State v. Griffiths

McAuliffe, Judge. As a result of a police raid that occurred on 26 June 1990, Dorin Griffiths was charged with five offenses by a criminal information filed in the Circuit Court for Baltimore City. 1 On 10 January 1991, a jury found the defendant guilty of possession of cocaine (count 2) and possession of controlled para ⁴⁸⁸ phernalia (count 3), and not guilty of the use of a firearm in the commission of a felony (count 5). The jurors were unable to reach a verdict on the charges of possession of cocaine with intent to distribute (count 1) and maintaining a common nuisance (count 4). Judge John Carroll Byrnes declared a mistrial as to those counts, and scheduled a date for sentencing on the two counts of which the defendant had been convicted.

It does not appear from the record that either the defendant or the State interposed an objection, then or thereafter, to proceeding with sentencing on those counts. On 1 March 1991, after denying defendant’s motion for a new trial ■ and for the entry of a verdict of not guilty on count 1, Judge Byrnes imposed concurrent sentences of four years imprisonment, with all except 18 months suspended, and three years probation, on the two counts. On 23 April 1991, the parties appeared before Judge Marvin B. Steinberg for retrial of counts 1 and 4. At that time the defendant moved to dismiss count 1, which charged possession of cocaine with intent to distribute.

The defendant argued that “jeopardy in this particular case attached after the jury made its finding of guilty as to possession____” Judge Stein-berg denied the motion, after which the parties advised the judge they had agreed that the matter would proceed to trial on count 1 on an agreed statement of facts, 2 and if the defendant were found guilty Judge Steinberg would impose a sentence identical to that previously imposed by Judge Byrnes, to run concurrently with that sentence, and the State would nol pros count 4. After the State read the agreed statement of facts into evidence, Judge Steinberg found the defendant guilty of the charge of possession with intent to distribute and sentenced him accordingly. The defendant appealed to the Court of Special Appeals, contending that constitutional and common law protections ⁴⁸⁹ against double jeopardy barred his subsequent prosecution and sentencing for the greater offense of possession of cocaine with intent to distribute after he had been convicted and sentenced on the lesser included offense of simple possession of the same cocaine. The Court of Special Appeals reversed the conviction of the greater offense, holding that 1) the Fifth Amendment protection against double jeopardy, applicable to the states through the Fourteenth Amendment, does not bar the conviction and sentence in this case, but that 2) this Court’s decision in Middleton v. State, 318 Md. 749 , 569 A.2d 1276 (1990), established a rule of common law double jeopardy that was applicable to the instant case and that precluded the subsequent prosecution.

Griffiths v. State, 93 Md.App. 125, 133-34 , 611 A.2d 1025 (1992). We granted the State’s petition for certiorari, and we reverse. I. The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides that no person “shall ... be subject for the same offense to be twice put in jeopardy of life or limb.” The Double Jeopardy Clause prohibits successive prosecution as well as cumulative punishment. Brown v. Ohio, 432 U.S. 161, 166 , 97 S.Ct. 2221, 2225-26 , 53 L.Ed.2d 187 (1977).

Under the Maryland common law of double jeopardy, a defendant cannot be “put in jeopardy again for the same offense — in jeopardy of being convicted of a crime for which he had been acquitted; in jeopardy of being twice convicted and punished for the same crime.” Gianiny v. State, 320 Md. 337, 347 , 577 A.2d 795 (1990). A “greater offense is ... by definition the ‘same’ for purposes of double jeopardy as any lesser offense included in it.” Brovm v. Ohio, supra, 432 U.S. at 168 , 97 S.Ct. at 2227 . The defendant’s argument has several prongs. First, he contends that because he has already been placed in jeopardy and subjected to one full trial on the charge of possession of cocaine with the intent to distribute, he may not again be tried for that offense.

The well-established law is to ⁴⁹⁰ the contrary. Ordinarily, when a mistrial has been declared as the result of a manifest necessity or with the consent of the defendant, retrial of the same charge is not prohibited by the Double Jeopardy Clause. 3 Oregon v. Kennedy, 456 U.S. 667, 671-72 , 102 S.Ct. 2083, 2087-88 , 72 L.Ed.2d 416 (1982). A hung jury is the “prototypical example” of manifest necessity for a mistrial. Id. at 672 , 102 S.Ct. at 2088 .

Second, the defendant contends there is an additional factor present in his case that takes it out of the ordinary rule governing retrial after a mistrial, and that is the fact of his conviction and sentencing for the offense of simple possession of cocaine. He argues that the sentence imposed by Judge Byrnes, superimposed on the jury’s verdict of guilt, constitutes a judgment of conviction of a lesser included offense, thereby barring a subsequent prosecution, conviction, or sentence for the greater offense of possession of cocaine with intent to distribute. He bases his argument on the constitutional protection of the Double Jeopardy Clause, and on the Maryland common law doctrine, originally raised by the plea of autrefois convict, that prohibits placing a defendant in jeopardy a second time when there has been a final judgment of conviction for the same offense. There are at least two quite different ways in which a defendant may be convicted of a lesser included offense and thereafter face trial for a greater offense.

The first involves separate proceedings resulting from charging documents filed at different times. We addressed just such a problem in Gianiny v. State, supra, 320 Md. at 339 , 577 A.2d 795 , where the defendant sought to bar the State from proceeding against him on a charge of manslaughter by automobile because he previously had a final judgment of conviction of negligent driving entered against him in a separate proceeding, and both ⁴⁹¹ charges related to the same occurrence. We held that negligent driving is a lesser included offense within the greater offense of manslaughter by automobile, id. at 343, 577 A.2d 795 , and that as a result of the earlier final judgment of conviction of the lesser offense, arising from a separate proceeding and involving charges brought at an earlier time, the Double Jeopardy Clause of the Fifth Amendment and Maryland common law barred a subsequent prosecution for the greater offense. Id. at 347-48 , 577 A.2d 795 .

A second possible scenario involves a conviction of a lesser included offense that is one of several charges which were filed at the same time. 4 We recently addressed double jeopardy issues arising in that type of continuing prosecution case in Middleton v. State, supra, 318 Md. 749 , 569 A.2d 1276 , and in Huff v. State, 325 Md. 55 , 599 A.2d 428 , 599 A.2d 428 (1991). 5 We considered closely related double jeopardy issues in Apostoledes v. State, 323 Md. 456 , 593 A.2d 1117 (1991). A set of facts analytically similar to those of the instant case was presented by Huff v. State, supra. In Huff , the defendant was charged with multiple offenses arising out of a fatal motor vehicle accident. Although the charges were contained in two different charging documents, they were issued at one time and pursuant to a single application for charges.

The defendant secured a final judgment of conviction on a lesser charge of negligent driving by paying a preset fine, and then moved to dismiss the greater charges of manslaughter by automobile and homicide by motor vehicle while intoxicated. The motion was denied. Although the procedural posture of the case prevented us from ruling directly on the correctness of this holding, we expressed our views because of the importance of the question and the recurring nature of the issue. ⁴⁹² When sentence was imposed on the lesser included offense in Huff , no disposition, implicit or otherwise, had been made of the greater charges. The judgment of conviction on the lesser count did not dispose of the open counts.

A subsequent trial of the greater counts involved no more than a permitted step in a continuous prosecution that had not been completed. Drawing on the teachings of the Supreme Court in Ohio v. Johnson, 467 U.S. 493 , 104 S.Ct. 2536 , 81 L.Ed.2d 425 (1984), we concluded that the continued prosecution of the greater charges offended neither the constitutional nor the common law prohibitions against double jeopardy. Huff v. State, supra, 325 Md. at 76-77 , 599 A.2d 428 . The Supreme Court, in rejecting the defendant’s claim of double jeopardy in Ohio v. Johnson, supra, pointed out that the charges were embraced within a single prosecution.

The Court said: The grand jury returned a single indictment, and all four charges were embraced within a single prosecution. Respondent’s argument is apparently based on the assumption that trial proceedings, like amoebae, are capable of being infinitely subdivided, so that a determination of guilt and punishment on one count of a multicount indictment immediately raises a double jeopardy bar to continued prosecution on any remaining counts that are greater or lesser included offenses of the charge just concluded.’ We have never held that, and decline to hold it now. Id., 467 U.S. at 501 , 104 S.Ct. at 2541-42 . Drawing on an earlier case, the Supreme Court said: We think this is an even clearer case than Jeffers v. United States, 432 U.S. 137 , 97 S.Ct. 2207 , 53 L.Ed.2d 168 (1977), where we rejected a defendant’s claim of double jeopardy based upon a guilty verdict in the first of two successive prosecutions, when the defendant had been responsible for insisting that there be separate rather than consolidated trials.

Id. at 502. The Court in Jeffers concluded that: Both the trial after the appeal and the trial after the mistrial are, in a sense, a second prosecution for the same ⁴⁹³ offense, but, in both situations, the policy behind the Double Jeopardy Clause does not require prohibition of the second trial. Jeffers v. United States, 432 U.S. 137, 152 , 97 S.Ct. 2207, 2217 , 53 L.Ed.2d 168 (1977). Although the State in the case before us did not object to the sentencing of the defendant on the lesser offense before retrial of the greater, neither did it initiate or request that procedure.

The sentencing occurred because the trial judge, apparently acting reflexively upon the receipt of