Harris v. State

• Decision Date: 11 September 2008
• Docket Number: No. 21, September Term, 2007.,21, September Term, 2007.
• Citation: 406 Md. 115,956 A.2d 204
• Parties: Chester HARRIS v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

956 A.2d 204

406 Md. 115

Chester HARRIS v. STATE of Maryland.

No. 21, September Term, 2007.

Court of Appeals of Maryland.

September 11, 2008.

George E. Burns, Jr., Asst. Public Defender (Nancy S. Forster, Public Defender), on brief, for petitioner/cross-respondent.

Sarah Page Pritzlaff, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen.), on brief, for respondent/cross-petitioner.

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

ELDRIDGE, J.

We issued a writ of certiorari in this criminal case to decide whether a trial court erred by denying a defendant's motion for a new trial where the guilty verdicts were rendered by a jury which had never been sworn.

I.

On November 22, 2003, Michael Edwards was struck and killed by an automobile allegedly driven by Chester Harris. The State charged Harris with vehicular manslaughter under Maryland Code (2002), § 2-209 of the Criminal Law Article, and several related offenses. Harris's trial in the Circuit Court for Baltimore City commenced on October 28, 2004.

After the judge conducted voir dire during the morning of October 28, the attorneys accepted the panel of jurors and one alternate juror. The judge then indicated to the attorneys at a bench conference that he planned to release the jury for lunch early so that he could hear the defense counsel's motions. During this bench conference, the following exchange occurred:

"The Court: I will let this Jury go [to lunch].

"The Clerk: Do you want me to swear them in first?

"The Court: Yes, I'll have you swear them first. I'll pick the forelady or foreman first, too."

The judge chose the jury forelady and explained her duties. He then began to excuse the jurors before having them sworn. Defense Counsel repeated the clerk's previous inquiry as to swearing the jury:

"Defense Counsel: Your Honor, is the Jury going to be sworn?

"The Court: They're going to lunch. Why?

"Defense Counsel: I was just asking if they will be sworn.

"The Court: They are excused until 1:30."

The transcript does not reflect that the jury was sworn once they returned from lunch or that the jury was ever sworn thereafter. In a docket entry for October 28, 2004, the clerk entered "jury not sworn." There is no docket entry indicating, over the course of the two day trial, that the jury was ever sworn. At the end of the second day, the jury returned a verdict of guilty on the counts submitted to it. Harris was sentenced to a total of fifteen years imprisonment.

Thereafter, Harris filed a motion for a new trial arguing, inter alia, that the Court did not swear the jury as required by Maryland Rule 4-312(h). The rule states as follows (emphasis added):

"(h) Impanelling the jury. The jurors and any alternates to be impanelled shall be called from the qualified jurors remaining on the list in the order previously designated by the court and shall be sworn. The court shall designate a juror as foreman."

At the hearing on the motion for a new trial, the trial judge disputed Harris's contention that jury was not sworn. The judge stated:

"The jury was sworn. What he's talking about — I was trying to figure out what he was talking about there. The jury was sworn, but what happened is they came over on a day we actually didn't start the trial until the next day. And I hadn't even voir dired the jury yet and we started over. He wanted me to swear — I didn't know what he meant by it. But before the trial began, jury was sworn. So, I think that's what he was referring to. My memory is backed up by the file.

* * *

"I'm not sure of the date, but like the 28th versus the 29th, when the case began, you requested that I swear them ahead of time and this was before the voir dire took place. I couldn't reach them that day. We started the next day. That's when the voir dire took place. That is when the jury was sworn."

In response to the Judge's statements, defense counsel explained as follows:

"As far as the chronology of the case, I would suggest to the Court that we selected a jury in the morning of the first day of trial. We concluded the selection at lunchtime. A lunch break was taken. Opening argument and testimony began in the afternoon upon our return from the lunch break. It was a two day trial where, at the close of that day, the trial continued to the next morning and that is when it concluded. The jury was not sworn. I viewed the transcript — I viewed the tape of this trial and prior to the luncheon break, I asked the Court to have the jury sworn and, according to the transcript, the Court's response was the jury was going to lunch. And when we returned from the lunch break, the trial began, opening arguments began, and I don't believe the jury was sworn."

The judge denied Harris's motion for a new trial, saying:

"I have considered the arguments of counsel and reread my notes with respect to the file. I do not have a transcript in which to refer to each item individually, only from my memory. I find that the evidence has been properly presented, that the jury was sworn and that the motion for a new trial is denied."

Harris appealed to the Court of Special Appeals, arguing, inter alia, that the trial court erred in not swearing the jury. In a reported opinion, Harris v. State, 173 Md. App. 71, 917 A.2d 1162 (2007), the intermediate appellate court held that the trial court properly denied Harris's motion for a new trial. The court noted that there "is a strong presumption that judges and court clerks ... properly perform their duties." Harris v. State, supra, 173 Md. App. at 82, 917 A.2d at 1168-1169, quoting Schowgurow v. State, 240 Md. 121, 126, 213 A.2d 475 (1965). According to the intermediate appellate court, "it was then incumbent upon Harris to persuade the trial court that, in fact, the jurors had not been given an oath" and that Harris failed to persuade the trial court. Harris v. State, 173 Md.App. at 84, 917 A.2d at 1169. The Court of Special Appeals relied on the trial judge's recollection, stating that "we are satisfied that the court's references to its recollection of the swearing of the jury, and Harris's failure to offer evidence to the contrary, result in Harris having failed to carry his burden of persuasion." Harris, 173 Md.App. at 85, 917 A.2d at 1170. Citing United States v. Pinero, 948 F.2d 698 (11th Cir.1991), the Court of Special Appeals stated that "the absence of an affirmative statement in the transcript that the jury was sworn furnishes no factual support for appellant's contention that it was not." Harris, 173 Md.App. at 83, 917 A.2d at 1169. The Court of Special Appeals did not mention the docket entry stating that the jury was not sworn.

The Court of Special Appeals did reject an argument by the State that Harris waived his objection to an unsworn jury by not raising the issue in a timely manner. In so holding, the intermediate appellate court explained that "we are satisfied that counsel's two inquiries to the court regarding swearing of the jury were sufficient to negate the State's waiver argument." Harris, supra, 173 Md.App. at 79, 917 A.2d at 1166.

Harris filed in this Court a petition for a writ of certiorari, presenting the following two questions:

"1. Did the trial judge court err in not swearing the jury?

"2. Did the trial court unfairly restrict the defense closing argument by preventing counsel from arguing problems with eyewitness identification?

The State, in its answer, argued that Harris had failed to overcome the presumption of regularity and that, alternatively, the failure to swear the jury was harmless error. The State also filed a conditional cross-petition for a writ of certiorari, presenting the following question:

"Is Harris's claim that the jury was not sworn waived where he did not bring it to the attention of the trial court until nine days after the jury returned its verdict and Harris was sentenced?"

We granted both the petition and the cross-petition. Harris v. State, 399 Md. 592, 925 A.2d 632 (2007). We shall hold that Harris did establish that the jury was not sworn, that there was no waiver of Harris's objection to the unsworn jury, and that, under the circumstances of this case, the harmless error doctrine is not applicable. We shall, therefore, reverse on the ground that the jury was never sworn. Accordingly, we shall not reach the second question presented in Harris's certiorari petition.

II.

There is a presumption of regularity which normally attaches to trial court proceedings, although its applicability may sometimes depend upon the nature of the issue before the reviewing court. See, e.g., United States v. Morgan, 346 U.S. 502, 512, 74 S.Ct. 247, 253, 98 L.Ed. 248, 257 (1954) ("It is presumed the [trial court] proceedings were correct and the burden rests on the [challenger] to show otherwise"); Skok v. State, 361 Md. 52, 78, 760 A.2d 647, 661 (2000) ("[A] presumption of regularity attaches to the criminal case"); Beales v. State, 329 Md. 263, 273, 619 A.2d 105, 110 (1993); Schowgurow v. State, supra, 240 Md. at 126, 213 A.2d at 479. Nonetheless, the presumption of regularity is rebuttable. Beales v. State, supra, 329 Md. at 274, 619 A.2d at 110-111. ("[W]hen viewed as a whole," the "record thus demonstrates" that the presumption of regularity was rebutted).

In the present case, both the trial transcript and the docket entries rebut any presumption of regularity. The trial transcript clearly shows that the jury was not sworn before the jurors were dismissed for lunch. When the jury reconvened after lunch, the transcript reveals that the Circuit Court proceeded directly with opening statements, without the oath being administered to the jury. According to the trial transcript, which the official reporter of the Circuit Court certified as being "complete and accurate," the jury was not sworn at any point...