Taylor v. State
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Bobby Eugene Taylor v. State of Maryland No. 106, September Term, 2003 Headnote: Where a crim inal d efen dant fails to ra ise th e issu e of d ouble jeo pard y in the trial court, i.e., in this case at the defendant s retrial following a mistrial granted due to manifest necessity, the issu e is not prese rved for ap peal; it is waive d. Circuit Co urt for Frede rick Coun ty Case # K01-28282 IN THE COURT OF APPEALS OF MARYLAND No. 106 September Term, 2003 Bobby Eugene Taylor v. State of Maryland Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Cathell, J. Filed: June 10, 2004 Bobby Eug ene T aylor, petitioner, w as tried by a jury in the Circuit Court for Frederick Cou nty, with Judge Edward D wyer, Jr. presiding, and was convicted of child abuse, a second degree sexual offense and a third degree sexual offense. On June 26, 2002, petitioner was sentenced to twenty years of incarceration for the second degree sexual off ense, with all but twelve years suspended. Petitioner received concurrent sentences of twelve years of incarceration for the child abuse offense and five years of incarceration for the third degree sexual offense. Petitioner filed an ap peal to the Court of Special Appeals, presenting four questions for its review. In an unreported opinion, the Court of Special Appeals affirmed the trial court s rulings. Petition er then filed a Writ of Certiorari and this Court granted it on December 18, 200 3. Taylor v. S tate, 379 Md. 98, 839 A.2d 741 (2004). The sole question petitioner presents for our review asks: Did the trial of petitioner constitute a violation of the double jeopardy clause after the trial judge declared a mistrial over petitioner s objection and without manifest necessity? We hold that petitioner failed to preserve the double jeopardy issue for review because no objections or motion to dismiss based on double jeo pardy were raised in the tria l court in this case (or in the original case). The dou ble jeopardy issue was first pre sented on appellate review. Because we hold that the double jeopardy issue was not properly preserved, we do not resolve the issue of manifest necessity. We also need not resolve the issue of whether a defendant is bound b y his counsel s decision to consent to a mistrial where the defendant opposed any delay in the initial trial. I. Facts The record in the case sub judice contains de tailed facts about the underlying crimes with which petitioner was charged. Being that the sole issue in this case asks whether the mistrial and subsequent retrial of petitioner violated his Fifth Amendment right not to be put in jeopardy twice for the same offense and does not turn on the underlying facts of the crime, we will not include those substantive facts here. On April 2, 2001, petitioner was indicted by a Frederick County grand jury on the charges of child abuse, second degree sexual offense and third degree sexual offense based upon alleged incid ents involvin g his stepson s daug hter. On Septem ber 10, 2001, the jury for petit ione r s trial w as sw orn, opening state men ts we re made a nd te stimony w as taken before adjour nmen t for the day. The foll owing day, September 11, 2001, the trial judge announced that the courthouse was being closed due to the national emergency caused by the terrorist attacks in New York, Virginia and Pennsylvania. The transcript of the morning of September 11, 2001, reflects the following dialogue: THE COURT: . . . [W]e just received word due to the basically national emergency the, . . . whatever occurred in New York and the Pentagon, that the County Government is closing down, if not now, within the next 10 minutes. We re not sure of the exact time. But, that means we have to close.[1] [Defense Counse l] and [Pro secutor], w e don t kn ow wh at s going to happen next. . . . [I]t s my understanding, [Defense Counsel], rather than bring these jurors back we know not for how long you are not objection [sic], you have no difficulty with my declaring a mistrial in this case not caused by either 1 County go vernmen ts have n o pow er to clos e courts . The closing of court operations is an ex clusive functio n of the judiciar y. -2- party. [DEFE NSE C OUN SEL]: That s -THE COURT: And if I did that [petitioner] would have to understand that he could be retried. [DEFE NSE C OUN SEL]: You r Honor -THE CO UR T: A nd it wou ld be a dif fere nt jury. [DEFENSE COUN SEL]: You r Honor, . . . that s correct. . . . [T]h at is my understan ding that the, you know, I understand the Court s . . . and our predicament in terms of the Co urt being clo sed, and the fact that jurors would probably more likely have prob lems com ing b ack t he ad ditio nal tw o days anticipated by the Assistant State s Attorney in this case. I ve explained to [petitioner] all of those issues, and how it is that we arrived at this point. . . . [I]n view of all of that [petitioner] understands, but he wou ld lik e to a ddre ss the Co urt very br iefly. THE COURT: Only, only on the issue of the mistrial. I don t know what he wants to say, and whether it s appropriate for him. Do you know what he wants to say, [Defe nse Counsel]? [DEFENSE COUN SEL]: Your Honor, I, I think he just wants to indicate that he has a . . . due to his condition that he would like for everything to be over as quickly as possible, and that he is concerned, he s saying that because of his con dition that he will worry and w orry and worry until -... . . . this has come to a conclusion. THE COU RT: Do you then prefer that I just re cess today and try to bring it back tomorrow? [PETITIONE R]: Yes. [DEFENSE CO UNSEL]: That s what [petitioner] would like to do. THE COU RT: [Defense Counsel], what s your position? [DEFENSE COUNSEL ]: Your Honor, I have some concerns that I, you know, as I stated bac k in Cham bers. My co ncern w ould be again that the witnesses, not the witn esses, but the jurors, uh, w e re going to have this interruption of today and possibly tomorrow , we don t know what tomorrow s going to bring. So no w we hav e a jury that s, uh -THE COURT : That s basically called, was told two days, that we d finis h tod ay. [DEFENSE COUNSEL ]: Correct. Now they would have to anticipate, perhaps change th eir schedule s. In the final a nalysis we don t, we don t know how any of those, th e people on the jury might be affected by this, . . . by the events of today. So I m concern ed as whether or n ot this jury is going to be -3- able to focus sufficiently after such a hiatus and other . . . issues now confronting us. . . . [Y]ou know . . . that s my belief. [ Petitioner] do es have a d esire to get the case over as quickly as possible. THE COURT: Well I can understand that. [Prosecutor], what s the State s position? [PROS ECUT OR]: Your Honor, uh, I understand that there are, uh, two, I think it s wise that to predict that this matter would continue on for another two days at least or at least part of the second day. I understanding [sic] that there are two jurors w ho have difficulty proceed ing in that manner. ... [PROS ECUT OR]: My con cern is th at we le ave, that if we loose [sic] two we are left with no alternates, and given what s going on that there may be occasion w e might loo se [sic] one more juro r, and that w e would be in the same position two d ays from now, so, uh -THE COU RT: What s the State s position? [PROS ECUT OR]: I think it s prudent to proceed in the manner that Your Hon or (inaudible). THE COU RT: All right, [Defense Counsel], anything else? [DE FEN SE C OUN SEL] : (No re sponse ). [Alte rations a dded.] Directly following this discussion, the record reflects that petitioner addressed the court. The following dialogue, ending in Judge Dwyer declaring a mistrial, occurred: [PETITIO NER]: All right, Your Honor, I ve been, uh, you know my . . . menta l conditi on, I won t discuss it. I ve been pressured with this for 14 months now. And all a mistrial can do is give the prosecution more time, and 10 years, 15 years from now she can bring the same case back up, a nd all this time that will be held over my head. THE COURT: Well, first if it s a mistrial it s going to be reset as soon as possible. We re not talking 10 or 15 years, w e re talking les s than six months. [PETITIONE R]: That will violate my rights. THE C OURT : Well (inaudible) -[PETITIONER]: They ve already been violated one time. THE COURT : Well, that s a different matter about the first one. But I will tell you this, if it s for this reas on it s not go ing to violate you r right, because this is completely out of control of a nybody. Do you understan d that? -4- [PETIT IONE R]: No, sir, I d on t. [DEFENSE COUNSEL ]: You understand that the Court is closing not because the Co urt has said so, but the Cou nty Commissioner[s]. THE COURT: And n ot beca use of [the] S tate. I didn t close th e Court. I mean, I can tell you th at the Gov erno r just decl ared a state of eme rgen cy, that Frederick County is shutting down, that Washington County has already shut down, and that s completely beyond my control or your control or [the Prosecuto r s] control. [PETITIO NER]: Could it be made a point of the record that I, uh, don t want the d ismissal, that I ask for the dism issal? THE C OURT : Well, neither of you are asking fo r a dismissal or -[PETITIO NER]: I m requesting that it doesn t happen. I m not asking for it. THE COU RT: You want me, you want me to continue this trial today with the Governor and everybody shutting it down, the Government down? [PETITIO NER]: I want the tria l continued, because I know what the prosecution s going to do. THE COU RT: W ell, that s a different matter, but. All right, anything else, [Defense C ounsel]? [PETITIONE R]: They ve already bought an extra six months. THE COU RT: [Defense Counsel], anything else? [DEFE NSE C OUN SEL]: No, Y our Honor. THE COU RT: [Prosecutor], anything else? [PROS ECUT OR]: Nothing further, Your Ho nor. THE COURT: In this case I am going to d eclare a mis trial, and declare it s based on a national emergency, we don t know what s going on in New York, what we hear is not good. We don t know what s going on in D.C. we hear it s not good. We do know th at my delay in getting on the ben ch is because we were waiting to see whether we can stay open, we cannot. I told Counsel I would have stayed open, but we just got word that we must shut down. Uh, jurors have difficu lty returning on Wednesday and Thursday, at least [two] of them, we don t kno w whe ther we ll be able to at this p oint, because we don t know what s going on. This is a mistrial declared, because of manifest necessity, it is a good cause continuance. Refer to the assignment office for setting a n ew trial date . . . as soon as poss ible . . . . Court s adjou rned. [ Alterati ons ad ded.] On November 7, 20 01, within tw o month s of Judg e Dwyer s g ranting of a mistrial, -5- a new jury was sworn and the retrial began. The retrial concluded on November 9, 2001. During the retrial, petitione r did not raise a ny double jeo pardy issue. Th e jury found petitioner guilty on all three counts. Petitioner filed a motion for a new trial and supplemented it several times. The motion was heard and denied by Judge Dwyer on Jun e 26, 20 02. Petitioner ag ain failed to include an y double jeopardy argument within this motion or any supplement, and, instead, specifically noted the necessity for the mistrial, stating, in his written Supplement to Motion for New Trial, that, The terrorist attack on Septem ber 11, 2 001, ne cessitate d a mistr ial. Judge Dwyer subsequently sentenced petitioner to twelve years on the child abuse conviction. In addition, he sentenced petitioner to twenty years of incarceration (with all but twelve years suspended) on the second degree sexual off ense conviction and five years of incarceration on the third degree sexual offense, both to be served co ncurrently with the sentence for the child abuse conviction. II. Discussion The central issue raised in the Petition to this Court was whether petitioner was twice put in jeopardy for the same offense due to the trial court s grant of a mistrial on account of the uncertainty regarding the tragic national events that occurred on September 11, 2001. The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution protects individuals from being tried for the same offense more than once, as it states, in part, . . . nor shall any person be subject for the same offence to be twice put in jeopardy of life -6- or limb . . . . The Fifth Ame ndment is applicable to the s tates through the Fourteenth Amendment of the United States Cons titution. See Benton v. Maryland, 395 U.S. 784, 787, 89 S. Ct. 2056, 2058, 23 L. Ed. 2d 707 (1969). Similarly, despite the lack of a double jeopardy clause in the Maryland Constitution, the Maryland common law provides protection to individuals from b eing tw ice put in to jeopa rdy. State v. Woodson, 338 Md. 322, 327-28, 658 A.2d 272, 275 (1995); Flaherty v. State, 322 Md. 356 , 365, 587 A.2d 5 22, 526 (1991); Gianiny v. State, 320 Md. 337, 342, 577 A.2 d 795, 79 7 (1990); Randa ll Book C orp. v. State, 316 Md. 315, 323, 558 A.2d 715, 719 (1989). This protection against being twic e put into jeopardy prohibits three distinct abuses: 1) the second prosecution for the same offense after acquittal; 2) the second prosecution for the same offense after conviction for that offense; and 3) the im position of mu ltiple pu nishm ents fo r the sam e offe nse. State v. Jones, 340 Md. 235, 242, 666 A.2d 12 8, 131 (19 95); cert. denied, 516 U.S . 1173, 116 S. Ct. 1265, 134 L. Ed. 2d 213; see also State v. Griffiths, 338 Md. 485, 489, 659 A.2d 876, 878-79 (1995); Woodson, 338 Md. at 328, 658 A.2d at 275 (citing North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. C t. 2072, 2 076, 23 L. Ed. 2 d 656 ( 1969) , rev d on other grounds, Alabama v. Smith, 490 U.S. 794, 109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989)). In the case sub judice, if the issue had been preserved, we would be concerned with a variation of the first type of potential abuse, whether the trial court s granting of a mistrial, which petitioner s counsel did not oppose, although petitioner, himself, did, and the subsequent retrial constituted a second prosecution for the sam e offe nse, i.e., whether there was an improper grant of a mistrial by -7- the trial court. In State v. Woodson, supra, this Court set out the parameters to consider where a mistrial may affect an individual s double jeopardy rights, when we said: The double jeopardy prohibition against retrial for the same offense attaches in a jury trial when the jury is empaneled and s worn . See Illinois v. Somerv ille, 410 U.S. 458, 467, 93 S. Ct. 106 6, 1072, 35 L. Ed. 2d 425, 433 (1973); Blondes v . State, 273 Md. 435, 444, 330 A.2d 169, 173 (1975). Thus, after jeopardy attaches, retrial is barred if a mistrial is declared without the defendant s consent unless there is a showing of manifest necessity to declare the mistrial. See United States v. Perez, 22 U.S . (9 Wh eat.) 579 , 580, 6 L. Ed. 165, 165 (1824) (ho lding that a trial c ourt may disch arge a jury with out the defendant s consent w henever ta king all the circumstances into consideration, there is a manife st necessity for the act ). Althou gh there is n o clear test to determine whether a manifest necessity exists, it has been held that there must be a high de gree [of necessity] befo re conclud ing that the mistrial is appropriate. Arizona v. Washington, 434 U.S. 497, 506, 98 S. Ct. 824, 831, 54 L. E d. 2d 71 7, 729 ( 1978) (footn ote om itted). Woodson, 338 M d. at 329 , 658 A .2d at 27 6. Petitioner argues that the trial judge improperly declared a mistrial without his consent and that the mistrial was not base d on man ifest necessity, thu s the retrial violate d his protections against being placed in jeo pardy twice. F irst, petitioner argu es that, althoug h his attorney at trial initially acquiesced to the trial court s decision to declare a mistrial, his attorney did not speak after petitioner, himself, vehemently opposed the mistrial. He also, for the first time on a ppeal and in his brief before this Court, argues that his position against the mistrial served as an official objection on the record to the gran ting of the m istrial. Petitioner further contends that the mistrial was not manifestly necessary because he claims that the facts support that a mere continuance would have been a sufficient alternative to a -8- mistrial and the mistrial could only be declared, in light of petitioner s objection to it, i n urgent or extraordinary circumstances. The State first argu es that the position of petitioner s counsel in agreeing with the need to declare a m istrial controls because strategic decisions are to be governed by the attor ney, even where the attorn ey s client is not in agreement, especially, as in this case, where the decision to consent to the mistrial was a tactical one within the province of the attorney. Second, the State contends that petitioner s claim that his d ouble jeop ardy rights were violated was neve r raised in the trial court or at the retrial and that Maryland Rule 8-131 (a) precludes a n appellate c ourt from ordinarily decid ing issues no t raised below. Alte rnatively, the State contends that even if the issue was properly preserved, the trial court properly exercised its discretion when it declared a mistrial for manifest necessity due to the events of September 11, 2001. There is no need for this Co urt, howev er, to discuss e xtensively whether the trial court properly declared a mistrial for manifest necessity, or whether petitioner s counsel s acquiescence to the declaration of a mistrial binds petition er to that positio n in light of h is personal opposition, because we hold that petitioner failed to preserve his objection to the retrial as being in derog ation of his F ederal Co nstitutional or S tate comm on law rig hts against twice being place d in jeopardy, as is required by Maryland R ule 8-131 (a). Maryland Rule 8-131 (a) Maryland appellate co urts have co nsistently held that, pursuant to Maryland Rule 8- -9- 131 (a), and its predecessors, Rules 885 and 1085, appellate courts will not ordinarily decide issues not raised or de cided by a tria l court. See Conyer s v. State, 354 Md. 132, 148, 729 A.2d 910, 91 8, cert. denied, 528 U.S. 910, 120 S. Ct. 258, 145 L. Ed. 2d 216 (1999) (citing Md. Rule 8-131 (a), holding that several issues in review of a death sentence were not preserved because they were not raised at the trial level); Walker v. S tate, 338 Md. 253, 26263, 658 A.2d 239, 243, cert. denied, 516 U.S. 898, 116 S. Ct. 254, 133 L. Ed. 2d 179 (1995) (citing Md. Rule 8-131 (a), holding that issues relating to denial of due process because of prosecutorial misconduct and a Sixth Amendment violation of being denied counsel during pre-trial proceedings were no t properly raised below ); White v. Sta te, 324 Md. 626, 640, 598 A.2d 187, 194 (1991) (citing Md . Rule 8-131 (a) in holding tha t a claim that the defenda nts were deprived of their constitutional right to present witnesses in their defense was not properly before the Court because the argument was not made to the trial court); In re John H., 293 Md. 295, 303, 443 A.2d 5 94, 598 (1982 ) (citing R ule 885 , a predecess or of M d. Rule 8-131 (a), not reaching the issue of whether a statute was constitutional because the issue of constitutiona lity of the statute was not a rgued to the trial judge); Hewitt v. S tate, 242 Md. 111, 113-14, 218 A.2d 19, 20-21 (1966) (specifically holding that a double jeopardy issue may not be raised fo r the first time o n appeal p ursuant to th en Rule 8 85); Iozzi v. State, 224 Md. 42, 46, 166 A.2d 257, 260 (1960 ) (not reaching a claim that the defendant was not allowed his right to counsel when his attorney was not present at a portion of the trial, citing Rule 885 and stating, [i]n the absence of anything to show a request to the trial court or a -10- ruling thereon, there is nothing before us to consider ) (alteration add ed); Kirby v. Sta te, 222 Md. 421, 425, 160 A.2d 786, 788 (1960) (statin g that case s almost un iformly hold that the right to a speedy trial . . . like other statutory or constitutional rights, may be waived and that it is waived by failing to assert the right in the trial court. Unless that question was raised below, it is not before the appellate court for review that is, it may not be raised for the first time on appeal because, among other reasons, a defendant cannot participate in a trial and save an objectio n with which to challenge an adverse verdict ); Martel v. S tate, 221 Md. 294, 300-01, 157 A.2d 437, 441 (1960) (citing Rule 885, dismissing the issues of the defendant being deprived of a preliminary hearing and a speedy trial because the issues were not raised below and they cannot now be considered by this Court ) ; Howell v. State, 56 Md. App. 675, 678, 468 A .2d 688 , 689, cert. denied, 299 Md. 426, 474 A.2d 2 18 (19 83), cert. denied, 469 U.S. 1039, 105 S. Ct. 520, 83 L. Ed. 2d 408 (1984) (holding, pursuant to Rule 885, that an appellate court is not req uired to reach a double jeopardy issue that was not brought in the trial court); Medley v. State, 52 Md. App. 225, 231, 448 A.2d 363, 365-66 (1982) (recognizing that even constitutional issues may be waived if not properly raised at the trial court level pursuant to Rules 885 and 1085, both predecessors to current Md. Rule 8-131 (a)); see also Johnson v. State, 138 Md. App. 539, 550 n.2, 772 A.2d 1260, 1266 n.2 (2001) (recognizing, in dicta, the Court of Special Appeal s Howell holding that double jeopardy claims may not be raised fo r the first time on appeal). Rule 8-131 (a) states: -11- RULE 8-131. SCOPE OF REVIEW. (a) Generally. The issues of jurisdiction of the trial court over the subject matter and, unless waived under Rule 2-322, over a person may be raised in and dec ided by the appellate court whether or not raised in and decided by the trial c ourt. Ordinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the tr ial cour t, but the Court may decide such an issue if n ecessary or desirable to guide the trial court or to avoid the expense and delay of anothe r appea l. [Em phasis a dded.] Speaking for the Court of Special Appeals in Medley, supra, Judge Wilner examined the purpose of R ule 885, a predecesso r to Md. Rule 8-1 31 (a): It is a matter of basic fairness to the trial court and to opposing counsel, as well as being fundamental to the proper administration of justice; and one need only look at the extensive annotations to Maryland Rules 885 and 1085 to see that it is rigorou sly enforc ed. Even errors of Constitutional dimension may be waived by failure to interp ose a timely ob jection at trial (see, for exam ple, Smith v. State, 16 M d.App. 317[, 2 95 A.2 d 802] (1972 ), cert. den. 267 Md. 744 (1973); Hewitt v. S tate, 242 Md. 111[, 218 A.2d 19] (1966)), and so may alleged violations of sub-constitutional procedural rules. See Log an v. State, 289 M d. 460, 4 87[, 42 5 A.2d 632] (1 981). Medley, 52 Md. Ap p. at 231, 448 A.2d at 366 (alterations added). This rule and its pre decessors h ave been applied to the failure of a defend ant to raise constitutiona l rights in the trial co urt, including an issue reg arding the rig ht against do uble jeop ardy. See Hew itt, supra, 242 Md. 111, 218 A.2d 19. In Hewitt, the defendant was first tried in a bench trial on a five c ount crimin al informa tion. Although the trial judge found him guilty on the third and four th counts o f the information, he made no reference to the remaining three counts, which, under Maryland law, is a finding of not guilty by implication on those three counts. The defendan t s motion for a n ew trial w as he ard a nd granted by a -12- new trial judge. During the bench retrial of the defendant, the judge found the defendant guilty under the first count and not guilty on the remaining four. The defendant first raised the double jeopardy issue, along with a due process argument, with regard to count one of the information on appeal. This Court, in short order, dismissed the issues, stating: We have repeatedly held and attempted to make clear that Maryland Rule 885 has useful and sound objectives. One of its purposes is to prevent the trial of cases in a piecemeal fashion, thereby saving time and expense and accelerating the termination of litigation. Since no questions concerning double jeopardy or denial of due process were raised below, we hold that these questions are not now properly befo re us. Ma ryland Rule 8 85; Martel v. S tate, 221 M d. 294. Id. at 113-14, 218 A.2d at 20-21. See also H owell, supra, 56 Md. App. at 678, 468 A.2d at 689, cert. denied, 299 Md. 426, 474 A.2d 2 18 (19 83), cert. denied, 469 U.S . 1039, 105 S. Ct. 520, 83 L. Ed. 2d 408 (1984). Waiver of othe r constitu tional iss ues has been tre ated sim ilarly by this C ourt. See Walker, 338 Md. at 262-63, 658 A.2d at 243, cert. denied, 516 U.S. 898, 116 S. Ct. 254, 133 L. Ed. 2d 179 (1995) (Sixth Amendment violation of being denied counsel); White, 324 Md. at 640, 598 A.2d at 194 (constitutional right to presen t witnesses in their defen se); In re John H., 293 Md. at 303, 443 A.2d at 598 (issue of w hether a statu te was co nstitutional); Iozzi, 224 Md. at 46, 166 A.2 d at 260 (rig ht to couns el); Kirby, 222 Md. at 425, 160 A.2d at 788 (right to a speedy trial); Martel, 221 Md. at 300 -01, 157 A.2d at 44 1 (speedy trial). Regardless of this precedent, petitioner contends that this Court s decision in Carbau gh v. State, 294 Md. 323, 449 A.2d 1153 (1982), controls, and that it stands for the -13- proposition that a waiver of the right against double jeopardy requires a knowing and intelligent waiver, thus allowing such an issue to be brought for the first time on appeal. In Carbaugh, Carbaugh was charged with speeding and driving with a revoked license. In that case, a patrol off icer observ ed an auto mobile co ming tow ard him after he had been advised that a vehicle matching that vehicle s description was speeding in his direction. The patrol officer believed the driver to be wearing a green shirt. When the officer flagged the car down, the car drove into a private driveway and all of the five occupants had exited the car by the time the officer reached the driveway. Carbaugh, who was wearing a green shirt, and the other occupants told the officer that a man named Michael Yonker, not Carbaugh, was the driver. After questioning Yonker and thinking that he must have been mistaken about the green shirt, the officer issued a ticket to Yonker. Soon after the men left the scene, another officer (who had been working airborne surveillance) told the arresting officer that the driver was wearing a green shirt and that the arresting officer issued the citation to the wrong person. At trial, Carbaugh was found guilty of driving while his license was revoked and he was sentenced to a short jail term. On appeal to the Court of Special Appeals, Carbaugh first raised collateral estoppel, as embodied within the Double Jeopardy Clause of the United States Constitution, as a defense. He claimed that Yonker had paid the citation, thus pleading guilty to the crime of speeding, prior to the completion of Carbaugh s trial and that resolved the issue of who had been driving the car Yonker was the driver, not Carbaug h. The Court -14- of Special Appeals, in not reaching the merits of the double jeo pardy claim, relie d primarily on the reasoning that the claim was barred because of Rule 736,2 which required certain motions to be made pre-trial, or else be waived. This Court reversed the intermediate appellate court stating: First, we reject the holding of the Court of Special Appeals that the defendant s double jeopardy contention was waived by his failure to file a pretrial motion under Rule 736. With regard to double jeopardy claims designed to prevent or invalidate trials, this Court has repeatedly taken the position that the waiver concept of Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 101 9, 82 L.Ed. 1461, 146 A.L.R. 357 (1938), is applicable, and that an effective waiver requires knowing and intelligent action by the defendant himself.3 See, e.g ., Davis v. State, 285 Md. 19, 33, 400 A .2d 406 (1 979); Curtis v. State, 284 Md. 132, 144, 395 A.2d 46 4 (1978); Jourdan v. State, 275 Md. 495, 507, 341 A.2d 388 (1975). This is the position taken by the Supreme Court in Green v. United States, 355 U.S . 184, 191-1 92, 78 S. C t. 221, 2 L. Ed. 2d 199 (1957). 4 There has been no c ontention in this case that the d efendan t knowin gly and intelligently waived his double jeopardy claim; moreover, the reco rd would not support any such contention if it were made. Consequently, the defendant s failure to file a motion under R ule 736 did not constitute a waiver of the claim. We assume for purposes of this case that Rule 736 a. 1., providing that a motion asserting a defect in the institution of the prosecution should be made before trial, do es encom pass som e types of mo tions asserting double jeopardy claims.5 See Pulley v. State, 287 Md. 406, 408, 412 A.2d 1244 (1980) (similarly assum ing that Ru le 736 app lied to motion s to dismiss on double jeopard y ground s). Furth ermore , as indicated in Pulley, 287 Md. at 415, raising the double jeopardy issue prior to trial is necessary if the defendant desires to exercise his right of an immediate appeal from an order overruling his double jeopardy def ense. Othe rwise, the right of imm ediate appeal is waived, and the defendant must await a final judgment in the criminal case before an appeal may be taken and the double jeopardy issue 2 What was then Rule 736 is currently encompassed in Md. Rule 4-252 (a), which outlines certain mandatory pre-trial motions to be made in Circuit Court proceedings. -15- raised. Nevertheless, at least absent a knowing and intelligent relinquishment of the claim, the double jeopardy claim may be raised on an appeal from the final jud gmen t regard less of w hether a pre-trial m otion h ad bee n mad e. Carbaugh, 294 Md. at 327-28, 449 A.2d at 1155-56 (footnotes omitted). But, in footnotes 3 and 5, which are located within the above excerpt from Carbaugh, the Court recognized that some claims under doub le jeopardy prohibitions may be w aived. In footnote 3, the Cou rt stated that Som e multiple pu nishmen t aspects of th e double je opardy prohibition may present different considerations. Thus . . . a challenge to concurrent sentences on a greater offense and on a lesser included offense must be properly raised or it is deemed waived, regardless of the know ing and intelligen t standa rd. Id. at 327 n.3, 449 A.2d at 1155 n.3. In a later footnote, the Court added the following af ter assumin g that Rule 736 did encompass certain types of double jeopardy motions: Whether the rule would encompass the double jeopardy claim in the instant case, however, is doubtful. The record indicates that when the instant prosecution was instituted , Yonke r had not p aid the fine on the citation issued to him. It was paid after the present c ase was in stituted but be fore trial. Therefore, even if the defendant s double jeopardy claim had m erit, there would have been no defect in the institution of the prosecution within the literal lan guage of the ru le. Id. at 328 n.5, 449 A.2d at 1156 n.5. The specific holding in Carbaugh is distinguishable for several reason s. First, Carbaugh dealt with a collateral esto ppel issue, not a mistrial and subsequent failure to raise the double jeopard y issue before the retrial. The contexts are dissimilar. In the case sub judice petitioner w as aware of the mistria l and shou ld have raised the issue at the retrial, unlike the defendant in Carbaugh, who may or may not have known -16- that his companion had paid the speeding ticket, thus pleading guilty to driving the same car, at the very same time that Carbaugh was being charged with driving. Add ition ally, the Carbaugh Court nev er reached the issue of whether the double jeopardy claim was prope rly before the Court in light of Rule 1085, a companion rule to Rule 885,3 both being predec essors to current Md. Rule 8-13 1 (a). This C ourt s opinio n dealt solely with the application of Rule 736 to the factual situation, the reasoning on which the intermediate court primarily relied. The Court of Special Appeals, however, specifically noted in the last sentence of that court s decision, that the question was not presented in any manner to the trial judge and therefore is not before us under Md. Rule 1085. Carbaugh v. State, 49 Md. App. 706, 711, 435 A.2d 116, 118 (1981). The applicability of Md. Rule 1085 apparently never was discussed by the Court of Appeals. The Court of Appea ls ultimately dismissed Carbaugh s claim solely because the Court held that the doctrine of collateral estoppel was not applicable to the situation. The Court of Special Appeals expanded on the Carbaugh Court s failure to reach the Rule 1085 issue in Howe ll v. State, supra, an opinion authored by Judge Moylan. The intermediate appellate court strongly disagreed with a broad reading of Carbaugh, stating: We decline to consider the double jeopardy claim. The appellant failed utterly to raise this issue at the trial now under review and nothin g is, 3 These two former rules, 885 and 1085, were nearly identical to the current version of Md. Rule 8-131 (a) and to each other. The only relevant difference between the two former rules is that Rule 885 applied to the scope of review of the Court of Appea ls, while Rule 1085 applied to the scope of review of the Court of Special Appeals. -17- therefore, preserved for appellate review. Md. Rule 1085. The succor he seeks in Carbau gh v. State, 294 Md. 323, 449 A.2d 1153 (1982), is simply not to be found there. That case established that the requirement of Md . Rule 736 a 1 that certain motions b e raised pretria l lest they be deem ed waive d would not apply to all double jeopardy-related claims. ... . . . The Cou rt of App eals did not deal even remotely with the admittedly casual, albeit arguably alternative, holding of this Court that the failure to raise the do uble jeopardy issue at trial wo uld preclud e appellate review , even if the failu re to raise it pretrial d id not. . . . A careful reading of the two opinions in conjunction, therefore, yields the more narrow construction that the only thing considered by the Court of Appea ls and the on ly thing held by the Court of Appeals was that the failure to raise certain double jeopardy issues by way of pre trial motion u nder M d. Rule 73 6 would not ipso facto bar appella te review . . . . Howe ll, 56 Md. App. at 678-79, 468 A.2d 689-90. We agree. In ou r Carbaugh decision we did not consider Rules 1085 or 885.4 This Court had, ho weve r, previo usly reach ed, and decide d, the exact issue in Hewitt v. S tate, supra, expressly citing Rule 885 in not reaching a question of double jeopardy where that issue was not raised in the tria l court during a retrial. As w e have pre viously mentio ned, in Hewitt, Chief Judge Prescott specifically stated: We have repeatedly held and attempted to make clear that Maryland Rule 885 has useful and sound objectives. One of its purposes is to prevent the trial of cases in a pieceme al fashion, thereby saving time and expense and accelerating the term ination o f litigatio n. Since no questions concerning double jeopardy or denial of due process were raised below, we hold that these questions are not now properly before us. Maryland R ule 885; Martel v. State, 221 M d. 294. 4 As previously mentioned, the current incarnation of Rules 1085 and 885 are current encompassed in Md. Rule 8 -131 (a). -18- Hewitt, 242 Md. at 113 -14, 218 A.2d at 20 -21 (emphasis add ed). Similarly, there is little support for Petitioner s position in the United States Supreme Court decisions discussing a def endant s waiver of his double jeopardy protections. In Green v. United States, 355 U.S. 184, 78 S. Ct. 221, 2 L . Ed. 2d 199 (195 7), the Supreme C ourt first applied its knowing and intelligent waiver test to the issue of double jeopardy protections. The substantive and procedural facts of that case are distinguishable from those in this case. In Green, Green was tried for arson and first degree murder. The trial judge incorrectly instructed the jury that they could find Green guilty of arson for the first count and, if so, either first degree or second degree murder under the latter count. A jury convicted Green of arson and second degree murder and was silent to the first degree murder charge. Green appealed and his conviction fo r second degree murder w as reversed and remanded. On remand, Green was tried a second time for first degree murder and he raised the defense of double jeopardy at the outset of the trial. The motion was denied, he was retried and found guilty of first degree murder. The Supreme Court reversed the conviction stating that Green did no t waive his double jeopardy rights as to the first degree murder charge by appealing his second degree murder conviction. The Court said: At Green s first trial the jury was authorized to find him guilty of either first degree murder (killing while perpetrating a felony) or, alternatively, of second degree murder (killing w ith malic e afore though t). The jury fou nd him g uilty of second degree murder, but on his appeal that conviction was reversed and the case remanded for a new trial. At this new trial Green was tried again, not for second degree murder, but for first degree murder, even though the original -19- jury had refused to find him guilty on that charge and it was in no way involved in his appea l. For the reaso ns stated he reafter, we conclude that this second trial for first degree murder placed Green in jeopardy twice for the same o ffense in violat ion of th e Con stitution. ... After the original trial, b ut prior to his a ppeal, it is indisputable that Green could not have been tried again for first degree m urder for th e death resulting from the f ire. A plea o f former je opardy wo uld have a bsolutely barred a new prosecution even though it might have bee n convinc ingly demonstrated that the jury erred in failing to convict him of that offense. And even after appealing the conviction of second degree murder he still could not have been tried a second time for first degree murder had his appeal been unsucce ssful. Nevertheless the Government contends that Green waiv ed his constitutional defense of former jeopardy to a second prosecution on the first degree murder charge by making a successful appeal of his improper conviction of second degree murder. We cannot accept this paradoxical contention. Waiver is a vague term used for a great variety of purposes, good and ba d, in the la w. In any normal sense, however, it connotes some kind of volu ntary kno wing r elinquis hmen t of a rig ht. Cf. Joh nson v . Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461. When a man has been convicted of second degree murder and given a long term of im prisonme nt it is wholly fictional to say that he ch ooses to forego his constitutional defense of former jeopardy on a charge of murder in the first deg ree in order to secure a reversal of an erroneous conviction of the lesser offense. In short, he has no mean ingful c hoice. Id. at 189- 92, 78 S . Ct. at 22 5-26, 2 L. Ed. 2d 199 (footnotes omitted). In Green, the defendant actually raised a defense based o n former jeopardy at the retrial for a crime for which he had alre ady been ac quitted. He re, petitioner fa iled to even raise the dou ble jeopardy issue at ret rial a fter a mistrial g ranted fo r manife st necess ity. Such an omission, one not made in Green, leaves this Court with no trial court ruling to review regarding double jeop ardy. -20- The Supreme Court case of Menna v. New York, 423 U.S. 61, 96 S. Ct. 241, 46 L. Ed. 2d 195 (1975), is also distinguishable. There, the defendant, Menna, after being granted immunity for his te stimon y, was charged with contempt of court for refusing to answer questions in a g rand jury proce edin g inv estig ating a mu rder and for f ailin g to o bey a court order. He was sentenced to a 30 -day jail term. Th ereafter, the d efendan t was crim inally indicted for his refu sal to answ er the same questions f or which he was f ound in co ntempt. Menna then mo ved to have his ind ictment dism issed beca use it was in vio lation of his do uble jeopardy rights. After his motion was denied, he pleaded guilty to the indictment and was sentenced. On appeal, the New Y ork Cou rt of App eals declined to address M enna s do uble jeopardy claim because his guilty plea waived his right to claim the defense. The Supreme Court overruled the New York court because it found that Menna s plea waived his right to contest factual guilt, but not his right to raise the constitutional defense of double jeopardy and remanded the case to be heard on the merits. Menna, unlike petitioner in the case sub judice, however, had specifically raised the double jeopardy issue in the trial co urt. There was no question that his argument had been preserved. In addition, in a footnote, the Supreme Court noted: We do not hold that a double jeopardy claim may never be waived. We simply hold that a plea of guilty to a charge does not waive a c laim that judged on its face the charge is one wh ich the State m ay not constitutio nally prosec ute. Id. at 62 n.2, 96 S. Ct. at 242 n.2, 46 L. Ed. 2d 195. A reading of our cases makes clear that double jeopardy rights m ay be waive d by failure to ra ise them in the trial court, and the -21- holdings of these Supreme Court cases are not in conflict with our cases. Both of those Supreme Court cases involved defendants that specifically raised the defenses of double jeopardy in the trial court, which were ruled upon by that court. Here the issue was not raised below. In fact, in Peretz v. United States, 501 U.S. 923, 936, 111 S. Ct. 2661, 2669, 115 L. Ed. 2d 808 (1991), the Supreme C ourt implicitly has recognized that a defendant may waive a double jeopardy claim by failing to raise an objection at trial. Although Peretz determined that a defendant has no constitutional right to have an A rticle III judge preside at jury selection if the defendant has raised no o bjection to the judge s ab sence, the S upreme C ourt, in a string citation f ollowing its proposition that [t]he m ost basic righ ts of crimin al defenda nts are similarly subject to waiver, cited with app roval the Eleventh C ircuit case Bascaro v. United States for the proposition that the absence of [an] objection is [a] waiver of [a] double jeopardy defense. Id. (alterations added). In Bascaro, the Eleven th Circuit case stated: The only issue raised by Bascaro that merits discussion and that was not considered previously as a common issue, is his double jeopardy claim. The governm ent appea rs to ackno wledge th at Bascaro was previously tried and convicted of conspiracy to possess m arijuana w ith intent to distribu te in connection with a smuggling venture undertaken by the enterprise/conspiracy being prosecuted in the instant case. If true, this state of affairs would raise a question as to the valid ity of Bascaro s subsequ ent continu ing criminal enterprise conviction and possibly his RICO conspiracy conviction in this case. We do not, however, reach the merits of Bascaro s double jeopardy claim. The issue is raised for the first time on appeal; Bascaro s double jeopardy defense w as thus wa ived by his fa ilure to assert it a t trial. -22- United States v. Bascaro, 742 F .2d 133 5, 1364 -65 (11 th Cir. 1 984), cert. denied sub nom., Hobson v. United States, 472 U.S. 1017, 105 S. Ct. 3476-77, 87 L. Ed. 2d 613 (1985) (emphasis added ) (citations omitted) (footnote omitted). The State argues and we recognize that, under the particular facts in the case sub judice, acquiescing to a mistrial may have been a strategic move by counsel. As petitioner s counsel noted on September 11, 2001, he was unsure of how the jurors would re act to his client s case and whether they could focus on the evidence after the national tragedy, when the trial might be resumed. By agreeing to a mistrial, petitioner could alleviate these concerns during voir dire at retrial instead of facing the uncertainty of the jury located within the same region of the country of one of the major terrorist attacks. If petitioner was bound by counsel s acquiescence to the mistrial, then this Court has stated: It would, in o ur judgm ent, be entirely inapprop riate for the d efendan t to gain advantage from a violation of the rule when he was a party to that violation. In this respect, the situation is analogous to the well-established principle that a criminal defendant who seeks or expressly consents to a mistrial, even though the required manifest necessity standard for the mistrial may have been absent, cannot take advantage of his own act and prevent a retrial on double jeopardy groun ds. Dorsey v. State, 349 Md. 688, 703, 709 A.2d 1244, 1251 (1998) (quoting State v. Hicks, 285 Md. 310, 40 3 A.2d 356, on motion for reconsideration, 285 Md. 334, 335, 403 A.2d 368, 369 (1979)). We do not, however, decide this specific question in that the double jeopardy issue has not been properly preserved. -23- Moreover, although his attorney acquiesced to the trial judge s declaration of the mistrial, petitioner, at least facially, opposed any delay even a con tinuance. As the transcript of September 11, 2001, illustrate s, petitioner clea rly wanted n o delay in the trial. After mentionin g a menta l condition a nd the 14- month time period of the case to that point, petitioner stated that his majo r concern r egarding a mistrial was that, all a mistrial can do is give the prosecution m ore time, and 10 years, 15 years from now she can bring the same case back up, and all this time that will be held over my head. The judge assured petitioner that the case would be reset within six months (in fact, the retrial commenced within two months). Petitioner expressed that this would violate his rights and that he did not understand why the closing of the court was out of the control of the trial judge. Petitioner expressed that he wanted to continue the trial despite the building s closing, because he knew wha t the pro secutio n s goin g to do. Prior to this exchange, petitioner s counsel, however, in response to the trial judge asking whether he agre ed with the court declaring a mistrial, stated, Your Hono r . . . that s correct . Counse l then wen t on to descr ibe the reaso ns why he th ought it best t o grant a mistrial, including sta ting his conc erns that the ju rors in that earlier case would not be able to concentrate on the case in light of national events. Counsel even stated, I ve explained to [petitioner] all of those issues, and how it is that we arrived at this point. . . . [I]n view of all of that [petitioner] understands, but he would like to address the Cou rt very brie fly (alterations added). Petitioner the n participated in the exchange with the trial judge that we -24- have earlier discussed. III. Conclusion No arguments of potential double jeopardy were made to the first trial court prior to the granting of the mistrial. After the mistrial was granted neither petitioner nor his counsel ever raised the double jeopardy issue to the se cond trial co urt and it wa s never pre sented un til it was raised as an app ellate aftertho ught. This C ourt has stated that: one of the main reasons why such a defense is made im mediately app ealable results because the guarantee against double jeopardy assures an individual that, among other things, he will not be forced . . . to endure the personal strain, public embarrassment, and expense of a criminal trial more than once for the same offe nse. Pulley v. State, 287 Md. 406, 418, 412 A.2d 1244, 1251 (1980) (quoting Abney v. United States, 431 U.S. 651, 661, 97 S. Ct. 20 34, 204 1, 52 L . Ed. 2d 651 (1 977). Instead of raising the issue prior to o r during the retrial, petitioner w aited until after an unfavorable judgment had been made and a sentence rendered, and then only raised it during the appellate process. Petitioner thus availed himself of the benef its of his counsel s trial tactic of agreeing to the mistrial by selectin g a new jury, i.e., he relieved himself of his counsel s concern that the September 11, 2001 jury would not be able to concentrate on his case due to the national tragedy, and, when a negative result was procured , only then did h e raise the issu e of doub le jeopard y. Petitioner filed several motions, but never filed a motion to dismiss on double jeopardy grounds. P etitioner did not raise the issue prior to the mistrial or during the retrial. -25- Because no trial judge ruled on the double jeopardy issue, Md. Rule 8-131 (a) provides that the issue is no t properly befo re this Cou rt. We hold that the issue was not preserved for appellate review. While we affirm the judgment of the Court of Special Appeals, we do so for the reasons stated herein. JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. C O S T S T O B E P A I D BY PETITIONER. -26-
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