Ward v. State, No. 1249

CourtCourt of Special Appeals of Maryland
Writing for the CourtMORTON
Citation447 A.2d 872,52 Md.App. 63
PartiesJames Edward WARD v. STATE of Maryland.
Decision Date08 July 1982
Docket NumberNo. 1249

Page 63

52 Md.App. 63
447 A.2d 872
James Edward WARD
v.
STATE of Maryland.
No. 1249.
Court of Special Appeals of Maryland.
July 8, 1982.

[447 A.2d 873]

Page 64

Gary W. Christopher, Asst. Public Defender, with whom was Alan H. Murrell, Public Defender of Md., on brief, for appellant.

Diane G. Goldsmith, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen. of Md., Arthur A. Marshall, Jr., State's Atty. and Richard P. Arnold, Asst. State's Atty. for Prince George's County, on brief, for appellee.

Argued before MORTON, MOYLAN and WEANT, JJ.

MORTON, Judge.

Appellant was convicted by a jury, sitting in the Circuit Court for Prince George's County, of being an accessory to second degree murder in the contract murder of his spouse's boyfriend and was sentenced by the court (Blackwell, J.) to thirty years' imprisonment. He raises a number of issues on appeal which will be addressed, along with the relevant facts, separately:

"1. Did the court err in refusing to declare a mistrial in response to the jury's deadlock?

2. Did the court err in imposing a sentence greater than that imposed on the principals?

3. Was a sentence greater than ten years barred by principles of double jeopardy?

4. Was Appellant denied the right to a speedy trial?

5. Was the evidence sufficient to support Appellant's conviction?

6. Was Appellant's conviction barred by principles of double jeopardy?"

Page 65

Jury Deadlock

The trial began on a Thursday and continued until 3:37 p. m. that day at which time the jury retired to deliberate its verdict. Shortly thereafter an exchange was had, via notes, between the court and the jury. At 6:11 p. m., when the jurors asked to rehear certain testimony, the court, with the approval of defense counsel, instructed them to rely on their recollections. The jurors were then told they could order dinner and they presumably did so. At 11:10 p. m. the court reconvened and the trial judge proposed giving the jury, in light of their lengthy deliberation, an Allen charge, similar to one given in Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). Defense counsel objected to such a charge, insisting that there was no indication that the jury was deadlocked. At that propitious moment, the jury sent this note to the judge:

"Judge Blackwell: We have taken four ballots and cannot come up with a unanimous vote. Is there anyway we can ask you a question about this situation. We have been deadlocked for six hours. Frederick Dichter, Foreman."

Now defense counsel was of the view that not only had the time passed for an Allen charge but it "might be time for a mistrial." He made no such motion, however. Rather, he immediately thereafter stated: "If the court is going to give the Allen charge, may I ask the court if it is going to give the ABA recommended instruction" accepted by the Court of Appeals in Burnette v. State, 280 Md. 88, 96, 371 A.2d 663 (1977). The trial judge then gave a modified Allen charge 1 virtually identical to that set out in Burnette.

[447 A.2d 874]

Page 66

The jury returned to their deliberations and at 12:02 a. m., an hour later, again requested to review certain testimony. The judge, again with defense counsel's agreement, requested the jurors to rely on their recollections. The jury continued to deliberate from 12:06 a. m. until 3:02 a. m., at which time the court, with defense counsel's consent, advised the jurors they could return home for the remainder of the night and that they should return and resume deliberations at 10 a. m. if they could arrive at a verdict with additional time for deliberations.

The jury resumed deliberation at 10 a. m. on Friday morning. At 1:55 p. m. they sent this note to the judge:

"A portion of the jury cannot arrive at either a guilty or not guilty verdict since 5:00 p. m. Thursday. This is still a result of all the deliberations by all of us."

In a second note the jury asked "can a jury vote undecided?" In response to the latter, the jury was instructed that their verdict had to be unanimous and that a vote of undecided was not a vote. They were then individually polled as to whether it was their judgment that they felt they were "hopelessly deadlocked or unable to arrive at a verdict in this case with additional time to deliberate." Each responded affirmatively.

Defense counsel interpreted the jury's note and poll to mean that it was hopelessly deadlocked and could not arrive at a unanimous verdict. Counsel moved for a mistrial and opposed, as coercive, the court's proposal to give a second Allen charge. The trial judge, while agreeing with defense counsel that the situation would "be hopeless" if the vote was still divided, interpreted the jury's notes to mean that there was a juror who had not yet decided as to appellant's guilt or

Page 67

innocence. 2 Without ruling on the motion, the trial judge decided to repeat the Allen charge, indicating that if, after the Allen charge and some additional reasonable time, the jury was unable to arrive at a verdict that afternoon, he would be willing to declare a mistrial.

At 2:18 p. m., after a second Allen charge, the jury resumed its final deliberations and 44 minutes later, after requesting and receiving additional instructions, returned a verdict of guilty.

The first issue for us is whether, after having given the Allen charge followed by the subsequent indications--by note or poll--that the jury was irretrievably deadlocked, the court, in again giving the instruction and sending the jury back for further deliberation, in effect coerced a verdict.

At the outset we note that the error asserted here is not the coercive nature of the supplemental "dynamite" or Allen charge given. It contained no threat to unreasonably detain the deliberating jury, nor was it addressed specifically to the minority jurors of the deadlocked panel. See Smoot v. State, 31 Md.App. 138, 355 A.2d 495 (1976). Although the instruction, like all supplemental verdict urging instructions, poses a latent danger of coercion, there is otherwise nothing objectionable about the particular charge given which was taken virtually word for word from that approved by the Court of Appeals in Burnette.

The coercive effect, appellant argues, is in repeatedly returning the jury to deliberate further when, after due and orderly consideration, they had twice indicated deadlock. Appellant misunderstands the very purpose of an Allen charge. Assuming the jury's difficulty was, as appellant

Page 68

argues,[447 A.2d 875] reaching a unanimous verdict, 3 this is precisely the situation in which an Allen charge is appropriate.

The treatises and case law for the most part are agreed that the length of time the jury is to be held in an effort to secure an agreement is best left to the discretion of the trial court. 93 A.L.R.2d 627, 636 (1964); 53 Am.Jur. Trial (1st ed. § 962). The trial judge is accorded considerable latitude to return the jury for continued deliberations, short of genuine prejudice to a party, if he feels that further deliberation might be productive. This is true even where the jury reports that it is hopelessly deadlocked, Devault v. United States, 338 F.2d 179 (10th Cir. 1964), and unable to reach a verdict, Decker v. State, 386 N.E.2d 192 (Ind.1979), People v. Alexander, 15 Ill.App.3d 607, 305 N.E.2d 61 (1973). 4

"The ABA Standards Relating to Trial by Jury," § 5.4(b) recommends that where the court determines that a jury is unable to agree, it "may require the jury to continue their deliberations and may give or repeat" an Allen instruction, but it shall not "require or threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable intervals." The Commentary indicates that:

"[Section 5.4(b) ] is intended to make it clear that the trial judge may send the jury back for further deliberations notwithstanding the jury's indication to the court that it has been unable to agree. It is the general view that the court may send the jury back for additional deliberations even though the jury has indicated once, twice, or several times that it cannot agree or even after they have requested that they be discharged."

The rationale, as the Tenth Circuit has wisely observed, is that:

Page 69

"The jury cannot determine the length of its deliberations, since, * * * that is the function of the trial judge in the exercise of sound judicial discretion. It is not unusual for a jury to advise the court that it is deadlocked and to thereafter agree and return a verdict. * * * Experience in the trial of jury cases demonstrates that jurors are not always the best judges of whether or not they are able to reach a verdict. In most cases for twelve human minds to agree, it takes careful consideration of the law and the evidence in the case and after that, discussion among the jurors of their views of the case. It is this kind of serious deliberation that is contemplated in our jury system. An experienced trial judge, in most cases, should be able to tell whether a jury has given its best consideration to the case. Therefore, the law imposes upon the trial judge judicial discretion to determine when the jury is deadlocked and unable to reach a verdict." Devault, supra, at 182-83, quoting Mills v. Tinsley, 314 F.2d 311 (10th Cir.), cert. denied, 374 U.S. 847, 83 S.Ct. 1907, 10 L.Ed.2d 1067 (1963).

We cannot but conclude that under the circumstances disclosed here the trial judge acted entirely within his discretion in twice sending the jurors back and giving them supplemental instructions when he thought they could arrive at a unanimous verdict despite their protestations to the contrary.

Illegal Sentence

Appellant asserts that the sentence imposed was illegal for two reasons: because his sentence as an accessory was greater than that imposed on the principals and because it was barred by principles of double jeopardy.

Appellant had previously been found guilty of conspiracy to...

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3 practice notes
  • Phillips v. State, No. 3245, Sept. Term, 2018
    • United States
    • Maryland Court of Special Appeals
    • April 30, 2020
    ...the delay in this case was "initiated by the State’s attempt to pursue an appeal to which it was not entitled." Citing Ward v. State , 52 Md. App. 63, 77, 447 A.2d 872 (1982), appellant acknowledged that "[d]elays caused by government appeals should be charged against the State only when th......
  • Phillips v. State, No. 3245
    • United States
    • Court of Special Appeals of Maryland
    • April 30, 2020
    ...the delay in this case was "initiated by the State's attempt to pursue an appeal to which it was not entitled." Citing Ward v. State, 52 Md. App. 63, 77 (1982), appellant acknowledged that "[d]elays caused by government appeals should be charged against the State only when the appeal is tak......
  • Phillips v. State, No. 3245
    • United States
    • Maryland Court of Special Appeals
    • April 30, 2020
    ...the delay in this case was "initiated by the State's attempt to pursue an appeal to which it was not entitled." Citing Ward v. State, 52 Md. App. 63, 77 (1982), appellant acknowledged that "[d]elays caused by government appeals should be charged against the State only when the appeal is tak......
3 cases
  • Phillips v. State, No. 3245, Sept. Term, 2018
    • United States
    • Maryland Court of Special Appeals
    • April 30, 2020
    ...the delay in this case was "initiated by the State’s attempt to pursue an appeal to which it was not entitled." Citing Ward v. State , 52 Md. App. 63, 77, 447 A.2d 872 (1982), appellant acknowledged that "[d]elays caused by government appeals should be charged against the State only when th......
  • Phillips v. State, No. 3245
    • United States
    • Court of Special Appeals of Maryland
    • April 30, 2020
    ...the delay in this case was "initiated by the State's attempt to pursue an appeal to which it was not entitled." Citing Ward v. State, 52 Md. App. 63, 77 (1982), appellant acknowledged that "[d]elays caused by government appeals should be charged against the State only when the appeal is tak......
  • Phillips v. State, No. 3245
    • United States
    • Maryland Court of Special Appeals
    • April 30, 2020
    ...the delay in this case was "initiated by the State's attempt to pursue an appeal to which it was not entitled." Citing Ward v. State, 52 Md. App. 63, 77 (1982), appellant acknowledged that "[d]elays caused by government appeals should be charged against the State only when the appeal is tak......

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