Leckliter v. State

• Decision Date: 01 September 1987
• Docket Number: No. 1205,1205
• Citation: 540 A.2d 847,75 Md.App. 143
• Parties: Eugene Louis LECKLITER, Jr. v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 143

75 Md.App. 143

540 A.2d 847

Eugene Louis LECKLITER, Jr. v. STATE of Maryland.

No. 1205, Sept. Term, 1987.

Court of Special Appeals of Maryland.

May 6, 1988.

Lisa Ann Kershner, Assigned Public Defender (Alan H. Murrell, Public Defender and Isaac S. Kershner, Assigned Public Defender, on the brief), Baltimore, for appellant.

Kreg Paul Greer, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, Alexander Williams, Jr., State's Atty. for Prince George's County and Kathleen A. Evans, Asst. State's Atty. for Prince George's County, on the brief, Upper Marlboro), for appellee.

Argued before MOYLAN, BLOOM and POLLITT, JJ.

POLLITT, Judge.

Eugene Louis Leckliter, Jr., the appellant, was involved in an altercation with one David Wilson in the latter's estranged wife's apartment. There was evidence from which a jury could find that Wilson had been severely beaten with a "billy club." After a three day trial, interrupted by a weekend and Memorial Day Holiday, a Prince George's County jury convicted appellant of assault with intent to disable and carrying a deadly weapon. From the judgments entered on those convictions, he appeals, presenting a single question for our review, which he states as:

Did the court authorized separation of the jury after deliberations had begun, effected without admonishment and without appellant's and defense counsel's knowledge, constitute reversible error?

Perceiving no prejudicial error, we shall affirm.

The record shows that the case was submitted to the jury for deliberation on Tuesday, May 26, 1987, at 11:17 a.m. When the court reconvened, without the jury, at 2:14 p.m., defense counsel advised the court:

I saw the foreman of the jury and the gentleman next to him eating lunch together at the Store. Apparently the Court, or someone at the Court's direction allowed them to go to lunch without the defendant being present and therefore, allowing them to separate during a period that was my impression, that the case had been submitted to the jury for them to deliberate. It is my impression from reading the cases that it is in the Court's discretion to let them go or not and that is based upon the Rule 4-311(c) and the Courts and Judicial Proceedings, 8-304.

After expressing his belief that he should have had an opportunity to object to the separation, he said:

I would like to indicate on the record that I became aware of it only ex post facto. I don't know what instruction was given to the jury and I believe an instruction was given to them outside the hearing of the defendant.

I would like to know what instruction was given them so we might place it on the record, and would make a motion for a mistrial at this time.

After further legal argument, the following colloquy occurred:

THE COURT: Mr. [defense counsel], I don't mind listening to any arguments you want to give me, but since that case, the Maryland Rules give the Court the discretion to be unsequestered during the period of sequestion [sic].

Now, are you saying that I abused my discretion?

[COUNSEL]: Yes, sir, I think you allowed the jury to go without asking the defendant if he had objection for them to go.

THE COURT: Why should I ask the defendant if he has any objection at all? When I have the discretion. Suppose he says yes, I object, judge.

Fine, your objection is for the record, but I am still going to let them go to lunch and, that is what happened.

Counsel then shifted the focus of his inquiry to what instructions may have been given the jury when it was allowed to separate, stating ... I think that the defendant has an absolute right to be present at any instruction the Court may give to a jury and that is why it is important that he be present when the Court exercise[s] its discretion.

The court responded:

No instructions were given to the jury. I have standing instructions to my bailiff, if the jury is deliberating and it goes to the lunch hour, and they knock and say I want to go to lunch, he says fine. Go to lunch and be back within the hour. And recommence your deliberations. I gave them no instructions. But that is the standard.

You asked me to tell you what instructions that were given. I am telling you the only thing they were told to do, if you want to go to lunch, go to lunch and be back in an hour.

Counsel then questioned the propriety of allowing the jury to separate without specific admonitions not to discuss the case and "not to deliberate separately."

THE COURT: I think the record will show at the beginning of this case and at the recess of this case on Thursday, I told the jurors that they were not to discuss commencing [sic] the case among themselves, they were not to discuss it with anybody else, they were not to let anybody discuss this case with them until they retired to commence their deliberations. I don't think it is necessary for the Court, every time you recess, to repeat that instruction. So be that as it may, you have your motion for a mistrial. Your motion is denied.

Counsel made no proffer that the jurors had, while separated, discussed the case, either between themselves or with any other person. He did not, either then or when the jury later returned with a verdict, ask to voir dire the jury to determine if any impropriety had in fact occurred.

At the subsequent argument on motion for a new trial, the matter was raised again.

[COUNSEL]: Your Honor, the jury went out for deliberation. I was over at the delicatessen during deliberation and I saw two members of the jury outside of the jury room taking lunch. I didn't know what they were discussing. I brought it to the attention of the Court. It is my impression that the Court, by allowing the jury to break, it was predidicual [sic] for my client.

THE COURT: I let them break for lunch.

[COUNSEL]: While they were deliberating. Yes, Sir, Your Honor.

THE COURT: But you have no indication that they were discussing the case?

[COUNSEL]: No, Sir.

THE COURT: Hearing no good reason, your motion is denied.

We observe that on at least five occasions during the trial the jurors were admonished. Before opening statements, they were told, among other things:

When you recess, don't discuss this case among yourselves one on one; two jurors getting together and talk about the case. No jurors should talk about this case to other jurors, unless all jurors hear what you are saying. That is why you are not to discuss the case until I give it to you and you go to the jury room and start to deliberate. Then that is the time to start discussing about the case.

They were told not to discuss the case with any other persons at any time during any recesses in the trial until "after the case is all over." Similar admonitions were given them before each overnight recess, before luncheon recess on the second day, and before an afternoon recess during the second day of trial. For instance, prior to lunch on the second day of trial, the jurors were told:

During the recess, do not discuss the case with yourselves or let anybody else talk to you about it and, be back in the box at 1:30. You are now excused for lunch. Leave your pads there.

We think it is clear that the jurors understood their duties and, in the absence of evidence to the contrary, we assume they followed the court's instructions.

Appellant acknowledges that Rule 4-311(c) provides:

The court, either before or after submission of the case to the jury, may permit the jurors to separate or require that they be sequestered.

He posits, nonetheless, that reversal is mandated in this case because (1) the court failed to exercise proper judicial discretion; (2) appellant was denied the effective assistance of counsel; and (3) appellant was denied his right to be present when the decision to allow the jury to separate was made. Before discussing those issues, we examine the history of Rule 4-311(c).

In Magwood v. State, 46 Md.App. 668, 420 A.2d 1253 (1980), we held that, absent an emergency, a jury in a criminal case could not be separated during its deliberative process unless the record affirmatively showed the personal consent of the accused. That holding was followed in Leach v. State, 47 Md.App. 611, 425 A.2d 234, cert. denied, 290 Md. 717 (1981), cited by appellant, but there we held there was no error because the record demonstrated that "the appellant knew that he had a right to insist that the jury remain sequestered and that he knowingly waived that right and consented to the separation of the jury." 47 Md.App. at 625, 425 A.2d at 241. Our holding in Magwood was reversed by the Court of Appeals in State v. Magwood, 290 Md. 615, 432 A.2d 446 (1981).

The Court of Appeals observed that the facts of that case made it unnecessary to decide whether a defendant was entitled to be present when the decision to allow the jury to separate was made. It held that, if such a right existed, it was not one that could only be waived by the defendant personally. It acknowledged that earlier cases had recognized certain differences between separating the jury during the evidentiary stage of trial and during deliberations but was critical of the lack of logic supporting those distinctions. ¹ At the same time, the Court recognized that Maryland Code (1974, 1980 Repl.Vol.) § 8-304 of the Courts and Judicial Proceedings Article provided: ²

The jurors sworn to try a criminal action may, at any time before the submission of the case to the jury, in the discretion of the court, be permitted to separate or may be kept in charge of proper officers.

State v. Magwood, supra, 290 Md. at 619-20, 432 A.2d at 448.

As the Court observed in Midgett v. State, 223 Md. 282, 292-93, 164 A.2d 526, 532 (1960), cert. denied, 365 U.S. 853, 81 S.Ct. 819, 5 L.Ed.2d 817 (1961), that statute, first enacted by Ch. 385 of the Acts of 1935, originally applied to both civil and criminal cases, but was amended by Ch. 399 of the Acts of 1957 to delete the reference to civil cases after the Court...