Mitchell v. State

KARWACKI, Judge.

We issued a writ of certiorari in this case to consider whether the trial judge abused his discretion in refusing to answer a question from the jury, posed during deliberations, regarding the consequences of a “hung” jury. We shall hold that he did not.

I

John Michael Mitchell, the petitioner, was charged with offenses stemming from the burning of his former girlfriend’s residence. He entered pleas of not guilty and not criminally responsible (NCR). From October 19 until October 22, 1992, Mitchell was tried before a jury in the Circuit Court for Baltimore County.

After the jury was instructed and counsel made their closing arguments, the jury retired to deliberate. After nearly five hours of deliberation, the jurors sent the following note to the court:

“If the decision of the group is a hung jury, will the case be dismissed and John Mitchell walk, or will he be retried?”

The court and counsel then engaged in the following colloquy:

“[The Court: ] Now, in light of that, I don’t feel that I should answer it. I feel that I should probably give them an Allen charge.

“[Prosecutor: ] That’s fine, Judge.

“[Defense Counsel: ] Well, I understand that, Your Honor, and I think that goes to the issue of going back to deliberate, but I think it’s not improper to let them know that if this case is a mistrial at some point or a hung jury, that- he would not walk.

“[Prosecutor: ] I think it’s improper to let them know that. It’s not relevant at all. It should not be part of their deliberations.”

The court agreed with the prosecutor and then addressed the jury:

“Ladies and gentlemen of the jury, you have sent out a question. The question is not going to be answered, it’s none of your concern, but I want to give you this instruction again:[¹]

“The verdict must be the considered judgment of each of you. In order to reach a verdict, all of you must agree. Your verdict must be unanimous. You must consult with one another and deliberate with a view to reaching an agreement, if you can do so without violence to your own individual judgment: Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. During deliberations, do not hesitate to reexamine your own views. You should change your opinion if convinced you are wrong, but do not surrender your honest belief as to the weight or effect of the evidence only because of the opinion of your fellow jurors or for the mere purpose of reaching a verdict.

“Now, Madam Foreperson, would you take the jurors back to the deliberation room and we’ll await your decision.”

Fifteen minutes later, the jury rejected Mitchell’s NCR defense and convicted him of five counts of attempted first degree murder and single counts of arson, harassment and telephone misuse. The court then sentenced Mitchell to a period of incarceration and he appealed that judgment to the Court of Special Appeals. In an unreported opinion, the intermediate appellate court affirmed the judgment of the circuit court.

Mitchell contends that the trial judge’s refusal to answer the jury’s question about the effect of a “hung” jury was an abuse of the court’s discretion. We disagree, as the question involves a matter that was not appropriate for the jury to consider during deliberations, and because any definitive answer the court could have given would have been speculative.

II

Under Maryland Rule 4-325(a), “[t]he decision to supplement [jury] instructions and the extent of supplementation are matters left to the sound discretion of the trial judge, whose decision will not be disturbed on appeal in the absence of a clear abuse of discretion.”. Howard v. State, 66 Md.App. 273, 284, 503 A.2d 739, 744-45, cert. denied 306 Md. 288, 508 A.2d 488 (1986) (citations omitted). As a general rule, a jury should not be told about the consequences of its verdict — the jury should be focused on the issue before it, the guilt or innocence of the defendant, and not with what happens as a result of its decision on that issue. E.g., Shannon v. United States, 512 U.S. ___, ___ _ ___, 114 S.Ct. 2419, 2422-24, 129 L.Ed.2d 459, 464-67 (1994); Chambers v. State, 337 Md. 44, 48, 650 A.2d 727, 729 (1994).

We have previously recognized two exceptions to this general rule. First, when a criminal defendant raises an NCR defense, a judge must advise the jury of the consequences of a verdict of NCR when requested to do so by the defendant. Erdman v. State, 315 Md. 46, 58, 553 A.2d 244, 250 (1989). In Erdman we reasoned

“that ‘the jury has the right to know the meaning of [a verdict of not criminally responsible] as accurately as it knows by common knowledge the meaning of [a verdict of guilty and a verdict of not guilty].’ ”

Id. (quoting Lyles v. United States, 254 F.2d 725, 728 (D.C.Cir.1957), cert. denied, 356 U.S. 961, 78 S.Ct. 997, 2 L.Ed.2d 1067 (1958)) (emphasis added, alteration in original). Clearly this exception would not apply to the instant case, as Erdman only requires an instruction regarding the consequences of a verdict of NCR, and that instruction was given. Moreover, the reasoning supporting the Erdman exception would not apply in this matter, as the jury clearly already understood the meaning of a “hung” jury if not its consequences.

The second exception arises in a capital case when the jury is involved in determining the defendant’s sentence. There the defendant is allowed to present information to the jury concerning his eligibility for parole in the event that a life sentence is imposed. Doering v. State, 313 Md. 384, 407-12, 545 A.2d 1281, 1292-95 (1988). In Doering we opined

“that a jury seeking to determine the appropriateness of a life sentence will be aided by information correctly describing the legal and practical effects of such a sentence, and that the existence of an appropriate alternative sentence must certainly be considered a relevant mitigating circumstance.”

Id. at 411-12, 545 A.2d at 1295. As the jury in the instant case was not involved in any way in Mitchell’s sentencing, neither this exception nor the reasoning supporting it is applicable. Furthermore, we observe that in capital cases a sentencing jury does not have to be told that if it is “hung” regarding the sentence the court will impose a life sentence. E.g., Oken v. State, 327 Md. 628, 642-43, 612 A.2d 258, 265 (1992), cert. denied, ___ U.S. ___, 113 S.Ct. 1312, 122 L.Ed.2d 700 (1993).

Two cases addressing a jury’s question regarding the consequences of a “hung” jury have been reported in Maryland. In Leupen v. Lackey, 248 Md. 19, 234 A.2d 573 (1967), a civil case, the jury asked about the consequences of a deadlocked jury and the court responded with an Allen charge. We held that the response was not reversible error. In Dove v. State, 47 Md.App. 452, 423 A.2d 597 (1980), the Court of Special Appeals summarily responded to Dove’s complaint that his jury had been unduly influenced by stating that

“[the] appellant [did not] object when the court, quite properly, declined to answer a juror’s question as to what would happen if the jury deadlocked.”

Id. at 457, 423 A.2d at 600 (emphasis added).

We recently stated that

“[w]ith the exception of death penalty and insanity cases, the sole function of the jury in a criminal case in Maryland is to pass on whether the defendant is guilty as charged, a decision based on the evidence presented at trial and the law pertaining to the case.”

Chambers, 337 Md. at 48, 650 A.2d at 729 (emphasis added). We went on to say that because the instruction Chambérs requested² would invite the jury to consider punishment, it

“risks distracting the jurors from their designated task, and from their obligation to decide the case based on the evidence and the law.”

Id. at 53, 650 A.2d at 731.

The instant case more closely resembles Chambers, where the jury had no need for the information the defendant wished the jury to have,³ than it does Erdman and Doering, where the jurors required the information in order to properly perform their duties. In this case, the jury’s only task was determining Mitchell’s guilt or innocence. The consequences of a “hung” jury were irrelevant to accomplishing that task and therefore not a proper consideration.

Ill

Even if the jury’s question were proper, the trial judge still properly exercised his discretion in refusing to answer it. As it is up to the State’s Attorney to decide whether to retry a defendant after a mistrial, the trial judge could not have known what would happen in the case of a “hung” jury. Any definitive answer that the court would have given to the jury’s question, therefore, would necessarily have been speculative.⁴

In Erdman, supra we noted that an instruction regarding the consequences of an NCR verdict generally was required in jurisdictions, such as Maryland, where commitment of the defendant is automatic; however, in jurisdictions where the consequences of an NCR verdict were not mandated, and were therefore uncertain, the instruction was not required. Erdman, 315 Md. at 53, 553 A.2d at 247. Applying these observations to the present case, the trial court was not required to instruct the jury on the results of a “hung” jury, because those results were uncertain.

JUDGMENT AFFIRMED, WITH COSTS.

1 . The court had given the jurors substantially the same instruction prior to directing- them to begin their deliberations.

2 . In Chambers, the defendant wanted the court to instruct the jury that it could return a recommendation of mercy after finding him guilty of possession of cocaine.

3 . Indeed, Chambers, in discussing the rights of juries that are not included in jury instructions, lists as one of those rights that "the jury ... may end in deadlock and *hang[.]’ " Chambers, 337 Md. at 49 n. 3, 650 A.2d at 729 n. 3.

4 . We recognize that the trial court could have answered the juiy’s question with an indefinite answer such as “I don’t know” or indicated to the jury that the decision of whether or not to retry Mitchell rested with the prosecutor. Such a response, however, would have had the same effect as not answering the question at all — that of leaving the jury uncertain of the consequences of a "hung” jury. As such an indefinite response would have been of no consequence in this matter, we find no merit in Mitchell’s argument that one should have been given.