Booth v. State

• Decision Date: 01 September 1991
• Docket Number: No. 20,20
• Citation: 608 A.2d 162,327 Md. 142
• Parties: John BOOTH a/k/a Marvin Booth v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 142

327 Md. 142

608 A.2d 162

John BOOTH a/k/a Marvin Booth v. STATE of Maryland.

No. 20, Sept. Term, 1991.

Court of Appeals of Maryland.

June 24, 1992.

Julia Doyle Bernhardt, Asst. Public Defender and John L. Kopolow, Asst. Public Defender (Stephen E. Harris, Public Defender, all on brief), Baltimore, for appellant.

Gwynn X. Kinsey, Jr., Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Cathleen C. Brockmeyer, Asst. Atty. Gen., all on brief), Baltimore, for appellee.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI and ROBERT M. BELL, JJ.

RODOWSKY, Judge.

Appellant, John Booth (Booth), having previously been found guilty of murdering Irvin and Rose Bronstein in 1983, now appeals from the death sentence which a jury in the Circuit Court for Baltimore City for the third time has imposed on him as the direct perpetrator of the murder of Irvin Bronstein. ¹ The evidence underlying the findings of guilt is reviewed in Booth v. State, 306 Md. 172, 507 A.2d 1098 (1986). Here Booth raises fourteen issues directed at his most recent death sentence. We shall state additional facts as necessary when we consider Booth's separate contentions.

I Modified Allen Charge

Booth submits that the trial court erred by giving a modified Allen charge after the jury reported an inability to agree on his first-degree principalship. This result obtains under special rules relating to capital sentencing which, Booth argues, render a nonverdict a verdict.

The facts are these. From the time the venire assembled until submission of the case to the jury, this proceeding consumed eleven days, on seven of which testimony and arguments were presented. In its charge to the jury at the conclusion of all of the evidence, the court gave a modified Allen instruction in the form requested by the defense. Defense counsel devoted approximately half of his summation to arguing that Booth was not a principal in the first degree to the Irvin Bronstein murder.

The jury began deliberations at 3:00 p.m. and was dismissed for the first calendar day of deliberations at 7:15 p.m. The next morning the court, with counsel, considered four requests from the jury. In response the court advised the jurors that they could not have a dictionary and that they would have to rely on their best recollections of the testimony of a principal state's witness, Jewell ("Judy") Edwards Booth. The court also repeated its instructions on reasonable doubt and preponderance of the evidence. ² At 9:17 a.m. the jurors resumed deliberations. Lunch orders were taken. At 2:25 p.m. on the second calendar day of deliberations the court received this message from the jury "Statement: We are split on Question 1, Section 1. We are unable to come to an agreement on that statement."

This note referred to the following issue on the sentencing form furnished to the jury pursuant to Maryland Rule 4-343(e):

"Based upon the evidence, we unanimously find that each of the following statements marked 'proven' has been proven BEYOND A REASONABLE DOUBT and that each of those statements marked 'not proven' has not been proven BEYOND A REASONABLE DOUBT.

"1. The defendant was a principal in the first degree to the murder.

_______________ ____________________

proven not proven"

That provision of the Maryland Rules is an implementation of the definition of the terms "defendant" and "person" under the Maryland death penalty statutes wherein the quoted terms "include only a principal in the first degree," except in contract murders. Md.Code (1957, 1992 Repl.Vol.), Art. 27, § 413(e)(1). ³

Booth's counsel, upon learning of the jury's message, moved that the court dismiss the jury and impose a sentence of life imprisonment. The motion was predicated on a statutory provision which, at the time of the murders, read:

"If the jury, within a reasonable time, is not able to agree as to sentence, the court shall dismiss the jury and impose a sentence of imprisonment for life."

Md.Code (1957, 1982 Repl.Vol.), Art. 27, § 413(k)(2).

The court overruled Booth's motion and instructed the jury as follows:

"I am going to reread to you the charge on the law so that you are clear as to what your responsibilities are in that area.

"The law requires that in order for you to conclude beyond a reasonable doubt that the State has proven that Mr. Booth was a first degree principal in the murder of Mr. Bronstein, all of you must agree within a reasonable time, and your verdict must be unanimous.

"If any of you cannot conclude that the State has proven beyond a reasonable doubt that Mr. Booth is a principal in the murder of Mr. Bronstein, then you must mark 'not proven' in the form and enter the words 'life imprisonment' in Section 6.

"In arriving at your decision, 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 you must do so only after an impartial consideration of the evidence with your fellow jurors. During your deliberations, do not hesitate to re-examine 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 opinions of your fellow jurors, or for the mere purpose of reaching a verdict.

"Do you understand that instruction?

"THE JURY: Yes.

"THE COURT: Very well. Then I will ask you to go back to the jury room and continue your deliberations, please."

At 5:50 p.m. on the second calendar day of deliberations the jury sent a message to the judge advising that two of its members were not feeling well. The jury asked to be excused for the evening, to return the next morning to continue deliberations. The defense motion, renewed at that time, was denied.

On the third calendar day of deliberations the jury assembled at 9:00 a.m. and returned with its verdict at 2:25 p.m. Unanimously, and beyond a reasonable doubt, the jury found Booth was a principal in the first degree to the murder. Unanimously, and by a preponderance of the evidence, the jury found that the seven statutorily recognized mitigating factors did not exist and that there were no other mitigating factors. Thus, having unanimously found the aggravating factor of robbery, the sentence was death.

The result of a hung jury in a capital sentencing proceeding differs from that in other cases. Under former § 413(k)(2) a hung jury in the instant matter would result in the court's dismissing the jury and imposing a life sentence. In other types of criminal and civil cases, the result of a hung jury is a mistrial. Booth's argument has as its premise that, because of that difference, a jury in a capital sentencing proceeding may return as a verdict a statement that it is unable to agree. A corollary to that premise is that the jury's statement that it cannot agree is conclusive in determining when that point has been reached. Applying these concepts to the facts here, Booth views the jury's message to the court as a verdict of inability to agree, thereby requiring a life sentence. In any event, Booth submits that a modified Allen charge cannot be given because the permissible verdict of inability to agree is one which the jury must be allowed to reach without any attempt by the court to produce unanimity.

A

Although the capital sentencing procedures of some states function in the fashion advocated by Booth, Booth's position is contrary to Maryland procedure on the principalship issue. We considered former § 413(k)(2) in Calhoun v. State, 297 Md. 563, 468 A.2d 45 (1983), cert. denied, 466 U.S. 993, 104 S.Ct. 2374, 80 L.Ed.2d 846 (1984), where Calhoun argued that it was error for the trial judge to refuse to instruct the jury that a life sentence would be imposed if the jury could not agree within a reasonable time. Id. at 593, 468 A.2d at 59. Rejecting that contention, we said:

"Giving the instruction to the jury before deliberation could prompt someone to hold out for just a bit more than a reasonable time to insure that the death penalty was not imposed. It likewise could cause a jury to rush through its deliberations to avoid being called back by the court and told that because a reasonable time had passed without a verdict the sentence would be life imprisonment. The statute is a mandate directed to the court, not the jury. As the jury here reached its decision within a reasonable time, no instruction was required."

Id. at 595, 468 A.2d at 60. Thus, in Maryland, it is the court's function to determine whether the jury's total deliberations have extended beyond a reasonable time. Consequently, after having made that determination, it is the court which "shall dismiss the jury and impose a sentence of imprisonment for life." § 413(k)(7)(iii) and former § 413(k)(2). The Maryland trial judge presiding over a capital sentencing proceeding before a jury basically retains the traditional role of determining whether the jury is hung.

The complexities created by a unanimity requirement for all of the questions which a jury might be required to answer in a capital sentencing proceeding were fully exposed in the majority and dissenting opinions in Mills v. State, 310 Md. 33, 527 A.2d 3 (1987), sentence vacated, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988). This Court filed its opinion in Mills on June 25, 1987. On July 27, 1987, this Court, as an emergency measure, adopted amendments to Maryland Rule 4-343. 14 Md.Reg. 1854. Rule 4-343 is, in addition to being an exercise of this Court's constitutional rule-making authority, Md. Const. art. IV, § 18, a response to the legislative invitation in § 413(1) which reads:

"The Court of Appeals may adopt rules of procedure to govern the conduct of a sentencing proceeding conducted pursuant to this section, including any forms to be used by the court or jury in making its written findings and...