Johnson v. State

Battaglia, J. Does an acquittal entered weeks after a judge declared a mistrial and discharged the jury have the same effect as an acquittal declared after all of the evidence is adduced under Maryland Rule 4-324? 1 Michael M. Johnson, Petitioner, as ⁷⁰⁴ serts that the answer must be yes, while the State would answer the question in the negative. The four questions raised by Johnson in his petition for certiorari, 2 449 Md. 410 , 144 A.3d 705 (2016), which we have collapsed into two for clarity, queue up the issue: 1. Was the trial court’s grant of the motion for judgment of acquittal procedurally proper because the court had the authority to reconsider and retract the grant of a mistrial because it retained the fundamental jurisdiction to render the ruling? 2. Did the trial court’s grant of petitioner’s motion for judgment of acquittal on the express basis of legally insufficient evidence preclude further proceedings under the Maryland common law of double jeopardy and/or the Federal Constitutional prohibition upon double jeopardy? ⁷⁰⁵ We shall hold that the trial judge did not have the authority to grant an acquittal, after he had declared a mistrial and discharged the jury, so that federal Constitutional and Mary-land common law principles of double jeopardy are not implicated.

The saga in the present ease began when Johnson was acquitted of murder in the first degree but convicted of murder in the second degree after a jury trial in February 2013 in the Circuit Court for Baltimore City. Johnson then filed a Motion for New Trial arguing various discovery violations under Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963), 3 as well as “prosecutorial vouching,” 4 and that the State had withheld evidence. The Circuit Court Judge, who had presided over the trial, granted the motion for a new trial, and the second trial began in December of 2014. Prior to the second trial, Johnson moved to redact recorded portions of his conversations captured in a wiretap of his cell phone in 2011 and in a recorded jail call in 2013.

In the motion, Johnson requested that references to his first-degree murder charge, of which he had been acquitted, as well as any references to his attorney from the first trial, Russell Never-don, be redacted from the recordings. A different circuit court judge presided over the second trial and, during trial, ruled that the redactions should occur. Later during the proceedings, it appeared that redactions of a recording of a conversation with Johnson from Johnson’s cell ⁷⁰⁶ phone on October 19, 2011, had not occurred. In his call, Johnson referred to his former attorney, Russell Neverdon, as well as a call from “Tabbie” to Mr. Neverdon.

In the same recorded conversation, there was still reference to the first-degree murder charge, which also was supposed to have been redacted by the State. Johnson’s counsel immediately moved for a mistrial: [JOHNSON’S ATTORNEY]: Your Honor, may we stop the playing of it? (Counsel and Defendant approached the bench, and the following occurred:) [JOHNSON’S ATTORNEY]: Your Honor, objection and we would move for a mistrial. Clearly, the disk has not been redacted and it’s starting to talk about first-degree and second-degree murder. [THE STATE]: The transcript is redacted.

THE COURT: Yeah, give me a copy of the transcript. (Pause.) THE COURT: I mean, that was to—oh, it’s way back when. [THE STATE]: Right. THE COURT: I’m going to deny the motion at this time. Let’s send the jury upstairs.

After a recess, the Circuit Court Judge asked that the State “address the issue” regarding the unredacted statements in the recordings, because he “ha[d]n’t ruled yet” with respect to the mistrial: [THE STATE]: So what I would suggest is—we have it paused just after where we stopped, I would suggest we just resume when the jury comes down, finish playing it, keep it moving. Obviously, it will have to be redacted before it goes back to the jury. THE COURT: Yeah. The Defense is—why don’t you address the issue, the Defense has requested a mistrial as a result. ⁷⁰⁷ [THE STATE]: Oh, I apologize, Your Honor.

You indicated you were—I thought you indicated you were denying their motion. THE COURT: No, I haven’t ruled yet. After discussion about redactions having occurred in the transcript but not in the recordings, the judge ordered the recordings to be replayed. Upon hearing the recordings, the judge ordered the tapes to be “cleaned up again” 5 and in ⁷⁰⁸ structed the jury to disregard any reference to the warrant, which mentioned first-degree murder charges, as well as “any reference to actions taken by a person identified as ‘Tabbie.’ ” The tapes of the wiretapped conversation on October 19, 2011, began, but again, problems arose.

Johnson objected to additional references to the first-degree murder charge in the tape. After reviewing the recording with counsel, the Circuit Court Judge announced, “I’m going to give [the jury] the same instruction, but we’ll revisit this,” and that he would “have the weekend to think about this.” The jury was reconvened, and the trial continued. The State rested its case later that day, after which Johnson made a motion for judgment of acquittal. The Circuit Court Judge declared that he would consider the motion “first thing” on Monday morning: “I would prefer to put that issue off until Monday because ...

I’ve got this other issue to consider between now and then, too,” referring to the motion for mistrial. Immediately upon reassembling the next Monday, the Circuit Court Judge granted Johnson’s motion for mistrial made the previous Friday and ordered that a new trial date be established: THE COURT: Good morning. In addition to any potential preliminary matters you all may have, we still have pending before the Court, a motion by the Defense for a mistrial. For the reasons, which I’ll state in a moment, I’m going to grant that Motion for a Mistrial.

The substance of the issue relates to the playing of certain information, which was—by agreement and Court Order—not to be heard by the jury. ⁷⁰⁹ If there was one incident of such material, and it was addressed by the Court, and a motion for a mistrial was denied as to that—but the second incident is somewhat different; in that, it’s repetitive. If the Court believed that it was intentional or so grossly negligent on the part of the State, the ruling would be different than it is now. But because the Court had the opportunity to actually observe the reaction of the Assistant State’s Attorneys conducting this trial, in realizing what was happening—and clearly, I have never seen a look of shock on an attorney in my courtroom, more than I detected the look of shock on the faces of [the State]—and for that reason I am going to grant the Motion for a Mistrial. What is now going to happen as a result of the mistrial, is that we will reconvene tomorrow morning, and we will pick a new trial date.

So, I’ll ask Counsel to be present tomorrow morning at 9:30 with their calendars. In response, Johnson objected to the judge’s characterization of the State’s actions in bringing about the mistrial as unintentional and announced his opposition to retrial on double jeopardy grounds: [JOHNSON’S ATTORNEY]: Your Honor, I’ve had an opportunity briefly to speak with Mr. Johnson. And I do want the record to reflect that obviously, Your Honor, has granted our request for a mistrial. But that we do not agree or accept the Court’s factual findings regarding the State’s position in this case.

We do not accept that it was not an intentional act on their part. It will be our position that a re-prosecution of Mr. Johnson in this case will be barred by double jeopardy, as a result of the State’s actions. And I just wanted to make that clear on the record at this time. There was no reference by anyone to Johnson’s motion for judgment of acquittal made the previous Friday.

The Circuit Court Judge discharged the jury, telling them “the case has ⁷¹⁰ been concluded—at least in that case which you would be required to consider the evidence.” The next day, the Circuit Court Judge scheduled Johnson’s retrial for March 9, 2015, after meeting with the parties. On January 15, 2015, weeks after the case was rescheduled, Johnson filed a Motion to Dismiss Indictment on Grounds of Double Jeopardy, wherein he argued that his reprosecution was barred, because the State had intentionally provoked the mistrial, there was no manifest necessity at the time the mistrial was granted, and “the State’s evidence was legally insufficient to sustain a conviction.” A week later and almost a month after declaring the mistrial and discharging the jury, the Circuit Court Judge, on January 20, 2015, held a hearing on Johnson’s motion to dismiss the case on double jeopardy grounds and referred to Johnson’s suggestion that the State’s evidence in the case was insufficient: THE COURT: Good morning. Before the Court are motions of the defense essentially to dismiss the case on the basis of double jeopardy grounds. And also, as part of that same motion is an issue related to whether or not the Court did or should address the issue of whether or not the evidence was sufficient at the close of Plaintiffs case which is where we were when the mistrial was granted.

In light of the fact that I’ve received the motion and it’s in writing, I would suggest that I hear from the State and then I’ll allow you to respond unless there’s something additional you feel that should be added to your motion ’cause your motion’s rather detailed. The Circuit Court Judge solicited arguments from both parties on the “merits of the motion for judgment of acquittal” with respect to the sufficiency of the State’s evidence. After hearing arguments, the judge struck his previous grant of a mistrial and dismissed the second-degree murder charge against Johnson based on insufficiency of the evidence: THE COURT: Good afternoon. We had a hearing this morning with regard to the—the title of the motion was motion to dismiss indictment on grounds of double jeopardy. ⁷¹¹ For reasons that are more fully set forth in the order which I’ll be filing, the Court is striking the granting of the mistrial and the Court will find that there is insufficient evidence as presented at the trial to convict Mr. Johnson and the charges are therefore dismissed.

An “Order Striking Motion for Mistrial and Granting Motion for Judgment of Acquittal” was entered the same day. In the Order, the judge responded to Johnson’s arguments that the State had goaded him into making the Motion for Mistrial when he wrote, “[T]he Court is still unpersuaded that its observations were wrong,” with respect to the State’s lack of intent in playing the unredacted audio recordings, but also expressed that he was “troubled by the posture of the case because of the failure to rule upon the [motion for judgment of acquittal] which the record clearly demonstrate^] the Court [had] stated it was to consider ‘first thing.’ ” The Order manifested the Court’s reconsideration of both the grant of the mistrial and his failure to rule upon the motion for judgment of acquittal: [T]he Court will treat the Motion of the Defense as a motion to reconsider its rulings, both with regard to the subject matter of the [motion for judgment of acquittal] and the [motion for mistrial], and will strike the grant of the mistrial and consider the [motion for judgment of acquittal]. In his Order, the Judge granted the motion for judgment of acquittal after considering that the State’s evidence was “unarguably circumstantial,” with “no smoking gun” in the case: The case against the Defendant is unarguably circumstantial. With essentially no direct evidence, the State presented many intriguing issues that suggest the Defendant may have been involved in the disappearance and death of Ms. Barnes. ... * ⅛ ⅜ There was a tremendous amount of testimony from investigating officers of the Baltimore City Police Department, Maryland State Agencies and the Federal Bureau of Inves ⁷¹² tigation.

Among other things, their testimony included information as to sex-related websites the Defendant visited, and hundreds of text messages between the Defendant and the decedent as well as a sexually explicit video which included the decedent and the Defendant, which was found on the phones of Defendant and Ms. Barnes’ sister as well. As conceded in argument by the State, there was “no smoking gun” in this case. Accordingly, the Court concludes there was insufficient evidence when taken as a whole, to establish the criminal culpability of Michael Johnson of second-degree murder. That being the conclusion of the court, the Motion for Judgment of Acquittal must be granted, there not being legally sufficient evidence to establish the guilt of the Defendant.

The State subsequently reindicted Johnson for second-degree murder. In response, in February of 2015, Johnson filed a Motion to Dismiss the Indictment, arguing that Johnson’s acquittal barred further proceedings under double jeopardy. The trial judge dismissed the indictment following a hearing on the motion, orally expressing his belief that he had the authority to “correct a procedural misstep” by retracting the mistrial and granting the motion for judgment of acquittal: I don’t disagree that there were procedural missteps, but the procedural misstep came in this case when I failed to do what I said I was going to do, which was to address the Motion for Judgment of Acquittal first thing Monday morning and then failed to do what I had indicated I was going to do. ⅜ ⅜ ⅜ I believe, I did believe at the time that I had the authority to correct a procedural misstep that I had made in a commitment that I had made to both the State and Defense to rule on the issue of the joint—the Motion for Judgment of Acquittal, that I corrected that by striking the Motion for Mistrial and ruling as I did. ⅜ * * ⁷¹³ ... I thank you for indicating the difficulty that is presented when a judge is called upon to essentially judge his own prior determinations, but judges have to do that all the time, and in this case I believe that my ruling on the Judgment of Acquittal was correct at the time I ruled it, and I will grant the Motion to Dismiss the Indictment.

The State appealed to the Court of Special Appeals, 6 arguing, as it does before us, that the judge’s declaration of a mistrial and discharge of the jury terminated the judge’s authority over the case, which obviated the judge’s ability to acquit Johnson. Johnson countered, as he does before us, that the trial judge had jurisdiction to grant his motion for judgment of acquittal and had broad discretion to reconsider his having granted the motion for mistrial. In a published opinion, the Court of Special Appeals reversed the dismissal of Johnson’s case, determining that the principles of double jeopardy did not bar Johnson’s retrial, because the trial court could not acquit Johnson after declaring a mistrial and discharging the jury. State v. Johnson, 228 Md.App. 489 , 139 A.3d 1095 (2016).

In so doing, the intermediate appellate court concluded that the judge lacked the authority to do so after he had declared a mistrial and discharged the jury, explaining that, “the grant of a mistrial had the legal effect of declaring that the trial in the second prosecution had never taken place.” Id. at 508 , 139 A.3d 1095 . Once the mistrial was declared, according to the Court of Special Appeals, the judge could not “exercise fundamental jurisdiction over subject matter that no longer exists.” Id. at 509 , 139 A.3d 1095 . The Court also noted that the Circuit Court Judge could not reconsider the grant of the mistrial, in the absence of any statute or rule permitting the ⁷¹⁴ exercise of that kind of “revisory power.” Id. at 511 , 139 A.3d 1095 . Further, the Court of Special Appeals opined that if such power did exist, it could not be exercised after the jury is discharged, because “[ajfter the jury is discharged, there is no legal or practical way to place the parties in the same position as they held immediately prior to the declaration of a mistrial.” Id.

The dissent penned by Judge Daniel Friedman, however, rejected the notion that the mistrial and discharge of the jury left the Circuit Court Judge without jurisdiction to later acquit Johnson. He iterated that a mistrial brings the parties back to a point earlier in the prosecution but does not deprive the trial court of the fundamental jurisdiction to render an acquittal. Judge Friedman noted that the grant of a motion for judgment of acquittal was “procedurally defective” under Rule 4-324, but iterated that an acquittal at any time prohibits an appeal by the State and a retrial. Id. at 514 , 139 A.3d 1095 (Friedman, J., dissenting).

The same dichotomy confronts us in our review: Is an acquittal, an acquittal, or did the trial judge’s failure to adhere to the tenets of Rule 4-324, as well as his declaration of a mistrial and discharge of the jury end his authority to grant Johnson’s motion for judgment of acquittal? Johnson primarily claims that the trial court never lost “fundamental jurisdiction” to grant his motion for judgment of acquittal after the judge had reconsidered and rescinded his grant of a mistrial. Johnson contends that an acquittal is an acquittal, no matter how erroneous it was or at what juncture it was entered and that the acquittal bars his retrial under both the Fifth Amendment and Maryland common law’s prohibition against double jeopardy. The State maintains that more than subject matter and personal jurisdictions were required to acquit Johnson.

Rather, the State asserts that the grant of Johnson’s motion for mistrial initiated the beginning of new proceedings in the case and that legal insufficiency in the prior proceedings was no longer on the table. ⁷¹⁵ In Maryland, Rule 4-824 governs when a defendant may move for a judgment of acquittal during trial and the trial court’s procedures in granting or dismissing a defendant’s motion, as well as when a judge may acquit a defendant on her own motion 7 : (a) Generally. A defendant may move for judgment of acquittal on one or more counts, or on one or more degrees of an offense which by law is divided into degrees, at the close of the evidence offered by the State and, in a jury trial, at the close of all the evidence. The defendant shall state with particularity all reasons why the motion should be granted. No objection to the motion for judgment of acquittal shall be necessary.

A defendant does not waive the right to make the motion by introducing evidence during the presentation of the State’s case. (b) Action by the court. If the court grants a motion for judgment of acquittal or determines on its own motion that a judgment of acquittal should be granted, it shall enter the judgment or direct the clerk to enter the judgment and to ⁷¹⁶ note that it has been entered by direction of the court. The court shall specify each count or degree of an offense to which the judgment of acquittal applies, * * * (c) Effect of denial.

A defendant who moves for judgment of acquittal at the close of evidence offered by the State may offer evidence in the event the motion is not granted, without having reserved the right to do so and to the same extent as if the motion had not been made. In so doing, the defendant withdraws the motion. The Rule does not provide that a trial judge can reserve her ruling on a motion for judgment of acquittal made before submission of the case to the jury, nor does it provide for a post-judgment motion for judgment of acquittal. In contrast, Rule 29 of the Federal Rules of Criminal Procedure permits the trial judge to reserve ruling on a motion for judgment of acquittal made before submission of the case to a jury.

The Federal Rule also allows a defendant to move for judgment of acquittal within 14 days after a jury returns with a guilty verdict or after the jury is discharged: (a) Before Submission to the Jury. After the government closes its evidence or after the close of all the evidence, the court on the defendant’s motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction. The court may on its own consider whether the evidence is insufficient to sustain a conviction. If the court denies a motion for a judgment of acquittal at the close of the government’s evidence, the defendant may offer evidence without having reserved the right to do so.

(b) Reserving Decision. The court may reserve decision on the motion, proceed with the trial (where the motion is made before the close of all the evidence), submit the case to the jury, and decide the motion either before the jury returns a verdict or after it returns a verdict of guilty or is discharged without having returned a verdict. If the court reserves decision, it must decide the motion on the basis of the evidence at the time the ruling was reserved. ⁷¹⁷ (c) After Jury Verdict or Discharge. (1) Time for a Motion.

A defendant may move for a judgment of acquittal, or renew such a motion, within 14 days after a guilty verdict or after the court discharges the jury, whichever is later. (2) Ruling on the Motion. If the jury has returned a guilty verdict, the court may set aside the verdict and enter an acquittal. If the jury has failed to return a verdict, the court may enter a judgment of acquittal.

(3) No Prior Motion Required. A defendant is not required to move for a judgment of acquittal before the court submits the case to the jury as a prerequisite for making such a motion after jury discharge. (d) Conditional Ruling on a Motion for a New Trial. (1) Motion for a New Trial.

If the court enters a judgment of acquittal after a guilty verdict, the court must also conditionally determine whether any motion for a new trial should be granted if the judgment of acquittal is later vacated or reversed. The court must specify the reasons for that determination. (2) Finality. The court’s order conditionally granting a motion for a new trial does not affect the finality of the judgment of acquittal.

(3) Appeal. (A) Grant of a Motion for a New Trial. If the court conditionally grants a motion for a new trial and an appellate court later reverses the judgment of acquittal, the trial court must proceed with the new trial unless the appellate court orders otherwise. (B) Denial of a Motion for a New Trial.

If the court conditionally denies a motion for a new trial, an appel-lee may assert that the denial was erroneous. If the appellate court later reverses the judgment of acquittal, the trial court must proceed as the appellate court directs. ⁷¹⁸ Many of our sister states, including Alaska, Colorado, Connecticut, Delaware, Hawaii, Idaho, Indiana, Iowa, Kansas, Maine, Massachusetts, Missouri, New York, Pennsylvania, Rhode Island, Tennessee, West Virginia, and Wyoming, in addition to the District of Columbia, have followed the federal example and specifically provide that a judge may reserve her ruling until after submission to the jury, as well as allow a defendant to file a motion for judgment of acquittal following submission of the case to the jury or its discharge within various time tables. Alaska R. Crim. P. 29; Colo.

R. Crim. P. 29; Conn. Super. Ct. R. § 42-40; Del.

Super. Ct. Crim. R. 29; Haw. R. Penal P. 29; Idaho Crim.

R. 29; Ind. R. Tr. P. 50; Iowa R. Crim. P. 2.19(8) (only allowing for reservation of ruling); Kan.

Stat. Ann. § 22-3419 (2007); Me. R. Unif. Crim. P. 29; Mass.

R. Crim. P. 25; Mo. Supr. Ct. R. 27.07; N.Y. Crim.

Proc. Law § 290.10 (Consol. 2012) (only allowing for reservation of ruling); Pa. R. Crim. P. 606; R.I. Super.

Ct. R. Crim. P. 29 (only allowing for reservation of ruling); Tenn. R. Crim. P. 29; W. Va.

R. Crim. P. 29; Wyo. R. Crim. P. 29; D.C. Super.

Ct. R. Crim. P. 29. The absence in our rule of permission for a trial judge to reserve ruling on a motion for judgment of acquittal was addressed in State v. Sirbaugh, 27 Md.App. 290 , 339 A.2d 697 (1975), and Malarkey v. State, 188 Md.App. 126 , 981 A.2d 675 (2009), in which the Court of Special Appeals rejected the trial court’s ability to acquit. In Sirbaugh , Sirbaugh was charged with automobile manslaughter and other motor vehicle crimes.

Sirbaugh’s attorneys moved for a judgment of acquittal at the close of the evidence and the trial judge reserved ruling on the motion, before submitting the case to the jury. The judge, thereafter, declared a mistrial due to a juror’s illness, then granted the judgment of acquittal and dismissed the indictment. The State later reindicted Sirbaugh for manslaughter by automobile, and Sirbaugh moved to dismiss the indictment on double jeopardy grounds. The trial judge granted Sir-baugh’s motion, and the State appealed.

On appeal, our intermediate appellate court determined that the trial judge could not reserve his ruling on the motion for ⁷¹⁹ judgment of acquittal. By attempting to do so, the trial judge had effectively denied the motion, because he had been required to either grant or deny the motion before he submitted the case to the jury pursuant to Maryland Rule 755, 8 the predecessor to the current Rule 4-324: [I]n a criminal jury case, the trial judge has two options: (1) grant a motion for judgment of acquittal, or (2) deny the motion and submit the case to the jury. He has no authority to reserve his ruling on the motion for judgment of acquittal and at the same time submit the case to the jury. If he follows such a course, it is tantamount to denying the motion.

Sirbaugh, 27 Md.App. at 294 , 339 A.2d 697 . In language prescient to the present case, the Court of Special Appeals further reasoned that, practically speaking, the declaration of the mistrial and discharge of the jury had served to divest the trial judge’s authority to take any action in the case: We think, however, the simple answer to the factual situation presented in this appeal is found in the action of the trial judge in declaring a mistrial and then endeavoring to make a ruling on the motion for judgment of acquittal, ⁷²⁰ which ruling he had previously purported to reserve. It is clear that such action was a nullity since once he had declared a mistrial and dismissed the jury, he lost all authority to take any action in the case. The declaration of the mistrial and the dismissal of the jury ended the trial and ended the judge’s participation therein.

Thus, his purported ruling on the motion was completely ineffectual and meaningless. Id. In Malarkey , the Court of Special Appeals again had occasion to address whether the trial court could reserve ruling on the defendant’s timely motion for judgment of acquittal prior to submission of the case to the jury. The judge had declared a mistrial after the jury was deadlocked.

Months later, Malarkey filed a post-trial “Motion for Judgment of Acquittal,” which the trial court denied. On appeal, our intermediate appellate court emphasized that Rule 4-324 did not authorize a judge to be able to reserve his ruling on a motion for judgment of acquittal, as opposed to Rule 2-532 in the civil context 9 and Federal Rule 29: ⁷²¹ By its terms, Md. Rule 4-324 does not authorize a court to reserve its ruling on a motion for judgment of acquittal, in contrast to the civil context. See Rule 2-532. The Court of Appeals and the General Assembly are obviously aware of F. R. Crim.

P. 29. Neither has seen fit to conform Rule 4-324 to F. R. Crim. P. 29. Malarkey, 188 Md.App. at 160 , 981 A.2d 675 .

Like in Sirbaugh , the Court of Special Appeals determined that the trial judge’s reservation of a ruling on the motion for judgment of acquittal “was tantamount to a denial of the motions for acquittal when the court submitted the case to the jury.” Id. at 162, 981 A.2d 675 . The implications of a trial court’s acquittal of a defendant outside of the confines of the governing rule have also been ⁷²² addressed by the Supreme Court in Carlisle v. United States, 517 U.S. 416 , 116 S.Ct. 1460 , 134 L.Ed.2d 613 (1996), in which the Court affirmed the Sixth Circuit Court of Appeals’ reversal of the grant of an untimely post-verdict motion for judgment of acquittal outside of the purview of Federal Rule 29. The Supreme Court observed that the text of Federal Rule 29 was clear and unambiguous, and it did not permit the trial judge to grant an untimely post-verdict motion for judgment of acquittal, nor did the Rule provide that the judge could render an acquittal, after the verdict, on his own motion. The Court further rejected the notion that the trial court had the inherent power to “circumvent or conflict” with the Rules in order to enter the acquittal, id. at 426 , 116 S.Ct. 1460 ; the Court noted that such an interpretation “would create an odd system in which defense counsel could move for judgment of acquittal for only seven days after the jury’s discharge, but the court’s power to enter such a judgment would linger.” Id. at 422 , 116 S.Ct. 1460 .

The majority concluded that the provisions of the Rule were determinative of when the trial court’s power to acquit came to an end: The dissent makes the sweeping assertion that “a district court clearly has the inherent authority to ensure that a legally innocent defendant is not wrongfully convicted,” post, at 442. Perhaps so. As the dissent itself recognizes, however, that power has come to an end once an appeal has been taken. Post, at 452-453.

We are in accord, then, that there is some point at which the district court is rendered powerless to enter a judgment of acquittal, and the disagreement between us and the dissent comes down to nothing more cosmic than the question of timing—which we find answered by the text of Rule 29. Id. at 430-31 . Thus, the reasoned judgment is that when the trial judge acted outside of the strictures of Rule 4-324 in the instant case, he acted without authority. As the Supreme Court opined in Carlisle , the trial judge was “rendered powerless to enter a judgment of acquittal.” Id. at 430 , 116 S.Ct. 1460 . ⁷²³ Johnson argues, however, and the dissent in the Court of Special Appeals asserted, that an acquittal entered by a judge at any time, even though procedurally defective, engages double jeopardy protections.

Johnson’s counsel urged before us that a judge could enter an acquittal in a case sua sponte at any time after conviction, until the State would suffer prejudice. The following colloquy took place at oral argument: THE COURT: The jury was discharged. Under our facts, there’s a subsequent motion filed. JOHNSON’S ATTORNEY: Could he do it sua, spontel THE COURT: Could he have done it?

JOHNSON’S ATTORNEY: Absolutely. Sure. THE COURT: How long does that jurisdiction last forward in time? JOHNSON’S ATTORNEY: Once again, it’s a question with multiple answers, and I ask the Court’s indulgence to answer it in a couple of different ways.

First, the granting of the acquittal, in order to fend off what the judge views as an evident miscarriage of justice, can be done up until—now again, case law says mistiming doesn’t affect an acquittal, and we would certainly rest with that—but we would say that it would last up until there was evident prejudice to the State. And the reason for that is that delay in the law takes on meaning only to the extent that it is prejudicial to a party. This Court has said that in various contexts, the Constitution’s speedy trial context, the preindictment delay context, the doctrine of laches. In many contexts, a party says delay, delay, delay.

That’s our position. Well, delay only takes on meaning if it’s prejudicial. It would be our view that whether sua sponte or in response to a request from a party, a judge’s delay in making a ruling of that sort is not a problem so long as there has not been irremediable prejudice to the other party, in which case, honestly there would be a party. In the present case— THE COURT: Mr. Braudes, would that include after sentencing? ⁷²⁴ JOHNSON’S ATTORNEY: That, of course, is not this case, Your Honor.

THE COURT: I know. But when you’re talking about the issue of how long in criminal cases, it could be sentencing, after appeals, after a person’s been, say, imprisoned, or whatever. JOHNSON’S ATTORNEY: If a judge, on reflection, on the basis of subsequent case law, on the basis of conscience, decides the evidence was legally insufficient to support the conviction of this individual, there has been a miscarriage of justice. ... In fairness, the judge should conduct a hearing on that.

But does the judge retain jurisdiction to do it? Yes, absolutely. Again, absent prejudice to the State, which has not even been suggested in this case. Although Johnson’s counsel’s reasoning is open to question, he grounds it in double jeopardy principles.

With respect to double jeopardy, this Court in Kendall v. State, 429 Md. 476, 484-86 , 56 A.3d 223 (2012), recently expounded on its jurisprudence under the federal Constitution and Maryland common law: The federal Constitution provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” United States Constitution, Fifth Amendment. [] That protection is also a fundamental part of Maryland common law. See State v. Taylor, 371 Md. 617, 629-30 , 810 A.2d 964 (2002). In a nonjury trial, jeopardy ordinarily attaches when the first witness is sworn, Crist v. Bretz, 437 U.S. 28 , 37 n.15, 98 S.Ct. 2156 , 57 L.Ed.2d 24 (1978), although in some circumstances it may attach without the appearance of a witness if the defendant is “subjected to the risk of conviction.” Daff v. State, 317 Md. 678, 688-89 , 566 A.2d 120 (1989) (acquittal following failure of prosecution witnesses to appear for trial). For each offense for which the defendant is thereafter acquitted, both the federal Constitution and State common law prohibit a second prosecution.

See Benton v. Maryland, 395 U.S. 784, 796 , 89 S.Ct. 2056 , 23 L.Ed.2d 707 (1969) (federal Constitution); Gianiny v. State, 320 Md. 337, 342 , 577 A.2d 795 (1990) (Maryland ⁷²⁵ common law). “If the innocence of the accused has been confirmed by a final judgment, the Constitution conclusively presumes that a second trial would be unfair,” even if the acquittal was based on an “egregiously erroneous foundation ” United States v. DiFrancesco, 449 U.S. 117, 129 , 101 S.Ct. 426 , 66 L.Ed.2d 328 (1980); see also Fong Foo v. United States, 369 U.S. 141 , 82 S.Ct. 671 , 7 L.Ed.2d 629 (1962).[] Nor are double jeopardy protections vulnerable to judicial