Jones v. State

Lowe, J., delivered the opinion of the Court. Moylan, J., filed a concurring opinion at page 430 infra. There is seldom any difficulty in interpreting the holdings of an appellate court. The enticement of vaticinating beyond that necessary to decide the case before such court is, however, that which causes lawyers to become prophets instead of interpreters of the law.

Dictum, like the road to Avernus, is easily traversed but the way back is hard to find. In Bell v. State, 41 Md. App. 89 (1979), this Court was ⁴¹⁸ affirmed in its holding by the Court of Appeals, Bell v. State, 286 Md. 193 (1979), which held, as did we, that when a mistrial caused by extreme prosecutorial negligence is declared upon a defendant’s request, the Double Jeopardy Clause is not offended by a second prosecution. We differed, however, in our unnecessarily expansive language on what cause for mistrial would bar a retrial. Our hariolation divined from the Supreme Court’s “teachings” was that misconduct of a prosecutor (or judge) intended to force a defendant to move for, or consent to, a mistrial was the sole exception to the general rule that the Double Jeopardy Clause is not offended by a second prosecution when a mistrial is declared upon the request, or with the consent, of a defendant.

Forced to expand, because of our dicta, upon an hypothesis not before them, the Court of Appeals added that the bar to retrial would be raised whether the prosecutorial (or judicial) misconduct was intended to abort the trial or to “[prejudice the defendant’s] prospects for an acquittal if the trial continued to a verdict.” Id. at 204-05 . Explaining its broadening of our finer line, the Court pointed out that: “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.’ ” Id. at 205 (footnote omitted). The courts of general and special appeals both arrived at these divergent results after interpreting the same Supreme Court cases and finding “clear teachings” therein.

Apparently the Court of Appeals was influenced by both the deterrent effect a prohibited retrial would have upon an overzealous prosecutor, and the consistency of punishing “bad faith” misconduct (regardless of the specific intent). On the other hand, we were concerned more with the practical consequences of such an expansive interpretation; i.e., a) the societal concern of granting an accused immunity from ⁴¹⁹ prosecution, as prosecutorial punishment, notwithstanding guilt or innocence of the accused, b) the consequence to the accused of the diminution of the zealousness with which a trial judge may guard against prosecutorial improprieties by granting a mistrial at defendants’ request when the effect of doing so would be to dismiss the case, and c) the inconsistent consequence of granting retrials after reversals but not after mistrials. See United States v. Tateo, 377 U.S. 463, 466 (1964); see also Tabbs v. State, 43 Md. App. 20 (1979). Our dicta, which troubled the Court of Appeals and led to its response, now moves forward apace giving rise to one of the problems we sought to avoid.

We are called upon by appellaxxt to bar a retrial in the Criminal Court of Baltimore of Anna Mae Jones, whose conviction for drug violations we overturned for prosecutorial misconduct which we found so grievous and prejudicial that it constituted a “denial of due process”. In violation of a pretrial agreement, the prosecution intentionally introduced evidence-of evidence which it had expressly agreed not to introduce. Before trial, appellant had sought discovery of a notebook containing highly prejudicial writings which was seized at the apartment of a codefendant not then on trial. The notebook appears to have been lost by the State before trial and, therefore, relying upon the State’s agreement that “ ... we were not going to use the notebook because we didn’t have the notebook”, appellant withdrew her motion for production.

See per curiam opinion, Jones v. State (No. 737, September Term, 1977, filed March 16, 1978) appended, pp. 5-6. When the case was being tried, appellant scored substantially on cross-examination of an officer testifying as to a search of premises of a codefendant. The officer was forced to admit he found no “narcotics,... cutting materials, lactose, dextrose, [or] any type of materials of that nature” in the search. Seeing its case substantially weakened, the State, on redirect, commenced its rehabilitative inquiry by asking whether the officer found “any evidence of narcotic dealings.” ⁴²⁰ At a bench conference following a timely objection, the State’s agreement was brought to the court’s attention by appellant’s attorney who strenuously sought to enforce the agreement: “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 ... THE COURT: Why would you think so? MR. SMITH [Defense Counsel]: 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 was not our defendant’s book.” We acknowledge that there is but a technical difference when a trial judge recognizes prosecutorial misconduct intended to prejudice accused’s prospects for acquittal by granting a mistrial (e.g., Bell, supra), and when such judge should have either excluded the evidence or granted a mistrial, and is reversed for having permitted the prejudicial evidence improperly elicited to prejudice appellant’s prospect for acquittal. We have difficulty distinguishing why one retrial should be barred and another permitted when an accused “faced with the ‘Hobson’s choice’ of continuing with the trial or requesting or consenting to a mistrial”, Bell, supra, at 203, decides to continue rather than move to abort. Indeed the distinction is even less when the decision is left to the judge. The cause, as well as the effect, is the same in either case.

The cause is the “bad faith conduct” of the prosecutor with the “intent” of “prejudicing [appellant’s] prospects for an acquittal [when] the trial continued to a verdict”, which “intent... implicit in ‘bad faith’ ” is the “keystone of the test formulated and consistently followed ^ by the Supreme Court. . . .” Id. at 205. The effect (or objective), i.e., to avoid “the anxiety, expense, and delay occasioned by multiple prosecutions,’ ” id. at_203 (quoting United States v. Dinitz, 424 U.S. 600, 608 (1976)), is also the same. ⁴²¹ Although the Court of Appeals’ reasoning in Bell may be correct, 1 our reasoning and decision in that case was influenced by Mr. Justice Harlan in United States v. Tateo, supra at 465. “The Fifth Amendment provides that no ‘person [shall] be subject for the same offence to be twice put in jeopardy of life or limb----’ The principle that this provision does not preclude the Government’s retrying a defendant whose conviction is set aside because of an error in the proceedings leading to conviction is a well-established part of our constitutional jurisprudence. In this respect we differ from the practice obtaining in England. The rule in this country was explicitly stated in United States v. Ball, 163 US 662, 671-672 , 41 L ed 300, 303, 16 S Ct 1192 , a case in which defendants were reindicted after this Court had found the original indictment to be defective.

It has been followed in a variety of circumstances; see, e.g., Stroud v United States, 251 US 15 , 64 L ed 103, 40 S Ct 50 (after conviction reversed because of confession of error); Bryan v United States, 338 US 552 , 94 L ed 335, 70 S Ct 317 (after conviction reversed because of insufficient evidence); Forman v United States, 361 US 416 , 4 L ed 2d 412, 80 S Ct 481 (after original conviction reversed for error in instructions to the jury).” Tateo itself was a case in which a defendant was coerced into entering a guilty plea on the fourth day of trial by a trial judge who observed that if Tateo was found guilty, he would impose inordinate sentences upon him. Our Bell decision was based on Tateo. We saw then, and see now, very little difference between a trial judge granting a mistrial because there might be a miscarriage of justice due to prosecutorial misconduct and an appellate court granting a new trial because there might have been a miscarriage of ⁴²² justice due to prosecutorial misconduct. It seemed that if Justice Harlan’s concern that appellate courts would less zealously protect “against the effects of improprieties at the trial or pretrial stage if they knew that reversal of a conviction would put the accused irrevocably beyond the reach of further prosecution”, id. at 466, so then might trial judges look with doubtful zeal at such protections upon a defendant’s motion for mistrial based upon prosecutorial misconduct.

Although we were found to be wrong in assuming the Supreme Court would apply the Tafeo reasoning to avoid a double jeopardy bar of a retrial of a case mistried because of prosecutorial misconduct, we can find no justification for barring a retrial of a case concluded, but reversed because of prosecutorial misconduct. As recently as June 14,1978, the Supreme Court has held that but for evidentiary insufficiency a person can be tried a second time for an offense when his conviction for that offense has been set aside by his appeal. Burks v. United States, 437 U.S. 1 (1978). The Supreme Court, through its Chief Justice, explained its reasoning, even alluding to prosecutorial misconduct as an example of error causing reversal which would not bar a retrial. “Various rationales have been advanced to support the policy of allowing retrial to correct trial error, but in our view the most reasonable justification is that advanced by Tateo, supra, at 466 , 12 L Ed 2d 448 , 84 S Ct 1587 : ‘It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction.’ See Wilson, supra, at 343-344, n 11, 43 L Ed 2d 232 , 95 S Ct 1013 ; Wade v Hunter, 336 US 684, 688-689 , 93 L Ed 974 , 69 S Ct 834 (1949).

In short, reversal for trial error, as distinguished from evidentiary ⁴²³ insufficiency, does not constitute a decision to the effect that the government has failed to prove its case. As such, it implies nothing with respect to the guilt or innocence of the defendant. Rather, it is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect, e.g., incorrect receipt or rejection of evidence, incorrect instructions, or prosecutorial misconduct. When this occurs, the accused has a strong interest in obtaining a fair readjudication of his guilt free from error, just as society maintains a valid concern for insuring that the guilty are punished.

See Note, Double Jeopardy: A New Trial After Appellate Reversal for Insufficient Evidence, 31 U Chi L Rev 365, 370 (1964).” Id. at 15 (emphasis added and footnote omitted). We cannot coalesce Bell, supra, with the Supreme Court’s reasoning or with our result here. We must choose. Although the language that concerns us in Bell is dicta which does not bind us, it is dicta so strong that we would feel compelled to follow it under apposite facts.

The compulsion to adhere notwithstanding, we are neither obliged nor persuaded to expand it. We are, on the other hand, compelled to follow “clear” holdings of the Supreme Court, as we are of the Court of Appeals, and both Courts indicate that evidentiary insufficiency is the only cause of reversal that will bar retrial after conviction. Burks, supra; Mackall v. State, 283 Md. 100 (1978). As indicated in Tateo and emphasized in Burks , the sanction of dismissal of an accused for any defect is “a high price indeed for society to pay....” E.g., Johnson v. State, 282 Md. 314 (1978); State v. Hicks, 285 Md. 310 (1979).

When we have a choice, we are not inclined to extract that price unless constitutionally compelled to do so. Judgments affirmed. Costs to be paid by the appellant. ⁴²⁴ APPENDIX: UNREPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 737 September Term, 1977 ANNA MAE JONES v. STATE OF MARYLAND Gilbert, C.J., Liss, Couch, JJ. Per Curiam Filed: March 16, 1978 Per Curiam In this appeal, Anna Mae Jones asks that we set aside the ⁴²⁵ judgments of the Criminal Court of Baltimore in which appellant was convicted of four (4) Controlled Dangerous Substances Laws violations and sentenced to a total of forty (40) years imprisonment.

Mrs. Jones fires a virtual shotgun blast at the judgments, consisting of eleven (11) attacks on their validity. The first six (6) issues were heard in a consolidated case. Those contentions were decided adversely to Mrs. Jones in Part II of Poore v. State, 39 Md. App. 44 , 384 A.2d 103 (1978). We see no reason to repeat what we said in Poore, and we incorporate the holdings therein by reference thereto just as if they were fully set forth infra.

The overall factual pattern from which this appeal, along with its siblings, arose is detailed in Poore, supra. We shall not repeat it. Additional facts that may be pertinent will be alluded to in this opinion. We focus our attention on the tenth assigned error.

Appellant therein asserted: “It was prejudicial error to permit police officers to testify as to the contents of a missing or destroyed notebook, over objection of the defense, where: (1) the notebook was lost or destroyed while in the State’s custody; (2) it was impossible for the defense to inspect the original notebook; (3) the State, prior to and during the trial, denied that it would elicit testimony about the notebook; (4) the State was permitted to elicit such testimony on redirect examination even though the notebook had not been referred to on either direct or cross-examination; (5) the notebook was never authenticated; (6) the evidence was not admissible under any exception to the hearsay rule; (7) there was no evidence that the notebook belonged to the appellant; (8) the State conceded that the writing in the notebook was not the appellant’s; and (9) the probative value of the testimony was outweighed by its prejudice.” (Emphasis supplied.) ⁴²⁶ During the course of the trial, the State called Corporal Fred A. Settle of the Maryland State Police as its witness. Settle testified that on March 9, 1976, he executed a search and seizure warrant at 12 Cedar Heights Circle in Baltimore County. The purpose of the search “was to sieze [sic\ any controlled dangerous substance, money, lists, slips and records pertaining to any controlled dangerous substance trafficing [57b] or illegal activity carried on there.” Corporal Settle’s “Inventory/Return” discloses, and his testimony verified, that he seized nine (9) items of jewelry consisting of four (4) women’s and five (5) men’s rings, $36,103 in currency of the United States that was stashed in two (2) principal places, eleven thousand plus dollars in a safe, and $24,000 under a carpet, one (1) address notebook, two (2) telephone statements, a rental agreement and miscellaneous papers. The rental agreement was in the name of Anna Mae Jones, the appellant.

Various articles of clothing, both male and female types, were observed in closets of the apartment. Mrs'. Jones established ownership to six (6) of the rings, and they were returned to her. The trooper said that “[t]he others were stolen.” An objection to that response was “sustained.” 1 On cross-examination, Settle was asked, “Did you find any narcotics on the premises?” He answered, “I did — I did not sieze [s/b] anything I thought was not narcotics.” Patently, dissatisfied with that non-responsive reply, counsel persisted by asking, “What you described is what you siezed [s/c]?” The trooper replied, “Yes.” The defense attorney then asked, “And there were no narcotics in that group?” Settle said, “No, it was not.” After some interrogation concerning the money and the presence of a hospital bed on the premises, the officer was queried as to “any cutting materials, lactose, dextrose, any type of materials of that nature” found in the search.

The answer was in the negative as was the response to whether “glassine bags” were found. The State, on redirect began inquiry into whether Settle found “any