Whitfield v. State

Gilbert, C. J., delivered the opinion of the Court. A cadet guard at the Baltimore City Jail surreptitiously carried a handgun into the jail and delivered it to an inmate who intended to use the weapon to effect an escape. The plot was revealed before the escape occurred. As a result, the appellants, Conrad Whitfield (Whitfield), Nigel Little (Little), and Peteta Davis (Davis)* 1 were indicted by the Grand Jury for Baltimore City and charged with conspiracy to violate the Maryland statute proscribing escape from jail.

Md. Ann. Code art. 27, § 139(a). 2 Whitfield, a then jail inmate, and Little, a ¹⁰⁹ then cadet guard, were also charged with a handgun violation, Md. Ann. Code art. 27, § 36B(b). Little was additionally charged with delivering “one .25 caliber automatic pistol” to Whitfield. All three accused pleaded not guilty to the indictments, and the case proceeded to a trial by jury on March 29, 1977. On the second day of trial, Judge David Ross declared a mistrial.

Three months later, June 22, 1977, a new jury, presided over by Judge Milton Allen, was sworn and the three defendants were retried. After a protracted trial, the jury found: 1) Whitfield guilty of the conspiracy and handgun charges, 2) Little guilty of the handgun and contraband charges but not guilty of conspiracy, and 3) Davis guilty of conspiracy. The factual scenario began in the spring of 1976. From May to July of that year, Whitfield and one Thomas Brown were involuntary residents in the Baltimore City Jail.

By happenstance, each was represented, on unrelated criminal matters, by the same attorney, Marshall Stewart. On July 2, 1976, Brown was in the Southwestern District Court for a hearing on a case there pending against him. Stewart, who was representing Brown in that proceeding, was also present. Brown took Stewart aside and told him he “had some information about a pistol” in the jail, and that he wanted “to speak to somebody” about it.

Stewart informed the Police Captain in charge of the District, and Brown was taken to Central Police Headquarters where he gave a written statement relative to the details of the gun’s being in the jail. Shortly thereafter, the police alerted the Warden of the jail that a pistol had been carried into the institution, and that Whitfield and Cadet Little knew where it was. Correctional Major Howard Parks, joined by Captain Calvin Young and Lieutenant William Britton, accosted Whitfield in a passageway of the jail and ordered him to accompany them to a secluded section. There, Young and Britton confronted Whitfield with the fact that they knew “that he was in ¹¹⁰ possession of a weapon within the institution.” No Miranda 3 warnings were given prior to the confrontation or subsequent interrogation.

In the words of Major Parks, the objective was “to obtain the weapon and get it out of the institution.” Whitfield admitted knowledge of the pistol and was sent, unaccompanied, to retrieve it. He returned with the gun which was wrapped in a shirt. Britton then took him to Parks’s office for further questioning. Whitfield was told “he could contact his attorney,” but no other rights were read to him.

Whitfield then used the phone, apparently to call Stewart. Several minutes later, a Mr. Clauss, Stewart’s “legal assistant,” arrived. Under renewed interrogation by Lt. Britton, with Clauss present, “Whitfield laid everything out ... what was supposed to have transpired.” Whitfield’s statement implicated Little and Davis.

Indictment and trial followed. On appeal to this Court, Whitfield and Little pose three contentions. We shall discuss each in thq order raised by the appellants, adding such additional facts as may be necessary for a better understanding of. the resolution of the issue. I. “The retrial of the present cases was barred by the Double Jeopardy Clause [4] as a result of prosecutorial overreaching.” Appellants argue that: “The failure of the prosecutor in the present case to disclose to Judge Ross that Whitfield and Davis were being represented by an attorney who had worked out an arrangement for leniency for the State’s chief witness [Brown] and who was also a potential witness against his clients was clearly prosecutorial overreaching under either the ¹¹¹ intentional misconduct or gross negligence standards.” (Footnote omitted.) An analysis of those standards leads us to the opposite conclusion.

When the case was first called to trial on March 29, 1977, before Judge Ross and a jury, Whitfield and Davis were represented by Mr. Stewart. On the second day of the trial, Whitfield made known to Judge Ross that Stewart was “still representing Mr. Brown,” who was the principal prosecution witness. Whitfield said that Stewart was “trying to get ... [Brown] off of the hook, and I feel as though ... I am not getting fair representation by the attorney representing me.” A bench conference before Judge Ross disclosed that Stewart had, in fact, represented Brown, Whitfield, and Davis in separate matters prior to the disclosure by Brown, at Southwestern Police Station, of the gun’s presence in the jail.

Stewart had told Whitfield that he, Stewart, would not be representing Brown during Whitfield’s current trial. Stewart admitted, however, that he had negotiated with the State for leniency for Brown in return for Brown’s cooperation in the case against Whitfield, Little and Davis. The prosecutor said that he knew about Stewart’s involvement with both Brown and Whitfield “for quite sometime” but had been assured by Stewart that Stewart “had had no contact with Mr. Brown since” the revelation about the gun on July 2, 1976. After hearing from all the parties, and with the express concurrence of all three defendants, Judge Ross declared a mistrial.

He based his declaration on the ground that it was of “manifest necessity, under the total circumstances,” to avoid forcing Whitfield to trial in view of Whitfield’s feelings toward Stewart and the apparent conflict of interest. Prior to the commencement of the second trial, a hearing was held on the defense motions to dismiss the indictments and to suppress oral and written statements made by Whitfield and Davis. The motions averred that a retrial would subject the defendants to double jeopardy because of prosecutorial misconduct in failing to disclose Stewart’s conflict of interest to the court. It was also argued that the statements taken by police from Whitfield and Davis should ¹¹² have been suppressed because of ineffective assistance of counsel caused by Stewart’s conflict of interest.

The trial court granted the motion to suppress the statements made by Whitfield and Davis at police headquarters. All other defense motions, including the motion to suppress the oral statements made by Whitfield to Young and Britton in the City Jail, were denied. Recently, in Thompson v. State, 38 Md. App. 499 , 381 A. 2d 704 (1978), we discussed prosecutorial overreaching in relation to double jeopardy. We said: “Although the double jeopardy clause is designed to protect the defendant against multiple punishments or repeated prosecutions for the same offense, United States v. Dinitz, 424 U. S. 600 , 96 S. Ct. 1075 , 47 L.Ed.2d 267 (1976), a request by a defendant for a mistrial ordinarily removes any bar to reprosecution even though the motion was necessitated by prosecutorial or judicial error.

Lee v. United States, 432 U. S. 23 , 97 S. Ct. 2141 , 53 L.Ed.2d 80 (1977); United States v. Dinitz, supra. This rule is not absolute and where a mistrial is the product of prosecutorial or judicial overreaching, the double jeopardy clause prevents a retrial. Lee v. United States, supra; United States v. Jorn, 400 U. S. 470 , 91 S. Ct. 547 , 27 L.Ed.2d 543 (1971). The exact boundaries of prosecutorial overreaching, necessary to bar retrial, have not been specifically delineated by the Supreme Court.

Other courts which have considered the point generally hold that prosecutorial error attributable to negligence does not amount to overreaching, People v. Baca, Colo., 562 P. 2d 411 (1977), while intentional misconduct calculated to gain a more favorable chance for conviction or to abort a trial that is going badly prevents reprosecution. United States v. Kessler, 530 F. 2d 1246 (5th Cir. 1976). The appellant argues that prosecutorial overreaching is not confined to intentional misconduct but encompasses gross negligence as well. Commonwealth v. Bolden, 472 ¹¹³ Pa. 602, 373 A. 2d 90 (1977).

Although in Bolden, the Court noted that it is unclear from the decisions of the Supreme Court whether overreaching is limited to intentional misconduct or whether it extends to gross negligence on the part of the prosecutor, or judge, it concluded gross negligence was encompassed in the term after an examination of the purposes underlying the double jeopardy clause. The Court stated: ‘A defendant forced to request a mistrial by conduct which conspicuously fails to satisfy professional standards should not be required to bear the heavy burdens incident to reprosecution.’ 373 A. 2d at 109 .” 38 Md. App. at 502 , 381 A. 2d at 705-06 . While the precise perimeters of the term, “prosecutorial overreaching” have not, as Thompson points out, been drawn by the Supreme Court or the Maryland Court of Appeals, Judge Moylan shed some light on the subject in Loveless v. State, 39 Md. App. 563 , 387 A. 2d 311 (1978), 5 when he stated: “Except in those rare instances where the prosecution or the court has deliberately sabotaged a trial that was going badly, the available redress where an irremedial error is recognized in mid-trial is the declaration of a mistrial followed by a retrial.... The only time that a retrial is barred under double jeopardy principles is when there has been such prosecutorial or judicial overreaching as to have mounted to a deliberate and intentional sabotaging of the earlier trial.” (Citations omitted.) 39 Md. App. at 565-66 , 387 A. 2d at 313 .

Thompson and Loveless allude to the possibility that the gross negligence standard may be encompassed within the term “prosecutorial overreaching,” Thompson v. State, 38 ¹¹⁴ Md. App. at 504, 381 A. 2d at 706 , Loveless v. State, 39 Md. App. at 569 , 387 A. 2d at 315 , but we did not so hold. It was unnecessary for us to decide that question because the facts were insufficient to create an issue of gross negligence. The bar against double jeopardy does not prevent a retrial where the prosecution’s commission or omission, absent an intent to cause a mistrial, amounts, at most, to the exercise of poor judgment. Loveless v. State, supra; Thompson v. State, supra; Commonwealth v. Bolden, 472 Pa. 602 , 373 A. 2d 90 (1977).

While the facts before us indicate poor judgment on the part of the prosecution, we discern no intentional misconduct or gross negligence. Appellants place heavy reliance upon the Code of Professional Responsibility as the standard by which to measure the Assistant State’s Attorney’s conduct in the matter subjudice. They refer us to DR 1-103, 6 DR 5-102, 7 and DR 5-105. 8 Violations of the disciplinary rules, however, are not necessarily tantamount to gross negligence or intentional misconduct. From the facts in this case, we cannot infer intentional misconduct on the part of the prosecution.

He admitted to the court that he had been aware of the representation by Mr. Stewart of Brown, Whitfield and Davis, but said he had discussed the possible conflict with both defense attorneys, Stewart and the counsel for Little, prior to the aborted first trial. The prosecutor stated that based on those discussions, he did not feel there would be a dispute of fact requiring Mr. Stewart’s testimony. Therefore, the Assistant State’s Attorney saw no need to inform the court of Stewart’s representation of possible conflicting interests. There was no indication by Whitfield prior to, or during, the first day of the short-circuited first trial that he was dissatisfied with Stewart’s services. ¹¹⁵ Whitfield became alarmed after he had observed Stewart associating with Brown and Brown’s family during recesses in the trial proceedings.

Whitfield knew from the outset of the case of Stewart’s relationship with Brown, but he had apparently decided to proceed with the status quo. Moreover, it is clear from the record that after the initial incident concerning a gun being in the jail on July 2,1976, Stewart did not act as counsel for Brown. Stewart did, however, become Whitfield’s and Davis’s attorney for the escape and related offenses case, with no further dealings with Brown on the matter. The Assistant State’s Attorney vigorously argued against a mistrial.

That fact, while not conclusive, at least suggests that there was no intent to “sabotage” the trial in the hope of gaining a more favorable chance of conviction or abort it because it was going badly. 9 Under the particular facts of this case, we perceive no prosecutorial overreaching in the form of gross negligence or intentional misconduct which would serve to activate the double jeopardy clause bar to the retrial of appellants. II. “Evidence of other crimes was improperly admitted into evidence. A. The State’s evidence was insufficient to permit this Court to determine that evidence of other crimes was admissible under the common scheme exception. B. The State failed to present clear and convincing evidence that the other crimes were committed and that Whitfield and Little had committed them.

C. Evidence of other crimes should have been excluded on the ground that its probative value was far outweighed by its prejudicial effect.” ¹¹⁶ During its case in chief, the prosecution sought to introduce a written statement given by Brown to the police on July 3, 1976. The statement set out in detail the manner in which the defendants passed the gun into the jail via Davis, to Little, to Whitfield. According to the text of the writing, Cadet Little brought “in packages of narcotics” for Brown, Whitfield and other inmates on occasions previous to the date the gun was smuggled by Little past the other guards and into the institution. Little’s attorney objected to that part of the statement dealing with the narcotics.

The prosecutor proffered that the statement was admissible under the “common scheme” exception to the rule that evidence of other unrelated crimes is inadmissible at trial of a particular crime. Judge Allen overruled the objection, saying, “I think it is a common scheme and design ... to bring contraband into the jail. I will admit it.” Thereafter, the statement was read to the jury in toto, and testimony was furnished by Brown concerning both the charged and uncharged “other crimes.” Oddly, only Whitfield objected to the oral testimony regarding the uncharged crimes, and he was overruled on the “common scheme theory.” Only Whitfield’s argument as to the oral testimony was thus preserved for appeal, Hyson v. State, 225 Md. 140 , 169 A. 2d 449 (1961). Little has no standing to raise the issue.

Nevertheless, pursuant to Md. Rule 1085, we shall consider the issue with respect to both appellants because the oral testimony did not appreciably add to the written statement. The Court of Appeals, in Ross v. State, 276 Md. 664 , 350 A. 2d 680 (1976), supplied a definitive analysis of the evidentiary rule pertaining to the use of prior offenses or prior convictions against an accused who is on trial for different or unrelated acts. The Court said: “The frequently enunciated general rule in this state, followed uniformly elsewhere, is that in a prosecution for a particular crime, evidence which in any manner shows or tends to show that the accused has committed another crime wholly independent of ¹¹⁷ that for which he is on trial, even though it be a crime of the same type, is irrelevant and inadmissible. This principle is merely an application of the policy rule prohibiting the initial introduction by the prosecution of evidence of bad character.

Thus, the state may not present evidence of other criminal acts of the accused unless the evidence is ‘substantially relevant for some other purpose than to show a probability that he committed the crime on trial because he is a man of criminal character.’ C. McCormick, Evidence, § 190 (2d ed. 1972). ... [Ajpart from the fundamental proposition that an accused may be convicted only by evidence which shows that he is guilty of the offense charged, and not by evidence which indicates his guilt of entirely unrelated crimes, there are additional reasons underlying the general rule. Evidence of other crimes may tend to confuse the jurors or prejudice their minds against the accused and to predispose them to a belief in his guilt. Finally, unless he knows in advance that evidence of other crimes is to be used against him, the accused will be unprepared to defend against such evidence. There are exceptions to this general exclusionary rule which, perhaps, are equally well-recognized.

Thus, evidence of other crimes may be admitted when it tends to establish (1) motive, (2) intent, (3) absence of mistake, (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, and (5) the identity of the person charged with the commission of a crime on trial. Additional exceptions have also been recognized: When the several offenses are so connected in point of time or circumstances that one cannot be fully shown without proving the other, and to show a passion or propensity for illicit sexual relations with the particular person concerned in the crime on trial, and to prove other like crimes by the accused so ¹¹⁸ nearly identical in method as to earmark them as the handiwork of the accused.” 276 Md. at 669-70 , 350 A. 2d at 684 . (Emphasis supplied.) (Citations omitted.) Accord, Cross v. State, 282 Md. 468 , 386 A. 2d 757 (1978); McKnight v. State, 280 Md. 604 , 375 A. 2d 551 (1977); Martin v. State, 40 Md. App. 248 , 389 A. 2d 1374 (1978). See also Worthen v. State, 42 Md. App. 20 (1979).

There are, as the Court stated in Cross v. State, supra, at 473, 386 A. 2d at 761 , exceptions which “appear to swallow the rule.” Judge Digges, writing for. the Court, said: “As a general rule, in order to gain the admission of evidence of other criminal acts under the common scheme or plan exception it is necessary that the crimes, including the crime charged, so relate to each other that proof of one tends to establish the other. Moreover, there must be ‘not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.’ 2 J. Wigmore, Evidence § 304, at 202 (3d ed. 1940) (emphasis in original). The concurrence of common features under this exception, however, must be more than simply a manner of operation, which is possessed to some extent by most criminal recidivists. A method of operation is not, by itself, a common scheme, but merely a repetitive pattern.

Thus, evidence of other crimes can be introduced under the common scheme exception only when the relationship between the time, place, circumstances or parties involved in the crimes is such that the uncharged crime or crimes ‘support the inference that there exists a single inseparable plan encompassing both the charged and uncharged crimes, typically, but not exclusively, embracing uncharged crimes committed in order to effect the primary crime for which the accused has ¹¹⁹ been indicted.’ 312 N.E.2d at 177, 356 N.Y.S.2d at 42-43.” 282 Md. at 475-76 , 386 A. 2d at 762 . The prosecutor, in answer to the objections by the defense, made the following proffer: “I submit in this case this evidence of other crimes is admissible and tends to show a common scheme, a plan which deals with a bringing into the Baltimore City Jail contraband, a weapon, in the Baltimore City Jail by a guard. I said to the jury in my opening statement, how does an inmate just go up to a guard, he doesn’t just go up to a guard and say, hey, get in a gun for me. There has to be some handling of it, something that he has over the guard or some prior connection with the guard in other criminal activities which makes the guard susceptible to a part of a general scheme and the plan to make the guard be able to not submit, but make the guard subject to bringing in that contraband.

I submit to the Court that the evidence will be that this guard was continuing to bring to inmates contraband other than weapons, explaining the intent of the activities of bring {sic\ in pieces of contraband, a weapon, part of the same common scheme and design as bringing previous narcotics in and that’s why he was able to be approached. It’s an essential part of the State’s case, if I can show to the jury why it is that they picked this particular guard over all the others.” To underpin their argument that the State’s proffer of evidence was insufficient to allow the court to admit it under the common scheme exception, appellants rely on Cross v. State, supra; McKnight v. State, supra; and Jones v. State, 38 Md. App. 432 , 381 A. 2d 317 (1978), aff’d, State v. Jones, 284 Md. 232 (1979). We think those cases to be inapposite. The State’s evidence, offered in Cross under the common scheme exception, consisted merely of a blue car having been seen in front of two residences where break-ins had occurred on a particular day.

The defendant was charged with one of ¹²⁰ the break-ins, and evidence concerning the other break-in