State v. Fennell

431 Md. 500

66 A.3d 630

STATE of Maryland

v.Sean FENNELL.

Misc. Docket AG No. 72, Sept. Term, 2012.

Court of Appeals of Maryland.

May 17, 2013.

Cathleen C. Brockmeyer, Assistant Attorney General, (Douglas F. Gansler, Attorney General of Maryland, Baltimore, MD), on brief, for Petitioner.

Scott L. Rolle, (Law Offices of Scott L. Rolle, LLC, Frederick, MD), on brief, for Respondent.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, BARBERA, and McDONALD, JJ.

HARRELL, J.

The Double Jeopardy Clause of the United States Constitution, as well as Maryland common law, protect 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 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:

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 5³

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.

THE COURT: The [modified Allen⁴ ] 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.

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 I 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.

[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 returneda 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 ...