State v. Johnson

228 Md.App. 489

139 A.3d 1095

STATE of Maryland

v.Michael M. JOHNSON.

No. 189, Sept. Term, 2015.

Court of Special Appeals of Maryland.

June 29, 2016.

Rehearing En Banc Denied July 29, 2016.

Carrie Williams (Brian S. Kleinbord, Brian E. Frosh, Atty. Gen., on the brief), Baltimore, MD, for appellant.

Michael R. Braudes (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for appellee.

Panel: WOODWARD, WRIGHT, and FRIEDMAN, JJ.

WRIGHT, J.

On 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 Brady violation.¹

The 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, too.”

When 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.

The 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,² 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?

For the reasons that follow, we reverse the circuit court's judgment.

Facts

Phylicia 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.

According 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.

Prior 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 follows:

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.

The 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 this situation.

The 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 such thing.

Thereafter, the circuit court instructed the jury to disregard the inadmissible comments:

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

...