Cooley v. State

CATHELL, J. On March 7, 2002, Damon Cooley, petitioner, was convicted by a jury in the Circuit Court for Baltimore City of second degree murder and wearing, carrying, or transporting a handgun, 1 in connection with the May 5, 2001, murder of Anthony Williams, Jr. The same jury convicted fellow defendant, Derrick Gibson, who is not a party to this appeal, of first degree murder, use of a handgun in the commission of a crime of violence, 2 and wearing, carrying, or transporting a handgun. On June 10, 2002, petitioner was sentenced to a term of thirty years imprisonment for second degree murder and a consecutive three-year term for the handgun offense. Mr. Gibson, as well as petitioner, whose motion for a mistrial had been denied, appealed their convictions to the Court of Special Appeals on June 14, 2002, and, in a published opinion, that court affirmed the judgments of the trial court. Cooley v. State, 157 Md.App. 101 , 849 A.2d 1026 (2004).

Petitioner thereafter filed a Petition for Writ of Certiorari to this Court. On September 15, 2004, we granted the petition. 3 Cooley v. State, 383 Md. 211 , 857 A.2d 1129 (2004). Petitioner seeks review of the following question: ¹⁶⁹ “When addressing the merits of a motion for a mistrial made during a joint trial of two defendants, can an appellate court place any ‘evidentiary significance’ on the fact that the attorney for one of the co-defendants did not join in the motion?” We hold that, under the circumstances of this case, the Court of Special Appeals erred in attaching “evidentiary significance” to the actions or inactions of a co-defendant’s counsel. The failure of a co-defendant’s counsel to join a motion for mistrial cannot be considered an implied assertion as to the lack of prejudice to a moving defendant.

There is no evidentiary significance to what a co-defendant’s counsel does or fails to do in respect to a decision on the merits of a trial court’s holding on a mistrial motion filed by the other co-defendant. Final determinations of what measures constitute appropriate courtroom security are decisions that rest entirely in the discretion of the trial judge and such ultimate decisions normally may not be delegated or abrogated to law enforcement officers. I. Facts There is general agreement as to the facts of this case. Accordingly, we adopt in large part the facts as set forth in the Court of Special Appeals’ opinion, which states: “On May 5, 2001, in the 700 block of Baker Street in Baltimore City, Anthony Williams, Jr. (Williams) was murdered.

As a result of information provided by Eddie Terrell (Terrell), a friend of the victim, [Gibson and Cooley] were ultimately charged with that murder. On May 11, 2001, Terrell was arrested on an unrelated crime and questioned about the murder. At that point, he told detectives that he knew nothing about what happened to Williams. On May 21, however, he returned to the police station and gave a recorded statement that included the following assertions. ¹⁷⁰ “About 4:00 p.m. on May 5, 2001, Terrell and Williams brought drugs to a location on Pennsylvania Avenue, where they had ‘junkies’ sell the drugs for them.

When the junkies ran out of the drugs supplied by Terrell and Williams, Cooley and four other males started selling drugs at that location. Williams told one of the people who had been selling drugs for him not to buy anything from Cooley and his companions. “Terrell and Williams then left the scene, cut across a playground, walked down Baker Street, and made a left onto Windsor Avenue. As they were walking down Windsor, a white Crown Victoria pulled around the corner. Cooley was driving that vehicle.

Gibson got out of the passenger side of the car and asked Williams if Williams had ‘a lot of big words.’ At this point, Gibson started shooting. Terrell turned, ran down an alley, and hid in an old refrigerator until the shooting stopped. He then returned to the location of the shooting and saw Williams’ body on the ground.” Cooley, 157 Md.App. at 106-07 , 849 A.2d at 1029-30 (alteration added). The State moved to join the trial of the two defendants.

Represented by separate counsel, petitioner and Mr. Gibson each filed pre-trial motions to be tried separately as to each offense and apart from any other defendants. The defendants’ motions were denied, and accordingly, petitioner and Mr. Gibson, over their objections, were tried as co-defendants in a multi-day trial beginning March 4, 2002. Mr. Terrell testified at the trial as a State witness. “At trial, Terrell denied having any knowledge of the shooting. He testified that he did not witness the crime, that his May 21st statement was a lie, that the information he gave the police on that day was based only on information he had received from people in the neighborhood, that he implicated [Gibson and Cooley] because he believed that he was going to be charged with the shooting, and that no one had warned him that [ ] [Gibson and Cooley] would kill him if he told the truth about what happened to Williams. ¹⁷¹ “Because Terrell’s trial testimony was inconsistent with his May 21st statement, the State introduced that statement into evidence.

The State also introduced evidence that drugs and ammunition of the same caliber as those recovered from the victim were found during a search of the home of Cooley’s girlfriend.” Cooley, 157 Md.App. at 106-07 , 849 A.2d at 1029-30 (alterations added). Following the conclusion of his testimony, Mr. Terrell was excused. The prosecutor and both defense attorneys were participating in an on-the-record bench conference pertaining to trial scheduling when Mr. Terrell, the day’s last witness, exited the courtroom. As Mr. Terrell left the courtroom, it was later alleged that he was accompanied in his departure by several sheriffs officers, an occurrence not specifically observed by petitioner’s attorney.

However, sometime after the jury had been excused for that day, it was brought to that counsel’s attention. Petitioner’s counsel moved for a mistrial at the commencement of the next day’s proceedings based on the belief that Mr. Terrell’s alleged departure in the company of sheriffs officers might impact the jury. Mr. Gibson’s counsel did not join this motion. Petitioner’s counsel argued in support of his motion for mistrial: “[0]n tape, Mr. Terrell told the police officers that he was scared.

It was brought to my attention after the jury left yesterday that there were several sheriffs from the Baltimore City Sheriffs Office that were in the courtroom who then left the courtroom with Mr. Terrell. “Your Honor, that would leave an impression on the jury that Mr. Terrell is under some kind of guard because of the information that was elicited on tape by the Baltimore City Police Department on May the 21st. “Mr. Terrell never testified yesterday that he was scared. He said that he lied when he said those statements to the police. I was not aware that the sheriffs were going to come into the courtroom and I was not aware that the ¹⁷² sheriff would have been escorting the witness out of the presence of the jury [after he left the witness stand].” Cooley, 157 Md.App. at 112, 849 A.2d at 1033 (alteration restores original). In response, the prosecutor argued: “Quite frankly, I didn’t see the extent of the entourage or whatever she’s claiming escorting Mr. Terrell out, so I don’t know how many sheriffs we’re talking about here. “Quite frankly, I don’t think that, that is not prejudicial.

While on the stand, it came out that he was scared and he received threats. “Furthermore, I can proffer to this Court while Mr. Terrell and his grandmother were sitting outside, people— and I can’t say for sure who they were — approached him about testifying in this case. So obviously there was a reason for him to have some protection.” Id. The trial judge denied the motion for mistrial, stating: “Well, let me say that I don’t control the Sheriffs Office. Security is in the province of the Sheriffs Office.” As indicated in the Court of Special Appeal’s decision, the trial judge continued: “I didn’t ask for extra sheriffs to come in during that testimony.

They believed it was in the best interest of the security of the courtroom for them to come in. That’s in their discretion. They certainly know what this case is about. And if they believed that we needed extra personnel here, I’m not going to second guess that. “In addition to which, there are facts in this case that would indicate that there is some need for security in this kind of situation and I’m not, as [I] said, going to second guess how much security and when it comes in. [Motion for a mistrial on that basis is denied.]” Id. at 113 , 849 A.2d at 1033 (bolding omitted) (some alteration original).

On appeal, the intermediate appellate court affirmed the defendants’ convictions as well as the denial of the motion for ¹⁷³ mistrial based in part on its determination, inter alia, that Mr. Gibson’s counsel’s failure to join in the motion for mistrial constituted an “implied assertion” and was evidence that no unfair prejudice arising from the jury’s observation of the sheriffs escorting Mr. Terrell from the courtroom occurred.

II

Standard of Review A mistrial is no ordinary remedy and “[a] request for a mistrial in a criminal case is addressed to the sound discretion of the trial court and the exercise of its discretion, in a case involving a question of prejudice which might infringe upon the right of the defendant to a fair trial, is reviewable on appeal to determine whether or not there has been an abuse of that discretion by the trial court in denying the mistrial.” Wilhelm v. State, 272 Md. 404, 429 , 326 A.2d 707, 723 (1974). We have stated that “the declaration of a mistrial is an extraordinary act which should only be granted if necessary to serve the ends of justice.” Jones v. State, 310 Md. 569, 587 , 530 A.2d 743, 752 (1987), vacated on other grounds, 486 U.S. 1050 , 108 S.Ct. 2815 , 100 L.Ed.2d 916 (1988). The possible prejudice that a defendant may suffer as a result of alleged misconduct forms the threshold for the decision whether to grant a mistrial. “The determining factor as to whether a mistrial is necessary is whether ‘the prejudice to the defendant was so substantial that he was deprived of a fair trial.’” Kosh v. State, 382 Md. 218, 226 , 854 A.2d 1259, 1264 (2004) (quoting Kosmas v. State, 316 Md. 587, 595 , 560 A.2d 1137, 1141 (1989)). The trial judge must evaluate the circumstances of the case and “[i]n assessing the prejudice to the defendant, the trial judge first determines whether the prejudice can be cured by instruction.” Kosh, 382 Md. at 226 , 854 A.2d at 1264 .

See Carter v. State, 366 Md. 574, 589-90 , 785 A.2d 348, 356-57 (2001). If such a curative instruction is given, it must be “timely, accurate, and effective.” Carter, 366 Md. at 589 , 785 A.2d at 356 . “Unless the curative effect of the instruction ameliorates the prejudice to the defendant, the trial judge must grant the motion for a mistrial.” Kosh, 382 Md. at 226 , 854 A.2d at 1264 . See Kosmas, 316 Md. at 594 , ¹⁷⁴ 560 A.2d at 1141 . Many years ago, in evaluating the possible prejudicial effect of the admission of specific evidence in a particular case, this Court stated: “Generally, the choice of measures to protect the fair, unprejudiced, working of its proceedings is left to the discretion of the trial court, and only in exceptional cases will its choice be reviewed in this court.

In the greater number of instances the injection into a trial of matter other than that involved in the issue to be decided is cured by withdrawal of it and an instruction to the jury to disregard it, but there may, of course, be instances in which it would not be cured in this way, and terminating the trial and taking the case up afresh before another jury would be the only adequate means of correction. Those instances are exceptional, but they do arise.” Nelson v. Seiler, 154 Md. 63, 72 , 139 A. 564, 567 (1927). As we have indicated, a trial judge is afforded considerable discretion in deciding a motion for mistrial, and “in a case involving a question of prejudice which might infringe upon the right of the defendant to a fair trial, [that decision] is reviewable on appeal to determine whether or not there has been an abuse of that discretion by the trial court in denying the mistrial.” Wilhelm, 272 Md. at 429 , 326 A.2d at 723 (alteration added). See also Tierco Maryland, Inc. v. Williams, 381 Md. 378, 428 , 849 A.2d 504, 535 (2004).

In discussing the possible prejudice to a plaintiff arising from the jury’s receipt of and consideration of information concerning the case from a source outside the record in Wernsing v. General Motors Corp., 298 Md. 406 , 470 A.2d 802 (1984), Judge Rodowsky, writing for the Court, stated: “Where, as here, the precise extraneous matter is known but direct evidence as to its effect on deliberations is not permitted, a sound balance is struck by a rule which looks to the probability of prejudice from the face of the extraneous matter in relation to the circumstances of the particular case. It is the function of the trial judge when ruling on a motion for a new trial to evaluate the degree of probable ¹⁷⁵ prejudice and whether it justifies a new trial. That judgment will not be disturbed but for an abuse of discretion.” Id. at 419-20 , 470 A.2d at 809 . In Wilhelm, supra, a case in which we addressed the possible prejudicial effect of a prosecutor’s comments made to the jury during opening remarks, we amalgamated from a series of federal cases several factors to be considered in assessing unfair prejudice to the defendant.

We stated: “ ‘The applicable test for prejudice is whether we can say, “with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error.” The decisive factors are the closeness of the case, the centrality of the issue affected by the error, and the steps taken to mitigate the effects of the error.’ ” Wilhelm, 272 Md. at 416 , 326 A.2d at 716 (citations omitted). See also Walker v. State, 373 Md. 360, 399, 818 A.2d 1078, 1100 (2003). We have also discussed the discretion afforded a trial judge in determining a motion for a new trial (and a new trial may result if a motion for mistrial is granted). “The question whether to grant a new trial is within the discretion of the trial court. Ordinarily, a trial court’s order denying a motion for a new trial will be reviewed on appeal if it is claimed that the trial court abused its discretion.” Mack v. State, 300 Md. 583, 600 , 479 A.2d 1344, 1352 (1984).

We have expressed that this discretion afforded a trial judge is. “broad but it is not boundless.” Nelson v. State, 315 Md. 62, 70 , 553 A.2d 667, 671 (1989). In Jenkins v. State, 375 Md. 284, 295-96 , 825 A.2d 1008, 1015 (2003), we declared, “The abuse of discretion standard requires a trial judge to use his or her discretion soundly and the record must reflect the exercise of that discretion. Abuse occurs when a trial judge exercises discretion in an arbitrary or capricious manner or when he or she acts beyond the letter or reason of the law.” Id. at 295-96 , 825 A.2d at 1015 . See Nelson, 315 Md. at 70 , 553 A.2d at 671 ; Ricks v. State, 312 Md. 11, 31 , 537 A.2d 612 (1988).

As ¹⁷⁶ this Court explained in Wilhelm, 272 Md. at 413 , 326 A.2d at 714-15 , “The conduct of the trial must of necessity rest largely in the control and discretion of the presiding judge and an appellate court should in no case interfere with that judgment unless there has been an abuse of discretion by the trial judge of a character likely to have injured the complaining party.” III. Discussion In affirming the trial court’s denial of the motion for mistrial, the Court of Special Appeals explained: “We are persuaded that if appellants had been unfairly prejudiced by something that occurred when Terrell left the courtroom, Cooley’s motion for mistrial would have been made immediately after the allegedly prejudicial incident occurred.[ 4 ] We are also persuaded that there is evidentiary significance in the fact that Gibson’s trial counsel did not join in the motion.” Cooley, 157 Md.App. at 114 , 849 A.2d at 1034 (emphasis added) (footnote added), Petitioner maintains that the Court of Special Appeals abused its discretion in failing to consider the merits of the trial court’s denial of the motion for mistrial, as requested by petitioner’s appeal, relying instead, at least in part, on the failure of Gibson’s counsel to join the motion for mistrial as indicative that no unfair prejudice occurred. Petitioner contends that the Court of Special Appeals’ decision leads to the conclusion that the actions or inactions (through counsel) of one co-defendant can affect the outcome for another co-defendant who seeks a decision on the merits of a motion for mistrial. According to petitioner, the intermediate appellate court’s holding not only places an obligation on a co-defendant to enter an objection or join a motion for preservation purposes, but also enables a co-defendant’s failure either to join in a motion or make an objection to limit the effect of a proper objection entered by another defendant. ¹⁷⁷ The State counters that, “[r]ead in its proper context, the court’s opinion explained that, had Cooley and Gibson truly believed themselves that they were ‘unfairly prejudiced by something that occurred when Terrell left the courtroom,’ almost certainly, either counsel for Cooley would have immediately moved for mistrial or counsel for Gibson would have joined in the motion.” The trial judge focused on the propriety of the additional security present in the courtroom as his reason for denying the motion for mistrial, and he withheld comment both as to the motion’s timing and Mr. Gibson’s non-joinder.

The Court of Special Appeals, however, having been persuaded that there was insight to be gleaned both from the overnight delay in petitioner’s making his motion for mistrial and from Mr. Gibson’s failure to join that motion, applied a perfunctory label that Mr. Gibson’s having failed to join that motion was an “implied assertion” that the courtroom security incident did not unfairly prejudice the defendants. In response to the intermediate appellate court’s “implied assertion” characterization of co-defendant’s restraint,