Smith v. State

• Decision Date: 03 April 1984
• Docket Number: No. 124,124
• Citation: 472 A.2d 988,299 Md. 158
• Parties: Kevin Bernard SMITH v. STATE of Maryland. Sept. Term 1983.
• Court: Maryland Court of Appeals

Page 158

299 Md. 158

472 A.2d 988

Kevin Bernard SMITH v. STATE of Maryland.

No. 124 Sept. Term 1983.

Court of Appeals of Maryland.

April 3, 1984.

Motion for Reconsideration Denied April 30, 1984.

Julia A. Doyle, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on brief), for appellant.

Jillyn K. Schulze, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on brief), for appellee.

Argued before SMITH, ELDRIDGE, COLE, DAVIDSON, RODOWSKY and COUCH, JJ., and CHARLES E. ORTH, Jr., Retired, Specially Assigned Judge.

CHARLES E. ORTH, Jr., Retired, Specially Assigned Judge.

Kevin Bernard Smith was tried by a jury in the Criminal Court of Baltimore (now the Circuit Court for Baltimore City) on charges that he committed the crimes of murder in the first degree (the first count of indictment no. 18136309), robbery with a deadly weapon, and using a handgun in the commission of a crime of violence, (the first and eighth counts respectively of indictment no. 18136310). The court declared a mistrial as to all three charges on the ground that the jury was unable to reach unanimous verdicts. Smith was promptly retried before a jury, which found him not guilty of the murder charge and guilty of the armed robbery and handgun offenses. He was sentenced to a total of 35 years. The Court of Special Appeals affirmed the judgments in an unreported opinion (Smith v. State, No. 1687, September Term, 1982, filed 1 August 1983). We granted Smith's petition for a writ of certiorari, and ordered that the record and proceedings be certified to us, but we limited our review solely to the question whether Smith was placed twice in jeopardy by the retrial. The resolution of this question depends on whether the verdicts of the jury at the first trial as presented to the court reflected an actual agreement of the jury and represented a final acquittal on the charges. ¹

I

In Pugh v. State, 271 Md. 701, 319 A.2d 542 (1974), we found it to be "settled that once the trier of fact in a criminal case, whether it be the jury or the judge, intentionally renders a verdict of 'not guilty,' the verdict is final, and the defendant cannot later be retried on or found guilty of the same charge." ² Id. at 706, 319 A.2d 542. We must determine what is sufficient to constitute the intentional rendition of a final verdict by a jury.

(a) Unanimity of the Verdict

The underlying requirement of a final verdict is that it be unanimous. "[T]he People of the State of Maryland" declared in what is now Article 21 of the Declaration of Rights of their Constitution: "That in all criminal prosecutions, every man hath a right ... to a speedy trial by an impartial jury, without whose unanimous consent he ought not to be found guilty." This Court explicated this constitutional declaration in Ford v. State, 12 Md. 514 (1859):

" 'The verdict is the unanimous decision made by a jury and reported to the court, on the matters lawfully submitted to them in the course of the trial.' Unanimity is indispensable to the sufficiency of the verdict...." Id. at 549, quoting 10 Bacon's Abridg. Title Verdict, 306 (emphasis in original). ³

The constitutional provision is implemented by Maryland Rule 759 a, which flatly states: "The verdict of a jury shall be unanimous...."

(b) Hearkening the Verdict

Lewis Hochheimer, Esq., immortalized as a member of the Baltimore bar by his book on criminal law published at the turn of this century, had this to say about the rendition and receiving of a jury verdict in a criminal case: "The verdict must be given and received in the presence of the accused, ... in open court, all the jurors being present...." L. Hochheimer, The Law of Crimes and Criminal Procedure (2d ed. 1904) § 179. Hochheimer warns that "[t]he prescribed formulas must be substantially complied with." Id.

The formula for the rendition of verdicts is set out in Givens v. State, 76 Md. 485, 25 A. 689 (1893):

"When the jury have come to a unanimous determination with respect to their verdict, they return to the box to deliver it. The clerk then calls them over, by their names, and asks them whether they agree on this verdict, to which they reply in the affirmative. He then demands who shall say for them, to which they answer, their foreman. This being done, he desires the prisoner to hold up his right hand and addresses them: 'Look upon the prisoner at the bar; how say you, is he guilty of the matter whereof he indicted or not guilty?' The foreman then answers guilty or not guilty, as the verdict may be. The officer then writes the word 'guilty' or 'not guilty' as the verdict is, on the record and again addresses the jury: 'Hearken to your verdict as the court hath recorded it. You say that ______ is guilty (or not guilty) of the matter whereof he stands indicted, and so say you all.' " ⁴ Id. at 487, 25 A. 689.

This is in substance the formula stated by Hochheimer § 179. Although there is no reference in the Maryland Rules of Procedure about "hearkening," the procedure detailed in Givens is substantially that followed today. In Glickman v. State, 190 Md. 516, 525, 60 A.2d 216 (1948), we observed that the procedure whereby the clerk calls upon the jury to hearken to their verdict when they return to the court to render it, is "uniformly practiced in the courts of Maryland...." We quoted with approval what was said in Givens 76 Md. at 486, 25 A. 689: "And while it may be a matter of form and practice, yet it is a juridical form; and matters of form when they become established, and are supported by reasons of justice and propriety, are regarded as matters of substance." ⁵ Glickman 190 Md. at 525, 60 A.2d 216. See Heinze v. State, 184 Md. 613, 616-617, 42 A.2d 128 (1945); Ross v. State, 24 Md.App. 246, 252-255, 330 A.2d 507 (1975), rev'd on other grounds, 276 Md. 664, 350 A.2d 680 (1976). "It is to secure certainty and accuracy, and to enable the jury to correct a verdict, which they have mistaken, or which their foreman has improperly delivered, that they are called upon to 'hearken thereto.' " Givens, 76 Md. at 488, 25 A. 689.

(c) Polling the Jury

A defendant has the absolute right to poll the jury. Coby v. State, 225 Md. 293, 299, 170 A.2d 199 (1961). Coby merely iterates what this Court asserted a century ago in Williams v. State, 60 Md. 402, 403 (1883): "[A defendant is] entitled, as a matter of right, to a poll of the jury, and he [may] not be convicted, except upon the concurrence of each juror." See Hochheimer § 179.

A poll of the jury serves the same purpose as that of hearkening the verdict. Givens, 76 Md. at 487, 25 A. 689. "[I]t has never been the law in Maryland that hearkening is the prerequisite to an acceptable verdict where the jury has been polled. In other words it has not been doubted that polling is a fully commensurable substitute for hearkening." Ross, 24 Md.App. at 254, 330 A.2d 507. It is in the absence of a demand for a poll that a hearkening is required for the proper rendition of a verdict.

Under our practice the hearkening of a verdict is the traditional formality announcing the recording of the verdict. A jury poll has the same effect. Id.

The poll of the jury is an effective way to determine the adherence of the jurors to the verdict. 5 Wharton's Criminal Law and Procedure § 2142 (1957). The polling provides a means of establishing that the verdict was with the unanimous consent of the jurors. ⁶ Maloney v. State, 17 Md.App. 609, 622, 304 A.2d 260, cert. denied, Keller v. State, 269 Md. 761, cert. denied, Maloney v. State, 269 Md. 762 (1973).

It once was that a demand to poll the jury had to precede the recordation of the verdict upon a hearkening. Once the verdict was hearkened it was "too late to poll the panel." Ford, 12 Md. at 546. The right to a poll was deemed to have been waived by the failure to demand it at the proper time, that is before the verdict had been effectively hearkened. Hommer v. State, 85 Md. 562, 564, 37 A. 26 (1897). ⁷ This rule persisted until 1 January 1957, the effective date of what is now Rule 759 e of the Maryland Rules of Procedure. ⁸ The common law right to have the jury polled, ⁹ recognized in Williams a hundred years ago and recalled by Hochheimer, is perpetuated in Rule 759 e, but without the limitation expressed in Ford and Hommer. Md.Rule 759 e provides:

"Upon the request of a party or upon the court's own motion, the jury shall be polled after it has returned a verdict and before the jury is discharged. If upon the poll the jury do not unanimously concur in the verdict, the court may direct the jury to retire for further deliberation or may discharge the jury." (Emphasis supplied).

It is readily apparent on the face of the Rule that the criterion for timeliness of a demand to have the jury polled is no longer the hearkening of the verdict to the jury and the ensuing recordation. Rather, it is the discharge of the jury from its consideration of the case. Maloney, 17 Md.App. at 621, 304 A.2d 260. In other words, after the verdict is rendered, either party, or the court sua sponte, may have the jury polled at any time before the jury is discharged.

"The assent of each juror [polled] must be free and unqualified." Hochheimer § 179. "We all know that jurors sometimes, upon the poll, dissent from the verdict declared for them by their foreman, and it is for the purpose of compelling each juror to declare his own verdict, in his own language, that a poll of the panel is allowed." ¹⁰ Williams, 60 Md. at 403.

(d) The Finality of the Verdict

Until the case is removed from the jury's province the verdict may be altered or withdrawn by the jurors, or by the dissent or non-concurrence of any one of them. While the case is still within the province of the jury, the court may permit them to reconsider and correct the verdict, provided nothing be done amounting to coercion or tending to influence conviction or acquittal. See Hochheimer § 179. In the absence of a...