Grade v. State, 16

Citation64 A.3d 197,431 Md. 85
Decision Date03 April 2013
Docket NumberNo. 16,Sept. Term, 2007.,16
PartiesJaron Tyree GRADE v. STATE of Maryland.
CourtCourt of Appeals of Maryland


George E. Burns, Jr., Asst. Public Defender (Nancy S. Forster, Public Defender, Baltimore, MD), on brief, for Petitioner/Cross–Respondent.

Cathleen C. Brockmeyer, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for RespondentCross–Petitioner.

Argued before BELL, C.J., RAKER *, HARRELL, BATTAGLIA, GREENE, ALAN M. WILNER (Retired, Specially Assigned), DALE R. CATHELL (Retired, Specially Assigned), JJ.


The issue in this case is whether the trial court's substitution of a juror with an alternate, without having first notified counsel of the juror communication that prompted that action and sought counsel's response or input, violated Maryland Rule 4–326(d). Because Rule 4–326(d) vindicates the well-established right of a defendant to be present throughout the trial, including during jury deliberations, we shall hold that, under the facts of this case, it did.


Jaron Grade, the petitioner, was charged with, and, on December 3, 2004, was convicted by a jury in the Circuit Court for Baltimore County of, two counts of first-degree murder and use of a handgun in the commission of a crime. He was sentenced to two concurrent life sentences and a consecutive twenty year term of imprisonment. He contends that the trial court's replacement of a juror with an alternate juror without the knowledge or acquiescence of his counsel was a violation of Rule 4–326(d) and, therefore, reversible error.

On December 2, 2004, before adjourning for the day, the court inquired of the jury as to its preference with regard to when to begin deliberations, either immediately or on the following day, and whether any one of them had “ any problem with being back” the next day. Having ascertained that the jury's preference was to begin deliberations the next day and acquiescing in that preference, it being satisfied that no juror or alternate had “any problem” with coming back, the court addressed the jurors and the alternates as follows:

“THE COURT: What I am going to ask you to do is this: As to the alternates, I am not going to excuse you yet, because something [could] happen with one of the regular jurors before deliberation begins tomorrow morning. I am going to ask you all please to come back tomorrow morning[.] When everybody gets here, I will excuse the alternates at that time, but please be back tomorrow.... Thank you.

“Do not begin to discuss anything with anyone yet. Do not begin deliberating until you get back together and everyone is here. I will ask you to come back, if you can come back earlier than 9:30. It might be helpful because it could be sometime while you are out deliberating. I would like to get started as early as possible, 9:15 or something like that works.

“All right. Please report to the jury room [then] at 9:15 tomorrow. Thank you.”

The jury and the alternates thereafter were excused. The court then addressed counsel with regard to the next day's procedure:

“THE COURT: I will, of course, do what I just said I would do tomorrow morning, make sure we have twelve jurors here and ready to deliberate before deliberations begin, and I will excuse the alternates then.

“MS MEAD [Defense Counsel]: When do you want us here tomorrow, judge?

“THE COURT: Good question. I would think that you ought to be available not later than ten, I would think, because things will get started by that time. There may be questions and problems arise.

“MS MEAD: I will plan on being here at ten. Your law clerk has my cell phone. I will give him my cell phone and home number. I will probably be here earlier, but if he wants to call, if something else comes up.”

When counsel arrived at court the next morning, they were informed of the court's communication with a juror and the action the court took in response to that communication:

“THE COURT: Here is the situation.... Okay. Just a matter of substituting a juror. I want to put it on the record what happened, we got a call about 20 after 9, 9:25 from Juror number 10, indicating she had an emergency of an undisclosed nature and she would at least 10:30 or later getting here, so I made a decision I would like to run by counsel. Nobody—Garrett was available, you were not here, so we seated Alternate Number 1 in lieu of Juror 10. They began deliberations about 9:30.... I'm sorry I couldn't bring it to your attention, I wanted to make sure I did as soon as possible.... As far, as substitution of alternates were concerned, we talked about it, I talked about it, said what the procedure would be if we turned up short, that's what happened, so we will just continue with....”

Following that statement, the petitioner's counsel objected “for the record.” In response, the court accurately observed: “Well, you are certainly free to do that. You have a right to, I can't do anything about it now. What's done is done.”

The petitioner posits that Rule 4–326(d) recognizes a defendant's right to be present at the various stages of the trial, a right reflected in our case law, see, e.g., Midgett v. State, 216 Md. 26, 36, 139 A.2d 209, 214 (1958), Brown v. State, 272 Md. 450, 457, 325 A.2d 557, 560 (1974), and in our rules, seeMd. Rule 4–321,1 as well as his right to counsel. Because the issue in this case involves the replacement of a juror who could have served, but not in the time frame that the court desired, he submits that it was one requiring counsel's presence and his input. Nevertheless, he complains, neither the petitioner nor his defense counsel was made aware promptly of either the juror communication or the court's decision, based on the juror communicationand in the absence of counsel, to substitute an alternate for that person. The petitioner argues that his counsel was available, although not physically present, when the juror communication occurred and, therefore, that the court, at the least, should have waited until he was physically present and could provide input before replacing the juror with an alternate. In the alternative, the petitioner emphasizes that the juror should not have been replaced. The juror, he points out, indicated simply that she would be tardy, not that she would be unable to come to court or otherwise was unable, or unwilling, to perform her duties as a juror. Therefore, the petitioner asserts, the court could, and should, have waited for the juror's arrival.

Additionally, the petitioner denies that he acquiesced in the court's actions. Noting that his counsel received notification of the juror substitution only after it had been made and the jury had begun deliberating, and promptly objected to the trial judge's actions, he asserts that the December 2, 2004 colloquy with the trial court was limited to whether, and when, the alternate jurors would be dismissed. It did not address whether, or under what circumstance, they would be used to replace the jurors, who also were instructed to appear so that deliberations could begin. The petitioner asserts that his counsel provided contact information in anticipation of a situation, such as occurred in this case, in which input from counsel would be required to be given. Failure to notify him in advance of substituting the alternate, the petitioner argues, violated Rule 4–326(d), requiring a reversal of his conviction.

The State's argument is threefold. First, it argues that the petitioner's counsel acquiesced in the trial court's “abundantly clear” plan of action for the alternate jurors, which was for them to return to the court the following morning before deliberation was to begin, in case one, or more, of the jurors was not available. Thus, the State argues, juror replacement was contemplated, and, therefore, prior consultation with counsel was not necessary. For that reason, the State further posits that the petitioner's objection was untimely; the petitioner objected the day the jury began deliberations, instead of the day before, when the critical colloquy with counsel, advising of his “abundantly clear” plan of action, occurred.

Acknowledging that the petitioner has a right to be present at all stages of trial, including all communications between the judge and the jury, the State secondly submits that Rule 4–326(d) is not applicable to the juror communication at bar. This is so, it asserts, because the communication does not “pertain to the action” or, in this case, the trial proceedings. The state further posits that even if Rule 4–326(d) contemplated the juror communication sub judice, the manner in which the court responded to the communication did not prejudice, or have a tendency to influence, the verdict.

Third, the State argues, alternatively, that reversal of the petitioner's conviction is “unwarranted” because the petitioner suffered no prejudice. The State submits that a trial judge has the discretion to replace the juror with an alternate to avoid delay, and abuses his or her discretion only when the judge acts “arbitrar[ily] and capricious[ly] or acts beyond the letter or reason of the law.” Although it maintains that no abuse of discretion occurred in this case, the State argues that, even had there been, there was no prejudice to the petitioner and, thus, no basis for reversal. For this argument, the State relies on, inter alia, State v. Cook, 338 Md. 598, 659 A.2d 1313 (1995). There, the trial court dismissed a juror whom it “decided was unable to follow the court's instructions.”Id., 338 Md. at 617, 659 A.2d at 1323. Rejecting the petitioner's argument that, in so doing, the trial court committed reversible error, the Court explained:

[W]here, as here, a judge excludes a juror on grounds which are particular to the juror, rather than on characteristics which the juror may hold in common with a particular class of persons, we will give deference to the trial judge's determination and will not substitute our...

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