Williams v. State

Lowe, J., delivered the opinion of the Court. In the Criminal Court of Baltimore, Jerome Williams and Roosevelt Sneed were convicted by a jury of felony murder. Sneed was also convicted of unlawful use of a handgun. This was the second attempt by the State to convict those appellants, the first having ended in a mistrial when the jury failed to arrive at a verdict.

At the conclusion of the first trial, prior to submission of the case to the jury, the State "abandoned” an attempted robbery count in what appellants saw as "an obvious effort to force the jury into returning a guilty verdict on the greater count” of robbery with a deadly weapon. The new trial proceeded without the attempted robbery count available to the State for appellants’ conviction under it. Although the indictment still contained a robbery with a deadly weapon count when the second trial began, the court granted the appellants’ motions for judgment of acquittal of that charge at the conclusion of the introduction of evidence. That action precluded the jury from concluding that appellants had committed a robbery with a deadly weapon even as the underlying felony for purposes of the felony murder charge.

Ford v. State, 274 Md. 546 , 551 n. 3 (1975). Acknowledging that concept, the judge instructed ²⁵⁷ the jury that it could consider felony murder only on a theory of attempted robbery as the prerequisite underlying felony. I Appellants contend that such an instruction was improper; that by doing so the judge violated the prohibition against twice placing them in jeopardy; and, absent the improper consideration of attempted robbery, the evidence was insufficient because there was no underlying felony upon which to predicate their felony murder convictions. Although appellants, at argument, confessed some difficulty in articulating precisely that principle upon which they rely, we have by Holmesian reasoning 1 arrived at that contention upon which we believe they must finally rest.

Synergistically combining the State’s abandonment of the attempted robbery count at the first trial with Simms v. State, 288 Md. 712, 718 (1980), holding that such an abandonment operates as a nol pros, appellants leap to the conclusion which serves as the foundation for all three of their contentions: "Thus, the State’s action operated as an acquittal of the charge of attempted robbery in the first trial.” From there it would have been easy to syllogize that an acquitted charge may not be used by a factfinder as an underlying crime for purposes of a felony murder conviction. See Ford v. State, supra at 551 n. 3. Appellants’ articulable difficulty, however, derives from their need to circumvent or explain why the abandonment, even when viewed as a nol pros, "operated as an acquittal”. In Ward v. State, 290 Md. 76 (1981), the Court of Appeals, through Judge Eldridge, exhaustively analyzed the effect of ²⁵⁸ a nol pros under varying conditions, quite similar to those before us.

"In light of the defendant’s argument, it is necessary to examine the nature of a nolle prosequi and the often repeated statement that a nolle prosequi, after jeopardy attaches and without the defendant’s consent, 'operates as an acquittal.’ ” Id. at 82 . His examination concluded that there is nothing inherent in the nature of a nol pros which causes its entry to operate as an acquittal of the underlying offense; and thus, the proposition that it " 'operates as an acquittal’ ” is not a characteristic of a nol pros itself. Id. at 85 . He therefore found it necessary to analyze the proposition in light of its development under a body of double jeopardy law, finding that it originated as an application of the same double jeopardy principle which prevents a retrial after an unconsented and unnecessary mistrial.

Id. at 91-92 . The Court then looked at its own cases containing "overly broad language” which, "if taken out of context”, seem to support the principle relied upon by Ward in that case and by appellants here. Bynum v. State, 277 Md. 703 , cert. denied, 429 U.S. 899 (1976), is repeatedly relied upon by appellants here, but was carefully explained by Judge Eldridge as holding only that an unconsented nol pros of a lesser included offense (simple robbery), after jeopardy had attached, did not operate as an acquittal of a greater charge (armed robbery), proof of which implicitly necessitated a conclusion of guilt of the abandoned underlying crime. Ward, supra at 92 .

The Court then applied its analysis to the facts of the Ward case which contained a contrasting side of the argument presented in the case before us. In Ward , the accused claimed that an unconsented abandonment of a murder count (using the statutory form set forth in Md. Ann. Code (1957, 1971 Repl. Vol.) Art. 27, § 616, which encompasses murder, manslaughter, or being an accessory thereto), in an initial trial after jeopardy had attached, precluded his retrial upon an accessory charge, the ²⁵⁹ conviction of which had been reversed. Appellant Ward had sought to distinguish Bynum by arguing that Bynum involved only a single trial, whereas Ward involved successive trials following reversal on appeal.

Despite Bynum’s holding, argued Ward , that case parenthetically stated the applicable law when it said: "We therefore hold that the double jeopardy prohibition, though barring subsequent prosecution for offenses charged in counts dismissed by a nolle prosequi entered without the consent of the accused after jeopardy has attached, has no application in the context of the same prosecution which continues on other counts.” Bynum, supra at 709 (emphasis partially added). That was the "overly broad” language, said Judge,.Eldridge, and it did not contemplate a second trial after a successful challenge to an earlier conviction, but merely attempted to paraphrase the general rule "that the entry of an unconsented nolle prosequi, after jeopardy attaches, ordinarily precludes a subsequent prosecution for the offense.” Ward, supra at 97 . But more important was that which the Ward Court saw as the reason for the Bynum holding: "The reason for our holding was that settled double jeopardy principles did not preclude the continuation of the same trial on a different count, as the defendant was not being 'twice put to trial.’ Id. at 707 .” Ward, supra at 92 . It thus appears that Bynum’s reasoning rested substantially upon the continuing nature of the jeopardy of the greater offense, proof of which required a finding of at least those facts necessary to convict for the nol prossed lesser offense.

Consequently the accused’s jeopardy was never interrupted because the underlying crime element remained intact as an ingredient of the major offense, despite its separated disposition out of that context. Ward logically ²⁶⁰ reasoned that the nol pros of the major offense (contextually containing the minor element) was not an acquittal as to the lesser offense as a separate charge, and in no way precluded the continuation of the trial under the separate accessory count which had not been abandoned or adjudicated. Id. at 94 . In both cases the defendants were entitled to a verdict without interruption of jeopardy once exposed, which each received.

In the case before us, it is equally clear that the nol pros, as such, does not serve as an acquittal. If the first case had ended on a conviction rather than a mistrial, Bynum , as written, was clearly controlling. Despite the nol pros, appellants could have been convicted of felony murder by using the nol prossed charge as the underlying felony. Ward simply adds emphasis to that by holding that whatever exposure an accused had before appellate reversal, he will have upon retrial afterward.

Ward nodded to the "unmitigated fiction” used to avoid double jeopardy that an appellate reversal wipes the slate clean (see Sweetwine v. State, 288 Md. 199, 205 (1980), cert. denied, 447 U.S. 1017 (1980), quoting North Carolina v. Pearce, 395 U.S. 711, 719-721 (1969)), but adhered to the more rational observation of jeopardy continuity in context from initial exposure to final conclusion. In regard to the felony murder charge (with attempted robbery as its prerequisite felony) in the case at bar, jeopardy attached in the first trial and was not disturbed by the nol pros of attempted robbery as a separate count, nor did the mistrial interrupt that continuity. Upon retrial, as in Ward , the State did not attempt a prohibited subsequent prosecution under the nol prossed count, it simply proceeded to provide appellants that to which they were entitled, a verdict on the felony murder charge, Ward, supra at 94 , as if a mistrial had never occurred. Simplified, it seems that Ward carries, among others, the messages: 1. that there is nothing in the nature of a nol pros causing it to operate as an acquittal; ²⁶¹ 2. that a nol pros of one count after jeopardy affects only the count addressed by the nol pros and not any remaining counts or elements of counts remaining; and, 3. that the continuity of that jeopardy is unaffected by a retrial after an appeal or a properly granted mistrial.

The double jeopardy protection is a constitutional shield, not a procedural weapon. The primary need for that shield is to ward off a second thrust after acquittal by the trier of facts. Despite appellants’ disclaimer that they do not invoke the collateral estoppel tangent of double jeopardy, when synthesized their argument by necessity rests upon the collateral estoppel theory as we have addressed the issue — in that context — most recently in Mitchell v. State, 44 Md. App. 451 (1979), cert. denied, 287 Md. 749 , 755 (1980). We reasoned in Mitchell that, unlike an acquittal by the court for insufficient evidence, a dismissal by nol pros terminates the action prior to a decision on the merits, and end the case without an adjudication of the disputed facts necessary to render a judgment on the merits.

The same logic applies here. The "critical question” here, as in Mitchell , is whether a nol pros (or its equivalent), entered at the conclusion of the State’s case, but without benefit of any factual predicate or explanation, served as a determination of ultimate issues of fact in the defendants’ favor so as to trigger the application of collateral estoppel. Id. at 458 . In Mitchell we thought not and there is nothing in the case before us to change our mind.

We pointed out there, that for collateral estoppel to apply, the prior determination must have been on its merits. Although when the nol