Bynum v. State

Levine, J., delivered the opinion of the Court. This appeal stems from a conviction in the Circuit Court for Prince George’s County (Couch, J.) where a jury found appellant guilty of armed robbery, motor vehicle larceny and use of a handgun in the commission of a felony. On appeal, the Court of Special Appeals affirmed the judgment in an unreported opinion. Larry Donnell Bynum v. State of Maryland, [No. 16, September Term, 1975, filed September 16, 1975].

We granted certiorari to consider the question whether the action of the state in entering a nolle prosequi of a robbery charge precluded it from convicting appellant of armed robbery, based on the same conduct, under another count of the same indictment. Appellant and his cousin, Joseph Thorn, were charged in an 11-count indictment with the robbery of Thomas C. Mullen, who had picked them up while they were hitchhiking in the District of Columbia and offered to take them to a place in Prince George’s County. The undisputed evidence adduced at trial, and admitted by appellant, showed that Mullen had in fact been the victim of an armed robbery by Thorn committed in the presence of appellant. It being conclusively shown, therefore, that a robbery had been committed and that a deadly weapon, a gun, had been used in the commission of that robbery, the only issue at trial was whether appellant had participated in the commission of the crime, as indicated in the testimony of Mullen, or had merely stood by, as appellant himself claimed.

At the conclusion of all the testimony, counsel for appellant moved for a judgment of acquittal, which motion was denied. Thereupon the state, without appellant’s ⁷⁰⁵ consent, entered a nolle prosequi to Count III of the indictment charging simple robbery. There being no objection by defense counsel to the nolle prosequi, the case was then submitted to the jury on the armed robbery charge, Count I, and a verdict of guilty was returned. It is contended that the effect of submitting the armed robbery count to the jury after entry of the nolle prosequi as to the robbery count was to place appellant in jeopardy a second time for the same offense, contrary to the common law of this state and the Fifth and Fourteenth Amendments to the Federal Constitution.

See Benton v. Maryland, 395 U. S. 784 , 89 S. Ct. 2056 , 23 L.Ed.2d 707 (1969); State v. Barger, 242 Md. 616, 618-19 , 220 A. 2d 304 (1966). Appellant argues that a nolle prosequi as to a count in an indictment without the consent of the defendant operates as an acquittal of the offense charged in that count, thus barring subsequent prosecution for the same offense. And since robbery is a lesser offense included in the greater offense of armed robbery, it is urged that for purposes of the double jeopardy prohibition these offenses are the same. Therefore, appellant concludes, he was here placed twice in jeopardy for the same offense.

Though this contention, as noted by the Court of Special Appeals, is ingenious, if not novel, we find it to be without merit. Appellant’s argument, however, is not entirely misplaced. Where a nolle prosequi is entered before jeopardy attaches, the state is merely precluded from further prosecution under the indictment or count so dismissed. Barrett v. State, 155 Md. 636, 638 , 142 A. 96 (1928).

But the entry of a nolle prosequi without the defendant’s consent after jeopardy has attached operates as an acquittal, thereby precluding subsequent prosecution for the same offense. Blondes v. State, 273 Md. 435, 443 , 330 A. 2d 169 (1975); Friend v. State, 175 Md. 352, 356 , 2 A. 2d 430 (1938); Greathouse v. State, 5 Md. App. 675, 689 , 249 A. 2d 207 , cert. denied, 253 Md. 734 (1969); see Cornero v. United States, 48 F. 2d 69, 71 (9th Cir. 1931). There can be no question but that here jeopardy had attached when the state entered the nolle prosequi, it being after the close of testimony. See United States v. Jorn, 400 ⁷⁰⁶ U. S. 470, 480, 91 S. Ct. 547 , 27 L.Ed.2d 543 (1971); Blondes v. State, supra, 273 Md. at 444 ; Neal v. State, 272 Md. 323, 327 , 322 A. 2d 887 (1974).

Thus, after dismissal of the robbery count under these circumstances, subsequent prosecution for the same offense was barred by the double jeopardy prohibition. Nor, apparently, is appellant incorrect in his contention that the offense of robbery with a deadly weapon, charged in Count I of the indictment, is, for purposes of the prohibition against double jeopardy, the same offense charged in the robbery count, Count III. This Court recently had occasion to consider the question of the appropriate test for determining whether separate statutory provisions constitute the same offense for double jeopardy purposes. In Thomas v. State, 277 Md. 257 , 353 A. 2d 240 (1976), we applied the “required evidence test” as first enunciated in Morey v. Commonwealth, 108 Mass. 433, 434 (1871), and subsequently adopted by the Supreme Court as the appropriate test in connection with the Fifth Amendment double jeopardy prohibition, Gavieres v. United States, 220 U. S. 338, 342 , 31 S. Ct. 421 , 55 L. Ed. 489 (1911).

We said in Thomas : “The required evidence is that which is minimally necessary to secure a conviction for each statutory offense. If each offense requires proof of a fact which the other does not, or in other words, if each offense contains an element which the other does not, the offenses are not the same for double jeopardy purposes even though arising from the same conduct or episode. But, where only one offense requires proof of an additional fact, so that all elements of one offense are present in the other, the offenses are deemed to be the same for double jeopardy purposes.” 277 Md. at 267 (emphasis added). Here appellant was charged in the relevant counts of the indictment with robbery, Maryland Code (1957, 1976 Repl.

Vol.) Art. 27, § 486, and robbery with a deadly weapon, Art. 27, § 488. Though the term “robbery” is not defined in either ⁷⁰⁷ of those two sections, it is clear that the substantive crime referred to is that defined at common law. Darby v.