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Opinions – 10/24/11: Maryland Court of Appeals

Criminal Procedure

Double jeopardy

BOTTOM LINE: Where trial judge was aware of the substance of the defense case, was knowledgeable of defendant’s prior convictions and knew she would be unable to assess the defendant’s credibility in the absence of an admission by the defendant or other evidence tending to undermine his credibility, retrial of the defendant after a mistrial was declared was barred by the double jeopardy clause.

CASE: Mansfield v. State, No. 53, Sept. Term, 2010 (filed Sept. 30, 2011) (Judges BELL, Harrell, Greene, Adkins & Barbera) (Judges Battaglia & Murphy, dissenting). RecordFax No. 11-0930-20, 28 pages.

FACTS: Christopher Mansfield was charged with statutory rape and other offenses relating to alleged sexual assault of a minor some years earlier. Mansfield was tried in a bench trial in circuit court. Before the start of the trial, the Mansfield had been convicted in two separate, unrelated cases of sexual offenses involving young women who were minors under the age of 16 or 17. Those judgments of conviction were being appealed at the time. The trial judge was aware of these convictions and, the prosecutor and defense counsel were likewise aware of at least one of the convictions. The trial judge had in fact presided over one of the unrelated sexual offense cases, a jury trial, in which both the prosecutor and Mansfield’s defense counsel in the present case had participated.

In addition, the judge 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 the trial judge mentioned the convictions during the trial, the 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 Mansfield 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 case, the State advised the trial judge that the complaining witness had not reported immediately the sexual offenses lodged against Mansfield 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 Mansfield. 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 Mansfield, and only Mansfield, to testify. Moreover, during its brief opening statement, the defense made clear what its defense would be and that Mansfield would simply be testifying that the alleged incident “did not happen.” Consistent with the preliminary discussions, the State’s case consisted of the testimony of the complaining witness, her mother, a former friend to whom it was alleged the complaining witness related the sexual offense during the summer in which it occurred and three other witnesses.

The subject of Mansfield’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 [Mansfield] had been charged in two other cases involving alleged rape.” When Mansfield took the witness stand, he denied ever having sexual contact with the complaining witness. At the close of the evidence and after a brief recess, the trial judge, over Mansfield’s objection, sua sponte declared a mistrial. She explained that she believed that her knowledge of Mansfield’s prior convictions and the partiality this knowledge engendered made it manifestly necessary for her to declare a mistrial, and that she intended to set the case in for a new trial before another judge.

Mansfield subsequently moved to dismiss the indictment on double jeopardy grounds. The motion was denied by another circuit court judge. Mansfield appealed to the Court of Special Appeals, which affirmed the lower court’s ruling.

Mansfield appealed to the Court of Appeals, which reversed and remanded.

LAW: Double Jeopardy attaches when a prosecution commences; that is, when the defendant has been put to trial before the trier of the facts, whether the trier be a jury or a judge, and thereby subjected to the risk of conviction. Serfass v. United States, 420 U.S. 377, 388–392 (1975). In Maryland, jeopardy, generally, attaches at a bench trial when the judge begins to hear or receive evidence. See In re Kevin, 402 Md. 624, 636 (2008).

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, 22 U.S. 579, 580 (1824). Although the mistrial reviewed in Perez and, thus, the rule announced, involved a jury trial, the same rule, and analysis, applies when the mistrial is declared in a bench trial. Cornish v. State, 272 Md. 312, 315 (1974). In Cornish, this Court of Appeals applied the test announced in Perez to determine whether retrial of a defendant, who was on trial for murder, following the trial judge’s sua sponte declaration of a mistrial, would violate the double jeopardy prohibition. Id. at 313.

The facts and analysis of Cornish were instructive here. In Cornish, the defendant was charged with murder and related offenses, and subsequent to requesting a jury trial and informing the trial court of his intent to file a motion to suppress if the State 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 was now in jeopardy. Id. at 314–15. The trial judge declared a mistrial, explaining that “it was stated clearly, perhaps too clearly, that it was anticipated that a guilty plea was going to be entered,” and that this reference to the guilty plea had been “implanted” in her mind. Cornish v. State, 272 Md. at 315. Cornish then moved to dismiss the case on the ground of double jeopardy. Id. at 316, and that motion was denied by the motion judge. Id. at 316.

In affirming, the Court of Appeals noted that the most significant guideline for the exercise of the trial judge’s discretion is that declaring a mistrial is not to be lightly undertaken a mistrial; rather, a mistrial is to be declared only where “manifestly necessary.” Id. at 318. The Court applied the Perez standard to the situation faced by the trial court in that case, holding that, under the circumstances there presented, there was manifest necessity for the declaration of a mistrial, and the trial judge did not abuse her discretion in doing so. Id. at 320.

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, 22 U.S. at 580. This is so in order to ensure fairness to the defendant. 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. Arizona v. Washington, 434 U.S. 497 (1978). And, even if the first trial is not completed, a second prosecution may be grossly unfair, as 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. Id. The danger of such unfairness to the defendant exists whenever a trial is aborted before it is completed. Id. Consequently, as a general rule, the prosecutor is entitled to one, and only one, opportunity to require an accused to stand trial. Id. at 503–505.

Here, there was no question that Mansfield was placed in jeopardy once he was put to trial and the trial judge began to hear evidence. See In re Kevin, 402 Md. 624, 636 (2008). The trial judge knew, as any trial judge would, that part of her function in this trial was to make credibility determinations. As fact-finder, the trial judge should have known and, indeed, anticipated the possibility, that the case could come down to a “he said/she said” case, that she would have to choose directly, and only, between the credibility of the complaining witness and that of Mansfield. This pre-jeopardy knowledge possessed by the trial judge, bearing as it did on the credibility of both the complaining witness and Mansfield, had direct significance to the ultimate issue she had to decide: Mansfield’s guilt.

Under these circumstances, when it was the court that was 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, was impaired, manifest necessity to declare a mistrial did not exist.

As such, it was an abuse of discretion for the trial judge to declare a mistrial, and retrial of Mansfield was therefore barred by the double jeopardy clause.

Accordingly, the judgment of the Court of Special Appeals was reversed and the case remanded.

COMMENTARY: As acknowledged in Cornish, retrial is barred when there are “reasonable alternatives to a mistrial” that are “feasible and could cure the problem.” Cornish, 272 Md. at 320.

In this case, the information that prompted the trial judge to  declare a mistrial was the same information she had prior to the attachment of jeopardy. Because the reasonable alternative of recusal existed prior to the attachment of jeopardy, retrial of the defendant, after a mistrial was declared, was barred by the double jeopardy clause.

DISSENT: The record showed that Mansfield 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. Because Mansfield never moved for the trial judge’s recusal, Mansfield voluntarily ran the risk that the trial court would find it necessary to declare a mistrial. As such, the judgment of the Court of Special Appeals should have been affirmed.

Constitutional Law

Standing

BOTTOM LINE: Nonprofit watershed advocacy group had standing to initiate judicial review of a Maryland Department of the Environment decision granting a permit allowing the development of a town center because a member of the nonprofit alleged sufficient harm to his aesthetic, recreational and economic interests.

CASE: Patuxent Riverkeeper v. Maryland Department of Environment, No. 139, Sept. Term, 2010 (filed Sept 30, 2011) (Judges Bell, BATTAGLIA, Greene, Adkins & Barbera) (Judges Harrell & Murphy dissenting). RecordFax No. 11-0930-21, 41 pages.

FACTS: Patuxent Riverkeeper (“Riverkeeper”) was a nonprofit watershed advocacy organization affiliated with the Waterkeeper Alliance in New York, an umbrella group that licensed and linked Waterkeepers internationally. The sole purpose of the Patuxent Riverkeeper was to protect, restore, and advocate for clean water in the Patuxent River and its connected ecosystem.

In this case, Riverkeeper sought judicial review of a decision of the Maryland Department of the Environment (“MDE”) to issue a “non-tidal wetlands permit” to Petrie/ELG Inglewood, LLC, now known as Woodmore Towne Centre, LLC, in connection with the development of the Woodmore Towne Centre. Specifically, Woodmore Towne Centre applied for the permit to construct a road extension and stream crossing in order to provide primary access into the development.

During the administrative proceeding before MDE, Riverkeeper submitted written comments against the permit, asserting that Woodmore Towne Centre had not demonstrated that the proposed road extension and stream crossing had “no practicable alternative” that would “avoid or result in less adverse impact on nontidal wetlands.” After MDE approved the permit, Riverkeeper initiated a judicial review action in circuit court, after which both MDE and Woodmore Towne Centre filed motions to dismiss for lack of standing, and the circuit court granted the motion.

Riverkeeper appealed to the Court of Appeals, which reversed the judgment of the circuit court.

LAW: Section 5-204(f) of the Environment Article, enacted by Chapters 650 and 651 of the Maryland Laws of 2009 and effective January 1, 2010, enables a person to seek judicial review of an administrative determination by the Maryland Department of the Environment regarding certain environmental permits, including those affecting non-tidal wetlands, if the person satisfies the federal rubric for standing. Prior to this enactment, standing to challenge permitting decisions by MDE was limited to a person who was “aggrieved” by the agency’s action, namely one whose personal or property rights were adversely affected by the decision. See Bryniarski v. Montgomery County Board of Appeals, 247 Md. 137, 144 (1967). In enacting Chapters 650 and 651, the General Assembly embraced the “broader” notion of standing applied in federal courts, to enable both individuals and organizations to challenge environmental permits in judicial review actions under certain conditions to exist.

With respect to cases involving challenges to specific types of permits, Maryland courts have defined “aggrievement” to mean the ownership of property either adjacent to, or within “sight or sound” range of the property that is the subject of the plaintiff’s complaint. The Court of Appeals has held that an association lacks standing to sue where it has no property interest of its own, distinct from that of its individual members. Citizens Planning & Housing Ass’n v. County Executive, 273 Md. 333 (1974).

Thus, under Maryland law, if an individual or organization is seeking to redress a public wrong, the individual or organization has no standing unless the wrong suffered is different in character and kind from that suffered by the general public. Medical Waste Ass’n v. Maryland Waste Coalition, 327 Md. 596 (1992). By contrast, under federal law, a party has standing if its use and enjoyment of the area is affected by the challenged action/decision, or if the party has a particular interest in the property affected. Federal law also makes little distinction between individual and group standing.

In the touchstone case involving environmental standing, Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc., the Supreme Court determined that to satisfy standing in an environmental action, a plaintiff must show that: (1) it has suffered an “injury in fact’ that is concrete and particularized, actual or imminent, and not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely as opposed to merely speculative, that the injury will be redressed by a favorable decision. Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc., 528 U.S. 167, 180-81 (2000). An environmental group can satisfy standing federally if its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization’s purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Id. at 181.

In Friends of the Earth, the Court emphasized that injury in fact has included a negative impact on the organizational representatives’ recreational or aesthetic appreciation of the affected area. Id. at 181-82. Such aesthetic, recreational, or economic interests or values, however, must be based upon a demonstrable record of regularly utilizing the affected area, as well as a desire to do so in the future. Id.

For instance, in another case, the Supreme Court reasoned that an organizational representative’s affidavit indicating a desire to “visit several unnamed National Forests in the future” was not sufficiently particularized to establish a cognizable aesthetic or recreational interest. Summers v. Earth Island Institute, 555 U.S. 488, —- (2009). Similarly, asserting a past injury to aesthetic or recreational interests, without demonstrating a continuing or future harm, does not suffice. Id. Rather, a genuine nexus must exist between the alleged injury and the challenged conduct. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). In addition, the remedy requested must effectively abate illegal conduct and prevent its recurrence. Friends of the Earth, 528 U.S. at 185-86.

At the time the new standing test was embraced by the Maryland Legislature, not only had the Supreme Court spoken, but other federal appellate courts had already had an opportunity to interpret the tenets of the Supreme Court cases. For instance, in Sierra Club v. Franklin County Power of Illinois, LLC, the Court of Appeals for the 7th Circuit determined that a Sierra Club member adequately alleged an injury by asserting that she and her family had taken trips to “fish, kayak, camp, and enjoy the natural beauty and clean environment” of a lake, located three miles from the site of a proposed power plant, and that if the plant were built, she would cease her recreational trips. Sierra Club v. Franklin County Power of Illinois, LLC, 546 F.3d 918, 925 (7th Cir.2008). The Maryland General Assembly referred to limitations on standing in environmental cases in the Environmental Matters Committee Floor Report to House Bill 1569, noting that federal cases have at times limited the application of the broad standing requirements.

In the present case, the parties differed not regarding the test for standing, but in its application to the factual circumstances presented. The Western Branch is a tributary of the Patuxent River located in Prince George’s County, Maryland, and the mainstem of the tributary is approximately 20 miles long. Riverkeeper asserted that its member, David Linthicum, suffered an injury in fact, because his aesthetic, recreational, and economic interests in the Patuxent River, particularly the Western Branch watershed, were jeopardized by the road extension and stream crossing allowed by the permit. In particular, Linthicum asserted that the upstream impacts caused by the crossing would cause “nitrogen and other pollutants” to leach into waters downstream. He further described the negative impact of the issuance of the MDE permit on the wetlands and streams in the Western Branch, where he most often paddled and cleared blockages in the waterway, thereby jeopardizing his aesthetic and recreational interests.

On the basis of Linthicum’s affidavit and subsequent hearing testimony, the circuit court found that Linthicum was “a frequent recreational paddler” on the Western Branch of the Patuxent River and also had an “aesthetic interest in the beauty of the river and the cleanliness of its water.” The court further found that Linthicum had an economic interest in navigating the river, in that he charted its tributaries to produce maps and guides that he sold to the Riverkeeper and others.

Thus, the injury Linthicum alleged on behalf of Riverkeeper was not merely “conjectural or hypothetical” as the circuit court incorrectly determined, but was quite actual. As such, Riverkeeper, through its member Lithincum, satisfied the federal standing requirements, and the circuit court erred in granting the motions to dismiss for lack of standing on the part of Riverkeeper.

Accordingly, the circuit court judgment was reversed.

COMMENTARY: In addition, in his affidavits and testimony, Linthicum alleged, referring to scientific articles as well as his own experiences, that stream crossings at headwaters and wetlands, such as that constructed at the boulevard in question, could cause negative affects downstream on the Western Branch watershed. And, at a hearing before the circuit court regarding the motions to dismiss, the Chief Executive Officer of Riverkeeper described methods to abate the harm caused by the issuance of the permit, including rescission of the permit, as well as more intensive mitigation efforts.

Thus, not only was the injury suffered by Lithincum actual in nature, but it shared a sufficient nexus to the issuance of the non-tidal wetlands permit, thereby meeting the additional requirement for standing under federal law.

DISSENT: According to the dissent, the majority watered down important federal standing requirements. While Linthicum’s interests were germane to that of Riverkeeper, Linthicum failed to demonstrate, on the record, that he suffered a concrete and particularized injury in fact or that his alleged harms were traceable fairly to the activities under the challenged permit. And, even assuming arguendo that Linthicum’s activities were within the affected area, or that his alleged harms could be traced to the activities allowed by the MDE permit, his fear of harm was not reasonable based on his affidavit and circuit court testimony.

PRACTICE TIPS: Nontidal wetlands, commonly referred to as marshes, swamps, bogs, wet meadows, and bottomland forests, are protected by a permitting process administered by the Maryland Department of the Environment from unnecessary and avoidable impact.