Boblits v. State

• Decision Date: 05 August 1969
• Docket Number: No. 345,345
• Citation: 7 Md.App. 391,256 A.2d 187
• Parties: Frank Thayer BOBLITS v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 391

7 Md.App. 391

256 A.2d 187

Frank Thayer BOBLITS v. STATE of Maryland.

No. 345.

Court of Special Appeals of Maryland.

Aug. 5, 1969.

Thomas M. O'Malley, Washington D. C., for appellant.

Thomas N. Biddison, Jr., Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Arthur A. Marshall, Jr. and Benjamin R. Wolman, State's Atty., and Asst. State's Atty., for Prince George's County, respectively, on brief for appellee.

Before MURPHY, C. J., and ANDERSON, MORTON, ORTH and THOMPSON, JJ.

MORTON, Judge.

Appellant was indicted in February, 1967, for housebreaking, larceny and receiving stolen goods. In May, 1967, he was tried before a jury which returned a verdict of (1) not guilty of housebreaking; (2) not guilty of larceny; (3) guilty of receiving stolen goods. He was sentenced to serve four years.

This Court reversed that judgment of conviction because we found the evidence before the jury to be legally insufficient to sustain its verdict and a new trial was ordered. Boblits v. State, 4 Md.App. 534, 243 A.2d 891. Prior to the beginning of the new trial, appellant's counsel filed a motion to dismiss the indictment on the ground that the second trial would place the appellant twice in jeoperdy for the same offense. The lower court denied the motion and the appellant was tried before a jury on the single charge of receiving stolen goods, on which charge he had been convicted in the first trial. A verdict of guilty was returned and appellant was, again, sentenced to serve four years.

I

In this appeal, he contends that the lower court committed reversible error in denying his motion to dismiss the indictment. It is argued that the appellant was placed twice in jeopardy as a result of his second trial, and this is so, it is asserted, whether we adopt the common law admonition against double jeoperdy or accept the appellant's contention that the Fifth Amendment mandate of the United States Constitution against double jeopardy is applicable to the States through the Fourteenth Amendment. After carefully considering the appellant's argument, we conclude that impermissible double jeopardy did not attach, under the circumstances of this case, irrespective of the channel through which the doctrine of double jeopardy might be available to him.

Until the recent decision of the Supreme Court of the United States in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707, it was the well established law of this State that 'the rule of double jeopardy is not a constitutional right but exists here as a matter of common law. Robb v. State, 190 Md. 641, 60 A.2d 211 (1948); Ruckle v. State, 230 Md. 580, 187 A.2d 836 (1963). The double jeopardy protection of the Fifth Amendment is not transmitted to the States through the Fourteenth Amendment. Wampler v. Warden, 231 Md. 639, 191 A.2d 594 (1963); Nixon v. Director, 1 Md.App. 14, 226 A.2d 352 (1967).' See Hartley v. State, 4 Md.App. 450, 457, 243 A.2d 665, 670.

In Benton, the Supreme Court reversed 'the landmark case of Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288,' which had been the cornerstone of the Maryland Courts' view that the double jeopardy doctrine came to us through the common law since, according to Palko, 'Federal double jeopardy standards were not applicable against the States.' In Benton, the petitioner was found guilty of burglary and not guilty of larceny at his first trial. While his appeal to the Court of Appeals was pending, he elected to have his indictment declared invalid under Schowgurow v. State, 240 Md. 121, 213 A.2d 475. Thereafter, a new indictment charging both burglary and larceny was returned and at his second trial he was found guilty of both burglary and larceny. In reversing Palko, as well as the holding of this Court in Benton v. State, 1 Md.App. 647, 232 A.2d 541, the Supreme Court, speaking through Mr. Justice Thurgood Marshall, concluded:

'On the merits, we hold that the Double Jeopardy Clause of the Fifth Amendment is applicable to the States through the Fourteenth Amendment and we reverse petitioner's conviction of larceny.'

It is apparent, therefore, that Federal Constitutional standards of double jeopardy now are available to and govern the rights of an accused in this State. But the appellant in the case at bar can find no comfort or solace in this newly found constitutional aid, even assuming that Benton is to be retroactively applied, which we here expressly by not decide, for the stricture imposed by the Supreme Court in Benton is against the retrial of an accused who has previously been acquitted of the identical charge. Here, the appellant was retried, after error had been found by this Court in his first trial, on the identical charge upon which he had been found guilty in the first trial and there is no mandate in Benton against the second trial of the appellant under the circumstances in which he was here tried.

We are of the opinion that the principles enunciated by the Court of Appeals in Gray v. State, Md., 255 A.2d 5 (Filed: June 30, 1969) govern our approach to the appellant's contention that his double jeopardy rights were infringed. In Gray v. State, 4 Md.App. 155, 241 A.2d 725, as here, this Court reversed Gray's conviction by the lower court on the ground that the evidence was legally insufficient to sustain his conviction of armed robbery and remanded the case for a new trial. The new trial was ordered, notwithstanding Gray's vigorous argument that the reversal of his judgment of conviction should not be accompanied by a remand order for a new trial. The Court of Appeals granted certiorari and, after reviewing in datail the appropriate authorities, Chief Judge Hall Hammond, speaking for the Court, articulated the following rule:

'We conclude that the practice of remanding for a new trial after reversal for insufficiency of the evidence rather than remanding for entry of a judgment of acquittal, is permissible. We perceive, however, some judicial tendency or trend towards recognition of the logic of appellate direction for the entry of a judgment of acquittal if the state fails to prove its case in the trial court.'

'We conclude that if the record before the Court of Special Appeals indicates that additional probative evidence of guilt can be adduced by the State at another trial necessitated by the insufficiency of the evidence, a new trial should be awarded after a reversal if the interests of justice appear to require it. If the record indicates that no additional probative evidence can be so adduced, the entry of a judgment of acquittal should be directed. If the Court of Special Appeals cannot determine from the record whether or not additional probative evidence can be produced on a retrial, and the interests of justice appear to require it, the Court should vacate the judgment and remand the case with directions to the trial court (a) to hold a new trial if the State within a specified time can satisfy the court that it can produce additional probative evidence, or (b) to enter a judgment of acquittal if the State cannot preliminarily so satisfy the court.'

In reversing Boblits' original conviction for receiving stolen goods, on the ground that the evidence before the jury was legally insufficient to sustain its verdict, we did not explicate our reasons for ordering a new trial. See Boblits v. State, supra. It is evident, however, that we were of the opinion that a new trial should be awarded since the 'interests of justice' appeared to require it. On the record before us in Boblits' appeal from his first trial, it was apparent that the State had been precluded from producing evidence crucial to the proof of its case by the refusal of the appellant's wife to testify against him. It was equally apparent that if the wife's testimony were available to the State (as it was in the second trial) such testimony would constitute 'additional probative evidence of (the appellant's) guilt' which could 'be adduced by the State at another trial necessitated by the insufficiency of the evidence' at his first trial. We were of the opinion then, and we are of the opinion now, that the 'security of the community', as contrasted to the rights of the appellant, dictated our conclusion that the State should be afforded an opportunity to produce additional probative evidence of appellant's guilt. See People v. Brown, 99 Ill.App.2d 281, 241 N.E.2d 653 (1968). Accordingly, we cannot subscribe to the appellant's contention in this appeal that either his constitutional or common law rights against being placed twice in jeopardy were violated by the lower court's refusal to grant his motion to dismiss the indictment.

II

We find no merit in the appellant's second contention that the doctrine of collateral estoppel precluded the State from introducing evidence of housebreaking and larceny since these were crimes of which he had been previously acquitted. That the goods unlawfully received have been 'stolen' is a necessary element in the crime of receiving stolen goods; evidence that they were stolen as a result of larceny or housebreaking was not only relevant but essential to the State's case. The fact that a jury in a previous trial found that the appellant did not steal the goods does not estop or preclude the State from introducing evidence in the second trial that the goods unlawfully received by the appellant had been stolen. In fact, such evidence was a prerequisite to their finding the appellant guilty of receiving stolen goods. The cases cited by the appellant on this issue are not, in our opinion, apposite.

III

Appellant next contends that his motion for judgment of acquittal should have been granted since he was convicted of the felony (rather than the misdemeanor) of receiving stolen goods...