The opinion of the court was delivered by: Bell, C.J.
Jaron Tyree Grade v. State of Maryland,
No. 16, September Term, 2007.
CRIMINAL LAW - PROCEDURE - JURY COMMUNICATION
The defendant has a right to be present at all stages of trial. Maryland Rule 4-326 further provides that any communication between a juror and the court must be disclosed to the defendant in a timely manner, so that the defendant can provide input on the communication before the court takes action on the information received.
Bell, C.J. *fn1 Raker Harrell Battaglia Greene Wilner, Alan M. (Retired Specially Assigned) Cathell, Dale R. (Retired Specially Assigned), JJ.
The issue in this case is whether the trial court's substitution of a juror with an alternate, without having first notified counsel of the juror communication that prompted that action and sought counsel's response or input, violated Maryland Rule 4-326 (d). Because Rule 4-326 (d) vindicates the well-established right of a defendant to be present throughout the trial, including during jury deliberations, we shall hold that, under the facts of this case, it did.
Jaron Grade, the petitioner, was charged with, and, on December 3, 2004, was convicted by a jury in the Circuit Court for Baltimore County of, two counts of first-degree murder and use of a handgun in the commission of a crime. He was sentenced to two concurrent life sentences and a consecutive twenty year term of imprisonment. He contends that the trial court's replacement of a juror with an alternate juror without the knowledge or acquiescence of his counsel was a violation of Rule 4-326 (d) and, therefore, reversible error.
On December 2, 2004, before adjourning for the day, the court inquired of the jury as to its preference with regard to when to begin deliberations, either immediately or on the following day, and whether any one of them had "any problem with being back" the next day. Having ascertained that the jury's preference was to begin deliberations the next day and acquiescing in that preference, it being satisfied that no juror or alternate had "any problem" with coming back, the court addressed the jurors and the alternates as follows:
"THE COURT: What I am going to ask you to do is this: As to the alternates, I am not going to excuse you yet, because something [could] happen with one of the regular jurors before deliberation begins tomorrow morning. I am going to ask you all please to come back tomorrow morning[.] When everybody gets here, I will excuse the alternates at that time, but please be back tomorrow. . . . Thank you.
"Do not begin to discuss anything with anyone yet. Do not begin deliberating until you get back together and everyone is here. I will ask you to come back, if you can come back earlier than 9:30. It might be helpful because it could be sometime while you are out deliberating. I would like to get started as early as possible, 9:15 or something like that works.
"All right. Please report to the jury room [then] at 9:15 tomorrow. Thank you."
The jury and the alternates thereafter were excused. The court then addressed counsel with regard to the next day's procedure:
"THE COURT: I will, of course, do what I just said I would do tomorrow morning, make sure we have twelve jurors here and ready to deliberate before deliberations begin, and I will excuse the alternates then.
"MS MEAD [Defense Counsel]: When do you want us here tomorrow, judge?
"THE COURT: Good question. I would think that you ought to be available not later than ten, I would think, because things will get started by that time. There may be questions and problems arise.
"MS MEAD: I will plan on being here at ten. Your law clerk has my cell phone. I will give him my cell phone and home number. I will probably be here earlier, but if he wants to call, if something else comes up."
When counsel arrived at court the next morning, they were informed of the court's communication with a juror and the action the court took in response to that communication:
"THE COURT: Here is the situation . . . . Okay. Just a matter of substituting a juror. I want to put it on the record what happened, we got a call about 20 after 9, 9:25 from Juror number 10, indicating she had an emergency of an undisclosed nature and she would at least 10:30 or later getting here, so I made a decision I would like to run by counsel. Nobody - Garrett was available, you were not here, so we seated Alternate Number 1 in lieu of Juror 10. They began deliberations about 9:30 . . . . I'm sorry I couldn't bring it to your attention, I wanted to make sure I did as soon as possible . . . . As far, as substitution of alternates were ...