Petition — Loveless v. Maryland

RT Go ee eR eT ee Te eee EE I eR eT ge RT Tee ne Sieg ame OD, phen ey NET ?

Supreme Court, U. &

FILED

JAN 95S {979

MICHAEL RODAK, JR., CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1978

_No.__€8- 1089

MABEL DARCEL LOVELESS,

Petitioner,

oo

STATE OF MARYLAND,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF SPECIAL APPEALS, MARYLAND

WILLIAM A. FRANCH,

JOSEPH P. MANCK,

GOLDSBOROUGH, FRANCH &

COLLETT,

7 King Charles Place,

P.O. Box 827,

Annapolis, Maryland 21404,

Attorneys for Petitioner.

~— ——

The Daily Record Co., Baltimore, Md. 21202 ee

TABLE OF CONTENTS

TAREE OR ARTUR fisicnssciccscccsccccsccccccoscccnseccenes

CITATION OF OPINION BELOW ........:ccscssceeeseseeeeeees

STATEMENT OF JURISDICTION .........scccccsesseeecseceeeees

QUESTIONS PREGEICTED 2.........ctcccccccccssccesssecescsceessees

CONSTITUTIONAL PROVISIONS .........::sccsssssesesseseeeeees

CAI I Ric cccnsccestecccsccvcecescccccsiccco eevee

REASONS FOR GRANTING WRIT:

I.

Il.

Ill.

IV.

The Supreme Court has never addressed

the question of the degree to which a

prosecutor’s misconduct, as opposed to

mere error, is sufficient, to constitute

overreaching. Decisions among state

and federal courts conflict over the

standard defining “prosecutorial over-

reaching” and the type of professional

conduct required to satisfy that stand-

The Supreme Court has never investi-

gated whether the defendant’s mistrial

motion acts as a waiver of the double

jeopardy protection if the defendant has

no choice but to move for a mistrial.

This issue would be one of first impres-

NE Mik cadet nei tii ca codec detokencatnckesahpecsnaves

The action of the trial judge affirmed by

the appellate court did not comply with

the standards required by the Supreme

Court and conflicts with the require-

ments of the Fourth and Second Circuit

Courts of Appeal .............::ccsseccsssrsessseeeees

The Supreme Court has never examined

the totality of circumstances in which

the factors of no choice but mistrial

motion exists for the defendant, a trivial

11

12

ii

incident occurs, and the trial judge fails

to inquire into alternative solutions

combine to invoke the double jeopardy

bar to reprosecution .............c:ccccssseeeeeees

CN I ae cites sstiscieiiihciiteitedian habit hn aac ili

APPENDIX:

A. Maryland Court of Appeals Order .......

B. Maryland Court of Special Appeals

i client

C. Opinion of Maryland Court of Special

Appeals, 387 A.2d 311 (1978) .................

D. Order denying Appellant’s Motion to

ITN A ba 8 OAR Oe eT

Extract of Chief Judge Child’s oral

opinion denying Appellant’s Motion to

RURAL TIDE W °esee LEO Pr RO

F. Declaration of Mistrial and Opinion of

then Chief Judge Evans ....................00

=

TABLE OF AUTHORITIES

Cases

Arizona v. Washington, 434 U.S. 1305, 98 S. Ct.

Bb Ba Fe a FRG COI saterectadstinticsinictectens

Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d

OO NUD ciatahrehibcasessisishcntaiasdnteniaseiditinidinslaeidiiaia icine

Commonwealth v. Potter, __. Pa. ____, 386 A.2d

EE GI Vichinidantiinenccnenasnsttidilaitelsitenimaiiiaiatiiadeta in

Dinitz v. United States, 424 U.S. 600, 96 S. Ct.

1075, 47 L, Ed. 2d 267 (1976) .......:ssessssressseeees

Downum v. United States, 372 U.S. 734, 83 8. Ct.

1033, 10 L. Ed. 2d 100 (1963) 200........ceseccseesees

Goldsborough v. State, 12 Md. App. 346, 278 A.2d

GED CEG ED ccrsvesiromnsrsstinsiecsseseierverevennenttzenanbeniasine

PAGE

14

15

la

2a

3a

lla

12a

l4a

13

6,12

iii

Illinois v. Somerville, 410 U.S. 450, 96 S. Ct. 1066,

8B L. Ed. 2d 426 (1978) .....ceccccsscccearecescerescereseee

In Re Kinlein, 15 Md. App. 625, 292 A.2d 749

RUT . ssctecsnbeseinuninapibtreriacvanestbont coos ssnsebeopennesetecupennd

Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82

Bie BE NE EE deniscintacosoasechdenpadbavstssonsepbiabenhs

Lee v. United States, 432 U.S. 23, 97S. Ct. 2141,

BS La Ed. Ba BO (1977) e.ncrcsececcsscescecvcccesseeccscsesee

Maness v. Meyers, 419 U.S. 449, 95 S. Ct. 584, 42

Bs ee IT, dcp iesciccnsspshcussesehtinteecteckebnns

Morrow v. United States, 101 F.2d 654 (7th Cir.

1939), cert. denied, 307 U.S. 628 (19339) ........

Muller v. State, 478 P.2d 822 (Alaska 1971) ......

People v. Wilson, 48 Ill. App. 3rd 885, 363 N.E.2d

Se AER aii cid bine cabehictonticaikcotnian ciebetoeayiiinese

Piesik v. State, 572 P.2d 94 (Alaska 1977) .........

State v. Manning, 224 N.W.2d 232 (Ia. 1974) ....

State v. O’Keefe, 135 N.J. Super. 430, 343 A.2d

GOD (LFTB) .cccccrrceccosscossasseeccoccensnccsesesosovesessesoseoeses

State v. Wesley, 347 So. 2d 217 (La. 1977) .........

PAGE

United States v. Broderick, 425 F. Supp. 93 (S.D. .~

SP SENET D ctibtaphdiakeniadpciovbieddabibcnppinicatbiatsiiesiddseveases

United States v. Grasso, 552 F.2d 46 (2d Cir.

I tise eh ici slantecheh eosin ictis sed ondeinnsechidibediivnd vessnccecvaces

United States v. Jorn, 400 U.S. 470, 91 S. Ct. 547,

Bee A Es THEE TE CITED ivcrassacsntenechociadentederescccse

United States v. Kessler, 530 F.2d 1246 (5th Cir.

I pthc sacha cahas nchbhabhtidl sada cacsbncceiicibinibiaaliisepsstene

United States v. Lansdown, 460 F.2d 164 (4th

i a sl linstase

United States v. Martin, 561 F.2d 135 (8th Cir.

PRR SNES SESE CENA eR ie Om ORO

United States v. McKoy, 448 F. Supp. 826 (E.D.

Fis: ER Daiaadnidheithsvsethdecnetensidhpaiensasuenbaiavbsaesinses

iv

United States v. Romano, 482 F.2d 1183 (5th Cir.

RIDIIIR whiadidaepniciocaeshctilaginie cititagh tap da oe eae

EEN IRR SE ARI

1971) ceccscsce ids tabi es) Cec

19TB) sr ia a

(1958) sages darehanhninenaddnbenyioncecspnainepinansesibicipmeneilaiiianes

Treatises

3 J. Poe, Pleading and Practice, Pr. §347A (6th

O80. Th. Dee, Sey WP) ssikccsweenicemtetenss

Citation of Opinion Below

Mabel Darcel Loveless v. State of Maryland, 39

Md. App. 563, 387 A.2d 311 (1978), cert.

denied, __. Md. ___.,, No. 301, Sept. Term,

1978 (Oct. 20, 1978).

In THE

Supreme Court of the United States

OcTOBER TERM, 1978

SNE SE Bao

MABEL DARCEL LOVELESS,

Petitioner,

Vv.

STATE OF MARYLAND,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF SPECIAL APPEALS, MARYLAND

STATEMENT OF JURISDICTION

The order sought to be reviewed by this Petition was

entered on October 20, 1978, by the Maryland Court of

Appeals denying Appellant’s Petition for a Writ of

Certiorari to the Court of Special Appeals. The Court of

Special Appeals affirmed the denial of Appellant’s

Motion to Dismiss on June 12, 1978. July 12, 1978,

Appellant filed a Petition for Reconsideration which

was denied by the Court of Special Appeals ‘on

September 5, 1978. On September ., 1978, the mandate

was issued.

This Petition for Writ of Certiorari is authorized by 28

U.S.C. Section 1257(3) and is filed pursuant to 28 U.S.C.

Section 1201(d) and Supreme Court Rule 22(1) permit-

ting ninety days from the final order of the highest

state court in which to file the Petition.

2

QUESTIONS PRESENTED

I. Whether the double jeopardy clause of the Fifth

Amendment bars reprosecution of the Appellant after

Appellant’s mistrial motion was granted, however,

when the Appellant’s mistrial motion was necessitated

by prosecutorial overreaching.

II. Whether the Deputy State’s Attorney’s disobey-

ance of a pre-trial direct court order which would be

contumacious conduct is sufficient misconduct to be

deemed prosecutorial overreaching.

III. If no overreaching is present, whether defense

attorney’s mistrial motion was required to preserve

objection for appellate review and, thus, cannot be

deemed a waiver of double jeopardy protection. If it is

not a waiver, whether the mistrial should be examined

on the basis of manifest necessity.

IV. Whether the double jeopardy clause bars reprose-

cution because the trial judge failed to take the steps

required of him in determining need for mistrial.

V. Whether the totality of the circumstances is

sufficient for the double jeopardy clause to bar reprose-

cution.

CONSTITUTIONAL PROVISIONS

United States Constitution, Amendment V, Double

Jeopardy Clause:

“.. . nor shall any person be subject for the same

offense to be twice put in jeopardy of life or limb;

STATEMENT OF THE CASE

Mabel Darcel Loveless, Petitioner was indicted on

four counts: conspiracy to commit murder, attempted

murder, a second conspiracy to commit murder, and

murder. Her trial was held in the Circuit Court for Anne

3

Arundel County, Maryland located in Annapolis, Mary-

land.

On the evening of the scheduled trial date, March 8,

1977, then Chief Judge Evans held a chambers

conference to discuss pretrial matters raised by Peti-

tioner’s counsel. The defense attorneys expressed their

concern that during examination of prosecution wit-

nesses, someone would mention the fact that the main

prosecution witness, George Hendricks, had been given

a polygraph examination. Mr. Hendricks’ testimony

was anticipated as being a critical part of the State’s

case and the defense feared that revealing the poly-

graph examination might prejudice the defense of the

case. Protection against this occurring was requested.

In chambers, this subject was discussed among Judge

Evans, the Deputy State’s Attorney prosecuting the

case, and the defense counsel. The conclusion was

reached that the Deputy State’s Attorney would instruct

the police officers who were going to testify not to

mention the polygraph examination. The court ordered

the Deputy State’s Attorney to do so, and he agreed.

The defense deemed this to be adequate protection that

would permit cross-examination of the prosecution

witnesses without danger that the polygraph associa-

tion would be revealed. The record reflects that the

Deputy State’s Attorney never mentioned, until the

Motion to Dismiss four months later, that he had any

problem in accomplishing this court order.

The trial proceeded. Two days of testimony were

taken. One the second day of trial, a police officer was

testifying on behalf of the State. On cross-examination,

defense counsel, relying on the protection sought and

received, asked an inauspicious question. In response,

the officer referred to the time Mr. Hendricks spent with

the polygraph operator. The Deputy State’s Attorney

first realized what had transpired and interrupted the

4

| proceedings. Counsel approached the bench and the

defense counsel moved for a mistrial.

A conference was held concerning the events of the

pre-trial order and the trial testimony. During the

discussion, the officer who made the polygraph refer-

ence sat in the courtroom shaking his head indicating

that he had never received instructions from the Deputy

State’s Attorney not to refer to the polygraph. The trial

judge never suggested the options open to the Appellant

as to continuing the trial or discharging the jury.

After a recess, then Chief Judge Evans delivered his

opinion granting Petitioner’s mistrial motion. He

reiterated that during the pre-trial conference the

Deputy State’s Attorney was ordered and agreed to

instruct the police officers not to make a polygraph

reference. Further, the judge found that the officer was

not so advised. Under the circumstances, the judge

found prejudice resulted as a direct result of the Deputy

State’s Attorney’s failing to comply with his order.

On July 8, 1977, once a new trial was scheduled for

September, defense counsel filed a Motion to Dismiss

the indictment raising the defense of double jeopardy.

Numerous affidavits were filed by counsel concerning

the events which led to the mistrial. In the defense

counsel affidavits it is indicated that there was

sufficient time to accomplish the court order and

counsel never was notified by the prosecutor that there

had been difficulty in carrying out the directive. The

Deputy State’s Attorney’s affidavit admits that he was

ordered by the court to instruct the police officers and

that the particular police officer indicated that he never

was instructed pursuant to the pre-trial order.

On August 17, 1977, Chief Judge Childs, in the

Circuit Court for Anne Arundel County, held a hearing

on the Motion to Dismiss. The Judge declined to take

testimony as to the anxiety, expense, ordeal, etc., of the

5

Petitioner. Defense counsel made a proffer as to what

that testimony would be if given. Judge Childs made a

finding that Judge Evans did direct the Deputy State’s

Attorney to instruct his witnesses as indicated and the

police officer was not so instructed by the Deputy

State’s Attorney. He also found that the mention of the

polygraph in the trial, to him, did not seem prejudicial

and could have been cured by a cautionary instruction.

The Motion to Dismiss was denied. Petitioner appealed

this ruling. The Petitioner has remained out on bond

pending resolution of the appellate process.

The initial appeal was to the Maryland Court of

Special Appeals. Appellant’s brief raised the same

questions sought to be reviewed here. On June 12, 1978,

the Court affirmed the denial of Appellant’s Motion to

Dismiss. The Court recognized the “prosecutorial

overreaching” exception to the principle that a defend-

ant’s mistrial rnotion waives the double jeopardy

objection to retrial. The court focused on a rationale

that the mention of the polygraph association was of

little significance. The mistrial that resulted, the Court

concluded, was not due to overreaching. Never did the

Court examine the Deputy State’s Attorney’s conduct in

not obeying the direct court order. The court never

discussed the further contention that even if the court

found no overreaching, the test should be manifest

necessity because the Maryland law gives the defend-

ant no choice but to move for a mistrial to preserve the

question for appellate review. Consequently, the mis-

trial motion cannot act as a double jeopardy objection

waiver. Nor did the Court inquire as to whether the

appropriate steps were taken by the trial judge or

whether all the events, when considered together, bar a

reprosecution. 7

July 12, 1978, Appellant petitioned the Court of

Special Appeals for a reconsideration. The petition was

denied September 5, 1978. The mandate issued from the

6

court September 7, 1978. Appellant pursued the next

appellate step.

A Petition for Writ of Certiorari was filed in

Maryland’s highest court, the Court of Appeals. On

October 20, 1978, the Court of Appeals denied Appel-

lant’s Petition for Writ of Certiorari.

Petitioner now files a Petition for Writ of Certiorari to

this Court.

REASONS FOR GRANTING THE WRIT

I. The United States Supreme Court has never

addressed the question of the degree to which a

prosecutor’s misconduct, as opposed to mere error,

constitutes overreaching. Decisions among state and

federal courts conflict over the standard defining

“prosecutorial overreaching” and the type of prosecu-

torial conduct required to satisfy that standard.

The general double jeopardy principle that prosecu-

torial overreaching leading to a mistrial, even at the

request of the defendant, will bar retrial has become

well-established. Dinitz v. United States, 424 U.S. 600,

96 S. Ct. 1075, 47 L. Ed. 2d 267 (1976); United States v.

Jorn, 400 U.S. 470, 91 S. Ct. 547, 27 L. Ed. 2d 543 (1971).

The Supreme Court has never explained the type of

misconduct sufficient to meet the general test.

A review of the Supreme Court cases reveals a

distinction that is drawn between prosecutorial error

and prosecutorial misconduct. Dinitz v. United States,

424 U.S. 600, 96 S. Ct. 1075, 47 L. Ed. 2d 267 (1976).

There, the Court determined that mere error without

bad-faith or intent to harass the defendant or obtain a

more favorable opportunity to convict would not satisfy

the prosecutorial overreaching requirements. The mis-

conduct test remained unclear as to whether it differs.

The prosecutorial error doctrine continued to develop.

7

In Lee v. United States, 432 U.S. 23, 97S. Ct. 2141, 53

L. Ed. 2d 80 (1977), the error was an improperly drafted

indictment which was, at best, negligent. No double

jeopardy attached. A similar conclusion was the basis

of Illinois v. Somerville, 410 U.S. 450, 96 S. Ct. 1066, 35

L. Ed. 2d 425 (1973), wherein an erroneous omission of

an element of the offense in an indictment, discovered

during trial led to a mistrial. Justice Rehnquist, writing

for the majority, suggested the error — misconduct

distinction by indicating that this was not a case where

the actions of the prosecutor were tantamount to

prosecutorial misconduct. 410 U.S. at 464, The Court

has never addressed the question of what constitutes

sufficient conduct to be deemed prosecutorial miscon-

duct. The case sub judice raises that issue.

State and federal cases attempting to apply the

prosecutorial overreaching rule have split in interpre-

tating the applicable standard. Many have followed the

error rationale and some have developed a misconduct

approach, with conflicting results. Few cases, if any,

make the error — misconduct distinction clear. Which-

ever test a court adopts seems to be the only one it

recognizes as the interpretation of the general rule.

Cases finding that prosecutorial overreaching re-

quires error accompanied by bad faith or intent to

provoke a mistrial, harass the defendant, or obtain a

better chance in a new trial are frequent. Often they

concern a remark in the prosecutor’s opening statement

or closing argument. United States v. Rumpf, 576 F.2d

818 (10th Cir. 1978); United States v. McKoy, 448 F.

Supp. 826 (E. D. Pa. 1978); Piesik v. State, 572 P.2d 94

(Alaska 1977); State v. Manning, 224 N.W.2d 232 (la.

1974); People v. Wilson, 48 Ill. App. 3d 885, 363 N.E.2d

374 (1977); State v. Wesley, 347 So. 2d 217 (La. 1977).

Each concludes that the remark was mere error without

the additional element. Hence, there was no double

8

jeopardy bar to retrial. The conflict appears when other

cages are examined.

There is the situation when the prosecutor starts a

trial failing to have the necessary proof of certain facts.

In United States v. Romano, 482 F.2d 1183 (5th Cir.

1973), the prosecutor mentioned in opening argument

nine other crimes for which he had already admitted

not having proof of a connection to the defendant. The

court concluded, however, that this was an inadvertent

reference which led to the mistrial. There seems to be a

conflict with Downum v. United States, 372 U.S. 734, 83

S. Ct. 1033, 10 L. Ed. 2d 100 (1963), where the prosecutor

started trial without knowing whether his key witness

would appear. When the witness failed to appear, a

mistrial was declared. This was deemed prosecutorial

overreaching. Thus, under a similar set of facts, courts

have concluded that one is error and the other

prosecutorial misconduct.

Further conflict appears between certain jurisdictions

adopting a definition of the misconduct standard in

that some find gross negligence sufficient and others

require deliberate misconduct. United States v. Wilson,

534 F.2d 76 (6th Cir. 1976), recognized the error-

misconduct distinction and the definitional question of

gross negligence or intentional misconduct. The ques-

tion was never answered because the record was

inadequate. In United States v. Kessler, 530 F.2d 1246

(5th Cir. 1976), the Fifth Circuit expressly adopted the

gross negligence test as satisfying the definition of

overreaching. Naturally, intentional misconduct would

be more than satisfactory to be deemed overreaching.

In Kessler, the prosecutor’s attempt to introduce a rifle

which could not be attributed to the defendant through

the conspiracy theory was overreaching. The gross

negligence test was adopted in United States v. Martin,

561 F.2d 135 (8th Cir. 1977). The prosecutor read to the

9

jury from the defendant’s grand jury testimony includ-

ing irrelevant and prejudicial remarks. The court

concluded that this conduct was, at least, gross

negligence from which the court drew an inference of

bad faith. Id. at 140. See State v. O’Keefe, 135 Nw.

Super. 430, 343 A.2d 509 (1975) (deeming inexcusable

prosecutorial neglect sufficient by seeking mid-trial

continuance). The conflict in assessing prosecutorial

conduct and deeming it error or misconduct seems

epitomized by the Supreme Court of Pennsylvania. In

Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90

(1977), the plurality decision expressly adopted gross

negligence as the applicable standard. The test was

whether the prosecutor failed to satisfy professional

standards. Yet, in Commonwealth v. Potter, _— Pa.

____, 386 A.2d 918 (1978), the plurality opinion ex-

pressly rejects the gross negligence test in favor of a

requirement that the defendant show deliberate prosec-

utorial misconduct. Consequently, the split in authori-

ties analyzing which test is to apply and whether

conduct by the prosecutor is error or misconduct is

divided by an amorphous line.

The conflict is quite apparent between two cases with

similar facts where the prosecutor had agreed not to

bring out certain information. In United States uv.

Rumpf, 576 F.2d 818 (10th Cir. 1978), the prosecutor

agreed not to introduce certain prejudicial evidence.

During opening statement, the prosecutor mentioned

the forbidden evidence and a mistrial was declared.

This was deemed error without bad-faith. In contrast,

United States v. Broderick, 425 F. Supp. 93 (S.D. Fla.

1977), concerned an agreement between the prosecutor

and defense not to ask certain questions at the trial.

When the prosecutor inquired into the forbidden

subject, a mistrial was declared. This was deemed

intentional or deliberate misconduct.

10

In addition, a logical conflict in applying the error

plus bad-faith or intent to provoke a mistrial rationale

exists. “Error” normally connotes a mistake or uninten-

tional act. The additional element juxtaposes two

concepts which are inconsistent. If there is bad-faith or

intent to create a mistrial, there no longer is “error”, but

intentional conduct. The case at bar raises the issue of

to what degree must the prosecutorial conduct be

intentional, that is, grossly negligent or deliberate, to be

overreaching.

In the present case, Appellant asserts that the Deputy

State’s Attorney’s conduct was, at least, grossly

negligent or intentional misconduct. Maryland law is

clear that misconduct includes disobeying a direct court

order when one is aware of the order. Goldsborough v.

State, 12 Md. App. 346, 278 A.2d 623 (1971) (subtle

defeat of court’s mandate is contempt). In Re Kinlein,

15 Md. App. 625, 292 A.2d 749 (1972), held an attorney

in contempt for failing to carry out a pre-trial order not

to discuss the case with the press. These cases indicate

that the only intent required is to perform the offending

act. Good-faith, lack of deliberation, or mere negligence

is no excuse, but may mitigate punishment. This rule

must be considered with the principle from Maness v.

Meyers, 419 U.S 449, 95 S. Ct. 584, 42 L. Ed.2d 574

(1975), that all orders of court, especially those issued

during trial, require prompt and complete compliance.

Id. at 458-59. Thus, the failure of the Deputy State’s

Attorney to comply with the pre-trial order to instruct

his police officer witnesses not to mention the poly-

graph matter was an intentional act which rendered

him subject to contempt of court. This was a failure to

satisfy his professional responsibility as an officer of

the court. It was not a mere error without prior warning

as occurred in Muller v. State, 478 P.2d 822 (Alaska

1971) (prosecutor unaware of prior court order to

different prosecutor; failure to obey deemed error).

11

The Supreme Court should grant a writ of certiorari

on the above basis to resolve the conflict in standards

defining prosecutorial overreaching in light of the

special circumstances of this case which indicate

intentional conduct by the prosecutor rendering his

actions grossly negligent or deliberate. This issue has

never been considered by the Court previously.

II. The Supreme Court has never investigated

whether the defendant’s mistrial motion acts as a

waiver of the double jeopardy protection if the defend-

ant has no choice but to move for a mistrial. This issue

would be one of first impression.

Even if the court concludes that the Deputy State’s

Attorney’s conduct did not constitute overreaching,

then the mistrial must be examined according to the

established double jeopardy criteria of whether the

mistrial motion waived objection to reprosecution and,

if not, then was there manifest necessity for the

mistrial.

The waiver question is difficult to. resolve in light of

other Maryland authority to the effect that the defense

had no choice, under the circumstances, but to move for

mistrial. Wilhelm v. Hadley, 218 Md. 152, 146 A.2d 22

(1958).! If no mistrial motion is made, the objection to

the prejudicial conduct or remark is not preserved for

appellate review. Id.; 3 J. Poe, Pleading and Practice,

1 In Wilhelm v. Hadley, 218 Md. 152, 146 A.2d 22 (1958),

when considering the misconduct of counsel in questioning a

witness, the Court expressed the view' that when allegedly

prejudicial misconduct occurs, a mistrial motion is essential,

or objection to the conduct is waived:

“*Moreover, the view has been taken that the injured

party must at once move that a mistrial be declared, for

the reason, as stated, that he should not be permitted to

mrad upon the effect of the misconduct.’” 146 A. at

See Morrow v. United States, 101 F.2d 654, (7th Cir. 1939),

eet Dr 307 U.S. 628 (1939) (rule to this same effect

sta .

12

Pr. Section 347A (6th ed. H. Sachs, Jr. 1975). This

requirement conflicts with the waiver rationale which is

predicated upon the defendant having control over his

fate as to whether he may continue the trial preserving

an objection for appellate review or have a new trial

without placing him in double jeopardy. Dinitz v.

United States, 424 U.S. 600, 608-09, 96 S. Ct. 1075, ___.,

47 L. Ed.2d 267, 274-75 (1976). Under Maryland law,

there is no real choice as long as the defendant wants to

preserve the question for appellate review. The defend-

ant loses his control in order to protect his fundamental

rights on appeal. Consequently, no waiver can be

inferred from the mistrial motion.

In considering this question, it must be noted that the

benefit of the doubt should be given to the defendant,

that is, against waiver, if the waiver is uncertain.

Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed.

1461 (1938). The Court stated:

. . ‘courts indulge every reasonable presumption

against waiver’ of fundamental constitutional

rights and we ‘do not presume acquiescense in the

loss of fundamental rights.’” 304 U.S. at 464.

The Court of Special Appeals never discussed the

waiver issue. It is a question undecided before by the

Supreme Court. Based upon the underlying rationale of

the former jeopardy clause, as indicated by Dinitz, and

the safeguard afforded constitutional rights evidenced

by Zerbst, it is submitted that the Supreme Court would

find no waiver under the circumstances of this case.

The mistrial should be evaluated under the manifest

necessity doctrine.

III. The action of the trial judge affirmed by the

appellate court did not comply with the standards

required by the Supreme Court and conflicts with the

requirements of the Fourth and Second Circuit Courts

of Appeals.

13

Regardless of whether the prosecutorial conduct in

this case is deemed overreaching, double jeopardy may

prevent reprosecution because the trial judge made an

inadequate inquiry into the options and need for a

mistrial. United States v. Walden, 448 F.2d 925 (4th Cir.

1971), indicates that where the defendant has no real

choice but to move for a mistrial, the granting of a

mistrial motion was tantamount to a sua sponte

mistrial. Consequently, the trial judge was required to

inquire into the options open and the need for the

mistrial. See United States v. Grasso, 552 F.2d 46 (2d

Cir. 1977). Failing to carry out this independent judicial

responsibility would prohibit retrial. See United States

v. Lansdown, 460 F.2d 164 (4th Cir. 1972).

In Arizona v. Washington, 434 U.S. 1305, 98 S. Ct. 2,

54 L. Ed.2d 717 (1978), the Court indicated that as long

as the trial judge shows consideration of the double

jeopardy ramifications when faced with a mistrial

motion and does not act precipitately in granting it, he

need not use “talismanic” words in granting the

mistrial. As long as manifest necessity appears from

the record, then the discretion of the judge will be

upheld.

In the instant case, the trial judge was presented

with a mistrial motion that, under Maryland law, the

defense had to make in order to raise the issue on

appeal. The mistrial should be considered as if granted

sua sponte. Even though the defense and the prosecutor '

presented their respective positions’ on the propriety of

granting the mistrial, the trial judge did not inquire

into alternative courses of action. Nor did the judge or

any counsel show concern for the double jeopardy

consequences of a mistrial. There was no finding or

even an indication from the record that manifest

necessity existed. In fact, Chief Judge Childs, in

denying Appellant’s Motion to Dismiss stated that he

felt the mistrial was unnecessary and could have been

14

cured by an instruction to the jury. The failures of the

trial judge, if this ruling is permitted to stand, conflicts

with the standards set out in Walden, Grasso, and

Lansdown and is inconsistent with the principles of

Arizona v. Washington.

IV. The Supreme Court has never examined the

totality of circumstances in which the factors of no

choice but mistrial motion exists for the defendant, a

trivial incident occurs, and the trial judge fails to

inquire into alternative solutions combine to invoke the

double jeopardy bar to reprosecution.

There is still another manner in which it may be

concluded that retrial of the appellant is barred by the

double jeopardy clause. This might be termed the

totality of the circumstances approach. In United

States v. Walden, 448 F.2d 925 (4th Cir. 1971), the court

discussed the lack of real choice for the defendant but to

move for mistrial, the failure of the judge to seek

alternatives, hold a hearing, and make findings, in

addition to “... the nature of the relatively trivial

incident that triggered the abortion (of the trial). . . .”

448 F.2d at 930. All these factors, when added together,

amounted to compelling reason to find double jeopardy

barred retrial.

If in the instant case, the mention of polygraph,

under the circumstances, is deemed trivial and insuffi-

cient to have caused the mistrial, then the Court can

still determine that double jeopardy bars retrial.

Certainly, the totality of the trial judge’s directive to the

Deputy State’s Attorney, the failure of the Deputy

State’s Attorney to comply with the court’s directive,

the importance the defense placed on the issue such

that a safeguard was sought and obtained prior to trial,

the findings of two judges that the directive was made

and not met with compliance, the misconduct of the

State’s Attorney or, at least, the gross negligence (or

15

even just the admitted negligence), the prejudice

perceived by the trial judge, the lack of real choice for

the defendant, and the lack of investigation into

alternatives, no hearing, or findings by the court and

the anxiety, expense, and delay experienced by the

Petitioner add up to a sum of more than the parts. As a

totality, the circumstances warrant a finding that

double jeopardy bars reprosecution of the Appellant.

Again, this question has never been before the

Supreme Court in this context. The Court of Special

Appeals did not discuss this argument.

CONCLUSION

For the reasons set forth above, the Petitioner

respectfully urges the Court to issue a Writ of Certiorari

to the Court of Special Appeals of Maryland.

Respectfully submitted this day of

NRE

I HEREBY CERTIFY that on this _ day of

, 197 , a copy of the foregoing Petition for

Writ of Certiorari was mailed to the attorney General’s

Office, 1 South Calvert Street, Baltimore, Maryland

21202.

WILLIAM A. FRANCH

la

APPENDIX A

Mabel Darcell Loveless

v.

STATE OF MARYLAND

In the Court of Appeals of Maryland

Petition Docket No. 301

September Term, 1978

(No. 992, September Term, 1977

Court of Special Appeals)

ORDER

Upon consideration of the petition for a writ of

certiorari to the Court of Special Appeals in the above

entitled case, it is

ORDERED, by the Court of Appeals of Maryland,

that the petition be, and it is hereby, denied as there

has been no showing that review by certiorari is

desirable and in the public interest.

Judge Eldridge did not participate in the considera-

tion of this petition.

/8/ Ropert C. Murpny,

Chief Judge.

Date: October 20, 1978.

2a

APPENDIX B

MANDATE

Court of Special Appeals of Maryland

No. 992, September Term, 1977

Mabel Darcel Loveless

Vv.

State of Maryland

June 12, 1978 — Opinion by Moylan, J. Judgment

affirmed; costs to be paid by appellant.

July 12, 1978 — Petition for Reconsideration filed by

counsel for appellant.

September 5, 1978 — Petition for Reconsideration

denied by Court.

September 7, 1978 — Mandate issued.

STATEMENT OF Costs:

In Circuit Court: for Anne Arundel County

Menai iheilivisidisdastiebh iledrsdepsceeiaetecesvibientilelteeisainnass $ 25.00

Stenographer’s Costs .........cccccsssseessseeesseeesees $346.00

In Court of Special Appeals:

Filing Record on Appeal ...........csccseeeeeeeees $ 30.00

Printing Brief for Appellant ..................00 $518.94

BITTE. acini inves sacencdenadaweasinbiionqnatiahedespoanstons

Portion of Record Extract — Appellant ...

Printing Brief for Cross-Appellee ...............

Printing Brief for Appellee ..............cccee $ 60.00

3a

Portion of Record Extract — Appellee ......

Printing Brief for Cross-Appellant .............

STATE Or MARYLAND, Sct:

I do hereby certify that the foregoing is truly taken

from the records and proceedings of the said Court of

Special Appeals.

In testimony whereof, I have hereunto set my hand

as Clerk and affixed the seal of the Court of Special

Appeals, this seventh day of September A.D. 1978.

Howarp E. FRIEDMAN

Clerk of the Court of Special Appeals of Maryland.

Costs shown on this Mandate are to be settled between

counsel and NOT THROUGH THIS OFFICE.

APPENDIX C

Mable Darcel Loveless

v.

State of Maryland.

No, 992.

Court of Special Appeals of Maryland.

June 12, 1978.

Defendant, being prosecuted for murder and related

offenses, claimed that her impending trial would place

her for second time in jeopardy in violation of her

constitutional rights. The Circuit Court, Anne Arundel

County, E. Mackall Childs, J., denied motion, and

defendant appealed. The Court of Special Appeals,

Moylan, J., held that witness’ mention of polygraph

operator was not sufficient to have caused a mistrial

4a

nor was it of such overreaching proportions as to bar

retrial.

Affirmed.

1. Criminal Law ~ 867

Defendant who has moved for mistrial waives, by

that very motion, all objection to a subsequent retrial.

2. Criminal Law ~ 204

If defense is placed in untenable situation where it

has no choice but to request a mistrial because of

prosecutorial or judicial “overreaching,” then the mere

fact that defense requested the mistrial will not operate

as a waiver of later double jeopardy claims. U.S.C.A.

Const. Amends. 5, 14.

3. Criminal Law ~ 182, 190

Mere error, judicial or prosecutorial, even where it is

grievous enough to cause a mistrial or to cause an

appellate reversal, will not bar a subsequent retrial.

4. Criminal Law ~ 867, 1189

Except in those rare instances where prosecution or

court has deliberately sabotaged a trial that was going

badly, available redress where an irremediable error is

recognized in mid-trial is declaration of a mistrial

followed by a retrial; the available redress where a

reversible error has occurred in a trial which runs its

full course and results in a conviction is a reversal

followed by a retrial.

5. Criminal Law ~ 161

For double jeopardy purposes, it makes no difference

whether former jeopardy runs its full course or is

aborted before the verdict. U.S.C.A. Const. Amends. 5,

14.

6. Criminal Law ~ 190

The only time that retrial is barred under double

jeopardy principles is when there has been such

prosecutorial or judicial overreaching as to have

amounted to a deliberate and intentional sabotaging of

the earlier trial. U.S.C.A. Const. Amends. 5, 14.

5a

7. Criminal Law ~ 190, 867

Fact that police officer, in response to question on

cross-examination put by defendant’s counsel at trial

for murder and related offenses, mentioned that State’s

witness had spent a period of time with “the polygraph

operator” was not sufficient error to have caused a

mistrial nor was it of such “overreaching proportions”

as to bar retrial. U.S.C.A. Const. Amends. 5, 14.

8. Criminal Law ~ 695%

Mere mention of a “polygraph” at trial for murder

and related offenses could have been cured by approp-

riate instructions by court at that time. U.S.C.A. Const.

Amends. 5, 14.

William A. Franch and Ronald H. Jarashow, with

whom were Joseph P. Manck and Goldsborough,

Franch & Collett, Annapolis, on the brief, for appellant.

W. Timothy Finan, Asst. Atty. Gen., with whom were

Francis B. Burch, Atty. Gen., Warren B. Duckett, Jr.,

State’s Atty., for Anne Arundel County and David R.

Cuttler, Asst. State’s Atty. for Anne Arundel County on

the brief, for appellee.

Argued before GILBERT, C. J., and MOYLAN and

MELVIN, JJ.

MOYLAN, Judge.

This case should not be here. It illustrates for the ten

thousandth time what happens when everyone over-

reacts. It typifies the painful procedural hangover that

follows initial excess as even the law must ask in the

cold light of the morning after, “What do we do now?”

In the most basic of terms, a criminal trial was

prematurely aborted when everyone pressed the panic

button because somebody said a bad word in a

courtroom. Upon this grist, the appellate mills may now

grind for a season or two.

The appellant, Mable Darcel Loveless, now claims

that her impending trial in the Circuit Court for Anne

6a

Arundel County for murder and related offenses will

place her for a second time in jeopardy in violation of

her constitutional rights guaranteed by the Fifth and

Fourteenth Amendments. Benton v. Maryland, 395 U.S.

784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969). This

particular procedural history will flow more clearly if

we begin in the present and move backward.

This appeal is from the ruling of Judge E. Mackall

Childs in the Circuit Court for Anne Arundel County

denying the appellant’s Motion to Dismiss the indict-

ment against her on the grounds of double jeopardy.

That motion was made when the State scheduled a

retrial in this case for September, 1977. The scheduling

of the retrial had followed an earlier mistrial. The

appellant first went to trial on these charges on March

8, 1977. Following two days of testimony before a jury,

a police officer, in response to a question on cross-

examination put by appellant’s counsel, mentioned that

a State’s witness had spent a period of time with “the

polygraph operator.” Although the jury was carefully

screened from observing the scene, legal pandemonium

ensued. The appellant moved for a mistrial. The trial

judge ultimately granted the motion.

[1] Subject to the narrow limitation yet to be

discussed, it is axiomatic that a defendant who has

moved for a mistrial waives, by that very motion, all

objection to a subsequent retrial. United States v. Tateo,

377 U.S. 468, 467, 84 S. Ct. 1587, 1589, 12 L. Ed. 2d 448,

452 (1964); United States v. Jorn, 400 U.S. 470, 91 S. Ct.

547, 27 L. Ed. 2d 543 (1971); United States v. Dinitz, 424

U.S. 600, 607-608, 96 S. Ct. 1075, 1079-1080, 47 L. Ed. 2d

267, 273-274 (1976); Cornish v. State, 272 Md. 312, 318,

322 A.2d 880; Jourdan v. State, 275 Md. 495, 508, 341

A.2d 388; Baker v. State, 15 Md. App. 73, 289 A.2d 348;

ae and Hill v. State, 32 Md. App. 283, 289, 362 A.2d

101.

[2, 3] There is one limitation on the foreclosing effect

of a defense request for a mistrial. If the defense is

placed in an untenable situation where it has no choice

but to request a mistrial because of prosecutorial or

7a

judicial “overreaching,” then the mere fact that the

defense requested the mistrial will not operate as a

waiver of later double jeopardy claims. A critical

distinction is made, however, between deliberate “pro-

secutorial or judicial overreaching,” on the one hand,

and “prosecutorial or judicial error,” on the other hand.

Mere error, judicial or prosecutorial, even where it is

grievous enough 1) to cause a mistrial or 2) to cause an

appellate reversal, will not bar a subsequent retrial.

[4, 5] Except in those rare instances where the

prosecution or the court has deliberately sabotaged a

trial that was going badly, the available redress where

an irremediable error is recognized in mid-trial is the

declaration of a mistrial followed by a retrial; the

available redress where a reversible error has occurred

in a trial which runs its full course and resr'ts in a

conviction is a reversal followed by a retrial. For double

jeopardy purposes, it makes no difference whether the

former jeopardy runs its full course or is aborted before

the verdict. The broad reasoning undergirding this

policy decision was cogently set forth by Justice Harlan

in United States v. Tateo, supra, at 377 U.S. 466, 84 S.

Ct. 1589, 12 L. Ed. 2d 451:

“While different theories have been advanced to

support the permissibility of retrial, of greater

importance than the conceptual abstractions em-

ployed to explain the Ball principle are the

implications of that principle for the sound

administration of justice. Corresponding to the

right of an accused to be given a fair trial is the

societal interest in punishing one whose guilt is

clear after he has obtained such a trial. It would be

a high price indeed for society to pay were every

accused granted immunity from punishment be-

cause of any defect sufficient to constitute reversi-

ble error in the proceedings leading to conviction.

From the standpoint of a defendant, it is at least

doubtful that appellate courts would he as zealous

as they now are in protecting against the effects of

improprieties at the trial or pretrial stage if they

knew that reversal of a conviction would put the

8a

accused irrevocably beyond the reach of further

prosecution. In reality, therefore, the practice of

retrial serves defendants’ rights as well as society’s

interest.”

[6] The only time that retrial is barred under double

jeopardy principles is when there has been such

prosecutorial or judicial overreaching as to have

mounted to a deliberate and intentional sabotaging of

the earlier trial. United States v. Jorn, supra, 400 U.S.

at 485, 91 S. Ct. at 557, 27 L. Ed. 2d at 556; United

States v. Dinitz, supra, 424 U.S. at 611, 96 S. Ct. at 1081,

47 L. Ed. 2d at 276; Thompson v. State, 38 Md. App. 499,

502, 381 A.2d 704. See also City of Tucson v. Valencia,

21 Ariz. App. 148, 517 P.2d 106 (1973); State v. Marquez,

113 Ariz. 540, 558 P.2d 692, 694-695 (1976); People v.

Hathcock, 8 Cal. 3d 599, 105 Cal. Rptr. 540, 504 P.2d 476

(1973).

[7] In the case now before us, we do not perceive

prosecutorial error, if any, sufficient even to have

caused a mistrial, let alone of such “overreaching”

proportions as to bar retrial. The misadventure that

brought about the mistrial in this case is regrettable,

but at most venial. Indeed, the exaggerated reaction is

as difficult to appreciate as is the occurrence of the

event reacted to. On the morning of trial, March 8, 1977,

a chambers conference was called by the judge to take

up a number of matters. The first item discussed was

the questions to be asked on voir dire. A defense request

for a change of venue was then discussed and denied. A

defense request for a continuance — intertwined with

discovery issues — was discussed and denied. The last

item on the agenda was a defense request that the judge

order the prosecutor to tell his witnesses not to mention

that George Hendricks, a State’s witness, had taken a

polygraph test. The judge so ordered. The conference

adjourned and everyone moved into the courtroom

where the jury selection process began. At the first

break, the Deputy State’s Attorney called together his

witnesses then present and passed on the admonition

about the polygraph test. The State had summoned

9a

sixteen witnesses in all. The Deputy State’s Attorney

could not later recall whether Detective Staley, who was

scheduled to appear on the second day of trial, was

present or not. Detective Staley indicated that he had

not been present and had not heard the admonition.

On the second day of trial, Detective Staley testified

for the State. Nothing untoward happened. Then the

cross-examination began. In the course thereof, the

following transpired:

“Q. Alright. Now, how long did you have Mr.

Hendricks in custody or were you with him? A.

We were with him with the exception of the time he

was allowed with his father and the time that he

was with our polygraph operator . . . we were with

him from one o’clock in the afternoon, well, we had

a problem in the afternoon. After we had inter-

viewed Mr. Hendricks, it was... .”

[8] With the uttering of the ineffable word “poly-

graph,” it was as if a rattlesnake had been tossed into

1 The mere mention of the word “polygraph” — or, worse

yet, “lie detector” — seems to have a more leprous quality in

the popular mythology of the trial bar than would be

indicated by the tone of the few reported decisions dealing

with the subject. There, a greater sense of equanimity

prevails, recognizing that a relatively new and still experi-

mental scientific technique has not yet received a sufficient

level of “general acceptance” in the scientific community to

warranty present admissibility, but that work is being done

and the possibility of future utility is not forever foreclosed. It

is but a specific instance of the broader evidentiary

phenomenon of “Relevance and Its Counterweights.” In

Rawlings v. State, 7 Md. App. 611, 256 A.2d 704, we affirmed

the discretionary decision of a trial judge not to admit the

results of a polygraph test but nonetheless noted “the

assertion of some authorities that advances in the science or

art of lie detecting are such as to make the results of lie

detector tests, when oe under Fv aed conditions, accepta-

ble as evidence. See McCormick, Evidence, § 174; Kaplan, The

Lie Detector: An Analysis of Its Place in the Law of

Evidence, 10 Wayne Law Review 381; and Pfaff, The

pee An Invaluable Judicial Aid, 50 A.B.AJ. 1130

(l 9

10a

a tea party. A bench conference, a defense motion for

mistrial opposed by the State, a recess to consider the

circumstances, and the final declaration of a mistrial

followed in short order. At the later hearing, now before

us for review, Judge Childs acutely observed:

“Frankly, I do not believe that the mere mention

of a polygraph could not have been cured by

appropriate instructions by the court at that time

and the case was permitted to proceed.”

We agree with that assessment by Judge Childs. In

both Lusby v. State, 217 Md. 191, 141 A.2d 893, and

Kelly v. State, 16 Md. App. 533, 298 A.2d 470, key

prosecuting witnesses had gone further. They brought

out that they had actually taken “lie detector” tests,

whereas in this case the reference was simply to the

prosecuting witness’s having been with a “polygraph

operator.” Moreover, the testimony had been elicited by

the State’s Attorney (in Lusby) ard by the judge (in

Kelly), whereas in this case the testimony was elicited

in cross-examination by defense counsel. In both Lusby

and Kelly, it was the holding of the Court that the trial

judge had not abused his discretion in refusing to

declare a mistrial. The damage in each case was

assessed as being capable of ready repair by an

appropriate admonition to the jury.

In assessing the nature of the mistake which

precipitated the declaration of a mistrial in this case,

Judge Childs characterized the testimonial breach as,

at most, a slip of the tongue. If the Deputy State’s

Attorney was in error at all in failing to notify this

particular witness of the court’s admonition, the failing

was one of simple inadvertence or negligence. Indeed,

the defense cross-examination elicited the reference to

the tabooed subject. Judge Childs pointed out that the

examination dealt with “an area which the court feels

that the defense had reason to know [was one where]

this sensitive testimony may have come to light.” If we

may analogize to the tort field, if the Deputy State’s

Attorney here was negligent, the defense was also

guilty of contributory negligence (or, perhaps, an

a es

lla

assumption of risk). Even assuming such negligence as

would necessitate a mistrial, it would still not be an

instance of such prosecutorial overreaching as to bar a

retrial. Lee v. United States, 432 U.S. 23, 97 S. Ct. 2141,

53 L. Ed. 2d 80 (1977); Muller v. State, 478 P.2d 822, 827

(Alaska, 1971).

In this case, there was a profligate rush to mistrial.

The defense overreacted and, in turn, persuaded the

trial judge to overreact. In this regard, the defense got

more than it deserved. We perceive no prosecutorial

error serious enough to have necessitated the mistrial; a

fortiori, we see nothing remotely approaching the

prosecutorial “overreaching” that would be necessary

to engage the gears of the double jeopardy clause and to

bar a retrial of this appellant.

Judgment Affirmed;

Costs to be paid by Appellant.

APPENDIX D

ORDER

The Defendant’s Motion to Dismiss having been filed,

memorandum and affidavits having been read and

considered, and arguments of counsel having been

heard, it is this 17th day of August, 1977.

ORDERED, That the same be, and it is hereby

Denied, the Court being of the opinion that the conduct

complained of by the Defendant did not constitute

prosecutorial overreaching or misconduct which would

bar a retrial under the double jeopardy provision of the

Fifth Amendment.

s/ E. MACALL CHILDs,

Judge.

12a

APPENDIX E

MOTION TO DISMISS. HEARING HELD

August 17, 1977.

Extract of Opinion of Chief Judge Childs:

My feeling, Gentlemen, is that the facts and circum-

stances of this case, as I understand them to be from

the affidavits filed, that it is correct that Judge Evans

did request of the prosecutor to advise the police officers

in the case that they not mention polygraph, and

apparently it is conceded that the police officer who on

cross examination by the defense came out with this

mention of the polygraph without mentioning the

results. Had not at that time or immediately proceeding,

or between the time of the trial and the actual time of

testimony, had not been specifically warned by the

prosecutor again, and I say again because I accept as

true the statement by Mr. Cuttler that in discussing this

previously with this particular police officer he is

certain that the matter of the seriousness of the

mentioning of polygraph was brought up and discussed

several times. Now this court can not bring itself to

believe that this is an example of prosecutorial

misconduct or overreaching which is the topic of the

numerous cases mentioned, both in the Supreme Court

and in the State courts, which would justify under the

circumstances the implication of the principle of double

jeopardy. I note first and foremost that this was not on

direct examination. It was brought out in testimony on

cross examination, in an area which the court feels that

the defense had reason to know that this sensitive

testimony may have come to light. It was not some-

thing that was an apparent purposeful disregard of

specific instructions of the court on the part of the

prosecutor, and this court is of the feeling that Lusby

controls.

Frankly, I do not believe that the mere mention of a

polygraph could not have been cured by appropriate

—

13a

instructions by the court at that time and the case was

permitted to proceed. The court also notes that this was

the result, the — apparently my predecessor on the

bench was swayed by argument of defense counsel on

defense motion in spite of the language in Lusby which

seems to indicate that the manner in which the

polygraph was mentioned is not something which could

have tained the entire proceedings and that a simple

admonition to the jury could have taken place. I think

Lusby actually is authority for that proposition. Why

Judge Evans decided otherwise I don’t know because I

haven’t talked to him and apparently there is no

written opinion as to why he ruled as he did in the face

of our own Court of Appeals in the Lusby case.

Without a doubt this is a case which has attracted a

great deal of notoriety. The accusations, if proven,

constitute an extremely serious breach of the law.

Because of the nature of the charges and the initial

publicity, at least, this court feels that a matter so

serious as the dismissal of all charges based on a mere

lapsus lingui, I’ll choose to call it, on the part of the

police officer, who perhaps should have known better

but forgot, had best be decided by the man power of an

appellate court rather than the opinion of one nisi prius

judge, who certainly claims no, or lays claims to no

policy of infallibility. I think that if an appeal is

indicated then the appeal certainly should be taken. It

will not thereby, as far as I can tell, be charged against

the State as such. It may be, if I’m deemed to be wrong

by the appellate court. I do believe that because of the

language in Lusby this is a matter which should not be

facing us now. Perhaps I’m going over ground that I’ve

previously covered but simply to reiterate, the testim-

ony complained of was elicited on cross examination in

an area in which the defense knew was a sensitive one.

The results of the polygraph examination were never

mentioned. There may be an implication there but the

results were not mentioned and as far as I’m able to

determine the Lusby case controls under the situation,

and the Court of Appeals has held, by virtue of that,

l4a

that instructions to the jury could have cured the matter

then and there and the case could have proceeded to its

result, and for that reason the motion to dismiss the

indictments is hereby denied, and the court will sign an

order to this effect.

* + * + + *

I hereby certify the aforegoing transcript is a true and

bona fide copy of the proceedings held in open court in

the case of the State of Maryland v. Mabel Darcel

Loveless on the 17th day of August, 1977.

SHIRLEY DUDLEY,

Court Reporter.

APPENDIX F

MISTRIAL — MARCH 9, 1977,

OPINION OF THEN CHIEF JUDGE EVANS

COURT’S DECISION

(Court) Gentlemen, I’ve read the cases you all have

referred to and I’ve given the matter a lot of thought.

Preliminarily, how this objection or motion for a

mistrial arose is the fact that the officer was questioned

as to how long Hendricks, that is George Hendricks, the

State’s witness, had been in his custody and I think he

went into some explanation about taking a statement

and he was with them with the exception of the time he

was with a polygraph operator and it was at this point

that the motion was made. Prior to trial as a

preliminary matter, there was ... this question was

raised as to the polygraph matter. It seems that there

had been an agreement for. . . between Hendricks and

the State that would not oppose his case being

15a

transferred to juvenile court on the condition that he

testify for the State and that he also take a polygraph

test and prior to trial as a preliminary matter, this

question came up because the defense said they wanted

to question him as to why he was testifying, what the

agreement was. And after some discussion the defense

wanted to get in everything except the polygraph test

and the State opposed it. The compromise was that they

would not be questioned as to the agreement, that the

State would also instruct the State’s witnesses, that is,

the officers that the polygraph should not be mentioned

and I gather from the statements of counsel here this

morning the officer was not advised as to this. Now,

this does not go as to actually whether there was

prejudice or not prejudice but this is a preliminary

matter. The real question is, was this statement by the

officer prejudicial to the defendant’s case. The defend-

ant... not the defendant, Hendricks, as I see the case

at this point, is the heart of the State’s case and he is

the one that was with the polygraph operator and what

would be any inference that the jury might draw from

the fact that they heard this mention of nolygraph. In

other words, would it be prejudicial to the defendant.

Now, the State has referred to a case of Luskin versus

State in which there was mention that a polygraph test

was given and I might add here the officer didn’t

mention whether one was given but he mentioned that

the ... he was with a polygraph operator for some

time. Of course, I think the only natural inference you

could draw from that would be he’s with the polygraph

operator to take a test. As indicated by the State, he

might want a cup of coffee or something .. . if he

wanted coffee, I’m sure that the officers would have

supplied that without going to the polygraph operator.

The next thing is what inference would the jury get

from this. Now, the Luskin case was decided twenty

years ago. It was in 1957. . . when it was mentioned,

the Judge immediately sustained the objection and

instructed the jury to ignore the question, that is, that

the polygraph test had been given. And this was

affirmed by the Court of Appeals. In this case, 1977, it’s

l6a

twenty years later. And during that period of time and I

think the polygraph is in a different light than it was in

1957. It wasn’t very well known at that time by the

general public and it wasn’t very well accepted. Where

today, as far as the scientific community is concerned,

it has much greater stature and is accepted and as far

as the general public is concerned it is much better

known and accepted because of the publicity that it has

received through the various news media, TV, radio,

pictures and what not. So, I think the inference that

might be drawn today compared with the one that

would have been drawn twenty years ago is quite

different. I might add, in the State of Maryland, of

course, the law is that the results of the polygraph test

are not admissible and it’s within the discretion of the

Court to determine whether there is prejudice, that is, to

the defendant by the mention of this polygraph. And I

think, looking at the totality of the circumstances, I feel

that there is prejudice to the defendant.

(Mr. Cuttler) Your Honor, at this point, excuse me for

interrupting you but you’re obviously going to grant the

mistrial. . .

(Court) Yeah.

(Mr. Cuttler) — at this point. May I make one request?

(Court) Yes.

(Mr. Cuttler) Could we ask the jurors individually, one

at a time, whether they heard from this officer where

the defendant had been — because I don’t think the

way the testimony came out, that they would realize

that he had been with the polygraph operator. And I

would ask that the Court—

(Court) Well, we played the tape back and it was very

clear.

(Mr. Cuttler) I realize that.

(The Court) No, I will deny that request. It was —

there wasn’t any question that it was mentioned.

17a

(Mr. Cuttler) No, I’m not questioning that it was

mentioned, Your Honor, I’m questioning whether there

was actual prejudice on the party of the jury. They

might not have heard it.

(The Court) No. I don’t think that’s necessary. You

made me forget where I was. But I think for those

reasons I| will grant the motion for a mistrial.