Tabbs v. State

Moylan, J., delivered the opinion of the Court. The broad umbrella known as the law of double jeopardy envelops four distinct sub-doctrines: 1) classic former jeopardy, arising out of the common law pleas in bar of autrefois convict and autrefois acquit; 2) simultaneous jeopardy, involving largely issues of merger and multiple punishment; 3) retrial following mistrial and 4) collateral estoppel. It is the third of these — retrial after mistrial — that concerns us here. This particular sub-doctrine of law was never considered a part of common law double jeopardy in Maryland, Hoffman v. State, 20 Md. 425, 433-434 (1863); Kyle v. State, 6 Md. App. 159, 161-162 , 250 A. 2d 314 (1969), and is not so considered in England to this day, Friedland, Double Jeopardy (Oxford, 1969); Sigler, Double Jeopardy (Cornell U. Press, 1969).

There was, to be sure, an independent common law tradition, dating from early Stuart times, protecting a defendant from having his trial needlessly aborted by the Crown when a prosecutor or a sympathetic judge sensed that the trial was going badly for the state, Regina v. Charlesworth, 121 Eng.Rep. 786 (1861); Winsor v. Regina, 122 Eng.Rep. 1150 (1866). A defendant was protected from a retrial when the state (through its judicial or prosecutorial arm) deliberately aborted the first trial in order to obtain hopefully more favorable conditions at a subsequent retrial. Crist v. Bretz, 437 U. S. 28 , 98 S. Ct. 2156 , 57 L.Ed.2d 24, 34-40 (1978) (dissenting opinion by Powell, J.). This valued common law procedural right was early recognized, under federal law, United States v. Perez, 22 U. S.

(9 Wheat.) 579 , 6 L. Ed. 165 (1824), though it was not there treated as a part of protection against double jeopardy. (Indeed, double jeopardy was neither mentioned nor indirectly alluded to anywhere in the now famous Perez decision.) This independent, common law procedural protection was applied on occasion over the decades in the federal courts, Simmons v. United States, 142 U. S. 148 , 12 S. Ct. 171 , 35 L. Ed. 968 (1891); Logan v. United ²² States, 144 U. S. 263 , 12 S. Ct. 617 , 36 L. Ed. 429 (1892); Thompson v. United States, 155 U. S. 271 , 15 S. Ct. 73 , 39 L. Ed. 146 (1894). In 1949, in Wade v. Hunter, 336 U. S. 684 , 69 S. Ct. 834 , 93 L. Ed. 974 , this common law protection was suddenly and uncritically designated by Justice Black as an aspect of double jeopardy law. Crist v. Bretz, supra, at 437 U. S. 43 -44.

When, subsequent to this uncritical and apparently inadvertent engraftment of an independent trial right onto the body of double jeopardy law, the whole corpus of that double jeopardy law was applied to the states via Benton v. Maryland, 395 U. S. 784 , 89 S. Ct. 2056 , 23 L.Ed.2d 707 (1969), the new (and somewhat awkward) graft came with it into the due process clause of the Fourteenth Amendment. In any event, as a part of the law of double jeopardy or as an independent common law procedural protection, the interest served is the same. Wade v. Hunter, supra, refers to it as a defendant’s “valued right to have his trial completed by a particular tribunal.” 336 U. S. at 689 . United States v. Jorn, 400 U. S. 470 , 91 S. Ct. 547 , 27 L.Ed.2d 543 (1971), refers to it variously as a defendant’s “right to go to a particular tribunal,” 400 U. S. at 485 ; the right of a defendant not to be “deprived of his option to go to the first jury and, perhaps, end the dispute then and there with an acquittal,” 400 U. S. at 484 ; as “a command to trial judges not to foreclose the defendant’s option,” 400 U. S. at 485 ; and “the importance to the defendant of being able, once and for all, to conclude his confrontation with society through the verdict of a tribunal he might believe to be favorably disposed to his fate,” 400 U. S. at 486 .

Downum v. United States, 372 U. S. 734, 736 , 83 S. Ct. 1033 , 10 L.Ed.2d 100 (1963), refers to it as “the valued right of a defendant to have his trial completed by the particular tribunal summoned to sit in judgment on him.” Pervading this history was society’s felt need to forbid the government to terminate deliberately a prosecution which it felt was going badly in the hope of obtaining a more favorable state’s verdict at a subsequent trial. An understanding of the purpose of this sub-doctrine and of the dangers it was developed to guard against will facilitate the intelligent mapping of the doctrine’s boundaries today. ²³ An immediate and obvious consequence of guarding the defendant’s right to control the continuation or termination of the trial is that the doctrine bifurcated into two distinct procedural postures: 1) where the mistrial occurs upon the motion of the prosecution or upon the sua sponte motion of the judge and 2) where the mistrial occurs upon the motion of the defendant. In the first situation, control over the law suit has been wrenched away from the defendant and such a declaration of mistrial will be permitted (that is, it will not bar retrial) only when there is a manifest necessity (sometimes referred to as “imperious necessity” or “evident necessity”) for the mistrial. Almost all of our constitutional law on the mistrial/retrial problem has occurred within this procedural context.

Wade v. Hunter, supra; Gori v. United States, 367 U. S. 364 , 81 S. Ct. 1523 , 6 L.Ed.2d 901 (1961); Downum v. United States, supra; United States v. Jorn, supra; Illinois v. Somerville, 410 U. S. 458 , 93 S. Ct. 1066 , 35 L.Ed.2d 425 (1973); Arizona v. Washington, 434 U. S. 497 , 98 S. Ct. 824 , 54 L.Ed.2d 717 (1978). (In two of these cases, Downum and Jorn , it was held that there was no manifest necessity and that retrial was barred. In all of the other cases, it was held that there was a manifest necessity and that retrial was not barred.) This aspect of the mistrial/retrial doctrine does not concern us in the case at bar. In the second situation, where the defendant requests a mistrial, control over the immediate question of whether to continue or terminate the proceedings has remained in his hands and ordinarily a retrial would not be barred.

This distinction was pointed out in United States v. Jorn, supra, at 400 U. S. 485 : “If that right to go to a particular tribunal is valued, it is because, independent of the threat of bad-faith conduct by judge or prosecutor, the defendant has a significant interest in the decision whether or not to take the case from the jury when circumstances occur which might be thought to warrant a declaration of mistrial.” ²⁴ United States v. Tateo, 377 U. S. 463, 467 , 84 S. Ct. 1587 , 12 L.Ed.2d 448 (1964), refers to the same situation: “If Tateo had requested a mistrial on the basis of the judge’s comments, there would be no doubt that if he had been successful, the Government would not have been barred from retrying him.”'(Emphasis in original) United States v. Dinitz, 424 U. S. 600 , 96 S. Ct. 1075 , 47 L. Ed. 2d 267 , speaks of the foreclosing effect of a defendant’s requesting the mistrial in the following terms, at 424 U. S. 607 -608: “Different considerations obtain, however, when the mistrial has been declared at the defendant’s request. The distinction between mistrials declared by the court sua sponte and mistrials granted at the defendant’s request or with his consent is wholly consistent with the protections of the Double Jeopardy Clause. Even when judicial or prosecutorial error prejudices a defendant’s prospects of securing an acquittal, he may nonetheless desire ‘to go to the first jury and, perhaps, end the dispute then and there with an acquittal.’ ” In two other cases, Lee v. United States, 432 U. S. 23 , 97 S. Ct. 2141 , 53 L.Ed.2d 80 (1977), and United States v. Scott, 437 U. S. 82 , 98 S. Ct. 2187 , 57 L.Ed.2d 65 (1978), a defense motion to dismiss, made and granted while the trial was in progress, was considered to be “functionally indistinguishable from a declaration of mistrial.” Lee v. United States, at 432 U. S. 31 . With respect to the retrial problem where the first trial terminated upon the motion of the defendant, Lee v. United States said, at 432 U. S. 32 -33: “Where the defendant, by requesting a mistrial, exercised his choice in favor of terminating the trial, ²⁵ the Double Jeopardy Clause generally would not stand in the way of reprosecution.” United States v. Scott spoke to the same proposition, at 437 U. S. 93 : “Where, on the other hand, a defendant successfully seeks to avoid his trial prior to its conclusion by a motion for mistrial, the Double Jeopardy Clause is not offended by a second prosecution. ‘A motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant’s motion is necessitated by a prosecutorial or judicial error.’ ” (Emphasis in original) Thus, a mistrial declared upon the motion of the prosecution or of the court will bar a retrial absent manifest necessity; a mistrial declared upon the motion of the defendant will not ordinarily bar a retrial.

There has sprouted, however, in the Supreme Court analysis of mistrial/retrial a tender shoot of dicta (never yet anything even approaching an actual holding) indicating that there may be a minor exception to this otherwise foreclosing effect of a defense request for the mistrial upon the retrial bar. The exception is called “prosecutorial or judicial overreaching” and it first appeared as handwriting on the wall in United States v. Jorn, supra, at 400 U. S. 485 : “Thus, where circumstances develop not attributable to prosecutorial or judicial overreaching, a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant’s motion is necessitated by prosecutorial or judicial error.” (Emphasis supplied) To state the present problem and to move to the situation now before us, there is some debate as to the meaning of the phrase “prosecutorial or judicial overreaching.” It is universally agreed that it embraces an intentional effort on ²⁶ the part of prosecutor or judge to force a defendant into requesting a mistrial and thereby to sabotage a trial which is going badly from the state’s point of view or, alternatively, deliberately to harass a defendant by subjecting him to a series of trials. There is also appearing periodically, however, the additional notion that “prosecutorial or judicial overreaching” includes gross negligence on the part of judge or prosecutor, that is, error necessitating the granting of á mistrial which sprang not from a deliberate purpose to harass or cause a mistrial but simply from the grossly negligent commission of trial error. The appellant, Ricardo Ricky Tabbs, raises a single contention.

He was initially brought to trial for first-degree murder, armed robbery and related counts before Judge Stanley B. Frosh in the Circuit Court for Montgomery County on October 16 and 17, 1978. Upon a potentially damaging blurt by a State’s witness during cross-examination, the appellant moved for a mistrial and Judge Frosh granted the motion. On the same day, the appellant moved to dismiss the indictment upon the grounds that a retrial would violate his right against double jeopardy. Judge Frosh denied the motion and the present appeal is taken from that denial.

The issue before us is helpfully simplified by the following concession, made by the appellant in his brief before us: “Counsel should state right at the outset that it cannot prove, and therefore does not allege, that the Prosecution’s actions both before and during the trial were done with the specific intent of provoking a mis-trial.” The appellant’s only contention is that the State’s Attorney’s Office was guilty of gross negligence, primarily in not taking adequate measures to guard against the damaging blurt, and that this gross negligence constitutes prosecutorial overreaching so as to relieve the appellant of the otherwise foreclosing effect of himself having requested the mistrial. We affirm the order of Judge Frosh denying the dismissal. Without intimating even remotely that there was any negligence, gross or otherwise, we do not find it necessary ²⁷ to assess the facts in this regard because of our holding that negligent trial error (even gross) is not a variety of judicial or prosecutorial overreaching. We deliberately choose this approach to the case because it is of broader precedential significance and because it may serve to lay to rest the ghost of gross negligence which is being raised with increasing and with alarming frequency in the appeals brought to this Court.

At the risk of piling Ossa upon Pelion, we attack what we deem to be this misbegotten notion on a number of fronts in the hope that the issue may be settled once and for all, definitively, exhaustively even if exhaustingly. Analysis of the Supreme Court Discussions The appropriateness of looking to the Supreme Court is transcendent in a case such as this, for the Supreme Court is our only possible source of law on this subject. There is no Maryland constitutional provision against double jeopardy. Our sub-constitutional common law of double jeopardy does not embrace the entire mistrial/retrial phenomenon but only has its gears engaged upon the actual rendering of a verdict.

Kyle v. State, supra. We deal with this problem only by virtue of the mandate of Benton v. Maryland, supra. A. Direct Statements About “Overreaching”: In United States v. Jom, supra, which first raised intimations that there was something called “prosecutorial or judicial overreaching,” the limiting of that "overreaching” to intentional conduct designed to sabotage a trial that was going badly was also strongly intimated. The Supreme Court said, at 400 U. S. 485 , n. 12: “[Wjhere a defendant’s mistrial motion is necessitated by judicial or prosecutorial impropriety designed to avoid an acquittal, reprosecution might well be barred.” (Emphasis supplied) In United States v. Tateo, supra, the Supreme Court again stressed not simply the intentional commission of error but ²⁸ the deliberate purpose of provoking a mistrial.

It there said, at 377 U. S. 468 , n. 3: “If there were any intimation in a case that prosecutorial or judicial impropriety justifying a mistrial resulted from a fear that the jury was likely to acquit the accused, different considerations would, of course, obtain.” (Emphasis supplied) United States v. Dinitz, supra, is the one direct mistrial/retrial case we have where the mistrial was requested by the defense. The defense motion was prompted by a judicial error in ordering the defendant’s prime counsel to leave the courthouse and insisting that assistant counsel go on with the case. After obtaining the mistrial, the defendant maintained that this judicial error had left him with no choice but to request the mistrial. The United States Court of Appeals for the Fifth Circuit ruled in the defendant’s favor, 492 F. 2d 53 , aff’d en banc 504 F. 2d 854 .

The Supreme Court reversed, holding that it is not error that bars a retrial but only error deliberately calculated to abort the first trial, saying at 424 U. S. 611 : “The Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions. It bars retrials where ‘bad-faith conduct by judge or prosecutor,’ ... threatens the ‘[hjarassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict’ the defendant.” (Emphasis supplied) Even accepting, arguendo, that judicial error had occurred and that the error was sufficiently grave to leave the defendant with no choice but to request a mistrial, the Supreme Court could not have been more explicit that only the deliberate and intentional sabotaging of the trial ²⁹ constitutes judicial overreaching so as to bar a retrial. The Court said, at 424 U. S. 611 : “[H]ere the trial judge’s banishment of Wagner from the proceedings was not done in bad faith in order to goad the respondent into requesting a mistrial or to prejudice his prospects for an acquittal. As the Court of Appeals noted, Wagner ‘was guilty of improper conduct’ during his opening statement which ‘may have justified disciplinary action,’ ...

Even accepting the appellate court’s conclusion that the trial judge overreacted in expelling Wagner from the courtroom, ibid., the court did not suggest, the respondent has not contended, and the record does not show that the judge’s action was motivated by bad faith or undertaken to harass or prejudice the respondent. ” (Emphasis supplied) In Lee v. United States, supra, the government was at fault for proceeding to trial on a theft indictment that failed to charge scienter. The defendant, just prior to trial, moved to dismiss the indictment. The motion to dismiss was ultimately granted after jeopardy had attached (as a matter of fact, after both sides had rested their cases). The Supreme Court treated the motion to dismiss as the functional equivalent of a request for a mistrial.

The Court then stressed, at 432 U. S. 30 , that the normal way to correct prosecutorial or judicial error, following a mistrial or an appellate reversal, is to go back and try the case again free from error: “The error, like any prosecutorial or judicial error that necessitates a mistrial, was one that could be avoided — absent any double jeopardy bar — by beginning anew the prosecution of the defendant.” The Supreme Court in Lee was equally clear about the only type of error which will constitute overreaching, saying at 432 U. S. 33 -34: “It follows under Dinitz that there was no double jeopardy barrier to petitioner’s retrial unless the judicial or prosecutorial error that prompted ³⁰ petitioner's motion was ‘intended to provoke' the motion or was otherwise ‘motivated by bad faith or undertaken to harass or prejudice' petitioner.... Here, two underlying errors are alleged: the prosecutor’s failure to draft the information properly and the court’s denial of the motion to dismiss prior to the attachment of jeopardy. Neither error — even assuming the court’s action could be so characterized — was the product of the kind of overreaching outlined in Dinitz. The drafting error was at most an act of negligence, as prejudicial to the Government as to the defendant.” (Emphasis supplied) This is the sum total of Supreme Court comment upon overreaching.

It is beyond dispute that the evil aimed at was the intentional provoking of a mistrial for the purpose of obtaining a more favorable forum for the state or for the purpose of deliberately harassing the defendant by subjecting him to a series of trials. This ancient but still primary thrust of the bar against retrials following certain deliberately provoked mistrials was reaffirmed as recently as Arizona v. Washington, supra, at 434 U. S. 507 -508: “Although there was a time when English judges served the Stuart monarchs by exercising a power to discharge a jury whenever it appeared that the Crown’s evidence would be insufficient to convict, the prohibition against double jeopardy as it evolved in this country was plainly intended to condemn this ‘abhorrent’ practice.” B. The Handling of Error in Other Settings; Appellate Reversals, Motions to Dismiss, Mistrials Declared Sua Sponte or at Behest of State: What emerges clearly is that the retrial bar is not intended as a sanction against judicial or prosecutorial error committed for any other purpose than to abort the first trial. The reversal of a conviction, the granting of a mistrial and the granting of a motion to dismiss are the common sanctions ³¹ employed against all other error. Significant light will be shed upon this subject of overreaching by looking to the ways in which the Supreme Court handles the problem of error, large or small, advertent or inadvertent, intentional or negligent, in those settings.

In the interest of sureness, however, let us first establish the validity of the analogy. In United States v. Tateo, supra, a judicially provoked guilty plea was deemed to be the functional equivalent of a request for a mistrial. The Supreme Court, at 377 U. S. 466 -467, loudly affirmed the analogy between that situation and an appellate reversal following an erroneous conviction: “Tateo contends that his situation must be distinguished from one in which an accused has been found guilty by a jury, since his involuntary plea of guilty deprived him of the opportunity to obtain a jury verdict of acquittal. We find this argument unconvincing.

If a case is reversed because of a coerced confession improperly admitted, a deficiency in the indictment, or an improper instruction, it is presumed that the accused did not have his case fairly put to the jury. A defendant is no less wronged by a jury finding of guilt after an unfair trial than by a failure to get a jury verdict at all; the distinction between the two kinds of wrongs affords no sensible basis for differentiation with regard to retrial.” (Emphasis supplied) There is, indeed, a close analogy between an appellate reversal of an erroneous conviction upon defense motion and the declaration of a mistrial upon defense motion. The Supreme Court in Jorn distinguished this situation from the mistrial declared without the defendant’s consent, saying at 400 U. S. 484 : “[T]he crucial difference between reprosecution after appeal by the defendant [and, by implication, a mistrial at defendant’s request] and reprosecution after a sua sponte judicial mistrial declaration is that in the first situation the defendant has not been deprived of his option to go to the first jury and, ³² perhaps, end the dispute then and there with an acquittal. On the other hand, where the judge, acting without the defendant’s consent, aborts the proceeding, the defendant has been deprived of his ‘valued right to have his trial completed by a particular tribunal.’ ” Looking first to those errors significant enough to cause the appellate reversal of a conviction, it goes without stating that many of them were egregious, were flagrant and were done with the deliberate purpose of enhancing the chance of conviction.

It is nonetheless clear that the sanction was the reversal itself and that retrial was not barred. Brady v. Maryland, 373 U. S. 83 , 83 S. Ct. 1194 , 10 L.Ed.2d 215 (1963) (suppression by the State of exculpatory evidence); Mapp v. Ohio, 367 U. S. 643 , 81 S. Ct. 1684 , 6 L.Ed.2d 1081 (1961) (introducing fruits of unreasonable search and seizure); Pointer v. Texas, 380 U. S. 400 , 85 S. Ct. 1065 , 13 L.Ed.2d 923 (1965) (introduction of inadmissible hearsay and denial of right to confrontation). United States v. Jorn, supra, spoke to this very point at 400 U. S. 484 : “The determination to allow reprosecution in these circumstances [after reversal of erroneous conviction] reflects the judgment that the defendant’s double jeopardy interests, however defined, do not go so far as to compel society to so mobilize its decision making resources that it will be prepared to assure the defendant a single proceeding free from harmful governmental or judicial error.” Indeed, the Supreme Court has within the last year made it absolutely clear that only those reversals based upon the legal insufficiency of the evidence, to wit, those cases which should have resulted in verdicts of not guilty upon the merits, will be reversed outright and that reversals for other varieties of error will result in a remand. Burks v. United States, 437 U. S. 1 , 98 S. Ct. 2141 , 57 L.Ed.2d 1 (1978); Greene v. Massey, ³³ 437 U. S. 19 , 98 S. Ct. 2151 , 57 L.Ed.2d 15 (1978).

Burks explained the rationale at 437 U. S. 15 : “[Rjeversal for trial error, as distinguished from evidentiary 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.” The analogy remains strong when we move from appellate reversals of convictions even to certain mistrials requested by the state.

The Supreme Court decision in Illinois v. Somerville, supra, argues overwhelmingly against the “gross negligence — overreaching” position. In Somerville, a mistrial was declared on the motion of the state and over the strong objection of the defendant. The sole reason for the mistrial was that the state had negligently drafted a defective indictment, omitting the element of animus furandi from a larceny charge. Illinois procedure did not permit amendment.

It would have been very easy to have dismissed with prejudice or to have barred retrial with pious words about the obligation to protect a defendant from undue harassment. Indeed, on a federal writ of habeas corpus, the United States Court of Appeals for the Seventh Circuit did just that. 447 F. 2d 733 . The Supreme Court reversed the Seventh Circuit and held that a retrial was permitted, stressing “the public’s interest in fair trials designed to end in just judgments.” 410 U. S. at 470 . The Court reasoned, at 410 U. S. 468 -469: “The trial judge was faced with a situation ... in which a procedural defect might or would preclude the public from either obtaining an impartial verdict ³⁴ or keeping a verdict of conviction if its evidence persuaded the jury.

If a mistrial were constitutionally unavailable in situations such as this, the State’s policy could only be implemented by conducting a second trial after verdict and reversal on appeal, thus wasting time, energy, and money for all concerned.” The Supreme Court did not cavalierly dismiss society’s right to a verdict on the merits, notwithstanding the prosecutorial error, saying at 410 U. S. 469 : “Here ... the mistrial was, under Illinois law, the only way in which a defect in the indictment could be corrected.” The Somerville decision concluded, at 410 U. S. 471 : “[W]here the declaration of a mistrial implements a reasonable state policy and aborts a proceeding that at best would have produced a verdict that could have been upset at will by one of the parties, the defendant’s interest in proceeding to verdict is outweighed by the competing and equally legitimate demand for public justice.” A fortiori, a retrial will not be barred where negligent prosecutorial or judicial error has prompted a mistrial at the defendant’s request rather than over his objection. In Lee v. United States, supra, the prosecutorial error — the drafting of a faulty indictment — was the same as that in Somerville, but the procedural posture was different. In Lee, it was the defendant who moved to dismiss the indictment. The motion to dismiss was granted after jeopardy had attached.

The Supreme Court held that the “drafting error was at most an act of negligence” and since the error was not “motivated by bad faith or undertaken to harass or prejudice,” there was no barrier to retrial. 432 U. S. at 34 . In United States v. Tateo, supra, we are dealing, virtually foursquare, with the type of error which the appellant urges should be deemed a part of “prosecutorial or judicial ³⁵ overreaching”. Four days into his major felony trial, Tateo was literally “bullied” by the trial judge into entering a plea of guilty. The judge “informed Tateo’s counsel that if Tateo were found guilty by the jury he would impose a life sentence on the kidnapping charge and consecutive sentences on the other charges.

Upon being told of the judge’s position and advised by his counsel that the likelihood of conviction was great, Tateo pleaded guilty, as did his codefendant.” 377 U. S. at 464 . The Supreme Court held that this forced entry of a guilty plea was the functional equivalent of a request for a mistrial. It then gave its