Jenkins v. State

• Decision Date: 12 June 2003
• Docket Number: No. 107,107
• Citation: 375 Md. 284,825 A.2d 1008
• Parties: Marvin JENKINS v. STATE of Maryland.
• Court: Maryland Court of Appeals

825 A.2d 1008

375 Md. 284

Marvin JENKINS v. STATE of Maryland.

No. 107, Sept. Term, 2002.

Court of Appeals of Maryland.

June 12, 2003.

Sherrie B. Glasser, Asst. Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for petitioner/cross-respondent.

Zoe Gillen White, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for respondent/cross-petitioner.

Argued Before BELL, C.J., and ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ.

CATHELL, Judge.

Marvin Jenkins, petitioner, seeks review of a judgment of the Maryland Court of Special Appeals affirming a trial judge's dismissal of petitioner's motion for a new trial. As relevant here, that motion had alleged, as grounds, an improper contact between a juror and a detective witness for respondent, the State of Maryland.

After various pre-trial motions were heard, petitioner was tried by a jury from March 19th to March 30th, 2001. Petitioner was convicted in the Circuit Court for Montgomery County on several counts stemming from an April 13, 2000 shooting. He was convicted of second degree murder of Steven Dorsey, Jr., use of a handgun in the commission of a crime of violence as a result of his actions in the shooting, and he was convicted of attempted first degree murder, attempted second degree murder and first degree assault on Michael Clark, a companion of Dorsey during the incident.¹ He was found not guilt of conspiracy to commit first degree murder.

The trial judge sentenced petitioner to the following: thirty years imprisonment for the second degree murder conviction in respect to the victim Dorsey; a consecutive term of ten years imprisonment for the use of a handgun in the commission of a crime of violence conviction; a consecutive term of twenty years for the conviction of attempted first degree murder and a concurrent twenty-year sentence for first degree assault of Clark.²

On April 9, 2001, petitioner filed a motion for a new trial pursuant to Md. Rule 4-331(a),³ including, as one ground, that there had been improper contact between a State's witness and a juror during the trial causing prejudice to petitioner and thus precluding his right to a fair trial. It is only this issue that is before us. The evidentiary hearing on the motion for a new trial was held on April 19, 2001, and counsel's arguments on the same motion were heard on June 20, 2001. On July 13, 2001, the trial judge issued an order denying the motion for a new trial, finding that the State's witness' contact with a juror constituted improper conduct, but that the conduct, under the circumstances in this case, did not prejudice petitioner.

Petitioner filed an appeal to the Court of Special Appeals. On September 4, 2002, the Court of Special Appeals affirmed the trial court's ruling in denying the motion for a new trial. Jenkins v. State, 146 Md.App. 83, 806 A.2d 682 (2002). The Court of Special Appeals used an "abuse of discretion" standard to determine that, while the contact between the witness and the juror was improper, the trial court did not abuse its discretion in finding that the State properly rebutted any presumption of prejudice, if such a presumption even existed.⁴ Id. at 116, 806 A.2d at 701.

Petitioner then filed a Petition for Writ of Certiorari to this Court. Along with an answer to that petition, the State filed a Conditional Cross-Petition, to which petitioner replied. The State subsequently submitted a reply brief to petitioner's reply to the State's Cross-Petition. On December 19, 2002, this Court granted both petitions. Jenkins v. State, 372 Md. 429, 813 A.2d 257 (2002). In his brief, petitioner presents one question for our review:

"Did the trial judge err in refusing to grant Petitioner's motion for a new trial after it was ascertained that one of the jurors engaged in ex parte communications with a crucial state's witness during the trial?"

Respondent presents this Court with two questions:

"1. Did the Court of Special Appeals properly affirm the lower court's refusal to grant Jenkins's motion for new trial?

"2. Has Supreme Court precedent eviscerated the holding of Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954), that a presumption of prejudice arises when improper communication with a juror occurs?"

We hold that denial of petitioner's motion for a new trial was a clear abuse of discretion under the specific egregious circumstances in the case sub judice, where, during a recess in a criminal trial, both the juror and the State's detective witness clearly ignored the trial court's orders prohibiting interaction between jurors and witnesses, where the juror not only intentionally sought out interaction with the detective during a weekend religious retreat, but, after such retreat, went to lunch with the detective while the trial was still pending and where they discussed personal details of their lives,⁵ and the State's detective witness drove the juror to his car in her own personal vehicle. Regardless of whether details of the ongoing trial were discussed, personal and prolonged contact as occurred in this case not only interjects an inherent prejudice to petitioner in the form of possible bias in favor of the State's case, but also creates an appearance of serious impropriety and causes subsequent serious harm to the perception of the integrity of the jury process itself.

I. Facts

A. Background Facts

On April 13, 2000, Michael Clark, Stephen Dorsey, Jr. and several friends were spending the day smoking PCP and marijuana, when, after nearly six hours of using drugs, Clark briefly blacked out. Later, at approximately 8:40 p.m., the group went to the home of Sean Riley and continued to smoke PCP. Clark admitted to being under the influence of drugs to the extent that he needed assistance when walking after this session of using drugs. After leaving Riley's home with Dorsey, walking up the street and vomiting, Clark alleged that he became more sober. Clark testified that at approximately 11:15 p.m., two men, unknown to Clark at the time, approached him and Dorsey while they were walking near the corner of Spring and Douglas Streets in the Lincoln Park area of Montgomery County. One of the men, later identified as David Barnett, a co-defendant of petitioner, informed Dorsey that Barnett was looking for him. Dorsey responded by saying, "I still got that for you." Clark stated that the other man, the petitioner, walked to a parked car and Barnett pulled out a gun and started shooting. Clark fled.

After unsuccessfully attempting to find assistance, Clark returned to the scene of the shooting and saw Dorsey laying on the ground. The police soon arrived and Officer William Nierberding was unable to immediately procure information from the "emotionally upset" Clark. Clark, however, soon gave a brief description of the two assailants and was placed in the backseat of a police cruiser where Detective Patricia Pikulski interviewed him for approximately 45 minutes.⁶

Detective Pikulski testified that Clark was emotional and "somewhat evasive" with his responses to her questions. Clark told her that he and Dorsey were not walking together and that he could not hear the conversation between the two men who approached Dorsey. Detective Pikulski testified that Clark was coherent and did not appear to be under the influence of drugs. Later, however, Clark changed this story and testified that he did overhear the conversation and said that he lied to the police because he was afraid of the police due to the fact that he was high on drugs. Barnett and petitioner were tried separately for their actions related to this shooting.

B. Witness/Juror Interaction

The Petition to this Court stems from an extensive non-incidental, improper contact between a juror and Detective Pikulski⁷ during the weekend of March 23rd and 24th, 2001. Detective Pikulski was called as a State witness and testified in petitioner's trial on Wednesday, March 21, 2001. In addition to her testimony, the defense marked her notes, taken during her interview with Mr. Clark immediately after the shooting, as an exhibit and questioned her about them. On re-direct examination, those notes were read into the record as evidence. After she concluded her testimony, the trial court stated the following:

"You may step down and ... you are subject to the subpoena but you may leave. There is a rule on witnesses so don't discuss your testimony with any other witness or permit any other witness to discuss their testimony with you. We will notify you if we need you at a future time."

On April 4, 2001, after the jury had issued their verdict in petitioner's case and after the trial court had accepted its verdict, Detective Pikulski had reason to be present in the State's Attorney's Office for a matter unrelated to petitioner. While there, Detective Pikulski saw the prosecutor in petitioner's case and told her, during a casual conversation, that she had contact with Mr. McDonald,⁸ a juror, at a religious retreat during the course of the trial. The State's attorney immediately contacted the court and defense counsel. The next day, six days after the jury convicting petitioner rendered its verdict and that verdict was accepted and the jury discharged, an emergency hearing took place. On April 19, 2001, the trial court heard testimony from Detective Pikulski and Juror McDonald.⁹ They testified regarding the extensive contact they had during and immediately following a weekend religious retreat in Virginia that the two had attended while the proceedings against petitioner were in mid-trial.

Juror McDonald testified that he attended a small religious retreat, i.e., 25-30 people were in attendance, from Friday evening, March 23, 2001, until Saturday afternoon, March 24, 2001. Juror McDonald said that on Friday evening he recognized Detective Pikulski from the trial and first attempted to avoid contact with her. Later, in violation of the...