Cornish v. State

• Decision Date: 29 July 1974
• Docket Number: No. 275,275
• Citation: 322 A.2d 880,272 Md. 312
• Parties: Trent William CORNISH v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 312

272 Md. 312

322 A.2d 880

Trent William CORNISH v. STATE of Maryland.

No. 275.

Court of Appeals of Maryland.

July 29, 1974.

Gerald N. Klauber, Baltimore (Fine & Klauber, P.A., Baltimore, on the brief), for appellant.

James L. Bundy, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen. and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, JJ.

ELDRIDGE, Judge.

The single issue before us is whether, under the particular circumstances of this criminal case, the retrial of the defendant-appellant following the trial judge's sua sponte declaration of a mistrial would violate the double jeopardy prohibition of the Fifth Amendment to the United States Constitution.

On August 18, 1972, the appellant Trent William Cornish was indicted by the Grand Jury of Baltimore City for the murder of one John Gerald Bullock. The indictment also charged Cornish with assault with intent to murder Bullock and with assault upon Bullock. The trial was originally scheduled for January 11, 1973, but was postponed because of the State's lack of witnesses. Another trial date was scheduled for April 18, 1973, but it was also postponed for the same reason. On this later trial day, the prosecuting attorney informed Cornish's attorney that the prosecution possessed a statement which the defendant had given to the police. On April 27, 1973, the defense counsel filed a motion to obtain a copy of the statement. The State, however, did not respond to that motion.

On June 4, 1973, the trial commenced before Judge Shirley B. Jones in the Criminal Court of Baltimore. Cornish, after being advised of his rights, pleaded not guilty and requested a jury trial. Before the jury was selected, the defendant's attorney informed the court that his discovery motion of April 27, 1973, was still unanswered and that a motion to suppress would be made during the course of the trial if the State attempted to introduce the defendant's statement. The trial was then recessed. When it resumed later in the day, the defendant withdrew his prior request for a jury trial and elected instead to be tried by the court. The State then presented its first witness, Police Officer Decewicz. The police officer testified as to the details of the crime and certain clothing and other objects found near the body of the victim.

Upon completion of Officer Decewicz's testimony, the prosecuting attorney remarked: 'Now, Your Honor, inasmuch as it was anticipated that this was a guilty plea or a not guilty plea (on a) statement of facts, that is the only witness the State has available.' The Assistant State's Attorney prosecuting the case had evidently been under the impression there was going to be a guilty plea or that, in the alternative, the defense had agreed to allow the State to present the remainder of its case on an agreed statement of facts. The defendant's attorney's recollection of the understanding was somewhat different, namely that the case would be tried on an agreed statement of facts 'if we could agreed on a statement of facts.' The trial judge suggested a continuance. However, defense counsel, stating his desire to 'dispose of this matter right now,' agreed to stipulate as to the testimony of other police officers but objected to any attempt by the State to introduce the statement made by the defendant into evidence because the discovery motion had gone unanswered.

After a lengthy discussion among the prosecuting attorney, the defense attorney and the court on the matter of a continuance, on the failure of the State to answer the discover motion, and on the admissibility of the defendant's statement, the trial judge sustained the objection of defendant as to the admissibility of the statement. The State again requested a continuance, and the trial judge initially indicated a willingness to continue the case while stating that 'better judgment, frankly, would dictate the granting of a mistrial.' The defendant's attorney objected to the continuance and moved for a dismissal of the charges on the grounds that Cornish had been denied his right to a speedy trial and that 'he is now in jeopardy.' The trial judge then denied the defendant's motion for a dismissal, denied the State's motion for a continuance, and declared a mistrial.

Thereafter, the trial judge delivered in open court an oral opinion stating the reasons for declaring a mistrial. One of the principal reasons for the judge's declaration of a mistrial was set forth as follows:

'Secondly, is the fact that it was stated very clearly, perhaps too clearly, that it was anticipated that a guilty plea was going to be entered. Now that was stated to the trier of the facts who had to judge the case and give a verdict on the issue of guilt or innocence, and I know that trial judges, experienced trial judges, are supposed to be able to, and I hope we can, as far as possible ignore prejudicial remarks during the course of trial where we are sitting as the trier of the facts and yet judges are human also, and subconsciously perhaps, this reference to the guilty plea was implanted in my mind, and keep in mind this was a murder case.

'All criminal cases are serious but this probably is the most serious with which any defendant or any court can be faced. This was, I think, a prejudicial remark which might have been very difficult for me to overcome in the ultimate judgment of this case.'

Judge Jones also indicated that she was concerned about the defendant's sudden change of mind regarding a jury trial, that she believed that the State had been 'grossly unfair to the defendant' in not responding to the discovery motion, and that a continuance would have been impractical because, inter alia, she could not later 'sit in fair and impartial judgment.'

Subsequently, the defendant moved to dismiss the indictment on the ground of double jeopardy. The motion was heard before a different judge (Sodaro, J.), who held that Judge Jones's decision to declare a mistrial was warranted. The defendant's motion to dismiss was therefore denied. The defendant Cornish took an appeal to the Court of Special Appeals from the denial of his motion to dismiss the indictment. ¹ Because of the importance of the issue presented, we granted a writ of certiorari prior to a decision by the Court of Special Appeals.

In Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), the Supreme Court held that the Fifth Amendment's prohibition against twice placing a defendant in jeopardy is applicable to state criminal prosecutions by virtue of the Fourteenth Amendment to the United States Constitution. See also Matter of Anderson, Md., 321 A.2d 516 (1974); Pugh v. State, Md., 319 A.2d 542 (1974); Couser v. State, 256 Md. 393, 260 A.2d 334 (1970). Consequently, the outcome of the instant case depends upon the decisions applying Fifth Amendment principles. ²

What is regularly referred to as the 'fountainhead decision' on the application of the Federal Constitution's double jeopardy clause to a retrial following the declaration of a mistrial is United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165 (1824). There, the Court held that the Fifth Amendment did not preclude a retrial where the mistrial was declared because of the jury's inability to reach a verdict. In the opinion for the Court, Mr. Justice Story set forth the basic principles for determining the permissibility of a retrial following a mistrial:

'We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes. . . .' ³ Id. at 580.

The above standard, that the declaration of a mistrial is within the trial judge's discretion but that the judge should, in exercising that discretion, declare a mistrial only where 'there is a manifest necessity for the act,' has governed the Supreme Court cases on the subject ever since. See State of Illinois v. Somerville, 410 U.S. 458, 461, 93 S.Ct. 1066, 1069, 35 L.Ed.2d 425 (1973); United States v. Jorn, 400 U.S. 470, 480-481, 91 S.Ct. 547, 555, 27 L.Ed.2d 543 (1971); Downum v. United States, 372 U.S. 734, 735-736, 83 S.Ct. 1033, 1034, 10 L.Ed.2d 100 (1963); Gori v. United States, 367 U.S. 364, 367, 81 S.Ct. 1523, 1526, 6 L.Ed.2d 901 (1961); Wade v. Hunter, 336 U.S. 684, 689-690, 69 S.Ct. 834, 837-838, 93 L.Ed. 974 (1949); Keerl v. Montana, 213 U.S. 135, 137, 29 S.Ct. 469, 470, 53 L.Ed. 734 (1909); Dreyer v. Illinois, 187 U.S. 71, 85-86, 23 S.Ct. 28, 33, 47 L.Ed. 79 (1902); Thompson v. United States, 155 U.S. 271, 274, 15 S.Ct. 73, 74, 39 L.Ed. 146 (1894); Logan v. United States, 144 U.S. 263, 298, 12 S.Ct. 617, 628, 36 L.Ed. 429 (1892); Simmons v. United States, 142 U.S. 148, 154, 12 S.Ct. 171, 172, 35 L.Ed. 968 (1891).

While the Supreme Court has repeatedly insisted, from Perez to the present time, that the granting of a mistrial is a matter of the trial judge's discretion, and that the Court has not 'formulate(d) rules based on categories of circumstances which will permit or preclude retrial,' United States v. Jorn supra, 400 U.S. at 480, 91 S.Ct. at 555, nevertheless the Court has at the same time laid down broad principles which do govern the exercise of the trial judge's discretion in various types of circumstances. As the Court said in Illinois v. Somerville, supra, 410 U.S. at 464, 93 S.Ct. at 1070, '(w)hile virtually all of the cases turn on the particular facts and thus escape...