Young v. State

• Decision Date: 15 November 1968
• Docket Number: No. 59,59
• Citation: 247 A.2d 751,5 Md.App. 383
• Parties: Richard YOUNG v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 383

5 Md.App. 383

247 A.2d 751

Richard YOUNG v. STATE of Maryland.

No. 59.

Court of Special Appeals of Maryland.

Nov. 15, 1968.

Henry J. Noyes, Rockville, for appellant.

Thomas N. Biddison, Jr., Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., William A. Linthicum, Jr. and Theodore Miller, State's Atty. and Asst. State's Atty. for Montgomery County respectively, on brief, for appellee.

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

ORTH, Judge.

The appellant was found guilty of assault and battery by a jury in the Circuit Court for Montgomery County and sentenced to imprisonment for a term of 3 years. ¹

At the close of all the evidence, the court instructed the jury, closing arguments of counsel were heard, and the jury retired for its deliberations. About an hour and a half later the foreman of the jury sent a note to the trial judge, asking, 'Is wielding a deadly weapon in an assault and battery case considered an intention to kill?' The transcript of the proceedings shows that the jury was returned to the box, the court further instructed them in response to the note, the jury again retired and returned about two hours and a quarter later with its verdict. The transcript of the trial is silent as to whether or not the appellant and his counsel were present when the court gave the additional instructions but the State on this appeal has stipulated that they were not. And it appears from the transcript of the proceedings at a hearing on a motion for a new trial, based on the ground that the appellant and his counsel were not present (the motion was denied), that the appellant and his counsel were not present when the court gave the additional instructions, that neither the appellant nor his counsel had been informed, before the additional instructions were given, that the jury had communicated with the judge, or that the judge intended to instruct further in answer to the note. Counsel for the appellant did not learn of the matter until the day after the trial was concluded.

On appeal from the judgment it is contended that the court erred in instructing the jury out of the presence of the appellant and his counsel. We agree that the court erred. We think that the error requires reversal and that the appellant must be afforded a new trial.

Our decision is compelled by that provision in Amendment VI of the Constitution of the United States which guarantees that in all criminal prosecutions, the accused shall enjoy the right '* * * to have the Assistance of Counsel for his defence,' and by that provision in Art. 21 of the Declaration of Rights, Constitution of Maryland 'That in all criminal prosecutions, every man hath a right * * * to be allowed counsel * * *.' ² The VI Amendment guarantee is made obligatory on the States by Amendment XIV. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733, overruling Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595. ³ It is fundamental that the constitutional provisions guarantee that counsel be present at trial, ⁴ and embrace representation throughout the entire trial in all its stages. ⁵ The appellant here was denied such representation. It is clear in this State that the giving of instructions to the jury is a stage of the trial. See Brown v. State, 225 Md. 349, 170 A.2d 300, 85 A.L.R.2d 1107; Midgett v. State, 216 Md. 26, 139 A.2d 209. ⁶ Therefore the appellant was entitled to have his counsel present when the court gave the additional instructions to the jury. The constitutional right to have the assistance of counsel necessarily includes the presence of counsel when instructions are given to the jury, absent a waiver. ⁷ By the provisions of Md. Rule 756 when the court's charge is not delivered until after argument of counsel to the jury, the court shall, in advance of such argument, advise counsel of its proposed action on the substance of the instructions which it proposes to give, § d. If the instructions are given prior to the argument of counsel, counsel shall not be precluded from arguing to the contrary, § e. Objection by a party to any portion of an instruction given or to any omission therefrom or failure to give any instructions shall be made before the jury retires to consider its verdict and the opportunity shall be given to make the objection in open court out of the hearing of the jury, § f. And on appeal a party assigning error in the instructions may not assign as of right an error unless the particular portion of the instructions given or the particular omission or particular failure to instruct was distinctly objected to before the jury retired to consider its verdict and the grounds were stated at that time, § g. With regard to the additional instructions the court here did not comply with § d. Appellant's counsel was given no opportunity to argue to the contrary to the instructions given, § e, nor to object, § f, and would be precluded from assigning error therein as of right on appeal, § g. ⁸ It cannot be said in those circumstances that the appellant was afforded the assistance of counsel or a genuine and effective representation at that stage of the trial; he was afforded no representation at all.

Our decision is also compelled by the involuntary absence of the appellant when the additional instructions were given. The right of the accused to be present at every stage of his trial is a common law right preserved by Art. 5, Declaration of Rights, Constitution of Maryland, and stated with particularity in Md. Rules 775. ⁹ Journigan v. State, 223 Md. 405, 408, 164 A.2d 896, 83 A.L.R.2d 1026. See Tiller v. Warden, Md. Penitentiary, 1 Md.App. 286, 292, 229 A.2d 600. It is a right personal to the accused and cannot be waived by his counsel. Midgett v. State, supra, 216 Md. at 37, 139 A.2d 209. In Midgett, at 36, at 302 of 139 A.2d the Court said:

'In this State there is no doubt that an accused in a criminal prosecution for a felony has the absolute right to be present at every stage of his trial from the time the jury is impaneled until it reaches a verdict or is discharged, and there can be no valid trial or judgment unless he has been afforded that right.' (emphasis supplied)

But the opinion continued:

'The constitutional guarantee includes the right of the accused to be present (i) when the jury is charged or instructed on the facts, the law or form of the verdict, before it has begun its deliberations or afterwards upon its request or by direction of the court; (ii) when the court is repeating a charge or instruction previously given in whole or in part; (iii) when the court communicates with the jury in answer to questions propounded by the jury, or (iv) when there shall be any communication whatsoever between the court and the jury; unless the record affirmatively shows that such communications were not prejudicial or had no tendency to influence the verdict of the jury.'

As the State on this appeal construes this, instructions to the jury are encompassed within 'any communication whatsoever between the court and jury' and therefore there is no reversible error when instructions are given in the involuntary absence of the appellant when the record affirmatively shows that such instructions were not prejudicial or had no tendency to influence the verdict of the jury. It urges that since the additional instructions related to the offense of assault with intent to murder and since the appellant was acquitted of that offense, 'no prejudice could possibly have resulted from the instructions in the instant case and therefore, there was no error.' We do not believe that this construction of the passage is compatible with the statement of the Court immediately preceding it that an accused has 'the absolute right' to be present at every stage of his trial and that there can be no valid trial or judgment unless the accused has been afforded that right. We think that the Court distinguished between 'instruction or charge' on the one hand and 'communication' with the jury on the other hand. Intercourse between the judge and the jury as to the facts, the law or the form of verdict would necessarily be a 'charge or instruction' and intercourse between the judge and jury as to matters other than those would be a 'communication.' So when the judge 'communicates with the jury in answer to questions propounded by them', it may be a 'charge or instruction' or merely a 'communication' depending on the subject matter. Since the instruction or charge of the jury is a part of the trial, as we have stated supra, the accused has the absolute right to be present when a charge or instruction is given. But a mere 'communication' by the judge to the jury is not a part of the trial and the accused is not entitled to be present as a matter of right. But even then there is reversible error 'unless the record affirmatively shows that such communications were not prejudicial or had no tendency to influence the verdict of the jury.' As we construe Midgett the rule is as follows:

(1) it is reversible error for the court to charge or instruct the jury trying the case, on the facts, the law or the form of the verdict at any time during the involuntary absence of the defendant ¹⁰, even though the charge or instruction is a repetition of a charge or instruction previously given in whole or in part, prejudice being conclusively presumed; and

(2) it is reversible error for the court to communicate in any other manner with the jury trying the case, during the involuntary absence of the defendant unless the record affirmatively shows that such communication was not prejudicial or had no tendency to influence the verdict of the jury.

The cases in other jurisdictions discussed in Midgett do not compel a different construction of the rule. They turn, not on the right of the accused to be present at the trial, but on the constitutional and statutory rights of an accused to a jury trial....