Curry v. State

BISHOP, Judge. In Curry v. State, 54 Md.App. 250 , 458 A.2d 474 (1983) (Curry I) we reversed appellants’ 1982 Circuit Court jury conviction for first degree murder, kidnapping and use of a handgun in the commission of a felony because the trial judge erred in denying their motions for mistrial based on prosecutorial misconduct. The new trial, which we mandated, is the subject of this appeal. Appellants raise three questions: I. Did the hearing judge err in denying appellants’ motion to dismiss on the ground of double jeopardy?

II

Did the trial judge err in denying appellants’ motion for mistrial?

III

Did the trial judge improperly impose sentence by punishing appellants for crimes of which they were acquitted? Before the second trial appellants’ motion for dismissal on the grounds of double jeopardy was denied. During their jury trial, appellants’ motion for a mistrial based on the prosecutor’s alleged improper actions and questions was also denied. Although it acquitted appellants of murder and use of a handgun in the commission of a felony, the jury nevertheless found them guilty of kidnapping.

After obtaining a presentence report and after hearing, the court sentenced each of the appellants to the maximum sentence permitted by the kidnapping statute, thirty years. (Md. Ann. Code, Art. 27, § 337 (1957 and 1982 Repl. Vol.). ¹⁷⁵ I. Double Jeopardy A criminal defendant is protected from multiple prosecutions for the same offense by the double jeopardy clause of the Fifth Amendment to the United States Constitution, United States v. Dinitz, 424 U.S. 600, 606 , 96 S.Ct. 1075, 1079 , 47 L.Ed.2d 267 (1976), made applicable to the states through the due process clause of the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784 , 89 S.Ct. 2056 , 23 L.Ed.2d 707 (1969).

The defense of former jeopardy while “not provided for by any provision of the Maryland Constitution, ... is a firmly established part” of our common law. Bennett v. State, 229 Md. 208, 212 , 182 A.2d 815 (1962); Hoffman v. State, 20 Md. 425, 433-434 (1863). The protection against double jeopardy is waived by a defendant who successfully moves for a mistrial, United States v. Scott, 437 U.S. 82, 93 , 98 S.Ct. 2187, 2195 , 57 L.Ed.2d 65 (1978); Lee v. United States, 432 U.S. 23, 32-33 , 97 S.Ct. 2141, 2146-2147 , 53 L.Ed.2d 80 (1977); Tabbs v. State, 43 Md.App. 20, 25 , 403 A.2d 796 cert. denied, 286 Md. 754 (1979) , unless the motion was precipitated by deliberate prosecutorial or judicial misconduct intended to provoke or goad the defendant into making the motion. Oregon v. Kennedy, 456 U.S. 667 , 102 S.Ct. 2083 , 72 L.Ed.2d 416 (1982); West v. State, 52 Md.App. 624 , 451 A.2d 1228 (1982).

Appellants urge that their cases fall into this narrow exception to the waiver rule. Without the specific prosecutorial intent, neither prosecutorial overreaching nor harassment will bar a retrial. Kennedy, 456 U.S. at 676 , 102 S.Ct. at 2089 , (quoting United States v. Scott, 437 U.S. at 93 , 98 S.Ct. at 2195 ). The specific intent required under Kennedy was explicated by this Court in West when Judge Moylan wrote that the prosecutor must have engaged in misconduct knowing it to be error, but desiring to ‘sabotage’ a probable loser either 1) by snatching an unexpected victory from probable defeat if not caught, or 2) by getting ¹⁷⁶ caught, thereby provoking the mistrial, averting the probable acquittal and living to fight again another day.

(A calculated sabotaging of a perceived ‘lost cause’ in either event; an indifference to whether he is caught or not). 52 Md.App. 635 , 451 A.2d 1228 . Under these circumstances double jeopardy bars a new trial because “[a] scheming prosecutor cannot be rewarded by being handed the very thing toward which he connives.” 52 Md.App. at 636 , 451 A.2d 1228 . To prevail, appellants must show that the prosecutorial misconduct, which we held had tainted their first trial, Curry /, meets the above criteria. The motion judge found that the prosecutorial misconduct at the first trial, although reprehensible, was “intended to win ... unfairly, rather than abort the trial ...” West, at 637, 451 A.2d 1228 .

Accordingly, he denied appellant’s motion to dismiss on the grounds of double jeopardy. We described the objectional conduct in Curry I: [T]he prosecutor represented to the jury “that the two youthful witnesses upon whom he relied” to bstablish the connection between the defendants and the decedent, had no ‘criminal’ records. That representation was true so far as it went. Malcolm, as we have seen, had a juvenile record,[ 1 ] while Tracy, although charged with assault ..., had not, at the time the statement was made been convicted of any crime.

Because the prosecutor’s statement about' the two youths was very similar, it was most certainly, under the circumstances of the instant case, deceiving to the jury. Moreover, characterization of the two witnesses as having lived ‘exemplary’ lives was a gross misstatement of fact designed to evince the trustworthiness of the witnesses and thus bolster the State’s circumstantial case. ¹⁷⁷ Aside from that egregious misstatement, the prosecutor then proceeded to compound his error by referring obliquely to the defendants’ not having testified. The assistant state’s attorney invited attention to the appellants’ not testifying by informing the jury that ‘a witness has an absolute right not to testify if it’s going to incriminate himself.’ He immediately noted that the ‘defendant does not have to testify’ and ‘you cannot draw any inferences of guilt.’ We think such an argument was contrived to circumvent the rule against commenting on a defendant’s declining to testify. The prosecutor showed the inferences that the defendants did not testify because by doing so they would incriminate themselves.

We believe that argument was improper and we condemn it. Irrespective of whether a defendant be guilty or innocent, under our system of law, he or she is entitled to a fair trial. The facts of the instant case cry out that appellants were denied that fundamental right by the prosecutor’s unfortunate remarks. We, therefore, reverse the judgments and remand the case for a new trial. 54 Md.App. 259 -79, 458 A.2d 474 .

We mandated a new trial because of “the assistant state’s attorney’s reckless misrepresentation of the character of the two State’s witnesses, as well as the prosecutor’s oblique manner of commenting upon the appellants’ exercise of their right not to testify.” Id. at p. 252, 458 A.2d 474 . Appellants argue, based on our characterization of the prosecutorial misconduct in Curry I, that under Kennedy and West , double jeopardy should have barred their retrial. They contend that the prosecutor, knowing that his conduct was improper, was “indifferent to the possibility that his improper remarks would impel a mistrial” and that the West criteria should be interpreted to include not only misconduct intended to “sabotage a probable loser” but also where a prosecutor, unsure of the outcome of the trial, acts with “reckless indifference” to whether his actions will precipitate a motion for mistrial. ¹⁷⁸ Appellants’ argument must fail. The Kennedy Court squarely held that: [t]he circumstances under which such a defendant may invoke the bar of double jeopardy in a second effort to try him are limited to those cases in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial.

Kennedy, supra, 456 U.S. at 679 , 102 S.Ct. at 2091 , quoted in West, 52 Md.App. at 637-38 , 451 A.2d 1228 . Moreover, in West we emphasized that: [ojrdinarily, when the prosecutor injects error into the trial, grievous as that may be, the sanction is mistrial or reversal. It is only where the prosecutor deliberately subverts the right of the defendant to stay with the original tribunal that the double jeopardy bar becomes the appropriate relief. ... [W]e must look not to the error itself and not to the plight of the defendant who has been afflicted by that error but rather to the intent with which the error was committed. 52 Md.App. 633 -34, 451 A.2d 1228 . (Emphasis supplied).

We can find no error in the motion judge’s conclusion which is consistent with our own in Curry I, that the prosecutorial misconduct in the first trial was intended to promote the State’s case, not to sabotage the trial. Had we believed the misconduct was impermissibly motivated, we would have reversed and directed that the charges be dismissed, rather than remanded for a new trial.

II

Motion for Mistrial On direct examination, an eyewitness testified that he had seen Curry holding a gun so that it was “hanging out the window” of the car into which the victim had been forced. The witness then testified that while running from the scene, he heard a “click” which “sounded like a gun.” ¹⁷⁹ Shortly thereafter the prosecutor apparently backed away from the witness while requesting the witness to let him know when he had gone the same distance from the witness that the witness was from the car when he heard the “click”. When he was told by the witness that he had reached that designated distance, the prosecutor “clicked” a gun which he had borrowed from a nearby police officer and asked the witness if he had heard the sound. Defense counsel immediately objected to the question, asked for a bench conference and moved for a mistrial.

The objection was sustained but the mistrial motion was denied. Trial defense counsel based his motion on the fact that the jury, having seen the gun, would be misled into believing that the gun was the murder weapon, when, in fact, none had been recovered. The trial judge stated that an instruction could cure any prejudice, and she proceeded to instruct the jury: Ladies and Gentlemen, I don’t know what you observed from what happened just now. I am going to ask you to strike it from your minds entirely.

That gun, which Mr. Kearney is giving back to the police officer, has absolutely nothing to do with this case. He apparently borrowed it from a police officer to try to use it to demonstrate something, which he is not permitted to do,