Jones v. State

Orth, C. J., delivered the opinion of the Court. WILLIAM CORNELIUS JONES, calling upon the Fifth Amendment to the Constitution of the United ⁵⁰⁶ States, claims that if he were now tried on a charge that he robbed Eugene Alfred Contee with a deadly weapon on 9 October 1971 he would be “subject for the same offense to be twice put in jeopardy of life or limb.” He is correct. I The double jeopardy claim of the Fifth Amendment is applicable to the States through the Fourteenth Amendment. Benton v. Maryland, 395 U. S. 784, 787 .

The constitutional policies underpinning the Fifth Amendment’s guarantees are implicated when an accused in a criminal proceeding is put on trial before the trier of fact, whether the trier be a jury or a judge. Green v. United States, 355 U. S. 184, 188 ; Wade v. Hunter, 336 U. S. 684, 688 . Beyond any question, Jones was placed in jeopardy for the crime of robbing Contee. An indictment filed in the Circuit Court for Prince George’s County on 22 February 1972 charged him with the offense. 1 It came on for trial before a jury on 21 June 1972 on his plea of not guilty.

Four witnesses were called by the State and examined before court adjourned for the day. The next morning when trial resumed the court declared a mistrial sua sponte over the objection of Jones. The precise question is when does a mistrial, judicially declared over the objection of the defendant, raise the double jeopardy barrier against a second prosecution. The fountainhead decision on the question is United States v. Perez, 9 Wheat.

(22 U. S.) 579 (1824). Mr. Justice Story, for a unanimous Court, said, at 580: “We think, that in all cases of this nature, the law has invested Courts of justice with the ⁵⁰⁷ 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 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 favour 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 cases, upon the responsibility of the Judges, under their oaths of office.” In its most recent case on the question, Illinois v. Somerville, 93 S. Ct. 1066 , decided 27 February 1973, the Supreme Court said, at 1069: “This formulation, consistently adhered to by this Court in subsequent decisions, 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.” The circumstances leading to the declaration of a mistrial in the case before us demonstrate the validity of the Court’s characterization of the situations arising during the course of a criminal trial as “varying and often unique.” II During the course of defense counsel’s opening statement to the jury, he said: “. . . We will show as a matter of fact that the State’s witnesses, both Mr. and Mrs. Contee, ⁵⁰⁸ have sold heroin, they are narcotics dealers, they did in fact live in Livingston Terrace, and we will show Mr. Contee’s actual criminal record when he takes the stand . . .” At a bench conference the Assistant State’s Attorney requested the court to declare a mistrial sua sponte. He argued that what defense counsel said he would show was clearly inadmissible and “totally inflammatory.” In answer to the court’s inquiry as to what he intended to prove with respect to Mr. and Mrs. Contee dealing in heroin, defense counsel said he had a statement from each of them to that effect. The court did not approve “of that type of introductory statement” but did not think that “it is inflammatory to the extent it prejudices the jury.” It believed that the matter of prior criminal record went to the credibility of Contee as a witness.

The Assistant State’s Attorney asserted that the prior criminal record of a witness could not be used for impeachment. 2 He said: “The only way you can do that is if it is directly relevant to the case, it has some bearing on this particular case.” The court said it would reserve its opinion on the motion for mistrial to give the State an opportunity to show that what it asserted was the law. After a short recess the court announced at a bench conference: “The motion for a mistrial is denied inasmuch as the State is unable to furnish any proof of the proffer made to the Court as to what the law was.” During the course of its case, the State called Eugene Alfred Contee, the victim of the robbery. He said that he lived at Livingston Terrace, 5008, Oxon Hill, Maryland, on 9 October 1971. He was asked by the Assistant State’s Attorney: “And at that time would you tell us what it was you were doing for a living?” The transcript of the proceedings reads : “A. Well, I was working part-time in a T.V. Shop, and I was hustling. ⁵⁰⁹ Q. And when was that when you say hustling?

A. When was that? Q. Yes. A. On October 9. Q. What do you mean when you say hustle?

A. That I, you know, sell drugs for a living. Q. What type of drugs were you selling? A. Reefer. Q. Beg your pardon ?

A. Reefer, heroin. Q. Are you still in that line of trade? A. Not now. Q. When did you stop?

A. Couple months ago, four or five months ago.” Contee then recounted the robbery of him on 9 October 1971. On the cross-examination of Contee, he was questioned about how he made his living. It was adduced that he had not worked in the T.V. repair shop for nine months to a year. He did not believe he worked there at the time of the robbery. “I would work there off and on . . .

I worked in the sales department, and occasionally I drove a truck.” He also worked occasionally — “whenever I wanted to” — as a painter in an automobile body and fender repair shop. The matter of his narcotics dealing was pursued: “Q. Now, be very candid about it, you didn’t have these T.V. shop jobs or the job at the body shop to support your family, really? A. No. Q. That was more a cover-up than anything? A. Yes.

Q. You really made your living and supported your family and made the money by selling narcotics? A. Not necessarily; no. ⁵¹⁰ Q. Did you make a substantial part of your money by hustling? A. Somewhat. Q. Did you report the income from this hustling and sales of narcotics on your Internal Revenue— A. No, not then.

Q. Have you filed your income tax for the year 1971? A. Yes, I have filed them, but I haven’t sent them in yet. Q. You mean you made them out? A. Made them out.

Q. Do you plan to record your income from hustling to Internal Revenue? A. No. No. Q. Now, you indicate that you were selling reefers. What exactly is a reefer? A. Marijuana.

Q. And you also sold heroin? A. Yes. Q. How long were you in that? A. Maybe a year, year and a half.

Q. And did you have any particular clientele or did you sell it to whomever you trusted? A. I had a particular clientele. Q. Sell to any youngsters ? A. No. Q. Always made sure they were how old?

A. My age or more. Q. How old are you, sir? A. Twenty-seven.” Contee persistently denied that any of the cash of about $1500 stolen from him in the robbery was from the sale of narcotics — “not a penny.” “That money came from little things that I was doing, not narcotics or anything.” He was sure of that “Because I didn’t have anything at the time.” Defense counsel pursued the subject: ⁵¹¹ “Q. Where do you keep the money from the sale of narcotics, in the bank? A. No; I don’t keep it anywhere.

I never got in a position where I ever accumulated enough where I could do anything with it that I wanted to do because of losses that I took in particular places. Q. Are you telling us in the sale of narcotics or hustling or heroin you never made any money? A. Yes; I made some money. Yes.

I didn’t say I didn’t make any.” Defense counsel returned to the matter later in the cross-examination. Contee testified that he identified Ernest Robert Dudley as one of the robbers, and in answer to the question “Do you know what happened to Dudley?” he said that Dudley had been shot and killed. The cross-examination continued: “Q. And you know it wasn’t really a hold-up, don’t you ? A. I don’t know what happened.

All I know is what I heard. Q. Did you make a statement to Mr. Campbell [a Public Defender Investigator] that was no hold-up when Dudley was killed? A. Yes. Q. Tell us why you said that.

A. Because I had heard through other sources that something else went down. Q. Holding up marijuana men, heroin sellers, isn’t quite accepted, is it, in the community? A. I don’t know. No; holding up anybody isn’t accepted in any community.

Q. Particularly in your hustling community holding up a heroin dealer isn’t particularly regarded as fair play, is it ? A. Well, really no where. ⁵¹² Q. Did you have anything to do, Mr. Contee, with doing away with Dudley? A. No.” It was adduced that Contee knew Dudley before the robbery but had never seen Jones before. He was asked if he had “any idea how [Jones] got arrested?” “A. No; I don’t.

I don’t have any idea whatsoever. All I know is that I gave over some information that I had received from a reliable source, and I gave it to him. Q. And that reliable source called up on the telephone? A. Right.

Q. And he was one of your co-hustlers ? A. Not necessarily. Just a friend. Q. But he knew something about the narcotics trade, didn’t he?

A. I assume that he do; yes. Q. Do you want to identify him to the members of the jury and the Court? A. No; he is not in here. Q. Why not?

A. Because I don’t, you know. Q. You don’t know what? A. Because I don’t want to divulge my source of information. Q. Now, did this person tell, you that he had personal knowledge of who was involved in the hold-up ?

A. He told me that he— Q. Just answer my question. Did he have personal knowledge of who was involved in the hold-up? A. Yes. Q. Did you relay the name of this informant to the police or Mr. Arnold? [Assistant State’s Attorney] A. No. ⁵¹³ Q. Did they ask you for it?

A. No.” The informant gave Contee the name of Cornelius Jones as one of the men involved in the hold-up, and “he gave me a piece of paper with his tag number on it, his driver’s license, his name and his address