Johnson v. State

Decision Date13 January 1999
Docket NumberNo. 51,51
Citation352 Md. 374,722 A.2d 873
PartiesJohn Howard JOHNSON v. STATE of Maryland.
CourtMaryland Court of Appeals

Deborah Liu (William H. Murphy, Jr., William H. Murphy, Jr. & Assoc.), Baltimore, for petitioner.

Thomas K. Clancy, Asst. Atty. Gen. (J. Joseph Curran, Jr., on brief), Baltimore, for respondents.

Argued before BELL, C.J., RODOWSKY, CHASANOW, RAKER and CATHELL, JJ., ROBERT L. KARWACKI, Judge (retired), Specially Assigned, and ELLEN L. HOLLANDER, Judge, Specially Assigned.


The conduct of the presiding trial judge in this case requires us to reverse petitioner's criminal conviction.1 Petitioner asks us to determine whether a "presumption of prejudice" is created by inappropriate conduct such as the conduct that occurred in this case or whether a stricter standard of "actual prejudice" must be demonstrated before a reversal is warranted. Because we believe petitioner suffered actual prejudice at his trial below, we shall not address whether a "presumption of prejudice" would exist.


We first shall review briefly the facts leading up to the trial. Petitioner John Howard Johnson owned and managed a 7-11 convenience store in Baltimore City. On July 24, 1993, while he was conducting a sales transaction with a customer, petitioner allegedly observed the victim, Andre Burton, shoplifting some goods. Petitioner ran over to Burton and attempted to restrain him, but Burton freed himself and fled the store.

After quickly completing the sale interrupted by the altercation, petitioner armed himself with a handgun and left the premises in his car to search for the alleged shoplifter. Petitioner eventually found and confronted Burton, forced him into petitioner's car at gunpoint and, holding him there, drove away. At some point, Burton attempted to flee. Petitioner shot Burton in the back either while he was exiting petitioner's car or immediately thereafter. According to the defense, the gun accidentally discharged as it became entangled in the straps of a bag Burton attempted to take with him as he fled. Wounded, Burton escaped to a nearby gas station for help but died there before help could be rendered. The defense asserted at trial that petitioner's gun went off accidentally and that he left the scene unaware that Burton had been shot.

Petitioner was indicted in the Circuit Court for Baltimore City of first degree murder, unlawful use of a handgun in the commission of a felony, and illegally wearing and carrying a handgun. A second indictment charged petitioner with kidnaping and the two proceedings were joined. Petitioner was tried by a jury, which convicted him of involuntary manslaughter, illegally wearing and carrying a handgun, and kidnaping. The jury failed to render a verdict as to the unlawful use of a handgun charge. The defense attorney filed a timely notice of appeal to the Court of Special Appeals on petitioner's behalf, but that appeal was dismissed subsequently because a timely brief in conformance with the requirements of Rule 8-503 was not filed. Petitioner, however, was granted post-conviction relief by the Circuit Court for Baltimore City due to ineffective assistance of counsel in that appeal. The remedy granted was this belated appeal. The Court of Special Appeals affirmed petitioner's convictions and we subsequently granted certiorari.

Petitioner argues several points on appeal, but his central claim and the only one we shall concern ourselves with is the repeated allegedly inappropriate conduct by the trial judge that, petitioner argues, denied him the right to a fair and impartial trial.

The trial commenced, as it ended, with continuous, contentious side disputes between defense counsel and the trial judge. Even during his opening statement, defense counsel not only was threatened with contempt of court in the presence of the jury, but was told by the trial judge that if she were to find him in contempt, she would do so in front of the jury.



Now, that's the procedure. Now, during the case—and different judges handle it differently. Some judges simply say "overruled" or "sustained." You may find that this judge makes comments.

THE COURT: ... [D]on't comment on my practice or things I do.


... I—it is not appropriate for you to distinguish my Court from any others as far as the jurors are concerned.
[DEFENSE COUNSEL]: Now, if it please the Court, we should take a balanced view, with as a[sic] little intervention as possible, except to call the balls and strikes, but I'm afraid there is going to be a lot of intervention.
THE COURT: ... I asked you, and I'm going to insist on telling you that you are not to comment about whatever you think of my way of conducting my court.


THE COURT: The jurors are to take what they hear in this courtroom and not hear it from you.
[DEFENSE COUNSEL]: And, of course, the law is that whoever is presiding should—if they make comments, should—
THE COURT: ... [I]f you do any more of this, I am going to find you, in front of this jury, in contempt of the Court. Now, stop it right now, and stop it throughout the trial.
[DEFENSE COUNSEL]: And counsel has the duty to make objections if counsel feels that the presiding authority has gone too far. There will be a lot of objections in this case.
Now, we are—and I want to explain that because if you don't explain it to the jury in advance sometimes they misunderstand what's going on.
Now, in this particular case this is going to be a hard-fought case. And I want to ask you to forgive me if you think I'm fighting too hard because I'm going all out in this case....


Now, before we get into the facts, just let me point out one other procedure. Both Ms. Saxon and I are not rookies. Ms. Saxon has tried many, many, many murder cases. So have I. So don't get the impression that you need to give either one of us any kind of break or special consideration. We are both pros. We have both been doing it for a long time.
Now, obviously, I'm a lot older than Ms. Saxon so I've been doing it a little bit longer. But you're not talking about a rookie State's Attorney or a rookie defense lawyer. [Emphasis added.]

Thereafter, throughout the trial, numerous incidents occurred between the trial judge and defense counsel in the presence of the jury: interruptions, insults, and other forms of inappropriate conduct. We note in particular some of these incidents. For instance, a troubling exchange occurred during defense counsel's cross-examination of State witness Mark Tackas, a crime lab technician with the Baltimore City Police Department. During that examination, the trial judge had defense counsel arrested for contempt in front of the jury:


Q. And, ... you also assumed that there may have been a blood trail and so you went to look for one?

MS. SAXON [State's Attorney]: Objection.

THE COURT: He didn't assume it. He saw it....

[DEFENSE COUNSEL]: Judge, will you stop please?

THE COURT: No.... You must ask him properly phrased questions.

[DEFENSE COUNSEL]: I've only been doing this for twenty-five years and, honestly, I've never had this much interference in twenty-five years.
THE COURT: ... [D]o you want a repetition of something that happened?[2] I don't want—
[DEFENSE COUNSEL]: So be it. I want to represent my client.
THE COURT: All right, so be it. Mr. Sheriff, take him back.

[DEFENSE COUNSEL]: Are you going to lock me up again?

THE COURT: Afraid so....

[DEFENSE COUNSEL]: All right, Mr. Sheriff.

THE COURT: We are taking another recess.

[DEFENSE COUNSEL]: —my second arrest.

THE CLERK: All rise, please. [Emphasis added.]

On December 21, 1994, during the cross-examination of another State witness, Alexander Jason, the judge interrupted defense counsel's questioning. She supplied her own version of the question, claiming it to be more proper. When defense counsel asked his version of the question again, the State's Attorney objected, but the trial judge overruled her:

[DEFENSE COUNSEL]. Was it [the seat in petitioner's car] a flat seat like this table?
THE COURT: What kind of seat did the one have that you examined?
[DEFENSE COUNSEL]: Objection, Judge. May I ask my questions, Judge?

THE COURT: Not if you do it improperly. Let's get this done.

[DEFENSE COUNSEL]: Was that improper?[3]

THE COURT: I think mine would have made the same thing much simpler....


Q. Was it a flat seat, Mr. Jason?

MS. SAXON: Objection.

THE COURT: Overruled. Was it? [Emphasis added.]

The exchange that followed was ripe with improper interjections by the judge and retorts by defense counsel. It also involved another contempt citation of him by the judge in front of the jury:

[DEFENSE COUNSEL]: Mr. Jason, was this a bucket seat?

MS. SAXON: Objection.[4] THE COURT: Overruled. What kind of a seat was it[?] Can't he tell us, not what kind of seat it wasn't ... ?

[DEFENSE COUNSEL]: I don't know what to do, Judge.

[THE WITNESS]: Yes, it was a bucket seat.

THE COURT: I know what to do, have him describe the seat.

[DEFENSE COUNSEL]: You want to take over the case? If you try the case for me—
THE COURT [Addressing defense counsel]: ... I'm not going to sit here—
[DEFENSE COUNSEL]:—you will lose it.[5]


Q. Mr. Jason, would how the hand and the gun were positioned have—
THE COURT: Sustained.[6] The preface is improper.
[DEFENSE COUNSEL]: Judge, you are doing all of her work.
THE COURT: ... I am not allowing the questions to be asked in this form.
[DEFENSE COUNSEL]: Judge, can you—can I ask a favor, can you stop interfering?
THE COURT: No. No.... You may not. I'll ask you to obey my rulings.
[DEFENSE COUNSEL]: All right. Do you want to ask the questions because every question I ask is wrong[?]
THE COURT: ... [I]t's contempt again.[7] Please just ask questions in accordance to my rulings which you well understand.


[DEFENSE COUNSEL]. All right, Mr. Jason, she asked for a series of

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  • Drake and Charles v. State, 3021, September Term, 2007.
    • United States
    • Court of Special Appeals of Maryland
    • July 7, 2009
    ...The cases the appellants cite to support their contention of prejudicial error are distinguishable on their facts. In Johnson v. State, 352 Md. 374, 722 A.2d 873 (1999), the trial was tainted throughout by extreme rancor and repeated outbursts by the trial judge. Moreover, the trial judge i......
  • United States v. Márquez-Pérez
    • United States
    • U.S. Court of Appeals — First Circuit
    • August 30, 2016
    ...except in the most extraordinary circumstances. See United States v. Elder, 309 F.3d 519, 520 (9th Cir. 2002) ; Johnson v. Maryland, 352 Md. 374, 722 A.2d 873, 875, 879–81 (1999) (collecting cases).Here, for aught that appears, the trial judge did not command force to counter a physical thr......
  • Kelly v. State
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    • Court of Special Appeals of Maryland
    • May 8, 2006
    ... ...         We have addressed the issue of the trial court's departure from its role as an impartial arbiter mostly in cases where the court questioned the witnesses, the defendant or inappropriately addressed counsel in front of the jury. Johnson v. State, 352 ... Page 437 ... Md. 374, 722 A.2d 873 (1999) (reversing the judgment due to the trial court's order to arrest defense counsel in the presence of the jury, frequent interruptions, the court's own questions preventing the defense from asking his questions); Marshall v. State, ... ...
  • Roach v. State
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    ...455 (1981); Williams v. State, 629 P.2d 54 (Alaska 1981); State v. Ferrell, 186 W.Va. 307, 412 S.E.2d 501 (1991); Johnson v. State, 352 Md. 374, 388, 722 A.2d 873 (1999) (citing favorably Long v. State, 31 Md.App. 424, 432, 356 A.2d 588 (1976)); Rutherford v. United States, 258 F. 855 (2nd ......
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