Carey v. State

Thompson, J., delivered the opinion of the Court. On August 30, 1976, Alford Robus Carey, Jr., the appellant, was indicted on ten counts of bribery and two counts of extortion by the Grand Jury for Anne Arundel County. On November 15, 1976, the appellant filed a motion to dismiss the indictment alleging the violation of a plea bargaining agreement in a prior case in which the appellant had pled guilty to forgery and false pretenses. After a full hearing, the trial judge on January 11, 1977, denied the motion, finding no violation of the plea bargaining agreement.

After a status conference on February 16, the trial judge fixed the trial date for May 31, and allowed the appellant three weeks in which to file pretrial motions and the State two weeks thereafter in which to answer. On May 24, after the time had expired, the appellant filed a motion to dismiss the indictment alleging preindictment delay and prosecutorial misconduct. The State promptly answered and a hearing was held on the motion on May 31, June 1, 2, and 3. Much of the testimony produced by the appellant and the State was a rehash of testimony that had been presented on the prior motion.

On the morning of June 3, the appellant filed what he designated a supplemental motion to dismiss, alleging double jeopardy. At the end of the day the trial judge announced his intentions to start the trial on Monday, June 6, and to hold the motions to dismiss sub curia. At the end of the day the appellant filed this appeal in which he alleges that the trial judge erred in refusing to dismiss the indictment as violative of the prohibition against double jeopardy. The State filed a motion to dismiss the appeal arguing it was premature, citing Neal v. State, 272 Md. 323 , 322 A. 2d 887 (1974) and Taylor v. State, 22 Md. App. 370 , 323 A. 2d 648 (1974).

The motion was denied on June 13,1977 in light of Claybrooks v. State, 36 Md. App. 295 , 374 A. 2d 365 (1977). The facts that gave rise to the double jeopardy claim are ⁶⁹² as follows. On July 22, 1975, the Grand Jury for Anne Arundel County returned an indictment against the appellant on the forgery and false pretenses charges mentioned above. The indictment arose out of appellant’s activities as Executive Director of the Interagency Committee on School Construction (IAC).

During his tenure as Director, the IAC ádvertised bids for relocatable classrooms. On June 6, 1972, Globe Industries, Inc. received a contract for the construction of the classrooms. A change order was made on February 20, 1973, to reflect the purchase of additional classrooms and as a part of this change order Globe agreed to construct foundations at the sites of the classroom buildings. This aspect of Globe’s obligation was subcontracted to R & M Erectors, an unincorporated business operated by Robert R. Hastings, Sr. The activity of the appellant which led to the forgery and false pretenses indictment began when he prepared a false invoice from R & M Erectors in the amount of $22,105.19 dated November 1, 1973 for work that had not been performed.

The appellant approved the invoice and received a check from the State in the full amount, payable to Robert R. Hastings. On November 23,1973, the appellant entered a branch of the Equitable Trust Company and opened a checking account in the name of Hastings with the check he had received, and money from the checking account was then used to pay personal debts. The appellant entered into an agreement with the State on January 9, 1976, to plead guilty to those counts of the indictment charging him with common law forgery and obtaining money by false pretenses. As part of the agreement the State agreed not to seek further indictments for crimes based on evidence “already in the possession of and fully developed by the State” as of that date.

The present indictment, charging the appellant with bribery and extortion, arose out of payments alleged to have been made by officers of Globe to the appellant in connection with the contract for the construction of relocatable classrooms. ⁶⁹³ It is the appellant’s contention that the indictment for bribery and extortion is barred by his previous