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Defendant’s testimony admissible in State’s case-in-chief during de novo appeals.

Oku v. State

The Court of Appeals of Maryland affirmed the ruling of a Montgomery County Circuit Court judge allowing voluntary testimony from a criminal defendant’s District Court trial to be used in the State’s case-in-chief during his Circuit Court trial. The Petitioner was accused of attacking a man while in an elevator in Silver Spring, Maryland.  He was charged with second degree assault and reckless endangerment in the District Court of Maryland in Montgomery County.  Petitioner, represented by an attorney, took the stand in his own defense. 

During his trial, he admitted to punching the victim in the face once and hitting him once.  It is undisputed that Petitioner’s District Court testimony was given voluntarily.[1]  At the end of his District Court trial, Petitioner was convicted of both the second degree assault and reckless endangerment charges.  Petitioner exercised his right to a de novo appeal in the Circuit Court for Montgomery County.

Before the start of Petitioner’s Circuit Court trial, Petitioner made a motion in limine arguing that the Court should preclude the introduction of Petitioner’s District Court testimony during his trial.  The Court denied Petitioner’s motion.  After the victim’s in-court identification of the Petitioner, the State, over Petitioner’s objection, introduced a recording of the Petitioner’s District Court testimony into evidence.[2] Petitioner asserted that his Fifth Amendment privilege against self-incrimination[3] and the nature of the de novo trial prohibited his District Court testimony from coming in during the State’s case-in-chief.  Further, Petitioner asserted that the Circuit Court judge’s ruling relieved the State of its burden to put on its case a second time. 

However, in ruling against Petitioner’s objection, the Court noted that Maryland’s de novo statutory scheme “does not call for exclusion of testimony voluntarily given in district court trial, as long as it is admissible under rules of evidence.”[4]  In explaining its holding, the Court of Appeals of Maryland reasoned that while the structure of the de novo appeal system does have the effect of ignoring the judgment below, it does not allow for the complete erasure of the defendant’s voluntary testimony.

[1] See Oku v. State, page 2 (2013) available at

[2] Id. The parties stipulated that “there was a prior trial below at which the defendant testified that he was the person on the elevator, that he struck Mr. Mijango [twice], and that he wasn’t in fear – – in other words, there was no self defense issue.”

[3] See U.S. Const. am. V. “No person shall . . . be compelled in any criminal case to be a witness against himself . . .” (The Court of Appeals of Maryland reasoned that “Petitioner’s District Court testimony, not compelled at the time it was given, did not transform into compelled testimony when later introduced in Circuit Court” thereby not offending the Fifth Amendment).

[4] Id. at 2.

Post-conviction relief after decades behind bars.

Lopez v. State

The Court of Appeals of Maryland held that the doctrine of laches[1] does not apply to post-conviction petitions arising from sentences imposed before October 1995.  Mr. Lopez, sentenced in 1986 for committing a string of crimes in Silver Spring, Maryland,[2] filed his petition for post-conviction relief in 2005, unrepresented by counsel.  In 2007, the Office of the Public Defender provided a supplement to Mr. Lopez’s petition, in which he alleged ineffective assistance of counsel.  The State, in its response, used the equitable doctrine of laches as an affirmative defense to Mr. Lopez’s petition. 

In 2008, the Circuit Court for Montgomery County denied his petition on that basis.  The Court of Special Appeals of Maryland affirmed the Circuit Court’s ruling.  The Court of Appeals of Maryland reviewed the intermediate Court’s decision on certiorari.  In support of its ruling, the Court of Appeals of Maryland looked to the legislative intent of Maryland’s General Assembly and case law for guidance. [3]  Through its analysis, the Court determined that the pre-amendment language allowing for post conviction petitions to be filed “at any time” applies to defendants sentenced before 1995. [4]   Based on this examination, the Court of Appeals found no basis for refusing to apply the 1995 limitations retroactively, but permitting the use of laches as a defense, allowing Mr. Lopez to litigate his post-conviction petition.

[1] See Lopez v. State, (2013), “This equitable doctrine of laches bars litigation of a claim when there is unreasonable delay in its assertion and the delay results in prejudice to the opposing party” (citing to Liddy v. Lamone, 398 Md. 233, 243045, 919 A.2d 1276 (2007). 

[2] In February of 1986, Mr. Lopez was convicted of attempted first-degree rape, attempted robbery with a dangerous and deadly weapon, and burglary.  In March of that same year he plead guilty to two counts of first degree rape, one count of second degree rape, three counts of burglar, and one count of assault with intent to rape.  As a result, he was sentenced to two consecutive life sentences and concurrent sentences on other charges.

[3] The Court notes that uncodified language relating to the 1995 amendment indicates the Legislature’s intent that the amendment only apply to sentences imposed after its enactment; see also State v. Williamson, 408 Md. 269, 277, 969 A.2d 300, 305 (2009) (10 year limitation period did not apply to an individual sentenced before the effective date of thesf statute – October 1, 1995).  

[4] Formerly codified as the Maryland Uniform Post-Conviction Procedure Act, presently codified at Md. Code, Criminal Procedure Article (“CP”) § 7-101 et seq.

The “extreme” ruse – When consent becomes involuntary.

Redmond v. State.

The Court of Special Appeals of Maryland held that extreme ruses of deception employed by police to obtain consent to enter (or search) may vitiate, per se, the voluntary nature of the defendant’s consent.  Generally, law enforcement is permitted to use ruses as a means of obtaining consent; however, this practice is not without limits.  In this case, Appellant was convicted of robbery with a deadly weapon, robbery, second-degree assault, and theft of less than $1000.[1]  His conviction rested in part on the Circuit Court of Baltimore City’s ruling that denied Appellant’s motion to suppress evidence obtained as a result of a ruse.

Here, the Court set a guideline for the acceptable use of ruses by analyzing both the legality of the detectives’ employment of a ruse to obtain consent to enter the home[2] and the admissibility of evidence seized resulting from the detectives’ tactic.  Finding in favor of Appellant, and reversing the Circuit Court for Baltimore City’s ruling, the Court of Special Appeals of Maryland found that the ruse used in this case was “extreme” as it played on the occupants’ willingness to assist in the capture of a (made-up) pedophile.

The Maryland Court reasoned that when a ruse is “extreme,” law enforcement officials are effectively depriving the homeowners of their ability to assess accurately whether they would consent if the true purpose of their investigation had been disclosed.  Because the ruse was so egregious and created false exigent circumstances, the Maryland Court ruled the homeowners’ consent to the detectives’ entry to be involuntary and the seizure of evidence thereafter tainted.  As a result, the Court found that the motion to suppress was improperly denied and remanded the case for further proceedings.

[1] Appellant used a knife to rob a teenage girl of her cell phone and other personal belongings.  As a repeat offender, he was sentenced to 25 years without parole; on appeal he also challenged the legality of the sentence imposed. However, because the Court resolved the ruse issue in favor of Appellant it did not discuss the merits of this argument.

[2] Detectives told occupants of the home that they were searching for a pedophile, thereby gaining access into the home.  Detectives continued operating under the guise of this ruse when they conducted a “protective sweep” shortly after their initial entry, exceeding the scope of the occupant’s initial consent – further tainting the evidence later seized.  Only after using this ruse to enter (and stay in) the home then waiting four and one-half hours for a search warrant based on evidence found during the “protective sweep”, were detectives able to seize evidence associated with the true purpose of their investigation.

Was there sufficient evidence to support a conviction for second-degree assault?

Jones v. state.

The Court of Special Appeals of Maryland held that when a defendant shoots multiple bullets into an occupied residence (which he knows to be occupied), there is sufficient evidence for a jury to reasonably infer that the defendant intended to cause fear of imminent bodily harm to those in the residence.  This inference is sufficient to support a conviction of the “intent to frighten variety of assault” with respect to each occupant who was placed in fear.  A conviction based on this variety of assault will be supported regardless of a defendant’s knowledge of the identity of each occupant.

In the instant case, appellant was convicted on two counts of second-degree assault and three counts of reckless endangerment.  Appellant only contested his second-degree assault conviction for Ms. Johnson, “the unknown victim,” on appeal.  The record established that Appellant intentionally fired three shots into the door of a residence, which he knew to be occupied by several people, causing an immediate fear of bodily harm to those inside.[1] Appellant argued that because he was unaware of the identities of all the occupants, and only had the intent to place certain people in fear, he did not have the specific intent necessary to be convicted of second-degree assault of the unknown victims in the apartment. [2]

The Maryland Court rejected Appellant’s reasoning, finding that, at minimum, the evidence produced need only establish that Appellant was aware of the presence of others in the apartment; the Appellant’s ignorance of the identity of the persons in the apartment should not excuse his intentional behavior.  The Maryland Court therefore upheld his convictions of second-degree assault, based on his intent to cause immediate apprehension of bodily harm, with respect to the unknown victims who were in the residence at the time of the shots.


[1] The evidence also demonstrated that Ms. Johnson, the unknown victim, told another occupant in the residence to get down to avoid being shot.  Additionally, Ms. Johnson testified she was scared, further supporting a conviction of the intent to frighten variety of assault that establishes the third element, which requires that the victim be “aware of the impending battery.” See Snyder v. State, 210 Md. App. 370, 381 (2013).

[2] Jones v. State, No. 660, 2013 Md. App. LEXIS 98, at *8 (Md. Ct. Spec. App. Aug. 30, 2013) (noting that appellant correctly asserts that this variety of second-degree assault is a specific intent crime).

Jury Trial Waiver In Montgomery County Circuit court and Impeachment through use of Conviction of Resisting Arrest.

Banks v. State

The Court of Special Appeals of Maryland held that, should a defendant decide to waive his Sixth Amendment right to a trial by jury, the trial court must announce this decision on the record in open court, acknowledging the defendant’s knowing and voluntary waiver of this constitutional right.  If this procedural requirement, as set out in the Maryland Rules, is not followed, any resulting convictions will be vacated.  See Md. Rule 4-246(b).  In this case, Appellant was found guilty by a Montgomery County Circuit Court judge and convicted of child sexual abuse and two counts of fourth degree sexual offense.  Appellant’s assertion that the trial court did not substantially comply with Maryland Rule 4-246(b) was upheld.  A variance from the procedural requirement, which results in the announcement not being made on the record and in open court, will not meet the strict requirements of this Rule.[1]

The Court also held that the crime of resisting arrest[2] cannot be used to impeach a witness’s credibility, upholding the Montgomery County Circuit Court’s decision to sustain the objection in response to Appellant’s attempt to impeach the State’s witness using this conviction.  In Maryland, impeachment by evidence of criminal convictions must either fall under the category of an “infamous crime” or be relevant to the finder of fact on the issue of a witness’s credibility. See Md. Rule 5-609(a).  When analyzing the crime of resisting arrest (or other crimes that do not fall under the purview of the latter category) the Maryland Court held that the elements should identify behavior that would tend to show the witness is “unworthy of belief.” See State v. Westpoint, 404 Md. 455, 484 (2008).  Based on this analysis, the Court determined that the elements of resisting arrest do not require proof of conduct regarding an accused’s trustworthiness and, therefore, may not be used in a subsequent proceeding to impeach a witness’s credibility. 

This ruling acts as a safeguard of sorts, preventing the proponent of irrelevant potential impeachment evidence from injecting doubt on aspects of a witness’s character that have nothing to do with his or her honesty. Furthermore, the Court’s prohibition of impeachment by means of a conviction for resisting arrest will prevent confusion of the issues by the jury.

[1] See Valonis and Tyler v. State, 431 Md. 551, 563 (analyzing Rule 4-246(b) the Court wrote, “In other words, the judge is required to announce his or her finding as to the knowing and voluntary waiver on the record”).

[2] See Md. Code, Criminal Law § 9-408 (2012). 

The Work Product Doctrine and Other Crimes Evidence.

Thomas v. State.

The Court of Special Appeals of Maryland held that the disclosure of a recorded statement that contains only the verbatim statements of the witness (facts) is not protected under the work product doctrine.  In this case, appellant asserted that statements taken and recorded from two State’s witnesses by the defense’s investigator were not subject to disclosure by defense, and that the trial court erroneously ordered defendant’s disclosure under Maryland Rule 4-263(e)(6).  Appellant argued that because the statements were not used during trial and were protected by the work product doctrine, they were not discoverable.

However, after a closer analysis of the Rule and defense’s disclosure obligations therefrom, and after reviewing the record and finding that defense counsel would use these statements during trial if one of the witnesses changed their statement, the Maryland Court disagreed.[1] Additionally, the Court found that because the recordings did not reveal the opinions, theories, or “creative thought process or mental impressions of counsel, but rather, they conveyed only the verbatim factual content of the witnesses’ statements” the trial court’s order compelling discovery under Maryland Rule 4-263(e)(6) was warranted.

The Maryland Court also affirmed the lower court’s ruling allowing evidence of appellant’s other crimes after a finding of the following: the evidence fell under one of the exceptions listed in Maryland Rule 5-404(b) or special relevance; clear and convincing evidence of the other crime; and that its probative value outweighed the danger of its prejudicial effect.  In this case, appellant was convicted of first degree murder and the State attempted to show, through evidence of a prior drug deal with the victim in the case.  Appellant asserted that because the drug charges originated from 2007, evidence from this case was too attenuated and would unfairly prejudice him. However, the Court notes that this drug case was postponed on September 10, 2009 and the victim “was murdered three days later, on September 13, 2009.”  Here, the Maryland Court found that this evidence had special relevance towards establishing appellant’s motive.

Additionally, the State’s proffer that court records, testimony from the prosecutor in the drug case, and an audio and video recording of the transaction show his involvement by clear and convincing evidence was accepted by the Maryland Court of Special Appeals.  Regarding the balancing test, outlined in Maryland Rule 5-403, the Court gave great deference to a trial court judge’s discretion, and in this case found that because there was little explanation regarding the killing, this evidence was probative and outweighed its prejudicial effect.

[1] See Md. Rule 4-263(e)(6) (2013); see e.g., State v. Young, 767 P.2d 90, 93 (Or. Ct. App. 1989) (“if defense counsel, even though not certain, can reasonably predict that she will use certain exhibits to impeach a State’s witness, she must give timely discovery to the prosecutor”).

Montgomery County judge allowed to re-seat a stricken juror in criminal trial.

Khan v. State.

Juror 95

The Court of Special Appeals of Maryland held that the Montgomery County Circuit Court did not err in upholding a Batson challenge when the proponent of the peremptory strike did not provide an explanation that was not pretextual or prove, to the satisfaction of the court, that purposeful discrimination had not occurred.  In this case, an employee of a downtown Silver Spring cosmetics store was indicted by a Montgomery County grand jury on charges of committing a sexual offense and second-degree assault.  At the conclusion of his trial, he was convicted with one count of second-degree assault.  During jury selection, the court made note that appellant’s counsel used five of the allotted peremptory strikes against white men, prompting the court to issue a Batson challenge.[1]

In contesting the Circuit Court ’s Batson challenge, Appellant argued that his race-neutral explanations for striking juror 95 were improperly classified as pretextual.[2]  In support of this argument, Appellant cited to the trial judge’s acknowledgement that, counsel was being “candid” during his explanation, but, he “does not have to buy it” as proof that the trial court erroneously categorized the explanation as pretextual.  However, the Maryland Court of Special Appeals found this interpretation of the Batson analysis flawed.

 Instead, the Maryland Court reasoned that, simply because the trial court believed parts of defense counsel’s reasoning behind the strike, “does not mean that the court was required to exclude the challenged juror.”[3]  Rather, the court must also determine whether purposeful discrimination was at play when jurors were stricken (the third step of the Batson analysis).  Because the trial judge noted a pattern of strikes against white male jurors, defense counsel’s proffered explanation had not been previously accepted by the trial court, and his prior noted explanations for strikes were inapplicable to juror 95, this Court found that the Montgomery County trial judge did not err in his decision to reseat juror 95.

[1] See generally Batson v. Kentucky, 476 U.C. 79 (1985) (overruling the former rule which required challengers/opponents of peremptory strikes to prove a systemic pattern of discrimination.  Instead, the Batson Court delineated a three part-test to determine whether a peremptory strike is being used to discriminate on the basis of race or gender/in violation of the Equal Protection Clause of the Fourteenth Amendment.  First, a prima facie case of discrimination must be established/found.  Second, the proponent of

the strike must provide a neutral explanation for each strike.  Third, the trial court, considering all of the circumstances, must decide if purposeful discrimination has occurred.).

[2] Defense counsel noted that he struck “juror 95” based on his conservative appearance and the fact that he was a government attorney.

[3] Khan v. State, page 10.

Reasonable Fourth Amendment Searches: When do state actors need a search warrant?

Cory Jamaul Jones v. State of Maryland.

The Court of Special Appeals of  Maryland affirmed the judgments of the Wicomico County circuit court holding that a search warrant does not have to be obtained before the collection of gun shot residue (“GSR”) from a suspect’s person.  On November 5, 2010, Appellant, along with an accomplice, shot a female driver eleven times in a robbery gone terribly wrong.  The driver suffered serious wounds to her lower back and abdomen, pubic area, right thigh, and left leg.  With the help of GSR[1] evidence, Appellant was tried and convicted of attempted first-degree murder, first-degree assault, use of a firearm in the commission of felony, and illegal possession of a regulated firearm, in addition to related convictions.  As a result, he was sentenced to life imprisonment on the charge of first-degree murder and two consecutive terms of five years for the firearms convictions.  Appellant appealed his conviction on three grounds, two of which are discussed here.

Here, the Maryland Court of Special Appeals held that the use of GSR evidence in Appellant’s trial did not violate his Fourth, Fifth, or Sixth Amendment rights.  Before being formally charged, while Appellant waited in the booking area, detectives took a GSR sample from Appellant’s left hand.  Although Appellant protested[2] to the swabs, samples were sent to a forensics lab for further analysis.  On appeal, Appellant asserted that taking the GSR constituted an unreasonable search under the Fourth Amendment.  In support of this contention, he argued that taking the samples was invasive and did not fall under any exceptions to the warrant requirement in violation of his Fourth Amendment rights.  The Maryland Court of Special Appeals found otherwise, reasoning that the search was minimally invasive (analogous to the taking of fingerprints or cheek swabs for which there is no warrant requirement)[3] and justified by exigent circumstances, qualifying as an exception to the warrant requirement.

Although Appellant did not properly preserve his right to argue a violation of his Fifth and Sixth Amendment rights, the court nonetheless addressed why these arguments lacked merit.  Regarding Appellant’s Fifth Amendment rights, the Court cited to several other jurisdictions that found GSR tests to be nontestimonial in nature[4] in support of its contention that Appellant was not entitled to relief under the Fifth Amendment.[5] Last, because Appellant’s right to counsel had not yet attached, he was not afforded the right to the presence of counsel, provided for under the Sixth Amendment, during the taking of the samples.

[1] During the trial, testimony was taken explaining that “a GSR kit consists of multiple small swabs that are rubbed on a suspect’s hands and the webbing of the fingers to collect any chemical residue given off by a discharged firearm.  The swabs are then sealed back into the kit and submitted to the crime lab for analysis.”

[2] During the collection of the GSR sample, Appellant indicated that “he wanted to make no statements without a lawyer present.” Appellant also questioned whether detectives had a warrant to conduct the GSR test.

[3] See Maryland v. King, 133 S. Ct. 1958, 1980, 186 L. Ed. 2d 1, 2013 U.S. LEXIS 4165 (U.S. 2013) (reversing the decision of the Maryland Court of Appeals by holding that “[w]hen officers make an arrest supported by probable cause to hold for a serious offense and bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.”) available at

[4] Appellant also conceded that GSR tests are nontestimonial.

[5] “The protections of the Fifth Amendment prohibiting the admission of compelled statements or physical communications that are self-incriminatory do not apply to physical characteristics such as the giving of a blood sample, voice sample, or handwriting exemplar. Pennsylvania v. Muniz, 496 U.S. 582, 595-98 (1990); United States v. Dionisio, 410 U.S. 1, 7 (1973); Gilbert v. California, 388 U.S. 263, 266-67 (1967).

Montgomery County judge denial of criminal defendant’s mistrial motions affirmed.

Choate v. State

The Court of Special Appeals of Maryland recently affirmed a Montgomery County Circuit judge’s ruling denying Appellant’s motions for mistrial.  The Court held that the grant of a mistrial is not warranted when the defendant has not suffered irreversible prejudice[1] and when the prosecution’s statements in closing do not create an inference that the defendant should have taken the stand.[2]

This case arises from a trial in which Appellant was convicted of first degree rape and two counts of first degree sexual offense of a Bethesda woman.   As a result, he was sentenced to three consecutive life sentences.  In Appellant’s Brief submitted to the Court of Special Appeals of Maryland, he asserts that his two motions for a mistrial were erroneously denied.  His first motion, made during State’s closing, asserted that he was in fact prejudiced by the trial court’s ruling allowing the State’s reference to facts not introduced into evidence.  Specifically, Appellant cited to the victim’s testimony regarding a screw driver that was allegedly used by Appellant during commission of the crime.

During the State’s case-in-chief, the victim was shown a screw driver found in the van in which Appellant was stopped and arrested.  Her testimony indicated that she was unsure whether the screw driver shown to her was the same one used by the Appellant.[3]   As a result, the Court ruled that the screw driver would be “admitted as the screwdriver Agent Willis[4] had recovered from the van.”  Additionally, the Court prohibited the prosecution from arguing that the screwdriver introduced into evidence was the one used during the attack.  Notwithstanding this limiting instruction, however, the prosecution, during closing, argued that “she’s grabbed by the defendant, who holds this screwdriver . . .”.  Pursuant to the limiting instruction, the Court instructed the jury to disregard this statement.  However, on appeal, the Court found that these statements were permissible concluding that because a reasonable jury could draw an inference that the screw driver presented during trial was the screw driver Appellant used (and trial counsel was free to argue the opposite) the statement did not give rise to a mistrial based on the Maryland Court’s standard of review.
The second motion, made during the State’s rebuttal, concerned Appellant’s contention that the State created an improper inference to the jury regarding Appellant’s decision not to testify. It is well settled law in Maryland that a criminal defendant has the right to decline to testify and not be penalized for this decision.[5]  Appellant cited to a portion of the State’s rebuttal that “[t]here were only two people there” and that, the victim “came in and . . . sat here and  . . . told you what happened” as statements that created an unlawful inference that the defendant’s silence should be seen as guilt.  However, this excerpt of the rebuttal was a small portion of the five pages containing the State’s arguments bolstering the victim’s credibility because she was the only other witness to the crime other than the Appellant.  As such, the Court found that the Montgomery County judge did not abuse his discretion in denying trial counsel’s second mistrial motion.

[1] See Choate v. State, at 10 (quoting Behrel v. State, 151 Md. App. 64, 142, 823 A.2d 696, 741, cert. denied, 376 Md. 546, 831 A.2d 5 (2003) (“A mistrial is . . . an extreme sanction that sometimes must be resorted to when such overwhelming prejudice has occurred that no other remedy will suffice to cure the prejudice…the remarks must be a direct and contributing factor that resulted in egregious prejudice to the defendant.”)) available at

[2]See id., (the Court, when reviewing “the denial of a motion for mistrial for abuse of discretion . . . will reverse only where “the prejudice to the defendant was so substantial that he was deprived of a fair trial.” Cooley v. State, 385 Md. 165, 173, 867 A.2d 1065, 1069-70 (2005)” available at

[3] When shown the screwdriver found by law enforcement, the victim testified, that it “could be [the screwdriver used by the appellant], but I can’t swear that it was.”

[4] Agent Willis was the patrol officer who stopped Appellant, in a van, on a Virginia state highway several hours after the victim reported the crime.

[5] See Md. Dec. of R. art 22; see also Md. Courts and Judicial Proceedings Code Ann. § 9-107.

Maryland Pattern Jury Instructions.

Hall v. State.

In a close decision, the Court of Special Appeals of Maryland affirmed a ruling from the Circuit Court of Baltimore City permitting the reading of an Allen-type jury pattern instruction[1] that did not strictly adhere to the language included in the instruction.  Although the Court noted that, the Circuit Courts should avoid the sort of divergence that occurred in this case, ultimately, the instructions were upheld.  The Maryland Court ruled that the instructions given did not alter the substance of the Maryland Pattern Jury Instructions (“MPJI”), nor were they found to be unduly coercive.[2]

On appeal, Appellant cited to two instances that, in his view, were impermissibly coercive: 1) the Court’s altered instruction directing the jury “to decide” as opposed to “deliberate” (which is what is written in the instruction); and 2)the trial court’s preface to the instructions in which the judge announced that the jury reached an impasse due to one juror.  In response to Appellant’s arguments, the Maryland Court maintained that the instruction’s potential coerciveness, read in context, was lessened by language emphasizing the importance of each juror reaching an individual judgment that is accurately reflected in the final verdict.  Additionally, the Court found that this divergence did not materially alter the substance of the instruction.

The Court of Special Appeals used analogous reasoning with respect to Appellant’s second argument.  Here, the Circuit Court judge intimated that he did not wish to appear critical of the single juror and stressed that each juror conform with his/her belief when attempting to reach a verdict.  After reviewing the record, the Court stated that “the content of the instruction given remained within the spirit of the ABA-approved instruction . . .”.

[1] See generally Allen v. United States, 164 U.S. 492, 501-02 (1896) (“It certainly cannot be the law that each juror should not listen with deference to the arguments and with a distrust of his own judgment, if he finds a large majority of the jury taking a different view of the case from what he does himself”).  Today, an Allen-type jury instruction refers to the instruction given when the jury indicates they are unable to reach a unanimous decision.  Trial courts must take special care to avoid coercion of jurors who are in the minority.  The Maryland Pattern Jury Instructions (MPJI) have adopted the American Bar Association’s (“ABA”) instructions, which differ from the Allen charge, in that they do not place an emphasis on jurors who are not siding with a majority of their peers to reach a decision.  Rather, the MPJI emphasizes the importance of reaching a collective decision which accurately reflects an individual’s decision based on his/her own belief.

[2] Hall v. State, at 15 (2013) (“While the language used by the court here comes close to instructions that have been rejected as impermissibly coercive, we believe that the instruction given here is distinguishable form those cases.”) OR “Although we do not recommend or condone all of the language used by the trial court here, when viewing the instruction in its entirety, we do not believe that it deviates in substance from the pattern instruction, and reversal is therefore not required” page 10).




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