Woodward, Wright, Friedman, JJ.
April 25, 2012, a Baltimore City grand jury indicted
appellee, Michael M. Johnson, for the murder of 16-year-old
Phylicia Barnes. Johnson was tried by a jury in the Circuit
Court for Baltimore City and was acquitted of first-degree
murder but convicted of second-degree murder. Subsequently,
Johnson filed a motion for a new trial, which the circuit
court granted on March 20, 2013, based on a finding of a
case was reset for a new jury trial, which commenced on
December 2, 2014. During the presentation of the State's
case on Friday, December 19, 2014, Johnson moved for a
mistrial. The court initially denied the motion for mistrial,
but later indicated that it would take "the weekend to
think about this." The State rested at the close of
proceedings on that same day, and after the court excused one
of the alternate jurors, Johnson made a motion for judgment
of acquittal. Without objection from defense counsel, the
trial judge suggested that the motion for judgment of
acquittal be addressed on Monday "because . . . I've
got this other issue to consider between now and then,
trial resumed on Monday, December 22, 2014, the court
announced at the outset of the proceedings that it was going
to grant the motion for mistrial, then discharged the jury,
and rescheduled a retrial for March 9, 2015. On January 14,
2015, Johnson filed a "Motion to Dismiss Indictment on
Ground of Double Jeopardy, " which the circuit court
heard on January 20, 2015. At the close of that motions
hearing, the court treated Johnson's motion to dismiss
indictment as a motion for reconsideration and struck its
previous grant of the mistrial, then proceeded to grant
Johnson's motion for judgment of acquittal.
State filed a new indictment on February 2, 2015, which
Johnson moved to dismiss. Following a hearing on March 12,
2015, the circuit court granted Johnson's motion and
dismissed the case. The State subsequently appealed,
asking us to answer the following:
Did the circuit court err in granting Johnson's motion
for judgment of acquittal twenty-nine days after terminating
the case by declaring a mistrial and dismissing the jury;
and, did the court subsequently err in granting Johnson's
motion to dismiss on double jeopardy grounds?
reasons that follow, we reverse the circuit court's
Barnes disappeared on December 28, 2010, while visiting
family in Baltimore during the Christmas break. The
investigation began as a missing person's case and
remained so for four months. On April 26, 2011, the police
responded to the Conowingo Dam area of the Susquehanna River
in Harford County for the report of an unidentified female
body. With the assistance of the Department of Natural
Resources, the police removed the body from the water and,
through dental records, identified the victim as Barnes. The
police then opened a murder investigation focusing on
appellant, Michael M. Johnson, who was the last person to be
seen with Barnes before her disappearance.
to the circuit court, there was a "tremendous
amount" of testimony from the various law enforcement
agencies that investigated the case. Those officers testified
regarding the "hundreds" of text messages between
Johnson, who lived in Baltimore, and Barnes, who lived in
North Carolina. The officers also testified about a
"sexually explicit video" of Johnson and Barnes
found on Johnson's phone as well as on Barnes's
sister's phone. The State's evidence also included
Johnson's own statements from hundreds of phone calls and
text messages intercepted by the police.
to the start of the second trial, Johnson filed a motion
in limine requesting that certain portions of the
intercepted communications be redacted. The circuit court
granted Johnson's motion in part and ordered that
portions of the wiretap communications be redacted. During
the testimony of Sergeant David Feltman, the defense moved
for a mistrial because a recording of one of those taped
communications had not been redacted. Specifically, the
defense objected to two comments, one that made reference to
Johnson's friend contacting a lawyer ("Tabbie called
Neverdon right on the spot"), and the other, a reference
to the warrant charging first- and second-degree murder.
Defense counsel made the motion for mistrial and argued as
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.
* * *
Your Honor ruled that they should not be heard by the jury.
They were not admissible for a variety of reasons, the most
important one that the first-degree murder, obviously, is
that Mr. Johnson has been acquitted of first-degree murder.
I -- and we request a mistrial as the remedy. If Your Honor
is disinclined to grant a mistrial, then we would ask that it
be stricken . . . that the jury be told to disregard what
they heard. I think the only appropriate remedy is a
mistrial. I make that clear.
circuit court initially denied the motion for mistrial and
excused the jury. During further argument on the motion for
mistrial, the State responded that any error was inadvertent
and suggested that the appropriate remedy was for the court
to instruct the jury to disregard the brief comments
regarding contacting an attorney and the charges:
Your Honor, there was an error. Your Honor did rule that the
mention of first- and second-degree was to be removed. I
would point out that the very brief portion that the jury
heard was that the warrant said, and it was very clear that
it was referring to the search warrant for DNA. It
doesn't mention that he was ever actually specifically
charged with first-degree murder.
* * *
Your Honor, the issue is specifically what the jury heard, a
reference to the paper, meaning the warrant, referencing
first- and second-degree. I would suggest that the jury be
specifically instructed that anything they heard regarding
what a warrant said should be completely disregarded with
respect to charges, because what, if anything, a warrant
states is irrelevant to the offense that the Defendant is
facing here today.
Other than that, Your Honor, I don't believe that this
does rise to the level of manifest necessity. They have heard
-- this isn't the same as a reference of, you know, he
was charged with first-degree and he was acquitted in the
first trial. This is specifically referencing what a search
warrant said. I believe if Your Honor instructs them that . .
. any potential charges a search warrant mentions . . . are
to be disregarded by them is more than sufficient to remedy
circuit court again denied the motion for mistrial, finding
that there had been no formal ruling on what portions of the
recording were to be redacted and that, in any event, a
curative instruction was sufficient:
THE COURT: I don't think it rises to the level that a
mistrial be warranted for any reason. First of all, as I
started to say, there was a great deal of material, and I
don't know that I -- it was more in the nature of an
agreement that things would be removed as opposed to my
ruling that they just could not be permitted to be testified
-- and there was an agreement that -- the agreement as to Mr.
Neverdon I don't know would have ever reached this,
because the allegation with regard to even the little bit
they heard, "Tabbie called Neverdon right on the spot.
As soon as the police came in the door, she called and was on
the phone with him, " I don't know how that
necessarily would have been privileged.
* * *
THE COURT: I understand we --
* * *
THE COURT: -- talked about this, and it was agreed -- I
understand there was an agreement; and, no, I did not
specifically rule on each one segment, and this is her
calling Neverdon. She may have had -- I mean, you know, she
may well have called Neverdon. This is the report of somebody
by Mr. Johnson saying that she called Neverdon. It
doesn't say called for him, that I asked her to, that I
directed her to, or anything of that nature, so even -- I
don't know that this, if I had ruled on each one of these
little paragraphs, but we -- it was agreed and essentially
the State said it could remove all the references to
Neverdon, and obviously it missed this one.
But I will instruct the -- I'm not sure exactly how to
instruct the jury without highlighting it with regard to
that, and I'll get back to that in a minute.
With regard to the comment about the charges, or with regard
to the warrant in -- discussed on the tape, what, if
anything, they heard, they should disregard with regard to
the contents of what the warrant said, so that's about
all I can do with regard to that.
I don't think the statement -- it's not that I was
charged with, it's not that I'm going to trial for it
-- it's none of those things that anybody was concerned
about originally. It's just the mere mention of the
charges. If he had said, you know, a number of other -- arson
-- it doesn't really matter what the warrant said, but I
will instruct them that they are to disregard anything the
warrant said -- I know how to deal with it -- and anything
they heard or they may have heard with regard to actions
taken by Tabbie -- and it's not even Tabitha, it's
Tabbie -- they are to disregard if they, in fact, heard any
the circuit court instructed the jury to disregard the
Ladies and gentlemen, in the recording that has recently been
played for you, you may have heard a reference to a warrant.
You should ignore any reference to the warrant with regard to
-- well, you should ignore any reference to the warrant and
it is stricken, if you will, from the record.
Also, if you heard any reference or understood any reference
as "Tabbie" you should ignore, and that -- ignore
that as well, and that is stricken from the recording.
remainder of the recording was then played for the jury over
Johnson's objection. At the conclusion of the recording,
the defense renewed its objection. The circuit court
indicated that it would take "the weekend to think about
this" and again instructed the jury to disregard the
I - - over Defense's objection, any reference in the
recording which you may have heard at the end relating to
identifiable charges, you should disregard. It is stricken
from the record, and we have reserved on one other issue that
still may be affected by that. I have not ruled on that, just
so counsel are aware.
State rested at the close of the proceedings on December 19,
2014. After the circuit court excused one of the alternate
jurors, defense counsel moved for judgment of acquittal. The
court suggested that the motion for judgment of acquittal be
addressed on Monday morning, and defense counsel responded,
"[o]kay." The court explained, "I would prefer
to put that issue off until Monday because . . . I've got
this other issue to consider between now and then, too."
Defense counsel responded: "That's fine. We can do
the motion for judgment of acquittal on Monday."
trial resumed on Monday, December 22, 2014, the circuit court
announced at the outset of the proceedings that it was going
to grant the motion for mistrial that it had previously
denied. Defense counsel did not object to the granting of the
mistrial or request that the court rule on the motion for
judgment of acquittal. As to the motion for mistrial, the
court ruled as follows:
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 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 Assistant State's Attorneys upon hearing
the purportedly redacted information] -- 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.
Does Mr. Johnson require his presence in order to schedule a
time, defense counsel objected to re-trial pursuant to double
Your Honor, I've had an opportunity to briefly 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
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.
As far as scheduling goes tomorrow, Your Honor, Mr.
Johnson's presence is not necessary to be there for that
court stated, "[t]he trial not now being conducted,
I'm going to let Mr. Johnson leave, so that we can just
let the jurors go out without any other concerns." The
court then discharged the jury and directed the parties to
return the following day, Tuesday, December 23, 2014.
December 23rd, a "Scheduling Hearing/Chambers
Conference" took place for which Johnson was not
present. The circuit court stated that his appearance was not
necessary because they were "going to do exactly what I
told you yesterday, " which was to reschedule the case.
The court then directed the parties to "convene in
chambers to discuss rescheduling the matter." Defense
counsel interjected, however, and said: "I feel like
because this is the first time we're on the record again
and I need to -- and I don't want to do something without
the Defendant being present . . . but ...