Black v. State

44 A.3d 362, 426 Md. 328, 2012 WL 1537412, 2012 Md. LEXIS 264
CourtCourt of Appeals of Maryland
DecidedMay 3, 2012
Docket73, September Term, 2011
StatusPublished
Cited by15 cases

This text of 44 A.3d 362 (Black v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Black v. State, 44 A.3d 362, 426 Md. 328, 2012 WL 1537412, 2012 Md. LEXIS 264 (Md. 2012).

Opinions

GREENE, J.

In this case, we must determine whether Petitioner, Ocie L. Black, Jr., has produced a sufficient appellate record establishing that there was trial error, in a situation where the record contains an unexplained and unmarked jury note that the trial judge indicates that he neither saw nor responded to during [333]*333the course of the criminal trial. Petitioner was charged in the Circuit Court for Howard County with child sexual assault and related offenses with regard to the assault of his girlfriend’s daughter, Kayla. The offenses allegedly occurred between the time when Kayla was seven and twelve years of age. Following a jury trial, the jury convicted Petitioner of one count of child sexual abuse, two counts of second degree sex offense, and two counts of third degree sex offense. The court imposed a sentence of thirty-two years incarceration.

Petitioner noted an appeal to the Court of Special Appeals, claiming, inter alia, that the trial court erred in failing to disclose a jury note to him and his trial counsel. In an unreported opinion, the intermediate appellate court affirmed the judgment of the trial court. We granted certiorari, Black v. State, 422 Md. 352, 30 A.3d 193 (2011), to answer one question: “Does a jury note with no date or time stamp found in the appellate record establish that the trial court received the jury communication at issue in order to trigger the requirements of Md. Rule 4-326(d)?” We shall answer that question in the negative and affirm the judgment of the Court of Special Appeals.

FACTUAL AND PROCEDURAL BACKGROUND

For purposes of our review, we focus on the facts surrounding the jury notes found in the appellate record and on the known facts that relate to those notes. After the close of all the evidence in this case, the jury began its deliberations around 5:10 p.m. on July 23, 2008, and returned with its verdict at 12:06 a.m. on July 24, 2008. At some point after the jury returned with its verdict and had been excused, five notes relevant to this discussion were found located in a single envelope contained within the court file; three of the notes, as confirmed by the affidavits of the trial judge, the prosecuting attorney, and the defense attorney, were actually communicated to the trial court and a response was given by the trial judge.1

[334]*334All five notes were written on loose-leaf style, lined paper. The first note is dated in the upper right-hand corner as follows: “7/28/08 Received 8:18pm.” The substantive part reads: “We would like to reconvene in the morning. And could we have more copies of the jury instructions?” The note is signed, “Elisabeth L[_] [Jjuror # 1 [.]” Below the signature, there is a handwritten response: “Here are more copies of the instructions. Please continue deliberating.” The second note is dated: “7/23/08 9:55pm.” It reads: “In relation to the charge of fellatio, did Kayla testify that her mouth touched the defendant’s penis?” It is signed, “Elisabeth L[_] [J]uror # 1[.]” Below the signature is the handwritten response, which reads: “You must rely on your own memory of the testimony.” The third note is dated in the upper right-hand corner: “7/23/08 11:40pm.” It further reads in substance: “For the definition of fellatio we need some clarification, does there only have to be contact or does there have to be penetration? Same question applies to eunnilingus.” The note is signed, “Elisabeth L[_] [J]uror 1[.]” A response is written below the signature for juror number one. It reads: “The instructions for 2[nd] [degree] sex offense (eunnilingus) and 2[nd] [degree] sex offense (fellatio) and 3rd degree sex offense were inadvertently left off the 5 extra copies. They have been attached. The legal definition of eunnilingus and fellatio are set forth in the instructions for 2[nd] [degree] sex offense that have been provided.”

Note four, which is at issue in this case, was not dated, nor was any time placed on the paper indicating receipt by the [335]*335court during the course of the trial or deliberations. The Note contains a statement and a question. It reads: “We agree on 2 out of the 5, but have not come to an agreement on the other 3 ... do you have any suggestions on how to proceed?” The Note is signed, “Elisabeth L[_] [JJuror # 1[.]” The fifth note is a small strip of paper. In the lower left-hand corner margin there is drawn a picture of what appears to be a flower or four-leaf clover. Outside of the margin, in the body of the strip of paper, is written the word “Guilty[.]” There are no other writings on the paper.

Consistent with the affidavits of the presiding judge, the Honorable Richard S. Bernhardt, and the prosecuting and defense attorneys, the receipt of the three answered notes was clearly a regular part of the trial court proceedings. The record shows that the content of those three notes was communicated to the trial court and responded to by the trial judge before the jury rendered its verdict. Neither the trial judge nor the trial attorneys had any recollection or knowledge with regard to the unanswered Note four. In addition, there is no indication in the record that any of the parties mentioned had any knowledge of Note five, the note depicting a drawing and the word “Guilty[.]” The trial judge, however, was quite specific in stating that “[he] was not in receipt of, nor was [he] made aware, of note “ ‘Number 4.’ ”

Moreover, the trial judge outlined in his affidavit his normal practice with regard to jury notes — -a practice that he indicated he followed during the trial of this case. According to the trial judge:

When a jury note was passed to me by the bailiff I would write on the note the date and the time that I received the note. I then would have my law clerk find counsel and bring them to my office. I would discuss the note with counsel and ask for their recommendations. I would inform counsel of what my answer to the jury was going to be and then invite counsel to place any objections on the record at that time. I would then write my answer on the note and have the note returned to the jury.

[336]*336In the present case, the trial judge stated, “I have no recollection of any communication that occurred between myself and the jury, nor do I have any reason to believe that there was any communication between myself and the jury as to note ‘Number 4.’ ”

On appeal of this case to the Court of Special Appeals, and before this Court, Petitioner asserts that the “trial court erred in failing to disclose to [him] and his counsel the note indicating that the jury was deadlocked.” Notwithstanding, the intermediate appellate court affirmed the judgment of conviction, ruling as follows:

Although we acknowledge the principles set forth in Denicolis [v. State, 378 Md. 646, 837 A.2d 944 (2003)] and Fields [v. State, 172 Md.App. 496, 916 A.2d 357 (2007)], we note that in both cases the threshold determination for triggering the requirements of [Maryland] Rule 4-326(d) is establishing that the trial court actually received the communication in question. Denicolis, 378 Md. at 658 [837 A.2d at 951] (“[i]t is clear that a communication from the jury was received”); Fields, 172 Md.App. at 516 [916 A.2d at 369] (“what we do know is that the note was submitted and marked as an exhibit”).

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Cite This Page — Counsel Stack

Bluebook (online)
44 A.3d 362, 426 Md. 328, 2012 WL 1537412, 2012 Md. LEXIS 264, Counsel Stack Legal Research, https://law.counselstack.com/opinion/black-v-state-md-2012.