State v. Woodson

CHASANOW, Judge. We are called upon in this case to determine whether double jeopardy bars retrial of a greater offense after a mistrial has been declared on both the greater offense, on which the jury was hung, and a lesser included offense, on which the jury reached a verdict but did not announce that verdict. For the reasons discussed below, we hold that double jeopardy does not prohibit retrial of the greater offense even though it may bar retrial of the lesser included offense. I. Thomas Andrew Woodson (Woodson) was charged in a four-count indictment with distribution of a controlled dangerous substance (Count 1), possession of a controlled dangerous substance with intent to distribute (Count 2), possession of a controlled dangerous substance (Count 3), and conspiracy to distribute a controlled dangerous substance (Count 4).

Wood-son was tried on these charges before a jury in the Circuit Court for Prince George’s County, Vincent Femia, J., presiding. After all evidence was presented at the trial, the circuit court granted Woodson’s motion for judgment of acquittal on the conspiracy to distribute a controlled dangerous substance count (Count 4). The jury was then instructed on the remaining three counts and sent out to deliberate. The next day, the ³²⁶ jury submitted a note informing the judge that it had reached verdicts on two of the remaining three counts and that it was at an “impasse” on the other count.

The court then asked the jury if it had reached a verdict on Count 1, distribution of a controlled dangerous substance. After the jury informed the court that it had reached a verdict of “not guilty” on that count, the court recorded that verdict. The court then asked the jury if it had reached a verdict on Count 2, possession of a controlled dangerous substance with intent to distribute. The jury informed the court that it had not reached a verdict on Count 2.

The judge then gave the jury the Maryland version of an Allen charge 1 and sent the jury out for further deliberations. Prior to releasing the jury for further deliberations, the court informed the jury that although the court had read its note stating that the jury had reached a verdict on two of the three counts, the court was “not going to ask [the jury] about Count [3]” because “the next count [the jury needs] to answer is Count [2].” About four hours later, the jury returned from deliberations and informed the court that it had no made further progress in its deliberations and was “irrevocably deadlocked.” The court thereupon declared a mistrial on both Counts 2 and 3 and discharged the jury. The court never inquired as to whether a verdict was reached on Count 3, despite the fact that the note submitted by the jury foreperson indicated that the jury had apparently reached a verdict on that count. Neither Woodson nor the prosecutor objected to the court’s failure to take the verdict on Count 3.

A new trial date was set. Before his retrial on Counts 2 and 3 began, Woodson filed a motion to dismiss Counts 2 and 3, arguing that double jeopardy prohibited retrial on both counts. He argued that the court’s failure to take the verdict on Count 3 amounted to an acquittal of that count and because Count 3 was a lesser included offense of Count 2, double jeopardy bars retrial of Count 2. The motion to dismiss was ³²⁷ denied, and Woodson was retried in a jury trial and convicted on both Count 2, possession with intent to distribute, and Count 3, possession.

After his conviction on both these counts, Woodson renewed his motion to dismiss the charges, arguing that double jeopardy and collateral estoppel prohibited his retrial. The trial judge granted Woodson’s post-trial motion to dismiss both counts on the ground that the declaration of a mistrial without manifest necessity as to Count 3 prohibited retrial on that count and also prohibited retrial on Count 2 because it is the “same offense.” The State appealed the circuit court’s decision to the Court of Special Appeals, which affirmed the circuit court’s determination that double jeopardy barred retrial on both Counts 2 and 3. State v. Woodson, 100 Md.App. 97, 103 , 639 A.2d 710, 713 (1994). The intermediate appellate court held that at Woodson’s first trial, the circuit court “erred, as a matter of law, in failing to receive [the verdict on Count 3] and, instead, in declaring a mistrial on that count when there was no necessity or justification for doing so.” Woodson, 100 Md.App. at 101-02 , 639 A.2d at 712 .

The court noted that the “law assumes that the untaken verdict was an acquittal because to do otherwise would be fundamentally unfair.” Woodson, 100 Md.App. at 102 , 639 A.2d at 713 . Thus, the court concluded that because the circuit court’s failure to take the verdict on Count 3 amounted to an acquittal as a matter of law on that count, double jeopardy bars retrial of Count 2, which is the “same offense” under double jeopardy law. We granted certiorari to consider whether double jeopardy bars retrial of a greater offense, on which the jury was hung, after a mistrial was declared on both the greater offense and a lesser included offense, on which the jury reached a verdict but did not announce that verdict.

II

The Fifth Amendment to the United States Constitution provides that “no person shall be twice put in jeopardy” for the same offense. U.S. Const. amend. V. The Fifth Amendment’s double jeopardy bar is applicable to the states ³²⁸ through the Fourteenth Amendment. See Benton v. Maryland, 395 U.S. 784, 787 , 89 S.Ct. 2056, 2058 , 23 L.Ed.2d 707, 711 (1969).

Maryland common law double jeopardy principles also “protect an accused against twice being put in jeopardy for the same offense.” Gianiny v. State, 320 Md. 337, 342 , 577 A.2d 795, 797 (1990). The Supreme Court has stated that the double jeopardy bar affords a defendant three basic protections: “It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” (Footnotes omitted).

North Carolina v. Pearce, 395 U.S. 711, 717 , 89 S.Ct. 2072, 2076 , 23 L.Ed.2d 656, 664-65 (1969). See also Ohio v. Johnson, 467 U.S. 493, 498-99 , 104 S.Ct. 2536, 2540 , 81 L.Ed.2d 425, 433 (1984) (explaining that the double jeopardy “bar to retrial ... ensures that the State does not make repeated attempts to convict an individual, thereby exposing him to continued embarrassment, anxiety, and expense, while increasing the risk of an erroneous conviction or an impermissibly enhanced sentence”). The test for determining whether different statutory or common law offenses arising out of the same transaction are considered to be the same offense for double jeopardy purposes is the “required evidence” test. See Blockburger v. United States, 284 U.S. 299, 304 , 52 S.Ct. 180, 182 , 76 L.Ed. 306, 309 (1932) (“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 an additional fact which the other does not.”).

The required evidence test “focuses upon the evidence necessary to sustain a conviction on each offense.” Thomas v. State, 277 Md. 257, 262 , 353 A.2d 240, 244 (1976). For double jeopardy purposes, offenses are deemed to be the same “where only one offense requires proof of an additional fact, so ³²⁹ that all elements of one offense are present in the other.” Thomas, 277 Md. at 267 , 353 A.2d at 247 . See also Snowden v. State, 321 Md. 612, 617 , 583 A.2d 1056, 1059 (1991). In the instant case, every element of possession is also an element of possession with intent to distribute.

Possession with intent to distribute includes the additional element of intent. Thus, because only possession with intent to distribute requires proof of an additional element and all elements of possession are present in possession with intent to distribute, the two are deemed the same offense for double jeopardy purposes. See Mauk v. State, 91 Md.App. 456, 461 , 605 A.2d 157, 159 (1992) (holding that possession with intent to distribute and simple possession are the same offense under Block-burger). Having found that possession -with intent to distribute and possession are the same offense, we must next determine if retrial for the same offense is barred by double jeopardy.

The double jeopardy prohibition against retrial for the same offense attaches in a jury trial when the jury is empaneled and sworn. See Illinois v. Somerville, 410 U.S. 458, 467 , 93 S.Ct. 1066, 1072 , 35 L.Ed.2d 425, 433 (1973); Blondes v. State, 273 Md. 435, 444 , 330 A.2d 169, 173 (1975). Thus, after jeopardy attaches, retrial is barred if a mistrial is declared without the defendant’s consent unless there is a showing of “manifest necessity” to declare the mistrial. See United States v. Perez, 22 U.S. (9 Wheat.) 579, 580 , 6 L.Ed. 165, 165 (1824) (holding that a trial court may discharge a jury without the defendant’s consent whenever “taking all the circumstances into consideration, there is a manifest necessity for the act”).

Although there is no clear test to determine whether a manifest necessity exists, it has been held that there must be a “ ‘high degree’ [of necessity] before concluding that the mistrial is appropriate.” Arizona v. Washington, 434 U.S. 497, 506 , 98 S.Ct. 824, 831 , 54 L.Ed.2d 717, 729 (1978) (footnote omitted). In the instant case, the State concedes that there was no manifest necessity to declare a mistrial as to Count 3, the ³³⁰ possession count, because the jury had reached a verdict on that count at the time the mistrial was declared. Thus, double jeopardy prohibits retrial of Count 3. 2 See Jourdan v. State, 275 Md. 495, 511-12 , 341 A.2d 388, 398 (1975) (holding that a prosecution for the same offense was barred by double jeopardy where a mistrial was declared without manifest necessity). While it is undisputed that there was no manifest necessity to declare a mistrial on Count 3, it is also undisputed that there was a manifest necessity to declare a mistrial on Count 2, the possession with intent to distribute count, because the jury was irrevocably deadlocked on that count.

See, e.g., Oregon v. Kennedy, 456 U.S. 667, 672 , 102 S.Ct. 2083, 2087 , 72 L.Ed.2d 416, 422 (1982) (a hung jury remains the “prototypical example” of manifest necessity justifying the declaration of a mistrial); Wooten-Bey v. State, 308 Md. 534, 543 , 520 A.2d 1090, 1094 (noting that there is a manifest necessity to declare a mistrial “when the jury is unable to reach a verdict in a criminal cause”), cert. denied, 481 U.S. 1057 , 107 S.Ct. 2199 , 95 L.Ed.2d 853 (1987). Although double jeopardy ordinarily would not bar retrial on Count 2 since there was a manifest necessity for the declaration of a mistrial on that count, we must determine whether retrial on Count 2 is nevertheless ³³¹ barred because double jeopardy bars retrial of the lesser included offense of Count 3. As discussed below, we hold that the circuit court’s declaration of a mistrial without manifest necessity on Count 3 does not bar retrial on Count 2. Initially, we must consider the doctrine of collateral estoppel and its applicability to the issues presented in the instant case.

Collateral estoppel is embodied within the Fifth Amendment’s guarantee against double jeopardy. See Ashe v. Swenson, 397 U.S. 436, 446 , 90 S.Ct. 1189, 1195 , 25 L.Ed.2d 469, 476 (1970). The doctrine of collateral estoppel provides that “when. a[n] issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Ashe, 397 U.S. at 443 , 90 S.Ct. at 1194 , 25 L.Ed.2d at 475 . We have held that although collateral estoppel is usually invoked when there has been a prior acquittal, the “critical consideration is whether an issue of ultimate fact has been previously determined in favor of the defendant.” See Butler v. State, 335 Md. 238, 253 , 643 A.2d 389, 396 (1994).

In a collateral estoppel challenge, the burden is “on the defendant to demonstrate that the issue whose relitigation he seeks to foreclose was actually decided in the first proceeding.” Dowling v. United States, 493 U.S. 342, 350 , 110 S.Ct. 668, 673 , 107 L.Ed.2d 708, 719 (1990). It has been held that a defendant has a difficult burden to overcome in establishing that the issue was actually decided in the first proceeding. See United States v. Clark, 613 F.2d 391, 400 (2d Cir.1979), cert. denied, 449 U.S. 820 , 101 S.Ct. 78 , 66 L.Ed.2d 22 (1980), cited in Butler, 335 Md. at 254 , 643 A.2d at 397 . Thus, in the instant case, Woodson has the burden of establishing that the jury actually decided an issue in his favor on the possession count which would prevent relitigation of that issue in a trial on Count 2, possession with intent to distribute.

It is clear from the record of the proceedings in the instant case that Woodson has not met his burden. No verdict was actually delivered on the possession count in the instant case. Because the jury did not render a verdict on the ³³² possession count, there is no judgment from which findings of fact in favor of Woodson can be inferred. See Schiro v. Farley, ___ U.S. ___, ___, 114 S.Ct. 783, 792 , 127 L.Ed.2d 47, 60-61 (1994) (holding that “the failure to return a verdict does not have collateral estoppel effect ... unless the record establishes that the issue was actually and necessarily decided in the defendant’s favor”).

Collateral estoppel requires a finding that an issue was actually decided. In the instant case, collateral estoppel cannot arise from speculation as to what facts may have been found when nothing in the record indicates that any facts were found in favor of Woodson. In fact, the unannounced verdict in the instant case was in all likelihood a verdict of guilty. The most probable scenario is that the jury decided that Woodson was guilty of possession but could not agree on whether he had the intent to distribute.

It is unlikely that the jury would have hung on the charge of possession with intent to distribute if it had already concluded that Woodson was not guilty of possession. Therefore, Woodson has not met his burden of establishing that collateral estoppel prevents retrial of Count 2. Woodson also argues that retrial of Count 2, the greater offense of possession with intent to distribute, is barred by double jeopardy because the failure of the circuit court to take the verdict on Count 3, the lesser included offense of possession, amounted to an acquittal of that count. Woodson further argues that the jury’s silence on Count 3 also operates as an acquittal of that offense because “[wjhere a verdict is silent as to some counts but not as to others, the silence is equivalent to a verdict of not guilty as to those counts.” Thus, Woodson argues that his “acquittal” on Count 3 bars retrial of Count 2 because the two are regarded as the “same offense” for double jeopardy purposes under Blockburger, 284 U.S. at 304 , 52 S.Ct. at 182 , 76 L.Ed. at 309 .

The State argues that although double jeopardy bars retrial of Count 3,