Jones v. State
| Decision Date | 28 February 1991 |
| Docket Number | No. 445,445 |
| Citation | 86 Md.App. 204,586 A.2d 55 |
| Parties | Kevin L. JONES v. STATE of Maryland. Sept. Term 1990. |
| Court | Court of Special Appeals of Maryland |
Cathleen C. Brockmeyer, Asst. Atty. Gen. (J. Joseph Curran, Atty. Gen. and Stuart O. Simms, State's Atty. for Baltimore City, on the brief), Baltimore, for appellee.
Submitted before WILNER, C.J., and ROSALYN B. BELL and ROBERT M. BELL, JJ.
Kevin L. Jones, appellant, was convicted by a jury in the Circuit Court for Baltimore City of felony murder, robbery with a deadly weapon and use of a handgun in the commission of a felony or crime of violence. He was sentenced to life imprisonment, all but 30 years suspended, for the murder conviction and to two concurrent 20 year terms for the robbery and handgun convictions.
On appeal, 1 he contends that:
1. The court erred in its instructions as to reasonable doubt by charging the jury to use its "common sense" in its evaluation of the evidence;
2. The court erred by denying appellant's motion for a mistrial;
3. The evidence was insufficient as a matter of law to prove appellant's guilt beyond a reasonable doubt; and
4. The Appellant should have been granted a waiver to the jurisdiction of the juvenile court system.
There is merit in appellant's second contention; consequently, we will reverse and remand for new trial. We find it unnecessary to address his first contention, but we believe it appropriate, for the guidance of the trial court on remand, to address his third and fourth.
Appellant was charged, along with Timothy Rogers, his co-defendant, with the murder and robbery of Louis Ransom. They were tried jointly. 2
During Rogers' case, the following occurred:
MR. KERPELMAN [Counsel for Rogers]: I would like to call Kevin Jones, as long as they are not here to hear me do it, I would like to call Kevin Jones as the next defense witness.
MISS JULIAN [Appellant's counsel]: I oppose that on the advice that my client has a Fifth Amendment right not to testify and he does not have to make that election until--I am advising him not to testify.
The jury having returned to the courtroom, appellant was called to the witness stand and, for most of the questions put to him, he did, as predicated, "[refuse] to answer, based on, from what my lawyer told me, I pled the Fifth Amendment." Subsequently, in response to a note from the jury asking, "What does it mean when the Defendant takes the Fifth?" the court stated: "As it applies to this situation, the Fifth Amendment makes the following prohibitions, no person shall be compelled in any criminal case to be a witness against himself." Appellant had not, to this point, requested a mistrial.
Prior to the jury being instructed, however, appellant moved for mistrial. The motion was based on his being called as a witness in his co-defendant's case, thus, being required "to elect out loud or--not elect but advised that he was refusing to testify based on the advice of his counsel." Specifically, he argued:
I am at this time moving for mistrial. Nothing has changed from that point in the trial but on further reflection, regarding jury instructions, when we were trying to decide if there is a difference, what they would be advised regarding his refusal to testify, regarding his election as a witness and as a defendant, it became very clear that his refusal to testify out loud when called by the co-defendant has placed my client in an unfavorable light and nothing at that point can cure that problem.
Now, I know, Your Honor, that we have an instruction that will attempt to do that, but it will be difficult for the Jury to ignore the fact that the only words they heard from my client are "I refuse to testify." I state that the Fifth Amendment right is very similar, it's the same, both his election not to testify at that time when called by the co-defendant is the same, would be the same as electing to remain silent. It's just by having to say that on the record puts him in a more negative light than a neutral light, which is what the Jury will be instructed that they are supposed to view him in when he has elected not to testify in his own case.
The language and the intent of the instructions that the Court is willing to give shows that, it underscore the principle that he is entitled to a neutral inference, and the Jury is not to conclude anything negatively or positively. That neutral inference has been shattered by the co-defendant calling my client to the stand, and for those reasons I would ask for a mistrial at this point.
The court denied the mistrial motion. 3 It later instructed the jury on the point, as follows:
... You will note that the Defendant Kevin Jones has exercised his Constitutional right, under the Fifth and Fourteenth Amendments to remain silent.
Under our system of criminal justice he has the absolute right to say nothing with no inference of guilt from his silence. His silence must not be considered by you in any way, must not even be discussed by you. This instruction also covers those instances in which the Defendant Kevin Jones, in this circumstance, took the witness stand and invoked his Fifth Amendment right against self-incrimination. His right to be silent, again, neither his taking the stand and invoking his Fifth Amendment right nor his Appellant did not object to these instructions.
remaining silence must be considered by you nor shall either be discussed by you in your deliberations.
Few propositions are as well-settled as that a mistrial should be declared only when there is "manifest necessity" and "the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes...." U.S. v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824). Moreover, the decision to grant a mistrial is addressed to the sound discretion of the trial court, the exercise of which is not to be disturbed on appeal in the absence of abuse. Wright v. State, 312 Md. 648, 654, 541 A.2d 988 (1988); State v. Crutchfield, 318 Md. 200, 205, 567 A.2d 449 (1989). Whether a trial court's ruling on a motion for mistrial is an abuse of discretion is dependent upon the attendant circumstances.
"It has long been held that, under most circumstances, it is improper for a prosecutor to require a witness to claim his privilege against self-incrimination in the presence of the jury when ... the prosecutor knows or has reason to anticipate that the witness will assert the privilege in front of the jury." Allen v. State, 318 Md. 166, 174, 567 A.2d 118 (1989), citing Namet v. United States, 373 U.S. 179, 83 S.Ct. 1151, 10 L.Ed.2d 278 (1963); Vandegrift v. State, 237 Md. 305, 206 A.2d 250 (1965); Busby v. State, 412 So.2d 837 (Ala.Crim.App.1982); Burkley v. United States, 373 A.2d 878 (D.C.App.1977); People v. Giacalone, 399 Mich. 642, 250 N.W.2d 492 (1977). See also Adkins v. State, 316 Md. 1, 557 A.2d 203 (1989). Two principle theories have been identified as underlying the finding of prejudicial error based upon the calling of a witness whom the prosecution knows will refuse to testify on the basis of the privilege against self-incrimination: (1) "error ... based upon a concept of prosecutorial misconduct, when the Government makes a conscious and flagrant attempt to build its case out of inferences arising from the use of the testimonial privilege," Namet, 373 U.S. at 186, 83 S.Ct. at 1154-55, and (2) a witness' refusal to answer on the basis of self-incrimination Maryland courts have recognized these principles as well. See Allen, 318 Md. at 174, 567 A.2d 118; Adkins, 316 Md. at 5-6, 557 A.2d 203. In Vandegrift, the Court adopted a five prong test for determining whether, in a given circumstance, prejudicial error exists:
may, under the circumstances of a given case, add critical weight, in a form not subject to cross-examination, to the prosecution's case and thus unfairly prejudice a defendant. Id., 373 U.S. at 187, 83 S.Ct. at 1155; Allen, 318 Md. at 174, 567 A.2d 118
1. that the witness appears to have been so closely implicated in the defendant's alleged criminal activities that the invocation by the witness of a claim of privilege when asked a relevant question tending to establish the offense charged will create an inference of the witness' complicity, which will, in turn, prejudice the defendant in the eyes of the jury;
2. that the prosecutor knew in advance or had reason to anticipate that the witness would claim his privilege, or had no reasonable basis for expecting him to waive it, and therefore, called him in bad faith and for an improper purpose;
3. that the witness had a...
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