Tisdale v. State

• Citation: 41 Md.App. 149,396 A.2d 289
• Decision Date: 11 January 1979
• Docket Number: No. 447,447
• Parties: Robert Tyrone TISDALE v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 149

41 Md.App. 149

396 A.2d 289

Robert Tyrone TISDALE v. STATE of Maryland.

No. 447.

Court of Special Appeals of Maryland.

Jan. 11, 1979.

Thomas E. Grzech, Assigned Public Defender, for appellant.

Francis B. Burch, Atty. Gen., Deborah K. Handel, Asst. Atty. Gen., William A. Swisher, State's Atty. for Baltimore City and Marshall H. Feldman, Asst. State's Atty. for Baltimore City, for appellee.

Submitted to MOORE, LOWE and WILNER, JJ.

WILNER, Judge.

On March 12, 1975, appellant was convicted by a jury in the Criminal Court of Baltimore of robbery with a dangerous and deadly weapon and use of a handgun in the commission of a felony, for which he was sentenced to concurrent terms of imprisonment of fifteen and five years, respectively. On appeal, we reversed those convictions and remanded the case for a new trial. Tisdale v. State, 30 Md.App. 334, 353 A.2d 653 (1976). Our mandate issued March 29, 1976.

Pursuant to that mandate, Tisdale was retried, again before a jury, on October 11-14, 1976, and was again convicted of robbery with a dangerous and deadly weapon. He was once more sentenced to prison for 15 years. He appealed, but neglected to comply with Maryland Rule 1025 (Record Time for Transmitting), and, as a result, his appeal was stricken on March 29, 1977. In a subsequent proceeding filed under the Uniform Post Conviction Procedure Act, however, he was, on July 5, 1977, granted a belated appeal, and, after numerous extensions of time to file the transcript and transmit the record, ¹ the appeal is now, in December, 1978, finally before us.

The evidence presented by the State in the second trial was substantially the same as that presented in the first. It may be fairly summarized from what we said in our earlier Opinion. Tisdale v. State, supra, 30 Md.App. at 336, 353 A.2d at 655:

"Testimony was produced at trial from which the jury could find that the facts were as follows: On October 2, 1974, at approximately 12:20 A.M., the victim, William Cunningham, was operating his taxicab in the vicinity of Warwick and North Avenues, Baltimore, Maryland, and picked up appellant as a fare. Upon reaching his destination at the 1500 block of Whitelock Street, appellant alighted from the taxicab, pulled a gun out of his pocket and demanded Mr. Cunningham's money. He then took eight or nine dollars from Cunningham's shirt pocket, disabled his radio and told him to drive off. Mr. Cunningham drove one quarter block, stopped the cab, took a revolver from under the seat and began to pursue appellant, firing several shots before overtaking and apprehending him.

"Officer Boysie Watkins, on routine patrol, came upon the scene and observed Mr. Cunningham holding the appellant against the side of his cab. Mr. Cunningham explained that he had just been robbed. At that point, according to the testimony of the officer and the victim, appellant made an utterance in which he admitted the robbery. He was then arrested. . . ."

Tisdale's version of what occurred was quite different. He denied having been a passenger in the cab but claimed that he was simply standing on the corner talking to friends when Cunningham tapped him on the shoulder and asked to speak with him privately. He said that Cunningham complained of just being robbed by two men and solicited appellant's help in locating the men. When appellant explained that he was a relative stranger in the area, he said Cunningham became angry and pulled a gun on him. He said he then struggled with Cunningham, during the process of which the gun went off several times, but eventually he ended up being forced by Cunningham against the side of the cab at about the same time the police arrived.

Appellant maintained that the police had originally arrested Cunningham for creating a disturbance, and that it was not until about twenty minutes later that he was arrested on a trumped-up charge of allegedly robbing Cunningham.

Appellant makes five complaints in this appeal, none of which have merit. We shall discuss them in sequence.

(1) Did the trial judge's telephone conversation with a juror in chambers, out of the presence of appellant, constitute a critical stage of the trial, at which appellant had the absolute right to be present?

When court recessed at the end of the second day of trial, both the State and the defense had completed their respective cases-in-chief. The State indicated a desire to call one rebuttal witness.

The next morning, as court convened, the court announced that it had been informed by the Clerk's office that Juror No. 6, Ms. Smallwood, had called to report that her child was sick and that she would therefore not be present in court. Defense counsel said that he had no objection to seating one of the alternate jurors, but, after discussing the matter with appellant, he announced that appellant objected to that approach:

"Your Honor, I have spoken to Mr. Tisdale and his position is, it is very late in the trial, obviously, and he feels that because Mrs. Smallwood was sitting as one of the twelve on the Jury, she was paying more attention than maybe an alternate would. He felt it would be detrimental to him. He wants to wait until Ms. Smallwood is able to come back and sit on the Jury. He asked me to make a Motion at this time for postponement until Ms. Smallwood could come back to the Jury."

The court then offered to send the sheriff out to bring Ms. Smallwood in, but Tisdale said that he didn't want the court to do that. The court thereupon said that "I will make a personal call to her home and I will advise you what the situation is." Counsel, but not appellant himself, accompanied the judge to his chambers from which, in their presence, he called Ms. Smallwood. Returning then to the courtroom, the court announced, outside the presence of the jury:

"Mr. Tisdale, Mr. Isaacson, in Mr. Isaacson's and the State's Attorney's presence, the Court called Mrs. Smallwood at her home phone number. She answered the phone and she indicated that her child is about two years old. She took the child to St. Agnes last night. The child was vomiting and she took the child to the emergency room where the child received some treatment. She secured medication from the doctors there, she then took the child home. She is presently at home with the child. There is no one else at the home except her to take care of the child.

"Under those circumstances, I think it would be a little improper for me to insist that she come down here and to send the sheriff out to bring her in here. Under those circumstances, that is the reason we pick alternates is that in case something like this happens, an emergency arises in the lives of one of the Jurors, and that is to prevent any impediment to the continuation of the trials. I will seat the alternate number one in seat number six."

We note initially that appellant does not complain here about the court's decision to seat the alternate and proceed with trial, or about the fact that the judge called the juror, so those issues are not before us. He complains only that he was not present when the conversation with the juror took place.

The law is quite clear, of course, that a criminal defendant has a right to be present at every stage of his trial, and that this right not only emanates from the common law, but is provided and protected as well by the State and Federal Constitutions and by Maryland Rule 724. See Bunch v. State, 281 Md. 680, 381 A.2d 1142 (1978). But, as the Court noted in Bunch, "not everything that happens in a criminal case after the jury is impaneled is deemed a 'stage of the trial' at which the defendant has a right to be present." 281 Md. at 684, 381 A.2d at 1144. The question here, of course, is whether this conversation with the juror was such a stage.

By way of short preface, we caution the trial courts that a defendant's right of presence is a fundamental one, not to be trifled with; and, if there is the slightest doubt as to whether a particular matter or event arising during the course of a trial is a "stage of the trial" requiring the defendant's presence, the doubt should, wherever possible, be resolved in his favor; I. e., mandating his presence. This is simply a matter of exercising abundant care to assure that the trial is not only fair in fact, but also in appearance.

Turning to the precise question raised here, it does not appear that the Maryland appellate courts have ever ruled directly on it, ² however a number of Federal courts have; and the consensus seems quite clearly to be that it is not impermissible for a judge to make such an inquiry of a juror outside the presence of the defendant.

In United States v. Woodner, 317 F.2d 649 (2nd Cir., 1963), Cert. den., 375 U.S. 903, 84 S.Ct. 192, 11 L.Ed.2d 144, the Court concluded that no reversible error was committed when, near the end of the trial, the judge spoke privately with a juror who had asked to be excused for personal hardship in an attempt to convince the juror to remain on the jury. Noting that counsel had agreed to this private meeting, the Court concluded that, even if that were not the case, prejudice would not be presumed in the absence of some evidence of it. Said the Court (317 F.2d at 652): "We have enough confidence in the integrity and fairness of the District Judges to assume that they will not make unfair remarks to jurors while undertaking Administrative duties of this nature." (Emphasis supplied.)

Woodner was cited, and its rationale was applied, in United States v. Houlihan, 332 F.2d 8 (2nd Cir., 1964), Cert. den., 379 U.S. 828, 85 S.Ct. 56, 13 L.Ed.2d 37. The juror there was a nurse who had asked to be excused before trial started because her employer, a patient suffering from heart illness, objected to her serving on what loomed as a two-month trial. Her request was denied at that time, but prior to the convening of court on the eighth day of trial, she appeared at the judge's chambers and advised him that her...