Hubbard v. State

BATTAGLIA, J. Petitioners, Kevin Leon Hubbard and Gary Eugene Earl, Jr., seek review of a judgment of the Court of Special Appeals affirming the trial court’s granting of a mistrial based on manifest necessity. The trial judge had declared a mistrial over Petitioners’s objections because a witness, whose identification testimony against one defendant had been suppressed, was to be called by the State to testify against the co-defendant in a joint trial. We shall hold that the judge erred by declaring that a mistrial was manifestly necessary. I. Introduction Petitioners were indicted on December 11, 2002, in a twenty-count indictment in which they were charged, individually and collectively, with one count of attempted second-degree murder in violation of Section 2-204 of the Criminal Law Article, Maryland Code (2002); two counts of first-degree assault in violation of Section 3-202 of the Criminal Law Article, Maryland Code (2002); two counts of second-degree assault in violation of Section 3-203 of the Criminal Law Article, Maryland Code (2002); two counts of robbery with a dangerous weapon in violation of Section 3-403 of the Criminal Law Article, Maryland Code (2002); one count of first-degree burglary in violation of Section 6-202 of the Criminal Law Article, Maryland Code (2002); one count of third-degree burglary in violation of Section 6-204 of the Criminal Law Article, Maryland Code (2002); one count of theft over five hundred dollars in violation of Section 7-104 of the Criminal Law Article, Maryland Code (2002); one count of theft under five hundred dollars in violation of Section 7-104 of the Criminal Law Article, Maryland Code (2002); two counts of robbery in violation of Section 3-402 of the Criminal Law ⁷⁸ Article, Maryland Code (2002); one count of use of a handgun in the commission of a crime in violation of Section 4-204 of the Criminal Law Article, Maryland Code (2002); and counts for conspiracy to commit first-degree assault, armed robbery, burglary, theft over five hundred dollars, robbery, as well as conspiracy to use a handgun in the commission of a crime.

Edward Wallace Benson, III also was charged in connection with the same crime. 1 Subsequently, Petitioners filed separate motions to suppress photograph identifications made by various witnesses who had identified either or both of them. The Circuit Court for Cecil County held a pre-trial suppression hearing, which lasted several days, concerning both out-of-court and prospective in-court identifications by four witnesses — the two victims, Damon Twyman and Daniel Draper, and two other eyewitnesses, Alisabel Ortega and Sabrina Rogers. Most significant for this appeal, Ms. Rogers photographically identified seven different individuals at different times before trial as being tied to or involved in the incident, including the three co-defendants, although the crime purportedly involved only three individuals. At the suppression hearing, Ms. Rogers’s out-of-court and in-court identifications of Earl were ruled to be inadmissible because the photographic identification of Earl was obtained through impermissibly suggestive procedures and was not independently reliable enough to permit an in-court identification.

The trial judge noted that Ms. Rogers was shown six photograph arrays in which she identified six different individuals. Ms. Rogers was then shown a seventh array, which was the same as photo array number three, but modified so that Earl’s picture was substituted. During this display, the detective told Ms. Rogers they were still looking for the third individual involved. The trial court found that Ms. Rogers’s ⁷⁹ out-of-court identification was impermissibly suggestive because of the detective’s comment and because Ms. Rogers had effectively ruled out every other person in the seventh photographic array prior to the substitution of Earl’s picture.

The judge also found that Ms. Rogers’s identification of Earl was not independently reliable enough to allow an in-court identification because Ms. Rogers had previously identified an individual who was not involved in the crime as the third suspect, who she also thereafter identified as Earl. Following the court’s ruling, the State asked for clarification: [STATE]: The Court indicated that it was suppressing the identification of Sabrina Rogers as to both in-court and— I’m sorry, both out-of-court and in — court. I have to say the State did not feel that there was evidence presented to rise to the level of taint; therefore, the State did not try to elicit any information from her as to reliability. And while the suppression hearing is concluded and I understand and accept the Court’s ruling with respect to the out-of-court identification, the concern that I have is that I believe that the State may be able to establish reliability as to the in-court identification. [COURT]: Well, I think, you know, that I don’t want to have more process than is due rather than less process than is due most of the time, but I think your argument was and I think it’s correct that the burden in the first instance is on the defense to show constitutional or show impermissible suggestion; but the burden clearly, by all the case law that everybody has cited and I’ve looked at in this case indicates that if, in fact, they make it on that issue, then the burden shifts to the State by clear and convincing evidence; and in my opinion they did make it on that.

I understand that in your opinion they did not. And you might be lighter that I, but nevertheless it did shift and Sabrina Rogers was here and was, in fact, examined. And it’s my finding that the evidence did not meet your burden by clear and convincing evidence at this point. Basically the suppression hearing is over. ⁸⁰ [STATE]: And to the extent that the exclusion of an out-of-court identification does not ipso facto exclude an in-court identification. [COURT]: If it’s got a separate basis. [STATE]: I want to let everyone know that if that’s the case, I would certainly be trying to bring it forward at the time of trial.

And, again, I understand the Court’s ruling today and that’s what we— [COURT]: Well, at this point I don’t even know if I’ll be the trial judge. So whoever the trial judge is, I suppose if you want to raise that issue I’ll have to deal with it, but my ruling is that [the in-court identification is] suppressed. The judge denied the motion to suppress Ms. Rogers’s identification of Hubbard and denied both Petitioners’s motions to suppress the identifications from Mr. Draper, Mr. Twyman, and Ms. Ortega. 2 The State persisted in its joint prosecution of Hubbard and Earl. The jury was selected and sworn before the same judge that conducted the suppression hearing.

After opening statements from the State and both Petitioners’s counsels, the State requested the opportunity to establish a separate and independent basis for an in-court identification of Earl by putting Ms. Rogers on the witness stand. The trial judge granted the request, and after the jury was excused for the day, the State called Ms. Rogers to testify, but the trial court ruled that there was no separate and independent basis for an in-court identification and granted Earl’s motion to suppress. The following morning, before the jury was brought into the courtroom, the State indicated that it was going to call Ms. Rogers as a witness and raised a possible conundrum. The prosecutor was concerned that when Ms. Rogers testified against Hubbard, Hubbard’s attorney would cross-examine ⁸¹ Ms. Rogers based on her numerous identifications of individuals other than Hubbard, which was concededly appropriate; the prosecutor insisted that she should have the ability to rehabilitate Ms. Rogers by showing that she had identified Earl, an identification which had been suppressed by the trial court.

When Earl’s attorney objected that such inquiry would be fundamentally unfair to Earl, the trial judge agreed, and stated that a curative instruction would not be helpful, and ordered that no party ask Ms. Rogers any questions about identifying Earl. 3 The Court, sua sponte, then raised the specter of a severance: [COURT]: I think in this joint trial, it’s incumbent upon me not to let the State or the other defendant undo the suppression ruling in regard to Gary Earl. Now, the alterna ⁸² five, let me say, because we have not yet heard a witness, although we did swear the jury, might be to sever these trials, but I’m not sure whether we get that or not. [HUBBARD’S ATTORNEY]: I think, Your Honor, that’s the only, that’s the only alternative, because for the court to tell Mr. Hubbard that he can’t bring to the jury’s attention that identifications were made and seven rather than six were made by this witness, which is, in fact, the truth, and that is an exculpatory piece of evidence to my client, to prevent me from being able to bring that to the jury’s attention is denying my client’s right of confrontation. Immediately thereafter, the trial court questioned Hubbard’s attorney regarding whether he could effectively cross-examine Ms. Rogers without specifically naming Earl. Hubbard’s attorney argued that it was possible — he could list every person identified by Ms. Rogers but refer to Earl’s identification as “another person that is not Hubbard” — however, along with Earl’s attorney, he questioned whether that limitation would contravene the decision to suppress the identification because the jury could imply that the un-named identification was that of Earl. 4 The issue of declaring a mistrial was then raised: ⁸³ [COURT]: All right, [The Prosecutor], what’s your belief or position in regard to severance, jeopardy and mistrial? [STATE]: Your Honor, I would have to — I think that it’s occasion for a mistrial.

I have raised I believe on the record but I certainly had raised it with all three defense counsel at the time of the first hearing you all really planning to be heard together, these cases are going to be heard together, because we have these identifications that are essentially inextricably intertwined, I believe. You ⁸⁴ know, it has now reared its head one of those potentials for something that could be used against one but not used against another. The only thing that we did yesterday was we reduced the equation by one, but certainly if the court will recall, I mean we’ve got the same sort of situation with the other co-defendant, I believe. I believe — may be wrong about that, maybe Benson ID’s are all in, but nevertheless at this point I think that a mistrial is the appropriate undertaking.

Hubbard’s and Earl’s attorneys both objected to the granting of a mistrial. The trial judge, however, instead fashioned his own remedy, ruling that the parties could refer to the seventh identification, that of Earl, but could not refer to the seventh identification of Earl by name. 5 The prosecutor con ⁸⁵ tinued his objection, and insisted that manifest necessity existed for a mistrial because the alternative suggested by the judge would hinder the ability of the State to rehabilitate Ms. Rogers: [STATE]: Your Honor, from the State’s perspective, I don’t see where that gets anything in terms of potential rehabilitation. In other words, again, the rehabilitation effect I think is evident by the fact that, yes, she named two of these persons who are standing trial here today. As we all know, in fact she named three of the defendants who are standing trial.

So to simply say that the State can’t show that she identified Mr. Earl is to say that bolsters the idea that she made seven identifications regarding three persons and, again, that only one of those is before the jury in terms of her being able to say that’s the one I identified. [COURT]: Well, let me ask you this: Do you believe that this is an example of manifest necessity for a mistrial? You understand that a retrial will be barred unless there’s manifest necessity. [STATE]: I understand, Your Honor, and that’s why, again, I brought it to the court’s attention, because I think we need to have a ruling on this. I believe on the basis of the position of the defendants — and I fully understand the position of the defendants, but I believe ⁸⁶ that on the basis of their respective positions, that it’s manifest necessity because I think that otherwise it would deny the State the right to rehabilitate a witness in a manner or rehabilitation that I think can be effective. The effectiveness of simply saying that she actually identified seven people, as I say, that doesn’t rehabilitate her at all.

Rehabilitation comes from saying two of those persons are seated in this courtroom and that she identified another co-defendant; therefore, either severance or mistrial. You know, if we sever the case, then I can go forward. I’m not sure. [COURT]: Thing is this jury has now had opening statements having to do with two defendants, has been told various things about the evidence from the State, intends to proceed against two defendants. Severing one of them and continuing with the other one at this point seems like a very confusing way for the jury. [STATE]: Seems to me — and, again, I’m not — foreclosing any argument from defense counsel, but it seems to me that it may be prejudicial to one or the other of the defendants, particularly the one who is still sitting at counsel table; therein, as I say, Your Honor, I think lies the necessity, the manifest necessity for a mistrial.

I’m not saying that’s the — it’s a Hobson’s choice, only perhaps three choices rather than the two, but the bottom line is I don’t see how due process is afforded to both sides without doing just that. [COURT]: Well, [The Prosecutor] is exactly right, it’s a Hobson’s choice, but if I have one paramount duty that’s more important than any others, it is to safeguard the rights of parties before the court, defendants and the State, actually. Well, I agree that it’s difficult to see how I can fashion a remedy, although I was in the process of arriving at a remedy, but upon further reflection, it seems to me that any remedy that I fashion has got to be prejudicial to somebody, ⁸⁷ prejudicial to one of the defendants or to the other or maybe both of them, and/or prejudicial to the State for that matter. Clearly the issue of retrial after mistrial doesn’t have anything to do with the benefit to who. I mean, it could be mistrial could have been declared and have extended a benefit to the defendant, and that’s not a factor in the analysis.

Upon further consideration of [The Prosecutor]’s argument, I believe that this is a manifest necessity and I will, therefore, declare a mistrial in this matter and grant severance on my own motion of all three of these cases. (emphasis added) Earl and Hubbard filed separate motions to dismiss their indictments on double jeopardy grounds, which were denied after hearings, by the same judge who had declared the mistrial. Petitioners appealed to the Court of Special Appeals, which affirmed in a reported opinion. Hubbard v. State, 166 Md. App. 250, 262 , 887 A.2d 1120, 1127 (2005).

The intermediate appellate court held that because the judge considered the possible alternatives, he had exercised his sound discretion to find manifest necessity to declare a mistrial. Id. at 261-62 , 887 A.2d at 1126-27 . We granted Petitioners’s petition for writ of certiorari, which presented the following question for our review: Where jeopardy had attached at trial and the trial judge had granted the prosecutor’s motion for a mistrial over Petitioners’s objections, did the Court of Special Appeals err in affirming the trial judge’s decision that the mistrial had been required by manifest necessity? 398 Md. 160 , 900 A.2d 206 (2006). We hold that the Court of Special Appeals erred in affirming the trial judge’s decision that the mistrial was required by manifest necessity.

II

Discussion Petitioners contend that the Court of Special Appeals erred in affirming the trial judge’s decision that the mistrial was ⁸⁸ required by manifest necessity. They argue that there was a five-month delay between the suppression of Ms. Rogers’s out-of-court and in-eourt identifications of Earl and the trial date, and as a result, the State had ample time to consider the ramifications of the ruling, which Petitioners described as creating an “obvious imbalance in the identification evidence.” Petitioners claim that the result of the suppression rulings was the foreseeable risk that Ms. Rogers could not be called as a witness against Hubbard because of the potential prejudicial effect on Earl, and despite this, the prosecution chose to proceed with a joint trial. Petitioners contend that this case is analogous to situations involving deficiencies in the State’s evidence or the absence of a witness, which do not constitute manifest necessity to declare a mistrial. The State, conversely, argues that the Court of Special Appeals was correct in affirming the trial judge’s decision to declare the mistrial for manifest necessity because the decision was within the discretion of the judge, and the judge thoroughly considered the alternatives before declaring the mistrial.

The State also contends that manifest necessity existed because the evidentiary problem would adversely affect some combination of the prosecution and one or both of the defendants, the prosecution was not at fault for the problem, and Petitioners did not offer any other alternative. A. Double Jeopardy In Benton v. Maryland, 395 U.S. 784 , 89 S.Ct. 2056 , 23 L.Ed.2d 707 (1969), the United States Supreme Court held that the Double Jeopardy Clause of the Fifth Amendment, requiring that “[n]o person be subject for the same offense to be twice put in jeopardy of life or limb,” was applicable to state criminal proceedings through the Fourteenth Amendment. Id. at 796 , 89 S.Ct. at 2062 , 23 L.Ed.2d at 715 . The Double Jeopardy Clause prohibits cumulative punishment as well as successive prosecution.

Brown v. Ohio, 432 U.S. 161, 165-66 , 97 S.Ct. 2221, 2225 , 53 L.Ed.2d 187, 194 (1977). As the Supreme Court has stated, “to subject the individual to repeated prosecutions for the same offense would cut deeply ⁸⁹ into the framework of procedural protections which the Constitution establishes for the conduct of a criminal trial.” United States v. Jorn, 400 U.S. 470, 479 , 91 S.Ct. 547, 554 , 27 L.Ed.2d 543, 553 (1971). The Double Jeopardy Clause unequivocally bars the retrial of a defendant after a final judgment of acquittal. Arizona v. Washington, 434 U.S. 497, 503 , 98 S.Ct. 824, 829 , 54 L.Ed.2d 717, 726-27 (1978).

Retrial is not automatically barred, however, when a criminal proceeding is concluded after jeopardy attaches but without resolving the merits of the ease. As Justice Stevens stated in Arizona v. Washington: Unlike the situation in which the trial has ended in an acquittal or conviction, retrial is not automatically barred when a criminal proceeding is terminated without finally resolving the merits of the charges against the accused. Because of the variety of circumstances that may make it necessary to discharge a jury before a trial is concluded, and because those circumstances do not invariably create unfairness to the accused, his valued right to have the trial concluded by a particular tribunal is sometimes subordinate to the public interest in affording the prosecutor one full and fair opportunity to present his evidence to an impartial jury. Yet in view of the importance of the right, and the fact that it is frustrated by any mistrial, the prosecutor must shoulder the burden of justifying the mistrial if he is to avoid the double jeopardy bar.

His burden is a heavy one. The prosecutor must demonstrate “manifest necessity” for any mistrial declared over the objection of the defendant. 434 U.S. at 505 , 98 S.Ct. at 830 , 54 L.Ed.2d at 728 (emphasis added). If granting a mistrial over objection was manifestly necessary, the defendant may be retried without implicating the Double Jeopardy Clause; if there were no manifest necessity for the mistrial determination over objection, the defendant could not be retried. 6 ⁹⁰ In the present case, the jury had been empaneled and sworn, so that jeopardy had attached. See Illinois v. Somerville, 410 U.S. 458, 467 , 93 S.Ct. 1066, 1072 , 35 L.Ed.2d 425, 433 (1973) (stating that jeopardy attaches in a jury trial when the jury is empaneled and sworn); State v. Woodson, 338 Md. 322, 329 , 658 A.2d 272, 276 (1995) (same).

Both Hubbard and Earl objected to the grant of the mistrial. The sole issue, then, is whether the judge erred when he declared a mistrial based upon manifest necessity. B. Manifest Necessity Whether manifest necessity to declare a mistrial and avoid double jeopardy exists is based upon the unique facts and circumstances of each case. See Jorn, 400 U.S. at 480 , 91 S.Ct. at 555 , 27 L.Ed.2d at 554 (“[The Supreme] Court has, for the most part, explicitly declined the invitation of litigants to formulate rules based on categories of circumstances which will permit or preclude retrial.”).

The concept of manifest necessity was introduced in United States v. Perez, 9 Wheat. 579 , 22 U.S. 579 , 6 L.Ed. 165 (1824), when the Supreme Court declared: We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a