I.
The petitioner, Christopher Mansfield, was tried in a bench trial at the Circuit Court for Caroline County on five counts,
charging statutory sex related offenses,
1
arising out of his
alleged sexual assault of
Before the start of this trial, the petitioner had been convicted in two separate, unrelated cases of sexual offenses involving young women who were minors, “under the age of 17 or 16.” Those judgments of conviction were being appealed at the time. The trial judge was aware of these convictions and, as to at least one of them, so too were the prosecutor and defense counsel. Indeed, the trial judge had presided over one of the unrelated sexual offense cases, a jury trial, in which both the prosecutor and defense counsel in this case had participated. In addition, she was aware of the other case involving a different minor, which had been presided over by a retired, recall judge. These convictions were not discussed prior to trial; although she mentioned the convictions during the trial, after jeopardy had attached, thereby acknowledging that she was aware of them, the trial judge did not mention them before jeopardy attached.
Prior to trial, it was clear that the complaining witness had not reported the sexual offenses she accused the petitioner of committing promptly or within a reasonable time of their commission. The charging documents alleged that the offenses occurred in 2005 but that they were not reported by the complaining witness until 2008. In fact, in preliminary discussions of the ease, the State advised the trial judge that the complaining witness had not reported immediately the sexual offenses lodged against the petitioner and that it expected her to testify that, nearly three years after the event, after she heard a sermon at the church she attended, she decided to come forward with the sexual assault allegations against the petitioner. The State also apprised the court that it intended to call five other witnesses, none of whom had personal knowledge of the alleged offenses or would provide forensic evidence.
For the defense, defense counsel informed the court that it intended to call the petitioner, and only the petitioner, to testify. Moreover, during its brief opening
As expected, consistent with the preliminary discussions, the State’s case consisted of the complaining witness, her mother, a former friend to whom it was alleged the complain ing witness related the sexual offense during the summer in which it occurred and three other witnesses. 3 The complaining witness testified that she had been sexually assaulted by the petitioner, a friend of the family, in August of 2005, when she was thirteen years old and that she reported the incident in 2008. She explained the circumstances: the petitioner had been hired by her parents to do work on the family’s house, which was located next to the trailer where the family resided. After she delivered the glue that the petitioner had requested, she said that the petitioner asked her whether she had ever had sex. When she did not respond, the complaining witness testified that the petitioner told her that, unless she had sex with him, he would tell her parents that she was sexually active. She concluded that, after she had performed fellatio on the petitioner for a brief time, she and the petitioner engaged in sexual intercourse.
The complaining witness’s mother testified that, in May of 2005, the petitioner was hired to redo the family’s kitchen but quit, without notice, before completing the job. She further testified that, after a June 2008 meeting with her husband, their pastor, two former youth leaders, and the complaining witness, at which the complaining witness first alleged that she had been raped by the petitioner in the summer of 2005, she then went to the police to report the incident. The complaining witness’s former friend was offered to corroborate her testimony that the sexual assault occurred. She testified that the complaining witness told her, during the summer in which it allegedly occurred, that the complaining witness had “sex with the guy that was working on the house.” She also said that the complaining witness did not say “it was rape or anything.” None of the State’s other witnesses had any knowledge of the alleged offense until some years later.
The subject of the petitioner’s prior sexual convictions was brought up three times, each time by the trial judge, before the defense presented its case. During the testimony of the complaining witness, the trial judge inquired whether the complaining witness and her parents had ever discussed “the fact that [the petitioner] had been charged in two other cases involving alleged rape.” Subsequently, she asked the complaining witness’s mother directly, whether she was aware of the “other allegations involving” the petitioner and whether she had “any recollection of having conversations about [the] allegations” involving petitioner. Finally, prior to the petitioner being called to give testimony, the trial judge asked the State if it intended to use the petitioner’s two prior
When the petitioner took the witness stand, he testified as counsel, in opening statement, said he would: he denied ever having sexual contact with the complaining witness. He did, on the other hand, corroborate the complaining witness’s testimony that, in August 2005, he was engaged to, and did, perform repairs to the complaining witness’s family home.
At the close of the evidence and after a brief recess, the trial judge, over the petitioner’s objection, sua sponte declared a mistrial. She explained, first, “the dilemma that I have”:
“This case basically comes down to a he said/she said situation and if one chooses to believe [the complaining witness’s] version of what happened, which was certainly credible, then a fact finder can make a finding beyond a reasonable doubt that [the petitioner] is guilty. Now if the fact finder elects not to believe [the complaining witness] and finds [the petitioner’s] version more credible, then the Court would then have to return a verdict for, of not guilty. This is the dilemma that this Court has. Not placed into evidence, either by way of an impeachable conviction or evidence if admissible of other past wrong acts, this Court has knowledge that [the petitioner] has two convictions, sexual-related convictions involving young women under the age of 17 or 16. I did the first case____and Judge Cal Sanders did the second case____”
Then she explained why she believed that it—her knowledge of the petitioner’s prior convictions and the partiality it engendered—made it manifestly necessary for her to declare a mistrial:
“I cannot extract out of my brain and my analysis of whether to believe [the petitioner] what I know from those other two cases. Now had there been other evidence in this case, forensic evidence, if, if perhaps [the complaining witness] had made a, a prompt report of the sexual assault, if [the petitioner] had made a statement in admission, all those things would alter my decision today, but I’m basically left as a fact finder for deciding who I’m going to believe just based upon their testimony. And it’s a moral dilemma to me and I told counsel I don’t take this lightly____[I]f this had been a jury trial, I wouldn’t be in this dilemma, cause the jury’s the fact finder, not the Court. I’m the fact finder and I’m not able to do it, knowing what I know about [the petitioner]. So that’s why I’m declaring a mistrial....”
The petitioner subsequently moved to dismiss the indictment on double jeopardy grounds. He argued that “there was not manifest necessity for the granting of the mistrial where [the trial judge] had knowledge of the prior [sexual assault] cases well before the trial began.” The motion’s judge denied
the petitioner’s motion. Relying on this Court’s decision in
Cornish v. State,
“[The trial judge] had no way of knowing how this case was going to proceed. She could not know in advance what the victim was going to say. She could not know in advance that the Defendant might take the stand. And she certainly could not know in advance that this case would come down to what she determined to be a question of credibility of two witnesses. And only that. [Apparently there was no other evidence, DNA or scientific evidence to establish ..., one way or the other ..., the guilt or innocence of the Defendant.”
The Court of Special Appeals, in an unreported opinion, affirmed the lower court’s ruling. The intermediate appellate court agreed with the petitioner “that an alternative in this case would have been a recusal prior to the attachment of jeopardy.” Nevertheless, chiding the petitioner for “improperly focus[ing] on the process rather than the result,” it rejected his argument in other respects. The Court of Special Appeals reasoned that, knowing that the information she possessed about the petitioner’s earlier convictions would be to his “detriment,” the trial judge “was unable to see any other alternative to a mistrial.” It also was persuaded that a mistrial was necessary because “the public’s confidence in the rule of law would be harmed ... by having a partial judge decide [the] case.... ”
The petitioner sought certiorari review of the Court of Special Appeals’ decision. We granted his petition,
Mansfield v. State,
II.
The Fifth Amendment to the United States Constitution
6
contains a Double Jeopardy Clause. That clause, like the Amendment itself,
see Malloy v. Hogan,
A prosecution commences when jeopardy attaches.
See Blondes v. State,
It is now well settled that the double jeopardy clause will not bar a new trial when a mistrial, the abortion of the trial before verdict and without the defendant’s consent, was declared out of “manifest necessity.”
United States v. Perez,
“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 consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, Courts should be extremely careful how they interfere with any of the chances of life, in favour of the prisoner.”
The facts of
Cornish
and the Court’s analysis are instructive. The defendant was charged with murder and related offenses.
Id.
Subsequent to requesting a jury trial and informing the trial court of his intent to file a motion to suppress if the State, which had not answered his discovery motion, attempted to introduce his inculpatory statement, the defendant elected a bench trial.
Id.
at 314,
The trial judge sustained the defendant’s objection to the State’s use of the defendant’s statement, whereupon the defendant moved to dismiss the charges, arguing that he had been denied a speedy trial and “he is now in jeopardy.”
Id.
at 314-15,
“Secondly,[ 8 ] is the fact that it was stated clearly, perhaps too clearly, that it was anticipated that a guilty plea was going to be entered. Now that was stated to the trier of the facts who had to judge the case and give a verdict on the issue of guilt or innocence, and I know that trial judges, experienced trial judges, are supposed to be able to, and I hope we can, as far as possible ignore prejudicial remarks during the course of trial where we are sitting as the trier of the facts and yet judges are human also, and subconsciously perhaps, this reference to the guilty plea was implanted in my mind, and keep in mind this was a murder case.
- “Ail criminal cases are serious but this probably is the most serious with which any defendant or any court can be faced. This was, I think, a prejudicial remark which might have been very difficult for me to overcome in the ultimate judgment of this case.”
Cornish v. State,
The petitioner moved to dismiss the case on the ground of double jeopardy.
Id.
at 316,
“[W]here the impartiality of a judge in a non-jury trial is in fact affected by remarks during the trial, and the judge acknowledges that his objectivity is compromised, the situation is the same as when a juror’s impartiality is rendered doubtful. The judge, as trier of the facts in lieu of a jury, cannot properly assess the evidence if his impartiality is affected by an occurrence during the trial. In such a circumstance, there is the same ‘manifest necessity to de clare a mistrial as where a juror is biased.” (emphasis added).
Id.
at 322,
III.
Whether manifest necessity to declare a mistrial and, thus, whether the prohibition of the double jeopardy clause is triggered depend upon the unique facts and circumstances of each case.
Perez,
“Because jeopardy attaches before the judgment becomes final, the constitutional protection also embraces the defendant’s Valued right to have his trial completed by a particular tribunal.’ The reasons why this Valued right’ merits constitutional protection are worthy of repetition. Even if the first trial is not completed, a second prosecution may be grossly unfair. It increases the financial and emotional burden on the accused, prolongs the period in which he is stigmatized by an unresolved accusation of wrongdoing, and may even enhance the risk that an innocent defendant may be convicted. The danger of such unfairness to the defendant exists whenever a trial is aborted before it is completed.
“Consequently, as a general rule, the prosecutor is entitled to one, and only one, opportunity to require an accused to stand trial.”
Arizona v. Washington,
Sartori,
albeit a jury case, is instructive. There, the Fourth Circuit held that the double jeopardy clause was violated when, after only four witnesses, during the first day of the trial of a case involving charges arising out of the defendant’s practice of “wholistic” medicine in the treatment of cancer patients, the trial judge, who was an American Cancer Society (“ACS”) lay leader, declared a mistrial, over the defendant’s objection. The trial judge’s involvement with the American Cancer Society and its potential impact on the ability of the trial judge to preside over the defendant’s case was known by the parties prior to the start of trial.
Sartori,
While the Fourth Circuit held that Fed.R.Crim.P. 25(a) provided a reasonable alternative to declaring a mistrial in that case, it was only one of several alternatives, in lieu of declaring of mistrial, that existed:
“In addition to the alternative authorized by Fed. R.Crim. P. 25(a), other obvious and adequate alternatives to a mistrial were available in this case. If the [trial judge] had serious doubts about his ability to remain impartial, he should have recused himself before empaneling the jury. Similarly, his concerns about the appearance of judicial impropriety should have been addressed before jeopardy attached.”
Id. at 976. With regard to the latter, when recusal is premised on perception, the court noted, relying on 28 U.S.C. § 455(a), 12 that the ground for disqualification may be waived, after full disclosure. Id. We find the reasoning of, and the conclusions drawn by, the Fourth Circuit persuasive with regard to the resolution of this case.
There can be no question that the petitioner was placed in jeopardy once he was put to trial and the trial judge began to hear evidence.
See In re Kevin,
Prior to jeopardy attaching, the trial judge was aware that the petitioner had twice been convicted of committing sexual offenses against minors. She, herself, had presided over one of these earlier, unrelated sexual offense cases and she was well aware of the second case, which was presided over by a different trial judge. Moreover, the trial judge was aware of the substance of the State’s case, at least that portion critical to the credibility of the complaining witness and its assessment. Before jeopardy attached, the State informed the court that the complaining witness would testify that the petitioner sexually assaulted her in the summer of 2005 and that she reported the assault some three years later, in June 2008, after hearing a sermon. The trial judge also knew who the other State’s witnesses would be and, therefore, that there was not going to be forensic evidence. Finally, the trial judge knew, prior to jeopardy attaching, that the petitioner was the only defense witness expected to testify and, more important,
The trial judge explained that her decision to declare a mistrial was made necessary because her knowledge of petitioner’s two “sexual-related convictions involving young women under the age of 17 or 16” could not be used to decide the case since the convictions were “not placed into evidence, either by way of an impeachable conviction or evidence if admissible of other past wrongs.” As a result, although there was evidence tending to undermine the complaining witness’s testimony, but, apparently none, other than the convictions, which were not themselves final, tending to undermine the petitioner’s, 13 the trial judge, being “unable to extract out of [her] brain and [her] analysis of whether to believe [petitioner] knowing what [she knew] from those other two cases,” could not proceed with the trial. The justification offered by the motions judge and the intermediate appellate court is the unforeseeability of the credibility determination that the judge was faced with at the close of the evidence.
The trial judge knew, as any trial judge would, that part of her function in this trial was to make credibility determinations. After all, “[determining the credibility of witnesses is the primary function of a fact finder.”
Douglas v. State,
This pre-jeopardy knowledge possessed by the trial judge, bearing as it did on the credibility of both the complaining witness and the petitioner, had direct significance to the ultimate issue she had to decide, the petitioner’s guilt. That the information was not direct evidence of guilt, but pertained to credibility, is of no consequence. To be sure, consistent with the
Cornish
analysis,
see
It is when a trial judge’s pre-jeopardy knowledge has a direct significance to the matter to be decided by the court that the impact of that knowledge on the trial judge’s impartiality must be assessed. Where the trial judge is aware of the substance of the defense case; is knowledgeable of the defendant’s prior convictions that have a direct significance to the case before the trial judge; and, through her own personal assessment, knows that she will be unable to assess the defendant’s credibility in the absence of an admission by the petitioner or other evidence tending to undermine his credibility, retrial of the defendant, after a mistrial has been declared, is barred by the double jeopardy clause.
Under these circumstances, when it is the court that is the trier of facts, and the court’s impartiality, whether due to a personal bias or prejudice towards a criminal defendant or an inability to resolve disputed factual allegations, is impaired, manifest necessity does not exist when the reasonable alternative of recusal existed prior to jeopardy attaching.
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED; CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REVERSE THE JUDGMENT OF THE CIRCUIT COURT FOR CAROLINE COUNTY. COSTS TO BE PAID BY CAROLINE COUNTY.
BATTAGLIA and MURPHY, JJ., Dissent.
MURPHY, J., dissenting, in which BATTAGLIA, J., joins.
In the case at bar, the record shows that Petitioner requested to be tried by a judge who had previously convicted him of a sex offense, even though he and his trial counsel knew about that prior conviction. I would join the majority opinion if the record also showed that—before jeopardy attached—Petitioner’s trial counsel moved for the trial court’s recusal and the trial court denied that motion. Because no such motion was made, however, I am persuaded that Petitioner voluntarily ran the risk that the trial court would—in fairness to Petitioner— find it necessary to declare a mistrial. Under these circumstances, I would affirm the judgment of the Court of Special Appeals.
Judge BATTAGLIA has authorized me to state that she joins in this dissenting opinion.
Notes
. Christopher Mansfield, the petitioner, was charged with violating Maryland Code (2002) § § 3-203, 3-304(a)(3), 3-306(a)(3), 3-307(a)(3) and 3-308 of the Criminal Law Article. The trial judge granted the petitioner’s motion for judgment of acquittal with respect to the counts charging sexual offense in the third degree, § 3-307, and sexual offense in the fourth degree, § 3-308.
As to the remaining charges, the statutes provide:
Ҥ 3-304, Rape in the second degree:
"(a) Prohibited.—A person may not engage in vaginal intercourse with another:
"(1) by force, or the threat of force, without the consent of the other;
“(2) if the victim is mentally defective individual, a mentally incapacitated individual, or a physically helpless individual, and the person performing the act knows or reasonably should know that the victim is a mentally defective individual, a mentally incapacitated individual, or a physically helpless individual; or
"(3) if the victim is under the age of 14 years, and the person performing the act is at least 4 years older than the victim.
"(b) Penalty.—A person who violates this section is guilty of the felony of rape in the second degree and on conviction is subject to imprisonment not exceeding 20 years.”
"§ 3-306, Sexual offense in the second degree:
"(a) Prohibited.—A person may not engage in a sexual act with another:
"(1) by force, or the threat of force, without the consent of the other;
"(2) if the victim is a mentally defective individual, a mentally incapacitated individual, or a physically helpless individual, and the person performing the sexual act knows or reasonably should know that the victim is a mentally defective individual, a mentally incapacitated individual, or a physically helpless individual; or
"(3) if the victim is under the age of 14 years, and the person performing the sexual act is at least 4 years older than the victim. ...”
"(b) Penalty.—A person who violates this section is guilty of the felony of sexual offense in the second degree and on conviction is subject to imprisonment not exceeding 20 years.”
"§ 3-203. Assault in the second degree
"(a) Prohibited.—A person may not commit an assault.
"(b) Penalty.—Except as provided in subsection (c) of this section, a person who violates subsection (a) of this section is guilty of the misdemeanor of assault in the second degree and on conviction is subject 1o imprisonment not exceeding 10 years or a fine not exceeding $2,500 or both.
"(c) Law enforcement officer.
“(1) In this subsection, 'physical injury’ means any impairment of physical condition, excluding minor injuries.
"(2) A person may not intentionally cause physical injury to another if the person knows or has reason to know that the other is: “(i) a law enforcement officer engaged in the performance of the officer’s official duties; or
"(ü) a parole or probation agent engaged in the performance of the agent's official duties.
"(3) A person who violates paragraph (2) of this subsection is guilty of the felony of assault in the second degree and on conviction is subject to imprisonment not exceeding 10 years or a fine not exceeding $5,000 or both.”
. The appeal is timely.
Bunting v. State,
. The other State's witnesses were: a police trooper, a former youth leader at the church attended by the complaining witness, and the pastor of that church. The trooper testified that on June 30, 2008, the complaining witness's mother came forward to report that her daughter had been raped. Through her investigation, the trooper testified that she was able to determine the "date or timeline"—August 22, 2005 through August 27, 2005—of the alleged rape. The former youth leader testified that, in June of 2008, after hearing a sermon, the complaining witness informed her that she had been raped by the petitioner the summer that the petitioner worked on her family’s home. The pastor provided similar testimony—that the complaining witness, on the same day as reported by the former youth leader, alleged that she had been raped by the petitioner in the summer of 2005.
. Because the convictions were on appeal, they could not be used, unless the petitioner “opened a door during his testimony.”
See Clark v. State,
. In his Petition for a Writ of Certiorari, the petitioner presented the following question: "Whether the constitutional prohibition against double jeopardy is excused by the doctrine of manifest necessity where a trial judge elects to declare a mistrial at the conclusion of a bench trial over defense counsels’ objection, based on information known by the judge prior to trial which the judge could have, but chose not to, preliminarily explore.”
. "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” U.S. Const, amend. 5.
. This also is Maryland common law. In
State v. Griffiths,
. The trial judge also declared a mistrial because of the defendant’s “sudden change of mind” to have a bench trial in lieu of a jury trial; that it was “grossly unfair” to the petitioner when the State failed to respond to the petitioner’s motion to obtain a copy of a statement given by the petitioner to the police; and that a continuance was impractical because the trial judge would have been unable to "sit in fair and impartial judgment.”
Cornish v. State,
. These examples are by no means exhaustive of under what circumstances it is manifestly necessary, or not, to declare a mistrial. Whether manifest necessity to declare a mistrial and avoid double jeopardy exists is based upon the unique facts and circumstances of each case.
Hubbard v. State,
. The Court explained:
"Of course, many different occurrences might lead to a concern that a juror's impartiality is impaired, but the same events might not be deemed to affect a judge's impartiality. This is because a judge’s training and experience render him less susceptible to influence by improper remarks or occurrences at a trial. Thus, an event which would necessitate a mistrial where the trial is before a jury, might not require a mistrial in a non-jury trial.”
Cornish v. State,
. Fed.R.Crim.P. 25(a) provided:
"If by reason of death, sickness or other disability the judge before whom a jury trial had commenced is unable to proceed with the trial, any other judge regularly sitting in or assigned to the court, upon certifying that he has familiarized himself with the record of the trial, may proceed with and finish the trial.”
The trial judge did not believe the Rule provided an alternative for recusal; however, the Fourth Circuit disagreed, holding that "disability” was encompassed in the reasons for “recusal.”
See United States v. Sartori,
. "(a) Any justice, judge, or magistrate [magistrate judge] of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”
. Although it is conceivable that forensic evidence may have supported the petitioner’s denial of sexual contact, the tenor of the trial judge’s remarks suggests that she was looking for evidence that would confirm the propriety of the use of the impeachment evidence. That certainly is the thrust of the examples she gave, one relating to the promptness of the complaining witness’ reporting of the incident and the other, involving the petitioner’s making an admission. As disturbing, if the trial court and the Court of Special Appeals are correct, is that information that implicates partiality may be known to the trier of fact, without the obligation of disclosure, and may be used if the proper predicate is presented and, if the proper predicate is not presented, will be the basis for a mistrial. This runs counter to the use of safeguards, such as
voir dire,
which are designed to make potential fact-finders disclose information that could implicate partiality before being selected.
See Jenkins v. State,