Stokes v. State

• Decision Date: 05 November 1987
• Docket Number: No. 149,149
• Citation: 532 A.2d 189,72 Md.App. 673
• Parties: Vincent S. STOKES v. STATE of Maryland. Sept. Term 1987.
• Court: Court of Special Appeals of Maryland

Page 673

72 Md.App. 673

532 A.2d 189

Vincent S. STOKES v. STATE of Maryland.

No. 149 Sept. Term 1987.

Court of Special Appeals of Maryland.

Nov. 5, 1987.

Jose Felipe Anderson, Asst. Public Defender (Alan H. Murrell, Public Defender on the brief) Baltimore, for appellant.

Ronald M. Levitan, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Kurt L. Schmoke, State's Atty. for Baltimore City and Lawrence Doan, Asst. State's Atty. for Baltimore City, on the brief), Baltimore, for appellee.

Argued before WEANT, BLOOM and POLLITT, JJ.

BLOOM, Judge.

A jury in the Circuit Court for Baltimore City acquitted appellant, Vincent S. Stokes, of possession of cocaine with intent to distribute, simple possession of cocaine and possession of controlled paraphernalia, but convicted him of unauthorized use of an automobile. The court imposed the maximum sentence, a prison term of four years.

Appellant contends that the trial judge erred when, sua sponte, he substituted an alternate juror for a designated juror during the trial. He also contends that the judge erred in refusing to give the jury a proper instruction requested by appellant and by basing the sentence upon the evidence pertaining to the three charges of which he was acquitted. We agree with appellant's contention regarding the substitution of jurors, and we will reverse the conviction for that reason. It will not be necessary, therefore, to address the other issues.

During the trial, the presiding judge interrupted the proceedings and announced that he had observed juror number eleven at times sleeping and at other times smiling at appellant, with appellant returning the smiles. Without conducting any inquiry of the juror, and over the strenuous objection of appellant, the judge dismissed juror number eleven and substituted for her the first alternate, explaining that he strikes sleeping jurors "regularly when [he sees] a situation like that."

We have heretofore recognized, in a somewhat different context, that a defendant has a " 'valued right to have his trial completed by a particular tribunal.' " Tabbs v. State, 43 Md.App. 20, 22, 403 A.2d 796 (1979) (quoting Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974, 978 (1949)). We have also noted " 'the importance to the defendant of being able, once and for all, to conclude his confrontation with society through the verdict of a tribunal he might believe to be favorably disposed to his fate.' " Tabbs, supra, [43 Md.App.] at 22, 403 A.2d 796 (quoting United States v. Jorn, 400 U.S. 470, 486, 91 S.Ct. 547, 558, 27 L.Ed.2d 543, 557 (1971)). Because a defendant has a substantial right to have the jury that was impanelled ultimately decide his fate, a judge should not dismiss a juror unless the record reveals that such dismissal is clearly warranted.

Maryland Rule 4-312(b)(3) provides that in all non-capital cases "[a]ny juror who, before the time the jury retires to consider its verdict, becomes or is found to be unable or disqualified to perform a juror's duty, shall be replaced by an alternate juror in the order of selection." In James v. State, 14 Md.App. 689, 288 A.2d 644 (1972), this Court noted that Rule 748 of the Maryland Rules of Procedure (a forerunner to Maryland Rule 4-312)

... does not define the circumstances under which a juror shall "become unable or disqualified" to perform his duties and each case must stand on its own facts. Though the directive of the Maryland Rule--"shall replace jurors"--is couched in mandatory terms, it is obvious that the word "shall" as used therein is directory. Thus, the substitution vel non of a supernumerary for a regular juror lies within the sound discretion of the trial judge. Such an exercise of discretion will not be disturbed on appeal unless arbitrary and abusive in its application.

Id. at 699, 288 A.2d 644.

In Tisdale v. State, 41 Md.App. 149, 396 A.2d 289 (1979), we stated that

... where the issue is disqualification for cause, the court's discretion is necessarily more limited than where the issue is the juror's ability to continue. A proceeding to determine whether a juror should be disqualified for bias or partiality is much akin to the initial jury selection process. The ultimate issue, in both instances, is the fairness of the trial itself, and the same, or closely similar, considerations pertain to both types of proceedings.... Where the question is the juror's ability to continue, however, the issue is not so much one of fairness but of efficiency.

Id. at 156, 396 A.2d 289.

In the case sub judice, the trial judge did not specify whether he disqualified juror eleven for cause or because he felt she was unable to continue. With regard to the basis for his action, the judge remarked, "The first reason is the gross inattention toward the testimony, the second reason is the communications between the defendant and juror eleven ... communication is not the apt word...."

The mere exchange of smiles between the juror and appellant, without more, did not amount to a showing of bias. We have pointed out that "[a] juror may be struck for cause only where he or she displays a predisposition against innocence or guilt because of some bias extrinsic to the evidence to be presented." McCree v. State, 33 Md.App. 82, 98, 363 A.2d 647 (1976), citing Johnson v. State, 9 Md.App. 143, 149, 262 A.2d 792 (1970). Mere smiles, without more, would not amount to such a predisposition. At the very least, some inquiry by the judge as to why the juror smiled at appellant would appear to have been in order. Had the juror been questioned with regard to her knowledge of or relationship to appellant, bias might have been established. Otherwise, the juror should be free to smile at appellant just as she should be free to smile at the victim or at the State's Attorney.

By the same analysis, we do not believe that the judge's observation of "gross inattentiveness," disputed by defense counsel, was sufficient to establish that the juror was unable to continue.

Maryland Rule 4-312(b)(3) is similar in effect to Rule 24(c) of the Federal Rules of Criminal Procedure, which specifically authorizes a trial judge to remove a juror and replace him with an alternate if the judge finds the juror to be "unable or disqualified to perform [his] duties." The exercise of that authority to remove a juror who slept through a portion of the trial and replace him or her with an alternate was affirmed in United States v. Warner, 690 F.2d 545 (6th Cir.1982); United States v. Cohen, 530 F.2d 43 (5th Cir.1976); United States v. Cameron, 464 F.2d 333 (3rd Cir.1972); and United States v. Smith, 550 F.2d 277 (5th Cir), cert. denied, 434 U.S. 841, 98 S.Ct. 138, 54 L.Ed.2d 105 (1977). State appellate courts have also upheld the substitution of a supernumerary for a sleeping juror, on the theory that the trial judge has a discretionary right, if not a positive duty, to remove a juror who is unqualified to perform his or her duties. See People v. Russell, 112 A.D.2d 451, 492 N.Y.S.2d 420 (N.Y.App.Div.1985); People v. Dupont, 111 Misc. 2d 328, 444 N.Y.S.2d 40 (1981); State v. Youngblood, 648 S.W.2d 182 (Mo.Ct.App.1983). Indeed, in one case in which defense counsel requested the court to substitute an alternate for a juror who counsel alleged was sleeping during the court's charge to the jury, it was held that the trial judge erred in denying the request without at least conducting a hearing or questioning the juror. State v. Reevey, 159 N.J.Super. 130, 387 A.2d 381, cert. denied, 79 N.J. 471, 401 A.2d 228 (1978). Normally, however, refusal of the trial judge to remove a juror who has been sleeping during the trial or to grant a mistrial on that ground has been upheld where the trial judge either was not convinced that the juror had been sleeping, State v. Wiggins, 7 Conn.App 95, 507 A.2d 518 (1986); State v. Lesley, 672 P.2d 79 (Utah 1983); People v. Hanes, 42 Colo.App. 527, 596 P.2d 395 (1978), aff'd, 198 Colo. 31, 598 P.2d 131 (1979); State v. Johnson, 463 So.2d 620 (La.App.1984), or found that the juror was asleep for such a brief time that no prejudice occurred. Norris v. State, 490 So.2d 839 (Miss.1986); State v. Tabor, 657 S.W.2d 317 (Mo.Ct.App.1983). For discussion of the question of inattention of a juror from sleepiness or other cause as a ground for reversal or new trial, see Annotation, Inattention of Juror from Sleepiness or Other Cause as Ground for Reversal or New Trial, 88 A.L.R.2d 1275 (1963).

In State v. Cass, 356 So.2d 396 (La.1977), the Supreme Court of Louisiana reversed a conviction where a juror was summarily removed because the trial judge observed the juror sleeping--head hanging low, bobbing or nodding, and eyes closed--for two to four minutes. After the juror was replaced, the defendant moved for a mistrial and the trial judge denied that motion. The Court held that even if the juror did briefly doze off, that fact would not necessarily disqualify him:

Had the juror been shown to have been sleeping through a substantial part of the trial or had he been unable to stay awake despite warnings or efforts to arouse him, and had the defendant and the state been afforded an opportunity to explore on the record the defendant's [sic] inability to perform on this account, we would be presented with a substantially different question for review.

356 So.2d 398. (Emphasis added.)

Here, as in Cass, the trial judge removed the juror summarily, solely on the basis of his own observations, without giving either the accused or the State an opportunity to determine for the record whether the juror was, in the language of Md. Rule 4-312(b)(3), "unable or disqualified to perform a juror's duty."

We agree with the reasoning of the Supreme Court of Pennsylvania that "[w]hile the decision to remove a juror because of inability to perform the usual functions of a juror is within the sound discretion of the trial judge, the exercise of this judgment must be based upon a...