Hubbard and Earl, Jr. v. State of Maryland, No. 7, September Term, 2006.
CRIMINAL PROCEDURE – DOUBLE JEOPARDY – MANIFEST NECESSITY:
Petitioners sought review of a judgment of the C ourt of Special Ap peals affirming the trial court’s
granting of a mistrial based on manifest necessity. The trial judge had declared a mistrial over
Petitioners’s objections because a witness, whose identification testimony against one defendant had
been suppressed, was to be called by the State to testify against the co-defendant in a joint trial. The
Court of Appeals reversed the intermediate appellate court, and held that the trial judge erred by
declaring that a mistrial w as manife stly necess ary. Because a reasonable alternative to declaring the
mistrial existed, that being suppressing th e witness’s testimony, the mistrial was not m anifestly
IN THE COURT OF APPEALS
September Term, 2006
KEVIN LEON HUBBARD AND
GARY EUGENE EARL, JR.
STATE OF MARYLAND
Opinion by Battaglia, J.
Filed: October 17, 2006
Petitioners, Kevin Leon Hubbard and Gary Eugene Earl, Jr., seek review of a
judgment of the Court of Special Appeals affirming the trial court’s granting of a mistrial
based on ma nifest n ecessity. The trial judge had declared a mistrial over Petitioners’s
objections because a witness, whose identification testimony against one defendant had been
suppressed, was to be called by the S tate to testify agains t the co-def endant in a joint trial.
We s hall h old that th e jud ge er red b y decl aring tha t a mi strial was manife stly ne cess ary.
Petitioners were ind icted on D ecembe r 11, 2002 , in a twenty-co unt indictm ent in
which they were charged, individually and collectively, with one count of attempted seconddegree murder in violation of Section 2-204 of the Criminal Law Article, Maryland Code
(2002); two counts of first-degree assault in violation of Section 3-202 of the Criminal Law
Article, Maryland Code (2002 ); two counts of second-degree assault in violation of Section
3-203 of the Crim inal Law Article, Maryland Code (2002); two counts of robbery with a
dangerous weapon in violation of Section 3-403 of the Criminal Law Article, Maryland Code
(2002); one count of first-degre e burglary in violation of Section 6-202 of the Criminal Law
Article, Maryland Code (2002); one count of third-degree burglary in violation of Section
6-204 of the Crim inal Law Article, M aryland Cod e (2002); o ne count o f theft over fiv e
hundred dollars in violation of Section 7-104 of the Criminal Law Article, Maryland Code
(2002); one count of theft under five hundred dollars in violation of Section 7-104 of the
Criminal Law Article, Maryland Code (2002); two counts of robbery in violation of Section
3-402 of the Criminal Law Article, Maryland Code (2002); one count of use of a handgun
in the commission of a crime in violation of Section 4-204 of the Criminal Law Article,
Maryland Code (2002); and counts for conspiracy to commit first-degree assault, armed
robb ery, burglary, theft over five hundred dollars, robbery, as well as conspiracy to use a
handgun in the com mission of a crime. Ed ward W allace Ben son, III also w as charged in
connection with the same crime.1
Subsequently, Petitioners filed separate motions to suppress photograph identifications
made by various witnesses who had identified either or both of them. The Circuit Court for
Cecil County held a pre-trial suppression hearing, which lasted several days, concern ing both
out-of-court and prospective in-court identifications by four witnesses – the two victims,
Damon Twyman and Da niel Drape r, and two other eyewitnesses, Alisabel Ortega and
Sabrina Rogers. Most significant for this appeal, Ms. Rogers photographically identified
seven different individuals at different times before trial as being tied to or involved in the
incident, including the three c o-defend ants, althoug h the crime purported ly involved on ly
At the suppression hearing, Ms. Rogers’s out-of-court and in-court identifications of
Earl were ruled to be inadmissible because the photographic identification of Earl was
obtained through impermissibly suggestive procedures and was not in depende ntly reliable
enough to permit an in-court identification. The trial judge noted that Ms. Rogers was shown
six photograph arrays in which she identified six different individuals. Ms. Rogers was then
Benson is not a party to this appeal. Prior to jury selection and impaneling, his case
was seve red from the other ca se. Subseq uently, Benso n went to trial and was found guilty
of armed robbery and related charges. Benson appealed to the Court of Special Appeals,
which affirm ed the c onvictio ns in an unrepo rted op inion.
shown a seventh array, which was the same as photo array number three, but modified so that
Earl’s picture was sub stituted. Durin g this display, the d etective told Ms. Rogers the y were
still looking for the third individual involved. The trial court found that Ms. Rogers’s out-ofcourt identification was impermissibly suggestive because of the detective’s comment and
because Ms. Ro gers had e ffectively ruled out every othe r person in th e seventh p hotograp hic
array prior to the substitution of Earl’s picture. The judge also found that Ms. Rogers’s
identification of Earl was not independently reliable enough to allow an in-court
identification because Ms. Rogers had previously identified an individual who was not
involved in the crime as the third suspect, who she also thereafter iden tified as Earl.
Following the court’s ruling, the State asked for clarification:
[STAT E]: The Court indicated that it was suppressing the
identification of Sabrin a Rogers as to both in-court and -- I’m
sorry, both out-of-court and in-cou rt. I have to say the State did
not feel that there was evidence presented to rise to the level of
taint; therefore, the State did not try to elicit any information
from her a s to re liabi lity. And while the suppression hearing is
concluded and I und erstand and accept the C ourt’s ruling w ith
respect to the out-of-court identification , the concern that I have
is that I believe that th e State ma y be able to estab lish reliability
as to the in-court identification.
[COU RT]: Well, I think, you know, that I don’t want to have
more process than is due rather than less process than is due
most of the time, b ut I think your argument was and I think it’s
correct that the burden in the first instance is on the defense to
show constitutional or show impermissible suggestion; but the
burden clearly, by all the case law that everybody has cited and
I’ve looked at in this case indic ates that if, in fa ct, they make it
on that issue, then the burden shifts to the State by clear and
convincing evidence; and in my opinion they did make it on
that. I understan d that in your op inion they did not. And you
might be righter that I, but nevertheless it did shift and Sabrina
Rogers was here and was, in fact, examined. And it’s my
finding that the evidence did not meet your burden by clear and
convincing evidence at this point. Basically the suppression
hearing is over.
[STATE]: And to the extent that the exclusion of an out-ofcourt identification does not ipso facto e xclude an in-court
[COUR T]: If it’s got a separate basis.
[STAT E]: I want to let everyone know that if that’s the case, I
would certainly be trying to bring it forward at the time of trial.
And, again, I understand the C ourt’s ruling today and that’s
what we -[COU RT]: Well, at this point I don’t even kn ow if I’ll be the
trial judge. So whoever the trial judg e is, I suppose if you want
to raise that issue I’ll have to deal with it, but my ruling is that
[the in-court identification is] suppressed.
The judge den ied the mo tion to suppress Ms. Rogers’s identification of Hubbard and denied
both Petitioners’s motions to suppress the identifications from Mr. Draper, Mr. Twyman, and
Ms. Ortega.2 The State persisted in its joint prosecution of Hubbard and Earl. The jury was
selected and swo rn before th e same jud ge that con ducted the suppression hearing. After
opening statements from the State and both Petitioners’s counsels, the State requested the
opportun ity to establish a separate and indep endent basis for an in-co urt identification of Earl
On the day of trial, the same judge recon sidered the suppression rulings and also
suppressed Ms. Ortega’s out-of-court identification of Hubbard, but allowed the State to put
Ms. Ortega on the witness stand to attempt to establish a separate and independent basis for
an in-court identification.
by putting Ms. Rogers on the witness stand. The trial judge granted the request, and after the
jury was excused for the day, the State called M s. Rogers to testify, but the trial court ruled
that there was no separate and independent basis for an in-court identification and granted
Earl’s motion to suppress.
The following morning, before the jury was brought into the co urtroom, the State
indicated that it was go ing to call Ms. Rogers as a witness and raised a possible conundrum.
The prosecutor was concerned that when Ms. Rogers testified against Hubbard, H ubbard’s
attorney would c ross-exam ine Ms. R ogers base d on her n umerou s identifications of
individuals other than Hubbard, which was concededly appropriate; the prosecutor insisted
that she should have the a bility to rehabilitate Ms. Rogers by showing that she had identified
Earl, an identification which had been suppressed by the trial court. When Earl’s attorney
objected that such inquiry would b e fundam entally unfair to Earl, the trial judge agreed, and
stated that a curative instruction would not be helpful, and ordered that no party ask Ms.
Rogers a ny questions a bout identif ying Earl. 3
[STAT E]: One oth er matter, Y our Hon or, that it appears to me
to be a bit prob lematic. Th at is the court has excluded Ms.
Rogers’s identification of Gary Ea rl.
[COU RT]: O ut-of-cou rt and in-cou rt.
[STAT E]: Both in-court and out-of-court. It is my assumption
that [Hubb ard’s Attorn ey] will, in cross-examination of Sabrina
Rogers, bring to the attention of the jury that there were
numerous identifications made by Ms. Rogers of persons other
than his clien t.
The Court, sua sponte, then raised the specter of a severance:
[COU RT]: I think in this joint trial, it’s incumbent upon me not
to let the State or the other defendant undo the suppression
ruling in regard to Gary E arl. Now , the a ltern ative , let m e say,
because we have no t yet heard a witness, although we did swear
the jury, might be to sever these trials, but I’m not sure whether
we get tha t or not.
[HUB BARD ’S ATTO RNEY ]: I think, Your Honor, that’s the
only, that’s the only alternative, because f or the court to tell Mr.
While that’s fine for [Hubbard’s Attorney], the situation is that
I would wa nt to try to rehabilitate, if w e get to that point of those
questions being asked, rehabilitate Ms. Rogers b y showing th at,
in fact, she had id entified ano ther person who is a defend ant in
this case, that being Mr. Earl. And , of course, th at’s obviou sly
very prejudicial toward Mr. Earl. And I’m bringing it to the
court’s attention no w becau se, again, ob viously in a joint trial,
evidence can be used or heard as against one defenda nt while it
may not be a dmissible ag ainst anothe r defenda nt.
[EARL ’S ATTO RNEY ]: Your Hon or, that would require some
sort of curative instruction from you and I don’t know how you
do that and get that through these people’s minds.
[STATE]: And I agree.
[EARL ’S ATTO RNEY ]: That’s fundame ntally unfair to Mr.
[COU RT]: Yeah, I agree, I don’t know how that can be done
and cured. A nd while it’s certa inly true that if M r. Earl in his
defense or in his cross-examination of Ms. Rogers opens that
door, then he op ens that doo r, but I’m no t going to pe rmit the
State to open the door or the defendant Hubbard to open that
door. I’m going to order nobody ask her any q uestions about
identifying Gary Earl, be cause to do otherwise complete ly
undoes the suppression ruling.
Hubbard that he can’ t bring to the ju ry’s attention that
identifications were made and seven rather than six were made
by this witness, which is, in fact, the truth, and that is an
exculpatory piece of evidence to my client, to prevent me from
being able to bring that to the jury’s attention is denying my
client’s right of confrontation.
Immedia tely thereafter, the trial court questioned Hubbard’s attorney regarding whether he
could effectively cross-examine Ms. Rogers without specifically naming Earl. Hu bbard’s
attorney argued that it was po ssible – he c ould list every person identified by Ms. Rogers but
refer to Earl’s identification as “another person that is not Hub bard” – h oweve r, along with
Earl’s attorney, he questioned w hether that lim itation wou ld contrave ne the dec ision to
suppress the identification because the jury could imply that the un-named identification was
that of Ear l.4
[COU RT]: Is there a practical significance between six and
[HUBBAR D’S ATTORN EY]: Sure.
[COU RT]: I mean you c an specific ally identify the named
individuals in all but Gary Earl. Can you do it without naming
the other defendant as the person she identified?
[HUBBARD’S ATTORN EY]: Oh, sure. I could say to the
witness isn’t it, in fact, true, and list every name except Earl and
then just refer to the identification as Earl and that you also
named another person that is not Kevin Hubbard. Now, there
may be an implication there that could be M r. Earl, but I can do
it that way and not use Mr. Earl’s name.
Whether or not th e court th inks tha t is, in fac t, violating Mr.
Earl’s rights because of the gra nting of the suppression , if I were
Mr. Earl I would say, yeah, that does. And I think the only cure
for this, the only way to protect Mr. Earl’s rights and Mr.
Hubbard’s rights is to sever these cases, because the prosecution
is asking that if I ask questions which I think I’d be entitled to
ask, that it intends to try to bring out this basically what would
be a violation of what the court’s suppression order is, I think
that -- I think it’s irreconcilable, Your Honor. Frankly, Your
Honor, I think the court, as far as my client is conce rned, wo uld
be unjustified telling me that I can’t bring to the jury’s attention
that all seven identifications were made of three people at the
time in some form. By the same to ken, I think it can be
reasonab ly argued that if I do that, there could be an implication
that Mr. Earl was identified.
[EARL ’S ATTORN EY]: Your Honor, I’ve already said I don’t
want [Ms. Rogers’s identification of Earl] to come in. I don’t
want it to be any part of the case. I don’t think that you can cure
that w ith an instr uctio n to the ju ry.
[COU RT]: I’m not even going to try to cure it with an
instruction to the jury. Either we’re going to do it in such a way
that Mr. Earl is not named and is adequately protected in terms
of the suppression or we’re not going to d o it. I’m not go ing to
allow Gary Earl to be named as a person she identified and then
try to tell the jury to disregard that. You know, that would be
What is your position in regard to whether or not the
examination and cross-examination can be done naming six
people identified and a seventh unidentified -- I mean unnamed,
and wh ether or not th at prejudices Mr. Earl?
[EARL ’S ATTORNEY]: We’ve had this conversation a
number of time s. We can control what happens in here, we
don’t know what happens back there. And my concern is that by
implication or inference or supposition or however it is they
The issue of declaring a mistrial was then raised:
[COU RT]: All right, [The Prosecutor], what’s your belief or
position in reg ard to sever ance, jeopa rdy and mistrial?
[STAT E]: Your Hono r, I would have to -- I think that it’s
occasion for a mistrial. I have raised I believe on the record but
I certainly had raised it with all three defense counsel at the time
of the first hearing you all really planning to be heard together,
these cases are going to be heard together, because we have
these identification s that are esse ntially inextricably intertwined,
I believe. You know, it has now reared its head one of those
potentials for something that could be used against one but not
used against another.
The only thing that w e did yesterday was we reduced the
equation by one, bu t cert ainly i f the court will recall, I mean
we’ve got the same sort of situation with the other co -defenda nt,
I believe. I believe -- may be wrong about that, maybe Benson
ID’s are all in, but nevertheless at this point I think th at a
arrive at a decisio n, the jur y could c onclud e that w as, in fac t, a
reference to Gary. So I would ha ve to -- I’d have to be opposed
to it, although I certainly do understand [H ubbard’s Attorney]’s
argument that prejudices him. I mean as a defense attor ney I
would a gree with th at.
[COURT]: [The Prosecutor], what’s your position?
[STATE]: I’m looking for a -- I’m looking for a level playing
field. I brought the matter to the court’s attention because I
suspected that, you know , that ma y be where we would be
heading. And rather than break at that point and have the jury
going back to the jury room, I thought I better bring it up now
because I do think that the State should be entitled to bring that
to the attention of the jury in terms of any potential
rehabilitation of what may be otherwise impeachable stuff.
mistrial is the appropriate undertaking.
Hubbard’s and Earl’s attorneys both objected to the granting of a mistrial. The trial
judge, howev er, instead fas hioned his own rem edy, ruling that the parties could refer to the
seventh identification , that of Earl, b ut could not refer to the seventh identification o f Earl
by name.5 The prosecutor continued h is objection, an d insisted that m anifest nec essity
[COU RT]: All right. Now, I need to know from the defense
what your position is in regard to a m istrial, in either order?
[EARL ’S ATTO RNEY ]: Your Hono r, at this point on behalf of
Mr. Earl, this has been han ging for a lo ng time. H e would
prefer that th e court not g rant a mistrial.
[HUB BARD ’S ATTORN EY]: We’re not asking for a mistrial
either, Your Honor. That is not to say that it may -- I’m not
arguing for it. Th at is n ot to say that I don’t know what
alternative the court has at this juncture.
[COU RT]: And I think w e both know where we are in terms of
jeopardy and retr ial and th at sort of issue. The question is am I
going to grant a mistrial over the objection of the defendants or
The State brings this matter to the court’s attention in terms of
expecting cross-examination on the issue of how many total
identifications Ms. Rogers made. I believe the count is seven,
six of whom were two of the defendants, M r. Hubbard, M r.
existed for a mistrial because the alternative suggested by the judge w ould hind er the ability
of the State to rehabilitate Ms. Rogers:
[STAT E]: Your Hon or, from the State’s perspec tive, I don’t see
where that gets anything in terms of poten tial rehabilitation. In
Benson, who is no longer in this case at this time, and four
others who were ruled out, and then a seventh identification
which was Mr. Earl, who -- which I have suppressed.
State wan ts to attempt to rehabilitate Ms. Ortega -- excuse me,
Ms. Rogers if that question is asked by I think asking her
whether or not she did, in fact, identify Earl as one of these
Well, I’m not going to permit th at because that would , in fact,
undo the suppre ssion and it w ould und o it without Mr. Earl
and/or his attorney having opened that door, so I’m not going to
allow it. Then [Hubb ard’s Attorney] argues that it’s prejudicial
to his client to limit his cross-examination to not permitting any
reference to Mr. Ea rl by name. A nd [Earl’s Attorney] argues
that even reference to the seven th identification of an unnamed
individual may raise a nega tive infe rence a s to his cl ient. So
essentially if I don’t declare a mistrial, my remedy is not going
to suit a nybody. Well, I guess we’re going to find out whether
this is a co nstitution al reme dy or not.
My ruling is [The Prosecutor] can in redirect refe r to the seventh
identification, but may not refer to and may not permit the
witness to refer to the name of the seventh individual or
otherwise identify who that individual is as Gary Earl. And,
[Hubbard’s Attorney], I’m going to impose the same limitation
on you. If that’s an u nconstitution al violation of your
defendant’s due process rights, then the Court of Appea ls is
going to let us know that, but I’m n ot going to d eclare a mis trial.
I’m going to go forward with this matter with the remedy that
I’ve just fashioned.
other words, again, the rehabilitation e ffect I think is evident by
the fact that, yes, she named two of these persons who are
standing trial here today. As we all know, in fact she named
three of the def endants w ho are stand ing trial. So to simply say
that the State can ’t show that she identified Mr. Earl is to say
that bolsters the idea that she made seven identifications
regarding three persons and, again , that only one of those is
before the jury in terms of h er being ab le to say that’s the one I
[COU RT]: Well, let me ask you this: Do you believe that this
is an example of manifest necessity for a mistrial? You
understand that a retrial will be barred unless there’s manifest
[STAT E]: I understand, Your H onor, and tha t’s why, again,
I brought it to the c ourt’s attention, because I think we need
to have a ruling on this. I believe on the b asis of the position
of the defendan ts -- and I fully und erstand the po sition of
the defendants, but I believe that on the basis of their
respective positions, that it’s manifest necessity because I
think that otherwise it would deny the State the right to
rehabilitate a witness in a mann er or rehabilitation th at I
think can be effective.
The effectiven ess of simp ly saying that she ac tually identified
seven people, as I say, that doesn’t rehabilitate her at all.
Rehabilitation comes from saying two of those persons are
seated in this courtroom and that she identified another codefenda nt; therefore, either severance or mistrial. Yo u know , if
we sever the case, then I can go forward. I’m not sure.
[COURT]: Thing is this jury has now had open ing stateme nts
having to do with two defendants, has been told various things
about the evidence from the State, intends to proceed against
two defendants. Severing one of them and continuing with the
other one at this point seems like a very confusing way for the
[STAT E]: Seems to me -- and, again, I’m not -- foreclosing any
argument from defense counsel, but it seems to me that it may
be prejudicial to one or the other of the defenda nts, particularly
the one who is still sitt ing a t cou nsel table ; ther ein, a s I say,
Your Hon or, I think lies th e nec essit y, the manifest necessity for
a mistrial. I’m not saying that’s the -- it’s a Hobson’s choice,
only perhaps three choices rather than the two, but the bottom
line is I don’t see how due process is afforded to both sides
without d oing just that.
[COU RT]: Well, [The Prosecutor] is exactly right, it’s a
Hobso n’s choice, b ut if I have on e paramo unt duty that’s more
important than any others, it is to safeguard the rights of parties
befo re the cou rt, de fend ants and the S tate, actu ally.
Well, I agree that it’s difficult to see how I can fashion a
remedy, although I was in the p rocess of arriving at a remedy,
but upon further reflection, it seems to me that any remedy that
I fashion h as got to be p rejudicial to somebody, prejud icial to
one of the defendan ts or to the other or maybe both of them,
and/or prejudicial to the State for that matter. Clearly the issue
of retrial after mistrial doesn’t have anything to do with the
benefit to who. I m ean, it could b e mistrial could have been
declared and have extended a benefit to the defenda nt, and that’s
not a factor in the analysis.
Upon further con sideratio n of [T he Pro secuto r]’s argu ment, I
believe that this is a manifest necessity and I will, therefore,
declare a mistrial in this matter and grant severance on my own
motion of all three of these cases.
Earl and Hu bbard filed separate m otions to dism iss their indictmen ts on doub le
jeopardy grounds, which were denied after hearings, by the same judge who had declared the
Petitioners appealed to the Court of Special Appeals, which affirmed in a reported
opinion. Hubba rd v. State, 166 Md. App. 250, 262, 887 A.2d 1120, 1127 (2005). The
intermediate appellate court held that because the judge considered the possible alternatives,
he had exercised his sound discretion to find manifest necessity to dec lare a mistrial. Id. at
261-62, 887 A.2d at 1126-27.
We granted P etitioners’s petitio n for writ of certiorari, which presented the following
question for our review:
Where jeopardy had attached at trial and the trial judge had
granted the prosecutor’s motion fo r a mistrial over Petitioners’s
objections, did the Court of Specia l Appeals err in affirming the
trial judge’s decision that the mistrial had been required by
393 Md. 160, 900 A.2d 206 (2005). We hold that the Court of Special App eals erred in
affi rmin g the trial j udge’s d ecision that th e mis trial w as re quired by man ifest nec essit y.
Petitioners contend that the Court of Special Appeals erred in affirming the trial
judge’s decision that the mistrial was required by man ifest necessity. They argue that there
was a five-month delay betw een the suppression o f Ms. Roge rs’s out-of-court and in-court
identifications of Earl an d the trial date, an d as a result, the State had amp le time to consider
the ramifications of the ruling, which Petitioners described as creating an “obvious imbalance
in the identification evidence.” Petitioners claim that the result of the suppression rulings
was the foreseeable risk that Ms. Roge rs could not be called as a w itness against Hubbard
because of the pote ntial prejudicia l effect on E arl, and despite this, the prosecutio n chose to
proceed with a joint trial. P etitioners con tend that this c ase is analog ous to situations
involving deficiencie s in the State’s evidence or the absence of a witness, which do not
constitu te man ifest ne cessity to d eclare a mistrial.
The State, conv ersely, argues tha t the Court of Special Appea ls was corre ct in
affirming the trial judge’s decision to declare the mistrial for manifest necessity because the
decision was within the discretion of the judge, and the judge thoroughly considered the
alternatives before declaring th e mistrial. The State also co ntends that m anifest nec essity
existed because the evidentiary problem would adverse ly affect some combination of the
prosecutio n and one or both of the defendants, the prosecution was not at fault for the
problem, and Petitioners did not offer any other alternative.
A. Double Jeopardy
In Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), the
United States Sup reme Co urt held that th e Doub le Jeopardy C lause of the Fifth Am endmen t,
requiring that “[n]o person be subject for the same offense to be twice put in jeopardy of life
or limb,” was applicable to state criminal proceedin gs through the Fourtee nth Am endmen t.
Id. at 796, 89 S.Ct. at 2062, 23 L.Ed.2d at 715. The Double Jeopardy C lause proh ibits
cumulative punish ment a s well a s succe ssive pr osecut ion. Brown v. Ohio, 432 U.S. 161,
165-66, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187, 194 (1977). As the Supreme Court has stated,
“to subject the individual to repeated prosecutions for the same offense would cut deeply into
the framework of procedural protections which the Constitution establishes for the conduct
of a criminal trial.” United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d
543, 533 (1971 ).
The Double Jeopardy C lause uneq uivocally bars the retrial of a defendan t after a final
judgment of acq uittal. Arizona v. Washington, 434 U .S. 497 , 503, 98 S.Ct. 824, 829, 54
L.E.2d 717, 726 -27 (1978 ). Retrial is not au tomatically barred, however, when a criminal
proceeding is concluded after jeopardy attaches but without resolving the merits of the case.
As Justice Stevens stated in Arizona v. Washington:
Unlike the situation in which the trial has ended in an acquittal
or conviction, retrial is not automatically barred when a criminal
proceeding is terminated without finally resolving the merits of
the charges against the accused. 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
subordina te 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 frustrate d by any m istrial, the prosecutor must shoulder the
burden of justifying the mistrial if he is to avoid th e double
jeopardy bar. His burden is a heavy one. The prosecutor must
demon strate ‘manifest necessity’ for any mistrial declared over
the objection of the defen dant.
434 U.S . at 505, 98 S .Ct. at 830, 54 L.E.2d at 7 28 (emphasis add ed). If granting a mistrial
over objectio n wa s manife stly ne cess ary, the defendant may be retried without implicating
the Double Jeopardy Clause; if there were no manifest necessity for the mistrial
determination over objection, the defendant could not be retried.6
In the present case, the jury had been empaneled and sworn, so that jeopardy had
attached. See Illinois v. S omerville , 410 U.S. 458, 467, 93 S.Ct. 1066, 1072, 35 L.Ed.2d 425,
When a defendant does not object to the motion for a m istrial, or a mistrial is declared
at a defendant’s behest, the d ouble jeopard y equatio n is diff erent. See Un ited States v. D intz,
424 U.S. 600, 607-08, 96 S.Ct. 1075, 1079, 47 L.Ed.2d 267, 274 (1976) (stating that
generall y, “a motion by the defen dant for m istrial is ordinarily assu med to remove any barrier
to reprosecu tion”), quotin g in turn Jorn, 400 U.S. at 485, 91 S.Ct. at 557, 27 L.Ed.2d at 556.
433 (1973) (stating that jeopardy attaches in a jury trial when the jury is empaneled and
sworn); State v. Woodson, 338 Md. 322, 329, 658 A.2d 272, 276 (1995) (same). Bo th
Hubba rd and Ea rl objected to the gran t of the m istrial. The sole issue, then, is whether the
judg e erred w hen he declared a mistrial b ased upon ma nife st necess ity.
B. Manifest N ecessity
Whether manifest necessity to declare a mistrial and a void dou ble jeopard y exists is
based upon the uniq ue fac ts and c ircums tances o f each case. See Jorn, 400 U.S. at 480, 91
S.Ct. at 555, 27 L.Ed.2d at 554 (“[The Supreme] C ourt has, for the most pa rt, explicitly
declined the invitation of litigants to formulate rules based on categories of circumstances
which will permit or preclude retrial.”). The concept of manifest necessity was introduced
in United States v. Perez, 22 U.S. 579, 6 L.E d. 165 (1824), wh en the Supreme Court
We think, that in all cases of this nature, the law has invested
Courts of justice with the authority to discharge a jury from
giving any verdict, whenever, in their opinion, taking all the
circumstances into conside ration, there is a m anifest nec essity
for the act, or the ends of public justice would otherwise be
Id. at 580, 6 L.Ed. a t 578. See also Arizona v. Washington, 434 U.S . at 506 n.18 , 98 S.Ct.
at 830 n.18 , 54 L.Ed.2 d at 728 n.1 8; Somerv ille, 410 U.S. at 461, 93 S.Ct. at 1069, 35
L.Ed.2d at 429; Jorn, 400 U.S . at 481, 91 S .Ct. at 555, 27 L.Ed.2d a t 554; Wade v. Hunter,
336 U.S. 684, 689-90, 69 S.Ct. 834, 837, 93 L.Ed. 974, 978 (1949).
In Arizona v.
Washington, supra, the Supreme Court declined to categorically formulate a test for manifest
necessity but ins tead recog nized the “c lassic form ulation” of the term, des cribing:
The words ‘manifest necessity’ appropriately characterize the
magnitude of the pros ecutor’s bu rden. . . . Neve rtheless, those
words do not describe a standard that can be applied
mechan ically or without attention to the particular problem
confronting the trial judge. Indeed, it is manifest that the key
word ‘necessity’ cannot be interpreted literally; instead, contrary
to the teaching of Webster, we assume that there are degrees of
necessity and we require a ‘high degree’ before concluding that
a mistrial is appropriate.
434 U.S. at 505-06, 98 S.Ct. at 830-31, 54 L.Ed.2d at 728-29 (emphasis added). To meet the
“high degree” of necessity, the Supreme Court has recognized that there must be no
reasonab le alternative to the dec laration of a m istrial. See Som erville, 410 U.S. at 462, 93
S.Ct. at 1069, 35 L.Ed.2d at 430 (“Where . . . the ends of substantial justice cannot be
attained without d iscontinuing the trial, a mistrial may be declared . . . over [defendant’s]
objection.”), quoting in turn Gori v. United States, 367 U.S. 364, 368, 81 S.Ct. 1523, 1536,
6 L.Ed.2d 9 01, 904 (1 961); Jorn, 400 U.S. at 487, 91 S.Ct. at 558, 27 L.Ed.2d at 558
(suggesting that a trial continuance would have been a reasonable alternative to declaring a
We have adopted the same framework for the Maryland common law double jeopardy
prohibition. See Wynn v . State, 388 Md. 423, 429, 879 A.2d 1097, 1101 (2005) (stating the
“well-established” rule that manifest necessity for any mistrial declared over the objection
of the defendant is required to allow retrial); Taylor v. S tate, 381 Md. 602, 611, 851 A.2d
551, 556 (2004), quoting in turn Woodson, 338 Md. at 329, 658 A.2d at 276 (“Thus, after
jeopardy attaches, retrial is b arred if a m istrial is declared without the defendant’s consent
unless there is a showin g of ‘man ifest necessity’ to d eclare the m istrial.”); State v.
Crutchfield , 318 Md. 200, 207-08, 567 A.2d 449, 452 (1989) (quoting “seminal Supreme
Court” decisio n, Perez, for the double jeopardy manifest necessity requirement); Wooten-Bey
v. State, 308 M d. 534, 542 , 520 A.2d 1090, 10 94 (1987 ) (citing fram ework se t forth in
Perez); In re M ark R., 294 Md. 244, 249-50, 449 A.2d 393, 397 (1982) (qu oting exten sively
from Arizona v. Washington); Cornish v . State, 272 M d. 312, 3 17-18 , 322 A.2d 880, 884
(1974) (following the principles set forth in Supreme Court case law to determine whether
manif est nece ssity existed ).
In In re Mark R., supra, this Court iterated that the prosecutor must shoulder a heavy
burden to justify a mistrial if th e prosecu tor is to avoid th e double jeopardy bar, embracing
the maxim that the prosecutor must demonstrate that there is “a high degree of necessit y
before concluding that the mistrial is appropriate.” 294 Md. at 249-50, 449 A.2d at 397. See
also Taylor, 381 Md. at 611, 851 A.2d at 556, quoting in turn Woodson, 338 Md. at 329, 658
A.2d at 276; Crutchfield , 318 M d. at 208, 56 7 A.2d a t 452; Cornish, 272 Md. at 317-18 , 322
A.2d at 884 (stating that manife st necessity is only apparent “under urgent circum stances ,”
or “in very extraordinary and striking circum stances”). W e also conf irmed that “a retrial is
barred by the F ifth Ame ndment w here reaso nable alterna tives to a mistria l . . . are feasible
and could cure the problem.” In re Mark R., 294 Md. at 263, 449 A.2d at 404, quoting in turn
Cornish, 272 Md. at 320, 322 A .2d at 88 6. See Crutchfield, 318 Md. at 213, 567 A.2d at
455; Neal v. Sta te, 272 Md. 323, 326, 322 A.2d 887, 889 (1974) (remarking that a mistrial
should only be declared once the judge perceives that trial c annot p roceed ). E.g., Jourdan
v. State, 275 Md. 495, 511, 341 A.2d 388, 398 (1975) (noting that there was no reason why
a contin uance was n ot an alte rnate re medy w hen the prosec uting att orney be came il l).
Thus, to determine whether manifest necessity to declare a mistrial over defense
objection exists, the trial judge mus t engage in the process of explorin g reasona ble
alternatives and determine that there is n o reaso nable a lternativ e to the m istrial. Unlike the
rule propoun ded by the C ourt of Sp ecial Appeals, application of this standard in manifest
necessity cases does not only consider whether alternatives were analyzed, but also goes to
whether a reasonable a lternative to a m istrial was ava ilable. If there w as no reaso nable
alternative, ordinarily the mistrial is m anifestly neces sary, and retrial is not barred b y double
jeopardy principles. If there is a reaso nable alterna tive, the mistrial is n ot manife stly
nece ssary, and a defendant cannot be retried. Any doubt sho uld be reso lved in favor of the
defenda nt. In re Mark R., 294 Md. at 262, 449 A.2d at 403 (citing Downum v. United States,
372 U .S. 734 , 738, 83 S.Ct. 10 33, 103 5, 10 L .Ed.2d 100, 10 4 (196 3)).
In the case sub judice, the decision to grant a m istrial arose bec ause of tw o mutually
antagonistic decisions made by the State – the first, to proceed against H ubbard and E arl
jointly, and the second, to call Sabrina Rogers to the stand in the joint trial. Although the
judge suppressed both M s. Rogers’s out-of-cou rt and in-court identification of Earl, he d id
not suppre ss Ms . Roge rs’s out- of-cou rt and in -court id entifica tion of H ubbard . The State
would call Ms. Rogers to testify against Hubbard, and Hubbard would attempt to impeach
her with her identification of six other individuals, including Earl. The identification of Earl
by Ms. R ogers, h owev er, had b een sup pressed .
We acknowledge that the trial court did explore other various altern atives to a m istrial.
Nevertheless, his exploration is only a part of th e equation , because th ere was a reasonab le
alternativ e to the d ecision to decla re a mis trial again st both H ubbard and E arl.
The exclusion of Sabrina Rogers’s testimony against Hubbard would have remedied
the situation caused by the join t prosec ution. M aryland Rule 5-403 states the general
principal that eviden ce may be ex cluded if its p robative va lue is substantially outweighed by
the danger of unfa ir prejudice. In Smith v. Sta te, 371 Md. 496, 504-06, 810 A.2d 449, 454-55
(2002), we held that even if evidence of an alleged conspiracy between a witness, a codefenda nt, and the co-defendant’s attorney, was relevant to prove the witness’s bias, it was
inadmissible because its probative value was substantially outweighed by its obvious
prejudice to the co -defen dant’s a ttorney. See also McKnight v. State, 280 Md. 604, 615, 375
A.2d 551, 557 (1977) (“[I]t is unrealistic to expect jurors to ignore seemingly relevant
eviden ce wh ich they h ave alre ady hear d.”).
Other jurisdictions have considered the exclusion of testimony as a reasonable
alternative to declaring a mistrial. In State v. Dodge, 564 P.2d 312 (Utah 1977), the Supreme
Court of Utah considered whether the trial judge’s denial of defendant’s motion for a mistrial
was proper. The court held that the trial judge correctly declined to grant a mistrial, stating:
“The trial court had other alternatives to the m istrial the appella nt requested . A motion to
strike or exclude the violating witnesses testimony could have been made.” Id. at 313 (also
noting that defendants should avail them selves of “ less drastic m eans” to lim it possible
prejudice before movin g for a m istrial). See als o, e.g., McArth ur v. State, 671 So.2d 867,
870 (Fla. Dist. Ct. App. 1996) (“[W]e find that the trial court [erred] in failing to either
exclude the evidence or in the alternative, grant appellant’s m otion for a m istrial.”); People
v. Pondexter, 573 N.E.2d 339, 344 (Ill. App. Ct. 1991) (reversing order granting a mistrial
because “the trial court stated it only had two alternatives . . . declare a mistrial . . . or bar the
testimony.”); State v. Rowe, 480 A .2d 778 , 782-83 (Me. 1 984) (dealing with issue of
severance, the court stated that “[m]anifest necessity simply cannot exist where, as here, the
trial justice had a clear alternative – sustaining [defendant’s] objection to the admission of
the . . . statement – that would have both protected . . . [co-defendant’s] rights and preserved
intact the joint prosecution format selected by the state.”). Cf. Bruton v. United States, 391
U.S. 123, 137, 88 S.Ct. 1620, 1628, 20 L.Ed.2d 476, 485-86 (1968) (refusing to allow
introduction of defendant’s confession in joint trial because it was facially incriminating
against co-defen dant); Williams v. Washington, 59 F.3d 673, 683 (7th Cir. 1995)
(acknowledging that admission of co-defendant’s statement implicating the other defendant
results in a substa ntial and unfair p rejudice to the oth er defe ndant) .
The reluctance of the trial judge to exclude Ms. Rogers’s testimony seemingly was the
result of a concern about the prejudice that the State would suffer. The State created the
conundrum; it also canno t be the ben eficiary of a m anifest nec essity analysis. The S tate
knew five months prior to trial that there were significant problems resulting from calling
Sabrina Rogers to testify against H ubbard th at would p rejudice Earl if the two were tried
together. See Downum, 372 U.S. at 737, 83 S.Ct. at 1035, 10 L.Ed.2d at 103 (declaring that
prosecutorial unpreparedness in not assuring witness availability is insufficient to find
manifest necessity); United States v. Figueroa, 618 F.2d 934, 945 (2d Cir. 1980) (“Evidence
that might be admissible u nder Ru le 403 in a trial o f one def endant is no t inevitably
admissible in a joint trial. In some situations the danger of unfair preju dice to co-d efendan ts
may be so great that the prosecution must be put to a choice of forgoing either the evidence
or the joint trial.”); Epps v. Sta te, 276 M d. 96, 117, 3 45 A.2d 62, 76 (19 75) (referrin g to the
State’s decision to try defendants togeth er as a “tactical decision”).
At oral argument before this Court, the only explanation the State could offer for why
it did not sever the cases was judicial economy, but judicial economy does not supplant the
right of an accused not to be tried tw ice for th e same crime. See Jorn, 400 U.S. at 485, 91
S.Ct. at 557, 27 L.Ed.2d at 556 (noting that if a defendant’s right to take the case to the jury
is valued, it is eno ugh to bar retrial on dou ble jeopard y grounds un less a mistrial w as actually
necessary to protect an important p ublic interest); United States v. Chica, 14 F.3d 1527, 1532
(11th Cir. 1994) (“We empathize with the district court’s desire to conserve judicial
resources by having one trial instead of tw o, but the D ouble Jeo pardy Claus e does no t contain
a judicial eco nomy exce ption.”); United States v. Givens, 88 F.3d 608, 614 (8th Cir. 1996)
(observing that trial courts cannot rely upon the “forbidden considerations of judicial
econ omy” when d eclaring a m istrial); United States v. Ramirez, 884 F.2d 1524, 1530 (1st
Cir. 1989) (statin g that the co st of two trials cannot ju stify declaring a mistrial instead of
granting a severanc e); United States v. Brid ewell, 664 F.2d 1050, 1051 (6th Cir. 1981) (per
curiam) (“While we sympathize with [the district court’s] laudable desire to avo id a waste
of federal court resources, we do not think that the possible necessity of a separate trial
constitutes manifest necessity for purpo ses of avoiding a do uble jeopardy bar.”).
In the case sub judice, a reasonable alternative existed to the declaration o f a mistrial,
and thus the mistrial was not manifestly necessary. The trial judge erred by declaring a
mistrial b ased on manif est nece ssity.
JUDGMENT OF THE COURT OF SPECIAL
APPEALS REVERSED. CASE REMANDED
TO THAT COURT WITH DIRECTIONS TO
REVERSE THE JUDGMENT OF THE
CIRCU IT COURT FOR CECIL COUNTY
AND REMAND THE CASE TO THE
CIRCU IT COURT FOR CECIL COUNTY
WITH DIRECTIONS TO DISMISS THE
INDICTMENTS. COSTS IN THIS COURT
AND IN THE COURT OF SPECIAL
APPEALS TO BE P AID BY CEC IL