Hunt v. State

ALPERT, Judge. Appellant, Cortez Dion Hunt, was charged in the Circuit Court for Montgomery County on two drug-related offenses, (1) possession of cocaine, and (2) possession with intent to distribute cocaine. The jury convicted appellant on the simple possession count, but was unable to reach a verdict on the possession with intent to distribute count. ⁴⁷⁴ As a result, a mistrial was declared on the distribution count and a retrial was subsequently scheduled for April 21, 1992. The sentencing hearing for the simple possession count was scheduled for January 29, 1992.

At the hearing, the State moved to postpone the sentencing until after appellant has been retried on the distribution count. Defense counsel objected to the motion and insisted that appellant be sentenced that day. The parties acknowledged that, if retrial resulted in conviction, a sentence on the distribution count would be greater than the one imposed for simple possession. Nevertheless, defense counsel continued to request the court to sentence appellant immediately on the possession count, and in so doing, explicitly acknowledged that a subsequent conviction on the distribution charge would necessitate a separate sentence.

The court denied the State’s request for postponement and sentenced the appellant to twelve months incarceration with credit for time served. On April 21, 1992, the date on which appellant was to be retried, defense counsel moved to dismiss the distribution charge on the ground that retrial was barred by double jeopardy law. The trial court denied Appellant’s request, whereupon appellant filed this timely appeal. The sole issue before us is whether the trial court erred in denying appellant’s motion to dismiss the retrial.

Stated more specifically, was appellant’s retrial on the charge of possession with intent to distribute cocaine barred under the double jeopardy prohibition against multiple punishments for the same offense so as to mandate a dismissal and thus bar the retrial? We respond in the negative and therefore affirm. I. Maryland common law versus Fifth Amendment The prohibition against placing an accused twice in jeopardy for the same offense is rooted in both Maryland common law and the Fifth Amendment to the United States Constitution as applied to the States through the Four ⁴⁷⁵ teenth Amendment. Benton v. Maryland, 395 U.S. 784 , 89 S.Ct. 2056 , 23 L.Ed.2d 707 (1969).

The complexity of deciphering double jeopardy issues often hinges on the different interpretations given to the common law versus those given to the Fifth Amendment. In a recent decision we noted, In Middleton [v. State, 318 Md. 749 , 569 A.2d 1276 (1990)]. ... the Court of Appeals made no clear determination as to the meaning of Ohio v. Johnson[, 467 U.S. 493 , 104 S.Ct. 2536 , 81 L.Ed.2d 425 (1984)] in [the] context [of double jeopardy law], but chose instead to announce and apply a different rule as a matter of Maryland common law. As that rule is more favorable to defendants and is therefore not precluded by the Constitutional principles formulated by the Supreme Court, it is the one that effectively binds us and the trial courts of this State. Griffiths v. State, 93 Md.App. 125, 133 , 611 A.2d 1025 (1992). 1 Under the Double Jeopardy clause of the Fifth Amendment, when an individual is indicted on two offenses, one being a lesser-included offense of the other, and the jury is hopelessly deadlocked as to the greater offense but has entered a judgment on the lesser-included offense, the government is not precluded from prosecuting the greater offense.

Ohio v. Johnson, 467 U.S. at 497-502 , 104 S.Ct. at 2539-2543 . Under Maryland common law, however, the state is precluded from further prosecution. Middleton, 318 Md. at 760 , 569 A.2d 1276 .

II

Appellant’s Arguments Appellant relies on the distinction between the Maryland common law and U.S. Constitutional law as support for barring the retrial in his case. Appellant was charged with ⁴⁷⁶ possession of cocaine and possession with intent to distribute cocaine. He argues (1) that possession of cocaine is a lesser-included offense of possession with intent to distribute, and (2) that he was convicted and sentenced on the possession charge, with the jury deadlocked as to the intent to distribute chárge; therefore, Maryland common law bars the State from prosecuting him on the greater offense. At first blush, it appears that Maryland authority on this issue, Middleton and Griffiths , uphold appellant’s syllogism, especially given the following statement from Griffiths : It is important that trial judges fully understand the effect of Middleton and, when faced with this kind of situation, unless there are exceptional circumstances requiring a different course, that they defer imposing sentence on the lesser included offenses until the greater offense is retried or the State abandons the prosecution. 93 Md.App. at 134 , 611 A.2d 1025 (most emphasis deleted).

If the facts of this case were as simple as appellant portrays them, he would be accurate in his conclusion. He is correct that we are applying Maryland common law and not the Fifth Amendment. He is also correct in his analysis and interpretation of the Maryland common law. He fails, however,' to recognize the significance of the “exceptional circumstances” in this particular case which not only distinguish it from those cases he cites, but preclude him from successfully asserting double jeopardy as a defense at all.

By requesting, over the State’s motion for postponement, that he be sentenced before his retrial, appellant has waived any rights he may have had to raise the defense of double jeopardy.

III

Waiver The right not to be twice put in jeopardy is a personal right that may be waived. See, e.g., U.S. v. Scott, 464 F.2d 832, 833 (D.C.Cir.1972). The theory of waiver has been asserted and upheld by the United States Supreme Court, the Court of Appeals of Maryland, and the various Circuits. The Supreme Court in Brown v. Ohio, 432 U.S. ⁴⁷⁷ 161, 97 S.Ct. 2221 , 53 L.Ed.2d 187 (1977), established the general rule that the Fifth Amendment’s double jeopardy clause prohibits the government from trying an accused for a greater offense after it has convicted him of a lesser-included offense.

Id. at 164-170, 97 S.Ct. at 2224-2228 . There are exceptions, however. These exceptions were noted in Jeffers v. United States, 432 U.S. 137 , 97 S.Ct. 2207 , 53 L.Ed.2d 168 (1977), another Supreme Court decision decided the same day as Brown . In Jeffers , the Court noted, One commonly recognized exception is when all the events necessary to the greater crime have not taken place at the time the prosecution for the lesser is begun.

This exception may also apply .when the facts necessary to the greater were not discovered despite the exercise of due diligence before the first trial. If the defendant expressly asks for separate trials on the greater and the lesser offenses, or, in connection with his opposition to trial together, fails to raise the issue that one offense might be a lesser included offense of the other, another exception to the Brown rule emerges. This situation is no different from others in which a defendant enjoys protection under the Double Jeopardy Clause, but for one reason or another retrial is not barred. Thus, for example, in the case of a retrial after a successful appeal from a conviction, the concept of continuing