Johnson v. State

Darius Tarik Johnson v. State, No. 2444 of the 2019 Term, Opinion by Moylan, J. HEADNOTES: DECLARATION OF MISTRIAL – A RETRIAL FOLLOWING A MISTRIAL; A DOUBLE JEOPARDY PROBLEM – THE MANIFEST NECESSITY EXCEPTION – STANDARD OF APPELLATE REVIEW – MANIFEST NECESSITY IN THIS CASE – A DYSFUNCTIONAL JURY – THE DECLARATION OF MISTRIAL – FAIRNESS AND IMPARTIALITY DO NOT GUARANTEE UNANIMITY – A TREACHEROUS ALTERNATIVE Circuit Court for Prince George’s County Case No. CT 171198B REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2444 September Term, 2019 _____________________________________ DARIUS TARIK JOHNSON V. STATE OF MARYLAND Leahy, Gould, Moylan, Charles E., Jr. (Senior Judge, Specially Assigned), JJ. Opinion by Moylan, J. _____________________________________ Filed: October 1, 2020 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. Suzanne Johnson 2020-10-01 17:07-04:00 Suzanne C. Johnson, Clerk On April 1, 2019, the appellant, Darius Tarik Johnson, went on trial before a jury, presided over by Judge Michael R. Pearson, in the Circuit Court of Prince George’s County. He was being tried on the five counts of 1) murder, 2) armed robbery, 3) conspiracy to commit armed robbery, 4) the use of a firearm in the commission of a crime of violence, and 5) the use of a firearm in the commission of a felony.

At the end of the third day of trial, April 3, 2019, the State rested and the defense also rested without calling any witnesses. On the morning of April 4, 2019, the fourth day of trial, the jury began its deliberations at 10:14 a.m. Without having reached a verdict, the jury was excused for the day at 5:44 p.m. The jury resumed its deliberations on the morning of April 5, 2019, the fifth day of trial and the second day of jury deliberations.

At a significantly later time on April 5, 2019, Judge Pearson found it necessary to declare a mistrial because of his belief that the jury would unlikely be able to reach a unanimous verdict. A more detailed narration of the events leading up to the declaration of a mistrial will be presented infra. A Retrial Following A Mistrial; A Double Jeopardy Problem Following the mistrial, the charges against the appellant, of course, remained pending. On January 15, 2020, the appellant filed a Motion to Dismiss Indictment on Double Jeopardy Grounds.

A hearing was held on that motion on February 7, 2020, before Judge Pearson. With respect to the controlling Double Jeopardy law, there is no dispute. Ordinarily, once a defendant is placed in jeopardy, he has the right to have the trial completed by the tribunal that had been first empaneled to hear it. If a mistrial is declared over the defendant’s objection, a retrial is presumptively forbidden by the Double Jeopardy Clause.

Arizona v. Washington, 434 U.S. 497, 503-505 , 98 S.Ct. 824 , 54 L.Ed.2d 717 (1978). The Manifest Necessity Exception There is, however, a notable exception to that provision. “At times the valued rights of a defendant to have his trial completed by the particular tribunal summoned to sit in judgment on him may be subordinated to the public interest—when there is an imperious necessity to do so.” Downum v. United States, 372 U.S. 734, 736 , 83 S.Ct. 1033 , 10 L.Ed.2d 100 (1963). See also United States v. Jorn, 400 U.S. 470, 485 , 91 S.Ct. 547 , 27 L.Ed.2d 543 (1971). The presence or absence of imperious or manifest necessity for the mistrial is, indeed, the only issue before us in this case.

The law in this case is not in dispute. In denying the appellant’s motion to dismiss the charges against him on Double Jeopardy grounds, Judge Pearson reasserted his belief that there had been a manifest necessity for the declaration of a mistrial in the appellant’s case. It’s still my perception that there was manifest necessity for the granting of a mistrial because there was no viable alternative at that point that would continue deliberations with the assurance that all 12 jurors would be fair and impartial in their assessment of the evidence. (Emphasis supplied.) Standard Of Appellate Review That is, indeed, the only issue before us.

Was there a manifest necessity for Judge Pearson’s declaration for a mistrial? As we now return to our deferred narration of the jury’s problems in this case, it is important to keep in mind the controlling standard of 2 appellate review. In State v. Fennell, 431 Md. 500, 516 , 66 A.3d 630 (2013), the Court of Appeals was clear. The decision to declare a mistrial is an exercise of the trial judge’s discretion and is entitled to great deference by a reviewing court.

A genuinely deadlocked jury is considered the prototypical example of a manifest necessity for a mistrial. (Emphasis supplied.) See also Simmons v. State, 436 Md. 202, 212 , 81 A.3d 383 (2013). Manifest Necessity In This Case The jury is this case retired to begin its deliberations on April 4, 2019 at 10:14 a.m. The jury immediately revealed itself to be a very communicative one.

At 11:20 a.m., it submitted the question, “Can a person be guilty even if that person was not the shooter, did not shoot the murdered person?” Judge Pearson directed the jury to refer to the written jury instructions, of which it had been given a copy. At 1:39 p.m., the jury sent the very promising news that, “We are very close to a decision.” The note included the question: “Please provide detailed guidance on why the defense and prosecution can ask how we voted if we have to return a unanimous decision?” The jurors were somehow troubled about having to commit themselves. Judge Pearson provided a written response to that query. The first sign of more significant trouble appeared at 3:07 p.m.

A jury note suggested that the jury as a whole might be having a problem with one individual juror. What can we do if one person does not comprehend the verdict sheet or the binding nature of the instructions? (Emphasis supplied.) 3 At that point, Judge Pearson decided to give the jury the Allen charge. He did so over the State’s objection.

He firmly added, moreover, “I am only giving this one time.” He then charged the jury. THE COURT: In light of the most recent communication from the jury I have one additional instruction that I would like to read to you. The verdict must be the considered judgment of each of you. In order to reach a verdict, all of you must agree.

In other words, your verdict must be unanimous. You must consider and consult with one another and deliberate with a view to reaching an agreement if you can do so without violence to your individual judgment. Each of you must decide this case for yourself but do so only after an impartial consideration of the evidence with your fellow jurors. During deliberations, do not hesitate to re-examine your own views.

You should change your opinion if convinced you are wrong but do not surrender your honest belief as to the weight or effect of the evidence only because of the opinion of your fellow jurors or for the mere purpose of reaching a verdict. And with this additional instruction along with the other instructions that I have already given you in writing, I am going to ask that you review all of it, and you continue with your deliberations. Thank you. (Emphasis supplied.) At 3:50 p.m., the jury submitted another question, “Please define first-degree felony murder.” Judge Pearson again referred the jury to the written jury instruction.

The first sense of significant trouble arose at 5:33 p.m. The court received a note from an individual juror asking the following: Can I speak with you about our decision on the verdict because one of the jurors has admitted to all the jurors of a past verdict she made on another trial with a not guilty verdict. Then found out later her decision was a mistake. The court did not respond to that inquiry at that time.

The jury was released for the day at 5:44 p.m. 4 A Dysfunctional Jury Before the jury reconvened on the morning of April 5, 2019, Judge Pearson had received two ex parte communications from Juror No. 25. When the whole jury reconvened, the judge explained: Over the course of the evening break, the Court received a voicemail message from Juror No. 25 expressing that Juror No. 25 wanted to speak to the Court about ‘some things’ that were going on during deliberations. This morning the Court has received another note directly from Juror No. 25 identifying eight separate issues that that juror would like the Court to address. (Emphasis supplied.) While the rest of the jury remained in the jury room, Juror No. 25 was brought into the courtroom and questioned by Judge Pearson.

Juror No. 25’s complaint indicated that the jury was split 11-1, with Juror No. 25 apparently as the lone juror holding out for a conviction. The juror complained, “I felt that at one time all 11 of them were coming at me.” That juror also pointed out that information that had never been introduced into evidence had been referred to and argued in the course of the jury deliberations. That information was that the appellant’s grandmother had “put her house up to get a lawyer” for the appellant. The purpose for that information ostensibly was to indicate how strongly the grandmother believed in the appellant’s innocence.

Juror No. 25 also indicated that she “felt threatened” when another juror wanted to “demonstrate” how a key disputed act in the evidence did or did not occur. The proposed demonstration referred to the disputed issue of whether the appellant had hit the victim in the head with a gun. Juror No. 25 had told the other juror, “Don’t demonstrate nothing on me.” 5 Juror No. 25 stated that she was “feeling bullied by the jury… to think in line with them. I am constantly being asked why I can’t understand the law as they see it.” She added, “They was reading it out loud,” apparently referring to the jury instructions.

Juror No. 25 explained that at one point, Juror No. 43 was attempting to persuade her to compromise when Juror No. 25 got up and moved from the conference table to “over against the wall” where she put her feet up and closed her