State v. Fennell

66 A.3d 630, 431 Md. 500, 2013 WL 2121916, 2013 Md. LEXIS 289
CourtCourt of Appeals of Maryland
DecidedMay 17, 2013
DocketMisc. Docket AG No. 72
StatusPublished
Cited by13 cases

This text of 66 A.3d 630 (State v. Fennell) is published on Counsel Stack Legal Research, covering Court of Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Fennell, 66 A.3d 630, 431 Md. 500, 2013 WL 2121916, 2013 Md. LEXIS 289 (Md. 2013).

Opinion

HARRELL, J.

The Double Jeopardy Clause of the United States Constitution, as well as Maryland common law, protects 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 [506]*506was 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 be retried 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.

RELEVANT FACTUAL1 AND PROCEDURAL BACKGROUND

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:

Count One: As to the charge of First Degree Assault, we, the jury, find the Defendant:
Not Guilty 12 Guilty 0
If you find the Defendant guilty of Count One, go on to decide Count Two. If you find the defendant not guilty of First Degree Assault, then consider whether he is, guilty, as to the charge of Second Degree Assault:
[507]*507Not Guilty 6 Guilty 6
Count Two: As to the charge of Conspiracy to commit
First Degree Assault, we, the jury, find the Defendant:
Not Guilty 12 Guilty 0
Count Three: As to the charge of Robbery, we, the jury, find the Defendant:
Not Guilty 6 Guilty 5[3]
Count Four: As to the charge of Conspiracy to Commit Robbery, we, the jury, find the Defendant:
Not Guilty 12 Guilty 0

After sharing the unsolicited verdict sheet with the parties, the following exchange occurred between counsel and the judge:

THE COURT: Please have a seat. I thought I had seen everything. Apparently, they knocked on the door, and handed this to [the bailiff], having been fed.
[DEFENSE COUNSEL]: Interesting that Count 3 doesn’t add up to 12. You can’t abstain, right?
THE COURT: Well, they’re forcing the issue a little bit. The jury has obviously not reached a verdict on about half the counts. They went out about 5:00, didn’t they?
[COURT CLERK]: I believe it was at 10 of 6:00.
THE COURT: Ten of 6:00.
[PROSECUTOR]: Yes, I thought it was closer to 6:00.
THE COURT: The question now is like I say three options. They can continue to deliberate tonight, come back tomorrow, or call it a day. They haven’t been out very long. How about please continue to deliberate?
[PROSECUTOR]: I know there’s a specific jury instruction for—
THE COURT: I think we already gave it.
[PROSECUTOR]: Okay.
[508]*508THE COURT: The [modified Allen4 ] charge—
[PROSECUTOR]: Yes.
THE COURT: Yes, I think that was—
Please continue to deliberate. Your verdict must be unanimous?
[DEFENSE COUNSEL]: Judge?
[THE COURT]: Yes, sir.
[DEFENSE COUNSEL]: The only thing I would ask you to consider would be please continue to deliberate on the counts of which you are still undecided. Those must be unanimous, as well. Would that work?
THE COURT: Yes, as to which you remain undecided. Please continue to deliberate regarding the counts as to which you are undecided. Your verdict as to each count must be unanimous. Thank you.
Well, thank you. I don’t think we ought to keep them past 9:30 [p.m.].
[DEFENSE COUNSEL]: Okay.
[PROSECUTOR]: Okay.
[THE COURT]: Thank you.
[PROSECUTOR]: Thank you.
[THE COURT]: I guess we better send [the filled-in verdict sheet] back in there, or give them a clean copy.
THE BAILIFF: I gave them a clean copy.

[509]*509At approximately 9:30 p.m., the trial judge discussed with counsel the lateness of the hour and the options regarding continued jury deliberations:

THE COURT: I don’t think we ought to keep them any longer tonight. The question is do we make them come back in the morning. I’ll hear whatever suggestions either of you want to make at this point.
[DEFENSE COUNSEL]: Your Honor, possibly we could just bring them in and say exactly what you said, do you guys think it would be worth it deliberating [ ] tomorrow or are you making progress.
[PROSECUTOR]: I think, in reality, they really haven’t been deliberating that long. I don’t think, in this kind of case, it would be that unusual.

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Bluebook (online)
66 A.3d 630, 431 Md. 500, 2013 WL 2121916, 2013 Md. LEXIS 289, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-fennell-md-2013.