McCorkle v. State

ALPERT, Judge. In the fourth year of President James Monroe’s second term (1824), Supreme Court Justice Story declared the polestar of mistrial/double jeopardy cases: the “manifest necessity” rule. The issue in this case is whether the trial court correctly declared a mistrial based on the unexpected absence of the key prosecution witness. In contending that the mistrial was declared improperly, appellant Gregory Allen McCorkle has asked us to address the following six questions: 1.

Did the trial judge fail to exercise sound discretion in declaring the existence of manifest necessity for a mistrial and permitting reprosecution of the defendant? 2. Was a mistrial improperly granted where the State failed to shoulder the burden of demonstrating manifest necessity, and the trial judge declared the mistrial on independent grounds not asserted by the State? ³³ 3. Did the trial judge err in holding that absence of a prosecution witness was grounds for mistrial where no state policy or important interest of judicial administration was at issue? 4. Did the trial judge commit an abuse of discretion by ignoring evidence of the State’s negligent handling of its witness and its assumption of the risk of the witness’s failure to appear? 5.

Was manifest necessity precluded by the potential for manipulation inherent in the circumstances of the State’s motion for mistrial? 6. Did the trial judge err in neglecting to consider reasonable alternatives to the mistrial, thus barring a retrial of the defendant? We agree with the State that these six questions are a variation on the theme as to whether the trial court properly exercised its discretion in declaring a mistrial. Consequently, we have combined appellant’s six issues into a single question, to wit: WAS THE TRIAL COURT’S DECLARATION OF A MISTRIAL BASED ON MANIFEST NECESSITY?

We hold that it was, and therefore we shall affirm. I. By indictment filed on June 21, 1991 with the Circuit Court for Montgomery County, appellant was charged with two criminal counts arising out of an incident that occurred on or about May 27, 1991 at appellant’s place of employment 1 : (1) felony theft {i.e., theft in excess of $300), in violation of Md.Code art. 27, § 342, and (2) making a false statement to a police officer, in violation of § 150 of Article 27. ³⁴ The record reflects that this indictment resulted primarily from statements given to police by one Cyrus Wayne Morrison, appellant’s former roommate and homosexual lover. The record also reflects that Morrison gave police these statements shortly after appellant had begun dating a woman to whom appellant would subsequently become engaged to be married. Further testimony indicated that, following his break-up with appellant — but prior to reporting appellant’s alleged crimes — Morrison was “really distraught, he was severely depressed, he was sad, he was unhappy of the fact [that appellant] was no longer his boyfriend, that [appellant] was seeing a girl now, Michelle.” (Mr. Morrison’s subsequent unavailability to testify at trial would come to form the basis for the appeal sub judice.) Nevertheless, appellant made his initial appearance on July 12, 1991, and entered a plea of not guilty to both charges.

Subsequently, a jury trial on the merits (DeLawrence Beard, J., presiding) proceeded over several days in the following manner: On February 12, 1992, the jury was sworn and trial commenced. On February 13, 1992, counsel gave their opening statements, and the first three witnesses were heard on behalf of the State: (1) Police officer Stewart Myers, one of two officers who initially responded to appellant’s report of robbery, (2) Fernando Calderon, an eighteen year old fact witness who overheard appellant’s phone call whereby appellant reported the alleged robbery, and (3) Police officer Steven Auger, the other officer who initially responded to appellant’s call. As part of its aforesaid opening statement, the.State explicitly identified Morrison as its “key witness,” and, accordingly, spent a considerable amount of effort introducing the jury to Mr. Morrison’s expected testimony. For its part, the defense’s opening statement also identified Mr. Morrison as the State’s key witness; correspondingly, the defense also focused extensively on Morrison’s expected testimony, as well as his potential motives for so giving it. ³⁵ On February 14, 1992, the State presented its fourth witness, Mark A. Marino, general manager of the subject Hardee’s.

Following Mr. Marino’s testimony, the defense was permitted to call — out of order — its first witness, Dorothy Davis, appellant’s mother. Ms. Davis’s testimony concerned, inter alia, two recent conversations she had had at her hotel with Morrison, one of which occurred the night of February 12th {i.e., the first night of the trial), and the other which occurred the following night (February 13th, i.e., the night before she gave her testimony). As is relevant presently, Ms. Davis stated (on direct examination) that Morrison had indicated to her a reluctance to testify: He [Morrison] said he didn’t want to testify because everything had been blown and twisted out of proportion, there were things that were said that he didn’t say and he didn’t want to testify. * * * * And I said [to Morrison], “If you say you don’t remember what they’re talking about, then you tell them that, because you have to go to court,” because he said he wasn’t going to show up. Q: So, you told him to come?

A: I said, “If you don’t come, they will put you in jail, and if the court sets another date, you may sit in jail for a month or two while they get another trial date.” Following a long holiday weekend, trial recommenced on February 18, 1992. As a preliminary matter, Barry A. Hamilton, Esquire, the prosecutor, indicated that he had two witnesses left in his case in chief. One of them, Detective Ed Tarney, who had investigated the incident, was then ready to testify; the other witness, however, was Morrison, who was — it was believed — temporarily unavailable. Mr. Hamilton explained Morrison’s February 18, 1992 absence to the Court: I spoke to Mr. Morrison, and Ms. Land of my office, we have both spoken to Mr. Morrison today.

I spoke to him as recently as approximately one hour ago. He called Ms. Land early this morning to report that he was ill. I spoke to him at some length, again about an hour ago. ³⁶ He again informed me that he was ill, and that if at all possible would prefer not [to] have to testify today, but [he] would be here bright and early tomorrow morning to testify. I told him that I could not speak for the Court, but I would try to seek that indulgence from the Court.

I am convinced of his bona fides in this matter, and would ask that the Court give us that consideration to take Detective Tarney’s testimony, and then suspend until tomorrow morning to allow Mr. Morrison to testify. He has been in — he was in my office both last Wednesday [February 12, 1992, i.e., the first day of trial] and last Thursday [February 13] all day long. Of course, because of the way things went, we were not able to get to him [earlier than today]. Following Mr. Hamilton’s explanation, the court permitted the State to present the testimony of Detective Tarney.

During a recess (which occurred during a break in Detective Tarney’s testimony), Judge Beard met with counsel in chambers and made a conference call to Morrison at Morrison’s home. After the recess, and following the completion of Detective Tarney’s testimony, Judge Beard and counsel recounted — on the record — the content of the conference call with Morrison: THE COURT: I asked him [Morrison] if he was ambulatory, could he walk. I wanted to know if the man was, as they say, somewhat disabled, or he just didn’t feel well. There is a difference between the two.

I asked him if he was ambulatory, and he said he could walk, but he was in the process of cleaning up his bathroom, where he had vomited essentially. That his stomach was upset. That he would be available tomorrow morning [February 19th]. I told him that we would be looking for him tomorrow at 9:30 [a.m.], that he could come in.

But he said he could come in, but he didn’t feel like it, and he was ill, physically ill. MR. HOOVER [defense counsel]: ³⁷ Thank you for that, Your Honor. That is, of course, absolutely correct, and accurate.

THE COURT: He said he had been vomiting all day, as I recall. Well, since this morning. He also indicated that he had had some telephone conversations with Mr. Hamilton. Which confirms what Mr. Hamilton had indicated to us, I believe, on the record, in court before we retired to chambers at my request.

After the above was made a part of the record, and following an objection by defense counsel that appellant was being prejudiced by the delay caused by Morrison’s absence, the State requested permission from the court to have Detective Tarney retake the stand. The court granted the State’s request, and the following exchange resulted: BY MR. HAMILTON: Q Very briefly, Detective Tarney, you testified on cross examination that you served Mr. Morrison with a summons to testify before the Grand Jury, is that correct? A That is correct.

Q Okay. Just so there is no misunderstanding of the procedure involved. By saying that, does that mean that you actually physically brought him in to testify before the Grand Jury, or simply delivered a document notifying him of a date and place and time to appear? A I just delivered [to] him a document.

Q To the best of your knowledge did Mr. Morrison appear at the appointed time and place to testify? A Yes. Q Did you actually see him the date that he testified before the Grand Jury? A I believe I did, yes.

Following Detective Tarney’s brief additional testimony, the court recessed for the day. The next day, February 19, 1992, Mr. Morrison again failed to appear. And, again, the State explained Morrison’s absence to the court: ³⁸ MR. HAMILTON: Your Honor, Mr. Morrison called my office — called Ms. Sian [sic] in my office about 8:30 this morning informing her that he was still sick, and would be unable to attend court.

I am not here to ask that these proceedings be suspended for Mr. Morrison to get himself here voluntarily- However, I would ask the Court to issue a body attachment forthwith to produce the body of Mr. Morrison. I believe him to be at his home. I have a detective standing by to offer assistance. He has been to the residence, and knows exactly where it is.

I have no other witnesses, of course, he [is] my final witness. Counsel for both parties then briefly debated the procedural practicality of issuing a body attachment, since Morrison lived in Alexandria, Virginia, and wasn’t directly subject to the Maryland court’s jurisdiction 2 . Following this debate, the court proceeded to order a body attachment on Mr. Morrison. Shortly thereafter, the defense called — out of turn (since the final witness for the State, i.e., Morrison, hadn’t yet been called) — two witnesses, Wilfred Jerome Acosta and Rajid Zamani.

The record reflects that on February 19 and 20, 1992 the Montgomery County Police Department, in a joint effort with the Alexandria (Virginia) Police Department, failed to find Mr. Morrison or to ascertain his whereabouts. 3 As a result, when trial recommenced on February 20, the State— ³⁹ having been effectively denied its “key witness” — moved for a mistrial on the grounds of manifest necessity. In granting the mistrial, the court reasoned as follows: I have considered the arguments of counsel on this question, and what I have to do is make a determination as to whether or not this is truly an instance of manifest necessity. It is clear from the record that the witness who is not present, the prosecution’s witness, is not present, Mr. Morrison, but he was summoned. He was notified to appear in court.

He made commitments, apparently to the State’s attorney, but he also made verbal commitments to the Court by way of telephone with both counsel present that his illness prevented him from attending the first day, but he indicated that he would surely be here the second day. The second day he was not here — second day or the first day beyond his anticipated appearance. We are now into the third day, and the record is replete with the indication that the State has exerted every effort to get assistance of the Virginia authorities without successes as late as 7:30 or approximately 7:30 this morning. There is not a wealth of law with respect to manifest necessity, but the Court is not totally without resources.

I have looked at the case of Illinois v. Somerville, 410 U.S.[] 458, [ 93 S.Ct. 1066 , 35 L.Ed.2d 425 ] [(1973)]. In brief, that case simply indicates that manifest necessity is a legitimate reason or can be a legitimate reason for declaring a mistrial even over defendant’s objections provided that there is some basis for the court’s determination. The court’s record indicates that the determination reflects a rational or is reflective — that the Court is satisfied on the record and offers a rational determination for granting the relief prayed by the government. It says, “Pursuant to the ends of public justice.” This obviously arises in instances of double jeopardy, where it ⁴⁰ gets up to the Supreme Court on a double jeopardy basis, and in this case, this case being Illinois v. Somerville, the declaration was considered to be allowable, that there was no double jeopardy.

Again, the court held that the end of public justice would be defeated. Mr. Morrison’s non-appearance is not because of any action or inaction on the part of the prosecution. He did in fact appear in this courthouse on the first two days of trial or at least he appeared twice after the trial had commenced. So, his absence is not because the State did not pursue every reasonable recourse available to it.

Ordinarily, absence of a witness and nothing more would not justify the granting of a mistrial on the State’s motion on the basis of manifest necessity, and that is essentially what the court held in Downum [v. United States, 372 U.S. 734 , 83 S.Ct. 1033 , 10 L.Ed.2d 100 (1963)] in which the State elected to proceed to trial knowing that the witness was not available, but simply taking a chance that he would be by the time that witness would be called to testify. Ultimately, that witness was not available, and the assertion on the part of the prosecution was manifest necessity because of non-availability of the witness. The court looked at the record, felt that this was a tactic determination and the government took a chance that the witness would be available; therefore, that chance should not inure to the detriment of the defendant. * * * But that is not the kind of case that we have here. The State did everything it could to get the witness here.

The State took every precaution, did not take a chance, but had reason to believe that the witness would testify both on the conversations had with [sic] the witness. The Court is satisfied that such was the case based on my conversation with Mr. Morrison with counsel present. I do think that in the interest of public justice the State of ⁴¹ Maryland should be fairly entitled to pursue this matter to a legal conclusion. I think the defendant is also entitled to a legal conclusion in this case either confirming his innocence or his guilt.

This delay I am sure has cost the defendant, and it has cost the State, but it is unresolved owing not to anything done or undone by the prosecution. And even though it is over objection, I find that based on the record in this ease that there was manifest necessity. I am going to declare it in this trial. I think it would be burdensome and unfair to the jurors to have this matter linger and them not knowing when the day of trial would be.

I don’t think any assurances from Mr. Morrison at this point would even justify continuing this matter further. There is no reasonable likelihood that he is going to appear. He hasn’t done so far today irrespective of his representations. (Emphasis added.) Later that day (February 20th), the court set as its new trial date April 20, 1992.

Two weeks later (i.e., on March 5, 1992), appellant filed a “Motion to Dismiss Indictment on Grounds of Double Jeopardy,” and pursuant thereto the court held a hearing on the motion on April 10, 1992. Following the hearing, the court, speaking from the bench, denied appellant’s motion: I have entertained again the argument of counsel and considered the testimony of the witnesses that testified today 4 , and I see no reason compelling or otherwise for the Court to come to the conclusion that its declaration of a mistrial in this case was not justified by the circumstances. ⁴² That it did constitute manifest necessity, and therefore, it will not be disturbed, your motion to dismiss will be denied. (Footnote added.) This timely appeal followed, in which appellant has asked us to address the questions first presented above. II. .

The Fifth Amendment to the Constitution of the United States reads, in relevant part, as follows: “[No person] shall ... be subject for the same' offence to be twice put in jeopardy of life or limb.” This clause (hereinafter, the “Double Jeopardy Clause”) applies to prosecutions for all crimes, whether they be federal (see, e.g., Ex Parte Lange, 85 U.S. (18 Wall.) 163 , 21 L.Ed. 872 (1873)) or state (see, e.g., Benton v. Maryland, 395 U.S. 784 , 89 S.Ct. 2056 , 23 L.Ed.2d 707 (1969) 5 ) in nature. In any event, in all cases tried by jury, jeopardy is said to “attach” when the jury is impaneled and sworn. In reaching our decision herein, there are several significant United States Supreme Court and Maryland state cases, as well as several notable lower federal decisions, which light our way. . In Somerville, supra, respondent was indicted by an Illinois grand jury for the crime of theft.

After a petit jury had been impaneled and sworn, but before any evidence had been presented, the prosecuting attorney realized that the indictment was substantively — and fatally — deficient. Amendment was not possible under Illinois law then existing, and therefore, after determining that further proceedings under this defective indictment would be useless, the trial court declared a mistrial. Two days later the grand jury handed down a second indictment, identical to the first ⁴³ except that the substantive defect had been corrected. Following arraignment, respondent raised the claim of double jeopardy, which the trial court overruled.

Eventually the case, and the double jeopardy issue, wound up in the Supreme Court of the United States (which affirmed the declaration of mistrial and subsequent retrial). We quote at length from Justice (now Chief Justice) Rehnquist’s informative opinion: The fountainhead decision construing the Double Jeopardy Clause in the context of a declaration of a mistrial over a defendant’s objection is United States v. Perez, 9 Wheat. 579 [ 6 L.Ed. 165 ] (1824). Mr. Justice Story, writing for a unanimous Court, set forth the standards for determining whether a retrial, following a declaration of a mistrial over a defendant’s objection, constitutes double jeopardy within the meaning of the Fifth Amendment. In holding that the failure of the jury to agree on a verdict of either acquittal or conviction did not bar retrial of the defendant, Mr. Justice Story wrote: “We think, that in 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 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. * * * 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, rest, in this, as in other cases, upon the responsibility of the Judges, under their oaths of office.” Id. [9 Wheat] at 580. ⁴⁴ (Somerville, 410 U.S. at 461 , 93 S.Ct. at 1069 ; emphasis added.) Justice Rehnquist then stated that the Court had consistently renounced 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.” Id. at 462, 93 S.Ct. at 1069 . Instead, the Court focused on the great “breadth of a trial judge’s discretion, and the reasons therefor, to declare a mistrial”: 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. Id.

(quoting Gori v. United States, 367 U.S. 364, 368 , 81 S.Ct. 1523, 1526 , 6 L.Ed.2d 901 (1961)). Justice Rehnquist then briefly discussed a number of Supreme Court cases in which the declaration of a mistrial had been upheld 6 , before summarizing the general state of the law: While virtually all of the cases turn on the particular facts and thus escape meaningful categorization, it is possible to distill from them a general approach, premised on the “public justice” policy enunciated in United States v. Perez, to situations such as that presented by this case. A trial judge properly exercises his discretion to declare a mistrial if an impartial verdict cannot be ⁴⁵ reached, or if a verdict of conviction could be reached but would have to be reversed on appeal due to an obvious procedural error in the trial. If an error would make reversal on appeal a certainty, it would not serve “the ends of public justice” to require that the Government proceed with its proof when, if it succeeded before the jury, it would automatically be stripped of that success by an appellate court. * * * While the declaration of a mistrial on the basis of a rule or a defective procedure that would lend itself to prosecutorial manipulation would involve an entirely different question, cf. Downum v. United States, supra, such was not the situation in the above cases or in the instant case.

Id. 410 U.S. at 464 , 93 S.Ct. at 1070 (citations omitted, emphasis added). The Downum case is closer — factually speaking — to the case at bar than is Somerville . In Downum, the petitioner (along with three others) was charged in an indictment containing eight counts. On the day of trial, shortly after the jury was selected and sworn, but before any testimony was taken, the prosecution asked that the jury be discharged because its “key witness” as to two of the counts was not then present.

The court granted the prosecution’s request. Two days later when the case was called again and a second jury impaneled, petitioner pleaded double jeopardy, which plea was overruled by the trial court. Following retrial, petitioner was found guilty and, subsequently, he appealed his way to the Supreme Court. The Supreme Court reversed the trial court, thereby determining that, under the circumstances of that case, the double jeopardy plea should have been sustained.

In so deciding, Justice Douglas, speaking for the Court, stated: At times the valued right 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. Wade v. Hunter, [ 336 U.S. 684 ,] 690 [ 69 S.Ct. 834, 837 , 93 L.Ed. 974 ] [(1949)]. Differences have arisen as to the ⁴⁶ application of the principle. See Brock v. North Carolina, 344 U.S. 424 [ 73 S.Ct. 349 , 97 L.Ed. 456 ] [(1953)]; Green v. United States, 355 U.S. 184, 188 [ 78 S.Ct. 221, 223 , 2 L.Ed.2d 199 ] [(1957)].

Harassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict are examples when jeopardy attaches. Gori v. United States, supra, [367 U.S. at] 369 [ 81 S.Ct. at 1526 .] But those extreme cases do not mark the limits of the guarantee. The discretion to discharge the jury before it has reached a verdict is to be exercised “only in very extraordinary and striking circumstances,” to use the words of Mr. Justice Story in United States v. Coolidge, 25 Fed.Cas. 622, 623 [ (D.Mass.1815) ]. For the prohibition of the Double Jeopardy Clause is “not against being twice but against being twice put in jeopardy.” United States v. Ball, 163 U.S. 662, 669 [ 16 S.Ct. 1192, 1194 , 41 L.Ed. 300 ] [(1896)].

Downum, 372 U.S. at 736 , 83 S.Ct. at 1034 . Downum is similar, in one respect, to the case sub judice in that, in both cases, the absence of the prosecution’s key witness formed the basis of the mistrial declaration. In Downum, however, unlike the case sub judice, the prosecution knew about the key witness’s absence before the first jury was impaneled and sworn (ie., before jeopardy has attached). ■ In fact it was this distinction — that is, the prosecution’s knowledge about the absence of its witness before jeopardy attached — on which the case turned. As the Court noted: Here, as in Wade v. Hunter, supra, [336 U.S. at] 691 [ 69 S.Ct. at 838 ], we refuse to say that the absence of witnesses “can never justify discontinuance of a trial.” Each case must turn on its facts.

On this record, however, we think what was said in Cornero v. United States, [ 48 F.2d 69 (9th Cir.1931)] states the governing principle * * * *: “The fact is that, when the district attorney impaneled the jury without first ascertaining whether or ⁴⁷ not his witnesses were present, he took a chance. While their absence might have justified a continuance of the case in view of the fact that they were under bond to appear at that time and place, the question presented here is entirely different from that involved in the exercise of the sound discretion of the trial court in granting a continuance in furtherance of justice. The situation presented is simply one where the district attorney entered upon the trial of the case without sufficient evidence to convict. This does not take the case out of the rule with reference to former jeopardy.

There is no difference in principle between a discovery by the district attorney immediately after the jury was impaneled that his evidence was insufficient and a discovery after he had called some or all of his witnesses.” 48 F.2d, at 71 . That view, which has some support in the authorities, is in our view the correct one. We resolve any doubt “in favor of the liberty of the citizen, rather than exercise what would be an unlimited, uncertain, and arbitrary judicial discretion.” Downum, 372 U.S. at 737-38 , 83 S.Ct. at 1035 (emphasis added; footnotes omitted). Indeed, the Cornero case, quoted in Downum above, expressly set forth the principle that guided the decision in Downum, The ... mere absence of witness discovered after the jury is impaneled is insufficient to deprive the accused of his right to claim former jeopardy upon a subsequent trial where the jury is discharged without his consent and notwithstanding his objection.

Cornero, 48 F.2d at 73 (emphasis added). Moreover, in a footnote that immediately followed the above-quoted text in Downum, the Supreme Court quoted United States v. Watson, 3 Ben. 1 , 28 Fed.Cas. 499, Fed. Case No. 16,651 (S.D.N.Y.1868), as standing for the proposition that the proper inquiry (vis-a-vis “manifest necessity”) focuses on the relationship between, on the one hand, the ⁴⁸ timing of the activity that allegedly constitutes the manifest necessity, and, on the other hand, the activity itself: The illness of the district attorney [that caused the alleged manifest necessity in Watson ], it not appearing by the minutes that such illness occurred after the jury was sworn, ... cannot be regarded as creating a manifest necessity[.] Downum, 372 U.S. at 738 , 83 S.Ct. at 1036 (quoting Watson, 28 Fed.Cas. at 500-01). In Arizona v. Washington, 434 U.S. 497 , 98 S.Ct. 824 , 54 L.Ed.2d 717 (1978), the Supreme Court also dealt with, the issue of manifest necessity in the context of potential juror bias. There, the trial judge granted the prosecutor’s motion for a mistrial predicated on an allegedly improper and prejudicial comment made by defense counsel during the defense’s opening statement.

The trial judge, however, neither expressly found that there was “manifest necessity” for a mistrial, nor expressly stated that he had considered alternative solutions. (In contrast, the trial judge in the case sub judice did both — i.e., he found that there was manifest necessity for a mistrial and he expressly considered alternative solutions, including continuance.) Nevertheless, the Supreme Court acknowledged the high degree of deference given to a trial judge’s decision to grant a mistrial, and accordingly permitted the trial court’s determination to stand. Justice Stevens, writing for the