State v. Jourdan

Orth, C. J., delivered the opinion of the Court. On 9 September 1971 JAMES MITCHELL JOURDAN, JR. was found guilty by a jury in the Circuit Court for Prince George’s County of storehouse breaking with intent to steal goods over the value of $100. On 12 October 1971 he was sentenced to imprisonment for a term of 6 years. The judgment was affirmed on direct appeal.

Jourdan v. State, No. 626, September Term, 1971, unreported, cert. den., 266 Md. 738 . On 5 June 1973 Jourdan filed a petition for relief under post conviction procedures and, upon hearing, the Circuit Court for Prince George’s County, by its order of 17 December 1973, “set aside” the judgment on the ground that Jourdan had been denied genuine and effective representation at his trial by reason of the failure of his attorney to raise the issue of double jeopardy. On 16 January 1974, the State, alleging that the hearing judge erred in reversing the judgment, applied for leave to appeal. Code, Art. 27, § 645-1; Maryland Rule BK46.

We granted the application, State v. Jourdan, No. 133, Application for Leave to Appeal, September Term, 1973, filed 14 February 1974, unreported, and by our order the same date the case was transferred to the regular appeal docket of this Court for further proceedings pursuant to Chapter 1000 of the Maryland Rules of Procedure. Rule BK47. Briefs were duly filed and argument presented. ⁶⁵⁰ The history of Jourdan’s cases for criminal violations runs the gamut of our criminal process. The indictment upon which Jourdan was found guilty and sentenced was handed up on 9 May 1971 by the Grand Jury for Prince George’s County.

The True Bill, classified as Trial number 11, 137 presented in Count I that “James Mitchell Jourdan, Jr., a/k/a Frederick Mitchell Ray, a/k/a James Mitchell Nebergall”, on 7 December 1970 did break into the storehouse of Advertising Distributors of Washington, Inc. with intent to take and carry away certain goods and chattels of the value of one hundred dollárs or more. Count II presented that Jourdan did unlawfully break into said storehouse with intent to steal money, goods and chattels under the value of one hundred dollars, and Count III presented that Jourdan did steal and carry away from Advertising Distributors of Washington, Inc. “assorted cigarettes and several checks of the value of eighty-nine dollars and ninety cents .. . .” Consolidated with that case on the day of trial was case number 11,147, then pending, charging forgery and uttering of a payroll check stolen during the incident described in the indictment of case 11.137. 1 The consolidated cases came on for trial on 21 May 1971. After determining that Jourdan was fully satisfied with the attorney appointed to represent him, a jury was duly impaneled and sworn, prospective witnesses were removed from the courtroom and Vincent J. Femia, Deputy State’s Attorney, made an opening statement. Jourdan reserved his opening statement.

The State immediately called as its first witness, Jess Edward Ditzler, who was duly sworn and, upon questioning by Mr. Femia, identified himself as the “production manager” for Advertising Distributors of Washington, Inc. Ditzler began to relate the disarray he observed upon arriving for work on 7 December 1970, the ⁶⁵¹ morning the break-in was discovered, 2 when Mr. Femia was suddenly taken ill. The transcript reads: “MR. FEMIA: Your Honor, may we approach the bench? THE COURT: Yes, you may.

(Whereupon counsel approached the bench and the following proceedings were had out of the hearing of the jury:) MR. FEMIA: I am not — well, I am about to — THE COURT: Court will recess for a few minutes, and Madam Clerk, keep me advised. (Whereupon court was recessed for a few minutes at the conclusion of which counsel returned to the bench and the following proceedings were had:) THE COURT: * * * the court indicates this matter was recessed approximately 2:10 in the afternoon after Mr. Femia made his way to the bench indicating that he was having trouble and it being very obvious to the court he was shaking like a leaf and when he went back to the bench Mr. Ahalt [Defense Counsel] handed him a glass of water. He was shaking so badly he could hardly take hold of the glass.

Do you agree with that Mr. Ahalt? MR. AHALT: That is correct, Your Honor. THE COURT: Under the circumstances Mr. Muskus has been sent to the courtroom, the State’s Attorney, Mr. Femia, having returned to the confines of the State’s Attorney’s lounge.

It now being 25 minutes after 2:00, Mr. Muskus from the State’s Attorney’s office has appeared in court. Now the court will hear you.” ⁶⁵² Mr. Muskus requested that the court take one of two courses of action in light of Mr. Femia’s infirmity. He first suggested, “so as not to pose a problem of double jeopardy,” that Jourdan consent to the court’s granting a mistrial in the case. In the alternative Muskus requested, on behalf of the State’s Attorney, that the court “continue this case until next week when Mr. Femia would be free to return and then try the case.” Jourdan, through his counsel, apparently opposed continuing the case, suggesting “... that the case be set back in for trial at the earliest possible jury date.” The court, stating that “[tjhere is no indication [Jourdan] voluntarily consents”, chose to “declare a mistrial believing that Mr. Muskus did not have the background” to present the State’s case.

The court stated: “It took us a considerable amount of time to get the whole situation into the appropriate complexion for its disposition and this is the last day for this jury for some substantial period of time. If I recess the case it would necessitate them [the jury] coming back in when they were not assigned as jurors. They cannot be used in any other jury case while this was recessed. * * * [T]hus, I declare a mistrial in the trial of Criminal Trials Nos. 11,137 and 11,147.” The State saw the court’s ruling as a harbinger of future problems in that Jourdan could contend there was “no ground for mistrial”, “that the case should have been continued” and that Jourdan could claim “double jeopardy” at a “later date.” The court disagreed, believing the matter was one subject to the court’s “discretion under the circumstances” and that Mr. Ahalt would consent on behalf of Jourdan. Mr, Ahalt agreed, “That is correct, Your Honor.” Mr. Muskus inquired: “So far as the defendant is concerned there is no problem declaring a mistrial, is that correct? ” Mr. Ahalt: “That is correct.” .

As a further “precaution”, Mr. Muskus sought Jourdan’s ⁶⁵³ personal consent to a mistrial. The court interrupted Mr. Muskus’s request, stating, “. . . the court has disposed it as a mistrial”, and directed the State and Jourdan’s attorney to set the case for trial “at the earliest practical date.” On 7 September 1971 Jourdan was again brought to trial before the Circuit Court for Prince George’s County and a jury. With the exception of a discussion of whether the State would go forward in case 11,147 (forgery and uttering) Mr. Ahalt made no comment nor did he raise any preliminary motions prior to the jury being impaneled and trial commencing. After more than a full day of testimony and argument the jury rendered a verdict of guilty as to Count One, Criminal Trials 11,137, storehouse breaking over $100; not guilty as to all counts in Criminal Trials 11,147.” Subsequently, Jourdan, through his attorney, Mr. Ahalt, appealed his conviction, questioning whether he “knowingly and voluntarily waived his rights against self-incrimination and voluntarily confessed to the crime.” As indicated, the judgment of the lower court was affirmed on direct appeal and certiorari was denied by the Court of Appeals.

On 5 July 1973, Jourdan, in proper person, filed a “Petition for Post Conviction Relief” alleging error in the admission of his confession, the voluntariness of his confession, denial of his constitutional rights under Miranda v. Arizona, 384 U.S. 436 , denial of a speedy trial, and denial of “choice of counsel” and asserting that therefore his conviction and sentence were “illegal.” On 24 August 1973 Jourdan, through his attorney, Patrick R. Hudson, assigned by the Public Defender, filed an “Amended Petition for Post Conviction Relief” alleging that Jourdan’s confession was not voluntary, that he was denied a speedy trial and that he was “twice placed in jeopardy for the same offense in violation of Article V of the United States Constitution . ...” A hearing on the petition was scheduled for 15 October 1973 at which time the State moved for a dismissal without hearing. The court granted that motion. On 24 October 1973, upon Jourdan’s filing of a “Post-Hearing Memorandum”, the court ordered that an evidentiary hearing be held. At hearing on 26 November 1973, Jourdan called as ⁶⁵⁴ witnesses Eugene Muskus, Vincent J. Femia and Arthur M. Ahalt.

Mr. Muskus testified that he was an experienced prosecutor in the State’s Attorney’s office and that on 21 May 1971, in the afternoon, he was informed by the State’s Attorney that Mr. Femia was ill and was directed to go to Courtroom number 1 and request a “continuance, so that [Mr.] Femia could recover and assume responsibilities in the case”. Mr. Muskus testified that he had not seen the file in Jourdan’s case, had not had an “opportunity to review the State’s file” and was unfamiliar with any of the State’s witnesses. He believed “at that particular time” he “could not take over the trial” and he requested, as the transcript of the proceeding illustrates, a continuance. He testified that he never suggested a mistrial and that when the court did so, sua sponte, he persistently sought defense counsel’s agreement as a “double precaution” because of “the issue of double jeopardy.” Mr. Muskus recalled that Mr. Ahalt was “reluctant to consent”; it was “not his desire to consent.” Vincent J. Femia testified that in the morning of 21 May 1971 he finished a case he was trying on behalf of the State and after lunch “picked up” Jourdan’s case from another prosecutor.

He understood that all of the State’s witnesses were present except one and, after reviewing the State’s case for 10 or 15 minutes, “more than ample” preparation though he knew “nothing of the defendant; knew nothing of the prior motions in the case”, he went to trial. He recalled the impaneling of the jury and offering Mr. Ditzler as the State’s first witness. He vaguely remembered informing Judge Mathias that he felt faint and then sitting down. “The next thing [he] remember[ed] [he] was up in the State’s Attorney’s office.” Though he resisted going to the hospital, he went to his doctor and underwent a “rather complete physical.” His illness was diagnosed as “exhaustion.” He did not return to work for more than a week. Arthur M. Ahalt, Jourdan’s attorney at trial, testified that prior to 21 May 1971 the case had been continued several times and that he wanted to proceed.

After trial commenced he noticed that for about five minutes Mr. Femia “was not able to ask questions”, “was white, ashen” and that “the man ⁶⁵⁵ was sick.” After Mr. Femia sat down at the trial table, Mr. Ahalt poured him a glass of water. Mr. Ahalt testified that Mr. Femia “could hardly hold the glass.” He testified further that the only time he