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State v. Marvel

Superior Court of Delaware, Kent

April 10, 2017


          Submitted: March 31, 2017


          Tiphanie Miller & Laura Nastase Najemy, Deputy Attorneys General, DEPARTMENT OF JUSTICE, Wilmington, Delaware, Attorneys for the State.

          Andre Beauregard, Esquire, & Ronald Poliquin, Esquire, BROWN, SHIELS & BEAUREGARD, LLC, Dover, Delaware, Attorneys for the Defendant.

          OPINION & ORDER


         The State charged Defendant Michele Staats Marvel (hereinafter "Ms. Marvel") with three counts of Unlawful Access of Prescription Monitoring Program Information in violation of 16 Del. C. § 4798(t) and one count of Making a False Statement in violation of 11 Del. C. §1245A. Ms. Marvel waived her right to a trial by jury and opted for a bench trial. After the first day of testimony, the trial judge declared a mistrial after he discovered information that made it impossible for him to proceed without the appearance of judicial bias. The case is now set for retrial before a new judge. However, Ms. Marvel filed this motion to dismiss on double jeopardy grounds arguing that the mistrial was not one of manifest necessity, and therefore, a second trial is barred. The State opposes this motion arguing that there was manifest necessity to declare the mistrial, and therefore, the double jeopardy clause is not a bar to retrial. For the reasons set forth below, Ms. Marvel's motion is DENIED.


         Ms. Marvel moves for dismissal of the charges brought against her. On October 27, 2015, Ms. Marvel was arrested, and after she waived her right to a trial by jury, her case was scheduled for a bench trial. Within a week of when Ms. Marvel's trial was to begin, an investigator from the Department of Justice contacted Ms. Marvel's mother. The investigator asked Ms. Marvel's mother whether she had worked for the courts and if she had ever worked for the trial judge. The Department of Justice conducted its investigation of Ms. Marvel's mother without the knowledge of defense counsel.

         The trial judge conducted an office conference on February 21, 2017, the day before the start of trial. During the course of that conference, the State informed the trial judge and defense counsel that about a year and a half ago, November of 2015, when I started trying this case, I met with [defense counsel]. He did mention . . . your Honor had perhaps worked with the defendant's mother in the past and your Honor had specifically requested as a favor that [defense counsel] take this case. We did contact the defendant's mother and she indicated that she had worked in Chambers but not with your Honor directly.[1]

         When the State made this information known, both the trial judge and defense counsel indicated that they had no recollection of these circumstances.[2]Defense counsel reiterated in his reply brief that he had no knowledge of such a conversation nor did he have knowledge of the trial judge asking him to take the case as the Office of Defense Services appointed him to represent Ms. Marvel.[3]After learning that the Court did not have a concern about a potential conflict of interest, the State consented to a bench trial.[4] Ms. Marvel's defense counsel informed the Court that he did not see a conflict.[5] After discussing the evidence that both parties intended to present during the trial, the trial judge consented to a bench trial.[6]

         On February 22, 2017, Ms. Marvel's case proceeded to trial. On the first day of trial, the State called five witnesses. At the end of the day, the Court set the trial to reconvene on February 27, 2017. However, on February 23, 2017, the trial judge sent an email to counsel stating

[i]t has come to his attention that the defendant in this case is [a friend's] daughter. I think this presents a problem with my going forward to the case. Moreover, I do not believe that the problem can disappear simply by having counsel 'agree that we are satisfied that the Court will be completely impartial' or any such thing. I am open to hearing any input anyone has on the subject. . . . Since counsel for the defendant first requested a bench trial, I'm a little surprised that this fact wasn't made known to me before we started. Possibly it wasn't known by him either. In any event, I certainly do not look at this as a fault of either the State or the Court. Hence, no issue of double jeopardy would come into play.[7]

         That same day, the trial judge held a teleconference with the parties to determine how to proceed. During that teleconference, the trial judge informed the parties that he "was told that defendant is [a friend's] daughter."[8] The trial judge informed the parties that he has "known [her] for a long time and will see her with some regularity."[9]

         In response, defense counsel informed the Court that he was not aware of any relationship between the defendant and the Court.[10] He then reminded the trial judge of the conversation during the pretrial conference where the State informed the Court of a potential conflict due to Ms. Marvel's mother working in the court system.[11] The trial judge responded that he did not recall such a conversation.[12] The judge further maintained that he did not think there was any way for him to proceed.[13] The State concurred in this decision.[14] Defense counsel responded

[a]ll right. I mean, I don't think I really have a say in what . . . . I don't have a problem with Your Honor but I know the position that Your Honor would be in and I can see that position. The only thing I would mention is that, you know, we're half way through and where we go from here.[15]

         When the trial judge informed the parties that they would have to start the trial again, defense counsel merely responded with "[a]ll right."[16]

         Following the teleconference, the trial judge issued an order the following day, February 24, 2017, declaring a mistrial. The Order stated

[b]ecause of the belated understanding of the Court that Defendant Marvel is the daughter of a long time friend of the bench trial Judge, who is, in essence, the entire jury in this case, the continuation of the trial (presently approximately one-half completed) cannot go forward to verdict. To state the obvious, this is the equivalent of all twelve jurors, after the first day of testimony, reporting to the Court that they are friends with the defendant's mother, but had been unaware of that association until the completion of the first day of trial. Upon application of the State, without comment by the defense, and in concordance with the belief of the Court, a MISTRIAL, not the result of any impropriety on the part of the State or the Court, must be declared.[17]

         After the Court declared a mistrial and the case was set to proceed again before a new judge, Ms. Marvel filed a motion to dismiss arguing that double jeopardy precludes a retrial of the charges against her. She argues that double jeopardy attached at the moment the Court swore in the first witness, and that the double jeopardy clause bars a retrial where a trial judge sua sponte declares a mistrial unless there is a showing of manifest necessity. According to Ms. Marvel, a high degree of necessity is required to retry a case under these circumstances, and the declaration of a mistrial in her case was not a necessity. Namely, she argues that because the trial judge had knowledge of this information prior to the start of trial, the mistrial declaration does not meet the high degree of necessity required.

         In furtherance of this argument, Ms. Marvel argues that case law in other jurisdictions have adopted a rule that precludes a finding of manifest necessity when the trial judge obtained the information leading to the eventual mistrial declaration prior to jeopardy attaching.[18] She argues that these cases provide persuasive authority for this Court to adopt a similar rule. Therefore, Ms. Marvel maintains that because the State made the trial judge aware of a potential conflict prior to the start of trial, a finding of manifest necessity is precluded. Under these circumstances, according to Ms. Marvel, the mistrial was not necessary as it did not contain an element of surprise. Ms. Marvel maintains that because the trial judge had knowledge of this information prior to jeopardy attaching, the judge had an alternative solution: had the trial judge recused himself when he first learned of a potential conflict prior to jeopardy attaching, the Court could have avoided declaring a mistrial. Finally, she further claims that negligence should negate manifest necessity because there was an alternative solution available.

         The State, in response, argues that the double jeopardy clause does not bar a retrial because Ms. Marvel consented to the mistrial when defense counsel failed to object to it and then agreed to a retrial during the teleconference. The State argues that when a defendant consents to a mistrial, the double jeopardy clause does not bar a retrial. However, even had Ms. Marvel not consented to this mistrial, the State emphasizes what it feels was manifest necessity for the declaration. The State maintains that it brought to the Court's attention a possible, previous work relationship with Ms. Marvel's mother. The State did not disclose the mother's name to the Court nor did the State or Defendant disclose the existence of a social relationship. Therefore, according to the State, the trial judge did not have the information later requiring the mistrial before jeopardy attached. The State maintains that the trial judge learned for the first time of the conflict of interest after the first day of trial. Once the trial judge learned of the conflict of interest, he determined that he could no longer be impartial. Therefore, according to the State, out of manifest necessity and the appearance of impartiality of the justice system, the trial judge appropriately declared a mistrial.

         Ms. Marvel filed a reply to the State's response arguing that defense counsel did object to the mistrial. Defense counsel argues that he merely acknowledged the position the trial judge was in but also pointed out the hardship a mistrial would create for Ms. Marvel given the trial was about halfway completed. Ms. Marvel argues that this was sufficient evidence of an objection to the mistrial declaration. Ms. Marvel then reiterated the same argument that there cannot be manifest necessity present in this case because the trial judge had knowledge of the conflict prior to jeopardy attaching.

         Here, under the circumstances of this case, the Court finds that the trial judge declared a mistrial out of manifest necessity. As there was manifest necessity, double jeopardy does not bar the State from retrying the charges against Ms. Marvel. This conclusion is not altered by whether defense counsel objected to the decision or not.[19] Therefore, this Court does not decide whether the defense counsel's actions prior to the declaration of a mistrial were sufficient to constitute an objection.


         Both the United States Constitution and the Delaware Constitution expressly include provisions that protect a person from being put in jeopardy twice for the same offense.[20] In a bench trial, jeopardy attaches as soon as a criminal court swears in the first witness.[21] As the Court heard testimony from five of the State's witnesses before declaring a mistrial, jeopardy clearly attached to the case at hand.

         However, the fact that jeopardy has attached merely means the double jeopardy provisions have been implicated, not that these provisions bar retrial.[22]The United States Supreme Court declared that the double jeopardy clause of the United States Constitution is not violated if a court declared a mistrial when "taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated."[23]

         The Delaware Supreme Court adopted the doctrine set forth by the United States Supreme Court in Perez, holding that a court must review a decision to grant a mistrial, absent a defense motion, to determine if there was a manifest necessity.[24] If a court grants a mistrial out of manifest necessity, the double jeopardy provisions do not bar a retrial.[25] The Court went on to state that

[i]n the absence of a motion by a defendant for a mistrial, the Perez doctrine of manifest necessity stands as a command to trial judges not to foreclose the defendant's option to continue with the trial, until a scrupulous exercise of judicial discretion leads to the conclusion that the end of ...

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