Warne v. State

SALMON, J. On July 15, 2004, Carl Warne was indicted by a Prince George’s County Grand Jury for, inter alia, six crimes, i.e., manslaughter by vehicle or vessel, homicide by motor vehicle or vessel while under the influence of alcohol, homicide by motor vehicle or vessel while under the influence of alcohol or under the influence of alcohol per se, homicide by motor vehicle or vessel while impaired by alcohol, and homicide by motor vehicle or vessel while impaired by drugs. 1 Warne’s ¹³⁸ counsel filed a motion to dismiss the aforementioned six charges on the ground that prosecution of him on those charges was barred by the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and by Maryland common law principles. The motions judge denied Warne’s motion to dismiss based on the “Diaz exception” 2 to the Fifth Amendment. ¹³⁹ In Whittlesey v. State, 326 Md. 502, 525 , 606 A.2d 225 (1992), the scope of the Diaz exception was enunciated: [A] subsequent indictment on a second offense, otherwise barred by the Double Jeopardy Clause of the Fifth Amendment, is not barred if, at the time of prosecution for the earlier offense a reasonable prosecutor, having full knowledge of the facts which were known and in the exercise of due diligence should have been known to the police and prosecutor at that time, would not be satisfied that he or she would be able to establish the suspect’s guilt beyond a reasonable doubt. Warne filed this interlocutory appeal from the court’s denial of his motion to dismiss. 3 I. On August 3, 2003, Carl Warne was driving a motor vehicle that struck an automobile operated by Ronald Raglan, Jr. At the scene of the accident, Warne was issued a citation for negligent driving. Warne paid the fine set forth in the driving citation on August 6, 2003, at 9:53 a.m.

On August 7, 2003, approximately seventeen hours after Warne paid the traffic citation, Robert Raglan, Jr., died due to injuries resulting from the August 3, 2003, accident. Warne was indicted for the six offenses here at issue approximately eleven months after Mr. Raglan’s death. 4 The Fifth Amendment to the United States Constitution provides, in pertinent part, that no person shall “be subject for the same offense to be twice put in jeopardy of life and limb.” That amendment is applicable to the states through the Four ¹⁴⁰ teenth Amendment. Benton v. Maryland, 395 U.S. 784, 794 , 89 S.Ct. 2056 , 23 L.Ed.2d 707 (1969); Spencer v. State, 97 Md.App. 734, 738 , 632 A.2d 214 (1993). The Double Jeopardy Clause prohibits (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.

North Carolina v. Pearce, 395 U.S. 711, 717 , 89 S.Ct. 2072 , 23 L.Ed.2d 656 (1969). Despite the Double Jeopardy Clause’s reference “to life or limb,” fines are to be treated in the same way as a prison sentence for double jeopardy purposes. Gianiny v. State, 320 Md. 337, 339 , 577 A.2d 795 (1990). Section 26-204(b)(l) of the Maryland Transportation Article of the Code of Maryland (2002 Repl.Vol.) reads: “For purposes of this section, the person [receiving a traffic citation] may comply with the notice to appear [contained in the citation] by: (i) Appearance in person; (ii) Appearance by counsel; or (iii) Payment of the fine, if provided for in the citation.” The traffic citation issued to Warne advised that he had the option of paying the fine mentioned in the citation without appearing in court.

When a fine is paid in this manner, the defendant stands convicted of the offense. Gianiny, 320 Md. at 346 , 577 A.2d 795 . 5 Thus, Warne’s payment of the citation for negligent driving was sufficient to act as a final judgment for double jeopardy purposes. When one is charged with different offenses arising out of the same transaction, the test for determining whether they are the “same offense” for double jeopardy purposes is the “required evidence” test, which is often called the “Block- ¹⁴¹ burger test.” Gianiny, 320 Md. at 340 , 577 A.2d 795 . That test is: [WJhere 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.

Blockburger v. United States, 284 U.S. 299, 304 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932). In Brown v. Ohio, 432 U.S. 161, 166 , 97 S.Ct. 2221 , 53 L.Ed.2d 187 (1977), the Supreme Court held that successive prosecutions are barred by double jeopardy principles if two offenses are the same under the Blockburger test. See also Gianiny, 320 Md. at 340-41 , 577 A.2d 795 (quoting Brown v. Ohio, 432 U.S. at 166 , 97 S.Ct. 2221 ) (“A lesser included offense, one which requires no proof beyond that which is required for conviction of the greater offense, is the same statutory offense as the greater offense under the Blockburger test. Thus, whichever is prosecuted first, ‘the Fifth Amendment forbids successive prosecution ... for a greater and lesser included offense.’ ”).

As to the six charges here at issue (see n. 1, supra), it is clear that, under the Blockburger test, negligent driving is a lesser-included offense. In Gianiny , the Court said: Negligent driving is a lesser included offense within the greater offense of manslaughter by automobile. Although negligent driving is a violation of the Maryland Vehicle Law rather than the criminal code, it is a misdemeanor by virtue of § 27-101 of the Transportation Article, which provides that it is a misdemeanor for any person to violate any provision of the Maryland Vehicle Law unless the violation is declared to be a felony. (Negligent driving is not declared to be a felony.) Manslaughter by automobile is also a misdemeanor.

Art. 27, § 388. A comparison of the two statutes clearly demonstrates that in order to prove the greater offense, manslaughter by automobile, the State must necessarily prove the lesser offense, negligent driving. Article 27, § 388 provides: ¹⁴² Every person causing the death of another as the result of the driving, operation, or control of an automobile, motor vehicle, motorboat, locomotive, engine, car, streetcar, train or other vehicle in a grossly negligent manner shall be guilty of a misdemeanor____ Under 21 — 901.1(b) of the Transportation Article, one is guilty of negligent driving if he or she drives a motor vehicle in a careless or imprudent manner that endangers property or the life or person of an individual. It is obvious that the offense of negligent driving requires no proof beyond that which is required for conviction of manslaughter by automobile or motor vehicle.

The traffic offense requires proof of the operation of a motor vehicle in a negligent manner, i.e., in a careless or imprudent manner that endangers property or the life or person of an individual. Manslaughter by motor vehicle requires proof of grossly negligent driving, which necessarily includes negligent driving, plus proof that someone’s death resulted from that conduct. Under the Blockburger or required evidence test, therefore, the offenses are the same for double jeopardy purposes, and a conviction of the lesser offense bars a subsequent prosecution for the greater. Gianiny, 320 Md. at 343-44 , 577 A.2d 795 .

Based on the above, it can be seen that, but for the Diaz exception, prosecution of Warne for the homicide and manslaughter charges at issue would have been barred on the basis of double jeopardy. WTien the Diaz exception is at issue, the question to be answered is: Would the prosecutor at the time of prosecution for the earlier offense (here, negligent driving) be satisfied “that he or she would be able to establish the suspect’s guilt beyond a reasonable doubt” of the greater offense? Whittlesey, supra, 326 Md. at 525 , 606 A.2d 225 . If the answer to that question is no, then the Diaz exception applies.

The application of that test to this case revolves around the answer to this subordinate question: When was the “time of prosecution” of the negligence charge? Id. ¹⁴³ As the Court held in Briggeman v. Albert, 322 Md. 133 , 586 A.2d 15 (1991), the payment of a traffic ticket constitutes a “consent to [a] conviction.” Id. at 137 , 586 A.2d 15 . The point where the State ceased to prosecute Warne for his negligent driving was at the point Warne consented to a conviction. Therefore, time of prosecution by the State of the negligence charge was three days, i.e., August 3 to 6, 2003.

During that three-day period, a prosecutor would not have been able to establish Warne’s guilt of any of the six charges at issue, because the victim (Robert Raglan, Jr.) was not yet dead, and proof of the victim’s death was a necessary element to be proven as to each of the six charges. Thus, the facts in this case fit squarely within the ambit of the Diaz exception. Warne argues, at least impliedly, that the “period of prosecution” was longer than three days because, purportedly, he could have, within thirty days of his consent to a conviction, filed an appeal to the circuit court. According to Warne, the period of prosecution expired twenty-nine days after the victim’s death, i.e., on September 2, 2004. 6 There is no merit to this contention because Warne never filed an appeal.

Thus, in no sense of the word was he being “prosecuted” by the State during the twenty-nine-day period after Mr. Raglan’s death. Several Maryland cases demonstrate how the Diaz exception works in practice. In Gianiny , the defendant was driving a motor vehicle involved in an accident that resulted in the death of another person. Various traffic citations were issued to Gianiny for the traffic offenses, including a citation for ¹⁴⁴ negligent driving. 320 Md. at 340 , 577 A.2d 795 .

At the time those citations were issued, the victim was already dead, and the police officer who issued the citation knew that the victim had died. Id. at 341 n. 3, 577 A.2d 795 . Prior to being indicted for motor-vehicle manslaughter, after having been forewarned that he was about to be indicted, Gianiny paid the negligent driving citation. Id. at 340 , 577 A.2d 795 .

The Gianiny Court held that negligent driving was a lesser-included offense of motor-vehicle manslaughter and that prosecution of the indictment returned against defendant for motor-vehicle manslaughter was barred by Maryland common law and the Double Jeopardy Clause of the Fifth Amendment to the Constitution of the United States. Id. at 347-48 , 577 A.2d 795 . In Whittlesey, supra, the defendant was convicted for the murder of one Jamie Griffin. 326 Md. at 504 , 606 A.2d 225 . Jamie disappeared on April 2, 1982, but his remains were not recovered until March of 1989.

Id. at 505 , 606 A.2d 225 . In the interim, Whittlesey was convicted in February 1984 of robbing Jamie of several articles of property that were on his person at the time of his disappearance. In Whittlesey , the central issue addressed by the Court was whether the defendant’s prosecution for felony murder was barred by his prior conviction of the predicate felony at issue, i.e., robbery of Jamie. Resolution of that issue depended upon the applicability of the Diaz exception.

The Whittlesey Court held: We think, in the light of the facts which were known at the time of the robbery indictment, and considering that there were facts which were then unknown despite the exercise of due diligence, a reasonable prosecutor would not be satisfied that he or she would be able to establish Whittlesey’s guilt [of murder] beyond a reasonable doubt. Thus, the Diaz exception applies and serves to permit prosecution on the murder indictment. The Double Jeopardy Clause interposes no bar to prosecution under that indictment. 326 Md. at 528 , 606 A.2d 225 (emphasis added). In Spencer v. State, 97 Md.App. 734 , 632 A.2d 214 (1993), the defendant was convicted by a jury on November 4,1991, of ¹⁴⁵ assault with intent to murder, assault with intent to disable, assault with intent to rob, and a related handgun offense.

Id. at 736-37 , 632 A.2d 214 . On November 20, 1991, which was a little over two weeks after the jury verdict but prior to sentencing of Spencer, the victim, Effiok Essiet, died due to what the State contended were injuries sustained as a result of Spencer’s assault. Id. at 737 , 632 A.2d 214 . Thirteen days after Mr. Essiet’s death, appellant was sentenced to thirty years’ imprisonment as a consequence of his November 4, 1991, convictions.

Thereafter appellant was indicted for first-degree felony murder and second-degree murder based on Mr. Essiet’s death, along with the same conduct that led to the earlier assault convictions. Id. at 737 , 632 A.2d 214 . The sole issue presented in the Spencer case was whether the Diaz exception to the prohibition against double jeopardy was applicable. Id. at 738-39 , 632 A.2d 214 .

The resolution of the issue turned on the answer to a subordinate