Bell v. State

⁹⁰ Lowe, J., delivered the opinion of the Court. - the law - “ ‘Tis funny about th’ constitution,” said Mr. Dooley on the Choice of Law, “[i]t reads plain, but no wan can undherstant it without an interpretation.” And what could be plainer than the simple elliptical phrase in the fifth amendment of our Constitution: “No person shall... be subject for the same offense to be twice put in jeopardy of life or limb____” Yet courts are in a constant quandary as to the meaning and extent of those few words. In the case at bar, after having read and having analyzed countless cases on a limited aspect of that fifth amendment’s Double Jeopardy Clause, two outstanding trial judges confessed in a written opinion that they were left “somewhat in a state of confusion,” even after (or perhaps because of) numerous appellate attempts to clarify this fifth amendment protection. By process of elimination we know that there are a few “venerable principles of double jeopardy jurisprudence”, e.g.: 1. A judgment of acquittal by court or jury may not be appealed and terminates the prosecution when a second trial would be permitted by a reversal.

Green v. United States, 355 U. S. 184, 188 (1957); and 2. The successful appeal of a judgment of conviction, on any ground other than the insufficiency of evidence to support the verdict, Burks v. United States, 437 U. S. 1 , 57 L.Ed.2d 1 (1978), poses no bar to further prosecution on the same charge. See United States v. Scott, 437 U. S. 1 , 57 L.Ed.2d 65 (1978). These after-judgment concepts take cognizance of the primary purpose of the Double Jeopardy Clause, i.e., to protect the integrity of a final judgment.

See Crist v. Bretz, 437 U. S. 28 , 57 L.Ed.2d 24, 30 (1978); United States v. Scott, ⁹¹ 437 U. S. 82 , 57 L.Ed.2d at 74. They are not, therefore, troubled by “the valued right of a defendant to have this trial completed by the particular tribunal summoned to sit in judgment on him.. . .” Downum v. United States, 372 U. S. 734, 736 (1963). From the same simple clause in the fifth amendment (that reads so plain), the Supreme Court “has also developed a body of law guarding the separate but related interest of a defendant in avoiding multiple prosecutions even where no final determination of guilt or innocence has been made. Such interests may be involved in two different situations: the first, in which the trial judge declares a mistrial; the second, in which the trial judge terminates the proceedings favorably to the defendant on a basis not related to factual guilt or innocence.” United States v. Scott, 437 U. S. 82 , 57 L.Ed.2d at 75 .

Much of the constitutional law interpreting the Double Jeopardy Clause arises from mistrials declared at the urging of the prosecutor or sua sponte by the judge. Whenever a trial judge declares a mistrial on his own motion, or upon that of the prosecutor, he all but invariably contemplates that the prosecutor will be permitted to proceed anew,notwithstanding the defendant’s plea of double jeopardy. See Lee v. United States, 432 U. S. 23, 30 (1977). That does not occur, however, unless taking all the circumstances into consideration, there was a “manifest necessity” for the judicial abortion, or the ends of public justice would otherwise be defeated.

See United States v. Perez, 22 U. S. (9 Wheat.) 579 (1824); Gori v. United States, 367 U. S. 364 (1961); Downum v. United States, supra; United States v. Jorn, 400 U.S. 470 (1971); Illinois v. Somerville, 410 U. S. 458 (1973); Arizona v. Washington, 434 U. S. 497 , 54 L.Ed.2d 717 (1978). When a mistrial is granted upon a defendant’s own motion, the “manifest necessity” standard is not applicable. To the contrary, “a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant’s motion is necessitated by prosecutorial or judicial error.” United States v. Jorn, 400 U. S. at 485 .

This is so because it is the defendant himself who retains “primary ⁹² control over the course to be followed in the event of such error.” United States v. Dinitz, 424 U. S. 600, 609 (1976). While the cases recognized (mostly by dicta) that limitations existed to the general rule that a defendant’s motion for mistrial waives objection to subsequent mistrial, the breadth of those limitations had not yet been defined in Maryland when Judges Pollitt and Truitt decided the question in the case at bar. Judge Thompson had anticipated the problem in Thompson v. State, 38 Md. App. 499, 502 (1978): “Although the double jeopardy clause is designed to protect the defendant against multiple punishments or repeated prosecutions for the same offense, United States v. Dinitz, 424 U. S. 600 , 96 S. Ct. 1075 , 47 L.Ed.2d 267 (1976), a request by a defendant for a mistrial ordinarily removes any bar to reprosecution even though the motion was necessitated by prosecutorial or judicial error. Lee v. United States, 432 U. S. 23 , 97 S. Ct. 2141 , 53 L.Ed.2d 80 (1977); United States v. Dinitz, supra.

This rule is not absolute and where a mistrial is the product of prosecutorial or judicial overreaching, the double jeopardy clause prevents a retrial. Lee v. United States, supra; United States v. Jorn, 400 U. S. 470 , 91 S. Ct. 547 , 27 L.Ed.2d 543 (1971). The exact boundaries of prosecutorial overreaching, necessary to bar retrial, have not been specifically delineated by the Supreme Court. Other courts which have considered the point generally hold that prosecutorial error attributable to negligence does not amount to overreaching, People v. Baca, Colo., 562 P. 2d 411 (1977), while intentional misconduct calculated to gain a more favorable chance for conviction or to abort a trial that is going badly prevents reprosecution.

United States v. Kessler, 530 F. 2d 1246 (5th Cir. 1976). The appellant argues that prosecutorial overreaching is not confined to intentional misconduct but encompasses gross negligence as well. Commonwealth v. Bolden, 472 Pa. 602 , 373 A. 2d 90 (1977). Although in Bolden , ⁹³ the Court noted that it is unclear from the decisions of the Supreme Court whether overreaching is limited to intentional misconduct or whether it extends to gross negligence on the part of the prosecutor or judge, it concluded gross negligence was encompassed in the term after an examination of the purposes underlying the double jeopardy clause.

The Court stated: ‘A defendant forced to request a mistrial by conduct which conspicuously fails to satisfy professional standards should not be required to bear the heavy burdens incident to reprosecution.’ 373 A. 2d at 109 .” Unfortunately, we decided in Thompson that is was not necessary to meet the question in that case: “Although neither the Court of Appeals nor this Court has specifically addressed this issue, we need not define the boundaries of prosecutorial overreaching in this case because no matter what standard we apply the appellant has failed to demonstrate the existence of any conduct which would invoke the bar of double jeopardy.” Thompson v. State, 38 Md. App. at 503 . One month after the Wicomico County Circuit Court opinion was filed in the present case, denying the motion to dismiss on double jeopardy grounds, we decided Loveless v. State, 39 Md. App. 563 (1978). There, Judge Moylan made it abundantly clear that this Court did not agree with the Pennsylvania holding in Bolden, supra (cited in Thompson, supra), that “gross negligence” is encompassed in the term “prosecutorial overreach” for purposes of denying retrial after a mistrial on defendant’s motion. “There is one limitation on the foreclosing effect of a defense request for a mistrial. If the defense is placed in an untenable situation where it has no choice but to request a mistrial because of prosecutorial or judicial ‘overreaching,’ then the ⁹⁴ mere fact that the defense requested the mistrial will not operate as a waiver of later double jeopardy claims.

A critical distinction is made, however, between deliberate ‘prosecutorial or judicial overreaching,’ on the one hand, and ‘prosecutorial or judicial error,’ on the other hand. Mere error, judicial or prosecutorial, even where it is grievous enough 1) to cause a mistrial or 2) to cause an appellate reversal, will not bar a subsequent retrial.” Loveless v. State, 39 Md. App. at 565 . Unfortunately again, as pointed out by appellant Bell, the Loveless language is also dicta. The case did not require such definition, and we concluded that we saw: “. . . nothing remotely approaching the prosecutorial ‘overreaching’ that would be necessary to engage the gears of the double jeopardy clause and to bar a retrial of this appellant.” Id. at 569 .

Two days after Judge Moylan’s opinion was filed, the Supreme Court decided United States v. Scott, 437 U. S. 82 , 57 L.Ed.2d 65 , which held generally that where a defendant seeks to have his trial terminated without any submission to a jury as to guilt or innocence, an appeal by the government from his successful effort to do so does not offend the Double Jeopardy Clause. Scott acknowledges the Dinitz limitation that “(t]he Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions.” United States v. Dinitz, 424 U. S. at 611 (emphasis added). It is apparent that this narrow limitation constitutes the sole exception to the basic rule that a defendant who has moved ⁹⁵ for a mistrial in an earlier proceeding has, by that very motion, waived further objection to a subsequent retrial. “We think that in a case such as this the defendant, by deliberately choosing to seek termination of the proceedings against him on a basis unrelated to factual guilt or innocence of the offense of which he is accused, suffers no injury cognizable under the Double Jeopardy Clause if the Government is permitted to appeal from such a ruling of the trial court in favor of the defendant. We do not thereby adopt the doctrine of ‘waiver’ of double jeopardy rejected in Green, supra.

Rather, we conclude that the Double Jeopardy Clause, which guards against Government oppression, does not relieve a defendant from the consequences of his voluntary choice. In Green the question of defendant’s factual guilt or innocence of murder in the first degree was actually submitted to the jury as a trier of fact; in the present case, respondent successfully avoided such a submission of the first count of the indictment by persuading the trial court to dismiss it on a basis which did not depend on guilt or innocence. He was thus neither acquitted nor convicted, because he himself successfully undertook to persuade the trial court not to submit the issue of guilt or innocence to the jury which had been empaneled to try him. The reason for treating a trial aborted on the initiative of the trial judge differently from a trial verdict reversed on appeal, for purposes of double jeopardy, is thus described in Jorn, supra, at 484 , 27 L Ed 2d 543 , 91 S Ct 547 (opinion of Harlan, J.): ‘[I]n the first situation the defendant has not been deprived of his option to go to the first jury, and, perhaps, end the dispute then and there with an acquittal.

On the other hand, where the judge, acting without the defendant’s consent, aborts the proceeding, the defendant ⁹⁶ has been deprived of his “valued right to have his trial completed by a particular tribunal.” ’ We think the same reasoning applies in pari passu where the defendant, instead