State v. Shied

BISHOP, Judge. A Baltimore City Grand Jury returned three indictments (18824202-04) each charging Timothy Shird, appellee, with one count of assault, assault with the intent to maim, and use of a handgun in the commission of a felony or crime of violence. 1 Appellee filed a Motion to Dismiss the indictments as violative of his double jeopardy rights. Hearings were held on the motion before the Circuit Court for Baltimore City. (Roger M. Brown, J.) Judge Brown granted appellee’s motion.

The State noted this timely appeal, asking whether the lower court erred in granting appellee’s Motion to Dismiss on double jeopardy grounds. FACTS On February 7, 1987 appellee went to the home of Winston Collymore to purchase a refrigerator. There was an argument between the two men culminating with appellee ³³⁰ spitting on Collymore and then leaving. Approximately 10 minutes after appellee’s departure, Collymore heard a knock on his front door.

Before he could rise from his chair at the dining room table, where he sat with his wife and child, three gunshots were fired through the front door of his house. Collymore testified that he went to the door and saw appellee fleeing. Appellee presented alibi testimony. Previous to the charges which were dismissed and are the basis of this appeal, appellee was tried under three Criminal Informations each alleging one count of assault with the intent to murder, attempted murder, assault, use of a handgun in the commission of a felony or crime of violence, and possession of a handgun.

On May 25, 1988 appellee’s trial was started before a jury in the Circuit Court for Baltimore City (Byrnes, J. presiding). At the close of all the evidence, the State formally withdrew the assault with intent to murder and the assault counts from each Criminal Information. Appellee moved for acquittal on the remaining counts. The trial court found legally insufficient evidence of a specific intent to kill and therefore acquitted appellee of attempted first degree murder.

The jury was instructed as to the crimes of attempted second degree murder, attempted manslaughter and the two handgun offenses. On June 3, 1988 the jury returned a verdict finding appellee guilty of attempted involuntary manslaughter, use of a handgun in the commission of a felony or crime of violence and possession of a handgun. On July 11, 1988 appellee filed a Motion for Judgment of Acquittal or in the Alternative for a New Trial arguing that there is no crime of attempted involuntary manslaughter in Maryland. Finding that no such crime exists the court ruled that appellee was entitled to a new trial on attempted manslaughter.

Because the use of a handgun charge was predicated on that crime of violence it also was set for trial. On August 25, 1988 appellee was sentenced to two years imprisonment for the possession of a handgun conviction. The sentence was to be served consecutive to an eight year sentence appellee is currently serving. ³³¹ On August 29, 1988 the State sought and received the three indictments which are the subject of this appeal. The new charges were based on the original criminal transaction for which appellee was initially prosecuted.

After lengthy hearings on December 15 and 19,1988 the Honorable Roger W. Brown, as we stated, supra, granted appellee’s Motion to Dismiss all charges. DISCUSSION I. Assault The State argues that appellee “did not object to, or otherwise complain about” the State’s withdrawal of the assault charge at the conclusion of the first trial. Therefore, the nolle prosequi was not an unconsented one and the trial court’s reliance on Ward v. State, 290 Md. 76 , 427 A.2d 1008 (1981) was misplaced. The State also argues that Ward holds that the nolle prosequi of a count after jeopardy attaches does not constitute an acquittal of the underlying offense.

The rule that double jeopardy generally prohibits a subsequent prosecution of a previously nolle prossed count applies only when there has been no intervening action by the defendant. Since appellee successfully challenged his first conviction the double jeopardy rule does not apply. Appellee responds that it is a well settled principle of law that an unconsented nolle prosequi, after jeopardy attaches, precludes a subsequent prosecution for the same offense. Since jeopardy attached prior to the State’s withdrawal of the assault charges, a subsequent prosecution for the same assault is barred.

The double jeopardy clause of the fifth amendment to the United States Constitution has been incorporated within the due process clause of the fourteenth amendment and is binding on the States. Benton v. Maryland, 395 U.S. 784 , 89 S.Ct. 2056 , 23 L.Ed.2d 707 (1969). Double jeopardy and its relationship to a nolle prosequi was discussed extensively in Ward v. State, supra. Both parties rely on Ward for their respective positions. ³³² In Ward , two different counts charged the same offense in a five count indictment.

Count three expressly charged defendant with being an accessory before the fact to murder. Count five encompassed murder, manslaughter or being an accessory thereto. At trial, after jeopardy had attached, a nolle prosequi was entered by the State, without the defendant’s consent, with regard to counts four and five. The defendant was later convicted on count three— being an accessory.

Defendant challenged his conviction on count three and was awarded a new trial. Before the commencement of the second trial on the accessory charge, the defendant argued that a second trial would violate the prohibition against double jeopardy on the theory that the nolle prosequi of count five at the first trial, after the attachment of jeopardy and without defendant’s consent, amounted to an acquittal of all offenses charged in the fifth count, including the accessory charge. To retry the accessory charge under the third count would violate the double jeopardy prohibition against a trial for the same offense following an acquittal. Judge Eldridge, writing for the Court, stated that the fallacy in defendant’s argument was his treating the nolle prosequi as an acquittal.

The Court held that “there is nothing inherent in the nature of a nolle prosequi which causes its entry to operate as an acquittal of the underlying offense.” Ward, supra 290 Md. at 85 , 427 A.2d 1008 . The Court recognized that the leading Maryland case involving a nolle prosequi after the attachment of jeopardy is Friend v. State, 175 Md. 352 , 2 A.2d 430 (1938). Friend stands for the principle that when the . defendant is placed in jeopardy at his first trial, he has the right to accept the consequences of that trial, and a nolle pros and second trial on a new indictment for the same offense ordinarily violates double jeopardy principles. Ward, supra 290 Md. at 91 , 427 A.2d 1008 .

Applying these principles to the instant case requires an affirmance of the trial court’s denial of Ward’s double ³³³ jeopardy motion. The nolle pros of count five at the defendant’s trial was not an acquittal as to the underlying offense of being an accessory before the fact to murder, and in no way precluded the continuation of the trial under count three, also charging him with being an accessory. The defendant was entitled to a verdict on the accessory charge, and he received it. The State did not then attempt a prohibited subsequent prosecution under the nolle prossed count five.

It did not, without any intervening action of the defendant, attempt a prohibited second prosecution under count three following the conviction on that count. Instead, the defendant successfully had his conviction on count three set aside; he obtained a new trial, based upon his post conviction application. Under this circumstance, a second prosecution for being an accessory before the fact does not violate former jeopardy principles____ In the present case, the unconsented nolle pros of count five, after the attachment of jeopardy, would preclude a later attempt by the State to indict and try the defendant for murder or manslaughter only. However, this would not be because the nolle prosequi was an acquittal on the murder charge.

Instead, the result would be dictated by double jeopardy principles. Since count five included a murder and a manslaughter charge (as well as