Criminal Law Update

The July Amicus contains a Court of Appeals and two Court of Special Appeals decisions which may be of interest.

Nash v. State, No. 60, September Term 2013, filed June 20, 2014 (opinion by Harrell, J.)

Nash’s trial for first degree murder went to the jury for deliberation on the Friday afternoon before Labor Day weekend. At about 5 p.m., the foreperson sent a note to the judge: “I don’t believe that the defendant is being given 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 judge met with counsel to discuss a response. Nash’s attorney moved for a mistrial, arguing that the note indicated that a juror was going to vote guilty based
on “co
nvenience and expediency” rather than on the evidence. The judge denied the motion but decided that the jury was tired and should be sent home for the holiday weekend. Nash’s attorney then asked for a modified Allen charge which the court refused to give. Before releasing the jury, the judge reminded the jurors not to conduct any investigation of the matter and added: “As I have instructed you, your decision must be based upon what has been presented here during the course of the trial. I expect that you will comply with my instructions. It’s the only way this process works.”

On the following Tuesday, the jury resumed deliberations. Defense counsel renewed the mistrial motion and it was denied. The jury found Nash guilty of first degree murder. The jury was polled and found to be unanimous. After the jurors were dismissed, defense counsel again asked for a mistrial and announced his intent to file a new trial motion. The judge reserved ruling on the mistrial and set a date for a hearing on the motion for a new trial. At the end of that hearing, both defense motions were denied.

Nash appealed to the Court of Special Appeals, which affirmed the judgment. The court of Appeals granted Nash’s Petition for Certiorari to consider the following question: Did the trial court commit reversible error when, after receiving a jury note stating that one juror indicated a willingness to change her vote from not guilty to guilty “because she wanted to go home and not return,” it (1) denied the defendant’s mistrial motion without first conducting a voir dire of the jury, (2) refused defense counsel’s request to give a modified Allen instruction and, (3) chose to recess over a three-day weekend and have the jurors return to continue deliberations?

The Court affirmed, finding that the circuit court did not abuse its discretion in denying the motion for a mistrial without conducting a voir dire of the jurors. The Court found that Nash’s case was different from cases in which the Court applied a presumption of prejudice to alleged juror misconduct. In Nash, the statement suggested that a juror might engage in future misconduct. It was not a case where juror misconduct had already occurred before a mistrial motion. The Nash matter involved a discussion between jurors, as opposed to between jurors and defendants, witnesses or third parties. Finally, the Nash matter did not involve the introduction of extrinsic evidence into the deliberations.

Since the juror’s note did not raise a presumption of prejudice, the burden of requesting a voir dire of the jury did not shift from Nash to the State or the trial judge. It was not a case where voir dire by the judge was needed to resolve factual questions to determine whether the presumption of prejudice was applicable or whether the judge had enough information on which to exercise discretion in a mistrial ruling. The unresolved questions in Nash were not the kind of “alarming” factual questions that went unresolved in some prior cases. Thus, the judge did not lack sufficient information on which to base a denial of the mistrial.

The Court also held thatPicture22 it was not an abuse of discretion for the judge to deny the mistrial motion without conducting a voir dire for the purpose of obtaining assurance from the jurors that they could reach a fair and impartial verdict. Nash’s case was not one where a voir dire was the only way to ensure a fair and impartial verdict. The trial judge’s interpretation of the note as indicating jury fatigue was reasonable.

The Court also denied Nash’s argument that it was abuse of discretion not to give a modified Allen charge. Trial judges have wide latitude in determining whether to give such a charge. Nash failed to show that the judge’s refusal to give it after deliberations began, but before a jury deadlock was confirmed, constituted an abuse of discretion.

The Court finally concluded that the judge did not violate Maryland Rule 4-326(d) by deciding to release the jury for the holiday weekend with additional instruction reminding them of their duties instead of responding directly to the note that it had received. The Court found that the judge’s actions were a “response” to the note within the plain meaning of the Rule and that the response was a reasonable one.

Jones v. State, No. 1106, September Term 2013, filed June 27, 2014 (opinion by Nazarian, J.)

Taylor was shot and Alexander was killed inside of Alexander’s vehicle. The next day, Taylor identified Jones as the shooter. Inside Alexander’s vehicle, police found two cell phones and $5 among other items. Jones was arrested and charged with the murder of Alexander, the attempted murder of Taylor and other crimes.

At trial Taylor and Jones gave conflicting testimony about the night of the shooting. Taylor said that he and Alexander picked up Jones to give him a ride. Jones then pulled out a gun and demanded everything they had. Taylor and Alexander threw money and a cell phone into the back seat. Taylor tried to jump from the car and Jones shot him in the face. While running to a nearby hospital, Taylor heard another gun shot. Defense counsel for Jones tried to impeach Taylor’s testimony with evidence of his prior conviction for attempted second degree murder. The trial judge would not allow it.

Jones testified that Taylor and Alexander came to his house to sell him marijuana. Jones stated that he got in Alexander’s car, asked if he could charge his phone using the car charger, spoke with Taylor and Alexander for a little while, bought the marijuana and went back into his own house.

During closing arguments, the assistant state’s attorney argued that the phone charger in Alexander’s vehicle, shown in a State exhibit, was an iPhone charger. The State argued that this disproved Mr. Jones story because he could not have plugged his phone (which was not an iPhone) into an iPhone charger. Counsel for Jones objected, arguing that the kind of charger in Alexander’s car was not a fact in evidence. The judge overruled the objection. Jones was found guilty and appealed to the Court of Special Appeals.

COSA reversed and remanded. On appeal, Jones contended that there was insufficient evidence to convict him of robbery with a dangerous weapon, that the trial judge erred by refusing to allow the impeachment of Taylor with a prior conviction for attempted second degree murder and further erred by overruling the objection to the State’s remark in closing about the phone charger.

Jones’ evidentiary challenge was limited to one element of robbery with a dangerous weapon – taking property from the victims. COSA noted the evidence that $5 and two cell phones were found in the car and that the victims threw at least $18, two cell phones and a wallet into the back seat. COSA concluded that at least $13 and a wallet had been taken and determined that there was sufficient evidence to support the conviction for robbery with a dangerous weapon.

As to witness impeachment, COSA acknowledged that under Maryland Rule 5-609 and King v. State, 407 Md. 682 (2009), a witness may be impeached with a prior conviction for an infamous crime or a crime related to witness credibility. COSA concluded that attempted second degree murder is not an infamous crime. The trial judge had not erred in precluding the impeachment of Taylor with such a conviction.

The State conceded that the prosecutor’s remark during closing about the charger was not a fact in evidence. However, it argued that a juror applying common knowledge could reasonably conclude that the white cord seen in the State’s exhibit was an iPhone charger. COSA reasoned that even if iPhones can only be charged by white-corded chargers, the State had not established that other brands of phones could be charged only by non-white charger cords. Because the fact was not in evidence and not of common knowledge, COSA found the remark improper. Because no physical evidence tied Jones to the crime and the trial turned on witness credibility, COSA held that the prosecutor’s remark was not harmless and reversed Jones’s conviction.

Norton v. State, No. 2382, September Term 2008, filed June 24, 2014 (opinion by Berger, J.)

Norton was convicted of attempted first degree murder and other crimes. On appeal, the Court of Special Appeals considered whether his right to confrontation was violated when the trial court allowed one DNA analyst to testify regarding the work of another DNA analyst and thereby admitted the report of a non-testifying DNA analyst. DNA evidence was introduced by the testimony of a vice president at Bode Technology Group. This evidence showed a match between Norton’s DNA and a black ski mask that tied Norton to the crime. A different DNA analyst had actually conducted the testing and prepared the report. The trial court admitted the DNA evidence over defense objection. COSA reversed the conviction.

COSA considered whether the challenged report had “the solemnity of an affidavit or deposition” and “attested that its statements accurately reflected the DNA testing processes used or the result obtained.” Williams v. Illinois, 132 S. Ct. 2221 (2012). Applying the Williams standard, COSA considered the evidence at issue. It noted that the report in question included a first page with identification numbers and descriptions for two pieces of evidence and the notation that “the DNA profiles reported in this case were determined by procedures that had been validated according to standards established by the Scientific Working Group on DNA Analysis Methods and adopted as Federal Standards.”Picture16

The report’s conclusions were on the second page and stated that the major male DNA component had a profile matching the DNA profile obtained from the Norton reference item. It cited the probability of randomly selecting an unrelated individual with the same DNA profile and concluded that “within a reasonable degree of scientific certainty, Harold Norton is the major source for biological material obtained from evidence.” Two signatures appeared at the bottom of the page. Page three was a table showing a “Summary of Short Tandem Repeat Results” comparing the reference sample from Norton and the cutting from the ski mask.

COSA emphasized that the report included language indicating that Norton was the major source of the DNA sample from the ski mask. It observed that the report’s conclusions were directly above two expert signatures. It also noted that the report contained the phrasing “within a reasonable degree of scientific certainty.” The report was sufficiently formalized to be “testimonial” for purposes of the confrontation clause.

However, COSA found that the trial judge erred by allowing testimony regarding the DNA report and by admitting the report through that testimony. The witness on the stand had acknowledged that he did not perform any analysis of Norton’s DNA sample but only reviewed the report and associated lab notes and data prepared by someone else. The accused’s right to be confronted with the analyst who made the certification had been denied.