State v. Saul, 335
Decision Date | 07 May 1970 |
Docket Number | No. 335,335 |
Parties | STATE of Maryland v. Thomas Everett SAUL. |
Court | Maryland Court of Appeals |
John J. Garrity, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen., Edward F. Borgerding, Asst. Atty. Gen., Baltimore, and Arthur A. Marshall, Jr., State's Atty., for Prince George's County, Upper Marlboro, on the brief), for appellant.
Howard E. Goldman, Laurel (Barry Silber and Melbourne & Goldman, Laurel, on the brief), for appellee.
Argued before McWILLIAMS, SINGLEY, SMITH and DIGGES, JJ., and RIDGLEY P. MELVIN, Jr., Special Judge.
In May 1968 the appellee (Saul) was convicted of murder, abduction and assault with intent to rape. The Court of Special Appeals, two judges dissenting, reversed the convictions and remanded the cases to the Circuit Court for Prince George's County for a new trial. Saul v. State, 6 Md.App. 540, 252 A.2d 282 (1969). We granted the State's application for the writ of certiorari on 2 December 1969.
Saul filed pleas of not guilty and not guilty by reason fo insanity at the time of the commission of the crimes for which he was indicted. His trial generated a transcript of nearly 500 pages, well over half of which is given over to the testimony of five psychiatrists and a clinical psychologist. When the evidence was concluded the court, Powers and Loveless, JJ., instructed the jury. The instructions take up 12 pages of the transcript. We have set out below only the part thereof which is our present concern:
'A question in this case has been raised, and there has been considerable testimony concerning the mental capacity of the defendant.
'Under Article 59, Section 9 of the Code of Public Laws of the State of Maryland, (A) defendant is not responsible for criminal conduct and shall be found insane at the time of the commission of the alleged crime if, at the time of such conduct, as a result of mental disease or defect he lack(s)ed substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. Then it goes on to say that (A)s used in this section the terms 'mental disease or defect' do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct. In other words, it is not to be considered a mental disease or defect if the only manifestation is by repeated criminal or antisocial conduct.
(The language of the statute has been italicized.)
What happened thereafter has been described by Orth, J., who delivered the opinion of the Court of Special Appeals:
'* * * After the charge to the jury, the State and defense counsel presented closing arguments. The jury retired for their deliberations at 3:04 P.M., returned to the courtroom at 9:27 P.M. and rendered their verdicts. There is in the record by stipulation that while the jury were deliberating they sent a note to the court, signed by the foreman, reading, 'May the jury have legal code Article 59 section 9.' Counsel for the State and the appellant (Saul) were called to the chambers of one of the two judges presiding at the trial. The other presiding judge was not present. Counsel examined the note, considered the request, and agreed that a photostatic copy of Art. 59, section 9(a) could be sent to the jury. It was delivered to the jury by the bailiff. Court did not re-convene and the jury did not return to the courtroom. The appellant (Saul) was at no time present when the note was delivered to the judge, when the request was being considered by the judge and counsel or when the copy of the statute was delivered to the jury, as he was 'detained at the time in a lock-up portion of the sheriff's office located in the court house." Id. at 545, 252 A.2d at 284.
The Court of Special Appeals held that the delivery of the note from the jury to the judge was merely a 'communication' and that its reception by the judge, the conference with counsel and the agreement to give a copy of the statute to the jury did not amount to a part of the trial. Judge Orth, for the court, relying principally on Young v. State, 5 Md.App. 383, 247 A.2d 751 (1968), said that the 'communication to the jury was clearly as to the law on responsibility for criminal conduct and thus was an instruction.' Id. at 546, 252 A.2d at 284. He went on to say that when 'the judge reached his conclusion and was about to deliver the copy of the statute to the jury the trial was resumed and * * * (Saul) had the absolute right to be present.' Id.
The State argues that Young cannot be relied upon because our earlier decisions, principally Midgett v. State, 216 Md. 26, 139 A.2d 209 (1958), were misconstrued. We think not. Young was charged with assault with intent 'to kill and murder' and assault and battery. After the jury had begun its deliberations the foreman sent a note to the trial judge which read, 'Is wielding a deadly weapon in an assault and battery case considered an intention to kill?' The jury was brought back and given additional instructions. Neither Young nor his attorney was present in the courtroom at the time. Some hours later the jury returned a verdict of guilty on the assault and battery charge. Counsel for Young did not learn of the incident until the day after the conclusion of the trial.
In Midgett, Judge Horney, for the Court, said:
Id. at 36-37, 139 A.2d at 214-215.
In his able and comprehensive opinion, Judge Orth, in Young, paraphrased what was said in Midgett:
'We think that the Court distinguished between 'instruction or charge' on the one hand and 'communication' with the jury on the other hand. Intercourse between the judge and the jury as to the facts, the law or he form of verdict would necessarily be a 'charge or instruction' and intercourse between the judge and jury as to matters other than those would be a 'communication.' So when the judge 'communicates with the jury in answer to questions propounded by them', it may be a 'charge or instruction' or merely a 'communication' depending on the subject matter. Since the instruction or charge of the jury is a part of the trial, as we have stated supra, the accused has the absolute right to be present when a charge or instruction is given. But a mere 'communication' by the judge to the jury is not a...
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