Lee v. State

Gilbert, C. J., delivered the opinion of the Court. ³⁶⁸ — THE ISSUE — This appeal tests the perimeters of the second prong of the rule articulated in Bell v. State, 286 Md. 193 , 406 A.2d 909 (1979), concerning the "bad faith conduct” of a prosecutor that causes a defendant to move for a mistrial. — THE LAW— Writing for the Court in Bell , Judge Orth declared: "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 vs. Sommerville, 410 U.S. 458 , 93 S. Ct. 1066 , [ 35 L.Ed.2d 4251 (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.” (Footnotes omitted.) Id. at 204-05, 406 A.2d at 915 . ³⁶⁹ The appellant in the instant case, Gillis Lee, concedes that "the State . .. did not want or seek a mistrial.” Hence, we need not and do not concern ourselves with Bell’s other tine.

Instead, we shall focus our attention strictly upon whether the State so acted, in the matter before us, as to prejudice appellant’s "prospects for an acquittal if the trial continued to verdict.” Bell was never intended to address all situations in which evidence concerning the accused’s criminality is offered. Indeed, the purpose of the State’s proceeding to trial in the first place is to offer evidence demonstrating beyond a reasonable doubt that the accused did what he did at the time and place alleged by the State. We make explicit that Bell condemns those instances where the prosecutor intentionally forces a defendant into moving for a mistrial or prejudices the defendant’s prospects for a fair verdict that is based upon the legally admissible evidence. Judge Moylan, in a concurring opinion in Jones v. State, 44 Md. App. 417, 433 , 409 A.2d 725, 733 (1979), aff'd, 288 Md. 618 (1980), pointed out that when the SupremeCourt of the United States and the Court of Appeals of Maryland speak of intentionally forcing the defendant to move for a mistrial, the word "intentional” has a more narrow meaning than a "mere general intent.” Jones was recently affirmed by the Court of Appeals.

See Jones v. State, 288 Md. 618 , 420 A.2d 1241 (1980). The general intent to do something, which may at a later time be declared "to be a foul, is almost always present.” The use of prejudicial questions on direct or cross-examination "or the introduction of tainted evidence represent! s] conscious and intended actions.” What is meant by the Bell Court’s use of "intentional” is "overreaching,” an act that "contemplates a specific intent above and beyond the mere general intent.” It is the specific intent to commit a foul, the deliberate "hitting below the belt” or the calculated "personal foul” performed with the thought in mind that the foul might well be detected for what it is. By borrowing from the game of football for an analogy, we liken that specific intent to force a mistrial to a defensive back’s wilful and ³⁷⁰ deliberate interference with the offensive team’s down field pass receiver. The defense knows that by performing the illegal act that constitutes the foul, he will probably be caught and his team penalized.

Nevertheless, the offender prefers to take the penalty rather than give up the touchdown that most likely would occur were the foul not committed. In football, commission of such a foul may be expedient, but in the trial of a case,