Nash v. State
Decision Date | 20 June 2014 |
Docket Number | Sept. Term, 2013.,No. 60,60 |
Citation | 94 A.3d 23,439 Md. 53 |
Parties | Troy Sherman NASH v. STATE of Maryland. |
Court | Maryland Court of Appeals |
OPINION TEXT STARTS HERE
Katherine P. Rasin, Assistant Public Defender (Paul B. DeWolfe, Public Defender, Baltimore, MD), on brief, for Petitioner.
Cathleen C. Brockmeyer, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD) on brief, for Respondent.
Argued before BARBERA, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, McDONALD and WATTS, JJ.
In a trial court judge's management of a trial, few circumstances come fraught with as much peril as the receipt of a note from a deliberating jury. Whether to deal with it? How to deal with it? Some jury notes contain innocuous questions or statements to which a presiding judge may respond with ease. Other notes may pose, however, more problematic questions or statements that place a judge between a modern Scylla and Charybdis. Although the judge may want to be helpful in responding to the jury, he or she must take care not to be coercive or suggestive of an outcome. A quick response may be in the best interests of everyone involved, but rashness is rewarded with reversal oft-times. Always at the ready are the litigants and their attorneys, on edge after a hardfought trial, with motions, requests for curative instructions, or other proposed courses of action that may be influenced by their respective advocacy interests in the outcome of the trial. Looming too are we, the appellate courts, ready to swoop in from our high perch to scrutinize, in hindsight and with the benefit of briefs, every aspect of the decisions the trial judge had to make in real-time.
The present criminal case embraces most of these rhetorical considerations. We consider three challenges to the course of action chosen by a trial judge in response to a note from the foreperson of the jury, received during deliberations after 5:00 PM on the Friday before a three-day holiday weekend, claiming that a fellow juror stated she was willing to change her original position of voting “not guilty” if it would mean she could go home and not return to the courthouse. We shall hold that the trial judge, in dealing with this note, did not abuse her discretion by denying the defendant's motion for a mistrial and refusing a defense request to give a modified Allen instruction; nor did she violate Maryland Rule 4–326(d) by recessing for the long weekend, after giving additional instructions reminding the jurors of their proper duties. Accordingly, we shall affirm the judgment of the Court of Special Appeals, which affirmed the judgment of the trial court.
On 17 December 2009, a grand jury, sitting in Prince George's County, returned an indictment charging Troy Sherman Nash with one count of murder in the first degree, based on an investigation into the death of Vanessa Riddick. The case proceeded to trial in the Circuit Court for Prince George's County, beginning with jury selection on Tuesday, 30 August 2011. On that day, the venire arrived at the courthouse at 7:00 AM. Voir dire started at 9:50 AM. After the jury was selected and the court's opening instructions delivered, the trial continued with opening statements from counsel for both parties, followed by the testimony of two State's witnesses. The court recessed for the day just after 4:00 PM, after instructing the jurors to return the following morning by 9:15 AM. The trial resumed with the testimony of four additional witnesses on Wednesday and five on Thursday. The proceedings on each of those days began before 10:00 AM and ended after 4:30 PM.
On Friday, 2 September 2011, the fourth day of trial, the jury began hearing evidence at 10:14 AM. Upon completion of the testimony of the final witness at 10:57 AM, the court excused the jury with a direction to return at 12:30 PM. A medical problem with a juror resulted in the substitution of an alternate juror and delayed the resumption of proceedings until 1:18 PM. For the next hour and twenty minutes, the jury heard the court's concluding instructions and closing arguments from counsel. At 2:40 PM, the jury retired to begin deliberations. At 5:02 PM, the court received a note from the jury (the “Note”), which read literally: The Note was signed by the foreperson and dated “9/2/11.”
Following the court's receipt of the Note, counsel for the parties were brought back to the courtroom. The trial judge read the contents of the Note into the record. The following colloquy between the court and counsel ensued:
The State, at this point, would advise that perhaps we should release them for the night.
It seems like the foreman—that the foreman has alerted the Court—and I think properly so—has alerted the Court that a juror has voted guilty for convenience and expediency, rather than from a sense of, that's the proper verdict after our deliberations.
And so, I don't—I foresee that, coming back Tuesday, that it isn't going to change the desire of—you know, or the problem, that the Court is addressing this afternoon.
So based on that, I understand what the Court has said you're inclined to do, but I would renew my motion for a mistrial.
Prosecutor: Your Honor, I see no difference between this note and your previous instruction to the jury that they should not tell you what the numbers are.
And that's because, what's going on back there, where they are, before a verdict, is not something that we should know about, and that's what that note is doing and that's information that we shouldn't have known.
It's not a numerical breakdown, by any means, this note. And because I don't—it's just a—it's a concern that the foreman has, and that's okay. He has a concern he thought he should bring to the Court's attention, which he has done.
But I—you know, it is almost 20 minutes after 5:00, and the jury has been deliberating since—what was that—2:40, which isn't a lot of time, if you're earlier in the day, but they had been here all day. And if you'll recall, we did give them a very lengthy break. And I just think it may be a matter of just someone being really tired.
So I am inclined to release them and have them come back Tuesday.
The conversation continued with defense counsel addressing three additional points. First, he requested that the judge refuse to receive a verdict that evening, in light of the Note and anticipating the jury might claim to have reached a verdict between sending out the Note and being brought back into the courtroom. Second, defense counsel proposed that another judge receive the jury on Tuesday morning for further deliberations because the presiding judge would not be available that day at the normal start of court. The presiding judge agreed to the latter suggestion. Third, defense counsel asked that the Court inquire of the jury as to whether it would be impossible for any of the jurors to return on Tuesday and asked the court to grant a mistrial if any of them could not return, because no alternate jurors remained.2
Before the judge could respond to counsel's third request, the jury was escorted back into the courtroom. At 5:25 PM, the judge stated the following to the jurors:
The Court: All right. I have received your note and counsel is aware of your notes—or your note as well.
And what I'm going to do at this time is to excuse you for today, but you're going to have to return on Tuesday to continue your deliberations. I expect to see you on Tuesday, at 9:30....
Counsel asked to approach the bench and the following conversation occurred:
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