Mark R., In re, 49

• Decision Date: 03 September 1982
• Docket Number: No. 49,49
• Citation: 449 A.2d 393,294 Md. 244
• Parties: In re MARK R.
• Court: Maryland Court of Appeals

Page 244

294 Md. 244

449 A.2d 393

In re MARK R.

No. 49.

Court of Appeals of Maryland.

Sept. 3, 1982.

George E. Burns, Jr., Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellant.

Alexander L. Cummings, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, ^* ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

ELDRIDGE, Judge.

This case concerns the applicability of the Double Jeopardy Clause of the Fifth Amendment to juvenile delinquency adjudicatory hearings conducted by masters.

Mark R., a juvenile, was charged in the Circuit Court of Baltimore City with being a delinquent child. The charge was based on the allegation that Mark stole a box, containing two or three dollars, from the counter of a store owned and operated by Eu Ja Lee.

An adjudicatory hearing was held on April 15, 1980, before a juvenile master (Master Briscoe). ¹ The State's first witness at the hearing was a police officer. Following the officer's testimony, the State put on its principal witness, the victim Eu Ja Lee. After Ms. Lee completed her testimony on direct examination, and during cross-examination by Mark's attorney, the juvenile master "sua sponte, declared a mistrial." The reason given by the master for declaring a mistrial was "that Ms. Lee did not have a satisfactory comprehension and ability to communicate in the English language." The stipulation of facts indicates that both sides were surprised by the mistrial declaration and that neither consented thereto. The docket entry regarding the April 15th adjudicatory hearing states in part: "Mistrial; Reset before another Master and arrange for Korean Interpreter for victim."

Another adjudicatory hearing was held on April 29, 1980, before a different master (Master Cooksey). The State had arranged for an interpreter to be present. At this hearing, after the State's first witness was sworn, the defendant moved to dismiss the juvenile petition on grounds of double jeopardy and due process. ² The theory of the motion was that there had been no "manifest necessity" for the mistrial declaration, and that, therefore, a second adjudicatory hearing would constitute a successive prosecution precluded by the Double Jeopardy Clause of the Fifth Amendment and by due process principles. The master granted the State's motion for a postponement of the hearing in order that the State could prepare a memorandum in response to the motion to dismiss. For reasons not shown in the record or the parties' statements of fact, there were no further proceedings before a master.

On May 12, 1980, the court, presided over by a judge (Hargrove, J.), heard argument on the juvenile's motion to dismiss. The court denied the motion to dismiss, relying on Swisher v. Brady, 438 U.S. 204, 98 S.Ct. 2699, 57 L.Ed.2d 705 (1978). The court indicated that, under the Supreme Court's Swisher v. Brady opinion, an adjudicatory hearing before a master is not final and will not become final until there is a decision by a trial judge. On this theory, the trial judge concluded that successive adjudicatory hearings before masters, or an adjudicatory hearing before a master and a later adjudicatory hearing before a judge, do not violate the double jeopardy prohibition against successive trials.

Following the denial of the motion to dismiss, the trial judge proceeded to hold an adjudicatory hearing. ³ The State's witnesses, Eu Ja Lee and an interpreter, were sworn. Ms. Lee testified anew although this time with the aid of the interpreter. On direct examination, Ms. Lee described placing the box containing money on her store counter and testified to seeing Mark take the box. After cross-examination and re-direct examination of Ms. Lee, and after the testimony of several defense witnesses, the trial judge found that Mark had taken the money. At a dispositional hearing one month later, the trial judge placed Mark on probation. ⁴

The Court of Special Appeals affirmed in an unreported opinion, although its reasoning differed somewhat from that of the trial judge. The intermediate appellate court initially took the position that Swisher v. Brady, relied on by the trial judge, was "not apposite." The court then indicated that the critical factor was the "time when jeopardy first attache[d]." The Court of Special Appeals stated that, "despite the pronouncement in Breed [Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975) ] that '[j]eopardy attached ... when the Juvenile Court, as the trier of the facts, began to hear evidence,' 421 U.S. at 531 , we observe that the Court of Appeals in Matter of Anderson, 272 Md. 85 (1974), cert. denied, 421 U.S. 1000 [95 S.Ct. 2399, 44 L.Ed.2d 667] (1975), stated ... 'that a hearing before a master is not such a hearing as places a juvenile in jeopardy.' " The Court of Special Appeals, on the basis of the quoted language from Anderson, held that "no double jeopardy problem arises here."

Because of the obvious importance of the constitutional issue presented, we granted Mark's petition for a writ of certiorari. We shall reverse.

I.

As we pointed out last year in Ward v. State, 290 Md. 76, 85-86, 427 A.2d 1008 (1981), very early in the history of this country courts developed the rule that, because a criminal defendant was entitled to a verdict once his trial began, if that trial "were aborted by certain actions of the court or prosecutor without the defendant's consent, thereby depriving him of his right to a verdict, then the prohibition against double jeopardy would preclude a subsequent trial. This principle was applied when the trial was aborted either by the prosecutor's entering a nolle prosequi or otherwise abandoning the prosecution, or by the court's declaring a mistrial without a 'manifest necessity' for so doing (whether sua sponte or upon the prosecutor's motion)." We indicated in Ward that one of the principal considerations underlying this rule was the unfairness in permitting a trial to be aborted without the defendant's consent, thereby possibly giving the prosecution a more favorable opportunity to convict the defendant at a later date. 290 Md. at 87-88, 427 A.2d 1008.

Recently, in Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978), the Supreme Court summarized the reasons for precluding a second trial where the defendant's first trial was terminated by a mistrial without his consent (434 U.S. at 503-507, 98 S.Ct. at 829-831):

"Because jeopardy attaches before the judgment becomes final, the constitutional protection [against double jeopardy] also embraces the defendant's 'valued right to have his trial completed by a particular tribunal.' The reasons why this 'valued right' merits constitutional protection are worthy of repetition. Even if the first trial is not completed, a second prosecution may be grossly unfair. It increases the financial and emotional burden on the accused, prolongs the period in which he is stigmatized by an unresolved accusation of wrongdoing, and may even enhance the risk that an innocent defendant may be convicted. The danger of such unfairness to the defendant exists whenever a trial is aborted before it is completed. Consequently, as a general rule, the prosecutor is entitled to one, and only one, opportunity to require an accused to stand trial.

Unlike the situation in which the trial has ended in an acquittal or conviction, retrial is not automatically barred when a criminal proceeding is terminated without finally resolving the merits of the charges against the accused.... Yet in view of the importance of the right, and the fact that it is frustrated by any mistrial, the prosecutor must shoulder the burden of justifying the mistrial if he is to avoid the double jeopardy bar. His burden is a heavy one. The prosecutor must demonstrate 'manifest necessity' for any mistrial declared over the objection of the defendant.

The words 'manifest necessity' appropriately characterize the magnitude of the prosecutor's burden. For that reason Mr. Justice Story's classic formulation of the test [in United States v. Perez, [22 U.S.] 9 Wheat. 579, 580, 6 L.Ed. 165 (1824) ] has been quoted over and over again to provide guidance in the decision of a wide variety of cases."

While observing that the "manifest necessity" standard "can not be applied mechanically or without attention to the particular problem confronting the trial judge," the Court in Arizona v. Washington went on to state that "we require a 'high degree' [of necessity] before concluding that a mistrial is appropriate." 434 U.S. at 506, 98 S.Ct. at 830. The Supreme Court indicated that the degree of discretion accorded a trial judge's decision to declare a mistrial varies with the particular situation. The Court first pointed to a situation failing to meet the "high degree" of necessity standard and where retrials following mistrials are prohibited (id. at 507-508, 98 S.Ct. at 831):

"The question whether that 'high degree' has been reached is answered more easily in some kinds of cases than in others. At one extreme are cases in which a prosecutor requests a mistrial in order to buttress weaknesses in his evidence. Although there was a time when English judges served the Stuart monarchs by exercising a power to discharge a jury whenever it appeared that the Crown's evidence would be insufficient to convict, the prohibition against double jeopardy as it evolved in this country was plainly intended to condemn this 'abhorrent' practice.... Thus, the strictest scrutiny is appropriate when the basis for the mistrial is the unavailability of critical prosecution evidence...."

The Court then described a situation "[a]t the other extreme," namely a mistrial because of a hung jury, where the law allows "the trial judge to exercise broad discretion in deciding whether or not 'manifest necessity' justifies a discharge of...