Graeff, Nazarian, Friedman, JJ.
Rahul Gupta was charged with the first-degree murder of his friend, Mark Waugh, who died from multiple stab wounds on the floor of an apartment that Mr. Gupta shared with his girlfriend, Taylor Gould. No physical evidence definitively identified Mr. Gupta as the assailant, and Ms. Gould claimed not to remember anything from that night (all three had been out drinking with friends). But something had obviously gone wrong among the three, and as the police investigated, Mr. Gupta told an officer, among other things, that "[his] buddy and [his] girl were cheating" and that he had "killed [his] buddy." At trial in the Circuit Court for Montgomery County, Mr. Gupta contended instead that Ms. Gould had stabbed Mr. Waugh. The jury found Mr. Gupta guilty of first-degree murder, and he contends on appeal that the circuit court erred in refusing to give the jury a "missing evidence" instruction, mishandled a communication from a juror, unfairly restricted his counsel's cross-examination of Ms. Gould, and wrongfully denied his motion to suppress statements he made during interrogation. We find no reversible errors and affirm.
Mr. Gupta and Ms. Gould met while studying biomedical engineering as undergraduates at George Washington University. They began dating their senior year, graduated in May 2012, and in February 2013, Mr. Gupta moved into Ms. Gould's Silver Spring apartment.
On the night of October 12, 2013, the two went for a night out in Washington D.C.'s Dupont Circle neighborhood to celebrate Mr. Gupta's birthday. After a steak dinner, they moved to a neighboring bar where they met Mr. Waugh, a friend of Mr. Gupta's from high school, and Josh White, a friend from college. An hour and several drinks later, the group relocated to another bar, where all four consumed more alcohol and split into pairs: Mr. Gupta and Mr. White went outside to smoke marijuana while Ms. Gould talked with Mr. Waugh inside. Mr. Gupta testified that during this time, Mr. White told him that Ms. Gould had been flirting with him. Ms. Gould, on the other hand, testified that she confided in Mr. Waugh that she felt uncomfortable because she thought Mr. White was flirting with her.
The conflict came to a head some time later (at yet another bar) when Mr. Waugh confronted Mr. Gupta and told him, "Your friend, [Mr. White], is trying to make a move on your girlfriend." Mr. White denied the accusation, but it was enough to break up the party-Mr. White returned to his apartment in Woodley Park, while Mr. Gupta and Ms. Gould returned to the Silver Spring apartment with Mr. Waugh. Ms. Gould testified that she wanted Mr. Waugh to return to the apartment with them to "be a witness to what had happened [between her and Mr. White] at the bar, and to help [her] tell [Mr. Gupta] what had happened." Mr. Gupta testified that he did not recall such a conversation, and that Mr. Waugh had merely accepted his invitation to return to Silver Spring with them.
The parties returned to the apartment without incident; they took shots of vodka and Mr. Gupta smoked more marijuana. Mr. Gupta testified that there was another discussion about who had been flirting with whom at the bar. Neither Mr. Gupta nor Ms. Gould could clearly recount the events occurring next, but there is no dispute that at 3:25 AM on October 13, 2013, Ms. Gould placed a call to 911 and told the operator that "my friend is . . . here and I need emergency right now, " that "[h]e's not breathing, " that "[t]here's blood everywhere, " and that "I don't know what happened." Police officers arrived on the scene quickly and encountered a "very intoxicated" Ms. Gould at the entrance to the apartment. She told the officers she wasn't sure what happened, and officers placed her in handcuffs and detained her outside the apartment, while others continued inside.
The officers who went inside found Mr. Gupta lying on the floor, groaning and "[c]overed in blood, " just to the left of Mr. Waugh's body. He too was intoxicated, and when officers asked him what happened, he said, "They were cheating. My girlfriend was cheating on me. My buddy and my girlfriend were cheating. I walked in on my buddy and my girlfriend cheating. I killed my buddy." Medical technicians on the scene confirmed that Mr. Waugh was dead. The medical examiner later testified that he suffered six stab wounds as well as five "cutting injuries." One stab wound punctured a lung, another severed his jugular vein, killing him in a matter of minutes. The murder weapon, a kitchen knife, was recovered under Mr. Waugh's leg.
Officers transported Mr. Gupta and Ms. Gould to police headquarters, where they were questioned separately. While placed in a holding cell to await interrogation, Mr. Gupta blurted out to the police officer assigned to guard him, unsolicited: "[P]lease, sir, look, I fucked up. He tried to stab me, though" as well as, "[G]uy's a real dick. He tried to kill me and my family." He also screamed, two or three times, "I want a lawyer." Later, two detectives moved Mr. Gupta to an interrogation room. Before asking Mr. Gupta any questions, an officer read him his Miranda rights and asked whether he understood. He responded, "Yes. When do I get to-" just as the detective interrupted him to start the interrogation. Mr. Gupta did not request counsel during the rest of the interrogation, but cooperated with the detectives and answered their questions.
At trial, Ms. Gould testified that she did not remember much of the night because she was intoxicated and "blacking out." She had no memory of attacking Mr. Waugh and claimed that she could not have been involved because she is "not capable of doing that." Mr. Gupta's theory of the case was that Ms. Gould was the assailant, and that she was angry and upset about what had happened at the bar. He testified that Ms. Gould became even angrier when, after returning to the Silver Spring apartment, Mr. Waugh suggested that he and Mr. Gupta leave for the evening in order to give everyone time to cool off. While looking for his shoes, Mr. Gupta said, he fell and hit his head; when he got up, he saw that Mr. Waugh had been attacked. He explained that he yelled for Ms. Gould to call 911, tried to slow Mr. Waugh's bleeding, and administered CPR before emergency personnel arrived. In support of his theory, Mr. Gupta produced evidence that Ms. Gould's hairs were on the murder weapon, in blood spatter on the wall near the victim, and found in one of the victim's hands. He also tried to introduce evidence that Ms. Gould carried a knife for protection, but the State objected and the court sustained the objection. In addition, Mr. Gupta testified that he told police falsely that he had killed Mr. Waugh to keep Ms. Gould out of trouble.
The jury convicted Mr. Gupta of first-degree murder, and the court sentenced him to life imprisonment. Mr. Gupta's timely appeal followed. We will discuss additional facts below, particularly details relating to the conduct of the trial.
Although there was copious physical evidence and forensic professionals featured prominently among the witnesses, the CSI testimony did not definitively plug the gaps between the participants' stories. Instead, this case turned largely on credibility, particularly the relative credibility of Mr. Gupta and Ms. Gould. Mr. Gupta raises four issues on appeal that we address in a slightly different order: we analyze first whether the circuit court violated Maryland Rule 4-326 when it responded to a communication from a juror before informing the parties of the communication; second, whether the court erred by refusing to give a missing evidence instruction; third, whether the court improperly limited the scope of Ms. Gould's cross-examination, and fourth, whether Mr. Gupta's statements during custodial interrogation should have been suppressed. And we find no error except as to the juror communication, an error that, we hold (for the first time in a reported decision), was harmless.
A. The Only Challenged Ex Parte Communication Between The Court And Juror 18A Was Harmless.
Although it's his second argument, we look first at what we find to be the strongest of Mr. Gupta's four contentions: that the circuit court violated Rule 4-326(d)(2)(C) when it communicated with an eventually-excused juror without first permitting the parties (and particularly him) the opportunity for input. Mr. Gupta is right that the court does appear, one time among the many communications from this jury, to have responded to a juror's scheduling query without first convening the parties and discussing its proposed response on the record. He is right as well that no reported Maryland appellate case has held that the State met its burden of proving that a trial court's communication with a juror was harmless. Until now.
Jury selection in this case began on Monday, March 2, 2015, and jurors were advised that the trial would take eight days. During voir dire, Juror 18A raised her hand in response to a number of questions. She advised the court and the parties that she was social friends with defense counsel's partner and that she donated to Mothers Against Drunk Driving and certain anti-gun causes, but denied that either of these associations would impair her ability to be fair and impartial. Then, in response to the question about whether jury service would cause substantial personal or financial hardship, Juror 18A revealed work and child care constraints:
THE COURT: You also said that there would be a substantial personal or financial hardship if you were to serve in this case?
PROSPECTIVE JUROR NO. 18A: Yeah, I'm sure everybody has their issues. I work for a very small non-profit, so my absence for an extended period of time will be difficult. I also have two children at home and no child care, so if, you know, my son for instance does not have school next Tuesday and Wednesday so I'll be in a position to try to find someone to look after him if I'm here.
THE COURT: Okay. Thanks very much.
After Juror 18A stepped down from the bench, the court suggested that she be excused, but the defense objected:
THE COURT: I'm a little concerned about her child care, combined with knowing [defense counsel's partner]. Would anybody object if the court strikes her?
[THE STATE]: No.
[DEFENSE COUNSEL]: No, she's a good juror. I object.
At the close of voir dire, neither side struck Juror 18A, so she was seated and the trial got under way. And from the very beginning, the transcript reveals that this was a fully engaged jury. Right after opening statements, for example, a juror realized that he might know Mr. White, one of Mr. Gupta's witnesses, and advised the judge's law clerk. The law clerk told the juror to put the concern in writing, which he did, and when everyone came back from a break, the court consulted with counsel, brought the juror out, and clarified through questioning that his acquaintance was a different Josh White. The next day, some jurors told the law clerk at a break that they had heard a lot of talking in the courtroom during bench conferences, but the court determined that the jurors hadn't heard anything relating to the trial:
THE COURT: During the last break, some jurors or a juror- One juror told my law clerk that during the time that we're up here with the husher on, that there's a lot of talking in the courtroom, so much so that she wishes there would be a husher for the gallery. So I did ask my law clerk to go into the-tell me if you did it any differently-to go into the jury room just now and just say there's a question from the judge, all we want is a yes or no-did anyone hear anything from the gallery that in any way is related to the trial, yes or no. And his report is that there was no affirmative responses.
I can ask them that on the record if you want me to do that.
[THE STATE]: I don't think it's necessary. We'll waive any further inquiry in that regard, but maybe an admonition to the audience.
[DEFENSE COUNSEL]: Maybe a caution to the gallery.
THE COURT: Oh yes. Of course.
As the proceedings broke for lunch that same day a juror tried to ask a question about the testimony that had just finished, to which the court responded in open court (only to say that jurors can't ask questions). Then on Friday morning, two jurors sent a note advising the court that another juror had smelled strongly of alcohol each day. In each instance- we haven't tried to catalogue all of them-the parties and the court worked well and worked together to keep the trial on track and proceeding properly. The broader point, though, is that the parties were well aware that the judge's law clerk served as the jury's initial point of contact and that the court would determine whether any communications related to the case. And, importantly, nobody objected or raised any concern about proceeding in that fashion.
As complicated trials often do, the testimony proceeded more slowly than all had hoped, plus snow closed the court on Thursday, March 5. So by the conclusion of proceedings on Friday, March 6, the court informed the jurors that they should plan for the trial to continue another full week, and perhaps into the week after that.
At some point after this warning, and the record doesn't reflect exactly when, Juror 18A told the law clerk that she had to attend an out-of-state conference that would prevent her from deliberating if the trial stretched into a third week. The judge advised the parties after a break on Monday afternoon, March 9, that Juror 18A had informed the law clerk that she needed to leave town the upcoming Saturday for the conference. The judge told the parties that he had directed his law clerk to tell Juror 18A that they would ...