State v. Baker

453 Md. 32

160 A.3d 559

STATE of Maryland

v.Andrew Daniel BAKER

No. 55, Sept. Term, 2016

Court of Appeals of Maryland.

May 22, 2017

ARGUED BY Ryan R. Dietrich, Assistant Attorney General (Brian E. Frosh, Attorney General of Maryland, Baltimore, MD), on brief, for Petitioner

ARGUED BY Todd M. Brooks, Assigned Public Defender (Alan C. Lazerow, Assigned Public Defender, Whiteford Taylor & Preston, LLP, Baltimore, MD; Paul B. DeWolfe, Public Defender of Maryland, Baltimore, MD), on brief, for Respondent

ARGUED BEFORE: Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ.

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, 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, 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 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 violence² 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, 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 Fockler 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 Fockler's request. The circuit court then stated that it would issue the body attachments, and the court recessed at 10:35 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 impanelled⁵ and sworn, the court 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." Futhermore, 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 "[t]hat 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 4–263⁶ 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.

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

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