Double-murder conviction reversed, after 5-year delay

ANNAPOLIS — Maryland’s top court on Wednesday overturned a man’s double-murder conviction and life sentence – five-and-a-half years after the Court of Appeals heard arguments in his appeal.

The Court of Appeals building in Annapolis

The Court of Appeals building in Annapolis

In its long-awaited decision, the Court of Appeals found that Jaron Tyree Grade’s right to a fair trial was violated when the judge replaced a juror with an alternate without first notifying the defense.

“In a criminal case, the defendant and the state have a right to be present at all stages of the trial,” Chief Judge Robert M. Bell wrote for the court in sending the case back for retrial in Baltimore County Circuit Court. “This right extends to any communication between the trial judge and the jury.

Baltimore County State’s Attorney Scott D. Shellenberger said his office is “reviewing the case to make a determination as to retrial.”

“It is our hope that we will be able to put the case back together and obtain a conviction,” he added. “We will put it back together.”

The killings that led to Grade’s conviction occurred in September 2003. Grade was tried and convicted the following year, and his case was heard by the Court of Appeals on Oct. 3, 2007.

Grade’s attorney said Wednesday that the long wait for the decision put her and her imprisoned client in “a real quagmire.”

“He sat in jail for five [and a half] years” following the hearing in the Court of Appeals, said Margaret Ann Mead, of Mead, Flynn & Gray P.A. in Baltimore. ‘It is just very frustrating when someone is sitting in jail and you know in your heart of hearts that he shouldn’t be.”

Mead added that an effective legal system relies upon well-considered and finely drafted opinions that explain the law, but justice requires that rulings be made “within a reasonable time frame.”

On that point, Brian M. Saccenti of the Office of the Maryland Public Defender filed a motion March 1 urging the court — “in the interest of justice” — to issue either an opinion, an order deciding the case with an opinion to follow later, or, if a reversal were likely, an order that Grade be released from the maximum security prison pending the outcome of his appeal.

“Excessive delay in the appellate process can also violate the constitutional guarantees to due process of law,” wrote Saccenti, the public defender’s chief appellate attorney. “Other courts have expressed grave concerns and, in some instances, found due process violations, based on delays comparable to or shorter than the one experienced by petitioner [Grade] in the present case,”

Saccenti cited the 10th U.S. Circuit Court of Appeals’ 1995 holding in Harris v. Champion, which said that a delay of more than two years creates a rebuttable presumption that the appellate process ineffectively protects the defendant’s rights.

Assistant Maryland Attorney General Cathleen C. Brockmeyer, who argued the case for the state in 2007, said in response to Saccenti’s petition that her office “takes no position on petitioner’s claim that the interest of justice requires that the court issue an opinion in this case forthwith.”

But the office rejected Saccenti’s suggestions that the court issue an order prior to filing an opinion or release Grade pending a decision, Brockmeyer wrote to the high court.

Grade had not claimed further delay would render his appeal moot, and the Court of Appeals has no firm deadline for issuing its decisions, Brockmeyer added in her March 7 filing.

Grade’s wait for a high court decision was featured in August 2011 and September 2012 reports in The Daily Record, which found many Court of Appeals cases remain pending years after the court hears them.

After the opinion was issued, Bell did not respond to a request for comment placed through court spokeswoman Terri Bolling.


Substitution without notice

At Grade’s trial in Baltimore County Circuit Court, the jury was scheduled to start deliberations at 9:15 on the morning of Dec. 3, 2004. At about 9:25, Judge Christian M. Kahl was told a juror had an emergency and would not arrive until 10:30.

Kahl, without informing counsel, replaced the juror with an alternate and deliberations started.

The jury found Grade guilty of two counts of first-degree murder and use of a handgun in the killings of Broadus Funderburk and Ricardo Cabera on Sept. 14, 2003. He was sentenced to two concurrent life sentences and a consecutive 20-year prison term.

The intermediate Court of Special Appeals upheld the conviction on Feb. 6, 2007, saying Grade failed to indicate how the substitution had prejudiced him.

The high court’s decision concerned the scope of Maryland criminal procedure rule 4-326 (d), which, Bell wrote, “vindicates the well-established right of a defendant to be present throughout the trial, including during jury deliberations.”

The rule “provides that if a communication ‘pertains to the action,’ then ‘[a]ll such communications between the court and the jury shall be on the record,’” Bell wrote.

“That, in turn, contemplates that the court will notify both parties of the communication and give each of them an opportunity for input,” he added in remanding the case. “That did not occur in this case. On the contrary, despite defense counsel having asked to be contacted if anything arose that was not previously discussed, the trial judge in this case discharged the juror and replaced her with an alternate without first notifying defense counsel.”

Mead, Grade’s trial attorney, said she is “just very pleased that a decision was made in his favor, finally, a decision.”


Bell’s average

The Daily Record’s 2012 report on the Court of Appeals’ response time found an average of 183 days passed between argument and opinion for cases decided in the 12 months ending June 30, 2012.  That is more than twice the 90-day limit specified in the Maryland Constitution, a provision the court decided was “merely directory” in 1908.

The elapsed time varied widely depending on the author, however. For his 10 most recent opinions, Bell’s average turnaround time was 31.5 months, the highest of any named judge.

Brockmeyer declined to comment on the decision in Grade’s case or the time it took to be handed down. Then-Assistant Maryland Public Defender George E. Burns Jr. argued Grade’s appeal at the high court. Burns, now retired, could not be reached for comment.

Bell was joined in his opinion by Judges Glenn T. Harrell Jr., Lynne A. Battaglia, Clayton Greene Jr., Irma S. Raker, Alan M. Wilner and Dale R. Cathell.

Wilner and Cathell, retired judges, were specially assigned to hear the case. Raker, a sitting judge when the case was heard in 2007, stepped down from the bench upon reaching the mandatory retirement age of 70 in April 2008 but was authorized to continue participating in the case.




Jaron Tyree Grade v. State of Maryland, No. 16, September Term 2007, Argued Oct. 3, 2007. Decided April 3, 2013. Opinion by Bell, C.J.


Is it reversible error for a trial judge to substitute a juror with an alternate without providing notice to counsel?


Yes; Such a substitution violates Maryland criminal procedural rule 4-326 (d), “vindicates the well-established right of a defendant to be present throughout the trial, including during jury deliberations.”


George E. Burns Jr. for petitioner; Cathleen C. Brockmeyer for respondent.

RecordFax #13-0403-20 (25 pages).