We are asked to determine whether the trial judge in the present case abused his discretion in denying William Edward Dillard's ("Defendant" or "Dillard") motion for a mistrial when, following the testimony of the State's primary law enforcement witness, two jurors patted the witness on the back and commended him for doing a "good job." In the present case, the trial judge failed to conduct a voir dire examination of the jurors to determine whether the jurors had reached a premature conclusion as to Dillard's guilt or formed fixed opinions about the evidence. The contact between the jurors and the State's witness raised questions about the jurors' ability to reach an impartial verdict, and the trial judge failed to resolve the factual questions raised by the contact. Accordingly, we shall hold that, in failing to conduct an inquiry, the trial judge abused his discretion in denying Dillard's motion for a mistrial. Contacts between jurors and witnesses during the course of a trial about the content of a witness's testimony create an appearance of impropriety that undermines the integrity of the trial system, and thus factual questions about the jurors' ability to reach an impartial verdict that are raised by such contacts must be resolved by the trial judge.
Facts and Procedural History
The underlying facts of the present case, as established at trial, are not at issue before this Court. We adopt the facts as presented by the Court of Special Appeals:
Dillard v. State, No. 1578, slip. op. at 2-6 (Md.Ct.Spec.App. Feb. 11, 2009) (footnote omitted).
Dillard was charged with possession of cocaine with the intent to distribute, possession of cocaine, possession of marijuana, conspiracy to distribute cocaine, possession of paraphernalia, and possession of a firearm in relation to drug trafficking. Detective Smith, the State's primary witness, testified to the facts described above at Dillard's trial. The day after Smith testified, the State called Sergeant Robert Kiesel as an expert in the distribution and use of crack cocaine. Kiesel, the State's final witness, testified to the "street value" of the drugs and his opinion that the drugs recovered in the raid were intended for distribution. After the parties completed their questioning of Sergeant Kiesel, the court recessed for lunch.
The incident underlying the controversy before us occurred during the lunch recess. Upon returning from the recess, the State informed the trial judge about the incident and the following occurred outside of the jury's presence:
At Dillard's request, the trial judge brought the jurors into the courtroom so Detectives Smith and Kiesel could identify, for the court, the jurors that contacted him. Dillard's attorney then questioned the officers:
Dillard then renewed the Motion for a Mistrial, arguing that the juror's contact demonstrated that the jurors might be "influenced" by each other, or that they had discussed the merits of the case prematurely.
The trial judge denied Dillard's request for a mistrial, and declined Dillard's request to replace one of the two jurors involved in the incident with the alternate. The jury convicted Dillard of possession of cocaine with the intent to distribute, possession of cocaine, and possession of marijuana.
Dillard appealed his conviction to the Court of Special Appeals, which affirmed the trial court's judgment. In an unreported opinion, the intermediate appellate court held that, although Dillard preserved for appellate review his claim that the trial judge abused his discretion by failing to grant his motion for a mistrial, Dillard failed to preserve his complaint that the trial judge did not conduct a voir dire examination of the jurors because he failed to request such an examination. Further, the intermediate appellate court held that the trial judge did not err or abuse his discretion in denying Dillard's request for a mistrial. In the intermediate appellate court's view, the jurors in question did not engage in any misconduct because they did not violate the trial judge's instructions by talking to Detective Smith. Additionally, according to the Court of Special Appeals, the jurors' conduct was "neither nefarious nor prejudicial" on its face, and was not extended in length. Thus, the intermediate appellate court held that Dillard had not advanced a reason to presume prejudice based on the jurors' limited contact with Detective Smith. Further, the Court of Special Appeals pointed out that it is not improper for the jurors to have tentative opinions as to the question of Dillard's guilt or innocence. The juror's comments did not demonstrate bias, in the intermediate appellate court's view, but rather were merely an instinctive human reaction to the testimony. Finally, the intermediate appellate court pointed out that the trial judge's subsequent instructions on the State's burden and the presumption of innocence
Dillard petitioned this Court for a writ of certiorari. We granted Dillard's petition to resolve the following question: "Should prejudice to Petitioner be presumed where, following the testimony of the State's primary law enforcement witness, two jurors patted the witness on the back and commended him for doing a `good job'?"
Standard of Review
Generally, appellate courts review the denial of a motion for a mistrial under the abuse of discretion standard, because the "trial judge is in the best position to evaluate whether or not a defendant's right to an impartial jury has been compromised." Allen v. State, 89 Md.App. 25, 42-43, 597 A.2d 489, 497 (1991); State v. Hawkins, 326 Md. 270, 277, 604 A.2d 489, 493 (1992). "The judge is physically on the scene, able to observe matters not usually reflected in a cold record. The judge is able to ascertain the demeanor of the witnesses and to note the reaction of the jurors...." Hawkins, 326 Md. at 278, 604 A.2d at 493.
The Sixth Amendment to the United States Constitution guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed...." (Emphasis added.) Article 21 of the Maryland Declaration of Rights also guarantees "[t]hat in all criminal prosecutions, every man hath a right... to a speedy trial by an impartial jury, without whose unanimous consent he ought not to be found guilty." (Emphasis added.) "A criminal defendant's right to have an impartial jury trial is one of the most fundamental rights under both the United States Constitution and the Maryland Declaration of Rights. Inherent in both documents are the paramount notions of justice and fair process during criminal proceedings." Jenkins v. State, 375 Md. 284, 299, 825 A.2d 1008, 1017 (2003). "The potency of the Sixth Amendment right to a fair trial relies on the promise that a defendant's fate will be determined by an impartial fact finder who depends solely on the evidence and argument introduced in open court." Wright v. State, 131 Md.App. 243, 253, 748 A.2d 1050, 1055 (2000) (quoting Allen v. State, 89 Md.App. at 42, 597 A.2d 489).
In the context of a jury trial, "private, intentional communications and/or contacts between jurors and witnesses are generally improper, and convictions in such cases are subject to reversal unless the contacts are proven to be non-prejudicial to the defendant." Jenkins, 375 Md. at 301, 825 A.2d at 1018 (citing Mattox v. United States, 146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917 (1892)). Contacts between witnesses and jurors are generally improper because such contacts "raise fundamental concerns on whether the jury would reach their verdict based solely on the evidence presented at trial or whether
Because communications between jurors and witnesses raise serious concerns about the fundamental fairness of a jury trial, in some cases, private communications between a juror and a third party are "deemed presumptively prejudicial" to the defendant. Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 451, 98 L.Ed. 654, 656 (1954); Jenkins, 375 Md. at 340-41, 825 A.2d at 1041. If the contact is presumptively prejudicial, the burden of proof shifts to the State, which may overcome the presumption by showing that the contact was harmless. Jenkins, 375 Md. at 301, 825 A.2d at 1018. The presumption of prejudice applies to cases where the juror misconduct was "excessive and egregious." Jenkins, 375 Md. at 315, 825 A.2d at 1026.
In the present case, Dillard argues that the jurors' conduct was both intentional and egregious and, accordingly, a presumption of prejudice should attach to their actions. In Dillard's view, it is of no moment that the trial court failed to instruct the jurors to avoid contact with the witnesses. Dillard points out that such preliminary and interim instructions are not mandatory pursuant to Md. Rule 4-325(a), and asserts that the jurors should have known that intentionally speaking to the State's primary witness was inappropriate. Even if the jurors did not realize their conduct was inappropriate, Dillard asserts that the relevant question is not whether the jurors believed that their actions were appropriate, but rather whether their actions deprived Dillard of his right to a fair trial. The jurors did not approach Detective Smith with mere pleasantries or common-place gestures, according to Dillard. Rather, in Dillard's view, the jurors expressed a view that Detective Smith "had arrested the right man," or, at a minimum, that they had a favorable view of the police investigation. Further, Dillard points out that the jurors felt strongly enough about their view of Dillard's guilt to state it openly, in front of anyone present in the hallway. According to Dillard, the jurors' actions call into question their ability to follow the court's instructions on the presumption of innocence, the weight due to the testimony of law enforcement officers, and the State's burden of proof. Without a voir dire examination of the jurors, there is no way to know whether the jurors were able to follow the court's instructions.
The State, in response, argues that the content of the jurors' contact with Detective Smith fails to demonstrate prejudice intrinsically and, accordingly, Dillard failed to carry his initial burden of showing prejudice. In the State's view, this Court's decision in Jenkins, 375 Md. 284, 825 A.2d 1008, stands for the idea that presumption of prejudice only arises in cases where there is egregious juror and witness misconduct. In this case, because the jurors had not violated any instructions from the court, the jurors did not engage in any misconduct according to the State. The State asserts that the contact in this case was "fleeting," and that there was no evidence that the jurors sought out Detective Smith, or that they acted in concert. Additionally, the State acknowledges that Detective Smith did not engage in any misconduct, and rather behaved commendably under the circumstances. Because Detective
Even if we accept the State's argument that Jenkins, 375 Md. at 340-41, 825 A.2d at 1041, limits the scope of presumptive prejudice to situations where the jury misconduct is "excessive or egregious," we cannot determine from the record before us whether the contact between the jurors and Detective Smith was sufficiently egregious to create a presumption of prejudice to Dillard. In our view, the relevant question raised by the contact between the jurors and Detective Smith is not whether the jurors violated the court's instruction, but rather, whether the jurors had formed a fixed opinion as to Dillard's guilt before hearing all of the evidence in the case, or whether the jurors had engaged in premature deliberations about Dillard's guilt or innocence. Without a voir dire examination of the jurors to determine the intent or sub-text of their comments and whether they had discussed the issue of Dillard's guilt or innocence, the trial judge did not have sufficient information to determine whether the presumption of prejudice attached to the contact or to rule on Dillard's motion for a mistrial. Thus, the trial judge's failure to clarify the factual scenario raised by the contact between the jurors and Detective Smith constituted an abuse of discretion.
Although the contact between the jurors and Detective Smith was brief and thus not excessive, the contact may have been egregious because its content was suspect. The contact was particularly troubling for several reasons. First, Detective Smith was a key witness for the State. Contact between a juror and a key witness is more likely to be prejudicial than contact between a juror and an uninterested party. See Jenkins, 375 Md. at 306, 825 A.2d at 1031. Second, the jurors specifically sought out the witness to make a comment about his testimony, as opposed to "mere casual contact," like saying "hello" or exchanging passing pleasantries. Jenkins, 375 Md. at 322, 825 A.2d at 1030. Further, the contact was not, on its face, an "instinctive human reaction" or a mere passing observation arising out of some detail of the testimony, as asserted by the Court of Special Appeals, but rather was a comment about the content of the witness's testimony that may be related to the question of guilt or innocence. Third, the contact is evidence that the jurors may have formed an opinion as to Dillard's guilt before Dillard presented his case. "If a juror has formed a fixed opinion on a defendant's guilt prior to deliberations, the juror may stand by the opinion even if contradicted by subsequent evidence. A juror may also form premature conclusions without the benefit of final arguments, instructions of law, and jury deliberations." State v. Rojas, 177 Ariz. 454, 868 P.2d 1037, 1041 (App.1993). Finally, the fact that two jurors independently made the same comment about Detective Smith's testimony suggested that the jurors may have discussed the case or engaged in premature deliberation about the question of Dillard's guilt or innocence, or Detective Smith's credibility, prior to the completion of testimony. See United States v. Resko, 3 F.3d 684, 686 (3d Cir.1993); Abernathy v. State, 109 Md.App. 364, 377, 675 A.2d 115, 122 (1996). Because the content of the contact raised these potential factual
The present case is distinguishable from the facts of Abernathy, 109 Md.App. 364, 675 A.2d 115, on which the Court of Special Appeals relied in this case. In Abernathy, one juror made a comment to another juror about the lifestyle of one of the witnesses, saying "That's what you call a dysfunctional family." Abernathy, 109 Md.App. at 377, 675 A.2d at 122. The intermediate appellate court held that the offhand remark was "inconsequential" and thus the trial judge did not abuse his discretion "in not pursuing further this will-o'-the-wisp." Id. The intermediate appellate court further observed that "[j]urors are not Sphinxes and, inevitably, they make some comments to each other.... It is nothing more than an instinctive human reaction to the events unfolding around one ... [and] does not constitute deliberation on the merits of the case and is not evidence of bias." Id. Unlike in the present case, the comments in Abernathy were not between a juror and a third party or witness, but were between two jurors. Further, the content of the comments did not suggest that the jurors had formed any opinions on the ultimate question of Abernathy's guilt or innocence, or even that the jurors had formed an opinion on the witness's credibility. Rather, the comment was merely a passing idle observation about the witness's family life, based on her testimony. The opinion about the family life of a witness had no bearing on the outcome of the case, unlike in the present case, where the jurors' opinions about Detective Smith's testimony could suggest that they had formed an opinion about Dillard's guilt and Detective Smith's credibility.
Once the parties raise the issue of juror-witness contact, and facts show that the jurors intentionally made contact with a key prosecution witness and that the contact may have been about the substance of his testimony, and that the jurors may have discussed and formed an opinion on the ultimate question of the defendant's guilt or innocence, the trial judge must conduct a meaningful inquiry that will resolve the factual questions raised by the contact. The contact between the jurors and a key witness creates an appearance of impropriety that must be resolved by the court. Unlike in other motions, where if the party does not carry its burden, the trial court is within its discretion to deny the motion, cases of juror misconduct will undermine the appearance of and the integrity of the judicial process itself. Impropriety and the appearance of impropriety must be avoided because it "casts a shadow over the trial process, which necessarily diminishes the integrity of the system in the minds of defendants and the public itself." Jenkins, 375 Md. at 328, 825 A.2d at 1034. Thus, the trial court has an obligation to resolve questions of impropriety or threats to the integrity of the jury trial. See United States v. Sears, 663 F.2d 896, 900 (9th Cir.1981) (holding that the District Court did not abuse its discretion when the trial judge "questioned the juror extensively enough to satisfy itself that the juror was not biased" (emphasis added));
In the present case, the trial judge could not resolve the issue of juror misconduct without conducting a voir dire examination of the jurors to determine the intent or meaning of their contact with Detective Smith, whether they had reach a fixed opinion as to Dillard's guilt, and whether they had engaged in premature deliberations. Where there is a serious allegation of bias or possible prejudice, "[t]he trial judge [has] an affirmative obligation to inquire whether the juror could nonetheless render a fair and impartial verdict" by conducting a voir dire examination of the juror prior to ruling on the motion. Wilson v. Morris, 317 Md. 284, 304, 563 A.2d 392, 401 (1989) (holding that the voir dire examination was "imperative in determining whether `good cause' existed sufficient to support the allegation of juror bias"). Determining whether there is prejudice is the goal of voir dire. See Grandison v. State, 305 Md. 685, 726, 506 A.2d 580, 600 (1986) (noting that even if contact raises the presumption of prejudice, the jurors may be "rehabilitated through additional questioning"); Summers v. State, 152 Md.App. 362, 376, 831 A.2d 1134, 1141 (2003) ("When the trial judge is able to voir dire a juror about the improper contact and assess how it may affect the juror's prospective ability to deliberate or to render a fair verdict, the presumption of prejudice may not be warranted."). "Where a colorable claim of jury taint surfaces before jury deliberations occur, ... [t]he judge should investigate the allegation promptly, addressing whether the taint-producing event occurred, and if so, assessing the magnitude and extent of any prejudice caused." United States v. Tejeda, 481 F.3d 44, 52 ( 1st Cir.2007). Further, the trial court should exercise its "power to assure itself that the ... jurors could continue fair and impartial deliberations." Jenkins, 375 Md. at 308, 825 A.2d at 1022.
An examination of the case law on issues of juror misconduct demonstrates that the court has a duty to fully investigate allegations of juror misconduct before ruling on a motion for a mistrial, and that failure to conduct a voir dire examination of the jurors before resolving the issue of prejudice is an abuse of the trial judge's discretion. Generally, in cases where the trial judge or the parties conducted a voir dire examination of the juror or jurors in question, the appellate courts have upheld the trial court's decision on the issue of prejudice to the defendant. E.g., Grandison, 305 Md. at 726-27, 506 A.2d at 618-19; Eades v. State, 75 Md.App. 411, 423-24, 541 A.2d 1001, 1008 (1988); Summers, 152 Md.App. at 377, 831 A.2d at 1142; Ezenwa v. State, 82 Md.App. 489, 518, 572 A.2d 1101, 1114-15 (1990); Allen, 89 Md.App. at 47-48, 597 A.2d at 500; Tejeda, 481 F.3d at 52; United States v. Peterson, 385 F.3d 127 (2d Cir.2004); United States v. Ramos, 71 F.3d 1150 (5th Cir.1995); Sears, 663 F.2d at 899-900; United States v. Puckett, 692 F.2d 663, 669-70 (10th Cir.1982); see also Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 946, 71 L.Ed.2d 78, 86 (1982) (noting that voir dire and protective instructions are "the safeguards of juror impartiality"
Conversely, in cases where the trial court did not conduct a voir dire examination of the juror or jurors involved in an incident, appellate courts often held that the trial court abused its discretion because the trial judge lacked sufficient information to determine whether the incident was prejudicial. E.g., Remmer, 347 U.S. at 229, 74 S.Ct. at 451, 98 L.Ed. at 656 ("We do not know from this record, nor does the petitioner know, what actually transpired, or whether the incidents that may have occurred were harmful or harmless."); Resko, 3 F.3d at 686 (holding that the District Court abused its discretion in "refusing to conduct a more searching inquiry" into juror misconduct and noting that "[o]rdinarily, a defendant must show that the error was prejudicial in order to obtain a new trial. [In the present case, however], we fail to see how the district court could have made a reasoned determination that the defendants would suffer no prejudice due to the jurors' premature discussions" without further information about the content of the discussions); Richardson v. United States, 360 F.2d 366, 369 (5th Cir.1966) ("In failing to conduct `a thorough inquiry ... to determine exactly what ... occurred' before overruling the motion, the trial court abused its discretion." (citation omitted)); United States v. Vasquez-Ruiz, 502 F.3d 700 (7th Cir.2007); Rojas, 868 P.2d at 1041-42; Mosley, 637 A.2d at 250 ("Without the juror's testimony, the trial judge was not in a position to determine that the encounter between Sergeant Wilson and the juror amounted to harmless error."); State v. Pike, 712 P.2d 277, 280-81 (Utah 1985) (noting that the court presumed prejudice when no voir dire examination of the juror, witness examined); see also Castro v. State, 186 Ga.App. 248, 367 S.E.2d 42, 43 (1988) ("[A]s the juror was not called to explain the incident ... the prosecution failed to carry its burden showing the absence of harm beyond a reasonable doubt.").
The cases in which an appellate court upheld a trial judge's determination about the prejudicial effect of juror misconduct without a voir dire examination of the juror or jurors in question are distinguishable from the facts of the present case. For example, in Bruce v. State, 351 Md. 387, 396, 718 A.2d 1125, 1129 (1998), an electronic bulletin board in the courthouse displayed information about another case involving the defendant, which if seen by the jurors, may have provided prejudicial information. We held that the trial judge did not abuse his discretion when he determined that "there was no reasonable likelihood that any of the jurors had seen the potentially prejudicial information ... [on] the electronic bulletin board." Id. Unlike in the present case, in Bruce, there was no allegation that the jurors actually received prejudicial information, only that it was possible. The facts uncovered by the trial judge in Bruce also showed that it was unlikely that the jurors would have seen the bulletin board, because they were instructed to use another entrance to the courthouse.
Similarly, in United States v. O'Brien, 972 F.2d 12, 14-15 (1992), the United States Court of Appeals for the First Circuit held that the trial judge did not abuse
In State v. Overton, 279 Kan. 547, 112 P.3d 244, 252-53 (2005), the Supreme Court of Kansas held that the trial judge did not abuse his discretion in determining that there was no prejudice to the defendant when jurors overheard a spectator comment that the defendant "will get his judgment when the day comes." Although the trial judge did not conduct a voir dire examination of the jurors about the incident, the judge personally heard the same comment and was able to evaluate its prejudicial effect based on his direct experience. Id. The trial judge in the present case did not have the benefit of firsthand knowledge about the contact between the jurors and Detective Smith. Additionally, in Overton, unlike in the present case, the person making the comment was an unknown spectator, not a witness in the case. Id.
The present case is analogous to the facts of Mosley, 637 A.2d 246. In Mosley, a juror had a conversation with a key law enforcement witness during the course of the trial. Mosley, 637 A.2d at 247. Mosley asked that the juror be excused for cause and replaced with an alternate. Id. The trial judge conducted a voir dire examination of the law enforcement witness, who testified that the conversation "was loud enough for all to hear, lasted less than a minute and did not relate in any way to the case" or to the witness's law enforcement duties, or anything else related to the criminal justice system. Mosley, 637 A.2d at 248. The trial judge found that the conversation did not raise an issue of prejudice and was at worst "harmless error." Id. The Supreme Court of Pennsylvania, after noting that this contact was not incidental, and that the law enforcement officer was a key witness whose credibility had a strong bearing on the case, held that the trial judge abused his discretion in failing to question the juror "about any possible taint which may have resulted from his conversation" with the witness. Mosley, 637 A.2d at 250.
Further, the Supreme Court of Pennsylvania held that it was error for the trial judge to rely solely on defense counsel to call witnesses in support of counsel's Motion to Disqualify the juror. Id. The Supreme Court noted that "[t]his placed defense counsel in the difficult position of deciding whether to avoid questioning the juror or run the risk of antagonizing a juror who might remain to decide his client's fate." Id. The Supreme Court determined that it was not acceptable to leave the juror unexamined, even if this were a strategic decision on the part of defense counsel because "[w]ithout the juror's testimony, the trial judge was not in a position to determine that the encounter between [the witness] and the juror amounted to harmless error." Id. The
We agree with the State that the trial judge may rehabilitate juror misconduct through a curative instruction in some cases. While it is undoubtedly true that courts should generally consider curative instructions to correct possible prejudice, see Rainville v. State, 328 Md. 398, 410-11, 614 A.2d 949, 955 (1992), the court cannot evaluate the propriety and effect of a curative instruction unless it fully inquires about or knows the extent of the prejudice to the defendant. Jurors generally are presumed to follow the court's instructions, including curative instructions, Ezenwa, 82 Md.App. at 518, 572 A.2d at 1115, however, in the present case, it is unknown whether the contact with the witness demonstrated a prejudice that would render the jurors unable to follow the court's instructions. See State v. Cook, 338 Md. 598, 616-17, 659 A.2d 1313, 1323 (1995) (noting that the judge, upon conducting a voir dire examination of the witness, may determine that the juror is unable to follow the court's instructions). A voir dire examination of the juror, combined with a curative instruction, may have resolved the issue in the present case, but a curative instruction without full knowledge of the extent of the prejudice to the defendant could not.
For the foregoing reasons, we shall reverse the judgment of the Court of Special Appeals and remand the case for a new trial. The appropriate remedy for the improper denial of a motion for a mistrial is a new trial. Stewart v. State, 334 Md. 213, 230, 638 A.2d 754, 762 (1994).
ADKINS, J., Dissents.
ADKINS, J., dissenting.
I respectfully dissent. I see no abuse of discretion by the trial court in denying Petitioner's request for a mistrial. I would affirm the judgment of the Court of Special Appeals, which, in turn, affirmed the Circuit Court for Charles County because the casual and isolated communication by two jurors commending a witness's testimony could not have prejudiced Petitioner.
As the majority seems to acknowledge, under Jenkins, juror misconduct must be
First, Petitioner never asked the trial court to conduct a voir dire of the jurors. Examination of the transcript below reveals that when the police officers could not describe or identify the jurors without the jurors present, defense counsel asked "that the jurors be brought in, observed, and then taken away so that the officers then can—tell the court." The court complied with this request, bringing the jurors in, and had them identify themselves by their juror numbers. With that information, Detective Smith was able to identify Jurors 194 and 177 as the ones who complimented his testimony. The trial court twice asked whether counsel had any further requests of the court. Defense counsel responded the second time by asking to question Detective Smith about which juror spoke to him first. Smith responded, "[t]he elderly gentleman said it to me first. The other juror wasn't in view when he said it. The other juror was around the corner. It was in passing. Everybody was walking by." Neither counsel asked for voir dire of the jurors. Rather, after she questioned the detectives, Petitioner's counsel simply repeated her request for a mistrial, and alternatively, to "unseat [juror 194] and replace [him] with an alternate."
Under these circumstances, there was no reason for the trial judge to administer a voir dire of the two jurors before ruling on the mistrial, and we should not reverse the court's exercise of its discretion for failing to do something it was not asked to do. As the Court of Special Appeals said in the case below:
Dillard v. State, No. 1578, slip op. at 18 (Md.Ct.Spec.App. Feb. 11, 2009). Although there may be some instances in which a trial court must initiate the voir dire of the jury on its own, 2 without request from counsel, in my view, this isolated and innocuous occurrence does not justify such a ruling. The reasons for my conclusion will be evident from my discussion of the Circuit Court's denial of the motion for mistrial, which follows.
In my view, the trial court did not commit error by its refusal to grant a mistrial, which was the remedy requested by Dillard. To explain my view of this issue, I quote liberally from the Court of Special Appeals's opinion. It said:
Unquestionably, the witness did not communicate with the jurors in any way outside his testimony. So, there is no possibility that the jurors were influenced by some ex parte contact, or that their verdict was tainted by some inappropriate outside information or opinion. This fact isolates the instant case from Jenkins and the other cases cited by the majority.
The majority's decision to reverse and order a new trial, then, must rest on the shaky premise that jurors must not evaluate testimony as they hear it, and if they do so, their verdict is tainted and must be vacated. Indeed, the majority, citing an Arizona case, concludes that a trial court must grant a mistrial if it determines the jurors had "engaged in premature deliberation about the question of Dillard's guilt or innocence, or Detective Smith's credibility, prior to the completion of testimony." Majority Op. at 415 Md. at 458, 3 A.3d at 410. I respectfully disagree, and submit that we would be naive to suppose that jurors suspend all judgment about the witnesses and other evidence presented to them until the time of formal deliberations. Studies of juries and their decision-making processes bear this out.
Numerous studies of juror cognition and behavior indicate that jurors are continually evaluating the information that they receive during a trial, beginning with opening arguments and proceeding up to and through jury deliberations. See Robert K. Bothwell, Social Cognition in the Courtroom: Juror Information Processing and Story Construction, in A HANDBOOK OF JURY RESEARCH 17-1 through -18 (Walter F. Abbott & John Batt eds., 1999). Indeed, some research suggests that the presentation of the opening argument itself makes a substantial impact on how jurors view the remainder of a trial. Id. at 17-8 through -10; see also Jansen Voss, The Science of Persuasion: An Exploration of Advocacy and the Science Behind the Art of Persuasion in the Courtroom, 29 LAW & PSYCHOL. REV. 301, 311-12 (2005) (Opinions formed as a result of the first argument presented at trial "have been
The leading theory on juror decision-making states that jurors "impose a narrative story organization on trial information." Nancy Pennington & Reid Hastie, A Cognitive Theory of Juror Decision Making: The Story Model, 13 CARDOZO L.REV. 519, 521 (2006) (discussing the "Story Model" of juror decision-making). The process of constructing such a narrative engages jurors in an "active, constructive, comprehension process in which
Indeed, studies suggest that jurors change their positions during the course of a trial as new evidence is presented to them. See Shari Seidman Diamond, Beyond Fantasy and Nightmare: A Portrait of the Jury, 54 BUFFALO L.REV. 717, 743-46 (2006) (discussing studies in which mock jurors provided differing "interim verdicts" during the course of trial proceedings). One psychologist has stated that the process of
Norman J. Finkel, Commonsense Justice: Jurors' Notions of the Law 74-75, 350 n. 69 (1995) (emphasis in original).
Although in a theoretical model of a perfect trial, jurors might suspend all judgment until the introduction of all evidence and closing arguments are heard, we cannot ignore the reality that jurors are undertaking a continual evaluation of the information they receive during trial. I see no reason and no benefit in deciding cases based on the fanciful notion that the real people who sit on juries conform to a purist model of what we (and our predecessors) deem to be ideal for fair adjudication.
The trial court wisely recognized the futility of attempting to enforce this fictional model of juror conduct, commenting,
The trial judge is the one who has experience dealing with juries, and based on that experience, he made an assessment—that the jurors in question acted within the range of usual juror conduct. They evaluated the case as they went along, and maybe made a comment to each other about whether a witness was credible or effective. The trial court believed this was not juror misconduct, and not a big deal:
The assessment of this conduct was the trial judge's call, not ours to make. The judge obviously gave serious consideration as to whether any misconduct had occurred or any harm had been done, and decided no, in both respects.
As I mentioned before, this case bears little resemblance to Jenkins v. State, the case relied on heavily by Petitioner. The Court of Special Appeals explained the facts of Jenkins:
Dillard, slip op. at 21 (citations omitted).
The Court of Special Appeals went on to explain that the burden initially falls on the defense to show the impropriety, and shifts to the State with regard to "some such juror contacts with third parties and/or misconduct." Jenkins, 375 Md. at 301, 825 A.2d at 1018 (emphasis added). Interpreting our decision in Jenkins it also explained:
Dillard, slip op. at 22-23 (citations omitted).
The Court of Special Appeals went on to conclude that the presumption of prejudice that we applied in Jenkins was not applicable here:
Dillard, slip op. at 26. I agree with the Court of Special Appeals that neither Jenkins nor any other case cited by Dillard supports the conclusion that prejudice should be presumed, or that the conduct of the jurors mandated a mistrial, or even that the trial court was required to question the jurors.
The majority opinion, as I read it, does not exactly presume prejudice, but it comes close. It holds that the trial court missed the opportunity to verify, by questioning the jurors, that the incident would have no influence on the jurors' decisions, and that this was an abuse of discretion, notwithstanding the defendant's failure to request that the trial court do so. I respectfully dissent because I cannot see how this incident could possibly influence the jurors in their thinking about the case. The jurors heard the testimony, and made a contemporaneous evaluation. As the trial court indicated, this brief communication by the two jurors was simply giving the court and counsel "a little more information about something ... going on in the mind of two jurors than we otherwise would have."
For these reasons, I would affirm.