MICHAEL M. JOHNSON
STATE OF MARYLAND
Argued: December 2, 2016
Court for Baltimore City Criminal Case Nos. 112116013,
Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten,
Battaglia, Lynne A. (Senior Judge, Specially Assigned), JJ.
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? Michael M. Johnson, Petitioner, asserts
that the answer must be yes, while the State would answer the
question in the negative.
four questions raised by Johnson in his petition for
certiorari,  449 Md. 410 (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
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?
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
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 (1963),
well as "prosecutorial vouching, " 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.
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.
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.
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
[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
[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 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
THE COURT: No, I haven't ruled yet.
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" 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.
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
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.
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.
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.
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."
next day, the Circuit Court Judge scheduled Johnson's
retrial for March 9, 2015, after meeting with the parties.
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
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 your motion's rather
Circuit Court Judge solicited arguments from both parties on
the "merits of the motion for judgment of
acquittal" with respect to the sufficiency of the
hearing arguments, the judge struck his previous grant of a
mistrial and dismissed the second-degree murder charge
against Johnson based on insufficiency of the evidence:
THE COURT: Good afternoon. We had a hearing this morning with
regard to the -- the title of the motion was motion to
dismiss indictment on grounds of double jeopardy.
For reasons that are more fully set forth in the order which
I'll be filing, the Court is striking the granting of the
mistrial and the Court will find that there is insufficient
evidence as presented at the trial to convict Mr. Johnson and
the charges are therefore dismissed.
"Order Striking Motion for Mistrial and Granting Motion
for Judgment of Acquittal" was entered the same day. In
the Order, the judge responded to Johnson's arguments
that the State had goaded him into making the Motion for
Mistrial when he wrote, "[T]he Court is still
unpersuaded that its observations were wrong, " with
respect to the State's lack of intent in playing the
unredacted audio recordings, but also expressed that he was
"troubled by the posture of the case because of the
failure to rule upon the [motion for judgment of acquittal]
which the record clearly demonstrate[d] the Court [had]
stated it was to consider 'first thing.'" The
Order manifested the Court's reconsideration of both the
grant of the mistrial and his failure to rule upon the motion
for judgment of acquittal:
[T]he Court will treat the Motion of the Defense as a motion
to reconsider its rulings, both with regard to the subject
matter of the [motion for judgment of acquittal] and the
[motion for mistrial], and will strike the grant of the
mistrial and consider the [motion for judgment of acquittal].
Order, the Judge granted the motion for judgment of acquittal
after considering that the State's evidence was
"unarguably circumstantial, " with "no smoking
gun" in the case:
The case against the Defendant is unarguably circumstantial.
With essentially no direct evidence, the State presented many
intriguing issues that suggest the Defendant may have been
involved in the disappearance and death of Ms. Barnes. . . .
* * *
There was a tremendous amount of testimony from investigating
officers of the Baltimore City Police Department, Maryland
State Agencies and the Federal Bureau of Investigation. Among
other things, their testimony included information as to
sex-related websites the Defendant visited, and hundreds of
text messages between the Defendant and the decedent as well
as a sexually explicit video which included the decedent and
the Defendant, which was found on the phones of Defendant and
Ms. Barnes' sister as well.
As conceded in argument by the State, there was "no
smoking gun" in this case. Accordingly, the Court
concludes there was insufficient evidence when taken as a
whole, to establish the criminal culpability of Michael
Johnson of second-degree murder. That being the conclusion of
the court, the Motion for Judgment of Acquittal must be
granted, there not being legally sufficient evidence to
establish the guilt of the Defendant.
State subsequently reindicted Johnson for second-degree
murder. In response, in February of 2015, Johnson filed a
Motion to Dismiss the Indictment, arguing that Johnson's
acquittal barred further proceedings under double jeopardy.
The trial judge dismissed the indictment following a hearing
on the motion, orally expressing his belief that he had the
authority to "correct a procedural misstep" by
retracting the mistrial and granting the motion for judgment
I don't disagree that there were procedural missteps, but
the procedural misstep came in this case when I failed to do
what I said I was going to do, which was to address the
Motion for Judgment of Acquittal first thing Monday morning
and then failed to do what I had indicated I was going to do.
* * *
I believe, I did believe at the time that I had the authority
to correct a procedural misstep that I had made in a
commitment that I had made to both the State and Defense to
rule on the issue of the joint -- the Motion for Judgment of
Acquittal, that I corrected that by striking the Motion for
Mistrial and ruling as I did.
* * *
. . . I thank you for indicating the difficulty that is
presented when a judge is called upon to essentially judge
his own prior determinations, but judges have to do that all
the time, and in this case I believe that my ruling on the
Judgment of Acquittal was correct at the time I ruled it, and
I will grant the Motion to Dismiss the Indictment.
State appealed to the Court of Special Appeals,
arguing, as it does before us, that the judge's
declaration of a mistrial and discharge of the jury
terminated the judge's authority over the case, which
obviated the judge's ability to acquit Johnson. Johnson
countered, as he does before us, that the trial judge had
jurisdiction to grant his motion for judgment of acquittal
and had broad discretion to reconsider his having granted the
motion for mistrial.
published opinion, the Court of Special Appeals reversed the
dismissal of Johnson's case, determining that the
principles of double jeopardy did not bar Johnson's
retrial, because the trial court could not acquit Johnson
after declaring a mistrial and discharging the jury.
State v. Johnson, 228 Md.App. 489 (2016).
doing, the intermediate appellate court concluded that the
judge lacked the authority to do so after he had declared a
mistrial and discharged the jury, explaining that, "the
grant of a mistrial had the legal effect of declaring that
the trial in the second prosecution had never taken
place." Id. at 508. Once the mistrial was
declared, according to the Court of Special Appeals, the
judge could not "exercise fundamental jurisdiction over
subject matter that no longer exists." Id. at
509. The Court also noted that the Circuit Court Judge could
not reconsider the grant of the mistrial, in the absence of
any statute or rule permitting the exercise of that kind of
"revisory power." Id. at 511. Further, the
Court of Special Appeals opined that if such power did exist,
it could not be exercised after the jury is discharged,