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Johnson v. State

Court of Appeals of Maryland

April 26, 2017


          Argued: December 2, 2016

         Circuit Court for Baltimore City Criminal Case Nos. 112116013, 115033013

          Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten, Battaglia, Lynne A. (Senior Judge, Specially Assigned), JJ.


          Battaglia, J.

         Does an 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?[1] Michael M. Johnson, Petitioner, asserts that the answer must be yes, while the State would answer the question in the negative.

         The four questions raised by Johnson in his petition for certiorari, [2] 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 the ruling?
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?

         We 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 implicated.

         The 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), [3] as well as "prosecutorial vouching, "[4] 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.

         Prior 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.

         Later 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.

         Johnson's 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 following occurred:)
[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 second-degree murder.
[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 jury.
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 motion.
THE COURT: No, I haven't ruled yet.

         After 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"[5] 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.

         Johnson 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 trial continued.

         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.

         Immediately 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.

         In 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.

         There 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."

         The next day, the Circuit Court Judge scheduled Johnson's retrial for March 9, 2015, after meeting with the parties.

         On 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 insufficient:

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 detailed.

         The 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 State's evidence.

         After 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.

         An "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].

         In his 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.

         The 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 of acquittal:

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.

         The State appealed to the Court of Special Appeals, [6] 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.

         In a 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).

         In so 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, ...

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