Stewart v. State

CHARLES E. ORTH, Jr., Judge, Specially Assigned. I We have cautioned bench and bar on numerous occasions that the Maryland Rules of Procedure are not guides to the practice of law but precise rubrics “established to promote the orderly and efficient adminis ²¹⁶ tration of justice and [that they] are to be read and followed.” Isen v. Phoenix Assurance Co., 259 Md. 564, 570, 270 A.2d 476 (1970), quoting Brown v. Fraley, 222 Md. 480, 483, 161 A.2d 128 (1960). We reminded in Noble v. State, 293 Md. 549, 557, 446 A.2d 844 (1982) that [t]his Court has firmly adhered to the principle that the rules of procedure are precise rubrics to be strictly followed, and we shall continue to do so. We proclaimed: A violation of one of these rules constitutes error, normally requiring such curative action or sanction as may be appropriate.

Id. Maryland Rule 4-326(c) concerns communications with the jury. It commands: The court shall notify the defendant and the State’s Attorney of the receipt of any communication from the jury pertaining to the action before responding to the communication. All such communications between the court and the jury shall be on the record in open court or shall be in writing and filed in the action.

Maryland Rule 4-231(b) concerns the right of a defendant to be present in a criminal action. It declares, in relevant part: A defendant is entitled to be present at ... every stage of the trial.... Subsections (1), (2), and (3) list exceptions: (1) at a conference or argument on a question of law; (2) when a nolle prosequi or stet is entered ...; or (3) at a reduction of sentence---- Section (c) speaks to waiver of the right. It states: The right to be present under section (b) of this Rule is waived by a defendant: ²¹⁷ (1) who is voluntarily absent after the proceeding has commenced, whether or not informed by the court of the right to remain; or (2) who engages in conduct that justifies exclusion from the courtroom, or (3) who, personally or through counsel, agrees to or acquiesces in being absent.

II The judge of the Circuit Court for Baltimore County presiding at the jury trial of Nathaniel Antonio Stewart, who was charged with robbery with a deadly weapon and related offenses, violated both of these rules. His error in not abiding by them came about in this manner. The evidentiary phase of the trial had concluded and the jury retired to deliberate its verdicts. The jury had not returned when the court clerk informed the judge that “there was a problem” with one of the jurors.

The judge went to the jury room and was handed a note signed by Sandra Rubin, one of the jurors, that said I need to talk to you. According to the judge, he ‘Vas reluctant to talk with her at all.” But, he explained, [apparently she was upset and tearful so I asked her to come out of the jury room and she stood just out the jury room door and said that she [was] nervous and upset and afraid she was going to say something she shouldn’t say to one of the other jurors. The judge told her: Well, I don’t want to know why you feel you can’t say something to another juror. If there is disagreement you have to use your conscience about how you handle disagreements when you are discussing the case among yourselves. “From her comments and from her attitude it seemed apparent [to the-judge] there was a division of opinion among the jurors.” So the judge ²¹⁸ asked her to go back and continue deliberating and exercise her best judgment as to how her duty should be discharged.

She agreed to do that. The jury resumed its deliberations. When the jury had been out about four hours, the forelady sent a note to the judge asking, “Does a hung jury mean he goes free for this crime?” At this point, the judge realized that he had been remiss in his encounter with the juror. He told Stewart and counsel: There have been a couple matters that have occurred since we broke and the — the jury began deliberation I think we should discuss here on the record and in the presence of the defendant.

The judge recounted the circumstances of the matter involving Rubin as he recalled them, and explained how he had handled the situation. He informed the defendant and counsel of the forelady’s question and stated that he would have to answer it. Defense counsel said that she would prefer to address the Rubin matter first. She said that she would like the record to reflect that she was in the courtroom when, about a half hour before, Rubin asked to see the judge — “I was staying here most of the deliberation.” Defense counsel pointed out: I was standing in the courtroom when I heard someone yelling and crying.

I don’t mean to dispute with you, Your Honor, I think your description as “upset” and tearful— The judge interrupted, “Perhaps a little conservative.” Defense counsel continued: She came out and she was audibly sobbing and crying to the point where some of the Court personnel in other chambers came out to see. Clearly she asked to see you. You came. I, for the record, no question in speaking to the jury in that context, however, as soon as you finished I did approach you.

The judge agreed that she did. Defendant’s counsel explained: I asked to go on the record for a mistrial for the purposes that I believe that the personalities involved among the ²¹⁹ jurors had deteriorated to such a point that one juror is visibly upset, sobbing and crying. I do not wish — I think that there comes a point where the resolution of this matter is not possible when you have jurors this upset. I don’t know which way she is.

I don’t think any of us know which way the split is or anything like that, but because of the conduct of the jurors, because of her coming out of the room speaking to the Court, I would at this time ask for a mistrial based on manifest necessity. 1 The judge replied: I will hold [the motion for a mistrial] under advisement, consider the possibility of granting it depending on further development. 2 It was not long thereafter that the jury rendered its verdicts. Stewart was convicted of robbery with a deadly weapon, robbery, and the use of a handgun in the commission of a felony. The jury was polled; the verdicts stood. The State announced that it was seeking enhanced punishment in view of Stewart’s status as “a three time loser.” See Md.Code (1957, 1992 Repl.Vol.) Art. 27, § 643B(c).

Defense counsel requested a pre-sentence investigation; the judge granted the request. At this point, the judge ruled on defense counsel’s motion for a mistrial. He said without elaboration: ²²⁰ Incidentally, with respect to the defense motion for mistrial, I did reserve on that motion. I have thought about it further, I’m going to deny the motion for mistrial.

About three and a half months later the sentencing phase of the case was reached. In the meantime, Stewart had filed a motion for a new trial alleging numerous errors, one of which was, “The verdict resulted from misconduct of the jurors.” The motion was argued on the day of sentencing. Counsel for Stewart noted that the trial judge “had essentially a private conversation with” Rubin and that telling her to go back and rejoin the deliberations was tantamount to “coercing a verdict____” The motion for a new trial was denied. Sentences were duly imposed.

Stewart appealed from the judgments of conviction. The Court of Special Appeals affirmed the judgments in Stewart v. State, 97 Md.App. 770 . One of the questions Stewart presented to the intermediate appellate court was whether the trial court erred in denying his motion for a mistrial. The Court of Special Appeals noted that the reason advanced by Stewart’s trial counsel for the grant of a mistrial was “based on manifest necessity.” Id., slip opinion at 2.

Stewart’s counsel on appeal to the Court of Special Appeals, however, looked to Rule 4-326(c). But, the Court of Special Appeals observed: [Stewart] now complains that the court improperly communicated with the juror [, Rubin,] and that sending her back to deliberate was a coercive measure. The arguments [Stewart] presents to us, therefore, are somewhat different arguments than those he advanced before the trial court. Id.

Nevertheless the court asserted: We shall address the issue as if it had been properly preserved; [Stewart] still does not prevail. Whether to grant a mistrial is a decision vested in the sound discretion of the trial judge, who can best weigh the danger of prejudice arising from any alleged impropriety within the context of the entire case, and who is, therefore, in the best position to determine if a mistrial is warranted. See Hunt ²²¹ v. State, 321 Md. 387, 422 [, 583 A.2d 218 ] (1990), cert. denied [— U.S.-], 112 S.Ct. 117 , [ 116 L.Ed.2d 86 ] (1991). We will not reverse a trial court’s denial of a motion for mistrial unless the accused was so clearly prejudiced that the denial constituted an abuse of discretion.

Hunt, supra [321 Md.], at 422 [ 583 A.2d 218 ]. Id., at 2-3. The court continued: Since we are not persuaded that the court’s advice to the distraught juror to use her “conscience” and “best judgment” in coping with her fellow juror prejudiced the accused, we perceive neither error nor abuse of discretion in denying the motion for mistrial. Id.

We granted Stewart’s petition for a writ of certiorari. The only question presented to us by his petition was: Did the lower court err in denying petitioner’s Motion for Mistrial where the court communicated with and sent an emotionally distraught juror back into the jury room to continue deliberations without first communicating with counsel? III A Stewart had different counsel representing him at each stage of the case. As we have seen, trial counsel relied on “manifest necessity” as reason for a mistrial.

Counsel on direct appeal looked to Rule 4-326(c) (Communications With Jury). Counsel on our grant of certiorari adhered to Rule 4-326(c). Now we add Rule 4-231 (Presence of Defendant) to the pot. Rule 8-131(a) provides in relevant part: Ordinarily, the appellate court will not decide any ... issue [other than the issues of jurisdiction over the subject matter or over a person] unless it plainly appears by the record to have been raised in or decided by the trial court, but the Court may decide such an issue if necessary or desirable to ²²² guide the trial court or to avoid the expense and delay of another appeal.

The word “ordinarily” gives us discretion to consider issues not raised or decided below. See State v. Bell, 334 Md. 178, 113 , 638 A.2d 107 (1994); Crown Oil v. Glen, 320 Md. 546, 561 , 578 A.2d 1184 (1990); Taub v. State, 296 Md. 439, 441-442 , 463 A.2d 819 (1983), and cases therein cited. We exercise our discretion here to determine the propriety of the denial of the motion for a mistrial on the basis of Rules 4-326(c) and 4-231 even though those Rules were not relied on by — or argued before — the trial court. B As we have seen, Rule 4-326(c) concerns “the receipt of any communication from the jury pertaining to the action ____” The court is obliged to notify the defendant and the State’s Attorney of the receipt of such communication before responding to it. “All such communications between the court and jury shall be on the record in open court or shall be in writing and filed in the action” (emphasis added).

These prescriptions are mandatory, not directory, but the trial judge disregarded every command of the Rule. 3 The Court of Special Appeals explored Rule 4-326(c) in Allen v. State, 77 Md.App. 537 , 551 A.2d 156 , cert. denied, 315 Md. 692 , 556 A.2d 674 (1989). The intermediate appellate court held that the Rule ²²³ requires full communication of the contents of a jury communication so that both parties can have input into the response. Id. 77 Md.App. at 545 , 551 A.2d 156 . The court quoted from its Smith v. State, 66 Md.App. 603, 624 , 505 A.2d 564 , cert. denied, 306 Md. 371 , 509 A.2d 134 (1986) that “[wjhile the rule expressly requires notice to the parties of any communication from the jury, its very spirit is to provide an opportunity for input in designing an appropriate response to each question in order to assure fairness and avoid error.” Allen, 77 Md.App. at 545 , 551 A.2d 156 .

In Graham v. State, 325 Md. 398, 415 , 601 A.2d 131 (1992), we agreed with Allen that the spirit of the Rule is to provide relevant information to those most vitally concerned with the trial.... But we tempered the averment in Allen, 77 Md.App. at 545 , 551 A.2d 156 , that the Rule always required “full communication of the contents of a jury communication.... ” We noted that there may be occasions when at least a part of a communication from a jury may properly be withheld from the parties and/or from the public record. Graham, 325 Md. at 415 , 601 A.2d 131 (citation omitted). We pointed out that the Rule relates to communications “pertaining to the action,” and we suggested, for example, “that the failure to disclose the contents of a note from a jury requesting transmittal of a purely personal message to a member of the juror’s family or to a babysitter” would not constitute error.

Id. We recognized in Graham , moreover, that in certain circumstances, a violation of the Rule may not require reversal because the issue was not preserved for appeal or was harmless. Id. The communication between Rubin and the trial judge surely “pertained to the action;” it was during the course of a vital part of the trial.

A juror’s reluctance to continue to deliberate with the other jurors and separating from the other ²²⁴ jurors by leaving the jury room cannot be divorced from the action. There is no question that the ex parte meeting between the judge and the juror was an erroneous procedure. But that did not stand alone. Stewart was not present during this discourse between the juror and the judge.

He was in the lockup awaiting the return of the jury. He was not informed at that time of the communication from the juror and the judge’s response thereto. The prosecutor was not timely notified, nor was defense counsel. The communication between the judge and the juror was not on the record in open court or in writing and filed in the action contemporaneously with its occurrence.

It is clear that the failure of the trial judge to obey the commands of Rule 4-326(e) constituted error. Before us, the State conceded that there was at least a “technical violation” of the Rule. C We have explored in a number of cases a defendant’s entitlement to be present at every stage of his trial as guaranteed by Rule 4-231. See, for example, Noble v. State, 293 Md. at 557-558 , 446 A.2d 844 ; Williams v. State, 292 Md.