Baker v. State

Decision Date28 March 1972
Docket NumberNos. 523,540,s. 523
Citation289 A.2d 348,15 Md.App. 73
PartiesPaul C. BAKER and Conrad Whitfield v. STATE of Maryland. Charles WILSON v. STATE of Maryland.
CourtCourt of Special Appeals of Maryland

Morton Guth, Baltimore, for appellant Conrad Whitfield.

Morris L. Kaplan, Baltimore, for appellant Paul C. Baker.

Josef E. Rosenblatt, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., V. Lanny Harchenhorn, State's Atty., for Carroll County, Milton B. Allen, State's Atty., and Phillip E. Epstein, Asst. State's Atty. for Baltimore City, on the brief, for appellee in No. 523.

Sheldon P. Schuman, Bethesda, with whom was Koepenick, Patterson & Schuman, Bethesda, on brief, for appellant Charles Wilson.

Josef E. Rosenblatt, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Andrew L. Sonner, State's Atty., and Jeffrey R. Werner, Asst. State's Atty. for Montgomery County, on brief, for appellee in No. 540.

Argued before ORTH, MOYLAN and GILBERT, JJ.

ORTH, Judge.

These appeals are concerned with double jeopardy.

I

Article V of the 'Articles in Addition to, and in Amendment of, the Constitution of the United States of America' 1 contains a clause providing 'nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.' It took the Supreme Court of the United States 100 years to announce that, contrary to its view prior expressed, 2 the double jeopardy clause of the fifth amendment did, after all, directly apply to state criminal prosecutions. The fourteenth amendment was ratified in 1868 and in 1969 the Court said in Benton v. Maryland, 395 U.S. 784, 787, 89 S.Ct. 2056, 2058, 23 L.Ed.2d 707: 'On the merits, we hold that the Double Jeopardy Clause of the Fifth Amendment is applicable to the States through the Fourteenth Amendment * * *.' 3 Under Benton, double jeopardy can not be considered either by the watereddown standard of Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (see note 3 herein), or by the common law standards theretofore applied in Maryland. See Greathouse v. State, 5 Md.App. 675, 249 A.2d 207. In state prosecutions as in federal prosecutions, double jeopardy must be applied in accordance with the Supreme Court's constitutional constructions and interpretations from time to time of the fifth amendment clause. 4 See Gaskins v. State, 10 Md.App. 666, 272 A.2d 413; Boblits v. State, 7 Md.App. 391, 256 A.2d 187.

' The Constitution of the United States, and the Laws made, or which shall be made, in pursuance thereof, and all Treaties made, or which shall be made, under the authority of the United States, are, and shall be the Supreme Law of the State; and the Judges of this State, and all the People of this State, are, and shall be bound thereby; anything in the Constitution or Law of this State to the contrary notwithstanding.' Art. 2, Declaration of Rights, Constitution of Maryland. This mandate includes decisions of the Supreme Court of the United States construing the federal constitution. Wilson v. Turpin, 5 Gill 56; Howell v. State, 3 Gill 14. All that need be done, therefore, is to ascertain the views of that Court as to its construction of the federal constitution and apply them in a particular factual posture. Unfortunately, however, due to the divisiveness of the Court, what its views may be at the moment are sometimes difficult to determine. Some phases of double jeopardy fall into that category, and unhappily one of them directly concerns the issue before us-the application of the double jeopardy clause of the fifth amendment to further prosecution after a judicial declaration of a mistrial.

It is axiomatic that a person cannot be twice put in jeopardy for an offense until he has been once put in jeopardy for that offense. Necessary to any consideration of the constitutional clause, therefore, is a determination when jeopardy attaches. We are satisfied that it is clearly established that the fifth amendment's double jeopardy clause attaches when the trial commences. 5 A defendant is placed in jeopardy in a criminal proceeding once he is put on trial before the trier of facts, whether the trier be a jury or a judge. 6 See Green v. United States 355 U.S. 184, 188, 78 S.Ct. 221, 2 L.Ed.2d 199; Wade v. Hunter, 336 U.S. 684, 688, 69 S.Ct. 834, 93 L.Ed. 974. Thus the constitutional policies underpinning the fifth amendment's guarantee are implicated at that point in the proceedings.

It is firmly established in Maryland that the determination whether or not to grant a mistrial is within the sound discretion of the trial court. Gerstein v. State, 10 Md.App. 322, 329, 270 A.2d 331, cert. den., 260 Md. 720. The question is when does the declaration of a mistrial raise the double jeopardy barrier against a second prosecution. We turn to the opinions of the Supreme Court to seek an answer.

The Perez Opinion

In the leading case of United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824) Mr. Justice Story for an unanimous Court said with reference to a reprosecution after a mistrial had been declared without the consent of the defendant: 7

'We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, Courts should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the Judges, under their oaths of office.'

The Gori Opinion

In Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961), the Circuit Court of Appeals for the Second Circuit in banc affirmed the petitioner's conviction at his second trial after his first trial had been terminated by the trial judge's declaration of a mistrial sua sponte and without petitioner's active and express consent. The Supreme Court by a majority of five to four affirmed, agreeing that the fifth amendment's prohibition of double jeopardy did not require a contrary result. Observing that 'This Court has long favored the rule of discretion in the trial judge to declare a mistrial and to require another panel to try the defendant if the ends of justice will be best served * * *, Brock v. State of North Carolina, 344 U.S. 424, 427, 73 S.Ct. 349, 97 L.Ed. 456,' the Court said it had 'consistently declined to scrutinize with sharp surveillance the exercise of that discretion.' 367 U.S. at 368, 81 S.Ct. at 1526. It designated the Perez case as 'the authoritative starting point of our law in this field.' Ibid. It characterized the statements of Mr. Justice Story, quoted supra, as 'the principles which have since guided the federal courts in their application of the concept of double jeopardy to situations giving rise to mistrials.' Ibid. The Gori opinion found that the case before it fell within those broad considerations. The Court said that although 'judicial wisdom counsels against anticipating hypothetical situations in which the discretion of the trial judge may be abused and so call for the safeguard of the Fifth Amendment,' they were unwilling 'where it clearly appears that a mistrial has been granted in the sole interest of the defendant, to hold that its necessary consequence is to bar all retrial.' 367 U.S. at 369, 81 S.Ct. at 1526. The Court explained why, 367 U.S. 369-370, 81 S.Ct. 1527:

'It would hark back to the formalistic artificialities of seventeenth century criminal procedure so to confine our federal trial courts by compelling them to navigate a narrow compass between Scylla and Charybdis. We would not thus make them unduly hesitant conscientiously to exercise their most sensitive judgment-according to their own lights in the immediate exigencies of trial-for the more effective protection of the criminal accused.'

In reaching the decision the Court said, 367 U.S. at 367-368, 81 S.Ct. at 1526, that it had been settled law in the Supreme Court since 1824 that 'The double-jeopardy provision of the Fifth Amendment * * * does not mean that every time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment,' quoting Wade v. Hunter, supra, 336 U.S. 688, 69 S.Ct. 834, and giving numerous citations. It continued, 367 U.S. at 368, 81 S.Ct. at 1526:

'Where, for reasons deemed compelling by the trial judge, who is best situated intelligently to make such a decision, the ends of substantial justice cannot be attained without discontinuing the trial, a mistrial may be declared without the defendant's consent and even over his objection, and he may be retried consistently with the Fifth Amendment.' 8

The Jorn Opinion

We have centered to this point on the Perez and Gori cases because of their treatment in United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed. 543 (1971). Jorn would have answered material questions related to double jeopardy had there been an opinion rendered which represented a majority of the Court. But there was no opinion of the Court; there was a plurality opinion and a dissenting opinion. Mr. Justice Harlan delivered the judgment of the Court in an opinion joined by the Chief Justice, 9 Mr. Justice Douglas and Mr. Justice Marshall. Mr. Justice Black and Mr. Justice Brennan...

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