Ashe v. State

DAVIS, Judge. A jury sitting in the Circuit Court for Charles County convicted appellant Bernard Gilbert Ashe of involuntary manslaughter and assault and battery. That same jury acquitted appellant of first degree felony murder, second degree specific intent murder, and conspiracy to commit mayhem, and deadlocked on charges of second degree depraved heart murder and conspiracy to commit assault and battery. On the final charge against appellant — first degree premeditated murder— the circuit court granted appellant’s motion for acquittal.

Before the court (Clark, J.) sentenced appellant, the State re-tried appellant on the charges of second degree depraved heart murder and conspiracy to commit battery. A jury sitting in the Circuit Court for Prince George’s County 1 convicted appellant of both charges, and appellant was sentenced to concurrent prison terms of twenty years and eighteen months. This timely appeal followed. Appellant raises four questions, which we rephrase: I. Did the second trial on charges of second degree depraved heart murder and conspiracy to commit battery violate appellant’s double jeopardy rights?

II

Did the conviction of appellant for second degree depraved heart murder violate the rule against inconsistent verdicts?

III

Did the circuit court err when it refused to suppress a statement appellant made to the police? ⁵⁴² IV. Did comments made by the circuit court during jury instructions constitute reversible error? We answer all questions presented in the negative and affirm the judgment of the circuit court. FACTS This case stems from the murder of Paul Scott Jefferson (the victim) on June 27, 1996.

On that date, the victim, several members of his family, and several friends returned to his home in Charles County after an excursion to an amusement park in Virginia. As they were exiting their car, a group of men approached and demanded to speak with the victim’s brother, David, about racial slurs that David had allegedly made earlier in the week. David Jefferson refused to comply with their demands, so the group began to attack those who had been in the car. All of the family members and friends managed to escape to the house except the victim, who found himself surrounded.

The group of men then proceeded to beat the victim to death. Appellant was allegedly a member of the mob which attacked the victim. Two days after the attack, two detectives from the Charles County Sheriffs Department visited appellant’s house, and asked him to accompany them back to their station house. Appellant complied with their request, and, during an interrogation at the station house, gave a statement implicating himself in the attack on the victim.

Appellant was subsequently charged and tried before a jury which, on February 21, 1997, convicted him of involuntary manslaughter and assault and battery. The jury also deadlocked on both second degree depraved heart murder and conspiracy to commit assault and battery and acquitted of first degree felony murder, second degree specific intent murder, and conspiracy to commit mayhem. A February 24, 1997 order of the court reflects that the State indicated an intent to re-try appellant on the charges for which the jury was hung. Thus, the State filed a motion, on March 10, 1997, to continue sentencing and to set a date for the re-trial.

Despite appel ⁵⁴³ lant’s opposition, the court, in an order dated March 26, 1997, granted the motion. Citing double jeopardy violations, appellant filed a motion to dismiss the second degree depraved heart murder charge. After the motion was denied by the trial court, appellant noted an appeal and moved for a stay of the re-trial pending the appeal. On April 23, 1997, the court denied the motion for a stay of the proceedings.

The Administrative Judge for Charles County (McKee, III, J.), however, granted appellant’s motion for removal and transfer of the case to Prince George’s County, wherein a trial date was set for June 10,1997. At the conclusion of trial, on June 13, 1997, the jury convicted appellant of second degree depraved heart murder and conspiracy to commit battery. On July 22, 1997, appellant was sentenced to twenty years imprisonment for the second degree murder charge, into which the court merged the involuntary manslaughter and assault and battery convictions. On the conspiracy conviction, the court sentenced appellant to eighteen months imprisonment to run concurrently with the term for second degree murder.

Appellant timely noted this appeal on August 18, 1997. Additional facts will be set forth in the discussion of the issues. DISCUSSION I Appellant first argues that, because of his initial conviction for involuntary manslaughter, his second prosecution for second degree depraved heart murder was barred by principles of double jeopardy. We disagree.

Before addressing appellant’s specific arguments, however, we shall set forth the double jeopardy principles applicable to the instant case. The Double Jeopardy Clause provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.... ” U.S. Const, amend. V. The amendment affords three basic protections to criminal defendants: “[It] ⁵⁴⁴ protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction.

And it protects against multiple punishments for the same offense.” Brown v. Ohio, 482 U.S. 161 , 165, 97 S.Ct. 2221 , 53 L.Ed.2d 187 (1977). Following a mistrial, a second trial is not prohibited by any of the three aforementioned protections because a mistrial is equivalent to a reversal of conviction on appeal. See Wooten-Bey v. State, 308 Md. 534, 542 , 520 A.2d 1090 , cert. denied, 481 U.S. 1057 , 107 S.Ct. 2199 , 95 L.Ed.2d 853 (1987). Although re-trial after a mistrial is essentially a second prosecution for the same offense, the policy behind double jeopardy does not require prohibition of the second prosecution.

See Jeffers v. United States, 432 U.S. 137, 152 , 97 S.Ct. 2207 , 53 L.Ed.2d 168 (1977). If a jury is unable to agree on a verdict, the jeopardy which attached when the jury was sworn is dissipated by the declaration of a mistrial and a defendant is not relieved from further liability. See Wooten-Bey, 308 Md. at 543 , 520 A.2d 1090 (quoting Neal v. State, 272 Md. 323, 327 , 322 A.2d 887 (1974)). The Supreme Court opined: [ W]e reaffirm the proposition that a trial court’s declaration of a mistrial following a hung jury is not an event that terminates the original jeopardy to which petitioner was subjected.

The Government, like [appellant], is entitled to resolution of the case by verdict from the jury, and jeopardy does not terminate when the jury is discharged because it is unable to agree. Richardson v. United States, 468 U.S. 317, 326 , 104 S.Ct. 3081 , 82 L.Ed.2d 242 (1984). In the instant case, the jury’s inability to agree on the charge of second degree depraved heart murder did not prohibit the State from re-trying appellant, even though he was convicted of two counts, including involuntary manslaughter. In State v. Griffiths, 338 Md. 485 , 659 A.2d 876 (1995), the appellant was convicted, inter alia, of possession of cocaine, although the jury was unable to reach a verdict on the ⁵⁴⁵ charge of possession of cocaine with intent to distribute as well as one other count.

After the trial court declared a mistrial as to those counts, the appellant was sentenced on the counts for which he was convicted. Subsequent to the sentencing, 2 the State retried the appellant on the two counts for which the jury hung, and a guilty verdict resulted. The Court observed that a hung jury is the “prototypical example” of manifest necessity for a mistrial that would allow re-trial for the same charge without offending double jeopardy principles. See id. at 490 , 659 A.2d 876 (citing Oregon v. Kennedy, 456 U.S. 667, 672 , 102 S.Ct. 2083 , 72 L.Ed.2d 416 (1982)).

The Supreme Court held, “jeopardy is not regarded as having come to an end so as to bar a second trial in those cases where ‘unforeseeable circumstances ... arise during the first trial making its completion impossible, such as the failure of a jury to agree on a verdict.’ ” Green v. United States, 355 U.S. 184, 188 , 78 S.Ct. 221 , 2 L.Ed.2d 199 (1957) (quoting Wade v. Hunter, 336 U.S. 684, 689 , 69 S.Ct. 834 , 93 L.Ed. 974 (1949)). Thus, the trial court did not err by allowing a re-trial on the charges which caused the mistrial. Moreover, the fact that the defendant was sentenced prior to the re-trial is of no moment in the case sub judice because the court continued sentencing after the first trial so that appellant could be retried before sentencing. Turning to appellant’s specific argument, he asserts that his re-trial was barred by double jeopardy because of the collateral estoppel aspect of double jeopardy law.

Under those principles, collateral estoppel precludes subsequently relitigating an “ultimate issue of fact” against the same defendant once that issue of ultimate fact has been fully and finally ⁵⁴⁶ determined in his or her favor in an earlier case. Ashe v. Swenson, 397 U.S. 436, 443 , 90 S.Ct. 1189 , 25 L.Ed.2d 469 (1970). According to appellant, the initial conviction for involuntary manslaughter precluded his second prosecution for second degree depraved heart murder because of the element of malice. Appellant points out that malice is an element of second degree depraved heart murder, while it is not an element of involuntary manslaughter.

Thus, appellant argues, a conviction for involuntary manslaughter is necessarily a finding that a defendant killed without malice, and prevents a subsequent prosecution for second degree depraved heart murder which, of course, requires a finding that the defendant did kill with malice. Appellant’s argument fails because it ignores the fact that there are two types of involuntary manslaughter — unlawful act involuntary manslaughter and gross negligence involuntary manslaughter — and that the second of these types differs only slightly from second degree depraved heart murder. Unlawful act involuntary manslaughter is defined as the killing of another unintentionally while doing some unlawful act. See Schlossman v. State, 105 Md.App. 277, 288 , 659 A.2d 371 (1995), cert. dismissed, 342 Md. 403 , 676 A.2d 513 (1996); see also Maryland Criminal Pattern Jury Instructions (MCPJI) 4:17.8 (1997).

Gross negligence involuntary manslaughter, by contrast, is the unintentional killing of another while engaged in an otherwise lawful act in a grossly negligent manner. See Williams v. State, 100 Md.App. 468, 483-84 , 641 A.2d 990 (1994). Finally, second degree depraved heart murder is virtually identical to gross negligence involuntary manslaughter. The only difference is that depraved heart murder has a heightened mens rea— instead of having acted in a grossly negligent manner, a defendant must have acted with “extreme disregard of the life[-]endangering consequences” of his actions.

Williams, 100 Md.App. at 484 , 641 A.2d 990 (citing MCPJI 4:17.8). This heightened disregard for human life takes the killing out of the realm of manslaughter and places it ⁵⁴⁷ within the more serious realm of murder. See id. at 484-85 , 641 A.2d 990 . In this case, appellant was charged with unlawful act involuntary manslaughter.

Thus, by convicting him of that offense, the jury in the initial prosecution found that he had unintentionally caused the victim’s death while engaged in an unlawful act. These findings certainly did not involve any conclusion that appellant had not unintentionally caused the death of Paul Scott Jefferson while acting with extreme disregard for the life-endangering consequences of his actions. Stated otherwise, collateral estoppel is only implicated when there is either an express factual finding or a factual finding necessarily implied by virtue of the ultimate determination of the fact finder, i.e., an acquittal of a bank robber for the robbery of teller “A” precludes a subsequent prosecution of the defendant for robbing bank teller “B” during the same criminal event because the criminal agency of the sole robber has been adjudicated at the first trial. See Ashe v. Swenson, supra.

Whether the fact finder determines that an element of an offense has been proven or, inferentially, the existence, vel non, of a fact sought to be established, collateral estoppel requires that such determination be affirmative. Thus, in the case at hand, re-prosecution would only be precluded if the initial jury had made an affirmative finding that malice did not exist. The failure of all twelve jurors to find that malice existed which resulted in a hung jury did not constitute an affirmative finding that malice did not exist. By analogy a jury conviction for day-time housebreaking rather than common law burglary implies only a non-finding of nighttime, not an affirmative finding of day-time.

Reduced to its simplest terms, the mere doubt or inability to agree as to the establishment of element “A” is not proof of the absence of “A.” Accordingly, the involuntary manslaughter conviction did not preclude the State from subsequently trying appellant for second degree depraved heart murder. ⁵⁴⁸ II Appellant also argues that the conviction for involuntary manslaughter was inconsistent with the conviction for second degree depraved heart murder. Again, we disagree. A finding of inconsistency requires that the two convictions have elements that are incompatible with each other. As the above discussion demonstrates, however, the elements of unlawful act involuntary manslaughter and second degree depraved heart murder are entirely compatible. 3 Unlawful act involuntary manslaughter involves an unintentional killing of another while engaged in an unlawful act.

See Schlossman, 105 Md.App. at 288 , 659 A.2d 371 . Second degree depraved heart murder involves an unintentional killing of another while engaged in extremely risky behavior, and in a manner that disregards, in the extreme, the life-endangering consequences of that conduct. See Williams, 100 Md.App. at 484 , 641 A.2d 990 . Accordingly, appellant’s argument is without merit.

Ill Prior to his arrest, appellant was brought to a police station by two detectives of the Charles County Sheriffs