State v. Hart

449 Md. 246

144 A.3d 609

State of Maryland

v.Kenneth Hart

No. 74, Sept. Term, 2015

Court of Appeals of Maryland.

August 19, 2016

Argued by Sarah Page Pritzlaff, Asst. Atty. Gen. (Brian E. Frosh, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Petitioner

Argued by Mathew M. Bryant (Joseph, Greenwald & Laake, P.A., Greenbelt, MD; Thomas C. Mooney, Law Offices of Thomas C. Mooney, Upper Marlboro, MD), on brief, for Respondent

Argued before: Barbera, C.J.; Battaglia,^* Greene, Adkins, McDonald, Watts and Hotten, JJ.

Greene, J.

In this case, we address a defendant's right to be present at trial as it pertains to communications with a jury foreperson during the deliberation phase of a trial as well as a trial court's declaration of a mistrial on the ground of manifest necessity. Kenneth Hart (“Hart”), the defendant, was present throughout the two-day trial. On the second day of trial, after closing arguments and the administration of jury instructions, jury deliberations began at 7 p.m. After approximately three and a half hours of deliberation, the trial court received a jury note. The judge informed the prosecutor and defense counsel of the communication, and made arrangements for the sheriffs to bring Hart, who was in custody, to the courtroom. While they were waiting for Hart to arrive, defense counsel requested a “preview” of the content of the jury note. The note indicated that the jury was deadlocked on a particular count and asked for guidance. Shortly thereafter, the judge was informed that Hart had been transported to a hospital due to a medical emergency. After the judge discussed the note with the prosecutor and defense counsel, the court summoned the jury foreperson to discuss the nature of the deadlock. Although Hart was not present, and despite objections from defense counsel, the judge accepted a partial verdict from the jury. Hart was found guilty on three counts. The trial court then declared a mistrial on the perceived deadlocked count on the basis of manifest necessity.

At a post-trial hearing, the trial court recognized its error in receiving the partial verdict in Hart's absence, and ordered a new trial for the counts on which Hart had been convicted. The trial judge concluded, however, that there was manifest necessity to declare a mistrial, and denied defense counsel's motion to dismiss the deadlocked count.

For the reasons explained below, we disagree with the entry of a mistrial on the perceived deadlocked count. We hold that the trial court erred when it responded to the jury note without first conducting an adequate inquiry into the voluntariness of Hart's absence from the court proceedings. Furthermore, the trial judge erred in prematurely declaring a mistrial—an extraordinary remedy—without first considering reasonable alternatives to the declaration, because Hart was involuntarily absent. These errors were not harmless, and resulted in prejudice to Hart. Because manifest necessity did not exist, under the unique facts of the case, a retrial on the particular count is barred on the grounds of double jeopardy.

FACTUAL AND PROCEDURAL BACKGROUND

As a result of a traffic stop, Hart was found to be in possession of controlled dangerous substances, including heroin, cocaine, and phencyclidine (“PCP”). Hart was indicted on several counts, which resulted in a two-day jury trial. On May 19, 2014, the trial commenced in the Circuit Court for Montgomery County. After the State concluded its case-in-chief, Hart did not present any evidence, and rested his case. The trial court's instructions to the jury included the modified Allen charge on the jury's duty to deliberate.¹ Four charges were submitted to the jury: Count 1: possession of heroin with intent to distribute; Count 2: possession of heroin; Count 3: possession of cocaine; Count 4: possession of PCP. At approximately 7 p.m., the jury began deliberations; a deputy sheriff took Hart into custody and escorted him to a holding area.

At 10:21 p.m., the trial court received a written note from the jury. The judge summoned the prosecutor and defense counsel, and arranged for Hart to be brought to the courtroom. After a period of time, the court was still waiting for Hart's arrival. While the bailiff contacted the sheriffs to ascertain Hart's whereabouts, the following conversation ensued between the trial judge, prosecutor and defense counsel:

THE COURT: Do you want your client present when I tell you about the note?

[DEFENSE COUNSEL]: I would love a preview first. I'll waive him for the preview.

THE COURT: You'll what?

[DEFENSE COUNSEL]: I'll fill—I'll fill him in.

THE COURT: Okay, here's a copy.

The jury note stated: “After thorough deliberation the jury split on charge #1. No new information can help us reach consensus. What should we do?” Meanwhile, continued efforts were made to have the sheriffs escort Hart to the courtroom. At approximately 10:48 p.m., the judge was informed that Hart was absent due to a medical emergency:

[DEFENSE COUNSEL]: I'm informed, your honor, or the court has just—the courtroom has been informed at this late hour, 10:48 or so, that Mr. Hart is experiencing medical problems and is likely en route by ambulance to the hospital.

THE COURT: Yes, we received a note from the jury at approximately 10:21 [p.m.,] which reads, “After thorough deliberation the jury is split on charge number one. No new information can help us reach consensus. What should we do?” While we were waiting for the sheriffs to bring the defendant and after repeated calls we just found out that there's a medical emergency. He's on his way to the hospital. What do you want to do about the note?

[DEFENSE COUNSEL]: This is certainly a situation of first impression for me. I have no information on his medical condition aside from a call from the sheriff's department saying he's en route with chest pains. Presumably he could be fine tomorrow morning. Maybe not. Maybe not at all. The jury has deliberated for nearly four hours, after two full days of trial. One of two things I would suggest at this point—I mean, I don't have Mr. Hart by my side, which makes me apprehensive to make any moves on his behalf. But perhaps an inquiry as to how seriously they're deadlocked or—THE COURT: Do you want me to bring the foreperson out and ask the foreperson?

[DEFENSE COUNSEL]: I think that would at least give us some guidance, because my gut says ask them to come back in the morning and continue to deliberate, give them the Allen charge, find out what Mr. Hart's status is. I'd hate to—I don't think I'm in a position to request a mistrial without him by my side and without his input.

THE COURT: Counsel?

[PROSECUTOR]: They haven't been asked to continue to deliberate yet. I'll defer to the court as to what we do.

THE COURT: Well, I'll bring the foreperson out and ask him whether or not—if they can't come back tomorrow, you know, after having a good night's sleep, do they think that they can deliberate some more? Hi.

JUROR 132: Hi.

THE COURT: You can—you can just stand right there. We received your note. And it indicates that no new information can help [the jury] reach consensus. But what I was wondering is—I mean, it's been a long day. Do you think that after going home and maybe getting a good night's rest and coming back tomorrow you can start deliberating again with a clearer head, or do you think it's no use?

JUROR 132: We had a very good process in there. And there was (sic) a couple of times where we initially took a minute and everyone just thought and thought. We went around the room three times, we gave everyone a chance to talk, and then we all answered each other. We voted three times going around. And at the end, there was (sic) people in the room who said there was no information that could change their mind. If you want to know, I can tell you what the vote count was.

THE COURT: No, not right now. But when you say information, are you saying information that could be gained from you all discussing it with each other or information that we could give?

JUROR 132: I think either .... I think that there are people in the room who have unequivocal positions on each side. And they said there's nothing that could change their mind.

THE COURT: Okay. And you don't think a good night's sleep would help. JUROR 132: No, I don't think so.

The judge then asked the prosecutor and defense counsel if they had any questions for the foreperson. Each replied in the negative, and the foreperson returned to the jury room. The following exchange then took place:

[DEFENSE COUNSEL]: I think the only thing that I am in a position to request at this moment is that they be excused for the night and read the Allen charge first thing in the morning, start deliberations again. If they pass a similar note suggesting that they're deadlocked, we can deal with it accordingly. But they haven't been read the Allen charge. And most importantly I don't know what Mr. Hart's situation [is]. And without him to give me his input related to his desires, I would be I think delinquent in my duties if I requested a mistrial on his behalf.

[PROSECUTOR]: Your honor, I can just tell you from the State's perspective based on what I heard I don't think anything is going to change. The people who are set on their positions are going to, after coming back, anything actually going to change materially to make the posture change (sic)—so the State is not interested in that. But I'll defer to—in terms of coming back and letting them get the Allen charge and continue to deliberate, in light of what I heard. But I'll defer as to what ends up happening.

THE COURT: Okay. With respect to what you're referring to, the Allen charge, basically that's already been given in the jury instruction—[a] jury's duty to deliberate. They've already got this. The foreperson came out. He indicated that, you know, they've taken breaks, they've gone over it, in response to my question, because the note wasn't clear where it says no new information could help.

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