State v. Johnson

WRIGHT, J. On April 25, 2012, a Baltimore City grand jury indicted appellee, Michael M. Johnson, for the murder of 16-year-old Phylicia Barnes. Johnson was tried by a jury in the Circuit Court for Baltimore City and was acquitted of first-degree murder but convicted of second-degree murder. Subsequently, Johnson filed a motion for a new trial, which the circuit court granted on March 20, 2013, based on a finding of a Brady violation. 1 The case was reset for a new jury trial, which commenced on December 2, 2014. During the presentation of the State’s case on Friday, December 19, 2014, Johnson moved for a mistrial.

The court initially denied the motion for mistrial, but later indicated that it would take “the weekend to think about this.” The State rested at the close of proceedings on that same day, and after the court excused one of the alternate jurors, Johnson made a motion for judgment of acquittal. Without objection from defense counsel, the trial judge suggested that the motion for judgment of acquittal be addressed on Monday “because ... I’ve got this other issue to consider between now and then, too.” When trial resumed on Monday, December 22, 2014, the court announced at the outset of the proceedings that it was going to grant the motion for mistrial, then discharged the jury, and rescheduled a retrial for March 9, 2015. On January 14, 2015, Johnson filed a “Motion to Dismiss Indictment on Ground of Double Jeopardy,” which the circuit court heard on January 20, 2015.

At the close of that motions hearing, the court treated Johnson’s motion to dismiss indictment as a ⁴⁹³ motion for reconsideration and struck its previous grant of the mistrial, then proceeded to grant Johnson’s motion for judgment of acquittal. The State filed a new indictment on February 2, 2015, which Johnson moved to dismiss. Following a hearing on March 12, 2015, the circuit court granted Johnson’s motion and dismissed the case. The State subsequently appealed, 2 asking us to answer the following: Did the circuit court err in granting Johnson’s motion for judgment of acquittal twenty-nine days after terminating the case by declaring a mistrial and dismissing the jury; and, did the court subsequently err in granting Johnson’s motion to dismiss on double jeopardy grounds?

For the reasons that follow, we reverse the circuit court’s judgment. Facts Phylicia Barnes disappeared on December 28, 2010, while visiting family in Baltimore during the Christmas break. The investigation began as a missing person’s case and remained so for four months. On April 26, 2011, the police responded to the Conowingo Dam area of the Susquehanna River in Harford County for the report of an unidentified female body.

With the assistance of the Department of Natural Resources, the police removed the body from the water and, through dental records, identified the victim as Barnes. The police then opened a murder investigation focusing on appellant, Michael M. Johnson, who was the last person to be seen with Barnes before her disappearance. According to the circuit court, there was a “tremendous amount” of testimony from the various law enforcement agencies that investigated the case. Those officers testified regarding the “hundreds” of text messages between Johnson, who lived in Baltimore, and Barnes, who lived in North ⁴⁹⁴ Carolina.

The officers also testified about a “sexually explicit video” of Johnson and Barnes found on Johnson’s phone as well as on Barnes’s sister’s phone. The State’s evidence also included Johnson’s own statements from hundreds of phone calls and text messages intercepted by the police. Prior to the start of the second trial, Johnson filed a motion in limine requesting that certain portions of the intercepted communications be redacted. The circuit court granted Johnson’s motion in part and ordered that portions of the wiretap communications be redacted.

During the testimony of Sergeant David Feltman, the defense moved for a mistrial because a recording of one of those taped communications had not been redacted. Specifically, the defense objected to two comments, one that made reference to Johnson’s friend contacting a lawyer (“Tabbie called Neverdon right on the spot”), and the other, a reference to the warrant charging first- and second-degree murder. Defense counsel made the motion for mistrial and argued as follows: Your Honor, objection and we would move for a mistrial. Clearly, the disk has not been redacted and it’s starting to talk about first-degree and second-degree murder.

Your Honor ruled that they should not be heard by the jury. They were not admissible for a variety of reasons, the most important one that the first-degree murder, obviously, is that Mr. Johnson has been acquitted of first-degree murder. I — and we request a mistrial as the remedy. If Your Honor is disinclined to grant a mistrial, then we would ask that it be stricken ... that the jury be told to disregard what they heard.

I think the only appropriate remedy is a mistrial. I make that clear. The circuit court initially denied the motion for mistrial and excused the jury. During further argument on the motion for mistrial, the State responded that any error was inadvertent and suggested that the appropriate remedy was for the court to instruct the jury to disregard the brief comments regarding contacting an attorney and the charges: ⁴⁹⁵ Your Honor, there was an error.

Your Honor did rule that the mention of first- and second-degree was to be removed. I would point out that the very brief portion that the jury heard was that the warrant said, and it was very clear that it was referring to the search warrant for DNA. It doesn’t mention that he was ever actually specifically charged with first-degree murder. Your Honor, the issue is specifically what the jury heard, a reference to the paper, meaning the warrant, referencing first- and second-degree.

I would suggest that the jury be specifically instructed that anything they heard regarding what a warrant said should be completely disregarded with respect to charges, because what, if anything, a warrant states is irrelevant to the offense that the Defendant is facing here today. Other than that, Your Honor, I don’t believe that this does rise to the level of manifest necessity. They have heard— this isn’t the same as a reference of, you know, he was charged with first-degree and he was acquitted in the first trial. This is specifically referencing what a search warrant said.

I believe if Your Honor instructs them that ... any potential charges a search warrant mentions ... are to be disregarded by them is more than sufficient to remedy this situation. The circuit court again denied the motion for mistrial, finding that there had been no formal ruling on what portions of the recording were to be redacted and that, in any event, a curative instruction was sufficient: THE COURT: I don’t think it rises to the level that a mistrial be warranted for any reason. First of all, as I started to say, there was a great deal of material, and I don’t know that I — it was more in the nature of an agreement that things would be removed as opposed to my ruling that they just could not be permitted to be testified — and there was an agreement that — the agreement as to Mr. Neverdon I don’t know would have ever reached this, ⁴⁹⁶ because the allegation with regard to even the little bit they heard, “Tabbie called Neverdon right on the spot. As soon as the police came in the door, she called and was on the phone with him,” I don’t know how that necessarily would have been privileged.

THE COURT: I understand we— THE COURT: —talked about this, and it was agreed — I understand there was an agreement; and, no, I did not specifically rule on each one segment, and this is her calling Neverdon. She may have had — I mean, you know, she may well have called Neverdon. This is the report of somebody by Mr. Johnson saying that she called Neverdon. It doesn’t say called for him, that I asked her to, that I directed her to, or anything of that nature, so even — I don’t know that this, if I had ruled on each one of these little paragraphs, but we — it was agreed and essentially the State said it could remove all the references to Neverdon, and obviously it missed this one.

But I will instruct the — I’m not sure exactly how to instruct the jury without highlighting it with regard to that, and I’ll get back to that in a minute. With regard to the comment about the charges, or with regard to the warrant in — discussed on the tape, what, if anything, they heard, they should disregard with regard to the contents of what the warrant said, so that’s about all I can do with regard to that. I don’t think the statement — it’s not that I was charged with, it’s not that I’m going to trial for it — it’s none of those things that anybody was concerned about originally. It’s just the mere mention of the charges.

If he had said, you know, a number of other — arson—it doesn’t really matter what the warrant said, but I will instruct them that they are to disregard anything the warrant said — I know how to deal with it — and anything they heard or they may have heard with regard to actions taken by Tabbie — and it’s not even ⁴⁹⁷ Tabitha, it’s Tabbie — they are to disregard if they, in fact, heard any such thing. Thereafter, the circuit court instructed the jury to disregard the inadmissible comments: Ladies and gentlemen, in the recording that has recently been played for you, you may have heard a reference to a warrant. You should ignore any reference to the warrant with regard to — well, you should ignore any reference to the warrant and it is stricken, if you will, from the record. Also, if you heard any reference or understood any reference as “Tabbie” you should ignore, and that — ignore that as well, and that is stricken from the recording.

The remainder of the recording was then played for the jury over Johnson’s objection. At the conclusion of the recording, the defense renewed its objection. The circuit court indicated that it would take “the weekend to think about this” and again instructed the jury to disregard the comments: I — over Defense’s objection, any reference in the recording which you may have heard at the end relating to identifiable charges, you should disregard. It is stricken from the record, and we have reserved on one other issue that still may be affected by that.

I have not ruled on that, just so counsel are aware. The State rested at the close of the proceedings on December 19, 2014. After the circuit court excused one of the alternate jurors, defense counsel moved for judgment of acquittal. The court suggested that the motion for judgment of acquittal be addressed on Monday morning, and defense counsel responded, “[o]kay.” The court explained, “I would prefer to put that issue off until Monday because ...

I’ve got this other issue to consider between now and then, too.” Defense counsel responded: “That’s fine. We can do the motion for judgment of acquittal on Monday.” When trial resumed on Monday, December 22, 2014, the circuit court announced at the outset of the proceedings that it was going to grant the motion for mistrial that it had previously denied. Defense counsel did not object to the granting ⁴⁹⁸ of the mistrial or request that the court rule on the motion for judgment of acquittal. As to the motion for mistrial, the court ruled as follows: For the reasons, which I’ll state in a moment, I’m going to grant that Motion for a Mistrial.

The substance of the issue relates to the playing of certain information, which was — by agreement and Court Order — not to be heard by the jury. If there was one incident of such material, and it was addressed by the Court, and a motion for a mistrial was denied as to that — but the second incident is somewhat different; in that, it’s repetitive. If the Court believed that it was intentional or grossly negligent on the part of the State, the ruling would be different than it is now. But because the Court had the opportunity to actually observe the reaction of the Assistant State’s Attorneys conducting this trial, in realizing what was happening — and clearly, I have never seen a look of shock on an attorney in my courtroom, more than I detected the look of shock on the faces of [the Assistant State’s Attorneys upon hearing the purportedly redacted information] — and for that reason I am going to grant the Motion for a Mistrial.

What is now going to happen as a result of the mistrial, is that we will reconvene tomorrow morning, and we will pick a new trial date. So, I’ll ask Counsel to be present tomorrow morning at 9:30 with their calendars. Does Mr. Johnson require his presence in order to schedule a new date? At that time, defense counsel objected to re-trial pursuant to double jeopardy: Your Honor, I’ve had an opportunity to briefly speak with Mr. Johnson.

And I do want the record to reflect that obviously, Your Honor, has granted our request for a mistrial. But that we do not agree or accept the court’s factual findings regarding the State’s position in this case. We do not accept that it was not an intentional act on their part. ⁴⁹⁹ It will be our position that a re-prosecution of Mr. Johnson in this case will be barred by double jeopardy, as a result of the State’s actions. And I just wanted to make that clear on the record at this time.

As far as scheduling goes tomorrow, Your Honor, Mr. Johnson’s presence is not necessary to be there for that purpose. The court stated, “[t]he trial not now being conducted, I’m going to let Mr. Johnson leave, so that we can just let the jurors go out without any other concerns.” The court then discharged the jury and directed the parties to return the following day, Tuesday, December 23,2014. On December 23rd, a “Scheduling Hearing/Chambers Conference” took place for which Johnson was not present. The circuit court stated that his appearance was not necessary because they were “going to do exactly what I told you yesterday,” which was to reschedule the case.

The court then directed the parties to “convene in chambers to discuss rescheduling the matter.” Defense counsel interjected, however, and said: “I feel like because this is the first time we’re on the record again and I need to — and I don’t want to do something without the Defendant being present ... but we would make a Motion for Bail and we would make a Motion for Judgment of Acquittal.” The following colloquy then ensued: THE COURT: We’ll get — we’ll get the defendant then. This is— [DEFENSE COUNSEL]: No. THE COURT: —why I asked yesterday, will he waive his appearance for the purposes of rescheduling. All— [DEFENSE COUNSEL]: And that’s why we asked whether it was just a chambers conference, and we were told yes. THE COURT: Afterwards, afterwards, you asked that.

And I said we can do it anyway you want, we’ll do it in chambers if that’s what you request. [DEFENSE COUNSEL]: We can go into— ⁵⁰⁰ THE COURT: But that was after we went off the record. I still have to call the case so somebody knows what happened. So, let’s go set up the rescheduling which is what I thought we were going to do today. The case was rescheduled to March 9, 2015.

On January 14, 2015, Johnson filed a “Motion to Dismiss Indictment on Ground of Double Jeopardy,” arguing that “the Double Jeopardy Clause precludes any further re-prosecution of the Defendant in this matter because the State’s intentional conduct provoked the Defendant’s request for a mistrial.” Johnson also argued that “the Double Jeopardy Clause precludes any further re-prosecution of the Defendant in this matter because at the time the Court granted his mistrial, there was no manifest necessity.” Finally, Johnson argued that “the Double Jeopardy Clause precludes any further re-prosecution of the Defendant in this matter because the State’s evidence was legally insufficient to sustain a conviction.” 3 A hearing on Johnson’s motion was held on January 20, 2015, at which time the following exchange occurred: THE COURT: Would you agree that the ruling on the motion for mistrial, irrespective of your consideration of the validity of it, would have rendered a hearing on the motion for judgment of acquittal moot? [DEFENSE COUNSEL]: No. No, it would not have been. THE COURT: Would you address the issue, though, in terms of the way this case actually — one of the difficulties that we seem to have is I ask a question and you go back to answering the question that I didn’t ask. In terms of the posture of this case, after the granting of the motion for mistrial, did that render the motion for judgment of acquit ⁵⁰¹ tal moot? Or are you contending that the motion for judgment of acquittal— [DEFENSE COUNSEL]: Your Honor— THE COURT: —remains alive in spite of the ruling— [DEFENSE COUNSEL]: No. THE COURT: —on the motion for mistrial? [DEFENSE COUNSEL]: No. That’s our point.

The motion for judgment of acquittal was done the minute the Court granted the mistrial. Yes. Under Malarkey [v. State, 188 Md.App. 126 , 981 A.2d 675 (2009) ], this Court had no further power— THE COURT: Okay. All right. [DEFENSE COUNSEL]: —to grant anything or deny— THE COURT: Thank you. [DEFENSE COUNSEL]: —anything or rule on anything.

THE COURT: Okay. [DEFENSE COUNSEL]: Malarkey makes that — the Malarkey case makes that real clear. THE COURT: Thank you. [DEFENSE COUNSEL]: Okay. But we never got a chance to argue that. After hearing from both parties, the circuit court announced that it would be “striking the granting of the mistrial and ... will find that there is insufficient evidence as presented at the trial to convict Mr. Johnson.” Accordingly, in an “Order Striking Motion for Mistrial and Granting Motion for Judgment of Acquittal,” entered on January 20, 2015, the court granted the judgment of acquittal.

In the order, the trial judge noted that two motions were outstanding when the circuit court recessed on December 19, 2014: a motion for mistrial and a motion for judgment of acquittal. The judge recalled stating that he would consider the motion for judgment of acquittal “first thing” on Monday, December 22, 2014, but instead granted the motion for mistrial at the outset of the proceeding. In a footnote, the trial judge acknowledged that “no discussion occurred on Decern ⁵⁰² ber 22, 2014, as to any issue other than the Motion for Mistrial. Neither the Court nor Defense mentioned the outstanding and still pending [motion for judgment of acquittal].” Addressing the motions hearing held on January 20, 2015, the trial judge noted that although “Defense Counsel ... agreed that the granting of the [motion for mistrial] would render the issues raised on the [motion for judgment of acquittal] moot,” he “still requested both parties to address the issues which, though mooted, would have constituted the arguments for and against the [motion for judgment of acquittal].” The trial judge then concluded: The Court is troubled by the posture of the case because of the failure to rule upon the [motion for judgment of acquittal], which the record clearly demonstrates the Court stated it was to consider “first thing.” That it did not has placed the matter in a somewhat difficult posture.

Therefore, the Court will treat the Motion of the Defense [ie., the Motion to Dismiss Indictment on Ground of Double Jeopardy] as a motion to reconsider its rulings, both with regard to the subject matter of the [motion for judgment of acquittal] and the [motion for mistrial], and will strike the grant of the mistrial and consider the [motion for judgment of acquittal]. Thereafter, the trial judge explained why “there was insufficient evidence when taken as a whole, to establish the criminal culpability of Michael Johnson of second-degree murder,” thus warranting the grant of his motion for judgment of acquittal. On February 2, 2015, the State filed a new indictment, which Johnson subsequently moved to dismiss. After hearing the matter on March 12, 2015, the trial judge stated that “the procedural misstep came in this case when I failed to do what I said I was going to do, which was to address the [motion for judgment of acquittal] first thing Monday morning[.]” He expressed his belief that there is a “significant distinction” between this case and [State v.] Sirbaugh [, 27 Md.App. 290 , 339 A.2d 697 (1975) ] and Malarkey, despite reading those cases to “suggest that the granting of a Motion for Mistrial ⁵⁰³ removes or takes jurisdiction away from the Court for any further proceeding.” According to the trial judge, however, this characterization of the case law was “overly broad.” Ultimately, he concluded that he “had the authority to correct a procedural misstep,” which he did when he struck the motion for mistrial and granted the motion for judgment of acquittal.

The judge stated: “I believe that my ruling on the Judgment of Acquittal was correct at the time I ruled it, and I will grant the Motion to Dismiss the Indictment.” Discussion The State primarily argues that, contrary to the circuit court’s conclusion, two cases previously decided by this Court, Sirbaugh and Malarkey, are indeed controlling and directly applicable here. According to the State, those cases “make clear that the declaration of a mistrial and dismissal of the jury terminates the circuit court’s authority over the case.” As such, the State contends that “the court had no authority to strike its earlier mistrial ruling, [ ] its purported judgment of acquittal was a nullity,” and it “erred in dismissing the State’s indictment on double jeopardy grounds.” In response, Johnson argues that the circuit court had jurisdiction to grant the motion for judgment of acquittal, and it did so without error and or abuse of discretion. Specifically, Johnson avers that trial courts have broad discretion to reconsider the grant of a motion for mistrial. Moreover, Johnson contends that trial courts do not forfeit their jurisdiction even when they fail to comply with a mandatory deadline to act.

We agree with Johnson that, based on “the concept of ‘fundamental jurisdiction,’ ” the circuit court retains the power to grant the motion for judgment of acquittal and the grant of that motion bars further criminal proceedings on the same charge. “Juridically, jurisdiction refers to two quite distinct concepts: (i) the power of a court to render a valid decree, and (ii) the propriety of granting the relief sought.” First Federated Commodity Trust Corp. v. Comm’r of Sec. for Maryland, 272 Md. 329, 334 , 322 A.2d 539 (1974) (citing Moore ⁵⁰⁴ v. McAllister, 216 Md. 497, 507 , 141 A.2d 176 (1958)). The first, often referred to as “fundamental jurisdiction,” has been defined as “the power residing in [a] court to determine judicially a given action, controversy, or question presented to it for decision.” Pulley v. State, 287 Md. 406, 415 , 412 A.2d 1244 (1980) (citations omitted). “It is only when the court lacks the power to render a decree ... or because the court is without authority to pass upon the subject matter involved in the dispute, that its decree is void. On the other hand, the question of whether it was appropriate to grant the relief merges into the final decree and cannot thereafter be successfully assailed for that reason once enrolled.” First Federated Commodity Trust Corp., 272 Md. at 334 , 322 A.2d 539 (internal citations omitted). Stated differently, fundamental jurisdiction refers to a court’s general authority to carry out its constitutional and legal mandates with regard to a given case.

See Pulley, 287 Md. at 416 , 412 A.2d 1244 (“ ‘Fundamental jurisdiction,’ as we now use that term, is the power to act with regard to a subject matter which ‘is conferred by the sovereign authority which organizes the court, and is to be sought for in the general nature of its powers, or in authority specially conferred.’ ”) (Citation omitted). By contrast, proprietary jurisdiction is invoked with regard to a narrow decision that a court is asked to render — or an action it is asked to take — within a case validly before it, and which may or may not accord with those general laws and rules restraining the court in any given case. See id. at 417 , 412 A.2d 1244 (“[T]he trial court retains its ‘fundamental jurisdiction’ over the cause, but its right to exercise such power may be interrupted by (i) statute or Maryland Rule, (ii) the posting of authorized appeal bond, or bail following a conviction and sentence, or (iii) a stay granted by an appellate court, or the trial court itself, in those cases where a permitted appeal is taken from an interlocutory or final judgment”). A court, therefore, may act “within its general authority” in issuing a ruling, but at the same time “err[ ] in the manner in which it exercise[s] its power.” Cnty. ⁵⁰⁵ Comm’rs of Carroll Cnty. v. Carroll Craft Retail, Inc., 384 Md. 23, 45 , 862 A.2d 404 (2004).

In State v. Taylor, 371 Md. 617, 620-29 , 810 A.2d 964 (2002), the Court of Appeals reviewed two instances where the trial court, in the context of a pretrial motions hearing long before jeopardy attached, granted a motion to dismiss by hearing evidence beyond the allegations of the charging document, and it found that the evidence was not sufficient to constitute a violation of the statutes relied upon by the State. Although the Taylor Court concluded that the trial court “erred by rendering a decision on the sufficiency of the evidence when it should have limited itself to considering the legal sufficiency of the indictment on its face,” it held that the grant of the motion to dismiss “substantively constituted judgments of acquittal and therefore must be given effect as such for jeopardy purposes.” Id. at 644 , 810 A.2d 964 . The Court stated: The third common law double jeopardy principle is the plea of autrefois acquit. It has always been a settled rule of the common law that after an acquittal of a party upon a regular trial on an indictment for either a felony or a misdemeanor, the verdict of acquittal can never afterward, in any form of proceeding, be set aside and a new trial granted, and it matters not whether such verdict be the result of a misdirection of the judge on a question of law, or of a misconception of fact on the part of the jury.

State v. Shields, 49 Md. 301, 303 (1878) (emphasis added). This plea has been interpreted broadly. A verdict of “not guilty” invokes the protection against double jeopardy such that procedural errors or acquittals entered on a fatally defective indictment bar subsequent prosecution. Id. at 633, 810 A.2d 964 (citations omitted).

When the concept of fundamental jurisdiction is applied to the case sub judice, however, Johnson’s argument fails. We explain. The instant case began with the second prosecution of Johnson for second degree murder. Like Sirbaugh and Ma ⁵⁰⁶ larkey, the second prosecution ended in a mistrial, when on December 22, 2014, the trial court granted Johnson’s motion for a mistrial and discharged the jury.

Under Maryland law, the grant of a mistrial is “tantamount to a holding that there had been no trial at all,” which does not “deny either the accused or the State the opportunity to litigate directly their rights on retrial.” Cook v. State, 281 Md. 665, 670-71 , 381 A.2d 671, 674 (1978); see also Powers v. State, 285 Md. 269, 285 , 401 A.2d 1031, 1040 (1979) (“a mistrial is equivalent to no trial at all”). Harrod v. State, 423 Md. 24, 35 , 31 A.3d 173 (2011) (emphasis added). In analyzing the legal effect of a grant of a mistrial, the Court of Appeals in Harrod cited with approval to the opinion of the Supreme Court of Idaho in State v. Bitz, 89 Idaho 181 , 404 P.2d 628 (1965). Harrod, 423 Md. at 35 , 31 A.3d 173 .

In Bitz, the Idaho Supreme Court stated: The record shows that the proceedings which had taken place during February 1963 were declared to be a “mistrial” which is in essence a conclusion of law that no trial had taken place. Many authorities supporting this statement are cited in respondent’s brief, among them being Vilander v. Hawkinson (1958), 183 Kan. 214 , 326 P.2d 273 , wherein it is stated: “In other words, a mistrial is a nugatory trial and is equivalent to no trial, whereas a new trial recognizes and proceeds upon the assumption there has been a complete trial which, for sufficient reasons, has been set aside.” In Ex Parte Alpine (1928) 203 Cal. 731 , 265 P. 947 , the court said, “a mistrial and a new trial are not the same thing in name or effect. A mistrial is equivalent to no trial.” In 58 C.J.S. pp. 833-834, the term “mistrial” is defined as “An erroneous, invalid, or nugatory trial; ... a trial legally of no effect by reason of some error in the proceedings; a proceeding which has miscarried and the consequence is not a trial; a failure of trial.... ⁵⁰⁷ “In legal effect a mistrial is equivalent to no trial at all, and is declared because of some circumstance indicating that justice may not be done if the trial continues.” 404 P.2d at 630-31 (emphasis added). Given that a mistrial is equivalent to no trial at all, the Court of Appeals in Harrod , and the Supreme Court of Idaho in Bitz, were confronted with the issue of “[wjhether a mistrial in a criminal context restores the parties to their original pretrial positions.” Harrod, 423 Md. at 35 , 31 A.3d 173 ; see Bitz, 404 P.2d at 630 .

The Court of Appeals concluded that “the grant of a mistrial in a criminal case does create a ‘tabula rasa’ and requires the litigants to observe pretrial procedures once again.” Harrod, 423 Md. at 35 , 31 A.3d 173 ; see Bitz, 404 P.2d at 631 (“We conclude that the proceedings which were terminated by the order granting defendant’s motion for mistrial did not constitute a trial and that upon the entry of such order the case reverted to the status it had prior to the commencement of such proceedings.”). In Gantt v.