Simmons v. State

GREENE, J. “In criminal prosecutions, the polygraph test is a pariah; ‘polygraph’ is a dirty word.” State v. Hawkins, 326 Md. 270, 275 , 604 A.2d 489, 492 (1992). In this case, we consider whether defense counsel’s reference, during opening statement, to his client’s willingness to take a lie detector test creates manifest necessity for a mistrial, where the trial judge gave a curative instruction to the jury immediately following the improper reference and the prosecutor did not request a mistrial for reason of that improper remark until two days further into the trial. We shall affirm the judgment of the Court of Special Appeals and hold that the trial judge did not abuse his discretion in granting a mistrial two days after the improper statement and immediate curative instruction. I. FACTUAL AND PROCEDURAL HISTORY Petitioner Stephen Simmons was charged in the Circuit Court for Prince George’s County with murder and other related offenses arising out of the shooting death of Christopher Wright on July 1, 2009.

On that date, Petitioner was standing outside the apartment building where the victim and his roommate, Razaq Sarumi, resided. Simmons became angry after Sarumi spit out of his apartment window overlooking the building entrance where Simmons was standing. Sarumi joined Simmons outside, where the two engaged verbally. Simmons displayed a firearm, began “rubbing” it, and then went into an apartment on the first floor of the building.

He shortly returned outside with the gun and fired one shot, which grazed Sarumi’s leg. After he was shot, Sarumi ran toward the road and heard more shots in the building. He turned around and saw Simmons come out of the building and fire a shot from the sidewalk. Sarumi ran across the road, got in a car with some friends also present during the incident, and began driving to the hospital.

None of the witnesses saw the shooting of Wright or who shot him, but he was dead when the police arrived. Simmons was arrested in connection with this incident. He was held for a nearly ten hour recorded interrogation and gave the police a taped statement. During ²⁰⁷ the interrogation, Simmons offered to take a lie detector test.

No test was ever performed. Prior to trial, Simmons moved to suppress the taped statement given to police during his interrogation, arguing that it was involuntary. After a hearing on June 11, 2010, the Circuit Court denied the motion to suppress. Trial began on August 16, 2010.

Defense counsel’s opening statement proceeded as follows: [DEFENSE COUNSEL]: You will hear that when my client was arrested, he was held for ten hours in a frigid interrogation room. He was given no food. He was allowed to make no phone calls. He had no grandmother or paid lawyers rushing down to help him.

He was entirely alone. And a rotation of experienced homicide detectives tried every trick in the book to try to get Stephen Simmons to admit that he had shot Christopher Wright. They even lied to him. They told Stephen Simmons that Christopher Wright had survived and had identified him as the shooter.

But even though he was shivering cold, he was exhausted and utterly alone, Stephen Simmons had one thing on his side that protected him. He was actually innocent of the death— [PROSECUTOR]: Objection. [DEFENSE COUNSEL]: — of Christopher Wright. THE COURT: The objection is sustained as to innocence. The State’s burden is to prove guilt beyond a reasonable doubt.

That’s a factual issue for you. The assertions by the attorneys are to be ignored in that regard. You may continue, counsel. [DEFENSE COUNSEL]: Thank you, Your Honor. You will hear him protest his innocence through the long hours of questioning, tell the detectives over and over again the one thing that he knew to be true, “I did not shoot that man.

I did not shoot that man.” Stephen Simmons offered to take a lie detector test. [PROSECUTOR]: Objection. ²⁰⁸ THE COURT: The objection is sustained. Let me just tell you jurors when all the evidence begins, you’re going to have to consider the evidence as opposed to what counsel says, what the State says, and what the defense says. But I sustained the objection with regard to the reference to a lie detector test. That’s not something you can consider.

It’s not something you can be permitted to consider. (Emphasis added). The State made no further objection to defense counsel’s reference to a lie detector test and did not protest the adequacy or effectiveness of the court’s instruction. Between the first two days of trial, August 16 and 17, 2010, the State presented the testimony of four witnesses.

On August 17, 2010, the court recessed early, around 1:00 PM, to consider the admissibility of testimony by the State’s firearms expert, which was ultimately excluded. At the beginning of proceedings on August 18, 2010, the State moved for a mistrial claiming that defense counsel’s reference to the lie detector test had prejudiced the jury, such prejudice could not be overcome, and the State was deprived of a fair trial. The prosecutor acknowledged the time delay between the improper statement and the motion for mistrial, stating that he “spent all night thinking about whether to make this motion.” Defense counsel objected to the motion, arguing that any prejudice arising from his “fleeting reference” to the lie detector test was cured by the court’s immediate instruction, and suggested that the prosecutor’s timing in requesting a mistrial was evidence of an improper motive on the part of the State, particularly where the motion for a mistrial came immediately after the court excluded the State’s firearms expert. In considering the motion for mistrial, the trial judge stated that “[t]he State made a timely objection[.]” He then “characterized the [cjourt’s response to be somewhat of a blurt, so to speak, in an effort to cure what the [cjourt accepts as an absolute transgression as to presenting to a jury the notion that that which is inadmissible might be considered.” The trial judge then granted the State’s motion, stating: ²⁰⁹ An opening statement is a powerful setting when counsel has the opportunity to introduce into the minds of the jury what will and what will not be presented to them in determining the issues in the case.

The [cjourt would accept that a lot of flourish is allowed with regard to opening statements and closing arguments, but the [cjourt believes that each counsel is charged with respecting and appreciating certain limits. In this particular instance, we’re dealing with a statement not made by a witness, not unexpectedly presented by a witness, but a statement carefully made as part of a preview of the evidence to the jury. Indeed, considering that the jury has no right to expect that Mr. Simmons would testify, and that even if he were to testify, his testimony would be, “I did not shoot anyone,” the statement, in effect, constituted a substitute for the defendant’s testimony. The [cjourt, especially upon the cross-examination quite skillful of Mr. Sarumi, is satisfied that credibility is central to the prosecution of this case.

It’s central to the defense of the case. The [cjourt considers the motion to be timely. The [cjourt believes that the prejudice to the State’s ability to have a fair trial is clear, because in a case so close as this, that relies upon the credibility of witnesses, there is no way to erase the potential infection of the jurors’ minds as to, well, he offered to take a lie detector test. That satisfies it for me.

It may not be articulated, but that might be the determining factor. The [cjourt finds that as a matter of manifest necessity, a mistrial must be declared to ensure that the State is not deprived of a fair trial, and to ensure that the jurors are not permitted to allow knowledge that there was an offer of a lie detector test to cause them to find that the State was not able to meet its burden. A mistrial is declared. Petitioner thereafter filed a “Motion to Dismiss,” arguing that retrial was prohibited under double jeopardy principles.

The trial court denied the motion the same day. On appeal, the ²¹⁰ Court of Special Appeals affirmed the judgment of the trial court, holding that the trial judge did not abuse his discretion in determining that manifest necessity existed for a mistrial and therefore double jeopardy principles do not prevent a retrial. Simmons v. State, 208 Md.App. 677, 694-95 , 57 A.3d 541, 551 (2012). We granted certiorari, Simmons v. State, 431 Md. 219 , 64 A.3d 496 (2013), to answer the following question: Did manifest necessity exist to justify the declaration of a mistrial in a case where during defense counsel’s opening statement the jury was told that Petitioner had offered to take a lie detector test, where the prosecutor’s objection to that statement was sustained and an immediate curative jury instruction was given, and where the prosecutor waited to request a mistrial for two days, until after four State witnesses had testified and after the trial court had ruled that an expert witness for the State would not be allowed to testify?

We shall affirm the judgment of the Court of Special Appeals, and hold that there was no abuse of discretion by the trial judge in making a determination of manifest necessity to declare a mistrial where the trial court considered its own previously issued curative instruction and found that it was insufficient to cure the prejudice caused by defense counsel’s improper remark.

II

DISCUSSION Petitioner argues that there existed no manifest necessity for a mistrial because the trial judge’s immediate curative instruction was a reasonable alternative to the declaration of a mistrial. He contends that the instruction apparently satisfied the prosecutor, because the prosecutor did not protest the adequacy or effectiveness of the trial court’s instruction or ask for further relief at the time of the statement, and did not request a mistrial until two days later. In addition, Petitioner asserts that the instruction apparently satisfied the trial judge, because the trial court could have declared a mistrial sua sponte in the immediate aftermath, but chose to give a curative instruction instead. ²¹¹ On the other hand, Respondent argues that the curative instruction is not a reasonable alternative — “the bell cannot be unrung” — and therefore the trial judge did not abuse his discretion in making a determination of manifest necessity at the time he did. As the trial court observed, Respondent continues, “defense counsel’s remarks were an effort to establish the credibility of [Petitioner’s] claims of innocence without even the assurance that [Petitioner] would take the stand and expose his claims to cross-examination.” Thus, Respondent contends, defense counsel placed highly prejudicial, inadmissible evidence before the jury in his opening statement, which “was tantamount to improper vouching, effectively stating to the jury that the offer to take a lie detector test was proof of his client’s innocence[,]” therefore, the trial court’s instruction was not enough to cure the prejudice and manifest necessity existed to grant a mistrial.

A. Standard of Review As a threshold matter, we address the appropriate standard to guide our analysis. The parties before us disagree on this issue. Petitioner urges us to review the trial judge’s finding of manifest necessity for legal correctness, meanwhile Respondent contends that we should review this case for an abuse of discretion. Petitioner relies on State v. Fennell, 431 Md. 500 , 66 A.3d 630 (2013) for the proposition that “[ajlthough we accord great deference to the decision of a trial judge ... whether there was a manifest necessity for a mistrial implicates principles of double jeopardy.

We review without deference, considering the totality of the circumstances, the legal conclusions of the trial court.” 431 Md. at 513 , 66 A.3d at 638 (reviewing a grant of mistrial where the trial judge concluded that the jury was unlikely to reach a unanimous decision on all counts). Despite this language, the Court in Fennell applied an abuse of discretion analysis, holding that “before a proper finding of manifest necessity for a mistrial could have been made, the trial judge should have inquired into the jury’s status of unanimity prior to its discharge. Failure to do so ²¹² was an abuse of discretion!.]” 431 Md. at 526 , 66 A.3d at 646 (emphasis added). Moreover, our cases make clear that we apply the abuse of discretion standard of review in cases of mistrial. “It is well-settled that a decision to grant a mistrial lies within the sound discretion of the trial judge and that the trial judge’s determination will not be disturbed on appeal unless there is abuse of discretion.” Carter v. State, 366 Md. 574, 589 , 785 A.2d 348, 356 (2001). “In the environment of the trial the trial court is peculiarly in a superior position to judge the effect of any of the alleged improper remarks.” Wilhelm v. State, 272 Md. 404, 429 , 326 A.2d 707, 723 (1974). “The judge is physically on the scene, able to observe matters not usually reflected in a cold record.

The judge is able ... to note the reaction of the jurors and counsel to inadmissible matters. That is to say, the judge has his finger on the pulse of the trial.” Hawkins, 326 Md. at 278 , 604 A.2d at 489 . Reading Fennell along with both United States Supreme Court precedent and our own prior case law demonstrates that although a reviewing court should not simply “rubber stamp” a trial judge’s ruling of a mistrial, the trial judge is “far more ‘conversant with the factors relevant to the determination’ than any reviewing court can possibly be” and, therefore, we review the trial judge’s grant of a mistrial for abuse of discretion. Arizona v. Washington, 434 U.S. 497, 514 , 98 S.Ct. 824, 834 , 54 L.Ed.2d 717, 733 (1978) (citing Wade v. Hunter, 336 U.S. 684, 687 , 69 S.Ct. 834, 836 , 93 L.Ed. 974, 976 (1949)); Watters v. State, 328 Md. 38, 50 , 612 A.2d 1288, 1294 (1992), cert. denied, 507 U.S. 1024 , 113 S.Ct. 1832 , 123 L.Ed.2d 460 (1993) (“[A] trial judge is ordinarily in a uniquely superior position to gauge the potential for prejudice in a particular case, and therefore to determine whether a mistrial is appropriate or required.”).

That is, we look to whether the trial judge’s exercise of discretion was “manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.” Stabb v. State, 423 Md. 454, 465 , 31 A.3d 922, 928 (2011) (citations and quotations omitted); Wilson v. John ²¹³ Crane, Inc., 385 Md. 185, 198 , 867 A.2d 1077, 1084 (2005) (“There is an abuse of discretion where no reasonable person would take the view adopted by the trial court ... or when the court acts without reference to any guiding rules or principles .... or when the ruling is violative of fact and logic.”) (citations and quotations omitted). B. Double Jeopardy The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment, provides that, “... nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” See Benton v. Maryland, 395 U.S. 784 , 89 S.Ct. 2056 , 23 L.Ed.2d 707 (1969). Although there is no double jeopardy clause in the Maryland Constitution, it is well established that “Maryland common law double jeopardy principles also ‘protect an accused against twice being put in jeopardy for the same offense.’ ” State v. Woodson, 338 Md. 322, 328 , 658 A.2d 272, 276 (1995) (quoting Gianiny v. State, 320 Md. 337, 342 , 577 A.2d 795, 797 (1990)). In a jury trial, the Double Jeopardy Clause generally bars the retrial of a criminal defendant for the same offense once a jury has been empaneled and sworn.

See Illinois v. Somerville, 410 U.S. 458, 467 , 93 S.Ct. 1066, 1072 , 35 L.Ed.2d 425, 433 (1973); Taylor v. State, 381 Md. 602, 610-11 , 851 A.2d 551, 555 (2004). Double jeopardy principles do not per se bar a retrial, however, when the case is terminated prematurely. Washington, 434 U.S. at 505 , 98 S.Ct. at 830 , 54 L.Ed.2d at 728 (“[Rjetrial is not automatically barred when a criminal proceeding is terminated without finally resolving the merits of the charges against the accused.”). When a mistrial is granted over the objection of the defendant, double jeopardy principles will not bar a retrial if there exists “manifest necessity” for the mistrial. 1 In that situation, the prosecutor bears the ²¹⁴ heavy burden of demonstrating manifest necessity.

As the Supreme Court stated in Arizona v. Washington: Because of the variety of circumstances that may make it necessary to discharge a jury before a trial is concluded, and because those circumstances do not invariably create unfairness to the accused, his valued right to have the trial concluded by a particular tribunal is sometimes subordinate to the public interest in affording the prosecutor one full and fair opportunity to present his evidence to an impartial jury. Yet in view of the importance of the right, and the fact that it is frustrated by any mistrial, the prosecutor must shoulder the burden of justifying the mistrial if he is to avoid the double jeopardy bar. His burden is a heavy one. 434 U.S. at 505 , 98 S.Ct. at 830 , 54 L.Ed.2d at 728 (footnote omitted). In the instant case, at the time the proceedings were aborted, jeopardy had already attached, the jury having been empaneled and sworn.

Simmons objected to the State’s request for a mistrial. Our inquiry, therefore, is whether the trial judge abused his discretion in granting the mistrial over Simmons’s objection, based upon the judge’s finding of manifest necessity. C. Manifest Necessity The question of whether manifest necessity exists for the purposes of double jeopardy in the case of a mistrial depends on the unique facts and circumstances of the case. Indeed, the United States Supreme Court has declined to create a rigid test for determining manifest necessity.

See Blueford v. Arkansas, — U.S.-, 132 S.Ct. 2044, 2052 , 182 L.Ed.2d 937, 945 (2012). Instead, that determination is left to the sound discretion of the trial judge, as stated by Justice Story in United States v. Perez, 9 Wheat. 579, 580 , 6 L.Ed. 165 (1824): ²¹⁵ We think, that in all cases of this nature, the law has invested [c]ourts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. More recently, in Arizona v. Washington, the Supreme Court expounded upon Justice Story’s “classic formulation” of manifest necessity, noting that “[t]he words ‘manifest necessity’ appropriately characterize the magnitude of the prosecutor’s burden.” 434 U.S. at 505 , 98 S.Ct. at 830 , 54 L.Ed.2d at 728 . The Supreme Court recognized that although “those words do not describe a standard that can be applied mechanically or without attention to the particular problem confronting the trial judge .... we assume that there are degrees of necessity and we require a ‘high degree’ before concluding that a mistrial is appropriate.” Washington, 434 U.S. at 506 , 98 S.Ct. at 830-31 , 54 L.Ed.2d at 728-29 .

See also In re Mark R., 294 Md. 244, 249-50 , 449 A.2d 393, 397 (1982). To meet this “high degree” of necessity, our cases establish that “to determine whether manifest necessity to declare a mistrial over defense objection exists, the trial judge must engage in the process of exploring reasonable alternatives and determine that there is no reasonable alternative to the mistrial.” Hubbard v. State, 395 Md. 73, 92 , 909 A.2d 270, 281 (2006). In Hubbard , this Court held that a reasonable alternative to the declaration of a mistrial existed. Accordingly, in that case, the mistrial was not manifestly necessary.

We noted that “the decision to grant a mistrial arose because