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Nash v. State

Court of Appeals of Maryland

June 20, 2014

TROY SHERMAN NASH
v.
STATE OF MARYLAND

Argued March 6 2014

Petition for certiorari filed at, 08/05/2014

Page 24

Certiorari to the Court of Appeals (Circuit Court for Prince George's County, Case No. CT 09-1808X), Crystal D. Mittelstaedt, JUDGE.

ARGUED BY Katherine P. Rasin, Assistant Public Defender (Paul B. DeWolfe, Public Defender, of Baltimore, MD) on brief FOR PETITIONER.

ARGUED BY Cathleen C. Brockmeyer, Assistant Attorney General (Douglas F. Gansler, Attorney General of Maryland, of Baltimore, MD) on brief FOR RESPONDENT.

ARGUED BEFORE Barbera, C.J., Harrell, Battaglia, Greene, Adkins, McDonald and Watts, JJ. Opinion by Harrell, J. Dissenting opinion by McDonald, J., which Battaglia and Adkins, JJ., join, dissenting in part.

OPINION

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[439 Md. 57] Harrell, J.

In a trial court judge's management of a trial, few circumstances come fraught with as much peril as the receipt of a note from a deliberating jury. Whether to deal with it? How to deal with it? Some jury notes contain innocuous questions or statements to which a presiding judge may respond with ease. Other notes may pose, however, more problematic questions or statements that place a judge between a modern Scylla and Charybdis. Although the judge may want to be helpful in responding to the jury, he or she must take care not to be coercive or suggestive of an outcome. A quick response may be in the best interests of everyone involved, but rashness is rewarded with reversal oft-times. Always at the ready are the litigants and their attorneys, on edge after a hard-fought trial, with motions, requests for curative instructions, or other proposed courses of action that may be influenced by their respective advocacy interests in the outcome of the trial. Looming too are we, the appellate courts, ready to swoop in from our high perch to scrutinize, in hindsight and with the benefit of briefs, every aspect of the decisions the trial judge had to make in real-time.

The present criminal case embraces most of these rhetorical considerations. We consider three challenges to the course of action chosen by a trial judge in response to a note from the foreperson of the jury, received during deliberations after 5:00 PM on the Friday before a three-day holiday weekend, claiming that a fellow juror stated she was willing to change her original position of voting " not guilty" if it would mean she could go home and not return to the courthouse. We shall hold that the trial judge, in dealing with this note, did not abuse her discretion by denying the defendant's motion for a mistrial and refusing a defense request to give a modified Allen instruction; nor did she violate Maryland Rule 4-326(d) by recessing for the long weekend, after giving additional instructions reminding the jurors of their proper duties. Accordingly, we shall affirm the judgment of the Court of Special Appeals, which affirmed the judgment of the trial court.

[439 Md. 58]PERTINENT FACTS & PROCEDURAL BACKGROUND

On 17 December 2009, a grand jury, sitting in Prince George's County, returned an indictment charging Troy Sherman Nash with one count of murder in the first degree, based on an investigation into the death of Vanessa Riddick. The case proceeded to trial in the Circuit Court for Prince George's County, beginning with jury selection on Tuesday, 30 August 2011. On that day, the venire arrived at the courthouse at 7:00 AM. Voir dire started at 9:50 AM. After the jury was selected and the court's opening

Page 26

instructions delivered, the trial continued with opening statements from counsel for both parties, followed by the testimony of two State's witnesses. The court recessed for the day just after 4:00 PM, after instructing the jurors to return the following morning by 9:15 AM. The trial resumed with the testimony of four additional witnesses on Wednesday and five on Thursday. The proceedings on each of those days began before 10:00 AM and ended after 4:30 PM.

On Friday, 2 September 2011, the fourth day of trial, the jury began hearing evidence at 10:14 AM. Upon completion of the testimony of the final witness at 10:57 AM, the court excused the jury with a direction to return at 12:30 PM. A medical problem with a juror resulted in the substitution of an alternate juror and delayed the resumption of proceedings until 1:18 PM. For the next hour and twenty minutes, the jury heard the court's concluding instructions and closing arguments from counsel. At 2:40 PM, the jury retired to begin deliberations. At 5:02 PM, the court received a note from the jury (the " Note" ), which read literally: " I dont believe the defendant is being give a fair verdict based on one of the juror stating out loud that she will vote guilty because she want to go home and not return! When she previously said no guilty." The Note was signed by the foreperson and dated " 9/2/11."

Following the court's receipt of the Note, counsel for the parties were brought back to the courtroom. The trial judge read the contents of the Note into the record. The following colloquy between the court and counsel ensued:

[439 Md. 59] Defense Counsel: Your Honor, as the Court can understand, the note is of some concern to us, and we would be -- and based on the concern expressed by the foreman in that note, we would move for a mistrial.
Prosecutor: And the State is objecting to that, Your Honor. And the reason why, is because that note -- in my opinion, that's an impermissible note, because that's diving into what's happening in the jury room, and that's something that we really shouldn't be made aware of, of what's going on in the jury room.
The State, at this point, would advise that perhaps we should release them for the night.
The Court: Well, I was thinking that I would maybe release them. It might just be that people are tired and they need to go home and relax and come back the next day. Because it just seems, to me, that somebody was just tired and wants to go home. I'm inclined to do that, rather than grant your mistrial.
Defense Counsel : Well, the only thing that I would say is, is that I understand that the Court is trying to find a solution to the problem, short of a mistrial, because we've put, you know, four hard days in. But the difficulty that I have is, if we were to come back on Tuesday morning,[1] it would be Tuesday morning, and essentially, if they then go back and there's a quick verdict, then this problem still exists.
It seems like the foreman -- that the foreman has alerted the Court -- and I think properly so -- has alerted the Court that a juror has voted guilty for convenience and expediency, rather than from a sense of, that's the proper verdict after our deliberations.
And so, I don't -- I foresee that, coming back Tuesday, that it isn't going to change the desire of -- you know, or the

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problem, that the Court is addressing this afternoon.
[439 Md. 60] So based on that, I understand what the Court has said you're inclined to do, but I would renew my motion for a mistrial.
Prosecutor: Your Honor, I see no difference between this note and your previous instruction to the jury that they should not tell you what the numbers are.
And that's because, what's going on back there, where they are, before a verdict, is not something that we should know about, and that's what that note is doing and that's information that we shouldn't have known.
The Court: Well, but we know about it, so we have to deal with it.
Defense Counsel: And we know about it now.
The Court: Okay.
Prosecutor: And so, what I'm suggesting, is that we do release the jury at this point and have them return on Tuesday.
Defense Counsel: And the other thing that I would point out -- and again, the foreperson, while there's an inference in the note about what the split may have been or might be, the --
The Court: But we don't know that.
Defense Counsel: Well, I'll tell the Court that I've had notes which I thought were saying exactly that the jury was about to return a verdict one way, and then the opposite -- and then the jury came back the other way.
So what I'm saying to you is that that -- that I know that the foreman was careful to follow the Court's instructions, and it's --
The Court: Yeah, well I don't think it's --
Defense Counsel: And I would --
The Court: First, wait a minute.
It's not a numerical breakdown, by any means, this note. And because I don't -- it's just a -- it's a concern that the foreman has, and that's okay. He has a concern he thought he should bring to the Court's attention, which he has done.
[439 Md. 61] But I -- you know, it is almost 20 minutes after 5:00, and the jury has been deliberating since -- what was that -- 2:40, which isn't a lot of time, if you're earlier in the day, but they had been here all day. And if you'll recall, we did give them a very lengthy break. And I just think it may be a matter of just someone being really tired.
So I am inclined to release them and have them come back Tuesday.

The conversation continued with defense counsel addressing three additional points. First, he requested that the judge refuse to receive a verdict that evening, in light of the Note and anticipating the jury might claim to have reached a verdict between sending out the Note and being brought back into the courtroom. Second, defense counsel proposed that another judge receive the jury on Tuesday morning for further deliberations because the presiding judge would not be available that day at the normal start of court. The presiding judge agreed to the latter suggestion. Third, defense counsel asked that the Court inquire of the jury as to whether it would be impossible for any of the jurors to return on Tuesday and asked the court to grant a mistrial if any of them could not return, because no alternate jurors remained.[2]

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Before the judge could respond to counsel's third request, the jury was escorted back into the courtroom. At 5:25 PM, the judge stated the following to the jurors:

The Court: All right. I have received your note and counsel is aware of your notes -- or your note as well.
And what I'm going to do at this time is to excuse you for today, but you're going to have to return on Tuesday to continue your deliberations. I expect to see you on Tuesday, at 9:30. . . .

Counsel asked to approach the bench and the following conversation occurred:

[439 Md. 62] Prosecutor: Judge, would you also instruct them not to investigate?
Defense Counsel: Yes.
The Court: Yes.
Defense Counsel: And since the Court won't be here Tuesday morning, I think that the Court maybe at this time should give them the Allen Charge.
The Court: No. No. No. This is not a situation in which the Allen Charge applies. It really is not.
Prosecutor: Thank you, Your Honor.
The Court: I'm not going to give the Allen Charge.
Defense Counsel: My exception is noted?
The Court: That's fine.
The trial judge issued additional instructions to the jury:
The Court: Okay. There's just one other matter, and you've heard this more times than not, but I'll remind you.
Do not discuss the case with anyone.
. . . You must all be together, in the room, deliberating, before you ...

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