Griffiths v. State

WILNER, Chief Judge. A person is entitled not to be twice placed in jeopardy for the same offense. That right, in Maryland, derives from two different sources — the Fifth Amendment to the United States Constitution, applicable to the States through the “due process” clause of the Fourteenth Amendment, and Maryland common law. For good or ill, unlike most due process rights finding expression in both Federal and Maryland law, the respective prohibitions against double jeopardy are not entirely synonymous, at least in application.

This appeal concerns, and hinges upon, one divergence between the State and Federal provisions. Appellant was charged in a five-count Criminal Information with possession of cocaine in sufficient quantity to ¹²⁷ indicate an intent to distribute the substance (Count 1), simple possession of cocaine (Count 2), possession of paraphernalia (Count 3), maintaining a nuisance (a house used for the distribution of cocaine) (Count 4), and carrying a firearm in relation to drug trafficking (Count 5). In January, 1991, he was brought to trial in the Circuit Court for Baltimore City on all five charges. The jury convicted him on Counts 2 and 3, acquitted him on Count 5, and was unable to reach a verdict on Counts 1 and 4.

A mistrial was declared as to those counts. After rendition of the verdicts, appellant moved the court to enter an acquittal on Count 1. In an accompanying memorandum, he argued that: “At a retrial of the first count on possession with the intent to distribute, the second trial judge cannot submit to the second jury a lesser and included count, since the first jury has already convicted on it. To do so would subject the Defendant to, two possession of cocaine charges for the same transaction.

Conversely, the Defendant is entitled by law to a lesser and included instruction, if tried over the objection of his counsel on double jeopardy grounds, which cannot be a part of the second trial. In short, the court can fashion no remedy in the second trial on this issue without creating substantial and irreversible practical and double jeopardy problems.” The court recognized that “[tjhere is a problematic as- pect.” In particular, it observed, as a matter of “common sense,” that “if defendant is convicted of Count 1, he cannot be sentenced on both Count 1 and Count 2 in separate judgments.” Nonetheless, despite that recognition, the court not only denied the motion for judgment of acquittal on Count 1, but proceeded to impose sentence on Counts 2 and 3, even before appellant was retried on Count 1. On Count 2, appellant was sentenced to four years in prison, with all but 18 months suspended; on Count 3, he was given three years probation. The State, it appears, never sought a retrial on Count 4, but it did bring him to trial again on Count 1.

Just before ¹²⁸ trial, appellant moved to dismiss that charge, essentially on the same ground he argued in his motion for judgment of acquittal. The court, through a different judge, also recognized a problem, but denied the motion. Appellant then entered an Alford plea, was convicted, and was sentenced on Count 1 to four years in prison, all but 18 months suspended, to run concurrently with the sentence previously imposed on Count 2. In this appeal, appellant, while remaining within the double jeopardy ballpark, shifts to a different side of the field.

He is no longer concerned about jury instructions, but urges that, because Count 2 (simple possession) is a lesser offense included within Count 1 (possession with intent to distribute), they are the “same offense” for double jeopardy purposes, and that, by virtue of his earlier conviction and sentence on Count 2, he could not properly be retried on Count 1. The branch of double jeopardy he invokes is autrefois convict, and to support his argument, he relies on Middleton v. State, 318 Md. 749 , 569 A.2d 1276 (1990). The State, in response, attempts to distinguish Middleton , relies more on our recent Opinion in Mauk v. State, 91 Md.App. 456 , 605 A.2d 157 (1992), and urges that any problem with respect to multiple sentences was waived by appellant’s failure to raise that issue at his sentencing hearing. We do not accept the State’s waiver argument.

Though not articulating precisely the same argument now raised by him, appellant made clear to the circuit court his view that, by virtue of his conviction on Count 2, retrial on Count 1 would place him twice in jeopardy for the same offense. Equally important, the judge who imposed sentence on Count 2 seemed expressly to recognize the double jeopardy problem arising from imposing sentence on both Count 1 and Count 2. The issue, therefore, was raised in and considered by the trial court. In Mauk v. State, supra, 91 Md.App. 456 , 605 A.2d 157 , we recognized that, because possession with intent to distribute subsumes within it simple possession, the two ¹²⁹ offenses constitute the “same offense” for double jeopardy purposes.

We then considered the effect of that in three different double jeopardy situational contexts — multiple punishment, sequential jeopardy, and continuing jeopardy. With respect to the first of these, we concluded, at 470, 605 A.2d 157 , that “the mere possibility of multiple punishment will not bar a second trial or a second conviction.” That aspect of double jeopardy is satisfied if the defendant does not receive any additional sentence following conviction at a second trial. Appellant makes no complaint in this appeal that the sentence imposed upon his ultimate conviction on Count 1 was improper. His complaint, rather, goes to the question of sequential or continuing jeopardy.

In Mauk , as here, the defendant was convicted of the lesser included offense of simple possession, but the jury hung on the greater inclusive offense of possession with intent to distribute. As here, the judge declared a mistrial on the greater offense but proceeded to impose sentence on the lesser offense. As here, Mauk moved, unsuccessfully, to have the greater offense dismissed on double jeopardy grounds. Unlike here, Mauk appealed the denial of his motion prior to retrial on the greater offense, a fact that we find is without significance.

Our consideration of Mauk’s argument and the State’s response was limited to the Constitutional strand of double jeopardy. We did not address the question in terms of Maryland common law. Based largely on Richardson v. United States, 468 U.S. 317 , 104 S.Ct. 3081 , 82 L.Ed.2d 242 (1984), Ohio v. Johnson, 467 U.S. 493 , 104 S.Ct. 2536 , 81 L.Ed.2d 425 (1984), Jeffers v. United States, 432 U.S. 137 , 97 S.Ct. 2207 , 53 L.Ed.2d 168 (1977), and a number of decisions in the courts of other States, we concluded, at 484, that “a retrial on a greater, inclusive offense, following a declaration of mistrial because of a hung jury, is not barred by double jeopardy principles notwithstanding the fact that a guilty verdict was accepted and a sentence imposed with respect to a lesser, included offense.” ¹³⁰ In Middleton v. State, supra, 318 Md. 749 , 569 A.2d 1276 , the Court of Appeals took a very different view based strictly on Maryland common law. Middleton was charged with a variety of offenses, including first and second degree rape, attempted first degree sexual offense, and use of a handgun in the commission of a felony.

The jury convicted of both first and second degree rape as well as the attempted sexual offense, but acquitted him on the handgun charge. The judge vacated the verdict as to the first degree rape, apparently on the ground that, as the only element raising the rape to first degree was the alleged use of a handgun in the commission of the rape, the acquittal on the handgun charge created an inconsistency in the two verdicts. He then imposed a 15-year sentence on the second degree 'conviction and,