State v. Fennell

HARRELL, J. The Double Jeopardy Clause of the United States Constitution, as well as Maryland common law, protects a defendant from being subject twice to criminal proceedings for the same offense. U.S. Const. amend. V; Hubbard v. State, 395 Md. 73, 91-92 , 909 A.2d 270, 280-81 (2006). Where a mistrial is declared because of manifest necessity, however, retrial is not prohibited.

Hubbard, 395 Md. at 89 , 909 A.2d at 279 . Prior to the conclusion of jury deliberations in the present case in the Circuit Court for Montgomery County, the jury sent an unsolicited, completed verdict sheet to the trial judge indicating apparently that the jury voted unanimously to acquit Respondent, Sean Fennell, on charges of first degree assault, conspiracy to commit first degree assault, and conspiracy to commit robbery. The jury sheet indicated further, however, that the jury had not agreed unanimously as to disposition of an additional charge of robbery and a lesser included charge to first degree assault of second degree assault. After examining this “gift,” the trial judge instructed the jury to continue to deliberate “regarding the counts as to which you are undecided.” The jury continued to deliberate, but, upon being called back into open court, indicated that it was not making progress and was unable to reach a unanimous verdict.

Fennell, through counsel, requested of the judge that he take a partial verdict on the counts as to which the jury indicated unanimity previously. The State objected. The judge declared a mistrial as to all counts. A retrial date ⁵⁰⁶ was scheduled.

Fennell filed a motion to bar retrial on the charges for which he believed the first jury acquitted him. This motion was denied, which lead to this appeal. On these facts, all agree now that Fennell may be retried on the charges of second degree assault and robbery; the parties diverge, however, as to whether Fennell may be retried for first degree assault, conspiracy to commit first degree assault, and conspiracy to commit robbery. For reasons we shall explain, we conclude, on the unusual posture of this case, that retrial of Fennell on the latter three charges is prohibited by principles of double jeopardy.

RELEVANT FACTUAL 1 AND PROCEDURAL BACKGROUND On 6 May 2010, Fennell was indicted in the Circuit Court on the following four counts: (1) first degree assault; (2) conspiracy to commit first degree assault; (3) robbery; and, (4) conspiracy to commit robbery. A one day jury trial took place on 18 October 2010. The jury began deliberations at approximately 5:50 p.m. 2 At approximately 9:00 p.m., the jury gave the bailiff a completed verdict sheet to take to the judge. The verdict sheet read as follows: Count One: As to the charge of First Degree Assault, we, the jury, find the Defendant: Not Guilty 12 Guilty 0 If you find the Defendant guilty of Count One, go on to decide Count Two.

If you find the defendant not guilty of First Degree Assault, then consider whether he is, guilty, as to the charge of Second Degree Assault: ⁵⁰⁷ Not Guilty 6 Guilty 6 Count Two: As to the charge of Conspiracy to commit First Degree Assault, we, the jury, find the Defendant: Not Guilty 12 Guilty 0 Count Three: As to the charge of Robbery, we, the jury, find the Defendant: Not Guilty 6 Guilty 5[ 3 ] Count Four: As to the charge of Conspiracy to Commit Robbery, we, the jury, find the Defendant: Not Guilty 12 Guilty 0 After sharing the unsolicited verdict sheet with the parties, the following exchange occurred between counsel and the judge: THE COURT: Please have a seat. I thought I had seen everything. Apparently, they knocked on the door, and handed this to [the bailiff], having been fed. [DEFENSE COUNSEL]: Interesting that Count 3 doesn’t add up to 12. You can’t abstain, right?

THE COURT: Well, they’re forcing the issue a little bit. The jury has obviously not reached a verdict on about half the counts. They went out about 5:00, didn’t they? [COURT CLERK]: I believe it was at 10 of 6:00. THE COURT: Ten of 6:00. [PROSECUTOR]: Yes, I thought it was closer to 6:00.

THE COURT: The question now is like I say three options. They can continue to deliberate tonight, come back tomorrow, or call it a day. They haven’t been out very long. How about please continue to deliberate? [PROSECUTOR]: I know there’s a specific jury instruction for— THE COURT: I think we already gave it. [PROSECUTOR]: Okay. ⁵⁰⁸ THE COURT: The [modified Allen 4 ] charge— [PROSECUTOR]: Yes.

THE COURT: Yes, I think that was— Please continue to deliberate. Your verdict must be unanimous? [DEFENSE COUNSEL]: Judge? [THE COURT]: Yes, sir. [DEFENSE COUNSEL]: The only thing I would ask you to consider would be please continue to deliberate on the counts of which you are still undecided. Those must be unanimous, as well. Would that work?

THE COURT: Yes, as to which you remain undecided. Please continue to deliberate regarding the counts as to which you are undecided. Your verdict as to each count must be unanimous. Thank you.

Well, thank you. I don’t think we ought to keep them past 9:30 [p.m.]. [DEFENSE COUNSEL]: Okay. [PROSECUTOR]: Okay. [THE COURT]: Thank you. [PROSECUTOR]: Thank you. [THE COURT]: I guess we better send [the filled-in verdict sheet] back in there, or give them a clean copy. THE BAILIFF: I gave them a clean copy. ⁵⁰⁹ At approximately 9:30 p.m., the trial judge discussed with counsel the lateness of the hour and the options regarding continued jury deliberations: THE COURT: I don’t think we ought to keep them any longer tonight. The question is do we make them come back in the morning.

I’ll hear whatever suggestions either of you want to make at this point. [DEFENSE COUNSEL]: Your Honor, possibly we could just bring them in and say exactly what you said, do you guys think it would be worth it deliberating [ ] tomorrow or are you making progress. [PROSECUTOR]: I think, in reality, they really haven’t been deliberating that long. I don’t think, in this kind of case, it would be that unusual. And I think it is obviously worth it to bring them back in the morning. THE COURT: How long have they been — three and a half hours.

Well, let’s bring them in and see whether they’re close to reaching a verdict. The jury having been brought into the courtroom, the trial judge engaged in the following exchange with the jury foreperson: THE COURT: Please have a seat. Madam Forelady, is there any possibility that upon further deliberation this evening you could reach a verdict? THE FOREPERSON: No. THE COURT: Well, then the question is could you reach one tomorrow?

Are you making any progress? THE FOREPERSON: No, it’s— (Discussion off the record.) THE FOREPERSON: Yeah, there’s a clear division on the amount of evidence, and how you read the evidence. THE COURT: I’m going to ask you to go back in there while 1 confer with counsel. The jury left the courtroom, and then the following ensued: THE COURT: It doesn’t look to me like much has changed in the last hour or so. ⁵¹⁰ [PROSECUTOR]: It probably depends who you ask sitting there. [DEFENSE COUNSEL]: Yes, they’re split 50/50 on whether— [PROSECUTOR]: They’re making progress or not. [THE COURT]: They can’t even decide if they’re making progress. [DEFENSE COUNSEL]: Right.

We’re ready to ask you to let it go, Judge. You know, take the three or four they gave, and— [PROSECUTOR]: We’re not in a position to accept a partial verdict. THE COURT: I think, reluctantly, I must declare a mistrial. I don’t think there’s going to be any movement.

There’s no sign of it. I don’t think there’s a lack of evidence. I just think that the evidence is capable of more than one interpretation depending on whom you believe. So, I think for better or worse, that’s it. [DEFENSE COUNSEL]: So, the one’s [sic] where they have reached a unanimous verdict we’re not— THE COURT: I’m not going to take a verdict at all. [DEFENSE COUNSEL]: Okay. [PROSECUTOR]: Obviously, we can’t get a trial date from assignment at this point.

We’ll call tomorrow. (The jury entered the courtroom.) THE COURT: Ladies and gentlemen of the jury, the Court determines that it’s very unlikely that you will reach a verdict. I hereby declare a mistrial, which means that the State will have the option of retrying this case at some future date. On 22 December 2010, 5 Fennell filed a Motion to Bar Retrial Due to Double Jeopardy, claiming that the jury re ⁵¹¹ turned a verdict sheet acquitting Fennell unanimously of first degree assault (count 1), conspiracy to commit first degree assault (count 2), and conspiracy to commit robbery (count 4), and indicating that it was hung on the charges of second degree assault (a lesser included offense of count 1) and robbery (count 3).

Because the jury found him not guilty of three counts, Fennell argued that retrial of those three counts was prohibited by double jeopardy. Fennell consented to the mistrial on the charges of second degree assault and robbery, however, and thus conceded that the State is free to prosecute him anew on those charges. The State opposed entry of a partial verdict, riposting that, because a partial verdict was not taken, a verdict was not received by the court on any count, and a manifest necessity existed for a mistrial, it was permitted to retry Fennell on all counts. On 22 February 2011, the Circuit Court granted Fennell’s motion to bar retrial as to counts 1 (not including the lesser-included offense), 2, and 4.

The State filed, along with a motion to reconsider the February 22 order, a supplemental opposition to the motion to bar retrial. The Circuit Court agreed to reconsider, vacated its judgment entered on February 22, and, without a hearing or written elaboration, denied Fennell’s motion to bar retrial. Fennell appealed. A panel of the Court of Special Appeals, in an unreported opinion filed on 4 May 2012, reversed the judgment of the Circuit Court, determining that there was no manifest necessity for a mistrial and that retrial on the three counts for which the jury indicated a unanimous vote on the verdict sheet was barred by double jeopardy.

Characterizing the trial court’s action as declaring sua sponte a mistrial, the intermediate appellate court noted that a mistrial was appropriate only if there was “manifest necessity for the act.” (quoting Cornish v. State, 272 Md. 312, 317 , 322 A.2d 880, 884 (1974) (quoting United States v. Perez, 22 U.S. (9 Wheat.) 579, 580 , 6 L.Ed. 165, 165 (1824))). In order to find a manifest necessity, the court stated, the trial judge “must engage in the process of exploring reasonable alternatives and determine that there is no reasonable alternative to the mistrial.” (quoting Hubbard v. ⁵¹² State, 395 Md. at 92 , 909 A.2d at 281 ). The court determined that, in light of the jury’s prior transmittal of a verdict sheet to the trial judge indicating unanimity as to three charges and the judge’s attendant instruction, the jury’s subsequent statement of deadlock was ambiguous as to on which counts disagreement existed. Thus, prior to declaring a mistrial, the judge was required to determine that there was no reasonable alternative.

Because the trial court had the opportunity to clarify whether the jury was deadlocked as to all, or just the previously undecided, charges, inquire whether the jury intended to render a unanimous partial verdict as to the three counts indicated on the verdict sheet, or request reasonably the jury to return the next morning to continue deliberations, the appellate court determined that “the trial judge failed to ‘engage in the process of exploring reasonable alternatives.’ ” (quoting Hubbard, 395 Md. at 92 , 909 A.2d at 281 ). Thus, the intermediate appellate court determined that no manifest necessity for the mistrial existed as to the three counts indicated on the verdict sheet for which the jury voted unanimously to acquit, and retrial of those three counts was barred by double jeopardy. The State filed a petition for writ of certiorari, which we granted on 19 October 2012, 429 Md. 81 , 54 A.3d 759 (2012), to consider the following questions: (1) Where the jury sends to the court a verdict sheet documenting the jurors’ votes as to each charge and the court, with the consent of defense counsel, sends the jury back for further deliberations, is it a proper exercise of the court’s discretion to later declare a mistrial as to all charges when, upon further inquiry with the jury, the court concluded that the jurors were unable to reach a verdict? (2) Is a circuit court required to accept a partial verdict at the request of one party and over the objection of the other?

ANALYSIS The State contends primarily that the trial judge exercised properly his discretion in declaring a mistrial be ⁵¹³ cause neither the federal Constitution, the common law of Maryland, nor Maryland Rule 4-327(d) 6 require the trial judge to consider specific alternatives to a mistrial where the jury is deadlocked and gives no indication of unanimity on all counts. Because the trial judge acted therefore within his discretion in denying Fennell’s request to take a partial verdict, the State argues that retrial on all counts is not prohibited by double jeopardy. By contrast, Fennell contends that the record demonstrates unanimous agreement by the jury as to three of the five charges. In his view, the trial court’s failure to enter a partial verdict on these charges, pursuant to Maryland Rule 4-327(d), violated his constitutional rights.

Although we accord great deference to the decision of a trial judge in concluding that a jury would be unlikely to reach a unanimous decision on all counts, whether there was a manifest necessity for a mistrial implicates principles of double jeopardy. We review without deference, considering the totality of the circumstances, the legal conclusions of the trial court. Giddins v. State, 393 Md. 1, 15 , 899 A.2d 139, 147 (2005); Bishop v. State, 341 Md. 288, 292 , 670 A.2d 452, 454-55 ⁵¹⁴ (1996); Caldwell v. State, 164 Md.App. at 643, 884 A.2d at 216-17. The Double Jeopardy Clause of the United States Constitution, which applies to state criminal proceedings through the Fourteenth Amendment, Benton v. Maryland, 395 U.S. 784, 796 , 89 S.Ct. 2056, 2062 , 23 L.Ed.2d 707, 715 (1969), provides that “[n]o person [shall] be subject for the same offence to be twice put in jeopardy of life and limb.” U.S. Const, amend.

V. Although the Maryland Constitution does not contain an analogous clause, Maryland common law protects similarly an accused against double jeopardy. 7 Kendall v. State, 429 Md. 476 , 484 n. 11, 56 A.3d 223 , 228 n. 11 (2012); Hubbard, 395 Md. at 91-92 , 909 A.2d at 280-81 . The Double Jeopardy Clause prohibits unequivocally the retrial of a criminal defendant following a final judgment of acquittal. Hubbard, 395 Md. at 89 , 909 A.2d at 279 (2006) (citing Arizona v. Washington, 434 U.S. 497, 503 , 98 S.Ct. 824, 829 , 54 L.Ed.2d 717, 726-27 (1978)). Retrial may be permitted, however, “when a criminal proceeding is concluded after jeopardy attaches but without resolving the merits of the case.” 8 Id. ⁵¹⁵ Jeopardy attaches when the jury is empaneled and sworn, Illinois v. Somerville, 410 U.S. 458, 467 , 93 S.Ct. 1066, 1072 , 35 L.Ed.2d 425, 433 (1973); State v. Woodson, 338 Md. 322, 329 , 658 A.2d 272, 276 (1995), and thus, the defendant’s right to be free from double jeopardy embraces also his or her “right to have his [or her] trial completed by a particular tribunal.” Arizona v. Washington, 434 U.S. 497, 503 , 98 S.Ct. 824, 829 , 54 L.Ed.2d 717, 727 (1978).

If a defendant objects to the declaration of a mistrial, a mistrial must be manifestly necessary for the defendant to be retried or risk violating double jeopardy principles. 9 Id. at 505 , 98 S.Ct. at 830 , 54 ⁵¹⁶ L.Ed.2d at 728 ; Mansfield v. State, 422 Md. 269, 282, 29 A.3d 569, 577 (2011); Hubbard, 395 Md. at 89 , 909 A.2d at 279 ; Wynn v. State, 388 Md. 423, 429 , 879 A.2d 1097, 1101 (2005). Manifest necessity analysis generally requires a consideration of whether reasonable alternatives to a mistrial exist. Cornish v. State, 272 Md. 312 , 322 A.2d 880, 886 (1974) (“[R]etrial is barred by the Fifth Amendment where reasonable alternatives to a mistrial, such as a continuance, are feasible and could cure the problem.”); see also United States v. Perez, 22 U.S. (9 Wheat.) 579, 580 , 6 L.Ed. 165, 165 (1824) (noting that trial judge should declare a mistrial over the defendant’s objection “under urgent circumstances, and for very plain and obvious causes”). 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.

Renico v. Lett, 559 U.S. 766 ,-, 130 S.Ct. 1855, 1863 , 176 L.Ed.2d 678, 687 (2010); Washington, 434 U.S. at 509-10 , 98 S.Ct. at 832 , 54 L.Ed.2d at 731 . A genuinely deadlocked jury is considered the prototypical example of a manifest necessity for a mistrial. Blueford v. Arkansas, — U.S. -, -, 132 S.Ct. 2044, 2052 , 182 L.Ed.2d 937, 945 (2012); State v. Crutchfield, 318 Md. 200, 209 , 567 A.2d 449, 453 (1989). The term “genuinely deadlocked” suggests, however, “more than an impasse; it invokes a moment where, if deliberations were to continue, ‘there exists a significant risk that a verdict may result from pressures inherent in the situation rather than the considered judgment of all the jurors.’ ” United States v. Razmilovic, 507 ⁵¹⁷ F.3d 130, 137 (2d Cir.2007) (quoting Washington, 434 U.S. at 509 , 98 S.Ct. at 832 , 54 L.Ed.2d at 730 ).

Consistent with the discretion vested in trial judges, the Supreme Court has declined repeatedly to require, as a matter of constitutional dimension, that trial judges undertake specific steps prior to declaring a mistrial. Blueford , — U.S. at-, 132 S.Ct. at 2052 , 182 L.Ed.2d at 945 ; Renico , 559 U.S. at-, 130 S.Ct. at 1864 , 176 L.Ed.2d at 688 . As the Supreme Court stated recently in Renico v. Lett, it has “never required a trial judge, before declaring a mistrial on jury deadlock, to force the jury to deliberate for a minimum period of time, to question the jurors individually, to consult with (or obtain the consent of) either the prosecutor or defense counsel, to issue a supplemental jury instruction, or to consider any other means of breaking the impasse.” 559 U.S. at-, 130 S.Ct. at 1864 , 176 L.Ed.2d at 688 . Rather, the determination of whether there is manifest necessity for a mistrial — or, a “high degree” of necessity, Washington, 434 U.S. at 506-07 , 98 S.Ct. at 831 , 54 L.Ed.2d at 728 — is a fact-specific inquiry not reducible to “a standard that can be applied mechanically or without attention to the particular problem confronting the trial judge.” Id. at 505-06, 509-10 , 98 S.Ct. at 830-32 , 54 L.Ed.2d at 728-29 (noting that deference to a trial judge’s discretion guards against the possibility of trial judges otherwise “employ[ing] coercive means to break the apparent deadlock,” which might create “a significant risk that a verdict may result from the pressures inherent in the situation rather than the considered judgment of all the jurors”); Perez, 22 U.S. at 580 , 6 L.Ed. at 165 (noting that trial judges must “tak[e] all the circumstances into consideration,” “exercise a sound discretion,” and use the power to declare a mistrial “with the greatest caution, under urgent circumstances”).

The State criticizes the intermediate appellate court’s reliance in the present case on our decision in Hubbard v. State, 395 Md. 73 , 909 A.2d 270 (2006), in finding no manifest necessity for a mistrial here. In Hubbard , we considered whether manifest necessity for a mistrial existed where “a ⁵¹⁸ witness, whose identification testimony against one defendant had been suppressed, was to be called by the State to testify against the co-defendant in a joint trial.” 395 Md. at 77 , 909 A.2d at 272 . We noted that, “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.” Id. at 92 , 909 A.2d at 281 . Because the trial judge in Hubbard could have excluded reasonably the pre-trial identification testimony against both defendants, instead of declaring a mistrial, we determined that no manifest necessity existed.

Id. at 93-96 , 909 A.2d at 282-83 . Here, because the trial judge could have inquired reasonably regarding the jury’s intention to render a partial verdict or instructed the jury to continue deliberations, the Court of Special Appeals determined consequently that there was no apparent manifest necessity. The State argues that, because Hubbard did not concern manifest necessity by reason of a deadlocked jury, it is inapposite to the present case. Instead, the State contends that the Supreme Court’s recent decision in Blueford v. Arkansas, -U.S.-, 132 S.Ct. 2044 , 182 L.Ed.2d 937 (2012), governs the manifest necessity analysis here. 10 In Blueford , the Supreme Court considered whether there was a manifest necessity for a mistrial where the jury indicated that it was “hopelessly deadlocked,” after having previously announced orally in court, prior to being sent for further deliberations, that it agreed unanimously that the defendant was not guilty of at least two offenses, but was hung on the remaining offenses. 11 Blueford argued that the jury’s colloquy with the trial court, in which it indicated that it agreed unanimously ⁵¹⁹ that he was not guilty of the greater two offenses, constituted an actual acquittal barring retrial. -U.S. at-, 132 S.Ct. at 2050 , 182 L.Ed.2d at 943 .

In the alternative, Blueford maintained that no manifest necessity for a mistrial existed because the trial judge should have entered a partial verdict on the two greater offenses. Id. at-, 132 S.Ct. at 2052 , 182 L.Ed.2d at 945 . With respect to his first contention, the Court noted that, because the jury was sent for further deliberations, but was not instructed that it could not reconsider the two offenses as to which it reached a unanimous agreement, any finality that might have attached to the jury’s announcement dissipated. Thus, the jury’s announcement could not operate as an acquittal.

Id. at-, 132 S.Ct. at 2050-52 , 182 L.Ed.2d at 943-45 . Regarding Blueford’s latter contention, the Supreme Court reaffirmed its disinclination to impose specific requirements on trial judges prior to finding a manifest necessity. Id. at- 132 S.Ct. at 2050 , 182 L.Ed.2d at 945 . Noting that Arkansas law permitted the trial judge to accept verdicts only either acquitting on all counts or convicting on one, the Supreme Court concluded that the trial court had not abused its discretion in failing to act in some manner to provide the jury with an opportunity to give effect to its earlier votes.

Id. at-, 132 S.Ct. at 2052-53 , 182 L.Ed.2d at 945-46 . We disagree with the implication of the State’s theory that Blueford renders inapplicable, in cases where a judge determines a hung jury exists, our analysis in Hubbard requiring a judge to consider reasonable alternatives to a mistrial. Although the Supreme Court refuses to require trial courts to jump over specified hurdles in mechanical fashion prior to declaring a mistrial, its preference for the exercise of judicial discretion does not obviate the manifest necessity analysis. See Somerville, 410 U.S. at 462 , 93 S.Ct. at 1069 , 35 L.Ed.2d at 430 (noting that mistrial by manifest necessity is appropriate where “the ends of substantial justice cannot be attained without discontinuing the trial” (quoting Gori v. United States, 367 U.S. 364, 368 , 81 S.Ct. 1523, 1526 , 6 L.Ed.2d 901, 904 (1961))).

The trial court must determine still that no reason ⁵²⁰ able alternative to a mistrial exists. In the context of a hung jury, therefore, the trial court must determine ordinarily that genuine jury deadlock exists, such that further deliberations are unlikely to be productive. See Washington, 434 U.S. at 509 , 98 S.Ct. at 832 , 54 L.Ed.2d at 730 (permitting retrial where