Robinson v. State, 109, September Term, 2008.

Citation976 A.2d 1072,410 Md. 91
Decision Date28 July 2009
Docket NumberNo. 109, September Term, 2008.,109, September Term, 2008.
PartiesCecil Laroy ROBINSON v. STATE of Maryland.
CourtCourt of Special Appeals of Maryland
976 A.2d 1072
410 Md. 91
Cecil Laroy ROBINSON
v.
STATE of Maryland.
No. 109, September Term, 2008.
Court of Appeals of Maryland.
July 28, 2009.

[976 A.2d 1074]

Stacy W. McCormack, Asst. Public Defender of Baltimore, on brief, for appellant.

Jeremy M. McCoy, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen., of Maryland, of Baltimore), on brief for appellee.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS and BARBERA, JJ.

BARBERA, J.


Appellant, Cecil Robinson, was tried before a jury in the Circuit Court for Caroline County, on charges of attempted robbery and related offenses. At the outset of the trial, the court learned that members of Appellant's family might have been attempting to intimidate witnesses. After discussing the matter in the presence of counsel and Appellant, the court ordered the members of Appellant's family and at least two other persons to leave the courtroom. The jury ultimately found Appellant guilty of two counts of attempted robbery and other offenses. Sentencing followed in due course.

Appellant noted a timely appeal to the Court of Special Appeals, asking "[w]hether the trial judge violated the appellant's constitutional right to a public trial when she ordered members of the appellant's family and other spectators to leave the courtroom." In his brief before that court, Appellant contested the court's decision to order those persons out of the courtroom without first undertaking the analysis required by Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), and its Maryland progeny.

We granted a writ of certiorari before consideration by the Court of Special Appeals, to resolve the merits of the question Appellant presents on appeal. Robinson v. State, 406 Md. 443, 959 A.2d 793 (2008). We cannot reach the merits of the claim, however, because Appellant did not object to the court's order and thereby failed to preserve the claim for appellate review. Moreover, the state of the record precludes review, even were we to consider overlooking the failure to object. We

976 A.2d 1075

therefore affirm the judgments of conviction.

I. The Trial

The events precipitating this appeal arose during voir dire of the prospective jurors. One prospective juror responded to a voir dire question by advising the court that he could not decide the case impartially after overhearing a group of four or five persons discussing the case in the hallway. The prospective juror did not elaborate on what he had heard, but he observed that the persons he overheard discussing the case might have been witnesses at trial. The court dismissed the juror for cause, voir dire continued, and eventually a jury was selected and sworn.

At that time, the court directed the jury to retire to the jury room and ordered the potential witnesses sequestered. The court then addressed the spectators in the courtroom:

Now for those of you who are not potential witnesses, and I'm sort of primarily looking at Mr. Robinson's family and Mr. Arline's[1] family, you're not permitted to leave the courtroom and talk to any of these witnesses about what's going on. And quite frankly in light of what one of the jurors told me that there was a lot of chitchat or chatter out in the lobby about this case, I'm going to ask Deputy North and Mr. Lovelace,[2] you need to watch this. I want you all just staying in the courtroom, so then there won't be any issue about whether you all are chatting or not chatting in front of other people. So just stay in the courtroom and then I'm not going to have any issue. Okay? No, you're going to have to not even take a smoke, okay? Now that means at lunchtime and if I take a break, like a 15 minute break, I mean you can leave the courtroom, but you just have to understand you can't go out in the lobby, you can't go out in front of the courthouse.

The court then took a short recess.

When proceedings resumed, the prosecutor told the court about a conversation one of Appellant's family members had just had with a witness in the prosecutor's office. It is clear from the record that spectators were in the courtroom as the following events unfolded:

[PROSECUTOR]: Your Honor, before we bring the jury back out, or anyone else in. I have an issue I'd like to raise. When I left the office, I'm sorry when I left the courtroom during the break, went in to my office and was approached by one of our witnesses. The witness said to me that while jury selection was going on, one of Mr. Robinson's family members had gone into the office and told her to lie. I've asked Ms. Shore to be here because she was present during that conversation and so I would, I know it's highly unusual and family's allowed to be here, but my understanding of the conversation is that it's someone who represented herself as Mr. Robinson's sister, said her mother said to tell her to lie.

[APPELLANT]: Who?

[PROSECUTOR]: I would really like the family excluded at this point.

THE COURT: Bring them on in. Bring, I, bring the young lady in right now.

976 A.2d 1076

[APPELLANT]: Who? Call my sister in here, I don't know what you're talking about.

[PROSECUTOR]: She has a pink bag is how she was described to me. I understand it was before the rule on witnesses, but, even so, Your Honor, this is ridiculous.

The court directed the deputy sheriff to locate Appellant's sister and bring her into the courtroom. As that was happening, the court and prosecutor continued discussing the situation:

[PROSECUTOR]: Your Honor, I'm not making the allegation that it was a threat, but it certainly was improper and trying to incite false testimony.

THE COURT: Well, the problem is there's a, isn't there a crime, intimidation of a witness or trying to, what is it, subordinate, subordinate [sic] perjury?

[PROSECUTOR]: Yes, yes.

The transcript reflects that the prosecutor and defense counsel then had a discussion off the record. Proceedings resumed on the record, with the following:

[APPELLANT]: You can't find her? She didn't come in.

THE COURT: One problem is that excluding his family from the courtroom then puts them out with the public and I've got concerns about whether they can keep their mouths shut while sitting outside the Courthouse and not somehow ...

[PROSECUTOR]: Your Honor, my issue was that testifying is difficult and uncomfortable enough when confronting someone, but to then have that ...

THE COURT: Oh, okay, all right, okay. I see what you're saying.

[APPELLANT]: Your Honor, that's not true. They can question my sister about this when she come in.

THE COURT: I am.

MR. LOVELACE: Would you like to put her on the witness stand?

THE COURT: Well, first of all, I'm just going to have them bring her inside then while, I'm going to tell her what has been ...

MR. LOVELACE: Okay.

THE COURT: Well, because if I put her on the witness stand, I mean there's a potential for her to be criminally charged as a result of what she is alleged to have done.

Appellant's sister was then brought into the courtroom and the judge questioned her about the conversation:

THE COURT: Okay, the young lady with the pink purse, I need you to come on up here please. Okay you can just stand, you can just stand right, right there. What's your name?

Appellant's sister identified herself as Susan Price and gave her age as seventeen years old. The exchange continued:

THE COURT: Seventeen. Susan, it's been brought to my attention by members of the State's Attorney's Office that you went into the State's Attorney's Office and attempted to talk to one of the State's witnesses.

MS. PRICE: I said hi to my friend.

THE COURT: Excuse me, ma'am. And encouraged them not to tell the truth. Now if this [is] in fact true ...

MS. PRICE: I said hi to my friend.

THE COURT: Excuse me. If that is, in fact, true, that is a crime, but additionally you were instructed that you were not to have any contact with any of the witnesses. So what business you had going into the State's Attorney's Office, I don't know. I am just bringing this to your attention as a result of what has been reported to me.

[APPELLANT]: What'd you say, Susan?

976 A.2d 1077

THE COURT: Mr. Robinson.

MS. PRICE: I just wanted to say hi to her.

THE COURT: Mr. Robinson, excuse me, Mr. Robinson.

MS. PRICE: Cause that's my friend from school.

THE COURT: As I said, excuse me, excuse me. Did you not under, what part of you [sic] cannot have contact with any of the witnesses did you not understand?

MS. PRICE: I didn't know that, you didn't say that before I left.

THE COURT: Excuse me, Ms. Robinson, Ms. Price. All right, what I'm going to end up doing is I'm excluding the entire family from the courtroom. Now I don't know where they're going to go that they don't have contact with anybody else in this case.

The court discussed with courtroom personnel the possibility of placing the family spectators in a separate courtroom by themselves, away from the public. The court then advised Ms. Price that she could "go back and sit with your mom."

At that point, Appellant's mother, Ms. Thomas, addressed the court about being forced to leave the courtroom:

MS. THOMAS: Your Honor?

THE COURT: I don't want to hear from anybody. Everyone's going to be, you're going to leave the courtroom. I have to find some place to put you all.

MS. THOMAS: Right.

THE COURT: Where you will not interfere with this case today ...

MS. THOMAS: I understand, Your Honor, I was just saying she had said that before.

THE COURT: Okay, I don't want to hear, maybe what you're doing is not malicious, Ms. Thomas, but I just don't think you all understand ...

MS. THOMAS: No, I understand, I do.

THE COURT: Nor respect the decorum that is needed in this particular proceeding. So it's better to just put you all out of the courtroom. So with that said, I'm just going to get you all to leave the courtroom, I just need one of the deputies to maybe sit out there with them, to make sure, I don't know, just to make...

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