Daff v. State

McAULIFFE, Judge. Troy Edward Daff was found not guilty of the assault and battery of two persons. The State filed an order of appeal, but before its right to do so could be challenged, it dismissed the appeal. The State then filed new charges against Daff for the same offenses.

Daff procured the dismissal of those charges on double jeopardy grounds, and the State again appealed. The Court of Special Appeals reversed. State v. Daff, 77 Md.App. 16 , 549 A.2d 25 (1988). We granted certiorari.

Ordinarily, the common law doctrine of double jeopardy, embracing as it does the principles supporting the ancient plea of autrefois acquit, prohibits a second prosecution following an acquittal of the same offense. The question raised by this case involves the circumstances under which the entry of a verdict of not guilty will result in the application of those principles. Daff was originally charged in the District Court of Maryland for Anne Arundel County. The case was removed to the Circuit Court for that county on 8 May 1987, by Daff’s demand for a jury trial.

On 22 June, Daff’s ⁶⁸¹ attorney entered his appearance in the case, and on 18 August the defendant filed a written plea of not guilty and an election to be tried by the court. The matter came on for trial on the scheduled date of 4 September, before Judge James C. Cawood, Jr. When the case was called, the prosecutor asked that the names of the prosecuting witnesses be called. When neither witness responded, the prosecutor inquired of the court whether the file reflected that witness subpoenas had been served on the complainants. He was informed that the witness subpoenas had not been issued, and that there was no request for their issuance in the court file.

The prosecutor said that notes in his file indicated that his office had forwarded to the clerk of the court a written request for the issuance of the subpoenas. The prosecutor could not explain why the request was not in the court file, nor why it had not been acted upon by the clerk. He requested a postponement of the trial. Judge Cawood then questioned the prosecutor concerning any attempts the State’s Attorney’s office might have made to contact the witnesses between the time the trial date was established in May and the actual trial date in September.

Learning that there had been no recent attempts to contact the witnesses, and no follow-up inquiry to determine whether the subpoenas had been issued or served, Judge Cawood denied the continuance. 1 The following colloquy occurred: COURT: Okay. All right, well, there may have been a request to put it on the computer, but there was never a summons issued and frankly, there hasn’t been any follow-up to it. I think there is some duty to try and follow these things up. I’ll deny the postponement ...

I think he was here and ready to proceed ... should have been ⁶⁸² followed up. If you can’t proceed with the case, are you going to nolle pros it? DEFENSE ATTORNEY: We enter a plea of not guilty, Your Honor. I’d like to be tried before Your Honor.

PROSECUTOR: Well, the State would not proceed at this time, Your Honor. COURT: All right, we’ll enter a nolle pros in the two cases then. PROSECUTOR: The State does not move to nolle pros the cases, Your Honor. COURT: Oh, the State doesn’t move____ PROSECUTOR: No, Your Honor.

COURT: All right, then I’m going to enter a finding of not guilty. The docket entry for that day reads: September 4 Court trial (Judge Cawood), Plea Not Guilty, Counsel heard, State’s request for a postponement, Denied. Finding: NOT GUILTY. The prosecutor filed an order for appeal.

Two months later, following a discussion between the prosecutor and a representative of the Attorney General’s office, the State dismissed the appeal. At the same time, the State filed a Bill of Information in the Circuit Court for Anne Arundel County, charging Daff with the same two offenses. Daff moved to dismiss the charges, relying on the double jeopardy protections of the common law of Maryland and of the Fifth and Fourteenth Amendments to the United States Constitution. Judge Bruce C. Williams granted Daff’s motion, and the State appealed.

The Court of Special Appeals reversed, concluding that jeopardy had not attached when Judge Cawood entered the finding of not guilty, and that the prosecution was therefore free to renew the charges. State v. Daff, supra, 77 Md.App. at 19-20 , 549 A.2d 25 . We granted certiorari, and we reverse the Court of Special Appeals and direct that the judgment of the trial court be affirmed. ⁶⁸³ Double jeopardy protections exist in this State not only by virtue of the Fifth and Fourteenth Amendments to the United States Constitution, but also by the continued existence of the common law of double jeopardy. Wright v. State, 307 Md. 552, 561-62 , 515 A.2d 1157 (1986); Brooks v. State, 299 Md. 146 , 472 A.2d 981 (1984); Ward v. State, 290 Md. 76 , 427 A.2d 1008 (1981); Block v. State, 286 Md. 266 , 407 A.2d 320 (1979); Pugh v. State, 271 Md. 701 , 319 A.2d 542 (1974).

As the United States Supreme Court noted in United States v. Martin Linen Supply Co., 430 U.S. 564, 571 , 97 S.Ct. 1349, 1354 , 51 L.Ed.2d 642 (1977): Perhaps the most fundamental rule in the history of double jeopardy jurisprudence has been that “[a] verdict of acquittal ... could not be reviewed, on error or otherwise, without putting [a defendant] twice in jeopardy, and thereby violating the Constitution.” United States v. Ball, 163 U.S. 662, 671 , 16 S.Ct. 1192, 1195 , 41 L.Ed. 300 (1896). Similarly, a defendant acquitted at trial may not be retried on the same offense, even when the acquittal is “based upon an egregiously erroneous foundation.” Fong Foo v. United States, 369 U.S. 141, 143 , 82 S.Ct. 671, 672 , 7 L.Ed.2d 629 (1962). See also Sanabria v. United States, 437 U.S. 54, 64 , 98 S.Ct. 2170, 2178 , 57 L.Ed.2d 43 (1978); Green v. United States, 355 U.S. 184, 188 , 78 S.Ct. 221, 223 , 2 L.Ed.2d 199 (1957). In discussing the common law precedent for these statements of constitutional law, this Court said in State v. Shields, 49 Md. 301, 303 (1878): It has always been a settled rule of the common law that after an acquittal of a party upon a regular trial on an indictment for either a felony or a misdemeanor, the verdict of acquittal can never afterward, on the application of the prosecutor, in any form of proceeding, be set aside and a new trial granted, and it matters not whether such verdict be the result of a misdirection of the judge on a question of law, or of a misconception of fact on the part of the jury. 2 Hale’s P.C. 310; 2 Hawk’s P.C. Book ⁶⁸⁴ 2, ch. 47, sec. 12; 3 Whart.Cr.Law, sec. 3221; 1 Bishop’s Cr.Law, secs. 992, 993.

This cardinal rule has been clearly and definitely settled in England, and has never been modified by legislation there, nor in any other State in this Union, nor indeed, so far as we are aware, in any other country where trial by jury under the common law prevails. The defense of former acquittal was formerly raised by the plea in bar of autrefois acquit, which was addressed in 4 Blackstone’s Commentaries at 355: [T]he plea of autrefoits acquit, or a former acquittal, is grounded on this universal maxim of the common law of England, that no man is to be brought into jeopardy of his life more than once for the same offence. And hence it is allowed as a consequence, that when a man is once fairly found not guilty upon any indictment or other prosecution, before any court having competent jurisdiction of the offence, he may plead such acquittal in bar of any subsequent accusation for the same crime. The principle embodied in the plea of autrefois acquit has been broadly interpreted.

A verdict of not guilty, even though not followed by a judgment on the docket, is sufficient to invoke the protection. Pugh v. State, supra, 271 Md. at 706-07 , 319 A.2d 542 . Once a trial judge has intentionally rendered a verdict of not guilty, a subsequent change of mind is prohibited even though the judge may be convinced, even moments later, that the verdict was erroneous. Id. at 707, 319 A.2d 542 ; Brooks v. State, supra, 299 Md. at 155 , 472 A.2d 981 .

The court entering the acquittal must have basic subject matter jurisdiction, but procedural errors will not affect the efficacy of the acquittal for jeopardy purposes. 2 Hawkins, Pleas of the Crown 521 (8th ed. 1824); 2 Hale’s Pleas of the Crown 247 (1st Am.Ed. 1847). See Block v. State, supra, 286 Md. at 273-74 , 407 A.2d 320 (improper or defective exercise of jurisdiction does not deprive an acquittal of its finality); Parojinog v. State, 282 Md. 256 , 384 A.2d 86 (1978) (although juvenile judge lacked authority under the statute ⁶⁸⁵ and rules to enter a verdict when he did, the verdict is final for jeopardy purposes because the court had subject matter jurisdiction and jurisdiction over the respondent). An acquittal entered after trial on a fatally defective indictment is nevertheless effective to bar a subsequent prosecution for the same offense if the court had jurisdiction of the cause and of the party. Benton v. Maryland, 395 U.S. 784, 796-97 , 89 S.Ct. 2056, 2063-64 , 23 L.Ed.2d 707 (1969); United States v. Ball, 163 U.S. 662, 669-70 , 16 S.Ct. 1192, 1194-95 , 41 L.Ed. 300 (1896); Block v. State, supra, 286 Md. at 272-73 , 407 A.2d 320 .

A previous judgment of acquittal upon a former indictment for the same offense on the ground that prosecution was barred by the statute of limitations, though in error, is a bar to a subsequent prosecution. United States v. Oppenheimer, 242 U.S. 85 , 37 S.Ct. 68 , 61 L.Ed. 161 (1916). A “dismissal” on the ground of insufficiency of evidence is an acquittal for jeopardy purposes. Sanabria v. United States, supra, 437 U.S. at 71-73 , 98 S.Ct. at 2182-84 .

In the instant case, the Circuit Court for Anne Arundel County had jurisdiction over the subject matter and over the defendant. The case had been called for