Johnson v. State, 38, Sept. Term, 2016

• Decision Date: 26 April 2017
• Docket Number: No. 38, Sept. Term, 2016,38, Sept. Term, 2016
• Parties: Michael M. JOHNSON v. STATE of Maryland
• Court: Court of Special Appeals of Maryland

452 Md. 702

158 A.3d 1005

Michael M. JOHNSON

v.STATE of Maryland

No. 38, Sept. Term, 2016

Court of Appeals of Maryland.

April 26, 2017

Argued by Michael R. Braudes, Assistant Public Defender (Paul B. DeWolfe, Public Defender of Maryland, Baltimore, MD) on brief, for Petitioner.

Argued by Daniel J. Jawor, Assistant Attorney General (Brian E. Frosh, Attorney General of Maryland, Baltimore, MD) on brief, for Respondent.

Argued Before: Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten and Lynne A. Battaglia (Senior Judge, Specially Assigned), JJ.

Battaglia, J.

Does an acquittal entered weeks after a judge declared a mistrial and discharged the jury have the same effect as an acquittal declared after all of the evidence is adduced under Maryland Rule 4–324 ?¹ Michael M. Johnson, Petitioner, asserts that the answer must be yes, while the State would answer the question in the negative.

The four questions raised by Johnson in his petition for certiorari,² 449 Md. 410, 144 A.3d 705 (2016), which we have collapsed into two for clarity, queue up the issue:

1. Was the trial court's grant of the motion for judgment of acquittal procedurally proper because the court had the authority to reconsider and retract the grant of a mistrial because it retained the fundamental jurisdiction to render the ruling?

2. Did the trial court's grant of petitioner's motion for judgment of acquittal on the express basis of legally insufficient evidence preclude further proceedings under the Maryland common law of double jeopardy and/or the Federal Constitutional prohibition upon double jeopardy?

We shall hold that the trial judge did not have the authority to grant an acquittal, after he had declared a mistrial and discharged the jury, so that federal Constitutional and Maryland common law principles of double jeopardy are not implicated.

The saga in the present case began when Johnson was acquitted of murder in the first degree but convicted of murder in the second degree after a jury trial in February 2013 in the Circuit Court for Baltimore City. Johnson then filed a Motion for New Trial arguing various discovery violations under Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963),³ as well as "prosecutorial vouching,"⁴ and that the State had withheld evidence. The Circuit Court Judge, who had presided over the trial, granted the motion for a new trial, and the second trial began in December of 2014.

Prior to the second trial, Johnson moved to redact recorded portions of his conversations captured in a wiretap of his cell phone in 2011 and in a recorded jail call in 2013. In the motion, Johnson requested that references to his first-degree murder charge, of which he had been acquitted, as well as any references to his attorney from the first trial, Russell Neverdon, be redacted from the recordings. A different circuit court judge presided over the second trial and, during trial, ruled that the redactions should occur.

Later during the proceedings, it appeared that redactions of a recording of a conversation with Johnson from Johnson's cell phone on October 19, 2011, had not occurred. In his call, Johnson referred to his former attorney, Russell Neverdon, as well as a call from "Tabbie" to Mr. Neverdon. In the same recorded conversation, there was still reference to the first-degree murder charge, which also was supposed to have been redacted by the State.

Johnson's counsel immediately moved for a mistrial:

[JOHNSON'S ATTORNEY]: Your Honor, may we stop the playing of it?

(Counsel and Defendant approached the bench, and the following occurred:)

[JOHNSON'S ATTORNEY]: 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.

[THE STATE]: The transcript is redacted.

THE COURT: Yeah, give me a copy of the transcript.

(Pause.)

THE COURT: I mean, that was to—oh, it's way back when.

[THE STATE]: Right.

THE COURT: I'm going to deny the motion at this time. Let's send the jury upstairs.

After a recess, the Circuit Court Judge asked that the State "address the issue" regarding the unredacted statements in the recordings, because he "ha [d]n't ruled yet" with respect to the mistrial:

[THE STATE]: So what I would suggest is—we have it paused just after where we stopped, I would suggest we just resume when the jury comes down, finish playing it, keep it moving. Obviously, it will have to be redacted before it goes back to the jury.

THE COURT: Yeah. The Defense is—why don't you address the issue, the Defense has requested a mistrial as a result.

[THE STATE]: Oh, I apologize, Your Honor. You indicated you were—I thought you indicated you were denying their motion.

THE COURT: No, I haven't ruled yet.

After discussion about redactions having occurred in the transcript but not in the recordings, the judge ordered the recordings to be replayed. Upon hearing the recordings, the judge ordered the tapes to be "cleaned up again"⁵ and instructed the jury to disregard any reference to the warrant, which mentioned first-degree murder charges, as well as "any reference to actions taken by a person identified as 'Tabbie.' " The tapes of the wiretapped conversation on October 19, 2011, began, but again, problems arose.

Johnson objected to additional references to the first-degree murder charge in the tape. After reviewing the recording with counsel, the Circuit Court Judge announced, "I'm going to give [the jury] the same instruction, but we'll revisit this," and that he would "have the weekend to think about this." The jury was reconvened, and the trial continued.

The State rested its case later that day, after which Johnson made a motion for judgment of acquittal. The Circuit Court Judge declared that he would consider the motion "first thing" on Monday morning: "I would prefer to put that issue off until Monday because ... I've got this other issue to consider between now and then, too," referring to the motion for mistrial.

Immediately upon reassembling the next Monday, the Circuit Court Judge granted Johnson's motion for mistrial made the previous Friday and ordered that a new trial date be established:

THE COURT: Good morning. In addition to any potential preliminary matters you all may have, we still have pending before the Court, a motion by the Defense for a mistrial.

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 so 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 State]—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.

In response, Johnson objected to the judge's characterization of the State's actions in bringing about the mistrial as unintentional and announced his opposition to retrial on double jeopardy grounds:

[JOHNSON'S ATTORNEY]: Your Honor, I've had an opportunity briefly to 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.

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.

There was no reference by anyone to Johnson's motion for judgment of acquittal made the previous Friday. The Circuit Court Judge discharged the jury, telling them "the case has been concluded—at least in that case which you would be required to consider the evidence."

The next day, the Circuit Court Judge scheduled Johnson's retrial for March 9, 2015, after meeting with the parties.

On January 15, 2015, weeks after the case was rescheduled, Johnson filed a Motion to Dismiss Indictment on Grounds of Double Jeopardy, wherein he argued that his reprosecution was barred, because the State had intentionally provoked the mistrial, there was no manifest necessity at the time the mistrial was granted, and "the State's evidence was legally insufficient to sustain a conviction." A week later and almost a month after declaring the mistrial and discharging the jury, the Circuit Court Judge, on January 20, 2015, held a hearing on Johnson's motion to dismiss the case on double jeopardy grounds and referred to Johnson's suggestion that the State's evidence in the case was insufficient:

THE COURT: Good morning. Before the Court are motions of the defense essentially to dismiss the case on the basis of double jeopardy grounds. And also, as part of that same motion is an issue related to whether or not the Court did or should address the issue of whether or not the evidence was sufficient at the close of Plaintiff's case which is where we were when the mistrial was granted.

In light of the fact that I've received the motion and it's in writing, I would suggest that I hear from the State and then I'll allow you to respond unless there's something additional you feel that should be added to your motion 'cause

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