Johnson v. State

DEBORAH S. EYLER, Judge. Dion Lee Johnson, appellant, was charged with first degree murder, second degree murder, conspiracy to commit murder, and use of a handgun in the commission of a crime of violence, in the shooting death of Van Reaves. On March 15, 1999, a jury trial on those charges commenced in the Circuit Court for Prince George’s County. A mistrial was declared the next day.

On June 28, 1999, a second jury trial commenced in the Circuit Court for Prince George’s County. That trial also resulted in a mistrial. 1 A third jury trial began on December 13, 1999. It resulted in appellant being acquitted of first degree murder and convicted of second degree murder and use of a handgun in the commission of a crime of violence. The court sentenced appellant to a total of twenty-five years’ incarceration.

On appeal, appellant presents three questions for review, which we have reordered and reworded: I. Did the Fifth Amendment protection against double jeopardy bar appellant’s December 1999 retrial?

II

Did the suppression court err in denying his motion to suppress certain evidence?

III

Did the trial court err in failing to ascertain that appellant voluntarily waived his right to testify? For the reasons that follow, we shall affirm the judgments of the circuit court. FACTS AND PROCEEDINGS The shooting in this case took place on March 5,1998, at the apartment of Van Reave’s fiancée, Tineal Carter, in Suitland, ⁵⁴⁴ Maryland. Carter was a close friend of Fard Muhammed, known as “Rico.” Rico regularly went to Carter’s apartment to supply her with crack cocaine.

Appellant often accompanied Rico on these visits and stood watch. Reaves did not get along with Rico or appellant. Also, he owed Rico money. On the day in question, Carter and Reaves were in the bedroom of the apartment with three friends: Billy, Rick, and Sly.

Debra Nelson was elsewhere in the apartment. Rico and appellant entered the apartment, walked into the bedroom, and greeted everyone. Rick and Sly left the bedroom. According to Carter, appellant began beating Reaves with something like a nightstick, and both Rico and appellant fought with Reaves.

Billy hid in a walk-in closet. Appellant produced a handgun and shot Reaves through the eye, killing him. Appellant and Rico then fled. Carter and her friends went to a nearby gas station and called 911.

They then went to a motel because Carter was afraid to return home. Carter’s apartment was sealed as a crime scene. She and Nelson were arrested a few days after the shooting when they tried to reenter the apartment. They were taken to police headquarters and interviewed about the shooting.

Carter identified appellant as the person who had shot Reaves. Thereafter, appellant was arrested and charged. Rico also was charged in the shooting death of Reaves. Sometime before appellant’s second trial, Rico was tried separately, on charges of first degree murder, conspiracy to commit murder, and use of a handgun in the commission of a crime.

He was acquitted of all charges. Appellant’s Second Trial The mistrial ruling that is the focus of this appeal occurred during appellant’s second trial, in the State’s case. At the outset of that trial, appellant’s lawyer informed the trial court that his theory of defense was that Rico, not appellant, was the shooter. ⁵⁴⁵ Tineal Carter and Debra Nelson testified for the State. Carter stated that appellant and Rico entered the bedroom together and that appellant shot Reaves.

Nelson testified that she was in the kitchen of Carter’s apartment when she heard fighting in the bedroom. She looked into the bedroom and saw Reaves doubled over and appellant standing “over top of him with some kind of stick or lead pipe.” She did not see Rico. Nelson started to leave the apartment but returned to get some clothing. She heard a bang, which she thought was a television set being broken, and then saw appellant and Rico leave the bedroom and exit the apartment.

They paused before reaching the door and Rico told appellant to calm down and take a deep breath. The testimony that precipitated the mistrial came from James Toth, another State’s witness. Toth testified that he and Rico sold drugs together and that appellant “used to hang” with them. Rico and appellant told Toth that Reaves “had been messing up with the [drug] money” and that they were going to kill him.

Rico and appellant had “numerous” conversations in Toth’s presence in which they had stated their intention to kill Reaves. Also, a few weeks before the shooting, Toth, appellant, Rico, and someone named “Stick” assaulted Reaves. According to Toth, sometime on March 5, 1998, he met with Rico and appellant and Rico said that he and appellant had killed Reaves. Rico explained that he and appellant had gone to Carter’s apartment to kill Reaves and that Rico had pulled a gun out, but “couldn’t get the shot off.” A struggle ensued and the gun fell to the ground.

Appellant picked it up but could not shoot Reaves because Rico was in the way. When Reaves realized that appellant had the gun, Reaves “charged” at him. Appellant fired one shot, hitting Reaves in the eye and killing him. Toth also testified that appellant admitted that he (appellant) had killed Reaves.

Appellant also said that he had promised Rico that he would “take care of’ any witnesses Rico wanted him to. ⁵⁴⁶ Toth went on to say that, after the shooting, Rico asked him to kill Debra Nelson, and threatened to kill his family if he did not do so. Toth sought out Debra Nelson and stabbed her. He later entered into a plea agreement to a charge of first degree assault, with a sentence cap of four years. Toth had not yet been sentenced at the time of appellant’s second trial.

On cross-examination, defense counsel elicited from Toth that he was afraid of Rico but was not afraid of appellant. Toth denied that his fear of Rico motivated him to blame appellant for the murder. On redirect examination, the prosecutor followed up on this line of questioning and asked Toth what effect, if any, his fear of Rico had on his testimony. Toth replied: It has none, because it is still going to be there.

I testified in his case against him, and, you know, hopefully, I will never see him, you know because he got off, and it still has no bearing, because I testified to - (Emphasis added.) At that point, defense counsel interjected and asked to approach the bench. Once there, he moved for a mistrial, stating: I would at this time ask for a mistrial on behalf of my client. The witness for the State has just informed the jury that the co-defendant in this case, who we are attempting to place the blame on, was acquitted due to testimony that he gave. The influence on this jury would be overwhelming to the fact that the co-defendant has already been acquitted.

They can know that a man has been killed already. They could therefore place undue importance on the fact that somebody should be convicted in this case, clearly my client. We have a theory in this case wherein my client is to testify as to certain aspects as to why he is being blamed for this murder. Clearly that issue has been generated in front of this jury, and this witness has indicated that 12 other people decided to believe his version over the version that we made here. ⁵⁴⁷ I don’t believe that this could be deemed in any way to be harmless.

It is an error that cannot be corrected, nor would I accept an instruction to that effect. I believe this witness knew better than to say that. I am not indicating who is to blame, but I am indicating that this is an egregious error on his part, and I am asking for a mistrial on behalf of my client. The prosecutor opposed the mistrial motion, arguing that Toth’s testimony was “very vague.” The trial court called a recess to consider the motion, and then denied it.

After the jurors were returned to the courtroom, the trial court instructed them to disregard Toth’s last answer. When trial resumed the next morning, the parties revisited the issue of Toth’s testimony. Defense counsel said: I will say for the record that two of the jurors looked at me as I began to show some alarm, and at that time I approached the bench and requested a mistrial based on that statement that he made, and I premised that on the fact that never knowing what a jury may consider or not consider when they go through their process, when they go through that process, it is my feeling, Your Honor, that a jury, knowing now that the remaining co-defendant, when the prior co-defendant has already been acquitted, and there was a definite individual, and the State’s theory is my client being the shooter in the case, that they may take whatever action they felt by way of sort of a compromise, or they may attribute more guilt to my client than would normally be assessed. Secondly, I think it gives undue credibility to the -witness, knowing that the witness had listened to his version at an earlier trial, where he basically did not indicate that the other individual was the shooter, which is our theory in this case, that the other defendant is the shooter, would give him undue reliability with this jury having heard him and found him not guilty. ⁵⁴⁸ I, in my assessment, do not believe that that risk can be one that can be overcome by any cautionary instruction, and the court went ahead and gave one over our objection.

I do not believe this is harmless, and it can be wiped from a juror’s mind, so they in no way infer unnecessary guilt on my client. Defense counsel then renewed his motion for mistrial. After explaining that he had discussed the matter with appellant, he added: [Appellant], in our conversations today, shows me a lack of understanding and perhaps competency to truly understand and aid me in making this decision, so I am now taking it upon myself to do so. Defense counsel said that he had spoken with appellant’s aunt and grandmother, who concurred in his request for a mistrial.

He noted that appellant’s aunt had spoken to appellant and believed that appellant was “not in a frame of mind to understand what the consequences were, and what his decision-making process should include.” The prosecutor reiterated that the curative instruction had been sufficient to alleviate any prejudice. He stated: [T]he theory that they have put forward with respect to undue credibility, and the remaining defendant, Dion Johnson, necessarily having to be convicted if the first defendant was acquitted, [is] at the most 5 %o, and in our view, just wrong. In other words, the jury could weigh [that that] guy was acquitted, and the State has this (sic) he was the mastermind, this was the flunky, then this guy should be acquitted too. Appellant then addressed the court.

He said: Based upon what I have seen and what I have witnessed, I wanted to be on the record. I do agree with [the prosecutor] on the prejudice of this case, and, further, I would like to go for the mistrial — no, I prefer not to go to the mistrial. ⁵⁴⁹ We can go to trial today, but I want to make sure that my family is protected, and make sure that I am protected, too, because this man, he is gone, and I am the flunky in this thing. I am the flunky. I am the one that takes the fall.

So I want to make sure that — he is still gone. The deal was to sit there and take the fall. That wasn’t a question at first. I want to let it all be known.

I am supposed to be up here to take the fall. I can’t take no deal, because I am not going to go for something that I didn’t do. Everything is not right. The trial court reconsidered its prior ruling and declared a mistrial.

Appellant’s Third Trial On November 29, 1999, approximately two weeks before his third trial, appellant filed a pro se motion entitled “Motion’s for Dismissal — Grounds Double Jeopardy.” In it, he argued that a re-trial would violate his Fifth Amendment right against twice being placed in jeopardy for the same offense. In rambling and imprecise language, he charged that the mistrial was the result of a “coached” blurt by Toth. He also argued that he had not consented to the mistrial, noting that “it is not every improper remark as conspired by all parties to challenge for a mis-trial.” On December 6, 1999, appellant filed another pro se document, entitled, “Double Jeopardy,” in which he pointed out that he previously had requested his counsel to do various tasks, including filing a motion to dismiss based on double jeopardy grounds. Appellant’s third trial began on December 13, 1999.

The transcript of the hearing begins with a request by the prosecutor to approach “on another matter in this case,” followed by an off-the-record discussion. Jury selection followed. After the jury was selected, the trial court ordered a recess. Prior to the jury returning to the courtroom, counsel discussed various legal matters with the trial court.

Appellant was not present, at least initially, and defense counsel waived his ⁵⁵⁰ presence. Appellant’s motion to dismiss was not among the matters discussed. The trial then went forward. By implication, therefore, the trial court denied appellant’s motion to dismiss. 2 DISCUSSION I. As the proceedings recited above disclose, the mistrial that ended appellant’s second trial was requested by appellant’s lawyer, over appellant’s objection.

Appellant maintains that the trial court should not have granted the mistrial because he did not consent to it. He also argues that there was no “manifest necessity” for the mistrial. He contends, therefore, that principles of double jeopardy barred a retrial, and that the trial court erred in denying his motion to dismiss for that reason. The State counters that appellant consented to the mistrial, even though he objected when his lawyer requested it, and there was manifest necessity for the mistrial in any event.

Therefore, retrial was not barred by double jeopardy principles and the trial court properly denied appellant’s motion to dismiss. The double jeopardy clause of the Fifth Amendment to the Federal Constitution applies in state court criminal prosecutions through the Fourteenth Amendment. Cornish v. State, 272 Md. 312, 316 , 322 A.2d 880 (1974) (discussing Benton v. Maryland, 395 U.S. 784 , 89 S.Ct. 2056 , 23 L.Ed.2d ⁵⁵¹ 707 (1969) and citing Matter of Anderson, 272 Md. 85 , 321 A.2d 516 (1974), Pugh v. State, 271 Md. 701 , 319 A.2d 542 (1974); Couser v. State, 256 Md. 393 , 260 A.2d 334 (1970)). 3 The double jeopardy prohibition against retrial for the same offense attaches in a jury trial when the jury is empaneled and sworn.... Thus, after jeopardy attaches, retrial is barred if a mistrial is declared without the defendant’s consent unless there is a showing of “manifest necessity” to declare the mistrial.

State v. Woodson, 338 Md. 322, 329 , 658 A.2d 272 (1995) (citing Illinois v. Somerville, 410 U.S. 458, 467 , 93 S.Ct. 1066 , 35 L.Ed.2d 425 (1973); United States v. Perez, 22 U.S. (9 Wheat.) 579, 580 , 6 L.Ed. 165 (1824); Blondes v. State, 273 Md. 435, 444 , 330 A.2d 169 (1975)); State v. Crutchfield, 318 Md. 200, 207-08 , 567 A.2d 449 (1989) (quoting Cornish, 272 Md. at 316 , 322 A.2d 880 ). The “manifest necessity” standard was coined and explained by Justice Storey in Perez, supra, 22 U.S. (9 Wheat.) 579 : [I]n all cases of this nature, the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all of the circumstances which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, courts should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner.

But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound and conscientious exercise of this discretion, rests, in this, as in other ⁵⁵² cases, upon the responsibility of the judges, under their oaths of office. Id. at 580 ; Arizona v. Washington, 434 U.S. 497, 505-06 , 98 S.Ct. 824 , 54 L.Ed.2d 717 (1978); Illinois v. Somerville, 410 U.S. at 461-62 , 93 S.Ct. 1066 ; State v. Crutchfield, 318 Md. at 207-08 , 567 A.2d 449 ; Cornish v. State, 272 Md. at 316-17, 322 A.2d 880 . The Supreme Court has declined to spell out fixed rules for determining when “manifest necessity” exists. The “manifest necessity” standard “abjures the application of any mechanical formula by which to judge the propriety of declaring a mistrial in the varying and often unique situations arising during the course of a criminal trial.” Illinois v. Somerville, 410 U.S. at 462 , 93 S.Ct. 1066 .

Nevertheless, the Supreme Court has held that there must be a “ ‘high degree’ [of necessity] before concluding that the mistrial is appropriate.” Woodson, 338 Md. at 329 , 658 A.2d 272 (citing Washington, 434 U.S. at 506 , 98 S.Ct. 824 (footnote omitted)); Malpas v. State, 116 Md.App. 69, 81-82 , 695 A.2d 588 (1997). In Arizona v. Washington, supra, 434 U.S. 497 , 98 S.Ct. 824 , 54 L.Ed.2d 717 , the Court examined whether there was manifest necessity for a mistrial granted after the defendant’s lawyer made “improper and prejudicial remarks” in his opening statement about evidence, which would have been inadmissible. Id. at 510 , 98 S.Ct. 824 . The Court explained that when a motion for mistrial requires the trial judge to assess whether an improper remark may have affected the impartiality of the jury, the judge’s decision should be given deference: [A]long the spectrum of trial problems which may warrant a mistrial and which may vary in their amenability to appellate scrutiny, the difficulty which led to the mistrial in this case ... falls in an area where the trial judge’s determination is entitled to special respect.

Id. The Court went on to emphasize that, although a trial judge’s decision to grant a mistrial based on his “assessment of the prejudicial impact of improper argument” will be ac ⁵⁵³ corded great deference, the judge must not act “irrationally or irresponsibly.” Id. at 514 , 98 S.Ct. 824 (citations omitted). Rather, he must have exercised “sound discretion” in declaring a mistrial. Id.

The Court concluded that the trial judge “exercised ‘sound discretion’ in handling the sensitive problem of juror bias” and, therefore, “the mistrial order [was] supported by the ‘high degree’ of necessity” that was required. Id. at 516 , 98 S.Ct. 824 (footnote omitted). Neither party has a right to have his case decided by a jury which may be tainted by bias; in these circumstances, “the public’s interest in fair trials designed to end in just judgements” must prevail over the defendant’s “valued right” to have his trial concluded by the first jury impaneled. Id.

(quoting Wade v. Hunter, 336 U.S. 684, 689 , 69 S.Ct. 834 , 93 L.Ed. 974 (1949)). In Neal v. State, 272 Md. 323 , 322 A.2d 887 (1974), the Court of Appeals held that the defendant’s constitutional protection against double jeopardy had not been violated when he was retried after the trial court, sua sponte, declared a mistrial because the evidence that was the fruit of a warrant-less search, and that had been ruled suppressed, was placed within sight of the jury, introduced for identification, and referred to in trial testimony. The Court observed that, “[o]nce [the trial judge] perceives that the trial cannot proceed because of prejudice to the defendant, he has no choice but to declare a mistrial.” Id. at 326 , 322 A.2d 887 ; Cornish, 272 Md. at 321 , 322 A.2d 880 (holding that, in a bench trial, the trial court properly had declared a mistrial upon learning that the defendant initially had agreed to plead guilty and noting that the trial judge had explained that knowledge of the guilty plea “might have been very difficult for [her] to overcome in the ultimate judgment of this case”). State v. Blanks, 190 N.J.Super. 269 , 463 A.2d 359 (App.Div.1983), is similar in some respects to the case at bar.

In Blanks , the New Jersey intermediate appellate court held that there was manifest necessity for a mistrial when, in an armed robbery prosecution, the star defense witness testified (al ⁵⁵⁴ though he had been admonished not to mention the topic) that he had been acquitted of charges in the same armed robbery for which the defendant was on trial. The central issue in the case was identity. The victim, a bartender, testified that two men entered his bar at about 2:00 a.m. on the night in question and robbed him at gunpoint. He identified the two men as the witness and the defendant.

The witness and the defendant, both of whom were apprehended in the area soon after the robbery, each took the position that they were in the area for other reasons and had been misidentified. After the witness testified that he had been acquitted, the trial judge declared a mistrial, reasoning that, because the case was one in which the men were “going to stand or fall together,” 463 A.2d at 361 , i.e., the jurors either were going to find that the witness and the defendant properly were identified as the robbers, or that they were not, but that they could not reasonably find that one man properly was identified and one was not, the disclosure to the jury of the witness’s acquittal inevitably would prejudice the jury against the State. The appellate court affirmed, holding that the trial judge permissibly exercised his discretion to abort the trial when, upon careful deliberation, he concluded that the jurors could not erase from their minds the evidence of the witness’s acquittal and could not fairly and impartially consider the case with that knowledge. The case sub judice resembles Blanks .

In both cases, two men participated in a crime and were tried separately on the same charges. In both cases, the jury heard inadmissible evidence that the first man tried had been acquitted. (Though appellant argues otherwise, the clear import of Toth’s statement that Rico “got off,” when taken in context, was that he had been acquitted of criminal charges in the killing of Reaves.) Finally, in both cases, the issues generated were such that knowledge about the outcome of the first man’s trial necessarily would affect the jury’s thought process about the defendant’s guilt or innocence. In Blanks , the evidence on the central issue of identity was such that the jury only would be persuaded of the defendant’s guilt if it thought that both men ⁵⁵⁵ had been properly identified.

In the case at bar, evidence on the central issue of criminal agency was such that the jury would not conclude that both Rico and appellant had shot Reaves: only one of them could have done so. Therefore, knowledge that another jury had acquitted Rico would taint this jury’s view of appellant so as to effectively eliminate the presumption of innocence. For that reason, there was manifest necessity for a mistrial. Appellant contends that he had a right to a verdict from the jury in his second trial and, even though his lawyer requested the mistrial, his lawyer could not consent to a mistrial without his agreement.

Therefore, the trial court erred in granting the mistrial over his objection. 1. The right to a verdict from a jury that is sworn “must in some instances be subordinated to the public’s interest in fair trials designed to end in just judgments.” State v. Gorwell, 339 Md. 203, 217 , 661 A.2d 718 (1995) (quoting Wade, 336 U.S. at 689 , 69 S.Ct. 834 ). Where, for reasons deemed compelling by the trial judge, who is best situated intelligently to make such a decision, the ends of substantial justice cannot be attained without discontinuing the trial, a mistrial may be declared without the defendant’s consent and even over his objection, and he may be retried consistently with the Fifth Amendment. Gori v. United States, 367 U.S. 364, 368 , 81 S.Ct. 1523 , 6 L.Ed.2d 901 (1961) (citations omitted).

In Gori , the Court noted that this was true even when the mistrial was declared for the benefit of the defendant. Id. at 369-70 , 81 S.Ct. 1523 . In Neal v. State, supra, 272 Md. 323, 326 , 322 A.2d 887 , the Court of Appeals explained: “The trial judge’s function is to see that the defendant has a fair trial. Once he perceived that the trial cannot proceed because of prejudice to the defendant, he has no choice but to declare a mistrial.” Accordingly, even assuming that counsel could not consent to a mistrial over appellant’s objection, the trial court did not err or abuse its ⁵⁵⁶ discretion in granting the mistrial. 4 Because there was manifest necessity for the mistrial, appellant’s third trial was not barred by principles of double jeopardy.

II

Appellant filed a pre-trial motion to suppress certain evidence, including written statements he made to the police. At the suppression hearing held on that motion, the following evidence was adduced. On March 23, 1998, at 4:30 p.m., appellant was arrested in Washington, D.C., by the Metropolitan Police. He was held in a Washington, D.C., facility.

Detective Charles Richardson and Detective Troy Harding traveled to the District to interview appellant. Detective Richardson testified that he advised appellant of his Mirandaf rights after he entered the room in which appellant was present. Appellant waived his rights and agreed to talk to him and to Detective Harding. Appellant was not handcuffed during the interview.

Appellant never asked for a lawyer during the interview and did not ask to stop the interview. His demeanor was calm and he did not appear to be ill or tired. At first, appellant said that he knew nothing about the shooting. When faced with the evidence against him, and because the detectives used the technique of “minimizing” his culpability for the shooting, appellant changed his story.

No threats or coercion were used during the interview, nor were any deals offered or promises made. No physical force or manhandling was employed by the detectives. Detective Richardson left the interview room at around ⁵⁵⁷ 10:05 p.m., and