Thompson v. State

• Decision Date: 04 November 2002
• Docket Number: No. 5,5
• Citation: 810 A.2d 435,371 Md. 473
• Parties: Terry Hugh THOMPSON, v. STATE of Maryland.
• Court: Maryland Court of Appeals

810 A.2d 435

371 Md. 473

Terry Hugh THOMPSON, v. STATE of Maryland.

No. 5, Sept. Term, 2002.

Court of Appeals of Maryland.

November 4, 2002.

Michael R. Braudes, Asst. Public Defender (Stephen E. Harris, Public Defender, and Stacy W. McCormack, Asst. Public Defender, on brief), Baltimore, for petitioner.

Diane E. Keller, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for respondent.

Argued before BELL, C.J., and ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ BATTAGLIA, Judge.

Having been convicted of possession of marijuana, possession with intent to distribute marijuana, and possession of controlled paraphernalia, Terry Hugh Thompson ("Thompson") asks us to consider whether the trial judge erred when he permitted a mid-trial amendment to the indictment altering statutory references in the body and at the end of the count charging Thompson with possession of controlled paraphernalia. Thompson also alleges that the trial judge erred by adding inappropriate language in the jury instruction regarding the "duty to deliberate." We conclude that, because the amendment to the indictment was not a "change in the character of the offense charged," no prejudice befell Thompson. We also find that the language used by the trial judge, instead of the "duty to deliberate" instruction, was erroneous and prejudicial to Thompson; therefore, we reverse the Court of Special Appeals and remand for a new trial.

I. Background

On April 27, 2000, Detective Joseph New and other officers of the Montgomery County Police Department executed a search warrant for 2101 Forest Glen Road, Silver Spring, Maryland. During the search, the officers recovered a black bag containing numerous glassine baggies and a digital scale on the night stand of Thompson's bedroom. In addition, three bags of marijuana,¹ cash totaling $190.00, a pack of rolling papers, a box of Philly Blunt cigars, sandwich bags, and a pipe² were also recovered in the same room.

Thompson was arrested and interviewed after receiving his Miranda warnings. During that interview, Thompson admitted that the marijuana belonged to him for his own personal use, although he sometimes sold some to his friends.

Thompson was indicted on charges of possession with intent to distribute a controlled dangerous substance in violation of Maryland Code Art. 27, Section 286(a)(1) (1957, 1996 Repl.Vol.), possession of controlled paraphernalia in violation of Maryland Code Art. 27, Section 287A (1957, 1996 Repl.Vol.), and possession of a controlled dangerous substance in violation of Maryland Code Art. 27, Section 287(a) (1957, 1996 Repl.Vol.).

The Second Count, possession of controlled paraphernalia, contained the following language:

The Grand Jurors of the State of Maryland, for the body of Montgomery County, upon their oaths and affirmations, present that TERRY HUGH THOMPSON, on or about April 27, 2000, in Montgomery County, Maryland unlawfully did possess controlled paraphernalia in sufficient quantity to and under circumstances which reasonably indicate an intention to use such items for the illegal distribution and dispensing of a controlled dangerous substance, to wit: a digital scale, glassine baggies, Philly blunt cigars, rolling papers, and a wooden pipe, in violation of Article 27, Section 287A of the Annotated Code of Maryland, contrary to the form of the Act of Assembly in such case made and provided, and against the peace, government and dignity of the State. (Possession of Controlled Paraphernalia, Article 27, Section 287A)

Thompson's trial in the Circuit Court for Montgomery County began on December 5, 2000. On the final day of trial, the State moved to amend the Second Count by striking the statutory references to Maryland Code, Art. 27, Section 287A and adding, in their stead, references to Article 27, Section 287(d)(2). In unsuccessfully objecting to this amendment, Thompson iterated that it would alter the punishment he could face from a fine to a potential of a one-year incarceration for this count.

At the close of arguments, the trial judge indicated he was going to instruct the jury with what he called the "attitude of jurors" instruction. Thompson objected to the court's proposed instruction and indicated his preference for the "duty to deliberate" Maryland Criminal Pattern Jury Instruction, (MPJI-Cr) 2:01.³

Thompson's attorney excepted to the instruction, and Thompson was convicted on all three counts. The Court of Special Appeals, in an unreported opinion, affirmed the lower court's decision regarding both issues. The court held that the amendment of the statutory reference to the indictment was only a change of form, not substance, and that the jury instruction given, as a whole, was not coercive and did not encourage any jurors to relinquish their beliefs solely to reach a verdict.

Thompson filed a Petition for Writ of Certiorari, which we granted, Thompson v. State, 368 Md. 526, 796 A.2d 695 (2002), to address two separate issues:

A. Did the trial court err in failing to give the Maryland Criminal Pattern Jury Instruction regarding the jury's duty to deliberate, and giving its own modified version of the instruction instead?

B. Does an amendment to a charging document, which changes the statute under which a defendant has been charged from Article 27, Section 287A to Article 27, Section 287(d)(2), thereby increasing the maximum penalty the defendant may face, constitute a "change in the character of the offense charged"?

II. Discussion

A. Jury Instruction.

The first issue posed by our grant of certiorari is whether the trial judge erred in instructing the jury with what he called the "attitude of jurors" instruction rather than the "duty to deliberate" Maryland Pattern Jury Instruction 2:01. We answer that question in the affirmative.

Rule 4-325 of the Maryland Rules defines the timing of jury instructions and the content of those instructions. The Rule states that, "[t]he court may, and at the request of any party shall, instruct the jury as to the applicable law and the extent to which the instructions are binding." Maryland Rule 4-325(c) (2000). As we have often stated, the purpose of instructing a jury is "to aid the jury in clearly understanding the case, to provide guidance for the jury's deliberations, and to help the jury arrive at a correct verdict." Chambers v. State, 337 Md. 44, 48, 650 A.2d 727, 729 (1994); General v. State, 367 Md. 475, 485, 789 A.2d 102, 108 (2002). An important aspect of this guidance is providing a description of the process by which the jury is supposed to deliberate. See, Kelly v. State, 270 Md. 139, 142, 310 A.2d 538, 540-41 (1973)

.

In the present case, the trial judge instructed the jury on the process of deliberation as follows:

The attitude and conduct of jurors at the outset of their deliberations are matters of considerable importance. It is rarely productive or good for a juror upon entering the jury room to make an emphatic expression of his or her opinion on the case or to announce a determination to stand for a certain verdict.

Your verdict should only be arrived at after careful and thoughtful deliberation. And it may be helpful to listen to consult with each other and to discuss the evidence and the deductions to be drawn therefrom freely and fairly in a sincere effort to arrive at a just verdict. This, however, does not mean that any juror is required to yield an honest conviction after such consultation or deliberation.

Remember that you are not partisans or advocates but rather jurors. The final test of the quality of your service will lie in the verdict which you return to the Court, not in the opinions any of you may hold as you retire.

Have in mind that you will make a definite contribution to efficient judicial administration if you arrive at a just and proper verdict in this case. To this end, the Court reminds you that in your deliberations in the jury room there can be no triumph except in the ascertainment and declaration of the truth.

Your verdict must represent the considered judgment of each juror and must be unanimous. In other words, all 12 of you must agree.

Thompson asserts that the process of deliberation should have been described as that given in the Maryland Criminal Pattern Jury Instruction (MPJI-Cr) 2:01 as he requested during trial. MPJI-Cr 2:01, entitled "Jury's Duty to Deliberate," is as follows:

The verdict must be the considered judgment of each of you. In order to reach a verdict, all of you must agree. Your verdict must be unanimous.

You must consult with one another and deliberate with a view to reaching an agreement, if you can do so without violence to your individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors.

During deliberations, do not hesitate to reexamine your own views. You should change your opinion if convinced you are wrong, but do not surrender your honest belief as to the weight or effect of the evidence only because of the opinions of your fellow jurors for the mere purpose of reaching a verdict.

Maryland Criminal Pattern Jury Instruction (MPJI-Cr) 2:01.

We first addressed the appropriate language to be used in a criminal case to instruct a jury on its duty to deliberate prior to its adjournment to consider the fate of a defendant in Kelly, 270 Md. at 140, 310 A.2d at 539-40. In that case, we were asked to reverse a conviction for manslaughter and remand for a new trial because the following language was used by the trial court in the instruction given to the jury before it retired:

May I say to you when you retire to consider this case it may well be that there will be a difference of opinion between you. If that is so, that is not something to be concerned about because obviously when there are three days of testimony it's not unlikely that there may be some difference. What I ask you to do is for each

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