Argued: March 31, 2016
Court for Montgomery County Case No. 124131
Barbera, C.J. [*] Battaglia, Greene, Adkins,
McDonald, Watts, Hotten, JJ.
case, we address a defendant's right to be present at
trial as it pertains to communications with a jury foreperson
during the deliberation phase of a trial as well as a trial
court's declaration of a mistrial on the ground of
manifest necessity. Kenneth Hart ("Hart"), the
defendant, was present throughout the two-day trial. On the
second day of trial, after closing arguments and the
administration of jury instructions, jury deliberations began
at 7 p.m. After approximately three and a half hours of
deliberation, the trial court received a jury note. The judge
informed the prosecutor and defense counsel of the
communication, and made arrangements for the sheriffs to
bring Hart, who was in custody, to the courtroom. While they
were waiting for Hart to arrive, defense counsel requested a
"preview" of the content of the jury note. The note
indicated that the jury was deadlocked on a particular count
and asked for guidance. Shortly thereafter, the judge was
informed that Hart had been transported to a hospital due to
a medical emergency. After the judge discussed the note with
the prosecutor and defense counsel, the court summoned the
jury foreperson to discuss the nature of the deadlock.
Although Hart was not present, and despite objections from
defense counsel, the judge accepted a partial verdict from
the jury. Hart was found guilty on three counts. The trial
court then declared a mistrial on the perceived deadlocked
count on the basis of manifest necessity.
post-trial hearing, the trial court recognized its error in
receiving the partial verdict in Hart's absence, and
ordered a new trial for the counts on which Hart had been
convicted. The trial judge concluded, however, that there was
manifest necessity to declare a mistrial, and denied defense
counsel's motion to dismiss the deadlocked count.
reasons explained below, we disagree with the entry of a
mistrial on the perceived deadlocked count. We hold that the
trial court erred when it responded to the jury note without
first conducting an adequate inquiry into the voluntariness
of Hart's absence from the court proceedings.
Furthermore, the trial judge erred in prematurely declaring a
mistrial-an extraordinary remedy-without first considering
reasonable alternatives to the declaration, because Hart was
involuntarily absent. These errors were not harmless, and
resulted in prejudice to Hart. Because manifest necessity did
not exist, under the unique facts of the case, a retrial on
the particular count is barred on the grounds of double
AND PROCEDURAL BACKGROUND
result of a traffic stop, Hart was found to be in possession
of controlled dangerous substances, including heroin,
cocaine, and phencyclidine ("PCP"). Hart was
indicted on several counts, which resulted in a two-day jury
trial. On May 19, 2014, the trial commenced in the Circuit
Court for Montgomery County. After the State concluded its
case-in-chief, Hart did not present any evidence, and rested
his case. The trial court's instructions to the jury
included the modified Allen charge on the jury's
duty to deliberate.Four charges were submitted to the jury:
Count 1: possession of heroin with intent to distribute;
Count 2: possession of heroin; Count 3: possession of
cocaine; Count 4: possession of PCP. At approximately 7 p.m.,
the jury began deliberations; a deputy sheriff took Hart into
custody and escorted him to a holding area.
10:21 p.m., the trial court received a written note from the
jury. The judge summoned the prosecutor and defense counsel,
and arranged for Hart to be brought to the courtroom. After a
period of time, the court was still waiting for Hart's
arrival. While the bailiff contacted the sheriffs to
ascertain Hart's whereabouts, the following conversation
ensued between the trial judge, prosecutor and defense
THE COURT: Do you want your client present when I tell you
about the note?
[DEFENSE COUNSEL]: I would love a preview first. I'll
waive him for the preview.
THE COURT: You'll what?
[DEFENSE COUNSEL]: I'll fill - - I'll fill him in.
THE COURT: Okay, here's a copy.
jury note stated: "After thorough deliberation the jury
split on charge #1. No new information can help us reach
consensus. What should we do?" Meanwhile, continued
efforts were made to have the sheriffs escort Hart to the
courtroom. At approximately 10:48 p.m., the judge was
informed that Hart was absent due to a medical emergency:
[DEFENSE COUNSEL]: I'm informed, your honor, or the court
has just - -the courtroom has been informed at this late
hour, 10:48 or so, that Mr. Hart is experiencing medical
problems and is likely en route by ambulance to the hospital.
THE COURT: Yes, we received a note from the jury at
approximately 10:21[p.m., ] which reads, "After thorough
deliberation the jury is split on charge number one. No new
information can help us reach consensus. What should we
do?" While we were waiting for the sheriffs to bring the
defendant and after repeated calls we just found out that
there's a medical emergency. He's on his way to the
hospital. What do you want to do about the note?
[DEFENSE COUNSEL]: This is certainly a situation of first
impression for me. I have no information on his medical
condition aside from a call from the sheriff's department
saying he's en route with chest pains. Presumably he
could be fine tomorrow morning. Maybe not. Maybe not at all.
The jury has deliberated for nearly four hours, after two
full days of trial. One of two things I would suggest at this
point - - I mean, I don't have Mr. Hart by my side, which
makes me apprehensive to make any moves on his behalf. But
perhaps an inquiry as to how seriously they're deadlocked
or - -
THE COURT: Do you want me to bring the foreperson out and ask
[DEFENSE COUNSEL]: I think that would at least give us some
guidance, because my gut says ask them to come back in the
morning and continue to deliberate, give them the
Allen charge, find out what Mr. Hart's status
is. I'd hate to - - I don't think I'm in a
position to request a mistrial without him by my side and
without his input.
THE COURT: Counsel?
[PROSECUTOR]: They haven't been asked to continue to
deliberate yet. I'll defer to the court as to what we do.
THE COURT: Well, I'll bring the foreperson out and ask
him whether or not - - if they can't come back tomorrow,
you know, after having a good night's sleep, do they
think that they can deliberate some more? Hi.
JUROR 132: Hi.
THE COURT: You can - - you can just stand right there. We
received your note. And it indicates that no new information
can help [the jury] reach consensus. But what I was wondering
is - - I mean, it's been a long day. Do you think that
after going home and maybe getting a good night's rest
and coming back tomorrow you can start deliberating again
with a clearer head, or do you think it's no use?
JUROR 132: We had a very good process in there. And there was
(sic) a couple of times where we initially took a minute and
everyone just thought and thought. We went around the room
three times, we gave everyone a chance to talk, and then we
all answered each other. We voted three times going around.
And at the end, there was (sic) people in the room who said
there was no information that could change their mind. If you
want to know, I can tell you what the vote count was.
THE COURT: No, not right now. But when you say information,
are you saying information that could be gained from you all
discussing it with each other or information that we could
JUROR 132: I think either . . . . I think that there are
people in the room who have unequivocal positions on each
side. And they said there's nothing that could change
THE COURT: Okay. And you don't think a good night's
sleep would help.
JUROR 132: No, I don't think so.
judge then asked the prosecutor and defense counsel if they
had any questions for the foreperson. Each replied in the
negative, and the foreperson returned to the jury room. The
following exchange then took place:
[DEFENSE COUNSEL]: I think the only thing that I am in a
position to request at this moment is that they be excused
for the night and read the Allen charge first thing
in the morning, start deliberations again. If they pass a
similar note suggesting that they're deadlocked, we can
deal with it accordingly. But they haven't been read the
Allen charge. And most importantly I don't know
what Mr. Hart's situation [is]. And without him to give
me his input related to his desires, I would be I think
delinquent in my duties if I requested a mistrial on his
[PROSECUTOR]: Your honor, I can just tell you from the
State's perspective based on what I heard I don't
think anything is going to change. The people who are set on
their positions are going to, after coming back, anything
actually going to change materially to make the posture
change (sic) - - so the State is not interested in that. But
I'll defer to - - in terms of coming back and letting
them get the Allen charge and continue to
deliberate, in light of what I heard. But I'll defer as
to what ends up happening.
THE COURT: Okay. With respect to what you're referring
to, the Allen charge, basically that's already
been given in the jury instruction - - [a] jury's duty to
deliberate. They've already got this. The foreperson came
out. He indicated that, you know, they've taken breaks,
they've gone over it, in response to my question, because
the note wasn't clear where it says no new information
could help. And the response to my question was whether he
was talking about information from us or information from the
deliberations, and he said both. So based on his responses to
my questions I'm not going to ask them to deliberate any
further. I'm reluctant right now to say a mistrial as to
charge number one, because I don't know what the verdict
sheet says. . . . But I don't see that
there's anything that would prohibit me from declaring a
mistrial after we see the verdict sheet, do you?
[DEFENSE COUNSEL]: I mean, I've stated my position. I
think that they should be charged - -
THE COURT: No, I understand that. But I'm just asking you
at this point.
[PROSECUTOR]: Your honor, I think we should look at the
[DEFENSE COUNSEL]: Mr. Hart is not even in the building.
THE COURT: I understand that, but that's through no fault
of the court. And we don't know what his circumstances
[DEFENSE COUNSEL]: I agree with that, but I don't want to
- - I mean, there's only a couple of options. He's
either legitimately experiencing medical issues, which I
think in light of him proceeding through this whole trial - -
and seemingly the stresses would at some point manifest and
come to a head, and that would be appropriate with the timing
associated with this, or he's faking it which, you know,
I don't put any stock in whatsoever. But I don't
think he should be punished by virtue of the fact that
he's fallen ill.
THE COURT: I don't see this as punishment. What do you
see as punishment for it? I don't understand what
you're - -
[DEFENSE COUNSEL]: Taking a partial verdict in his absence,
not allowing him to consult with me about the issue of
mistrial. Now I've stated my position. And that may or
may not be his position, but we don't know his position.
THE COURT: So are you suggesting that this could be
open-ended? We've got a verdict on at least some of the
counts, and I'm inclined to accept that and then based on
the verdict sheet declare a mistrial on one and two or just -
- I don't know what it says. So let's bring the jury
court summoned the jury and received a partial verdict. The
jury announced it was unable to reach a verdict as to Count
1; however, Hart was found guilty on the remaining possession
counts. The jury was then hearkened, polled, and dismissed.
Thereafter, the judge declared a mistrial as to Count 1, the
perceived deadlocked count.
three months after the jury returned a partial verdict, on
August 18, 2014, Hart filed, through counsel, a Motion to
Dismiss Enumerated Counts and Motion for New Trial. He moved
to dismiss Count 1 on the grounds of double jeopardy. He
argued that the mistrial was not supported by manifest
necessity because either the jury was not truly deadlocked,
or Hart was involuntarily absent; without manifest necessity,
a retrial is barred. At a hearing, on August 22, 2014, the
trial judge affirmed her finding of manifest necessity based
on the jury deadlock, and denied the motion to dismiss Count
1. The Court ...