Fields v. State

• Decision Date: 01 September 1992
• Docket Number: No. 1432,1432
• Citation: 626 A.2d 1037,96 Md.App. 722
• Parties: James FIELDS v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 722

96 Md.App. 722

626 A.2d 1037

James FIELDS v. STATE of Maryland.

No. 1432, Sept. Term, 1992.

Court of Special Appeals of Maryland.

July 2, 1993.

Ronald S. Kowitz, Baltimore, for appellant.

Annabelle L. Lisic, Asst. Atty. Gen., Baltimore (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Sandra A. O'Connor, State's Atty. for Baltimore County, Towson, on the brief), for appellee.

Submitted before MOYLAN, ALPERT and FISCHER, JJ.

MOYLAN, Judge.

What we observed a decade ago in West v. State, 52 Md.App. 624, 625, 451 A.2d 1228 (1982), is equally pertinent as we take up the present appeal:

"We are here called upon to explore a secluded but exotic corner of the double jeopardy garden--prosecutorial and judicial overreaching. In life, it is seldom seen except as an imagined possibility in the most painstakingly thorough of footnotes. As a contention, however, it is in luxuriant vogue and is being resorted to promiscuously."

The appellant, James Fields, went to trial along with a codefendant before a Baltimore County jury on April 23, 1992 for armed robbery and related offenses. On the second day of trial, a mistrial was declared. When the State subsequently indicated that it was preparing for a retrial, the appellant moved to bar retrial on the ground that it would violate his Fifth Amendment right against double jeopardy. On September 8, a hearing on the double jeopardy bar was conducted by Judge J. William Hinkel. Judge Hinkel denied the motion and this appeal has followed.

What Kind of Double Jeopardy Are We Talking About?

When dealing with a generic category or portmanteau phenomenon such as double jeopardy, it is indispensable at the outset to identify the particular species of double jeopardy being invoked. There are no less than four such species within the genus "double jeopardy." Each carries with it a different history; each serves a different purpose; each has different implementing rules. The broad umbrella term we call "double jeopardy" today embraces (in its federal manifestation) four distinct species: 1) classic former jeopardy, arising out of the common law pleas at bar of autrefois convict and autrefois acquit; 2) simultaneous jeopardy, involving largely issues of merger and multiple punishment and lying on the at-times blurred boundary between constitutional law and statutory construction; 3) the problem of retrial following mistrial; and 4) collateral estoppel.

The species of double jeopardy law that we must examine in this case is that of "retrial following mistrial." This species was brought into the double jeopardy fold late in the day in an essentially haphazard way. In a scholarly dissenting opinion in Crist v. Bretz, 437 U.S. 28, 40-53, 98 S.Ct. 2156, 57 L.Ed.2d 24, 34-42 (1978), Justice Powell traced perceptively the history of what had once been "a separate rule of English practice," 437 U.S. at 41, 98 S.Ct. at 2164, through its "rather unreflective incorporation ... into the guarantee against double jeopardy." 437 U.S. at 46, 98 S.Ct. at 2166. Justice Powell attributed this aspect of English practice to Lord Coke and demonstrated that "this rule arose as an aspect of jury practice, rather than as an element of the guarantee against double jeopardy." 437 U.S. at 41, 98 S.Ct. at 2164. He cited the leading English cases and reported that they had "refused to import the rule into the realm of pleas in bar, and it was the latter which informed the framing of the Double Jeopardy Clause." 437 U.S. at 43, 98 S.Ct. at 2165. Justice Powell also pointed out how the seminal decision of United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824), wherein the Supreme Court first employed Lord Coke's rule of English practice, did not remotely suggest that the procedural protection was based upon any double jeopardy consideration. He characterized "Perez as [an] independent rule barring needless discharges." Crist, 437 U.S. at 44, 98 S.Ct. at 2165.

In searching for the source of the uncritical doctrinal leap, Justice Powell showed how some American state courts during the 19th century placed Lord Coke's rule "under the rubric of the Double Jeopardy Clause" but that they did so "with no apparent awareness of the novelty of their action." Crist, 437 U.S. at 46, 98 S.Ct. at 2166. After tracing this "unreflective incorporation of a common-law rule of jury practice into the guarantee against double jeopardy" in the state courts, id., Justice Powell pinpointed 1949 as the moment the Supreme Court fell into the same unthinking error:

"It was after more than a century of development in state courts that the 'defendant's valued right to have his trial completed by a particular tribunal' appeared in the decisions of this Court for the first time, also without analysis, as an element of the Double Jeopardy Clause. Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949).

Crist, 437 U.S. at 47, 98 S.Ct. at 2166-67. Justice Powell observed that the Supreme Court did this "almost without articulated thought." Id.

For better or for worse, it is done. "The moving finger writes and, having writ, moves on." However shadowy its constitutional pedigree may be, Lord Coke's rule dealing with retrials following mistrials is now inextricably ensconced in the federal family of protections known generically as "double jeopardy." It will nonetheless be prudent not to intone too readily generalized pronouncements about double jeopardy law but to remember carefully that many of the incidents of this discrete branch of it are unique to this species alone.

One characteristic of this erstwhile English rule of practice that is unique to it is its nondependence upon the rendering of a verdict. What this once meant was that the rule of practice was indifferent to the attachment of jeopardy. The English rule barring certain retrials following certain declarations of mistrial was not contingent upon any finding of earlier jeopardy. Indeed, the event that might foreclose a retrial occurred, of necessity, before there had been any jeopardy. At the common law, there was no jeopardy until a verdict was rendered. Mistrials, on the other hand, are declared before verdicts are rendered. Because the English rule of practice was not deemed to be a part of double jeopardy law, it was indifferent to whether there had or had not been any attachment of jeopardy.

In classic double jeopardy law, by contrast, the triggering event of jeopardy occurred only as a verdict was rendered. Only then had the historic event taken place which could support a plea of autrefois acquit or autrefois convict. The plea in bar to a second or subsequent jeopardy was, by definition, contingent upon the happening of the earlier jeopardy, to wit, the rendering of the earlier verdict.

In what is now the second species of double jeopardy law, that prohibiting multiple punishment for the same offense in the context of simultaneous jeopardies, the danger of multiple punishment does not arise, even potentially, until the rendering of the verdicts and does not arise, actually, until the imposition of sentence. There is no possibility of merging convictions for lesser included offenses into convictions for greater included offenses until verdicts of conviction have been rendered.

In the case of the fourth species of double jeopardy law, collateral estoppel, the very issue of estoppel cannot arise until there has been a verdict on the ultimate merits necessarily litigating a particular issue of fact. That necessary finding of fact manifested by a verdict is the estopping instrumentality. Until that moment, there is no predicate for collateral estoppel.

In English common law, it was always the case that initial jeopardy was not deemed to attach until a verdict was rendered. That is still the position of the common law, both in England and in Maryland, today. Queen v. Charlesworth, 1 B. & S. 460, 500, 121 ER 786, 801 (QB 1861); Winsor v. Queen, LR 1 QB 289, 390 (1866); Hoffman v. State, 20 Md. 425, 433-434 (1863); State v. Shields, 49 Md. 301, 303-304 (1878); Gilpin v. State, 142 Md. 464, 121 A. 354 (1923). Traditionally, the rendering of a verdict and the attachment of jeopardy were simultaneous and indivisible effects of a single cause. All other varieties of what has now become the all-embracing genus of double jeopardy law are, as they always have been, verdict-dependent and jeopardy-dependent. Lord Coke's rule regulating retrials after mistrials, on the other hand, was in its pristine form, and even until quite recently, blithely independent of and indifferent to the very notion of the attachment of jeopardy.

It is for this reason that mistrial/retrial law, albeit now a part of the federal constitutional law of double jeopardy under the Fifth Amendment, has never been included within the coverage of the Maryland common law of double jeopardy. As Judge Eldridge explained for the Court of Appeals in Cornish v. State, 272 Md. 312, 316 n. 2, 322 A.2d 880 (1974):

"The view in this state was that, under the common law's double jeopardy prohibition, jeopardy did not attach until the rendition of a verdict and that, therefore, a retrial following the declaration of a mistrial did not give rise to a double jeopardy problem."

See also Kyle v. State, 6 Md.App. 159, 250 A.2d 314 (1969); Boone v. State, 3 Md.App. 11, 23-25, 237 A.2d 787 (1968). And see West v. State, 52 Md.App. 624, 627, 451 A.2d 1228 (1982).

When, however, Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974, in 1949 suddenly deemed the mistrial/retrial rule to be a part of Fifth Amendment double jeopardy law, a tectonic shift became necessary in the undergirding analysis. In order to accommodate the mistrial/retrial rule into the body of preexisting double jeopardy law, it became logically compelling to disengage the attachment of jeopardy from the rendering of a verdict and to move it back in time to the beginning of the trial. In the service of that...