Stokes v. State

RAKER, Judge. This criminal case presents issues relating to a defendant’s right to a trial by a jury of twelve jurors and the treatment of alternate jurors in a case in which the defendant has entered a plea of not criminally responsible and requests a bifurcated trial. In the guilt/innocence stage of the trial, the Circuit Court for Baltimore City retained the four alternate jurors and permitted them to participate in the juror deliberations. Appellant’s argument is that the trial court committed revers ⁶²² ible error by permitting sixteen jurors to enter the jury room and deliberate on the guilt/innocence phase of his trial.

We agree with appellant that it was reversible error to permit the four alternate jurors to be present in the jury room during deliberations and shall reverse the convictions and order a new trial. I. Dontee Stokes, appellant, was indicted by the Grand Jury for Baltimore City with the offenses of attempted first degree murder; assault; reckless endangerment; use of a handgun in a crime of violence; wearing, carrying, or transporting a handgun; carrying or knowingly transporting a handgun in a vehicle; and discharging a firearm within city limits. He entered a plea of not guilty and not criminally responsible pursuant to Maryland Rule 4-242(a). The State alleged that appellant shot and wounded Maurice Blackwell, appellant’s priest when appellant was a young boy.

In his statement to the police, appellant admitted shooting Blackwell. At trial, appellant maintained that from the time he was thirteen years old until he was seventeen years old, Blackwell had repeatedly sexually abused him and that as a result, in addition to lacking criminal responsibility, appellant lacked the ability to form specific intent at the time of the shooting. The trial commenced before a jury in the Circuit Court for Baltimore City on December 10, 2002. Pursuant to Maryland Rule of Procedure 4-314, 1 appellant elected to proceed to trial in a bifurcated proceeding, and in accordance with the Rule, the court commenced with the guilt/innocence phase.

In his opening statement to the jury, defense counsel stated that “we will plead guilty on possession of the handgun and we’ll take whatever wrath the judge imposes on us.” As to the remain ⁶²³ ing charges, counsel asked the jury to find appellant not guilty. At the conclusion of all the evidence in the guilt/innocence phase of the trial, and following jury instructions and closing arguments, the court instructed the jurors as follows: “Madam Forelady, ladies and gentlemen, under the Rule 4-314 that creates a bifurcated trial, at the present time, you are all jurors. You are not both jurors and alternates, even though we so designated you. Now, when you have a verdict, Madam Forelady, make sure it is unanimous.

Make sure that all sixteen of you agree with the verdict. Mark on the verdict sheet not guilty or guilty as to each of the nine counts. Be careful that everybody is unanimously on board, because once the verdict is announced, either side can ask for a poll. In the poll, the clerk will ask jurors two through sixteen, you’ve heard the verdict of your Forelady, is that your verdict?

If anybody says no or maybe, then you have to continue deliberations. It is only when all sixteen of you are prepared to publicly defend the same verdict do we have a judgment sufficient to end this phase of the case and begin the next phase of the case, whatever that next phase is.” Appellant’s counsel objected to the alternate jurors being permitted to deliberate. The trial court overruled the objection, responding that, according to Rule 4-314, a bifurcated trial is a single continuous trial, in two stages, and the Rule requires that the alternate jurors must be retained throughout the trial. The sixteen person jury deliberated for about one half-hour that day.

Following a weekend recess, the jury continued deliberating. After about two hours of deliberations, the jury sent a note to the court with the question, “Do alternates count?” The jury note regarding the role of alternate jurors, for the first time, sparked a discussion between the court and counsel of the role of alternate jurors in a bifurcated case under Rule ⁶²⁴ 4-314. Focusing on the language of the Rule that “The court shall appoint at least four (sic) alternate jurors, who shall be retained throughout the trial,” the court noted as follows: “So, in what I believe to be a case of first impression in Maryland, because there is no annotation in the rule since the rule was passed in July 1989, that means that alternates deliberate on the criminal agency phase, and then are dismissed when it’s time to deliberate for the not criminally responsible phase. Because (b)(5) says, ‘Trial issue of criminal responsibility, (A), except as otherwise provided in paragraph (B) or (C) of the subsection, the issue of criminal responsibility shall be tried before the same jury that tried the issue of guilt.

Any juror who dies, becomes incapacitated, disqualified or is otherwise discharged before the jury begins to deliberate in the criminal responsibility phase shall be replaced by an alternate juror in the order of selection.’ So, if they’re there in the jury room while the deliberations are going on what do they do other than deliberate.” The court considered two choices: Should the alternate jurors stay in the jury room as non-participants so that they are aware of the deliberations in case they are needed as jurors in the insanity phase, or do they function and participate as jurors in the guilt/innocence phase? After an extended discussion, the court decided to instruct the jury that the alternates were to be mere observers. The court responded to the jury inquiry as to whether alternate jurors vote as follows: “[WJe’ve decided after lengthy research and argument to do the following, to have the twelve jurors deliberate, and to have the four alternates in the jury room as observers so that they’ll know what went on for the next phase of the case, where they might actually become jurors if someone can’t complete it. So the best that we can tell from what the discussion before the Rules Committee was and from the wording of the Rule, is that alternates are not to be discharged because they’re needed for the next phase if there’s going to be a next phase.

But by the same token, it might be safer not to have the alternates deliberate or vote. ⁶²⁵ So Mister and Madams Alternate, I know that kind of puts a burden on you to kind of sit there and wait to find out whether you get to play a role or not, but it’s better for you to be in there knowing what’s going on, than out and not knowing what’s going on. So we’re going to ask you to perform that function. So with that — it has to be a unanimous decision of the twelve of you, and when we poll the jury it’ll be the poll of the twelve of you. The alternates are basically just in a holding pattern as observers so that they know what went on in case one or more of them becomes a juror if we reach the next phase.

So with that you may now retire to resume your deliberations with those guidelines. Thank you.” Defense counsel reiterated his objection to the presence of alternates in the jury room. The jury returned a verdict of not guilty of attempted murder, assault, reckless endangerment, and use of a handgun in a crime of violence. The jury convicted appellant of three counts: wearing, carrying or transporting a handgun; wearing, carrying or transporting a handgun in a vehicle; and discharging a firearm within the city limits.

The next day, appellant withdrew his plea of not criminally responsible in return for an agreement with the State that the State would recommend a sentence of three years incarceration, with all but eighteen months suspended, three years probation, and full credit against the sentence based on the time appellant spent in home detention pretrial. The court imposed a sentence in accord with the State’s recommendation. Appellant noted a timely appeal to the Court of Special Appeals. Prior to consideration by that court, this Court issued a writ of certiorari to consider the issues presented in Stokes’ appeal. 376 Md. 543 , 831 A.2d 3 (2003).

II

The right to a trial by jury, of twelve persons, has been part of the common law for centuries, along with the require ⁶²⁶ ment of unanimity. The right to trial by jury is guaranteed by the Maryland Declaration of Rights and the Maryland Rules, as well as the United States Constitution. See Kawamura v. State, 299 Md. 276 , 473 A.2d 438 (1984). Article 5 of the Maryland Declaration of Rights provides, in pertinent part, “That the Inhabitants of Maryland are entitled to ... trial by Jury----” Article 21 of the Declaration of Rights provides, in pertinent 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.” Article 23 of the Declaration of Rights provides, in pertinent part, “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.” Article 24 of the Declaration of Rights provides, “That no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges ... or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land.” The reference to “jury” in our organic laws, refers to a jury as constituted under the common law, unless the contrary plainly appears.

See State v. Kenney, 327 Md. 354, 361 , 609 A.2d 337, 340 (1992); State v. Ledger, 175 Wis.2d 116 , 499 N.W.2d 198, 202 (Ct.App.1993) (citing State v. Gollmar, 32 Wis.2d 406 , 145 N.W.2d 670, 671-72 (1966)). Cf. Bryan v. State Roads Comm’n, 356 Md. 4, 14 , 736 A.2d 1057, 1061 (1999) (holding that the 1992 amendment to Article 5 of the Maryland Declaration of Rights permits a six person jury in all cases except criminal cases); Thompson v. State, 278 Md. 41, 53 , 359 A.2d 203, 210 (1976) (noting that common law right to a jury trial exists absent a rule or statute taking the right away where it would be constitutionally permissible to do so). Although a jury was comprised of twelve persons under the common law, the United States Supreme Court has made it clear that the Sixth and Fourteenth Amendments to the United States Constitution do not require a jury of twelve persons, although the constitutional right to a jury trial guarantees the right to have at least six jurors.

See Ballew v. ⁶²⁷ Georgia, 435 U.S. 223 , 98 S.Ct. 1029 , 55 L.Ed.2d 234 (1978). Judge McAuliffe, writing for this Court in State v. Gorwell, 339 Md. 203 , 661 A.2d 718 (1995), observed as follows: “Although at one time in the jurisprudential history of this country it was widely believed that the constitutional right to a jury trial guaranteed by the Sixth and Fourteenth Amendments included the right to insist upon a jury of twelve persons, the Supreme Court has declared that not to be the case. In Williams v. Florida, 399 U.S. 78, 86, 90 , 90 S.Ct. 1893, 1898, 1900 , 26 L.Ed.2d 446 (1970), the Court opined that the fixing of the number of jurors at twelve ‘appears to have been a historical accident,’ and that this feature of the jury had not been immutably codified into the Constitution. The Court was careful to point out, however, that the States were at liberty to require twelve person juries. ‘We do not mean to intimate that legislatures can never have good reasons for concluding that the 12-man jury is preferable to the smaller jury, or that such conclusions— reflected in the provisions of most States and in our federal system — are in any sense unwise.

Legislatures may well have their own views about the relative value of the larger and smaller juries, and may conclude that, wholly apart from the jury’s primary function, it is desirable to spread the collective responsibility for the determination of guilt among the larger group. In capital cases, for example, it appears that no State provides for less than 12 jurors — a fact that suggests implicit recognition of the value of the larger body as a means of legitimating society’s decision to impose the death penalty. Our holding does no more than leave these considerations to the Congress and the States, unrestrained by an interpretation of the Sixth Amendment that would forever dictate the precise number that can constitute a jury.’ Id. at 103 , 90 S.Ct. at 1907 .” ⁶²⁸ Maryland Rules require a jury of twelve in criminal cases unless a lesser number is agreeable to both the State and the defendant. Maryland Rule 4-311 provides, unequivocally, that a jury shall consist of twelve persons unless the parties stipulate, in writing or on the record, that the jury shall consist of any number less than twelve.

See State v. Kenney, 327 Md. 354 , 609 A.2d 337 (1992). Rule 4-312 addresses jury selection as well as alternate jurors generally. Rule 4-314 addresses the procedure to be followed when the defendant interposes the defense of not criminally responsible by reason of insanity and also addresses alternate jurors. Rule 4-312(b)(3) provides that an alternate juror shall replace a juror who is unable to perform a juror’s duty before the time the jury retires to consider its verdict.

The Rule also provides that “[a]n alternate juror who does not replace a juror shall be discharged when the jury retires to consider its verdict.” Rule 4-312(b)(3). Maryland Code (2002, 2003 Cum.Supp.) § 2-303 of the Criminal Law Article 2 addresses the sentencing procedure in capital cases. Section 2-303(d) addresses jury composition and alternate jurors. ⁶²⁷ Id. at 212-13, 661 A.2d at 723 (footnote omitted). While trial by a jury of twelve is not mandated by the United States Constitution, the Maryland Constitution and the ⁶²⁸ When a defendant has entered pleas of not guilty and not criminally responsible, the procedure as to alternate jurors is more tricky.

A bifurcated trial is a single continuous trial in two stages. Rule 4-314(b)(l). The court must appoint at least two alternates, who shall be retained throughout the trial. Rule 4-314(b)(4).

Rule 4-314(b)(2) sets out the sequence of the trial: the issue of guilt shall be tried first, followed by the issue of criminal responsibility, to be tried as soon as practicable after the jury returns a verdict of guilt on any charge. The trial judge aptly noted that this case presents an issue of first impression and an interpretation of Rule 4-314 as it relates to the use of alternate jurors in a bifurcated criminal responsibility case. The Rule is silent as to how the alternate jurors are to be treated in the two phases of the ⁶²⁹ trial. 3 We hold that the trial court erred in sending the alternate jurors into the jury room to deliberate on the guilt/innocence phase of the trial. 4 A criminal defendant’s constitutional right to a jury trial under the Maryland Constitution means a trial by twelve people, unless the defendant stipulates in writing, or on the record, to a jury of less than twelve people. See Rule 4-311(b). 5 ⁶³⁰ The trial court went down the wrong path when it concluded that the word “retained” in Rule 4 — 314(b)(4) meant that alternate jurors must go into the jury room and deliberate along with the jury during the guilt/innocence phase. 6 The trial court realized that it had erred in permitting the alternates to deliberate and attempted to cure the error by permitting them to remain in the jury room but not to participate in the deliberations.

Once the additional jurors entered the jury room with the jurors to consider the verdict, and the deliberations commenced, the error could not be cured. As we have indicated, the presence of the alternate jurors during the jury deliberations is, without any doubt, a deviation from Rule 4-312(b)(3). Appellant objected to the alternates’ participation. The deliberations of the regular jurors are of no concern to the alternates; if, after deliberations have commenced, a regular juror becomes unable to complete the deliberations, under Maryland law, unlike the procedure in some other states, an alternate juror may not be substituted.

There can ⁶³¹ be no doubt that, despite his good intentions and attempt to cure the error, the judge erred by allowing the alternates to attend any part of the jury deliberations. 7 The trial court clearly erred.

III

The remaining question is whether there should be any remedy, and, if so, what the remedy should be, in light of the values sought to be protected by Rule 4-311 and the judge’s instructions to the jury — first, instructing them to fully participate in the deliberations and then, instructing them not to participate but simply to observe the deliberations. The State’s principal argument is that appellant’s convictions on the handgun counts should not be reversed because he was not prejudiced by the presence of the alternate jurors ⁶³² in the jury room. The State maintains that a presumption of prejudice standard is inapplicable and that the trial court’s error was harmless. Alternatively, the State argues that even if a presumption of prejudice applies, the presumption has been rebutted.

The State’s argument relies on appellant’s counsel’s remark in opening statement to the jury that Stokes “will plead guilty on possession of the handgun” and that Stokes testified under oath at the trial that he committed acts constituting those crimes. In other words, the States argues that, assuming the trial court error, and assuming that a presumption of prejudice is applicable to such error, the presumption was rebutted and the convictions should be affirmed. Appellant argues that the trial court’s error violated the Maryland Rules and his right to a trial by jury as guaranteed by the Maryland Declaration of Rights and the United States Constitution. He maintains that the presence and input of alternates in the jury room violated the principle that jury deliberations are to be impartial, private, and secret.

He asserts that the trial court’s error in permitting the jurors first to deliberate with the regular jury, and then to act merely as observers, creates a presumption of prejudice, which in this case cannot be rebutted and thus a new trial is required. Distinguishing the Supreme Court case of United States v. Olano, 507 U.S. 725 , 113 S.Ct. 1770 , 123 L.Ed.2d 508 (1993), 8 and relying primarily on Jenkins v. State, 375 Md. 284 , 825 A.2d 1008 (2003) and Hayes v. State, 355 Md. 615 , 735 A.2d 1109 (1999), appellant argues that “the alternate jurors were no different than third parties who invaded the privacy, impartiality and secrecy of the jury ... exposing] the jury to ⁶³³ impermissible outside influences, which is inherently prejudicial to Appellant.” We have not had the occasion to determine the effect of a violation of Rule 4-311(b) and whether the presence of alternate jurors in the jury room after deliberations have begun constitutes presumptive prejudice or if it constitutes fundamental error. See Annot., Presence of Alternate Juror in Jury Room, as Ground for Reversal of State Criminal Conviction, 15 A.L.R.4th 1127 (1982, 2003 Supp.). Our jurisprudence related to the right to a jury trial has zealously guarded against intrusions into the jury room and jury deliberations.

The Maryland Rules, implementing the right to a jury trial, clearly distinguish between alternate jurors and regular jurors and no rule or statute permits more than twelve into the jury room during deliberations. An alternate juror has been likened to a stranger to the proceedings. See Commonwealth v. Smith, 403 Mass. 489 , 531 N.E.2d 556, 559 (1988); State v. Menuey, 239 Neb. 513 , 476 N.W.2d 846, 851 (1991). Alternate jurors, in the literal sense, are not “strangers” to the proceedings.

They are not strangers in the sense that they are selected in the same manner as regular jurors, subjected to the same voir dire and tests of impartiality, and hear the same evidence, jury instructions, and closing arguments. See Rule 4-312(b) (stating that “alternate juror shall be drawn in the same manner, have the same qualifications, be subject to the same examination, take the same oath, and have the same functions, powers, facilities, and privileges as a juror)”; State v. Lightner, 205 W.Va. 657 , 520 S.E.2d 654, 660 (1999). They clearly are different than regular jurors, however, and in a sense, their status is that of a third party. “ ‘[Alternate jurors,’ as long as they remain alternates, really are not jurors.” Smith, 531 N.E.2d at 559 . The United States Court of Appeals for the Tenth Circuit addressed the status of an alternate juror, and in holding that an accused’s right to an impartial jury had been violated, stated as follows: ⁶³⁴ “Once these proceedings [have] commenced, ‘the jury' consisted only of the prescribed number of jurors.

The alternate then became as any other stranger to the proceedings regardless of whether she had been discharged.... Once the prescribed number of jurors becomes ‘the jury,’ then, and immediately, any other persons are strangers to its proceedings. Their presence destroys the sanctity of the jury....” United States v. Beasley, 464 F.2d 468, 469 (10th Cir.1972). In addition to breaching the sanctity and privacy of the jury deliberations, the participation of an alternate is disapproved for another reason — the lack of accountability.

An alternate juror, as an unauthorized individual, is not committed to the decision and is- not faced with the ultimate and weighty responsibility to decide the case. See State v. Cuzick, 85 Wash.2d 146 , 530 P.2d 288, 289-90 (1975). The notion of juror accountability has been expressed as follows: “A fundamental underpinning of our jury system, both in the criminal and civil contexts, is that accountability should exist with each of the decision-makers. By participating, the alternate was able to influence the other jury members, the actual decision-makers, while remaining unrestrained by any actual responsibility regarding the outcome of the case.

Without this type of accountability, faith that the alternate made a conscientious decision while participating in either criminal or civil deliberations would be significantly undermined.” Jones v. Sisters of Providence in Washington, Inc., 140 Wash.2d 112 , 994 P.2d 838, 842 (2000). Although almost every court that has considered the issue of the presence of an alternate juror during deliberations has found it to be error, courts are not uniform as to the remedy, and whether prejudice is presumed, whether the error is per se reversible or whether harmless error concepts apply. See Annot., Presence of Alternate Juror in Jury Room as Ground for Reversal of State Criminal Conviction, supra. Some courts have chosen a presumption of prejudice approach, see, ⁶³⁵ e.g., United States v. Watson, 669 F.2d 1374, 1392 (11th Cir.1982); People v. Boulies, 690 P.2d 1253, 1255-56 (Colo.1984); Johnson v. State, 235 Ga. 486 , 220 S.E.2d 448, 454 (1975); State v. Crandall, 452 N.W.2d 708, 711 (Minn.Ct.App.1990); State v. Scrivner, 676 S.W.2d 12, 14 (Mo.Ct.App.1984); State v. Coulter, 98 N.M. 768 , 652 P.2d 1219, 1221 (Ct.App.1982); Yancey v. State, 640 P.2d 970, 971 (Okla.Crim.App. 1982); Cuziclc, 530 P.2d at 290 ; other courts have chosen an automatic reversal requirement, see, e.g., United States v. Beasley, 464 F.2d 468, 470 (10th Cir.1972); Bouey v. State, 762 So.2d 537, 540 (Fla.Dist.Ct.App.2000); Commonwealth v. Smith, 403 Mass. 489 , 531