Warren v. State

CHARLES E. MOYLAN, JR., J. (Retired, Specially Assigned). The subject is double jeopardy, sometimes referred to as “res judicata in prison gray.” The appellant, Wayne Byron Warren, Jr, was convicted in the Circuit Court for Caroline ⁵⁹⁹ County in a non-jury trial of four separate counts, each charging Sexual Abuse of a Minor. On this appeal, the appellant contends that three of the charges against him— Counts 1, 2, and 3 — should have been completely barred by his protection against double jeopardy, and that most of the remaining charge, Count 4, was similarly barred by the Double Jeopardy Clause of the Fifth Amendment.

The case presents us with a challenging array of finely nuanced double jeopardy problems. General Background The appellant married his wife, K., in July of 2008 and they moved to a home in Greensboro in Caroline County. Also as part of the family unit were K.’s four daughters by earlier relationships: C., who was at that time going into the fifth grade; J., who was going into the third grade; F., who was starting the first grade; and E., who was four years old. It was J., the second oldest of the appellant’s step-daughters, who became the victim of his sexual predations over the course of the next five years.

J. was eight years of age when the course of abusive conduct began and 13 years old when it was brought to an abrupt halt. In January of 2013, C., who was two years older than J., realized that she was being approached by the appellant for illicit sexual activities and effectively blew the whistle on the appellant and his behavior. C. left home, later explaining: “I knew that he knew that I didn’t do it, um, and that was my last straw. I was tired of, I was tired of the training, I was tired of how I was treated at home.

I was tired of him being a jerk. I was tired of my mom falling for everything. So I packed up a bag and left.” C. stayed at a friend’s house for the weekend, during which she contacted the police to inform them about nude photographs that the appellant had taken of her and her sisters. It was at that point that the Caroline County Department of Social Services (“DSS”) began an investigation of the family.

Initially, J. did not tell DSS about anything other than the ⁶⁰⁰ nude photographing because she was afraid that “something bad was going to happen.” In May of 2013, however, J. did reveal to DSS that on several occasions she woke up to find the appellant in bed with her and touching her genital area. The appellant’s stepdaughters were removed from the family home in June of 2013 and went to live with their aunt and uncle. A week after that removal from the home, J. revealed to her mother that on three occasions she had been forced to perform fellatio on the appellant. DSS was in turn informed by the mother.

The First Prosecution Trooper First Class Nathaniel Van Sant of the Maryland State Police became involved in the case against the appellant in June of 2013. On September 6, 2013, the appellant was arrested and gave an audio-tape statement to Trooper Van Sant, implicating himself in a wide variety of questionable and suggestive activities with J. and "with several of her sisters. He admitted taking a series of naked photographs but explained that they had been taken for the purpose of monitoring weight loss. He admitted to subjecting at least two of his stepdaughters, including J., to naked ice baths but explained that they were part of a martial arts training program.

He denied, however, forcing J. to perform fellatio. On October 28, 2013, the State filed an eight-count criminal information against the appellant. Following a jury trial on April 21-22, 2014, the appellant was convicted on two of the eight charges: Sexual Abuse of a Minor and a sexual offense in the second degree. He was sentenced to seven and one-half years of imprisonment on each count, the sentences to run consecutively for a total sentence of fifteen years.

He was also ordered to register as a Tier III sex offender. The appellant appealed those convictions to this Court. In an unpublished 24-page opinion, this Court affirmed the convictions. Warren v. State, No. 1482, September Term, 2014, 2015 WL 6442574 (filed on October 23, 2015).

The three ⁶⁰¹ contentions dealt with in that opinion have little pertinence to the double jeopardy issue now before us. Last-Minute Evidence and a New Beginning As that first case was being presented to the jury, the State understandably could have had some qualms about the strength of its evidence. Although there was some modest corroboration, the State’s case essentially rested on the credibility and the persuasiveness of a 13-year-old girl, a 13-year-old girl whose memory as to some events was being called upon to reach back five years. As to each of the eight counts, the State had no precise dates and was left to allege that the actions with which the appellant was charged had occurred at some unspecified time “between July 1, 2008 and December 31, 2012.” That was a four and one-half year stretch.

Understandably, the State could not have felt that it was holding a pat hand. It was, therefore, as if the cavalry were charging to the rescue when a Homeland Security investigator informed the prosecutor on the first day of trial that Homeland Security investigators had been able to retrieve irrefutable photographic evidence establishing four acts of sexual abuse by the appellant and pinpointing a precise date for each such act. When the appellant and his wife had moved in with the appellant’s father in February of 2014, they had filled a storage pod which was picked up by a private company and taken to its warehouse in Delaware. On February 7, the wife met Trooper Van Sant at the storage facility and gave him permission to conduct a search of the contents.

Four thumb drives, six micro discs, one adapter, six hard drives, a tower and a disc labeled “Photos 1” were seized. Trooper Van Sant took the electronic storage materials to Homeland Security investigators to see what, if anything, could be retrieved. All of the images that were ultimately retrieved had earlier been ostensibly deleted, but the computer had stubbornly stored the deleted images in “unallocated clusters.” It was in the early afternoon of the first day of two trial days that the State received either copies of the relevant ⁶⁰² images or information describing them. Three of the four sets of images squarely corroborated incidents of alleged abuse testified to by J. Through technological wizardry, a shaky case had ripened into what could have been an ironclad winner.

The trial court ruled, however, that the State would not be permitted to use any of the images retrieved by Homeland Security because neither the appellant nor defense counsel had seen the images in time to prepare to defend against them. In the jury verdict of the next day, the State nonetheless prevailed. The Second Prosecution The subsequent thinking of the State is relatively simple to follow. Since that first-class evidence produced by Homeland Security had not been used against the appellant at his first trial, then, lest it be wasted, why not make it the basis for an additional trial?

Double jeopardy might not have seemed to be a problem because the new evidence had never been used against the appellant. It had never before placed him in jeopardy. On July 18, 2014, a new indictment against the appellant was handed down. The new indictment was drawn in four counts.

Each count was designed to embrace one of the actions depicted by the photographic images (or sets of closely related images) retrieved by the Homeland Security experts from the discarded entrails of the appellant’s computer. Each of the four counts charged precisely the same crime — Sexual Abuse of a Minor. The appellant moved, unsuccessfully, to dismiss the new indictment on the basis of double jeopardy. In terms of its timing, the new indictment was presented just three months after the guilty verdicts had been rendered at the first trial and one month before the appellant was sentenced, on August 20, 2014, to 15 years’ imprisonment on his two convictions.

After a non-jury trial, on January 13-14, 2015, the appellant was convicted on all four counts of the new indictment. On February 2, 2015, he was sentenced to a total of 55 years ⁶⁰³ imprisonment with all but 20 years suspended. The sentences were to run consecutively to each other and to any sentences already being served. This appeal followed on double jeopardy grounds.

Measuring Jeopardy Our immediate problem, of course, is to decide how much, if any, of the jeopardy in which the appellant was placed at his second trial of January 13-14, 2015, should have been barred by the earlier jeopardy in which he stood in the course of his first trial on April 21-22, 2014. Involved are at least two very fundamental and critical questions: 1) When precisely does jeopardy attach? and 2) What is the scope of the jeopardy that then attaches? When Does Jeopardy Attach? “...; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; ...” U.S. Const.amend. V. Double jeopardy, as a plea in bar and not a defense on the merits, has a history rooted deep in English common law.

As this Court explained in Copsey v. State, 67 Md.App. 223, 225 , 507 A.2d 186 (1986): “ ‘Double jeopardy’ was a convenient umbrella term adopted by Sir William Blackstone to cover, along with several other closely related pleas no longer pertinent, the two common law pleas in bar of autrefois acquit (former acquittal) and autrefois convict (former conviction). These were not and are not general issue pleas for purposes of defending upon the merits. They were and are pleas in bar, intended to be interposed in advance of a contemplated subsequent trial for the purpose of foreclosing that trial.” (Emphasis supplied). The plea in bar of double jeopardy embraces, inter alia, both the plea of former acquittal and the plea of former conviction.

The Copsey opinion, 67 Md.App. at 225-26 , 507 A.2d 186 , further pointed out: ⁶⁰⁴ “The purpose served by the plea of former acquittal is that of preventing a defendant who has once survived his initial jeopardy from being ‘twice vexed’ by afresh exposure to the hazard of conviction for that same offense. The purpose served by the plea of former conviction is that of preventing a defendant who has once been convicted of an offense from being exposed to the hazard of being twice punished for that same offense.” 1 (Emphasis supplied). The federal constitutional law of double jeopardy and the Maryland law of double jeopardy are now one and the same. It was not always so.

Gilbert and Moylan, Maryland Criminal Law, § 37.1, “State Double Jeopardy or Federal Double Jeopardy,” p. 432, explains: “The Fifth Amendment provision against double jeopardy, originally applicable only to the Federal Government, was enacted as part of the original Bill of Rights in 1791. Quite independent of the federal protection, 45 of the American states have also included double jeopardy protections in their own Bills or Declarations of Rights. Five of them, 2 including Maryland, have not. Each of these five has, however, included the protection against double jeopardy as part of its own common law.” (Footnote in original).

In 1969, however, Benton v. Maryland, 395 U.S. 784 , 89 S.Ct. 2056 , 23 L.Ed.2d 707 (1969), held for the first time that the Fifth Amendment protection against double jeopardy was incorporated into the Due Process Clause of the Fourteenth Amendment and was, therefore, binding on the states. ⁶⁰⁵ In applying the two ancient pleas in bar of autrefois acquit and autrefois convict, the former jeopardy was deemed to attach at common law only when the trial verdict, of conviction or acquittal, was actually rendered. Maryland continued to follow that common law logic until we were embraced by the federal Fifth Amendment in 1969. The constitutional law of double jeopardy had grown, in contrast to the common law and to earlier Maryland law, into an umbrella concept that embraced such related protections as mistrial/retrial law and collateral estoppel. 3 As Justice Stewart explained in Crist v. Bretz, 437 U.S. 28, 33-38 , 98 S.Ct. 2156 , 57 L.Ed.2d 24 (1978), the inclusion of those other protections and the full implementation, therefore, of the now broader conceptualization of double jeopardy required that the attachment of jeopardy be moved forward from the end of the trial when a verdict is rendered to the ⁶⁰⁶ very beginning of the trial. Under the prevailing federal interpretation of the double jeopardy protection, indisputably now binding on Maryland, jeopardy attaches in a jury trial at the moment the jury is sworn. 4 As the Supreme Court held, 437 U.S. at 38 , 98 S.Ct. 2156 : “The federal rule that jeopardy attaches when the jury is empaneled and sworn is an integral part of the constitutional guarantee against double jeopardy.” The appellant’s first trial was a jury trial.

The jeopardy that will have a preclusive effect in this case, therefore, attached as of the moment the jury was sworn on the morning of April 21, 2014. We will measure the jeopardy in which the appellant stood as of that moment and not as of some later time, such as when opening statements were made or when two of the eight counts against him were nol prossed or when the jury was instructed or when the case was submitted to the jury or when the verdicts were rendered. The appellant was at risk from the opening gun, and that early risk is dispositive even if some of the jeopardy was later removed or alleviated. How Do We Measure the Scope of Jeopardy?

As the appellant was, with the swearing of the jury, enveloped in a cloud of jeopardy, how do we measure the scope of that jeopardy? How do we chart the metes and bounds of that cloud? The answer in a nutshell is that our measuring is a function of the pleading. The scope of jeopardy is not measured by the evidence offered in the trial or by the arguments made or by the instructions given.

It is measured by the words of the indictment or criminal information. In Anderson v. State, 385 Md. 123, 140 , 867 A.2d 1040 (2005), Judge Wilner wrote for the Court of Appeals: “In determining the scope of the former conviction, the court must ordinarily look at the effective charging docu ⁶⁰⁷ ment upon which judgment was entered, not just the evidence presented in support of that charge. We have often made clear that the primary purpose of a charging document is to inform the defendant of the accusation against him/her by so describing the crime ‘as to inform the accused of the specific conduct with which he is charged,’ in order, among other things, to ‘protect[] the accused from a future prosecution for the same offense.’” (Emphasis supplied; citations omitted). The Court of Appeals went on: “The Supreme Court, for Constitutional purposes, and we, as a matter of common law, have rejected an ‘actual evidence’ test to determine sameness in law, and we see no profit, absent special circumstances not present here, in adopting that test to determine sameness in fact.

In most cases, the only sensible and workable criterion for determining the nature and scope of the prior offense is the effective charging document. That states the offense for which the defendant was tried.” Id. at 141 , 867 A.2d 1040 . (Emphasis supplied). This Court followed suit in Ingram v. State, 179 Md.App. 485, 492 , 947 A.2d 74 (2008): “As the Court of Appeals explained in Anderson, 385 Md. at 140-41 , 867 A.2d 1040 , the question of whether offenses are separate for double jeopardy purposes is generally determined by reviewing the charging documents rather than the actual trial evidence.” (Emphasis supplied).

In Williams v. State, 302 Md. 787, 790-91 , 490 A.2d 1277 (1985), Chief Judge Robert C. Murphy explained the importance of the charging document as a protection against double jeopardy: “A primary purpose of a charging document is to fulfill the constitutional requirement contained in Article 21 of the Maryland Declaration of Rights that each person charged with a crime must be informed of the accusation against him. More particularly, the purposes served by the consti ⁶⁰⁸ tutional requirement include (1) putting the accused on notice of what he is called upon to defend by characterizing and describing the crime and conduct; (2) protecting the accused from a future prosecution for the same ojfensef]” (Emphasis supplied; internal citations and footnote omitted). See also Jones v. State, 303 Md. 323, 336-37 , 493 A.2d 1062 (1985); State v. Morton, 295 Md. 487, 490 , 456 A.2d 909 (1983). A bill of particulars, to be sure, might limit the thrust of a charging document and thereby limit the jeopardy emanating from that charging document, but that is a limitation that would normally occur pretrial, before jeopardy first attaches.

In this case, moreover, there was no bill of particulars. The appellant had, indeed, filed a motion for a bill of particulars but it was “filed way late.” At the motion hearing on April 17, 2014, Judge Karen Murphy Jensen denied the request for particulars: “I’ve got the Motion for the Bill of Particulars and it’s filed way late. So the Bill of Particulars is going to be denied.” (Emphasis supplied). It is also clear that the request for particulars was simply a request for information and had nothing to do with limiting the thrust or scope of the charges against the appellant. “THE COURT: But I’m assuming and hoping that you got all the information you need anyway. “[DEFENSE COUNSEL]: Yes, Your Honor.” Indeed, because jeopardy attaches before any evidence is offered and before any argument is made, how could one possibly measure the scope of the jeopardy other than by examining the pleadings?

It behooves all parties who must deal with double jeopardy to remember that double jeopardy is not a trial defense. The scope of jeopardy does not ebb and flow as various events transpire in the course of the trial. Double jeopardy is a plea in bar. It is asserted and decided before a trial even begins.

If successful, it prevents a trial from ever taking place. ⁶⁰⁹ In determining the scope of the initial jeopardy, therefore, our first mission is to examine the criminal information that went to trial on April 21, 2014, and to see how sweeping an enfilade of jeopardy it laid down. Was that enfilade broad enough to cover the four new charges brought by the indictment that went to trial on January 13, 2015? The Earlier Cloud of Jeopardy The source of initial jeopardy in this case was the eight-count criminal information that the State took to trial on April 21, 2014. The question is that of how much of the jeopardy later generated by the four-count indictment that went to trial on January 13, 2015, simply replicated the earlier jeopardy of nine months before.

Three of the eight counts of the earlier criminal information — Counts 3, 5, and 7 — expressly charged a Second-Degree Sexual Offense in contravention of Md.Code (2002, 2012 Repl.Vol), Criminal Law Article, § 3-605. The first count charged a violation of § 3-315, a continuing course of conduct involving three or more violations of either the Rape or the Sexual Offense statutes. Strangely, no less than four of the eight counts — Counts 2, 4, 6, and 8 — charged Sexual Abuse of a Minor in contravention of § 3-602. Each of these four counts was a verbatim clone of the others, charging exactly the same conduct and covering exactly the same four and one-half year time period.

What the charging authorities thought that they were doing is a mystery. The Caroline County Grand Jury indicted with promiscuous abandon. Charging the same offense four times was a case of multiplicious charging per se, but that issue is fortunately not before us. 5 It seems that the criminal information was trying to pair-up each of its Second-Degree Sexual Offense charges with a broader umbrella charge of its ⁶¹⁰ own. One umbrella charge, however, could embrace all three of the Second-Degree Sexual Offense charges — and much more besides.

Even if all three of the paired sets of charges had produced verdicts of guilty, guilt for a Second-Degree Sexual Offense could readily be multiplied by three, yielding a maximum penalty of 60 years instead of 20 years. The Sexual Abuse of a Minor charge, on the other hand, could not be multiplied by four. It would have been an improper multiplication of guilt for Sexual Child Abuse that would presume to increase the maximum penalty of 25 years for such an offense into an illegal sentence of 100 years. In taking the single indivisible crime of Sexual Child Abuse and fragmenting it into four distinct offenses, the State was attempting to divide the indivisible.

Those eight counts generated a pervasive cloud of jeopardy, even if three of those eight counts were aimlessly redundant. It is hard to imagine anything that the appellant could have done vis-á-vis J. prior to January 2, 2013, that might not have placed him in jeopardy again with respect to at least one of the four newer counts charging Sexual Child Abuse. The fact that Count 1 and Count 8 of the original criminal information were ultimately nol prossed is not pertinent, of course, because they had already generated their full measure of jeopardy before the nol prossing occurred. The chronology of the nol prossing was clear.

After the second alternate juror was selected and seated, Judge Jensen proceeded to have the jury sworn. “THE COURT: Okay. So the minute I swear them in, then jeopardy attaches, so Counsel want to go ahead and swear them in? “[DEFENSE COUNSEL]: Yes. “THE COURT: Yep. [The State]? Ready? “(No audible response) “THE COURT: Okay. “[COURT CLERK]: Ladies and gentlemen seated in the jury box, would you please stand and raise your right hand. “(.Jury sworn) ⁶¹¹ “THE COURT: Okay. Have a seat.

Thank you. Well, the rest of you are free to go.” (Emphasis supplied). It was several minutes thereafter, after the jury foreperson had been selected and reseated in the appropriate chair, that attention turned to the nol prossing of Counts 1 and 8. “THE COURT: All right, [ ] can we go ahead and take care right now of nolle prosing, you said, did you want to, you were going to nolle prose counts ... “[THE STATE]: Counts 1 and Count 8. “THE COURT: Count 1, so that would be the Sex Abuse of Minor, continuing course of conduct. And Eight is Sex Abuse, one count of Sex Abuse of a Minor.

So those two are nolle prosed.” (Emphasis supplied). The fact that of the six remaining counts, four produced not-guilty verdicts is equally of no moment, because the plea in bar of autrefois acquit was, and is, just as foreclosing of future jeopardy for the same offense as is the plea in bar of autrefois convict. Double jeopardy is not concerned with what happened to a defendant at his first trial. Its concern is -with whether the defendant had been placed in jeopardy and, if so, jeopardy of what.

In the new indictment, all four counts expressly charged Sexual Abuse of a Minor in contravention of § 3-602(b)(i). The earlier charges, creating the initial jeopardy, had covered the time period of July 1, 2008, through December 31, 2012. Two of the new counts alleged precise dates— December 6, 2009, and February 15, 2010 — both of which fell squarely within the earlier four and one-half year range of jeopardy. The third of the new counts charged conduct allegedly occurring within the one year period between January 1, 2012, through December 31, 2012, all of which fell within the earlier period of jeopardy.

Looking to the first three of the four counts of the new indictment, anything within the operational lifetime of the first three of these counts that could ⁶¹² have helped to convict the appellant of Sexual Child Abuse under the new indictment could self-evidently have helped to convict him under the original criminal information. He had obviously been in jeopardy back then for anything he had done back then. He should not have been placed in jeopardy a second time for that same conduct. There Is No Such Thing as a Little Jeopardy The fourth and final new count covered the period of October 1, 2012, through January 30, 2013.

Three months of that four month period overlapped the earlier period of jeopardy. Only the last 30 days did not. With respect to these last 30 days, the appellant may find the reassuring words of the State less than fully comforting. The State would suggest that the charge is not barred by the double jeopardy