Jourdan v. State

• Decision Date: 09 July 1975
• Docket Number: No. 187,187
• Citation: 275 Md. 495,341 A.2d 388
• Parties: James Mitchell JOURDAN, Jr. v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 495

275 Md. 495

341 A.2d 388

James Mitchell JOURDAN, Jr. v. STATE of Maryland.

No. 187.

Court of Appeals of Maryland.

July 9, 1975.

Barry J. Renbaum, Baltimore (Alfred J. O'Ferrall, III, Deputy Public Defender on the brief), for appellant.

David B. Allen, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen., Clarence W. Sharp, Asst. Atty. Gen., Baltimore, Arthur A. Marshall, Jr., State's Atty., and David K. Rumsey, Asst. State's Atty., for Prince George's County, Upper Marlboro, on the brief), for appellee.

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

ELDRIDGE, Judge.

In the course of petitioner's trial on charges of storehouse breaking and forgery, the prosecuting attorney became ill and could not carry on. Shortly thereafter, another attorney in the State's Attorney's office appeared and requested a continuance or, if the defendant would consent, a mistrial. The trial judge, sua sponte, declared a mistrial. The question presented is whether, under all of the circumstances of the case, the later retrial of petitioner on the same charges violated the double jeopardy clause of the Fifth Amendment to the United States Constitution.

Petitioner James Mitchell Jourdan, Jr., was arrested in January 1971 and indicted by the Prince George's County grand jury in March 1971, on charges of storehouse breaking. Jourdan, being detained in the disciplinary wing of the State penitentiary prior to trial, was anxious to be tried as expeditiously as possible, and during the pre-trial period he sent motions and several letters to judges of the Circuit Court for Prince George's County, to federal courts and to other agencies, seeking a speedy trial. The storehouse breaking charge, as well as three other cases against Jourdan, were then scheduled to be tried on May 21, 1971.

The various cases were called for trial as scheduled on Friday, May 21, 1971, at 1:20 p. m. The presecuting attorney was the Deputy State's Attorney for Prince George's County, and the cases had been transferred to him from another attorney in the State's Attorney's office just a short time before, after the conclusion of a criminal case which the Deputy State's Attorney had been handling that morning. He later stated that he had spent about ten or fifteen minutes reviewing the files, but that this was sufficient time to familiarize himself, and that more preparation was not required for this particular trial. Jourdan was represented by an attorney appointed by the court. ¹

At the beginning of the proceedings, the Deputy State's Attorney moved that the court continue the cases, other than case 11,137 (the storehouse breaking charges), which had been scheduled for trial that day. Jourdan's attorney objected, stating: 'In all of these cases there has been filed a motion for speedy trial. The matters have been continued at prior times and the defendant is here ready to be tried today and he is ready to proceed to trial today, so I would object to a continuance or a motion for continuance.' In light of the objection the prosecuting attorney withdrew the motion for continuance.

The State then moved to consolidate case number 11,137 (storehouse breaking) with case number 11,147 (forgery and uttering of a check taken during the storehouse breaking); the defense concurred in the motion; and the motion was granted. Next, the State nolle prossed case number 10,634 (a charge of housebreaking). The remaining case was number 11,073 (attempted escape), which was unrelated to numbers 11,137 and 11,147 (the storehouse breaking and forgery charges), and which the State again suggested should be continued. The defense again objected to a continuance, indicating that while the attempted escape case should not be consolidated with the others, it should be tried at the conclusion of the trial of the storehouse breaking and forgery charges. The court took the State's motion for a continuance under advisement, stating that it would be disposed of after the first trial. ²

Jourdan pleaded 'not guilty' to the storehouse breaking and forgery charges; the jury was selected and sworn; the witnesses were sequestered; the State's opening statement was made; and the State's first witness was called and began to testify. After a few minutes of direct examination of the first witness, the Deputy State's Attorney asked if counsel could approach the bench, and, out of the hearing of the jury, indicated that he was ill. The court took a recess, and the Deputy State's Attorney left the courtroom. This was at 2:10 p. m.

Fifteen minutes later the proceedings resumed with a bench conference out of the hearing of Jourdan. The State was represented by an Assistant State's Attorney, who stated to the court:

'Yes, Your Honor, so that we can continue with the case at a later date, so as not to pose a problem of double jeopardy we would ask that if the defendant at this time would consent to a mistrial then if the Court could recess the case, continue this case until next week when Mr. Femia (the Deputy State's Attorney) would be free to return and then try the case; continue with the case as it would recess the matter.'

The court then asked the defense attorney to comment, and Jourdan's attorney responded, 'The only comment I have, I do not think that it would be appropriate for the case to be continued . . ..' The court then declared a mistrial, saying:

'Very well. The court understands your motion and you request a consent and the court can understand why . . . (the defense attorney) does not comment on that because of the complexity of this defendant with the various names and various cases. There is no indication he voluntarily consents, but the court is going to declare a mistrial for the simple reasons it is very obvious. You do not have the background Mr. Muskus (the Assistant State's Attorney). It took us a considerable amount of time to get the whole situation into the appropriate complexion for its disposition and this is the last day for this jury for some substantial period of time. If I recess the case it would necessitate them coming back in when they were not assigned as jurors. They cannot be used in any other jury case while this was recessed. The court under the circumstances would declare a mistrial in this case and the reason is the State's Attorney's office cannot proceed further and Mr. Femia, the assigned State's Attorney for this trial having become physically incapacitated at 2:30 in the afternoon, the last day this jury panel is here, thus I declare a mistrial in the trial of Criminal Trials Nos. 11,137 and 11,147.' (Emphasis supplied.)

The Assistant State's Attorney again raised the question that the defendant 'would contend there would be no grounds for a mistrial' and 'would claim at a later date . . . a problem of double jeopardy.' In reply the following colloquy took place at the bench:

'THE COURT: Mr. Muskus, I would like you to tell me how it is trouble. The court has the right to declare mistrial when it does not appropriately call for the continuance of a trial. I am exercising that discretion under the circumstances and as I understand there is no opposition to the court declaring a mistrial under the circumstances.

'THE DEFENSE ATTORNEY: Under the circumstances.

'THE ASSISTANT STATE'S ATTORNEY: So as far as the defendant is concerned there is no problem declaring a mistrial, is that correct?

'THE DEFENSE ATTORNEY: That is correct.'

The court directed the prosecuting attorney and the defense attorney to proceed to the State's Attorney's office and arrange for a new trial date.

Because the above proceedings were out of Jourdan's hearing, the prosecuting attorney raised again the matter of the defendant's consent, but his consent was not obtained. The record reveals the following:

'THE ASSISTANT STATE'S ATTORNEY: Your Honor, just for one additional precaution could we also have the defendant himself state that he would-

'THE COURT: . . . the court has disposed it as mistrial.

'THE ASSISTANT STATE'S ATTORNEY: We just want to make sure there is no problem at a later date.

'THE COURT: I am telling you gentlemen to bring it back down to me. Go back and list your calendars, and reschedule this case as soon as possible. If you gentlemen cannot resolve it within sensibility I will be back in my office very shortly. I will be available.

(Whereupon, counsel returned to the trial table and the following proceedings were had within the hearing of the jury:)

'THE COURT: Madam Reporter, for the record, when Mr. Muskus came up to the bench the record will show, after the recess, Mr. Muskus came in representing the State's case, and you also will make a docket entry, Madam Clerk.

'Very well, Mr. Foreman, ladies and gentlemen of the jury, now that you will not be sitting in judgment on this case the Court will make one observation. Today has been a real rough day all the way around. What happened, you all observed. Mr. Femia has been taken to the lounge in the State's Attorney's office and the court has determined this case cannot be proceeded today and I have declared what we identify as a mistrial.' (Emphasis supplied.)

The proceedings on May 21, 1971, were concluded at 2:30 p. m.

Jourdan's second trial on cases 11,137 and 11,147 commenced on September 7, 1971. The State nolle prossed all counts of number 11,137 (storehouse breaking) except for the first count. The jury found Jourdan guilty on the first count of number 11,137, which was storehouse breaking with intent to steal goods with a value exceeding one hundred dollars. The jury acquitted him of all counts in number 11,147. Subsequently, Jourdan was sentenced to six years' imprisonment, commencing as of January 19, 1971. At no time between the first and the second trial, or during the second trial, did Jourdan's attorney move to dismiss on the ground of double jeopardy or raise the double jeopardy issue. An appeal was taken, although the double jeopardy question was not...