State v. Fennell
Decision Date | 17 May 2013 |
Docket Number | No. 72,72 |
Parties | STATE OF MARYLAND v. SEAN FENNELL |
Court | Court of Special Appeals of Maryland |
State of Maryland v. Sean Fennell, No. 72.
Where a mistrial is declared over objection of the defendant, retrial is permitted only if a mistrial was necessary manifestly. Although the decision to take or solicit a partial verdict is generally within the sound discretion of the trial judge, where the trial judge is on notice that the jury may have reached a partial verdict, an ambiguity as to unanimity persists through the colloquy with the jury, defense counsel requests a partial verdict, and the specter of coercion is low because of the unusual posture of the jury's deliberations, Maryland Rule 4-327(d) provides the trial judge with a reasonable alternative to the declaration of a mistrial. Thus, before a proper finding of manifest necessity for a mistrial could have been made, the trial judge should have inquired into the jury's status of unanimity prior to discharging the jury.
Case # 115540
Opinion by Harrell, J.
Battaglia, J., joins judgment only.
The Double Jeopardy Clause of the United States Constitution, as well as Maryland common law, protect a defendant from being subject twice to criminal proceedings for the same offense. U.S. Const. amend. V; Hubbard v. State, 395 Md. 73, 91-92, 909 A.2d 270, 280-81 (2006). Where a mistrial is declared because of manifest necessity, however, retrial is not prohibited. Hubbard, 395 Md. at 89, 909 A.2d at 279.
Prior to the conclusion of jury deliberations in the present case in the Circuit Court for Montgomery County, the jury sent an unsolicited, completed verdict sheet to the trial judge indicating apparently that the jury voted unanimously to acquit Respondent, Sean Fennell, on charges of first degree assault, conspiracy to commit first degree assault, and conspiracy to commit robbery. The jury sheet indicated further, however, that the jury had not agreed unanimously as to disposition of an additional charge of robbery and a lesser included charge to first degree assault of second degree assault. After examining this "gift," the trial judge instructed the jury to continue to deliberate "regarding the counts as to which you are undecided." The jury continued to deliberate, but, upon being called back into open court, indicated that it was not making progress and was unable to reach a unanimous verdict. Fennell, through counsel, requested of the judge that he take a partial verdict on the counts as to which the jury indicated unanimity previously. The State objected. The judge declared a mistrial as to all counts. A retrial date was scheduled. Fennell filed a motion to bar retrial on the charges for which he believed the first jury acquitted him. This motion was denied, which lead to this appeal.
On these facts, all agree now that Fennell may be retried on the charges of second degree assault and robbery; the parties diverge, however, as to whether Fennell may beretried for first degree assault, conspiracy to commit first degree assault, and conspiracy to commit robbery. For reasons we shall explain, we conclude, on the unusual posture of this case, that retrial of Fennell on the latter three charges is prohibited by principles of double jeopardy.
On 6 May 2010, Fennell was indicted in the Circuit Court on the following four counts: (1) first degree assault; (2) conspiracy to commit first degree assault; (3) robbery; and, (4) conspiracy to commit robbery. A one day jury trial took place on 18 October 2010. The jury began deliberations at approximately 5:50 p.m.2 At approximately 9:00 p.m., the jury gave the bailiff a completed verdict sheet to take to the judge. The verdict sheet read as follows:
After sharing the unsolicited verdict sheet with the parties, the following exchange occurred between counsel and the judge:
At approximately 9:30 p.m., the trial judge discussed with counsel the lateness of the hour and the options regarding continued jury deliberations:
The jury having been brought into the courtroom, the trial judge engaged in the following exchange with the jury foreperson:
The jury left the courtroom, and then the following ensued:
On 22 December 2010,5 Fennell filed a Motion to Bar Retrial Due to DoubleJeopardy, claiming that the jury returned a verdict sheet acquitting Fennell unanimously of first degree assault (count 1), conspiracy to commit first degree assault (count 2), and conspiracy to commit robbery (count 4), and indicating that it was hung on the charges of second degree assault (a lesser included offense of count 1) and robbery (count 3). Because the jury found him not guilty of three counts, Fennell argued that...
To continue reading
Request your trial