Jones v. State

Smith, J., delivered the opinion of the Court. In her effort to avoid a second trial on charges of conspiracy to distribute heroin and possession of heroin with intent to distribute, Anna Mae Jones seeks to have us hold that the error which caused the Court of Special Appeals to direct a new trial after her conviction was such that yet another trial is forbidden under the Double Jeopardy Clause of U. S. Const, amend. V. We shall affirm the decision of the Court of Special Appeals in Jones v. State, 44 Md. App. 417 , 409 A.2d 725 (1979), which held to the contrary. Mrs. Jones was convicted by a jury in the Criminal Court of Baltimore.

Apparently, Mrs. Jones and some of her associates were ⁶²⁰ the target of an extensive investigation. An order for a tap of her telephone was obtained. 1 The recorded conversations introduced at trial between Mrs. Jones, Raymond Fortune, and others concerned the possession, distribution, and sale of heroin. She was arrested immediately after the last recorded conversation. At that time she had nearly $8,000 in cash on her person.

The controversy here involves in part search of an apartment in Baltimore County. (This is not the apartment where the telephone was maintained.) The apartment was leased in the name of Mrs. Jones. A search warrant was procured. Fruits of that search included a lease in the name of Mrs. Jones, miscellaneous papers, and more than $35,000 in secreted cash.

Apparently a notebook seized at this time was lost. In response to a motion made pursuant to Maryland Rule 741 b 5 for permission to inspect and copy it, the State indicated it did not intend to use this material at trial. Yet another search warrant was issued and executed pertaining to premises said to be those of Raymond Fortune. Substantial quantities of controlled dangerous substances and paraphernalia were seized.

The trial opened with the introduction of the wiretap evidence. The State’s expert identified Mrs. Jones’ code name. He interpreted for the jury the jargon used. As interpreted, it disclosed the substantial involvement of Mrs. Jones with heroin traffic.

Fortune testified that he had known Mrs. Jones all of his life, that the narcotics seized from his home had been received from her on consignment on approximately May 1, 1976, that he had been engaged in narcotics transactions with her since about October of 1974 or 1975, and that prior to May 1, 1976, he had been receiving an average of ten ounces of heroin a month from Mrs. Jones, paying her about $16,000 for it. The controversy which produces this appeal arose from the testimony of Corporal Fred Settle of the Maryland State ⁶²¹ Police, the second witness called. On the day of Mrs. Jones’ arrest he executed a search and seizure warrant at the apartment leased in her name in Baltimore County. On direct examination he related his purpose in searching the premises, the finding of the lease in Mrs. Jones’ name, the secreted money and various miscellaneous papers.

On cross-examination he was specifically asked whether he found any narcotics during the search. He said that he did not. He was then asked whether he found "any cutting materials, lactose, dextrose, any type of materials of that nature at the apartment?” He answered in the negative to that question and to one as to whether he found any glassine bags. Then redirect examination was begun by the assistant State’s attorney, Mr. Denholm.

The record reflects: Q. Relative to this case, sir, how many times were you involved in surveillance or had knowledge of surveillance of 12 Cedar Heights apartment? A. Approximately twelve or fifteen. Q. Twelve or fifteen times. Now, when you executed the search and seizure warrant at 12 Cedar Heights on March 9th, 1976, did you find any evidence of narcotic dealings — MR.

SMITH: Objection. MR. DENHOLM: — at the premises of 12 Cedar Heights? THE COURT: Sustained.

MR. DENHOLM: May we approach the bench one moment, Your Honor. THE COURT: Yes. (Whereupon the following proceedings were had at the bench, out of the hearing of the jury:) MR.

DENHOLM: Your Honor, the reason — THE COURT: Where are you going — MR. SMITH: This is a dangerous area, dangerous thin ice as far as the defense is concerned with reference to that book. I mean, we would move and think we would be entitled to mistrial if there is any reference to that book, reference to — ⁶²² THE COURT: Why would you think so? MR.

SMITH: Because of what we discussed pre-trial. There is some prejudicial material in that and they can’t find it and we can show it and we can show it was not our defendant’s book. MR. DENHOLM: We never said it was your defendant’s book.

I just said it was a book found with some numbers and writing. That’s — and the State was not — the State had no intention of bringing this out, which it did not on its direct examination but the picture was framed for the jury on cross examination, that question, money was found, but no drugs were found. So, consequently, there was no narcotic violations found at this premise. Now, I’m asking, was there any evidence that would indicate narcotic transactions were going on at that premises.

No — I don’t know if any was found. I do not know how the fact that a lost book, which indicated names and addresses, I assume, and narcotic transactions would not be relevant in response to those questions that he, the defense asked. THE COURT: Well, I think we’ll have to ask those questions out of the presence of the jury, then. You certainly can bring in a book if there is a sufficient explanation of the loss, but that has to be determined.

MR. SMITH: Your Honor, the State does not need this book. This book has the word heroin in it. I can show you exactly what the book contained based on what they gave us pretrial.

It’s an extremely prejudicial piece of evidence. MR. BELSKY: We asked for it. THE COURT: If you have seen the book pretrial — MR.

SMITH: I have not seen the book, I have seen the summary of what they say is in the book. ⁶²³ THE COURT: I’m going to find out what happened to the book before I decide on whether evidence regarding it is admissible. Out of the presence of the jury, the court was engaged for the remainder of that afternoon and all of the following morning in taking testimony relative to the circumstances surrounding the loss of the notebook and hearing argument as to whether testimony should be permitted concerning its contents. Ultimately, the testimony was ruled admissible. The trial judge observed in pertinent part: Now, certainly, if the book existed, it would be admissible in evidence.

The defense would have an opportunity to look at it and do whatever they wished with regard to getting the information that it would provide. They would presumably, with this in the evidence, they would have to take certain action to counteract it in some way by way of defense. That presumably would be in various forms, by witnesses who would say that the defendant did not live at the house, that someone else also lived in the house, that it did not belong to the defendant. . .. This would be available today as far as verbal testimony is concerned as it would have had the book been in evidence.

The only thing that the defense could not do was to have the handwriting of the notes made, analyzed, to determine whether or not the defendant herself wrote the article, items in this book. That would be the only thing. There would be other available ways to counteract that evidence. Now, the question is whether or not the fact that it cannot be analyzed is such prejudice as to prevent the introduction of this testimonial evidence concerning that book or not.

The Court feels that it can be qualified; that there is no evidence as to the handwriting as to the person ⁶²⁴ who wrote it and other evidence still is available to answer it. The Court does not, and thinks that it would be unfair to the State not to be able to put in the evidence involved, just as it would be unfair to the defendants not to put in the fact that nothing was found on May the 5th, which they wish to do and which they are going to be permitted to do, because the Court feels that all relevant evidence should be before the jury for its consideration. Corporal Settle described the book and what it contained. He then stated in response to a question as to what he recalled relative to its contents: To the best of my recollection, it was written on there the word heroin, 75 glassine bags, ten bags a day at ten dollars a day.

There was — I think it was 16 bags of white powder at, I believe, it was $180. There was another notation about white powder amounting to 31 grams. That’s about all I can remember from the pages. Mrs. Jones appealed her conviction to the Court of Special Appeals.

It reversed in an unreported opinion, saying it "th[ought] the State’s overt breach of its commitment constitute^] a denial of due process of law.” 2 The case was remanded to the trial court for a new trial. Upon the remand a motion to dismiss was filed contending that retrial would violate the double jeopardy provisions of U. S. Const, amend. V. That motion was denied. The Court of Special Appeals affirmed.

We then granted the writ of certiorari to consider the issue raised. As Judge Gray said for the Court in Moquin v. State, 216 Md 524, 527, 140 A.2d 914 (1958), citing 4 Blackstone’s Commentaries 335 (Lewis Ed. (1898) at 1725-26), the doctrine of double jeopardy is one of ancient origin. At common law a plea of autrefois acquit or autrefois convict was a good ⁶²⁵ defense. Ex parte Lange, 85 U.S. (18 Wall.) 163, 169 , 21 L. Ed. 872 (1874).

As a part of the common law it has been the law of Maryland since July 4, 1776, by virtue of Maryland Declaration of Rights, Art. 5. Obviously, this was a number of years before the adoption of the Constitution of the United States. The doctrine was recognized in Maryland at least as far back as State v. Sutton, 4 Gill 494, 498 (1846). See also Anderson v. State, 86 Md. 479, 481-82 , 38 A. 937 (1897), and State v. Shields, 49 Md. 301, 303 (1878).

However, it is the double jeopardy provision of U. S. Const, amend. V, made applicable to the states by Benton v. Maryland, 395 U.S. 784 , 89 S. Ct. 2056 , 23 L. Ed. 2d 707 (1969), through U. S. Const, amend. XIV, with which we are here concerned. Jones here concedes that thus far in only two types of situations has the Supreme Court held that an individual may not be retried after the reversal of a conviction on appeal.

The first was in Green v. United States, 355 U.S. 184 , 78 S. Ct. 221 , 2 L. Ed. 2d 199 (1957). There a man indicted for first degree murder was found guilty by a jury of second degree murder. Its verdict was silent on the charge of first degree murder. The conviction was reversed on appeal.

The Court held that the second trial of him "for first degree murder was contrary to both the letter and spirit of the Fifth Amendment.” Id. at 198 . The second such holding came in the more recent case of Burks v. United States, 437 U.S. 1 , 98 S. Ct. 2141 , 57 L. Ed. 2d 1 (1978). It held "that the Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient .. ..” Id. at 18 . Otherwise, the Court has adhered to the view expressed by it in United States v. Ball, 163 U.S. 662 , 16 S. Ct. 1192 , 41 L. Ed. 300 (1896), that a defendant who successfully challenges his conviction may be retried by a court of competent jurisdiction, the rationale being that the defendant wiped the slate clean and the parties may start anew.

See the discussion of Ball by Judge Cole for this Court in Parks v. State, 287 Md. 11, 15 , 410 A.2d 597 (1980), and the yet more recent discussion by Judge Eldridge for the Court in Sweetwine v. State, 288 Md. 199, 204-07 , 421 A.2d 60 (1980). ⁶²⁶ Mrs. Jones here seeks to carve out a third exception to Ball arguing that the breach of the agreement here would have justified the grant of a motion for a mistrial and that, since this would have been on the basis of prosecutorial overreaching, the retrial is barred by the Double Jeopardy Clause. We shall assume arguendo for the purpose of our discussion here that such an exception exists. In Bell v. State, 286 Md. 193, 201-05 , 406 A.2d 909 (1979), Judge Orth discussed for the Court the concept that the Double Jeopardy Clause might bar retrial of an individual after a mistrial declared as a result of prosecutorial misconduct. He said in conclusion: The teaching of the Supreme Court cases is clear.

Retrial is not barred as violative of the Double Jeopardy Clause of the Fifth Amendment when a mistrial is declared at the behest or with the consent of the defendant unless such error or misconduct, sufficient to justify the declaration of a mistrial, was committed by either the prosecutor or the court with the intention of (1) forcing the defendant to move for or consent to a mistrial, or (2) prejudicing his prospects for an acquittal if the trial continued to a verdict. It is "bad faith conduct by judge or prosecutor” with such intent that prohibits retrials. The keystone of the test formulated and consistently followed by the Supreme Court is the requirement of "intent.” And intent is implicit in "bad faith.” Thus, the test does not encompass negligence. See Illinois v. Sommerville, 410 U.S. 458 , 93 S. Ct. 1066 (1973).

"Intentional” and "negligent” are mutually exclusive. It is true that the greater degree of negligence, the closer the error comes to being intentional. That is, an error by judge or prosecutor which appears to be "gross negligence” may, of course, provide some evidence of intent. But if what seems to be negligent is so gross as to warrant a determination that the act was in fact intentional, it is not then "negligent.” [Id. 204-05.] ⁶²⁷ In Bell we concluded that the retrial of the accused was permissible, stating: When the errors alleged in the defendant’s motion for a mistrial are considered, there is no sufficient indication that they were committed by the prosecution with the intention of forcing Mrs. Bell to seek a mistrial or to prevent an acquittal at the trial under way.

The trial court expressly did "not find that the State’s Attorney wanted or deliberately sought a mistrial.” Although it was satisfied that the matters necessitating the mistrial were the result of prosecutorial error and negligence (gross negligence with respect to failure to disclose the entire plea bargain with Mason), it was "not satisfied that the conduct of the prosecution was motivated by bad faith or was with the deliberate intent of harassing the accused or of seeking a more favorable opportunity to secure a conviction.” Our review of the record leads us to the same conclusion. \ld. at 205-06 (emphasis in original).] The matter of prosecutorial misconduct in the setting of a mistrial is briefly discussed by J. Cook, Constitutional Rights of the Accused: Post-Trial Rights § 61 (1976): The lower courts have generally found official misconduct to be accidental or unintended and have permitted reprosecution of the accused. Such has been the case where the misconduct occurred at an early stage of the trial