Johnson v. State

Menchine, J., delivered the opinion of the Court. The unrelated appeals of Ronald D. Johnson, Glen E. Grainger, Lionel Levon Cook and Gregory Hughley were consolidated for argument in this Court because all involved ¹⁰² common questions of law. They will be the subjects of a single opinion. All had been convicted and sentenced for unrelated offenses after bench trials in the Criminal Court of Baltimore.

In each trial: (a) the accused was found guilty of a criminal offense; (b) the finding of guilt was stricken prior to sentence in order that the accused might be released on his initial bail pending preparation of a presentence report; (c) the guilty verdict was thereafter reinstated by the trial judge; and (d) sentence was imposed. The legal issues common to all cases are thus presented in the briefs of the appellants: “I. The trial judge erred in sentencing the Appellants after the guilty verdicts had been stricken.

II

The Appellants’ second conviction constituted a violation of the prohibition against double jeopardy.” I. Appellants have cited no case supporting the contention that sentencing after guilty verdicts had been stricken but later reinstated constituted reversible error. The Court has found none. This Court held in Williamson v. State, 25 Md. App. 338 , 333 A. 2d 653 (1975), cert. denied, 275 Md. 758 (1975), that a trial judge possessed the discretionary power to reverse his decision granting a new trial when a lack of finality in the initial grant was apparent from the record. We find the decision persuasive here.

The subject records demonstrate with crystal clarity that the action of the trial judge in striking the guilty verdicts was in no sense motivated by doubt concerning the guilt of the accused. On the contrary, the record in each case plainly shows that such action had been taken so that the accuseds might remain free on initial bail bond without being subjected to additional costs for new bail. ¹⁰³ We find it unnecessary to pass upon the correctness of the apparent conclusion of the trial judge that conviction without sentence would have discharged the bail obligation and compelled confinement pending sentence unless new bail was furnished. It would appear, however, that the clear weight of authority is to the contrary. Annot. 20 ALR 594 , 624-27.

Contra, Kinder v. Richeson, 264 S. W. 982 , 983 (Mo. 1924). 1 It is manifest from each record that the trial judge: (a) did not intend the striking of the guilty verdict to be his final act; (b) did not retreat from his conclusion that the accused was guilty beyond a reasonable doubt; and (c) intended to reinstate the several guilty verdicts after consideration of pre-sentence reports. We are persuaded that the trial judge possessed discretionary power to strike the several verdicts of guilty and subsequently to reinstate the same. Williamson v. State, supra. Although the appellants, explicitly in Cook and Johnson and implicitly in Grainger and Hughley, willingly accepted the indulgence of the trial judge and entered no caveat to the action of the trial court striking the verdict; in reinstating it; or in imposing sentence and thus, did not preserve the issue for appellate review, Maryland Rule 1085, we shall consider the double jeopardy contention for the reason given in Johnson v. State, 3 Md. App. 105, 108-09 , 238 A. 2d 286, 288 (1967).

An added reason for our decision to consider the issue stems from the circumstance that other cases making ¹⁰⁴ the same contention are presently pending in other appeals to this Court. Appellants’ argument boils down to the following syllogism: (Major premise) The striking of the guilty verdict was tantamount to a verdict of not guilty. (Minor premise) The not guilty verdict triggered appellants’ Fifth Amendment right to freedom from being “twice put in jeopardy.” (Conclusion) Reinstatement of the guilty verdict with consequent sentence violated this Fifth Amendment right. The argument is the purest sophistry.

Its basic flaw is the invalidity of its major premise. In each of the subject cases it is patent that the striking of the guilty verdict was interlocutory in character; temporary in effect; and intended to be followed by further proceedings within the same trial. In sum, the striking of the verdicts was not “tantamount to a not guilty verdict.” The syllogism’s conclusion collapses with rejection of its major premise. We think that the language of Judge Levine, speaking for the Court of Appeals, in Bynum v. State, 277 Md. 703, 707-08 , 357 A. 2d 339, 341-42 (1976), is strikingly applicable here: “There is, nevertheless, a fundamental flaw in appellant’s claim that he was twice placed in jeopardy.

Double jeopardy is not suffered unless a man is twice put to trial. See Bowie v. State, 234 Md. 585, 593 , 200 A. 2d 557 , cert. denied, 379 U. S. 864 (1964); Fisher, Double Jeopardy: Six Common Boners Summarized, 15 U.C.L.A. L. Rev. 81, 86 (1967). The purpose of the prohibition of double jeopardy, questions of double punishment aside, ¹⁰⁵ finds expression in the maxim nemo debet bis vexari pro una et eadem causa, no one shall be twice vexed for one and the same cause. In the context of a case such as this, where the defendant claims that his conviction was barred by a previous acquittal, two basic double jeopardy policies are involved.

The first is the notion that guilt should be established only by proving the elements of the offense to a single jury, that the prosecution should be denied the right to increase the probability of obtaining a conviction by repeated prosecutions. And the second, more general policy, one involved in a trial subsequent to either an acquittal or a conviction, is the right not to be subject to harassment. More specifically, a defendant is not to be put to the expense of defending himself in successive unnecessary trials of the same issue, subjected to the stigma which attaches in further criminal prosecutions, or denied the psychological security, available in civil cases by reason of the doctrine of res judicata, of considering a matter once tried to be closed. See Comment, Twice in Jeopardy, 75 Yale L. J. 262, 266-67 (1965); Comment, 65 Yale L. J. 339, 340-41 (1956). “It is evident that where, as here, the defendant is subjected to but a single prosecution, trial and jury verdict, there exists none of the evils which the double jeopardy prohibition is intended to prevent.

Appellant has neither been harassed by multiple prosecutions, nor has he been subjected to the increased probability of conviction attendant upon repeated trials. In short, appellant was but once placed in jeopardy.” (Footnote omitted.) In the earlier case of Pugh v. State, 271 Md. 701, 706 , 319 A. 2d 542, 545 (1974), it had been said: “It is therefore settled that once the trier of fact in a criminal case, whether it be the jury or the judge,