Kendall v. State

GREENE, J., dissenting, in which BELL, C.J. and BATTAGLIA, J., Join. I disagree with the majority’s conclusion that the State was entitled to appeal the verdicts of acquittal entered by the District Court. It is well established under Maryland common law that, in a criminal trial, once jeopardy attaches and a verdict of acquittal is rendered intentionally, that verdict is final and may not be set aside. 1 State v. Taylor, 371 Md. 617, ⁴⁹⁴ 633 , 810 A.2d 964, 973 (2002) (citing State v. Shields, 49 Md. 301, 303 (1878)). In the instant case, the District Court judge had jurisdiction over the subject matter and the Petitioner, Angela Jones Kendall.

The State presented its evidence and rested its case. In response to defense counsel’s motion for “judgment,” the trial judge evaluated the evidence presented and “grant[ed] the motion.” Later the trial judge checked the “NG” (“Not Guilty”) box on the docket sheets for each of the four counts against Petitioner and signed the documents. Accordingly, I would reverse the judgment of the Circuit Court for Talbot County and remand the case to that court to dismiss the State’s appeal and affirm the judgment of the District Court. I. On March 29, 2011, Officers Larry Horney and Scott Kakabar responded to a single vehicular accident in St. Michaels, Talbot County.

When the Officers arrived at the scene of the accident, they found a car facing downward in a ditch. The Officers testified that when they arrived the vehicle engine was running, the vehicle lights were on, and the car appeared to have struck a mailbox. Petitioner was observed in the driver’s seat and was described as “[n]ot kind of responsive” and “disoriented,” with “[slurred] speech,” and “a faint odor of ⁴⁹⁵ an alcoholic beverage coming from her person.” 2 One Officer testified that Petitioner told him she had taken Cymbalta, 3 a prescription drug. The Officers contacted paramedics to assist Petitioner and she was taken to Easton Memorial Hospital.

When Petitioner arrived at the hospital, she required assistance getting into her hospital gown. Hospital staff described her as “[v]ery clumsy in her movements” and “not able to stand on her own at all.” A physician met with Petitioner, and the physician’s assistant noted on an observation sheet that Petitioner, at some point in time, which is unexplained in the record, had suffered seizures, nausea, problems with vision, and vomiting. The observation sheet also indicated that the air bag in Petitioner’s car had deployed. The assisting nurse testified that during her interaction with Petitioner, Petitioner said that “she had swerved off the road and into La] ditch.” While at the hospital, Petitioner was scheduled to receive a CT scan of her head.

Prior to undergoing the CT scan, Officer Kakabar asked Petitioner to complete the DR-15 form. 4 Peti ⁴⁹⁶ tioner, however, refused to submit to a breath test. Apparently, at that time, the Officers prepared citations charging Petitioner with various speed, alcohol, and drug related offenses, and served the papers on Petitioner’s mother who was present at the hospital. The Officers did not ask hospital staff to administer a blood test for alcohol or drugs. 5 Approximately two to three hours after Petitioner arrived at the hospital she was released to go home. The relevant trial court proceedings began in the District Court for Talbot County when Petitioner entered a plea of “Not Guilty” to the charges of driving or attempting to drive a vehicle while under the influence of alcohol in violation of Md.Code (1977, 2012 Supp.), § 21-902(a)(l) of the Transportation Article (“TR”); driving or attempting to drive a vehicle while impaired by alcohol, in violation of Md.Code (1977, 2012 Supp.), TR § 21-902(b)(l); driving or attempting to drive a vehicle while impaired by drugs or alcohol and drugs, in violation of Md.Code (1977, 2012 Supp.), TR § 21-902(c)(l); and failure to control vehicle speed on a highway to avoid a collision, in violation of Md.Code (1977, 2009 RepLVol.), TR § 21 — 801(b).

The Petitioner waived her right to a jury trial, and elected a bench trial in the District Court. Thereafter, the State called each of its five witnesses, presented the entirety of its evidence, and rested its case. ⁴⁹⁷ At the end of the State’s case, defense counsel “move[d] for judgment[,]” 6 and advanced two arguments to support the motion. She argued that Petitioner needed medical attention, and that the attending law enforcement officials failed to give her a blood test to determine her blood alcohol concentration in accordance with Maryland Courts and Judicial Proceedings Article (“CJ”) § 10-305. This law mandates that in certain circumstances, such as when an individual sustains injuries which require removal to a medical facility, or when an individual is unconscious or otherwise incapable of refusing to take a test to determine alcohol concentration, a blood test must be administered to determine the individual’s blood alcohol content.

CJ § 10-305(a). Similarly, this Article also requires that “[t]he type of specimen obtained from the defendant for the purpose of a test or tests to determine drug or controlled dangerous substance content shall be a blood specimen.” CJ § 10-305(b). Defense counsel cited State v. Werkheiser, 299 Md. 529 , 474 A.2d 898 (1984), to support her motion for a judgment of acquittal because the State failed to obtain a blood test from Petitioner. Werkheiser stands for the proposition that although a chemical analysis is not a prerequisite to a prosecution, in the special circumstances when an individual is otherwise incapable of refusing and cannot withdraw consent to a blood test, the “appropriate remedy available [to a defendant] would be to allow an inference that had the test been administered, the result thereof would have been favorable to [the defendant].” Werkheiser, 299 Md. at 538-39 , 474 A.2d at 903-04 .

Defense counsel also advanced an argument about the absence of service of process under Maryland Rule 4-212(h). This rule requires that “[t]he person issuing a citation ... shall serve it upon the defendant at the time of its issuance.” ⁴⁹⁸ With the entirety of the evidence before the judge, as well as several arguments advanced by counsel, the judge ruled on the motion for judgment, saying first that, “I’m going to grant the (A),” referring to the motion for judgment of acquittal as to the charge of driving while under the influence of alcohol, § 21-902(a)(l). 7 The State did not contest the court’s ruling then, or now, on appeal. The trial judge then explained that he would deny the motion as to the other three charges “at this stage at the end of the State’s case.” (Emphasis added). Following a discussion between the court and counsel concerning the service of process issue, 8 the trial judge ruled, “I’m going to grant the motion.” Thereafter, discussion on the service of process issue continued and the State asked the trial judge to “entertain that motion as a preliminary motion to ⁴⁹⁹ dismiss?” The judge replied, “[m]aybe, yeah[,]” and then repeated that he would “grant the motion based upon, I think that this is one of those situations where although Judge [Moylan] has an analysis I think the facts in this case fly directly in the face of the requirements of the rule.” 9 Later, the judge checked the box on the docket sheet for “NG” (“Not Guilty”), and signed his name next to the docket entry for each of the four charges. 10 Following the entry of the “Not Guilty” verdict for each of the four charges, the State appealed to the Circuit Court for Talbot County.

The State argued that the District Court judge did not acquit Petitioner of three of the four charges. Instead, the State maintained, the District Court dismissed the three outstanding charges on the grounds of improper service. In response, Petitioner moved to dismiss the appeal on the basis that the Court granted an acquittal, and double jeopardy barred the State from appealing the verdicts. Treating the State’s appeal as proper, the Circuit Court held that the District Court judge’s actions with regard to the three charges did not amount to an acquittal.

In ruling for the State, the Circuit Court explained that the trial judge must have interpreted the service issue raised by Petitioner’s motion for judgment as a preliminary motion to dismiss for improper service. The Circuit Court also concluded that the “Not Guilty” entries on the docket sheet were “released in ⁵⁰⁰ error[,]” because the District Court judge dismissed the remaining counts against Petitioner based upon the motion to dismiss. Subsequently, the Circuit Court denied Petitioner’s motion to dismiss the appeal on double jeopardy grounds.

II

When the trial judge granted the motion and terminated the proceedings, he had before him the entirety of the evidence presented by the State. This evidence constituted all of the evidence the judge needed to make a judgment on the sufficiency of the State’s evidence. The judge further confirmed his intention to acquit by checking “NG” on the docket sheet. On appeal, therefore, we cannot assume, as the majority holds, that the judge intended to dismiss the case on procedural grounds when the record of the proceedings demonstrates an intent to acquit.

As such, double jeopardy was triggered when the verdict of acquittal was rendered, and accordingly “that verdict is final and cannot be set aside.” Pugh v. State, 271 Md. 701, 705 , 319 A.2d 542, 544 (1974). First, the transcript of the proceedings indicates that the trial judge intended to acquit Petitioner. When the trial judge “grant[ed] the motion,” the only motion pending at that time was a motion for a judgment of acquittal. Only after the judge granted the motion did the State ask the trial judge to convert the motion or “entertain that [previously granted] motion as a prehminary motion to dismiss,” and the judge responded with an ambiguous, “[m]aybe, yeah.” When the judge first granted the motion, the most logical conclusion, therefore, is that he was referring to the motion for judgment of acquittal.

Moving beyond the oddity of considering a preliminary motion to dismiss at the conclusion of a trial, even if the judge wanted to change his mind as to the nature of the motion granted, he would have been barred under Maryland’s double jeopardy jurisprudence, which holds that a judge may not intentionally grant an acquittal and then change his or her mind. For example, in Pugh v. State, the trial judge entered ⁵⁰¹ a “Not Guilty” verdict, and then moments later changed the verdict, presumably based on remarks made by the State after the initial acquittal. This Court held that “[o]nce a trial judge intentionally renders a verdict of ‘not guilty’ on a criminal charge, the prohibition against double jeopardy does not permit him to change his mind.” Pugh, 271 Md. at 707 , 319 A.2d at 545 . Similarly, in Brooks v. State, after the trial judge granted a motion for judgment of acquittal on a conspiracy charge, the State convinced the judge to reconsider and later deny his ruling on the motion.

The jury thereafter convicted defendant of the conspiracy charge. On appeal, we reversed and explained that once the judge intentionally granted the motion, “[i]t was effective as a final disposition of the conspiracy charge.” Brooks, 299 Md. 146, 152-55 , 472 A.2d 981, 986 (1984). These cases support the proposition that once a motion to acquit is intentionally granted, a judge may not reverse the judgment, even if he or she intends to do so only moments after the acquittal is rendered. The same rule would apply to this case.

Once the trial judge granted the acquittal, he was not permitted to change his mind. Therefore, even if we were to interpret the judge’s ambiguous response to the State’s request as a change of heart, because of double jeopardy’s prohibition, the judge was barred from changing his affirmative decision to acquit. Next, the critical flaw in the majority’s position, that the trial judge actually granted a procedural motion to dismiss, is that when defense counsel asked for a judgment of acquittal, the trial judge was required to consider the entirety of the evidence presented. This included not only the arguments advanced by defense counsel, but also an assessment of all of the evidence or lack of evidence presented.

Merely because the trial judge reviewed arguments on service of process deficiencies immediately before granting the motion, does not mean that the judge only considered the adequacy of the service issue before making his judgment. Ordinarily, when a trial judge is asked to consider the sufficiency of the evidence, the judge’s duty is to consider all of the evidence, including ⁵⁰² any reasonable inferences to be drawn from the evidence in favor of the State. Without evidence indicating that the judge did not consider the presence or absence of evidence, we will assume that he or she did. See Brooks, 299 Md. at 154-55 , 472 A.2d at 986 (noting that when the trial court granted the motion, evidence relating to the charge was before the court and “[i]t is obvious that the grant of the motion was predicated, as it had to be, on a review by the judge with respect to the sufficiency of the evidence ... ”).

In other words, we will presume that the trial judge followed the law. See Attorney Grievance Comm’n v. Keiner, 421 Md. 492, 508 , 27 A.3d 153, 163 (2011) (citations omitted) (stating that “barring explicit evidence in the record to the contrary, we presume that any hearing judge in conducting ... any [ ] legal proceeding, understands and carries out his or her obligation to follow the law”); State v. Chaney, 375 Md. 168, 179-81 , 825 A.2d 452, 458-59 (2003) (citations omitted) (discussing the long standing presumption that “trial judges know the law and apply it properly ...”); Rock v. Rock, 86 Md.App. 598, 613 , 587 A.2d 1133, 1140 (1991) (citations omitted) (“Unless the record is clearly to the contrary, we assume the trial judge knew and followed the law.”). Moreover, the majority is quick to conclude that the “trial court clearly denied” the motion as to the other three charges with regard to the sufficiency of the evidence. 11 When the trial judge granted the judgment of acquittal on the first charge of driving while under the influence of alcohol, TR § 21-902(a)(l), the State did not then, and does not now, dispute the proposition that the trial judge did not limit his consideration of the charges against Petitioner to procedural issues. There is no reason to believe that the trial judge would not have approached his disposition of the remaining charges in a similar manner.

Rather, the acquittal and the lack of evidence before the court indicates that the trial judge ⁵⁰³ was addressing the sufficiency of the evidence relating to the charges filed against Petitioner. The fact that the remaining charges were all variations of TR § 21-902(a)(l), driving while under the influence of alcohol, further supports the conclusion that the judge considered the sufficiency of the State’s evidence as to all of the charges. For example, TR § 21 — 902(a)(1) requires proof that the alcohol consumed by the driver “substantially impaired the person’s normal coordination.” One of the other charges against Petitioner, TR § 21 — 902(b)(1), driving while impaired by alcohol, requires proof that the alcohol consumed by the driver “impaired [the driver’s] normal coordination to some extent.” See Turner v. State, 181 Md.App. 477, 490 ,