Giddins v. State

CHARLES E. MOYLAN, JR., Judge (retired, specially assigned). The appellant, Damont Isaiah Giddins, went on trial on July 6, 2004, before a Worcester County jury for the possession of cocaine with the intent to distribute. In the course of the direct examination of the State’s first witness, the trial judge granted the appellant’s motion for a mistrial. On July 8, the State requested that the case be docketed for retrial.

On July 23, the appellant interposed the plea in bar of double jeopardy. Argument was held on the appellant’s dou ³²⁵ ble jeopardy plea before Judge Thomas C. Groton, III, on September 13. On September 16, Judge Groton issued an Opinion and Order, denying the double jeopardy plea. This appeal followed.

Setting the Doctrinal Stage As we affirm Judge Groton, answering the appellant’s single contention is easy. What is more problematic is putting the question itself into an intelligible context. We are dealing with an esoteric nuance of double jeopardy law. What we said, as we examined very thoroughly this same nuance a quarter of a century ago in West v. State, 52 Md.App. 624, 625, 451 A.2d 1228 (1982), is equally pertinent as we take up the present appeal.

We are here called upon to explore a secluded but exotic corner of the double jeopardy garden — prosecutorial and judicial overreaching. In life, it is seldom seen except as an imagined possibility in the most painstakingly thorough of footnotes. As a contention, however, it is in luxuriant vogue and is being resorted to promiscuously. (Emphasis supplied).

There are layers of double jeopardy law that must be peeled away before we can get to the arcane little problem of the permissibility of a retrial following the declaration of a mistrial at the request of a defendant. An initial hurdle is that there are four widely divergent forms of double jeopardy law and that what is before us is the rarest and most recently evolved of these. In Fields v. State, 96 Md.App. 722, 725 , 626 A.2d 1037 (1993), we looked initially at the larger genus. When dealing with a generic category or portmanteau phenomenon such as double jeopardy, it is indispensable at the outset to identify the particular species of double jeopardy being invoked.

There are no less than four such species within the genus “double jeopardy.” Each carries with it a different history; each serves a different purpose; each has different implementing rules. The broad umbrella term we call “double jeopardy” today embraces (in its federal manifestation) four distinct species: 1) classic for ³²⁶ mer jeopardy, arising out of the common law pleas at bar of autrefois convict and autrefois acquit; 2) simultaneous jeopardy, involving largely issues of merger and multiple punishment and lying on the at-times blurred boundary between constitutional law and statutory construction; 3) the problem of retrial following mistrial; and 4) collateral estoppel. (Emphasis supplied). See also Tabbs v. State, 43 Md.App. 20, 21 , 403 A.2d 796 (1979).

Zooming in more closely, the particular species of the larger genus that is before us is that of retrial following mistrial. This species was brought into the double jeopardy fold late in the day in an essentially haphazard way. In a scholarly dissenting opinion in Crist v. Bretz, 437 U.S. 28, 40-53 , 98 S.Ct. 2156 , 57 L.Ed.2d 24 (1978), Justice Powell traced perceptively the history of what had once been “a separate rule of English practice,” 437 U.S. at 41 , 98 S.Ct. 2156 , through its “rather unreflective incorporation ... into the guarantee against double jeopardy.” 437 U.S. at 46 , 98 S.Ct. 2156 . Justice Powell attributed this aspect of English practice to Lord Coke and demonstrated that “this rule arose as an aspect of jury practice, rather than as an element of the guarantee against double jeopardy.” 437 U.S. at 41 , 98 S.Ct. 2156 .

He cited the leading English cases and reported that they had “refused to import the rule into the realm of pleas in bar, and it was the latter which informed the framing of the Double Jeopardy Clause.” 437 U.S. at 43 , 98 S.Ct. 2156 . Justice Powell also pointed out how the seminal decision of United States v. Perez, 22 U.S. (9 Wheat.) 579 , 6 L.Ed. 165 (1824), wherein the Supreme Court first employed Lord Coke’s rule of English practice, did not remotely suggest that the procedural protection was based upon any double jeopardy consideration. He characterized “Perez as [an] independent rule barring needless discharges.” Crist, 437 U.S. at 44 , 98 S.Ct. 2156 . In searching for the source of the uncritical doctrinal leap, Justice Powell showed how some American state courts during the 19th century placed Lord Coke’s rule “under the rubric of ³²⁷ the Double Jeopardy Clause” but that they did so “with no apparent awareness of the novelty of their action.” Crist, 437 U.S. at 46 , 98 S.Ct. 2156 .

After tracing this “unreflective incorporation of a common-law rule of jury practice into the guarantee against double jeopardy” in the state courts, id., Justice Powell pinpointed 1949 as the moment the Supreme Court fell into the same unthinking error: It was after more than a century of development in state courts that the ‘defendant’s valued right to have his trial completed by a particular tribunal’ appeared in the decisions of this Court for the first time, also without analysis, as an element of the Double Jeopardy Clause. Wade v. Hunter, 336 U.S. 684 , 69 S.Ct. 834 , 93 L.Ed. 974 (1949). Crist, 437 U.S. at 47 , 98 S.Ct. 2156 . Justice Powell observed that the Supreme Court did this “almost without articulated thought.” Id.

See West v. State, 52 Md.App. at 628 , 451 A.2d 1228 (“[This] expansion of double jeopardy law occurred late in the evolution of that law and occurred largely subconsciously, as an historic accident.”). In Fields v. State, 96 Md.App. at 727 , 626 A.2d 1037 , this Court appraised what Justice Powell had shown to be the Supreme Court’s 1949 mistake and the danger of confusion flowing from it. For better or for worse, it is done. “The moving finger writes and, having writ, moves on.” However shadowy its constitutional pedigree may be, Lord Coke’s rule dealing with retrials following mistrials is now inextricably ensconced in the federal family of protections known generically as “double jeopardy.” It 'will nonetheless be prudent not to intone too readily generalized pronouncements about double jeopardy law but to remember carefully that many of the incidents of this discrete branch of it are unique to this species alone. (Emphasis supplied).

Initial Jeopardy As the Sine Qua Non of Double Jeopardy A tell-tale characteristic of just how unique the mistrial/retrial variety of double jeopardy actually is can be found in ³²⁸ its total nondependence on the traditional double jeopardy concept that initial jeopardy only attaches with the actual rendering of a verdict. There cannot, by definition, be second or double jeopardy until there has been first or initial jeopardy. See West v. State, 52 Md.App. at 626 , 451 A.2d 1228 (“Before we can even consider double jeopardy, we must first establish single jeopardy.”). At the common law, there was no jeopardy until the moment that a verdict was rendered.

In Fields v. State, 96 Md.App. at 727-28 , 626 A.2d 1037 , we explained how the other three varieties of double jeopardy are still only triggered by the rendering of a verdict and the resulting attachment of initial jeopardy. In classic double jeopardy law, the triggering event of jeopardy occurred only as a verdict was rendered. Only then had the historic event taken place which could support a plea of autrefois acquit or autrefois convict. The plea in bar to a second or subsequent jeopardy was, by definition, contingent upon the happening of the earlier jeopardy, to wit, the rendering of the earlier verdict.

In what is now the second species of double jeopardy law, that prohibiting multiple punishment for the same offense in the context of simultaneous jeopardies, the danger of multiple punishment does not arise, even potentially, until the rendering of the verdicts and does not arise, actually, until the imposition of sentence. There is no possibility of merging convictions for lesser included offenses into convictions for greater included offenses until verdicts of conviction have been rendered. In the case of the fourth species of double jeopardy law, collateral estoppel, the very issue of estoppel cannot arise until there has been a verdict on the ultimate merits necessarily litigating a particular issue of fact. That necessary finding of fact manifested by a verdict is the estopping instrumentality.

Until that moment, there is no predicate for collateral estoppel. (Emphasis supplied). It is still the firm position of the common law, both in England and in Maryland, that jeopardy only attaches with ³²⁹ the rendering of a verdict. Queen v. Charlesworth, 1 B. & S. 460, 500, 121 ER 786, 801 (QB 1861); Winsor v. Queen, LR 1 QB 289, 390 (1866); Hoffman v. State, 20 Md. 425, 433-34 (1863); State v. Shields, 49 Md. 301, 303-04 (1878); Gilpin v. State, 142 Md. 464 , 121 A. 354 (1923).

It is for this reason that mistrial/retrial law, albeit now a part of the federal constitutional law of double jeopardy under the Fifth Amendment, has never been included within the coverage of the Maryland common law of double jeopardy. As Judge Eldridge stated for the Court of Appeals in Cornish v. State, 272 Md. 312 , 316 n. 2, 322 A.2d 880 (1974): The view in this state was that, under the common law’s double jeopardy prohibition, jeopardy did not attach until the rendition of a verdict and that, therefore, a retrial following the declaration of a mistrial did not give rise to a double jeopardy problem. (Emphasis supplied). See also Kyle v. State, 6 Md.App. 159 , 250 A.2d 314 (1969); Boone v. State, 3 Md.App. 11, 23-25 , 237 A.2d 787 (1968).

The declaration of a mistrial, of course, occurs before the jury has rendered its verdict. Under the Maryland common law of double jeopardy, 1 such a mistrial could not (and still cannot) trigger a double jeopardy issue. There never having been initial jeopardy in Maryland, a retrial cannot represent double jeopardy. Once Wade v. Hunter, supra, uncritically treated mistrial/retrial law as an aspect of double jeopardy, therefore, it became logically compelling to move the attachment of jeopardy back to an earlier stage.

That aberra ³³⁰ tional relocation of initial jeopardy was a federal phenomenon alone and has nothing to do with Maryland law. It is, however, now the unquestioned federal law, and the controlling law in the present case, that the magic moment when jeopardy begins is the instant in which the jury is sworn. Crist v. Bretz, 437 U.S. at 37-38 , 98 S.Ct. 2156 . 2 In the present case, Fifth Amendment jeopardy had attached when the trial judge declared the mistrial. The issue before Judge Groton, therefore, was legitimately one of constitutional double jeopardy.

However questionable its pedigree, the mistrial/retrial issue is properly before us in this case. Marching to a Different Drum In yet another respect has mistrial/retrial law been a unique member, indeed a foundling, within the double jeopardy family. It serves a different purpose than those served by its latter-day siblings. North Carolina v. Pearce, 395 U.S. 711, 717 , 89 S.Ct. 2072 , 23 L.Ed.2d 656 (1969), is the standard statement of the multiple purposes served by the Double Jeopardy Clause.

That guarantee has been said to consist of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.

That is an articulate statement of the purposes served by the former jeopardy species of double jeopardy law, with respect to both its former acquittal subdivision and its former conviction subdivision. The third of North Carolina v. ³³¹ Pearce’s stated purposes also well expresses the end served, both in a sequential jeopardy setting and a simultaneous jeopardy setting, when we carefully parse the elements of two or more nonidentical offenses, after conviction and before sentencing, to make certain that we do not subject a convicted defendant to multiple punishments for the “same offense.” That statement of purpose from North Carolina v. Pearce, and its regular incantation in virtually every double jeopardy case that has followed, has nothing remotely to do with the very different purpose served by mistrial/retrial law. In Fields v. State, 96 Md.App. at 731 , 626 A.2d 1037 , we examined the origin and the very different purpose of mistrial/retrial law. The purpose of the mistrial/retrial species of double jeopardy law is certainly not to preserve the finality of an acquittal or a conviction because there is no acquittal or conviction to be afforded finality.

Nor is it the purpose of this species of the law to avoid multiple punishment for it applies with full vigor to the trial of a single count of a single indictment. The full flowering of the purpose of this rule of English practice was a reaction to the excesses of prosecution-minded Royalist judges, such as the legendary “Bloody Jeffreys,” during the period of the “Bloody Assizes,” as the Crown relentlessly pursued the rebels involved in the ill-fated Duke of Monmouth’s Rebellion. The particular excess to be guarded against was the tendency of the Crown, acting either through the prosecutor or the judge or both, to sabotage a trial that was going badly for the Crown so the prosecuticm could regroup and live to fight another day. Justice Stevens explained, in Arizona v. Washington, 434 U.S. 497, 507-08 , 98 S.Ct. 824 , 54 L.Ed.2d 717 (1978), the historic abuse to which the law was a reaction. [Tjhere was a time when English judges served the Stuart Monarchs by exercising a power to discharge a jury whenever it appeared that the Crown’s evidence would be insufficient to convict. ³³² The original problem, ironically, had been not so much prosecutorial overreaching as it was judicial overreaching.

See Friedland, Double Jeopardy, 13-14, 21-25 (1969); Sigler, Double Jeopardy, 87 (1969). The evil represented by a mistrial 1) requested by the prosecutor or 2) declared, sua sponte, by the judge is that it takes away from the defendant the decision of whether to let the trial go forward. Even in the face of reversible error, the defendant, for a variety of reasons, may wish to go forward. It is the protection of this right to keep the tribunal together that is at the very heart of mistrial/retrial law.

In West v. State, 52 Md.App. at 637, 451 A.2d 1228 , we explained how, even in the face of reversible error, this is a valuable right. Even after error has been injected into a case, a defendant may prefer not to abort the trial, but to wait and see whether he may not achieve an acquittal even in the teeth of prejudicial error. An appeal is still available if the gamble fails. The defendant still maintains control.

A skillful, counterpunching defense tactician may, moreover, turn flagrant prosecutorial misconduct to his advantage and wrest from an outraged jury an acquittal precisely because of that misconduct. There is a significant defense interest in keeping the trial upon the tracks quite apart from the interest in receiving a fair trial. (Emphasis supplied). In United States v. Jorn, 400 U.S. 470, 484-85 , 91 S.Ct. 547 , 27 L.Ed.2d 543 (1971), the Supreme Court explained the advantages of being able to keep a tribunal, once empaneled, together to the sweet or bitter end. [T]he crucial difference between reprosecution after appeal by the defendant and reprosecution after a sua sponte judicial mistrial declaration is that in 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 ³³³ defendant has been deprived of his “valued right to have his trial completed by a particular tribunal.” If that right to go to a particular tribunal is valued, it is because, independent of the threat of bad-faith conduct by judge or prosecutor, the defendant has a significant interest in the decision whether or not to take the case from the jury when circumstances occur which might be thought to warrant a declaration of mistrial. (Emphasis supplied). It is precisely because of this energizing purpose of mistrial/retrial law — the purpose of keeping the decision of whether to abort the trial in the control of the defendant, even in the face of error — that a pivotal question is always that of: “Who asked for the mistrial?” Who Asked for the Mistrial? The key to the analysis of any mistrial/retrial problem must begin with the critical question, “Who asked for the mistrial?” As we round up the usual suspects, there are only three — the prosecuting attorney, the defense attorney, and the trial judge.

Because the energizing purpose of mistrial/retrial law is to protect a defendant’s right to have the trial completed by the tribunal that was originally empaneled to try him, the traditional villains have always been 1) the prosecutor who requests the mistrial and 2) the judge who, sua sponte, declares a mistrial. Most of mistrial/retrial law concerns situations wherein the mistrial has been sought by the prosecutor or declared, sua sponte, by the judge, with the critical inquiry being whether there was a “manifest necessity” for the resulting mistrial. Fields v. State, 96 Md.App. at 733-34 , 626 A.2d 1037 , explained this familiar posture of most mistrial/retrial questions. There are three key players involved in every trial: the judge, the prosecutor, and the defendant (directly or through his agent, the defense attorney).

In terms of the Machiavellian employment of the mistrial device deliberately to sabotage a trial perceived to be going badly for the prosecution, the historic culprits were the judge and the ³³⁴ prosecuting attorney. When, therefore, a mistrial is declared, over the objection of the defense, either at the request of the prosecutor or sua sponte by'the judge, the rule provides that no retrial will be permitted unless there was a “manifest necessity” for the mistrial. When that is the posture of the mistrial analysis, a substantial body of law is available exploring every nuance of what is and what is not “manifest necessity.” United States v. Perez, 22 U.S. (9 Wheat.) 579 , 6 L.Ed. 165 (1824); Wade v. Hunter, 336 U.S. 684 , 69 S.Ct. 834 , 93 L.Ed. 974 (1949); Gori v. United States, 367 U.S. 364 , 81 S.Ct. 1523 , 6 L.Ed.2d 901 (1961); Downum v. United States, 372 U.S. 734 , 83 S.Ct. 1033 , 10 L.Ed.2d 100 (1963); United States v. Jorn, 400 U.S. 470 , 91 S.Ct. 547 , 27 L.Ed.2d 543 (1971); Illinois v. Somerville, 410 U.S. 458 , 93 S.Ct. 1066 , 35 L.Ed.2d 425 (1973); United States v. Dinitz, 424 U.S. 600 , 96 S.Ct. 1075 , 47 L.Ed.2d 267 (1976); Arizona v. Washington, 434 U.S. 497 , 98 S.Ct. 824 , 54 L.Ed.2d 717 (1978). (Emphasis supplied).

A Horse of a Different Color In a situation wherein, by contrast, the mistrial is requested by the defendant, the analysis is radically different. In Oregon v. Kennedy, 456 U.S. 667, 672 , 102 S.Ct. 2083 , 72 L.Ed.2d 416 (1982), the Supreme Court highlighted the difference. But in the case of a mistrial declared at the behest of the defendant, quite different principles come into play. Here the defendant himself has elected to terminate the proceedings against him, and the “manifest necessity” standard has no place in the application of the Double Jeopardy Clause.

(Emphasis supplied). In United States v. Dinitz, 424 U.S. 600, 607 , 96 S.Ct. 1075 , 47 L.Ed.2d 267 (1976), the Supreme Court had earlier noted, “Different considerations obtain, however, when the mistrial has been declared at the defendant’s request.” The Dinitz Court went on to note: ³³⁵ The distinction between mistrials declared by the court sua sponte and mistrials granted at the defendant’s request or with his consent is wholly consistent with the protections of the Double Jeopardy Clause. 424 U.S. at 608 , 96 S.Ct. 1075 . See also Lee v. United States, 432 U.S. 23, 32-33 , 97 S.Ct. 2141 , 53 L.Ed.2d 80 (1977). In West v. State, 52 Md.App. at 630-31 , 451 A.2d 1228 , this Court contrasted the two very different analytic perspectives, depending upon the identity of the moving party: [T]hose situations appear in two essential postures.

The first is where the mistrial has been declared by the judge sua sponte or at the request of the State, either over the objection of the defendant or at least without the explicit acquiescence of the defendant. In those situations, the rule is that if there was a manifest necessity for the mistrial, retrial will not be barred. United States v. Perez, 22 U.S. (9 Wheat.) 579 , 6 L.Ed. 165 (1824); Illinois v. Somerville, 410 U.S. 458 , 93 S.Ct. 1066 , 35 L.Ed.2d 425 (1973); Arizona v. Washington, 434 U.S. 497 , 98 S.Ct. 824 , 54 L.Ed.2d 717 (1978). That situation is not the one before us.

The other essential posture, and the one that is before us, is where the mistrial is declared, at the request of the defendant. Ordinarily, a defense request for a mistrial is treated as a waiver of any double jeopardy claim. United States v. Tateo, 377 U.S. 463, 467 , 84 S.Ct. 1587 , 12 L.Ed.2d 448 (1964); United States v. Jorn, 400 U.S. 470, 485 , 91 S.Ct. 547 , 27 L.Ed.2d 543 (1971); United States v. Dinitz, 424 U.S. 600, 607-608 , 96 S.Ct. 1075 , 47 L.Ed.2d 267 (1976). (Emphasis supplied).

And see Thompson v. State, 38 Md.App. 499, 502 , 381 A.2d 704 (1978) (“[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.”); Loveless v. State, 39 Md.App. 563, 565 , 387 A.2d 311 (1978) (“Subject to the narrow exception yet to be discussed, it is axiomatic that a defendant who has moved for a mistrial waives, by that very motion, all objection to a subse ³³⁶ quent retrial.”); Tabbs v. State, 43 Md.App. at 23-25 , 403 A.2d 796 . The Limited Exemption From The Foreclosing Effect of Waiver To place the contention in this case, and all similar contentions, in context, the almost invariable rule is that a defendant who has requested and received a mistrial has waived any objection to a subsequent retrial. The notion of a limited exemption from that otherwise foreclosing effect of waiver first appeared in several Supreme Court cases as a tender shoot of dicta. A footnote in United States v. Tateo, 377 U.S. 463 , 468 n. 3, 84 S.Ct. 1587 , 12 L.Ed.2d 448 (1964), observed: If there were any intimation in a case that prosecutorial or judicial impropriety justifying a mistrial resulted from a fear that the jury was likely to acquit the accused, different considerations would, of course, obtain.

Also by way of dicta, United States v. Jorn, 400 U.S. 470, 485 , 91 S.Ct. 547 , 27 L.Ed.2d 543 (1971), and United States v. Dinitz, 424 U.S. 600, 607-08 , 96 S.Ct. 1075 , 47 L.Ed.2d 267 (1976), made reference to the earlier footnote in Tateo but elaborated on it to the extent of characterizing the exemption from waiver as something arising out of a defense mistrial request necessitated by “prosecutorial or judicial overreaching.” The phrase was instantly contagious. Even though there had never been a holding touching on the subject, let alone the reversal of a conviction, the appellate mills were soon glutted with issues of what varieties of judicial or prosecutorial misconduct might constitute “overreaching.” The term “overreaching” became a mantra. This Court, in Tabbs v. State, 43 Md.App. 20 , 403 A.2d 796 (1979), was at the very front of the national curve in moving to contain what was threatening to become a doctrinal epidemic. Our analysis in Tabbs was picked up and became the heart of the State of Oregon’s ultimately successful brief in Oregon v. Kennedy, 456 U.S. 667 , 102 S.Ct. 2083 , 72 L.Ed.2d 416 (1982). ³³⁷ Oregon v. Kennedy The prosecutorial error that provoked the defense motion and the ultimate declaration of a mistrial in Oregon v. Kennedy was infinitely more egregious and more prejudicial than the pallid error, if error it was, in the case at bar.

Kennedy was on trial for the theft of an oriental rug, with commercial deception as a key issue. On the redirect examination of an expert witness, the prosecutor tried repeatedly to show why the witness distrusted the defendant, but the trial judge sustained a series of defense objections to the entire line of inquiry. The critical exchange then followed: Prosecutor: Have you ever done business with the Kennedys? Witness: No, I have not.

Prosecutor: Is that because he is a crook? 456 U.S. at 669 , 102 S.Ct. 2083 (emphasis supplied). Without waiting for the answer, the judge immediately granted the defense motion for a mistrial. When the prosecution later sought to retry Kennedy, the defense interposed the plea in bar of double jeopardy. The trial judge, however, found that “it was not the intention of the prosecutor in this case to cause a mistrial” and refused to bar a retrial.

The Oregon Court of Appeals reversed, buying into Kennedy’s double jeopardy claim. The Supreme Court of the United States summarized the reasoning of the Oregon Court of Appeals. The Court of Appeals accepted the trial court’s finding that it was not the intent of the prosecutor to cause a mistrial. Nevertheless, the court held that retrial was barred because the prosecutor’s conduct in this case constituted what it viewed as “overreaching. ” ...

This personal attack left respondent with a “Hobson’s choice-either to accept a necessarily prejudiced jury, or to move for a mistrial and face the process of being retried at a later time.” 456 U.S. at 670 , 102 S.Ct. 2083 (emphasis supplied). Dealing for the first time with mistrial/retrial law as a square holding, the Supreme Court slew the many-headed ³³⁸ Hydra of “overreaching.” For the sake of convenience, we will confíne our present analysis to the case of prosecutorial overreaching. The Supreme Court made it very clear that, as an exemption from waiver by a defendant who asks for a mistrial, prosecutorial overreaching is a necessary condition, but it is by no means a sufficient condition. Although it is necessary, as a threshold matter, that the prosecutor do something both erroneous enough and prejudicial enough to justify the declaration of a mistrial, the very happening of the mistrial is ordinarily a sufficient sanction for such prosecutorial error.

The barring of a retrial adds an entirely new dimension to the sanction, one that is available only in the rarest of circumstances. What is critically necessary for the imposition of that additional sanction is not error and prejudice, but a particular intent or purpose. The Supreme Court pointed out that trial error is a commonplace and that, ordinarily, it can be handled by appellate reversal or by the mistrial itself. Every act on the part of a rational prosecutor during a trial is designed to “prejudice” the defendant by placing before the judge or jury evidence leading to a finding of his guilt.

Given the complexity of the rules of evidence, it will be a rare trial of any complexity in which some proffered evidence by the prosecutor or by the defendant’s attorney will not be found objectionable by the trial court. 456 U.S. at 674-75 , 102 S.Ct. 2083 (emphasis supplied). Even when reversible error has occurred, the decision of a defendant to seek a mistrial is ordinarily a waiver of any objection to a retrial. Prosecutorial conduct that might be viewed as harassment or over-reaching, even if sufficient to justify a mistrial on defendant’s motion, therefore, does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause. A defendant’s motion for a mistrial constitutes “a deliberate election on his part to forgo his valued right to have his guilt or innocence determined before the first trier of fact.” Where ³³⁹ prosecutorial error even of a degree sufficient to warrant a mistrial has occurred, “[t]he important consideration, for purposes of the Double Jeopardy Clause, is that the defendant retain primary control over the course to be followed in the event of such error. ” 456 U.S. at 675-76 , 102 S.Ct. 2083 (emphasis supplied).

The only exemption from such a waiver is the situation in which the prosecutor deliberately committed the error with the specific intention of “goading” the defendant into asking for the mistrial. Only where the governmental conduct in question is intended to “goad” the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion. 456 U.S. at 676 , 102 S.Ct. 2083 (emphasis supplied). The holding of the Supreme Court was crystal clear: no prosecutorial overreaching will bar a retrial, following a defense request for a mistrial, unless the prosecutor deliberately intended to provoke such a request. Given the finding that the Oregon prosecutor did not so intend, the retrial in Oregon v. Kennedy should not have been barred. [W]e do hold that the 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.

Since the Oregon trial court found, and the Oregon Court of Appeals accepted, that the prosecutorial conduct culminating in the termination of the first trial in this case was not so intended by the prosecutor, that is the end of the matter. 456 U.S. at 679 , 102 S.Ct. 2083 (emphasis supplied). And see Judge Hollander’s analysis of Oregon v. Kennedy in Hagez v. State, 131 Md.App. at 424-28, 749 A.2d 206 . At 131 Md.App. 409 , 749 A.2d 206 , Judge Hollander drew a distinction between ³⁴⁰ acting “deliberately in an effort to abort the trial” and acting “zealously in an effort to secure a conviction.” In West v. State, 52 Md.App. at 625 , 451 A.2d 1228 , this Court took due notice of the now controlling criterion: Is the overreaching conduct that will bar a retrial, following a mistrial which circumstances have forced a defendant to request, limited to the deliberate derailment of a trial in progress or does it also embrace such other misconduct as the insinuating of error into the trial either (1) through gross negligence or (2) consciously, but with a design to win the trial rather than to abort it? In a holding anticipated by this Court and, in significant measure, by the Court of Appeals, the Supreme Court in Oregon v. Kennedy has now unequivocally resolved that it is only the deliberate derailing that will engage the gears of the double jeopardy machinery.

(Emphasis supplied). In Thanos v. State, 330 Md. 576, 588 , 625 A.2d 932 (1993), Chief Judge Robert Murphy stated unequivocally for the Court of Appeals: The idea behind this exception is that the government should not be able to orchestrate a second chance for a conviction if it determines that acquittal is likely in the first trial. The Court in Kennedy emphasized, however, that the prosecution must intend to coax a mistrial for double jeopardy to bar further proceedings. Conduct amounting to simple “harassment or oven-eaching, even if sufficient to justify a mistrial on defendant’s motion,” is not enough.

(Emphasis supplied). See also Bell v. State, 286 Md. 193, 207 , 406 A.2d 909 (1979) (“We cannot say that the trial court was clearly wrong in concluding that the prosecutor did not want or deliberately seek a mistrial.”) In Fields v. State, 96 Md.App. at 746 , 626 A.2d 1037 , we amplified the definition of intentional goading, explaining it as the act of deliberately “sabotaging a trial that is going badly.” This is what “prosecutorial or judicial overreaching” means. It is the deliberate commission of error for the ³⁴¹ specific purpose of sabotaging a trial that is going badly for the State so that the State may have another opportunity to do better. It interferes with a defendant’s right to keep his tribunal, once empaneled, together to the sweet or bitter end by goading him or provoking him into asking for the declaration of mistrial in the expectation that his agreement to the mistrial will then estop any future double jeopardy claim.

(Emphasis supplied). In Tabbs v. State, 43 Md.App. at 35 , 403 A.2d 796 , we focused on the “motivation and purpose” of the prosecutor in committing the error that prompted the defense request for a mistrial. It is clear that it is not the fact of error itself nor the impact of the error upon the defendant’s fortunes that controls in the defense-requested-mistrial/retrial situations, but rather the motivation and purpose that prompted an intentional commission of error. (Emphasis supplied).

It was in Bell v. State, 41 Md.App. 89, 101 , 395 A.2d 1200 (1979), that Judge Lowe concluded: Whether the misconduct here was grossly negligent or intentionally perpetrated tactically to gain a trial advantage is of no consequence to the question of retrial. It was not intended to provoke a mistrial, but was, at worst, an intentional foul to win the trial then in progress. (Emphasis supplied). See also Hagez v. State, 131 Md.App. at 444 , 749 A.2d 206 (“[I]t is evident that the prosecutor’s improper conduct at trial was not prompted by a desire to ‘sabotage a probable loser.’ ”); Loveless v. State, 39 Md.App. at 566 , 387 A.2d 311 (“The only time that retrial is barred under double jeopardy principles is when there has been such prosecutorial or judicial overreaching as to have amounted to a deliberate and intentional sabotaging of the earlier trial.”); Harris v. State, 312 Md. 225 , 240 n. 7, 539 A.2d 637 (1988); Booth v. State, 301 Md. 1, 8 , 481 A.2d 505 (1984) (“[AJpplying the principle of Oregon v. Kennedy, we see no action by the ³⁴² state which in any sense could be viewed as an intention to goad the appellant into seeking a mistrial or that the state was seeking to abort the trial.”).

For all other error, the law has provided stern and sufficient sanctions, as this Court pointed out in Loveless v. State, 39 Md.App. at 565-66 , 387 A.2d 311 . Except in those rare instances where the prosecution or the court has deliberately sabotaged a trial that was going badly, the available redress where an irremediable error is recognized in mid-trial is the declaration of a mistrial followed by a retrial; the available redress where a reversible error has occurred in a trial which runs its full course and results in a conviction is a reversal followed by a retrial. (Emphasis supplied). The Mistrial at Issue Against this doctrinal backdrop, we may view the declaration of mistrial before us.

As trial began on July 6, 2004, a sensitive nerve was touched early in the prosecutor’s opening statement to the jury. The multi-count indictment charged, inter alia, 1) possession with intent to distribute and 2) simple possession. From the outset, the appellant essentially admitted his guilt of simple possession, but strongly denied the incremental charge of commercial distribution. That distinction brought into prominence the search warrant that had authorized the August 8, 2003 search of the Set It Off store, owned and operated by the appellant in Ocean City.

The prosecutor began his opening statement by attempting to describe, “briefly,” the provenance of the case. Delivering an opening statement, however, can be as daunting as writing an epic. It is the age-old literary problem of how best to tell a story. Lacking Dante’s talent for launching into The Divine Comedy in medias rea, 3 the assistant state’s attorney could ³⁴³ only, even as Dickens’s David CopperfieM, begin at the beginning. 4 Once upon a time, [i]n June of 2003, Detective Heiser, who is with the Ocean City Police Department, received information and began an investigation of drug distribution in the Ocean City Northern, Worcester County area.

The target of that investigation — . (Emphasis supplied). In the wake of an immediate defense objection, a bench conference was convened. [Defense Counsel]: Your Honor, the search and seizure warrant has never been evidence since I’ve been practicing law and probably since you’ve been practicing law. I think the State is now poisoning the well in telling them about a drug distribution that they’re never going to hear unless the State intends to call the informant to testify.

This is improper. It’s inexcusable, and I’m shocked that this seed has been planted. [Prosecutor]: Your Honor, I am simply giving the jury background that they began an investigation. As a result of that investigation, they obtained a search warrant. I’m not going into the facts of what — how they obtained it, but this did not fall out of the clear blue