Taylor v. State

CATHELL, Judge. Bobby Eugene Taylor, petitioner, was tried by a jury in the Circuit Court for Frederick County, with Judge Edward Dwyer, Jr. presiding, and was convicted of child abuse, a second degree sexual offense and a third degree sexual offense. On June 26, 2002, petitioner was sentenced to twenty years of incarceration for the second degree sexual offense, with all but twelve years suspended. Petitioner received concurrent sentences of twelve years of incarceration for the ⁶⁰⁴ child abuse offense and five years of incarceration for the third degree sexual offense.

Petitioner filed an appeal to the Court of Special Appeals, presenting four questions for its review. In an unreported opinion, the Court of Special Appeals affirmed the trial court’s rulings. Petitioner then filed a Writ of Certiorari and this Court granted it on December 18, 2008. Taylor v. State, 379 Md. 98 , 839 A.2d 741 (2004).

The sole question petitioner presents for our review asks: “Did the trial of petitioner constitute a violation of the double jeopardy clause after the trial judge declared a mistrial over petitioner’s objection and without manifest necessity?” We hold that petitioner failed to preserve the double jeopardy issue for review because no objections or motion to dismiss based on double jeopardy were raised in the trial court in this case (or in the original case). The double jeopardy issue was first presented on appellate review. Because we hold that the double jeopardy issue was not properly preserved, we do not resolve the issue of manifest necessity. We also need not resolve the issue of whether a defendant is bound by his counsel’s decision to consent to a mistrial where the defendant opposed any delay in the initial trial.

I. Facts The record in the case sub judice contains detailed facts about the underlying crimes with which petitioner was charged. Being that the sole issue in this case asks whether the mistrial and subsequent retrial of petitioner violated his Fifth Amendment right not to be put in jeopardy twice for the same offense and does not turn on the underlying facts of the crime, we will not include those substantive facts here. On April 2, 2001, petitioner was indicted by a Frederick County grand jury on the charges of child abuse, second degree sexual offense and third degree sexual offense based upon alleged incidents involving his stepson’s daughter. On September 10, 2001, the jury for petitioner’s trial was sworn, ⁶⁰⁵ opening statements were made and testimony was taken before adjournment for the day.

The following day, September 11, 2001, the trial judge announced that the courthouse was being closed due to the national emergency caused by the terrorist attacks in New York, Virginia and Pennsylvania. The transcript of the morning of September 11, 2001, reflects the following dialogue: THE COURT: ... [W]e just received word due to the basically national emergency the, ... whatever occurred in New York and the Pentagon, that the County Government is closing down, if not now, within the next 10 minutes. We’re not sure of the exact time. But, that means we have to close. [1] [Defense Counsel] and [Prosecutor], we don’t know what’s going to happen next.... [I]t’s my understanding, [Defense Counsel], rather than bring these jurors back we know not for how long you are not objection [sic], you have no difficulty with my declaring a mistrial in this case not caused by either party. [DEFENSE COUNSEL]: That’s— THE COURT: And if I did that [petitioner] would have to understand that he could be retried. [DEFENSE COUNSEL]: Your Honor— THE COURT: And it would be a different jury. [DEFENSE COUNSEL]: Your Honor, ... that’s correct. ... [T]hat is my understanding that the, you know, I understand the Court’s ... and our predicament in terms of the Court being closed, and the fact that jurors would probably more likely have problems coming back the additional two days anticipated by the Assistant State’s Attorney in this case.

I’ve explained to [petitioner] all of those issues, and how it is that we arrived at this point.... [I]n view of all of that ⁶⁰⁶ [petitioner] understands, but he would like to address the Court very briefly. THE COURT: Only, only on the issue of the mistrial. I don’t know what he wants to say, and whether it’s appropriate for him. Do you know what he wants to say, [Defense Counsel]? [DEFENSE COUNSEL]: Your Honor, I, I think he just wants to indicate that he has a ... due to his condition that he would like for everything to be over as quickly as possible, and that he is concerned, he’s saying that because of his condition that he will worry and worry and worry until— ... ... this has come to a conclusion, THE COURT: Do you then prefer that I just recess today and try to bring it back tomorrow? [PETITIONER]: Yes. [DEFENSE COUNSEL]: That’s what [petitioner] would like to do.

THE COURT: [Defense Counsel], what’s your position? [DEFENSE COUNSEL]: Your Honor, I have some concerns that I, you know, as I stated back in Chambers. My concern would be again that the witnesses, not the witnesses, but the jurors, uh, we’re going to have this interruption of today and possibly tomorrow, we don’t know what tomorrow’s going to bring. So now we have a jury that’s, uh— THE COURT: That’s basically called, was told two days, that we’d finish today. [DEFENSE COUNSEL]: Correct. Now they would have to anticipate, perhaps change their schedules.

In the final analysis we don’t, we don’t know how any of those, the people on the jury might be affected by this, ... by the events of today. So I’m concerned as whether or not this jury is going to be able to focus sufficiently after such a hiatus and other ... issues now confronting us. ⁶⁰⁷ ... [Y]ou know ... that’s my belief. [Petitioner] does have a desire to get the case over as quickly as possible. THE COURT: Well I can understand that. [Prosecutor], what’s the State’s position? [PROSECUTOR]: Your Honor, uh, I understand that there are, uh, two, I think it’s wise that to predict that this matter would continue on for another two days at least or at least part of the second day. I understanding [sic] that there are two jurors who have difficulty proceeding in that manner. ... [PROSECUTOR]: My concern is that we leave, that if we loose [sic] two we are left with no alternates, and given what’s going on that there may be occasion we might loose [sic] one more juror, and that we would be in the same position two days from now, so, uh— THE COURT: What’s the State’s position? [PROSECUTOR]: I think it’s prudent to proceed in the manner that Your Honor (inaudible).

THE COURT: All right, [Defense Counsel], anything else? [DEFENSE COUNSEL]: (No response).” [Alterations added.] Directly following this discussion, the record reflects that petitioner addressed the court. The following dialogue, ending in Judge Dwyer declaring a mistrial, occurred: “[PETITIONER]: All right, Your Honor, I’ve been, uh, you know my ... mental condition, I won’t discuss it. I’ve been pressured with this for 14 months now. And all a mistrial can do is give the prosecution more time, and 10 years, 15 years from now she can bring the same case back up, and all this time that will be held over my head.

THE COURT: Well, first if it’s a mistrial it’s going to be reset as soon as possible. We’re not talking 10 or 15 years, we’re talking less than six months. [PETITIONER]: That will violate my rights. ⁶⁰⁸ THE COURT: Well (inaudible)— [PETITIONER]: They’ve already been violated one time. THE COURT: Well, that’s a different matter about the first one. But I will tell you this, if it’s for this reason it’s not going to violate your right, because this is completely out of control of anybody.

Do you understand that? [PETITIONER]: No, sir, I don’t. [DEFENSE COUNSEL]: You understand that the Court is closing not because the Court has said so, but the County Commissioner[s]. THE COURT: And not because of [the] State. I didn’t close the Court. I mean, I can tell you that the Governor just declared a state of emergency, that Frederick County is shutting down, that Washington County has already shut down, and that’s completely beyond my control or your control or [the Prosecutor’s] control. [PETITIONER]: Could it be made a point of the record that I, uh, don’t want the dismissal, that I ask for the dismissal?

THE COURT: Well, neither of you are asking for a dismissal or— [PETITIONER]: I’m requesting that it doesn’t happen. I’m not asking for it. THE COURT: You want me, you want me to continue this trial today with the Governor and everybody shutting it down, the Government down? [PETITIONER]: I want the trial continued, because I know what the prosecution’s going to do. THE COURT: Well, that’s a different matter, but.

All right, anything else, [Defense Counsel]? [PETITIONER]: They’ve already bought an extra six months. THE COURT: [Defense Counsel], anything else? [DEFENSE COUNSEL]: No, Your Honor. THE COURT: [Prosecutor], anything else? [PROSECUTOR]: Nothing further, Your Honor. ⁶⁰⁹ THE COURT: In this case I am going to declare a mistrial, and declare it’s based on a national emergency, we don’t know what’s going on in New York, what we hear is not good. We don’t know what’s going on in D.C. we hear it’s not good.

We do know that my delay in getting on the bench is because we were waiting to see whether we can stay open, we cannot. I told Counsel I would have stayed open, but we just got word that we must shut down. Uh, jurors have difficulty returning on Wednesday and Thursday, at least [two] of them, we don’t know whether we’ll be able to at this point, because we don’t know what’s going on. This is a mistrial declared, because of manifest necessity, it is a good cause continuance.

Refer to the assignment office for setting a new trial date ... as soon as possible ____ Court’s adjourned.” [Alterations added.] On November 7, 2001, within two months of Judge Dwyer’s granting of a mistrial, a new jury was sworn and the retrial began. The retrial concluded on November 9, 2001. During the retrial, petitioner did not raise any double jeopardy issue. The jury found petitioner guilty on all three counts.

Petitioner filed a motion for a new trial and supplemented it several times. The motion was heard and denied by Judge Dwyer on June 26, 2002. Petitioner again failed to include any double jeopardy argument within this motion or any supplement, and, instead, specifically noted the necessity for the mistrial, stating, in his written “Supplement to Motion for New Trial,” that, “The terrorist attack on September 11, 2001, necessitated a mistrial.” Judge Dwyer subsequently sentenced petitioner to twelve years on the child abuse conviction. In addition, he sentenced petitioner to twenty years of incarceration (with all but twelve years suspended) on the second degree sexual offense conviction and five years of incarceration on the third degree sexual offense, both to be served concurrently with the sentence for the child abuse conviction. ⁶¹⁰ II.

Discussion The central issue raised in the Petition to this Court was whether petitioner was twice put in jeopardy for the same offense due to the trial court’s grant of a mistrial on account of the uncertainty regarding the tragic national events that occurred on September 11, 2001. The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution protects individuals from being tried for the same offense more than once, as it states, in part, “... nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb....” The Fifth Amendment is applicable to the states through the Fourteenth Amendment of the United States Constitution. See Benton v. Maryland, 395 U.S. 784, 787 , 89 S.Ct. 2056, 2058 , 23 L.Ed.2d 707 (1969). Similarly, despite the lack of a double jeopardy clause in the Maryland Constitution, the Maryland common law provides protection to individuals from being twice put into jeopardy.

State v. Woodson, 338 Md. 322, 327-28 , 658 A.2d 272, 275 (1995); Flaherty v. State, 322 Md. 356, 365, 587 A.2d 522, 526 (1991); Gianiny v. State, 320 Md. 337, 342 , 577 A.2d 795, 797 (1990); Randall Book Corp. v. State, 316 Md. 315, 323 , 558 A.2d 715, 719 (1989). This protection against being twice put into jeopardy prohibits three distinct abuses: 1) the second prosecution for the same offense after acquittal; 2) the second prosecution for the same offense after conviction for that offense; and 3) the imposition of multiple punishments for the same offense. State v. Jones, 340 Md. 235, 242, 666 A.2d 128, 131 (1995); cert. denied, 516 U.S. 1173 , 116 S.Ct. 1265 , 134 L.Ed.2d 213 ; see also State v. Griffiths, 338 Md. 485, 489 , 659 A.2d 876, 878-79 (1995); Woodson, 338 Md. at 328 , 658 A.2d at 275 (citing North Carolina v. Pearce, 395 U.S. 711, 717 , 89 S.Ct. 2072, 2076 , 23 L.Ed.2d 656 (1969), rev’d on other grounds, Alabama v. Smith, 490 U.S. 794 , 109 S.Ct. 2201 , 104 L.Ed.2d 865 (1989)). In the case sub judice, if the issue had been preserved, we would be concerned with a variation of the first type of potential abuse, whether the trial court’s granting of a mistrial, which petitioner’s counsel did not oppose, although petitioner, himself, did, and the subsequent retrial ⁶¹¹ constituted a second prosecution for the same offense, ie., whether there was an improper grant of a mistrial by the trial court.

In State v. Woodson, supra, this Court set out the parameters to consider where a mistrial may affect an individual’s double jeopardy rights, when we said: “The double jeopardy prohibition against retrial for the same offense attaches in a jury trial when the jury is empaneled and sworn. See Illinois v. Somerville, 410 U.S. 458, 467 , 93 S.Ct. 1066, 1072 , 35 L.Ed.2d 425, 433 (1973); Blondes v. State, 273 Md. 435, 444 , 330 A.2d 169, 173 (1975). Thus, after jeopardy attaches, retrial is barred if a mistrial is declared without the defendant’s consent unless there is a showing of ‘manifest necessity’ to declare the mistrial. See United States v. Perez, 22 U.S. (9 Wheat.) 579, 580 , 6 L.Ed. 165, 165 (1824) (holding that a trial court may discharge a jury without the defendant’s consent whenever ‘taking all the circumstances into consideration, there is a manifest necessity for the act’).

Although there is no clear test to determine whether a manifest necessity exists, it has been held that there must be a ‘“high degree” [of necessity] before concluding that the mistrial is appropriate.’ Arizona v. Washington, 434 U.S. 497, 506 , 98 S.Ct. 824, 831 , 54 L.Ed.2d 717, 729 (1978) (footnote omitted).” Woodson, 338 Md. at 329 , 658 A.2d at 276 . Petitioner argues that the trial judge improperly declared a mistrial without his consent and that the mistrial was not based on manifest necessity, thus the retrial violated his protections against being placed in jeopardy twice. First, petitioner argues that, although his attorney at trial initially acquiesced to the trial court’s decision to declare a mistrial, his attorney did not speak after petitioner, himself, vehemently opposed the mistrial. He also, for the first time on appeal and in his brief before this Court, argues that his position against the mistrial served as an official objection on the record to the granting of the mistrial.

Petitioner further contends that the mistrial was not manifestly necessary because he claims that ⁶¹² the facts support that a mere continuance would have been a sufficient alternative to a mistrial and the mistrial could only be declared, in light of petitioner’s objection to it, in urgent or extraordinary circumstances. The State first argues that the position of petitioner’s counsel in agreeing with the need to declare a mistrial controls because strategic decisions are to be governed by the attorney, even where the attorney’s client is not in agreement, especially, as in this case, where the “decision to consent to the mistrial was a tactical one within the province of the attorney.” Second, the State contends that petitioner’s claim that his double jeopardy rights were violated was never raised in the trial court or at the retrial and that Maryland Rule 8-131(a) precludes an appellate court from ordinarily deciding issues not raised below. Alternatively, the State contends that even if the issue was properly preserved, the trial court properly exercised its discretion when it declared a mistrial for manifest necessity due to the events of September 11, 2001. There is no need for this Court, however, to discuss extensively whether the trial court properly declared a mistrial for manifest necessity, or whether petitioner’s counsel’s acquiescence to the declaration of a mistrial binds petitioner to that position in light of his personal opposition, because we hold that petitioner failed to preserve his objection to the retrial as being in derogation of his Federal Constitutional or State common law rights against twice being placed in jeopardy, as is required by Maryland Rule 8-131(a).

Maryland Rule 8-131(a) Maryland appellate courts have consistently held that, pursuant to Maryland Rule 8-131(a), and its predecessors, Rules 885 and 1085, appellate courts will not ordinarily decide issues not raised or decided by a trial court. See Conyers v. State, 354 Md. 132, 148 , 729 A.2d 910, 918 , cert. denied, 528 U.S. 910 , 120 S.Ct. 258 , 145 L.Ed.2d 216 (1999) (citing Md. Rule 8-131(a), holding that several issues in review of a death sentence were not preserved because they were not raised at the ⁶¹³ trial level); Walker v. State, 338 Md. 253, 262-63 , 658 A.2d 239, 243 , cert. denied, 516 U.S. 898 , 116 S.Ct. 254 , 133 L.Ed.2d 179 (1995) (citing Md. Rule 8-131(a), holding that issues relating to denial of due process because of prosecutorial misconduct and a Sixth Amendment violation of being denied counsel during pre-trial proceedings were not properly raised below); White v. State, 324 Md. 626, 640 , 598 A.2d 187, 194 (1991) (citing Md. Rule 8-131(a) in holding that a claim that the defendants were deprived of their constitutional right to present witnesses in their defense was not properly before the Court because the argument was not made to the trial court); In re John H., 293 Md. 295, 303 , 443 A.2d 594, 598 (1982) (citing Rule 885, a predecessor of Md. Rule 8-131(a), not reaching the issue of whether a statute was constitutional because the issue of constitutionality of the statute was not argued to the trial judge); Hewitt v. State, 242 Md. 111, 113-14 , 218 A.2d 19, 20-21 (1966) (specifically holding that a double jeopardy issue may not be raised for the first time on appeal pursuant to then Rule 885); Iozzi v. State, 224 Md. 42, 46 , 166 A.2d 257, 260 (1960) (not reaching a claim that the defendant was not allowed his right to counsel when his attorney was not present at a portion of the trial, citing Rule 885 and stating, “[i]n the absence of anything to show a request to the trial court or a ruling thereon, there is nothing before us to consider”) (alteration added); Kirby v. State, 222 Md. 421, 425 , 160 A.2d 786, 788 (1960) (stating that “cases almost uniformly hold that the right to a speedy trial ... like other statutory or constitutional rights, may be waived and that it is waived by failing to assert the right in the trial court. Unless that question was raised below, it is not before the appellate court for review — that is, it may not be raised for the first time on appeal because, among other reasons, a defendant cannot participate in a trial and save an objection with which to challenge an adverse verdict”); Martel v. State, 221 Md. 294, 300-01 , 157 A.2d 437, 441 (1960) (citing Rule 885, dismissing the issues of the defendant being deprived of a preliminary hearing and a speedy trial because the issues were not “raised below and they cannot now be considered by this Court”); ⁶¹⁴ Howell v. State, 56 Md.App. 675, 678 , 468 A.2d 688, 689 (1983), cert. denied, 299 Md. 426 , 474 A.2d 218 (1984), cert. denied, 469 U.S. 1039 , 105 S.Ct. 520 , 83 L.Ed.2d 408 (1984) (holding, pursuant to Rule 885, that an appellate court is not required to reach a double jeopardy issue that was not brought in the trial court); Medley v. State, 52 Md.App. 225, 231 , 448 A.2d 363, 365-66 (1982) (recognizing that even constitutional issues may be waived if not properly raised at the trial court level pursuant to Rules 885 and 1085, both predecessors to current Md. Rule 8-131(a)); see also Johnson v. State, 138 Md.App. 539 , 550 n. 2, 772 A.2d 1260 , 1266 n. 2 (2001) (recognizing, in dicta, the Court of Special Appeal’s Howell holding that double jeopardy claims may not be raised for the first time on appeal). Rule 8-131(a) states: “RULE 8-131.

SCOPE OF REVIEW. (a) Generally. The issues of jurisdiction of the trial court over the subject matter and, unless waived under Rule 2-322, over a person may be raised in and decided by the appellate court whether or not raised in and decided by the trial court. Ordinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court, but the Court may decide such an issue if necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal.” [Emphasis added.] Speaking for the Court of Special Appeals in Medley, supra, Judge Wilner examined the purpose of Rule 885, a predecessor to Md. Rule 8-131(a): “It is a matter of basic fairness to the trial court and to opposing counsel, as well as being fundamental to the proper administration of justice; and one need only look at the extensive annotations to Maryland Rules 885 and 1085 to see that it is rigorously enforced.

Even errors of Constitutional dimension may be waived by failure to interpose a timely objection at trial (see, for example, Smith v. State, 16 Md.App. 317 [, 295 A.2d 802 ] (1972), cert. den. 267 Md. 744 ⁶¹⁵ (1973); Hewitt v. State, 242 Md. 111 [, 218 A.2d 19 ] (1966)), and so may alleged violations of sub-constitutional procedural rules. See Logan v. State, 289 Md. 460, 487 [, 425 A.2d 632 ] (1981).” Medley, 52 Md.App. at 231 , 448 A.2d at 366 (alterations added). This rule and its predecessors have been applied to the failure of a defendant to raise constitutional rights in the trial court, including an issue regarding the right against double jeopardy. See Hewitt, supra, 242 Md. 111 , 218 A.2d 19 .

In Hewitt , the defendant was first tried in a bench trial on a five count criminal information. Although the trial judge found him guilty on the third and fourth counts of the information, he made no reference to the remaining three counts, which, under Maryland law, is a finding of not guilty by implication on those three counts. The defendant’s motion for a new trial was heard and granted by a new trial judge. During the bench retrial of the defendant, the judge found the defendant guilty under the first count and not guilty on the remaining four.

The defendant first raised the double jeopardy issue, along with a due process argument, with regard to count one of the information on appeal. This Court, in short order, dismissed the issues, stating: “We have repeatedly held and attempted to make clear that Maryland Rule 885 has useful and sound objectives. One of its purposes is to prevent the trial of cases in a piecemeal fashion, thereby saving time and expense and accelerating the termination of litigation. Since no questions concerning double jeopardy or denial of due process were raised below, we hold that these questions are not now properly before us.

Maryland Rule 885; Martel v. State, 221 Md. 294 , 157 A.2d 437 .” Id. at 113-14, 218 A.2d at 20-21 . See also Howell, supra, 56 Md.App. at 678 , 468 A.2d at 689 , cert. denied, 299 Md. 426 , 474 A.2d 218 (1984), cert. denied, 469 U.S. 1039 , 105 S.Ct. 520 , 83 L.Ed.2d 408 (1984). ⁶¹⁶ Waiver of other constitutional issues has been treated similarly by this Court. See Walker, 338 Md. at 262-63 , 658 A.2d at 243 , cert. denied, 516 U.S. 898 , 116 S.Ct. 254 , 133 L.Ed.2d 179 (1995) (Sixth Amendment