Magwood v. State

• Decision Date: 14 October 1980
• Docket Number: No. 67,67
• Parties: Aaron Philip MAGWOOD v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 668

46 Md.App. 668

420 A.2d 1253

Aaron Philip MAGWOOD v. STATE of Maryland.

No. 67.

Court of Special Appeals of Maryland.

Oct. 14, 1980.

Patricia A. Logan, Asst. Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

Diane G. Goldsmith, Asst. Atty. Gen. with whom were Stephen H. Sachs, Atty. Gen., Andrew L. Sonner, State's Atty. for Montgomery County, and Mark A. Binstock, Asst. State's Atty. for Montgomery County, on the brief, for appellee.

Argued before GILBERT, C. J., and LOWE and MASON, JJ.

GILBERT, Chief Judge.

We herein hold that whenever a criminal case has been submitted to the jury for its deliberation, a separation of the jury prior to verdict, without the express consent of the accused, is ordinarily reversible error. ¹

The facts giving rise to our holding are uncomplicated. Aaron Philip Magwood (Magwood) was tried in the Circuit Court for Montgomery County for violation of this State's Controlled Dangerous Substances Laws. Md.Ann.Code art. 27, § 286(a)(1).

On appeal to this Court, Magwood argues that 1) the trial court erred when it allowed the jury, after deliberations on the verdicts had begun, to separate overnight; and 2) error was committed when a State's witness was permitted to testify "as to his previous contacts with the (a)ppellant."

The State asserts that Magwood waived the right to object to the separation of the jury, and that there was no error in the admission of the challenged testimony.

Md.Cts. and Jud.Proc.Code Ann. (1980 Repl.Vol.) § 8-304 provides:

"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." (Emphasis supplied.)

The Maryland cases unanimously hold that it is permissible, in the discretion of the trial judge, to allow a jury to separate prior to the submission of the case to the jury for its deliberation on the evidence. ² See, e. g., Veney v Warden, Maryland Penitentiary, 259 Md. 437, 271 A.2d 133 (1970); Midgett v. State, 223 Md. 282, 164 A.2d 526 (1960), cert. denied, 365 U.S. 853, 81 S.Ct. 819, 5 L.Ed.2d 817 (1961); Williams v. State, 19 Md.App. 582, 313 A.2d 700, cert. denied, 271 Md. 747 (1974); Gordon v. State, 14 Md.App. 245, 286 A.2d 833 (1972); Graef v. State, 1 Md.App. 161, 228 A.2d 480, cert. denied, 246 Md. 755 (1967). Prejudice to an accused as a result of the separation is never inferred simply from the separation per se. The accused bears the burden, upon challenge, to demonstrate, if he or she can, that the separation of the jury contaminated its findings. Graef v. State, supra.

While, as we have seen, the cases are many in regard to separation of the jury before deliberations, there is a sparsity of cases concerning separation after deliberations have started but before verdict. Three Maryland cases have heretofore addressed the issue: Kennard v. State, 177 Md. 549, 10 A.2d 710 (1940); Stout v. State, 76 Md. 317, 25 A. 299 (1892); and Reemsnyder v. State, 46 Md.App. 249, 416 A.2d 767 (1980).

Kennard discusses a situation wherein the jury was given permission by the trial judge to separate after the onset of their deliberations but before verdict. The Court upheld the conviction of Kennard, notwithstanding the separation. Kennard, however, was limited to misdemeanor offenses. While the ancestor of current Courts Art. § 8-304, was originally enacted by Laws 1935, ch. 385, it was not discussed or even raised in Kennard. Hence, its effect on the ultimate decision in that case was nil. Stated more simplistically, Kennard was decided as if the statute were nonexistent.

In Stout a juror became ill during a recess. The juror was allowed to go to bed in the hotel where the jury was quartered. When the jury reassembled in the courtroom the sick juror was still abed. The court then adjourned until the next morning at which time all 12 jurors were present. Turning back an argument that the separation of the jury mandated its discharge, the Court said, 76 Md. 317 at 329-30, 25 A. 299:

"In the trial of capital cases, even, there are many occasions when in reason, and a proper regard to the needs of humanity, it may become necessary to allow a temporary separation of the jury, without necessarily breaking up the trial, and that even after the jury have retired to consider of their verdict, otherwise protracted trials could seldom be brought to a final conclusion. Of course, the separation should only be allowed when attended with those precautions and safeguards necessary to secure entire freedom from approach or external influence of any kind." (Citations omitted.)

Stout is inapposite to the instant case for at least two reasons: 1) it concerned the emergency situation to which we have alluded in note 1, supra; and 2) it was decided long before the enactment of Laws 1935, ch. 385.

Reemsnyder concerned a case in which a juror was stricken with "pain or breathing difficulties" after the case had been submitted to the jury for deliberation. The juror was taken to a hospital by a rescue squad and admitted to the "coronary care unit." Because the juror was physically unable to continue in service, the panel was reduced to eleven jurors. A mistrial was declared. When the case was called anew, Reemsnyder raised the defense of double jeopardy. In disposing of that defense, adversely to Reemsnyder, we, speaking through Judge Thompson, said that illness of a juror under the circumstances of the case justified the declaring of a mistrial on the ground of manifest necessity, and the constitutional defense of double jeopardy did not apply.

The Court of Appeals of California, in People v. Chain, 22 Cal.App.3d 493, 99 Cal.Rptr. 472 (1971), rehearing denied, January 25, 1972, hearing denied, February 23, 1972, held that the deletion from a former statute, very similar to Maryland's present one, of the phrase "at any time before submission of the cause to the jury," allowed the trial judge to let the jury separate, under proper admonition. In an earlier case decided while the words, "at any time before submission," etc., were viable, the Court in People v Werwee, 112 Cal.App.2d 494, 246 P.2d 704 (1952), hearing denied, August 28, 1952, held that it was reversible error in a criminal case to permit the jury to separate after the case was submitted to the talesmen and before verdict.

Both of the cited California cases bolster Magwood's argument relative to the effect of Courts Art. § 8-304-the later case, indirectly, and the earlier, directly.

The authorities are divided on the question of the judge's discretion in permitting a jury in a criminal case to separate prior to verdict once the case is submitted to it. Those holding that it is within the discretion of the judge are fairly represented by People v. Chain, supra; People v. Austin, 185 Col. 229, 523 P.2d 989, 993 (1974), rehearing denied, July 15, 1974; Bryant v. State, 246 Ind. 17, 202 N.E.2d 161, 163 (1964); State v. Johnson, 216 N.W.2d 337, 339 (Iowa 1974); State v. Atwood, 83 N.M. 416, 492 P.2d 1279, 1284 (1971), cert. denied, 83 N.M. 395, 492 P.2d 1258 (1972); State v. Bynum, 282 N.C. 552, 193 S.E.2d 725, 729, cert. denied, 414 U.S. 836, 94 S.Ct. 182, 38 L.Ed.2d 72 and 414 U.S. 869, 94 S.Ct. 182, 38 L.Ed.2d 116 (1973); State v. Williams, 39 Ohio St.2d 20, 68 Ohio Ops.2d 12, 313 N.E.2d 859, 863 (1974).

Those holding a contrary view are: Raines v. State, 65 So.2d 558, 559-60 (Fla.1953), rehearing denied, June 2, 1953; People v. Ritzert, 17 Ill.App.3d 791, 308 N.E.2d 636, 639 (1974); State v. Luquette, 275 So.2d 396, 400 (La.1973); Ford v. State, 330 P.2d 214, 215-16 (Okla.Crim.1958).

Irrespective of how other States may view the question, the Maryland statute, Courts Art. § 8-304, expressly sanctions a separation of a jury, in the sound discretion of the trial judge, exercised at any time prior to the submission of the cause to the jury and implicitly forbids the separation of the jury before verdict or a judicial abortion of that verdict, at any time after the cause has been submitted for deliberation.

Notwithstanding what we have said, the parties have, with the acquiescence of the trial judge and under proper instructions, the right to waive the requirement that the jury remain together after the issue is submitted to them. That is precisely what the State argues Magwood did in the instant case.

We have no quarrel with the contention that Magwood's trial counsel waived any right to object to the separation of the jury, but the record does not support the conclusion that Magwood concurred in that separation, or that he was even present when his counsel, in a backhanded sort of way, agreed to the jury's being allowed to separate even though deliberations on the evidence had commenced. With respect to waiver by counsel, the record reflects:

"Counsel, would you come to the bench one moment, please.

(At the bench.)

THE COURT: Would there be any disagreement if I advise the jury that they should proceed with their deliberations themselves and that if they conclude that they need a rest for dinner, that it can be made available to them, and if they conclude the dinner and are unable to arrive at a verdict tonight, that they can be recessed until tomorrow, and they would not be sequestered?

MR. LOHM (defense counsel): I have no objection.

MR. BINSTOCK (Ass't State's Attorney): Well, I have no objection to the first part, but the second part, I don't want to encourage them to think that they can at 7:00 o'clock say they are going to come back tomorrow when it is more appropriate for a time later on when we determine they are unable to reach a verdict.

THE COURT: My problem with that ... is that these people were in the panel sometime after 3:00 o'clock, and they have had no opportunity to communicate with their homes or anything like that, and if they get in there and decide they are unable...