Thompson v. State

Thompson, J., delivered the opinion of the Court. Alvin Thompson, the appellant, was convicted by a jury of murder in the second degree and use of a handgun in the commission of a crime of violence. Judge Basil Thomas, sitting in the Criminal Court of Baltimore, imposed concurrent sentences of twenty years and five years, respectively. Thompson raises the following questions: (1) whether his reprosecution following a mistrial constituted double jeopardy, (2) whether there was sufficient evidence to support the convictions, and (3) whether the trial judge ⁵⁰¹ abused his discretion in denying a motion for a mistrial.

The facts necessary for the opinion will be stated in the discussion of the three contentions. I Double Jeopardy The appellant was brought to trial on January 3, 1977. After the jury was sworn the prosecutor, in his opening statement to the jury, made the following comment concerning certain defense witnesses: “The police are summoned. Officer Shannahan arrives within a half hour or so.

The Homicide Squad is on the scene. They gather all the witnesses they can find, including Fannie Parker, the lady I just described, the names of these witnesses that you were asked whether you knew on voir dire. George Ford, Wallace Williams — George Ford, 1800 Calvert Street. Wallace Williams, 2208 East North Avenue.

Clarissa Bailey of 1330 Aisquith Street. None of these people, not one of them, ever approached the officer —” The defense immediately objected and subsequently moved for a mistrial on the grounds the prosecutor had no way of knowing what the testimony of the witnesses would be and, therefore, the comment was both prejudicial and improper. The trial judge granted the motion over the objection of the State. After the appellant was rearraigned, a new jury was impaneled and the trial commenced.

The appellant maintains that the mistrial was attributable to prosecutorial misconduct and, as such, the double jeopardy clause operated as a bar to retrial. Initially we are faced with the problem that a claim of double jeopardy was not raised during the trial. Under Rule 1085 this Court is not required to decide questions not presented below unless they concern the jurisdiction of the Court. The appellant argues the question is properly before the Court as double jeopardy is jurisdictional in nature.

We assume a claim of double jeopardy is jurisdictional solely for the purpose of this appeal. Tate v. State, 236 Md. 312 , 203 A. ⁵⁰² 2d 882 (1964); Johnson v. State, 3 Md. App. 105 , 238 A. 2d 286 (1968), cert. denied, 250 Md. 732 . Although the double jeopardy clause is designed to protect the defendant against multiple punishments or repeated prosecutions for the same offense, United States v. Dinitz, 424 U. S. 600 , 96 S. Ct. 1075 , 47 L.Ed.2d 267 (1976), a request by a defendant for a mistrial ordinarily removes any bar to reprosecution even though the motion was necessitated by prosecutorial or judicial error. Lee v. United States, 432 U. S. 23 , 97 S. Ct. 2141 , 53 L.ED.2d 80 (1977); United States v. Dinitz, supra.

This rule is not absolute and where a mistrial is the product of prosecutorial or judicial overreaching, the double jeopardy clause prevents a retrial. Lee v. United States, supra; United States v. Jorn, 400 U. S. 470 , 91 S. Ct. 547 , 27 L.Ed.2d 543 (1971). The exact boundaries of prosecutorial overreaching, necessary to bar retrial, have not been specifically delineated by the Supreme Court. Other courts which have considered the point generally hold that prosecutorial error attributable to negligence does not amount to overreaching, People v. Baca, Colo., 562 P. 2d 411 (1977),| while intentional misconduct calculated to gain a more favorable chance for conviction or to abort a trial that is going badly prevents reprosecution.

United States v. Kessler, 530 F. 2d 1246 (5th Cir. 1976). The appellant argues that prosecutorial overreaching is not confined to intentional misconduct but encompasses gross negligence as well. Commonwealth v. Bolden, 472 Pa. 602 , 373 A. 2d 90 (1977). Although in Bolden , the Court noted that it is unclear from the decisions of the Supreme Court whether overreaching is limited to intentional misconduct or whether it extends to gross negligence on the part of the prosecutor or judge, it concluded gross negligence was encompassed in the term after an examination of the purposes underlying the double jeopardy clause.

The Court stated: “A defendant forced to request a mistrial by conduct which conspicuously fails to satisfy professional standards should not be required to bear the heavy burdens incident to reprosecution.” 373 A. 2d at 109 . ⁵⁰³ Although neither the Court of Appeals nor this Court has specifically addressed this issue, we need not define the boundaries of prosecutorial overreaching in this case because no matter what standard we apply the appellant has failed to demonstrate the existence of any conduct which would invoke the bar of double jeopardy. The statement in question was made by the prosecutor in his opening statement to the jury. The purpose and scope of an opening statement was succinctly stated by the Court of Appeals in Wilhelm v. State, 272 Md. 404 , 326 A. 2d 707 (1974): “The primary purpose or office of an opening statement in a criminal prosecution is to apprise with reasonable succinctness the trier of facts of the questions involved and what the State or the defense expects to prove so as to prepare the trier of facts for the evidence to be adduced. While the prosecutor should be allowed a reasonable latitude in his opening statement he should be confined to statements based on facts that can be