Tabbs v. State

• Decision Date: 10 July 1979
• Docket Number: 1197,Nos. 1174,s. 1174
• Citation: 43 Md.App. 20,403 A.2d 796
• Parties: Ricardo Ricky TABBS v. STATE of Maryland (two cases).
• Court: Court of Special Appeals of Maryland

Page 20

43 Md.App. 20

403 A.2d 796

Ricardo Ricky TABBS v. STATE of Maryland (two cases).

Nos. 1174, 1197.

Court of Special Appeals of Maryland.

July 10, 1979.

Certiorari Denied Oct. 23, 1979.

Albert D. Brault, Assigned Public Defender with whom was Robert Anthony Jacques, Assigned Public Defender on the brief, for appellant.

Ray E. Stokes, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., Andrew L. Sonner, State's Atty. for Montgomery County and Judith Catterton, Asst. State's Atty. for Montgomery County on the brief, for appellee.

Argued before MORTON, MOYLAN and MASON, JJ.

MOYLAN, Judge.

The broad umbrella known as the law of double jeopardy envelops four distinct sub-doctrines: 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) retrial following mistrial and 4) collateral estoppel. It is the third of these retrial after mistrial that concerns us here.

This particular sub-doctrine of law was never considered a part of common law double jeopardy in Maryland, Hoffman v. State, 20 Md. 425, 433-434 (1863); Kyle v. State, 6 Md.App. 159, 161-162, 250 A.2d 314 (1969), and is not so considered in England to this day, Friedland, Double Jeopardy (Oxford, 1969); Sigler, Double Jeopardy (Cornell U.Press, 1969). There was, to be sure, an independent common law tradition, dating from early Stuart times, protecting a defendant from having his trial needlessly aborted by the Crown when a prosecutor or a sympathetic judge sensed that the trial was going badly for the state, Regina v. Charlesworth, 121 Eng.Rep. 786 (1861); Winsor v. Regina, 122 Eng.Rep. 1150 (1866). A defendant was protected from a retrial when the state (through its judicial or prosecutorial arm) deliberately aborted the first trial in order to obtain hopefully more favorable conditions at a subsequent retrial. Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24, 34-40 (1978) (dissenting opinion by Powell, J.). This valued common law procedural right was early recognized, under federal law, United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824), though it was not there treated as a part of protection against double jeopardy. (Indeed, double jeopardy was neither mentioned nor indirectly alluded to anywhere in the now famous Perez decision.) This independent, common law procedural protection was applied on occasion over the decades in the federal courts, Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968 (1891); Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429 (1892); Thompson v. United States, 155 U.S. 271, 15 S.Ct. 73, 39 L.Ed. 146 (1894). In 1949, in Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974, this common law protection was suddenly and uncritically designated by Justice Black as an aspect of double jeopardy law. Crist v. Bretz, supra, at 437 U.S. 43-44, at 98 S.Ct. 2156. When, subsequent to this uncritical and apparently inadvertent engraftment of an independent trial right onto the body of double jeopardy law, the whole corpus of that double jeopardy law was applied to the states via Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), the new (and somewhat awkward) graft came with it into the due process clause of the Fourteenth Amendment. In any event, as a part of the law of double jeopardy or as an independent common law procedural protection, the interest served is the same.

Wade v. Hunter, supra, refers to it as a defendant's "valued right to have his trial completed by a particular tribunal." 336 U.S. at 689, 69 S.Ct. at 837. United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971), refers to it variously as a defendant's "right to go to a particular tribunal," 400 U.S. at 485, 91 S.Ct. at 557; the right of a defendant not to be "deprived of his option to go to the first jury and, perhaps, end the dispute then and there with an acquittal," 400 U.S. at 484, 91 S.Ct. at 557; as "a command to trial judges not to foreclose the defendant's option," 400 U.S. at 485, 91 S.Ct. at 557; and "the importance to the defendant of being able, once and for all, to conclude his confrontation with society through the verdict of a tribunal he might believe to be favorably disposed to his fate," 400 U.S. at 486, 91 S.Ct. at 558; Downum v. United States, 372 U.S. 734, 736, 83 S.Ct. 1033, 1034, 10 L.Ed.2d 100 (1963), refers to it as "the valued right of a defendant to have his trial completed by the particular tribunal summoned to sit in judgment on him." Pervading this history was society's felt need to forbid the government to terminate deliberately a prosecution which it felt was going badly in the hope of obtaining a more favorable state's verdict at a subsequent trial. An understanding of the purpose of this sub-doctrine and of the dangers it was developed to guard against will facilitate the intelligent mapping of the doctrine's boundaries today.

An immediate and obvious consequence of guarding the defendant's right to control the continuation or termination of the trial is that the doctrine bifurcated into two distinct procedural postures: 1) where the mistrial occurs upon the motion of the prosecution or upon the Sua sponte motion of the judge and 2) where the mistrial occurs upon the motion of the defendant. In the first situation, control over the law suit has been wrenched away from the defendant and such a declaration of mistrial will be permitted (that is, it will not bar retrial) only when there is a manifest necessity (sometimes referred to as "imperious necessity" or "evident necessity") for the mistrial. Almost all of our constitutional law on the mistrial/retrial problem has occurred within this procedural context. Wade v. Hunter, supra; Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961); Downum v. United States, supra; United States v. Jorn, supra; Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973); Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978). (In two of these cases, Downum and Jorn, it was held that there was no manifest necessity and that retrial was barred. In all of the other cases, it was held that there was a manifest necessity and that retrial was not barred.) This aspect of the mistrial/retrial doctrine does not concern us in the case at bar.

In the second situation, where the defendant requests a mistrial, control over the immediate question of whether to continue or terminate the proceedings has remained in his hands and ordinarily a retrial would not be barred. This distinction was pointed out in United States v. Jorn, supra, at 400 U.S. 485, at 91 S.Ct. 557:

"If that right to go to a particular tribunal is valued, it is because, independent of the threat of bad-faith conduct by judge or prosecutor, the defendant has a significant interest in the decision whether or not to take the case from the jury when circumstances occur which might be thought to warrant a declaration of mistrial."

United States v. Tateo, 377 U.S. 463, 467, 84 S.Ct. 1587, 1590, 12 L.Ed.2d 448 (1964), refers to the same situation:

"If Tateo had Requested a mistrial on the basis of the judge's comments, there would be no doubt that if he had been successful, the Government would not have been barred from retrying him." (Emphasis in original)

United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267, speaks of the foreclosing effect of a defendant's requesting the mistrial in the following terms, at 424 U.S. 607-608, at 96 S.Ct. 1079-80:

"Different considerations obtain, however, when the mistrial has been declared at the defendant's request.

The distinction between mistrials declared by the court Sua sponte and mistrials granted at the defendant's request or with his consent is wholly consistent with the protections of the Double Jeopardy Clause. Even when judicial or prosecutorial error prejudices a defendant's prospects of securing an acquittal, he may nonetheless desire 'to go to the first jury and, perhaps, end the dispute then and there with an acquittal.' "

In two other cases, Lee v. United States, 432 U.S. 23, 97 S.Ct. 2141, 53 L.Ed.2d 80 (1977), and United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978), a defense motion to dismiss, made and granted while the trial was in progress was considered to be "functionally indistinguishable from a declaration of mistrial." Lee v. United States, at 432 U.S. 31, at 97 S.Ct. 2146. With respect to the retrial problem where the first trial terminated upon the motion of the defendant, Lee v. United States said, at 432 U.S. 32-33, at 97 S.Ct. 2147:

"Where the defendant, by requesting a mistrial, exercised his choice in favor of terminating the trial the Double Jeopardy Clause generally would not stand in the way of reprosecution."

United States v. Scott spoke to the same proposition, at 437 U.S. 93, at 98 S.Ct. 2195:

"Where, on the other hand, a Defendant successfully seeks to avoid his trial prior to its conclusion by a motion for mistrial, the Double Jeopardy Clause is not offended by a second prosecution. 'A motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant's motion is necessitated by a prosecutorial or judicial error.' " (Emphasis in original)

Thus, a mistrial declared upon the motion of the prosecution or of the court will bar a retrial absent manifest necessity; a mistrial declared upon the motion of the defendant will not ordinarily bar a retrial.

There has sprouted, however, in the Supreme Court analysis of mistrial/retrial a tender shoot of dicta (never yet anything even approaching an actual holding) indicating that there may be a minor exception to this otherwise foreclosing effect of a defense request for the mistrial upon the retrial bar. The...