MEDICAL MUTUAL LIABILITY INS. SOC. OF MARYLAND v. Evans

ROBERT M. BELL, J.,

dissenting and concurring.

ROBERT M. BELL, Judge, dissenting and concurring.

The majority holds that the cross-examination of a defense witness by the respondent’s counsel was so prejudicial as to be incapable of being cured by instructions and, therefore, the trial court abused its discretion in denying the petitioner’s motion for mistrial. In so doing, the majority substitutes its judgment for that of the trial court, giving absolutely no deference to the trial court’s superior position to gauge the mood and tone of the trial. Indeed, the tenor of the majority opinion makes quite clear that it faults the trial court's exercise of judgment.

The argument that the cross-examination was improper and, thereby, irretrievably prejudiced the defense was also made to the Court of Special Appeals. That court, however, was not persuaded. Deferring to the trial court’s assessment of the situation, it had no difficulty rejecting the petitioner’s argument that, under the circumstances of this case, a mistrial was absolutely required.

I align myself with the Court of Special Appeals. It is well settled in this State that, “[ojrdinarily the decision whether to grant a motion for a mistrial rests in the discretion of the trial judge,” State v. Hawkins, 326 Md. 270, 277 , 604 A.2d 489, 493 (1992), quoting Kosmas v. State, 316 Md. 587, 594 , 560 A.2d 1137, 1141 (1989), citing Wilhelm v. State, 272 Md. 404, 429 , 326 A.2d 707, 714-15 (1974) and Lusby v. State, 217 Md. 191, 195 , 141 A.2d 893, 895 (1958), and that an appellate court’s review of the denial of a motion for mistrial is limited to determining whether that ruling was an abuse of discretion. White v. State, 300 Md. 719, 737 , 481 A.2d 201, 210 (1984). See also DeMay v. Carper, 247 Md. 535, 540 , 233 A.2d 765, 768 (1967); Jacobson v. Julian, 246 Md. 549, 561 , 229 A.2d 108, 116 (1967); Brooks v. Daley, 242 Md. 185, 197 , 218 A.2d 184, 191 (1965); *34 Bailey v. Wray, 230 Md. 359, 362-63 , 187 A.2d 101, 103 (1963); Thimatariga v. Chambers, 46 Md.App. 260, 283-84 , 416 A.2d 1326, 1338 , cert. denied, 288 Md. 744 (1980). An abuse of discretion should be found only in the extraordinary, exceptional, or most egregious case. As we said in DeMay :

[T]o [the trial judge’s] discretion customarily is left the choice of methods to protect the fair and unprejudiced workings of the judicial proceedings and his decision as to the effect of that choice upon the jury and only in the exceptional case, the blatant case, will his choice of cure and his decision as to its effect be reversed on appeal.

247 Md. at 540 , 233 A.2d at 768 . See also Leach v. Metzger, 241 Md. 533, 537 , 217 A.2d 302, 304 (1966); Nelson v. Seiler, 154 Md. 63, 72, 73 , 139 A. 564, 567 (1927); Capital Traction Co. v. McKeon, 132 Md. 79, 90-91 , 103 A. 314, 318-19 (1918); Esterline v. State, 105 Md. 629, 637-38 , 66 A. 269, 272-73 (1907).

Moreover, conduct of a trial, including admission of evidence, is also directed to the considerable discretion of the trial court. Crawford v. State, 285 Md. 431, 451 , 404 A.2d 244, 254 (1979). In that regard, and clearly relevant to whether there has been an abuse of discretion, judges are presumed to be “men [and women] of discernment, learned and experienced in the law and capable of evaluating the materiality of evidence,” a proposition that is of some considerable significance in our jurisprudence. State v. Babb, 258 Md. 547, 550 , 267 A.2d 190, 192 (1970). They are also presumed to know the law and lawfully and correctly to apply it. Smith v. State, 306 Md. 1, 8 , 506 A.2d 1165, 1168 (1986), citing Hebb v. State, 31 Md.App. 493, 499 , 356 A.2d 583, 587 (1976). Additionally, a judge’s presence at the trial, conducting it, with his or her “finger on the pulse” of the situation, Brooks, 242 Md. at 197 , 218 A.2d at 191 , renders him or her the logical and, indeed, the best person to evaluate the existence of prejudice. Hawkins, 326 Md. at 278 , 604 A.2d at 493 . Having lived with the case, the trial judge views the situation in three dimension, up close *35 and personal, not from a cold record; thus, having closely observed the entire trial, he or she is able to appreciate “nuances, inflections and impressions never to be gained from a cold record,” Buck v. Cam’s Broadloom Rugs, Inc., 328 Md. 51, 59 , 612 A.2d 1294, 1298 (1992), not to mention being able to assess, firsthand, the demeanor of the witnesses as well as the reaction of the jurors and counsel to those witnesses and to the evidence as it is adduced.

There are, to be sure, cases in which the conduct of counsel is so egregious as to require, as a matter of law, that a trial be aborted. See e.g. Watters v. State, 328 Md. 38, 49-50, 612 A.2d 1288, 1294 (1992); Rainville v. State, 328 Md. 398, 411, 406-411 , 614 A.2d 949, 955 (1992). In such a case, there necessarily will be but one decision that could be made — the declaration of mistrial — and, hence, the denial of a mistrial motion would be a clear abuse of discretion. This, however, is not such a case.

This is not a case in which the trial judge ruled reflexively on a motion, advocated by little or no argument, by simply denying it. Nor is this a case in which the prejudice to the defense was manifest, in and of itself, without the need to refer to the circumstances surrounding the revelation of the offending information. This case does not involve testimony that is inherently unreliable or testimony about a matter, e.g., a lie detector test, see Kosmas, supra; Guesfeird v. State, 300 Md. 653 , 480 A.2d 800 (1984), 1 that is so prejudicial that the proper sanction for reference to it has been deemed to be a mandatory new trial. Inadmissible evidence is often the subject of a mistrial motion, but seldom is it enough, in and of itself, to justify a mistrial. The surrounding circumstances bearing on how it came before the jury and counsel’s purpose in getting it before the jury often, if not always, is important. In other words, the trial judge’s *36 role in the trial ordinarily is not only not irrelevant, but it is usually critical, if not decisive.

The trial judge in this case diligently and conscientiously considered and ruled on the petitioner’s mistrial motion. He ruled only after hearing extensive argument and even taking testimony outside the presence of the jury. He was aware, therefore, of the petitioner’s concerns and of the precise prejudice the petitioner alleged the cross-examination caused it to suffer. He was also aware, firsthand, of the factors relevant to evaluating the justification of those fears. As the presiding judge, he could see, and, indeed, had seen, the evidence as it unfolded. When the cross-examination was taking place, he had the unique vantage point of being able to observe the jurors’ reactions to the offending information. He had presided over the trial for seven days; consequently, he, better than- anyone else— certainly better than this Court — could assess: the jury’s inclination or proclivity to use evidence of past misdeeds to decide the case and, perhaps, to punish the petitioners; the jury’s ability to follow instructions, and the likelihood that the petitioner was irreparably damaged as soon as the offending information was revealed.

We must presume that the trial judge also was aware of the test for declaring a mistrial. Therefore, although he did not explicitly say so, we must also presume that the trial judge determined that the prejudice resulting from the information cross-examination disclosed was not sufficiently egregious, or was not incapable of cure, as to warrant a mistrial. Given the trial judge’s unique vantage point, it simply is inappropriate to assume, as the majority appears to do, that he denied the motion uninformed as to relevant circumstances. It was the trial judge who, as the presiding judge, oversaw the empaneling of the jury; consequently, he was fully aware, and must have considered, that the jury was composed of a number of women of child-bearing age and, therefore, the likelihood that they would be offended by the nature of the evidence adduced. Moreover, we must also presume that, when making his prejudice determina *37 tion, the court considered, and rejected, the possibility that this jury, like “many lay persons would consider that if Med Mutual would refuse to protect another insured by failing, in bad faith to settle within policy limits in a different case, it would be more likely that Med Mutual failed in bad faith to protect Beverly’s interest”. [Slip op. at 21]. Certainly, although aware of the possibility, the court could not have believed that the primary purpose of the respondent’s cross-examination was to embarrass and harass the witness or that it obscured the real issues in the trial. Had that been the case, we have to presume that, because he knows the law and correctly applies it, he unhesitatingly would have declared a mistrial.

The trial court reviewed the mistrial issue not once, but twice. When the petitioner moved for new trial and/or for judgment n.o.v., it presented the same issues for the trial court’s consideration as were presented when it moved for mistrial, with, however, the additional factor that the jury’s verdict was now known. Thus, the trial judge was called upon to review the same arguments with the clarity of hindsight. Once again, he denied the petitioner’s relief. He decided that the prejudice to the petitioner was not sufficiently egregious as to require, as a matter of law, the grant of a new trial. At that time, he made clear that he believed that the respondent’s cross-examination was for a proper purpose, to establish the bias of the witness. It is significant that the court gave no indication that it thought that the jury was unduly influenced by that cross-examination.

There is, perhaps a reason why the trial court did not find sufficient prejudice in this case. The cross-examination about which complaint is made did not permeate the entire trial; and the offending information was not repeated after the court ordered counsel not to pursue the matter further. Thus, it comprised but a small part of the trial. Moreover, the court advised the jury, even though the defense did not request it and, indeed, actually refused the offer of a curative instruction, that it must “assess the evidence in *38 this case and determine the facts with regard to this case based on what has been presented to you as to this case." Given the trial judge’s unique and critical perspective, I believe he adequately addressed and cured any harm that may have been caused by the respondent’s cross-examination.

Underlying the majority’s opinion, as is also true of the petitioner’s arguments, is the notion that, because the misconduct occurred on the last day of testimony, after seven days of trial, the trial judge did not adequately exercise discretion when ruling on the mistrial motion. The Court points out that this judge, early in prior proceedings, had previously declared a mistrial based on conduct similar to that alleged here. It seems to suggest that the trial judge would have reacted differently, i.e., ruled differently, had the offending conduct occurred earlier in these proceedings. There simply is no basis in this record or in fact for any suggestion that the trial judge did anything other than discharge his responsibilities consistent with his judicial oath and fairness to the parties. To imply that the trial judge subordinated the fairness of the proceedings to a perceived need for judicial economy is to do a serious disservice to this trial judge, based on nothing more than speculation and, I suspect, an assessment of how this Court would have ruled,had it been entrusted with that responsibility in the first instance. That the trial judge was not motivated by judicial economy, but conscientiously considered, from the total circumstances, as he was required to do, the extent to which the petitioner was prejudiced is displayed very clearly by the way in which he handled the mistrial motion and the motion for new trial. Had the trial judge entertained any thought that the petitioner was irreparably prejudiced, he could have, and I submit, would have, granted appropriate relief in the form of a new trial.

In my view, there is absolutely no basis, on this record, to hold, as a matter of law, that the trial judge abused his discretion. And, because I am in complete agreement with the views expressed in parts II and III of the majority *39 opinion, I would affirm the judgment of the Court of Special Appeals.

. State v. Hawkins, 326 Md. 270, 276 , 604 A.2d 489, 492 (1992), makes clear that now even a reference to a lie detector test does not automatically require that a mistrial be granted.