Evans v. State

• Decision Date: 01 September 1983
• Docket Number: No. 160,160
• Citation: 481 A.2d 1135,301 Md. 45
• Parties: Vernon Lee EVANS, Jr. v. STATE of Maryland. Anthony GRANDISON, Sr. v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 45

301 Md. 45

481 A.2d 1135

Vernon Lee EVANS, Jr. v. STATE of Maryland.

Anthony GRANDISON, Sr. v. STATE of Maryland.

No. 160, Sept. Term, 1983.

No. 7, Sept. Term, 1984.

Court of Appeals of Maryland.

April 4, 1984.

Opinion Oct. 3, 1984.

Mark Colvin, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on brief), for appellant in No. 160, Sept. Term 1983

Deborah K. Chasanow, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on brief), for appellee in No. 160, Sept. Term 1983.

H. Warren Crawford, Ocean City, for appellant in No. 7, Sept. Term 1984.

Dana M. Levitz, Asst. State's Atty. for Baltimore County, Towson (Stephen H. Sachs, Atty. Gen., Deborah K. Chasanow, Asst. Atty. Gen., Baltimore, on brief), for appellee in No. 7, Sept. Term 1984.

Argued before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, DAVIDSON, ^* RODOWSKY and COUCH, JJ.

PER CURIAM ORDER

For reasons to be stated in an opinion later to be filed, it is this 4th day of April, 1984

ORDERED, by the Court of Appeals of Maryland, that the order of the Circuit Court for Worcester County denying ORDERED that the mandate shall issue forthwith, costs to be paid by the appellant.

the motion to dismiss the indictment be, and it is hereby, affirmed; and it is further

PER CURIAM ORDER

For reasons to be stated in an opinion later to be filed, it is this 4th day of April, 1984

ORDERED, by the Court of Appeals of Maryland, that the order of the Circuit Court for Somerset County denying the motion to dismiss the indictment be, and it is hereby, affirmed; and it is further

ORDERED that the mandate shall issue forthwith, costs to be paid by the appellant.

PER CURIAM.

The issue in these cases is whether the Double Jeopardy Clause of the Fifth Amendment or the Maryland common law double jeopardy prohibition bars the present state court criminal prosecutions which arise out of the same acts for which the defendants had previously been convicted in federal court.

According to the State's allegations, Anthony Grandison, the appellant in No. 7, and Vernon Evans, Jr., the appellant in No. 160, entered into an agreement whereby Evans would kill Scott Piechowitz and his wife, Cheryl, because the couple was slated to testify against Grandison in his upcoming narcotics trial in the United States District Court. The State further alleged that Evans partially carried out the scheme, killing Scott Piechowitz and Susan Kennedy in the mistaken belief that she was Cheryl Piechowitz.

A two count indictment was filed in the United States District Court for the District of Maryland against Grandison and Evans. They were charged with conspiracy to violate the civil rights of Scott and Cheryl Piechowitz by interfering with their right to be witnesses in a judicial proceeding, in violation of 18 U.S.C. § 241, and with witness tampering, in violation of 18 U.S.C. § 1512.

A four count indictment was subsequently filed in the Circuit Court for Baltimore County, charging Grandison and Evans with two counts of murder, one count of conspiracy to commit murder, and use of a handgun in the commission of a felony or crime of violence. The state cases were severed and removed to other counties, the prosecution of Grandison being transferred to the Circuit Court for Somerset County and the prosecution of Evans being transferred to the Circuit Court for Worcester County.

With respect to the federal charges, Grandison and Evans were tried together in the United States District Court for the District of Maryland and convicted on both counts. Each defendant was sentenced to life plus ten years imprisonment.

Both defendants then filed motions in the circuit courts to have the state indictment dismissed on the grounds of double jeopardy and due process. ¹ The motions were heard and denied by each circuit court. The defendants took immediate appeals from those decisions, ² and this Court granted their petitions for writs of certiorari prior to any proceedings in the Court of Special Appeals.

On appeal, the defendants presented a two-stage double jeopardy argument. First, they urged that the state charges should be deemed the same for double jeopardy purposes as the federal offense under 18 U.S.C. § 241. ³ Second, the defendants argued that the prosecution of the "same" offenses by different sovereigns did not remove the case from the prohibition against double jeopardy. They disputed the applicability of the so-called dual sovereignty doctrine, which allows successive prosecutions of a person, for what is essentially the same offense, if the prosecutions are by different sovereigns. The defendants contended that this doctrine was no longer viable under the Double Jeopardy Clause of the Fifth Amendment. Alternatively, they argued that the Maryland common law double jeopardy prohibition does not recognize the dual sovereignty principle.

On April 4, 1984, following oral argument, we filed per curiam orders, affirming the decisions of the circuit courts denying the motions to dismiss the indictment. We shall now give the reasons for our orders.

We shall assume arguendo that, for double jeopardy purposes, the state indictment should be deemed to charge the same offenses as the defendants' federal convictions under 18 U.S.C. § 241. ⁴ Nevertheless, the fact that the prosecutions are by different sovereigns removes the case from the prohibition against double jeopardy. We reject the defendants' argument that the dual sovereignty principle is inapplicable.

(a)

The seminal cases on dual sovereignty under the federal constitution are Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959), and Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959). In Bartkus, the defendant was tried and acquitted in the United States District Court for the Northern District of Illinois on federal bank robbery charges. Subsequent to his acquittal in federal court, the defendant was indicted, tried and convicted on state bank robbery charges arising from the same incident. The Supreme Court of Illinois, rejecting the defendant's double jeopardy argument, affirmed. In affirming the judgment of the Illinois court, the United States Supreme Court summarized its previous cases on the dual sovereignty issue, stating (359 U.S. at 131-132, 79 S.Ct. at 682-683):

"The process of this Court's response to the Fifth Amendment challenge was begun in Fox v. Ohio [5 How. 410, 12 L.Ed. 213 (1847)], continued in United States v. Marigold, 9 How. 560 [13 L.Ed. 257 (1850)], and was completed in Moore v. Illinois, 14 How. 13 [14 L.Ed. 306 (1852)]. Mr. Justice Grier, writing for the Court in Moore v. Illinois, gave definitive statement to the rule which had been evolving:

'An offence, in its legal signification, means the transgression of a law. 14 How., at 19 . Every citizen of the United States is also a citizen of a State or territory. He may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either. The same act may be an offence or transgression of the laws of both. 14 How., at 20 . That either or both may (if they see fit) punish such an offender, cannot be doubted. Yet it cannot be truly averred that the offender has been twice punished for the same offence; but only that by one act he has committed two offences, for each of which he is justly punishable. He could not plead the punishment by one in bar to a conviction by the other.' Ibid."

"In a dozen cases decided by this Court between Moore v. Illinois and United States v. Lanza [260 U.S. 377, 43 S.Ct. 141, 67 L.Ed. 314 (1922)] this Court had occasion to reaffirm the principle first enunciated in Fox v. Ohio. Since Lanza the Court has five times repeated the rule that successive state and federal prosecutions are not in violation of the Fifth Amendment. Indeed Mr. Justice Holmes once wrote of this rule that it 'is too plain to need more than statement.' "

In Abbate, a companion case to Bartkus, the situation was reversed. The defendant there contested on double jeopardy grounds a federal prosecution following a state court conviction for essentially the same offense. Relying on most of the same cases as in Bartkus, the Court in Abbate again upheld the second conviction.

The defendants argue, however, that the dual sovereignty doctrine was in effect abrogated by the Supreme Court's decision in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), and that, therefore, Bartkus and Abbate are no longer viable. In Benton v. Maryland, the Double Jeopardy Clause of the Fifth Amendment was held to be applicable to the state prosecutions by virtue of the Fourteenth Amendment. The defendants theorize that, because the same clause of the United States Constitution now prohibits both the federal government and the state governments from placing someone twice in jeopardy for the same offense, the distinctions between the federal and state governments with regard to successive prosecutions for essentially the same crime have been erased. Nevertheless, United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978), compels rejection of the defendants' contention. In Wheeler, decided after Benton, the Supreme Court expressly reaffirmed the dual sovereignty concept and the decisions in Bartkus and Abbate.

The viability of the dual sovereignty principle was recently reviewed by the United States Court of Appeals for the Fifth Circuit in United States v. Hayes, 589 F.2d 811 (5th Cir.1979), cert. denied, 444 U.S. 847, 100 S.Ct. 93, 62 L.Ed.2d 60 (1979). In that case the defendant Hayes was first tried in the state court for capital murder and was convicted of the lesser included offense of aggravated assault. He was then prosecuted and convicted in the federal court for depriving a person of a right protected by the United States Constitution, in violation of 18 U.S.C. § 242. The state and federal...