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HEADNOTE: Criminal Law & Procedure -- Jury Verdicts -- Hearkening the Verdict
A jury verdict, where the jury was not polled and the verdict was not hearkened, is not

properly recorded and is therefore a nullity. Though polling may be waived, both polling and hearkening may not be waived in the same case.

IN THE COURT OF APPEALS OF MARYLAND No. 14 September Term, 2009

STATE OF MARYLAND v. ISA MANUEL SANTIAGO Bell, C.J. Harrell Battaglia Greene Murphy Adkins Barbera,

JJ. Opinion by Greene, J. Harrell, Murphy, and Adkins, JJ., Dissent.

Filed: December 21, 2009

Hearken to your verdict as the Court hath recorded it. You say that [name of defendant] is guilty (or not guilty) of the matter wherefore he or she stands indicted, and so say you all. As a matter of protocol, hearkening has been the standard practice in Maryland for more than 100 years, when a jury renders a verdict in a criminal case. Essentially, hearkening requires the trial court to inquire in open court, before the jurors are discharged, whether the jury agrees with the verdict just announced by the foreperson. See Givens v. State, 76 Md. 485, 487-88, 25 A. 689, 689 (1893) (holding that the court's failure to hearken the verdict was reversible error); Polling of Jurors -- Court's Attempt After Discharge to Cure Wrongful Denial of Polling Request Held Not Effective -- Keller v. State, 33 MD. L. REV. 359, 359 n.2 (noting that hearkening is the procedure whereby the court clerk verifies the accuracy of the verdict as recorded; and it is not necessary for a defendant to request that the court hearken the verdict because the court clerk, as a matter of routine, "automatically hearkens the verdict after it is announced"). In the present case, we must determine whether a defendant is entitled to a new trial where the jury was neither polled1 nor hearkened. We shall hold that a jury verdict, rendered and announced in open court, that is neither polled nor hearkened is not properly recorded and is therefore a nullity. Though polling may be waived, both polling and

A defendant has the absolute right to have a poll of the jury and to have each juror assent to the verdict. Williams v. State, 60 Md. 402, 403 (1883) (affirming that the "purpose of [polling is to] compel[] each juror to declare his own verdict, in his own language"); Coby v. State, 225 Md. 293, 299, 170 A.2d 199, 202 (1961). A poll of the jury is conducted to ensure the unanimity of the verdict prior to its entry on the record. Smith v. State, 299 Md. 158, 166, 472 A.2d 988, 991 (1984). Like hearkening, polling is conducted to "secure certainty and accuracy, and to enable the jury to correct a verdict, which they have mistaken, or which their foreman has improperly delivered." Smith, 299 Md. at 165, 472 A.2d at 991 (quoting Givens v. State, 76 Md. 485, 488, 25 A. 689, 689 (1893)).

1

hearkening may not be waived in the same case. Isa Manuel Santiago was tried by a jury in the Circuit Court for Charles County on charges of first degree murder and related handgun offenses. On March 17, 2006, the jury convicted Santiago of second degree murder and the use of a handgun in the commission of a crime of violence. The trial judge imposed a sentence of thirty years for second degree murder, twenty years consecutive for use of a handgun in the commission of a crime of violence, and five years consecutive for being a felon in possession of a regulated firearm.2 Santiago noted a timely appeal to the Court of Special Appeals. In an unreported opinion, the intermediate appellate court reversed the judgment of the Circuit Court, holding that "a criminal defendant has an absolute unwaivable right to have the jury polled, if requested, or if not, hearkened." We granted the State's petition for writ of certiorari, State v. Santiago, 407 Md. 529, 967 A.2d 182 (2009) to answer the following question: Did the Court of Special Appeals err in holding that a criminal defendant cannot waive his complaint about the failure to poll or hearken the jury, based on the intermediate appellate court's mistaken determination that this Court's decision in Glickman v. State, 190 Md. 516 (1948), is no longer controlling precedent? Background

Santiago was also charged and convicted of being a felon in possession of a regulated firearm, in violation of Md. Code (2002, 2009 Supp.),

Download State v. Santiago.pdf

Maryland Law