State v. Garner

MOYLAN, Judge. Even the expansive version of double jeopardy law promulgated by Grady v. Corbin, 495 U.S. 508 , 110 S.Ct. 2084 , 109 L.Ed.2d 548 (1990), 1 was intended to be, at most, a ³⁹⁵ shield to protect a defendant from oppressively successive prosecutions by the State. It was never intended to be a sword with which a defendant could opportunistically manipulate or disrupt proper charges properly filed against him. The appellee, Robert Ignatius Garner, III, came tantalizingly close to such successful manipulation and/or disruption, however, when he received a ruling in the Circuit Court for St. Mary’s County that charges against him for driving while intoxicated be dismissed on double jeopardy grounds.

In an effort to thwart that manipulation and/or disruption, the State has taken the present appeal. On August 26, 1990, the appellee was issued citations for five separate traffic offenses: 1) driving while intoxicated, 2) driving in violation of an alcohol restriction on his license, 3) reckless driving, 4) spinning wheels, and 5) failure to fasten properly his license plate. On September 6, the appellee, through counsel, entered a plea of not guilty on all charges in the District Court. On his motion, all five charges were consolidated for trial in the District Court on November 27.

On that same day, the appellee filed in the District Court a prayer for a jury trial on the consolidated package of five offenses. Pursuant to Maryland Rule 4-301(b), the consolidated cases were transferred to the Circuit Court for St. Mary’s County. Trial in the Circuit Court was scheduled for April 17, 1991. The gravest of the charges — the most ardently to be avoided — was driving while intoxicated.

The defense plan went operational on April 15, two days before the scheduled trial. The appellee sought deliberately to go in harm’s way on a lesser jeopardy to avoid a greater jeopardy. The appellee attempted to pay into the District Court a $35 fine on the single traffic citation of driving in violation of an alcohol restriction on his license. We do not hesitate to characterize this creatively clever gambit as opportunistic, for had the appellee earnestly ³⁹⁶ desired to plead guilty simply out of genuine eleventh-hour remorse, that could have been done just as easily upon arraignment prior to trial two days later.

It is to be further noted that the only traffic citation on which jeopardy was courted was the one that arguably involved the “same conduct,” within the contemplation of Grady v. Corbin, as did the charge of driving while intoxicated. At the very outset of trial on April 17, moreover, the appellee was poised and ready with a motion to dismiss the driving while intoxicated charge on the grounds of double jeopardy according to Grady v. Corbin as applied in Maryland by Gianiny v. State, 320 Md. 337 , 577 A.2d 795 (1990). The April 17 hearing on the double jeopardy claim involved no presentation of evidence but only arguments by counsel. The circumstances as to how the appellee attempted to pay the fine were left completely vague.

Defense counsel simply asserted that his client had paid the fine and rested his double jeopardy argument upon that conclusory assertion. Whether the remission of the fine was by mail or in person was not established. It appears that by one avenue or another the District Court clerk ultimately received the money and issued the appellee a receipt. Because of the jurisdictional problem we are about to discuss, however, the District Court was unable to credit the $35 against the citation.

Accordingly, the District Court clerk wrote the appellee on April 25, offering either to return the money or to apply it to another unrelated citation, as the appellee might direct. The appellee never responded. Based upon the assumption that the fine had been paid, the trial judge granted the motion to dismiss the driving while intoxicated charge on double jeopardy grounds. The State cries Foul.

We hold that upon either of two independent grounds, the State is legitimately chagrined. The Absence of Initial Jeopardy The first hurdle the appellee has failed to clear is that he cannot be in subsequent (or double) jeopardy until he has been in initial jeopardy. Under Md.Transp. Art. ³⁹⁷ § 26-204(b), it is very easy for a defendant to enter into a state of jeopardy in the case of many designated traffic citations.

Ordinarily, of course, jeopardy in more serious cases does not attach until the literal commencement of an actual trial — the swearing of the jury in a jury trial or the first offering of evidence in a court trial. Under the mass production conditions of the traffic courts, however, the attachment of jeopardy is far less formal. Section 26-204(a) provides that after having been issued a traffic citation, a person shall comply with the notice to appear contained in that citation. Subsection (b) goes on to provide, however, that a person may comply with the notice to appear 1) by appearing in person, 2) by appearing through counsel, or 3) by payment of the fine if the citation is an offense permitting that form of response.

Any of the three may precipitate jeopardy when they lead to a conviction. In Gianiny v. State, 320 Md. 337 , 577 A.2d 795 (1990), Judge Bloom, specially assigned, pointed out for the Court of Appeals that when a fine is paid in this third fashion, the defendant stands convicted of the offense. Judge Bloom observed, at 320 Md. 346 , 577 A.2d 795 : “The statutory laws of this State authorize one to appear in response to a traffic citation that provides for payment of a fine by paying the fine, with the clear understanding that such payment will constitute a conviction. ... When one has been convicted and punished for a criminal offense, he has been in jeopardy.” (emphasis supplied).

But for another impediment yet to be discussed, the defense strategy was well conceived. It was better in its conception, however, than it was in its timing. Even in this third and less formal modality, there is a precise moment when jeopardy attaches. When the payment of the fine is being made either in person or through counsel, jeopardy does not attach as the defendant or his agent walks into the door of the District Court building nor even ³⁹⁸ as they stand in line at the cashier's cage.

If the payment is being made by mail, jeopardy attaches neither with the writing of the check nor with the placing of the check in an envelope nor with the posting of the envelope in the mailbox. Jeopardy attaches when the constructive docket entry is made by the District Court, crediting the payment of the fine against the traffic citation in question. In this case, that moment never occurred. The District Court never did credit the payment against the citation for the reason that it had been divested of all authority to do so.

Ironically, the divesting agent was the appellee himself. After the five traffic charges had been consolidated for trial at his request, the appellee, as was his right, filed a prayer for a jury trial. With the filing of that prayer, jurisdiction over the charges moved from the District Court to the Circuit Court. Md.Cts. & Jud.Proc.Code Ann. § 4-302(e)(l) (1974, 1989 Repl.Vol.) provides: “The District Court is deprived of jurisdiction if a defendant is entitled to and demands a jury trial at any time prior to trial in the District Court.” Even the appellee acknowledges that the attachment of initial jeopardy on a lesser included charge is a necessary condition precedent to a later claim of double jeopardy on a greater inclusive charge.

In this case, that initial jeopardy never occurred. By the time the appellee tendered payment of the fine to the District Court, the District Court no longer had any jurisdiction over the charge. The act of tendering payment, under the circumstances, was as devoid of legal significance as if such tender had been made to the District Court of Arkansas or to the State Racing Commission or to the local chapter of the American Red Cross. In terms of basking in lesser jeopardy, the window of opportunity had shut.

Sequential Versus Parallel Jeopardy Even if the appellee had succeeded in having himself found guilty of the arguably lesser included offense, how ³⁹⁹ ever, that would still afford him no double jeopardy relief in the posture of this case. Indispensable to any understanding of double jeopardy law is the appreciation that, both in origin and in essential character, a double jeopardy defense is not a defense upon the merits. It is a defense in bar. It applies in a sequential setting.

Its purpose is to prevent the prosecution from instituting new proceedings following the termination, through a verdict of either guilty or not guilty, of earlier proceedings. It is interposed as a plea in bar to prevent the initiation of new and sequential jeopardy following the termination of an earlier jeopardy. By sharp contrast, it is not designed to interfere with the continuation of simultaneous or parallel jeopardy. The termination of jeopardy on a single charge in a multicharge setting has no immediate and cross-over effect on other counts in a multi-count indictment or on other indictments in a multi-indictment trial that are simultaneously proceeding along their own parallel tracks.

As is true with any plea in bar (because of the very nature of that type of plea), the function of the double jeopardy defense is not to terminate an existing jeopardy but only to bar the attachment of a new jeopardy. The very possibility of confusion on this score might never have arisen if Sir William Blackstone had not, perhaps inadvertently, substituted the confusingly broad term “double jeopardy” for the original and clearer usage “former jeopardy.” In Apostoledes v. State, 323 Md. 456, 467-469 , 593 A.2d 1117 (1991), Judge Chasanow captured this essential core of double jeopardy law. In that case, the trial judge granted the defendant’s motion for a directed verdict at the end of the State’s case on the charge of conspiracy to murder because the State had failed to produce legally sufficient evidence of such conspiracy. The trial proceeded on the murder count itself.

As to that count, however, the jury could not reach a verdict and a mistrial was declared. The defendant attempted to interpose a double jeopardy bar to ⁴⁰⁰ her retrial on the murder charge, arguing three separate double jeopardy theories. One of those theories was Grady v. Corbin ’s prohibition on being placed in jeopardy a second time for the “same conduct.” Rather than look to the merits of the claim, Judge Chasanow rejected it at the threshold, pointing out that the double jeopardy defense, whatever its merit might be in other contexts, did not apply in the procedural posture of that case: “Nowhere in its opinion did the Grady Court suggest that the Double Jeopardy Clause protects against multiple trials when one or more counts are left unresolved following an initial trial due to jury deadlock, the grant of a new trial, or reversal on appeal. Any doubt that the successive holding in Grady is ordinarily limited to instances where the State has failed to bring and join for trial all charges arising from a single episode is dispelled by the Court’s concluding remarks: ‘With adequate preparation and foresight, the State could have prosecuted Corbin for the offenses charged in the traffic tickets and the subsequent indictment in a single proceeding, thereby avoiding this double jeopardy question.’ 495 U.S. at 524 , 110 S.Ct. at 2095 , 109 L.Ed.2d at 566 .

In the instant case, the State did precisely what was urged in Grady . Therefore, the double jeopardy question at issue in Grady has been avoided.” (emphasis supplied). 323 Md. at 468 , 593 A.2d 1117 . Significantly, the Court of Appeals did not resolve that double jeopardy issue on its merits but held rather that