State v. McKay

• Decision Date: 05 July 1977
• Docket Number: No. 108,108
• Citation: 375 A.2d 228,280 Md. 558
• Parties: , 97 A.L.R.3d 1238 STATE of Maryland v. Johnny McKAY.
• Court: Maryland Court of Appeals

Page 558

280 Md. 558

375 A.2d 228, 97 A.L.R.3d 1238

STATE of Maryland v. Johnny McKAY.

No. 108.

Court of Appeals of Maryland.

July 5, 1977.

Clarence W. Sharp, Asst. Atty. Gen., Baltimore (Francis B. Burch, Atty. Gen., and Deborah K. Handel, Asst. Atty. Gen., Baltimore, on the brief), for appellant.

Martha G. Villmoare, Baltimore (Alan H. Murrell, Public Defender, Arnold M. Zerwitz and George E. Burns, Jr., Asst. Public Defenders, Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE and ELDRIDGE, JJ.

LEVINE, Judge.

We granted certiorari in this case primarily to decide whether unanimity of a jury verdict under the Maryland Constitution is an imperative requirement that cannot be waived by the defendant in a criminal case. Following appellee's purported waiver of jury unanimity, he was convicted of robbery by a nine-to-three vote of a jury in the Criminal Court of Baltimore. He then appealed the conviction to the Court of Special Appeals, which held that unanimity could not be waived and therefore reversed the conviction. McKay v. State, 32 Md.App. 451, 462-63, 362 A.2d 666 (1976). Although we think a unanimous jury verdict is a right guaranteed the accused, which he can waive, we affirm the judgment of the Court of Special Appeals because in this instance the waiver did not meet constitutional standards.

Subsequent to his indictment on a charge of armed robbery and seven related offenses, appellee came on for trial before a jury in the Criminal Court of Baltimore. At the conclusion of the State's case, the court granted judgment of acquittal as to all but the first count charging armed robbery, the third count charging robbery, and the eighth count charging use of a handgun in the commission of a crime of violence. Ultimately, those charges were submitted to the jury. The jury deliberated for approximately one hour; then, although the forelady had stated initially that the jury was in agreement, she proceeded to announce that the jury had found appellee not guilty under the first count, but "could not come to a unanimous decision" as to the third count. The court then admonished the jury that it must make a "unanimous determination." With that, the jury resumed its deliberations, but returned 90 minutes later, still unable to reach a unanimous verdict on the third count.

With appellee present during the third of a series of bench conferences, his attorney informed the court that appellee would accept a majority vote on the third count. ¹ The court reminded appellee that he had "a right to insist upon a unanimous vote," or alternatively, a "constitutional right" to a "retrial." Appellee then informed the court that he would accept a majority verdict. ² After being cautioned by the court that he had "an absolute right under the law to have the whole trial tried all over again," appellee requested permission to consult privately with counsel. (Emphasis added). The court excused the jury for a few minutes; then, following his conference, appellee declined an opportunity to confer with members of his family who were present and again advised the court that he would accept "a majority vote." ³

The jury then returned, and the forelady announced that appellee had been found not guilty under counts one and eight, but that nine jurors had voted "guilty" as to count three and three had voted "not guilty." The clerk hearkened the verdict as one of guilty under count three, which was confirmed by a poll of the jury.

In reversing the conviction, the Court of Special Appeals expressed the view that the provision in Article 21 of the Maryland Declaration of Rights for "a speedy trial by an impartial jury, without whose unanimous consent (the accused) ought not to be found guilty" does not "bestow a right but imposes a mandate." McKay v. State, 32 Md.App. at 462, 362 A.2d at 674 (emphasis added). Accordingly, held the court, "unanimity is an imperative requirement of a legal verdict in a Maryland criminal prosecution before a jury, and not a right of the accused which he may waive." Id. at 463, 362 A.2d at 674.

I

The unanimous jury verdict traces its ancestry to the Middle Ages. Apodaca v. Oregon, 406 U.S. 404, 407-408, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972); see Johnson v. Louisiana, 406 U.S. 356, 383 n. 2, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972) (Douglas, J., dissenting). Although its origins are shrouded in obscurity, it is safe to say that the various reasons offered for its development have long since ceased to support its continued vitality. ⁴

By the 18th Century, the unanimous verdict had established itself as a basic attribute of the common law jury. Thus, wrote Blackstone, "the founders of the English law have with excellent forecast contrived . . . that the truth of every accusation, whether preferred in the shape of indictment, information, or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbors, indifferently chosen, and superior to all suspicion." 4 W. Blackstone, Commentaries * 349-50. More expressively, perhaps, he wrote that "in order to avoid intemperance and causeless delay, (the jury) are to be kept without meat, drink, fire, or candle, unless by permission of the judge, till they are all unanimously agreed." 3 id. at * 375. ⁵ That unanimity was therefore at common law an essential element of the revered trial by jury is beyond any question:

"Upon these accounts the trial by jury ever has been, and I trust ever will be, looked upon as the glory of the English law. . . . (I)t is the most transcendent privilege which any subject can enjoy, or wish for, that he cannot be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbours and equals. . . ." 3 id. at * 379. ⁶

Cf. Singer v. United States, 380 U.S. 24, 27-28, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965) (right to trial by jury could not be waived at common law).

II

Until Williams v. Florida, 399 U.S. 78, 91-93, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), the decisions of the Supreme Court proceeded on the assumption that the trial by jury established by the Federal Constitution ⁷ meant a jury trial as understood and applied at common law, and included all the essential elements recognized in this country and in England when the Constitution was adopted. Patton v. United States, 281 U.S. 276, 288-90, 50 S.Ct. 253, 74 L.Ed. 854 (1930); Maxwell v. Dow, 176 U.S. 581, 586, 20 S.Ct. 448, 44 L.Ed. 597 (1900). Those elements were the 12-man jury, the presence and superintendence of a judge having the power to instruct the jury on the law and to advise them upon the facts, and the unanimous verdict. Patton v. United States, 281 U.S. at 288, 50 S.Ct. 253 (dictum). Thus, it was said, unanimity was "required where the Sixth and Seventh Amendments apply." Andres v. United States, 333 U.S. 740, 748, 68 S.Ct. 880, 884, 92 L.Ed. 1055 (1948). So readily was it assumed, apparently, that a unanimous jury was required in criminal prosecutions that the issue of the constitutionality of non-unanimous verdicts never arose in the Supreme Court until this decade.

Despite the premise reflected in those prior decisions, however, Mr. Justice White wrote for the Court in Williams v. Florida, 399 U.S. at 92-93, 90 S.Ct. at 1902, that "the relevant constitutional history casts considerable doubt on the easy assumption in our past decisions that if a given feature existed in a jury at common law in 1789, then it was necessarily preserved in the Constitution." The history of the jury trial provision in Article III was characterized as " 'very scanty,' " and as shedding "little light either way" on the intended correlation between the Article III trial by jury and the attributes of the jury at common law. Id. at 93, 90 S.Ct. 1893.

The Court noted that the version of the Sixth Amendment introduced by James Madison in the House explicitly provided for " 'an impartial jury of freeholders of the vicinage, with the requisite of unanimity for conviction, of the right of challenge, and other accustomed requisites. . . .' " Williams v. Florida, 399 U.S. at 94, 90 S.Ct. at 1903 (footnote omitted). ⁸ Because the Senate objected to the House version, particularly to the "vicinage" requirement, the matter was referred to a conference committee. What finally emerged was the Sixth Amendment in its present form. Absent were the provisions for "unanimity," the "accustomed requisites," and the "vicinage" requirement. From this, the Court found it plausible to conclude that the deletions were of a substantive nature. "(W)here Congress wanted to leave no doubt that it was incorporating existing common-law features of the jury system, it knew how to use express language to that effect." Id. at 97, 90 S.Ct. at 1904. In holding that the Sixth Amendment, as applied to the states through the Fourteenth Amendment, was not violated by a state law providing for a six-man rather than a 12-man jury in noncapital cases, the Williams Court leaned heavily on what it regarded as this absence of demonstrated intent by the framers "to equate the constitutional and common-law characteristics of the jury." Id. at 99, 90 S.Ct. at 1905.

While reaching this decision, the Court expressly left open the question whether unanimity "is an indispensable element of the Sixth Amendment jury trial." Id. at 100 n. 46, 90 S.Ct. at 1906. Although four members of the Supreme Court have concluded, subsequently, that unanimity is not such an indispensable element, see Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620 (plurality opinion of White, J.), unanimity remains a requirement in federal prosecutions. Id. at 369-70, 92 S.Ct. 1620 (Powell, J., concurring); accord, Andres v. United States, 333 U.S. at 748-49, 68 S.Ct. 880; Patton v. United States, 281 U.S. at 288-90, 50 S.Ct. 253; Maxwell v. Dow, 176 U.S. at 586, 20 S.Ct. 448. ⁹

Although we need not decide the issue, since ...