Hagez v. State

¶1concurring.

¶2I fully concur in the decision reached by the majority opinion that the Double Jeopardy Clause of the Fifth Amendment was not offended in this case and that the decision of the Circuit Court for Howard County should, therefore, be affirmed.

¶3I write separately to stress the point that the discussion in the majority opinion of prosecutorial misconduct, or what Supreme Court mistrial-retrial law refers to as “prosecutorial (or judicial) overreaching,” is completely in the subjunctive mood. I do not disagree with anything said in the course of that hypothetical discussion. I simply emphasize that the discussion is completely hypothetical. I would have no qualms if I thought that all will read the opinion as carefully and meticulously as it has been written. My fear is that they will not.

¶4The small pocket of double jeopardy law that deals with judicial or prosecutorial overreaching has pertinence only in the exclusive context of a mistrial-retrial situation. This is not such a situation. The first trial of the appellant in this case ended with a guilty verdict. On appeal, that judgment of conviction was reversed. The reason for the reversal was not the legal insufficiency of the evidence.

¶5When a criminal conviction is reversed for any reason other than the legal insufficiency of the evidence, the Double Jeopardy Clause never bars a retrial. The only occasion when a retrial is not permitted by the Double Jeopardy Clause is when the reversal was based on the legal insufficiency of the evidence. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, *44657 L.Ed.2d 1 (1978). In Oregon v. Kennedy, 456 U.S. 667, 676 n. 6, 102 S.Ct. 2083, 2090 n. 6, 72 L.Ed.2d 416, 425 n. 6 (1982), the Supreme Court was emphatic in this regard:

This Court has consistently held that the Double Jeopardy Clause imposes no limitation upon the power of the government to retry a defendant who has succeeded in persuading a court to set his conviction aside, unless the conviction has been reversed because of the insufficiency of the evidence.

¶6(Emphasis supplied).

¶7In United States v. DiFrancesco, 449 U.S. 117, 131, 101 S.Ct. 426, 434, 66 L.Ed.2d 328, 341-42 (1980), the Court was equally clear:

[I]f the first trial has ended in a conviction, the double jeopardy guarantee “imposes no limitations whatever upon the power to retry a defendant who has succeeded in getting his first conviction set aside.” “It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction.” “[T]o require a criminal defendant to stand trial again after he has successfully invoked a statutory right of appeal to upset his first conviction is not an act of governmental oppression of the sort against which the Double Jeopardy Clause was intended to .protect.” There is, however, one exception to this rule: the Double Jeopardy Clause prohibits retrial after a conviction has been reversed because of insufficiency of the evidence.

¶8(Citations omitted; italicized emphasis in original; other emphasis supplied).

¶9That is all the double jeopardy law there is that applies to this case and it is fully dispositive. The appellant’s first trial ended in a conviction. That conviction was reversed for a reason other than the legal insufficiency of the evidence. There is, therefore, no double jeopardy bar to a retrial. That is all that needs to be said.

¶10*447What then is the danger I fear from the gratuitous, albeit quite accurate, discussion of prosecutorial misconduct or pros-ecutorial overreaching in this case? It is that the line may inadvertently be blurred between two distinct species of double jeopardy law that have nothing to do with each other.

¶11Double jeopardy law is not a doctrinal monolith. It is a generic or umbrella term. The genus “Double Jeopardy” now embraces, at times uncomfortably, three separate and distinct species of law, only one of which was traditional double jeopardy law and only one of which triggers traditional double jeopardy rules and principles. The genus now embraces: 1) traditional double jeopardy law, which never comes into play until an actual verdict has been rendered (the pleas in bar of autrefois acquit and autrefois convict); 2) mistrial-retrial law, which crept into double jeopardy law in Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974 (1949), by what Justice Lewis Powell characterized as “the product of historical accident;” 1 and 3) collateral estoppel law, a third and totally distinct body of law that was only added to the “Double Jeopardy” genus by Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). These totally distinct species of law have different histories, serve different purposes, are triggered by different events, and are implemented by different rules and procedures. They should not be confused with one another, and that is what I fear the very discussion in this case may serve to do.

¶12Whereas the twin purposes served by traditional double jeopardy law are 1) to prevent the continuing harassment of a defendant who has once been acquitted (autrefois acquit) and 2) to prevent the multiple punishment of a defendant who has once been convicted (autrefois convict), the very different purpose served by mistrial-retrial law is to protect the right of a defendant to have the tribunal that is once impaneled to hear his case remain together until a verdict is reached. When a mistrial is declared at the request of the prosecution *448or by a judge sua sponte, that right has been interfered with and a retrial will not be permitted unless there was a “manifest necessity” for the mistrial.

¶13When, on the other hand, the mistrial is requested by the defendant, that request has historically been deemed to be a waiver of any objection to a retrial. It was only as an exemption from the otherwise foreclosing effect of such a waiver that the very subject of judicial or prosecutorial overreaching was first recognized by the Supreme Court in dicta in the case of United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). The suggestion was that if the defendant was deliberately goaded by prosecutor or judge into requesting a mistrial and that if the goading was for the deliberate purpose of sabotaging a trial that was going badly for the State, the defense request for a mistrial, under those limited circumstances, would not be deemed a waiver. Thus, the entire subject of “judicial or prosecutorial overreaching” pertains only to this exemption from waiver in the limited context where 1) the defendant has requested a mistrial and 2) the mistrial has actually been granted. Beyond that limited context, the entire subject of judicial or prosecutorial overreaching is immaterial.

¶14There was no mistrial in this case and the unique body of law designed to deal only with mistrial-retrial situations is, therefore, totally inapplicable. A fortiori, that arcane subdivision of mistrial-retrial law dealing with judicial or prosecutorial overreaching, as an exemption from a waiver, is similarly inapplicable.

¶15To be sure, the majority opinion does not state that that distinct body of law is applicable to the situation before us. It simply hypothesizes that even if, arguendo, that body of law did apply, it would still avail the appellant naught. I fear, however, that although the opinion is written in the subjunctive mood, it will be read by some in the declarative mood and that the waters will thereby be muddied.

¶16I write separately to stress the point that this opinion does not stand for, and should not be cited for, the proposition that *449prosecutorial overreaching, minimal or maximal, inadvertent or deliberate, for any purpose whatsoever, can ever bar a retrial in a case where the first trial ended in a verdict rather than in the declaration of a mistrial.