Loveless v. State

• Citation: 387 A.2d 311,39 Md.App. 563
• Decision Date: 12 June 1978
• Docket Number: No. 992,992
• Parties: Mable Darcel LOVELESS v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 563

39 Md.App. 563

387 A.2d 311

Mable Darcel LOVELESS v. STATE of Maryland.

No. 992.

Court of Special Appeals of Maryland.

June 12, 1978.

William A. Franch and Ronald H. Jarashow, with whom were Joseph P. Manck and Goldsborough, Franch & Collett, Annapolis, on the brief, for appellant.

W. Timothy Finan, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Warren B. Duckett, Jr., State's Atty., for Anne Arundel County and David R. Cuttler, Asst. State's Atty. for Anne Arundel County on the brief, for appellee.

Argued before GILBERT, C. J., and MOYLAN and MELVIN, JJ.

MOYLAN, Judge.

This case should not be here. It illustrates for the ten thousandth time what happens when everyone overreacts. It typifies the painful procedural hangover that follows initial excess as even the law must ask in the cold light of the morning after, "What do we do now?" In the most basic of terms, a criminal trial was prematurely aborted when everyone pressed the panic button because somebody said a bad word in a courtroom. Upon this grist, the appellate mills may now grind for a season or two.

The appellant, Mable Darcel Loveless, now claims that her impending trial in the Circuit Court for Anne Arundel County for murder and related offenses will place her for a second time in jeopardy in violation of her constitutional rights guaranteed by the Fifth and Fourteenth Amendments. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). This particular procedural history will flow more clearly if we begin in the present and move backward.

This appeal is from the ruling of Judge E. Mackall Childs in the Circuit Court for Anne Arundel County denying the appellant's Motion to Dismiss the indictment against her on the grounds of double jeopardy. That motion was made when the State scheduled a retrial in this case for September, 1977. The scheduling of the retrial had followed an earlier mistrial. The appellant first went to trial on these charges on March 8, 1977. Following two days of testimony before a jury, a police officer, in response to a question on cross-examination put by appellant's counsel, mentioned that a State's witness had spent a period of time with "the polygraph operator." Although the jury was carefully screened from observing the scene, legal pandemonium ensued. The appellant moved for a mistrial. The trial judge ultimately granted the motion.

Subject to the narrow limitation yet to be discussed, it is axiomatic that a defendant who has moved for a mistrial waives, by that very motion, all objection to a subsequent retrial. United States v. Tateo, 377 U.S. 463, 467, 84 S.Ct. 1587, 1589, 12 L.Ed.2d 448, 452 (1964); United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); United States v. Dinitz, 424 U.S. 600, 607-608, 96 S.Ct. 1075, 1079-1080, 47 L.Ed.2d 267, 273-274 (1976); Cornish v. State, 272 Md. 312, 318, 322 A.2d 880; Jourdan v. State, 275 Md. 495, 508, 341 A.2d 388; Baker v. State, 15 Md.App. 73, 289 A.2d 348; Bartley and Hill v. State, 32 Md.App. 283, 289, 362 A.2d 101.

There is one limitation on the foreclosing effect of a defense request for a mistrial. If the defense is placed in an untenable situation where it has no choice but to request a mistrial because of prosecutorial or judicial "overreaching," then the mere fact that the defense requested the mistrial will not operate as a waiver of later double jeopardy claims. A critical distinction is made, however, between deliberate "prosecutorial or judicial overreaching," on the one hand, and "prosecutorial or judicial error," on the other hand. Mere error, judicial or prosecutorial, even where it is grievous enough 1) to cause a mistrial or 2) to cause an appellate reversal, will not bar a subsequent retrial.

Except in those rare instances where the prosecution or the court has deliberately sabotaged a trial that was going badly, the available redress where an irremediable error is recognized in mid-trial is the declaration of a mistrial followed by a retrial; the available redress where a reversible error has occurred in a trial which runs its full course and results in a conviction is a reversal followed by a retrial. For double jeopardy purposes, it makes no difference whether the former jeopardy runs its full course or is aborted before the verdict. The broad reasoning undergirding this policy decision was cogently set forth by Justice Harlan in United States v. Tateo, supra, at 377 U.S. 466, 84 S.Ct. 1589, 12 L.Ed.2d 451:

"While different theories have been advanced to support the permissibility of retrial, of greater importance than the conceptual abstractions employed to explain the Ball principle are the implications of that principle for the sound administration of justice. Corresponding to the right of an accused to be given a fair trial is the societal interest in punishing one whose guilt is clear after he has obtained such a trial. It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction. From the standpoint of a defendant, it is at least doubtful that appellate courts would be as zealous as they now are in protecting against the effects of improprieties at the trial or pretrial stage if they knew that reversal of a conviction would put the accused irrevocably beyond the reach of further prosecution. In reality, therefore, the practice of retrial serves defendants' rights as well as society's interest."

The only time that retrial is barred under double jeopardy principles is when there has been such prosecutorial or judicial overreaching as to have mounted to a deliberate and intentional sabotaging of the earlier trial. United States v. Jorn, supra, 400 U.S. at 485, 91 S.Ct. at 557, 27 L.Ed.2d at 556; United States v. Dinitz, supra, 424 U.S. at 611, 96 S.Ct. at 1081, 47 L.Ed.2d at 276; Thompson v. State, 38 Md.App. 499, 502, 381 A.2d 704. See also City of Tucson v. Valencia, 21 Ariz.App. 148, 517 P.2d 106 (1973); State v. Marquez, 113 Ariz. 540, 558 P.2d 692, 694-695 (1976); People v. Hathcock, 8 Cal.3d 599, 105 Cal.Rptr. 540, 504 P.2d 476 (1973).

In the case now before us, we do not perceive prosecutorial error, if any, sufficient even to have caused a mistrial, let alone of such " overreaching" proportions as to bar retrial. The misadventure that brought about the mistrial in this case is regrettable, but at most venial. Indeed, the exaggerated reaction is as difficult to appreciate as is the occurrence of the event reacted to. On the morning of trial, March 8, 1977, a chambers conference was called by the judge to take up a number of matters. The first item discussed was the questions to be asked on voir dire. A defense request for a change of venue was then discussed and denied. A defense request for a continuance intertwined with discovery issues was discussed and denied. The last item on the agenda was a defense request that the judge order the prosecutor to tell his witnesses not to mention that George Hendricks, a State's witness, had taken a polygraph test. The judge so ordered. The conference adjourned and everyone moved into the courtroom where the jury selection process began. At the first break, the Deputy State's Attorney called together his...