State v. Hart
| Decision Date | 19 August 2016 |
| Docket Number | No. 74,74 |
| Parties | STATE OF MARYLAND v. KENNETH HART |
| Court | Court of Special Appeals of Maryland |
CRIMINAL PROCEDURE — RIGHT TO BE PRESENT — WAIVER
A defendant has a due process right to be present at every critical stage of his or her trial from the time the jury is impaneled until it reaches a verdict or is discharged. This common law right is implemented by Maryland Rule 4-231. Additionally, pursuant to Maryland Rule 4-326, a defendant has a right to be present, and to be heard, before a trial judge responds to any communication from an impaneled jury that "pertains to the action." Ordinarily, communications between a trial judge and a jury, and a declaration of a mistrial are considered stages of trial at which a defendant has a right to be present.
When the court received a jury note indicating a deadlock, the note pertained to the action within the meaning of Rule 4-326, and Hart had a right to be present to discuss the court's response to the note. The record indicates that Hart was involuntarily absent due to a medical emergency. Where defense counsel, in the absence of his client, consented to a review of a jury note in the presence of the trial judge and the prosecutor, counsel waived the defendant's right to be present for a limited purpose.
Upon notification of Hart's absence, the court was required to take reasonable steps to assure the defendant's presence at all stages of the criminal trial before proceeding against the defendant in absentia. Under the circumstances, after reviewing the contents of the jury note with the jury foreman, the prosecutor and defense counsel, it was unreasonable for the trial judge to refuse to continue the proceedings, at least, one day before exercising her discretion to proceed with trial in the defendant's absence.
The court also abused its discretion when it violated Hart's right to be present for the declaration of a mistrial based on perceived manifest necessity. After jeopardy attaches, retrial is barred if a mistrial is declared without the defendant's consent unless there is a showing of "manifest necessity" to declare the mistrial. In determining the existence of a hung jury, the trial judge may not disregard the manifest necessity analysis. Here, the declaration was premature and manifest necessity did not exist, because the defendant was involuntarily absent, and the judge did not adopt any reasonable alternatives to the declaration. Where a declaration of mistrial occurs in the absence of manifest necessity, and without the consent of the defendant, double jeopardy bars a retrial.
Circuit Court for Montgomery County
Barbera, C.J. *Battaglia, Greene, Adkins, McDonald, Watts, Hotten, JJ.
Opinion by Greene, J.
*Battaglia, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the MD Constitution, Article IV, Section 3A, she also participated in the decision and adoption of this opinion.
In this case, we address a defendant's right to be present at trial as it pertains to communications with a jury foreperson during the deliberation phase of a trial as well as a trial court's declaration of a mistrial on the ground of manifest necessity. Kenneth Hart ("Hart"), the defendant, was present throughout the two-day trial. On the second day of trial, after closing arguments and the administration of jury instructions, jury deliberations began at 7 p.m. After approximately three and a half hours of deliberation, the trial court received a jury note. The judge informed the prosecutor and defense counsel of the communication, and made arrangements for the sheriffs to bring Hart, who was in custody, to the courtroom. While they were waiting for Hart to arrive, defense counsel requested a "preview" of the content of the jury note. The note indicated that the jury was deadlocked on a particular count and asked for guidance. Shortly thereafter, the judge was informed that Hart had been transported to a hospital due to a medical emergency. After the judge discussed the note with the prosecutor and defense counsel, the court summoned the jury foreperson to discuss the nature of the deadlock. Although Hart was not present, and despite objections from defense counsel, the judge accepted a partial verdict from the jury. Hart was found guilty on three counts. The trial court then declared a mistrial on the perceived deadlocked count on the basis of manifest necessity.
At a post-trial hearing, the trial court recognized its error in receiving the partial verdict in Hart's absence, and ordered a new trial for the counts on which Hart had been convicted. The trial judge concluded, however, that there was manifest necessity to declare a mistrial, and denied defense counsel's motion to dismiss the deadlocked count.
For the reasons explained below, we disagree with the entry of a mistrial on the perceived deadlocked count. We hold that the trial court erred when it responded to the jury note without first conducting an adequate inquiry into the voluntariness of Hart's absence from the court proceedings. Furthermore, the trial judge erred in prematurely declaring a mistrial—an extraordinary remedy—without first considering reasonable alternatives to the declaration, because Hart was involuntarily absent. These errors were not harmless, and resulted in prejudice to Hart. Because manifest necessity did not exist, under the unique facts of the case, a retrial on the particular count is barred on the grounds of double jeopardy.
As a result of a traffic stop, Hart was found to be in possession of controlled dangerous substances, including heroin, cocaine, and phencyclidine ("PCP"). Hart was indicted on several counts, which resulted in a two-day jury trial. On May 19, 2014, the trial commenced in the Circuit Court for Montgomery County. After the State concluded its case-in-chief, Hart did not present any evidence, and rested his case. The trial court's instructions to the jury included the modified Allen charge on the jury's duty to deliberate.1 Four charges were submitted to the jury: Count 1: possession of heroin with intent todistribute; Count 2: possession of heroin; Count 3: possession of cocaine; Count 4: possession of PCP. At approximately 7 p.m., the jury began deliberations; a deputy sheriff took Hart into custody and escorted him to a holding area.
At 10:21 p.m., the trial court received a written note from the jury. The judge summoned the prosecutor and defense counsel, and arranged for Hart to be brought to the courtroom. After a period of time, the court was still waiting for Hart's arrival. While the bailiff contacted the sheriffs to ascertain Hart's whereabouts, the following conversation ensued between the trial judge, prosecutor and defense counsel:
The jury note stated: Meanwhile, continued efforts were made to have the sheriffs escort Hart to the courtroom. At approximately 10:48 p.m., the judge was informed that Hart was absent due to a medical emergency:
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