State v. Gorwell

JOHN F. McAULIFFE, Judge, Specially Assigned. During deliberation of the jury in this criminal case, the trial judge dismissed one of the jurors at the insistence of the defendant and then declared a mistrial when the State refused to proceed with eleven jurors. Thereafter, the defendant filed a motion to dismiss, contending that the trial should have continued with eleven jurors notwithstanding the objection of the State; that as a result there was no manifest necessity for the granting of a mistrial; and that double jeopardy principles protected the defendant from retrial. The trial judge granted the defendant’s motion.

The State appealed, and we granted certiorari prior to consideration of the case by the Court of Special Appeals. We now reverse, finding there was a manifest necessity for the declaration of a mistrial. ²⁰⁶ I. The defendant, Edward T. Gorwell, is a Baltimore City police officer. Just prior to 1:00 a.m. on 17 April 1993 he was following a stolen Chrysler automobile on Ellicott Driveway near Gwynns Falls Park. The Chrysler abruptly stopped, and four young men ran from it into the park.

The defendant left his police vehicle and followed on foot. Shortly after the chase began, the defendant fired one shot from his 9 mm. pistol. That bullet struck and killed fourteen-year-old Simmont Thomas, one of the young men fleeing from the Chrysler. After an investigation, Officer Gorwell was charged with the common-law offense of manslaughter.

The State contended that the defendant had no justifiable reason to fire his weapon at or in the direction of the decedent. The defendant contended he had heard a shot from the area where he saw two men running, and that he acted in the defense of his person when he fired a shot at the person he believed was shooting at him. A police search of the area failed to produce any weapons, or any bullets or cartridges possibly connected with the incident 1 except the single cartridge ejected from Officer Gorwell’s weapon. The officer’s shot struck the decedent in the back, just below the right shoulder blade.

The decedent’s hands were wrapped in plastic bags at the scene, and a subsequent test was negative for the presence of gunpowder residue. The case received a substantial amount of media attention in Baltimore City, and had racial overtones—the officer was white and the young victim was African American. In a motion for change of venue the defendant alleged that the city’s Mayor and State’s Attorney had commented that shootings by police in the city were “excessive in number” and that there was “overwhelming citizen polarization for and against the police.” ²⁰⁷ Trial by jury commenced on 27 July 1993, in the Circuit Court for Baltimore City. Presentation of evidence was concluded on Tuesday, August 3, but, because the trial judge had other trial commitments, instructions and closing arguments were deferred until Thursday, August 5.

The case was given to the jury at noon on that day. The jury deliberated for about five and one-half hours before being excused for the day and instructed to return the next morning. On the morning of Friday, August 6, one juror did not appear at the appointed time. The remaining jurors were instructed not to discuss the case, and a search was undertaken for the missing juror.

About noon, information was received from the sheriffs office that deputies had contacted the missing juror’s employer. The employer stated that the juror picked up his paycheck at 7:00 p.m. on the preceding evening and informed his employer that he was required to return to court the following day. His employer described the juror as a good employee but one who had a drinking problem on his own time. Additionally, the juror’s wife called the court in response to messages that had been left on her answering machine, and informed the trial judge that her husband had come home from the courthouse on Thursday, announced that he was going to pick up his paycheck, and left.

The juror’s wife said she had not seen or heard from him since that time. The judge sequestered the jury until 2:00 p.m. on Friday, when she held another conference with the attorneys. At this point, she announced that the juror had not been found and asked the attorneys to consider proceeding with eleven jurors. The State’s Attorney asked the court to send the eleven jurors home after appropriate admonitions, but to defer any decision on whether to proceed with eleven jurors until the missing juror could be found, and the reason for his non-appearance ascertained.

The prosecutor suggested that if the juror’s reason for not being present was entirely personal and not associated with the case, proceeding with eleven jurors would be acceptable. If, however, it appeared that the juror was not ²⁰⁸ present “for a reason associated with this case, or some participant in this case, or something along those lines,” than a mistrial would be a more appropriate remedy. Defense counsel, after conferring with the defendant, stated he would agree to proceed with eleven jurors. The eleven jurors were sent home at mid-afternoon on Friday, after being told to avoid any media or other reference to the case.

At 3:30 or 4 o’clock that afternoon the missing juror telephoned the judge. The judge arranged for him to be brought to the courthouse and, while waiting for his arrival, recounted to the attorneys what the juror had told her: that three “white guys” had assaulted him when he was cashing his paycheck. Shortly thereafter, the prosecutor informed the judge that “based on just the allegation that the juror has made, it is going to be impossible for us to accept a jury of less than twelve.” He added, however, that the State’s view might change after the parties had heard from the juror. He said: If the allegation goes away to the point that it has totally evaporated, possibly we can rethink our position, but as long as the allegation remains even in any way viable, there is just no way for the public to accept the impression about what is happening here.

When the juror arrived, he was sworn and interrogated in the presence of the court, counsel, and the defendant. The juror testified that after he left court on Thursday he went home. From there he went to his place of employment and picked up his paycheck, after which he stopped by his mother’s house and obtained an additional check from her. Then he went to a liquor store on Eastern Avenue where he cashed his checks.

He said as he was walking out, counting his money, three white teenagers attacked him, knocked him to the ground, and took his money; that he was initially dazed but then rode around in his car collecting his thoughts; that he ultimately went to another liquor store and with a few dollars he had in his clothes bought a half-pint of liquor, which he consumed; that he sat in his car for the rest of the night and part of Friday morning before returning to his home. ²⁰⁹ After the juror completed his testimony, the parties again conferred with the trial judge. The prosecutor suggested that the juror be questioned by the court as to whether the juror felt he could continue serving as a juror without being affected by what had happened to him. The prosecutor said that if the juror was convinced he could continue the State would agree that deliberations of the twelve jurors should continue. The trial judge asked the prosecutor why, if the juror was convinced the attack had nothing to do with the case, the State would object to proceeding with only eleven jurors.

The prosecutor replied: Because, Your Honor, if, in fact, this jury were to come back with a not guilty verdict, I don’t see how it would be acceptable to the public or people of the State that criminal action by some people, who the public could view as interested in this case, would change the balance of the case. Defense counsel objected to the juror being allowed to continue. He said he did not believe the juror’s story, and he thought the juror would be biased. He requested that the court excuse the juror and allow the eleven remaining jurors to continue.

The trial judge, although stating that “everybody here is quite sensitive to the issue of race if that is an issue to go into this case,” strongly disagreed with the position being taken by the prosecutor. The Assistant State’s Attorney agreed to again confer with his superiors. The juror was excused until the following Monday morning. On Monday morning, the juror was again sworn and testified in open court but out of the presence of the other jurors.

After the juror again stated his version of the events that caused him to be absent, the court asked the parties to state their positions concerning continued service of the juror. Defense counsel again objected to the juror being allowed to continue. The prosecutor stated he would submit the decision to the discretion of the trial judge. The trial judge determined that the juror had been guilty of serious misconduct and removed him from further service on the jury. ²¹⁰ The trial judge, after voicing a strong opinion that deliberations should be allowed to continue with the remaining eleven jurors, again asked the positions of each party.

Defense counsel stated that “subject to two voir dire questions being asked of the jurors, we are inclined to go ahead -with eleven.” 2 The prosecutor refused to consent to continuation of the trial with eleven jurors. He said the State was concerned that so much time had elapsed since the conclusion of the evidence, and he was concerned about the public perception of justice under the circumstances. He said: I must tell the court that, among other things, we are very concerned about the lapse of time here, and the record should reflect that the evidence concluded last Tuesday at three-thirty. The jury began its deliberations approximately noon time on Thursday, and after four hours, or four and a half hours of actual debate, was stopped Friday, and has spent three days to ponder not the evidence, but to ponder the process and the missing juror.

We are concerned that the integrity of the process has been so affected that the perception of justice and the public acceptance of a verdict in this ease, which was going to be difficult at best anyway for the general public to accept any verdict here, but given the fact that one of the jurors had to be removed, the State is unable to give its consent to proceeding with eleven jurors. Defense counsel then suggested another option—that the defendant be permitted to waive his right to trial by jury and that the trial judge decide the case. The prosecutor indicated that this option would be within the discretion of the court, and the following colloquy ensued: THE COURT: Is the State telling me that they have no opposition to the court being the trier of fact, but they have an opposition to eleven representative people from the community being the trier of fact? ²¹¹ THE PROSECUTOR: Your Honor, the State has no right to decide whether or not the defendant is tried by the court or the jury. We do have the right to either consent or not consent to a jury of less than twelve.

We are taking no position about Your Honor accepting a change of election, primarily because we have no right to take a position, but to answer the court’s question very succinctly, we have confidence in the court’s ability, in the public’s perception of the court’s ability to decide the case, a confidence that we do not share with a jury of less than twelve. The trial judge declined the offer, stating: [TJhis court believes it should not be the trier of fact and the trier of law. I believe that because I do agree with the State that there is, especially in this case, a need for a perception of justice and for the process to work.... The trial judge, after expressing her dismay and disappointment with the State’s decision, declared a mistrial.

Thereafter, the defendant filed a motion to dismiss, contending that retrial was barred by double jeopardy protections. At the hearing of that motion, defense counsel argued that jeopardy had attached at the time trial commenced; that the defendant was entitled to have that trial completed by that tribunal; and that “there was no manifest necessity for the State to not accept eleven jurors.” The defense asserted that the State did not act in good faith in withholding its consent to proceed with eleven jurors, and that the motivation of prosecutor was that “the State thought they lost this case and wanted to get a new trial.” The prosecutor adamantly denied that allegation and said that the State’s decision had been made after consultation with a number of persons, including superiors in the State’s Attorney’s Office and the victim’s family. The prosecutor said there were three principal reasons for the State’s decision: 1) concern about the time that had elapsed between the close of the evidence on Tuesday and the proposed resumption of deliberations on the following Monday; 2) concern about impact on the remaining jurors of speculation by them concerning the non-appearance of one of their num ²¹² ber; and 3) concern “that in a case which caused such controversy within the community a verdict which sprang from an irregular process would not be perceived as justice.” The trial judge took the motion under advisement and thereafter filed a memorandum opinion and order granting the motion and dismissing the charges. She held that the proper test to be applied was not whether the State acted in bad faith, but “whether there was a reasonable alternative to the