State v. Cook

Decision Date01 September 1994
Docket NumberNo. 110,110
Citation338 Md. 598,659 A.2d 1313
PartiesSTATE of Maryland v. Harold Thomas COOK. ,
CourtMaryland Court of Appeals

Mary Ellen Barbera, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Gary E. Bair, Asst. Atty. Gen., Rachel Marblestone Kamins, Staff Atty., all on brief), Baltimore, for petitioner.

Victor J. D'Avella, Bel Air, for respondent.

Argued before ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, BELL and RAKER, JJ., and JOHN F. McAULIFFE, Judge (Retired and Specially Assigned).


In the present case, we are asked to review a trial judge's decision in a criminal trial to remove a seated juror and replace him with an alternate juror pursuant to Maryland Rule 4-312. We hold that the defendant is not entitled to a new trial by virtue of the juror replacement.


This case stems from the 1993 conviction in the Circuit Court for Harford County of Harold Thomas Cook on charges of sexually abusing his stepdaughter from the summer of 1974 until December, 1977. 1 At trial, the victim testified that the abuse began on a family vacation in Ocean City and continued until she reported the abuse to an aunt in 1982. Cook's stepdaughter testified at trial as to the nature of the abuse. She stated that Cook showed her pornographic movies, fondled her breasts and genitals, performed cunnilingus, and tried to force the victim to perform fellatio. The victim testified that the abuse occurred on a nightly basis "I know to me it was just every night. It was for sure every time that my Mom was away, my Mom was at work, he was in my room. And it went on--there were times that my Mom would be in bed and he would come in."

The victim further testified that her bedroom was right next to her parents' bedroom. She stated that she did not inform her mother of the abuse because Cook told her that her mother was ill and if her mother was told, she would "end up being put in a ... mental institution."

The State rested its case against Cook on July 14, 1993 and the defense case began the following day. A recess was taken shortly after proceedings began on July 15th. At that time, the trial judge (Carr, J.) held a meeting in chambers and shared with counsel the contents of a note sent to the judge by juror number six. The note read:

"Your Onor [sic],

[The victim] stated her stepfather came into her bedroom every night. The mother & stepfather's bedroom right next door. The mother was home in bed some times before he got home from work. If he left there [sic] bedroom and went into the step-daughter[']s bedroom did the mother know it?

Why not right next door?

'If so!' What for?

If the daughter was raped every night, was the mother having sex with him? How often? Working a full time job and 2 nights on a part time job. 'Had to be a good man! ' Strike that! Remark." (Emphasis in original).

The State moved to have the juror stricken, arguing that the note indicated that the juror had "made up his mind at this point. He is ... not considering the remainder of the evidence." The defense argued that the note did not necessarily indicate that the juror had come to any conclusion or had violated the court's instructions about not forming an opinion prior to deliberations. Defense counsel argued that "[F]irst of all I don't know that this man writing this note in and of itself constitutes any sort of impropriety. It constitutes something rather unusual.

* * * * * *

He has in quotes 'had to be a good man' end quotes. As I think the Court can take judicial notice that that remark immediately follows a description of what his view of the testimony is, which is having sexual relations every night with one, perhaps two females. And I think that's what 'had to be a good man' means and doesn't mean anything concerning guilt or innocence. He may mean that he thinks that he is guilty." (Emphasis added).

The trial judge did not dismiss the juror at that time, but noted:

"It seems to me he is doing something I have never seen before and that is midway through the case giving us a status report of what his opinion is of what has happened before, which is highly unusual. However, we are not at the end of the case yet and let me think about this and do a little research on this.

Certainly I'm going to take this into consideration. If I choose to dismiss, I can do it at the end of the case.... Let's give it some thought and get some cases on point and we will take it from there."

The court considered the issue again at the close of all of the evidence. At this point, the trial judge questioned the juror and permitted counsel to question the juror regarding the meaning of his note:

"COURT: You sent me a note this morning. I was wondering why you did that?

JUROR: I feel we had gotten part of the evidence from the daughter, her statement and it was not followed up to the mother right there in the household.

COURT: Why did you send me a note?

JUROR: That is what the bailiff told me to do.

* * * * * * COURT: Only if you had questions that you wanted to ask questions of the witness, is that right?

JUROR: That's right.

COURT: The witnesses were gone. This note came to me this morning. That witness finished testifying yesterday.

JUROR: I didn't understand that they were dismissed of the hearing either.

COURT: Well, they finished testifying and other people testified, didn't they, after they finished? I don't understand your remark. What was the purpose of that remark in the second paragraph? They aren't questions; they are comments aren't they?

JUROR: It's not meant as a comment.... I didn't mean it to be but it is, but what was really on my mind, I could not see, I mean, I'm a parent also, what went on in the household really; the daughter answered the questions that she was asked about the household, different things but it was not followed up with the same thing with the mother so that the mother could answer them. With them being in the next room with one partition between them, that's what I couldn't understand.

* * * * * *

STATE: You made a statement in there that he is a good man or you're a good man, do you remember that is one of the last things that you said, sir; and it's underlined.

* * * * * *

STATE: What was that intended for?

* * * * * *

JUROR: It wasn't any definite remark or like a remark about that. What it was, the man had to be in good health to be in this kind of shape, well-being, in good shape to be in that kind of health. If a man is going to have sex with his daughter or adopted daughter, he has got to be in good shape to provide his wife with what she needs too.

One time when I got married I put myself in the same category. My wife couldn't have children for 5 and a half years. For sixty days I had to be with my wife every night. It was mighty hard and I lost weight and everything else on account of it, and I was a young man. And it takes a strong adult and a good man to continue on, because he is going to drop in health; his weight. I meant it because of my circumstances that I was involved in."

After questioning the juror, the State again moved to have the juror stricken. The defense argued that the note reflected the juror's desire to hear from a witness again and that the comment that the defendant "had to be a good man" simply reflected that the juror was relating his own experiences to the facts of the case. The court decided to dismiss the juror, noting:

"I'm very concerned about the last paragraph which I think is a gratuitous evaluation of certain portions of the evidence that were presented at that time in this case. There's a serious question in my mind whether this particular juror has followed the instructions that he was given ... specifically keep an open mind throughout the entire case.

* * * * * *

Just the overall tenor about the way he handled these particular aspects of this case and I don't think it's in anyone's best interest to have someone on the jury, and this includes the Defendant's best interest, who isn't listening to what he is being told."

The court then replaced juror number six with an alternate juror and jury instructions and closing argument were given. Following four hours of deliberations, the jury found Cook guilty on all counts.

Prior to sentencing on September 15, 1993, a hearing was held on a motion for a new trial filed by Cook based on alleged error in dismissing the juror. Defense counsel again argued that the juror's note indicated only that the juror had questions about the evidence and that he was relating the evidence to his own experiences. Defense argued that Cook had a right to be tried by the particular jurors selected to try him and that the removal of juror number six was not harmless error. The State argued that the removal of the juror was discretionary and that the juror's explanation for his note was not logical. The court denied the motion for a new trial noting:

"I'll say now, if I didn't say it at that time, that I found [the juror's] explanation [for the comments in his note] somewhat dubious; I guess is the best word.

I base that opinion not only on the words that he used, but also by the way he gave his explanation. He was, to me, somewhat at first hesitant and then came across with an explanation for the reasons ... for his editorial comment in a way that there was more to his answer than what he told us, and I gave it very little credibility.

* * * * * *

If a juror sends out [a note] with an editorial comment and then doesn't have a candid ... rationale or ... rational explanation for what he does; I doubt whether that juror is capable of providing either side with a fair evaluation of what is going on in the case.

And so that is the reason that I struck him."

Cook appealed to the Court of Special Appeals, which reversed and held that the removal of juror number six was both improper and prejudicial. Cook v. State, 100 Md.App. 616, 628-29, 642 A.2d 290, 296 (1994). The intermediate ...

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