Hood v. State
| Decision Date | 01 September 1992 |
| Docket Number | No. 96,96 |
| Citation | 334 Md. 52,637 A.2d 1208 |
| Parties | , 45 A.L.R.5th 895 Samuel HOOD v. STATE of Maryland. , |
| Court | Maryland Court of Appeals |
Martha G. Weisheit, Asst. Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for petitioner.
Annabelle L. Lisic, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. of Maryland, on brief), Baltimore, for respondent.
Argued before ELDRIDGE, RODOWSKY, McAULIFFE, * CHASANOW, KARWACKI, ROBERT M. BELL and CHARLES E. ORTH, Jr., Judge of the Court of Appeals (Retired, Specially Assigned), JJ.
This case involves a claim of error arising from a mid-trial substitution of the presiding judge over the objection of the defendant.
Samuel Hood was indicted in Baltimore City for first degree murder, use of a handgun in the commission of a felony, carrying a handgun, and related offenses. On 4 January 1991, trial by jury commenced before Judge John N. Prevas. The trial resumed on 7 January 1991 and continued through 8 January, when Judge Prevas fell ill and was replaced during the noon recess by Judge Edward J. Angeletti. Judge Angeletti presided over the balance of the trial. Although the jury found the defendant not guilty of first degree murder, it returned verdicts of guilty on the counts charging second degree murder, use of a handgun in the commission of a felony, and carrying a handgun.
On 12 February, the defendant's motion for a new trial was heard and denied by Judge Prevas. Judge Prevas imposed sentences of 25 years imprisonment for the murder conviction and 20 years concurrent for the use of a handgun. The conviction for carrying a handgun was merged. The defendant appealed and the Court of Special Appeals affirmed in an unreported opinion, holding that the questions of the adequacy of Judge Angeletti's review of the record and of his failure to certify his review of the record were not preserved. 92 Md.App. 745. Alternatively, the intermediate appellate court held that if those questions were preserved, there was no reversible error because a review of the entire record disclosed that Judge Angeletti "was ... sufficiently familiar with the record to permit him to proceed with and finish the trial."
On the morning of 8 January, the third day of trial, Judge Prevas addressed the jury:
Good morning ladies and gentlemen, I apologize for the delay. I've been having, hopefully a slight medical problem. My doctor will tell me whether it's greater or not. I've been [having] some problems with shortness of breath because of a chest congestion and that caused me to be late today, and then we had some legal rulings, but we're ready to resume.
Later in the morning, before the lunch recess, Judge Prevas said:
All right. Ladies and gentlemen, I'm sorry that I'm playing havoc with [your] schedule but my doctor has got to see me to find out whether what I've got is serious or not.
Judge Prevas did not return after the luncheon recess. Judge Angeletti took the bench and announced that he would be presiding for the duration of the trial because Judge Prevas had been admitted to the hospital. Counsel for the defendant stated his client's objection:
I've had an opportunity to speak to my client and explain the circumstances of Judge Prevas being hospitalized.
This case is about to come to its conclusion and because there were some interesting issues generated--There was the self-defense issue generated, he wishes me to ask for a mistrial.
Judge Angeletti denied the motion for a mistrial.
While not a model of clarity, the defendant's objection is sufficient to preserve this issue for our review. The defendant moved for a mistrial when confronted with the fact that the original trial judge could no longer be present and a substitute judge proposed to take over. The defendant did not state a specific reason for his objection, but we believe the general objection he interposed was sufficient to demonstrate that he did not consent to the mid-trial substitution of judges. Cf. von Lusch v. State, 279 Md. 255, 262-63, 368 A.2d 468 (1977) (). In the absence of the defendant's consent, compliance with Maryland Rule 4-361(b), dealing with substitution of a judge during a jury trial, was required. We reject the State's argument that the issues here raised were not preserved.
Maryland Rule 4-361 provides:
(a) After Verdict or Acceptance of Plea.--If by reason of termination of office, death, sickness, or other disability, the judge before whom a defendant has been tried or by whom a plea of guilty or nolo contendere has been accepted is unable to perform an act or duty of the court after verdict or after acceptance of a plea, any other judge authorized to act in that court may sentence the defendant and perform any other act or duty if satisfied that he or she can properly do so.
(b) During Jury Trial in Circuit Court.--If by reason of termination of office, absence, death, sickness, or other disability, the judge before whom a jury trial in circuit court has commenced is unable to proceed with the trial, any other judge authorized to act in that court upon certifying that he or she has become familiar with the record of the trial, may proceed with and finish the trial.
The decision to substitute a judge at any point in the trial is not one to be made lightly. When the role of a substitute judge often involves more than mere caretaking or performance of ministerial duties, it necessarily involves the judge in substantive rulings of evidence, the giving of instructions, and other important decisions requiring thorough knowledge of the entire record. As the Supreme Court of Pennsylvania observed:
The substitution of judges during a case should be carefully guarded and never permitted except under most extraordinary circumstances, and only then when no prejudice can result to the parties. Substitution must be a matter of necessity, where the due administration of justice makes it imperative and without prejudice.
Commonwealth v. Thompson, 328 Pa. 27, 195 A. 115, 116 (1937). See also Randel v. Beto, 354 F.2d 496, 500-01, 503 (5th Cir.1965) (), cert. denied, 387 U.S. 935, 87 S.Ct. 2058, 18 L.Ed.2d 996 (1967).
Rule 4-361(b) specifies that the substitute judge shall certify that "he or she has become familiar with the record of the trial...." Exactly how this must be accomplished, and the precise extent of the knowledge of the record that is required, may depend upon the stage in the trial at which the substitution is made and the additional duties the substitute trial judge may be called upon to perform. The latter factor is to some extent dependent on the former, but may also be affected by the anticipated nature and duration of the substitution. Assuming responsibility for the entire remaining conduct of a trial entered in midcourse presents problems quite different from those presented by a temporary substitution for a limited purpose. See Gibson v. State, 334 Md. 44, 51, 637 A.2d 1204 (1994) filed today (where substitution is temporary and function of substitute judge is that of caretaker performing only ministerial duties, Rule 4-361(b) is not implicated).
Addressing the requirements of Rule 4-361(b) in the context in which the Rule is ordinarily intended to apply, i.e., when there is a required substitution of the trial judge during a jury trial and anytime before verdict, the ordinary method a judge should use to "become familiar with the record of the trial" is to read, or to have read to him or her, a written transcript of the previous proceedings, or in the case of an audio or video record, to listen to the prior proceedings. 1 The judge must then file, or dictate into the record, a certification that he or she has become familiar with the record of trial. The judge should include in this certification the means used to gain familiarization, so that a timely objection may be interposed if a party believes the method employed is inadequate, or believes for any other reason that substitution would not comport with due process of law.
With the consent of the parties, a judge proposing to substitute for another judge may gain the requisite familiarity with the record through other means, such as receiving from counsel an agreed statement of preceding testimony and proceedings, or through agreed proffers and limited review of certain portions of the record. The object is, of course, to ensure that the judge has a sufficient grasp of the prior testimony and proceedings to be able to fairly and effectively exercise his or her discretion with respect to rulings thereafter required, and to properly instruct the jury. Any method the parties and the judge can agree upon will suffice, provided the substitute judge is ultimately satisfied of his or her ability to continue with and finish the trial. The certification of the trial judge should specify the method or methods agreed upon and utilized to gain familiarization with the record.
Standard 15-3.3 of the American Bar Association's Standards for Criminal Justice (2d ed. 1986 Supp.) provides as follows:
If, by reason of death, sickness, or other disability, the judge before whom a jury trial has commenced is unable to proceed with the trial, another judge, upon certifying that he or she has familiarized himself or herself with the record of the trial, may proceed with and finish the trial.
The Commentary to that Standard is instructive:
This standard supports the view taken by the federal Advisory Committee on...
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