Spencer v. State

GARRITY, Judge. Appellant, Eric Spencer, was charged with first degree felony murder and murder in the second degree. On September 29, 1992, a hearing was held in the Circuit Court for Prince George’s County (Femia, J., presiding) on appellant’s Motion to Dismiss the indictment on the grounds that this prosecution, following an. earlier successful prosecution for assault with intent to murder, assault with intent to disable, assault with intent to rob and a related handgun offense, violated appellant’s rights under Maryland common law of autrefois convict and the federal constitutional protection against double jeopardy. Appellant’s motion was denied and this interlocutory appeal followed.

BACKGROUND On November 4, 1991, appellant was convicted of assault with intent to murder, assault with intent to disable, assault ⁷³⁷ with intent to rob, and a related handgun offense. Appellant was sentenced to 30 years for these convictions on December 2, 1991. 1 On November 20, 1991, appellant’s victim, Mr. Effiok Essiet, died, apparently from the injuries sustained during the assault perpetrated by appellant. Thus, the victim’s death occurred subsequent to the termination of the first trial and approximately two weeks prior to the court’s imposition of sentence. On January 31, 1992, appellant wás indicted for first degree felony murder and second degree murder based on the victim’s death and the same conduct that had led to the earlier convictions.

Appellant thereafter filed a Motion to Dismiss the indictment asserting that the second prosecution violated both the federal constitutional protection against double jeopardy and Maryland common law. Following a hearing held on September 29, 1992, the trial court denied appellant’s motion. QUESTION PRESENTED Appellant asserts that the trial court erred in denying his Motion to Dismiss on the grounds that the indictment against him for murder is barred by the protection against double jeopardy and Maryland common law. ANALYSIS 1.

Constitutional protection against double jeopardy. The Double Jeopardy Clause of the Fifth Amendment, “nor shall any person be subject for the same offense to be twice put in jeopardy of life and limb,” is enforceable against the states through the Fourteenth Amendment. Benton v. ⁷³⁸ Maryland, 395 U.S. 784, 794 , 89 S.Ct. 2056, 2062 , 23 L.Ed.2d 707 (1969). The parties agree that an exception to this Fifth Amendment prohibition against double jeopardy exists where a fact necessary for the prosecution of an offense had not occurred “at the time of the first prosecution.” Whittlesey v. State, 326 Md. 502 , 606 A.2d 225 (1992); Illinois v. Vitale, 447 U.S. 410 , 100 S.Ct. 2260 , 65 L.Ed.2d 228 (1980); Brown v. Ohio, 432 U.S. 161 , 97 S.Ct. 2221 , 53 L.Ed.2d 187 (1977); Diaz v. United States, 223 U.S. 442 , 32 S.Ct. 250 , 56 L.Ed. 500 (1912).

Accordingly, we shall limit our analysis and proceed directly to a discussion of the applicability of this exception to the case sub judice 2 In Whittlesey , the Court of Appeals defined this exception, often referred to as the “Diaz exception,” as follows: [A] subsequent indictment on a second offense, otherwise barred by the Double Jeopardy Clause of the Fifth Amendment, is not barred if, at the time of prosecution for the earlier offense a reasonable prosecutor, having full knowledge of the facts which were known and in the exercise of due diligence should have been known to the police and prosecutor at that time, would not be satisfied that he or she would be able to establish the suspect’s guilt beyond a reasonable doubt. Whittlesey, 326 Md. at 525 , 606 A.2d 225 . Appellant argues that the Diaz exception is not applicable to the case sub judice because the subsequent occurrence necessary to establish appellant’s guilt in a murder prosecution, i.e., the victim’s death, occurred prior to sentencing and was therefore known to the State before the “prosecution” in the first case ended. The State counters that the relevant inquiry in determining whether the second prosecution is proper is whether the prosecutor was aware of evidence ⁷³⁹ sufficient to support a murder conviction at the commencement of the earlier prosecution.

As noted earlier, the victim in this matter died following appellant’s conviction but prior to sentencing. Our review of the relevant case law convinces us that in a case such as this, where a victim expires following the defendant’s convictions for lesser included assault offenses, but the victim’s death occurs prior to sentencing on those convictions, a subsequent prosecution on murder charges is not barred by the Fifth Amendment’s Double Jeopardy Clause. The Supreme Court and the Court of Appeals have not directly and explicitly answered this question, but have intimated on several occasions that the relevant inquiry in determining the applicability of the Diaz exception allowing a second prosecution is whether the State knew, or through due diligence should have known, of facts establishing the accused’s guilt at the time that the trial in the original prosecution is commenced. In Gianiny v. State, 320 Md. 337 , 577 A.2d 795 (1990), Judge Bloom addressed this question in dicta on behalf of the Court of Appeals, suggesting that in determining whether the Diaz exception is applicable, courts should look at the facts known to the State at the commencement of the first trial, or, perhaps as early as when an indictment is obtained: At what point along the continuum between indictment and trial and conviction for the lesser charge the additional facts necessary to sustain the greater charge must have occurred or been discovered in order for the prosecution of the greater charge to be barred by conviction of the lesser is not firmly established.

Justice Brennan’s concurring opinion in Ashe v. Swenson, 397 U.S. 436 , 453 n. 7 [ 90 S.Ct. 1189 , 1199 n. 7, 25 L.Ed.2d 469 ] (1970), suggests that if a crime is not completed or not discovered, despite diligence on the part of the police “until after the commencement of a prosecution for other crimes arising from the same transaction, an exception to the same transaction rule should be made to permit a separate prosecution.” In Blackledge v. ⁷⁴⁰ Perry, 417 U.S. 21 [ 94 S.Ct. 2098 , 40 L.Ed.2d 628 ] (1974), the Court referred to Diaz as a case in which it was impossible to charge the defendant with a more serious crime “at the outset.” The dissenting opinion of Justice Stevens in Garrett v. United States, 471 U.S. 773 [ 105 S.Ct. 2407 , 85 L.Ed.2d 764 ] (1985), suggests that “at the outset” may be at time of indictment for the lesser offense. Gianiny, 320 Md. at 341, note 3 , 577 A.2d 795 . There is other authority that buttresses the suggestion that if the greater, inclusive offense is not completed at the time that the trial commences, the State is not barred from later bringing a second indictment charging the greater offense. For example, in Brown v. Ohio, 432 U.S. 161 , 169 n. 7, 97 S.Ct. 2221 , 2227 n. 7, 53 L.Ed.2d 187 (1977), the Supreme Court observed that: [a]n exception may exist where the State is unable to proceed on the more serious charge at the outset because the additional facts necessary to sustain that charge have not occurred or have not been discovered despite the exercise of due diligence.

(Emphasis supplied). In Jeffers v. United States, 432 U.S. 137, 151 , 97 S.Ct. 2207, 2216 , 53 L.Ed.2d 168 (1977), a case decided the same day as Brown , the Supreme Court, in discussing the so-called “Diaz exception,” stated: One commonly recognized exception is when all the events necessary to the greater crime have not taken place at the time the prosecution for the lesser is begun. (Emphasis supplied, citations omitted). As a result of the foregoing, we are convinced that the prosecution of the case sub judice is not barred by the Double Jeopardy Clause of the Fifth Amendment because at the time the first trial on the related charges commenced an essential element of the crime of murder, the victim’s death, had yet to occur.

Accordingly, this case falls within the Diaz exception and the State is not barred by the Double Jeopardy Clause of the Fifth Amendment from subsequently bringing charges of first degree felony murder or second degree murder. ⁷⁴¹ 2. Maryland common law. Appellant’s second argument is based on Maryland common law of autrefois convict and is really composed of two separate arguments. In the first of these common law arguments, appellant maintains that the prosecution of the murder charges, following earlier convictions on lesser included offenses that are part of the “same offense,” is barred under the Maryland common law doctrine of autrefois convict.

Essentially, appellant is arguing that there is no corollary to the “Diaz exception” that is applicable to the Maryland common law of autrefois convict. Accordingly, appellant concludes that a strict application of the Maryland common law of autrefois convict bars the subsequent prosecution. Appellant also argues that the timing of the death of the victim, coupled with the State’s failure to object at appellant’s sentencing for the aggravated assaults, forecloses any option that the State may have had to prosecute appellant for murder. In making this argument, appellant relies on the recent Court of Appeals decision in Middleton v. State, 318 Md. 749 , 569 A.2d 1276 (1990), as well as this court’s subsequent decision in Griffiths v. State, 93 Md.App. 125 , 611 A.2d 1025 (1992), cert. granted, 329 Md. 337 , 619 A.2d 547 (1993).

Appellee argues that these cases are distinguishable from the matter sub judice. 3 In Middleton , the Court of Appeals provided a succinct explanation of the stated Maryland common law of autrefois convict: The Maryland common law double jeopardy prohibition consists “of different but related rules,” some of which ⁷⁴² embody “several distinct pleas at common law.” Pugh v. State, 271 Md. 701, 705 , 319 A.2d 542 (1974). One of those common law pleas, autrefois convict, generally means that “where there had been a final [judgment] ... of ... conviction, ... the defendant could not be a second time placed in jeopardy for the particular offense.” Hoffman v. State, 20 Md. 425, 434 (1863). See Blackstone, Commentaries On The Laws of England 335-336 (Lewis, ed. 1897); 1 Chitty, A Practical Treatise On The Criminal Law 376 (1819) (“The plea of autrefois convict depends ... on the principle that no man shall be more than once in peril for the same offense”). Middleton, 318 Md. at 756-7 , 569 A.2d 1276 .

In Fields v. State, 96 Md.App. 722, 727-28 , 626 A.2d 1037 (1993), Judge Moylan stated: In classic double jeopardy law, by contrast, the triggering event of jeopardy occurred only as a verdict was rendered. Only then had the historic event taken place which could support a plea of autrefois acquit or autrefois convict---- % # ijt í*í ifc * In English common law, it was always the case that initial jeopardy was not deemed to attach until a verdict was rendered. That is still the position of the common law, both in England and in Maryland, today. In Ferenc v. State, 563 So.2d 707 (Fla.App. 1 Dist.1990), the District Court of Appeal stated: Although double jeopardy arguments are frequently raised as challenges to both conviction and sentence, the crux of such an argument is that the defendant should not have been convicted of multiple offenses arising out of a single incident.

See Carawan v. State, 515 So.2d 161 (Fla. 1987). Therefore, a double jeopardy argument constitutes a challenge of a conviction, rather than a sentence. (Emphasis supplied). ⁷⁴³ While we agree with appellant’s contention that the protection afforded defendant under autrefois convict is more expansive than that under the Fifth Amendment, 4 we must disagree with appellant’s contention that the Diaz exception to the federal constitutional double jeopardy protection has no counterpart in the common law of autrefois convict. While the offenses in the first and second indictments are, under the required