Argued: February 2, 2017
Court for Cecil County Case Nos. 07-K-15-000189;
Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten,
appeal involves a mutual shoot-out between rivals, competing
criminal cases arising from separate alleged assaults between
those rivals, and a prosecutor who learns during trial of a
potential conflict of interest, because his key witness is
represented by the prosecutor's brother, a public
defender, in the competing criminal case. First, Darrell
Ellis filed criminal charges against the Respondent, Andrew
Daniel Baker, for an incident that occurred on January 13,
2015, where neighbors reported shots being fired both into
and from within a residence in Elkton, Maryland ("the
First Incident"). In exchange, Mr. Baker filed criminal
charges against Mr. Ellis for an alleged assault that
occurred on January 15, 2015 ("the Second
Incident"). At Mr. Baker's trial for allegedly
assaulting Mr. Ellis and his girlfriend, Kimberly Mitchell,
during the First Incident, it was revealed that Mr.
Ellis' defense counsel for the charges related to the
Second Incident was the brother of the assistant state's
attorney who was prosecuting Mr. Baker for the charges
stemming from the First Incident. When the trial court
learned this information, it declared a mistrial over Mr.
Baker subsequently filed a motion to dismiss his indictments
on grounds of double jeopardy, which was denied. Mr. Baker
noted an interlocutory appeal to the Court of Special
Appeals, which reversed the decision of the lower court and
ordered the indictments be dismissed. The State then
petitioned this Court for a writ of certiorari, requesting
that we review whether the mistrial was supported by manifest
following reasons, we shall hold that the trial court's
declaration of a mistrial over Mr. Baker's objection was
not supported by manifest necessity, and thus the mistrial
amounted to an abuse of discretion. Therefore, retrial of Mr.
Baker is barred by double jeopardy principles, and the
circuit court erred in denying Mr. Baker's motion to
dismiss the indictments. Accordingly, we shall affirm the
judgment of the Court of Special Appeals.
January 13, 2015, police officers responded to reports of gun
fire at a residence in Elkton, Maryland. Neighbors reported
that gunshots were coming from inside the residence, and, at
the same, a suspect on the outside was shooting into the
residence. Upon entering the residence, the police
found Mr. Baker and three other individuals hiding in a
bedroom. The police officers located a shotgun under the bed
and ammunition throughout the house. Following an
investigation, the police learned that Mr. Baker had
previously been convicted of a disqualifying offense, and
therefore was prohibited from possessing firearms and
ammunition. Accordingly, on January 14, 2015, the police
filed a statement of charges against Mr. Baker for illegal
possession of a firearm and ammunition. On February 4, 2015,
the State charged Mr. Baker, by indictment, with possession
of a firearm after having been convicted of a crime of
violence and possession of a firearm after being
convicted of a disqualifying offense.
March 11, 2015, Mr. Ellis filed an application for statement
of charges against Mr. Baker regarding the incident that
occurred on January 13. Mr. Ellis alleged that Mr. Baker
"shot his gun out the window at me an[d] my girlfriend
because of something my cousin did to him." On April 15,
2015, the State charged Mr. Baker in a separate case with
first- and second-degree assault against Mr. Ellis, and
first- and second-degree assault against Ms. Mitchell. The
State then filed a motion to consolidate this latter case
with the illegal possession of a firearm case for trial,
which the circuit court granted on July 10, 2015.
same day that Mr. Ellis filed charges against Mr. Baker, Mr.
Baker also filed an application for statement of charges
against Mr. Ellis. Mr. Baker alleged that Mr. Ellis had
assaulted him on January 15, 2015-two days after the First
Incident. Based on this allegation, the State
charged Mr. Ellis with second-degree assault and reckless
endangerment against Mr. Baker.
Baker's consolidated trial on the illegal firearm
possession charges and the assault charges began on July 22,
2015, in the Circuit Court for Cecil County, Judge Brenda A.
Sexton presiding. The Assistant State's Attorney
prosecuting the case was Karl Fockler ("ASA
Fockler"), and Mr. Baker was represented by Michael
Halter as a Panel Assistant Public Defender. At the outset of
proceedings, ASA Fockler informed the court that he had
spoken to Mr. Ellis and Ms. Mitchell two days earlier to
ensure that they knew about the court date and had been
properly served with their subpoenas. The morning of the
trial, ASA Fockler spoke to Mr. Ellis around 9:00 a.m. and
Mr. Ellis stated that "he would be on his way in
shortly." Following that conversation, a detective
informed ASA Fockler that Mr. Ellis told the detective
"that he had been threatened in some form as to not
appear in court, " and that he was not coming in. Upon
learning this information, ASA Fockler asked the court to
issue body attachments for both Mr. Ellis and Ms. Mitchell.
Defense counsel did not oppose ASA Fockler's request. The
circuit court then stated that it would issue the body
attachments, and the court recessed at 10:35 a.m.
court reconvened at 11:49 a.m. At that time, both parties
indicated that they anticipated that the trial would last
"into tomorrow." The court then noted that during
the recess ASA Fockler had asked the court not to issue the
body attachments for Mr. Ellis and Ms. Mitchell. ASA Fockler
confirmed that he had made this request, and stated that Mr.
Ellis and Ms. Mitchell had "appeared to the State's
Attorney's Office." ASA Fockler also stated that he
had met with Mr. Ellis and Ms. Mitchell "and verified
their presence here this morning." Following this
statement, the circuit court began the jury selection process
by calling roll and conducting voir dire. After the jury was
impanelled and sworn, the court asked both parties if
there were any other preliminary matters that needed to be
addressed. Both parties responded in the negative, and the
court took another recess at 1:47 p.m.
court reconvened at 3:04 p.m. without the jury present. At
that time, the court stated that ASA Fockler had presented a
motion to compel testimony during the recess. Defense counsel
confirmed that he had received the motion to compel
approximately ten minutes earlier. In the motion to compel,
ASA Fockler averred that Mr. Ellis "is a material State
witness and victim" in the case, that he had
"provided substantive, material information which is to
be presented at trial, " and that Mr. Ellis'
testimony "is necessary to and furthers the public
interest." Futhermore, ASA Fockler averred that "on
the morning of July 22, 2015, " i.e.
the day of trial, Mr. Ellis advised ASA Fockler "that he
intends to refuse to testify and to invoke his Fifth
Amendment Privilege against self[-]incrimination."
(Emphasis added.) Finally, ASA Fockler averred "[t]hat
the State has agreed to offer [Mr.] Ellis immunity from
prosecution in relation to any information directly or
indirectly derived from the testimony of [Mr.] Ellis and
related to the above[-]captioned matter." ASA Fockler
did not explain to the court why he waited until after the
jury had been selected to inform the court and defense
counsel of Mr. Ellis' refusal to testify.
counsel objected to the motion, stating that it was in
violation of Maryland Rule 4-263 and "extremely
prejudicial to the defense." The court heard argument
from both parties, then announced its ruling as follows:
I would like to proceed by way of calling Mr. Ellis into the
courtroom. I would like to indicate to him that it is my
intention to deal with this motion, advise him that the
state's attorney is offering him immunity, and that he is
required to testify in this matter.
counsel again noted his objection for the record. Defense
counsel then indicated that he intended to cross-examine Mr.
Ellis regarding his pending charges related to the Second
Incident, "because it shows a pattern, it shows a state
of mind and an association between [Mr. Baker] and Mr.
Ellis." Furthermore, defense counsel requested
"that someone call the Public Defender's Office,
" because it was his understanding that Mr. Ellis'
defense attorney for his pending charges related to the
Second Incident was E.B. Fockler ("PD Fockler"),
ASA Fockler's brother. Immediately following this
revelation, the court took a recess at 3:16 p.m.
court reconvened at 4:01 p.m. without the jury present. The
court recounted for the record that ASA Fockler had filed a
motion to compel Mr. Ellis' testimony, and he intended to
offer Mr. Ellis immunity in connection with that testimony;
that Mr. Ellis had criminal charges pending against him,
which were filed by Mr. Baker; and that Mr. Ellis was being
represented by PD Fockler, ASA Fockler's brother. The
court then stated,
In light of these facts and circumstances, I do not believe
it is possible for me to continue in this matter, for us to
continue this trial. I do not think that I can conduct a
hearing and/or permit the testimony of Mr. Ellis accompanied
by his attorney being offered immunity when his attorney is
the brother of the state's attorney.
In light of that, I am going to call the members of the jury
panel back in, I am going to declare a mistrial, and I am
going to excuse them. Thereafter, I will deal with [ASA]
Fockler, or actually the state's attorney's office
and [defense counsel] with regard to rescheduling this
counsel objected to the mistrial. The court then reiterated,
Again, as I've indicated, I did speak to counsel in
chambers so that the record is clear. I indicated that I do
not see how I can proceed at this time given these
I am going to call the jury back in. I'm going to advise
them that an issue has come up, that it cannot be resolved,
it's through no fault of anyone, but I'm declaring a
mistrial and they are excused.
bailiff then brought the jury back into the courtroom. The
court told the jurors,
[T]here has been an issue that has arisen that we have been
unable to resolve. It is through no fault of any of the
parties here today. However, in connection with this matter I
feel that I am compelled to declare a mistrial, so your
service in this matter will be over today.
dismissing the jury, the court stated that during the
previous forty-five-minute recess it had asked the parties to
"go upstairs to reset this matter." Next, the court
asked ASA Fockler if he would be continuing with the case:
THE COURT: Mr. Fockler, I understand that you, sir, may not
be continuing with this matter. Is that correct?
[ASA] FOCKLER: You mean as the prosecutor for this case?
THE COURT: Yes, sir.
[ASA] FOCKLER: I don't know that that's necessarily-I
mean, I'm not sure how that's going to be handled,
Judge. We haven't figured that part out.
discussing possible dates for the new trial, the court again
questioned ASA Fockler:
THE COURT: Mr. Fockler, how are you going to resolve this
issue for the next trial date?
[ASA] FOCKLER: I don't know, Judge, but we're going
to have to figure that out.
THE COURT: Okay. Someone else in your office will be able to
[ASA] FOCKLER: I'm going to go back and we're going
to discuss it and see what we can do for that to occur,
after this exchange, the court adjourned.
The Motion to Dismiss
31, 2015, Mr. Baker filed a Motion to Dismiss Indictment
Based Upon Double Jeopardy Grounds. In his motion to dismiss,
Mr. Baker recounted some of the discussion that occurred in