Fowlkes v. State

451 A.2d 1270, 53 Md. App. 39, 1982 Md. App. LEXIS 381
CourtCourt of Special Appeals of Maryland
DecidedNovember 8, 1982
DocketNo. 329
StatusPublished
Cited by5 cases

This text of 451 A.2d 1270 (Fowlkes v. State) is published on Counsel Stack Legal Research, covering Court of Special Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fowlkes v. State, 451 A.2d 1270, 53 Md. App. 39, 1982 Md. App. LEXIS 381 (Md. Ct. App. 1982).

Opinion

Weant, J.,

delivered the opinion of the Court.

On 11 January 1982 Lawrence Rome Fowlkes, appellant, was tried and convicted by a jury in the Criminal Court of Baltimore for the possession of heroin. Subsequently, appellant was sentenced to a four year term of imprisonment.

He confronts us with a contention that a guilty verdict was coerced by the trial court’s instruction given after the jury retired for deliberation. Appellant further alleges that the court erred in failing to declare a mistrial, or at least in failing to give a proper jury instruction, after a detective testified about his conviction rate.

I.

The jurors initially deliberated for less than an hour after which they indicated that they were ready to deliver their verdict. Upon the return of the jury to the courtroom the following transpired:

THE CLERK: Mr. Fowlkes, remain standing. Ladies and gentlemen of the jury have you reached a decision?
THE JURY: We have.
THE CLERK: Who shall speak for you? Madam Forelady, please stand. Under Warrant Number 48112566, charging Mr. Fowlkes with possession of heroin, how do you find the Defendant?
THE FORELADY: They said guilty.
THE CLERK: Wish the Jury polled?
[41]*41MR. HEDGEPETH [defendant’s counsel]: I’d like the jury polled.
THE COURT: Ladies and gentlemen of the jury, we are going to poll the jury. I don’t know if that was explained to you in indoctrination. It means each one of you will be asked to stand. Mr. Clerk, we’ll ask you if in fact your verdict is the same as the Forelady. In other words, guilty, so that all 12 of you have to answer that you have unanimously voted guilty. Madam Forelady, you want to start with the Forelady first?
THE CLERK: Madam Forelady?
THE FORELADY: I didn’t say either one because I didn’t know whether to vote either way.
MR. HEDGEPETH: May we approach the bench, Your Honor?
THE COURT: Well, the verdict has to be unanimous. All 12 of you must agree. So I will send you back to the Jury room. If all 12 of you didn’t agree, then there’s no verdict. All 12 of you must be able to state in court that you have reached a verdict of guilty. I said that to you and I thought you understood that. So you will have to go back again to continue deliberations until all 12 of you agree. I don’t think we ought to discuss it any further at this time. The jury may continue their deliberations at this time. All 12 of you may return back to the Jury room.

Within ten minutes after being excused from the courtroom the jurors returned and announced a unanimous verdict of guilty. At the second polling, all twelve jurors, including the forelady, asserted that their individual verdict was that of guilty.

Appellant alleges that the Court of Appeals’ opinion in Kelly v. State, 270 Md. 139, 310 A.2d 538 (1973), which considered the Supreme Court’s ruling in Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896), [42]*42carefully delineates those instructions which may be given to the jury after they have begun their deliberations. However, in Kelly, the Court of Appeals distinguished the latitude accorded trial judges in giving instructions before, as opposed to after, the jury had deliberated and has reached an apparent impasse. This Court, interpreting Kelly in Pinder v. State, 31 Md. App. 126, 133, 355 A.2d 489, 493 (1976), quoted from Kelly: "After the jury commences deliberations the trial judge 'should closely adhere to the wording of the ABA recommended instruction.’ ” (Emphasis in original.) Judge Eldridge, speaking for the Court of Appeals in Burnette v. State, 280 Md. 88, 371 A.2d 663 (1976), enunciated the extent of permissible deviations from the ABA standards in the event of a deadlocked jury:

We reiterate, however, our approval of the American Bar Association suggested instruction, and we emphasize further that the deviations from the American Bar Association standards permitted by Kelly are those primarily concerned with form and style. These types of minor word changes, which allow the instruction to be "personalized,” remain properly within the province of the trial judge. Deviations in substance, however, are not permitted. [Id. at 100-101, 371 A.2d at 669.1

There is no doubt that the trial judge’s post-deliberation instruction in the impending matter varied in substance from the ABA standard. However, in our view, Kelly, Pinder, and Burdette are inapposite to this situation. The central focus in all of these cases, including Allen and its progeny, has been a criticism of coercive instructions intended to break a deadlock. Appellant’s selective reading has overlooked the very proposition which must be present before Kelly applies: a deadlock.

After the jury has been sequestered to deliberate, we think it advisable that a trial judge, who decides to give an Allen-type charge because of an apparent deadlock, should closely adhere to the wording of [43]*43the ABA recommended instruction. If he does not, the language selected will be subjected to careful scrutiny in order for it to be determined whether the province of the jury has been invaded and the verdict unduly coerced. | Kelly v. State, supra, at 144, 310 A.2d at 542 (emphasis added).]

A deadlock occurs when jurors differ because of conscientiously held convictions. In Burnette v. State, supra, at 94, 371 A.2d at 666, Judge Eldridge quoted from Due Process, Judicial Economy and the Hung Jury: A Reexamination of the Allen charge, 53 Va.L.Rev. 123, 143 (1967):

If the Allen charge in fact influences a juror to vote for conviction notwithstanding a conscientiously held belief that the state has not proved its case beyond a reasonable doubt, the defendant has been denied due process of law, since he has been convicted not on the basis of evidence presented in court but rather because of the juror’s response to what he takes to be the desires of the judge. [Emphasis added.]

In the present case we have a situation wherein the forelady’s response, "I didn’t say either one because I didn’t know whether to vote either way” is open to two possible interpretations, i.e., either she was uncertain whether, as forelady, she could vote, or she was undecided on her vote. Irrespective of which explanation approximates the cognitive processes of the forelady, in neither situation is there any concern that she possessed a conscientiously held conviction that the State had not met its burden. Without the difference of conscientiously held convictions, there can be no deadlock.

Having decided that Kelly

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451 A.2d 1270, 53 Md. App. 39, 1982 Md. App. LEXIS 381, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fowlkes-v-state-mdctspecapp-1982.