Sweeney v. State

Orth, J., delivered the opinion of the Court. This case presents the question we had before us in Young v. State, 5 Md. App. 383 : whether intercourse between the judge and the jury during the involuntary absence of the appellant constituted reversible error. We stated the applicable rule in Young at 390-391: “(1) it is reversible error for the court to charge or instruct the jury trying the case, on the facts, the law ⁴³³ or the form of the verdict at any time during the involuntary absence of the defendant, even though the charge or instruction is a repetition of a charge or instruction previously given in whole or in part, prejudice being conclusively presumed; and (2) it is reversible error for the court to communicate in any other manner with the jury trying the case, during the involuntary absence of the defendant unless the record affirmatively shows that such communication was not prejudicial or had no tendency to influence the verdict of the jury.” The basis of the rule, discussed in Young at 388-389 , is that the accused has the personal and absolute right to be present at every stage of his trial; the giving of instructions to the jury is a stage of the trial, Young at 387 . In the instant case the appellant was tried before a jury in the Circuit Court for Montgomery County charged with sodomy and assault and battery of a boy thirteen years of age.

The case went to the jury under pleas of not guilty and that he was insane at the time of the commission of the alleged crimes. See Md. Code, Art. 59 § 9(b). 1 After the close of all the evidence, the instructions by the court to the jury and argument of counsel, the jury withdrew for its deliberations. The transcript of the proceedings then reads: “THE COURT: I got this note from the jury. I got a note from the jury; they asked me the question, it is right here, and they said, after the jury is instructed, can the jury ask a judge a question?

I answered the note in writing, ‘Yes/ I sent it back to them and then this note was returned and here is the question: ‘Would a verdict of ⁴³⁴ not guilty by reason of insanity place the Defendant in a hospital for treatment ?’ That was not on here when it was returned. It says, ‘Can a recommendation be made when a verdict is returned by the jury?’ And I answered to them, ‘Not in this case.’ And then they sent back with this question: ‘Will a verdict of not guilty by reason of insanity place the Defendant in a hospital for treatment ?’ I could put down here, it is in the discretion of the Court. Now, what do you say to it?” The last question of the court was addressed to the Deputy State’s Attorney and defense counsel. There followed extensive argument by counsel, after which the jury came back into the courtroom and the court further instructed them.

In answer to the jury’s question, “Will a verdict of not guilty by reason of insanity place the defendant in a hospital for treatment,” the court said that it is in the discretion of the court, “subject to certain other contingencies.” It read the jury Art. 59, § 11 and explained it. The jury then withdrew for its further deliberations. The verdicts of the jury were “Sane at the time of the commission of the alleged crime” and “guilty on the first count of the Indictment (sodomy).” See Md. Code, Art. 59, § 9(b). A sentence of 10 years was imposed.

As we construe the remarks of the judge contained in the transcript of the proceedings, the jury first sent the judge a note inquiring if they could ask a question and he replied in writing that they could. They then sent him a note asking whether they could make a recommendation when they returned a verdict and the judge replied, “Not in this case.” The jury then sent the note asking whether the verdict of not guilty by reason of insanity placed the defendant in a hospital for treatment. It was at that time that counsel were consulted and the jury brought back and instructed in answer to that last question. The transcript does not disclose whether or not the appellant was present during any stage of any of this intercourse between the judge and the jury, including the time when the jury was given the additional in ⁴³⁵ structions in the courtroom.

It shows that counsel were present after the receipt by the judge of the last note and during the additional instructions but not whether they were present at the time of the receipt of the first two notes and the replies by the court. However, there is in the record before us an affidavit of the Deputy State’s Attorney that he was not present at the time of the receipt and answer of the first two notes from the jury and an affidavit from defense counsel that he was not present at the time of the receipt and answer of the first two notes nor was the appellant then present. We cannot ascertain if the appellant was present during the consideration and argument as to the third note. But defense counsel stated during oral argument before us that the appellant was present when the additional instructions in answer to the third note were given to the jury in open court.

As both the appellant and his counsel were present when the additional instructions were given to the jury in response to the third question, we are concerned only with the intercourse between the judge and the jury with respect to the first two questions. 2 We think it clear that the first question and answer were a mere “communication” and that they were not prejudicial to the appellant and had no tendency to influence the verdict of the jury. These communications do not require reversal even though the appellant was not present nor did the absence of his counsel deny him effective representation. The second question, received and answered by the judge in the involuntary absence of both the appellant and his counsel was, “Can a recommendation be made when a verdict is returned by the jury?” The court replied, “Not in this case.” Of course, we cannot speculate as to what recommendation the jury ⁴³⁶ had in mind. It may be, in light of the nature of the question which followed, that they were considering recommending that the appellant be placed in a hospital for treatment if they found he was insane at the time of the commission of the offense.

Or it may be that they were considering a recommendation of mercy. Nor can we speculate why the judge replied that no recommendation could be made “in this case.” It may be that he thought the jury had in mind the power of a jury to add to their verdict of guilty of certain offenses the words “without capital punishment” 3 which power is not prescribed with respect to the crimes for which the appellant was being tried. 4 In any event the reply of the judge did not correctly state the law. Md. Rule 758e provides: “A jury may attach to its verdict a recommendation to the court to show mercy to an accused. Such recommendation shall not be binding upon the court.” We think the incorrect statement of the law to the jury constituted reversible error on several grounds.

First, we think that the answer as given was an instruction as to the law within the purview of Rule 758e and as to the form of the verdict. As such, when it was communicated to the jury, it was a stage of the trial and the appellant had the absolute right to be present. LaGuardia v. State, 190 Md. 450 is readily distinguishable. At the time of that decision there was no express authority in Maryland for the jury to recommend mercy in any criminal case.

The holding that a recommendation of mercy had no direct relation to the verdict was predicated on this lack of express authority. “[I]n the absence of statute, the jury have no express authority to add a recommendation of mercy to a verdict of guilty.” It was for this reason the Court said that “* * * a recommendation of mercy is mere surplusage and does not affect the verdict * * 190 Md. at 460 . At the time of the trial in the instant case, as we have stated, there was express authority for the jury to attach to its verdict a recommendation to the court to show mercy. A communication by the judge to the jury pertaining thereto was thus both as to ⁴³⁷ the law of this State 5 and as to the form of the verdict. It was clearly an