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Lovell v. State11/12/1997
(1986), referred to by the trial court in considering the response to the jury's question in the instant matter, dealt with a defendant who was seventeen years and ten months at the time of the murder. Id. at 522, 495 A.2d at 19. Based upon the aforementioned cases we held that the trial court in Johnson did not err in declining to instruct the jury that it must find youthful age. Id. at 523, 495 A.2d at 19.
Apparently as a response to the Trimble and Johnson cases, the General Assembly amended the death penalty statute to provide that "if a person found guilty of murder in the first degree was less than 18 years old at the time the murder was committed, the person shall be sentenced to imprisonment for life and may not be sentenced to death." Chapter 626 of the Acts of 1987, now codified as Article 27, ยง 412(g)(1). As introduced, the legislative bill that became Chapter 626 would have prohibited the execution of a person who was younger than sixteen years at the time the murder was committed, but the bill was amended to raise the threshold age to eighteen. 1987 Md. Laws at 2908. When it provided that a murderer must be age eighteen at the time of the crime in order to be death eligible, the General Assembly did not amend the mitigating circumstance of youthful age. Against this background we have no difficulty in understanding Lovell's counsel to have requested the trial court not only to answer the jury's inquiry by instructing on the factors to be considered in determining youthful age, as set forth in Johnson and its predecessor cases, but also to instruct that those factors be considered in relation to the absolute floor established by the prohibition against executing a person who was less than eighteen years of age at the time of the murder. Accordingly, we reject the State's contention that there has been a lack of preservation for appellate review.
Whether to give a jury supplemental instructions in a criminal cause is within the discretion of the trial judge. See Maryland Rule 4-325(a) ("The court shall give instructions to the jury at the conclusion of all the evidence and before closing arguments and may supplement them at a later time when appropriate."). Battle v. State, 287 Md. 675, 414 A.2d 1266 (1980), held it to be reversible error to give a confusing and potentially misleading instruction in response to an ambiguous question asked by the jury. Id. at 685, 414 A.2d at 1271. This Court, however, seems never to have been presented with a claim of error based upon a decision not to instruct at all in response to a jury's question concerning a matter that the jury is required to consider.
The theme of clarifying confusion on the part of a jury sounds in Justice Frankfurter's opinion for the Supreme Court in Bollenbach v. United States, 326 U.S. 607, 66 S. Ct. 402, 90 L. Ed. 350 (1946). Bollenbach, who was apparently a "fence," was convicted of conspiring to transport stolen securities across state lines, knowing them to have been stolen. Id. at 608, 66 S. Ct. at 403, 90 L. Ed. at 352. The jury had asked "'if the defendant were aware that bonds which he aided in disposing of were stolen does that knowledge make him guilty on the [conspiracy] count?'" Id. at 609, 66 S. Ct. at 403, 90 L. Ed. at 352. The trial court gave a cursory response that included reference to a presumption that the possessor of recently stolen goods is the thief. Id. at 609, 66 S. Ct. at 404, 90 L. Ed. at 352-53. Noting that the trial judge's "last word is apt to be the decisive word," the Court said: "If [the last word] is a specific ruling on a vital issue and misleading, the error is not cured by a prior unexceptional and unilluminating abstract charge." Id. at 612, 66 S. Ct. at 405, 90 L. Ed. at 35
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