Chambers v. State

650 A.2d 727, 337 Md. 44, 1994 Md. LEXIS 159

• Court: Court of Appeals of Maryland
• Decided: December 19, 1994
• Docket: No. 119
• Status: Published

Opinions

RAKER, Judge.

We granted certiorari to consider whether Maryland Rule 4-327(f)¹ requires a trial court, upon request, to instruct the jury that it may recommend that the court show mercy to a criminal defendant. We hold that it does not.

The petitioner, Rymundo Oryley Vernon Chambers, a/k/a Victor Vale, was convicted by a jury in the Circuit Court for Worcester County of possession of cocaine and possession of cocaine with intent to distribute, in violation of Maryland Code (1957, 1992 Repl.Vol., 1993 Cum.Supp.) Art. 27, §§ 287 and 286, respectively. He timely submitted the following proposed jury instruction concerning a recommendation of mercy:

Members of the Jury, you have found the Defendant guilty. I am going to ask you to return to your jury room and decide whether or not the Court should show mercy to the Defendant in sentencing. When you have reached a decision, either yes or no, on whether the Court should show mercy upon the Defendant in sentencing please knock on the door, the bailiff will escort you back to your seats and the Clerk will ask the Foreperson for your answer.

The trial court refused to give this instruction, and Chambers’ counsel noted a timely exception. The jury found Chambers guilty of both possession of cocaine and possession of cocaine with intent to distribute. At sentencing, the court merged the possession charge into the charge of possession with intent to distribute and sentenced the petitioner to 20 years imprisonment. The Court of Special Appeals affirmed the judgment, and we granted Chambers’ petition for a writ of certiorari.

In urging reversal of the Court of Special Appeals, the petitioner argues that Maryland Rule 4-327(f) leaves a trial court no discretion over whether a requested mercy instruction is given. Petitioner supports this view with the following reasoning: Maryland Rule 4-325(c) requires a trial court, “at the request of any party ..., [to] instruct the jury as to the applicable law.”² Maryland Rule 4—327(f), petitioner asserts, constitutes applicable law, namely the right of a jury to make a mercy recommendation and the right of a defendant to seek one. Therefore, when the defendant requests a mercy instruction pursuant to Rule 4—327(f), Rule 4-325(c) mandates that the trial court give the requested instruction. Furthermore, petitioner contends, the error of refusing a mercy instruction is not harmless because “such a recommendation might have some mitigating effect on the ultimate sentence given.”

Disagreeing with this last assertion, the Court of Special Appeals upheld petitioner’s conviction in an unreported opinion. The intermediate appellate court reasoned that because Rule 4—327(f) provides that a mercy recommendation by the jury does not bind the court, no prejudice resulted from the trial court’s denial of the requested instruction.

We shall reach the same result as the Court of Special Appeals, but for different reasons. We hold that juries should not be instructed that they may return a recommendation of mercy. If the jury returns such a recommendation, it is not a part of the verdict, it is not binding on the trial court, and it should receive such weight as the trial judge deems appropriate after consideration of the evidence presented at trial, as well as additional information which may be presented at sentencing. If during the course of deliberation the jury inquires whether they may return a verdict with a recommendation of mercy, leniency, clemency, or the like, the court should respond that they may do so, but that their recommendation is not binding upon the court. Furthermore, they should be advised that it is within the sole discretion of the court to determine the appropriate sentence in the case.

I.

Maryland Rule 4-325(c) requires a trial court, “at the request of any party ..., [to] instruct the jury as to the applicable law” on a matter not fairly covered by instructions actually given. Maryland Rule 4—327(f), on the other hand, provides that “[a] jury may recommend that the court show mercy to a defendant.” That recommendation, according to the Rule, is neither a part of the verdict nor binding upon the court.

We begin by examining the interrelationship between Rules 4-325(c) and 4-327(f). In this regard, the question we must consider is whether the provision that a jury may recommend that the court show mercy to a defendant is considered “the applicable law” under Rule 4-325(c). If we find that it is not considered “the applicable law,” we need not address the issue of whether .the. court has a duty to reform a technically inaccurate instruction or whether the failure to do so is harmless error.

We find that Rule 4—327(f), providing that a jury may recommend that the court show mercy to a defendant, is not “the applicable law” and thus does not create a “right” of the defendant to a mercy recommendation instruction. With 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. To aid the jury in the exercise of this responsibility, courts charge or instruct the jury. See 2 Bishop, New Criminal Procedure § 975c, at 800 (2d ed. 1913). The main purpose of a jury instruction is to aid the jury in clearly understanding the case, to provide guidance for the jury’s deliberations, and to help the jury arrive at a correct verdict. This duty of the court to “instruct the jury as to the applicable law and the extent to which the instructions are binding” is reflected in Maryland Rule 4-325(c). “[A] defendant is entitled to an instruction on every essential question or point of law supported by evidence.” Sims v. State, 319 Md. 540, 550, 573 A.2d 1317, 1322 (1990) (citations omitted). Where the mission of the jury is to evaluate guilt, not set punishment, mercy is not an “essential question” before it, and Rule 4-325 therefore does not require the court to give any instruction about mercy.

This interpretation of the text of the Rules is in tune with the apparent intent of the drafters of Maryland Rule 4-327(f). At the time this Rule was discussed prior to its original promulgation, Judge John Gray, then Chair of the Standing Committee on Rules of Practice and Procedure, explained that the Rule “recognize[s] the right of a jury to append to its verdict a recommendation of mercy.” Letter from the Honorable John B. Gray, Jr., to Noah A. Hillman, Esq. (Mar. 21, 1960) (on file with the Court of Appeals Standing Committee on Rules of Practice and Procedure) [hereinafter cited as Letter from Judge Gray]. We have not, however, found any intimation that the defendant ever had or should have a “right” to require an instruction informing them of this prerogative.³

The purpose of Rule 4-327(f) was to restate the common law in the form of a rule. The predecessor to Rule 4-327(f), Maryland Rule 758(e), was adopted as part of a codification process which occurred in the late 1950s, a process intended to systematize procedural rules without necessarily changing them. In the preface to the 1961 volume of the Maryland Rules, Judge Gray, Chairman of the Standing Committee on Rules of Practice and Procedure, wrote that the committee had

now complete[d] the project of codifying in a single volume substantially all of the procedural law affecting courts of general jurisdiction and the Court of Appeals. These rules replace the many procedural statutes and prior rules of Court, and are declaratory of many matters of procedure which have been recognized by decisions of the courts.

Gray, Preface to Maryland Rules at 3 (1961); see also Maryland Rule 1-201(c).

Judge Gray also specifically stated in a letter to a member of the bar that the mercy recommendation provision “is intended to be declaratory of the present law.” Letter from Judge Gray, supra. The law then, as now, was that in the absence of a statute to the contrary, recommendations of mercy were mere surplusage not affecting the verdict. La Guardia v. State, 190 Md. 450, 460, 58 A.2d 913, 918 (1948); see also Gover v. Turner, 28 Md. 600, 604-05 (1868); 22 Encyclopaedia of Pleading and Practice 848 (McKinney ed., 1902); 4 Torcia, Wharton’s Criminal Procedure § 509, at 310 (13th ed. 1992).⁴ Moreover, we have discovered no cases indicating that a criminal defendant in Maryland in 1960 (or in any place at any time) had a right to have a mercy instruction given to the jury, except under statutes providing for binding recommendations against capital punishment. See Dimery v. State, 274 Md. 661, 338 A.2d 56 (1975), cert. denied, 423 U.S. 1074, 96 S.Ct. 857, 47 L.Ed.2d 84 (1976); cf. Grandison v. State, 305 Md. 685, 757, 506 A.2d 580, 616 (holding that a mercy instruction would be impermissible within the modern capital punishment scheme), cert. denied, 479 U.S. 873, 107 S.Ct. 38, 93 L.Ed.2d 174 (1986). Thus, the “present law” when Judge Gray and the Rules Committee considered Rule 4-327(f) did not endow a criminal defendant with the right to a recommendation of mercy instruction.

Maryland Rule 4-327(f) ensures that any recommendation of mercy which a jury might append to its verdict under its ancient privilege will not be viewed as qualifying, impairing, or invalidating the jurors’ verdict, or as requiring corrective measures by the trial judge. North Carolina has addressed this concern, in more general form, in a series of cases dealing with the trial judge’s power to accept, reject, or modify a verdict with formal defects. See. State v. Sumner, 269 N.C. 555, 153 S.E.2d 111 (1967) (error to reject ambiguous verdict where it was possible to cull ambiguous language and be left with a clear verdict); State v. Gatlin, 241 N.C. 175, 84 S.E.2d (1954) (no error to reject verdict not responsive to charge, but error to offer suggestive guidance for revision of verdict); State v. Perry, 225 N.C. 174, 33 S.E.2d 869 (1945) (error to reject verdict containing clear verdict plus surplusage).

In light of the foregoing, we hold that petitioner’s proposed instruction did not contain “applicable law,” and that the trial court therefore had no obligation to give the instruction, either as submitted by petitioner or in any revised form.

II.

We hold today that a mercy instruction should not be given, because we regard such an instruction as dangerously misguided. It is misguided because it is not the traditional office of the jury to consider mercy. Juries may have statutory power over punishment in some cases, see Maryland Code (1957, 1992 Repl.Vol., 1993 Cum.Supp.) Art. 27, § 413 (death penalty statute), and they always have the ability to nullify the application of the criminal law to a particular defendant. Nevertheless, at common law, a defendant generally had no right to mercy from the jury; that function was performed by other officers. See generally 4 Blackstone, Commentaries *363, *375-76 (mentioning the Crown, Parliament, courts, prosecutors, and clergy, but not juries, as possible sources of leniency). One court went so far as to hold that it was error to give a mercy instruction in response to a jury inquiry. In an early case, the Supreme Court of Nevada held that “the court should have disregarded the request of the jury for an instruction as to their rights and duties in recommending the defendant to the mercy of the court. The sole duty of the jury is to declare by their verdict whether the defendant is guilty or not guilty.” State v. Vasquez, 16 Nev. 42, 44 (1881).

It is dangerous to give a mercy instruction because such an instruction has enormous potential to compromise the jurors’ evaluation under the reasonable doubt standard, to inject emotion into the deliberative process, and to introduce the consideration of punishment into the guilt or innocence stage.

A most significant danger is that the mercy instruction might entice the jury to relieve the State of its burden of proof beyond a reasonable doubt; the jury, in an effort to compromise, might instead find a defendant guilty under a lesser standard, under the belief that the court will be merciful in sentencing.⁵ Other courts which have considered this issue have expressed the same concern. See, e.g., Rogers v. United States, 422 U.S. at 40, 95 S.Ct. at 2095; Warner, 286 N.W. at 812 (1939); Hackett v. People, 8 Colo. 390, 8 P. 574 (1885).

In addition, by instructing the jury on a right to consider mercy, the trial court would improperly inject emotion and pity into the deliberations. During voir dire, most trial judges take careful measures to ensure that jurors can decide the case based upon the evidence, without regard to pity, passion, or any other emotion. Mercy is defined as “[forbearance from inflicting harm, esp. in the way of punishment ...; compassionate treatment of an offender or adversary; clemency---- Disposition to exercise compassion or forgiveness; mercifulness; pity; compassion; willingness to spare or to help.” Webster’s New International Dictionary of the English Language 1539 (2d ed. 1950). Thus, mercy, by definition, is outside the purview of proper jury deliberations.

Finally, we note that most jurisdictions provide an instruction in pattern instruction books that the jury should not consider punishment, as punishment is in the sole discretion of the court. See, e.g., 1 E. Devitt et al, Federal Jury Practice and Instructions § 20.01 (4th ed. 1992); 5th Cir.Crim.Jury Instr. 1.21 (1990); 6th Cir.Crim.Jury Instr. 8.05 (1991); 8th Cir.Crim.Jury Instr. 3.12 (1992); 9th Cir.Crim.Jury Instr. 7.03 (1992); 11th Cir.Crim.Jury Instr., Basic Instrs. ch. 10 (1985); CALJIC 3d 17.42 (Cal.1970); COLJI-Crim. No. 3:01 (Colo. 1983); Crim.Jury Instrs. for the District of Columbia, No. 2.71 (3d ed. 1978); PIK 2d 51.10 (Kan.1986); Pattern Instr. 5.09 (W.Va.1973). A mercy instruction, by contrast, openly invites the jury to consider punishment. This risks distracting the jurors from their designated task, and from their obligation to decide the case based on the evidence and the law. Such an invitation should never be sent, and Maryland Rule 4—327(f) does not require the court to send it.

JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS TO BE PAID BY THE PETITIONER.

ELDRIDGE and BELL, JJ., concur.

RODOWSKY, J., concurs in the judgment only.

1 . Rule 4-327(f) provides:

(f) Recommendation of Mercy.—A jury may recommend that the court show mercy to a defendant. The recommendation is not part of the verdict and is not binding upon the court.

2 . Maryland Rule 4-325, concerning instructions to the jury, provides in section (c):

(c) How Given.—The court may, and at the request of any party shall, instruct the jury as to the applicable law and the extent to which the instructions are binding. The court may give its instructions orally or, with the consent of the parties, in writing instead of orally. The court need not grant a requested instruction if the matter is fairly covered by instructions actually given.

3 . We note that juries possess many rights and powers that are not included in jury instructions. For example, the jury is not told that it may disregard jury instructions altogether and return a verdict inconsistent with the evidence. Nor is the jury instructed that it may end in deadlock and "hang,” or that it may have testimony available to it. See Maryland Rule 4—326(b).

4 . This also appears to be the law in the federal courts and in our sister states. See, e.g., Rogers v. United States, 422 U.S. 35, 38, 95 S.Ct. 2091, 2094, 45 L.Ed.2d 1 (1975); People v. Warner, 289 Mich. 516, 286 N.W. 811, 813 (1939); see also Annot., Recommendation of Mercy in Criminal Case, 87 A.L.R. 1362 (1933).

5 . Indeed, this concern was raised by Judge John F. McAuliffe at the meeting of the Rules Committee on October 15 and 16, 1982. The minutes of the meeting reflect that Judge McAuliffe moved to delete section (f) of the Rule, then numbered 4-611, on the grounds that the possibility of mercy could improperly influence the jury's verdict. He withdrew this motion after another committee member, Senator Connell, suggested that since the Rule had not caused problems, there was no need to eliminate it. Court of Appeals Standing Committee on Rules of Practice and Procedure, Minutes of the 87th Report, at 47 (Oct. 15-16, 1982) (on file with the Committee).