McCorkle v. State

• Decision Date: 01 September 1992
• Docket Number: No. 666,666
• Citation: 619 A.2d 186,95 Md.App. 31
• Parties: Gregory Allen McCORKLE v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 31

95 Md.App. 31

619 A.2d 186

Gregory Allen McCORKLE v. STATE of Maryland.

No. 666, Sept. Term, 1992.

Court of Special Appeals of Maryland.

Jan. 29, 1993.

Reconsideration Granted in Part

Feb. 23, 1993, Opinion Corrected

Feb. 24, 1993.

Certiorari Denied June 24, 1993.

Patrick J. Hoover, Rockville, for appellant.

Sarah E. Page, Asst. Atty. Gen., Baltimore (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Andrew L. Sonner, State's Atty. for Montgomery County, Rockville, on the brief), for appellee.

Argued before MOYLAN, ALPERT and FISCHER, JJ.

ALPERT, Judge.

In the fourth year of President James Monroe's second term (1824), Supreme Court Justice Story declared the polestar of mistrial/double jeopardy cases: the "manifest necessity" rule.

The issue in this case is whether the trial court correctly declared a mistrial based on the unexpected absence of the key prosecution witness. In contending that the mistrial was declared improperly, appellant Gregory Allen McCorkle has asked us to address the following six questions:

1. Did the trial judge fail to exercise sound discretion in declaring the existence of manifest necessity for a mistrial and permitting reprosecution of the defendant?

2. Was a mistrial improperly granted where the State failed to shoulder the burden of demonstrating manifest necessity, and the trial judge declared the mistrial on independent grounds not asserted by the State?

3. Did the trial judge err in holding that absence of a prosecution witness was grounds for mistrial where no state policy or important interest of judicial administration was at issue?

4. Did the trial judge commit an abuse of discretion by ignoring evidence of the State's negligent handling of its witness and its assumption of the risk of the witness's failure to appear?

5. Was manifest necessity precluded by the potential for manipulation inherent in the circumstances of the State's motion for mistrial?

6. Did the trial judge err in neglecting to consider reasonable alternatives to the mistrial, thus barring a retrial of the defendant?

We agree with the State that these six questions are a variation on the theme as to whether the trial court properly exercised its discretion in declaring a mistrial. Consequently, we have combined appellant's six issues into a single question, to wit:

WAS THE TRIAL COURT'S DECLARATION OF A MISTRIAL BASED ON MANIFEST NECESSITY?

We hold that it was, and therefore we shall affirm.

I.

By indictment filed on June 21, 1991 with the Circuit Court for Montgomery County, appellant was charged with two criminal counts arising out of an incident that occurred on or about May 27, 1991 at appellant's place of employment ¹: (1) felony theft (i.e., theft in excess of $300), in violation of Md.Code art. 27, § 342, and (2) making a false statement to a police officer, in violation of § 150 of Article 27.

The record reflects that this indictment resulted primarily from statements given to police by one Cyrus Wayne Morrison, appellant's former roommate and homosexual lover. The record also reflects that Morrison gave police these statements shortly after appellant had begun dating a woman to whom appellant would subsequently become engaged to be married. Further testimony indicated that, following his break-up with appellant--but prior to reporting appellant's alleged crimes--Morrison was "really distraught, he was severely depressed, he was sad, he was unhappy of the fact [that appellant] was no longer his boyfriend, that [appellant] was seeing a girl now, Michelle." (Mr. Morrison's subsequent unavailability to testify at trial would come to form the basis for the appeal sub judice.)

Nevertheless, appellant made his initial appearance on July 12, 1991, and entered a plea of not guilty to both charges. Subsequently, a jury trial on the merits (DeLawrence Beard, J., presiding) proceeded over several days in the following manner:

On February 12, 1992, the jury was sworn and trial commenced.

On February 13, 1992, counsel gave their opening statements, and the first three witnesses were heard on behalf of the State: (1) Police officer Stewart Myers, one of two officers who initially responded to appellant's report of robbery, (2) Fernando Calderon, an eighteen year old fact witness who overheard appellant's phone call whereby appellant reported the alleged robbery, and (3) Police officer Steven Auger, the other officer who initially responded to appellant's call. As part of its aforesaid opening statement, the State explicitly identified Morrison as its "key witness," and, accordingly, spent a considerable amount of effort introducing the jury to Mr. Morrison's expected testimony. For its part, the defense's opening statement also identified Mr. Morrison as the State's key witness; correspondingly, the defense also focused extensively on Morrison's expected testimony, as well as his potential motives for so giving it.

On February 14, 1992, the State presented its fourth witness, Mark A. Marino, general manager of the subject Hardee's. Following Mr. Marino's testimony, the defense was permitted to call--out of order--its first witness, Dorothy Davis, appellant's mother. Ms. Davis's testimony concerned, inter alia, two recent conversations she had had at her hotel with Morrison, one of which occurred the night of February 12th (i.e., the first night of the trial), and the other which occurred the following night (February 13th, i.e., the night before she gave her testimony). As is relevant presently, Ms. Davis stated (on direct examination) that Morrison had indicated to her a reluctance to testify:

He [Morrison] said he didn't want to testify because everything had been blown and twisted out of proportion, there were things that were said that he didn't say and he didn't want to testify. * * * *

And I said [to Morrison], "If you say you don't remember what they're talking about, then you tell them that, because you have to go to court," because he said he wasn't going to show up.

Q: So, you told him to come?

A: I said, "If you don't come, they will put you in jail, and if the court sets another date, you may sit in jail for a month or two while they get another trial date."

Following a long holiday weekend, trial recommenced on February 18, 1992. As a preliminary matter, Barry A. Hamilton, Esquire, the prosecutor, indicated that he had two witnesses left in his case in chief. One of them, Detective Ed Tarney, who had investigated the incident, was then ready to testify; the other witness, however, was Morrison, who was--it was believed--temporarily unavailable. Mr. Hamilton explained Morrison's February 18, 1992 absence to the Court:

I spoke to Mr. Morrison, and Ms. Land of my office, we have both spoken to Mr. Morrison today. I spoke to him as recently as approximately one hour ago. He called Ms. Land early this morning to report that he was ill. I spoke to him at some length, again about an hour ago.

He again informed me that he was ill, and that if at all possible would prefer not [to] have to testify today, but [he] would be here bright and early tomorrow morning to testify.

I told him that I could not speak for the Court, but I would try to seek that indulgence from the Court. I am convinced of his bona fides in this matter, and would ask that the Court give us that consideration to take Detective Tarney's testimony, and then suspend until tomorrow morning to allow Mr. Morrison to testify.

He has been in--he was in my office both last Wednesday [February 12, 1992, i.e., the first day of trial] and last Thursday [February 13] all day long. Of course, because of the way things went, we were not able to get to him [earlier than today].

Following Mr. Hamilton's explanation, the court permitted the State to present the testimony of Detective Tarney. During a recess (which occurred during a break in Detective Tarney's testimony), Judge Beard met with counsel in chambers and made a conference call to Morrison at Morrison's home. After the recess, and following the completion of Detective Tarney's testimony, Judge Beard and counsel recounted--on the record--the content of the conference call with Morrison:

THE COURT:

I asked him [Morrison] if he was ambulatory, could he walk. I wanted to know if the man was, as they say, somewhat disabled, or he just didn't feel well. There is a difference between the two. I asked him if he was ambulatory, and he said he could walk, but he was in the process of cleaning up his bathroom, where he had vomited essentially.

That his stomach was upset. That he would be available tomorrow morning [February 19th]. I told him that we would be looking for him tomorrow at 9:30 [a.m.], that he could come in. But he said he could come in, but he didn't feel like it, and he was ill, physically ill.

MR. HOOVER [defense counsel]:

Thank you for that, Your Honor. That is, of course, absolutely correct, and accurate.

THE COURT:

He said he had been vomiting all day, as I recall. Well, since this morning. He also indicated that he had had some telephone conversations with Mr. Hamilton. Which confirms what Mr. Hamilton had indicated to us, I believe, on the record, in court before we retired to chambers at my request.

After the above was made a part of the record, and following an objection by defense counsel that appellant was being prejudiced by the delay caused by Morrison's absence, the State requested permission from the court to have Detective Tarney retake the stand. The court granted the State's request, and the following exchange resulted:

BY MR. HAMILTON:

Q Very briefly, Detective Tarney, you testified on cross examination that you served Mr. Morrison with a summons to testify before the Grand Jury, is that correct?

A That is correct.

Q Okay. Just so there is no misunderstanding of the procedure involved. By saying that, does that mean that you actually physically brought him in to testify before the Grand Jury, or simply delivered a...