In re Michael E.

Lowe, J., delivered the opinion of the Court. Michael E. was charged in the Circuit Court for Talbot County, sitting as a juvenile court, with being a delinquent, having committed an arson of a dwelling house. "That MICHAEL E. on or about the 5th day of April, 1980, in Talbot County, Maryland, did maliciously set fire to and burn the dwelling house of William Henry Cecil, Jr. in violation of Article 27, Section 6 — Arson.” Although Md. Ann. Code art. 27, § 6 addresses primarily arson to a "dwelling house,” it also alternatively proscribes burning certain outbuildings: "... dwelling house, or any kitchen, shop, barn, stable or other outhouse that is a parcel thereof or belonging to or adjoining thereto.. . .” (Emphasis added). At trial the State’s evidence established that which was burned was a "well house” or "pump house.” After the first witness, a police officer, had concluded his testimony of the charring on the door of the pump house, etc., the assistant state’s attorney addressed the court saying: "the State confesses not guilty to the crime.” Her concern was that appellant had not been charged with violation of the proper section because: "The evidence would show that the pump house is three feet from the dwelling house.” Perhaps because the State had confessed not guilty only to the underlying crime charged, rather than having confessed that Michael E. was not delinquent, the judge simply "discharged” appellant and the case was entered on the docket as "dismissed.” ²⁹⁰ Presumably the prosecutor’s spontaneous confession occurred because of her belief that the burning of any outbuilding should be charged under § 7 of Article 27, which proscribes among other objects the burning of "any barn, stable, garage or other building ... not a parcel of a dwelling house....” The following month, appellant was so charged: "That MICHAEL E. on or abou [sic] the 5th day of April, 1980, in Talbot County, Maryland, did willfully and maliciously set fire to and burn a building, to wit: a pump house, not a parcel of a dwelling house, being the property of Pinkey Lee Murphy 1 , in violation of Article 27, section 7 (Arson).” Appellant filed a Motion to Dismiss the subsequent petition, claiming it violated the guarantee against double jeopardy.

The motion was denied after argument, and this appeal was taken from the court’s ruling. Sensing the inherent injustice of his plight in light of the Fifth Amendment’s Double Jeopardy Clause, "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb,” appellant cautiously seeks the path to freedom through the interpretative maze adorning that sacred ground by venturing first upon one path, then the other. He argues first that: "ARTICLE 27 §§ 6 AND 7 EACH DO NOT REQUIRE PROOF OF AN ADDITIONAL FACT WHICH THE OTHER DOES NOT AND THEREFORE BOTH STATUTORY OFFENSES ARE THE SAME FOR PURPOSES OF DOUBLE JEOPARDY.” ²⁹¹ Seeing but little light ahead he then contends that: "WHERE THERE HAS BEEN BUT A SINGLE DELINQUENT ACT COMMITTED MULTIPLE PROSECUTIONS BASED ON THAT ACT ARE BARRED BY DOUBLE JEOPARDY.” Hoping that if err he must, he will do so on the side of prudence, appellant even ventures upon two divergent paths that wander a bit but arrive at the same destination: res judicata, "LITIGATION OF ISSUES THAT COULD HAVE BEEN DECIDED IN A FORMER PROCEEDING BETWEEN THE SAME PARTIES CONCERNING THE IDENTICAL SUBJECT MATTER IS BARRED BY RES JUDICATA;” and collateral estoppel, "COLLATERAL ESTOPPEL BARS THE STATE FROM ATTEMPTING TO PROVE THE OPPOSITE OF A FACT WHICH IT HAS ADMITTED IN A FORMER PROCEEDING BETWEEN THE SAME PARTIES.” We agree with appellant that the Fifth Amendment precludes his retrial, and may even have reached that result upon the routes he points out to us. But there is within most of us (according to Poe) a degree of perversity, which we note to be most apparent among the judiciary.

Our route through the maze 2 is one not suggested by appellant, perhaps because we are more concerned with that which the judge permitted, rather than being preoccupied with that which the prosecutor sought to do. It was ironically the State’s brief which brought the key to the case to our attention. "In the instant case, although the prosecutor confessed not guilty at the hearing on the petition alleging a violation of Article 27 Section 6, that ²⁹² admission did not technically constitute a judgment of acquittal because it was not done by the trier of fact [either the judge or a jury]. Pugh v. State, 271 Md. 701 (1974).” After proper analysis, acquittal appears to have been exactly what the judge was compelled to do, whatever his desire may have been.

Precisely what the court did was to "discharge” the appellant by "dismissing” the case, which action under the circumstances was functionally indistinguishable from declaring a mistrial. Lee v. United States, 432 U.S. 23, 31 (1977). The policy underlying the Double Jeopardy Clause is that "the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” Green v. United States, 355 U.S. 184, 187-88 (1957). These considerations have led to the conclusion that a defendant is placed in jeopardy in a criminal proceeding once he is put to trial before the trier of fact — that being either when the judge receives the first piece of evidence in a non-jury trial or when the jury is selected and sworn in a jury trial, Blondes v. State, 273 Md. 435, 444-45 (1975), whether the proceeding involves an adult or a juvenile.

Swisher v. Brady, 438 U.S. 204 (1978). If that trial is aborted without the consent of the defendant, the doctrine of "manifest necessity” expressed in United States v. Perez, 9 Wheat 579, 580 (1820), stands as a command to trial judges not to foreclose "the defendant’s valued right to have his trial completed by a particular tribunal” unless the ends of justice would be defeated by continuing the proceedings. United States v. Dinitz, 424 U.S. 600, 607 (1976); United States v. Jorn, 400 U.S. 470, 485 (1971); see also Wade v. Hunter, 336 U.S. 684, 689 (1949). ²⁹³ The case before us seems first to fall under the admonition of the Supreme Court espoused in Downum v. United States, 372 U.S. 734 (1963), reiterated in Dinitz, supra at 611 , and quoted with approval by the Court of Appeals in Bell v. State, 286 Md. 193, 204 (1979), i.e., that a trial may not be terminated so as to afford the prosecution a more favorable opportunity to convict. In Downum , the situation presented was simply one where the district attorney had entered upon the trial of the case without sufficient evidence to convict.

Id. at 737 . In the case at bar the situation presented was simply one where the assistant state’s attorney’s evidence caused her prematurely to believe that it would be insufficient to convict the defendant as he was charged. Whether appellant had been charged under the wrong statute is neither decided nor material. 3 What is important is that the abortion was permitted because the state prosecutrix believed appellant had been wrongly charged, yet it is apparent from the record that no consideration was given either to the possibility of an amendment or a continuance. See United States v. Jorn, supra at 487.

Whether the prosecutrix was right or wrong, the trial judge should have recognized that lack of preparedness by the State to continue the trial implicated the policies underpinning not only the double jeopardy provision but the speedy trial guarantee as well. Id. at 486 . Whichever path we follow through the maze, we arrive at the same destination. United States v. Jorn noted that Gori v. United States, 367 U.S. 364 (1961), while adhering to the Perez theme of requiring "manifest necessity” as the appellate standard of review of precipitous terminations subsequently to be retried, "suggested] the possibility of a variation on that theme according to a determination by the appellate court as to which party to the case was the beneficiary of the mistrial ruling.” 400 U.S. at 482 .

In Gori it was found to have been "in the sole interest of the defendant.” 367 U.S. at 369 . In Jorn the judge was motivated by a desire to protect the witnesses rather than the defendant. But in ²⁹⁴ the present case, the only beneficiary was the State, and the expressed reason for seeking the ruling was the prosecutorial advantage of conforming the allegations of the petition to the evidence that had been elicited, before a decision on the merits when the change would be too late. The interruption of a proceeding once jeopardy had attached for reasons factually similar to those before us has been at' least twice addressed by the Supreme Court of the United States.

In Lee, supra, the defendant moved for dismissal after the prosecutor’s