Scriber v. State

BARBERA, C.J. This case calls upon us, once again, to consider the prohibitions against double jeopardy granted by the federal Constitution and Maryland’s common law. We encounter here, in particular, two protections afforded by double jeopardy law: the plea of autrefois acquit, which protects against the second prosecution of a defendant for the same offense after acquittal; and the doctrine of collateral estoppel, which protects against the relitigation of an issue of ultimate fact that has been decided in a defendant’s favor. Petitioner Dwayne Scriber was charged with various traffic offenses in the District Court of Maryland, sitting in Charles County. At the conclusion of the State’s case, the District Court granted Petitioner’s motion for judgment of acquittal as to the charge of disobeying a lawful order or direction of a police officer 1 but ultimately convicted Petitioner of four counts of fleeing and eluding police, 2 in addition to other offenses.

Petitioner filed notice of a de novo appeal to the Circuit Court for Charles County and, prior to trial, moved to dismiss the fleeing and eluding counts. He argued that, in light of his acquittal of disobeying a lawful order, prosecution ⁴⁰⁴ of the fleeing and eluding charges in the Circuit Court would violate federal constitutional and Maryland common-law protections against double jeopardy. The Circuit Court denied the motion. Petitioner then sought, and this Court granted, a writ of certiorari to review the ruling of the Circuit Court.

For the reasons that follow, we conclude that the State is not barred by the prohibitions against double jeopardy from pursuing the fleeing and eluding charges in the Circuit Court. We therefore affirm the denial of Petitioner’s motion to dismiss. I. On the night of August 19, 2011, Officer Jonathan Kelly of the Charles County Sheriffs Office was on patrol in a residential neighborhood in La Plata, wearing his uniform and driving a marked car. 3 Observing a Toyota Camry operating without headlights illuminated, Officer Kelly decided to initiate a traffic stop. He pulled in front of that vehicle and activated his emergency lights.

The vehicle “initially stopped for a brief moment,” but then drove around Officer Kelly’s patrol car and continued down the street. Officer Kelly pursued the vehicle for approximately one half-mile until it came to a stop outside an apartment complex, at which point the driver and passenger exited the vehicle and ran into a wooded area behind the complex. Officer Kelly did not follow, instead awaiting the arrival of other officers on the scene. After speaking with the owner of the Camry, Tarra Goldr-ing, Officer Kelly suspected that Petitioner, Goldring’s boyfriend at the time, may have been the driver of the vehicle during the attempted traffic stop.

Officer Kelly viewed a photograph of Petitioner in a computer database confirming that it was Petitioner he had seen driving; he then filed an Application for Statement of Charges the following day. Petitioner was charged in the District Court with various traffic ⁴⁰⁵ offenses and, relevant to this appeal, disobeying a lawful order or direction of a police officer and four counts of fleeing and eluding police. 4 The District Court Trial Petitioner was tried before the District Court of Maryland, sitting in Charles County. Officer Kelly was the only witness for the State, and, at the conclusion of the State’s case, Petitioner’s counsel made a motion for judgment of acquittal as to all charges. Pertinent here, the District Court granted the motion as to the disobeying a lawful order charge, reasoning that Officer Kelly had not given an order or direction by mere activation of his patrol car’s emergency lights: “I just don’t get the nexus between turning on the lights being an order or direction of a police officer.

Obviously, there was an implication with that, but again, I think that’s covered with the failure to stop.” At the conclusion of trial, the court found Petitioner guilty of four counts of fleeing and eluding police, along with other traffic offenses. Petitioner filed a notice of de novo appeal to the Circuit Court. 5 The Circuit Court Motions Hearing Prior to trial in the Circuit Court, Petitioner filed a motion to dismiss the fleeing and eluding charges. In the motion, Petitioner argued that the District Court’s judgment of acquittal as to the charge of disobeying a lawful order barred trial in the Circuit Court for the offense of fleeing and eluding. Petitioner asserted that disobeying a lawful order or direction of a police officer is the lesser-included offense of fleeing and ⁴⁰⁶ eluding police, rendering both offenses the “same” for double jeopardy purposes.

On November 7, 2012, the Circuit Court held a hearing on the motion. The State, characterizing Petitioner’s argument as an allegation that the District Court had erred in rendering its verdicts, claimed that Petitioner could not make such an argument upon de novo appeal, as “the trial [in District Court] has been washed away.” As to the substance of Petitioner’s claim, the State argued that, by operation of the “same elements” test set forth in Blockburger v. United States, 284 U.S. 299, 304 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932), the crimes of disobeying a lawful order and fleeing and eluding are not the same offense for double jeopardy purposes: Under the fleeing and eluding statute, drivers must stop their vehicles regardless of whether the police officer’s signal to stop is lawful, whereas under the disobeying a lawful order statute, the police officer’s order or direction must be lawful for the offense to lie, thereby making each offense distinct from the other. The Circuit Court, without elaboration, denied the motion to dismiss the four counts of fleeing and eluding. The Appeal Petitioner filed a “Notice of Appeal,” seeking review in this Court of the Circuit Court’s denial of his motion to dismiss the de novo appeal in that court.

Ordinarily, appellate courts review only final judgments. Md.Code (1973, 2013 Repl. Vol.), § 12-301 of the Courts and Judicial Proceedings Article (hereinafter CJ § 12-301). Under the “collateral order” doctrine, however, in a limited class of cases we allow appellate review prior to the entry of a final judgment and, for purposes of such review, treat those interlocutory orders as “final judgments,” under CJ § 12-301, “ ‘without regard to the posture of the case.’ ” Fuller v. State, 397 Md. 372, 383 , 918 A.2d 453 (2007) (quoting Jackson v. State, 358 Md. 259, 266-67 , 747 A.2d 1199 (2000)).

Denials of motions to dismiss on the ground of double jeopardy compose a category warranting immediate review. Stephens v. State, 420 Md. 495, 505-06 , 24 ⁴⁰⁷ A.3d 105 (2011) (citing Parrott v. State, 301 Md. 411, 424-25 , 483 A.2d 68 (1984)). We treated Petitioner’s notice of appeal as a petition for writ of certiorari 6 and granted that petition to answer the following question, as Petitioner posed it in his supplemental petition: Did the Circuit Court err in denying Mr. Scriber’s motion to dismiss charges of fleeing and eluding under Transportation Article § 21-904 based on double jeopardy where the District Court had previously acquitted him of willfully disobeying a lawful order or direction of a police officer under Transportation Article § 21-103(a)? Whether double jeopardy principles bar prosecution of the fleeing and eluding charges in the Circuit Court is a question of law; we therefore grant no deference to the lower court’s resolution of the matter.

Giddins v. State, 393 Md. 1, 15 , 899 A.2d 139 (2006) (citations omitted).

II

Petitioner’s primary contention on appeal is that prosecution of the fleeing and eluding charges in the Circuit Court violates the federal constitutional and state common-law prohibitions against double jeopardy. “The Fifth Amendment to the United States Constitution forbids any person from being ‘twice put in jeopardy of life or limb.’” Odum v. State, 412 Md. 593, 603 , 989 A.2d 232 (2010) (quoting U.S. Const, am. V). The Fifth Amendment prohibition “against making a defendant twice accountable for the same offense” is applicable to the states through the Fourteenth Amendment. State v. Long, 405 Md. 527, 535-36 , 954 A.2d 1083 (2008) (citing Benton v. Maryland, 395 U.S. 784 , ⁴⁰⁸ 794, 89 S.Ct. 2056 , 23 L.Ed.2d 707 (1969)).

Also, “[d]espite the fact that the Maryland Constitution lacks an explicit double jeopardy clause, Maryland common law provides well-established protections for individuals against being twice put in jeopardy.” Long, 405 Md. at 536 , 954 A.2d 1083 (citing Taylor v. State, 381 Md. 602, 610 , 851 A.2d 551 (2004)). Double jeopardy “bars multiple punishments and trials for the same offense.” Long, 405 Md. at 536 , 954 A.2d 1083 (citing United States v. Wilson, 420 U.S. 332, 343 , 95 S.Ct. 1013 , 43 L.Ed.2d 232 (1975)). In order for two charges to represent the same offense for double jeopardy purposes, they must be the same “in fact” and “in law.” See Anderson v. State, 385 Md. 123, 131 , 867 A.2d 1040 (2005). To determine whether charges are the same in fact, we look to whether they arise out of the same incident or course of conduct.

Id. To determine whether two offenses arising out of the same incident are the same in law, we apply the “same elements” test set forth by the Supreme Court of the United States in Blockburger. Anderson, 385 Md. at 131 , 867 A.2d 1040 . “The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Thomas v. State, 277 Md. 257, 265 , 353 A.2d 240 (1976) (quoting Blockburger, 284 U.S. at 304 , 52 S.Ct. 180 ). Lesser-included and greater-inclusive offenses are considered the same offense for double jeopardy purposes.

In Brown v. Ohio, 432 U.S. 161 , 97 S.Ct. 2221 , 53 L.Ed.2d 187 (1977), the Supreme Court explained that a lesser-included offense, which requires no more proof than that required for conviction of a greater-inclusive offense, is the “same offense” as the greater-inclusive offense by application of the Blockburger test. Brown, 432 U.S. at 168 , 97 S.Ct. 2221 . Whichever is prosecuted first, “the Fifth Amendment forbids successive prosecution ... for a greater and lesser included offense.” Id. at 169 , 97 S.Ct. 2221 . ⁴⁰⁹ Petitioner contends that disobeying a lawful order is a lesser-included offense of fleeing and eluding police and therefore the two offenses are the same for double jeopardy purposes. As he was acquitted of disobeying a lawful order, Petitioner maintains that he may not be prosecuted in the Circuit Court on the fleeing and eluding charges.

Trial in the Circuit Court on the fleeing and eluding charges, he argues, would be a second prosecution for the same offense, in violation of double jeopardy prohibitions. Essentially, Petitioner seeks to avail himself of the common-law plea in bar of autrefois acquit. State v. Taylor, 371 Md. 617, 651 , 810 A.2d 964 (2002) (quoting Daff v. State, 317 Md. 678, 684 , 566 A.2d 120 (1989)). For its part, the State argues that a de novo appeal in Circuit Court is not a subsequent prosecution, but rather “part of a single, continuing jeopardy,” and Petitioner’s appeal thus “does not trigger double jeopardy analysis.” The State adds that, in any event, disobeying a lawful order and fleeing and eluding are not the same offense under Blockburger , and therefore acquittal of disobeying a lawful order in District Court does not bar prosecution of fleeing and eluding in Circuit Court.

As we shall explain, we are in agreement with the State that Petitioner’s acquittal of disobeying a lawful order does not preclude trial de novo in the Circuit Court on the charges of fleeing and eluding because the offenses are not the same for double jeopardy purposes. We therefore shall assume, without deciding, that trial on the fleeing and eluding charges in the de novo appeal is a successive — and not a continuing— prosecution. 7 ⁴¹⁰ Determining the respective elements of these offenses is an exercise in statutory construction. “The cardinal rule of statutory construction is to ascertain and effectuate the intent of the Legislature.” Stoddard v. State, 395 Md. 653, 661 , 911 A.2d 1245 (2006) (quotation omitted). We have explained that, in determining the Legislature’s intent, we look first to the language of the statute, giving it its natural and ordinary meaning.... When the statutory language is clear, we need not look beyond the statutory language to determine the Legislature’s intent.

If the words of the statute, construed according to their common and everyday meaning, are clear and unambiguous and express a plain meaning, we will give effect to the statute as it is written. Id. (quotations omitted). The statutes at issue in this case provide, in relevant part: § 21-103.

Obedience to police officers and summonses. (a) Obedience to orders required. — A person may not willfully disobey any lawful order or direction of any police officer. § 21-904. Fleeing or eluding police. (a) “Visual or audible signal” defined. — In this section, “visual or audible signal” includes a signal by hand, voice, emergency light or siren.

(b) Failing to stop vehicle. — If a police officer gives a visual or audible signal to stop and the police officer is in uniform, prominently displaying the police officer’s badge or other insignia of office, a driver of a vehicle may not attempt to elude the police officer by: (1) Willfully failing to stop the driver’s vehicle; (2) Fleeing on foot; or ⁴¹¹ (3) Any other means. (c) Fleeing on foot. — If a police officer gives a visual or audible signal to stop and the police officer, whether or not in uniform, is in a vehicle appropriately marked as an official police vehicle, a driver of a vehicle may not attempt to elude the police officer by: (1) Willfully failing to stop the driver’s vehicle; (2) Fleeing on foot; or (3) Any other means. We deduce from the parties’ arguments that there is no dispute that the offense of fleeing and eluding police requires proof of an element not shared by the offense of disobeying a lawful order: evasion. The parties’ disagreement is over whether the offense of disobeying a lawful order requires proof of an element not shared by fleeing and eluding police.

By Petitioner’s calculation, disobeying a lawful order contains no additional element: The willful disobedience count requires, as an element, that [the] State prove the defendant “disobey[ed]” the order or direction; the fleeing and eluding counts require that the State prove that the defendant disobeyed a certain kind of direction, i.e., a direction “to stop,” in one of two specific ways, i.e., by willfully failing to stop his vehicle or by fleeing on foot. Proof of the latter will always involve proof of the former. Petitioner premises this argument on the notion that “it is difficult to conceive that a signal to stop by a police officer would not qualify as an ‘order or direction.’ ” The State argues that the offense of disobeying a lawful order contains an element distinct from those contained in the offense of fleeing