“In criminal prosecutions, the polygraph test is a pariah; ‘polygraph’ is a dirty word.” State v. Hawkins,
I. FACTUAL AND PROCEDURAL HISTORY
Petitioner Stephen Simmons was charged in the Circuit Court for Prince George’s County with murder and other related offenses arising out of the shooting death of Christopher Wright on July 1, 2009. On that date, Petitioner was standing outside the apartment building where the victim and his roommate, Razaq Sarumi, resided. Simmons became angry after Sarumi spit out of his apartment window overlooking the building entrance where Simmons was standing. Sarumi joined Simmons outside, where the two engaged
Prior to trial, Simmons moved to suppress the taped statement given to police during his interrogation, arguing that it was involuntary. After a hearing on June 11, 2010, the Circuit Court denied the motion to suppress. Trial began on August 16, 2010. Defense counsel’s opening statement proceeded as follows:
[DEFENSE COUNSEL]: You will hear that when my client was arrested, he was held for ten hours in a frigid interrogation room. He was given no food. He was allowed to make no phone calls. He had no grandmother or paid lawyers rushing down to help him. He was entirely alone. And a rotation of experienced homicide detectives tried every trick in the book to try to get Stephen Simmons to admit that he had shot Christopher Wright.
They even lied to him. They told Stephen Simmons that Christopher Wright had survived and had identified him as the shooter. But even though he was shivering cold, he was exhausted and utterly alone, Stephen Simmons had one thing on his side that protected him. He was actually innocent of the death—
[PROSECUTOR]: Objection.
[DEFENSE COUNSEL]: — of Christopher Wright.
THE COURT: The objection is sustained as to innocence. The State’s burden is to prove guilt beyond a reasonable doubt. That’s a factual issue for you. The assertions by the attorneys are to be ignored in that regard.
You may continue, counsel.
[DEFENSE COUNSEL]: Thank you, Your Honor.
You will hear him protest his innocence through the long hours of questioning, tell the detectives over and over again the one thing that he knew to be true, “I did not shoot that man. I did not shoot that man.” Stephen Simmons offered to take a lie detector test.
[PROSECUTOR]: Objection.
THE COURT: The objection is sustained. Let me just tell you jurors when all the evidence begins, you’re going to have to consider the evidence as opposed to what counsel says, what the State says, and what the defense says. But I sustained the objection with regard to the reference to a lie detector test. That’s not something you can consider. It’s not something you can be permitted to consider.
(Emphasis added). The State made no further objection to defense counsel’s reference to a lie detector test and did not protest the adequacy or effectiveness of the court’s instruction. Between the first two days of trial, August 16 and 17, 2010, the State presented the testimony of four witnesses. On August 17, 2010, the court recessed early, around 1:00 PM, to consider the admissibility of testimony by the
At the beginning of proceedings on August 18, 2010, the State moved for a mistrial claiming that defense counsel’s reference to the lie detector test had prejudiced the jury, such prejudice could not be overcome, and the State was deprived of a fair trial. The prosecutor acknowledged the time delay between the improper statement and the motion for mistrial, stating that he “spent all night thinking about whether to make this motion.” Defense counsel objected to the motion, arguing that any prejudice arising from his “fleeting reference” to the lie detector test was cured by the court’s immediate instruction, and suggested that the prosecutor’s timing in requesting a mistrial was evidence of an improper motive on the part of the State, particularly where the motion for a mistrial came immediately after the court excluded the State’s firearms expert.
In considering the motion for mistrial, the trial judge stated that “[t]he State made a timely objection[.]” He then “characterized the [cjourt’s response to be somewhat of a blurt, so to speak, in an effort to cure what the [cjourt accepts as an absolute transgression as to presenting to a jury the notion that that which is inadmissible might be considered.” The trial judge then granted the State’s motion, stating:
An opening statement is a powerful setting when counsel has the opportunity to introduce into the minds of the jury what will and what will not be presented to them in determining the issues in the case. The [cjourt would accept that a lot of flourish is allowed with regard to opening statements and closing arguments, but the [cjourt believes that each counsel is charged with respecting and appreciating certain limits.
In this particular instance, we’re dealing with a statement not made by a witness, not unexpectedly presented by a witness, but a statement carefully made as part of a preview of the evidence to the jury. Indeed, considering that the jury has no right to expect that Mr. Simmons would testify, and that even if he were to testify, his testimony would be, “I did not shoot anyone,” the statement, in effect, constituted a substitute for the defendant’s testimony.
The [cjourt, especially upon the cross-examination quite skillful of Mr. Sarumi, is satisfied that credibility is central to the prosecution of this case. It’s central to the defense of the case. The [cjourt considers the motion to be timely. The [cjourt believes that the prejudice to the State’s ability to have a fair trial is clear, because in a case so close as this, that relies upon the credibility of witnesses, there is no way to erase the potential infection of the jurors’ minds as to, well, he offered to take a lie detector test. That satisfies it for me. It may not be articulated, but that might be the determining factor.
The [cjourt finds that as a matter of manifest necessity, a mistrial must be declared to ensure that the State is not deprived of a fair trial, and to ensure that the jurors are not permitted to allow knowledge that there was an offer of a lie detector test to cause them to find that the State was not able to meet its burden.
A mistrial is declared.
Petitioner thereafter filed a “Motion to Dismiss,” arguing that retrial was prohibited under double jeopardy principles. The trial court denied the motion the same day. On appeal, the Court of Special Appeals affirmed the judgment of the trial court, holding that the trial judge did not abuse his discretion in determining that manifest
Did manifest necessity exist to justify the declaration of a mistrial in a case where during defense counsel’s opening statement the jury was told that Petitioner had offered to take a lie detector test, where the prosecutor’s objection to that statement was sustained and an immediate curative jury instruction was given, and where the prosecutor waited to request a mistrial for two days, until after four State witnesses had testified and after the trial court had ruled that an expert witness for the State would not be allowed to testify?
We shall affirm the judgment of the Court of Special Appeals, and hold that there was no abuse of discretion by the trial judge in making a determination of manifest necessity to declare a mistrial where the trial court considered its own previously issued curative instruction and found that it was insufficient to cure the prejudice caused by defense counsel’s improper remark.
II. DISCUSSION
Petitioner argues that there existed no manifest necessity for a mistrial because the trial judge’s immediate curative instruction was a reasonable alternative to the declaration of a mistrial. He contends that the instruction apparently satisfied the prosecutor, because the prosecutor did not protest the adequacy or effectiveness of the trial court’s instruction or ask for further relief at the time of the statement, and did not request a mistrial until two days later. In addition, Petitioner asserts that the instruction apparently satisfied the trial judge, because the trial court could have declared a mistrial sua sponte in the immediate aftermath, but chose to give a curative instruction instead.
On the other hand, Respondent argues that the curative instruction is not a reasonable alternative — “the bell cannot be unrung” — and therefore the trial judge did not abuse his discretion in making a determination of manifest necessity at the time he did. As the trial court observed, Respondent continues, “defense counsel’s remarks were an effort to establish the credibility of [Petitioner’s] claims of innocence without even the assurance that [Petitioner] would take the stand and expose his claims to cross-examination.” Thus, Respondent contends, defense counsel placed highly prejudicial, inadmissible evidence before the jury in his opening statement, which “was tantamount to improper vouching, effectively stating to the jury that the offer to take a lie detector test was proof of his client’s innocence[,]” therefore, the trial court’s instruction was not enough to cure the prejudice and manifest necessity existed to grant a mistrial.
A. Standard of Review
As a threshold matter, we address the appropriate standard to guide our analysis. The parties before us disagree on this issue. Petitioner urges us to review the trial judge’s finding of manifest necessity for legal correctness, meanwhile Respondent contends that we should review this case for an abuse of discretion. Petitioner relies on State v. Fennell,
Moreover, our cases make clear that we apply the abuse of discretion standard of review in cases of mistrial. “It is well-settled that a decision to grant a mistrial lies within the sound discretion of the trial judge and that the trial judge’s determination will not be disturbed on appeal unless there is abuse of discretion.” Carter v. State,
Reading Fennell along with both United States Supreme Court precedent and our own prior case law demonstrates that although a reviewing court should not simply “rubber stamp” a trial judge’s ruling of a mistrial, the trial judge is “far more ‘conversant with the factors relevant to the determination’ than any reviewing court can possibly be” and, therefore, we review the trial judge’s grant of a mistrial for abuse of discretion. Arizona v. Washington,
B. Double Jeopardy
The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment, provides that, “... nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” See Benton v. Maryland,
Because of the variety of circumstances that may make it necessary to discharge a jury before a trial is concluded, and because those circumstances do not invariably create unfairness to the accused, his valued right to have the trial concluded by a particular tribunal is sometimes subordinate to the public interest in affording the prosecutor one full and fair opportunity to present his evidence to an impartial jury. Yet in view of the importance of the right, and the fact that it is frustrated by any mistrial, the prosecutor must shoulder the burden of justifying the mistrial if he is to avoid the double jeopardy bar. His burden is a heavy one.
In the instant case, at the time the proceedings were aborted, jeopardy had already attached, the jury having been empaneled and sworn. Simmons objected to the State’s request for a mistrial. Our inquiry, therefore, is whether the trial judge abused his discretion in granting the mistrial over Simmons’s objection, based upon the judge’s finding of manifest necessity.
C. Manifest Necessity
The question of whether manifest necessity exists for the purposes of double jeopardy in the case of a mistrial depends on the unique facts and circumstances of the case. Indeed, the United States Supreme Court has declined to create a rigid test for determining manifest necessity. See Blueford v. Arkansas, — U.S.-,
We think, that in all cases of this nature, the law has invested [c]ourts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated.
More recently, in Arizona v. Washington, the Supreme Court expounded upon Justice Story’s “classic formulation” of manifest necessity, noting that “[t]he words ‘manifest necessity’ appropriately characterize the magnitude of the prosecutor’s burden.”
To meet this “high degree” of necessity, our cases establish that “to determine whether manifest necessity to declare a mistrial over defense objection exists, the trial judge must engage in the process of exploring reasonable alternatives and determine that there is no reasonable alternative to the mistrial.” Hubbard v. State,
In the present case, defense counsel knew or should have known that it was improper to mention to the jury that Simmons requested to take a polygraph exam to prove his innocence.
Although certainly there are alternative actions available in the trial court’s arsenal to counteract prejudice caused by an improper statement, such as curative instructions to the jury, the Supreme Court in Arizona v. Washington also cautioned that “[tjhose actions, however, will not necessarily remove the risk of bias that may be created by improper argument.”
As the Court of Special Appeals noted in this appeal below, Arizona v. Washington is factually analogous to the case at bar. In that case, the defendant was being tried a second time due to the prosecutor’s failure to disclose exculpatory evidence during the defendant’s first trial. Washington,
The Supreme Court upheld the trial court’s ruling, noting that the particular situation leading to the mistrial in that case “falls in an area where the trial judge’s determination is entitled to special respect.”
An improper opening statement unquestionably tends to frustrate the public interest in having a just judgment reached by an impartial tribunal. Indeed, such statements create a risk, often not present in the individual juror bias situation, that the entire panel may be tainted. The trial judge, of course, may instruct the jury to disregard the improper comment. In extreme cases, he may discipline counsel, or even remove him from the trial as he did in United States v. Dinitz,424 U.S. 600 [96 S.Ct. 1075 ,47 L.Ed.2d 267 (1976)]. Those actions, however, will not necessarily remove the risk of bias that may be created by improper argument. Unless unscrupulous defense counsel are to be allowed an unfair advantage, the trial judge must have the power to declare a mistrial in appropriate cases. The interest in orderly, impartial procedure would be impaired if he were deterred from exercising that power by a concern that any time a reviewing court disagreed with his assessment of the trial situation a retrial would automatically be barred.
Similarly, in Carter v. State, this Court discussed the discretion afforded the trial judge in weighing the effectiveness of a curative instruction, holding that “when the court finds that inadmissible evidence has been presented to the jury, it is within the discretion of the trial court to decide whether a cautionary or limiting instruction should be given.”
Whether a curative instruction is a reasonable alternative to a mistrial depends on whether the prejudice was so substantial as to deprive a party of the right to a fair trial and therefore warrant a mistrial. See Bruton v. United States,
Petitioner relies on a Florida appellate court case to assert that the curative instruction would have sufficed to cure any prejudice caused by the improper remark about the polygraph test. McFadden v. State,
As discussed by the Court of Special Appeals in the case below, to evaluate the prejudice caused by an improper reference to a lie detector test in the face of a request for mistrial, this Court in Guesfeird v. State, enumerated a number of factors:
The factors that have been considered include: whether the reference to a lie detector 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 principal witness upon whom the entire prosecution depends; whether credibility is a crucial issue; whether a great deal of other evidence exists; and, whether an inference as to the result of the test can be drawn.
In the case at bar, defense counsel made an improper reference to Petitioner’s willingness to take a lie detector test during his opening statement. See Kosmas,
Moreover, in considering the motion for mistrial, the trial judge essentially reviewed the efficacy of his own prior curative instruction.
We now address Petitioner’s argument that the delay between the improper remark and the State’s request for a mistrial demonstrates both that there existed no manifest necessity because the trial judge could have declared a mistrial sua sponte, and that the delay was evidence of the prosecutor’s improper motive in requesting a mistrial because the State waited until after its expert witness was excluded to make the motion. As to Petitioner’s first contention, we simply note that although Petitioner is correct that a trial court may declare a mistrial sua sponte, there is no obligation on a trial judge to do so. See State v. Frazier,
In sum, the record in this case confirms that the trial judge carefully considered and ruled on the issues presented to him in what we see as, in the words of Justice Story, the “faithful, sound, and conscientious exercise of [his] discretion,” Perez,
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS IN THIS COURT AND THE COURT OF SPECIAL APPEALS TO BE PAID BY PETITIONER.
Notes
. We note that the double jeopardy analysis is different in the case of a mistrial granted with the consent of the defendant or a mistrial requested by the defendant. See Hubbard, v. State,
. Petitioner’s argument that the reference was not an "absolute transgression” because the statement would be admissible under Johnson v. State,
. Generally, trial judges have the discretion to revisit and reverse or modify their own previously entered interlocutory orders prior to the entry of final judgment. See Black's Law Dictionary 1130 (8th ed.2004) (defining "interlocutory order” as "[a]n order that relates to some intermediate matter in the case; any order other than a final order”); Quartertime Video & Vending Corp. v. Hanna,