Jones v. State

ELDRIDGE, Judge. On March 12, 1981, Robert Jones was convicted by a Baltimore City jury of conspiracy to commit murder and accessory before the fact to the first degree murder of Michael Zurek. There were two others involved in these crimes. One had pled guilty as a principal to second degree murder before Jones’s conviction.

The other had been tried and convicted as a principal to first degree murder and related offenses, had appealed his conviction, and had been awarded a new trial which had not occurred at the time of Jones’s conviction. Jones appealed his convictions on various grounds. The Court of Special Appeals, in an unreported opinion, affirmed Jones’s conviction of conspiracy to commit murder and reversed, sua sponte, Jones’s conviction of accessory before the fact to first degree murder. In light of the second degree murder conviction of one of the principals, the intermediate appellate court applied the common law rule that an accessory could not be convicted of a greater crime than that of which his principal was convicted.

Both Jones and the State filed in this Court petitions for a writ of certiorari. We granted both petitions in order to review several questions, including the Court of Special Appeals’ application of the above-mentioned accessoryship rule. After oral argument, this Court was informed by the attorneys for both sides that the defendant had died in an aborted escape attempt. His death renders all issues in this case moot.

(1) When a civil case becomes moot, either we will vacate the trial court’s judgment and remand the case with directions that the action be dismissed as moot, or we will merely ¹⁵⁶ dismiss the appeal as moot and allow the trial court judgment to stand, depending on the circumstances. Compare, e.g., Hagerstown Repro. Health Serv. v. Fritz, 295 Md. 268, 273 , 454 A.2d 846 (1983), and Attorney. Gen. v. A.A. Co. School Bus, 286 Md. 324 , 330, 407 A.2d 749 (1979), with Nat’l Collegiate Athletic Ass’n v. Tucker, 300 Md. 156, 159 , 476 A.2d 1160 (1984), and In re Special Investigation No. 281, 299 Md. 181, 202 , 473 A.2d 1 (1984).

In two recent criminal cases, where the defendants died pending the resolution of appellate proceedings in this Court, counsel for both sides stipulated that the convictions should be vacated with directions that the indictments be dismissed as moot. Based on these stipulations we filed orders to this effect. See Thomas v. State, 294 Md. 625 , 451 A.2d 929 (1982); Porter v. State, 293 Md. 330 , 444 A.2d 50 (1982). After the defendant’s death in the present case, the Public Defender, on the deceased’s behalf, sought an order vacating the conspiracy conviction and remanding with directions to dismiss the conspiracy indictment.

The Public Defender relied upon the recent Thomas and Porter cases. The State opposed the motion to remand for a dismissal of the conspiracy indictment, urging instead that this Court dismiss only the writ of certiorari and leave the mandate of the Court of Special Appeals intact. The State relied upon cases which distinguish between a direct appeal from the conviction and a subsequent review, whether by discretionary writ of certiorari or otherwise. These cases hold that vacating the judgment of conviction and remanding for a dismissal of the indictment is appropriate only when the defendant dies while a direct appeal is pending.

The majority of recent cases support the distinction, urged by the State, between the death of a criminal defendant while a direct appeal is pending and that which occurs while subsequent certiorari or other review is pending. Dove v. United States, 423 U.S. 325 , 96 S.Ct. 579 , 46 L.Ed.2d 531 (1976); United States v. Oberlin, 718 F.2d 894 ¹⁵⁷ (9th Cir.1983); United States v. Pauline, 625 F.2d 684 (5th Cir.1980); United States v. Moehlenkamp, 557 F.2d 126 (7th Cir.1977); United States v. Bechtel, 547 F.2d 1379 (9th Cir.1977); State v. Griffin, 121 Ariz. 538 , 592 P.2d 372 (1979); Howell v. United States, 455 A.2d 1371 (D.C.App.1983); In re Kravitz, 504 F.Supp. 43 , 51 n. 25 (M.D.Pa.1980). See also State v. Krysheski, 119 Wis.2d 84 , 88 n. 5, 349 N.W.2d 729 (1984). 1 As stated in United States v. Moehlenkamp, supra, 557 F.2d at 128 : “The mootness of an appeal of right taken from a criminal conviction brings into play different considerations than does the mootness of a petition for a writ of certiorari committed to the Supreme Court’s discretion. As Mr. Justice Blaekmun noted in his dissent to Durham, [v. United States] supra [ 401 U.S. 481 ] at 484, 91 S.Ct. 858 , [at 860, 28 L.Ed.2d 200 (1971)] a court of appeals confronts a ‘contrasting and very different situation’ in disposing of a moot appeal of right than does the Supreme Court in disposing of a moot petition for certiorari.

The Supreme Court may dismiss the petition without prejudicing the rights of a deceased petitioner, for he has already had the benefit of the appellate review of his conviction to which he was entitled of right. In contrast, when an appeal has been taken from a criminal conviction to the court of appeals and death has deprived the accused of his right to our decision, the interests of justice ordinarily require that he not stand convicted without resolution of the merits of his appeal, which is an ‘integral part of [our] system for finally adjudicating [his] guilt or innocence.’ Griffin v. Illinois, 351 U.S. 12, 18 , 76 S.Ct. 585, 590 , 100 L.Ed. 891 (1956).” ¹⁵⁸ We agree with this reasoning and adopt the distinction drawn in the above cases. Where the deceased criminal defendant has not had the one appeal to which he is statutorily entitled, it may not be fair to let his conviction stand. But, on the other hand, where the right of appeal has been accorded and the Court of Special Appeals has decided that there was no reversible error, no unfairness results in leaving the conviction intact even though an application for further Review has not been resolved when the defendant dies.

The mere possibility that this Court might have reversed the conviction is not sufficient ground to order dismissal of the entire indictment. Therefore, we shall in this case dismiss the writ of certiorari on the ground of mootness. (2) When a case is moot, we will ordinarily refrain from expressing a view on the merits. Hagerstown Repro.

Health Serv. v. Fritz, supra, 295 Md. at 272 , 454 A.2d 846 . Nevertheless, on rare occasions we will express our views on the merits of a moot question, where there is an urgency to establish a rule of future conduct on a matter of important public concern. See, e.g., Attorney Gen. v. A.A. Co. School Bus, supra, 286 Md. at 328; 407 A.2d 749 ; State v. Ficker, 266 Md. 500, 507 , 295 A.2d 231 (1972); Lloyd v. Board of Supervisors of Elections, 206 Md. 36, 43 , 111 A.2d 379 (1954). The future viability of the rule which prevents an accessory from being convicted of a greater crime, or greater degree of crime, than that of which his principal was convicted, is a matter of important