Brown v. State

Thompson, J., delivered the opinion of the Court. Bernard Brown, the appellant, was indicted for robbery with a deadly weapon. His motion to dismiss the in ⁴¹⁷ dictment was denied by Judge Basil A. Thomas in the Criminal Court of Baltimore. From this denial, he filed an immediate appeal.

Henry Last, operator of Henry’s Self-Service, was killed during an armed robbery of his store. On February 13, 1969, the appellant was convicted of first degree murder for the homicide. Since it was shown that appellant was one of the robbers, the appellant and the State agreed that appellant was convicted of the murder by use of the felony-murder rule. On March 14, 1969, appellant was sentenced to life imprisonment for the murder conviction.

This conviction was affirmed by the Court of Special Appeals in Brown v. State, No. 330 September Term, 1969, an unreported opinion decided May 6, 1970. On April 8, 1969, appellant was indicted for robbery with a deadly weapon of Henry Last. Counsel for appellant filed a motion to dismiss the indictment, alleging double jeopardy. This appeal results from the denial of appellant’s motion to dismiss.

In this appeal, appellant argues that the indictment for robbery with a deadly weapon should be dismissed because it violates the principles of double jeopardy, collateral estoppel, and res judicata. The question as to double jeopardy was decided adversely to the appellant’s position in the case of McChan v. State, 9 Md. App. 311 , 264 A. 2d 130 on the basis that felony-murder and the felony were separate crimes and did not merge. Appellant next argues that the doctrine of “collateral estoppel” prevents him from being tried on the robbery charge after evidence sufficient to prove the robbery was admitted in his murder trial. He relies on Ashe v. Swenson, 397 U. S. 436 , 90 S. Ct. 1189 , 25 L.Ed.2d 469 .

Although collateral estoppel has been raised in this Court, see Boblits v. State, 7 Md. App. 391 , 256 A. 2d 187 and Jenkins v. State, 3 Md. App. 243 , 238 A. 2d 922 , the Ashe case gives a more complete discussion of the doctrine and its applicability. According to Ashe , collateral estoppel “means simply that when a issue of ultimate fact has once ⁴¹⁸ been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” 90 S. Ct. at 1194 . The Court held that when Benton v. Maryland, 395 U. S. 784 , 89 S. Ct. 2056 , 23 L.Ed.2d 707 applied fifth amendment double jeopardy protection to the states, it also applied the doctrine of collateral estoppel to the states as a matter of federal constitutional law. In Ashe , the appellant was acquitted at the first trial in such a manner that the State’s retrial involved exactly and specifically the identical point, i.e., appellant’s identity as a robber.

As this Court reads the Ashe opinion, it would appear that had the defendant been convicted at the first trial, then the State would not have been prevented from trying the appellant at subsequent trials for the robbery of additional victims of the same robbery involved in the original trial. This impression of the Ashe case is supported by footnote 13 in Justice Brennan’s concurring opinion which says: “And, of course, collateral estoppel