Giddins v. State

Page 139

899 A.2d 139

393 Md. 1

Damont Isaiah GIDDINS v. STATE of Maryland.

No. 84 September Term, 2005.

Court of Appeals of Maryland.

May 12, 2006.

Reconsideration Denied June 14, 2006.

Philip J. Sweitzer (Winston Law & Mediation, Westminster; Ronald I. Kurland of Ronald I. Kurland, P.A., Baltimore), all on brief, for Petitioner.

Brian S. Kleinbord, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. of MD, on brief). Baltimore, for Respondent

Argued before BELL, C.J., WILNER, CATHELL, HARRELL, BATTAGLIA, GREENE and JOHN C. ELDRIDGE (Retired, Specially Assigned) JJ.

BATTAGLIA, Judge.

Petitioner, Damont Isaiah Giddins, seeks review of the Court of Special Appeals's judgment affirming the denial of his "Motion to Bar Retrial Following Mistrial (Double Jeopardy)" after the Circuit Court for Worcester County had granted Mr. Giddins's motion for mistrial during direct examination of the State's first witness. We granted certiorari in this case to answer the following questions:

1. Whether the trial court entered an order that was a "favorable termination," tantamount to an acquittal of Petitioner, when it granted a mistrial and discharged the jury, and thereafter the trial judge—in response to the Prosecutor's specific assertion on the record that the "State [would] retry" Petitioner—exclaimed on the record from the bench that the Prosecutor had committed "misconduct" and that the State was barred from prosecuting Petitioner a second time?

2. Whether the State's Attorney's avowal or motion to retry the Petitioner on the record, after the trial judge dismissed the jury and terminated original jeopardy, was sufficient to ripen the issue of double jeopardy for a determination?

3. Whether the trial court committed reversible error by drafting a sua sponte letter to revise its judgment, reinstitute the prosecution, reschedule the matter and effectively order another judge to sit in review of itself, after it ruled that Petitioner could not be retried?

Giddins v. State, 389 Md. 398, 885 A.2d 823 (2005). We shall hold that the trial court's granting of Mr. Giddins's motion for a mistrial did not constitute an acquittal, thereby foreclosing retrial under principles of double jeopardy, because the judge was not ruling on the evidence.

Background

On July 6, 2004, Damont Isaiah Giddins was on trial in the Circuit Court for Worcester County for two counts of possessing a controlled dangerous substance with intent to distribute in violation of Maryland Code (2002), Section 5-602 of the Criminal Law Article,¹ and two counts of possession of a controlled dangerous substance in violation of Maryland Code (2002), Section 5-601 of the Criminal Law Article.² During the State's opening argument, the following exchange transpired among the State, the Court, and Mr. Kurland, counsel for Mr. Giddins:

THE STATE: What the case is about, briefly. In June of 2003, Detective Heiser, who is with the Ocean City Police Department, received information and began an investigation of drug distribution in the Ocean City, Northern Worcester County area. The target of that investigation—

MR. KURLAND: Objection, Your Honor.

THE COURT: Do you want to approach the bench, please?

* * *

MR. KURLAND: Your Honor, the search and seizure warrant has never been evidence since I've been practicing law and probably ever since you've been practicing law. I think the State is now poisoning a well in telling them about a drug distribution that they're never going to hear unless the State intends to call the informant into this courtroom to testify. This is improper. It's inexcusable, and I'm shocked that this seed has been planted.

THE STATE: Your Honor, I am simply giving the jury background that they began an investigation. As a result of that investigation, they obtained a search warrant. I'm not going to go into the facts of what—how they obtained it, but this did not fall out of the clear blue sky. They have to have—

THE COURT: Well, there's nothing wrong with that.

THE STATE:—some brief prepatory remarks.

MR. KURLAND: Your Honor—

THE COURT: If that's as far as you take it.

THE STATE: That's correct.

MR. KURLAND: I'm not concerned about Mr. Collins, with all due respect, taking it anywhere. And I truly respect him. I'm worried about the police officers now coming in and testifying, based upon their investigation and a search and seizure warrant, that they're going to testify—

THE COURT: Here's what we'll do. After opening statements, I usually give the jury a break. They've been out there a long time. At that point in time—

THE STATE: I will instruct my officers.

THE COURT: Is that okay? He could do it himself.

Or—

* * *

MR. KURLAND: Judge, sometimes it's very difficult now to cure a problem which shouldn't have been broached to begin with.

THE COURT: No, it isn't.

MR. KURLAND: This jury now knows that there was an investigation—

THE COURT: Well—

MR. KURLAND:—there was a search and seizure warrant. And, Judge—

THE COURT: There's nothing wrong with that.

MR. KURLAND: I don't see—

THE COURT: If he was going to go into—he didn't quite get there. But if he's going to go into, you know, your client being a target of an investigation because he distributed to some informant or something, yeah, that's—we got a real problem then. But he didn't get there because you objected.

MR. KURLAND: Judge, I think this would be an appropriate point for you to admonish the jury and have [the State] start all over.

THE COURT: What do you want me to admonish the jury about?

* * *

MR. KURLAND: About the search and seizure warrant and an investigation.

THE COURT: That's coming in. They've got to say why they're there. They're going to say they have a search and seizure warrant.

As far as the contents of the warrant, we're going to have to depend upon—I'll do it myself if you want me to. I'll bring the officers in and tell them myself.

Mr. Kurland subsequently made a motion in limine to prevent the State from further mentioning the search and seizure warrant and the investigation, which the court denied. The State then continued its opening statement:

THE STATE: We'll start again.

In June of 2003, Detective Heiser began an investigation of drug distribution in Worcester County of the Defendant.

MR. KURLAND: Objection again, Your Honor.

THE COURT: Overruled.

THE STATE: The Defendant operates—or operated a retail store called Set It Off which is at the corner of Talbot and Baltimore Avenues in Ocean City, Maryland.

After a several-week investigation, the officers applied for and received a search warrant to search the Defendant and his store.

MR. KURLAND: Objection, Your Honor. That's—

THE COURT: It's noted. It'll be overruled.

THE STATE: Thank you, Your Honor.

THE COURT: Go ahead.

THE STATE: On Wednesday of August 8th of 2003, officers of the Ocean City Police Narcotics Division executed that search warrant at the Set It Off store. The Defendant was present. The officers will identify him.

Officer Heiser, who's seated there at the Defense table-or at the State's table—

MR. KURLAND: Your Honor, I'm going to object. May we approach, please?

THE COURT: All right.

MR. KURLAND: Your Honor, my theory in this case and the Defense's theory in this case is that my client is not a distributor, and by the very nature of the fact that it was a large quantity of drugs doesn't make him a distributor.

Number two, the State has now planted this seed that there's a major investigation going on down here, and as a result of that investigation, a search and seizure warrant is issued by an issuing judge and they go to his establishment. Judge, this is grossly—

THE COURT: What's your suggestion, then, just so the record is clear on this? You don't want any mention of the search and seizure warrant?

MR. KURLAND: It's already been mentioned, Judge. This jury knows that there's an investigation—

THE COURT: So what do you want me to do about it?

MR. KURLAND: Well, I don't understand, honestly, why, if [the State] is admonished that we're going to start all over, that he starts all over from the beginning again.

THE COURT: Because I never said he couldn't mention that there was a search and seizure warrant.

MR. KURLAND: But, Judge, an investigation with a search and seizure warrant now in August at a man's place of employment —

THE COURT: You're making much more of this than what there is to it.

MR. KURLAND: I don't—

THE COURT: Certainly they can say why they were there. What are you supposed to do, remain silent as to why they were there? They just went in there and started searching?

MR. KURLAND: Yes.

THE COURT: No way.

MR. KURLAND: Yes.

THE COURT: No way.

MR. KURLAND: But, Judge—

THE COURT: If that's an objection, it's overruled.

MR. KURLAND: Why don't we pick it up and the point that there's a search and seizure warrant, not why there was a warrant, because it looks like—

THE COURT: Because you can't tell the State how to present their case any more than they can tell you.

MR. KURLAND: It gives the jury the impression that, as a result of this investigation, a search—

THE COURT: That's true.

MR. KURLAND:—and now they found drugs.

THE COURT: Well, that's true, isn't it?

MR. KURLAND: No, it's not true, not as far as the distribution case is—count is concerned.

THE COURT: Okay. I don't understand your motion. I mean, I think I understand it, but it's something I'm totally unfamiliar with.

They're certainly entitled to say why they were there and why they searched. He's not going to go into—I will not allow the particulars of some—because I've never had seen the search warrant. I assume maybe there was a controlled buy or something like that. I don't know. Or somebody had been there and seen drugs in the past. None of that is going to be allowed. But if it is, ask for a mistrial. I'll consider it.

MR. KURLAND: I'm going to ask for a mistrial right now, Your Honor.

THE COURT: All right. That's denied unless you want—I assume...