Alston v. State Of Md.

Citation414 Md. 92,994 A.2d 896
Decision Date11 May 2010
Docket NumberNo. 129,2007.,129
PartiesAnthony ALSTONv.STATE of Maryland.
CourtCourt of Appeals of Maryland

David P. Kennedy, Asst. Public Defender (Nancy S. Forster, Public Defender, Baltimore), on brief, for petitioner/cross-respondent.

Jeremy M. McCoy, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland Baltimore), on brief, for respondent/cross-petitioner.

Argued before HARRELL, BATTAGLIA, GREENE, JOHN C. ELDRIDGE (Retired, Specially Assigned), IRMA S. RAKER (Retired, Specially Assigned), LAWRENCE F. RODOWSKY (Retired, Specially Assigned), and ALAN M. WILNER (Retired, Specially Assigned), JJ.

JOHN C. ELDRIDGE, J., (Retired, Specially Assigned).

This Court in Harris v. State, 406 Md. 115, 129-132, 956 A.2d 204, 212-214 (2008), held that where a criminal defendant was convicted by a jury which had never been sworn, the failure to swear the jury was a “ structural error” requiring the reversal of the conviction and the award of a new trial. Because the error was “structural,” it could not be cured by anything occurring at the original trial, and principles of waiver and harmless error were inapplicable. With regard to the situation “where the jury was sworn, but where the administration of the oath to jurors did not occur before all or a substantial part of the evidence had been introduced,” the Court in Harris stated: we leave for another day the resolution of any issues arising when there is a belated administration of the oath to jurors.” Harris, 406 Md. at 128-129, 956 A.2d at 212. “Another day” has arrived, as the case at bar involves the belated swearing of the jury. This case also presents an issue of whether the defendant-petitioner was lawfully convicted of and sentenced for conspiracy to commit first degree murder.


Petitioner Anthony Alston was charged with first degree murder, second degree murder, conspiracy to murder, use of a handgun in the commission of a felony or crime of violence, and wearing, carrying or transporting a handgun. Alston was tried before a jury in the Circuit Court for Baltimore City on June 10, 11, 14, and 15, 2004. The jury returned a verdict of guilty on the charge of conspiracy to murder and acquitted Alston on the remaining charges. Alston was sentenced to life in prison for conspiracy to commit murder. The Court of Special Appeals affirmed the judgment, and this Court granted Alston's petition for a writ of certiorari. Alston v. State, 177 Md.App. 1, 934 A.2d 949 (2007) cert. granted, 403 Md. 304, 941 A.2d 1104 (2008).

Testimony elicited at trial described the incidents that led to the death of the victim, Johnny Cabizza.1 Shervan Easton, an alleged accomplice and co-conspirator, who was granted immunity in exchange for his testimony, testified at Alston's trial that he had met Alston at around noon on July 10, 2003, along with another individual named “El,” at the main office of their employer in Capitol Heights, Maryland.2 Easton stated that the three men chatted briefly and then decided to drive to Baltimore to “get some blow, some heroin.” Easton drove a blue Ford van and Alston and El followed him in a red Kia automobile. Once in Baltimore, they located a group of four or five teenagers sitting on a stoop at the corner of Edmondson Avenue and an alley. They asked the group if there “was anything out, and they said, yes, you know, just walk around the corner.” Easton and Alston proceeded around the corner while El stayed behind. Easton testified that, as he and Alston walked down the alley, “a little guy ... pulled a pump shotgun from under a cardboard box and stuck it in my face and told me, that's right, throw all the money down and take the phone off your hip too.” Easton also indicated that, at the time of this encounter, Alston was “like 10 feet behind me.”

After the robbery, Easton testified that he and Alston “backed off” slowly, and then the three men returned to their vehicles. As they drove away, Easton spotted one of the teenagers who had directed them down the alley, riding a bicycle. Easton tried to turn his vehicle around to chase the teenager, but instead the vehicle struck a tree. Alston, Easton, and El continued to drive around the neighborhood searching for the person who had robbed them, but they eventually gave up and drove to a different part of Baltimore where they purchased heroin. They then returned to Easton's house in Anne Arundel County. According to Easton's testimony, once back at his house, Alston began to taunt Easton, saying, “hey, boy, you want your stuff back.” When Easton responded that he “would like to have [his] stuff back,” Alston asked for Easton's gun, a .380 Taurus pistol, and the three men returned to Baltimore in Alston's vehicle. Easton testified that, once they arrived in the neighborhood where the robbery occurred, Easton remained in the parked car while Alston and El walked through the alley searching for the individual who had earlier robbed Easton. After 15 to 20 minutes, Easton heard two or three gunshots, followed by Alston and El returning to the car at a “ fast jog.”

When the police responded to a call for a shooting at about 5 p.m. on July 10, 2003, in the 1800 block of Edmondson Avenue, they found Johnny Cabizza lying on the sidewalk bleeding from multiple gunshot wounds. Cabizza was taken to a hospital where he was pronounced dead. A firearms examiner of the Baltimore City Police Department testified that the bullets removed from Cabizza's body, as well as the cartridges recovered from the scene, came from a .380 pistol, and that all of the cartridges recovered had come from one gun, likely a Taurus or Beretta semiautomatic pistol.

After discovering Easton's cell phone on the body of the victim, the police located Easton at his home on July 11, 2003, at approximately 3 a.m., and brought him to the police station for questioning. During the course of the investigation, Easton was granted immunity in return for his cooperation and agreement to testify for the State. In addition to Easton's testimony, three of the teenagers who had initially directed Easton and Alston to the alley testified on behalf of the State. In some respects their testimony corroborated Easton's testimony, and in other respects it differed somewhat.

All of the State's evidence, except for a stipulation concerning gun shot residue, had been introduced by the end of the third day of trial. At the beginning of the fourth day of trial, defense counsel represented to the trial judge that, during the prior evening, defense counsel realized that the jury had never been sworn. Following conversations between the trial judge and counsel for each side, which were apparently not recorded, the case was called and the judge stated:

“THE COURT: [I]t appears that no one swore the jury. Now, I've spoken to counsel about this at length. Counsel has had a chance to talk to their client.
What I proposed to do is, swear them now, question them as to whether or not they've in any way done anything or experienced anything that would violate their oath and whether they're able to fulfill their oath.
“The Defendant wishes, I know, to make a motion for mistrial, but a rapid review of the case law indicates there is no case law. So what I would rather do rather than try to do this in a helter-skelter way while the jury's standing up there in the room is instruct the jury, close the case, wrap it up and you can refil[e] on the same grounds in a motion for a new trial. At that time, we'll have the time to look up the law in other states and see if there's any federal cases that apply to this jurisdiction, if there's any other law that clarifies this point, rather than try to do this all of the sudden and throw away perhaps unnecessarily, perhaps necessarily, the efforts of the jury over the last two days and everybody else involved in this case. So you want to make a motion for a mistrial?
“MS. DAVIS [DEFENDANT'S ATTORNEY]: Your Honor, based on the fact the jury was not sworn, I would make a motion for mistrial. I would note for the record that it came to my attention when I was, you know, over-overnight. I asked the Court Clerk. It was reflected in the court file, the jury had been sworn; however, based on our further investigation it appears as though the jury was not sworn. So on behalf of Mr. Alston, I would make a motion for mistrial.
“THE COURT: The motion is denied with leave to basically raise the same grounds in a motion for new trial depending on how the case comes out. Are we all clear on this?”

The oath was then administered to the jury. Next, the trial judge addressed the jury as follows:

“Now, what I'm going to ask you individually, and I'll ask each of you in turn, is whether anything has occurred during the course of this trial or whether now, having been sworn in, you're aware of anything that in any way would interfere with your fulfilling this oath and treating this oath as though it were administered at the beginning of this case.
In other words, it's as though you were sworn in at the beginning of this case, you heard the oath, you swore to the oath, you're now under oath. Is there anything that would interfere with or anything that has occurred or would affect your ability to deliberate and decide this case in accordance with the oath you've just been given, in accordance with the evidence in this case, in accordance with the law of the State of Maryland?”

The trial judge proceeded to inquire of each juror individually, “Is there anything?” Each juror responded “No,” with the exception of two jurors whose responses were inaudible to the transcriber, but which we shall assume were also “No.” 3 After questioning the jurors, the judge stated:

“Okay. I'm going to find that you have been duly sworn, that there has been no violation of the oath and that from as best as I can gather from the answers to your questions and the questions I have asked, you are able and have fulfilled that oath up to this point and

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