Troy Sherman Nash v. State of Maryland, No. 60, September Term, 2013

Criminal Law – Allegations of Juror Misconduct – Voir dire –
The trial judge did not abuse her discretion by failing to conduct a sua sponte voir dire of
the jurors before denying defendant’s mistrial motion, which was based on a note from
the foreperson, received during deliberations after 5:00 PM on the Friday before a three-
day holiday weekend, stating that another juror indicated a willingness to change her
initial position of voting not guilty if it would allow her to go home and not return. The
note did not constitute the type of excessive or egregious juror misconduct for which the
Court applied previously a rebuttable presumption of prejudice that would require voir
dire by the trial judge, nor were there factual issues that had to be resolved necessarily by
voir dire. Additionally, it was not necessary for the trial judge to conduct voir dire to
obtain assurance from the jurors of their ability to render an impartial verdict.

Criminal Law – Jury Instructions – Modified Allen Charge –
The trial judge did not abuse her discretion by refusing defense counsel’s request to give
the modified Allen instruction, reflected in Maryland Criminal Pattern Jury Instruction
2:01, following the jury note issued while deliberations were in progress, but before a
deadlock was confirmed.

Criminal Law – Maryland Rules – Adequacy of Response to a Jury Note –
The trial judge did not violate Maryland Rule 4-326(d) by choosing, after receiving a
note from the foreperson of the jury, to recess for a holiday weekend with additional
instructions reminding the jurors of their duties. Although the judge’s additional
instructions did not refer explicitly to the concern raised in the foreperson’s note to the
court, the judge’s actions constituted a response, within the plain meaning of the Rule’s
language, and the response was not unsuitable under the circumstances.
Circuit Court for Prince George’s County
Case No. CT 09-1808X
Argued: 6 March 2014
                                            IN THE COURT OF APPEALS OF
                                                    MARYLAND

                                                              No. 60

                                                   September Term, 2013


                                                 TROY SHERMAN NASH

                                                                v.

                                                 STATE OF MARYLAND


                                                 Barbera, C.J.,
                                                 Harrell,
                                                 Battaglia,
                                                 Greene,
                                                 Adkins,
                                                 McDonald,
                                                 Watts,

                                                        JJ.


                                                   Opinion by Harrell, J.
                                           Battaglia, Adkins, and McDonald, JJ.,
                                                       dissent in part.



                                           Filed: June 20, 2014
       In a trial court judge’s management of a trial, few circumstances come fraught

with as much peril as the receipt of a note from a deliberating jury. Whether to deal with

it? How to deal with it? Some jury notes contain innocuous questions or statements to

which a presiding judge may respond with ease. Other notes may pose, however, more

problematic questions or statements that place a judge between a modern Scylla and

Charybdis. Although the judge may want to be helpful in responding to the jury, he or

she must take care not to be coercive or suggestive of an outcome. A quick response may

be in the best interests of everyone involved, but rashness is rewarded with reversal oft-

times. Always at the ready are the litigants and their attorneys, on edge after a hard-

fought trial, with motions, requests for curative instructions, or other proposed courses of

action that may be influenced by their respective advocacy interests in the outcome of the

trial. Looming too are we, the appellate courts, ready to swoop in from our high perch to

scrutinize, in hindsight and with the benefit of briefs, every aspect of the decisions the

trial judge had to make in real-time.

       The present criminal case embraces most of these rhetorical considerations. We

consider three challenges to the course of action chosen by a trial judge in response to a

note from the foreperson of the jury, received during deliberations after 5:00 PM on the

Friday before a three-day holiday weekend, claiming that a fellow juror stated she was

willing to change her original position of voting “not guilty” if it would mean she could

go home and not return to the courthouse. We shall hold that the trial judge, in dealing

with this note, did not abuse her discretion by denying the defendant’s motion for a

mistrial and refusing a defense request to give a modified Allen instruction; nor did she
violate Maryland Rule 4-326(d) by recessing for the long weekend, after giving

additional instructions reminding the jurors of their proper duties. Accordingly, we shall

affirm the judgment of the Court of Special Appeals, which affirmed the judgment of the

trial court.

               PERTINENT FACTS & PROCEDURAL BACKGROUND

        On 17 December 2009, a grand jury, sitting in Prince George’s County, returned

an indictment charging Troy Sherman Nash with one count of murder in the first degree,

based on an investigation into the death of Vanessa Riddick. The case proceeded to trial

in the Circuit Court for Prince George’s County, beginning with jury selection on

Tuesday, 30 August 2011. On that day, the venire arrived at the courthouse at 7:00 AM.

Voir dire started at 9:50 AM. After the jury was selected and the court’s opening

instructions delivered, the trial continued with opening statements from counsel for both

parties, followed by the testimony of two State’s witnesses. The court recessed for the

day just after 4:00 PM, after instructing the jurors to return the following morning by

9:15 AM.       The trial resumed with the testimony of four additional witnesses on

Wednesday and five on Thursday. The proceedings on each of those days began before

10:00 AM and ended after 4:30 PM.

       On Friday, 2 September 2011, the fourth day of trial, the jury began hearing

evidence at 10:14 AM. Upon completion of the testimony of the final witness at 10:57

AM, the court excused the jury with a direction to return at 12:30 PM. A medical

problem with a juror resulted in the substitution of an alternate juror and delayed the

resumption of proceedings until 1:18 PM. For the next hour and twenty minutes, the jury

                                           -2-
heard the court’s concluding instructions and closing arguments from counsel. At 2:40

PM, the jury retired to begin deliberations. At 5:02 PM, the court received a note from

the jury (the “Note”), which read literally: “I dont believe the defendant is being give a

fair verdict based on one of the juror stating out loud that she will vote guilty because she

want to go home and not return! When she previously said no guilty.” The Note was

signed by the foreperson and dated “9/2/11.”

         Following the court’s receipt of the Note, counsel for the parties were brought

back to the courtroom. The trial judge read the contents of the Note into the record. The

following colloquy between the court and counsel ensued:

         Defense Counsel: Your Honor, as the Court can understand, the note is of
         some concern to us, and we would be – and based on the concern expressed
         by the foreman in that note, we would move for a mistrial.

         Prosecutor: And the State is objecting to that, Your Honor. And the
         reason why, is because that note – in my opinion, that’s an impermissible
         note, because that’s diving into what’s happening in the jury room, and
         that’s something that we really shouldn’t be made aware of, of what’s
         going on in the jury room.
                The State, at this point, would advise that perhaps we should release
         them for the night.

         The Court: Well, I was thinking that I would maybe release them. It might
         just be that people are tired and they need to go home and relax and come
         back the next day. Because it just seems, to me, that somebody was just
         tired and wants to go home. I’m inclined to do that, rather than grant your
         mistrial.

         Defense Counsel: Well, the only thing that I would say is, is that I
         understand that the Court is trying to find a solution to the problem, short of
         a mistrial, because we’ve put, you know, four hard days in. But the
         difficulty that I have is, if we were to come back on Tuesday morning,[1] it

1
    Monday, 5 September 2011, was a court holiday.

                                              -3-
would be Tuesday morning, and essentially, if they then go back and
there’s a quick verdict, then this problem still exists.
       It seems like the foreman – that the foreman has alerted the Court –
and I think properly so – has alerted the Court that a juror has voted guilty
for convenience and expediency, rather than from a sense of, that’s the
proper verdict after our deliberations.
       And so, I don’t – I foresee that, coming back Tuesday, that it isn’t
going to change the desire of – you know, or the problem, that the Court is
addressing this afternoon.
       So based on that, I understand what the Court has said you’re
inclined to do, but I would renew my motion for a mistrial.

Prosecutor: Your Honor, I see no difference between this note and your
previous instruction to the jury that they should not tell you what the
numbers are.
       And that’s because, what’s going on back there, where they are,
before a verdict, is not something that we should know about, and that’s
what that note is doing and that’s information that we shouldn’t have
known.

The Court: Well, but we know about it, so we have to deal with it.

Defense Counsel: And we know about it now.

The Court: Okay.

Prosecutor: And so, what I’m suggesting, is that we do release the jury at
this point and have them return on Tuesday.

Defense Counsel: And the other thing that I would point out – and again,
the foreperson, while there’s an inference in the note about what the split
may have been or might be, the –

The Court: But we don’t know that.

Defense Counsel: Well, I’ll tell the Court that I’ve had notes which I
thought were saying exactly that the jury was about to return a verdict one
way, and then the opposite – and then the jury came back the other way.
      So what I’m saying to you is that that – that I know that the foreman
was careful to follow the Court’s instructions, and it’s –

The Court: Yeah, well I don’t think it’s –


                                     -4-
       Defense Counsel: And I would –

       The Court: First, wait a minute.
               It’s not a numerical breakdown, by any means, this note. And
       because I don’t – it’s just a – it’s a concern that the foreman has, and that’s
       okay. He has a concern he thought he should bring to the Court’s attention,
       which he has done.
               But I – you know, it is almost 20 minutes after 5:00, and the jury has
       been deliberating since – what was that – 2:40, which isn’t a lot of time, if
       you’re earlier in the day, but they had been here all day. And if you’ll
       recall, we did give them a very lengthy break. And I just think it may be a
       matter of just someone being really tired.
               So I am inclined to release them and have them come back Tuesday.

       The conversation continued with defense counsel addressing three additional

points. First, he requested that the judge refuse to receive a verdict that evening, in light

of the Note and anticipating the jury might claim to have reached a verdict between

sending out the Note and being brought back into the courtroom. Second, defense

counsel proposed that another judge receive the jury on Tuesday morning for further

deliberations because the presiding judge would not be available that day at the normal

start of court. The presiding judge agreed to the latter suggestion. Third, defense counsel

asked that the Court inquire of the jury as to whether it would be impossible for any of

the jurors to return on Tuesday and asked the court to grant a mistrial if any of them

could not return, because no alternate jurors remained. 2

       Before the judge could respond to counsel’s third request, the jury was escorted

back into the courtroom. At 5:25 PM, the judge stated the following to the jurors:



2
  At the time of jury selection, the court and the parties thought the case would be over by
the end of that week.

                                             -5-
      The Court: All right. I have received your note and counsel is aware of
      your notes – or your note as well.
             And what I’m going to do at this time is to excuse you for today, but
      you’re going to have to return on Tuesday to continue your deliberations. I
      expect to see you on Tuesday, at 9:30. . . .

Counsel asked to approach the bench and the following conversation occurred:

      Prosecutor: Judge, would you also instruct them not to investigate?

      Defense Counsel: Yes.

      The Court: Yes.

      Defense Counsel: And since the Court won’t be here Tuesday morning, I
      think that the Court maybe at this time should give them the Allen Charge.

      The Court: No. No. No. This is not a situation in which the Allen Charge
      applies. It really is not.

      Prosecutor: Thank you, Your Honor.

      The Court: I’m not going to give the Allen Charge.

      Defense Counsel: My exception is noted?

      The Court: That’s fine.

      The trial judge issued additional instructions to the jury:

      The Court: Okay. There’s just one other matter, and you’ve heard this
      more times than not, but I’ll remind you.
             Do not discuss the case with anyone.
             . . . You must all be together, in the room, deliberating, before you
      can discuss the case.
             Do not do any independent investigation, or any research, about
      anything concerning the matter.
             As I’ve instructed you, your decision must be based upon what has
      been presented here during the course of the trial.
             I expect that you will comply with my instructions. It’s the only
      way this process works.
             So you are excused for today. But again, I expect to see you on
      Tuesday, at 9:30.

                                            -6-
       On the following Tuesday, 6 September 2011, all of the jurors returned as

instructed. Another judge of the Circuit Court, substituting for the presiding judge, swore

the bailiff and instructed him to take the jury to the deliberation room and instruct them to

resume their deliberations. Court recessed at 9:39 AM to await a verdict. At 10:45 AM,

with the presiding judge back on the bench, court reconvened to receive the jury’s

verdict. 3 Before the jury was brought back into the courtroom, defense counsel renewed

Nash’s earlier mistrial motion based on the contents of the Note. The court denied the

motion.

       After the jury was re-seated, the foreperson announced that the jury found Nash

guilty of murder in the first degree. At defense counsel’s request, the courtroom clerk

polled the jury. Each juror agreed with the verdict. The court dismissed the jury.

Defense counsel renewed Nash’s mistrial motion and stated his intent to file a motion for

a new trial. The court reserved ruling on the mistrial and set a date for a hearing on the

anticipated motion for a new trial.

       On 28 October 2011, the court conducted a hearing on Nash’s motion for a new

trial. Nash argued, in sum, that the court erred in failing to grant a mistrial based on the

Note and, alternatively, that the court’s failure to give the requested Allen instruction,

specifically the portion of the instruction that states that a juror should not change his or




3
  The record does not indicate the precise time at which the jury alerted the court that it
reached a verdict.

                                             -7-
her vote simply as an expedient to reach a verdict, warranted a new trial. The court

denied Nash’s mistrial motion and motion for a new trial.

        Nash appealed to the Court of Special Appeals. In addition to the two arguments

posed at the Circuit Court hearing on his motion for a new trial, Nash argued to the

intermediate appellate court that the trial judge violated Maryland Rule 4-326(d) by

failing to respond to the substance of the Note.

        In an unreported opinion, the Court of Special Appeals affirmed the judgment of

the Circuit Court. With regard to the argument that the Circuit Court should have

declared a mistrial based on the allegations in the Note, the Court of Special Appeals held

that the potential action of the juror who may have indicated she was willing to change

her vote (the “Subject Juror”), as described in the Note, was not “conduct by a juror that

would compromise the ability of the jury to render a fair and impartial verdict,” and,

therefore, did not constitute juror misconduct as such circumstances are recognized in

Maryland. As to the contention that the trial judge erred in refusing to give the requested

Allen instruction, the intermediate appellate court determined that the instruction would

not have been proper because a jury deadlock did not exist. With respect to the last part

of Nash’s tri-fecta wager, that the trial judge violated Rule 4-326(d), the Court of Special

Appeals concluded that the trial judge’s actions constituted an adequate response to the

Note.




                                            -8-
         Nash filed timely a Petition for Writ of Certiorari with this Court. We granted

Nash’s Petition. Nash v. State, 432 Md. 466, 69 A.3d 474 (2013). We shall consider the

following question: 4


4
    We rephrase slightly the question presented in Nash’s opening brief, which read:

         Did the trial court commit reversible error when, after receiving a jury note
         indicating that one juror had changed her vote from not guilty to guilty
         “because she want[ed] to go home and not return,” it (1) denied a mistrial
         motion without conducting a voir dire of the jury, (2) failed to take any
         action in response to the note other than recessing for the day, and (3)
         refused to give a modified Allen instruction as requested by defense
         counsel?

This question is a condensed version of the four questions Nash framed initially in his
Petition for Writ of Certiorari:

            1. Where the trial court received a note from the foreman that stated, “I
               don’t believe the Defendant is being give[n] a fair verdict based on
               one of the juror[s] stating out loud that she will vote guilty because
               she want[s] to go home and not return! When she previously said
               no[t] guilty,” did the trial judge abuse her discretion in denying
               defense counsel’s mistrial motion and request for a supplemental
               instruction and by failing to conduct any voir dire of any of the
               jurors or otherwise address the issue with the jury but instead
               responded by recessing for the day based on the trial judge’s
               conclusion that “it seems . . . that somebody was just tired and wants
               to go home”?

            2. Does recessing for the day constitute a “respon[se]” as contemplated
               by Rule 4-326(d) and case law to a jury note “pertaining to the
               action”?

            3. Under this Court’s holding in Johnson v. State, 423 Md. 137 (2011),
               which presumes prejudice from juror misconduct and in such cases
               imposes on the trial judge a duty to sua sponte voir dire the jurors to
               ensure that they can still render a fair and impartial verdict, is juror
               misconduct limited to “improper communications with the parties,
               other jurors, or witnesses” and “conduct[ing] independent research
                                                                               (continued…)
                                              -9-
      Did the trial court commit reversible error when, after receiving a jury note stating

that one juror indicated a willingness to change her vote from not guilty to guilty

“because she want[ed] to go home and not return,” it (1) denied the defendant’s mistrial

motion without first conducting voir dire of the jury, (2) refused defense counsel’s

request to give a modified Allen instruction, and, (3) chose to recess over a three-day

weekend and have the jurors return to continue deliberations?

      We answer the question, in all of its parts, in the negative. For the following

reasons, we shall affirm the judgment of the Court of Special Appeals.

                                          DISCUSSION

I. The Trial Judge Did Not Abuse Her Discretion In Denying Nash's Mistrial
Motion

      Nash’s first argument focuses on the Circuit Court’s denial of his motion for a

mistrial following the reading of the Note. He opines that the Subject Juror’s reported

statement constitutes juror misconduct, and that, by refraining from conducting voir dire

(…continued)
               or bring[ing] into the jury room material that was not supposed to be
               before the jurors,” as the intermediate appellate court concluded, or
               does it also apply where the court receives information that one juror
               has changed her verdict based solely on her desire to go home rather
               than her honest belief as to the weight of the evidence?

          4. May Maryland Pattern Jury Instruction 2:01, which in pertinent part
             instructs jurors to “not surrender your honest belief as to the weight
             or effect of the evidence only because of the opinion of your fellow
             jurors or for the mere purpose of reaching a verdict,” only be given
             in a deadlock situation, or is it appropriate to give the instruction
             where a jury note indicates that a juror has changed her verdict from
             not guilty to guilty “because she want[ed] to go home and not
             return”?

                                            -10-
of the jurors following receipt of the Note, the trial judge failed to accomplish one or

more of three necessary things prior to acting on his motion for a mistrial: (1) receive

evidence to rebut a presumption of prejudice to Nash arising from the Subject Juror’s

alleged conduct; (2) resolve factual questions to determine whether the presumption of

prejudice was applicable or whether the judge had sufficient information upon which to

exercise her discretion in ruling on the mistrial motion; or, (3) receive assurance from the

jurors that they could render a fair and impartial verdict in light of the alleged

misconduct. Failing to accomplish one or more of those things, Nash asserts, was an

abuse of the trial judge’s discretion and constitutes an error requiring reversal of Nash’s

conviction.

       The State disagrees fundamentally with Nash’s arguments and requests that we

reject “Nash’s attempt to ‘pigeon-hole’ the circumstances of his case into the case law

that this Court and the Court of Special Appeals have developed addressing juror

misconduct.” The State asserts that the presumption of prejudice discussed in some of

the authorities on which Nash relies is not applicable in this case because there was no

“egregious juror-witness or juror-third party contact.”         In the State’s view, the

circumstances of the record of Nash’s trial presented the trial judge with only a

possibility that misconduct might occur prospectively, and, in such cases, the trial judge’s

decision not to conduct voir dire of the jurors is reviewed for an abuse of discretion.

Under this deferential standard of review, the State contends, Nash has the burden to

show that he was prejudiced so clearly that a reversal of the trial court’s ruling is

required, and “the record evidence demonstrates that he has failed to shoulder this

                                           -11-
burden.” Additionally, the State argues that there was no material fact-finding necessary

for the trial judge to resolve prior to ruling on the mistrial motion.

       The State concedes that to have done nothing in response to the Note would have

been an abuse of the trial judge’s discretion. The State notes, however, that the trial

judge’s “decision to recess was based upon her thoughtful consideration of the record and

the jury’s service up to that point in time.”

       Before we parse the merits of the parties’ respective arguments, we pause to

consider the lens through which we must review a trial court’s disposition of a motion for

a mistrial. Like many aspects of a trial, we review a court’s ruling on a mistrial motion

under the abuse of discretion standard. Although “abuse of discretion” is a term of art

that courts have struggled continuously to define, we reiterated recently what we deem to

be an appropriate description of the standard:

       In regards to the multitude of varying definitions of “abuse of discretion,”
       as we recognized previously, “[o]ne of the more helpful pronouncements
       on the contours of the abuse of discretion standard comes from Judge ...
       Wilner's opinion in North v. North, 102 Md. App. 1, 648 A.2d 1025
       (1994),” when he was the Chief Judge of the Court of Special Appeals.
       King v. State, 407 Md. 682, 697, 967 A.2d 790, 798 (2009). In North, Judge
       Wilner explained:

               “Abuse of discretion” ... has been said to occur “where no
              reasonable person would take the view adopted by the [trial]
              court,” or when the court acts “without reference to any
              guiding rules or principles.” It has also been said to exist
              when the ruling under consideration “appears to have been
              made on untenable grounds,” when the ruling is “clearly
              against the logic and effect of facts and inferences before the
              court,” when the ruling is “clearly untenable, unfairly
              depriving a litigant of a substantial right and denying a just
              result,” when the ruling is “violative of fact and logic,” or


                                                -12-
              when it constitutes an “untenable judicial act that defies
              reason and works an injustice.”

       North, 102 Md. App. at 13–14, 648 A.2d at 1031–32 (alterations in
       original) (emphasis added) (internal citations omitted). Judge Wilner
       observed that a “certain commonality [exists] in all these definitions”: “the
       notion that a ruling reviewed under an abuse of discretion standard will
       not be reversed simply because the appellate court would not have
       made the same ruling.” Id., 102 Md. App. at 14, 648 A.2d at 1032
       (emphasis added). Rather, “[a] court's decision is an abuse of discretion
       when it is ‘well removed from any center mark imagined by the reviewing
       court and beyond the fringe of what that court deems minimally
       acceptable.’” Gray v. State, 388 Md. 366, 383, 879 A.2d 1064 (2005)
       (quoting Dehn v. Edgecombe, 384 Md. 606, 628, 865 A.2d 603 (2005))
       (some internal quotation marks omitted).

       As Judge Wilner explained, “That kind of distance can arise in a number of
       ways.” North, 102 Md. App. at 14, 648 A.2d at 1032. For example, the
       circuit court's ruling is “beyond the fringe” if it “either does not logically
       follow from the findings upon which it supposedly rests or has no
       reasonable relationship to its announced objective.” Id. Because we give
       such deference to a trial court's decision under the abuse of discretion
       standard of review, it is well established that “[t]he exercise of discretion
       ordinarily will not be disturbed by an appellate court.” Gatewood, 388 Md.
       at 540–41, 880 A.2d at 330 (citing Tierco Maryland, Inc. v. Williams, 381
       Md. 378, 413, 849 A.2d 504, 525 (2004)).

Alexis v. State, ___ Md. ___ (2014) (No. 45, September Term, 2013) (filed 24 March

2014) (slip. op. at 19-20).

       Part of the difficulty in defining and parsing the abuse of discretion standard stems

from the lack of fixed channels through which we can squeeze the Play-Doh of each trial

judge’s discretionary decision into the same analytical shape or mold. See Alexis, ___

Md. ___ (slip. op. at 20) (“The notion of a range of discretion . . . is not an immutable and

invariable criterion in all of its myriad applications.” (quoting Canterbury Riding Condo.

v. Chesapeake Investors, Inc., 66 Md. App. 635, 648, 505 A.2d 858, 864 (1986))).


                                            -13-
Rather, the standard represents a flexible model whose range is dependent on the type of

discretionary decision a trial judge is called upon to make and the relevant circumstances

of the case. See Washington v. State, 424 Md. 632, 668, 37 A.3d 932, 952-53 (2012)

(noting that, with respect to a motion for a new trial, a trial judge’s discretion “‘is not

fixed and immutable’” but “‘will expand or contract’” based on the circumstances of the

case (quoting Merritt v. State, 367 Md. 17, 30, 785 A.2d 756, 764 (2001))).

       Regarding the range of a trial judge’s discretion in ruling on a mistrial motion,

reviewing appellate courts afford generally a wide berth. See Alexis, ___ Md. ___ (slip.

op. at 20) (noting that the range of a trial judge’s discretion when assessing the merits of

a mistrial motion, as with other decisions “[i]n handling the progress of a trial,” is “‘very

broad and [his or her ruling] will rarely be reversed,’” as compared to other

circumstances in which “‘the discretionary range is far more narrow’”) (quoting

Canterbury Riding Condo., 66 Md. App. at 648, 505 A.2d at 864). Competing forces

affect potentially the range of discretion with respect to the particular mistrial motion in

this case. On the one hand, an allegation of juror bias or misconduct may implicate a

defendant’s constitutional right to a fair and impartial verdict. See Dillard v. State, 415

Md. 445, 454-55, 3 A.3d 403, 408-09 (2010); Jenkins v. State, 375 Md. 284, 299-300,

825 A.2d 1008, 1017-18 (2003). On the other hand, declaring a mistrial is an extreme

remedy not to be ordered lightly. See Burks v. State, 96 Md. App. 173, 187, 624 A.2d

1257, 1265 (1993) (“It is rather 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.”); Ezenwa v. State, 82 Md. App. 489, 518, 572 A.2d 1101, 1115 (1990)

                                            -14-
(“Because [a mistrial] is an extraordinary measure, it should only be granted where

manifest necessity as opposed to light or transitory reasons, is shown.”).

       When a party moves for a mistrial based upon the conduct of jurors, we impose on

trial judges the duty to conduct voir dire sua sponte, prior to ruling on the motion, in two

sets of circumstances. The first circumstance occurs when a juror’s actions constitute

misconduct sufficient to raise a presumption of prejudice that must be rebutted before a

mistrial motion may be denied. See Jenkins, 375 Md. at 327-30, 825 A.2d at 1034-35;

see also Wardlaw v. State, 185 Md. App. 440, 453-54, 971 A.2d 331, 339 (2009). The

second, ancillary circumstance occurs when a material and relevant fact regarding a

juror’s conduct is unknown or obscure and must be resolved before a trial judge has

“sufficient information to determine whether the presumption of prejudice attached to the

[conduct] or to rule on [the] motion for a mistrial.” Dillard, 415 Md. at 457, 3 A.3d at

410. Nash asks us to consider a third circumstance, whether the absence of a sua sponte

voir dire by the trial judge in the present case constituted reversible error for failure to

obtain assurance from the jurors that they could render a fair and impartial verdict.

       A. Presumption of Prejudice

       Our consideration of whether the facts of the present case raise a presumption of

prejudice begins with a review of how Maryland’s appellate courts approach this

analysis. We considered the doctrine of presumptive prejudice for the first time in

Jenkins v. State, 375 Md. 284, 825 A.2d 1008 (2003). In Jenkins, it was claimed that the

trial court erred in denying the defendant’s motion for a new trial based on an assertion

that there was improper interaction between a State’s witness and a juror during the trial.

                                            -15-
The State’s witness, a detective, and the juror happened (by chance) to attend the same

weekend religious retreat, occurring during a recess in Jenkins’s trial, where “in sum,

they spoke of the trial, knew of each other’s role, intentionally violated a court order, . . .

went to lunch together, discussed personal details of their lives . . . and then failed to

timely report the misconduct to the proper authorities.” 375 Md. at 323-24, 825 A.2d at

1031-32.

       Several days after the jury returned a guilty verdict against Jenkins, the female

detective had occasion to be in the State’s Attorney’s Office on an unrelated matter and

mentioned casually to the Assistant State’s Attorney who prosecuted Jenkins’s case her

contact with the juror. The prosecutor notified immediately the court and Jenkins’s

defense counsel. The trial judge held an evidentiary hearing on the defense’s motion for

a new trial, at which the juror and detective both testified consistently (as above)

regarding their contact at the retreat. The trial judge denied the motion, finding that the

conduct, although improper, did not prejudice the defendant. Jenkins, 375 Md. at 288,

825 A.2d at 1010. Jenkins appealed to the Court of Special Appeals, which affirmed the

judgment of the Circuit Court, concluding that the trial court did not abuse its discretion

in finding that, if a presumption of prejudice was applicable, the State rebutted it. See id.

(citing Jenkins v. State, 146 Md. App. 83, 116, 806 A.2d 682, 701 (2002)).

       On certiorari review, we reversed the judgment of the intermediate appellate court.

We observed that “private, intentional communications and/or contacts between jurors

and witnesses are generally improper,” and went on to quote from Remmer v. United

States, 347 U.S. 227, 229, 74 S. Ct. 450, 451, 98 L. Ed. 654, 656 (1954):

                                             -16-
              “In a criminal case, any private communication, contact, or
       tampering directly or indirectly, with a juror during a trial about the matter
       pending before the jury is, for obvious reasons, deemed presumptively
       prejudicial, if not made in pursuance of known rules of the court and the
       instructions and directions of the court made during the trial, with full
       knowledge of the parties. The presumption is not conclusive, but the burden
       rests heavily upon the Government to establish, after notice to and hearing
       of the defendant, that such contact with the juror was harmless to the
       defendant.”

Jenkins, 375 Md. at 301-02, 825 A.2d at 1018 (quoting Remmer, 347 U.S. at 229, 74 S.

Ct. at 451, 98 L. Ed. at 656) (citations omitted) (emphasis added in Jenkins). We

discussed the facts of Remmer, which involved an unknown person contacting a juror to

suggest that the juror could profit from finding a verdict in favor of the defendant. The

juror alerted the court. The trial judge held an ex parte hearing, without notifying the

defendant of the incident.     Additionally, the FBI conducted an investigation of the

incident, which included questioning the jurors, during the trial. See Jenkins, 375 Md. at

302, 825 A.2d at 1019 (discussing Remmer).              The Supreme Court held that the

circumstances were prejudicial presumptively and remanded the case with instructions to

the trial court to hold a hearing in which all parties could participate. Id.

       We explained in Jenkins that, although this Court had “not had occasion to

interpret the Remmer presumption of prejudice, the Court of Special Appeals has applied

it in the case[s] of Eades v. State, 75 Md. App. 411, 541 A.2d 1001 (1988), and Allen v.

State, 89 Md. App. 25, 597 A.2d 489 (1991) . . . .” Id. Eades involved a juror who,

during a weekend recess, asked her husband, who was an Assistant United States

Attorney, questions about the admissibility of hearsay evidence. The Court of Special

Appeals held that, although the Remmer presumption of prejudice applied likely, the trial

                                             -17-
court did not abuse its discretion in denying a motion for a new trial, after the court

questioned the juror and determined that, because the juror did not discuss anything

substantive about the facts of the case or how the jury was deliberating, the juror’s

question to her husband was innocuous. See Eades, 75 Md. App. at 424-25, 541 A.2d at

1008.

        In Allen, a co-defendant had breakfast with an alternate juror, during which

conversation he implicated himself and cleared his brother of some of the charges against

him. The alternate juror related the co-defendant’s statements to a sitting juror during a

recess in deliberations. After being informed of the misconduct and conducting voir dire

of the affected jurors, the trial court denied the defendant’s motion for a mistrial. As in

Eades, the Court of Special Appeals held that the Remmer presumption of prejudice

applied, but that the presumption was rebutted by the jurors’ responses to the trial judge’s

voir dire questions. See Allen, 89 Md. App. at 47-48, 597 A.2d at 500.

        After our review in Jenkins of Remmer, Eades, and Allen, we rejected the State’s

argument that two later Supreme Court opinions 5 eroded the application of the Remmer

presumption to cases such as Jenkins’s, “where egregious juror and witness misconduct

occurs.” Jenkins, 375 Md. at 319, 825 A.2d at 1028 (emphasis in original). Even if “the

Supreme Court has intended to erode the presumption of prejudice in cases such as the

case sub judice, an interpretation with which we do not agree, we hold that Maryland’s

own Declaration of Rights requires such a presumption in limited egregious cases of juror

5
  United States v. Olano, 507 U.S. 725, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993); Smith
v. Phillips, 455 U.S. 209, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982).

                                           -18-
and witness misconduct to ensure that a criminal defendant receives adequate due

process.” Id.

       The Court of Special Appeals revisited the presumption of prejudice principle in

Wardlaw v. State, 185 Md. App. 440, 971 A.2d 331 (2009). In Wardlaw, the trial court

received a note from the jury, on the second day of deliberations, indicating that one of

the jurors conducted Internet research on oppositional defiant disorder (ODD), a mental

problem afflicting purportedly one of the State’s witnesses, and “found that lying was a

part of the illness.” The note stated also “I am concerned that her statement [regarding

ODD] is an undue influence on the rest of the jurors. Was this okay?” An additional

sentence in the note, written in different handwriting than the rest of the note’s contents,

stated “And the foreman needs to know is lying part of the illness.” See Wardlaw, 185

Md. App. at 445, 971 A.2d at 334. After reading the note to counsel for the parties, the

trial judge denied defense counsel’s motion for a mistrial. Rather than declaring a

mistrial, the judge opted to give a curative instruction reminding the jurors of the given

preliminary instruction to refrain from conducting any research or investigation. The

judge explained that the jurors should disregard any research or discussion of such

research that occurred during deliberations, and advised the jurors to base their verdict

only on the evidence presented in the courtroom during the trial and nothing else.

Wardlaw, 185 Md. App. at 445-46, 971 A.2d at 334-35.

       The Court of Special Appeals reversed the judgment of the circuit court. The

intermediate appellate court determined that the juror’s research on ODD and subsequent

reporting of her finding to the other jurors “constituted egregious misconduct,” in part

                                           -19-
because the credibility of the witness who was afflicted purportedly by ODD was “a

crucial issue, as there was no evidence to substantiate her allegations,” and that such

egregious misconduct was “presumptively prejudicial to either the State or [Wardlaw].”

Wardlaw, 185 Md. App. at 452, 971 A.2d at 338 (citing Jenkins, 375 Md. at 319, 825

A.2d at 1008; Butler v. State, 392 Md. 169, 189-91, 896 A.2d 359 (2006); Summers v.

State, 152 Md. App. 362, 375, 831 A.2d 1134 (2003)). The Court of Special Appeals

concluded that, because the trial judge did not voir dire the jury regarding the effect of

the juror’s research and statements on the deliberative process, “the presumption of

prejudice was not rebutted and the trial court denied the motion without exercising its

discretion.” Wardlaw, 185 Md. App. at 453-54, 971 A.2d at 339.

      On at least three occasions, Maryland’s appellate courts concluded that allegations

of juror or juror-related misconduct or mishaps were not sufficient to raise a presumption

of prejudice. In Bruce v. State, 351 Md. 387, 718 A.2d 1125 (1998), on which the State

relies here, we held the trial judge did not abuse his discretion when he declined to voir

dire the jury, prior to denying the defendant’s motion for a mistrial, regarding

information displayed on an electronic bulletin board in the courthouse showing that the

defendant had two other criminal cases pending simultaneously against him. 351 Md. at

396, 718 A.2d at 1129. In doing so, we upheld the trial judge’s finding that there was no

reasonable likelihood that the jurors saw or were prejudiced by the information on the

bulletin board, and determined that “[t]he trial judge in the instant case exercised the

discretion vested in him to deal with the ‘problem’ presented by the electronic bulletin

board.” Bruce, 351 Md. at 393, 718 A.2d at 1128.

                                          -20-
       In a quite recent case, the Court of Special Appeals determined that a juror’s note

stating “we have already looked it up,” which the court received minutes after a prior

note asking if the jurors could have a dictionary, was not the type of “excessive or

egregious misconduct” or “serious juror misconduct” that would give rise to a

presumption of prejudice. Colkley v. State, 204 Md. App. 593, 622-25, 42 A.3d 646,

663-64, cert. granted, 427 Md. 606, 50 A.3d 605, and cert. denied, 427 Md. 608, 50 A.3d

607, and cert. granted, 429 Md. 81, 54 A.3d 759 (2012), rev'd on other grounds sub

nom. Fields v. State, 432 Md. 650, 69 A.3d 1104 (2013). Rather, the intermediate

appellate court opined, although the jurors should not have looked up the word, “if a

mistake this relatively minor could precipitate a mistrial, the criminal justice system

would collapse.” 204 Md. App at 625, 42 A.2d at 664. 6

       We declined also to conclude that a presumption of prejudice applied in a case

quite similar factually to the present one. In Butler v. State, 392 Md. 169, 896 A.2d 359

(2006), the court received three notes from the jury. The first note, received at 8:30 PM,

after four-and-a-half hours of deliberations, stated that the jurors could not agree. Butler,

392 Md. at 174-75, 896 A.2d at 362-63. Defense counsel moved for a mistrial. The State

requested a modified Allen charge. Butler, 392 Md. at 175, 896 A.2d at 363. The trial

judge found that an Allen charge would be coercive at that point, and decided to recess

for the evening and have the jury return the following morning to resume deliberations.

Butler, 392 Md. at 175-76, 896 A.2d at 363. The next morning, the court received a note

6
  In Colkley, counsel for both defendants declined the trial judge’s offer to voir dire the
jurors. 204 Md. App at 624 & n.2, 42 A.2d at 664 & n.2.

                                            -21-
from the jury requesting to watch the videotape of closing arguments. Butler, 392 Md. at

176, 896 A.2d at 363. While the court was deciding whether to allow the jurors to watch

the tape, the jury sent out a third note, which stated, “We have one juror who does not

trust the police no matter the circumstance.” Id.

       Following argument from counsel for the parties, the court voiced its concern that

if the statement in the third note was true, it would mean that one of the jurors committed

perjury in his or her response to a voir dire question asked during the jury selection

process. The court stated, “I don’t believe that necessarily one juror would never trust

the police under any circumstances. I think that may just be an exhausted or frustrated

reaction.” 392 Md. at 177, 896 A.2d at 364 (emphasis in original). The court declined to

give an Allen charge, but agreed to allow the jurors to watch the videotape of closing

arguments. Id.

       The jurors were brought into the courtroom and the judge advised them he would

let them watch the videotape. In regard to their third note, the trial judge stated:

       The [third] note we’re essentially going to ignore. It says we have one
       juror who does not trust the police no matter the circumstance. Anybody
       who had felt that way should have said so in voir dire so a challenge could
       have occurred, and if anybody deliberates with that spirit now, I suggest
       they might be violating their oath.”

392 Md. at 178, 896 A.2d at 364. Counsel for both defendants objected, and moved for a

mistrial on the ground that the judge’s instruction was coercive. Butler, 392 Md. at 178-

79, 896 A.2d at 365. The court denied the motions, and the jurors resumed deliberations

after watching the videotape of closing arguments. Butler, 392 Md. at 179, 896 A.2d at



                                             -22-
365. The jury found Butler guilty on all counts and his co-defendant, Lowery, guilty on

the conspiracy counts. Id.

       We reversed the judgment of the Court of Special Appeals, which had affirmed the

judgment of the trial court. We held that the trial judge’s instruction regarding the

illegality of the one juror’s position of not trusting the police “was potentially coercive

and, as a result, [the defendants] may have been denied their constitutional right to a fair

trial.” 392 Md. at 192, 896 A.2d at 373. Prior to declaring our holding, however, we

touched upon the presumption of prejudice principle.         After noting Jenkins for the

proposition that voir dire is a way in which to assess juror bias or prejudice, we

concluded that “[t]he trial judge, however, is not required to conduct voir dire every time

there is an allegation that the jury is prejudiced.” See Butler, 392 Md. at 189-90, 896

A.2d at 371-72 (discussing Jenkins and Bruce).

       Turning to Nash’s case, 7 we decline his invitation to apply the presumption of

prejudice doctrine in his case. Although the alleged statement of the Subject Juror, if


       7
          Not included in our consideration of applicable case law (other than in passing)
are a few cases in which Maryland’s appellate courts mentioned the principle of the
presumption of prejudice in the context of juror misconduct, but did not apply it directly
or elaborate on its application. They are distinguishable significantly also on their facts.
See, e.g., Williams v. State, 394 Md. 98, 116, 904 A.2d 534, 545 (2006) (“Intentional
concealment of relevant facts or the giving of false answers by a juror during the voir dire
examination constitutes misconduct . . . and the occurrence of such misconduct raises a
rebuttable presumption of prejudice . . . . Prejudicial jury misconduct constitutes grounds
for a new trial.” (quoting People v. Blackwell, 236 Cal. Rptr. 803, 805 (Cal. Ct. App.
1987))); Wright v. State, 131 Md. App. 243, 256, 748 A.2d 1050, 1057 (2000) (“In
assessing the necessity of a new trial, the California Supreme Court stated the ‘well
settled’ rule that ‘such juror misconduct raises a presumption of prejudice that may be
rebutted by proof that no prejudice actually resulted.’ Finding no factor to rebut that
                                                                             (continued…)
                                           -23-
true, is troublesome on its face, it is different for two reasons, in our view, from the cases

in which we applied the presumption. First, we agree with the State’s argument that the

reputed statement of the Subject Juror constituted but the possibility of future

misconduct. Here—unlike in the cases considered so far in this opinion concerning juror

contact with witness, parties to the case, or third parties, and independent investigations

by jurors—the judge had the ability to prevent prejudice from occurring to Nash. In other

words, the actual misconduct would have been if the Subject Juror acted on his or her

stated desire of reaching a verdict merely to go home and not return, as opposed to

threatening to act in that fashion. The judges in the cases discussed here attempted to

cure any prejudice through voir dire questions, curative instructions, and efforts to obtain

assurances of the jurors’ abilities to reach impartial verdicts, but the misconduct had

taken place already in the form of juror contact with witnesses or third parties, or the

receipt and dissemination of outside evidence through independent investigations by

jurors.

          Nash relies on Wilson v. Morris, 317 Md. 284, 563 A.2d 392 (1989), superseded

by statute on other grounds, Maryland Rule 5-407, as recognized in Tuer v. McDonald,

347 Md. 507, 701 A.2d 1101 (1997), in an effort to “illustrate the flaw in the State’s

argument that the note in this case presented only the possibility of juror misconduct.”

The presumption of prejudice principle was not mentioned in Wilson, perhaps because it

(…continued)
presumption, the court reversed the defendant's conviction.” (citations omitted) (quoting
People v. Holloway, 790 P.2d 1327 (Cal. 1990), overruled on other grounds, People v.
Stansbury, 889 P.2d 588 (Cal. 1995))).

                                            -24-
was a personal injury case and, thus, did not address the constitutional rights of a criminal

defendant.   Nonetheless, Nash contends that it stands for the proposition that “an

allegation of patent juror bias” is all that is necessary to require a sua sponte voir dire by

the court in response.

       We are not persuaded by Nash’s comparison of Wilson to the facts of the present

case. Although we held that voir dire was necessary in Wilson, the “allegation of juror

bias” in that case occurred in the middle of trial when the plaintiff recognized one of the

sworn jurors as the person she had overheard saying, prior to jury selection, that “‘these

cases are costing too much money’ and need to be stopped.” See Wilson, 317 Md. at 302,

303, 563 A.2d at 400, 401. Therefore, the question in Wilson was whether a preexisting

“patent juror bias” should have precluded the particular juror from being empaneled in

that case. Id. Here, there is no evidence that the Subject Juror had a preexisting patent

bias. To the contrary, the Note asserts that the Subject Juror stated, at some point earlier

in the deliberations, a desire to find Nash not guilty, thus foreclosing the conclusion that

she had a preexisting bias against Nash prior to jury selection or the commencement of

deliberations. The trial judge’s assessment that the Subject Juror’s alleged statement was

the result of fatigue, as opposed to a patent bias, was reasonable given the circumstances.

       A second reason to decline to apply a presumption of prejudice in Nash’s case is

that, to the extent that the Subject Juror’s statement could be considered actual

misconduct, it does not fit within the type of “limited” circumstance in which the

presumption applies. Jenkins, 375 Md. at 319, 825 A.2d at 1028. A statement made by a

single juror, which did not concern the evidence or any of the witnesses, does not have

                                            -25-
the same likelihood of poisoning the well of deliberations as the type of juror contact

with witnesses, parties to the case, or third parties that took place in Remmer, Jenkins,

Eades, and Allen. See, e.g., Summers v. State, 152 Md. App. 362, 379, 831 A.2d 1134,

1143 (2003) (noting that an improper discussion between two jurors outside the presence

of the rest of the jury results in a “greatly diminished” concern of a tainted verdict when

compared to contact between a juror and a third party). Nor is such a statement likely to

have as harmful an effect on deliberations as the type of independent investigation and

resulting introduction of prejudicial “outside” evidence that occurred in Wardlaw. See

Dillard, 415 Md. at 469, 3 A.3d at 417 (Adkins, J., dissenting) (“[T]here is no possibility

that the jurors were influenced by some ex parte contact, or that their verdict was tainted

by some inappropriate outside information or opinion. This fact isolates the instant case

from Jenkins and [similar] cases . . . .”).

       It may be argued reasonably that the Subject Juror’s alleged statement is more

concerning than the misconduct occurring in Colkley and the potential for prejudice at

issue in Bruce, and is, perhaps, more troublesome than the statement at issue in Butler,

because the statement there prejudiced the State, which is not afforded the same

constitutional protections as a criminal defendant, like Nash. In our view, however, the

Subject Juror’s reputed statement in the present case does not constitute the type of

“excessive or egregious jury misconduct” that raises a presumption of prejudice. Jenkins,

375 Md. at 315, 825 A.2d at 1026. Because the presumption does not apply to the facts

of the present case, the burden of proof as to the mistrial motion did not shift from Nash,



                                              -26-
and, thus, the trial judge did not inherit the responsibility to conduct a voir dire sua

sponte (in the absence of a request for voir dire from either of the parties).

       To be clear, a voir dire of the jurors would not have been improper under the

present circumstances. We hold only that, to the extent voir dire could have been useful

in ferreting-out and resolving any potential prejudice, the burden was on Nash to request

it. 8 Because Nash failed to request voir dire at the time of his motion for a mistrial, the

trial judge did not abuse her discretion, on presumption of prejudice grounds, by

refraining from conducting voir dire sua sponte. 9

       B. Resolving Factual Issues

       We consider next Nash’s assertion that the trial judge did not have sufficient

information upon which to exercise her discretion and, therefore, abused her discretion by

8
  Nash argues additionally that it would be impossible for him to prove prejudice in light
of the longstanding rule against impeaching a verdict once rendered. See Black v. State,
426 Md. 328, 343-44, 44 A.3d 362 (2012) (citing Stokes v. State, 379 Md. 618, 637, 843
A.2d 64, 75 (2004); Williams v. State, 204 Md. 55, 70, 102 A.2d 714, 721 (1954)). His
argument misses the point—the burden of proving prejudice from the Note belonged to
Nash before the verdict was rendered. That prejudice, if any, could have been sorted-out
or cured potentially through voir dire, had Nash requested it. The trial judge’s duty to
conduct voir dire sua sponte arises only where the presumption of prejudice applies (or,
as discussed infra in the following section of this opinion, where factual issues must be
resolved).
9
 We linger briefly to address one additional argument posed by Nash. He contends that
“even if this Court does not presume prejudice and applies a harmless error analysis to
this case, it would be impossible based on the lack of inquiry to demonstrate beyond a
reasonable doubt that the failure to conduct a voir dire in response to the note in no way
influenced the guilty verdict.” Nash’s argument is misplaced. Harmless error analysis
only applies, as its name suggests, when we conclude first that an error occurred. Here,
because we hold that the trial judge did not abuse her discretion, we find no error in her
actions, and, thus, harmless error analysis in inapplicable.


                                             -27-
failing to conduct voir dire sua sponte to obtain necessary information from the jurors

before denying Nash’s mistrial motion. We begin with a review of the two cases upon

which Nash bases this assertion.

       The seminal case upon which Nash relies is Dillard v. State, 415 Md. 445, 3 A.3d

403 (2010). The question of juror misconduct arose in that case when, during a lunch

break while the trial was in progress, two jurors passed in a courthouse hallway two of

the State’s primary witnesses, both law enforcement officers who had testified, patted one

of them on the back, and said, “Good job.” Dillard, 415 Md. at 451, 3 A.3d at 406. The

officers did not respond.    Rather, they notified the prosecutor of the incident, who

notified the court and defense counsel. Id. At Dillard’s request, the trial judge brought in

the jurors so that the officers could identify which jurors approached them, but the judge

did not voir dire the jurors (nor did Dillard or his counsel request voir dire). Dillard, 415

Md. at 452, 3 A.3d at 407. The trial judge denied defense counsel’s motion for a mistrial

and his request to replace one of the offending jurors with the remaining alternate juror.

Id. Ultimately, the jury convicted Dillard of three of the six offenses with which he was

charged. Id.

       Dillard appealed to the Court of Special Appeals, which affirmed the judgment of

the circuit court. The intermediate appellate court concluded that: the jurors did not

commit misconduct because they did not violate any of the trial court’s instructions; the

actions of the jurors were not egregious enough to raise a presumption of prejudice; it

was not improper for the jurors to reach tentative opinions about Dillard’s guilt or

innocence; their comments did not demonstrate bias; and, it could be presumed that the

                                            -28-
jurors followed the trial judge’s subsequent instructions regarding the State’s burden of

proof and the presumption of innocence. Dillard, 415 Md. at 453, 3 A.3d at 407-08.

       On certiorari review, we reversed the judgment of the Court of Special Appeals.

We explained first that “private communications” between a juror and a third party are

“‘deemed presumptively prejudicial’” when they constitute “‘excessive and egregious’”

juror misconduct, and that, where the presumption of prejudice applies, “the burden of

proof shifts to the State, which may overcome the presumption by showing that the

contact was harmless.” Dillard, 415 Md. at 455-56, 3 A.3d at 409 (citing Remmer, 347

U.S. at 229, 74 S. Ct. at 451, 98 L. Ed. at 656; Jenkins, 375 Md. at 340-41, 825 A.2d at

1041). We could not “determine from the record whether the contact between the jurors

and Detective Smith was sufficiently egregious to create a presumption of prejudice to

Dillard.” Thus, we concluded that the trial court abused its discretion by denying the

mistrial motion without conducting voir dire to investigate factual issues arising from the

juror-witness contact. We explained the problem with the trial judge’s failure to resolve

the factual issues:

       The contact was particularly troubling for several reasons. First, Detective
       Smith was a key witness for the State. Contact between a juror and a key
       witness is more likely to be prejudicial than contact between a juror and an
       uninterested party. Second, the jurors specifically sought out the witness to
       make a comment about his testimony, as opposed to “mere casual contact,”
       like saying “hello” or exchanging passing pleasantries. Further, the contact
       was not, on its face, an “instinctive human reaction” or a mere passing
       observation arising out of some detail of the testimony, as asserted by the
       Court of Special Appeals, but rather was a comment about the content of
       the witness's testimony that may be related to the question of guilt or
       innocence. Third, the contact is evidence that the jurors may have formed
       an opinion as to Dillard's guilt before Dillard presented his case. “If a juror
       has formed a fixed opinion on a defendant's guilt prior to deliberations, the

                                            -29-
       juror may stand by the opinion even if contradicted by subsequent
       evidence. A juror may also form premature conclusions without the benefit
       of final arguments, instructions of law, and jury deliberations.” Finally, the
       fact that two jurors independently made the same comment about Detective
       Smith's testimony suggested that the jurors may have discussed the case or
       engaged in premature deliberation about the question of Dillard's guilt or
       innocence, or Detective Smith's credibility, prior to the completion of
       testimony. Because the content of the contact raised these potential factual
       issues, it was incumbent upon the trial judge to resolve the factual
       controversy that relates to the jurors' ability to render an impartial verdict.

Dillard, 415 Md. at 458, 3 A.3d at 410-11 (internal citations omitted).

       Nash relies also on Johnson v. State, 423 Md. 137, 31 A.2d 239 (2011). Johnson

involved juror access to factual information not presented during the trial.         During

deliberations, the trial judge received a note stating the following: “One of the jurors

turned on the cell phone (using their own battery) and found a call was placed to

[Defendant] at 3:08 AM. What should we do with this information disguard [sic] it?”

Johnson, 423 Md. at 144, 31 A.2d at 243. The note referred to at least one of two cell

phones that were admitted into evidence, presumably without batteries or with dead ones,

and followed an earlier note in which the jurors inquired as to whether there was any

evidence to corroborate a key witness’s testimony that he received a call from the

defendant at 3:08 AM on the morning of the crime in question. Johnson, 423 Md. at 143-

44, 31 A.2d at 243.

       The trial judge replied to the initial note by instructing the jurors that they had

received all of the evidence and needed to rely on their memories of the evidence

presented. Johnson, 423 Md. at 144, 31 A.2d at 243. The judge advised the parties and

their counsel of the note indicating that a juror used the battery from his cell phone to


                                            -30-
conduct an investigation into the evidence.       Defense counsel moved for a mistrial.

Johnson, 423 Md. at 145, 31 A.2d at 244. Rather than granting the mistrial motion, the

judge elected to admonish the jury for violating his earlier instruction, reminded them to

base their deliberations only on evidence presented during the trial, and instructed them

to strike from their memories any additional evidence that was revealed by the use of the

cell phone and any related discussion that may have occurred during their deliberations.

Johnson, 423 Md. at 145-46, 31 A.2d at 244. Following that instruction, the judge asked

the jurors, “Now is there anyone who is unable to comply with that instruction during

deliberation? Raise your hand.” None of the jurors responded. Johnson, 423 Md. at

146, 31 A.2d at 244. Four and a half hours later, the jury returned a verdict of “guilty” on

four charges and “not guilty” on several other charges. Johnson, 423 Md. at 146, 31

A.2d at 245. The judge denied the defendant’s motion for a new trial based on the jury

conduct involving the cell phone. Johnson, 423 Md. at 147, 31 A.2d at 245.

       On direct appeal, the Court of Special Appeals, in an unreported opinion, affirmed

the judgment of the circuit court. The intermediate appellate court determined that: the

juror’s conduct did not rise to the level of conducting outside independent research; the

jurors informed immediately the court; the evidence discovered was not in contradiction

to testimony elicited during trial; and, following the judge’s instructions and polling of

the jury, the judge could observe the demeanor of the jurors and the impact on them of

his curative instructions. Id. Accordingly, the appellate court was “unable to conclude

that the juror’s action in placing a battery into the cell phone amounted to egregious

misconduct.” Id.

                                           -31-
       On certiorari review, we reversed the judgment of the Court of Special Appeals.

We declined to resolve the dispute between the parties regarding whether the conduct

was sufficient to raise a presumption of prejudice. Johnson, 423 Md. at 151, 31 A.2d at

247. Instead, relying primarily on Dillard, we held that the trial judge’s response “fell

short of what was necessary before the court could have properly exercised its discretion

to deny the requested mistrial,” because the judge failed to conduct voir dire to resolve

factual questions, such as “the identity of the investigating juror who obtained the

information from the cell phone, who among the remaining jurors was aware of what the

juror had learned, or the degree to which the extrinsic and highly prejudicial information

[affected] some or all of the jurors.” Johnson, 423 Md. at 154, 31 A.2d at 249.

       Under the holdings of Dillard and Johnson, when a party moves for a mistrial

following an allegation of juror misconduct, but does not request voir dire of the jury, a

trial judge must conduct voir dire sua sponte if he or she lacks sufficient information

regarding the juror’s conduct from which to determine (1) whether a presumption of

prejudice attaches, or, (2) whether a mistrial motion should be denied. In the present

case, the only unresolved factual issues appear to be the identity of the Subject Juror,

whether she said what the Note reported, and the number of other jurors who heard the

Subject Juror’s statement, if any. As discussed supra, a presumption of prejudice is not

applicable to the facts of the present case, and determining the above unresolved facts

would have had little or no material bearing on our conclusion as to application of the

presumption. The question, then, is whether the trial judge lacked sufficient information

upon which to exercise her discretion in ruling on Nash’s motion for a mistrial.

                                           -32-
       We conclude that the trial judge had sufficient information before her to rule on

the mistrial motion. She was not faced with the type of alarming factual issues arising

from juror-witness contact that went unresolved in Dillard—i.e., what precipitated the

contact between jurors and the witness, whether any of the jurors formed an opinion as to

Dillard’s guilt before he presented his case, and whether two or more jurors engaged

inappropriately in discussions or conducted premature deliberation regarding Dillard’s

guilt or the credibility of the witness with whom the inappropriate contact was made.

       Moreover, unlike in Johnson, the Subject Juror’s alleged statement did not

concern the introduction into deliberations of extrinsic “information . . . of central

importance to what the jury ultimately had to decide.” Johnson, 423 Md. at 153, 31 A.3d

at 249. Nash argues that the Subject Juror’s reputed statement concerned the issue of his

guilt, and was, thus, of central importance to what the jury had to decide ultimately. His

argument is misplaced. The information at issue in Johnson consisted of evidence not

presented at trial that bore directly on the credibility of a key witness for the State. By

contrast, the Subject Juror’s supposed statement in the present case did not add to or

otherwise affect the universe of evidence upon which the jury as a whole was to base its

deliberation. Thus, the trial judge in Nash’s case did not have essential factual issues to

resolve before ruling on the mistrial motion.

       Accordingly, we hold that the trial judge had sufficient facts upon which to base

her ruling on the mistrial motion, and, thus, she did not abuse her discretion, on grounds

of insufficient factual information, by denying the motion without first conducting voir

dire sua sponte.

                                           -33-
       C. Obtaining Assurance of a Fair and Impartial Verdict

       We turn now to Nash’s third challenge regarding the trial judge’s denial of his

mistrial motion—whether she abused her discretion by denying his motion without first

“ask[ing] for or receiv[ing] any assurance that the jury’s verdict would be fair, impartial,

and based on the evidence after a clear indication to the contrary.”

       We think the range of discretion allotted to the trial judge in ensuring fairness and

impartiality is greater than with respect to Nash’s arguments based on presumption of

prejudice and the alleged failure to resolve factual questions. Where a presumption of

prejudice applies, garnering evidence through voir dire to rebut the prejudice is likely the

“only method” at a trial judge’s disposal to ensure a fair and impartial verdict. Wardlaw,

185 Md. App. at 453, 971 A.2d at 339. Thus, a trial judge’s failure to conduct voir dire

in such an instance likely will be an abuse of discretion. Similarly, where there are

essential factual questions that must be answered before a judge has a sufficient quantum

of information on which to base the exercise of her discretion, voir dire of the jurors is

likely the only way that the judge may obtain access to the additional information he or

she needs, and, thus, a failure to voir dire in those circumstances constitutes necessarily

an abuse of discretion. As to the need to ensure fairness and impartiality, viewed in light

of the particular facts of the present case, there was more than one avenue available to the

trial judge before confronting the decision what to do with Nash’s mistrial motion. See,

e.g., Johnson, 423 Md. at 149, 31 A.3d at 246 (“[D]epending upon the nature, scope, and

timing of [alleged] misconduct, the judge may have one or more reasonable means of

curing possible prejudice to the defendant.”).

                                            -34-
      Where there exists more than one reasonable course a trial judge may take with

respect to a discretionary decision, our job is not to weigh merely whether one option is

better than the other. Nor is it to determine whether the trial judge’s chosen course was

the one we would have taken in his or her position. Alexis, ___ Md. ___ (slip op. at 19)

(citing North, 102 Md. App. at 14, 648 A.2d at 1032). Our task, as discussed supra, is to

determine whether the route the trial judge traveled “does not logically follow from the

findings upon which it supposedly rests or has no reasonable relationship to its

announced objective,” and, thus, constituted an abuse of discretion. Alexis, ___ Md. ___

(slip op. at 20) (quoting North, 102 Md. App. at 14, 648 A.2d at 1032). In doing so, we

must remember the trial judge’s unique role and distinct advantage in evaluating

questions of prejudice to a criminal defendant:

      The [trial] judge is physically on the scene, able to observe matters not
      usually reflected in a cold record. The judge is able to ascertain the
      demeanor of witnesses and to note the reaction of the jurors and counsel to
      inadmissible matters. That is to say, the judge has his finger on the pulse of
      the trial.

State v. Hawkins, 326 Md. 270, 278, 604 A.2d 489, 493 (1992). That observation applies

equally to the trial judge’s ability to ascertain the demeanor of jurors with regard to

allegations of juror misconduct.

      In light of the nature of our task, our understanding that the trial judge was the one

with her “finger on the pulse of the trial,” and the timing of the court’s receipt of the

Note, we cannot conclude that the trial judge’s choice to respond to the Note by sending

the jurors home and providing a curative instruction, instead of directly “ask[ing] for or

receiv[ing]” an assurance of impartiality from the jurors, was an abuse of discretion.

                                           -35-
Indeed, her conclusion that the reported comment of the Subject Juror in the Note was

likely a product of fatigue and her decision to send the jurors home for the long weekend

was not only within the range of what is “minimally acceptable” under the

circumstances, Alexis, ___ Md. ___ (slip. op. at 19-20) (quoting Gray, 388 Md. at 383,

879 A.2d at 1064), it was on point with what we suggested was an appropriate response

to very similar circumstances in Butler.       In that case, after declining to apply a

presumption of prejudice to the note stating that a particular juror “does not trust the

police no matter the circumstance,” we stated the following:

       In the case sub judice, we agree with the trial judge's assessment that the
       note “may just be an exhausted and frustrated reaction.” As a result, his
       decision to allow the jury to continue deliberations may have been proper
       had he refrained from admonishing the juror.[10]

Butler v. State, 392 Md. at 190, 896 A.2d at 372.

       If it was reasonable for the trial judge in Butler to deduce, from a note concerning

a juror’s lack of trust in law enforcement, that the jury was exhausted and frustrated and

for that judge to allow the jury to continue deliberating without conducting voir dire, or

otherwise asking for or receiving a direct assurance of impartiality, we cannot say that the

trial judge in the present case abused her discretion.      The Subject Juror’s reported

statement indicated that, on a Friday evening before a three-day weekend, after four days

of trial, she wanted to go home. That statement is even more susceptible to interpretation


10
  The admonishment at issue, where the judge warned that a juror may be violating his
oath, raised a question of coercion in that case. See Butler, 392 Md. at 181, 896 A.2d at
366. There is no coercion argument in the present appeal.


                                           -36-
as being the result of fatigue and frustration, as the trial judge in the present case inferred,

than the statement at issue in Butler, particularly in light of the fact that the note in Butler

came from the jury in the morning, after they had been sent home the night before to take

a rest from their deliberations. See Butler, 392 Md. at 175-76, 896 A.2d at 363. Thus,

we cannot say here that it was grossly unreasonable for the trial judge to respond to the

Note by allowing the jurors to go home for the long holiday weekend, with an additional

instruction reminding them of their duties, before returning to continue their deliberations

the following Tuesday. 11

       In reaching our conclusion as to the course of action chosen by the trial judge with

regard to acting on Nash’s mistrial motion, we decline to consider the events of Tuesday

morning, when the jurors resumed their deliberations and reached a verdict of guilt in

approximately one hour. In the State’s effort to convince us of the legitimacy of the

jury’s verdict, it notes that: the jurors all returned on Tuesday morning; the foreperson,

who signed the Note, expressed no further concern; and, none of the jurors voiced

concern about the verdict during the polling process. Conversely, Nash argues that: we

cannot require a foreperson or other juror to voice a concern repeatedly; the polling

process consisted of an opportunity to answer a particular question—“Is your foreman’s


11
   We are not persuaded by Nash’s additional contention, raised at oral argument, that the
trial judge could not have ascertained that the Subject Juror’s statement was a result of
fatigue without identifying (through voir dire), and assessing the demeanor of, the
particular juror who made the statement. No juror identification was made in Butler. In
our view, it is reasonable for a trial judge to sense fatigue, frustration, or restlessness
emanating from a jury as a group, particularly in light of the timing of the court’s receipt
of the Note in the present case.

                                             -37-
verdict your verdict?”—not a general opportunity to speak; and, the speed with which the

jurors returned their verdict on Tuesday morning is evidence that the Subject Juror ended

promptly her jury service, in the fashion her earlier statement suggested.

       On this record, we do not know, and are not permitted to speculate about, what

happened in the jury deliberation room on that Tuesday morning. We may not postulate,

as the State seems to suggest, that the presence of all of the jurors on Tuesday morning

and the lack of any additional notes or expressions of uncertainty from them indicates

conclusively that all of the jurors followed the court’s instructions. But, by the same

token, we may not divine, as Nash seems to invite, that the relatively brief period of

deliberation on Tuesday morning or the use of the words “and not return” in the Note

following the statement that the Subject Juror wanted to “go home” indicate that the

weekend break was not sufficient to prevent prejudice to Nash.

       The information concerning the events of that Tuesday morning to which we are

privy do not matter for the purposes of the standard of review by which we must measure

the trial judge’s denial of Nash’s mistrial motion. The determination of whether she

abused her discretion requires us to look only at whether her decision was within the

realm of rationality at the time that she made it—the preceding Friday evening. As we

discussed above, particularly in light of our analysis in Butler, we cannot say that the trial

judge’s actions on that Friday evening were so irrational.

       Accordingly, we hold that the trial judge did not abuse her discretion in denying

the mistrial motion. Even in light of a criminal defendant’s constitutional rights, we

cannot conclude that “a fair and impartial jury could not be had under the circumstances,”

                                            -38-
or that the trial court’s handling of Nash’s mistrial motion resulted in “palpable

injustice.” Rent-a-car Co. v. Globe & Rutgers Fire Ins. Co., 163 Md. 401, 408-09, 163 A.

702, 705 (1933). In the words of Justice Oliver Wendell Holmes, Jr., during his tenure

on the Supreme Judicial Court of Massachusetts, “‘The presiding ju[dge] was the best

judge whether [the juror’s conduct] did any harm in this particular case. If [s]he had

given the defendant a new trial h[er] decision would not have been open to criticism, and

we cannot say that [s]he was wrong in refusing one.’” Rent-a-car Co., 163 Md. at 409,

163 A. at 705 (quoting Commonwealth v. Poisson, 32 N.E. 906, 907 (Mass. 1893)).

II. The Trial Judge Did Not Abuse Her Discretion in Refusing to Give a Modified
Allen Instruction

       Like the decision whether to grant or deny a mistrial motion, a trial judge’s

decision whether to give a modified Allen charge is subject to review by this Court for an

abuse of discretion. See Kelly v. State, 270 Md. 139, 144, 310 A.2d 538, 542 (1973).

       The term “Allen instruction” is a legal eponym derived from a United States

Supreme Court opinion “approv[ing] the use of an instruction in which the jury was

specifically asked to conciliate their differences and reach a verdict.” Kelly v. State, 270

Md. 139, 140 n.1, 310 A.2d 538, 540 n.1 (1973) (citing Allen v. United States, 164 U.S.

492, 17 S. Ct. 154, 41 L. Ed. 528 (1896)).

       Due to concerns about coercion of jurors, “we have disapproved the giving of an

original Allen charge, and have instead approved an instruction that closely follows the

language of [ABA] Standard 15–4.4 (formerly Standard 5.4) of the Standards for

Criminal Justice (1978, 1986 Supp.), provided there is no deviation in substance from the


                                             -39-
language of that standard.” Graham v. State, 325 Md. 398, 409, 601 A.2d 131, 136

(1992) (citing Goodmuth v. State, 302 Md. 613, 622-23, 490 A.2d 682 (1985); Burnette v.

State, 280 Md. 88, 96, 371 A.2d 663 (1977); Kelly v. State, 270 Md. 139, 144, 310 A.2d

538 (1973)). We noted in Graham that Maryland Criminal Pattern Jury Instruction

(MCPJI) 2:01, which is now commonly referred to as a “modified Allen” instruction or

“Allen-type” instruction, conforms to the ABA Standard. Id. MCJPI 2:01, titled “Jury’s

Duty to Deliberate,” reads:

       The verdict must be the considered judgment of each of you. In order to
       reach a verdict, all of you must agree. In other words, your verdict must be
       unanimous. You must consult with one another and deliberate with a view
       to reaching an agreement, if you can do so without violence to your
       individual judgment. Each of you must decide the case for yourself, but do
       so only after an impartial consideration of the evidence with your fellow
       jurors. During deliberations, do not hesitate to reexamine your own views.
       You should change your opinion if convinced you are wrong, but do not
       surrender your honest belief as to the weight or effect of the evidence only
       because of the opinion of your fellow jurors or for the mere purpose of
       reaching a verdict.

       Nash fixes on the final clause of the instruction, which, he argues, “specifically

addresses the issue raised in the jury’s note” here. He concedes that the modified Allen

charge is given typically “in deadlock situations and the jury here did not indicate they

were deadlocked,” but he contends nonetheless that proper use of the instruction is not

confined to deadlock situations.     According to Nash, the trial judge “conducted an

improper analysis by considering only deadlock situations” before denying his request for

use of the instruction, in which she relied on factors applicable only to deadlocks, such as

the length of deliberations leading up to the proposal to use the instruction.



                                            -40-
       The intermediate appellate court compounded the trial judge’s error, according to

Nash, when it relied in its opinion here on this Court’s opinion in Kelly v. State, 270 Md.

139, 310 A.2d 538 (1973), in stating that, “for the modified Allen charge to be

appropriate, a deadlock must exist,” and concluding that a modified Allen charge “would

not have been proper because there was no indication that the jury was deadlocked.”

According to Nash, Kelly does not suggest that an Allen charge may be given only in

deadlock situations and, to the contrary, condones the use of an Allen charge in other

circumstances. Nash notes that we have condoned the use of a modified Allen charge

before deliberations begin, and concludes that the trial court and intermediate appellate

court “failed to assess the effectiveness that the requested instruction may have had in

addressing the concern raised in the note.”

       We can find no merit in Nash’s argument. We have long held “that the decisions

as to whether the ABA recommended Allen-type charge should be used and ‘when to

employ it ... are best left to the sound discretion of the trial judge.’” Mayfield v. State, 302

Md. 624, 630, 490 A.2d 687, 691 (1985) (quoting Kelly 270 Md. at 143, 310 A.2d at

538). Furthermore, a trial judge’s exercise of that discretion in electing “to have the jury

continue deliberating, with or without an ABA approved Allen-type charge, or

whether to declare a mistrial, . . . . will furnish a ground for reversal only when the

appellant demonstrates an abuse of discretion because of circumstances in a particular

case.” Id. at 632, 490 A.2d at 691-92 (emphasis added).

       Nash’s contentions, which rest on shaky premises, fall well short of demonstrating

an abuse of discretion with regard to the trial judge’s refusal to give the modified Allen

                                              -41-
charge in the present case. As a threshold matter, despite Nash’s appellate posture that

the key to his request for the pattern instruction was the last clause, which he claims

“addresses the issue raised in the jury’s note,” and faults the trial judge for not

considering that, he did not refer to that clause in his actual request to the trial judge. To

the contrary, the context in which counsel posed the request—“And since the Court won’t

be here Tuesday morning, I think that the Court maybe at this time should give them the

Allen Charge”—is suggestive of concerns about a perceived, or potential for, deadlock.

       Additionally, we are not persuaded by Nash’s criticism of the intermediate

appellate court’s statement that for the modified Allen charge to be applicable “a

deadlock must exist.” Although Nash is correct that, in Kelly, we condoned the use of the

modified Allen charge in at least one other context than a deadlock—specifically, prior to

the commencement of deliberations—that is the only other context in which we have

approved expressly the use of the modified Allen charge. See Butler, 392 Md. at 185, 896

A.2d at 369 (“Originally, the Allen-type charge was given when the jury communicated

to the trial judge that they were deadlocked. Eventually, however, the Court allowed the

use of an Allen-type instruction to the jury before deliberations commenced, in addition

to the use of the Allen-type instruction under some circumstances if the jury appeared

deadlocked.” (citing Thompson v. State, 371 Md. 473, 810 A.2d 435 (2002); Goodmuth v.

State, 302 Md. 613, 490 A.2d 682 (1985); Mayfield, 302 Md. 624, 490 A.2d 687 (1985);

Burnette v. State, 280 Md. 88, 371 A.2d 663 (1977); Kelly, 270 Md. 139, 310 A.2d 538;

Leupen v. Lackey, 248 Md. 19, 234 A.2d 573 (1967))).



                                            -42-
       Here, Nash concedes that he requested the modified Allen charge after

deliberations commenced, but before a deadlock was apparent.           Nash’s logic, that

because this Court allowed previously the use of the modified Allen charge in one context

other than a deadlock, we should fault the trial court and intermediate appellate court for

not applying the charge in yet another context, is faulty.

       We need not decide whether the trial judge could have given the instruction in this

case. The question before us is whether the decision of the trial judge, vested with a wide

breadth of discretion in choosing whether to give a modified Allen charge, to refuse to

give the instruction in the present case was “‘well removed from any center mark

imagined by the reviewing court and beyond the fringe of what that court deems

minimally acceptable.’” See Alexis, ___ Md. ___ (slip. op. at 19-20) (quoting Gray, 388

Md. at 383, 879 A.2d at 1064). Given the facts of the present case and this Court’s prior

Allen charge jurisprudence, Nash has not presented us with a sufficient basis from which

to conclude that the trial court’s decision was so lacking. Accordingly, we hold that the

trial judge did not abuse her discretion in refusing Nash’s request to give the modified

Allen charge.

III. The Trial Judge Did Not Violate Maryland Rule 4-326(d)

       We reach now Nash’s final argument, that the trial judge’s decision to recess for

the day on Friday violated Maryland Rule 4-326(d) and was an “unsuitable response” to

the Note. We address first the portion of Nash’s argument concerning the plain meaning

of the language of Rule 4-326(d). The first sentence of subsection (d), which is the only

part of the Rule relevant to Nash’s argument, reads: “The court shall notify the defendant

                                            -43-
and the State’s Attorney of the receipt of any communication from the jury pertaining to

the action as promptly as practicable and in any event before responding to the

communication.” Md. Rule 4-326(d) (emphasis added). Nash imagines that the words

“before responding” in the Rule presuppose a response to a note “pertaining to the

action.” Because, Nash contends, the Note in the present case pertained to the action

within the meaning of the Rule, a response was required, and the trial judge’s actions

following receipt of the Note did not constitute a response as contemplated by the Rule.

He asserts that recessing without addressing directly “the issue raised in the note” does

not fit within the plain meaning of the regulatory use of the word “responding.” Nash

offers the Merriam-Webster Dictionary definition of the word “respond,” which includes

“to say something in return: make an answer,” and argues that the trial judge did not

“make an answer” to the foreman’s concern expressed in the Note.

       We reject Nash’s plain language argument. Even assuming, for present purposes,

that the Note “pertain[s] to the action,” and that a response was required, we think the

trial judge’s actions are not violative of the plain language of the Rule. The first thing

the judge did when the jury was brought back to the court room was to advise the jurors

that she and counsel were aware of the Note. Next, she stated “what I’m going to do at

this time is to excuse you for today, but you’re going to have to return on Tuesday to

continue your deliberations,” before she gave additional instructions—which Nash seems

to ignore—that, in pertinent part, address implicitly the issue raised in the Note, “As I’ve

instructed you, your decision must be based upon what has been presented here during

the course of the trial. I expect that you will comply with my instructions. It’s the only

                                           -44-
way this process works.” 12 In our view, her statements did “say something in return” to

the Note, and thus constituted a response within the meaning of the Rule’s language.

       Nor are we persuaded, that, to the extent that the judge’s actions constituted a

response, it was an unsuitable one under the Rule. We agree with the State that here,

unlike in State v. Baby, 404 Md. 220, 946 A.2d 463 (2008), and similar cases on which

Nash relies, 13 the Note did not pose a question from the jury regarding applicable law that

required specific clarification. See Baby, 404 Md. at 263, 946 A.2d at 488 (requiring that

the trial judge respond to [a jury’s] questions in a manner that directly addressed the

difficulty,” where the “questions made explicit [the jury’s] difficulty with an issue central

to the case”). Rather, the Note posed a concern of one member of the jury about another

juror’s purported statement, which the trial judge addressed by recessing for the long

12
   Although, as Nash argues, the trial judge never gave an instruction mentioning
explicitly that the jurors should not change their position merely to reach a verdict, the
judge did give the following instruction before closing arguments:

       Your verdict must represent the considered judgment of each juror and
       must be unanimous. In other words, all 12 of you must agree. You must
       consider and decide this case fairly and impartially. You are to perform
       this duty without bias, or prejudice, as to any party. You should not be
       swayed by sympathy, prejudice, or public opinion. In making your
       decision you must consider the evidence in this case.

That instruction, combined with the additional instructions provided immediately before
recessing for the holiday weekend, was, in our view, sufficient to apprise the jurors of
their duty to deliberate fairly and impartially. “Jurors generally are presumed to follow
the court's instructions, including curative instructions.” Dillard, 415 Md. at 465, 3 A.3d
at 415 (quoting Ezenwa, 82 Md. App. at 518, 572 A.2d at 1115).
13
   Nash also relies on Lovell v. State, 347 Md. 623, 702 A.2d 261 (1997), and Price v.
Glosson Motor Lines, Inc., 509 F.2d 1033, 1037 (4th Cir.1975), both of which are
discussed in Baby.

                                            -45-
weekend, based on her interpretation that the Subject Juror’s assumed statement was the

result of exhaustion or frustration, as opposed to confusion about the applicable law or

the rules regarding how the jurors were required to discharge their duties. As discussed

supra in Section I.C., we approved implicitly the same conclusion in Butler with regard

to facts that were arguably less indicative of fatigue or frustration than the facts of the

present case. Thus, we hold that the trial judge’s decision to recess for the day, with the

original and additional instructions she provided, did not constitute a violation of Md.

Rule 4-326(d).



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




                                           -46-
Circuit Court for Prince George’s County
Case No. CT 09-1808X
Argued: March 6, 2014
                                             IN THE COURT OF APPEALS
                                                    OF MARYLAND

                                                          No. 60

                                                  September Term, 2013


                                                TROY SHERMAN NASH

                                                             v.

                                                STATE OF MARYLAND


                                                          Barbera, C.J.
                                                          Harrell
                                                          Battaglia
                                                          Greene
                                                          Adkins
                                                          McDonald
                                                          Watts,

                                                                   JJ.


                                           Dissenting opinion by McDonald, J.,
                                           which Battaglia and Adkins, JJ., join,
                                                    dissenting in part.


                                                   Filed: June 20, 2014
       On behalf of the majority, Judge Harrell has done his usual thorough and thoughtful

review of the case law in this area. However, I cannot agree with the Majority’s conclusion

that the trial judge need not have conducted any further inquiry in this case.

       Here the trial judge received a note from the jury foreman reporting that a juror, who

earlier in the deliberations had expressed a belief that the defendant was not guilty, had more

recently stated an intention to change her vote for the sole purpose of going home sooner.

While the Majority concedes that this note was “troublesome on its face,” it ultimately

concludes that the note did not raise “the type of alarming factual issues” as two prior cases

in which this Court held that it was an abuse of discretion for a trial court to deny a defense

motion for a mistrial without conducting further investigation. Majority slip op. at 24, 33.

       But what could be more alarming than that a juror, believing that a defendant is

innocent, votes “guilty” simply in order to go home? Such misconduct would strike at the

heart of the jury’s function. Neither of the two cases that the Majority distinguishes involved

conduct so central to the decision-making process. Yet this Court held that further inquiry

was mandatory in both instances.1


       1
        In Dillard v. State, 415 Md. 445, 451, 3 A.3d 403 (2010), during a chance encounter
between two jurors and two law enforcement officers who had testified at the trial, the jurors
patted one of the officers on the back and said “good job.” This Court held that, without
further inquiry by the trial court, it was impossible to determine whether that contact was
“sufficiently egregious” to create presumption of prejudice, and ordered a new trial. In
Johnson v. State, 423 Md. 137, 31 A.2d 239 (2011), a juror was able, during deliberations,
to turn on a cell phone that had been introduced into evidence and found that the phone
corroborated a witness’ testimony about the timing of a call made from that phone. The trial
court instructed the jury that they should rely solely on evidence admitted during the trial and
should ignore any information from the cell phone; it further ascertained that the jurors
                                                                                 (continued...)
       Perhaps the foreman misunderstood the juror. Perhaps the juror did not mean what

she said, and in fact had not abandoned her oath to decide the case based on the evidence.

Perhaps the trial judge’s instinct that the note was a product of juror fatigue after a long day

was correct. Had the judge conducted an inquiry, I would have accorded great deference to

whatever conclusion she reached. But she did not do so. And so the trial judge had little

more information than we do on which to assess whether there was juror misconduct or not.

       Although the trial judge did not respond directly to the question posed by the foreman,

hopefully the juror who allegedly made the statement – and whichever jurors heard her –

understood that they were to base their verdict on the law and the evidence. However, the

quick return of the jury verdict on Tuesday would be perfectly consistent with a juror voting

“guilty” just to go home and a foreman who may have surmised, from the court’s inaction,

that such a statement was of no moment.

       We like to think that our juries approach their task like the one in Twelve Angry Men

ultimately did – where an earnest examination of the evidence prevails over the desire for an

early exit from a civic obligation, overcomes whatever prejudices and predispositions we

individually bring to the jury room, and enables a jury to work toward a consensus that is a




       1
       (...continued)
intended to follow that instruction. Nevertheless, this Court later reversed the defendant’s
conviction on the ground that the trial court should have conducted further investigation into
circumstances of the juror’s examination of the cell phone. In neither Dillard nor Johnson
was there an allegation that a juror had expressed an intention to violate the juror’s oath.

                                               2
just result.2 Perhaps that is how this jury worked, and I hope that is true. But, in my view,

when a jury foreman reports that one of the jurors is ready to concede his or her vote for

reasons unrelated to the evidence or the law, a trial judge should do more than simply hope

that it is not true.

        Judge Battaglia and Judge Adkins join this opinion.




        2
        In the film Twelve Angry Men (Orion-Nova Productions 1957, screenplay by
Reginald Rose), a jury in a murder case takes a preliminary vote upon entering the jury room
and finds itself to be 11-1 in favor of conviction. Through questioning by the lone hold-out,
and the jurors’ prodding of one another that exposes their individual aspirations and
predispositions, they eventually reach a consensus that the prosecution had not proven its
case beyond a reasonable doubt. See Ellsworth, One Inspiring Jury, 101 Mich. L. Rev. 1387
(2003). Ironically, it has been noted that at least one aspect of the deliberation portrayed in
the film might itself constitute juror misconduct. Id. at 1399 n.4.

                                              3
