State v. Kenney

• Decision Date: 01 September 1991
• Docket Number: No. 119,119
• Citation: 609 A.2d 337,327 Md. 354
• Parties: STATE of Maryland v. Earl Michael KENNEY. ,
• Court: Maryland Court of Appeals

Page 354

327 Md. 354

609 A.2d 337

STATE of Maryland v. Earl Michael KENNEY.

No. 119, Sept. Term, 1991.

Court of Appeals of Maryland.

July 24, 1992.

Thomas K. Clancy, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both on brief), Baltimore, for petitioner.

Gary S. Offutt, Asst. Public Defender (Stephen E. Harris, Public Defender, both on brief), Baltimore, for respondent.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI and ROBERT M. BELL, JJ.

KARWACKI, Judge.

The question presented in this case is whether an accused can effectively agree to trial by less than a 12-person jury where the trial court does not conduct a personal inquiry of the accused to determine that his decision was made knowingly and intelligently.

I.

Earl Michael Kenney was charged by indictment with, inter alia, kidnapping, false imprisonment, battery, and transporting a handgun as the result of an alleged attack on Angela Yvonne Tillman, his former girlfriend. On May 30, 1990, his jury trial commenced in the Circuit Court for Prince George's County. The jury retired to deliberate at 5:28 p.m. on Friday, June 1, 1990. At 7:00 p.m. that evening the court informed the members of the jury that they would recess at that time and be excused until Monday morning when they would return to resume their deliberations. The foreman of the jury then advised the court that one member of the jury had surgery scheduled for Monday morning and could not return for further deliberations. At the bench the juror advised the court that she was scheduled for breast surgery which could not be postponed. The following colloquy ensued:

"THE COURT: Okay. Wait a minute. We have a choice. He [the defendant] can either go with 11, or I am not going to ask this lady to come back on Monday under the circumstances. We can either declare a mistrial, stay tonight or go with 11.

"[DEFENSE COUNSEL]: I would assume it would have to be stay tonight or go with the 11. I would have to ask my client if he would go with the 11, if that's the alternative.

"THE COURT: Why don't you go down there and we will wait right now.

"(The juror went back to the jury box.)

"( [Defense counsel] returned to the bench and the following ensued:)

"[DEFENSE COUNSEL]: Your Honor, could I ask the State's Attorney if their intentions are to prosecute the case if it's a mistrial? My client has advised me--

"THE COURT: You know they are going to prosecute him.

"[DEFENSE COUNSEL]: My client has advised me that he does not want to interfere with this person's surgery, and he will go with the 11.

"THE COURT: He will go with the 11? Okay."

The juror was excused and, on the following Monday, the eleven remaining members of the jury reached unanimous verdicts on the charges, finding Kenney guilty of battery and unlawfully transporting a handgun. Kenney was found not guilty of false imprisonment and kidnapping.

The Court of Special Appeals reversed Kenney's convictions, and remanded the case for a new trial, holding that a personal inquiry of the accused is necessary for there to be a valid waiver of a 12-person jury. Kenney v. State, 88 Md.App. 289, 594 A.2d 1174 (1991). We granted the State's petition for certiorari to consider this important question.

II.

The State argues that the intermediate appellate court erred in holding that a personal inquiry of the accused is necessary for there to be a valid waiver of a 12-person jury. This conclusion, the State submits, is supported by our cases interpreting our Declaration of Rights and the common law, the Maryland Rules of Procedure, and out-of-state authority. We agree and explain.

In granting the State's petition for certiorari, we reformulated the question presented to explicitly require an examination of State v. McKay, 280 Md. 558, 375 A.2d 228 (1977). In that case the accused was erroneously led to believe that unless he agreed to accept a majority verdict of the jury on one count of the indictment he would be retried on all counts, including those of which he had been acquitted. We held that unanimity of jury verdict is a right guaranteed the accused in a criminal trial by Article 21 of the Maryland Declaration of Rights ¹ which explicitly requires the "unanimous consent" of the jury for a finding of guilt. McKay, 280 Md. at 566, 375 A.2d at 233. We further held that "[s]ince a unanimous jury verdict is a fundamental constitutional right guaranteed the defendant in a criminal case, it can be dispensed with only when he 'competently and intelligently' waives that right," citing the standard enunciated in Johnson v. Zerbst, 304 U.S. 458, 469, 58 S.Ct. 1019, 1025, 82 L.Ed. 1461, 1469 (1938). McKay, 280 at 572, 375 A.2d at 236. Since it was apparent from the record that McKay's waiver of a unanimous jury was based "on a grossly inaccurate premise," we concluded that he was entitled to a new trial on the one count of which he had been convicted by a nine to three vote of the jurors and that he stood acquitted of the other charges in the indictment. Id. at 573-74, 375 A.2d at 236-37.

The fundamental constitutional right at stake in McKay is not comparable to the right at issue in the case sub judice because there is a well-recognized distinction between the waiver of jury unanimity and the waiver of a 12-person jury. See United States v. Smedes, 760 F.2d 109, 112-13 (6th Cir.1985); United States v. Essex, 734 F.2d 832, 840 (D.C.Cir.1984); United States v. Pachay, 711 F.2d 488, 492 (2d Cir.1983); United States v. Scalzitti, 578 F.2d 507, 510-11 (3d Cir.1978); United States v. Vega, 447 F.2d 698, 701 (2d Cir.1971), cert. denied, 404 U.S. 1038, 92 S.Ct. 712, 30 L.Ed.2d 730 (1972). See also State v. Griffith, 561 So.2d 528, 530 (Fla.1990) (recognizing distinction between fundamental right to jury trial and question of how many jurors would serve at that trial); State v. Machia, 155 Vt. 192, 195, 583 A.2d 556, 558 (1990) (same). The only question in this case was the number of jurors that would be sitting to reach a unanimous decision.

The Supreme Court has held that the constitutional guarantee of a "trial by jury" does not require a trial by a panel of 12 in a state court. Williams v. Florida, 399 U.S. 78, 86, 90 S.Ct. 1893, 1898, 26 L.Ed.2d 446, 452-53 (1970). As the Williams Court established, "the fact that the jury at common law was composed of precisely 12 is a historical accident, unnecessary to effect the purposes of the jury system and wholly without significance 'except to mystics.' " Id., 399 U.S. at 102, 90 S.Ct. at 1907, 26 L.Ed.2d at 461. The Court added:

"To read the Sixth Amendment as forever codifying a feature so incidental to the real purpose of the Amendment is to ascribe a blind formalism to the Framers which would require considerably more evidence than we have been able to discover in the history and language of the Constitution or in the reasoning of our past decisions.... Our holding does no more than leave these considerations to Congress and the States, unrestrained by an interpretation of the Sixth Amendment that would forever dictate the precise number that can constitute a jury."

Id. at 102-03, 90 S.Ct. at 1907, 26 L.Ed.2d at 461-62.

The Williams Court held that a six-person jury satisfied the Sixth Amendment requirement ² because such a jury has the "essential feature of a jury," that is "the interposition between the accused and his accuser of the common sense judgment of a group of laymen, and in the community participation and shared responsibility that results from that group's determination of guilt or innocence." Id. at 100, 90 S.Ct. at 1906, 26 L.Ed.2d at 460. The jury need only be "large enough to promote group deliberation, free from outside attempts at intimidation, and to provide a fair possibility for obtaining a representative cross-section of the community." Id. Unlike the "historical accident" of jury size, unanimity relates directly to the deliberative function of the jury. Unanimity serves to effectuate the purpose of the jury system by promoting the full expression of the views of all members of the jury and by insuring that those views are taken into account as fully and fairly as possible in reaching a verdict. Scalzitti, supra, 578 F.2d at 512.

Nor is there any imperative requirement of a 12-person jury which cannot be waived based on Article 5 of the Maryland Declaration of Rights which provides in pertinent part: "That the Inhabitants of Maryland are entitled to the Common Law of England, and the trial by Jury, according to the course of that Law ..." In McKay, supra, we examined the development of the common law right to a jury trial in Maryland:

"Despite the provision in Article 5 entitling inhabitants of Maryland 'to the Common Law of England, and the trial by Jury, according to the course of that Law,' Article 21 embraces the Maryland colonial experience. Waiver of the right to trial by jury was recorded as early as 1642, only eight years after settlement of St. Mary's, IV Archives of Maryland 165 (1642), and juries of 10 and 11 men were summoned on at least a few occasions in civil suits. LXX Archives xv. 72, 160 (1681-82). Early proceedings of the General Assembly are also illuminating. An act of 1642 stated:

'... the Defendt. in any cause civill or Criminall may put himself for tryall upon the judge or Court or, upon his Country or may wage his Law in cases allowable by the law of England[.] if both parties joyn in the tryall it Shall be tryed according to their agreemt.' I Archives of Maryland 151, 186 (1642).

Thus, by 1776, Maryland had long since departed from the English common law, by judicial decision or legislative enactment, in permitting waiver of not only trial by jury, but also at least one of its [traditional] elements, the 12-man jury. Cf. Singer v. United States, 380 U.S. [24,] 27-31 [85 S.Ct. 783, 786-88, 13 L.Ed.2d 630] [ (1965) ] (jury trial not waivable at common law); Patton v. United States, 281 U.S. [276,] 28...