State v. Baker

Getty, J. This appeal involves a mutual shoot-out between rivals, competing criminal cases arising from separate alleged assaults between those rivals, and a prosecutor who learns during trial of a potential conflict of interest, because his key witness is represented by the prosecutor’s brother, a public defender, in the competing criminal case. First, Darrell Ellis filed criminal charges against the Respondent, Andrew Daniel Baker, for an incident that occurred on January 13, 2015, where neighbors reported shots being fired both into and from within a residence in Elkton, Maryland (“the First Incident”). In exchange, Mr. Baker filed criminal charges against Mr. Ellis for an alleged assault that occurred on January 15, 2015 (“the Second Incident”). At Mr. Baker’s trial for allegedly assaulting Mr. Ellis and his girlfriend, Kimberly Mitchell, ³⁷ during the First Incident, it was revealed that Mr. Ellis’ defense counsel for the charges related to the Second Incident was the brother of the assistant state’s attorney who was prosecuting Mr. Baker for the charges stemming from the First Incident.

When the trial court learned this information, it declared a mistrial over Mr. Baker’s objection. Mr. Baker subsequently filed a motion to dismiss his indictments on grounds of double jeopardy, which was denied. Mr. Baker noted an interlocutory appeal to the Court of Special Appeals, which reversed the decision of the lower court and ordered the indictments be dismissed. The State then petitioned this Court for a writ of certiorari, requesting that we review whether the mistrial was supported by manifest necessity.

For the following reasons, we shall hold that the trial court’s declaration of a mistrial over Mr. Baker’s objection was not supported by manifest necessity, and thus the mistrial amounted to an abuse of discretion. Therefore, retrial of Mr. Baker is barred by double jeopardy principles, and the circuit court erred in denying Mr. Baker’s motion to dismiss the indictments. Accordingly, we shall affirm the judgment of the Court of Special Appeals. BACKGROUND A The Charges On January 13, 2015, police officers responded to reports of gun fire at a residence in Elkton, Maryland.

Neighbors reported that gunshots were coming from inside the residence, and, at the same time, a suspect on the outside was shooting into the residence. 1 Upon entering the residence, the police found Mr. Baker and three other individuals hiding in a bedroom. The police officers located a shotgun under the bed and ³⁸ ammunition throughout the house. Following an investigation, the police learned that Mr. Baker had previously been convicted of a disqualifying offense, and therefore was prohibited from possessing firearms and ammunition. Accordingly, on January 14, 2015, the police filed a statement of charges against Mr. Baker for illegal possession of a firearm and ammunition.

On February 4, 2015, the State charged Mr. Baker, by indictment, with possession of a firearm after having been convicted of a crime of violence 2 and possession of a firearm after being convicted of a disqualifying offense. 3 On March 11, 2015, Mr. Ellis filed an application for statement of charges against Mr. Baker regarding the incident that occurred on January 13. Mr. Ellis alleged that Mr. Baker “shot his gun out the window at me an[d] my girlfriend because of something my cousin did to him.” On April 15, 2015, the State charged Mr. Baker in a separate case with first- and second-degree assault against Mr. Ellis, and first- and second-degree assault against Ms. Mitchell. The State then filed a motion to consolidate this latter case with the illegal possession of a firearm case for trial, which the circuit court granted on July 10, 2015. On the same day that Mr. Ellis filed charges against Mr. Baker, Mr. Baker also filed an application for statement of charges against Mr. Ellis.

Mr. Baker alleged that Mr. Ellis had assaulted him on January 15, 2015—two days after the First Incident. 4 Based on this allegation, the State charged Mr. Ellis with second-degree assault and reckless endangerment against Mr. Baker. B. Trial Proceedings Mr. Baker’s consolidated trial on the illegal firearm possession charges and the assault charges began on July 22, 2015, ³⁹ in the Circuit Court for Cecil County, Judge Brenda A. Sexton presiding. The Assistant State’s Attorney prosecuting the case was Karl Fockler (“ASA Fockler”), and Mr. Baker was represented by Michael Halter as a Panel Assistant Public Defender. At the outset of proceedings, ASA Fockler informed the court that he had spoken to Mr. Ellis and Ms. Mitchell two days earlier to ensure that they knew about the court date and had been properly served with their subpoenas.

The morning of the trial, ASA Fockler spoke to Mr. Ellis around 9:00 a.m. and Mr. Ellis stated that “he would be on his way in shortly.” Following that conversation, a detective informed ASA Fock-ler that Mr. Ellis told the detective “that he had been threatened in some form as to not appear in court,” and that he was not coming in. Upon learning this information, ASA Fockler asked the court to issue body attachments for both Mr. Ellis and Ms. Mitchell. Defense counsel did not oppose ASA Fock-ler’s request. The circuit court then stated that it would issue the body attachments, and the court recessed at 10:85 a.m.

The court reconvened at 11:49 a.m. At that time, both parties indicated that they anticipated that the trial would last “into tomorrow.” The court then noted that during the recess ASA Fockler had asked the court not to issue the body attachments for Mr. Ellis and Ms. Mitchell. ASA Fockler confirmed that he had made this request, and stated that Mr. Ellis and Ms. Mitchell had “appeared to the State’s Attorney’s Office.” ASA Fockler also stated that he had met with Mr. Ellis and Ms. Mitchell “and verified their presence here this morning.” Following this statement, the circuit court began the jury selection process by calling roll and conducting voir dire. After the jury was impanelled 5 and sworn, the court ⁴⁰ asked both parties if there were any other preliminary matters that needed to be addressed.

Both parties responded in the negative, and the court took another recess at 1:47 p.m. The court reconvened at 3:04 p.m. without the jury present. At that time, the court stated that ASA Fockler had presented a motion to compel testimony during the recess. Defense counsel confirmed that he had received the motion to compel approximately ten minutes earlier.

In the motion to compel, ASA Fockler averred that Mr. Ellis “is a material State witness and victim” in the case, that he had “provided substantive, material information which is to be presented at trial,” and that Mr. Ellis’ testimony “is necessary to and furthers the public interest.” Furthermore, ASA Fockler averred that “on the morning of July 22, 2015,” i.e. the day of trial, Mr. Ellis advised ASA Fockler “that he intends to refuse to testify and to invoke his Fifth Amendment Privilege against self[-]incrimination.” (Emphasis added.) Finally, ASA Fockler averred “[tjhat the State has agreed to offer [Mr.] Ellis immunity from prosecution in relation to any information directly or indirectly derived from the testimony of [Mr.] Ellis and related to the above[-]captioned matter.” ASA Fockler did not explain to the court why he waited until after the jury had been selected to inform the court and defense counsel of Mr. Ellis’ refusal to testify. Defense counsel objected to the motion, stating that it was in violation of Maryland Rule 4-263 6 and “extremely prejudicial to the defense.” The court heard argument from both parties, then announced its ruling as follows: I would like to proceed by way of calling Mr. Ellis into the courtroom. I would like to indicate to him that it is my intention to deal with this motion, advise him that the state’s attorney is offering him immunity, and that he is required to testify in this matter. ⁴¹ Defense counsel again noted his objection for the record. Defense counsel then indicated that he intended to cross-examine Mr. Ellis regarding his pending charges related to the Second Incident, “because it shows a pattern, it shows a state of mind and an association between [Mr. Baker] and Mr. Ellis.” Furthermore, defense counsel requested “that someone call the Public Defender’s Office,” because it was his understanding that Mr. Ellis’ defense attorney for his pending charges related to the Second Incident was E.B. Fockler (“PD Fockler”), ASA Fockler’s brother.

Immediately following this revelation, the court took a recess at 3:16 p.m. The court reconvened at 4:01 p.m. without the jury present. The court recounted for the record that ASA Fockler had filed a motion to compel Mr. Ellis’ testimony, and he intended to offer Mr. Ellis immunity in connection with that testimony; that Mr. Ellis had criminal charges pending against him, which were filed by Mr. Baker; and that Mr. Ellis was being represented by PD Fockler, ASA Fockler’s brother. The court then stated, In light of these facts and circumstances, I do not believe it is possible for me to continue in this matter, for us to continue this trial.

I do not think that I can conduct a hearing and/or permit the testimony of Mr. Ellis accompanied by his attorney being offered immunity when his attorney is the brother of the state’s attorney. In light of that, I am going to call the members of the jury panel back in, I am going to declare a mistrial, and I am going to excuse them. Thereafter, I will deal with [ASA] Fockler, or actually the state’s attorney’s office and [defense counsel] with regard to rescheduling this matter. Defense counsel objected to the mistrial.

The court then reiterated, Again, as I’ve indicated, I did speak to counsel in chambers so that the record is clear. I indicated that I do not see how I can proceed at this time given these circumstances. I am going to call the jury back in. I’m going to advise them that an issue has come up, that it cannot be resolved, it’s ⁴² through no fault of anyone, but I’m declaring a mistrial and they are excused.

The bailiff then brought the jury back into the courtroom. The court told the jurors, [Tjhere has been an issue that has arisen that we have been unable to resolve. It is through no fault of any of the parties here today. However, in connection with this matter I feel that I am compelled to declare a mistrial, so your service in this matter will be over today.

After dismissing the jury, the court stated that during the previous forty-five-minute recess it had asked the parties to “go upstairs to reset this matter.” Next, the court asked ASA Fockler if he would be continuing with the case: THE COURT: Mr. Fockler, I understand that you, sir, may not be continuing with this matter. Is that correct? [ASA] FOCKLER: You mean as the prosecutor for this case? THE COURT: Yes, sir. [ASA] FOCKLER: I don’t know that that’s necessarily—I mean, I’m not sure how that’s going to be handled, Judge. We haven’t figured that part out.

After discussing possible dates for the new trial, the court again questioned ASA Fockler: THE COURT: Mr. Fockler, how are you going to resolve this issue for the next trial date? [ASA] FOCKLER: I don’t know, Judge, but we’re going to have to figure that out. THE COURT: Okay. Someone else in your office will be able to proceed? [ASA] FOCKLER: I’m going to go back and we’re going to discuss it and see what we can do for that to occur, Judge. Shortly after this exchange, the court adjourned.

C. The Motion to Dismiss On July 31, 2015, Mr. Baker filed a Motion to Dismiss Indictment Based Upon Double Jeopardy Grounds. In his ⁴³ motion to dismiss, Mr. Baker recounted some of the discussion that occurred in the judge’s chambers during the afternoon recess on July 22: The judge expressed her concern that [PD] Fockler would be advising Mr. Ellis about his right to remain silent, since [PD] Fockler is the brother of [ASA] Fockler, the prosecutor in this matter. The judge felt that this would be a conflict of interest or at least appear to be a conflict of interest. Brief discussion was had regarding the possibility of contacting another attorney from the Office of the Public Defender to advise Mr. Ellis but this ultimately was not done.

The judge expressed her concern over continuing the matter to the next day in order to contact someone to advise Mr. Ellis. The judge stated that she saw no alternative but to declare a mistrial. (Numbering and paragraph breaks omitted.) Mr. Baker argued that the court did not find manifest necessity to declare a mistrial, and did not explore reasonable alternatives to declaring a mistrial. Therefore, Mr. Baker concluded that the court should dismiss both indictments against him (the illegal firearm possession charges and the assault charges) based on a violation of his Fifth Amendment right against double jeopardy.

The State did not file a response to Mr. Baker’s motion to dismiss. Judge Sexton, the same judge that presided over Mr. Baker’s trial, held a hearing on the motion to dismiss on August 28, 2015. At the hearing, defense counsel recounted the circumstances culminating in the declaration of a mistrial on July 22. Specifically, defense counsel recounted the discussion that occurred in the judge’s chambers during the afternoon recess: [DEFENSE COUNSEL]: It was in chambers that the Court stated off the record that you did not believe that it was proper, based on the familial relationship between [PD] Fockler and [ASA] Fockler, the prosecutor in this matter, that [PD] Fockler be permitted to come over to advise Mr. Ellis of his right not to testify, again, based on the fact that, not necessarily being a conflict of interest but just the ⁴⁴ appearance of a conflict of interest in front of the jury.

It was at that point that the [cjourt told counsel— THE COURT: I’m going to interrupt you, Mr. Halter, because I believe the [cjourt finds it to be a conflict. [DEFENSE COUNSEL]: I’m sorry, Your Honor. That was a presumption I should not have made then. I thought the [cjourt was more going on an appearance of conflict. But again, that being said, the [cjourt deemed it to be a conflict, again, at that time and obviously still does today.

It was at that point that the [cjourt noted to us in chambers that you did not see an alternative to a mistrial, and a mistrial was declared on the record over the objection of counsel, over the objection of defense counsel, which again, is a crucial point, a very crucial point. Defense counsel argued that “there were at least two other alternatives to a mistrial” that the court did not explore. First, defense counsel suggested that the court could have called the Public Defender’s Office and inquired whether it could send over another public defender, other than PD Fockler, to advise Mr. Ellis of his right not to testify in Mr. Baker’s trial. Second, defense counsel suggested that the court could have dismissed the jury for the day, and made arrangements with the Public Defender’s Office to send over another public defender to advise Mr. Ellis the next day. 7 Also at the hearing on the motion to dismiss, ASA Fockler recounted the events preceding the declaration of a mistrial: We had gone in chambers, as [defense counsel] had stated, and we had sat and we scratched our collective heads as to what alternatives there might be in order to remedy this particular problem.

And I think it was essentially determined that the [cjourt was not in a position to go out and lawyer-shop for Mr. Ellis as that would certainly be inap ⁴⁵ propriate. There really weren’t any alternatives without the [c]ourt possibly doing that. And the [c]ourt, again, I think due to, again, this being a highly unusual situation, there needed to be something to be done immediately, a jury had just been sworn in and selected, and that there was an urgent circumstance before, quite frankly, the trial could even begin. ASA Fockler responded to defense counsel’s suggested alternatives to a mistrial by explaining that even if another public defender had been available to advise Mr. Ellis of his right not to testify, that would not have resolved the conflict of interest created by ASA Fockler offering immunity to Mr. Ellis, who was his brother’s client in another pending matter.

After hearing argument from both parties, the court announced its ruling: In light of the fact that [PD] Fockler had been assigned to and represented Mr. Ellis, I found that it was not proper for me to assign to Mr. Ellis a new attorney, to appoint a different attorney for him for purposes of advisement with regard to this. Specifically he has the right to have his own counsel represent him. And additionally, this matter involved the same parties as the other. And I did not think it was proper for the [c]ourt to advise Mr. Ellis that he had to rely on the advi[c]e of another attorney chosen by the Public Defender’s Office without the benefit of his counsel who was representing him in the other matter.

The [c]ourt certainly believed that the charges relating to January 15, 2015, filed against Mr. Ellis would have been brought out, either they may have been subject to the immunity and/or that they would be subject to cross-examination. Based on the fact that the [c]ourt did not believe it appropriate to randomly assign a public defender other than [PD] Fockler to Mr. Ellis to advise him with regard to his Fifth Amendment privileges, advise him with regard to the possible consequences of immunity, I found no reasonable alternatives available at the time. The [c]ourt believed there was ⁴⁶ a manifest necessity to grant the mistrial. And in light of those findings, the [c]ourt is going to deny defendant’s motion today.

On the same day that the circuit court issued its ruling, Mr. Baker filed a notice of appeal to the Court of Special Appeals, and a motion to stay proceedings pending appeal. The circuit court granted the stay pending the interlocutory appeal. The Court of Special Appeals reversed the circuit court’s denial of the motion to dismiss in an unreported opinion filed on August 4, 2016. Baker v. State, No. 1467, Sept. Term, 2015, 2016 WL 4158892 (Md. Ct. Spec.

App. Aug. 4, 2016). The State petitioned this Court for a writ of certiorari, which this Court granted on October 12, 2016. State v. Baker, 450 Md. 216 , 147 A.3d 394 (2016). The State presents the following questions for our review: 1.

Did the Court of Special Appeals err in concluding that the trial court failed to articulate sufficiently the basis for its determination of manifest necessity? 2. Did the trial court properly exercise its discretion in finding manifest necessity to declare a mistrial? STANDARD OF REVIEW “[W]e review the trial judge’s grant of a mistrial for abuse of discretion.” Simmons v. State, 436 Md. 202, 212 , 81 A.3d 383 (2013) (citing Arizona v. Washington, 434 U.S. 497, 514 , 98 S.Ct. 824 , 54 L.Ed.2d 717 (1978)). “It is well-settled that a decision to grant a mistrial lies within the sound discretion of the trial judge and that the trial judge’s determination will not be disturbed on appeal unless there is abuse of discretion.” Id. (quoting Carter v. State, 366 Md. 574, 589 , 785 A.2d 348 (2001)). “That is, we look to whether the trial judge’s exercise of discretion was ‘manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.’ ” Id.

(quoting Stabb v. State, 423 Md. 454, 465 , 31 A.3d 922 (2011)). ⁴⁷ DISCUSSION The Fifth Amendment to the United States Constitution provides that “[n]o person shall be ... subject for the same offence to be twice put in jeopardy of life or limb.” The constitutional prohibition on double jeopardy applies to the States through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794 , 89 S.Ct. 2056 , 23 L.Ed.2d 707 (1969). 8 “In a jury trial, the Double Jeopardy Clause generally bars the retrial of a criminal defendant for the same offense once a jury has been empaneled and sworn.” Simmons, 436 Md. at 213 , 81 A.3d 383 . “When a mistrial is granted over the objection of the defendant, double jeopardy principles will not bar a retrial if there exists ‘manifest necessity’ for the mistrial.” Id. If, however, the mistrial was not manifestly necessary, then the trial judge abused her discretion in declaring the mistrial, and retrial is barred by double jeopardy principles. Hubbard v. State, 395 Md. 73, 89 , 909 A.2d 270 (2006).

Because of the variety of circumstances that may make it necessary to discharge a jury before a trial is concluded, and because those circumstances do not invariably create unfairness to the accused, his valued right to have the trial concluded by a particular tribunal is sometimes subordinate to the public interest in affording the prosecutor one full and fair opportunity to present his evidence to an impartial jury. Yet in view of the importance of the right, and the fact that it is frustrated by any mistrial, the prosecutor must shoulder the burden of justifying the mistrial if he is to avoid the double jeopardy bar. His burden is a heavy one. ⁴⁸ The prosecutor must demonstrate “manifest necessity” for any mistrial declared over the objection of the defendant. Washington, 434 U.S. at 505 , 98 S.Ct. 824 (footnote omitted). “The words ‘manifest necessity’ appropriately characterize the magnitude of the prosecutor’s burden,” but “those words do not describe a standard that can be applied mechanically or without attention to the particular problem confronting the trial judge.” Id. at 505-06 , 98 S.Ct. 824 .

Indeed, “necessity” is not to be interpreted literally; instead “we assume that there are degrees of necessity and we require a ‘high degree’ before concluding that a mistrial is appropriate.” Id. at 506 , 98 S.Ct. 824 . Whether manifest necessity to declare a mistrial and, thus, whether the prohibition of the double jeopardy clause is triggered depend upon the unique facts and circumstances of each case. While it is in the sound discretion of the trial judge to declare a mistrial, he or she may do so only if a ‘high degree’ of necessity demands that he or she do so. Mansfield v. State, 422 Md. 269, 287 , 29 A.3d 569 (2011) (citations omitted).

In addition to this “high degree of necessity,” another component of the manifest necessity determination is a finding by the trial court that no reasonable alternatives to a mistrial were actually available. Thus, to determine whether manifest necessity to declare a mistrial over defense objection exists, the trial judge must engage in the process of exploring reasonable alternatives and determine that there is no reasonable alternative to the mistrial.... [Ajpplication of this standard in manifest necessity cases does not only consider whether alternatives were analyzed, but also goes to whether a reasonable alternative to a mistrial was available. If there was no reasonable alternative, ordinarily the mistrial is manifestly necessary, and retrial is not barred by double jeopardy principles. If there is a reasonable alternative, the mistrial is not mani ⁴⁹ festly necessary, and a defendant cannot be retried.

Any doubt should be resolved in favor of the defendant. Hubbard, 395 Md. at 92-93 , 909 A.2d 270 ; see also State v. Hart, 449 Md. 246, 278 , 144 A.3d 609 (2016) (“Prior to the declaration of a mistrial, the trial court was obliged to explore reasonable alternatives.”). In summary, there exists “manifest necessity” for a mistrial only if 1) there was a “high degree” of necessity for the mistrial; 2) the trial court engaged “in the process of exploring reasonable alternatives” to a mistrial and determined that none was available; and 3) no reasonable alternative to a mistrial was, in fact, available. “[Rjeviewing courts have an obligation to satisfy themselves that ... the trial judge exercised ‘sound discretion’ in declaring a mistrial.” Washington, 434 U.S. at 514 , 98 S.Ct. 824 . However, “[t]he absence of an explicit finding of ‘manifest necessity’ ... does not render [the trial court’s ruling] constitutionally defective.” Id. at 516-17 , 98 S.Ct. 824 .

Instead, the reviewing court must be “persuaded by the record that the trial judge acted responsibly and deliberately, and accorded careful consideration to [the defendant’s] interest in having the trial concluded in a single proceeding.” Id. at 516 , 98 S.Ct. 824 . In the instant case, the parties do not dispute that the jury had been impanelled and sworn prior to the circuit court’s sua sponte declaration of a mistrial, and therefore jeopardy had attached. Furthermore, the parties do not dispute that the mistrial was declared over the defendant’s objection. Therefore, the issue before this Court is whether the mistrial was supported by manifest necessity.

Before we can answer that question, however, we must first resolve a preliminary issue raised by the State. The State contends that although the Court of Special Appeals acknowledged some of the circuit court’s findings made at the hearing on the motion to dismiss, the intermediate appellate court “did not clarify whether it considered the motions hear ⁵⁰ ing to be part of the record from which appellate review could be appropriately conducted.” The State urges this Court to clarify that a reviewing court may consider “the entire record,” including a subsequent hearing on a motion to dismiss, to determine whether the trial court’s mistrial declaration was supported by manifest necessity. Mr. Baker rejects the State’s contention that the Court of Special Appeals did not consider the entire record in reaching its conclusion that the circuit court abused its discretion, noting that the intermediate appellate court referenced in its analysis the circuit court’s rulings at the motions hearing. However, Mr. Baker agrees with the State that a reviewing court should take into account both the record of the trial, and the record of any subsequent proceeding at which the lower court is asked to determine whether retrial is barred by double jeopardy, in order to determine whether the mistrial was supported by manifest necessity.

Although this Court has not explicitly stated that a reviewing court may look to the record of subsequent proceedings in order to determine whether the mistrial was supported by manifest necessity, the Court has indicated that such review may be appropriate in some cases. For example, in Mansfield , we summarized both the trial court’s mistrial declaration, as well as the motions court’s subsequent ruling on the defendant’s motion to dismiss, before concluding that the mistrial was not supported by manifest necessity. See Mansfield, 422 Md. at 278-79 , 29 A.3d 569 . Similarly, in Jourdan v. State, we reviewed both the trial proceedings culminating in a mistrial and the subsequent proceedings on the defendant’s postconviction petition, which alleged that his second trial violated the Double Jeopardy Clause, because the postconviction proceedings provided greater detail on the events precipitating the mistrial declaration.

See Jourdan v. State, 275 Md. 495, 498-505 , 341 A.2d 388 (1975). In this case, the record of the hearing on Mr. Baker’s motion to dismiss also provides greater detail on the events precipitating the circuit court’s mistrial declaration because, at ⁵¹ the motions hearing, defense counsel, ASA Fockler, and the trial judge all offered their recollection of the events culminating in the mistrial. Furthermore, we note that, in