Blondes v. State

Eldridge, J., delivered the opinion of the Court. The issue presented here is whether, under the peculiar facts of the case, the petitioner’s conviction on bribery charges, at the conclusion of his second trial, was in violation of the prohibition against double jeopardy. The petitioner, Leonard Saul Blondes, was a member of the General Assembly of Maryland from 1962 through 1970. In May 1971, Blondes was indicted by the Grand Jury of ⁴³⁷ Montgomery County in a five count indictment.

The first two counts of the indictment charged Blondes with demanding and receiving a fee for the purpose of influencing him in the performance of his official duties as a member of the Legislature in violation of the bribery statute, Maryland Code (1957, 1971 Repl. Vol.), Art. 27, § 23. 1 The third, fourth and fifth counts of the indictment charged him with conspiracy and malfeasance in office. Blondes elected to waive a jury trial, and the case was tried before the Circuit Court for Montgomery County (Clapp, J.) on December 7, 8 and 9, 1971. The trial judge, at the outset, dismissed the third, fourth and fifth counts of the indictment on the ground that they were barred by limitations.

At the conclusion of the trial, the court found Blondes guilty on the first two counts, the bribery charges, and sentenced him to pay a fine of $2,500 and costs. On October 12, 1972, petitioner’s bribery conviction was reversed and the case was remanded for a new trial by the Court of Special Appeals. Blondes v. State, 16 Md. App. 165 , 294 A. 2d 661 (1972). The Court of Special Appeals, in an opinion by Chief Judge Murphy, held that the trial judge had improperly admitted and relied on evidence of Blondes’s legislative acts, and motivation for his legislative acts, in violation of the Speech and Debate clauses of the Declaration of Rights and the Constitution of Maryland. 2 ⁴³⁸ The opinion of the Court of Special Appeals made it clear that it was the admission of evidence during the trial, and not the charges in the indictment, which required a reversal of the conviction.

Thus, the court held (165 Md. App. at 179): “ ... we think it plain that substantive evidence of legislative acts performed by Blondes, introduced in evidence against him, over his' objection, was inadmissible and, because not harmless, requires a retrial. . . .” And again (id. at 184): “Since the trial judge erred in relying upon substantive evidence of Blondes’s legislative acts, we shall order a new trial purged of references to legislative acts prohibited by the legislative privilege.” With regard to the indictment, the court held that, as it was drawn in the words of the statute, it was sufficient, arid “we find no constitutional or other deficiency in the indictment.” (Id. at 186.) After return of the mandate from the Court of Special Appeals, Blondes on April 2, 1973, filed a motion to dismiss the indictment and a motion to inspect the Grand Jury minutes. Petitioner alleged that the indictment was invalid because the Grand Jury indicted him “solely as a result of its inquiry into” his legislative motives and acts. The State opposed these motions, arguing that the Grand Jury did not indict Blondes solely as a result of its inquiry into his legislative acts and motives. However, the prosecuting attorney apparently was uncertain about the continuing validity of the indictment because on April 4,1973, the State filed an information which was identical in wording to the first two counts of the indictment.

The motions to dismiss the indictment and to inspect the Grand Jury minutes were heard by the Circuit Court for Montgomery County (Prendergast, J.), on April 4, 1973. At that hearing, the prosecuting attorney at one point suggested that the trial proceed on the information, that this ⁴³⁹ would render the motion to dismiss the indictment moot, and that, after a verdict, the indictment could be disposed of. The petitioner, on the other hand, maintained that the indictment should be “nol-prossed or withdrawn or dismissed or some definitive kind of action taken in reference to the indictment.” At the conclusion of the hearing, the trial court reserved ruling on petitioner’s motions, and they have never been ruled upon. The following day, April 5, 1973, the court assigned the case for trial to be held on May 7,1973.

On April 18, 1973, Blondes filed a motion to dismiss the information. He asserted that the State had no jurisdiction to proceed by information, that the State had abandoned the prosecution under the indictment, that such an abandonment was the equivalent of the State’s entry of a nolle prosequi on the charges so abandoned, and that the double jeopardy provision of the Fifth Amendment prohibited his further prosecution. On April 30,1973, the State sought an order for the taking of the testimony of one of its witnesses, Revelle Stuart Armiger, by deposition. The State alleged that the witness’s testimony was material to the State’s case, and that the witness might be prevented from attending the trial because of his absence from Maryland.

The petitioner objected to the State’s taking this deposition, urging that it was a step in the prosecution and placed him in jeopardy. The circuit court (Mathias, J.), on April 30, 1973, ordered that the deposition be taken and that Blondes be present with his attorney at the taking of the deposition. As ordered by the court, Blondes and his attorney appeared on May 1, 1973, for the taking of Armiger’s deposition. Before Armiger began to testify, Blondes’s attorney requested that the State advise him as to “which of the charging documents we are taking this deposition pursuant to, namely, the indictment, returned on May 24, 1971, or the information filed on April 4, 1973 . . . .” The prosecuting attorney replied “that the State is not answering” the question.

Blondes’s attorney objected “because I don’t know whether you are proceeding under the ⁴⁴⁰ indictment or under the information.” The defense attorney went on: “Let the record show on the question of double jeopardy, I raise that again and state that this is a step in the prosecution of the Defendant . .. and we object to the proceedings.... Also, we demand that the State elect under which charging document the State is proceeding.” The State declined to answer, the witness Armiger was sworn, and he gave his testimony. On May 7, 1973, the scheduled trial date, the proceedings opened before Judge Prendergast with the prosecuting attorney informing the court that the witness Armiger was out of the State, that Mr. James Robert Miller, attorney for Armiger, was present in the courtroom to testify concerning the whereabouts of Mr. Armiger, and that the State would like a ruling concerning the admissibility in evidence of Armiger’s deposition. Blondes’s attorney objected to admitting the deposition.

The trial judge then decided that Mr. Miller, attorney for Mr. Armiger, would be heard concerning the whereabouts of Mr. Armiger. Mr. Miller was sworn, examined and cross-examined concerning Armiger’s absence. After Miller completed his testimony, the prosecuting attorney “offerfed] ... in evidence the transcript of the proceedings on April 30” containing the argument as to whether or not the Armiger deposition should have been taken. Blondes’s attorney objected to the admission of this transcript, pointing out that “I don’t know in what proceedings he is offering this.” The court then asked the prosecuting attorney, “Don’t you think you should make a selection or decision” as to whether the State was proceeding under the indictment or the information.

Nevertheless, the prosecuting attorney still refused to make an election. Oral argument ensued concerning the admissibility of the deposition and the April 30th transcript. Thereafter, Blondes’s attorney reiterated his position that the taking of the Armiger deposition and the course of proceedings had, in his view, placed Blondes in jeopardy. Blondes’s attorney argued extensively that the information ⁴⁴¹ should be dismissed because “the Defendant. .. has been placed in jeopardy twice for the same offense.” Following argument, the prosecuting attorney finally made an election and entered a mile prosequi with respect to the remaining two counts of the indictment, saying: “Frankly, Your Honor, I do not believe that I need in order for a proper valid proceeding or trial to take place on the information, I do not believe that I need to dispose of the indictment, but I would at this time in order to expedite these proceedings and to simplify the considerations before the Court, I would at this time pursuant to the provisions of Maryland Rule 711 enter a nolle prosequi to both of the remaining counts in the indictment only; namely, the first and second counts, and may the record reflect that this action is being taken prior to the time when the indictment or any other charge was called for trial, but at any rate, pursuant to the provisions of Maryland Rule 711, I would enter a nolle prosequi to the indictment. “Now, that makes unnecessary, I believe, the semantic question of whether I have abandoned the indictment because I now explicitly abandon the indictment and nolle pros it.” The court then asked the defense attorney his position as to the effect of the nolle prosequi, and the following colloquy took place: “The Court: Mr. Simpson, did you wish to answer the one point as to the effect of the nol pros of the indictment now, which I think is the heart of your point of double jeopardy, is it not? “Mr. Simpson: That’s correct, and I submit that the entry of the nolle precludes the State from going forward because the very charge with which the Defendant is charged has been nolle prossed, which at this stage of the proceedings is tantamount to the acquittal, and it is subsequent to ⁴⁴² the taking of the deposition, and the State says that that is not a part of the trial, but I submit that that is the actual taking of testimony.

The witness confronted the accused. He was cross examined extensively by the State. He was cross examined by the Defendant, and in all respects that is a step in the proceedings or in the trial, and the nolle pros is a final conclusion of the indictment, which contains each and every one of the allegations of the information, and that the same is entered after trial has occurred and when the retrial was pending, and after the taking of testimony in the second trial, now, the testimony being that of Mr. Armiger, the witness, who is outside of the confines of the Court. “Thus, the Court’s ruling on the motion to dismiss the information should be in the affirmative and the motion should be granted and the Defendant should be discharged.” The court then, “with some misgivings,” rejected the double jeopardy claim and overruled the motion to dismiss the information. Blondes’s attorney informed the court of his intention to appeal the denial of the motion to dismiss the information.

In response to this, the trial judge “rescind[ed] ” the ruling on the motion to dismiss the information and reserved his ruling on it “because I don’t think this trial should be delayed.” Blondes’s attorney objected to this and filed a handwritten notice of appeal with the court. The proceedings continued, and at the close of the trial the court denied Blondes’s motion to dismiss the information, found him guilty under both the first and second counts of the information, and fined him $2,500. Thereafter, Blondes filed another notice of appeal to the Court of Special Appeals. That court affirmed the judgment, Blondes v. State, 19 Md. App. 714 , 314 A. 2d 746 (1974), and we granted a writ of certiorari.

As we have pointed out on several occasions recently, the ⁴⁴³ prohibition against twice placing a criminal defendant in jeopardy is applicable in this state as a common law principle and also, since the Supreme Court’s decision in Benton v. Maryland, 395 U. S. 784 , 89 S. Ct. 2056 , 23 L.Ed.2d 707 (1969), by virtue of the Fifth and Fourteenth Amendments to the United States Constitution. Neal v. State, 272 Md. 323, 327 , 322 A. 2d 887 (1974); Cornish v. State, 272 Md. 312, 316 , 322 A. 2d 880 (1974); Matter of Anderson, 272 Md. 85, 92-93 , 321 A. 2d 516 (1974); Pugh v. State, 271 Md. 701, 704-705 , 319 A. 2d 542 (1974); Couser v. State, 256 Md. 393 , 260 A. 2d 334 (1970); State v. Barger, 242 Md. 616 , 220 A. 2d 304 (1966). One aspect of the double jeopardy prohibition which is firmly settled in this state as a common law principle, is that the entry of a nolle prosequi, without the defendant’s consent, and after jeopardy has attached, operates as an acquittal and precludes further prosecution for the same offense. Friend v. State, 175 Md. 352, 355-356 , 2 A. 2d 430 (1938); Williams v. State, 7 Md. App. 241, 245 , 254 A. 2d 376 (1969), cert. denied, 256 Md. 749 (1970);