Smoot v. State
Decision Date | 12 April 1976 |
Docket Number | No. 599,599 |
Citation | 31 Md.App. 138,355 A.2d 495 |
Parties | John Ray SMOOT, Jr. v. STATE of Maryland. |
Court | Court of Special Appeals of Maryland |
Thomas F. Hogan, Rockville, for appellant.
Henry E. Dugan, Jr., Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Andrew L. Sonner, State's Atty., for Montgomery County and Ronald G. Scheraga, Asst. State's Atty., for Montgomery County, on the brief, for appellee.
Argued before ORTH, C. J., and THOMPSON, GILBERT and MOORE, JJ.
As in Pinder v. State, Md.App., 355 A.2d 489 decided this date, 1 we are here confronted with a contention that a guilty verdict was coerced. For reasons different from those found and explained in Pinder, we sustain appellant's contention. The judgment of conviction of larceny upon which appellant was sentenced to a term of six years (execution of which was suspended and supervised probation for six years imposed) will be reversed and a new trial ordered.
Appellant was employed as a maintenance worker at the Blair Plaza Apartments in Silver Spring, Montgomery County, Maryland in October, 1974. The occupant of Apartment 907, Annie Drew Derrick, age 84, reported to the management and to the police on October 9, 1974 the theft of two rings-her own three-diamond ring with a Tiffany setting, and a gold ring of her daughter, twenty years deceased. (The value of her own ring was established at approximately $1,000 but the testimony did not develop a value for her daughter's ring.) These two rings had been kept by her in a box on the top of her 'chiffonier' in her bedroom together with a third ring-a bloodstone-which had not been touched.
On Wednesday, October 8, 1974, appellant was dispatched to Mrs. Derrick's apartment to repair a thermostat. According to her testimony, while appellant was in the process of examining the thermostat in her bedroom, he inquired if she had a small screwdriver. She withdrew from the bedroom for several minutes and returned with the screwdriver requested by him. The next day, she discovered the loss of the two rings. Asked to describe how she discovered that the rings were missing, she responded:
'A Well, I go to church on the second Wednesday in the month, and I didn't notice my ring until I opened the box to put my rings on, and the first I noticed was my daughter's ring gone. I never touch that ring. And then mine. But my bloodstone ring was left in the box. This one I have on.
'Q Is it your habit to wear that diamond ring when you go to church?
'A Yes. I wear them whenever I go out.
'Q And where are those rings kept?
'A Right on the chiffonier.'
Other testimony of the elderly widow revealed that she lived alone, went grocery shopping about once each week, on Friday, did not 'hear to well,' was on prescribed medicines, including sleeping pills, and that a key to her apartment as also in the possession of the front office.
The State's case against the appellant under an indictment charging him with larceny of the value of $100 or more and of larceny under the value of $100 was presented through the testimony of Annie Drew Derrick and of Dorothy L. Murphy, resident manager of the Blair Plaza Apartments. The latter confirmed the employment of appellant in maintenance and general repair work during the period September 27 through October 11, 1974. During her testimony, a repair order for the thermostat in the living room and master bedroom of Apartment 907 on October 8, 1974 was introduced. Appellant's initials appeared in the right-hand corner and signified his performance of the work. No other witnesses testified for the State and appellant did not take the stand in his own behalf.
The trial commenced at approximately 10:00 a. m. and the jury retired at approximately 3:15 p. m., after a luncheon recess, oral argument and instructions by the trial court. At 4:35 p. m. the jury sent a note to the trial judge (Fairbanks, J.), requesting pencils and paper and inquiring, 'May we have a copy of Mrs. Derrick's testimony?' Upon receipt of this communication the transcript discloses that the court summoned the State's Attorney and defense counsel and read it to them. With the concurrence of both sides, the court sent a note back to the jury that Mrs. Derrick's testimony would not be transcribed. 2
A second note was received from the jury at 5:23 p. m., reading as follows:
'The jurors at present have firm judgments on the defendant's guilt or lack of it.
8 consider him guilty
4 not guilty
& all have stated that they are adamant in their beliefs.'
Without disclosing the contents of the second communication to either side, the trial court reassembled the jurors in the jury box. It appears that the State's Attorney, the defendant (appellant) and defense counsel were present in the courtroom. In response to the second note the court made the following remarks:
'THE COURT: Now, ladies and gentlemen of the jury, I am advised that you are having some difficulty in coming to a verdict. The note which you have just sent out would at first blush lend one to believe that you can't come to a verdict.
(Emphasis added.)
After the jury returned to the jury room, the court then addressed itself to counsel, stating:
'Now, what this is all about is that they came out with a note in which they say that they are divided in a particular way, and that they think they are hopelessly deadlocked. My experience with juries is that they don't deadlock in two hours, and I just don't accept that, and if necessary, and I will tell you this-I won't tell it in front of them-I'm going to keep them here all night, if I have to.
'MR. HOGAN (Defense Counsel) May I be heard, Your Honor?
If necessary, I'll have the reporter read it back.
In the continuing colloquy between court and counsel for appellant, the latter observed that the jury had 'apparently' indicated to the court a numerical division although counsel had not seen the note. Defense counsel pursued this point, stating:
'MR. HOGAN: I believe, Your Honor, that that is grounds for a mistrial, because they are not supposed to indicate numerically that they are split at all.'
The following thereafter ensued:
I would think, Your Honor, I would be a little bit better able to argue this if I could see the note.
Do you know of any Mr. Scheraga?
'MR. SCHERAGA (Assistant State's Attorney): No, Your Honor, and I think the Court's direction to them was neutral.
The court recessed at 5:30 p. m. The jury suspended deliberations for dinner from 6:30 p. m. until 8:15 p. m. A third communication was sent to the...
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