Nicholson v. State

³⁰⁶ SONNER, Judge. This interlocutory appeal comes to us with a request that we apply the Double Jeopardy Clause of the Fifth Amendment of the U.S. Constitution to prohibit the State from trying William Nicholson on several counts involving illegal possession of cocaine. He alleges that the prosecution “goaded” him into withdrawing his guilty plea, which he had entered earlier, and because of that alleged goading, the court below should have dismissed the indictment and prohibited the State from prosecuting him at all. We affirm the court below in its refusal to do as he requested.

Nicholson pleaded guilty on October 31, 2002, in the Circuit Court for Baltimore City, to conspiracy to distribute cocaine, possession of cocaine with intent to distribute, and possession of 448 grams or more of cocaine. The plea emerged from negotiations between Nicholson and his counsel and an assistant state’s attorney on the same day as his plea. The agreement that the State drafted and presented to Nicholson spanned several pages and contained complicated terms. The State agreed to recommend at the sentencing, which was to occur later, a sentence of fifteen years, five of which were to be served without parole.

Nicholson, in return, agreed to furnish information and incriminating testimony about some thirty suspects. He was to receive use and derivative use immunity for any information he furnished to the State. If he failed to follow through with the information and testimony, or if he withdrew the guilty plea, according to the bargain, he agreed to plead guilty to a drug kingpin charge, which carried a minimum sentence of twenty years without parole. 1 While awaiting the delayed sentencing, Nicholson cooperated. Part of the information he furnished to the police re ³⁰⁷ vealed that the automobile they had earlier confiscated from him contained cocaine in the compartment where a jack was located.

After his arrest, police had searched the car with a search warrant and found nothing. With the information from Nicholson, they then returned to the car, opened the jack compartment, and recovered 605.5 grams of cocaine. Thereafter, the State used that cocaine to support the possession charge of 448 grams or more of cocaine, a crime that carried a mandatory sentence. The State’s proffer of evidence did not disclose that the cocaine to support the weight count in the indictment was the very same cocaine that Nicholson had revealed to police pursuant to the plea agreement.

The proffer, instead, made it appear as if the State had recovered 605.5 grams of cocaine when it executed the search warrant before interviewing him. 2 It is the use of that cocaine that caused Nicholson to claim foul and move to withdraw his plea. 3 At a hearing before the very same judge who took his plea, Nicholson argued that the court should permit him to with ³⁰⁸ draw it because of prosecutorial misconduct. At that hearing, the State conceded that the cocaine derived from the jack compartment, but claimed that the inaccuracy in the proffer resulted not from any intention to dissemble, but from a desire to make the proffer brief. The State, perhaps out of some contrition for having, at the very least, caused confusion, did offer to withdraw the weight count from the indictment, which would have eliminated the exposure to a mandatory sentence. Nicholson rejected this offer without saying why.

The judge remarked that the State’s explanation for the erroneous factual statement in the proffer was “dubious and slick,” and granted Nicholson’s motion to withdraw his plea. Although the hearing judge did not precisely say so, the ruling suggested that the State’s breach of the agreement, by using the cocaine that the police discovered in violation of the agreement, entitled Nicholson to withdraw his plea. See Mayes v. Galley, 858 F.Supp. 490, 497 (D.Md.1994) (explaining that, “[w]hen the State breaches a plea agreement, the constitutionally permissible remedies are: (1) specific enforcement of the plea agreement construing ambiguities against the State; or (2) the opportunity to withdraw the plea and stand trial”). The State thereafter filed a new indictment that contained a drug kingpin charge, which carries a mandatory twenty-year sentence.

See Md.Code (2002, 2003 Supp.), Crim. Law § 5-613. The filing of the new charge prompted Nicholson to move to dismiss the entire indictment, based upon prosecutorial misconduct, and, at the same time, move to dismiss the kingpin charge, based upon prosecutorial vindictiveness. Nicholson’s brief reveals that, in the meantime, he also filed a complaint with the Attorney Grievance Commission of Maryland against one of the prosecutors in the case.

The record does not disclose the nature of the complaint or the identity of the prosecutor. The Commission, after a little more than a month, dismissed the complaint, apparently without holding a ³⁰⁹ hearing. 4 At the hearing before a different judge from the one who had taken his plea and allowed him to withdraw it, Nicholson argued that the use of the cocaine seized as a result of his debriefing and wrongly proffered as a product of a search warrant, was a “misplea,” that is, the forced withdrawal of his previously filed guilty plea. That alleged “goading” into withdrawing the plea, according to Nicholson, should bar the State from ever trying him on the original charges for the crimes covered by the original indictment. As alternative relief, he requested that the court dismiss the later filed drug kingpin charge because the motivation behind it was to punish him for successfully having "withdrawn his plea.

After a lengthy hearing, the court denied Nicholson relief on either request, and it is from the refusal of the court to dismiss for double jeopardy concerns that he raises this appeal; the legitimacy of the kingpin charge is not before us. He is claiming in this appeal that he can invoke the Double Jeopardy Clause to bar the prosecution of any charges arising out of the plea agreement. The issue, as he frames it, is: Was it a violation of double jeopardy principles for the State to goad Appellant into seeking a “misplea,” i.e., withdrawal of his previously tendered guilty plea, due to prosecutorial misconduct stemming from the proffer session that took place in the matter? The long-standing policy against piecemeal appeals serves a valuable public purpose.

Bunting v. State, 312 Md. 472, 482 , 540 A.2d 805 (1988). Although the denial of a motion to dismiss is not ordinarily a final judgment that entitles a defendant to appeal, when the motion to dismiss is on double jeopardy grounds, defendants may appeal before trial. Having to run a gauntlet of a trial before claiming double jeopardy would undermine the right. See Abney v. United States, 431 ³¹⁰ U.S. 651, 662, 97 S.Ct. 2034 , 52 L.Ed.2d 651 (1977); accord Dawkins v. Baltimore City Police Dep’t, 376 Md. 53, 64 , 827 A.2d 115 (2003).

A claim of double jeopardy does not lend itself to appellate review after trial, because the protection against being held in jeopardy twice involves the right to avoid the trial itself. As a consequence, we granted Nicholson’s request to hear his argument that the trial court, in refusing to dismiss his indictment, denied him a basic constitutional right. The Double Jeopardy Clause of the Fifth Amendment of the U.S. Constitution provides: “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” The clause’s purpose is to assure finality for the benefit of the defendant in criminal trials. As Justice Black said long ago, “The constitutional prohibition against ‘double jeopardy’ was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense.” Green v. U.S., 355 U.S. 184, 187 , 78 S.Ct. 221 , 2 L.Ed.2d 199 (1957).

According to the cases enforcing this clause, the State may not prosecute, for the same offense, a defendant who is either acquitted or convicted, if the conviction is upheld on appeal. See State v. Griffiths, 338 Md. 485, 489 , 659 A.2d 876 (1995). Ordinarily, a defendant may not claim the benefit of the clause unless there has been a trial that has proceeded to verdict, but there are exceptions to this rule. First, if the court declares a mistrial over the defendant’s objection, without a “manifest necessity” to do so, jeopardy attaches.

See U.S. v. JoRN, 400 U.S. 470, 485 , 91 S.Ct. 547 , 27 L.Ed.2d 543 (1971). Defendants are entitled to see their cases proceed to verdict. That particular exception is not at play here. The second exception, a narrow one, allows defendants to assert the claim, even though they have requested and been granted mistrials.

This is the exception that Nicholson would like us to apply. It is relevant when prosecutorial misconduct causes a defendant to move for a mistrial. See State v. Taylor, 371 Md. 617, 631 , 810 A.2d 964 (2002). The law does ³¹¹ not permit the defendant’s justified request for a mistrial to “ ‘afford the prosecution a more favorable opportunity to convict’ ” when the prosecutor has acted in bad faith.

United States v. Dinitz, 424 U.S. 600, 611 , 96 S.Ct. 1075 , 47 L.Ed.2d 267 (1976) (citation omitted). In other words, Dinitz stands for the proposition that prosecutorial misbehavior neutralizes the ordinary bar against claiming a double jeopardy violation when there has been no verdict. In Oregon v. Kennedy, 456 U.S. 667 , 102 S.Ct. 2083 , 72 L.Ed.2d 416 (1982), the U.S. Supreme Court restricted the applicability of this second exception. In reversing the Oregon Court of Appeals, which had ruled that Bruce Alan Kennedy was entitled to a new trial, the Supreme Court, speaking through Justice Rehnquist, observed that criteria that considered only prosecutorial “bad faith conduct” or “harassment” offered “virtually no standards for their application.” Id. at 674 , 102 S.Ct. 2083 .

It is not the misconduct alone that entitles the defendant to bar prosecution, but the prosecutor’s specific intent to seek a second trial by intentionally aborting one before verdict that should cause jeopardy to attach. Thus, the Court held that “[pjrosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant’s motion, ... does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause.” Id. at 675-76 , 102 S.Ct. 2083 . Justice Powell, in a separate concurring opinion, suggested that courts should use “objective facts and circumstances” in deciding whether the prosecutor intended to provoke a mistrial, because of the inherent difficulty in discerning subjective intent. Id. at 679-80 , 102 S.Ct. 2083 (Powell, J„ concurring).

He pointed out that, in Kennedy’s case, the “relevant facts and circumstances strongly supported] the view that prosecutorial intent to cause a mistrial was absent.” Id. at 680 , 102 S.Ct. 2083 . Notwithstanding Oregon v. Kennedy, some states