Biscotti v. State

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MICHAEL BISCOTTI v. STATE OF MARYLAND

No. 1954-2021

Court of Special Appeals of Maryland^[*]

May 5, 2023

Circuit Court for Baltimore City Case No.: 120238003

Nazarian Shaw Sharer, J. Frederick (Senior Judge, Specially Assigned), JJ.

OPINION ^[*]

SHARER, J.

Appellant Michael Biscotti, was charged by indictment in the Circuit Court for Baltimore City with first-degree murder and related counts, in connection with the death of his friend, Freska Yerby, who sustained multiple gunshot and knife wounds in her residence on July 13, 2020.

After the jury deliberated for approximately one hour, Appellant was convicted of first-degree murder, use of a firearm in the commission of a crime of violence and wearing and carrying a dangerous weapon openly with intent to injure. After post-trial motions were denied, he was sentenced to life imprisonment without possibility of parole plus twenty years.

Appellant timely appealed to this Court and asks us to address, as slightly rephrased, the following questions:

1. Did the trial court err by failing to inform Appellant, and/or defense counsel, that the courtroom clerk notified the jury, during deliberations, that court would recess for the day at 5:00 p.m., and the jury replied, "they only needed a little more time" before reaching a verdict?

2. Did the trial court abuse its discretion in denying Appellant's motion for new trial based on post-trial communications from two unidentified jurors that they felt "rushed" in reaching their verdict?

3. Did the trial court abuse its discretion in not declaring a mistrial after the prosecutor made a factual misstatement during opening statement over defense objection?

4. Did the trial court abuse its discretion giving the pattern jury instruction on flight?

Finding neither error nor abuse of discretion, we shall affirm.^[1]

BACKGROUND

This case concerns the homicide of Freska Yerby on July 13, 2020 at her apartment located at 1122 Comet Street in Baltimore City. Early that afternoon, 11-year-old J.J., Ms. Yerby's son, was napping in his mother's bedroom when he was awakened to the sound of her yelling "Please, Mike. I love you. Don't. Please."^[2] J.J. ran downstairs and saw "[m]y mother on the ground bleeding, and Mike with a knife in his hand." He then saw Appellant, whom he identified in court, place a knife on the table in the living room and walk out the backdoor.^[3] Appellant was wearing a t-shirt and J.J. testified that Appellant took it off as he was leaving because "it had blood on it." J.J. confirmed he had known Appellant for approximately five months prior to the incident, testifying that Appellant was his mother's friend and would often come over and spend time with them.

An autopsy revealed that Yerby sustained multiple gunshot and knife wounds. The assistant medical examiner concluded that those wounds were the cause of death and that the manner of death was by homicide.

Other evidence of Appellant's involvement in the murder was admitted. In addition to J.J.'s identification, Appellant was seen by a responding police officer near the scene at around the time of the murder. He was not wearing a shirt and was carrying an unidentified item. A few minutes later, the same shirtless man was seen on surveillance video, walking behind a local delicatessen near 1009 East Lombard Street, and carrying the same unidentified item towards a dumpster. Police recovered a blood-soaked shirt from that dumpster. Additionally, Appellant lived in a nearby apartment from which police recovered a bloody hand towel in Appellant's bedroom. And finally, when he was arrested, four days later, Appellant had a number of unexplained cuts on his hands.

We shall include additional detail in the following discussion.

DISCUSSION

I. Jury Communication

Appellant first contends the court erred by communicating with the jury ex parte during deliberations and that this violated Maryland Rule 4-326(d), the rule on communications with the jury. Specifically, Appellant asserts there was a "two-part communication" wherein, during deliberations, the courtroom clerk informed the jury that it was time to recess for the day, and the jury responded that "they only needed a little more time" before reaching a verdict. Whereas these communications were not relayed to defense counsel before the jury returned to the courtroom and announced their verdict, Appellant asks us to reverse and grant him a new trial.

The State responds that Appellant's argument is without merit because the communication did not "pertain to the action," as required by Maryland Rule 4-326(d)(2)(B). Summarizing the counterarguments, the State explains that a communication "pertains to the action" only when it implicates either: (1) the jury's inability, unwillingness or reluctance to deliberate; (2) inability to reach a unanimous decision on any counts; or (3) asks for input on legal issue. Further, the State argues that any error in not relaying the communication to the parties was harmless beyond a reasonable doubt given that defense counsel never raised any concern about the circumstances attendant to deliberations and because the evidence in this case was strong.

Initially, and by all accounts, at approximately 5:00 p.m. during on the one and only day the jury deliberated in this case, the courtroom clerk, at the direction of the court, knocked on the jury room door and advised the jurors that court would recess for the day.

The jury replied that "they only needed a little more time." After this communication, and according to the trial transcript, the jury entered the courtroom at 5:14 p.m. and the court took the verdict. There is no dispute that the specific communications, i.e., the clerk knocking and advising the jury it was time to recess for the day and the jury responding "they only needed a little more time," were never relayed to the parties.

However, based on our independent review of the appellate record, and not cited by either party on appeal, in the interim between the communication and the jury's return to open court, the jury sent a note to the court at 5:12 p.m., stating "We have reached a verdict." ^[4] These facts inform the chronology of pertinent events:

December 2, 2021 - First day of trial, Witness Testimony and Reception of Evidence

Prior to receiving any evidence, the trial court informed the jury that the court would attempt to recess every day at around 5:00 p.m. The court repeated this advice toward the end of the day. Consistent with this routine, the record of court proceedings for this day was turned off at 4:59:35 p.m.

December 3, 2021 - Second day of trial, Instructions, Arguments, Verdict

2:50 p.m. - Prior to instructions and closing arguments, the court noted that, given the possibility that counsel's closing arguments would be "very close to 5:00[,]" or at least, "it's gonna be close to 4:00[,]" that it was not sure if the jury would want to start deliberations given the lateness of the hour. The jury then heard the court's instructions and the parties' closing arguments.

4:07 p.m. - At the end of closing arguments, the court made additional remarks concerning deliberations and the verdict sheet. The court advised the jury that "all communications from now own [sic] should be in writing" and that "[s]ometimes we can answer you in writing. Sometimes you have to come back in the courtroom for us to answer you." The court also stated the following:

So it - it's getting late. When you're ready to recess for the day, if you haven't reached a verdict, just let us know, and let me know what time you want to come back on Monday.

When you have reached a verdict, you will be brought into the courtroom.

There was neither objection nor question by either party. Moreover, after deliberations began, the court and the parties agreed on what evidence and instructions would be given to the jury. During that colloquy, the court explained "I didn't ask them about coming - because it was still so early, four o'clock. That's why I just said let them start." Again, no objection was made at this time.

4:15 p.m. - The following ensued:

THE COURT: So, Counsel, I would like for you to wait around for a bit to see if we hear from them.

[PROSECUTOR]: I'll be here.

THE COURT: Okay.

[DEFENSE COUNSEL]: I didn't - I didn't hear what you said?

THE COURT: I want you to wait around here for a while, really until 5:00. It's 45 minutes.

[PROSECUTOR]: That's fine, Your Honor.

[DEFENSE COUNSEL]: Okay.

THE COURT: Okay. But, Mr. Biscotti, you'll be going back downstairs. And then as soon as we - if we get a question, or something comes up, you'll be brought back.

4:18:27 p.m. - The record was turned off.

5:00 p.m. (approximate) - The courtroom clerked knocked on the jury room door and advised the jurors that court would recess for the day. The jury replied that "they only needed a little more time."

5:12 p.m. - The jury sent out a note stating "We have reached a verdict." In pertinent part, the handwritten notes provides, "Juror Note #7 5:12 p.m."

5:14:08 p.m. - The parties reentered the courtroom.

5:14:12 p.m. - Appellant reentered the courtroom. After Appellant's handcuffs were removed, the court and defense counsel discussed whether Appellant's leg irons should be removed, with the court ruling they would remain. The court then asked for the jury to be brought into the courtroom.

5:17:50 p.m. - The jury returned to the courtroom and announced their verdict.

5:22:43 p.m. - The jury was excused. No objection was raised.

December 13, 2021 - Motion for New Trial Filed

Appellant filed a written motion for new trial, alleging multiple evidentiary errors and that the jury was "rushed to complete deliberations." The issue presented here as Appellant...