State v. Hurd

JABAR, J.,

with whom SILVER, J., joins, dissenting.

[¶46] I respectfully dissent. I begin my analysis from the same factual premise as the Court, and thus assume that: (1) the jury reasonably interpreted the court’s instruction to mean they would be asked a third question on accomplice liability; and (2) after leaving the courtroom, the jury was not subject to any outside pressures, communications, or influences. Given these facts, as well as other undisputed details discussed below, I cannot agree that M.R. Evid. 606(b) prohibits the jury from properly reporting its complete verdict in this case.

[¶ 47] We have, as the Court explains, interpreted Rule 606(b)’s “limitation to extend to any post-discharge communication by or with a juror or the jury that would undermine the validity or accuracy of the jury’s reported verdict.” Swpra ¶ 33. As one commenter has noted, “[t]he reasons for [Rule 606(b) ], namely, the dangers of uncertainty and of tampering with the jurors to procure testimony, disappear in large part if such investigation as may be desired is made by the judge and takes place before the jurors’ discharge and separation.” 8 John Henry Wigmore, Evidence in Trials at Common Law § 2350, at 691 (McNaughton rev.1961). Here, the jury had not separated, and the circumstances of this case support a conclusion that the jury had not yet been functionally discharged.

[¶ 48] The transcript reveals that, after the jury reported two not guilty verdicts, the following occurred:

THE CLERK: Madam Foreperson, members of the jury, harken to your *663 verdicts. So say you Madam Foreperson, so say you all, ladies and gentlemen?

THE JURY: Yes.

THE COURT: Thank you very much, ladies and gentlemen, you can be seated.

Well, I just want to thank you very much for your service. We know that these cases are often difficult for everyone involved and this was a — a lengthy process interrupted, we know we disrupted your lives to ask you to serve here as jurors in Franklin County. And I just want to tell you once again, we could not run the criminal justice system in this county without the sacrifice of persons such as yourselves.

So once again, because you have served on this jury, you have discharged your obligation to serve as jurors for the next five years. So please know that when you leave here you have our deep gratitude for your service. Please rise for the jury.

(THE JURY LEFT THE COURTROOM AT 4:24 P.M.)

THE COURT: All right. Please be seated. The — the verdicts having been rendered, the — any bail that’s been— any bond or any terms of the bail bond are hereby discharged and the bail is exonerated. I am going to speak briefly with the jury to convey my thanks to them personally—

THE JUDICIAL MARSHAL: Oh, Your Honor. They need to see you right now.

THE COURT: Okay. We’ll be in recess.

THE CLERK: AH rise.

[¶ 49] The court briefly left the courtroom to speak with the jury. Upon returning, the court informed the parties that the jury had been “under the impression that there were three counts.” The court also reported that the jury’s apparent confusion upon being discharged was not a reaction to the disturbance in the courtroom, but was because the jury “felt that they had been cut off.” By this point, only three minutes had elapsed since the jury had left the courtroom.

[¶ 50] The subsequent written communication between the jury and the court reveals that the jury had, in fact, taken three votes. First, the jury informed the court that it “understood there to be 3 charges and wish to speak to that as well.” Second, in response to the court’s question, ‘What were the 3 charges you voted on?” the jury replied, “1. Manslaughter 2. Aggravated OUI 3. Accomplice liability.” Finally, the jury completed the special verdict form finding Hurd guilty of a third charge, “aggravated operating under the influence — accomplice liability,” in less than nine minutes.

[¶ 51] Had the foreman spoken up minutes earlier, prior to the court announcing that members of the jury had “discharged [their] obligation to serve as jurors,” we would have no trouble concluding that the jury could have fully reported its verdict. That the outcome of this case rests on such a distinction illustrates the need to examine the issue of discharge closely. To account for the significant implications surrounding the issue, I would adopt a functional approach, and conclude that discharge has not occurred where the jury (1) continues to function as an undispersed unit; (2) is not subject to any outside pressures, communications, or influences; and (3) remains under the control of the court.

[¶ 52] Although the authority is not uniform, this approach has significant support in other jurisdictions. See, e.g., United States v. Rojas, 617 F.3d 669, 677 (2d Cir.2010) (“The mere incantation of the word ‘discharged’ marks only a time when *664 the jurors have been discharged nominally.”); Quesinberry v. Taylor, 162 F.3d 273, 278 (4th Cir.1998) (holding that “as long as the jury remains an undispersed unit, within control of the court, the jury had not been finally discharged” (quotation marks omitted)); United States v. Marinari, 32 F.3d 1209, 1214 (7th Cir.1994) (“When a jury remains as an undispersed unit within the control of the court and with no opportunity to mingle with or discuss the case with others, it is undischarged and may be recalled.”); Putnam Res. v. Pateman, 958 F.2d 448, 457 (1st Cir.1992) (“[I]t is the settled rule that the jury ‘may remain undischarged ... though discharge may have been spoken by the court, if ... it remains an undispersed unit, within the control of the court.’” (quoting Summers v. United States, 11 F.2d 583, 586 (4th Cir.1926))); State v. Colon, 272 Conn. 106 , 864 A.2d 666, 776 (2004) (“[Mjere departure from the courtroom does not, in and of itself, discharge a jury from its obligation to render continued service in a particular case.”); State v. Rodriguez, 139 N.M. 450 , 134 P.3d 737, 739 (2006) (“The functional approach to determining whether a jury has been discharged requires a determination of whether the jury is still in the presence and control of the trial court, and if not, whether the jury was possibly influenced by an unauthorized contact.”); State v. Green, 995 S.W.2d 591, 609 (Tenn.Crim.App.1998) (examining cases and concluding that “the verbal discharge or dismissal of the jury by the trial court does not render the jury discharged for purposes of subsequent reassembly to correct or amend a verdict”).

[¶ 53] Indeed, with the exception of Taylor v. Lapomarda, 1997 ME 216 , 702 A.2d 685 , each case cited by the Court involves an application of M.R. Evid. 606(b) (or its federal counterpart) to communication by jurors who had clearly been functionally discharged. See Tanner v. United States, 483 U.S. 107, 113 , 107 S.Ct. 2739 , 97 L.Ed.2d 90 (1987) (addressing motion filed “[t]he day before petitioners were scheduled to be sentenced”); McDonald v. Pless, 238 U.S. 264, 265-66 , 35 S.Ct. 783 , 59 L.Ed. 1300 (1915) (addressing juror testimony offered in subsequent motion to set aside verdict); United States v. Gonzales, 227 F.3d 520, 521 (6th Cir.2000) (addressing juror statement made “[o]ne and a half months after the jury found [the defendant] guilty”); United States v. Ford, 840 F.2d 460, 465 (7th Cir.1988) (addressing juror statement made “[ejleven days after the conclusion of [the] trial”); Virgin Islands v. Nicholas, 759 F.2d 1073, 1075 (3d Cir.1985) (addressing juror statement made “one year and eight months after the verdict was rendered”); State v. Watts, 2006 ME 109, ¶¶ 9-10 , 907 A.2d 147, 149 (addressing juror’s affidavit filed seven days after the jury returned its verdict); Marr v. Shores, 495 A.2d 1202, 1204 (Me.1985) (addressing two juror affidavits submitted at a subsequent hearing on a motion for a new trial); Cyr v. Michaud, 454 A.2d 1376, 1379 (Me.1983) (addressing post-trial juror statement to an uninvolved attorney, brought to the court’s attention “[f]our days after the completion of the trial”). 14

[¶ 54] The facts regarding discharge in Taylor are admittedly similar to this case. There, after the jury reported its verdict, the court “discharged the jury, and the jury left the courtroom.” Taylor, 1997 ME 216, ¶ 4 , 702 A.2d at 686 . Minutes later, the jury officer informed the court *665 that the jury wished to speak to it, indicating that members of the jury had stated that they intended to award the plaintiff more then they had. Id. The court ultimately denied the plaintiffs motion for a mistrial, reasoning that the verdict “should not be disturbed as a result of the communication from the jury after it was discharged.” Id. ¶ 4, 702 A.2d at 687 (quotation marks omitted).

[¶ 55] On appeal, we affirmed the trial court’s decision denying the motion for a mistrial. Id. ¶ 6, 702 A.2d at 687 . In doing so, we declined to engage in a “fact-specific inquiry” regarding discharge, deeming such an inquiry “neither wise nor desirable.” Id. ¶ 7, 702 A.2d at 688 . We further noted that the “wide variety of approaches to deciding whether to permit jury reassembly after discharge” demonstrated “the impossibility of drawing a line which properly fits all of the points upon which parties may urge revisiting jury verdicts.” Id. ¶ 8 n. 4, 702 A.2d at 688 .

[¶ 56] I am convinced that a fact-specific inquiry into the issue of discharge is essential. As this case illustrates, the possibility of miscommunication between the court and a jury of untrained and inexperienced individuals is a practical reality of the trial process. The jury was instructed that there were two ways to commit the crime of aggravated OUI:

But a person in Maine may also commit aggravated OUI as an accomplice; therefore, if you find that the State has failed to prove — prove beyond a reasonable doubt all three of the elements of aggravated OUI, as I’ve just described, you must then consider if the State has proven beyond a reasonable doubt the defendant’s guilt as an accomplice to aggravated OUI.

(Emphasis added.) As presented, this instruction resembles a lesser-included offense instruction, see 17-A M.R.S. § 13-A (2009), in which a jury may answer two questions regarding a single count. This is exactly what the jury did in this case. The jury was not confused; they followed the instructions that had been presented. 15 After a six-day trial, conducted over a sixteen-day period, the jury reached a verdict. However, applying the Court’s bright-line test, the jury’s hesitation regarding the proper time to report its full verdict is now controlling on the issue of discharge, and, ultimately, the outcome of this case.

[¶ 57] Conversely, taking a functional approach to the issue of discharge accounts for the realities of managing a jury, while preserving the integrity of the deliberative process. Trial courts are regularly called upon to exercise discretion in matters involving jury management during the course of a lengthy trial. Drawing a bright line on the issue of discharge removes the traditional discretionary role accorded to the trial court. In circumstances where a jury (1) continues to function as an undispersed unit; (2) is not subject to any outside pressures, communications, or influences; and (3) remains under the control of the court, we should give trial courts the discretion to correct obvious mistakes. Although the fact-sensitive nature of such an approach is less convenient, it is far more suited to our jury-trial system.

*666 [¶ 58] Constitutional law does not compel a different standard. Courts have routinely concluded that applying a functional approach to the issue of discharge does not violate a criminal defendant’s constitutional rights, including due process, the right to a jury trial, and protection from double jeopardy. See United States v. Stauffer, 922 F.2d 508, 513-14 (9th Cir.1990) (holding that the defendant’s right to be free from double jeopardy had not been violated where the trial court “simply corrected the verdict form to reflect the [discharged] jury’s true intent”); Brown v. Gunter, 562 F.2d 122, 124-25 (1st Cir.1977) (finding nothing in the “United States Constitution preventing] the states from adopting rules allowing a discharged but still isolated jury to correct its verdict in a criminal case after a verdict has been recorded and the jury has been discharged”); accord State v. Milliken, 2010 ME 1, ¶ 16 , 985 A.2d 1152, 1157-58 (stating that “federal and Maine due process rights are coextensive”); State v. Hughes, 2004 ME 141, ¶ 3 , 863 A.2d 266, 268 (“The double jeopardy provisions of both the United States and Maine Constitutions are co-extensive.”).

[¶ 59] To the extent that Taylor precludes a functional approach to determining the moment of discharge, I believe we should overrule it. 16 See Eaton v. Town of Wells, 2000 ME 176, ¶ 53 , 760 A.2d 232, 249 (Saufley, J., concurring) (“Although it is the policy of the courts to abide by precedent and not to disturb a settled point, the doctrine of stare decisis does not require a ‘mechanical formula of adherence to the latest decision.’ ” (quoting Adams v. Buffalo Forge Co., 443 A.2d 932, 935 (Me.=1982))); Shaw v. Jendzejec, 1998 ME 208, ¶ 9 , 717 A.2d 367, 371 (listing the “guiding principles pursuant to which a prior decision may and should be overruled”). Despite the significant implications flowing from a determination of discharge, Tay- loFs bright-line rule requires the Court to ignore compelling factual circumstances.

[¶ 60] In sum, I would conclude that the jury had not been discharged and that the court properly acted to allow the jury to report its complete verdict. Although the policy considerations that “militate against permitting jurors to impeach their verdicts” are well founded, see Taylor, 1997 ME 216, ¶ 8 , 702 A.2d at 688 , they are not furthered by the result reached in this case. On these facts, a different consideration is more compelling: “the societal interest in punishing one whose guilt is clear after he has obtained [a fair] trial.” Brown, 562 F.2d at 125 (quoting United States v. Tateo, 377 U.S. 463, 466 , 84 S.Ct. 1587 , 12 L.Ed.2d 448 (1964)). Accordingly, I would affirm the judgment.

. Although we referenced the policy concerns surrounding MR. Evid. 606(b) in Ma v. Bryan, 2010 ME 55, ¶ 9 , 997 A.2d 755, 759-60 , that case involved only a challenge to the sufficiency of the evidence to support the jury’s verdict.

. As the Court notes, the aggravated OUI accomplice liability instruction actually inured to Hurd’s benefit. The jury was instructed to consider accomplice liability separately, and only if it first determined that the State had not proved principal liability. This is contrary to our precedent, which holds that a jury need not be unanimous as to whether the defendant committed a crime as a principal or an accomplice. See State v. Nguyen, 2010 ME 14, ¶¶ 11-16 , 989 A.2d 712, 714-15 .

. Although we should overrule Taylor s holding regarding the issue of discharge, I also believe Taylor is distinguishable because the jury in Taylor sought to change its verdict, whereas the jury here failed to fully report its verdict.