Taylor v. State

Carter, J., delivered the opinion of the Court. The appellant, Stanley Taylor, Jr., was convicted of wilfully and maliciously burning a storehouse by a jury in the Circuit Court for Somerset County and sentenced to twenty years in prison. He contends the judgment should be reversed because (1) his suggestion for removal was improperly denied, (2) the court refused to ask certain questions of prospective jurors on their voir dire examination, (3) he was denied an impartial jury because of a combination of the court’s refusal to remove the case and refusal to ask the jurors requested questions, and (4) the trial court improperly coerced the jury into reaching a verdict. Inasmuch as we shall reverse the judgment on the basis of the appellant’s fourth contention, we do not reach contentions one, 1 two, 2 3**and three. 3 ⁴⁴ The record shows that the jury retired to deliberate at 3:07 p.m. on the same day the trial had begun.

An hour and 5 minutes later they voluntarily returned to the courtroom. At that time the following colloquy took place between the judge, the jury, and the State’s Attorney: “THE COURT: Ladies and gentlemen, are you ready to return a verdict? “THE FOREMAN: Yes, we are. “THE COURT: You have agreed upon a verdict? “THE FOREMAN: No. It’s hung jury, sir. “THE COURT: Well, now, Mr. Foreman, you have been out for an hour and five minutes, I think. Now, ladies and gentlemen, do you mean that you won’t if I send you back longer, that you — I am not asking you how you voted or how you stand or anything of that sort, but, Mr. Foreman, don’t you think that you could reach a verdict? “THE FOREMAN: I am afraid not. “THE COURT: Mr. Shores [a juror], what is your opinion, sir? “MR. SHORES: Well, it’s 11 to 1 vote.

I don’t think 11 will agree with one. “THE COURT: Mrs. Murphey [a juror], what is your opinion? “MRS. MURPHEY: I don’t think it will be changed. “THE COURT: You do not? “MRS. MURPHEY: No. “MR. BARNES [a juror] : It’s up to the 1. “THE COURT: Mr. Barnes, I agree.

It’s up to the one to change. ⁴⁵ “MR. HORSEY [State’s Attorney]: Your Honor, may I interject a comment? Will you give the jury another opportunity to consider? “THE COURT: Yes. Go back and stay for twenty minutes.

If you come back again, I may send you back for twenty more minutes.” Following this exchange, the jury returned to their jury room. Twenty minutes later they returned to the courtroom with a general verdict of guilty. A. THIS COURT SHOULD CONSIDER THE JUDGE’S REMARKS The appellee asserts that the appellant’s fourth contention concerning the propriety of the trial judge’s remarks is not before this Court for review because no objection was made in the lower court. Md. Rule 756 g provides in substance that ordinarily no error in the court’s instructions not objected to below will be considered by the appellate courts, but the Court may, upon its own motion, take cognizance of and correct any plain error in the instructions even though the error was not objected to below.

Md. Rule 702 e defines “instructions” as used in Chapter 700 to include “any advisory instructions on the law and any summation of or reference to the evidence.” In applying this definition the Court of Appeals in Wolfe v. State, 218 Md. 449, 455 , considered the prejudicial remarks of a trial judge to an accused concerning his right to testify and a reference to the incriminating effect of the State’s evidence, made in the presence of the jury, as constituting an instruction within the scope of Md. Rule 756 g (formerly 739 g). In Fletcher v. State, 8 Md. App. 153,158-160 , we interpreted the rule to include an “Allen charge” 4 S.given by the trial ⁴⁶ judge to a jury, which had failed to agree, after a period of deliberation. Applying the rationales in Wolfe and Fletcher to the instant case, we hold that the remarks of the trial judge, after the jury had disagreed, were in the nature of instructions within the scope of Md. Rule 756 g. In Brown v. State, 14 Md. App. 415 (1972) this Court, speaking through Judge Powers gave a complete history of the interpretations of Md. Rule 756 g by the Court of Appeals and this Court. 5 At page 422 we said: “Therefore we think that as a general guide, we may say that under Rule 756 g we will take cognizance of and correct an irremediable error of commission, but not an error of omission.

Of course, the error must be plain, and material to the rights of the accused, and, even then, the exercise of our discretion to correct it should be limited to those cases in which correction is necessary to serve the ends of fundamental fairness and substantial justice.” Applying Brown to the circumstances of the instant case, we hold that the errors committed by the trial judge in his remarks (instructions) to the jury were “irremediable errors of commission,” since they were of such a nature that he could not have corrected them even if he had attempted to do so. We also hold that correction is “necessary to serve the ends of fundamental fairness and substantial justice.” Therefore, this Court should consider the remarks under Rule 756 g, even though they were not objected to below. ⁴⁷ B. THE REMARKS CONSTITUTED REVERSIBLE ERROR In speaking of the constitutional right of an accused to be fairly tried by an impartial jury, the Court of Appeals in Bristow v. State (1966), 242 Md. 283 said at page 289: “* * * Although the federal constitution does not demand the use of jury trials in state criminal proceedings, 6 where a jury is provided, [under Art. 21, Md. Declaration of Rights], federal due process requires that it be fair and impartial. Beck v. Washington [ 369 U. S. 541 ] ; Irvin v. Dowd [ 366 U. S. 717 ]; Darcy v. Handy [ 351 U. S. 454 ].” While the so-called “Allen charge” 7 was not given in the instant case, nevertheless the rationale whereby that instruction has been held coercive vel non is applicable to the issue of possible coercion of the jury in this case. In passing upon the issue of coercion in respect to the “Allen charge” this Court said in Plumley v. State, 4 Md. App. 671 at pages 682-683: «* * * jn Leupen [Leupen v. State, 248 Md. 19 ] the Court stated, at p. 25, that it would be well for the lower court in any case to keep in mind the language found in 1 Branson’s Instructions ⁴⁸ to Juries (3rd Ed. A. Reid 1960 Replacement) and it quoted: ‘The trial judge may advise an unagreed jury of the importance of their reaching a verdict, if they can do so without surrendering their conscientious convictions.

But he cannot go beyond that and say anything to the prejudice of either party. There is no prescribed language that he must use in this connection. What he may with propriety say must in a large measure be left to his good judgment. But as the exclusive right to agree or not to agree rests with the jury, the judge must not by threat or entreaty attempt to coerce a verdict or exert his authority to force an agreement; He He ” The remarks of the court when one of the jurors commented, “[ijt’s up to the 1” after the judge had been informed that the jury was divided eleven to one was patently coercive upon the minority juror.

At that time the judge said, “* * * I agree. It’s up to the one to change.” It is a well known fact that jurors are usually responsive to any suggestion made'by the presiding judge regarding their conduct as a member of the panel. When the trial judge, in the course of urging the jury