Whitfield v. State, 793
| Decision Date | 11 April 1979 |
| Docket Number | No. 793,793 |
| Citation | 42 Md.App. 107,400 A.2d 772 |
| Parties | Conrad WHITFIELD and Nigel Antonio Little v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Arnold M. Zerwitz and Michael S. Elder, Baltimore, for appellants.
Stephen H. Sachs, Atty. Gen., Stephen Rosenbaum, Asst. Atty. Gen., William A. Swisher, State's Atty., for Baltimore City and Harvey Greenberg, Asst. State's Atty., for Baltimore City, for appellee.
Submitted to GILBERT, C. J. and MOORE and WILNER, JJ.
A cadet guard at the Baltimore City Jail surreptitiously carried a handgun into the jail and delivered it to an inmate who intended to use the weapon to effect an escape. The plot was revealed before the escape occurred. As a result, the appellants, Conrad Whitfield (Whitfield), Nigel Little (Little), and Peteta Davis (Davis) 1 were indicted by the Grand Jury for Baltimore City and charged with conspiracy to violate the Maryland statute proscribing escape from jail. Md.Ann.Code art. 27, § 139(a). 2 Whitfield, a then jail inmate, and Little, a then cadet guard, were also charged with a handgun violation, Md.Ann.Code art. 27, § 36B(b). Little was additionally charged with delivering "one .25 caliber automatic pistol" to Whitfield. All three accused pleaded not guilty to the indictments, and the case proceeded to a trial by jury on March 29, 1977. On the second day of trial, Judge David Ross declared a mistrial.
Three months later, June 22, 1977, a new jury, presided over by Judge Milton Allen, was sworn and the three defendants were retried. After a protracted trial, the jury found: 1) Whitfield guilty of the conspiracy and handgun charges, 2) Little guilty of the handgun and contraband charges but not guilty of conspiracy, and 3) Davis guilty of conspiracy.
The factual scenario began in the spring of 1976. From May to July of that year, Whitfield and one Thomas Brown were involuntary residents in the Baltimore City Jail. By happenstance, each was represented, on unrelated criminal matters, by the same attorney, Marshall Stewart. On July 2, 1976, Brown was in the Southwestern District Court for a hearing on a case there pending against him. Stewart, who was representing Brown in that proceeding, was also present. Brown took Stewart aside and told him he "had some information about a pistol" in the jail, and that he wanted "to speak to somebody" about it. Stewart informed the Police Captain in charge of the District, and Brown was taken to Central Police Headquarters where he gave a written statement relative to the details of the gun's being in the jail.
Shortly thereafter, the police alerted the Warden of the jail that a pistol had been carried into the institution, and that Whitfield and Cadet Little knew where it was. Correctional Major Howard Parks, joined by Captain Calvin Young and Lieutenant William Britton, accosted Whitfield in a passageway of the jail and ordered him to accompany them to a secluded section. There, Young and Britton confronted Whitfield with the fact that they knew "that he was in possession of a weapon within the institution." No Miranda 3 warnings were given prior to the confrontation or subsequent interrogation. In the words of Major Parks, the objective was "to obtain the weapon and get it out of the institution."
Whitfield admitted knowledge of the pistol and was sent, unaccompanied, to retrieve it. He returned with the gun which was wrapped in a shirt. Britton then took him to Park's office for further questioning. Whitfield was told "he could contact his attorney," but no other rights were read to him. Whitfield then used the phone, apparently to call Stewart.
Several minutes later, a Mr. Clauss, Stewart's "legal assistant," arrived. Under renewed interrogation by Lt. Britton, with Clauss present, "Whitfield laid everything out . . . what was supposed to have transpired." Whitfield's statement implicated Little and Davis. Indictment and trial followed.
On appeal to this Court, Whitfield and Little pose three contentions. We shall discuss each in the order raised by the appellants, adding such additional facts as may be necessary for a better understanding of the resolution of the issue.
"The retrial of the present cases was barred by the Double Jeopardy Clause 4 as a result of prosecutorial overreaching."
Appellants argue that:
"The failure of the prosecutor in the present case to disclose to Judge Ross that Whitfield and Davis were being represented by an attorney who had worked out an arrangement for leniency for the State's chief witness (Brown) and who was also a potential witness against his clients was clearly prosecutorial overreaching under either the intentional misconduct or gross negligence standards." (Footnote omitted.)
An analysis of those standards leads us to the opposite conclusion.
When the case was first called to trial on March 29, 1977, before Judge Ross and a jury, Whitfield and Davis were represented by Mr. Stewart. On the second day of the trial, Whitfield made known to Judge Ross that Stewart was "still representing Mr. Brown," who was the principal prosecution witness. Whitfield said that Stewart was "trying to get . . . (Brown) off the hook, and I feel as though . . . I am not getting fair representation by the attorney representing me."
A bench conference before Judge Ross disclosed that Stewart had, in fact, represented Brown, Whitfield, and Davis in separate matters prior to the disclosure by Brown, at Southwestern Police Station, of the gun's presence in the jail. Stewart had told Whitfield that he, Stewart, would not be representing Brown during Whitfield's current trial. Stewart admitted, however, that he had negotiated with the State for leniency for Brown in return for Brown's cooperation in the case against Whitfield, Little and Davis. The prosecutor said that he knew about Stewart's involvement with both Brown and Whitfield "for quite sometime" but had been assured by Stewart that Stewart "had had no contact with Mr. Brown since" the revelation about the gun on July 2, 1976. After hearing from all the parties, and with the express concurrence of all three defendants, Judge Ross declared a mistrial. He based his declaration on the ground that it was of "manifest necessity, under the total circumstances," to avoid forcing Whitfield to trial in view of Whitfield's feelings toward Stewart and the apparent conflict of interest.
Prior to the commencement of the second trial, a hearing was held on the defense motions to dismiss the indictments and to suppress oral and written statements made by Whitfield and Davis. The motions averred that a retrial would subject the defendants to double jeopardy because of prosecutorial misconduct in failing to disclose Stewart's conflict of interest to the court. It was also argued that the statements taken by police from Whitfield and Davis should have been suppressed because of ineffective assistance of counsel caused by Stewart's conflict of interest.
The trial court granted the motion to suppress the statements made by Whitfield and Davis at police headquarters. All other defense motions, including the motion to suppress the oral statements made by Whitfield to Young and Britton in the City Jail, were denied.
Recently, in Thompson v. State, 38 Md.App. 499, 381 A.2d 704 (1978), we discussed prosecutorial overreaching in relation to double jeopardy. We said:
"Although the double jeopardy clause is designed to protect the defendant against multiple punishments or repeated prosecutions for the same offense, United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976), a request by a defendant for a mistrial ordinarily removes any bar to reprosecution even though the motion was necessitated by prosecutorial or judicial error. Lee v. United States, 432 U.S. 23, 97 S.Ct. 2141, 53 L.Ed.2d 80 (1977); United States v. Dinitz, supra. This rule is not absolute and where a mistrial is the product of prosecutorial or judicial overreaching, the double jeopardy clause prevents a retrial. Lee v. United States, supra; United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971). The exact boundaries of prosecutorial overreaching, necessary to bar retrial, have not have been specifically delineated by the Supreme Court. Other courts which have considered the point generally hold that prosecutorial error attributable to negligence does not amount to overreaching, People v. Baca, Colo., 562 P.2d 411 (1977), while intentional misconduct calculated to gain a more favorable chance for conviction or to abort a trial that is going badly prevents reprosecution. United States v. Kessler, 530 F.2d 1246 (5th Cir. 1976). The appellant argues that prosecutorial overreaching is not confined to intentional misconduct but encompasses gross negligence as well. Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977). Although in Bolden, the Court noted that it is unclear from the decisions of the Supreme Court whether overreaching is limited to intentional misconduct or whether it extends to gross negligence on the part of the prosecutor or judge, it concluded gross negligence was encompassed in the term after an examination of the purposes underlying the double jeopardy clause. The Court stated:
'A defendant forced to request a mistrial by conduct which conspicuously fails to satisfy professional standards should not be required to bear the heavy burdens incident to reprosecution.' 373 A.2d at 109." 38 Md.App. at 502, 381 A.2d at 705-06.
While the precise perimeters of the term, "prosecutorial overreaching" have not, as Thompson points out, been drawn by the Supreme Court or the Maryland Court of Appeals, Judge Moylan shed some light on the subject in Loveless v. State, 39 Md.App. 563, 387 A.2d 311 (1978), 5 when he stated:
"Except in those rare instances where the prosecution or the court has deliberately sabotaged a trial that was going badly, the available redress where an irremedial...
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