Wilson v. State

• Decision Date: 21 May 1968
• Docket Number: No. 269,269
• Citation: 4 Md.App. 192,242 A.2d 194
• Parties: Robert Woodrow WILSON v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 192

4 Md.App. 192

242 A.2d 194

Robert Woodrow WILSON v. STATE of Maryland.

No. 269.

Court of Special Appeals of Maryland.

May 21, 1968.

Martin H. Freeman, Upper Marlboro, for appellant.

Henry J. Frankel, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Arthur A. Marshall, Jr., and Benjamin R. Wolman, State's Atty. and Asst. State's Atty. for Prince George's County respectively, on brief, for appellee.

Before MURPPHY, C. J., and ANDERSON, MORTON, ORTH and THOMPSON, JJ.

ORTH, Judge.

The appellant was found not guilty of murder but guilty of manslaughter under an indictment charging him with murder by a jury in the Circuit Court for Prince George's County. He was sentenced to imprisonment for a term of four years.

The questions presented on appeal from the judgment are herein considered in the order in which they were argued before this Court.

I

'Was the defendant denied a fair and impartial trial when the trial judge in his admonition to the jury affirmatively advised that throughout the trial they could talk about the case as long as they were alone among themselves or in the jury room?'

Trial commenced on 21 July 1967, resumed on 24 July and 25 July and concluded on 26 July. The jury separated during each trial day for lunch and at the end of each day of trial. The trial judge admonished the jury immediately before each separation, seven times in all. After the first admonition, given before the luncheon recess of court on the first day of trial, the record shows the following colloquy between the court and counsel for the appellant, out of the presence of the jury:

'MR. FREEMAN: * * * I detected in the instruction to the jury about discussing the case that they should not discuss it among themselves anywhere except in the jury room. I would request, if the Court please, an instruction that until the case is terminated that they should not even discuss it there.

THE COURT: Well, they have a right to discuss it. They don't have a right to take it up on the basis of determining the case itself, but they certainly have got a right-You have got to be practical about it. They are going to discuss it during a recess. But the thing that you are aiming at and we always instruct them not to take the case up, not to take a vote and not to make any final determination. This is true of any case. But to tell them that they can't talk about it in there is not realistic. They are going to. You are not going to stop it. But the only purpose in telling them that, the intention of telling them that, is not to make any conclusion on the case, not to take any vote and not make up their minds. But you can't deny them the right of discussing the case.

MR. FREEMAN: Well, I have made my request and I suppose it has been denied.

THE COURT: Well, we are telling you what we do and what the usual meaning of it is, which I don't think you are familiar with, and that is why we are doing it, to enlighten you.

MR. FREEMAN: Thank you.'

We think it a fair construction of the admonitions given by the trial judge that the admonitions conveyed to the jurors that they could discuss the case among themselves before its final submission to them when they were together in the jury room as the appellant's counsel alleged. The appellant does not claim that the cautions given by the trial judge with regard to the conduct of the jurors while separated were insufficient or improper. ¹ But he urges that before the case is finally submitted to the jury, they may not properly discuss it among themselves whether or not they are separated and therefore, the trial judge committed prejudicial error. There is no statute or rule in this jurisdiction requiring the trial judge to admonish the jury that they are not to discuss the case in the jury room before its final submission to them. ² Nor are we aware of a case which compels us to so hold. 'It is, however, our established practice that an admonition be given by the trial court to the members of the jury, prior to their separation, against discussing the case with others or among themselves.' (emphasis added). Midgett v. State, 223 Md. 282, 293, 164 A.2d 526, 532. The Court said in Midgett, at page 295, at page 533 of 164 A.2d, that the main objectives sought by the usual admonitions were 'to avoid any outside influences and to cause the jury's final verdict to be based solely on the evidence and on the whole of the evidence presented in court.' But we do not construe Midgett to hold that the jurors may not discuss the case before its final submission to them when they are not separated. There the contention was that the conviction should be reversed because upon several adjournments during the course of the trial when the jury was allowed to separate, the court did not caution the jurors against discussing the case. The opinion must be considered within the frame of reference of the contention and we do not feel that it is applicable to a jury not separated. The usual caution against the jurors discussing the case among themselves applies when the jury is separated and we are not persuaded otherwise because the Court, in Midgett, in finding that there had been substantial compliance with the rule as to admonitions, noted that the trial court had cautioned the jury not to discuss the case 'with anyone during recess, nor amongst yourselves' and had elaborated on the latter point, stating that it was 'because you are supposed to discuss this case only when it is completed and it is turned over to you when you retire to the jury room for a verdict.' at page 294, at page 532 of 164 A.2d. The appellant relies on Winebrenner v. United States, 147 F.2d 322 (8th cir.) in which the jury was admonished not to discuss the case 'to such an extent that you form definite fixed ideas that would prevent you from changing after you heard all the evidence in the case.' Page 327. The court felt that this caution warranted the jury to discuss the case among themselves before final submission of it to them. It believed that this was harmful because the jury had not heard all the evidence, they had not received the court's instructions 'as to how the evidence was to be considered by them', they had not heard argument of counsel and they were enabled 'to divide themselves into separate groups and distinct deliberative bodies.' It found that the right to a fair trial and due process of law were violated and reversed the judgment, remanding the case for a new trial. We do not agree that it necessarily follows that an accused is denied a fair trial and due process of law because of the absence of an admonition not to discuss the case before its final submission to them or because they are told, in effect, that they may so discuss it. Of course, it is the constitutional right of a defendant in a criminal case to be tried by an impartial jury. Amendment VI to the Constitution of the United States, Article 21 of the Declaration of Rights of Maryland, Jones v. State, 2 Md.App. 429, 234 A.2d 900. 'In our present state of society, all that can be required of a juror, to render him competent, is that he shall be without bias or prejudice for or against the accused, and that his mind is free to hear and impartially consider the evidence, and to render a verdict thereon without regard to any former opinion or impression existing in his mind, formed upon rumor or newspaper reports.' Garlitz v. State, 71 Md. 293, 300, 18 A. 39, quoted in Baltimore Radio Show, Inc. v. State, 193 Md. 300, 328, 67 A.2d 497, 510. A defendant is entitled to be tried by a jury composed of competent jurors, 'exercising their judgment with perfect freedom from improper influences.' Margulies v. State, 153 Md. 204, 211, 137 A. 896, 899. ³ We think that the jurors properly may be regarded, in the absence of a showing to the contrary, as performing their duties as they have sworn to perform them. ⁴ The trial court made it clear in its admonitions that while the jurors were separated they were not to discuss the case '* * * among yourselves or with anyone else * * * or to read any newspapers or listen to any broadcasts or look at any television or anything concerning this particular case * * * The point is we just don't want any outside interference ⁵ * * * (Y)ou are to divorce yourself from any of this because there is always a possibility that it may contain something which is not in the evidence, or it may contain somebody else's thoughts or reactions to what was presented. And you are entitled to all of the evidence, but no one of you is entitled to have anything that the others don't have the benefit of * * * ⁶.' In the instant case there is no hint or suggestion that the verdict of the jury was not based solely on the evidence and the whole of the evidence or that the jurors committed their minds until all the evidence was presented to them and we see no reason for us to assume to the contrary. There was no showing that the appellant was prejudiced and we feel that the refusal of the trial judge to admonish the jury not to discuss the case among themselves in the jury room or even the possibility that they did discuss it does not present a matter of constitutional dimension. We find no denial of the appellant's constitutional right to a fair trial and are not persuaded by Winebrenner that the right to due process of law is properly extended to embrace the matter. We deem a proper due process of law standard for a criminal trial to be one tried in accordance with the Bill of Rights and laws passed pursuant to constitutional power, guaranteeing to all alike a trial under the general law of the land. We think that the trial of the appellant complied with this standard.

It may be the better practice, in order to preclude any possibility of misconduct (insofar as admonition can do so) that every jury be admonished not to discuss the case among themselves, even when in the jury room, until it is finally submitted to them. ⁷ But...