This appeal arises out of the second trial of what unfortunately has become an unremarkable occurrence in our society, a routine “drug bust.” The facts as adduced at trial were as follows. Officer Daniel Brown 1 of the Baltimore City Police Department testified that on the morning of December 13, 1990, he and Officer Kevin Sewell 2 were in a marked patrol car in the Eastern district of Baltimore City. The officers were stopped at a traffic light when they looked into an alley and observed what they perceived to be a Controlled Dangerous Substance (CDS) sale. Specifically, the officers saw Guy Coffey, appellant, taking money from another man (Michael Gee) in exchange for a glassine bag of white powder. When the traffic light changed, Officer Brown proceeded to intercept appellant and the other individual by driving around the block to the other side of the alley. Officer Brown stated that appellant and the other individual were rather startled to see the police vehicle at the other side of the alley and immediately ran in different directions. Officer Brown chased appellant and eventually found him hiding behind an oil tank. Officer Brown attempted to place appellant under arrest but allegedly appellant resisted and elbowed the officer several times. Eventually, appellant was subdued and placed under arrest. In the meantime, Officer Sewell arrested the other individual.
In July, 1991, appellant and Gee were tried and convicted by a jury in the Circuit Court of Baltimore City. We reversed the trial court and remanded for a new trial.
Gee and Coffey
*589
v. State,
Did the trial court abuse its discretion in refusing to declare a mistrial after a police officer testified that Appellant had been found guilty in an earlier trial in this case?
We are constrained to respond in the affirmative and remand for a new trial.
The First Remark—Prior Trial
In the instant case, there were two instances where either Officer Brown or Officer Sewell remarked about the prior trial. Each instance related to evidence that had been presented at the first trial and was subsequently destroyed. The following colloquy, which occurred immediately before the presentation of evidence is instructive with respect to the trial court’s exercise of discretion:
THE COURT; Any reason why we can’t proceed with the jury at this time, Mr. Lautz?
MR. LAUTZ [defense counsel]: No, Your Honor.
THE COURT: Call the matter for the record, please, so we know what we’re talking about.
MR. ROSE: State of Maryland calling the case of Guy Coffee, 891074007. Shawn Rose for the State.
MR. LAUTZ: Thad Lautz, Your Honor, for Guy Coffey.
MR. ROSE: Now in the original case, Your Honor, the photographs of the drugs were entered into evidence. They’re not in the court file anymore. I’m not sure if they were destroyed or what.
I’ve sent my officer to see if he can find some more photographs of the evidence.
THE COURT: So what do you want me to do? Now that you’ve told me, you haven’t asked me to do anything.
*590 MR. ROSE: That is—that is the situation.
THE COURT: Thank you.
MR. LAUTZ: May we approach, Your Honor?
THE COURT: For what? Tell me from where you are....
THE COURT: [Are you] [a]sk[ing] for [a] dismissal because there is no photograph of the drugs?
MR. LAUTZ: There are no drugs, there is no photograph.
THE COURT: Say what?
MR. LAUTZ: There are no drugs. Are they going to be able to produce the drugs?
THE COURT: I don’t know.
MR. ROSE: That’s why they’ve gone to the—
THE COURT: I don’t know. If they can’t produce the drugs or whatever, you make the proper motion, but it’s kind of late—kind of premature at the moment, don’t you think?
MR. LAUTZ: I love it.
THE COURT: I don’t understand what you’re saying Mr. Lautz. You’re saying because there is no photograph there can be no case?
MR. LAUTZ: There are no photographs of the drugs.
THE COURT: There is no photograph of my birth. That doesn’t mean I wasn’t born.
MR. LAUTZ: But you’re sitting there. You’re sitting there it’s accepted but there are no drugs sitting here.
THE COURT: Do you—do you—I’m confused so straighten me out.
There was an arrest, there were drugs, they were analyzed, there is a chemist report, there is no photograph
MR. LAUTZ: There is no photograph and there is no physical evidence. There is no photograph. There is no physical evidence. This chemist report means nothing because they will not be entering the chemist report into evidence.
MR. ROSE: Why not?
*591 THE COURT: Why not?
MR. LAUTZ: I have already filed my omnibus motion in that I’ve asked for the chemist, I’ve asked for chain of custody.
THE COURT: The chemist will be here.
MR. LAUTZ: But he’s going to have to—the State is going to have to produce other evidence other than the chemist coming in saying I analyzed something. They’re going to have to have chain of custody. They cannot show—
THE COURT: Why don’t you let Mr. Rose try his case and when he fumbles make the [motion]. Until then this [is] all hypothetical.
MR. LAUTZ: I know.
During the trial, Officer Brown testified on behalf of the State. On cross-examination, appellant’s counsel questioned him regarding the CDS that the officers recovered. Appellant’s counsel asked the officer whether he had a “picture of [the CDS].” The officer replied that he did not and that a negative might exist somewhere in police headquarters. Questioned further regarding the original, the following exchange transpired:
MR. LAUTZ: what about the original that’s supposed to be offered into evidence in the courtroom, where is that?
OFFICER BROWN: Well, the first time the picture and the photograph of the CDS were brought into the first trial—
MR. LAUTZ: Sir—Oh my goodness. Approach your hon- or?
THE COURT: Denied.
MR. LAUTZ: Make a motion, Your Honor.
THE COURT: Denied. You opened the door. Move right along please, Mr. Lautz.
THE COURT: Next question please.
MR. LAUTZ: All right, let’s open the door then, might as well. There is supposed to be evidence presented at trial, *592 any trial, this trial, previous trial, you got to have evidence and it’s not here, right?
On redirect, Officer Brown was asked the following:
MR. ROSE: Now, during the cross-examination the defense attorney questioned about photographs and items of evidence that were—and why you don’t have them today. No other—in an earlier year were those photographs and items like the drugs entered into evidence?
Over defense counsel’s objections, Officer Brown responded that evidence is generally destroyed after a trial.
The Second Remark—Prior Trial and Conviction
In attempting to establish the chain of custody of the subject CDS, the State asked Officer Sewell whether the CDS and the photographs were submitted into evidence at an earlier trial. The following exchange occurred when the State attempted to introduce into evidence the laboratory report of the items seized by the officers:
MR. LAUTZ: Also they do not have the CDS. We do not have the CDS, we do not have the photograph of the CDS and therefore that is part of the chain that has to be met here. The State is never going to be able to produce that.
THE COURT: Where in the law does it state that?
MR. LAUTZ: That they have to have the evidence in here? You see this is not proving anything. All this is doing is saying that this piece of evidence that I bring—
THE COURT: I know exactly but we have two kinds of ways we prove things in courts of law, by direct evidence and circumstantial. This what is submitted, the chemist says this is what I examined and it’s heroin. You’re trying to tell me I’m supposed to throw the case out now because the actual dope is not in the courtroom?
MR. LAUTZ: Yes I am because. These things are not relevant unless you have the actual evidence. All this report does is saying—
THE COURT: You mean State’s Exhibit Number One.
*593 MR. LAUTZ: Exactly. All that State’s Exhibit Number One is supposed to do and does in any case is says this piece of evidence is—this piece of evidence is recovered in this case and it—you can tell by looking at it—it is heroin. Without having that piece of evidence in here this is not relevant. Absolutely not relevant.
THE COURT: As I understand the evidence in this case so far, following the first trial in this case the evidence was destroyed.
MR. LAUTZ: That’s—
THE COURT: Is that my understanding of what happened to it?
MR. LAUTZ: We don’t know that.
THE COURT: Somebody testified to that.
MR. LAUTZ: But I objected. Somebody testified to it and I objected because he has no basis of knowledge.
THE COURT: That’s the only evidence we have in the case.
MR. LAUTZ: We don’t have any evidence at all that it was destroyed.
THE COURT: We don’t have any evidence—
MR. LAUTZ: That it was destroyed. He said it probably was.
THE COURT: But that’s the only evidence we have in the case as to what happened to it so far.
MR. LAUTZ: I would submit that evidence is useless in making a decision as to whether it was or wasn’t.
THE COURT: Okay. Anything else?
MR. LAUTZ: Since it is not going to be in here, this is not quite relevant yet. Not yet. Until they bring it in. Bring in a photo.
THE COURT: They are never going to bring it in so what you’re asking me to do is dismiss the case because the State can’t present the corpus delicti which is the drugs themselves.
MR. LAUTZ: Absolutely.
*594 THE COURT: AH right. Anything else?
MR. LAUTZ: No.
THE COURT: The objection and request of defense is overruled and denied.
Officer Sewell’s testimony regarding the events of December 13, 1990, essentially reiterated that of Officer Brown. Sewell also testified that he “submitted the glassine bags containing the white powder [recovered from Mr. Gee] and the money that was recovered from Mr. Coffey” to the evidence control unit at police headquarters. The officer testified that these items were photographed and that he filled out some paper work so that the alleged CDS could be analyzed at the crime lab. Additionally, the officer identified “a chain of evidence laboratory report” he had filled out. The prosecutor, over objection, then elicited from the officer that an earlier trial was held in the same matter and that the photographs and drugs were submitted into evidence. The following colloquy then ensued:
MR. ROSE: Since that time, officer, have you had an occasion to check to see whether those photographs or drugs—the drugs still existed?
MR. LAUTZ: Objection.
THE COURT: Overruled.
OFFICER SEWELL: Yes, I have.
MR. ROSE: And when did you check?
OFFICER SEWELL: I—
MR. LAUTZ: Objection. May I have a continuing objection, Your Honor?
THE COURT: You may.
MR. LAUTZ: As to this Hne.
OFFICER SEWELL: Yes, I checked after the conviction of the defendant in the first trial.
MR. ROSE: A11 right, and what happened? And were you able to determine whether or not those things still existed?
OFFICER SEWELL: After the defendant was found guilty in the first trial, our poHcy in the Baltimore City *595 police department is whether the drugs should still be kept around. At that particular time, I said—I submitted the report saying No, you can go ahead and destroy the evidence.
(emphasis added). After the officer finished testifying, the Court summoned counsel to the bench and held an on-the-record conference. The Court informed counsel that it was concerned by the officer’s disclosure of appellant’s prior conviction on the same counts. Specifically, the following exchange transpired:
THE COURT: During the course of the examination of this witness as to the nonproductivity of the actual heroin and/or the photograph in this case, you [defense counsel] made a continuing objection [to the Prosecutor’s] line of questioning.
During the course of that questioning it was disclosed by the witness that following the defendant being found guilty in the first trial, the witness destroyed the exhibit or gave permission [that] the exhibit be destroyed.
Because you have a continuing objection, I want to clarify the record at this point or at least find out what if anything you want me to do.
The questioning from the State’s Attorney was along the line as to why the exhibit and/or the photograph are no longer available.
It has now been disclosed to this jury that in the first trial it was a guilty finding and that is what led the witness to disclose—or just to have the evidence destroyed.
In light of that, your continuing objection of which I didn’t know he was going to say guilty or maybe you [the prosecutor] didn’t either.
MR. ROSE: Neither did I.
THE COURT: My question to you [defense counsel] is in light of your continuing objection on a related line in which that fact was elicited, what if anything do you want me to do about it?
*596 Defense counsel contended that the court should grant a mistrial. The court denied this motion; instead the court determined that it would give curative instructions because it concluded that the “convicted” and “guilty” disclosures were not “intentional and there have been other references throughout to the other hearing, et cetera.” Thus, the court concluded that in its opinion, because several references had been made to the prior trial, the curative instructions would negate any prejudice emanating from the two Officer’s disclosures. In view of the court’s ruling on the motion for mistrial, defense counsel did not oppose the court’s decision to give curative instructions. The court then proceeded to give the following curative instructions:
Members of the jury, from this witness you have heard certain references to a previous finding as to the guilt or innocence of the defendant in another proceeding prior to today.
You are to disregard any testimony, on the issue of any previous finding of guilt or not guilty in reference to the defendant in this case.
As far as this court is concerned and you are concerned, this is a trial de novo. What that means in lay[person]’s terms is this is the first trial as if a previous trial never happened.
That is the posture for you, that is the posture for the State, the defense and the court.
That information was elicited during the course of this trial from this witness only for the limited purpose of explaining to you why no photographs of the money or the narcotics [ ] alleged in this case exists at this time. And you are to consider such testimony as to the previous trial only for the limited purpose as an explanation to you as to why those exhibits and/or narcotics are not available at this time.
Standard of Review
It is well established that the decision to grant a motion for a mistrial rests in the discretion of a trial judge and our
*597
review is limited to determining whether there has been an abuse of discretion.
State v. Hawkins,
Denial of the Motion for Mistrial
On appeal, appellant contends that the trial court committed reversible error by refusing to declare a mistrial after Officer Sewell testified that the appellant had been found guilty in an earlier trial. Appellant explains that even if defense counsel had inadvertently “opened the door” regarding the Brown disclosure, the door was not open regarding the Sewell disclosure about the prior conviction. Appellant asserts that Officer Sewell’s disclosure of his prior trial and conviction on the very same charges on which he was being retried was manifestly prejudicial. He notes that this disclosure is similar to the one in
Rainville,
it is highly probable that the inadmissible evidence in this case had such a devastating and pervasive effect that no curative instruction, no matter how quickly and ably given, could salvage a fair trial for the defendant. The defendant is not to blame—he anticipated the possibility of just such a problem, and prudently attempted to avoid it.
*598 Accordingly, he would have us hold that the trial court erred in not granting his motion for a mistrial.
Here, the State produced the testimony of two officers, both of whom were qualified as experts, who observed appellant engage in what they perceived to be a CDS sale. When the officers confronted appellant and Gee, both of them tried to run away from the officers. Officer Brown pursued appellant and arrested him. The State also introduced into evidence the chain of evidence report/laboratory report that indicated that the item seized from Gee was heroin. Officer Sewell identified this report as the one he had filled out to process the items recovered from Gee. The State also introduced the testimony of Fuad Jarjoura, an expert in the field of CDS analysis and identification employed by the Baltimore City police laboratory, who testified that the seized item was heroin.
In other words, under normal circumstances, the jury had sufficient facts before it so that it could determine from the facts alone whether the appellant was guilty as charged. But, in this case, the jury did not make that determination from the facts alone. Instead, Officer Sewell, an experienced member of the Baltimore City Police Department, blurted out twice that appellant had been tried and found guilty previously on the very same charges. Commendably, the court recognized the possible prejudice emanating from this disclosure and held an on-the-record discussion with counsel to discuss what, if anything, should be done under these circumstances. The court concluded that curative instructions would overcome any prejudice to the appellant. We, therefore, are faced with the question as to whether, in so doing, the trial court abused its discretion. Specifically, we must determine whether in a criminal case, where a defendant is retried on the same charges, does an experienced police officer’s mention of the defendant’s previous trial and conviction for those same charges ordinarily warrant a mistrial. We conclude that it does and explain.
At the outset, we note that the coveted “case in point” has eluded us; cases where the Court of Appeals has held that a
*599
mistrial was necessary are, however, instructive in our analysis. The Court of Appeals has on numerous occasions addressed conduct that constitutes grounds for a mistrial. In
Poole v. State,
[T]he mere occurrence of improper remarks does not by itself constitute reversible error. There must be an additional element for this conclusion to be reached. If we cannot say that the assailed argument constituted “a material factor in the conviction”; must have resulted in “substantial prejudice to the accused” or that “the verdict would have been different had the improper closing argument not been made ... ”, then we must necessarily conclude that no prejudicial error resulted from the argument.
(Citations omitted).
In
Guesfeird v. State,
whether the reference to [inadmissible evidence] was repeated or whether it was a single, isolated statement; whether the reference was solicited by counsel, or was an inadvertent and unresponsive statement; whether the witness making the reference is the principle witness upon whom the entire prosecution depends; whether credibility is a crucial issue; [and] whether a great deal of other evidence exists.
*600
In that case, because the sole prosecution witness made an inadvertent reference to'having taken a lie detector test, the Court noted that “[t]he unavoidable inference for the jury to make is that if she took the test, she passed and was telling the truth.”
Id.
at 666,
We recognize that, contrary to the case
sub judice,
there was a dearth of evidence in
Guesfeird
and
Rainville
and that here the trial court issued curative instructions, which might negate Officer Sewell’s disclosures’ prejudicial impact. The Supreme Court, however, noted in
Bruton v. United States,
there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.
Recognizing the inherent limitations of a jury to disregard highly prejudicial testimony, Professor Lynn McLain states that “[t]he efficacy of an instruction to disregard is questionable. Not only may jurors not be able to erase from their minds the inadmissible information they have heard, but an instruction to disregard may emphasize it.” Lynn McLain, 5 Maryland Evidence, § 130.10, 30-31 (1987 & Supp.1994) (footnotes omitted). Based upon our review of the testimony, we conclude that this is such a case.
Our decision is consistent with
Bailey v. State,
we are hard pressed to think of anything more damning to an accused than information that a jury had previously convicted him for the crime charged. It seems unreasonable to expect a juror to divorce from his deliberative process, knowledge that a defendant had been previously tried and convicted, and following a reversal has been once again subjected to prosecution. The mere expenditure of so much time and expense on the part of the state might lead the average lay person to assume that such a defendant must, in fact, be guilty.
Bailey,
Additionally, we note that Officer Sewell’s disclosures regarding the prior trial and conviction could not have been admitted under the doctrine of “opening the door.” In
Clark v. State,
The “opening the door” doctrine is really a rule of expanded relevancy and authorizes admitting evidence which otherwise would have been irrelevant in order to respond to (1) admissible evidence which generates an issue, or (2) inadmissible evidence admitted by the court over objection. Generally, “opening the door” is simply a contention that competent evidence which was previously irrelevant is now relevant through the opponent’s admission of other evidence on the same issue.
*605 The Court further explained that where, in a rape case, an officer testified that the defendant was implicated in another rape case, the trial court should have undertaken the following analysis:
Where, as in the instant case, an adverse witness gives an unresponsive, unanticipated prejudicial answer to a question, the issue is whether the admission of rebutting evidence is controlled by the “opening the door” rules of expanded relevancy or by the more limited rules of curative admissibility. The answer depends on the character of the responsive evidence sought to be admitted. If the proffered responsive evidence is competent evidence that would otherwise be admissible if relevant, then it is tested by the rules of relevancy ... If the proffered responsive evidence would be incompetent (e.g., hearsay) regardless of its relevance, then it is only admissible if permitted by the principles of curative admissibility.
Id.
at 91-92,
*606
We recognize that the nature of the defense—that the State could not produce a critical portion of the corpus delicti (i.e., the CDS)—required the State to explain the absence of the physical evidence and consequently the evidence of a prior trial. The blurt, however, of a conviction in this very case was so egregious that not withstanding the trial judge’s valiant efforts to avoid a mistrial, through the issuance of curative instructions, a mistrial was the only cure. Accordingly, we conclude that when the jury learned of appellant’s prior trial and conviction on the very same charges, this information was “so prejudicial that it denied the defendant a fair trial” and “transcended the curative effect of the instruction.”
Rainville,
JUDGMENT REVERSED; CASE REMANDED TO THE CIRCUIT COURT FOR BALTIMORE CITY FOR A NEW TRIAL. COSTS ASSESSED TO THE MAYOR AND CITY COUNCIL OF BALTIMORE.
Notes
. The Officer was qualified as an expert in the field of narcotic investigation and detection of street narcotic activity including the packaging and distribution of narcotics. The officer testified that as of the date of the incident in question, he had been working for the Baltimore City Police Department for just over two years.
. Officer Sewell was admitted as an expert in the field of the detection of street narcotics activity including the packaging, distribution and pricing of CDS. The officer testified that he had worked for the Baltimore City Police Department for approximately five and a half years.
. There we held that the accused were denied effective assistance of counsel.
. In a footnote the Court explained that
We continue to adhere to the view that juror knowledge of a prior conviction that comes during the course of subsequent proceedings is cause for a mistrial ipso facto. However, when a juror or jury acquires knowledge of “prior proceedings” for the first time during a subsequent trial, even though no result is mentioned, it may also warrant the declaration of a mistrial. Jurors in criminal cases may quickly conclude that the primary reason for a second trial is not a prior mistrial but reversal of a prior conviction after appeal. Each situation and possible solution must be scrupulously reviewed by the trial court. Juror knowledge of a prior trial during a subsequent trial must be assiduously avoided. Before any retrial for the same offense, counsel has a responsibility to caution their witnesses not to refer [to the] prior trial, even as prior proceedings. Counsel should try to question witnesses about their prior testimony in generic terms, e.g. about “previously sworn statements in matters concerning these proceedings.”
Bailey,
.
See United States v. Torres,