Carey v. State

Morton, J., delivered the opinion of the Court. The appellants, charged with disorderly conduct and related offenses, were being tried before a jury in the Circuit Court for Prince George’s County on February 26, 1975. After two police officers had testified at length for the State, the presiding judge recessed the trial for lunch. Upon reconvening court, the judge called respective counsel to the bench and announced for the record: “THE COURT: I want to get this on the record that during the noon recess Mrs. Montcalm [deputy clerk of court] sent a member of the jury over to my chambers.

I did not see him. He talked to my secretary. We checked back with Mrs. Montcalm and what he stated to her was that having heard this much of the case he had already concluded because of some previous experience that he had had that he would not be able to believe the police witnesses in this case. When I first heard about this I called counsel to my chambers and informed them of the situation.

I did not know the full particulars but without telling counsel which position he was taking I told them if under the circumstances they would be willing to go ahead with 11 jurors. Mr. Mitchell [counsel for appellants] conferred with his clients and said that he would not be willing to go ahead with 11 jurors and has a perfect right to take that position, and what that leaves is a situation where one of the 12 jurors has already expressed an opinion without having heard the entire case or instructions or argument. Under those circumstances my conclusion is that ⁵⁹⁶ one of the most important functions of the Court is to see that a fair trial is afforded everyone concerned, that this could not be a fair trial from this point on. Therefore, I propose to declare a mistrial and have the matter set for a later time. “THE COURT: Do you want to correct any statement that I have made on the record?

MR. MITCHELL: Just with one respect to the — well, I was just leading up to a request that we are only going on hearsay, number one, at this point of what, if anything, this juror said, because it comes by way of Mrs. Montcalm through His Honor. Mrs. Montcalm I respectfully request be allowed to put this on the record and also the juror if necessary, and I am not trying to be hypertechnical, but I think that Mrs. Montcalm’s talking with a juror who has already been sworn about a case was in violation of the sequestration, number one, and also — THE COURT: Maybe so, but jurors talk to them about getting excused and they are not feeling well and they are sick. MR.

MITCHELL: But with respect to matters — THE COURT: A whole lot of things like that you would not know until he blurted out what it was, but she certainly does not. She never says anything about any pending case to the jury. “MR. MITCHELL: I would just like to add one thing to Mrs. Montcalm’s statement. In His Honor’s office she said he thinks that it is a possibility and at this point he thinks.

There was nothing definite made he could not reach a decision.” A mistrial was then declared and the jury was dismissed. ⁵⁹⁷ Sometime later appellants filed a motion to dismiss the charges against them on the ground that a retrial of the charges would violate their Fifth Amendment constitutional right against double