Mansfield v. State

BELL, C.J. I. The petitioner, Christopher Mansfield, was tried in a bench trial at the Circuit Court for Caroline County on five counts, ²⁷³ charging statutory sex related offenses, 1 arising out of his ²⁷⁴ alleged sexual assault of a minor years earlier. At the close of all of the evidence, the petitioner having testified in his own defense, the trial judge, sua sponte and over the petitioner’s objection, “declare[d] a mistrial on herself,” intending to set the case in for a new trial before another judge. This decision was upheld by both the motions judge, from whom the petitioner initially sought relief, in the form of dismissal of the indictment on the ground of double jeopardy, and by the Court of Special Appeals, to which he appealed the adverse rulings. 2 This Court granted the petitioner’s petition for writ of certiorari to determine whether, under the facts and circumstances sub judice, there was “manifest necessity” for the trial judge’s declaration of mistrial, thus permitting the petitioner’s retrial. Before the start of this trial, the petitioner had been convicted in two separate, unrelated cases of sexual offenses involving young women who were minors, “under the age of 17 ²⁷⁵ or 16.” Those judgments of conviction were being appealed at the time.

The trial judge was aware of these convictions and, as to at least one of them, so too were the prosecutor and defense counsel. Indeed, the trial judge had presided over one of the unrelated sexual offense cases, a jury trial, in which both the prosecutor and defense counsel in this case had participated. In addition, she was aware of the other case involving a different minor, which had been presided over by a retired, recall judge. These convictions were not discussed prior to trial; although she mentioned the convictions during the trial, after jeopardy had attached, thereby acknowledging that she was aware of them, the trial judge did not mention them before jeopardy attached.

Prior to trial, it was clear that the complaining witness had not reported the sexual offenses she accused the petitioner of committing promptly or within a reasonable time of their commission. The charging documents alleged that the offenses occurred in 2005 but that they were not reported by the complaining witness until 2008. In fact, in preliminary discussions of the ease, the State advised the trial judge that the complaining witness had not reported immediately the sexual offenses lodged against the petitioner and that it expected her to testify that, nearly three years after the event, after she heard a sermon at the church she attended, she decided to come forward with the sexual assault allegations against the petitioner. The State also apprised the court that it intended to call five other witnesses, none of whom had personal knowledge of the alleged offenses or would provide forensic evidence.

For the defense, defense counsel informed the court that it intended to call the petitioner, and only the petitioner, to testify. Moreover, during its brief opening statement, the defense made clear what its defense would be and what the petitioner would testify to, that the alleged incident “did not happen.” As expected, consistent with the preliminary discussions, the State’s case consisted of the complaining witness, her mother, a former friend to whom it was alleged the complain ²⁷⁶ ing witness related the sexual offense during the summer in which it occurred and three other witnesses. 3 The complaining witness testified that she had been sexually assaulted by the petitioner, a friend of the family, in August of 2005, when she was thirteen years old and that she reported the incident in 2008. She explained the circumstances: the petitioner had been hired by her parents to do work on the family’s house, which was located next to the trailer where the family resided. After she delivered the glue that the petitioner had requested, she said that the petitioner asked her whether she had ever had sex.

When she did not respond, the complaining witness testified that the petitioner told her that, unless she had sex with him, he would tell her parents that she was sexually active. She concluded that, after she had performed fellatio on the petitioner for a brief time, she and the petitioner engaged in sexual intercourse. The complaining witness’s mother testified that, in May of 2005, the petitioner was hired to redo the family’s kitchen but quit, without notice, before completing the job. She further testified that, after a June 2008 meeting with her husband, their pastor, two former youth leaders, and the complaining witness, at which the complaining witness first alleged that she had been raped by the petitioner in the summer of 2005, she then went to the police to report the incident.

The complaining witness’s former friend was offered to corroborate her testimony that the sexual assault occurred. She testified that the complaining witness told her, during the ²⁷⁷ summer in which it allegedly occurred, that the complaining witness had “sex with the guy that was working on the house.” She also said that the complaining witness did not say “it was rape or anything.” None of the State’s other witnesses had any knowledge of the alleged offense until some years later. The subject of the petitioner’s prior sexual convictions was brought up three times, each time by the trial judge, before the defense presented its case. During the testimony of the complaining witness, the trial judge inquired whether the complaining witness and her parents had ever discussed “the fact that [the petitioner] had been charged in two other cases involving alleged rape.” Subsequently, she asked the complaining witness’s mother directly, whether she was aware of the “other allegations involving” the petitioner and whether she had “any recollection of having conversations about [the] allegations” involving petitioner.

Finally, prior to the petitioner being called to give testimony, the trial judge asked the State if it intended to use the petitioner’s two prior sexual convictions to impeach his testimony. 4 When the petitioner took the witness stand, he testified as counsel, in opening statement, said he would: he denied ever having sexual contact with the complaining witness. He did, on the other hand, corroborate the complaining witness’s testimony that, in August 2005, he was engaged to, and did, perform repairs to the complaining witness’s family home. At the close of the evidence and after a brief recess, the trial judge, over the petitioner’s objection, sua sponte declared a mistrial. She explained, first, “the dilemma that I have”: ²⁷⁸ “This case basically comes down to a he said/she said situation and if one chooses to believe [the complaining witness’s] version of what happened, which was certainly credible, then a fact finder can make a finding beyond a reasonable doubt that [the petitioner] is guilty.

Now if the fact finder elects not to believe [the complaining witness] and finds [the petitioner’s] version more credible, then the Court would then have to return a verdict for, of not guilty. This is the dilemma that this Court has. Not placed into evidence, either by way of an impeachable conviction or evidence if admissible of other past wrong acts, this Court has knowledge that [the petitioner] has two convictions, sexual-related convictions involving young women under the age of 17 or 16. I did the first case____and Judge Cal Sanders did the second case____” Then she explained why she believed that it—her knowledge of the petitioner’s prior convictions and the partiality it engendered—made it manifestly necessary for her to declare a mistrial: “I cannot extract out of my brain and my analysis of whether to believe [the petitioner] what I know from those other two cases.

Now had there been other evidence in this case, forensic evidence, if, if perhaps [the complaining witness] had made a, a prompt report of the sexual assault, if [the petitioner] had made a statement in admission, all those things would alter my decision today, but I’m basically left as a fact finder for deciding who I’m going to believe just based upon their testimony. And it’s a moral dilemma to me and I told counsel I don’t take this lightly____[I]f this had been a jury trial, I wouldn’t be in this dilemma, cause the jury’s the fact finder, not the Court. I’m the fact finder and I’m not able to do it, knowing what I know about [the petitioner]. So that’s why I’m declaring a mistrial....” The petitioner subsequently moved to dismiss the indictment on double jeopardy grounds.

He argued that “there was not manifest necessity for the granting of the mistrial where [the trial judge] had knowledge of the prior [sexual assault] cases well before the trial began.” The motion’s judge denied ²⁷⁹ the petitioner’s motion. Relying on this Court’s decision in Cornish v. State, 272 Md. 312 , 322 A.2d 880 (1974), he concluded that the trial judge “had no choice but to declare a mistrial” once she had “perceived that the trial of [the] case could not proceed because of some prejudice to” the petitioner. According to the motions judge, it is inconceivable that the trial judge could have known, prior to jeopardy attaching, that, to resolve the case, she would be required to weigh the credibility of the complaining witness against that of the petitioner, that the case would devolve into, in the words of the trial judge, a “he said/she said situation.” He elaborated: “[The trial judge] had no way of knowing how this case was going to proceed. She could not know in advance what the victim was going to say.

She could not know in advance that the Defendant might take the stand. And she certainly could not know in advance that this case would come down to what she determined to be a question of credibility of two witnesses. And only that. [Apparently there was no other evidence, DNA or scientific evidence to establish ..., one way or the other ..., the guilt or innocence of the Defendant.” The Court of Special Appeals, in an unreported opinion, affirmed the lower court’s ruling. The intermediate appellate court agreed with the petitioner “that an alternative in this case would have been a recusal prior to the attachment of jeopardy.” Nevertheless, chiding the petitioner for “improperly focus[ing] on the process rather than the result,” it rejected his argument in other respects.

The Court of Special Appeals reasoned that, knowing that the information she possessed about the petitioner’s earlier convictions would be to his “detriment,” the trial judge “was unable to see any other alternative to a mistrial.” It also was persuaded that a mistrial was necessary because “the public’s confidence in the rule of law would be harmed ... by having a partial judge decide [the] case.... ” The petitioner sought certiorari review of the Court of Special Appeals’ decision. We granted his petition, Mansfield v. State, 415 Md. 40 , 997 A.2d 791 (2010), to determine ²⁸⁰ whether, where a trial judge, over defense counsel’s objection and on the basis of information known by the judge prior to trial, declares a mistrial at the conclusion of all of the evidence in a bench trial, the constitutional prohibition against double jeopardy is excused by the doctrine of manifest necessity. 5 We shall hold that it is not, that the constitutional prohibition against double jeopardy remains applicable under such circumstances. Accordingly, we shall reverse.

II

The Fifth Amendment to the United States Constitution 6 contains a Double Jeopardy Clause. That clause, like the Amendment itself, see Malloy v. Hogan, 378 U.S. 1 , 84 S.Ct. 1489 , 12 L.Ed.2d 653 (1964), is made applicable to State criminal prosecutions through the Fourteenth amendment. See Benton v. Maryland, 395 U.S. 784, 794 , 89 S.Ct. 2056, 2062 , 23 L.Ed.2d 707, 716 (1969) (holding that “the double jeopardy prohibition of the Fifth Amendment represents a fundamental ideal in our constitutional heritage, and that it should apply to the States through the Fourteenth Amendment”); Purnell v. State, 375 Md. 678, 691 , 827 A.2d 68, 75 (2003) (“The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment, provides the criminally ²⁸¹ accused with protection from, inter alia, multiple punishment stemming from the same offense.”); State v. Woodson, 338 Md. 322, 327-28 , 658 A.2d 272, 275 (1995) (“The Fifth Amendment’s double jeopardy bar is applicable to the states through the Fourteenth Amendment”); Parks v. State, 287 Md. 11, 14 , 410 A.2d 597, 600 (1980) (“The prohibition against placing an accused twice in jeopardy for the same offense is rooted in the common law of this State and in addition is mandated by virtue of the fifth and fourteenth amendments to the United States Constitution.”); Bell v. State, 286 Md. 193, 201 , 406 A.2d 909, 913 (1979) (“[T]he prohibition against twice placing an accused in jeopardy contained in the Fifth Amendment to the Constitution of the United States is applicable to state criminal prosecution by virtue of the Fourteenth Amendment.”); Pugh v. State, 271 Md. 701, 704 , 319 A.2d 542, 544 (1974) (“The prohibition against twice placing a defendant in jeopardy is applicable in this State as a common law principle, and also by virtue of the Fifth and Fourteenth Amendments to the United States Constitution”); Couser v. State, 256 Md. 393, 395, 260 A.2d 334, 335 (1970) (“[T]he double jeopardy standards of the federal constitution are applicable to the states through the due process clause of the Fourteenth Amendment”). Providing that no person “shall ... be subject for the same offense to be twice put in jeopardy of life or limb,” “[t]he Fifth Amendment guarantee against double jeopardy[, the double jeopardy clause,] prohibits both successive prosecutions for the same offense as well as multiple punishment for the offense.” Dixon v. State, 364 Md. 209, 236 , 772 A.2d 283, 299 (2001); Newton v. State, 280 Md. 260, 263 , 373 A.2d 262, 264 (1977) citing United States v. Wilson, 420 U.S. 332, 342-43 , 95 S.Ct. 1013, 1021 , 43 L.Ed.2d 232 (1975); Brown v. Ohio, 432 U.S. 161, 166 , 97 S.Ct. 2221, 2228 , 53 L.Ed.2d 187, 195 (1977); North Carolina v. Pearce, 395 U.S. 711, 717 , 89 S.Ct. 2072, 2076 , 23 L.Ed.2d 656, 664-665 (1969). 7 ²⁸² A prosecution commences when jeopardy attaches.

See Blondes v. State, 273 Md. 435, 444 , 330 A.2d 169, 173 (1975) quoting United States v. Jorn, 400 U.S. 470, 480 , 91 S.Ct. 547, 555 , 27 L.Ed.2d 543, 554 (1971). Jeopardy, it is well settled, attaches when the defendant has been “put to trial before the trier of the facts, whether the trier be a jury or a judge,” and thereby “subjected to the risk of conviction.” Serfass v. United States, 420 U.S. 377, 388-392 , 95 S.Ct. 1055 , 1062 -1065, 43 L.Ed.2d 265, 274-275 (1975). Indeed, that is said to be “the basic test of initial jeopardy.” Daff v. State, 317 Md. 678, 688 , 566 A.2d 120, 125 (1989), citing Serfass, supra. In Maryland, jeopardy, generally, attaches at a bench trial “when the judge begins to hear or receive evidence.” See In re Kevin, 402 Md. 624, 636 , 938 A.2d 826, 833 (2008); In re Bennett, 301 Md. 517, 524 , 483 A.2d 1242, 1245 (1984); Blondes v. State, 273 Md. 435, 444 , 330 A.2d 169, 174 (1975) See also Daff, in which, explicating Serfass, 420 U.S. at 388 , 95 S.Ct. at 1062 , 43 L.Ed.2d at 274 , we said: “[i]n a nonjury trial, jeopardy attaches when the court begins to hear evidence.” 317 Md. at 688 , 566 A.2d at 125 .

It is now well settled that the double jeopardy clause will not bar a new trial when a mistrial, the abortion of the trial before verdict and without the defendant’s consent, was declared out of “manifest necessity.” United States v. Perez, 22 U.S. (9 Wheat.) 579, 580 , 6 L.Ed. 165, 165 (1824); Illinois v. Somerville, 410 U.S. 458, 461 , 93 S.Ct. 1066, 1069 , 35 L.Ed.2d 425, 429 (1973); United States v. Jorn, 400 U.S. 470, 480-481 , 91 S.Ct. 547, 555 , 27 L.Ed.2d 543, 554 (1971); Gori v. United States, 367 U.S. 364, 368-69 , 81 S.Ct. 1523, 1526 , 6 L.Ed.2d 901, 905 (1961). In Perez , the United States Supreme Court, addressing the issue of a mistrial’s impact on double jeopardy for the first time, enunciated the rule still followed today: “We think, that, in all cases of this nature, the law has invested Courts of justice with the authority to discharge a ²⁸³ 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.” 22 U.S. at 580 , 6 L.Ed. at 165 .

Although the mistrial reviewed in Perez and, thus, the rule announced, involved a jury trial, the same rule, and analysis, applies when the mistrial is declared in a bench trial. Cornish v. State, 272 Md. 312, 315 , 322 A.2d 880, 883 (1974). In that case, this Court applied the test announced in Perez to determine whether retrial of a defendant, who was on trial for murder, “following the trial judge’s sua sponte declaration of a mistrial would violate the double jeopardy prohibition of the Fifth Amendment to the United States Constitution.” Id. at 313, 322 A.2d at 882 . The facts of Cornish and the Court’s analysis are instructive.

The defendant was charged with murder and related offenses. Id. Subsequent to requesting a jury trial and informing the trial court of his intent to file a motion to suppress if the State, which had not answered his discovery motion, attempted to introduce his inculpatory statement, the defendant elected a bench trial. Id. at 314 , 322 A.2d at 882 .

The prosecutor called one witness, a police officer, who “testified as to the details of the crime and certain clothing and other objects found near the victim’s body.” Id. He then addressed the court: “Now, Your Honor, inasmuch as it was anticipated that this case was going to be a guilty plea [on aj statement of facts, that is the only witness the State has available,” thus, indicating his understanding that the defendant had agreed either to plead guilty or “allow the State to present the remainder of its case on an agreed statement of ²⁸⁴ facts.” Id. Disagreeing with the State’s recollection—indicating instead that the agreement was to proceed on an agreed statement of facts “if we could agree on a statement of facts”—defense counsel rejected the trial judge’s suggestion that the case be continued, and, although willing to stipulate to the testimony of other police officers, objected to the use of his statement because of the discovery violation. Id.

The trial judge sustained the defendant’s objection to the State’s use of the defendant’s statement, whereupon the defendant moved to dismiss the charges, arguing that he had been denied a speedy trial and “he is now in jeopardy.” Id. at 314-15 , 322 A.2d at 882 . The State requested a continuance. Id. Denying both motions, id. at 315 , 322 A.2d at 882 , the trial judge declared a mistrial.

She explained: “Secondly,[ 8 ] is the fact that it was stated clearly, perhaps too clearly, that it was anticipated that a guilty plea was going to be entered. Now that was stated to the trier of the facts who had to judge the case and give a verdict on the issue of guilt or innocence, and I know that trial judges, experienced trial judges, are supposed to be able to, and I hope we can, as far as possible ignore prejudicial remarks during the course of trial where we are sitting as the trier of the facts and yet judges are human also, and subconsciously perhaps, this reference to the guilty plea was implanted in my mind, and keep in mind this was a murder case. - “Ail criminal cases are serious but this probably is the most serious with which any defendant or any court can be faced. This was, I think, a prejudicial remark which might ²⁸⁵ have been very difficult for me to overcome in the ultimate judgment of this case.” Cornish v. State, 272 Md. at 315 , 322 A.2d at 883 . The petitioner moved to dismiss the case on the ground of double jeopardy.

Id. at 316 , 322 A.2d at 883 . That motion was denied by the motion judge. Id. at 316 , 322 A.2d at 883 . We affirmed that judgment.

In doing so, we relied on “the basic principles for determining the permissibility of a retrial following a mistrial,” set forth in Perez, supra, “the ‘fountainhead decision’ on the application of the Federal Constitution’s double jeopardy clause to a retrial following the declaration of a mistrial.” Cornish v. State, 272 Md. at 316 , 322 A.2d at 883 . We gleaned from it and subsequent Supreme Court cases addressing the issue that “[t]he most significant guideline for the exercise of the trial judge’s discretion is that a mistrial is to be declared only where it is ‘manifestly necessary,’ or ‘under urgent circumstances,’ or ‘only in very extraordinary and striking circumstances,’ and declaring a mistrial is not ‘to be lightly undertaken.’ ” Id. at 318 , 322 A.2d at 884 citing and quoting United States v. Perez, supra; United States v. Coolidge, 2 Gall. 364 , 25 Fed. Case No. 14, 858 (C.C.Mass. 1815); Downum v. United States, 372 U.S. 734, 736 , 83 S.Ct. 1033, 1034 , 10 L.Ed.2d 100 (1963); Illinois v. Somerville, 410 U.S. at 471 , 93 S.Ct. at 1069 , 35 L.Ed.2d at 429 . After reviewing the circumstances in which retrial, after mistrial, has been held to be permitted, see Cornish, 272 Md. at 318-19 , 322 A.2d at 884-85 (and cases therein cited), and those in which retrial has been prohibited, id. at 319-320 , 322 A.2d at 885-86 , (and cases therein cited), 9 the Court applied the Perez standard to the situation faced by the trial court in that case. It rejected the defendant’s argument that the trial ²⁸⁶ judge abused her discretion when she declared a mistrial, holding, instead, that, under the circumstances there presented, there was manifest necessity for the declaration of a mistrial.

Id. at 320, 322 A.2d at 886 . Comparing the situation of the trial judge in that case to that of an occurrence during a jury trial “when it is made to appear to the court that ... the jurors, or any of them, are subject to such bias or prejudice as not to stand impartial between the government and the accused,” id. at 321 , 322 A.2d at 886 , quoting Simmons v. United States, 142 U.S. 148, 154 , 12 S.Ct. 171, 172 , 35 L.Ed. 968, 971 (1891), thus rendering a “juror’s impartiality doubtful,” while recognizing the imperfection of the analogy, 10 the Court concluded that it was not an abuse of discretion for the trial judge to declare a mistrial when the trial judge was under the impression that a guilty plea was to be entered. Id. at 322, 322 A.2d at 887 . In so doing, it accepted the trial judge’s statement that “this reference to the guilty plea was implanted in my mind” and that it was “a prejudicial remark which might have been very difficult for me to overcome in the ultimate judgment of this case.” Id. at 321 , 322 A.2d at 886 .

The Court explained: “[W]here the impartiality of a judge in a non-jury trial is in fact affected by remarks during the trial, and the judge acknowledges that his objectivity is compromised, the situation is the same as when a juror’s impartiality is rendered doubtful. The judge, as trier of the facts in lieu of a jury, cannot properly assess the evidence if his