Ferrell v. State

• Decision Date: 09 January 1990
• Citation: 567 A.2d 937,318 Md. 235
• Parties: Avery V. FERRELL v. STATE of Maryland. 13 Sept. Term 1988.
• Court: Maryland Court of Appeals

Page 235

318 Md. 235

567 A.2d 937

Avery V. FERRELL v. STATE of Maryland.

13 Sept. Term 1988.

Court of Appeals of Maryland.

Jan. 9, 1990.

Jose Felipe Anderson, Asst. Public Defender and George E. Burns, Jr., Asst. Public Defender (Alan H. Murrell, Public Defender, all on brief), Baltimore, for petitioner and cross-respondent.

Valerie J. Smith, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both on brief), Baltimore, for respondent and cross-petitioner.

Argued before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS and BLACKWELL ^*, JJ.

ELDRIDGE, Judge.

This criminal case involves the applicability of the doctrine of collateral estoppel where a defendant was acquitted on one count of a two-count charging document, where the jury was unable to agree on the other count, where the disputed issue under both counts was the same, and where the defendant was subsequently retried for the offense on which the jury had previously been unable to agree.

The pertinent facts, as disclosed by the prosecution's evidence, are as follows. On the morning of April 10, 1985, three women and a school girl were robbed at gunpoint by a lone man carrying a handgun and wearing a ski mask, a blue hooded sweatshirt, a long gray coat and tennis shoes. During the course of the robbery, one of the victims attempted to flee the scene at which time the robber fired a shot from the handgun and grabbed the fleeing victim's pocketbook. As the robber fled the scene, he was followed a short distance by one of the victims who later testified that she observed the robber changing clothes as he was running away.

The police were called, arrived on the scene immediately, and began searching for the robber in a nearby apartment development. One of the officers testified that he observed the defendant, Avery Ferrell, emerging from an apartment building wearing a blue-gray suit, hard shoes, and carrying a gray coat and a shopping bag. As the officer approached him, Ferrell began to walk away at an increasingly brisk pace. According to the officer's testimony, Ferrell dropped the shopping bag and ran behind a building. The officer then observed Ferrell entering a different apartment building and relayed that information to another officer at the scene who arrested Ferrell. ¹ When Ferrell was apprehended, he was carrying a three-quarter length gray coat which was identified by one of the victims as looking like the coat the robber wore. None of the victims, however, was able to identify Ferrell as the masked robber. The shopping bag was recovered and found to contain the articles stolen from the victims, along with a handgun containing five live rounds with one spent cartridge, and a ski mask.

The State's Attorney filed four criminal informations against Ferrell, each relating to one of the victims, and each charging the following offenses:

Count 1--Robbery with a deadly weapon;

Count 2--Attempted robbery with a deadly weapon;

Count 3--Robbery;

Count 4--Assault with intent to rob;

Count 5--Assault;

Count 6--Theft of less than $300;

Count 7--Use of a handgun in the commission of a felony or crime of violence;

Count 8--Unlawful carrying of a handgun.

A fifth information charged Ferrell with assault with intent to murder one of the victims.

Ferrell has since stood trial four times in the Circuit Court for Baltimore City. At the first trial on the above-described charges, the jury returned a verdict of not guilty of assault with intent to murder and guilty of the other charges except counts 2 and 4. ² Ferrell moved for a new trial, and the motion was granted. ³ The second trial resulted in a hung jury on all charges submitted to the jury. At the third trial, the State desired that only the charges of armed robbery and use of a handgun in the commission of a felony or crime of violence would be submitted to the jury. The jury found Ferrell not guilty of using a handgun in the commission of a felony or crime of violence, but the jury was unable to reach a verdict as to armed robbery. Once again a mistrial was declared.

The State decided to bring Ferrell to trial a fourth time for armed robbery. Prior to the fourth trial, Ferrell moved to have the armed robbery counts dismissed on the grounds of collateral estoppel and double jeopardy. Ferrell argued that, as the only issue before the jury at the third trial on both the handgun counts and the armed robbery counts was the identity of the robber, his acquittal on the handgun charges necessarily determined the identity issue in his favor, thus precluding the State from relitigating that issue. The trial judge denied the motion. While finding that only one person was accused of robbery with a handgun, and that the disputed issue at the third trial was whether the defendant was that person, the trial judge took the position that the jury's acquittal on the handgun charges could have been based on some theory other than a determination that the defendant was not the armed robber. At one point the trial judge stated: "How do you know they [the jurors] didn't feel that the gun wasn't used in the robbery, even though there was a gun? I mean, I can't speculate on what the jury determined."

The trial proceeded, and Ferrell was convicted. He was given two fifteen year sentences on two of the armed robbery counts, to be served concurrently, and two ten year sentences on the two remaining counts, to be served consecutively to the fifteen year term and consecutively to each other, for a total of thirty-five years imprisonment.

On appeal to the Court of Special Appeals, Ferrell challenged the convictions on the grounds, inter alia, of collateral estoppel and judicial misconduct. The Court of Special Appeals, by a divided court, affirmed. Ferrell v. State, 73 Md.App. 627, 536 A.2d 99 (1988). The intermediate appellate court held that the jury could have grounded its acquittal of the handgun charges on an issue other than the disputed issue under the armed robbery charges. Unlike the trial court, however, which had based its decision on the possibility that the jury's acquittal on the handgun charges rested on a theory not supported by the evidence, the Court of Special Appeals held that the jury at the third trial could have found from the evidence that the defendant was an accomplice in the robbery rather than the actual robber who used the handgun. The Court of Special Appeals also held that the conduct of the circuit court did not amount to reversible error.

We granted Ferrell's petition for a writ of certiorari to determine whether the Court of Special Appeals erred in concluding that collateral estoppel did not preclude a retrial on the armed robbery counts and whether the circuit court's conduct constituted reversible error. Since we shall resolve the collateral estoppel issue in Ferrell's favor, we shall not reach the second issue.

I.

Both the Fifth Amendment to the United States Constitution and Maryland common law provide that no person shall be put in jeopardy twice for the same offense. Moreover, under both the Fifth Amendment and Maryland common law, it is established that the doctrine of collateral estoppel is embodied in the double jeopardy prohibition. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); Robinson v. State, 307 Md. 738, 741-743, 517 A.2d 94 (1986); Bowling v. State, 298 Md. 396, 401-402, 470 A.2d 797 (1984); Carbaugh v. State, 294 Md. 323, 329, 449 A.2d 1153 (1982); Powers v. State, 285 Md. 269, 401 A.2d 1031, cert. denied, 444 U.S. 937, 100 S.Ct. 288, 62 L.Ed.2d 197 (1979); Cousins v. State, 277 Md. 383, 398, 354 A.2d 825, cert. denied, 429 U.S. 1027, 97 S.Ct. 652, 50 L.Ed.2d 631 (1976). See also In re Neil C., 308 Md. 591, 594, 521 A.2d 329 (1987).

In Ashe v. Swenson, supra, the defendant was charged with the robbery of one of six poker players who had been robbed by three or four armed men. The only contested issue in the case was whether the defendant was one of the robbers. At the end of the trial, the jury found the defendant not guilty. Six weeks later, the defendant was brought to trial and convicted for the robbery of one of the other poker players. The United States Supreme Court reversed the conviction, stating: " 'Collateral estoppel' is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." 397 U.S. at 443, 90 S.Ct. at 1194.

The Supreme Court has applied the collateral estoppel holding of Ashe v. Swenson in several subsequent cases. See, e.g., Turner v. Arkansas, 407 U.S. 366, 92 S.Ct. 2096, 32 L.Ed.2d 798 (1972); Harris v. Washington, 404 U.S. 55, 92 S.Ct. 183, 30 L.Ed.2d 212 (1971); Simpson v. Florida, 403 U.S. 384, 91 S.Ct. 1801, 29 L.Ed.2d 549 (1971). See also United States v. Powell, 469 U.S. 57, 64, 105 S.Ct. 471, 476, 83 L.Ed.2d 461 (1984).

In Powers v. State, supra, 285 Md. 269, 401 A.2d 1031, this Court applied the principles of Ashe v. Swenson and its progeny to circumstances similar to those in the case at bar. In Powers, the defendant was charged with the armed robbery of two victims, and the attempted armed robbery of a third victim, all at the same time and place. Unlike the facts of Ashe v. Swenson, all of the charges against Powers were tried at a single trial. A jury acquitted Powers of charges relating to two of the victims but could not agree on the charge relating to the third victim. When the State decided to retry Powers on the armed robbery charge relating to the third victim, Powers filed a motion to dismiss on the ground of collateral estoppel. The trial court denied the motion, but this Court reversed.

The Court in Powers held "that the doctrine of collateral estoppel applies after a jury, at a single trial, acquits on one count of a multicount...