Taylor v. State

• Decision Date: 10 June 2004
• Docket Number: No. 106,106
• Citation: 851 A.2d 551,381 Md. 602
• Parties: Bobby Eugene TAYLOR v. STATE of Maryland.
• Court: Maryland Court of Appeals

851 A.2d 551

381 Md. 602

Bobby Eugene TAYLOR v. STATE of Maryland.

No. 106, Sept. Term, 2003.

Court of Appeals of Maryland.

June 10, 2004.

George E. Burns, Jr., Asst. Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for petitioner/cross-respondent.

Gary E. Bair, Sol. Gen. (J. Joseph Curran, Jr., Atty. Gen. of MD, on brief), Baltimore, for respondent/cross-petitioner.

Argued before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA, and GREENE, JJ.

CATHELL, Judge.

Bobby Eugene Taylor, petitioner, was tried by a jury in the Circuit Court for Frederick County, with Judge Edward Dwyer, Jr. presiding, and was convicted of child abuse, a second degree sexual offense and a third degree sexual offense. On June 26, 2002, petitioner was sentenced to twenty years of incarceration for the second degree sexual offense, with all but twelve years suspended. Petitioner received concurrent sentences of twelve years of incarceration for the child abuse offense and five years of incarceration for the third degree sexual offense.

Petitioner filed an appeal to the Court of Special Appeals, presenting four questions for its review. In an unreported opinion, the Court of Special Appeals affirmed the trial court's rulings. Petitioner then filed a Writ of Certiorari and this Court granted it on December 18, 2003. Taylor v. State, 379 Md. 98, 839 A.2d 741 (2004). The sole question petitioner presents for our review asks:

"Did the trial of petitioner constitute a violation of the double jeopardy clause after the trial judge declared a mistrial over petitioner's objection and without manifest necessity?"

We hold that petitioner failed to preserve the double jeopardy issue for review because no objections or motion to dismiss based on double jeopardy were raised in the trial court in this case (or in the original case). The double jeopardy issue was first presented on appellate review. Because we hold that the double jeopardy issue was not properly preserved, we do not resolve the issue of manifest necessity. We also need not resolve the issue of whether a defendant is bound by his counsel's decision to consent to a mistrial where the defendant opposed any delay in the initial trial.

I. Facts

The record in the case sub judice contains detailed facts about the underlying crimes with which petitioner was charged. Being that the sole issue in this case asks whether the mistrial and subsequent retrial of petitioner violated his Fifth Amendment right not to be put in jeopardy twice for the same offense and does not turn on the underlying facts of the crime, we will not include those substantive facts here.

On April 2, 2001, petitioner was indicted by a Frederick County grand jury on the charges of child abuse, second degree sexual offense and third degree sexual offense based upon alleged incidents involving his stepson's daughter. On September 10, 2001, the jury for petitioner's trial was sworn, opening statements were made and testimony was taken before adjournment for the day. The following day, September 11, 2001, the trial judge announced that the courthouse was being closed due to the national emergency caused by the terrorist attacks in New York, Virginia and Pennsylvania. The transcript of the morning of September 11, 2001, reflects the following dialogue:

THE COURT: ... [W]e just received word due to the basically national emergency the, ... whatever occurred in New York and the Pentagon, that the County Government is closing down, if not now, within the next 10 minutes. We're not sure of the exact time. But, that means we have to close.¹

[Defense Counsel] and [Prosecutor], we don't know what's going to happen next.... [I]t's my understanding, [Defense Counsel], rather than bring these jurors back we know not for how long you are not objection [sic], you have no difficulty with my declaring a mistrial in this case not caused by either party.

[DEFENSE COUNSEL]: That's—

THE COURT: And if I did that [petitioner] would have to understand that he could be retried.

[DEFENSE COUNSEL]: Your Honor—

THE COURT: And it would be a different jury.

[DEFENSE COUNSEL]: Your Honor,... that's correct.... [T]hat is my understanding that the, you know, I understand the Court's ... and our predicament in terms of the Court being closed, and the fact that jurors would probably more likely have problems coming back the additional two days anticipated by the Assistant State's Attorney in this case.

I've explained to [petitioner] all of those issues, and how it is that we arrived at this point.... [I]n view of all of that [petitioner] understands, but he would like to address the Court very briefly.

THE COURT: Only, only on the issue of the mistrial. I don't know what he wants to say, and whether it's appropriate for him. Do you know what he wants to say, [Defense Counsel]?

[DEFENSE COUNSEL]: Your Honor, I, I think he just wants to indicate that he has a ... due to his condition that he would like for everything to be over as quickly as possible, and that he is concerned, he's saying that because of his condition that he will worry and worry and worry until—

...

... this has come to a conclusion.

THE COURT: Do you then prefer that I just recess today and try to bring it back tomorrow?

[PETITIONER]: Yes.

[DEFENSE COUNSEL]: That's what [petitioner] would like to do.

THE COURT: [Defense Counsel], what's your position?

[DEFENSE COUNSEL]: Your Honor, I have some concerns that I, you know, as I stated back in Chambers. My concern would be again that the witnesses, not the witnesses, but the jurors, uh, we're going to have this interruption of today and possibly tomorrow, we don't know what tomorrow's going to bring. So now we have a jury that's, uh—

THE COURT: That's basically called, was told two days, that we'd finish today.

[DEFENSE COUNSEL]: Correct. Now they would have to anticipate, perhaps change their schedules. In the final analysis we don't, we don't know how any of those, the people on the jury might be affected by this, ... by the events of today. So I'm concerned as whether or not this jury is going to be able to focus sufficiently after such a hiatus and other ... issues now confronting us.

... [Y]ou know ... that's my belief. [Petitioner] does have a desire to get the case over as quickly as possible. THE COURT: Well I can understand that. [Prosecutor], what's the State's position?

[PROSECUTOR]: Your Honor, uh, I understand that there are, uh, two, I think it's wise that to predict that this matter would continue on for another two days at least or at least part of the second day. I understanding [sic] that there are two jurors who have difficulty proceeding in that manner.

...

[PROSECUTOR]: My concern is that we leave, that if we loose [sic] two we are left with no alternates, and given what's going on that there may be occasion we might loose [sic] one more juror, and that we would be in the same position two days from now, so, uh—

THE COURT: What's the State's position?

[PROSECUTOR]: I think it's prudent to proceed in the manner that Your Honor (inaudible).

THE COURT: All right, [Defense Counsel], anything else?

[DEFENSE COUNSEL]: (No response)." [Alterations added.]

Directly following this discussion, the record reflects that petitioner addressed the court. The following dialogue, ending in Judge Dwyer declaring a mistrial, occurred:

"[PETITIONER]: All right, Your Honor, I've been, uh, you know my ... mental condition, I won't discuss it. I've been pressured with this for 14 months now. And all a mistrial can do is give the prosecution more time, and 10 years, 15 years from now she can bring the same case back up, and all this time that will be held over my head.

THE COURT: Well, first if it's a mistrial it's going to be reset as soon as possible. We're not talking 10 or 15 years, we're talking less than six months.

[PETITIONER]: That will violate my rights.

THE COURT: Well (inaudible)—

[PETITIONER]: They've already been violated one time.

THE COURT: Well, that's a different matter about the first one. But I will tell you this, if it's for this reason it's not going to violate your right, because this is completely out of control of anybody. Do you understand that?

[PETITIONER]: No, sir, I don't.

[DEFENSE COUNSEL]: You understand that the Court is closing not because the Court has said so, but the County Commissioner[s].

THE COURT: And not because of [the] State. I didn't close the Court. I mean, I can tell you that the Governor just declared a state of emergency, that Frederick County is shutting down, that Washington County has already shut down, and that's completely beyond my control or your control or [the Prosecutor's] control.

[PETITIONER]: Could it be made a point of the record that I, uh, don't want the dismissal, that I ask for the dismissal?

THE COURT: Well, neither of you are asking for a dismissal or—

[PETITIONER]: I'm requesting that it doesn't happen. I'm not asking for it.

THE COURT: You want me, you want me to continue this trial today with the Governor and everybody shutting it down, the Government down?

[PETITIONER]: I want the trial continued, because I know what the prosecution's going to do.

THE COURT: Well, that's a different matter, but. All right, anything else, [Defense Counsel]? [PETITIONER]: They've already bought an extra six months.

THE COURT: [Defense Counsel], anything else?

[DEFENSE COUNSEL]: No, Your Honor.

THE COURT: [Prosecutor], anything else?

[PROSECUTOR]: Nothing further, Your Honor.

THE COURT: In this case I am going to declare a mistrial, and declare it's based on a national emergency, we don't know what's going on in New York, what we hear is not good. We don't know what's going on in D.C. we hear it's not good. We do know that my delay in getting on the bench is because we were waiting to see whether we can stay open, we cannot. I told Counsel I would have stayed open, but we just got word that we must shut...