Thompson v. State

BATTAGLIA, Judge. Having been convicted of possession of marijuana, possession with intent to distribute marijuana, and possession of controlled paraphernalia, Terry Hugh Thompson (“Thompson”) asks us to consider whether the trial judge erred when he permitted a mid-trial amendment to the indictment altering statutory references in the body and at the end of the count charging Thompson with possession of controlled paraphernalia. Thompson also alleges that the trial judge erred by adding inappropriate language in the jury instruction regarding the “duty to deliberate.” We conclude that, because the amendment to the indictment was not a “change in the character of the offense charged,” no prejudice befell Thompson. We also find that the language used by the trial judge, instead of the “duty to deliberate” instruction, was erroneous and prejudicial to Thompson; therefore, we reverse the Court of Special Appeals and remand for a new trial.

I. Background On April 27, 2000, Detective Joseph New and other officers of the Montgomery County Police Department executed a search warrant for 2101 Forest Glen Road, Silver Spring, Maryland. During the search, the officers recovered a black bag containing numerous glassine baggies and a digital scale on the night stand of Thompson’s bedroom. In addition, three bags of marijuana, 1 cash totaling $190.00, a pack of rolling papers, a box of Philly Blunt cigars, sandwich bags, and a pipe 2 were also recovered in the same room. Thompson was arrested and interviewed after receiving his Miranda warnings.

During that interview, Thompson admit ⁴⁷⁷ ted that the marijuana belonged to him for his own personal use, although he sometimes sold some to his friends. Thompson was indicted on charges of possession with intent to distribute a controlled dangerous substance in violation of Maryland Code Art. 27, Section 286(a)(1) (1957, 1996 Repl. Vol.), possession of controlled paraphernalia in violation of Maryland Code Art. 27, Section 287A (1957, 1996 Repl.Vol.), and possession of a controlled dangerous substance in violation of Maryland Code Art. 27, Section 287(a) (1957, 1996 Repl. Vol.).

The Second Count, possession of controlled paraphernalia, contained the following language: The Grand Jurors of the State of Maryland, for the body of Montgomery County, upon their oaths and affirmations, present that TERRY HUGH THOMPSON, on or about April 27, 2000, in Montgomery County, Maryland unlawfully did possess controlled paraphernalia in sufficient quantity to and under circumstances which reasonably indicate an intention to use such items for the illegal distribution and dispensing of a controlled dangerous substance, to wit: a digital scale, glassine baggies, Philly blunt cigars, rolling papers, and a wooden pipe, in violation of Article 27, Section 287A of the Annotated Code of Maryland, contrary to the form of the Act of Assembly in such case made and provided, and against the peace, government and dignity of the State. (Possession of Controlled Paraphernalia, Article 27, Section 287A) Thompson’s trial in the Circuit Court for Montgomery County began on December 5, 2000. On the final day of trial, the State moved to amend the Second Count by striking the statutory references to Maryland Code, Art. 27, Section 287A and adding, in their stead, references to Article 27, Section 287(d)(2). In unsuccessfully objecting to this amendment, Thompson iterated that it would alter the punishment he could face from a fíne to a potential of a one-year incarceration for this count. ⁴⁷⁸ At the close of arguments, the trial judge indicated he was going to instruct the jury with what he called the “attitude of jurors” instruction.

Thompson objected to the court’s proposed instruction and indicated his preference for the “duty to deliberate” Maryland Criminal Pattern Jury Instruction, (MPJI-Cr) 2:01. 3 Thompson’s attorney excepted to the instruction, and Thompson was convicted on all three counts. The Court of Special Appeals, in an unreported- opinion, affirmed the lower court’s decision regarding both issues. The court held that the amendment of the statutory reference to the indictment was only a change of form, not substance, and that the jury instruction given, as a whole, was not coercive and did not encourage any jurors to relinquish their beliefs solely to reach a verdict. Thompson filed a Petition for Writ of Certiorari, which we granted, Thompson v. State, 368 Md. 526 , 796 A.2d 695 (2002), to address two separate issues: A. Did the trial court err in failing to give the Maryland Criminal Pattern Jury Instruction regarding the jury’s duty to deliberate, and giving its own modified version of the instruction instead?

B. Does an amendment to a charging document, which changes the statute under which a defendant has been charged from Article 27, Section 287A to Article 27, Section 287(d)(2), thereby increasing the maximum penalty the defendant may face, constitute a “change in the character of the offense charged”?

II

Discussion A. Jury Instruction. The first issue posed by our grant of certiorari is whether the trial judge erred in instructing the jury with what he called the “attitude of jurors” instruction rather than the ⁴⁷⁹ “duty to deliberate” Maryland Pattern Jury Instruction 2:01. We answer that question in the affirmative. Rule 4-325 of the Maryland Rules defines the timing of jury instructions and the content of those instructions.

The Rule states that, “[t]he court may, and at the request of any party shall, instruct the jury as to the applicable law and the extent to which the instructions are binding.” Maryland Rule 4-825(c) (2000). As we have often stated, the purpose of instructing a jury is “to aid the jury in clearly understanding the case, to provide guidance for the jury’s deliberations, and to help the jury arrive at a correct verdict.” Chambers v. State, 337 Md. 44, 48 , 650 A.2d 727, 729 (1994); General v. State, 367 Md. 475, 485 , 789 A.2d 102, 108 (2002). An important aspect of this guidance is providing a description of the process by which the jury is supposed to deliberate. See, Kelly v. State, 270 Md. 139, 142 , 310 A.2d 538, 540-41 (1973).

In the present case, the trial judge instructed the jury on the process of deliberation as follows: The attitude and conduct of jurors at the outset of their deliberations are matters of considerable importance. It is rarely productive or good for a juror upon entering the jury room to make an emphatic expression of his or her opinion on the case or to announce a determination to stand for a certain verdict. Your verdict should only be arrived at after careful and thoughtful deliberation. And it may be helpful to listen to consult with each other and to discuss the evidence and the deductions to be drawn therefrom freely and fairly in a sincere effort to arrive at a just verdict.

This, however, does not mean that any juror is required to yield an honest conviction after such consultation or deliberation. Remember that you are not partisans or advocates but rather jurors. The final test of the quality of your service will lie in the verdict which you return to the Court, not in the opinions any of you may hold as you retire. Have in mind that you will make a definite contribution to efficient judicial administration if you arrive at a just and ⁴⁸⁰ proper verdict in this case.

To this end, the Court reminds you that in your deliberations in the jury room there can be no triumph except in the ascertainment and declaration of the truth. Your verdict must represent the considered judgment of each juror and must be unanimous. In other words, all 12 of you must agree. Thompson asserts that the process of deliberation should have been described as that given in the Maryland Criminal Pattern Jury Instruction (MPJI-Cr) 2:01 as he requested during trial.

MPJI-Cr 2:01, entitled “Jury’s Duty to Deliberate,” is as follows: The verdict must be the considered judgment of each of you. In order to reach a verdict, all of you must agree. Your verdict must be unanimous. You must consult with one another and deliberate with a view to reaching an agreement, if you can do so without violence to your individual judgment.

Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. During deliberations, do not hesitate to reexamine 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 opinions of your fellow jurors for the mere purpose of reaching a verdict. Maryland Criminal Pattern Jury Instruction (MPJI-Cr) 2:01.

We first addressed the appropriate language to be used in a criminal case to instruct a jury on its duty to deliberate prior to its adjournment to consider the fate of a defendant in Kelly, 270 Md. at 140 , 310 A.2d at 539-40 . In that case, we were asked to reverse a conviction for manslaughter and remand for a new trial because the following language was used by the trial court in the instruction given to the jury before it retired: May I say to you when you retire to consider this case it may well be that there will be a difference of opinion between you. If that is so, that is not something to be ⁴⁸¹ concerned about because obviously when there are three days of testimony it’s not unlikely that there may be some difference. What I ask you to do is for each of you to consult with each other, to consider the testimony as it has been given.

In those instances where you cannot conscientiously agree with the majority, then you should maintain your own position. On the other hand you should not out of stubbornness refuse to alter your position, whether it is for innocence or guilt merely because you are not willing to listen to the arguments of the other jurors. There must be some give and take between you. There must be some understanding between you and it is up to you to determine for yourselves whether or not you can conscientiously agree as to what the verdict should be in this case.

It makes no difference whether you originally start out in the minority or majority. In every case you are the final arbiters of your own conscience and you must decide whether or not you can agree to reach a verdict in this case. Id. at 144-45 , 310 A.2d at 542 . In affirming the conviction, we announced our adoption of the American Bar Association Criminal Justice Standards, Standard 5.4, Standards Relating to Trial by Jury, Approved Draft, 1968, American Bar Association, 1968 (“ABA Standards ”) as the criteria to be used in measuring the appropriateness of “duty to deliberate” jury instructions.

The text of the ABA Standards was: 4 Length of deliberations; deadlocked jury. (a) Before the jury retires for deliberation, the court may give an instruction which informs the jury: (i) that in order to return a verdict, each juror must agree thereto; (ii) that jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be ⁴⁸² done without violence to individual judgment; (iii) that each juror must decide the case for himself, but only after an impartial consideration of the evidence with his fellow jurors; (iv) that in the course of deliberations, a juror should not hesitate to reexamine his own views and change his opinion if convinced it is erroneous; and (v) that no juror should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of his fellow jurors, or for the mere purpose of returning a verdict. (b) If it appears to the court that the jury has been unable to agree, the court may require the jury to continue their deliberations and may give or repeat an instruction as provided in subsection (a). The court shall not require or threaten to require the jury to deliberate for ah unreasonable length of time or for unreasonable intervals.

(c) The jury may be discharged without having agreed upon a verdict if it appears that there is no reasonable probability of agreement. Standard 5.4, Standards Relating to Trial by Jury, Approved Draft, 1968, American Bar Association, 1968. In Kelly , we determined that the jury instructions given by the trial court comported with these ABA Standards and held, therefore, that a reversal of the underlying conviction was not warranted. Kelly, 270 Md. at 140-45 , 310 A.2d at 540-42 .

The guidance we provided in Kelly , however, went beyond our examination of the specific jury instructions utilized in the underlying case. In addition to adopting the ABA Standards, we also gave approval to a specific instruction that, we held, was always proper to use before a jury begins to deliberate. That instruction states: The verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree thereto.

Your verdict must be unanimous. It is your duty, as jurors, to consult with one another and to deliberate with a view to reaching an agreement, if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but do so only after an ⁴⁸³ impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if convinced it is erroneous.

But do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict. You are not partisans. You are judges — judges of the facts, fin criminal cases substitute the following: Since this is a criminal case, you are judges — judges of both the law and the facts.] Your sole interest is to ascertain the truth from the evidence in the case. Id. at 143-44 , 310 A.2d at 541 (quoting Instruction 8.11 of Jury Instructions and Forms for Federal Criminal Cases, 27 F.R.D. 39 , 97-98 (D.C.1961)).

We referred to this instruction as an “Allen-type” 5 instruction because of its modified language and recognized that judges may “personalize” jury instructions, especially prior to the beginning of deliberations as long as they “reasonably adheref] to the [ABA] Standards.” Id. at 144, 310 A.2d at 542 . In Burnette v. State, 280 Md. 88 , 371 A.2d 663 (1977), we were asked to consider whether an Allen charge should be given when the jury is deadlocked. In response, we disavowed its use because we determined that the language was coercive and, as such, an impermissible interference with the province of the jury. Id. at 100 , 371 A.2d. at 669 .

Subsequently, in Goodmuth v. State, 302 Md. 613 , 490 A.2d 682 (1985), we noted that the guidance given in Burnette was applicable to pre-deliberation instructions as well as to those given to deadlocked juries. Id. at 622, 490 A.2d at 686 . ⁴⁸⁴ In Burnette we objected to language suggesting that the minority members of a jury should be deferential to the views of the majority. Burnette, 280 Md. at 100 , 371 A.2d at 669 . Specifically, we considered whether the following language offended the ABA Standards: “[i]f your views are contrary to those of the vast majority you should consider whether your views, which make no impression on the minds of so many equally intelligent jurors, are correct.” Id.

We also voiced concern over language used in Burnette in which one part of a sentence instructed jurors to reach a verdict based on their own convictions, while the next part of the same sentence told jurors to give “proper regard and deference to the opinions of others.” Id. at 100 , 371 A.2d. at 669 . The instruction, according to our analysis, gave only “passing attention to the important principle that honest judgment, and not mere acquiescence, should be at [the] basis of a juror’s decision”. Id. We stated also that “the instruction might tend to unduly strengthen the majority’s convictions, perhaps making the majority less willing to seriously engage in further deliberations.” Id.

As such, we found that the instruction in Burnette was essentially a traditional Allen charge; it was not a personalized version of our recommended instruction nor did it “closely adhere” to the ABA Standards. Id. at 99-100, 371 A.2d at 668 . We emphasized that, “deviations in substance will not meet with our approval.” Id. at 101 , 371 A.2d at 669 . In Goodmuth , we explored whether traditional Allen language could be appropriately used to instruct a jury prior to deliberation. 302 Md. at 614 , 490 A.2d. at 682 .

We emphasized that the analysis in Burnette was not limited to instructions given to deadlocked juries but also to jurors prior to the beginning of deliberations. Id. at 622, 490 A.2d at 686 . We found that Allen instructions given before deliberations are just as coercive and “may well impact upon the minority.” Id. at 622-23 , 490 A.2d at 687 . The ABA Standards for “duty to deliberate” jury instructions approved in Kelly , and affirmed in Burnette and Good-muth, have been incorporated into the “Duty to Deliberate” Maryland Criminal Pattern Jury Instruction 2:01 as we noted ⁴⁸⁵ in Graham v. State, 325 Md. 398 , 409 n. 4, 601 A.2d 131 , 136 n. 4 (1992). 6 We explicitly expressed approval of MPJI-Cr-2:01, which we noted “closely follows the language of Standard 15-4.4 (formerly Standard 5.4) of the Standards for Criminal Justice (1978,1986 Supp.).” 7 Id.

Although some portions of the jury instruction given by the trial judge in the present case in what he called the “attitude of the jurors” instruction give some deference to the ABA Standards and reflect some of the nuances of the Maryland Pattern Jury Instruction 2:01, there are substantial deviations between the instruction given in this case and the ABA Standards, as well as MPJI-CR 2:01. Specifically, the following portions of the instruction given by the trial court do not meet the criteria of the ABA Standards: The attitude and conduct of jurors at the outset of their deliberations are matters of considerable importance. It is rarely productive or good for a juror upon entering the jury room to make an emphatic expression of his or her opinion on the case or to announce a determination to stand for a certain verdict. Remember that you are not partisans or advocates but rather jurors.

The final test of the quality of your service will lie in the verdict which you return to the Court, not in the opinions any of you may hold as you retire. Have in mind that you will make a definite contribution to efficient judicial administration if you arrive at a just and proper verdict in this case. To this end, the Court reminds you that in your deliberations in the jury room there can be no triumph except in the ascertainment and declaration of the truth. ⁴⁸⁶ The language of this instruction does not “reasonably adhere to” the ABA Standards. This is especially true of the language that suggests “the final test of the quality of your service will lie in the verdict which you return to the Court, not in the opinions any of you may hold as you retire.” This concept of a “final test” implies that there is a standard of service to which a juror should aspire, one that requires a verdict to be reached rather than one that requires consideration of individual conviction and whether individual conviction thoughtfully can be reconciled with collective judgment.

Because a verdict cannot be reached without unanimity, the “final test” language logically implies that a “good” juror acquiesces in a verdict rather than adheres to his or her own judgment. Such language is a deviation in substance from MPJI-Cr 2:01 and the ABA Standards, which recognize that jurors should not surrender honest convictions in order to return a verdict. The State points to other jurisdictions such as North Carolina, Idaho, and California that have made use of the language of a “final test” in which the “quality of service will he in the verdict you return.” State v. Bryant, 282 N.C. 92, 99-100 , 191 S.E.2d 745, 750-51 (1972) cert. denied, 410 U.S. 958 , 93 S.Ct. 1432 , 35 L.Ed.2d 691 (1973); State v. Tope, 86 Idaho 462, 468 , 387 P.2d 888, 892 (1963); People v. Moraga, 244 Cal.App.2d 565 , 53 Cal.Rptr. 563 (1966). At the time of those decisions, however, these jurisdictions had not adopted the ABA Standards as we have done to provide guidance concerning appropriate language for “duty to deliberate” jury instructions. 8 As such, those cases are inapposite to the present case. ⁴⁸⁷ The Court of Special Appeals found that the instruction given by the trial judge comported with MPJI-Cr 2:01.

We differ from that court because we find the “final test” language used in the duty to deliberate instruction to be a deviation in substance from the pattern jury instruction and the ABA Standards. Such language is suggestive of the primacy of collective judgment over individual principle and honest conviction. We, therefore, reverse the judgment of the Court of Special Appeals with instructions to reverse the judgment of