State v. Sayles

State of Maryland v. Karon Sayles, No. 15, September Term, 2020; State of Maryland v. Bobby Jamar Johnson, No. 16, September Term, 2020; State of Maryland v. Dalik Daniel Oxely, No. 17, September Term, 2020 JURY NULLIFICATION – JURY QUESTIONS – SUPPLEMENTAL JURY INSTRUCTIONS – PREJUDICE – Court of Appeals held that, despite circumstance that jury nullification sometimes occurs, jury nullification is not authorized in Maryland and jury does not have right to engage in nullification. No case, statute, or rule in Maryland authorizes or gives juries right to engage in jury nullification, i.e., there is no grant of authority permitting jury to utilize nullification. Court of Appeals reiterated that Maryland case law makes clear that it is improper for attorney to argue jury nullification to jury, and that jury instructions on law are binding and trial courts must advise juries as much. On request, during voir dire, trial court must ask whether any prospective jurors are unwilling or unable to comply with jury instructions concerning certain fundamental principles.

In addition, legally inconsistent verdicts and verdict resulting from jury nullification are comparable because both involve circumstances in which jury acts contrary to trial court’s instructions as to proper application of law and both are impermissible. Court of Appeals held that, taken together, these principles of law lead to conclusion that jury nullification is not authorized in Maryland and jury may be so advised. Although jury may have inherent ability to nullify and Court recognized that jury nullification occurs, jury does not have right to engage in jury nullification. Rather, in Maryland, jury is required to determine facts and render verdict based on instructions provided to it by trial court.

Court of Appeals held that, in this case, trial court did not abuse its discretion when, in response to jury notes about jury nullification, it instructed jury, among other things, that jury nullification is juror’s knowing and deliberate rejection of evidence, it could not engage in jury nullification, jury nullification is contrary to law and engaging in it would violate jury’s oath, and jury nullification would violate court’s order and it is law of Maryland that jury must apply law as instructed by court. Court of Appeals held that trial court’s instructions were neither legally incorrect nor prejudicial. Circuit Court for Montgomery County Case Nos. 132381C, 132377C, & 132379C Argued: December 4, 2020 IN THE COURT OF APPEALS OF MARYLAND Nos. 15, 16, & 17 September Term, 2020 ______________________________________ STATE OF MARYLAND v. KARON SAYLES ______________________________________ STATE OF MARYLAND v. BOBBY JAMAR JOHNSON ______________________________________ STATE OF MARYLAND v. DALIK DANIEL OXELY ______________________________________ Barbera, C.J. McDonald Watts Hotten Getty Booth Biran, JJ. ______________________________________ Opinion by Watts, J. Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document Hotten, J., dissents. is authentic. ______________________________________ Suzanne Johnson 2021-01-29 14:48-05:00 Filed: January 29, 2021 Suzanne C. Johnson, Clerk Anecdotally speaking, jury nullification occurs where individual jurors, or the jury as a whole, in a criminal case may believe a defendant to be guilty, but nevertheless choose not to convict because the jury considers the law involved in the case to be unjust or wrong or perhaps the jury simply does not want to apply the law. Legally speaking, “jury nullification” has been defined as: A jury’s knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself or because the result dictated by law is contrary to the jury’s sense of justice, morality, or fairness.

Jury Nullification, Black’s Law Dictionary (11th ed. 2019). This case raises as a matter of first impression the question of whether a jury in Maryland has the authority to engage in jury nullification and whether, in responding to questions from a jury, the trial court correctly instructed the jury, among other things, that it was not authorized to engage in nullification and that doing so would violate the jury’s oath. In this case, Karon Sayles, Bobby Jamar Johnson, and Dalik Daniel Oxely, Respondents, were each charged with multiple offenses related to a home invasion, armed robbery, and kidnapping that occurred over the course of two days on August 1 and 2, 2017, in Silver Spring, Maryland. At a joint trial in the Circuit Court for Montgomery County, during jury deliberations, the jury sent three notes inquiring about jury nullification.

In the first note, the jury asked whether it had the right to use jury nullification. The circuit court provided a written response advising that the jury’s verdict must be based solely on the evidence, that the choices were guilty or not guilty, and that the jury should reread the court’s instructions. Later, in a second more insistent note, a juror asked that the question about the right to use jury nullification be answered with a yes or no response. In answer, the circuit court orally instructed the jury, among other things, that: jury nullification is “a juror’s knowing and deliberate rejection of the evidence or refusal to apply the law”; a jury cannot engage in jury nullification; the jury was to decide the case based on the evidence as it found it and apply the law as given to it by the court; and jury nullification should not be a consideration.

In a third note that was “[f]rom juror #112[,]” the juror directly asked whether any law in Maryland prohibited jury nullification. In response, the circuit court orally instructed the jury as a whole, among other things, that the jury could not engage in jury nullification, jury nullification is improper, contrary to the law, and would violate the jury’s oath, and jury nullification would violate the court’s order and that the jury must apply the law as explained by the court. At the end of the next day, the jury returned verdicts finding Respondents guilty of numerous crimes, including home invasion, armed robbery, and kidnapping. Respondents each appealed to the Court of Special Appeals, which, in a reported opinion, reversed the circuit court’s judgment and remanded the case to that court for a new trial.

See Sayles v. State, 245 Md. App. 128, 167 , 226 A.3d 349, 372 (2020). In doing so, the Court of Special Appeals concluded that the power of jury nullification exists and held that the circuit court’s instructions in response to the second and third jury notes concerning jury nullification “were legally incorrect and prejudicial.” Id. at 151, 144 , 226 A.3d at 362, 359 . The State filed petitions for writs of certiorari, which we granted. See State v. Sayles, 469 Md. 659 , 232 A.3d 259 (2020); State v. Johnson, 469 Md. 658 , 232 -2- A.3d 258 (2020); State v. Oxely, 469 Md. 658 , 232 A.3d 258 (2020).

Against this backdrop, we must decide whether the Court of Special Appeals was incorrect in concluding that a jury has the power to engage in jury nullification and whether the circuit court abused its discretion in instructing the jury that it could not engage in jury nullification. Basically, we must determine whether jury nullification is authorized in Maryland, i.e., whether juries have the right to engage in jury nullification. We must also decide whether the circuit court’s instructions were incorrect and prejudiced Respondents, as the Court of Special Appeals concluded. We hold that, despite the circumstance that jury nullification occurs, jury nullification is not authorized in Maryland and a jury does not have a right to engage in jury nullification.

No case, statute, or rule in Maryland authorizes or gives juries the right to engage in jury nullification, i.e., there is no grant of authority permitting a jury to nullify. Rather, Maryland case law makes clear that it is improper for an attorney to argue jury nullification to a jury, and that jury instructions on the law are binding and trial courts must advise juries as much. On request, during voir dire, a trial court must ask whether any prospective jurors are unwilling or unable to comply with the jury instructions on certain fundamental principles. In addition, a verdict resulting from jury nullification is analogous to the return of legally inconsistent verdicts because in both instances a jury acts contrary to a trial court’s instructions as to the proper application of the law and both occurrences are impermissible.

Taken together, these principles lead us to conclude that jury nullification is not authorized in Maryland. Stated otherwise, although a jury may have the ability to nullify, and we recognize -3- that jury nullification occurs, a jury does not have the right to engage in jury nullification. As such, for the reasons explained herein, we hold that, in this case, the circuit court did not abuse its discretion when, in response to the second and third jury notes about jury nullification, it instructed the jury, among other things, that: jury nullification is a juror’s knowing and deliberate rejection of the evidence or refusal to apply the law; the jury could not engage in jury nullification; jury nullification is contrary to the law and engaging in it would violate the jury’s oath; jury nullification would violate the court’s order; and, in Maryland, the jury must apply the law as instructed by the court. The circuit court’s instructions were neither legally incorrect nor prejudicial.

Accordingly, we reverse the judgment of the Court of Special Appeals and remand the case to that Court for consideration of the remaining issues not addressed on appeal.1 BACKGROUND On September 7, 2017, Respondents were each charged with forty-two offenses, including home invasion, armed robbery, kidnapping, first- and second-degree assault, 1 In its opinion, to provide guidance upon retrial, the Court of Special Appeals addressed whether the circuit court was correct in denying a motion to suppress two photo array identifications filed by Sayles, and held that the circuit court did not err. See Sayles, 245 Md. App. at 162, 167 , 226 A.3d at 369, 372 . There is no issue before this Court with respect to the motion to suppress. In the Court of Special Appeals, Respondents, however, collectively raised a total of six issues.

See id. at 136 , 226 A.3d at 354 . Two of the six issues pertained to jury nullification and a third issue pertained to the photo array identifications. The remaining three issues—whether the circuit court abused its discretion in denying a motion to recuse the trial judge and in denying a motion for a mistrial and whether all but one conviction and sentence for conspiracy should be vacated—were not addressed by the Court of Special Appeals. We, therefore, reverse the judgment of the Court of Special Appeals and remand the case to that Court for consideration of the outstanding issues. -4- false imprisonment, burglary, motor vehicle theft, fourth-degree sexual offense, and multiple conspiracy offenses.

From August 20 to 31, 2018, the Circuit Court for Montgomery County conducted a joint jury trial of Respondents. On August 31, 2018, the jury found Sayles and Oxely each guilty of home invasion, five counts of armed robbery, kidnapping, second-degree burglary, first-degree assault, five counts of second-degree assault, five counts of false imprisonment, motor vehicle theft, and related conspiracies. The jury found Johnson guilty of home invasion, five counts of armed robbery, kidnapping, second-degree burglary, five counts of second-degree assault, five counts of false imprisonment, motor vehicle theft, and related conspiracies. The jury found Johnson not guilty of first-degree assault and conspiracy to commit first-degree assault.2 On November 20, 2018, Sayles was sentenced to a total of forty-two years’ imprisonment, Johnson was sentenced to a total of forty years’ imprisonment, and Oxely was sentenced to a total of fifty years’ imprisonment.

The Home Invasion and Armed Robbery Because providing the details of the underlying crimes is not necessary for resolution of the questions presented, we give only a brief overview of the facts for context. On the night of August 1, 2017, Respondents, together with two other individuals, Younus Muayad Alaameri and Edwin Ajeo, disguised themselves as maintenance workers and gained entry into a two-bedroom apartment in Silver Spring that Aracely Ochoa shared Before submitting the case to the jury, the circuit court granted Respondents’ 2 motions for judgment of acquittal as to fourth-degree sexual offense and conspiracy to commit fourth-degree sexual offense. -5- with her husband, David Rivera; her mother, Blanco Armina Campos; her stepfather, Rolando Callejas; and her son, who was a minor. Ochoa, who worked as a manager at a nearby Cash Depot, where customers came to cash checks and send money orders, recognized Alaameri as a regular customer of the store. The men attacked Rivera and bound him, Ochoa, and Callejas with zip-ties and forced them to lie face-down on the floor.

Over the course of the night and following morning, the assailants engaged in multiple failed attempts to gain access to the Cash Depot—once with Johnson and Oxely going alone, a second time with Johnson and Oxely taking Ochoa with them, and a third time with Johnson alone taking Ochoa. Initially, Alaameri obtained the keys to the Cash Depot and the code to the store’s safe from Ochoa and sent Johnson and Oxely to the Cash Depot. Alaameri hit Ochoa in the head with a pocketknife and threatened to harm her son if she failed to cooperate. Ochoa provided the code to the safe but told Alaameri that she did not have the code to the alarm system at the Cash Depot.

Alaameri instructed Ochoa that if she received a telephone call from the Cash Depot’s alarm company while Johnson and Oxely were gone, she should say that two people were cleaning the store. Johnson and Oxely returned to the apartment and informed the others that the alarm had sounded when they attempted to enter the Cash Depot. Ochoa did not receive a call. At approximately 1:00 a.m. on August 2, 2017, Campos, who had been at work, arrived home, where she was dragged through the door, taken to the bedroom where the others had been moved, and had a blanket thrown over her face.

Next, Johnson and Oxely took Ochoa to the Cash Depot in the family van. But, when they arrived, Ochoa’s boss was at the store. So, they returned to the apartment. -6- On the third attempt, on the morning of August, 2, 2017, at the time that Ochoa was scheduled to go to work, Johnson took Ochoa to the store alone. But, when they arrived, there was a crossbar on the door preventing access.

While Ochoa was gone with Johnson, Oxely slashed Rivera with a knife. Rivera gained possession of the knife, however, and went to the living room, and yelled for the police. Oxely ran out the front door. Callejas broke, and climbed out of, a window to seek help.

Callejas made it to a bus stop, where he found a telephone and called the police. Campos also climbed out the window. When Johnson and Ochoa returned from the Cash Depot, Ochoa saw Campos running across the street, and Johnson told her to make Campos return to the apartment. Ochoa, Campos, and Johnson returned to the apartment.

Rivera opened the door, pulling Ochoa and Campos inside. Johnson ran off. By that time, all of the assailants had left the apartment, and the police arrived. Several items were discovered to be missing from the apartment, including a computer, watches, documents, and currency.

Jury Deliberations and Jury Notes On August 29, 2018, the first day of jury deliberations, at 6:57 p.m., the circuit court received from the jury what would be the first of three notes concerning jury nullification, asking: “Do we have the right to use jury nullification of a charge?”3 The circuit court gathered counsel, read the jury note, and asked for counsel’s positions on how to respond to the jury note. The prosecutor indicated that he would respond by saying that the verdict 3 The jury note included a notation indicating that it was “From a Juror[.]” In other words, the note appeared to be sent by a single juror, not from the jury’s foreperson on behalf of the entire jury. -7- sheet offered the only two choices—i.e., guilty or not guilty. Oxely’s counsel stated that “it’s difficult to have a position other than they are either not guilty or the[y’re] guilty[,]” and deferred to the circuit court on how to respond. Johnson’s counsel argued: “[O]ur position would be [] to instruct the jury that deliberations and rendering the verdicts [are] in the sole providence [sic] of the jury.” Sayles’s counsel stated that he “was trying to look up some law . . . because it’s kind of an unusual question,” but that he was “inclined to say, yes.” Sayles’s counsel explained: The last time I looked at this which was a long time ago, I believed that there wasn’t any support for the Court instructing the jury that they could nullify, but I don’t think that there’s any case that says that if there’s a question, the Court should tell the jury that they can’t.

You know, I think that’s [the] only right answer to this because, you know, I agree that the Court really can’t instruct the jury up front about jury nullification, but if they have a question and the answer is anything other than yes, I think it’s essentially the Court saying that, no, you don’t have the right to use jury nullification and I’m continuing to frantically try and find some cases on this. . . . So, anyway, our request is that the Court answer yes. The circuit court disagreed, stating that responding affirmatively “would be a violation of the rules of evidence, it would be a violation of the law in Maryland, it would be a violation of the United States Constitution and [the court was] not going to do that. There is no right to jury nullification.” The circuit court instead provided the following written response to the jury note at 7:25 p.m.: “Your verdict must be based solely on the evidence.

Your choices, based on the evidence[,] are Not Guilty or Guilty. Reread your instructions.” (Paragraph break omitted). Sayles’s counsel objected to the written response based on his earlier comments. Johnson’s counsel also objected to the written response, specifically, the last line of the response instructing the jury to reread the instructions, arguing that it -8- was coercive.

Later that same day, at 7:58 p.m., the circuit court received a second note, asking: “Can you answer the jury nullification with a yes or no response? From a juror?” The record reflects that the circuit court met with counsel in chambers to discuss the note, but the record is silent as to the discussion that occurred. Afterward, in open court, the circuit court read the jury note aloud and stated that, as indicated in chambers, the jury would be brought into the courtroom and provided an oral response. Thereafter, the circuit court orally instructed the jury as follows: Now, I am not a hundred percent sure that the juror or jurors that wrote the question have the same definition of jury nullification as the law has it.

But if it is, then here’s the answer. Here’s what jury nullification is. Jury nullification, a juror’s knowing and deliberate rejection of the evidence or refusal to apply the law, that’s considered jury nullification.[4] And the answer is no, you can’t have jury nullification. You have to decide this case based on the evidence as you find it and apply the law as I gave it to you.

You decide the facts, the weight of the evidence, you, the 12, then you apply the law. To say you can do jury nullification would be a miscarriage of justice because there’d be no reason reading you the law and no reason you considering the evidence. And that wouldn’t make sense would it? You are the only ones that weigh the evidence.

You decide what weight you want to give it, what you find. Once you get to where you are with the evidence, you take the law as I give it to you, you put it together and apply it and try and reach a verdict. So, your decision is going to be made on the evidence, applying your common sense, your past life experiences and you’re going to take the law and apply it to all of that. So, nullification shouldn’t even be a consideration.

It’s not on the verdict sheet. It’s not in the instructions. Okay, I think I’ve said enough on that.[5] 4 The circuit court’s definition of jury nullification appears to be based, in part, on the Black’s Law Dictionary definition of the term. See Jury Nullification, Black’s Law Dictionary (11th ed. 2019). 5 The jury note contains the following written notation: -9- After instructing the jury, the circuit court dismissed the jury for the evening and Sayles’s counsel objected to the instruction.

The next day, August 30, 2018, the jury resumed its deliberations and, at 9:35 a.m., the circuit court received a third note with a question about nullification, asking: Why is there is a legal definition of jury nullification where a juror can refuse to apply the law if there is no legal circumstances where that can occur? Can you please cite the specific law that does not allow a juror the right to jury nullification in the state of Maryland? The third jury note stated that it was “[f]rom juror #112[.]” A discussion as to how the circuit court should respond to the note ensued. The prosecutor pointed out that the jury had already been instructed, and argued: I continue to feel like any other information that they’re given, I understand that the definition for jury nullification was given, but I almost feel like that actually even clouds it even more.

So I know it’s difficult to say it, but I would propose that you simply say again your instructions were given to you and you decide on guilt or innocen[ce] based on what you remember the evidence being and I would breach it and leave it at that. I don’t want to give anyone else any further instructions. Johnson’s counsel responded: [T]he Court gave him [i.e., Juror No. 112,] his definition of a jury nullification last night and at this point, with that definition given already being instructed that it was improper that we can one, instruct the juror that if the juror believes that -- it seems that there’s some inkling of belief that the elements are not being met and if that’s the case and his free will to be able [to] deliberate with other jurors is th[e] issue, then I would propose that the Court give an allocute instruction,[6] that that’s really what’s going on answered on the record 8:19 8/29/18 6 It appears that where the transcript indicates that, in this response, counsel said “allocate instruction,” counsel was referring to an Allen instruction. See note 9, infra. - 10 - because it seems that somehow this juror cannot deliberate properly with the other jurors.

So I would, you know I know of course they would not bring them in or even be able to observe it they’re not able to get along or this single juror is being ostra[c]ized, but I wouldn’t take -- you know just to ask the same question that was asked before, it seems like there’s something, there’s an undercurrent here and that undercurrent very likely is that there’s not a free deliberation process, that this juror’s simply wheels are being ran over and at that point we should instruct the juror do you feel as if the elements are met, that it’s innocent or guilty and if not and there’s some other issue, then we at this point there’s only hours into the deliberation that we go into an allocute instruction. Sayles’s counsel responded: I think we should answer the question and as far as I can tell there is no law that does not allow a juror the right to jury nullification, the best that I’ve been able to find is [] there’s case law saying that it’s not proper for the Judge to instruct the jury at the attorney’s request and it’s not proper to make the arguments in closing, but I’m not aware of any law that says that the jury cannot use nullification. I would suggest that we cite the Maryland Constitution Article 23 in the trial called criminal cases, the jury shall be the judges of law as well as fact. The clause ends, except that the Court ma[y] pass upon a sufficiency of the evidence to sustain a conviction, I don’t know that that last clause is necessary, but I think that what the jury wants to know is, is there any law that does or does not allow a juror the right to jury nullification in the State of Maryland, I think the answer is no.

But I think the Maryland Constitution does provide the closest possible answer which is the jury shall be the judge of law as well the fact instructed. The circuit court rejected the notion that the jury is the judge of the law as being contrary to Maryland law. The circuit court stated that the jury is “not the judge of the law” and that it was “not going to advise him of anything close to it.” Sayles’s counsel noted that Juror Number 112 was asking for the law and the “closest” he could “find [was] the plain language of Article 23 in the Maryland Constitution so [he] would suggest that we cite - 11 - that.”7 The circuit court stated that doing so would essentially give the jury three options— not guilty, guilty, and jury nullification—which does not “exist in Maryland law[.]” The circuit court reiterated that the jury must apply the law as explained by the court in arriving at a verdict, and stated: So they have to apply the law. They’re told they can find the facts any way they want and that’s their prerogative and if they choose to find that the facts are insufficient, that’s their call, but jury nullification by definition is saying I think somebody’s, I think the evidence supports guilt, I think the law when you apply the evidence supports a guilty finding.

I find beyond the reasonable doubt somebody’s guilty, however, for whatever reason public statement, you name it, I’m going to choose to find them not guilty, that’s a definition of jury nullification and that’s improper. I can’t, I don’t think by saying that it’s their prerogative to find the evidence of the facts they want basically addresses the nullification. The circuit court recessed briefly and once back on the record, Johnson’s counsel argued: I was just thinking that maybe we could suggest to the juror that it is not providence [sic] of the Court to second-guess the juror’s analysis of the evidence and the juror, if the juror feels that the elements are not met of the crime, then the not guilty verdict is probably. But if the jury fee[l]s as if the elements are met, then the juror should vote for guilty, but it is not our job to probe into the analysis that each individual makes in reaching their conclusions.

I mean I know it doesn’t address it head on. The circuit court responded, in part, by explaining that it would direct its instructions to Juror Number 112: [I]t’s going to say basically attention juror 112, you may not use or resort to jury nullification. It is improper and would be a violation of your oath to and then “to truly try to give a true verdict according to the evidence.” Furthermore, nullification would violate the Court’s order, the court’s order 7 In relevant part, Article 23 provides: “In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction.” - 12 - and instruction. Well the Court’s order that you must apply the laws as I explained it in arriving at your verdict and I believe that the Defense, all three defendant[]s would object to that instruction for the reasons you’ve stated, correct?

Sayles’s counsel and Johnson’s counsel both responded in the affirmative. The circuit court asked Sayles’s counsel whether he wanted the court to respond by saying that the jury could implement jury nullification, and the following colloquy occurred: [SAYLES’S COUNSEL]: No, Your Honor. What the question asks for is the law that does or does not allow a juror the right to jury nullification. THE COURT: Right, it’d be like if [the] Court orders you not to do something, there’s contempt, but there’s not a law that says you can’t violate a Judge’s order.

I mean it’s the opposite for, there’s not a law in there, there’s not a specific statute that says you can’t have implement jury nullification. [SAYLES’S COUNSEL]: Well then I think you should say that, I think that’s what the question is. It says can you please cite the specific law and if the Court’s position is there’s no law addressing that, then you should say there is no specific law that does or does not allow a juror the right to jury nullification. THE COURT: Okay, that’s telling him in essence that you can do it since there’s no law against it, he’s not an attorney and even if he is, he’s wrong. He’s as I said it’s, I think by telling him that there’s no specific law basically is telling him it’s okay.

Johnson’s counsel requested that the circuit court direct the response to the jury foreperson because he did not want to “singl[e] out” Juror Number 112 or make the juror “feel like we’re ganging up on him.” The circuit court took Johnson’s counsel’s suggestion. The jury returned to the courtroom and the circuit court responded to the third note by instructing the jury as a whole as follows: Ladies and gentlemen of the jury you may not use, implement or resort to jury nullification. It is improper, it’s contrary to the law [and] would be a violation of your oath to truly try and reach a verdict according to the - 13 - evidence, which you all took that oath. Furthermore, nullification would violate this Court’s order and it’s the law of Maryland that “you must apply the laws I explained it in arriving at your verdict,” sincerely me.

I’ll give you a copy of that.[8] After responding to the third jury note, the circuit court gave a modified Allen instruction.9 8 The written instruction given to the jury in response to the third jury note on jury nullification was worded slightly different from the circuit court’s oral instruction but substantively contained the same response, providing: Jurors: You may not use or implement or resort to jury nullification. It is improper, contrary to the law and would be a violation of your oath to “truly try to reach a verdict according to the evidence.” Furthermore, nullification would violate t[he] Court’s Order that “you must apply t[he] law as I explain it in arriving at your verdict.” Sincerely, [Circuit Court Judge] 9 While the parties and the circuit court discussed the proper response to the third jury nullification note, at 11:36 a.m., the circuit court received from the jury another note asking: “What do we do in the case of the presence of guilty AND non-guilty votes and we feel that further deliberations will not change these votes?” In response, the circuit court gave a modified Allen instruction, instructing: [Y]our verdict must be the considered judgment of each of you. In order to reach a verdict, all of you must agree. In other words, your verdict must be unanimous.

You must consult with one another and deliberate with a view towards reaching an agreement if you can do so without violence to your individual judgment. Each of you must decide this case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. During the deliberation, do not hesitate to re-examine your own views. You should change your opinion if convinced you are wrong, but do not surrender your honest belief as to the weight or effect of the evidence only because of the opinion of your fellow jurors or for the mere purpose of reaching a verdict. - 14 - Later the same day, at 3:40 p.m., the circuit court received from the jury a note stating that it had “agreed on the guilt of one defendant[,]” but had “not agreed to the identification of 2 defendants[,]” and that some jurors were “adamant about their decisions (not Guilty)[.]” Less than an hour later, at 4:33 p.m., the circuit court received from the jury another note stating that it was “not sure how to proceed” and asking the circuit court to “advise[.]” And, at 5:14 p.m., the circuit court received from the jury yet another note indicating that it was “unable to move forward” and that it was “deadlocked[.]” At that point, the circuit court acknowledged the notes and sent the jury home for the evening to rest.

The following day, August 31, 2018, the jury resumed its deliberations. At 9:45 a.m., the circuit court received from the jury a note asking: “Can we please get the answers from yesterday’s questions?” At 10:15 a.m., the circuit court responded by instructing the jury in writing: “Yes. See answers provided.” At 12:24 p.m., the circuit court received from the jury a note stating: “[W]e need to let you know we have made significant progress.” At 4:03 p.m., the circuit court received a note stating that the jury had “reached final verdicts” in the case. Thereafter, the jury assembled in the courtroom and returned the verdicts discussed above.

In State v. Fennell, 431 Md. 500 , 508 n.4, 66 A.3d 630 , 635 n.4 (2013), we noted that an Allen instruction “is derived from an instruction given to a deadlocked jury as discussed by the United States Supreme Court in Allen v. United States, 164 U.S. 492 [] (1896).” Such an instruction involves asking the jurors “to conciliate their differences and reach a verdict[,]” and “is intended to stress to jurors the necessity of unanimity in their decision, as well as to encourage a juror to listen to the viewpoints of other jurors.” Fennell, 431 Md. at 508 n.4, 66 A.3d at 635 n.4 (cleaned up). - 15 - Opinion of the Court of Special Appeals Respondents each noted an appeal, and on April 1, 2020, the Court of Special Appeals reversed the circuit court’s judgment and remanded the case to the circuit court for a new trial. See Sayles, 245 Md. App. at 167 , 226 A.3d at 372 . The Court of Special Appeals held that the circuit court’s instructions in response to the second and third jury notes about jury nullification were legally incorrect and prejudicial. See id. at 144 , 226 A.3d at 359 .10 The Court of Special Appeals concluded that the circuit court’s instruction that engaging in jury nullification is contrary to the law was inaccurate because the power of jury nullification is well established and, as such, not contrary to the law.

See Sayles, 245 Md. App. at 158 , 226 A.3d at 367 . The Court of Special Appeals determined that the circuit court’s instruction that engaging in jury nullification would violate the court’s order was inaccurate because “juries have the power to nullify absent any legal consequences[,]” whereas, according to the Court of Special Appeals, the circuit court’s instruction suggested that jurors could possibly face legal consequences for engaging in jury nullification. Id. at 158 , 226 A.3d at 367 . The Court of Special Appeals stated that the circuit court’s “error” in instructing the jury was “compounded” by its “problematic definition of jury nullification[,]” which, according to the Court of Special Appeals, was 10 In the Court of Special Appeals, the State raised an issue as to preservation and the Court of Special Appeals concluded that Respondents preserved the issue concerning the circuit court’s jury nullification instructions.

See Sayles, 245 Md. App. at 144-46 , 226 A.3d at 359-60 . The Court of Special Appeals determined that, to the extent that the issues concerning the jury nullification instructions were unpreserved, it nevertheless would exercise its discretion to consider the issues as to all three Respondents. See id. at 146 , 226 A.3d at 360 . No issue as to preservation was raised in this Court. - 16 - incomplete and did not contain information about the motive for jury nullification—“to send a message about some social issue that is larger than the case itself or because the result dictated by law is contrary to the jury’s sense of justice, morality or fairness.” Id. at 158-59 , 226 A.3d at 367 (quoting Jury Nullification, Black’s Law Dictionary (11th ed. 2019)) (internal quotation marks omitted).

In the Court of Special Appeals’s view, it is the motive for the rejection of evidence that makes the rejection nullification, not the act of rejection of the evidence in and of itself. See id. at 159 , 226 A.3d at 367 . The Court of Special Appeals also concluded that Respondents demonstrated “probable prejudice.” Id. at 162 , 226 A.3d at 369 . The Court of Special Appeals stated that, after receiving the circuit court’s response to the third jury nullification note, “informing the jury that jury nullification is ‘contrary to law’ and would constitute a violation of the court’s order, the jury -- which had been previously deadlocked -- soon returned a verdict of guilty for all three” Respondents.

Id. at 162 , 226 A.3d at 369 . As such, the Court of Special Appeals was persuaded that, after hearing the circuit court’s instruction in response to the third jury nullification note, “it [was] at least probable that a juror who would have otherwise voted to acquit one or more of [Respondents] on a nullification theory would have changed his or her vote after being informed that nullification was prohibited and would constitute a violation of the court’s order.” Id. at 162 , 226 A.3d at 369 . Petitions for Writs of Certiorari On May 18, 2020, the State filed three petitions for a writ of certiorari, one as to each Respondent, raising the following two issues: - 17 - 1. Did the Court of Special Appeals wrongly conclude that a jury has the power to nullify the verdict and, therefore, the trial court abused its discretion when, in response to a jury note, it told the jury that it could not resort to jury nullification? 2.

If the trial court abused its discretion when it responded to the jury’s inquiries concerning jury nullification, did the Court of Special Appeals wrongly conclude that this error prejudiced [Respondents]? On July 13, 2020, this Court granted the petitions. See Sayles, 469 Md. 659 , 232 A.3d 259 ; Johnson, 469 Md. 658 , 232 A.3d 258 ; Oxely, 469 Md. 658 , 232 A.3d 258 . On September 2, 2020, Respondents each filed a motion to consolidate, requesting that this Court consolidate the three cases for briefing and argument.

The State had no objection to the granting of the motions, and this Court granted the motions, consolidating the cases for briefing and oral argument. STANDARD OF REVIEW In Appraicio v. State, 431 Md. 42, 51 , 63 A.3d 599, 604 (2013), this Court observed that a trial court’s decision to give a particular jury instruction “will not be disturbed on review except on a clear showing of abuse of discretion, that is, discretion manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.” (Cleaned up). In response to a jury question, a trial court may give a supplemental instruction. See id. at 51 , 63 A.3d at 604 .

In State v. Bircher, 446 Md. 458, 463 , 132 A.3d 292, 295 , cert. denied, ___ U.S. ___, 137 S. Ct. 145 (2016), we stated that “[w]hether to give supplemental instructions is within the sound discretion of the trial judge and will not be disturbed on appeal, absent a clear abuse of discretion.” (Cleaned up). - 18 - DISCUSSION I. The Parties’ Contentions The State contends that the Court of Special Appeals improperly concluded that a jury has the power to nullify and that the circuit court abused its discretion in instructing the jury, in response to questions from the jury, that the jury could not engage in jury nullification. The State argues that there is no power of jury nullification in Maryland and that the circuit court properly responded to questions from the jury by instructing the jury that it must apply the laws as instructed, and by informing the jury that jury nullification is contrary to the law and would violate the jury’s oath. According to the State, because jury nullification is not authorized in Maryland, when asked by a jury, a trial court may not imply that a jury may engage in jury nullification. The State asserts that, even if jury nullification were “legitimate,” the circuit court’s instructions in this case were proper “because the theoretical existence of jury nullification does not vindicate a judge instructing jurors that they may set aside their oaths and make a decision contrary to the evidence.” The State maintains that, because a jury lacks the power to engage in jury nullification, the circuit court’s instructions in this case—that jury nullification is contrary to the law and would violate the court’s order—constituted a correct statement of the law.

The State argues that the circuit court could not have responded to the jury notes in the affirmative—i.e., stating that jury nullification is an option—without “running afoul” of case law that provides that a trial court’s instructions on the law are binding. Respondents counter that the Court of Special Appeals was correct in concluding - 19 - that the circuit court abused its discretion in instructing the jury that engaging in jury nullification would be contrary to the law and violative of a court order because such instructions contain inaccurate statements of the law. Respondents argue that the Court of Special Appeals correctly recognized the well-established power of the jury to engage in jury nullification and appropriately adopted the Black’s Law Dictionary definition of the term. Respondents assert that, although jury nullification is disapproved of, “it remains a fundamental truth that juries retain the power to nullify.” Respondents maintain that, although it is improper both for a trial court to affirmatively instruct a jury that it may engage in jury nullification and for parties to argue nullification to a jury, a jury nonetheless has the power to nullify and this Court has never held that a jury is prohibited from exercising that power.

Respondents contend that, even if this Court holds that a jury does not have the power to engage in jury nullification, reversal is warranted because the circuit court’s instructions in this case constituted an abuse of discretion and were prejudicial as the circuit court failed to give the complete definition of jury nullification and inaccurately suggested that the jury could face legal consequences for engaging in nullification. Respondents also argue that the circuit court’s responses to the jury’s questions led the jury to believe that it was not free to reject any of the State’s evidence. In a reply brief, the State contends that the circuit court’s instructions, considered in totality, lead to the conclusion that the definition of jury nullification provided by the court “was correct, complete, and did not contribute to any usurpation of the jury’s role as fact finder.” The State points out that, after defining jury nullification, the circuit court - 20 - reminded the jury that it (the jury) must decide the facts and the weight of the evidence, and apply the law, and that, as such, the jury would not have interpreted the definition of jury nullification as prohibiting it from rejecting evidence presented at trial. Law It is well known that jury deliberations are private and conducted in secret.

See Stokes v. State, 379 Md. 618, 638 , 843 A.2d 64, 75 (2004). The United States Court of Appeals for the Second Circuit has stated that the secrecy of jury deliberations is a “cornerstone” of the American judicial system and that, generally, nobody, including the trial judge, “has a ‘right to know’ how a jury, or any individual juror, has deliberated or how a decision was reached by a jury or juror.” United States v. Thomas, 116 F.3d 606, 618 (2d Cir. 1997). The secrecy and privacy of jury deliberations enables jury nullification to occur. See id.

Black’s Law Dictionary defines “jury nullification” as: A jury’s knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself or because the result dictated by law is contrary to the jury’s sense of justice, morality, or fairness. Jury Nullification, Black’s Law Dictionary (11th ed. 2019). Some Federal courts have favorably cited and adopted this definition. See, e.g., Verlo v. Martinez, 820 F.3d 1113 , 1119 & n.1 (10th Cir. 2016) (The Tenth Circuit described jury nullification as “a practice in which a jury refuses to convict a defendant despite legal evidence of guilt because the jury members believe the law at issue is immoral” and then footnoted the Black’s Law Dictionary definition of “jury nullification.”); see also United States v. Boone, 458 F.3d - 21 - 321, 328 n.2 (3d Cir. 2006), cert. denied, 551 U.S. 1147 (2007); United States v. Young, 403 F. Supp. 3d 1131 , 1148 (D.N.M. 2019).

By contrast, in Thomas, 116 F.3d at 608, 614 , the Second Circuit referred to jury nullification as “the intentional disregard of the law as stated by the presiding judge[,]” and stated that jury nullification, by definition, “is a violation of a juror’s oath to apply the law as instructed by the court[.]” In Sparf v. United States, 156 U.S. 51, 74 (1895), the Supreme Court of the United States stated that juries “have the physical power to disregard the law, as laid down to them by the court[,]” but they do not “have the moral right to decide the law according to their own notions or pleasure.” In Sparf, id. at 63, 99-100 , the Supreme Court concluded that the trial court properly gave a supplemental instruction that told the jury “that, in view of the evidence, the only verdict the jury could under the law properly render would be either one of guilty of the offense charged, or one of not guilty of the offense charged[.]” In so concluding, the Supreme Court stated that it “must hold firmly to the doctrine that in the courts of the United States it is the duty of juries in criminal cases to take the law from the court, and apply that law to the facts as they find them to be from the evidence.” Id. at 102 .11 In addressing the issue of jury nullification, Federal courts have followed the Supreme Court’s lead in Sparf. In United States v. Drefke, 707 F.2d 978, 982 (8th Cir.), 11 The Supreme Court recognized, however, that its holding did not necessarily apply in jurisdictions where there was a contrary constitutional provision permitting the jury to decide both the law and facts. See Sparf, 156 U.S. at 102 (“[W]here the matter is not controlled by express constitutional or statutory provisions, it cannot be regarded as the right of counsel to dispute before the jury the law as declared by the court.”). - 22 - cert. denied sub nom. Jameson v. United States, 464 U.S. 942 (1983), the Eighth Circuit stated that, since Sparf, “federal courts have uniformly recognized the right and duty of the judge to instruct the jury on the law and the jury’s obligation to apply the law to the facts, and that nullification instructions should not be allowed.” And, in United States v. Sepulveda, 15 F.3d 1161, 1190 (1st Cir. 1993), cert. denied, 512 U.S. 1223 (1994), the First Circuit stated that, “although jurors possess the raw power to set an accused free for any reason or for no reason, their duty is to apply the law as given to them by the court.” (Citation omitted).

Moreover, although “jurors may choose to flex their muscles, ignoring both law and evidence in a [] rush to acquit a criminal defendant, neither the court nor counsel should encourage jurors to exercise this power.” Id. (citation omitted). In Thomas, 116 F.3d at 615 , the Second Circuit further explained that “the power of juries to ‘nullify’ or exercise a power of lenity is just that—a power; it is by no means a right or something that a judge should encourage or permit if it is within his [or her] authority to prevent.” And, in United States v. Washington, 705 F.2d 489, 494 (D.C. Cir. 1983), the United States Court of Appeals for the District of Columbia Circuit concluded that a trial court properly refused to give an instruction on jury nullification requested by the defendant because the defendant’s “assertion that an instruction on jury nullification is the best assurance against its arbitrary exercise . . . has no support in the law and flies in the face of common sense.” (Cleaned up). Consistent with the Supreme Court’s decision in Sparf, courts in many States have recognized that jury nullification sometimes occurs but have expressly disapproved of the practice.

In Walden v. State, 895 N.E.2d 1182, 1184 (Ind. 2008), the Supreme Court of - 23 - Indiana stated that, in an earlier case, it had “made clear that Indiana juries do not have a broad, general nullification power of criminal cases.” In People v. Williams, 21 P.3d 1209, 1223 (Cal. 2001), the Supreme Court of California stated that “[j]ury nullification is contrary to our ideal of equal justice for all and permits both the prosecution’s case and the defendant’s fate to depend upon the whims of a particular jury, rather than upon the equal application of settled rules of law.” As such, the Supreme Court of California “reaffirm[ed] the basic rule that jurors are required to determine the facts and render a verdict in accordance with the court’s instructions on the law.” Id. Similarly, over a decade earlier, in People v. Partner, 180 Cal. App. 3d 178, 186 (1986), a California Court of Appeal concluded that, “although a jury may occasionally exercise a raw power to return a verdict more favorable to the defendant than warranted by the evidence and the law, this power should not be legitimized in instructions to the jury.” The Court determined “that the jury should not be instructed on so-called jury nullification. . . . The jury should not be instructed that it may disregard the law.” Id.

(citation omitted). In People v. Goetz, 532 N.E.2d 1273, 1274 (N.Y. 1988), cert. denied, 489 U.S. 1053 (1989), the Court of Appeals of New York stated that, although nothing prevents a “jury from acquitting although finding that the prosecution has proven its case, this so-called ‘mercy-dispensing power’, as defendant concedes, is not a legally sanctioned function of the jury and should not be encouraged by the court[.]” (Citations omitted). And, in Commonwealth v. Fernette, 500 N.E.2d 1290, 1298 (Mass. 1986), the Supreme Judicial Court of Massachusetts declined to approve of an instruction requested by the defendant that would inform “the jury of their power to nullify the law as stated by the court, in effect sanctioning jury nullification.” (Footnote - 24 - omitted). In a footnote, the Court “recognize[d] that jurors may return verdicts which do not comport with the judge’s instructions[,]” but did “not accept the premise that jurors have a right to nullify the law on which they are instructed by the judge, or that the judge must inform them of their power.” Id. at 1298 n.23 (citations omitted).

Likewise, in Walker v. State, 445 N.E.2d 571, 575 (Ind. 1983), the Supreme Court of Indiana held that a trial court correctly instructed a jury that, although it was to determine the law, that did “not mean that you have the right to make, repeal, disregard, or ignore the law as it exists. The instructions of the Court are the best source as to the law applicable to this case.” And, the Supreme Court of Indiana held that the trial court properly refused to give instructions that “would have conveyed to the jury the belief that it had a power of nullification, which clearly it does not possess under the law.” Id. (citations omitted). More recently, in Lohmiller v. State, 884 N.E.2d 903 , 911 & n.8 (Ind.

Ct. App. 2008), the Court of Appeals of Indiana confirmed that a specific section of the Indiana Constitution— providing that “in all criminal cases whatever, the jury shall have the right to determine the law and the facts”—“does not provide a right for jury nullification.” (Footnote omitted). The Court also concluded that the trial court properly rejected giving the defendant’s requested instruction on jury nullification, noting that the Supreme Court of Indiana had previously held that, because the Indiana Constitution “does not provide the right for jury nullification, the trial court properly refused to give a tendered instruction on the issue.” Id. at 911 n.9. In People v. Montanez, 667 N.E.2d 548, 553 (Ill. App.), appeal denied, 671 N.E.2d 739 (Ill. 1996), the Appellate Court of Illinois stated: “The power of jury nullification exists, but it is not authorized by the law.

A defendant has no right to have - 25 - the jury defy the law or ignore the undisputed evidence.” (Citation omitted). And, in Hartley v. State, 653 P.2d 1052, 1055 (Alaska Ct. App. 1982), where a defendant made an argument that was “a variation on the doctrine of jury nullification[,]” the Court of Appeals of Alaska “reject[ed] th[e] argument and the doctrine of nullification[,]” determining that a “jury has a duty, albeit unenforceable, to decide a criminal case on the law and the evidence.” (Citations omitted). Similarly, in State v. Paredes-Solan, 222 P.3d 900, 908-09 (Ariz. Ct. App. 2009), the Court of Appeals of Arizona held that a trial court did not abuse its discretion in refusing to instruct the jury on nullification, explaining: [The defendant] has not cited, nor have we found, any Arizona or federal authority supporting his argument that he was entitled to a jury nullification instruction.

But, we find extremely persuasive the substantial jurisprudence from the federal courts concluding defendants are not entitled to such an instruction. It is true, as [the defendant] notes, that the jury’s nullification power is well-established. However, jury nullification is not the legal right of either the defendant or the jury; the jury merely has a power to acquit on bad grounds, because the government is not allowed to appeal from an acquittal by a jury. Thus, although a jury-nullification verdict must stand, such a verdict contravenes the law the jury has been instructed to follow in deciding the case.

Consequently, although juries have the power to ignore the law in their verdicts, courts have no obligation to tell them they may do so. (Cleaned up). And, in Mouton v. State, 923 S.W.2d 219, 221 (Tex. App. 1996), where a defendant argued that the jury should have been advised that, because of his youth, it could ignore the law if they so decided and acquit the defendant, the Court of Appeals of Texas held that the defendant was not entitled to a jury nullification instruction.

The Court stated that, although it was “undisputed that a jury has a power of nullification” and it “is a recognized aspect of our jury system, there is no constitutional implication that would - 26 - require a trial judge to instruct the jury on nullification.” Id. The Court stated that, over a hundred years earlier, in Sparf, the Supreme Court had rejected the argument raised by the defendant, and that “Federal courts faced with requests for jury nullification instructions have consistently followed the Sparf reasoning.” Mouton, 923 S.W.2d at 221-22 (cleaned up). The Court concluded that, although jury nullification exists, “it is not a legal standard and is not a constitutional right of the defendant. The court’s duty is to instruct the jury on the law, and the trial court in the instant case complied with that duty.” Id. at 222 .

Yet, some States have recognized a jury’s ability to engage in jury nullification and granted trial courts the authority to advise juries about the practice. For example, in State v. Paris, 627 A.2d 582, 588-89 (N.H. 1993), the Supreme Court of New Hampshire held that a trial court did not err in refusing to give the jury nullification charge that the defendant had requested where it instead gave a different instruction that was the equivalent of a jury nullification instruction. The Court stated that a jury nullification charge informs “the jury of its historical prerogative to acquit a defendant even if the verdict is contrary to the law and the facts of the case.” Id. at 588 (cleaned up). The Court concluded that the instruction that the trial court gave—“that ‘if you find that the State has proven all of the elements of the offense charged beyond a reasonable doubt, you should find the defendant guilty’”—essentially was a jury nullification instruction because it informed the jury that it “may acquit the defendant even if the State proved beyond a reasonable doubt each element of the offenses charged.” Id. at 589 (emphasis in original).

In State v. Paul, 104 A.3d 1058 , 1062 (N.H. 2014), the Supreme Court of New Hampshire explained: It is well established that jury nullification is neither a right of the defendant - 27 - nor a defense recognized by law. Rather, jury nullification is the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge and contrary to the evidence. The trial court ordinarily gives the Wentworth instruction,[12] which is the equivalent of a jury nullification instruction. The defendant is not entitled to a more specific jury nullification instruction, and the decision to give such an instruction, when requested, lies within the sound discretion of the trial court depending on the facts of a particular case.

(Cleaned up). In other words, in New Hampshire, it appears that the giving of a Wentworth instruction, which is considered to be the equivalent of a jury nullification instruction, is authorized by case law.13 In Maryland, with the exception of the Court of Special Appeals’s opinion here, no case, statute, or rule expressly defines the term “jury nullification” or approves of the practice of jury nullification. Case law, however, clearly holds that it is improper for an attorney to argue jury nullification to a jury. In Blackwell v. State, 278 Md. 466, 478-80 , 12 Derived from State v. Wentworth, 395 A.2d 858, 863 (N.H. 1978), the Wentworth instruction is: If you have a reasonable doubt as to whether the State has proved any one or more of the elements of the crime charged, you must find the defendant not guilty.

However, if you find that the State has proved all of the elements of the offense charged beyond a reasonable doubt, you should find the defendant guilty. Paul, 104 A.3d at 1059 (quoting Wentworth, 395 A.2d at 863 ) (emphasis in original). 13 As another example, in Walker v. State, 723 P.2d 273, 284 (Okla. Crim. App.), cert. denied, 479 U.S. 995 (1986), the Court of Criminal Appeals of Oklahoma described jury nullification as “the jury’s exercise of its inherent power to bring a verdict of acquittal in the teeth of both law and facts[,]” and stated that, in capital cases, a jury nullification instruction “inform[s] the jury of its right to return a sentence of life no matter how great the weight of evidence supporting the circumstances.” (Cleaned up).

The Court held that, although a trial court may exercise its discretion to give a jury nullification instruction, a defendant is not entitled to such an instruction and it is not error for a trial court to refuse the defendant’s request. See id. - 28 - 365 A.2d 545, 552-53 (1976), cert. denied, 431 U.S. 918 (1977), this Court held that the trial court properly sustained an objection to defense counsel’s opening statement because counsel’s statement encouraged the jury to disregard the law, thereby essentially encouraging the jury to engage in jury nullification. We explained that Maryland law “does not confer upon the[ jury] untrammeled discretion to enact new law or to repeal or ignore clearly existing law as whim, fancy, compassion or malevolence should dictate, even within the limited confines of a single criminal case.” Id. at 479, 365 A.2d at 553 (cleaned up). Likewise, in Thomas