State v. Gorwell

• Decision Date: 01 September 1994
• Docket Number: No. 21,21
• Citation: 339 Md. 203,661 A.2d 718
• Parties: STATE of Maryland v. Edward T. GORWELL. ,
• Court: Maryland Court of Appeals

Page 203

339 Md. 203

661 A.2d 718

STATE of Maryland v. Edward T. GORWELL.

No. 21, Sept. Term, 1994.

Court of Appeals of Maryland.

July 19, 1995.

Mary Ellen Barbera, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for appellant.

Henry L. Belsky (Schlachman, Belsky & Weiner, P.A., on brief), Baltimore, for appellee.

Argued before MURPHY, C.J., ELDRIDGE, RODOWSKY, CHASANOW, BELL and RAKER, JJ., and JOHN F. McAULIFFE, J. (Retired), Specially Assigned.

JOHN F. McAULIFFE, Judge, Specially Assigned.

During deliberation of the jury in this criminal case, the trial judge dismissed one of the jurors at the insistence of the defendant and then declared a mistrial when the State refused to proceed with eleven jurors. Thereafter, the defendant filed a motion to dismiss, contending that the trial should have continued with eleven jurors notwithstanding the objection of the State; that as a result there was no manifest necessity for the granting of a mistrial; and that double jeopardy principles protected the defendant from retrial. The trial judge granted the defendant's motion. The State appealed, and we granted certiorari prior to consideration of the case by the Court of Special Appeals. We now reverse, finding there was a manifest necessity for the declaration of a mistrial.

I.

The defendant, Edward T. Gorwell, is a Baltimore City police officer. Just prior to 1:00 a.m. on 17 April 1993 he was following a stolen Chrysler automobile on Ellicott Driveway near Gwynns Falls Park. The Chrysler abruptly stopped, and four young men ran from it into the park. The defendant left his police vehicle and followed on foot. Shortly after the chase began, the defendant fired one shot from his 9 mm. pistol. That bullet struck and killed fourteen-year-old Simmont Thomas, one of the young men fleeing from the Chrysler.

After an investigation, Officer Gorwell was charged with the common-law offense of manslaughter. The State contended that the defendant had no justifiable reason to fire his weapon at or in the direction of the decedent. The defendant contended he had heard a shot from the area where he saw two men running, and that he acted in the defense of his person when he fired a shot at the person he believed was shooting at him. A police search of the area failed to produce any weapons, or any bullets or cartridges possibly connected with the incident ¹ except the single cartridge ejected from Officer Gorwell's weapon. The officer's shot struck the decedent in the back, just below the right shoulder blade. The decedent's hands were wrapped in plastic bags at the scene, and a subsequent test was negative for the presence of gunpowder residue.

The case received a substantial amount of media attention in Baltimore City, and had racial overtones--the officer was white and the young victim was African American. In a motion for change of venue the defendant alleged that the city's Mayor and State's Attorney had commented that shootings by police in the city were "excessive in number" and that there was "overwhelming citizen polarization for and against the police."

Trial by jury commenced on 27 July 1993, in the Circuit Court for Baltimore City. Presentation of evidence was concluded on Tuesday, August 3, but, because the trial judge had other trial commitments, instructions and closing arguments were deferred until Thursday, August 5. The case was given to the jury at noon on that day. The jury deliberated for about five and one-half hours before being excused for the day and instructed to return the next morning.

On the morning of Friday, August 6, one juror did not appear at the appointed time. The remaining jurors were instructed not to discuss the case, and a search was undertaken for the missing juror.

About noon, information was received from the sheriff's office that deputies had contacted the missing juror's employer. The employer stated that the juror picked up his paycheck at 7:00 p.m. on the preceding evening and informed his employer that he was required to return to court the following day. His employer described the juror as a good employee but one who had a drinking problem on his own time. Additionally, the juror's wife called the court in response to messages that had been left on her answering machine, and informed the trial judge that her husband had come home from the courthouse on Thursday, announced that he was going to pick up his paycheck, and left. The juror's wife said she had not seen or heard from him since that time.

The judge sequestered the jury until 2:00 p.m. on Friday, when she held another conference with the attorneys. At this point, she announced that the juror had not been found and asked the attorneys to consider proceeding with eleven jurors. The State's Attorney asked the court to send the eleven jurors home after appropriate admonitions, but to defer any decision on whether to proceed with eleven jurors until the missing juror could be found, and the reason for his non-appearance ascertained. The prosecutor suggested that if the juror's reason for not being present was entirely personal and not associated with the case, proceeding with eleven jurors would be acceptable. If, however, it appeared that the juror was not present "for a reason associated with this case, or some participant in this case, or something along those lines," than a mistrial would be a more appropriate remedy. Defense counsel, after conferring with the defendant, stated he would agree to proceed with eleven jurors. The eleven jurors were sent home at mid-afternoon on Friday, after being told to avoid any media or other reference to the case.

At 3:30 or 4 o'clock that afternoon the missing juror telephoned the judge. The judge arranged for him to be brought to the courthouse and, while waiting for his arrival, recounted to the attorneys what the juror had told her: that three "white guys" had assaulted him when he was cashing his paycheck. Shortly thereafter, the prosecutor informed the judge that "based on just the allegation that the juror has made, it is going to be impossible for us to accept a jury of less than twelve." He added, however, that the State's view might change after the parties had heard from the juror. He said:

If the allegation goes away to the point that it has totally evaporated, possibly we can rethink our position, but as long as the allegation remains even in any way viable, there is just no way for the public to accept the impression about what is happening here.

When the juror arrived, he was sworn and interrogated in the presence of the court, counsel, and the defendant. The juror testified that after he left court on Thursday he went home. From there he went to his place of employment and picked up his paycheck, after which he stopped by his mother's house and obtained an additional check from her. Then he went to a liquor store on Eastern Avenue where he cashed his checks. He said as he was walking out, counting his money, three white teenagers attacked him, knocked him to the ground, and took his money; that he was initially dazed but then rode around in his car collecting his thoughts; that he ultimately went to another liquor store and with a few dollars he had in his clothes bought a half-pint of liquor, which he consumed; that he sat in his car for the rest of the night and part of Friday morning before returning to his home.

After the juror completed his testimony, the parties again conferred with the trial judge. The prosecutor suggested that the juror be questioned by the court as to whether the juror felt he could continue serving as a juror without being affected by what had happened to him. The prosecutor said that if the juror was convinced he could continue the State would agree that deliberations of the twelve jurors should continue. The trial judge asked the prosecutor why, if the juror was convinced the attack had nothing to do with the case, the State would object to proceeding with only eleven jurors. The prosecutor replied:

Because, Your Honor, if, in fact, this jury were to come back with a not guilty verdict, I don't see how it would be acceptable to the public or people of the State that criminal action by some people, who the public could view as interested in this case, would change the balance of the case.

Defense counsel objected to the juror being allowed to continue. He said he did not believe the juror's story, and he thought the juror would be biased. He requested that the court excuse the juror and allow the eleven remaining jurors to continue. The trial judge, although stating that "everybody here is quite sensitive to the issue of race if that is an issue to go into this case," strongly disagreed with the position being taken by the prosecutor. The Assistant State's Attorney agreed to again confer with his superiors. The juror was excused until the following Monday morning.

On Monday morning, the juror was again sworn and testified in open court but out of the presence of the other jurors. After the juror again stated his version of the events that caused him to be absent, the court asked the parties to state their positions concerning continued service of the juror. Defense counsel again objected to the juror being allowed to continue. The prosecutor stated he would submit the decision to the discretion of the trial judge. The trial judge determined that the juror had been guilty of serious misconduct and removed him from further service on the jury.

The trial judge, after voicing a strong opinion that deliberations should be allowed to continue with the remaining eleven jurors, again asked the positions of each party. Defense counsel stated that "subject to two voir dire questions being asked of the jurors, we are inclined to go ahead with eleven." ² The prosecutor refused to consent to continuation of the trial with eleven jurors. He said the State was concerned that so much time had elapsed since the...