Hayes v. State

• Decision Date: 27 August 1999
• Docket Number: No. 153,153
• Citation: 735 A.2d 1109,355 Md. 615
• Parties: John Edward HAYES v. STATE of Maryland.
• Court: Maryland Court of Appeals

735 A.2d 1109

355 Md. 615

John Edward HAYES v. STATE of Maryland.

No. 153, Sept. Term, 1998.

Court of Appeals of Maryland.

August 27, 1999.

Nancy S. Forster, Assistant Public Defender (Stephen E. Harris, Public Defender, Gina M. Serra, Assistant Attorney General, on brief), Baltimore, for petitioner.

Sarah Page Pritzlaff, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General of Maryland, on brief), Baltimore, for respondent.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, RAKER, WILNER, CATHELL and ROBERT L. KARWACKI (retired, specially assigned), JJ.

WILNER, Judge.

Petitioner, John Hayes, was convicted by a jury in the Circuit Court for Baltimore County of robbery with a deadly weapon, use of a handgun in the commission of a crime of violence, and related offenses, for which he was sentenced to a total of 25 years in prison. The Court of Special Appeals affirmed the judgment. Hayes v. State, 123 Md.App. 558, 720 A.2d 6 (1998). The single issue before us is whether the trial court erred in replacing a regular juror with an alternate juror after (1) the jury had left the courtroom to begin deliberations, and (2) the alternate juror had been excused by the court but had not yet left the courthouse. On the record in this case, we conclude that the court did err, and we shall therefore reverse the contrary judgment of the Court of Special Appeals.

BACKGROUND

The underlying facts of the case are not relevant to the issue before us and need not, therefore, be recounted. All that is important is what occurred in the courtroom following closing arguments. Immediately upon the conclusion of the State's rebuttal argument, the judge informed the alternate juror that, "because we have twelve able bodied jurors, as it turns out, your services will not be required for the balance of the case." The judge thanked the alternate juror for his services, directed him to retrieve any belongings he had in the jury room, and said that "then you are excused with our sincere thanks." The judge then informed the remaining jurors that they may retire to the jury room— "[t]he jury may retire to deliberate upon the verdict with the notes, the evidence and the tape recorded instructions," following which the transcript shows "(Jury excused)." The record does not indicate what time it was when the jury was excused.

Prior to the court going into recess, defense counsel asked that the jurors be given a hard copy of the judge's instructions, which the court said was not possible, and renewed his motion for judgment of acquittal which, after some argument, the court denied. The court then went into recess, although, again, the time was not recorded.

The transcript next shows:

"THE COURT: The record will indicate it is three minutes before one, approximately. The defendant has been returned to the courtroom.

Mr. Hayes, we have, as soon as the jury left and were to begin deliberations, one of the jurors, specifically number ten, indicated she was ill.

The alternate, although excused, had not left the building and is also available. So before we begin deliberations, it is my intention to excuse juror number ten and substitute the alternate.

I want you to be aware of that. I think it is necessary for us to do that because of the illness of the juror.

Do you understand, sir?

THE DEFENDANT: Yes."

Defense counsel objected, noting that the juror had "sat there all morning" and "was not obviously, evidently ill," that she "was able to listen attentively and did not interrupt the proceeding or in any way seem to have to tend to her illness, blow her nose or anything like that." He added, "I don't think any of us had any idea she was feeling under the weather." The court responded:

"She indicated earlier. I happened to see her, she came into chambers, and I said, can I help you, and she said, I am taken care of.

But apparently they were heating tea for her in the earlier break. She was not feeling well. She had stomach problems or something. So it is not brand new."

Counsel renewed his objection, but the court ruled that "[t]he alternate will be substituted for juror ten and deliberations will now be begun. They have not yet begun."

The newly constituted jury returned a conviction and Hayes appealed, presenting the argument that (1) an alternate juror may not be substituted after the jury retires to deliberate, (2) juror number ten should, in any event, have been questioned to determine whether her dismissal was warranted, (3) the alternate juror should have been examined to determine whether he had been tainted after being excused, and (4) the error was not harmless.

With respect to the main issue, of whether the court had the authority to substitute the alternate, the Court of Special Appeals noted that, under Maryland Rule 4-312(b)(3), an alternate juror may not be substituted for a regular juror after the jury "retires to consider its verdict." That rule, it held, was similar to Federal Rule of Criminal Procedure 24(c), and the court looked to several Federal cases interpreting the Federal rule. Under those cases, the court held, the phrase "retires to consider its verdict" contemplates "the actual commencement of deliberations." Hayes, supra, 123 Md.App. at 573, 720 A.2d at 14. In this case, the court continued, the trial judge expressly found that deliberations had not yet commenced; ergo, no error.

As part of his argument, Hayes contended that there were other options potentially available to the trial court, such as declaring a mistrial, proceeding with eleven jurors, or recessing court until the next day, to see if the ailing juror recovered. The Court of Special Appeals held that, as that argument had not been presented to the trial court, it was not preserved for appellate review and that, in any event, the choice among the options was a matter within the trial court's discretion. The appellate court agreed that "the better practice would have been to question the juror on the record" but found that the judge's prior contacts with the juror constituted a sufficient basis for him to conclude that the juror was, indeed, ill and unable to continue. Id. at 578, 720 A.2d at 16. Finally, as to the third point, the court held that, not only did Hayes omit to ask that the trial court examine the alternate juror but that his objection went only to the discharge of juror number ten and not to the substitution of the alternate juror, and, for those reasons, was unpreserved.

DISCUSSION

Three sub-issues are presented in Hayes's argument concerning the substitution of the alternate juror: (1) at what point, for purposes of Md. Rule 4-312(b)(3), is the jury considered to have "retire[d] to consider its verdict"; (2) may a person who was an alternate juror be substituted for a juror after that person has been excused as an alternate juror, and, if so, under what circumstances; and (3) when an objection is made to the contemplated substitution of an alternate juror in this setting, is it incumbent upon the defendant to suggest a procedure for the court to follow in order to preserve the full force of the objection? These sub-issues coalesce, however, and we shall deal with them together.

The Meaning Of Rule 4-312(b)(3)

The use of alternate jurors was not part of the common law tradition. As described by Judge Gilbert for the Court of Special Appeals in James v. State, 14 Md. App. 689, 699-700, 288 A.2d 644, 650 (1972):

"At common law, according to the established precedents, when, during a trial, a defect in jurors occurred because of the death, illness, or misconduct of a juror or other cause necessitating his discharge, the practice was to discharge the entire jury and begin de novo by forming a new jury panel. Eleven of the twelve discharged jurors were immediately recalled, an alternate juror was seated, replacing the excused juror, thus completing the twelve. The new jury was then impaneled de novo, allowing the full number of challenges with respect to the eleven jurors recalled, as well as with respect to the new juror."

See also David B. Sweet, Propriety, under State Statute or Court Rule, of Substituting State Trial Juror with Alternate after Case Has Been Submitted to Jury, 88 A.L.R.4th 711, 720 (1991).

To remedy the problems engendered by that practice, Congress, in 1932, authorized the selection and retention of alternate jurors in Federal criminal cases whenever the trial was likely to be a protracted one. See 47 Stat. 380, 28 U.S.C. § 417a. The Act directed that alternate jurors be discharged "upon the final submission of the case to the jury" and allowed the substitution of an alternate juror "before final submission of the case." In 1939, the Maryland Legislature enacted a statute that was very similar to the Federal one, but made it applicable in both civil and criminal cases. 1939 Md. Laws, ch. 245. The Maryland statute also permitted a substitution "before final submission of the case." In 1946, Federal Rule of Criminal Procedure 24(c), which had been in the development stage for several years, was promulgated. That rule adopted a different articulation for when a substitution may occur—prior to the time the jury retires to consider its verdict. Two years later, the Federal statute was repealed.

In 1957, we adopted Maryland Rule 543b.,providing for alternate jurors in civil cases, following which the Maryland statute was amended to apply only to criminal cases. We patterned the rule after the existing Maryland statute, however, rather than after the Federal rule. Rule 543b. thus required the discharge of the alternate juror upon "final submission of the action" and permitted a substitution only before that event. In 1961, as part of a general revision of the rules of criminal procedure, we adopted Maryland Rule 748. That rule, in contrast to its civil counterpart, followed the language of Federal Rule of Criminal Procedure 24(c) and thus introduced into Maryland law the current standard of...