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Jorge Appraicio v. State of Maryland

March 26, 2013

JORGE APPRAICIO
v.
STATE OF MARYLAND



Circuit Court for Montgomery County Criminal Case No. 116686

The opinion of the court was delivered by: Barbera, J.

Jorge Appraicio v. State of Maryland,

No. 49, September Term 2012

CRIMINAL PROCEDURE -- JURY INSTRUCTIONS -- RESPONDING TO JURY QUESTIONS CONCERNING EVIDENCE -- Trial courts are permitted to give supplemental instructions to a jury during the course of deliberations in response to questions posed by jurors. Clarifying instructions must be given when jurors ask about a question involving an issue that is central to the case. These supplemental instructions must accurately state the law, but trial courts must be cautious when commenting on the evidence in order to avoid improperly emphasizing the types of inferences jurors may draw. Appellate courts review a trial court's decision to deliver a supplemental instruction for abuse of discretion. A trial court does not abuse its discretion when it repeats the pattern jury instruction on what constitutes evidence in response to a jury question asking to what extent jurors may consider the lack of police testimony and a police report in reaching a verdict.

Bell, C.J., Harrell Battaglia Greene Adkins Barbera McDonald, JJ.

Opinion by Barbera, J.

Bell, C.J., and Adkins, J., dissent

Trial judges walk a fine line when answering questions posed by jurors during the course of their deliberations. Any answer given must accurately state the law and be responsive to jurors' questions without invading the province of the jury to decide the case. We are asked here whether the trial court acted within its discretion in responding to a jury question concerning evidence that was not presented at trial.

A jury sitting in the Circuit Court for Montgomery County convicted Petitioner Jorge Aparicio*fn1 of second-degree assault on October 5, 2010, in connection with an attack on his girlfriend, Clara Moran.*fn2 He was sentenced to five years of imprisonment, with all but 18 months of the sentence suspended, followed by three years of supervised probation. Petitioner appealed his conviction to the Court of Special Appeals, which affirmed the Circuit Court in an unpublished opinion. We granted a petition for a writ of certiorari, Appraicio v. State, 427 Md. 605 (2012), to answer the following question:

Where the deliberating jury asked, "[c]an we consider the fact that there was no police report in evidence or no police testimony or to what extent can we consider the lack of above," did the trial court err in responding that they were to decide the case based on "what is in evidence," which the court defined as, "the testimony from the witness stand, [the] physical items of evidence, and any exhibits that have been given to you," thereby excluding from the universe of what the jury could consider in reaching a verdict the lack of testimony and/or evidence presented?

I.

In the early morning hours of July 12, 2010, Petitioner returned home to an apartment in Gaithersburg, Maryland, that he shared with his girlfriend Moran and his friend Oscar Romero. Petitioner roused Moran, who had been sleeping in the bedroom. Moran testified at trial*fn3 through an interpreter that she was afraid of Petitioner because he frequently would come home drunk and hit her. Moran testified that she joined Petitioner in the living room, where he called her a "damn bitch" and threw a glass at her, which she dodged. After he missed hitting her, Moran testified that Petitioner started striking her with his fists. At one point, he grabbed her by her hair and she fell down, after which he repeatedly kicked her until she was able to escape outside.

Moran testified that she hid outside for approximately 15 minutes before returning to the apartment, where she saw Petitioner throwing some of her possessions out of a window and onto the street. At 1:54 a.m., she called 911, and a recording of that call was played for the jury at trial. In the call, Moran stated that Petitioner was "very violent," had hit her in the head, and was throwing her possessions into the street.

The police arrived shortly afterwards and found Petitioner sitting outside of the apartment. The officers told Petitioner to leave the property and indicated to Moran that she should go back to sleep. Moran went back inside the apartment. Approximately a half hour later, she heard knocking on the front door. Assuming it was the police, she opened the door and Petitioner came back inside the apartment. Moran testified that Petitioner struck her again on the left side of her neck and her left shoulder. Moran ran out of the apartment through the front door and hid behind several cars in the parking lot until a passerby called 911 to report the incident at 3:25 a.m. Moran told the 911 operator what had happened and the police returned to the apartment. Moran did not go to the hospital and the police did not take photographs or write a report, although the officers told Moran that she could file a report if she wished to do so. Petitioner was taken into custody by the police and returned to the apartment around 7 a.m.

Although Petitioner told Moran to leave immediately, she stayed in the house for three more days because she said she had nowhere else to go. Two days after the incident, Moran made a videotape of her injuries, which was shown to the jurors during the trial. Petitioner and Moran broke off their relationship on July 27, 2010, about two weeks after the incident. At the urging of her friends, Moran filed a complaint against Petitioner in the District Court of Maryland on August 4, 2010. She claimed she did not report her injuries to the police sooner because she was scared.

The case came on for a trial before the Circuit Court for Montgomery County on October 4, 2010. The State called Moran as its only witness and introduced the tape of her two 911 calls as well as the videotape of her injuries. The defense called no witnesses and presented no evidence. In instructing the jury, the trial court hewed closely to Maryland Criminal Pattern Jury Instruction 3:00, which describes what constitutes evidence.*fn4

During closing argument, defense counsel asserted that Moran fabricated the story of the attacks in order to get revenge against Petitioner, who had broken up with her and evicted her from his apartment. Along this line of argument, defense counsel suggested that the lack of police testimony or a police report in ...


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