Brown v. State

• Decision Date: 13 November 1967
• Docket Number: No. 318,318
• Citation: 234 A.2d 788,2 Md.App. 388
• Parties: William Henry BROWN v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 388

2 Md.App. 388

234 A.2d 788

William Henry BROWN v. STATE of Maryland.

No. 318.

Court of Special Appeals of Maryland.

Nov. 13, 1967.

Robert J. Dougherty, Baltimore, for appellant.

Donald Needle, Asst. Atty. Gen., Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr., and James F. Garrity, State's Atty. and Asst. State's Atty. for Baltimore City, respectively, on the brief, for appellee.

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

ORTH, Judge.

This is an appeal from a denial of a motion to dismiss indictments by Judge Joseph R. Byrnes in the Criminal Court of Baltimore.

On November 12, 1964 the appellant was committed to jail on four charges of robbery with a deadly weapon, two alleged to have occurred on October 24, 1964 and two on November 10, 1964. He was presented on the charges on November 19, 1964 and indicted on December 1, 1964 under indictments Nos. 4501, 4502, 4503 and 4504. He was arraigned on December 4, 1964 and pleaded 'not guilty'. Trial commenced before Judge Albert L. Sklar in the Criminal Court of Baltimore without a jury on March 15, 1965 under indictments Nos. 4501, 4503 and 4504 and concluded on March 17, 1965, at which time he was convicted on the first count of each of the indictments. Sentence was deferred pending a motion for a new trial. Motion for a new trial was filed on March 22, 1965. The appellant was not called to trial on indictment No. 4502 nad a stet was entered by the State on April 7, 1965. The record shows the following subsequent proceedings with respect to the convictions and indictments pertaining thereto:

April 6, 1965 Petition to prosecute a motion for a new trial as an indigent defendant.

April 8, 1965 Order of court appointing counsel.

April 9, 1965 Order of court extending time for filing the transcript extended to July 8, 1965.

June 16, 1965 Transcript of testimony filed.

June 16, 1965 Transcript of testimony, 'Agreed Statement of Facts' together with certified copy of Docket Entries transmitted to the Clerk of the Supreme Bench of Baltimore City.

September 3, 1965 Original and twelve copies of Defendant's memorandum filed as provided by Rule 30 of the Supreme Bench of Baltimore City.

October 7, 1965 Original and twelve copies of reply to Defendant's memorandum filed by State.

January 18, 1966 Motion to dismiss and vacate judgments filed.

January 25, 1966 Motion for a new trial heard and granted. Case remanded for further proceedings.

May 9, 1966 Oral motion to dismiss indictments made in open court, with counsel present.

May 9, 1966 Order of court granting motion.

The decision in Schowgurow v. State, 240 Md. 121, 213 A.2d 475, was filed on October 11, 1965 and it appears from the record that the reason for the motion to dismiss the indictments, filed January 18, 1966, was to invoke the rights of the appellant granted by that case. At the hearing on the motion on May 9, 1966, the appellant orally made an election to declare invalid indictments Nos. 4501, 4503 and 4504 on the ground that the grand jury returning them was unconstitutionally constituted and by order of court the same date the indictments were dismissed, 'the defendant, with counsel present, having intelligently and knowingly elected to dismiss' them. Prior thereto, on April 29, 1966, indictments Nos. 2017, 2018 and 2019 were filed charging the appellant with the same crimes charged by indictments Nos. 4501, 4503 and 4504. On May 4, 1966, indictment No. 2100 was filed charging the appellant with the crime with which he was charged under indictment No. 4502, which had been stetted by the State on April 7, 1965. At the hearing on May 9, 1966, the appellant refused to accept indictments Nos. 2017, 2018 and 2019, and, as it was indicated that counsel then representing him desired to withdraw, arraignment was postponed. At the hearing no mention was made of indictment No. 4502 or of indictment No. 2100. Other counsel was appointed and on July 1, 1966 the appellant appeared with that counsel in the Criminal Court of Baltimore for arraignment. Arraignment was again postponed at request of counsel. On August 2, 1966 the appellant, with counsel, appeared in the Criminal Court of Baltimore. The appellant accepted indictments Nos. 2017, 2018 and 2019 and a plea of not guilty was entered as to each. He indicated he desired to raise the question of 'former jeopardy' and the court reserved to him 'the right to file any motions you or your counsel have' and 'the right of election of Court or Jury trial'. The appellant objected for reasons not stated. No mention was made during those proceedings of indictment No. 4502 and indictment No. 2100. On August 12, 1966 the appellant filed, in proper person, a 'motion for discovery and inspection' answered by the State on October 10, 1966. On October 28, 1966, accoridng to the docket entries, the appellant was arraigned and pleaded not guilty to indictment No. 2100, charging him with the same crime charged in indictment No. 4502, which had been stetted. There is no transcript of the proceedings on this arraignment in the record. On November 3, 1966 a motion was filed to dismiss indictments Nos. 2017, 2018, 2019 and 2100 on the ground of 'former or double jeopardy' and lack of a speedy trial. An answer was filed by the State on November 14, 1966 asserting that trial under the indictments would not place the appellant in 'former or double jeopardy' and that he had not been denied a speedy trial. Hearing on the motion was held on November 29, 1966 in the Criminal Court of Baltimore before Judge Joseph R. Byrnes and denied after testimony by the appellant and proffer of all docket entries in evidence.

The substance of the appellant's contention on appeal is that the lower court erred in denying the motion to dismiss the indictments. He alleges that he was 'prejudiced by being placed in former or double jeopardy under the indictments charging him with robbery with a deadly weapon' and that he was deprived of his right to a speedy trial.

It is clear that an appeal will lie, prior to a trial on the merits, from a denial of a motion alleging a denial of the constitutional right to a speedy trial. Jones v. State, 241 Md. 599, 217 A.2d 367; Harris v. State, 194 Md. 288, 71 A.2d 36; Allen v. State, 1 Md.App. 249, 229 A.2d 446. In Harris, the Court of Appeals said at page 294, 71 A.2d at page 39:

'While it is perfectly true that an appeal will not lie from a judgment that is not final (State v. Haas, 188 Md. 63, 51 A.2d 647), and ordinarily denial of a 'motion to quash' is not a final judgment, on the other hand it is just as true that when a prisoner claims that he has been denied a speedy trial and has thereby become entitled to be freed of further proceedings in a case, and his claim is decided against him, this is a final ruling denying his claimed right, from which an appeal will lie.'

We think the same rationale applicable to a claim by an accused that he had been placed in jeopardy on the same offense for which he is again charged. If the claim were valid, he would be entitled to be freed of further proceedings in the case, as no man can be twice put in jeopardy for the same offense. Smith v. State, 1 Md.App. 297, 229 A.2d 723.

'If 'twice put in jeopardy' meant only that the accused had a good defense after trial on the merits, instead of the right to avoid a trial on the merits, he would be subjected to harassment, expenses, and the risk of a miscarriage of justice.' United States v. H. E. Koontz Cremaery, Inc., 232 F.Supp. 312 (D.Md.1964).

The Supreme Court has made it clear that the purpose of the double jeopardy prohibition, common law or constitutional, is to forbid a second trial for the same offense. See Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). It is apparent that only by a hearing on a motion, which if granted, would bar a second trial, can it be assured that an accused once placed in jeopardy shall not be retried. It follows that he must have a right to appeal from a denial of the motion, before a trial on the merits, and that he should not be subjected to a second trial to see if he should be tried a second time. We hold that an appeal will lie, prior to a trial on the merits from a denial of a motion to dismiss indictments in which motion double

jeopardy is alleged. INDICTMENTS NOS. 2017, 2018 AND 2019

AND INDICTMENTS NOS. 4501, 4503 AND 4504

Double Jeopardy

It has been established that when an accused has been tried on an invalid indictment, he is not in jeopardy and may be indicted and tried again. Tate v. State, 236 Md. 312, 203 A.2d 882. The appellant, by his election to have the indictments involved in his first trial declared invalid under Schowgurow v. State, supra, brought his cases squarely within the rule set forth in Tate and, therefore, he would not be placed in double jeopardy by a trial on indictments Nos. 2017, 2018 and 2019. Benton v. State, 1 Md.App. 647, 232 A.2d 541; Dixon v. State, 1 Md.App. 623, 232 A.2d 538; Sadler v. State, 1 Md.App. 383, 230 A.2d 372.

Speedy Trial

In Jones v. State, 241 Md. 599, 608, 217 A.2d 367, 373, the Court of Appeals quoted 22A C.J.S. Criminal Law § 647(4):

'A speedy trial is, in general, one had as soon as the prosecution, with reasonable diligence, can prepare for it; a trial according to fixed rules, free from capricious and oppressive delays, but the time within which it must be had to satisfy the guaranty depends on the circumstances.'

We pointed out in State v. Long and Nelson, 1 Md.App. 326, 333, 230 A.2d 119 that an accused has the right to a speedy trial and that if he does not demand the right, he waives it. In the instant case, the first demand for a speedy trial was raised by the motion to dismiss on November 3, 1966. We find no capricious and oppressive delay in bringing the appellant to trial under indictments Nos. 4501, 4503 and 4504 originally returned against him. He was indicted on December 1, 1964, arraigned on ...