Canela v. State
| Decision Date | 17 June 2011 |
| Docket Number | No. 94,Sept. Term,2010.,94 |
| Citation | 420 Md. 57,21 A.3d 1048 |
| Court | Maryland Court of Appeals |
| Parties | Policarpio Espinoza PEREZ & Adan Canelav.STATE of Maryland. |
OPINION TEXT STARTS HERE
Brian J. Murphy, Assigned Public Defender, Baltimore, MD, on brief, for petitioners.David P. Kennedy, Asst. Public Defender (Paul B. DeWolfe, Public Defender, Baltimore, MD), on brief, for petitioners.Diane E. Keller, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for respondent.Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS and BARBERA, JJ.GREENE, J.
Petitioners, Policarpio Espinoza Perez (“Perez”) and Adam Espinoza Canela (“Canela”), were convicted of murder and related offenses in the Circuit Court for Baltimore City. Before this Court, Petitioners challenge the non-disclosure of multiple jury notes submitted to the judge during the course of the trial. Specifically, the Petitioners presented one question for our review:
Did the Court of Special Appeals err in applying a weakened harmless error test to the admittedly erroneous non-disclosure to counsel of six substantive jury notes in this case?
We shall answer the question in the affirmative. In the present case, jury members sent more than thirty notes to the court during the course of the trial, seeking clarification of testimony and asking questions relating to the case. Of those notes, six were not disclosed to counsel for the defense or the State, or to the Petitioners. Petitioners challenge the failure of the trial judge to disclose jury notes in accordance with Maryland Rule 4–326(d), which states:
Communications with jury. The court shall notify the defendant and the State's Attorney of the receipt of any communication from the jury pertaining to the action as promptly as practicable and in any event before responding to the communication. All such communications between the court and the jury shall be on the record in open court or shall be in writing and filed in the action. The clerk or the court shall note on a written communication the date and time it was received from the jury.
The State concedes that the trial judge erred in not disclosing the notes; the issue before this Court is whether the error was harmless beyond a reasonable doubt.
On May 27, 2004, three children were killed while alone in an apartment in Northwest Baltimore. The children, who were members of the same extended family as Petitioners,1 were discovered by their parents when the parents returned home from work. A neighbor called the police, who arrived on the scene and began their investigation. As family members began arriving at the apartment complex, they were taken to the rental office, where they were interviewed by a detective, with another officer serving as an interpreter. About fifteen relatives voluntarily went into the conference room of the rental office, and were asked questions regarding their identity, their relation to the victims, and when they had last seen the children alive.
When Petitioners arrived a few hours later, they were interviewed by the police. Petitioners appeared to have showered recently and gave inconsistent statements as to their prior whereabouts. A neighbor told police that two days prior to the discovery of the victims, she had seen Petitioners coming out of the bushes near the victims' apartment and acting suspiciously. After questioning, the Petitioners were taken to the homicide unit and placed in adjacent holding cells. Both Petitioners were questioned separately, and based on Perez's statement, both Petitioners were arrested and a search warrant was issued for their shared home and Perez's car. In Petitioners' home, police found a pair of blue jeans with apparent blood stains and a knife impression. In Perez's car, police recovered two gloves and another pair of jeans with apparent blood stains. DNA analysis on the items subsequently linked Petitioners to the victims. The gloves were analyzed using a device invented by Salvatore Bianca, an expert in the field of trace analysis. Using Bianca's micro-vacuum technique, samples were collected from the interior surface of the gloves and the jeans.2 The Petitioners were arrested and later tried by a jury. The first trial resulted in a hung jury in 2005. The second trial took place throughout June, July and August of 2006, and resulted in guilty verdicts for both Petitioners. Petitioners each received: two consecutive terms of life in prison without the possibility of parole for first-degree murder, a consecutive thirty-year sentence for second-degree murder, and a concurrent life sentence for three counts of conspiracy to commit murder.
Petitioners appealed their convictions to the Court of Special Appeals. Relevant to this case, Petitioners contested multiple jury notes which were not disclosed to counsel at trial, and were only discovered when counsel reviewed the record for appeal. The Court of Special Appeals remanded the matter to the Circuit Court for fact-finding on the issue, as provided for by Md. Rule 8–413(a).3 Retired Judge Dennis M. Sweeney was specially assigned to conduct an evidentiary hearing to determine whether certain jury notes had been disclosed. The hearing judge determined that the jury wrote twenty-eight notes, which were submitted to the judge during the trial, posing questions concerning the evidence presented. Judge Sweeney found that notes 6, 7, 14, 21, 23, and 26 were not disclosed to either counsel or Petitioners. Based on the opinion issued by Judge Sweeney, both parties filed supplemental briefs in the Court of Special Appeals. After the supplemental briefing and oral argument, that court affirmed the judgments of conviction. Canela v. State, 193 Md.App. 259, 997 A.2d 793 (2010). Subsequently, we granted Petitioners' Petition for Writ of Certiorari. Perez v. State, 416 Md. 272, 6 A.3d 904 (2010).
Md. Rule 4–326(d) provides explicit guidance to a trial court in dealing with communications from the jury. In interpreting the Maryland Rules, we have stated, “we use the same well-established canons of construction that we use when interpreting statutes.” Dove v. State, 415 Md. 727, 738, 4 A.3d 976, 982 (2010). Specifically:
“As we have so often stated, the chief objective of statutory construction is to discover and effectuate the actual intent of the legislature in enacting the statute.” Deville v. State, 383 Md. 217, 223, 858 A.2d 484, 487 (2004). When interpreting legislative intent, “we look first to the plain language of the statute [or Rule], ‘as the words of the statute, given their ordinary and popularly understood meaning, are the primary source of legislative intent.’ ” Melgar v. State, 355 Md. 339, 347, 734 A.2d 712, 716 (1999) (quoting Gargliano v. State, 334 Md. 428, 435, 639 A.2d 675, 678 (1994)). As this Court and the intermediate appellate court have reiterated on numerous occasions, the word “shall” indicates the intent that a provision is mandatory. E.g., State v. Green, 367 Md. 61, 82, 785 A.2d 1275, 1287 (2001) ().
Dove, 415 Md. at 738, 4 A.3d at 982. In the context of Md. Rule 4–326(d), we have stated, Winder v. State, 362 Md. 275, 322, 765 A.2d 97, 122–123 (2001) (citations omitted); see also Porter v. State, 289 Md. 349, 352–353, 424 A.2d 371, 374 (1981) ().
Maryland Rule 4–326 originates from the
right of a criminal defendant to be present at every stage of his trial [which] is, as we have said many times, a common law right preserved by Art. 5 of the Maryland Declaration of Rights. The right, in some measure at least, is also protected by the Fourteenth Amendment to the United States Constitution. Finally, the right is guaranteed by Maryland Rule [4–231, requiring the presence of the defendant at all stages of the trial].Bunch v. State, 281 Md. 680, 683–684, 381 A.2d 1142, 1143–44 (1978) (internal citations omitted). Further, “communications between the trial judge and the jury relating to the jury's verdict are generally considered stages of the trial when the defendant has a right to be present.” Bunch, 281 Md. at 685, 381 A.2d at 1144. In Midgett v. State, 216 Md. 26, 139 A.2d 209 (1958), we thoroughly discussed the right to be present, stating:
In this State there is no doubt that an accused in a criminal prosecution for a felony has the absolute right to be present at every stage of his trial from the time the jury is impaneled until it reaches a verdict or is discharged, and there can be no valid trial or judgment unless he has been afforded that right. The constitutional guarantee includes the right of the accused to be present ... (iii) when the court communicates with the jury in answer to questions propounded by the jury, or (iv) when there shall be any communication whatsoever between the court and the jury; unless the record affirmatively shows that such communications were not prejudicial or had no tendency to influence the verdict of the jury.
Midgett, 216 Md. at 36–37, 139 A.2d at 214. Additionally, “[w]hile the rule expressly requires notice to the parties of any communication from the jury, its very spirit is to provide an opportunity for input in designing an appropriate response to each question in order to assure fairness and avoid error.” Smith v. State, 66 Md.App. 603, 624, 505 A.2d 564, 574 (1986) cert. denied, 306 Md. 371, 509 A.2d 134 (1986).
Current Md. Rule 4–326(d) is derived from former...
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