Whitfield v. Warden of Maryland House of Correction

• Decision Date: 20 February 1973
• Docket Number: Civ. No. 72-892-K.
• Parties: Conrad WHITFIELD v. WARDEN OF the MARYLAND HOUSE OF CORRECTION.
• Court: U.S. District Court — District of Maryland

355 F. Supp. 972

Conrad WHITFIELD v. WARDEN OF the MARYLAND HOUSE OF CORRECTION.¹

Civ. No. 72-892-K.

United States District Court, D. Maryland.

February 20, 1973.

Morton Guth, Baltimore, Md., for petitioner.

Edward M. Ranier, Asst. State's Atty., Baltimore, Md., for respondent.

MEMORANDUM AND ORDER

FRANK A. KAUFMAN, District Judge.

Conrad Whitfield, presently detained in the Maryland House of Correction, contends that his second trial, on charges of murder and conspiracy to commit murder, would be violative of federal constitutional principles of double jeopardy.² On June 21, 1971, a jury trial of Whitfield and his co-defendant Paul C. Baker was commenced in the Circuit Court for Carroll County, Maryland, Judge Weant presiding. During the second day of that trial, while counsel for Whitfield was in the process of arguing, at the end of the prosecution's case, a motion for acquittal, a juror, apparently by inadvertence, reentered the courtroom. The transcript of the proceedings reveals that the following transpired:

Proceedings before the Court after the State rested its case.

COURT: Do you have motions?

MR. GUTH counsel for petitioner: The general motion of dismissal, yes sir.

COURT: Ladies and Gentlemen of the Jury, I think it might be a good time now to recess for lunch. We'll take a recess until one o'clock. You be back at that time. And while you're out please do not discuss the case with anyone or discuss it among yourselves. See you at one.

(Thereupon Jury discharged for lunch at 11.46 o'clock, a.m. to resume at One o'clock, p.m.)

COURT: All right.

MR. GUTH: A motion for a judgment of acquittal as to both indictments, the conspiracy and the murder charge.

MRS. MITCHELL: Your Honor,—

COURT: Let Mr. Guth finish first.

MR. GUTH: I don't think the State has proved a prima facie case directing my attention to the murder. I think, number one, no connection has been made as between the defendant, Whitfield, and the actual murder here. There has been talk about a gun supplied by one of the witnesses, credibility very questionable, no connection with that gun or any gun with Mr. Whitfield. There's a bullet that has not been introduced into evidence, the chain of custody of which is very questionable to me. The last point that I remember that that bullet was was in a box in the Crime Lab. There's no evidence in this case indicating how that bullet arrived here, although it is acutally, you've allowed it to be in evidence and you've made some statement as to the weight that you would personally attach to it.

COURT: My point is that it was proved that he was killed by a 32 bullet. Whether or not the bullet is introduced I think is immaterial.

MR. GUTH: It's quite obvious there was a murder committed.

COURT: That's not on the point.

MR. GUTH: Now failing to show these things, failing to place the defendant at this scene, and the only evidence we have thus far as to any witness having seen anything is the other highly questionable witness. I think that was Cheeks, no, Harold Jones, brother of the deceased.

(Thereupon Juror entered Court Room)

COURT: Is there going to be any question raised, might as well raise it now. Now, just a minute, let it be, the record show that one of the jurors was in the jury room and could have heard so much of the motion and the Court's remarks. If there's anybody that feels prejudiced at this time please say so. I don't want to go further with the trial if you feel so. If you feel any way, one way or the other, I want to know now and not have it raised later on.

MR. GUTH: For the record I will say on behalf of the defendant, Whitfield, that I don't, that it is my firm belief that the witness heard absolutely nothing that was stated, the juror rather.

COURT: Well let's go on the assumption that he did because he might have. I want to known whether or not anybody wants to raise that question at this time.

MR. GUTH: I want to—my observation from this vantage point I think the door was shut and I think it only was opened at the time as he entered and at that time there was no testimony. There was no argument or conversation in his presence.

MRS. MITCHELL counsel for petitioner's co-defendant: May it please the Court I feel duty bound for my client, on behalf of my client, Paul Baker, to raise the question as to whether the juror did hear anything. The door was open and arguments had begun on the motion and for the protection of my client's rights in this case.

COURT: I don't blame you. Now I want to ask you this. Would it be sufficient to ask the juror, after lunch, whether he heard anything or do you want to rest the matter on the assumption that he did. That's entirely up to you.

MR. GUTH: I think that would be a very satisfactory method of resolving it as far as—

COURT: You're not complaining.

MR. GUTH: I'm not complaining.

COURT: Mrs. Mitchell, and she has the right to. I want her to be satisfied.

MRS. MITCHELL: I do complain on behalf of my client.

COURT: All right. We'll call it a mistrial. When the jury comes back, withdraw a juror, and dismiss the case. Set another time which will not be until August at least because I'm going away in July. Can't get it in before then. All right.

MR. GUTH: Your Honor, would your Honor possibly reconsider if this juror would return—.

COURT: I can't do it in light of Mrs. Mitchell's objection, no sir. Couldn't possibly do it.

AFTERNOON SESSION 1:00 o'clock, p. m.

COURT: Ladies and Gentlemen, I think your job is over. There's a slight irregularity and the Court has granted a motion for mistrial so we'll have to withdraw a juror and call it a day.

Subsequently, Whitfield's motion for a dismissal of the charges against him on the ground that any further trial would subject him to being twice placed in jeopardy was denied by Judge Weant. On appeal, the Court of Special Appeals of Maryland, in an opinion by Judge Orth, affirmed that denial, Judge Moylan dissenting, sub nom. Baker, Whitfield & Wilson v. State, 15 Md.App. 73, 289 A.2d 348 (1972). After Whitfield's petition for reargument had been denied by the Court of Special Appeals, the Court of Appeals of Maryland declined discretionary review. Having thus exhausted his state remedies Whitfield now seeks federal habeas corpus review in this Court, again urging his double jeopardy contention.

In Benton v. Maryland, 395 U.S. 784, 796, 89 S.Ct. 2056, 23 L.Ed. 2d 707 (1969), the Supreme Court overruled its earlier holding in Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937), that federal double jeopardy standards were not applicable to state criminal proceedings. Thus, since Benton, federal constitutional double jeopardy principles are applicable to state court trials such as Whitfield's 1971 trial. Those principles do not dictate the application of a mechanical rule barring any and all retrials if jeopardy has once attached and the jury is subsequently discharged without the defendant's consent. Rather, the Supreme Court has recognized that, in some instances, "* * * a defendant's valued right to have his trial completed by a particular tribunal," Wade v. Hunter, 336 U.S. 684, 688, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949), collides with the inability of any society to guarantee those who stand accused a perfect trial, and that therefore in some instances the Government is afforded another opportunity to present its case. United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165 (1824) (discharge of a jury which reports an inability to reach a verdict); Wade, supra (court-martial discharged because of change in field conditions). In United States v. Perez, however, the Court (at 580) stressed that reprosecution should be permitted after a mistrial only when "there is a manifest necessity for the act i. e., the mistrial or the ends of public justice would otherwise be defeated." More than a century after Perez, in 1961, in Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L. Ed.2d 901 (1961), Mr. Justice Frankfurter, speaking for five members of the Court, after noting that the intermediate federal appellate court had characterized the trial judge's declaration of a mistrial as "overassiduous" and had criticized the jury's discharge as "premature", held (at 369, 81 S.Ct. at 1527), in the course of reversing the appellate court and approving the trial court's action, that: "* * * we are unwilling, where it clearly appears that a mistrial has been granted in the sole interest of the defendant, to hold that its necessary consequence is to bar all retrial." Mr. Justice Douglas' dissenting opinion, joined by Mr. Chief Justice Warren, and Mr. Justices Black and Brennan, suggested (at 370, 81 S.Ct. at 1527) that the majority had erred in phrasing the inquiry "* * * in terms of whether a mistrial has been granted `to help the prosecution' on the one hand or `in the sole interest of the defendant' on the other."

In United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971), a federal district judge had aborted the trial and discharged the jury, without the defendant's consent, because of the trial judge's solicitude for potential Fifth Amendment self-incrimination dangers facing certain government witnesses. Mr. Justice Harlan's plurality opinion, joined by Mr. Chief Justice Burger³ and Mr. Justices Douglas and Marshall, seemingly rejected the rationale of Gori, stating (at 483, 91 S.Ct. at 556), "* * * we think that a limitation on the abuse-of-discretion principle based on an appellate court's assessment of which side benefited from the mistrial ruling does not adequately satisfy the policies underpinning the double jeopardy provision," and holding (at 487, 91 S.Ct. at 558):

* * * When one examines the circumstances surrounding the discharge of this jury, it seems abundantly apparent that the trial judge made no effort to exercise a sound discretion to assure that, taking all the circumstances into account, there was a manifest necessity for the sua sponte declaration of

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