Corrected May 17, 2016.
[Copyrighted Material Omitted]
from the Circuit Court for Montgomery County. Richard E.
BY: Lafry Allan Nathans & Booth Marcus Ripke (Nathans &
Biddle, LLP on the brief) all of Baltimore, MD. FOR APPELLANT
BY: Robert Taylor, Jr. (Brian E. Frosh, Attorney General on
the brief) all of Baltimore, MD. FOR APPELLEE
BEFORE: Graeff, Nazarian, Friedman, JJ. Opinion by Nazarian,
Md.App. 724] Nazarian, J.
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.
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
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.
[227 Md.App. 725] 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.
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.
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.
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 [227 Md.App. 726] 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.
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.
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 [227 Md.App. 727] 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.
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
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;
[227 Md.App. 728] 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.
The Only Challenged Ex Parte Communication Between The Court
And Juror 18A Was Harmless.
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 ex parte communication with a juror was
harmless. Until now.
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
THE COURT: You also said that there would be a substantial
personal or financial
hardship if you were to serve in this case?
[227 Md.App. 729] 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
THE COURT: Okay. Thanks very much.
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.
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
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 [227 Md.App. 730]
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.
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 ...