Claybrooks v. State

• Decision Date: 07 June 1977
• Docket Number: No. 1151,1151
• Citation: 36 Md.App. 295,374 A.2d 365
• Parties: William Jordan CLAYBROOKS v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 295

36 Md.App. 295

374 A.2d 365

William Jordan CLAYBROOKS v. STATE of Maryland.

No. 1151.

Court of Special Appeals of Maryland.

June 7, 1977.

Certiorari Denied Sept. 7, 1977.

Reginald W. Bours, III, Assigned Public Defender, Rockville, Md., for appellant.

Alexander L. Cummings, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Andrew L. Sonner, State's Atty. and Nelson W. Rupp, Jr., Asst. State's Atty. for Montgomery County on the brief, for appellee.

Argued before GILBERT, C. J., and MORTON and LISS, JJ.

GILBERT, Chief Judge.

The Fifth Amendment to the Constitution of the United States provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb . . . ." Prior to Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), it was generally taken to be true that the Fifth Amendment prohibition was limited to cases involving strictly federal jurisdiction. Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937); State v. Stanley, 34 Md.App. 393, 367 A.2d 27 (1977). Benton, however, made manifest that the double jeopardy provision of the Fifth Amendment is applicable to the several States through the Fourteenth Amendment. State v. Stanley, supra.

We pointed out in Stanley that long before the Benton decision was handed down by the Supreme Court in its retreat from Palko, the established common law of Maryland prohibited the putting of an accused in jeopardy, twice, for the same offense. See Blondes v. State, 273 Md. 435, 330 A.2d 169 (1975); Neal v. State, 272 Md. 323, 322 A.2d 887 (1974); Cornish v. State, 272 Md. 312, 322 A.2d 880 (1974); State v. Barger, 242 Md. 616, 220 A.2d 304 (1966); State v. Adams, 196 Md. 341, 76 A.2d 575 (1950); State v. Shields, 49 Md. 301 (1878).

Neal v. State, 20 Md.App. 20, 314 A.2d 710 (1974), endeavored to bring a halt to piecemeal appeals. We noted that in Jones v. State, 241 Md. 599, 217 A.2d 367 (1966) and Harris v. State, 194 Md. 288, 71 A.2d 36 (1950), the Court of Appeals entertained an immediate appeal from a refusal by the trial court to dismiss indictments for lack of a speedy trial. We had followed that lead in Stevenson v. State, 4 Md.App. 1, 241 A.2d 174 (1968), and in Brown v. State, 2 Md.App. 388, 234 A.2d 788 (1967), in holding, "that an immediate appeal would lie, prior to trial on the merits, from the denial of a motion asserting a violation of the constitutional right not to be twice put in jeopardy." Neal v. State, supra, 20 Md.App. at 24, 314 A.2d at 712.

This Court's opinion in Neal observed that there had been 18 reported cases involving double jeopardy accounting from the inception of the Court, January 1967 to the date of filing of Neal, February 11, 1974. Of those 18 cases, in only two, Jones v. State, 17 Md.App. 504, 302 A.2d 638 (1973), and State v. Campbell, 7 Md.App. 538, 256 A.2d 537 (1969) was an accused actually twice put in jeopardy. We concluded that the allowing of an immediate appeal, prior to trial on the merits, of a denial of a motion to dismiss on grounds of double jeopardy or denial of a speedy trial, causes, " '(P)roceedings in every criminal case, great or small, . . . (to be) stopped and delayed while the accused prosecutes an appeal . . . (adding) just so much to . . . (the already onerous caseload of this Court).' " Neal v. State, supra, 20 Md.App. at 28-29, 314 A.2d at 715; Lee v. State, 161 Md. 430, 157 A. 723 (1931). Then Chief Judge Orth, writing for the Court, set out the policy we elected to follow. He said:

"We are of the opinion . . . that whether a speedy trial has been denied or whether an accused will be twice put in jeopardy, will usually turn on the facts and circumstances present in the particular case. This has been evident, certainly, in the cases which have come before us. Thus, the determination of the question by the lower court would seem to involve an application of judicial discretion . . . . We shall follow the rule of Pearlman (v. State, 226 Md. 67, 172 A.2d 395 (1961)) and Lee except in those cases where the trial judge concludes that the constitutional right exists and is applicable but nevertheless refuses to apply it. To the extent that this is a departure from our cases heretofore decided, we depart from them." 20 Md.App. at 29-30, 314 A.2d at 715.

Our departure was shortlived. The Court of Appeals vacated our judgment in Neal and made clear that it did "not share the view that a determination that double jeopardy does or does not exist involves an exercise of discretion." The Court, through Judge Singley, went on to state, "To us, the defense of double jeopardy is a liminal constitutional issue, raised at the outset, before there is a trial." Neal v. State, supra, 272 Md. at 326, 322 A.2d at 889.

Ten days after the decision of the Court of Appeals in Neal was handed down, we filed our opinion in Taylor v. State, 22 Md.App. 370, 323 A.2d 648 (1974). Taylor dealt with the immediate appealability vel non of a denial of a motion to dismiss for lack of a speedy trial. In that case, we said:

"The express message of the Court of Appeals in Neal is unmistakable. A denial of a motion to dismiss an indictment on the ground of double jeopardy is appealable immediately." 22 Md.App. at 372, 323 A.2d at 650.

We observed in Taylor, with respect to a motion to dismiss for lack of a speedy trial, that if the court does not rule on the motion to dismiss, made prior to trial, but defers the ruling, pursuant to Md. Rule 725 d, ¹ until the trial on the merits, "no appeal lies from the trial court's declination to rule prior to trial." 22 Md.App. at 374, 323 A.2d at 651. See also Brady v. State, 374 A.2d 613 (Court of Special Appeals of Maryland, filed June 6, 1977).

Our observation in Taylor seems to have been misinterpreted by the trial judge in the instant case. We did not imply, suggest, nor hint that Md. Rule 725 d was to be used as an artifice to circumvent the holding of the Court of Appeals in Neal. Indeed, Rule 725 d is not a vehicle to thwart Neal and thus effectively erode its clear mandate. By the mere deferring of a ruling on a motion to dismiss grounded on former jeopardy, the constitutional barrier, erected by our founding fathers, would be no barrier at all. Rather, it would be relegated to the status of a high sounding phrase, devoid of substance and "signifying nothing." ²

The net result of what we have herein said is that the former jeopardy proviso of the Fifth Amendment is a bar to a second trial. Neal requires a ruling before trial when there is a motion to dismiss on the basis of former jeopardy. ³ A denial of the motion is an interlocutory order which is immediately appealable. Failure to rule on the motion before trial is error.

We believe such error ordinarily to be reversible. We say "ordinarily" because there is an exception. The exception arises when the motion is based on a claim that is patently frivolous. When that occurs, although there is error, it is not reversible, but harmless. To hold otherwise would permit any defendant, in any criminal cause, to move to dismiss on the grounds of double jeopardy, even though there is no basis, and when the motion is decided against him, to divest the trial court of jurisdiction by simply noting an appeal. Such a practice could be used to obtain a continuance, a severance of the case from that of another, and probably would cause an appellate logjam. The constitutional protection against double jeopardy should not be allowed to become a contrived pro forma dilatory plea.

The Fifth Amendment is to be used as a shield not a sword. The orderly administration of justice may not be twisted, bent, and distorted at the whim of an accused whose only purpose in invoking a frivolous plea of former jeopardy is to delay the trial so as to achieve some strategic or tactical advantage.

We now turn our attention to the instant case. The record reveals that in Montgomery County, on May 30, 1975, at approximately 7 p.m., on that Friday evening, a black man approximately 20 years of age, later identified as Ralph Raney Cunningham, ⁴ entered the Suburbia Federal Savings and Loan Association (Suburbia). Cunningham spoke with teller Deborah Sullivan about automobile loans. While they were talking, a second black man, the appellant, Claybrooks, entered and stood by the door. Claybrooks announced that a robbery was taking place and pulled out a gun. Cunningham then followed Sullivan to the cash drawers and placed approximately $1,800 in a yellow trash bag. Claybrooks then suggested that he and the other perpetrator attempt their escape.

In the meantime, Thurman Castellow, a barber, who went into Suburbia but retreated upon seeing that a robbery was in progress, ran into the Glenmont Inn, located across the mall from the scene of the robbery. There he exclaimed that Suburbia was being robbed. James Parker, who was sitting at the bar, saw Cunningham flee from the Suburbia building. Parker followed Cunningham to an open field whereupon Cunningham said he merely wished to get away. Parker responded that escape would be impossible. Cunningham and Parker began to fight. During the struggle, Claybrooks approached Parker and hit him across the back with a gun barrel. While the fight was ongoing between Cunningham and Parker, Cunningham dropped the bag containing the money that was taken in the robbery. The currency was blown around in the street until it was recovered by Michael Collins, who was also in the Glenmont Inn when Castellow entered.

Collins testified that he saw Cunningham flee from Suburbia with a trash bag, but he was unable to identify Claybrooks inasmuch as a white teller's cap was worn by Claybrooks in such a way that his face was apparently not clearly visible. Collins recalled the fight between Cunningham and Parker and said that he heard Cunningham tell the other man, Claybrooks, to "waste" Parker.

While Collins was retrieving the scattered money,...