Dillon v. State, 862

• Decision Date: 24 July 1975
• Docket Number: No. 862,862
• Citation: 342 A.2d 677,27 Md.App. 579
• Parties: Samuel Henry DILLON v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 579

27 Md.App. 579

342 A.2d 677

Samuel Henry DILLON v. STATE of Maryland.

No. 862.

Court of Special Appeals of Maryland.

July 24, 1975.

Joseph J. D'Erasmo, Assigned Public Defender, for appellant.

Alexander L. Cummings, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Andrew L. Sonner, State's Atty. for Montgomery County, and William J. Hickey, Asst. State's Atty. for Montgomery County, on the brief, for appellee.

Argued before MORTON, POWERS and MENCHINE, JJ.

MENCHINE, Judge.

Samuel Henry Dillon was convicted by a jury in the Circuit Court for Montgomery County under counts 1, 5, 7 and 9 of a single indictment. Count 1 charged armed robbery, allegedly occurring on January 22, 1974, and count 5 charged use of a handgun in the commission of that felony. Count 7 charged armed robbery allegedly occurring on January 5, 1974 and count 9 charged use of a handgun in the commission of that felony. Dillon was sentenced to a term of ten years imprisonment under court 1 and to five years consecutively under count 5. He was sentenced to terms of 10 and 5 years respectively under counts 7 and 9 concurrent with the prior sentences. The offenses allegedly were committed at the same 7-11 Store.

Dillon's appeal suggests the following errors:

I. That the trial court placed improper restrictions on note taking by the jurors.

II. That the court's charge was erroneous both in omission and content.

I. Restriction on Note Taking by Jurors

After the jury had been sworn, the trial judge said:

'No note taking, please, except by the Foreman.

There is a pad and a pencil for the Foreman, and he may take notes as he feels is necessary.

'We ask the rest of you not to take notes, for the very simple reason that it is difficult at best to be writing down, unless you are well trained in that field, to be taking notes and also listen to everything that is going on at the same time.

'We want you to pay full time and attention to what comes from the witness stand, because that is the factual situation upon which you must arrive at your verdict.

'No note taking during the opening statement, however, because that is just what they expect to prove.

'No note taking until the evidence commences.'

Immediate objection was taken by defense counsel as follows:

'The defendant would object at this time to the Court's ruling that only one of the jurors may take notes in this case, for the reason that every one of the jurors has his own independent recollection.

'If one, and only one, has notes, that one may be the only one whose recollection is weighed in the jury room; therefore, I request that all of the jurors be permitted to take notes, or that none of them be permitted to take notes, including the Foreman. * * * I have no objection to none of the jurors taking notes, not even the Foreman.'

The Court then responded:

'I think since the Foreman is in charge of the deliberations, if he feels it is necessary on some particular point that he take notes, he can: but that is just to throw it out for discussion, nothing more.'

Note taking by jurors apparently has been the subject of appellate discussion in only one case in Maryland. In Cahill v. M.C.C. of Balto., 129 Md. 17, 98 A. 235, after commenting (page 26 (238)) that:

'Unquestionably it has been the practice for jurors to make rough notes, particularly where figures are involved, during the course of the examination of the witnesses, and take these notes with them when they retire to their room.'

The Court said: (pages 26-27 (238))

'We see no objection in a juror taking notes in a case complicated with figures, during the examination of testimony, and being permitted to take these to the jury room, for the purpose of refreshing his recollection, provided the trial court is satisfied that such action will not delay the trial, or interfere with the juror following the evidence.

'We have found only one state where in the absence of statute such practice is allowed as a matter of right. In all the other states where the question has arisen, it has been held, as we have stated, not a right, but a discretionary power of the trial court, with the exception of Indiana, where it is held to be a reversible error to permit it. We think, however, from reason that the better rule is with the weight of authority and so hold.'

For extensive discussions upon the subject of note taking by jurors, see: United States v. Campbell, 138 F.Supp. 344, 348, et seq. (U.S.D.Ct.N.D.Iowa W.D., 1956); Annotation, 154 A.L.R. 878, et seq.; Annotation 14 A.L.R.3d 833, et seq.

The only Rule making reference to notes of jurors is Maryland Rule 558. ¹ That Rule, relating to what may be taken to the jury room, provides in pertinent part as follows:

'b. As of right-Notes

The jury may also take with then notes of the testimony or other proceedings taken by themselves but none taken by any other person.'

We do not interpret the quoted portion of Rule 558 as intending a departure from the holding in Cahill, supra, ² that the question whether the jurors will be permitted to take notes is within the discretion of the trial judge. We regard the language of the rule permitting jurors as a matter of right to take their notes to the jury room with them as applying only if the trial judge has not, in the exercise of his discretion, forbidden the taking of notes. ³

We have been referred to no case and have found none wherein the precise question here presented, namely, whether the discretion of the trial judge could be said to have been reasonably exercised when note taking was authorized to one but forbidden to other jurors. The contention of counsel for appellant, that 'If one, and only one, has notes, that one may be the only one whose recollection is weighed in the jury room', has a distinct appeal to reason. We believe that the exercise of a reasonable discretion requires that all members of a particular jury panel be dealt with uniformly. The contrary course, followed by the trial judge, was erroneous.

In the subject case, however, there is nothing in the record to indicate that the jury's verdict in any way was influenced by the trial court's action. It does not even appear that the jury foreman in fact did take notes. In the absence of any such showing and in the light of the circumstance that the case was neither lengthy nor complex, we do not regard the error as justifying reversal.

In Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 827, 17 L.Ed.2d 705, 709, the Supreme Court, after pointing out that '(a)ll 50 States have harmless-error statutes or rules', declared that: 'All of these rules, state or federal, serve a very useful purpose insofar as they block setting aside convictions for small errors or defects that have little, if any, likelihood of having changed the result of the trial.' See also: Lamar v. State, 5 Md.App. 594, 598, 249 A.2d 192, 194-95, and cases therein cited. In the subject case we find no likelihood that the ruling as to jury note taking changed the result of the trial. The error does not justify or require reversal. Fisher v. Strader, 399 Pa. 222, 160 A.2d 203, 204 (1960) We are persuaded from our examination of the record that the appellant received a fair and impartial trial.

II.

(a) The suggested omissions

In his exception to the charge of the court in this area, defense counsel had said:

'I would also like to request the Court to give an instruction concerning alibi, (1) * * * to define what an alibi is, and (2) indicate that the defendant does not have the burden of proving that beyond a reasonable doubt, but need only to do so in sufficient amount to raise a doubt in the minds of the jurors about the State's case. * * * (3) I would also request an instruction to the jury concerning photographic identification, that they should weigh the testimony.'

Defense counsel proffered to the trial court no suggested definition of 'alibi.' In the absence of such a course we find that the court's advisory instruction, read in the context of the testimony, adequately instructed the jury as to alibi. The defense witnesses, including the traverser himself, ahd testified to the effect that appellant was elsewhere than at the crime scene at the times of the offenses. The American Heritage Dictionary of the English Language defines the word 'alibi' as follows: 'A form of defense whereby a defendant attempts to prove that he was elsewhere when the crime in question was committed.'

The trial judge had told the jury:

'There is no dispute, but what there was a robbery; and there is no contradiction or dispute over the fact that the person who did that had in his possession a gun of some type.

'The defense in this case is one of identity, and you heard the State's witnesses, and you heard the defense witnesses.

'This is a question now that you must resolve as to whether this is a man who is guilty of these crimes.'

In short, the trial court made clear that the subject case turned upon the credibility of witnesses as to whether the appellant was or was not the perpetrator of the two robberies. As essential factor in the determination of that question was the resolution of conflicting evidence as to whether the appellant was or was not 'elsewhere when the crime in question was committed.' The trial court's charge made quite clear that the appellant must be found not guilty if the jury believe the defendant and his witnesses. When the meaning of a charge is implicit and clear, definitive terms are discretionary. White v. State, 23 Md.App. 151, 326 A.2d 219.

The second aspect of the exception as to alibi requested by the defendant, itself involved a request for an erroneous instruction. As the court explained: 'I have told them there is no burden on the defendant.' The trial court was entirely correct in pointing out that there is no burden upon a defendant to prove alibi, as we declared in Robinson v. State, 20 Md.App. 450, 456, et seq., 316 A.2d 268, 271, and reiterated in ...