Reemsnyder v. State

• Decision Date: 11 July 1980
• Docket Number: No. 1308,1308
• Citation: 46 Md.App. 249,416 A.2d 767
• Parties: Ronald Harrison REEMSNYDER v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 249

46 Md.App. 249

416 A.2d 767

Ronald Harrison REEMSNYDER v. STATE of Maryland.

No. 1308.

Court of Special Appeals of Maryland.

July 11, 1980.

Edward P. Camus, Riverdale, for appellant.

F. Ford Loker, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., Stephen B. Caplis, Asst. Atty. Gen., Andrew L. Sonner, State's Atty. for Montgomery County and Barry A. Hamilton, Asst. State's Atty., for Montgomery County on the brief, for appellee.

Argued Before THOMPSON, MELVIN and WILNER, JJ.

THOMPSON, Judge.

This case concerns the question of double jeopardy after a mistrial has been declared over the objections of an accused. Ronald Harrison Reemsnyder, appellant, and a co-defendant, Clyde Brewer, were charged with first degree sexual offenses and related offenses. After a nine-day trial in the Circuit Court for Montgomery County (William B. Cave, J.), the case was submitted to the jury at 1:22 p. m. August 10, 1979. At 10:25 p. m. the court reconvened without the jury and the following occurred:

"The Court: I guess the record ought to reflect the sequence of events that have transpired: Juror, Elmer Jones, complained of either pains or breathing difficulties, some discomfort. The rescue squad, having been called, Mr. Jones was transported to Suburban Hospital.

The Court has, five minutes ago, contacted the emergency room and has been informed that Mr. Jones has been admitted into the coronary care unit for observation but has been admitted into the hospital and has, therefore, become unavailable to continue as a juror in the deliberation in this matter."

"Mr. State.

Mr. Hamilton: Your Honor, at this time, the State would request that the Court order the suspension, continue, the suspension of the jury's deliberation and adjourn these proceedings until Monday morning.

It would request that the jury be reassembled Monday morning and that we then make a determination as to the availability or lack of Mr. Jones."

"Mr. Camus: (Attorney for appellant) I don't know why Monday is the key day. I recognize that the juror took ill and the other eleven members have been instructed by the Court not to deliberate. I have always found and felt that once jurors are exposed again from the sanctity of the jury room to normal day problems of life that they discuss what has been happening and are influenced in some way by extraneous matters other than deliberations.

However, I realize that the Court is in a position to decide what is best. I would like us to continue, if the Court feels that is warranted, on a day by day basis. Just taking two days, eleven jurors separated from what has gone on now from roughly 2:30 it is now 10:30 except for the dinner hour, and then after seven hours of obviously heated deliberations, coldly separate them for two days, I don't think would result in any justice to Mr. Reemsnyder.

So, I think the State's suggestion of just coming back Monday without any medical reason, I think we ought to, on a daily basis respond and have a report in reference to that juror, and then knowing what the facts are, can take a position as I see fit at that time.

The Court: Well, it is clear that the juror is unavailable at least until Monday, and no indication that the diagnosis or prognosis may be then or thereafter.

Mr. Camus: I would ask, therefore, if you are going to use Monday for the guideline that this jury be sequestered so that the outside influence, other than themselves, is totally minimized."

"The Court: I would at least give some serious consideration to that if it were not for the fact that there is not any indication of a strong likelihood that Mr. Jones will be available Monday or indeed be available at all for further service on this jury panel.

Consequently, it would be, keeping in mind the paramount importance is the rights of the Defendants in this matter, and balancing those considerations, it would not appear to serve any useful purpose to sequester them on, at best, a slight possibility that he may some time in the future become available.

My contact with the emergency room, a Nurse Ridgeway, in response to my question is there a possibility that he would be available in the near future for further service on this jury, without stating any further reasons or what she bases it on, simply said, no.

It therefore appears to the Court that at this time we are down to eleven jurors. We no longer have the availability of the twelfth.

I really feel no alternative other than to declare, for the record, at this time, the loss of one juror, and, gentlemen, we now have a panel of eleven.

Mr. Hamilton: For the record then, pursuant to Maryland Rule 751 a, the State would consent to the cause continued to be deliberated by a panel of eleven jurors as to both Defendants."

"Mr. Camus: On behalf of Mr. Reemsnyder we do not consent to eleven jurors.

The Court: All right. Then I inform Mr. Reemsnyder, since it is his constitutional choice, that the Court is faced with no alternative other than to either proceed with eleven by consent of the parties or declare a mistrial, and I am aware of the fact, the record will reflect, you have had an opportunity to discuss this fully with your client, Mr. Camus.

Mr. Camus: Yes, I have, Your Honor, and I would like to, if the Court decides, I would like, I will put it on the record now.

The Court: All right, sir.

Mr. Camus: I do not, in any way, on behalf of Mr. Reemsnyder, agree to the granting of a mistrial. I feel that under the Constitution he has put himself upon the country, that he has exposed himself to trial, and it has lasted two weeks basically, having started a week ago Tuesday; that the State has had its opportunity to prosecute him; that he elected to go with a jury trial of his peers; and that there is no manifest necessity under the Constitution, would be exposing himself to double jeopardy, and in no way consents to the granting of a mistrial."

"The Court: It is obvious with respect to Mr. Reemsnyder I find myself in the position of not having enough jurors to continue his trial and having the objection to the Court declaring a mistrial. I, therefore, am in a position I cannot go backwards nor forward nor stay where I am."

"The Court: Let me ask what is counsel's position with respect to independent deliberation with respect to both Defendants?

Mr. Camus: Would you say that again?

The Court: What is counsel's position with respect to independent deliberations with respect to each Defendant; that is, if the eleven remaining jurors were allowed to continue the deliberations only as to Mr. Brewer and allow them to recess with respect to Mr. Reemsnyder until we had a definite decision as to whether or not Mr. Jones would ever be available?" ¹

"(Whereupon, bench conference not reported.)

The Court: All right, gentlemen, it would appear then the only avenue open to the Court at this time is to request the jury to return Monday morning, at which time I will find out the availability of Mr. Jones."

On Monday, August 13, 1979, the Court reconvened and the following transpired:

"Gentlemen, for the record I again called Suburban Hospital this morning and was informed Mr. Jones is still in the Coronary Unit. The only information that they would give me was that he was still there and that everyone in there was carried as critical but without giving me any precise diagnosis or prognosis. In any event, from that information and the indication I have late Friday evening it appears that with respect to this jury that Mr. Jones has become disabled and can no longer participate in the deliberations. Mr. Camus?

Mr. Camus: My move?

The Court: Your move, sir.

Mr. Camus: Your Honor, Mr. Reemsynder has put himself on the country and has stood trial for almost two weeks now basically, two weeks tomorrow. He totally and completely, as do I, object to any granting of a mistrial. He has placed himself in jeopardy and in weighing against the public interest and his rights, I think his rights are paramount at this point and he elects not to go, as we indicated Friday, with 11.

The Court: All right. Mr. Reemsynder, of course, it is your election to proceed with the reduced panel of 11 and the corollary right not to proceed without the full 12. In the absence of the full 12 and in absence of a mutual consent to continue with the 11, then the Court would have no alternative other than to excuse the jury from its deliberations in your matter and declare unfortunately a mistrial.

Am I correct in my understanding that the representation of your counsel that it is your election not to proceed with less than the required 12 jurors?

Mr. Reemsynder: Yes, I am going to follow my attorney's advice.

The Court: I assume you have thoroughly discussed it with your attorney?

Mr. Reemsynder: Yes, Your Honor.

The Court: All right. Then the Court sees no alternative other than to declare the mistrial since those are the only two available options, either to proceed with 11 or to declare a mistrial. Obviously we cannot do both, and the Court therefore insofar as the State of Maryland versus Ronald Reemsynder declares a mistrial and the matter will be set for retrial."

A motion to dismiss the indictment based upon double jeopardy was filed by the appellant. The present appeal is from the trial court's denial of that motion.

The Law

The prohibition against double jeopardy precludes a retrial after a mistrial declaration unless there is "manifest necessity" for the mistrial, or unless the accused consents to a mistrial. Cornish v. State, 272 Md. 312, 322 A.2d 880 (1974). In United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165 (1824), the Court set forth the test for declaring a mistrial based on manifest necessity. The Court stated:

"We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into...