West v. State

Moylan, J., delivered the opinion of the Court. We are here called upon to explore a secluded but exotic corner of the double jeopardy garden — prosecutorial and judicial overreaching. In life, it is seldom seen except as an imagined possibility in the most painstakingly thorough of footnotes. As a contention, however, it is in luxuriant vogue and is being resorted to promiscuously.

The antidote for the spell of the lotus blossoms is the sobering question, "Is the overreaching conduct that will bar a retrial, following a mistrial which circumstances have forced a defendant to request, limited to the deliberate derailment of a trial in progress or does it also embrace such other misconduct as the insinuating of error into the trial either (1) through gross negligence or (2) consciously, but with a design to win the trial rather than to abort it?” In a holding anticipated by this Court 1 and, in significant measure, by the Court of Appeals, 2 the Supreme Court in Oregon v. Kennedy, U.S. , 102 S.Ct. 2083 , 72 L.Ed.2d 416 (1982), has now unequivocally resolved that it is only the deliberate derailing that will engage the gears of the double jeopardy machinery. The appellant, John Henry West, III, was convicted by a Prince George’s County jury, presided over by Judge Howard S. Chasanow, of first-degree rape. His most serious contention is: 1. That his retrial, following an earlier mistrial, unconstitutionally placed him twice in jeopardy. ⁶²⁶ The central evidence of guilt is not disputed.

The fourteen-year-old rape victim soundly established the corpus delicti of the crime and the criminal agency of the appellant; It is from the peripheral proof that the legal issues have arisen. Involved is the replica of a .45 caliber automatic pistol which the police recovered from the appellant’s apartment and which the rape victim identified as resembling the gun that intimidated her into submission. Involved also is the relationship among (1) the appellant; (2) the appellant’s apartment mate, Mario Torney, on whom the defense blamed the crime; and (3) Mario’s brother, Pierre Torney, the true owner of the .45 caliber replica. An inadmissible hearsay declaration from the lips of Mario Torney triggered the double jeopardy problem.

Before we can even consider double jeopardy, however, we must first establish single jeopardy. In this regard, the appellant made one false start. The Blind Alley of Independent State Grounds Faced unexpectedly at oral argument with the grim presence of Oregon v. Kennedy (then but two weeks old) and its almost certainly foreclosing effect, appellant’s counsel instinctively dodged by asking this Court to base its double jeopardy holding on independent state grounds, turning to the Maryland Declaration of Rights if the Fifth Amendment should fail to serve. As attractive as the state’s rights gambit might be on other occasions, it is, in the unusual context of double jeopardy law, doomed from the start.

Maryland, we need to remind ourselves periodically, has no constitutional bar against placing a defendant twice in jeopardy. As Chief Judge Bruñe pointed out in Bennett v. State, 229 Md. 208, 212 , 182 A.2d 815 , the defense of former jeopardy "is not provided for by any provision of the Maryland Constitution” and is only "available in this State as a matter of common law.” Maryland is one of five states that never constitutionalized the law against double jeop ⁶²⁷ ardy. J. Sigler, Double Jeopardy (1969). 3 All five of those states, to be sure, do extend to criminal defendants the protection against double jeopardy, but as that protection has evolved at the common law. At common law, initial jeopardy did not attach until a verdict was rendered.

This is still the law in England; to the extent to which Maryland is free to apply its own law rather than the federal law imposed upon it by Benton v. Maryland, 395 U.S. 784 , 89 S.Ct. 2056 , 23 L.Ed.2d 707 (1969), it is the law here as well. Hoffman v. State, 20 Md. 425, 433-434 ; State v. Shields, 49 Md. 301, 303-304 ; Gilpin v. State, 142 Md. 464 , 121 A. 354 . Under the common law approach, the very subject of retrials following mistrials is not an aspect of double jeopardy law at all. According to the traditional view, a defendant whose trial ends in a mistrial before the rendering of a verdict, has never been in jeopardy.

There cannot be a second until there has been a first. In Cornish v. State, 272 Md. 312 , 322 A.2d 880 , Judge Eldridge spoke to this very proposition, at 272 Md. 316 n. 2: "The view in this state was that, under the common law’s double jeopardy prohibition, jeopardy did not attach until the rendition of a verdict and that, therefore, a retrial following the declaration of a mistrial did not give rise to a double jeopardy problem.” See also Kyle v. State, 6 Md.App. 159 , 250 A.2d 314 ; Boone v. State, 3 Md.App. 11, 23-25 , 237 A.2d 787 . On this subject, independent state grounds is a road leading nowhere. The Mistrial/Retrial Problem under Federal Constitutional Law Under the federal version of double jeopardy law, by way of contrast, jeopardy is deemed to attach at the beginning of the trial rather than at its end.

The necessity that pushed ⁶²⁸ the attachment of jeopardy backward in time to this earlier stage was the determination by the Supreme Court to cram the mistrial/retrial problem within the coverage of double jeopardy law. As Justice Powell pointed out in his scholarly dissent in Crist v. Bretz, 437 U.S. 28, 98 .S.Ct. 2156, 57 L.Ed.2d 24 (1978), that expansion of double jeopardy law occurred late in the evolution of that law and occurred largely subconsciously, as an historic accident. As a result of those expanded contours, however, the broad umbrella known as double jeopardy (in its federal manifestation) today embraces four distinct subspecies: (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) the problem of the retrial following mistrial; and (4) collateral estoppel. For three of those four subspecies, the common law’s determination that jeopardy attached as the verdict was rendered did not need to be disturbed.

A plea in bar of former acquittal or former conviction cannot be raised until there had been a verdict of acquittal or conviction; the very problems of multiple punishment and merger do not arise until there are multiple verdicts of conviction upon greater inclusive and lesser included offenses; collateral estoppel is predicated upon a jury finding of a particular fact. A declaration of mistrial, on the other hand, occurs before the jury has rendered its verdict. Once Wade v. Hunter, 336 U.S. 684 , 69 S.Ct. 834 , 93 L.Ed. 974 (1949), uncritically treated mistrial/retrial law as an aspect of double jeopardy, it became logically compelling to move the attachment of jeopardy back to the earlier stage. It is now the federal law that in a jury trial, the magic moment when jeopardy begins is the instant that the jury is sworn.

Crist v. Bretz, supra, at 437 U.S. 37 -38. As a consequence of that earlier attachment, the appellant here was in jeopardy when he first came to trial on the present charges before Judge Chasanow and a jury on July 10, 1981. It was in the course of the testimony of the second State’s witness that the mistrial, requested by the appellant, ⁶²⁹ was declared. Corporal M. L. Sutter was on the stand.

The State had in opening statement informed the jury that a possible State’s witness, Mario Torney, was unavailable to appear. In the course of his direct examination, Corporal Sutter let slip the fact that the missing Mario Torney had, under police questioning, implicated the appellant in the rape. The pertinent part of that examination ran: "Q. What did you do with Mr. Torney when you arrested Mr. West? A. Mr. Torney was also brought back to the Criminal Investigation Division for a statement.

Q. Did you, in fact, have an interview with Mr. Torney, Mr. Mario Torney? A. No, sir, I did not. Q. Did another member of the police department have an interview with him? A. Yes, sir.

Q. After taking this initial statement from Mr. West, what did you do? A. I then left the room for a few minutes to find out that Mr. Torney had implicated Mr. West in the rape.” (Emphasis supplied). It was as if the very courtroom had struck an iceberg. Cries of "abandon ship!” filled the air.

The appellant moved for a mistrial. At a hastily convened conference at the bridge, Judge Chasanow gave the damage report. The impact, he observed, was "devastating” and "could not be repaired by a curative instruction.” Before lowering the boats, one piece of business remained. Judge Chasanow sent the jury from the room and questioned Corporal Sutter about the accident.

The corporal explained that he did not know that Mario Torney would not be present to testify. The final log entry recorded: "I am going to assume it’s negligence on Corporal Sutter’s part and not anything more than negligence. I am sure it is negligence at this juncture.” ⁶³⁰ Judge Chasanow then gave the order for mistrial. Hard by the bow at 11:58 a.m., the initial jeopardy went to the bottom.

The trial that was abandoned on July 10, 1981 was resumed, three days later, on July 13, again before Judge Chasanow and a jury. At the outset, the appellant sought to bar the retrial as prohibited double jeopardy. Judge Chasanow, who had of course been aboard for the events of July 10, made the following findings as he denied the motion: "THE COURT: I don’t think that there was any prosecutorial overreaching. There was certainly no attempt to abort the trial, would be no reason for the officer or the State to in any way attempt to abort the trial at that stage.

I am satisfied that it was just an error in the judgment on the part of, perhaps, not as intelligent or experienced a police officer as we would like to find. Again, I don’t think there was any deliberate overreaching. I am perfectly satisfied that it was not an attempt to gain an unfair advantage over the defendant, so for those reasons I am going to deny the motion.” The appellant now challenges that ruling as unconstitutional. In rejecting the contention, we hold that Judge Chasanow’s assessment was eminently sound.

As we narrow the focus upon that limited quadrant of the larger double jeopardy field dealing with mistrial/retrial situations, we observe that those situations appear in two essential postures. The first is where the mistrial has been declared by the judge sua sponte or at the request of the State, either over the objection of the defendant or at least without the explicit acquiescence of the defendant. In those situations, the rule is that if there was a manifest necessity for the mistrial, retrial will not be barred; but if the trial was needlessly aborted, retrial will be barred. United States v. Perez, 22 U.S. (9 Wheat.) 579 , 6 L.Ed. 165 (1824); Illinois v. Somerville, 410 U.S. 458 , 93 S.Ct. 1066 , 35 L.Ed.2d 425 ⁶³¹ (1973); Arizona v. Washington, 434 U.S. 497 , 98 S.Ct. 824 , 54 L.Ed.2d 717 (1978).

That situation is not the one before us. The other essential posture, and the one that is before us, is where the mistrial is declared at the request of the defendant. Ordinarily, a defense request for a mistrial is treated as a waiver of any double jeopardy claim. United States v. Tateo, 377 U.S. 463, 467 , 84 S.Ct. 1587 , 12 L.Ed.2d 448 (1964); United States v. Jorn, 400 U.S. 470, 485 , 91 S.Ct. 547 , 27 L.Ed.2d 543 (1971); United States v. Dinitz, 424 U.S. 600, 607-608 , 96 S.Ct. 1075 , 47 L.Ed.2d 267 (1976).

As a limited exemption from that otherwise foreclosing effect, however, there appeared in the Supreme Court cases a tender shoot of dicta (never before Oregon v. Kennedy, approaching an actual holding). The dicta first appeared in United States v. Tateo, supra, and seemed to say that the defense request for a mistrial would not necessarily inhibit a double jeopardy claim if the defense request had been prompted by "prosecutorial or judicial overreaching.” In the wake of that dictum and similar dicta subsequently appearing in United States v. Jorn, supra, and United States v. Dinitz, supra, the appellate mills were glutted with questions of what varieties of judicial or prosecutorial misconduct constituted overreaching. An aberrant doctrinal strain appeared, again by way of dicta, in two Fifth Circuit cases 4 and then in a plurality holding in Pennsylvania. 5 It indicated that an error attributable to the "gross negligence” of the prosecutor would constitute such overreaching. Although seldom achieving any success, the defense contentions that seized upon that language have been legion.

In an effort to lay that ghost to rest with finality, we traced in Tabbs v. State, 43 Md.App. 20 , 403 A.2d 796 , the false doctrine to its source and exposed its invalid origins. The analysis of this Court in Tabbs became, in turn, the heart of ⁶³² the prevailing brief for the State of Oregon in Oregon v. Kennedy. The Supreme Court there held not simply that gross negligence on the part of judge or prosecutor would not constitute overreaching, but that even intentional error might not, depending on the purpose with which the intentional error was committed. The Supreme Court looked back upon its earlier dicta and pointed out that in every instance, the dicta was aimed not only exclusively at intentional misconduct but, even more exclusively, at that limited variety of intentional misconduct consciously designed to force a defendant into requesting a mistrial.

United States v. Dinitz had spoken not of prosecutorial misconduct generally but of prosecutorial misconduct perpetrated "in order to goad the [defendant] into requesting a mistrial.” 424 U.S. at 611 . United States v. Tateo referred not to "prosecutorial or judicial impropriety justifying a mistrial” generally but to those more limited situations where "that prosecutorial or judicial impropriety justifying a mistrial resulted from a fear that the jury was likely to acquit the accused.” 377 U.S. at 468 n. 3. United States v. Jorn spoke not of "judicial or prosecutorial impropriety” generally but of "judicial or prosecutorial impropriety designed to avoid an acquittal.” 400 U.S. at 485 n. 12. United States v. DiFrancesco, 449 U.S. 117 , 101 S.Ct. 426 , 66 L.Ed.2d 328 (1980), spoke of the defense request for the mistrial operating as a bar to a double jeopardy claim "so long as the Government did not deliberately seek to provoke the mistrial request.” 449 U.S. at 130 .

In Divans v. California, 434 U.S. 1303 , 98 S.Ct. 1 , 54 L.Ed.2d 14 (1977), Justice Rehnquist, sitting as a Circuit