at ³⁷⁵. 5 That unanimity was therefore at common law an essential element of the revered trial by jury is beyond any question: “Upon these accounts the trial by jury ever has been, and I trust ever will be, looked upon as the glory of the English law. ... [ijt is the most transcendant privilege which any subject can enjoy, or wish for, that he cannot be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbours and equals... .”3 id. at ³⁷⁹. 6 Cf. Singer v. United States, 380 U. S. 24, 27-28 , 85 S. Ct. 783 , 13 L.Ed.2d 630 (1965) (right to trial by jury could not be waived at common law). ⁵⁶³ II Until Williams v. Florida, 399 U. S. 78, 91-93 , 90 S. Ct. 1893 , 26 L.Ed.2d 446 (1970), the decisions of the Supreme Court proceeded on the assumption that the trial by jury established by the Federal Constitution 7 meant a jury trial as understood and applied at common law, and included all the essential elements recognized in this country and in England when the Constitution was adopted. Patton v. United States, 281 U. S. 276, 288-90 , 50 S. Ct. 253 , 74 L. Ed. 854 (1930); Maxwell v. Dow, 176 U. S. 581, 586 , 20 S. Ct. 448 , 44 L. Ed. 597 (1900). Those elements were the 12-man jury, the presence and superintendence of a judge having the power to instruct the jury on the law and to advise them upon the facts, and the unanimous verdict.

Patton v. United States, 281 U. S. at 288 (dictum). Thus, it was said, unanimity was “required where the Sixth and Seventh Amendments apply.” Andres v. United States, 333 U. S. 740, 748 , 68 S. Ct. 880 , 92 L. Ed. 1055 (1948). So readily was it assumed, apparently, that a unanimous jury was required in criminal prosecutions that the issue of the constitutionality of non-unanimous verdicts never arose in the Supreme Court until this decade. Despite the premise reflected in those prior decisions, however, Mr. Justice White wrote for the court in Williams v. Florida, 399 U. S. at 92-93 , that “the relevant constitutional history casts considerable doubt on the easy assumption in our past decisions that if a given feature existed in a jury at common law in 1789, then it was necessarily preserved in the Constitution.” The history of the jury trial provision in Article III was characterized as “ ‘very scanty,’ ” and as shedding “little light either way” on the intended correlation between the Article III trial by jury and the attributes of the jury at common law.

Id. at 93 . The Court noted that the version of the Sixth Amendment introduced by James Madison in the House explicitly ⁵⁶⁴ provided for “ ‘an impartial jury of freeholders of the vicinage, with the requisite of unanimity for conviction, of the right of challenge, and other accustomed requisites Williams v. Florida, 399 U. S. at 94 (footnote omitted). 8 Because the Senate objected to the House version, particularly to the “vincinage” requirement, the matter was referred to a conference committee. What finally emerged was the Sixth Amendment in its present form. Absent were the provisions for “unanimity,” the “accustomed requisites,” and the “vicinage” requirement.

From this, the Court found it plausible to conclude that the deletions were of a substantive nature. “[W]here Congress wanted to leave no doubt that it was incorporating existing common-law features of the jury system, it knew how to use express language to that effect.” Id. at 97 . In holding that the Sixth Amendment, as applied to the states through the Fourteenth Amendment, was not violated by a state law providing for a six-man rather than a 12-man jury in noncapital cases, the Williams Court leaned heavily on what it regarded as this absence of demonstrated intent by the framers “to equate the constitutional and common-law characteristics of the jury.” Id. at 99 . While reaching this decision, the Court expressly left open the question whether unanimity “is an indispensable element of the Sixth Amendment jury trial.” Id. at 100 n. 46. Although four members of the Supreme Court have concluded, subsequently, that unanimity is not such an indispensable element, see Johnson v. Louisiana, 406 U. S. 356 (plurality opinion of White, J.), unanimity remains a requirement in federal prosecutions.

Id. at 369-70 (Powell, J., concurring); accord, Andres v. United States, 333 U. S. at 748-49 ; Patton v. United States, 281 U. S. at 288-90 ; Maxwell v. Dow, 176 U. S. at 586 . 9 ⁵⁶⁵ Although we need not decide the issue, since the parties have not raised it, the federal question posed by this case is not whether a defendant may be required to accept a less-than-unanimous verdict in a federal prosecution, but whether, under the Federal Constitution, a defendant may consent to such a verdict in a state criminal trial. The Supreme Court has not decided this question, but its decisions in the companion cases of Johnson v. Louisiana, 406 U. S. 356 , and Apodaca v. Oregon, 406 U. S. 404 , would appear to resolve this issue. In Johnson , the defendant contended that the reasonable' doubt standard, implicit in the Due Process Clause of the Fourteenth Amendment, required a unanimous verdict, whereas he had been convicted under a Louisiana law which required merely nine votes to convict. The Court rejected the contention, as it found no basis for holding that the vote by the nine jurors failed, as to each one, to reflect an honest belief beyond a reasonable doubt that guilt had been established, or that the disagreement of three jurors demonstrated a reasonable doubt by the jury as a whole.

Because Apodaca was tried after the Supreme Court decided Duncan v. Louisiana, 391 U. S. 145 , 88 S. Ct. 1444 , 20 L.Ed.2d 491 (1968), the defendant there was able to argue that the Sixth Amendment right to a jury trial — which Duncan made applicable to his state trial through the Due Process Clause of the Fourteenth Amendment — required the jury to reach a unanimous verdict. Thus, he claimed, his Sixth Amendment right was violated by his conviction on a 10-to-two vote, which was sufficient for conviction under the Oregon Constitution. As we said, four justices concluded that the Sixth Amendment required unanimity in neither federal nor, therefore, state prosecutions; four others believed unanimity was required in both federal and state trials; and Justice Powell believed that the Federal Constitution required unanimity in federal, but not in state ⁵⁶⁶ proceedings. The result was that a majority of the Court rejected Apodaca’s contention and held that a state law imposing less-than-unanimous verdicts in state criminal prosecutions is not violative of the Federal Constitution.

Since Johnson and Apodaca hold that neither the Sixth nor the Fourteenth Amendment is offended by a state constitutional provision imposing less-than-unanimous verdicts in all but capital cases, despite the defendant’s refusal to consent, then it seems to us that neither are those same federal constitutional amendments abridged when the defendant does give his consent. We limit our inquiry, then, to the question posed at the outset — whether unanimity, under the Maryland Constitution, is an imperative requirement that cannot be waived. Ill Two provisions in the Maryland Declaration of Rights are relevant here. The first, Article 5, provides in pertinent part: “That the Inhabitants of Maryland are entitled to the Common Law of England, and the trial by Jury, according to the course of that Law .. ..” The second and more important provision here is Article 21, which, save one minor punctuation change, is in precisely the same form as it was when designated § 19 in the original Declaration of Rights framed on November 11,1776.

It provides, in relevant part: “That in all criminal prosecutions, every man hath a right ... to a speedy trial by an impartial jury, without whose unanimous consent he ought not to be found guilty.” Whether this provision fixes unanimity of a criminal jury verdict as an imperative requirement that cannot be waived is therefore the.question presented here. As we indicated earlier, the Supreme Court has never been confronted with the question whether unanimity of a jury verdict in either federal or state criminal trials is an ⁵⁶⁷ imperative requirement under the Federal Constitution, or is instead a right or privilege guaranteed the accused which he may waive. 10 Nevertheless, the Court’s decision in Patton v. United States, 281 U. S. 276 , is instructive. There, the Court said that the jury trial afforded by Article III and the Sixth Amendment is “a trial by jury as understood and applied at common law, and includes all the essential elements as they were recognized in this country and England when the Constitution was adopted.” Id. at 288 . This, as we observed earlier, included the element of unanimity.

In holding that an entire jury or the presence of any of its members could be waived by the defendant with the consent of the court and the prosecution, the Patton Court concluded “that the framers of the Constitution simply were intent upon preserving the right of trial by jury primarily for the protection of the accused.” Id. at 297 . If, as we assume, the unanimous jury verdict could not be waived at common law, it was only because waiver of the jury trial itself, 11 or any right intended for the protection of the accused, was virtually forbidden in the early common law practice. It is safe to say that the conditions justifying the common law rule no longer exist. Although waiver of jury trial was recognized during the colonial period, particularly in Maryland and in Massachusetts, see Singer v. United States, 380 U. S. at 28-31 , there is no evidence available that waiver of unanimity ever became an issue during that period.

Despite the provision in Article 5 entitling inhabitants of Maryland “to the Common Law of England, and the trial by Jury, according to the course of that Law,” Article 21 ⁵⁶⁸ embraces the Maryland colonial experience. Waiver of the right to trial by jury was recorded as early as 1642, only eight years after settlement of St. Mary’s, IV Archives of Maryland 165 (1642), and juries of 10 and 11 men were' summoned on at least a few occasions in civil suits. LXX Archives xv. 72, 160 (1681-82). Early proceedings of the General Assembly are also illuminating.

An act of 1642 stated: “... the Defendt. in any cause civill or Criminall may put himself for tryall upon the judge or Court or, upon his Country or may wage his Law in cases allowable by the law of England[.] if both parties joyn in the tryall it Shall be tryed according to their agreemt.” I Archives of Maryland 151,186 (1642). Thus, by 1776, Maryland had long since departed from the English common law, by judicial decision or legislative enactment, in permitting waiver of not only trial by jury, but also at least one of its tranditional elements, the 12-man jury. Cf. Singer v. United States, 380 U. S. at 27-31 (jury trial not waivable at common law); Patton v. United States, 281 U. S. at 288 (common law jury consisted of “twelve men, neither more nor less”).

What this Court said at a much earlier time respecting the provision in Article 5, pertaining to the common law, seems particularly apposite here: “... [Article 5] has no reference to adjudications in England anterior to the colonization, or to judicial adoptions here, of any part of the common law, during the continuance of the colonial government, but to the common law in mass, as it existed here, either potentially, or practically, and as it prevailed in England at the time, except such portions of it as are inconsistent with the spirit of that instrument [the Declaration of Rights], and the nature of our new political institutions....” State v. Buchanan, 5 H. & J. 317, 358 (1821). Accord, County Council v. Investors Funding, 270 Md. 403, 417 , 312 A. 2d 225 (1973); McGraw v. State, 234 Md. 273 , ⁵⁶⁹ 275-76, 199 A. 2d 229 , cert. denied, 379 U. S. 862 (1964); Lickle v. Boone, 187 Md. 579, 582 , 51 A. 2d 162 (1947). There is no historical support, then, for an interpretation of Article 21 that would make jury unanimity an imperative requirement as opposed to a right which can be waived. Nor are our early statements in Ford v. State, 12 Md. 514, 549 (1859), and League v. State, 36 Md. 257, 265-66 (1872), to the contrary.

In Ford , the issue in a murder case was simply whether a poll of the jury produced a proper verdict, since 11 jurors had merely responded “guilty,” without specifying the degree of murder, after their foreman had apparently announced that the defendant was guilty of first degree murder. In this context, citing what is now Article 21, the Court said: “ ‘The verdict is the unanimous decision made by a jury and reported to the court. . . .’ Unanimity is indispensable to