Pinder v. State

• Decision Date: 12 April 1976
• Docket Number: Nos. 735,1128,s. 735
• Citation: 31 Md.App. 126,355 A.2d 489
• Parties: Hewitt Robert PINDER, Jr. v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 126

31 Md.App. 126

355 A.2d 489

Hewitt Robert PINDER, Jr. v. STATE of Maryland.

Nos. 735, 1128.

Court of Special Appeals of Maryland.

April 12, 1976.

John W. Sause, Jr., Dist. Public Defender, with whom was Alan H. Murrell, Public Defender on the brief, for appellant.

Alexander L. Cummings, Asst. Atty. Gen., with whom were Francis B. Burch, Atty Gen., and Sidney S. Campen, Jr., State's Atty., for Talbot County on the brief, for appellee.

Argued before THOMPSON, DAVIDSON and MOORE, JJ.

MOORE, Judge.

Hewitt Robert Pinder, Jr., appeals from judgments of conviction of rape and burglary after a jury trial in the Circuit Court for Talbot County (Clark, J. presiding); and, in a separate appeal, he challenges the denial by the trial court of his motion for a new trial based upon the confession of a third party some thirty days after he was sentenced to consecutive terms of 20 years and 10 years. ¹

Finding fatal error in the Allen ² charge given by the trial court after deliberations commenced, we reverse the judgments of conviction and remand for a new trial. The appeal from the denial of appellant's motion for a new trial is perforce dismissed as moot.

I

The unfortunate victim of a rape which occurred on September 26, 1974, in the bathroom of a small private home located four miles east of Easton, was 18 years of age, married and five months pregnant. The day following the attack, she assisted the police in the preparation of a composite drawing of her assailant. Appellant, 19 years of age, was picked up on September 29, 1974 by State Trooper Little on Route 309 near Easton where he was hitchhiking. As the trooper later testified, ³ 'We both agreed he looked like the composite.' Appellant consented to being photographed and was then driven by Trooper Little to the home in Queen Anne where he lived with his parents and siblings. ⁴ The following day, the victim visited the police barracks at Easton to make a change in the composite drawing. For that purpose, State Trooper Lewis accumulated several photographs. He gave her a card with which to cover the pictures in order to examine them in sections. Included among the pictures was a Polaroid snapshot of appellant which had been taken the day before by Trooper Little. Lewis testified that '(w)hen this (appellant's) picture came to her she immediately stepped right back and she said 'That's him', and she broke down at that point.' Appellant was arrested at midday on September 30, 1974 at his place of employment. On October 3, 1974, the victim quickly identified him in a lineup conducted at the Dorchester County Jail in Cambridge under the direction of Sheriff James Ira Johnson. ⁵

At the trial, appellant's counsel conceded and corpus delicti of rape and burglary but disputed appellant's criminal agency, vigorously challenging the victim's identification. Alibi testimony was also presented. Appellant did not take the stand. (At disposition, on April 16, 1975, after a presentence investigation, it was disclosed that appellant had no prior convictions.) The jury returned a verdict of guilty of rape without capital punishment, and of burglary.

Scarcely ten days after the sentencing of appellant, the State's Attorney for Talbot County and the State Police obtained a confession from one Howard Caulk Allen, the subject of an investigation in an unrelated assault, to the crimes for which appellant had been convicted and sentenced. The State's Attorney filed a motion for a new trial on the ground of newly discovered evidence exculpatory of appellant. When the motion came on for hearing on July 23, 1975, the State withdrew it upon the suggestion of the court that the motion was not proper because the State had prevailed at the trial. The court then permitted appellant to change a pending petition for post conviction relief to a 'motion under the authority of Maryland Rule 764(b)(3) for a new trial on grounds of newly discovered evidence.'

For the purposes of this opinion, it is sufficient to add that, after taking testimony and upon careful consideration of the motion, Judge Clark denied it on December 9, 1975 in a five-page opinion. His ultimate conclusion was, 'While Allen's confession was given freely and voluntarily and all constitutional safeguards were carefully observed in its obtention, it is simply incredible and the product of Allen's bizarre, sexual fantasies. . . .' As previously indicated, we find it unnecessary to consider the meits of the appeal from the denial of the motion for a new trial.

II

The trial was concluded on the second day. The jury retired at 2:54 p. m., taking with them the exhibits in the case and a typewritten copy of Judge Clark's oral instructions. The transcript reveals that shortly before 6:00 p. m. the jury sent a message to the court that they could not agree. At 5:58 p. m. the court reassembled the jury the jury in the jury box and delivered the following supplemental instruction:

The Court: 'Mr. Foreman and ladies and gentlemen of the jury, the Court has been advised that you are unable to agree. For many reasons which I would (think would be self evident to you the Court would like to avoid a retrial of this case so, with the concurrence of counsel for both the State and defense, I am going to read you what is commonly referred to as the Allen Charge, which has been of assistance to juries in the same situation you now find yourself.

'The Supreme Court says this. 'In a large proportion of cases absolute certainty can not be expected. Although the verdict must be the verdict of each individual juror and not a mere acquiesence in the conclusion of his fellows, you should examine the question submitted with candor and with proper regard and deference to the opinions of each other. It is your duty to reach a verdict in this case if you can conscientiously do so, and you should listen with a disposition to be convinced to each other's arguments. If much the larger number of you are for conviction, a dissenting juror should consider whether his doubt was a reasonable one which made no impression on the minds of so many men equally honest and equally independent (intelligent) with himself. If, upon the other hand, the majority are for acquittal, the minority should ask themselves whether you might not reasonably take (doubt) the correctness of a judgment that was not concurred in by the majority. While undoubtedly the verdict of a jury should represent the opinion of each individual juror, it by no means follows that opinions may not be changed by conference in the jury room. The very object of the jury system is to secure unanimity by comparison of views and by arguments among the jurors themselves. It certainly can not be the law that each juror shouldn't listen with deference to the arguments of your fellow jurors and with a distrust of his own judgment, if he finds that a large majority of the jury is taking a different view of the case from what he does himself. It can not be that each juror should go to the jury room with a blind determination that the verdict should represent his opinion of the case (at that moment), or that he should close his ears to the arguments of those who are as honest and intelligent as himself.'

'Now ladies and gentlemen of the jury, I shall give this to the Clerk to give to you and take back with you and cogitate upon, but what I would like to know now is would you like me to make some arrangements to have some supper sent in?' (Emphasis added.)

At 6:05 the jury resumed its deliberations and at 7:38 returned the aforementioned guilty verdicts.

The language of the supplemental charge is practically identical to that approved by the Supreme Court in Allen v. United States, 164 U.S. 492, 501, 17 S.Ct. 154, 41 L.Ed. 528 (1896). ⁶ In Maryland, however, the Allen case is no longer the standard against which supplemental instructions to an apparently deadlocked jury are to be measured. The leading case in this jurisdiction is Kelly v. State, supra, affirming 16 Md.App. 533, 298 A.2d 470 (1973). There the Court of Appeals, in an opinion by Judge Digges, held that an Allen-type charge had been properly given as part of the trial court's general instructions before the jury began its deliberations.

In the face of prior approval of an Allen-type charge in a civil case, Leupen v. Lackey, 248 Md. 19, 234 A.2d 573 (1967), the appellant in Kelly urged that the guidelines for supplemental instructions contained in the American Bar Association's Standards Relating to Trial by Jury, § 5.4 (1968) should be approved and that any deviation from such Standards by the trial court should be held to constitute reversible error. ⁷

While approving the application of the ABA Standards, the Court of Appeals in Kelly was 'not convinced of the need to imprison the trial judges of this State within the walls of foreordained verbiage.' 270 Md. at 142, 310 A.2d at 541. ⁸ Guidelines for the employment of an Allen-type charge were, however, suggested by the court at 143-44, 310 A.2d at 541, viz:

(a) Before deliberations, the following ABA approved charge is 'always proper':

'The verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree thereto. Your verdict must be unanimous.

'It is your duty, as jurors, to consult with one another and to deliberate with a view to reaching an agreement, if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict.

'You are not partisans. You are judges-judges of the...