Copsey v. State

MOYLAN, Judge. The mushrooming case law on double jeopardy over the last several decades has treated almost exclusively the subtleties and nuances emerging on the far periphery of that complex subject—collateral estoppel, multiple-jurisdiction prosecutions, prosecutorial overreaching, etc. The present appeal, by way of contrast, touches the core value of that law. Whereas frequently we are confronting strained attenuations of the invigorating principle, we are looking here at the very paradigm of the double jeopardy protection. “Double jeopardy” was a convenient umbrella term adopted by Sir William Blackstone to cover, along with several other closely related pleas no longer pertinent, the two common law pleas in bar of autrefois acquit (former acquittal) and autrefois convict (former conviction). These were not and are not general issue pleas for purposes of defending upon the merits.

They were and are pleas in bar, intended to be interposed in advance of a contemplated subsequent trial for the purpose of foreclosing that trial. Collectively, they are sometimes referred to as “res judicata in prison gray.” The purpose served by the plea of former acquittal is that of preventing a defendant who has once survived his initial jeopardy from being “twice vexed” by a fresh expo ²²⁶ sure to the hazard of conviction for that same offense. The purpose served by the plea of former conviction is that of preventing a defendant who has once been convicted of an offense from being exposed to the hazard of being twice punished for that same offense. The appellant, James Wilmer Copsey, claims that he was unconstitutionally subjected to the risk of multiple punishment for the same offense in contravention of his Fifth Amendment right against double jeopardy, made applicable to the states through the due process clause of the Fourteenth Amendment.

Benton v. Maryland, 395 U.S. 784 , 89 S.Ct. 2056 , 23 L.Ed.2d 707 (1969). We agree that he was. The appellant was initially charged and convicted in St. Mary’s County for a continuing sexual offense (the conviction, upon a plea of guilty, was literally for a sexual offense in the second degree) against a minor. He was subsequently charged in Charles County for what was, in effect (despite the proliferation of counts), a continuing sexual offense against the same minor male over a shorter but included period of time.

The appellant interposed a plea of double jeopardy as a bar to trial in Charles County. That plea was denied, and this appeal has timely followed. The prosecution of this case, commenced in St. Mary’s County, was presented with two initially troubling but readily surmountable obstacles—one temporal and the other, geographic. The manner in which those obstacles were overcome affected directly the contours of the jeopardy to which the appellant was first exposed.

The appellant, a 59-year-old man at the time the St. Mary’s County charges were filed, was suspected of and was arrested for having committed fellatio and anal intercourse on almost a daily basis over a five-year period with the young boy, who was approximately 10 years of age when the pattern of criminal behavior began and was 14 years of age when charges yvere ultimately brought. Armed with strong proof of criminal behavior generally but with little realistic way of pinpointing precise dates, the ²²⁷ State prudently charged the appellant with a single continuing offense from January 1, 1979, through November 1, 1984. That charging option obviously facilitated the State’s burden of proof. Proof of a sexual offense upon the victim at any time within the almost six-year period would suffice to sustain the charge.

As a result, of course, the appellant was thereby placed in jeopardy for any sexual offense he perpetrated upon the victim at any time during that all-embracing period. As a practical matter, the State had much to gain through the easing of its problem of proof and very little to lose by way of diminishing the potential for punishment. The maximum sentence available for even a single such conviction was enough to satisfy the State’s desire for punishment, particularly in view of the fact that the appellant would be 59 years of age at the time of sentencing. If a conviction had been returned on the first count charging a sexual offense in the first degree, the maximum punishment could have been life imprisonment.

Even upon the second count, on which the guilty plea was ultimately entered, the maximum penalty was twenty years in prison. As a purely theoretical matter, of course, the State paid a calculated price for this tactical advantage. Had diaries, journals, or other records been available, from either the appellant or the victim, to pinpoint precise sexual episodes on precise days, the appellant might theoretically have faced 2,132 criminal charges, one for each and every day. In exchange for a tactical trial advantage, the State forfeited the possibility of a sentence of 2,132 consecutive life terms.

Even upon the second counts, the State exchanged the potential for a term of 42,640 years for a potential term of twenty years. In doctrinal terms, what could have been 2,132 distinct and non-overlapping jeopardies were consolidated into a single jeopardy. If separately charged, a criminal episode on January 1, 1979, and another criminal episode on November 1, 1984, quite obviously might involve separate and ²²⁸ distinct jeopardies so as not to raise the spectre of double jeopardy when the trial of one followed or paralleled the trial of the other. If, however, the charge encompasses both dates within the outer limits of a single continuing offense, jeopardy for either is jeopardy for both.

The breadth of jeopardy may sometimes be a function of the charging document rather than a function of the criminal act itself. On the time line, then, the charge as to which the appellant stood in jeopardy in St. Mary’s County on July 9, 1985 (when his case was called for trial and jeopardy attached), operated to place him in jeopardy for all sexual offenses against the named victim between January 1, 1979, and November 1, 1984. That was the direct result of the manner by which the State chose to handle the problem of charging and proving the date of the offense. We turn from the State’s handling of its temporal problem to its handling of the geographic problem.

Over the course of the five-to-six-year period with which we are concerned, the appellant and his victim were in virtually daily contact at Mickey’s Shell Station in St. Mary’s County. The location of Mickey’s Shell Station is extremely close to the Charles County line. Little, if any, of the criminal sexual behavior actually took place at Mickey’s Shell Station. The regular pattern of conduct was for the appellant and his victim to leave Mickey’s Shell Station and go directly to the two-room house owned by the appellant on Oak Road in Charlotte Hall.

The vast majority of the sexual offenses occurred in that two-room house, which happened to be just across the Charles County line. The evidence also revealed that on one occasion a sexual offense was committed in a residence on Cobb Island, also just across the Charles County line. On several occasions during one of the summers, there were sexual offenses which took place on the appellant’s boat in the area of Benedict, also just across the Charles County line. The ongoing pattern, therefore, was to leave St. Mary’s County for purposes of ²²⁹ sexual contact, to engage in the sexual behavior in Charles County, and then to return to St. Mary’s County.

Two provisions of the Annotated Code of Maryland, Article 27, make it easier for the State to charge and to prove a crime when there is some ambiguity or imprecision as to the county in which the crime occurred. In easing the venue problem for criminal offenses generally, when they are committed on or near boundary lines of counties, § 590 provides: “Any person who may commit any crimes, felony or misdemeanor, on or at the boundary or divisional line between any of the counties in this State, or so near thereto or where the exact location of such boundary is so uncertain as to render it doubtful in which county the offense was committed, then the county which first assumes jurisdiction by issuing process for the arrest and prosecution of the offender shall have jurisdiction to charge, present, indict, try, convict and sentence; and in such case it shall be only necessary for the State to establish the venue alleged in the information, warrant or indictment, by proving that the offense was at or on the boundary of the county wherein the accused is being tried, or was so near thereto or the location of the boundary is so uncertain as to render it doubtful in which county the crime was committed.” Quite aside from the question of geographic uncertainty, § 465, as part of the Sexual Offenses subtitle, further provides: “If a person is transported by any means, with the intent to violate this subheading and the intent is followed by actual violation of this subheading, the defendant may be tried in the appropriate court within whose jurisdiction the county lies where the transportation was offered, solicited, begun, continued or ended.” In this case, the appellant could properly have been charged, tried, and convicted in either St. Mary’s County or Charles County. St. Mary’s County, however, moved first. ²³⁰ The criminal information was filed in St. Mary’s County on December 18, 1984. The Charles County indictment was handed down on February 19, 1985.

More significantly, jeopardy attached to the appellant in St. Mary’s County on July 9, 1985. It never has