Thomas v. State

Gilbert, C. J., delivered the opinion of the Court. This Court, in Thomas v. State, 29 Md. App. 45 , 349 A. 2d 384 (1975), affirmed the convictions of Donald Leroy Thomas for (1) assault with intent to murder Gloria Jean Stewart and (2) the use of a handgun in the commission of a felony. The instant case arises, like “the maiden phoenix,” 1 out of the ashes of the charge of assault with intent to murder because Gloria Jean Stewart died eleven months and six days after her initial wounding by appellant. Appellant was promptly indicted by the Grand Jury for Montgomery County for the murder of Miss Stewart.

Appellant moved to dismiss the indictment on the ground that any prosecution was barred by the double jeopardy clause of the Constitution of the United States as made applicable to the several States by the decision of the Supreme Court in Benton v. Maryland, 395 U. S. 784 , 89 S. Ct. 2056 , 23 L.Ed.2d 707 (1969). 2 The hearing judge dismissed the appellant’s contention. A petit jury, presided over by Judge John J. Mitchell, in the Circuit Court for Montgomery County, found the appellant guilty of murder in the second degree. Judge Mitchell imposed a sentence of ten (10) years upon appellant, but the judge directed that the sentence was to be served concurrently with any sentence appellant was then serving. Little need be said about the facts from which this appeal had its genesis.

The details of the crime are set forth in Thomas v. State, supra at 47-48, so we shall confine our ⁴⁶⁷ discourse to the applicable law, referring only to such facts as may be pertinent to the particular explication of the five issues raised by appellant. I. “Reversible error was committed where the trial judge denied the appellant’s motion to dismiss the indictment.” One of the basic tenets of American Law is that no man ought to be compelled to answer twice for the same offense. Our forefathers adopted, as part of the “Bill of Rights,” a constitutional safeguard against double jeopardy when they provided that no person shall “... be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const, amend. V. While Maryland did not place a similar proviso within its Constitution or Declaration of Rights, it has, nevertheless, continuously applied the common law prohibition against double jeopardy 3 even before Benton v. Maryland, supra, extended the federal rule against double jeopardy to the States.

The stating of the ban against double jeopardy is simple. Its application to given facts becomes more complex. See, e.g., Cousins v. State, supra note 3; Thomas v. State, supra note 3. See also Ashe v. Swenson, 397 U. S. 436 , 90 S. Ct. 1189 , 25 L.Ed.2d 469 (1970), and Bartkus v. Illinois, 359 U. S. 121 , 79 S. Ct. 676 , 3 L.Ed.2d 684 (1959), in which the Court upheld separate prosecutions by the federal government and the State of Illinois even though both prosecutions arose from the same facts. 4 ⁴⁶⁸ Judge Eldridge, in Cousins, an in depth discussion of double jeopardy, noted that some States apply the same event or same transaction test for determining the existence, vel non, of former jeopardy while others utilize the required evidence test which is the common law standard.

Appellant would have us jettison the required evidence test in favor of the same transaction test, but, as Judge Eldridge pointed out in Cousins, Maryland is not free “... to interpret the Fifth Amendment guarantee against double jeopardy as embodying the same transaction test in multiple trial situations.” 277 Md. at 394. Oregon v. Hass, 420 U. S. 714 , 95 S. Ct. 1215 , 43 L.Ed.2d 570 (1975), makes it vividly clear that a State is not at liberty to interpret Federal Constitutional provisions more broadly than has the Supreme Court. 420 U. S. at 719 . See also Thomas v. State, 26 Md. App. 232, 238 , 337 A. 2d 137, 140 (1975), rev’d on other grounds, 277 Md. 257 , 353 A. 2d 240 (1976). Judge Eldridge, in Cousins, went on to state for the Court that: “Maryland has never recognized a common law right to have joined at one trial all offenses arising from the same transaction.

While recognizing that common law principles prohibit multiple prosecutions and multiple punishments for the same offense, Gilpin v. State, ... [ 142 Md. 464 ,] 466, 121 A. 354 , [355 (1923),] this Court has rejected the contention that offenses are the same for double jeopardy purposes because they arise from the same criminal act or transaction.” 277 Md. at 395 . In this State, the proper test for determining whether a prior acquittal or conviction is a bar to subsequent prosecution is the required evidence rule. That rule of law, simply stated, is: “The offenses are not the same, though growing out of the same transaction, when one differs in all its elements from the other, or when the evidence adequate to one does not relate to, or support, the ⁴⁶⁹ other.” Gilpin v. State, 142 Md. at 467 (emphasis added). The required evidence test is applied by a majority of the States, Cousins v. State, supra at 392, and is employed by the Supreme Court of the United States.

Morgan v. Devine, 237 U. S. 632, 641 , 35 S. Ct. 712, 715 , 59 L. Ed. 1153, 1156 (1915); Gavieres v. United States, 220 U. S. 338, 341-342 , 31 S. Ct. 421, 422 , 55 L. Ed. 489, 490 (1911). Patently, a necessary element of the required evidence to sustain a murder charge is that the victim died. An assault with intent to murder possesses all the elements of murder except the death of the victim. Obviously, then, the two offenses are not the same even though they may have grown out of the same transaction.

We have been directed to no Maryland case, nor have we found one precisely on point with the matter now before us. Cases of other courts that have come to grips with similar situations and upheld convictions in the face of a plea of double jeopardy are legion. In Diaz v. United States, 223 U. S. 442 , 32 S. Ct. 250 , 56 L. Ed. 500 (1912), the Supreme Court considered a case arising from the Philippine Islands, wherein Diaz had been convicted of assault and battery and fined fifty pesetas. The victim expired 26 days after the assault, apparently as a result of the injuries sustained in the assault, and Diaz was brought to trial on a charge of murder.

He interposed a plea of former jeopardy. The plea was rejected by the Philippine Courts (15 Philippine, 123), and the case was appealed to the Supreme Court of the United States. That body likewise rejected the double jeopardy argument saying: “The homicide charged against the accused in the court in the first instance and the assault and battery for which he was tried before the justice of the peace, although identical in some of their elements, were distinct offenses both in law and in fact. The death of the injured person was the principal element of the homicide, but was no part of the assault and battery.

At the time of the trial ⁴⁷⁰ for the latter the death had not ensued, and not until it did ensue was the homicide committed. Then, and not before, was it possible to put the accused in jeopardy for that offense.” 223 U. S. at 448-49 . More pointedly, the Supreme Court of Pennsylvania, in Commonwealth v. Ramunno, 219 Pa. 204 , 68 A. 184 (1907), disallowed the very claim appellant makes. In that case, Ramunno had been convicted of assault with intent to murder and was sentenced to imprisonment for a term of seven years.

Four days following the imposition of sentence upon Ramunno, the victim died from the effects of the assault upon his person. Ramunno was then charged with the murder of the assault victim and was convicted of first degree murder. The Pennsylvania court held that the offenses were separate and apart. Ramunno could not have been tried for murder until the death of the victim, but the law was not required to postpone indefinitely the trial of Ramunno on the assault charge on the mere contingency that the victim might die as a result of the assault.

When Ramunno was initially tried, the victim was still alive, and assault with intent to murder was the only crime he had committed as of that time. In order for the plea of autrefois convict to be successful, the subsequent prosecution must be “.. . for the same identical act ....” 5 4 W. Blackstone,. Commentaries on the Laws of England § 336 (W. Lewis-1897). See also Southworth v. State, 98 Fla. 1184 , 125 So. 345 (1929) (assault and robbery, murder); Centers v. Commonwealth, 318 S.W.2d 57 (Ky. 1958) (armed robbery, murder); State v. Littlefield, 70 Me. 452 (1880) (assault and battery, murder); Carmody v. Seventh Judicial District Court, 81 Nev. 83 , 398 P. 2d 706 (1965) (robbery, murder); Curtis v. State, 22 Tex.

Ct. App. R. 227, 3 S. W. 86 (1886) (aggravated assault and battery, murder); Stewart’s Case, 5 ⁴⁷¹ Irv. 310; 6 1 Bishop on Criminal Law § 1059 (9th ed. J. Zane & C. Zollmann 1923). II. “The trial judge abused his discretion in admitting the prior recorded testimony of Gloria Jean Stewart at the [murder] trial.” In the other of his two principal thrusts, appellant zeroes in on the admission into evidence of the sworn testimony of the victim as recorded at the assault with intent to murder trial. Appellant vigorously avers that Miss Stewart’s prior testimony should not have been received into evidence because he was denied the right to confront the witness against him.

The testimony of Miss Stewart that appellant sought to exclude was that she saw the appellant shoot her after he had exclaimed, “.. . I got your ass now.” Earlier, the appellant had told the victim that “ ... if he couldn’t have me, there wasn’t nobody else going to have me, and he would rather see me dead.” Of course, that testimony, accompanied by the victim’s subsequent death, manifested a sound basis for the murder indictment. The general rule with respect to the use of prior sworn testimony was set forth by the Court of Appeals in Contee v. State, 229 Md. 486 , 184 A. 2d 823 (1962), cert. denied, 374 U. S. 841 (1963). Speaking through Judge Henderson (later Chief Judge), the Court answered a challenge to the admission of testimony given at a prior trial by a witness who later became incompetent.

The Court said: “It is well settled that testimony taken at a former trial may be admitted, if it be shown that ⁴⁷² the witness is dead, insane, or beyond the jurisdiction of the court, or on diligent inquiry cannot be located, or that some other circumstance exists which shows that the witness who gave the testimony at the former trial cannot be procured as a witness at the second trial. This general rule was stated in Hendrix v. State, 200 Md. 380, 387 , [ 90 A. 2d 186, 189 (1952),] and in somewhat different form in Bryant v. State, 207 Md. 565, 587 [, 115 A. 2d 502, 512 (1955)]. See also Marshall v. Haney, 9 Gill. 251, 257; Rogers v. Raborg, 2 G. & J. 54, 60 ; Bowie v. O’Neale, 5 H. & J. 226, 234 . For a discussion of the principles involved and the authorities elsewhere, see 5 Wigmore, Evidence (3rd ed.) § 1406 et seq.; 2 Jones, Evidence (5th ed.) § 313; 2 Wharton, Criminal Evidence (12th ed.) § 479; Notes 15 A.L.R. 495 ; 79 A.L.R. 1392 ; 122 A.L.R. 425 ; 159 A.L.R. 1240 .

The writers and authorities all agree that where there was an opportunity to cross-examine the witness in the former trial, there is no violation of the right to be confronted with the witnesses against the accused, under Art. 21 of the Maryland Declaration of Rights or under the Due Process clause