Hankins v. State

• Citation: 80 Md.App. 647,565 A.2d 686
• Decision Date: 01 September 1989
• Docket Number: No. 293,293
• Parties: Tracey HANKINS A/K/A Tracey Hawkins v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 647

80 Md.App. 647

565 A.2d 686

Tracey HANKINS A/K/A Tracey Hawkins v. STATE of Maryland.

No. 293, Sept. Term, 1989.

Court of Special Appeals of Maryland.

Nov. 7, 1989.

Ilene S. Cohen, Assigned Public Defender of Annapolis (Alan H. Murrell, Public Defender, on the brief, Baltimore), for appellant.

Valerie Smith, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. and Stuart O. Simms, State's Atty. for Baltimore City, on the brief), Baltimore, for appellee.

Argued before MOYLAN, BISHOP and GARRITY, JJ.

GARRITY, Judge.

After his first trial ended in a mistrial, appellant Tracey Hankins was convicted in a second trial by a jury in the Circuit Court for Baltimore City (Steinberg, J. presiding) of possession, possession with intent to distribute and distribution of a controlled dangerous substance, to wit: cocaine. He was sentenced to concurrent terms of seven years imprisonment for the distribution and possession with intent to distribute convictions. ¹ We are asked to review the following issues:

1. Whether the appellant's second trial was prohibited by double-jeopardy considerations;

2. Whether the trial court abused its discretion in allowing the State to impeach a defense witness, on rebuttal, with evidence of his prior inconsistent statement; and 3. Whether the appellant's convictions for possession with intent to distribute and distribution of cocaine merge.

Facts

At approximately 4:00 p.m. on October 9, 1987, plainclothes narcotics detective John Wissman of the Baltimore City Police, posing as a drug buyer, was driving his private automobile through the Southwestern Police District of Baltimore City, an area where he had made three recent drug arrests. He stopped his vehicle on South Pulaski Street, encountered two men and told them he wanted to buy cocaine. One of the men told the officer to drive around the block. Officer Wissman circled the block and then encountered the appellant, who asked him the quantity he wanted. Officer Wissman replied "four," and was then instructed by the appellant to pull his vehicle into an alley off Booth Street to avoid detection by "knockers" (police) on the street.

The officer backed his car into the alley and saw the appellant walk up the street and eventually out of his range of vision. When the appellant returned, between sixty and ninety seconds later, he gave the officer four vials of a substance eventually identified as cocaine in exchange for twenty dollars. Detective Wissman then notified back-up officers, who arrested the appellant.

I.

The appellant's first trial began on November 14, 1988 and went to the jury on November 16, 1988. At 3:25 p.m. on that afternoon, after deliberating approximately three hours, the jury sent the following note:

After three hours of deliberation, the jury has not reached a unanimous decision. As of 3:25 p.m. four jurors said the defendant is guilty whereas eight jurors said defendant is not guilty. Several jurors need to make phone calls, one specifically at four p.m.

Both counsel requested continued deliberation, and the court instructed the jury to continue, also advising the jurors that the clerk would make whatever telephone calls they required at 4:00 p.m.

At 4:15 p.m. the jury sent out a second note, asking how long it would be required to remain if it could not reach a unanimous verdict. The court and prosecutor opined that the jury was deadlocked; the appellant's trial counsel objected to a mistrial and suggested that the jury be dismissed to continue its deliberations the following morning. When that suggestion was not adopted by the court, the appellant's counsel suggested that the court ask the jury whether more time would be helpful in reaching a verdict. The court did so, asking the jury the following:

What I would like to know is this, but I don't want you to answer it immediately. I want to know if you all feel that if you have a little bit more time, there is some chance of reaching a unanimous decision and rather than have you sit out here and talk about the answer and I get twelve answers, I want you to go back to the jury room and we are going to call you back out in five minutes or so and see what your answer to this court's question is, whether you feel that if you had more time you could reach a unanimous decision, could possibly reach a unanimous decision. So would you please go back to the jury room. Discuss my question and then we will call you in a few minutes for your answer. So let's recess until four-thirty.

Thereafter, the court re-convened and the following transpired:

THE COURT: Madame forelady, what is the answer?

THE FORELADY: No.

THE COURT: No, no meaning it is doubtful that you would reach a unanimous verdict even if I gave you more time?

THE FORELADY: Yes.

The court then declared a mistrial over the appellant's objection. A new trial began before a different jury the following morning, November 17, 1988, which resulted in the convictions from which the appellant appeals.

The appellant first contends that his second trial was barred by double jeopardy considerations. Though the Maryland Constitution contains no express double jeopardy provision, the prohibition against being placed in jeopardy more that once is a matter of state common law, and the Supreme Court made the federal (Fifth Amendment) double jeopardy provision applicable to the States via the due process clause of the Fourteenth Amendment in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). Of the four species of double jeopardy set forth in West v. State, 52 Md.App. 624, 628, 451 A.2d 1228 (1982), ² we are only concerned today with circumstances under which a criminal defendant may be re-tried after a mistrial has been declared.

When a mistrial has been declared by the trial judge sua sponte without the defendant's explicit acquiescence, re-trial will not be barred if there was "manifest necessity" for the mistrial. West, 52 Md.App. at 630-31, 451 A.2d 1228, citing United State v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824). In Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978), the court cautioned that manifest necessity as a standard cannot be applied mechanically, but must be viewed in light of the particular problem confronting the trial judge. Id., 22 U.S. at 506, 98 S.Ct. at 830. Both this court and the Court of Appeals have discussed the concept of manifest necessity on several occasions. In State v. Frazier, 79 Md.App. 118, 130, 555 A.2d 1078 (1989), we turned to Gilbert and Moylan, Maryland Criminal Law: Practice and Procedure, 447 (1983) for a short list of circumstances constituting manifest necessity The hung jury, inflammatory publicity contaminating the jury in either direction, prolonged sickness of judge or counsel, the movements of an army in time of war--all of these have been held to constitute manifest necessity.

Frazier, at 129-130, 555 A.2d 1078. In Crutchfield v. State, 79 Md.App. 101, 555 A.2d 1070 (1989), we observed:

The rule, which is easy to recite, is difficult to apply, because, as the Court of Appeals observed in Cornish v. State, 272 Md. 312, 322 A.2d 880 (1974), the Supreme Court has not attempted to enumerate those instances when manifest necessity exists. It obviously exists when a jury is unable to agree upon a verdict. (emphasis added) (citations omitted).

Id. [79 Md.App.] at 105, 555 A.2d 1070. Similarly, in Wooten-Bey v. State, 308 Md. 534, 520 A.2d 1090 (1987), the Court wrote:

It is perfectly obvious that there is generally a "manifest necessity" for the judge to declare a mistrial when the jury is unable to reach a verdict in a criminal cause, so that ordinarily a retrial is permitted. This teaching of Perez has enjoyed not only virtually universal acceptance in the federal courts and state courts of other jurisdictions, see Cornish [272 Md.] at 318, 322 A.2d 880, but has been consistently recognized by this Court. We said in Neal v. State, 272 Md. 323, 327-328, 322 A.2d 887 (1974):

Although jeopardy attached when the jury was sworn, it was dissipated by the declaration of a mistrial, in the absence of any abuse of discretion.... It has long been settled that under such circumstances, a defendant is not relieved from further liability, any more than he is when his motion for a new trial is granted, or when his conviction is reversed on appeal, [or] where [a] jury, unable to agree on a verdict, was discharged by the court....

Id. [308 Md.] at 542-43, 520 A.2d 1090.

The circumstances of the case sub judice indicate that the trial judge did not abuse his discretion in finding that manifest necessity existed for the sua sponte declaration of a mistrial. Having heard all the evidence in the case on one day (November 15), the decision the jury faced was essentially one of whether to believe the State's witnesses' testimony that the appellant sold cocaine to an undercover officer. It deliberated approximately four hours before it specifically concluded that a unanimous verdict was doubtful. In light of that determination by the jury, the trial judge was within his discretion in finding that continued deliberation or an Allen type charge would be futile. ³ Accordingly, as manifest necessity existed for the trial judge to declare a mistrial in the appellant's first trial, the appellant was not exempted by the double jeopardy prohibition of the Fifth Amendment from being tried a second time.

II.

In his second trial, the appellant argued that at the time of the cocaine sale in question, he knew Detective Wissman was a police officer and therefore would not have sold him drugs. In support of this theory, he called a friend, Ricky Johnson, as a defense witness. Johnson testified that on Monday, October 5, 1987, Detective Wissman, clearly identifiable as a police officer, approached him, the appellant and a third party, searched them, and inquired about drug sales in the neighborhood. Johnson stated that he...