Sidbury v. State Of Md.
| Decision Date | 12 May 2010 |
| Docket Number | 2009.,No. 86,86 |
| Citation | 414 Md. 180,994 A.2d 948 |
| Parties | Herbert Roosevelt SIDBURYv.STATE of Maryland. |
| Court | Maryland Court of Appeals |
Brian M. Saccenti, Asst. Public Defender (Elizabeth L. Julian, Acting Public Defender, Baltimore, MD), on brief for Petitioner.
Ryan R. Dietrich, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief for Respondent.
ARGUED BEFORE BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS and BARBERA, JJ.
In the present case, involving a first degree murder conviction, we are called upon to address one question on certiorari, that being:
Did the trial court err in failing to appropriately respond to the jury question: “Judge, if the jury is hung on the degree of murder “first or second,” will the defendant go free?”
Sidbury v. State, 410 Md. 559, 979 A.2d 707 (2009). We shall hold that the Circuit Court judge did not abuse his discretion in responding, “[t]hat's not an issue for you to concern yourselves with,” because the consequences of a hung jury are not a proper consideration for the jury, as we recognized in Mitchell v. State, 338 Md. 536, 659 A.2d 1282 (1995).
On the morning of November 30, 2006, Herbert Roosevelt Sidbury, Petitioner, was sitting on a bicycle in front of his grandmother's house on Greenleaf Road in Prince George's County, when Kelly Hodge-Grier, a neighbor, returned home. She parked her car in front of her house, and she and Sidbury had a brief conversation, during which she saw the handle of a gun in his jacket pocket.
When a car driven by the victim, Kevin Hardy, drove up, although Sidbury said “I hope he don't stop,” he got off his bike, approached the passenger side of the car, and started talking to Hardy through an open window. Ms. Hodge-Grier overheard Hardy say to Sidbury, “I'm not scared of you or your gun,” and Sidbury then pulled the gun out and shot Hardy. After Ms. Hodge-Grier ran into her house, Sidbury shot Hardy a second time and rode away on his bicycle. Hardy was pronounced dead at the scene.
Sidbury was charged with murder and use of a handgun in the commission of a felony and was tried in the Circuit Court for Prince George's County. At the close of all of the evidence, Judge Thomas P. Smith, who presided, instructed the jury on its task, stating “[i]t is your duty to decide the facts and apply the law to those facts,” 1 and also described the elements of first degree murder, second degree murder, and use of a handgun in the commission of a felony. The verdict sheet read:
2) Second Degree Murder of Kevin Hardy:
3) Use of a Handgun in the Commission of a Felony:
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| || |||
|-----------||------|||
|NOT GUILTY ||GUILTY|||
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During its deliberations, the jury sent the trial judge a note asking:
Judge: If the jury is hung on the degree of murder (first or second), will the defendant go free?
Judge Smith read the note to counsel and asked for comment:
When the jurors entered the courtroom, Judge Smith instructed them as follows:
Ladies and gentlemen, I received your note. That's not an issue for you to concern yourselves with.
The trial judge also gave an instruction at that time concerning the jurors' responsibilities regarding their deliberations,2 as indicated:
Sidbury appealed to the Court of Special Appeals, which affirmed in an unreported opinion, holding that “the trial court did not abuse its discretion in declining to discuss with the jury the possible consequences of their failure to agree on a verdict,” citing Mitchell v. State, 338 Md. 536, 659 A.2d 1282 (1995).
Rule 4-325(a), governing instructions to the jury, provides:
The court shall give instructions to the jury at the conclusion of all the evidence and before closing arguments and may supplement them at a later time when appropriate. In its discretion the court may also give opening and interim instructions.
The decision of whether to give supplemental instructions is within the sound discretion of the trial judge and will not be disturbed on appeal absent a clear abuse of discretion. Roary v. State, 385 Md. 217, 237, 867 A.2d 1095, 1106 (2005); see
Lovell v. State, 347 Md. 623, 657, 702 A.2d 261, 278 (1997) (); see also
Brogden v. State, 384 Md. 631, 640-41, 866 A.2d 129, 134 (2005); Smith v. State, 371 Md. 496, 508, 810 A.2d 449, 456 (2002).
Sidbury argues that the trial judge abused his discretion in refusing to answer “no” to the question presented by the jury, because he was being held without bail and was awaiting trial on a charge of attempted murder, had a prior conviction for first degree assault, and was on probation at the time of the shooting in this case, such that, “[t]here was no way any judge was going to release [me].” Sidbury relies upon Erdman v. State, 315 Md. 46, 553 A.2d 244 (1989), asserting Erdman makes clear that when a “non-speculative answer” is possible, a trial judge must instruct the jury on the consequences of a verdict. Sidbury also argues that this Court in Erdman recognized that when jurors are concerned that a defendant might go free, the trial judge must instruct the jury so as “to alleviate these potential concerns.” Sidbury suggests that Mitchell, 338 Md. at 536, 659 A.2d at 1282, contradicts these principal tenets of Erdman, and asks us to disregard the underpinnings of our holding in Mitchell, because he would not have “go [ne] free,” given his prior conviction and pending charge.
The State counters that the trial judge did not abuse his discretion in answering “[t]hat's not an issue for you to concern yourselves with,” because Mitchell, 338 Md. at 536, 659 A.2d at 1282, makes clear that the consequences of a hung jury are not a proper consideration of the jury. The State further argues that any substantive answer given by the trial judge would have been inappropriate, because the decision to retry a defendant in the event of a mistrial as a result of a hung jury is within the sole discretion of the State's Attorney.
In Erdman, we considered whether a defendant was entitled to an instruction that if the jury found him “not criminally responsible,” he would be committed to the Department of Health and Mental Hygiene. In the case, David Allen Erdman was tried by a jury in the Circuit Court for Baltimore County for robbery and related offenses and requested an instruction before deliberations ensued, regarding the consequences of a finding that he was not criminally responsible:
If the defendant is found not criminally responsible, the court will commit the defendant to the Department of Health and Mental Hygiene for institutional inpatient care. In the future, the defendant will be entitled to release from custody of the Department of Health and Mental Hygiene only if this court or a jury finds he will not be a danger to himself or the person or property of another.
Id. at 51, 553 A.2d at 246. We determined that although, generally, “the jury has no concern with the consequences of a verdict,” the Circuit Court erred in refusing to give the instruction, because, by virtue of a comprehensive statutory scheme in Maryland, commitment of a defendant found not criminally responsible is practically “automatic.” Id. at 52-53, 553 A.2d at 247. We further noted that a reasonable interpretation of the verdict sheet, containing spaces for the jury to designate “Criminally Responsible” o...
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