Gianiny v. State

• Decision Date: 01 September 1989
• Docket Number: No. 66,66
• Citation: 320 Md. 337,577 A.2d 795
• Parties: Frank Raymond GIANINY v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 337

320 Md. 337

577 A.2d 795

Frank Raymond GIANINY v. STATE of Maryland.

No. 66, Sept. Term, 1989.

Court of Appeals of Maryland.

Aug. 14, 1990.

Michael J. McAuliffe (Quinn & McAuliffe, both on brief) Rockville, for petitioner.

Richard B. Rosenblatt, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both on brief), Baltimore, for respondent.

Argued before MURPHY, C.J., ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS, JJ., and THEODORE G. BLOOM, Associate Judge of the Court of Special Appeals, Specially Assigned.

THEODORE G. BLOOM, Judge, Specially Assigned.

The Double Jeopardy Clause of the Fifth Amendment, "... nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb," is enforceable against the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 2063, 23 L.Ed.2d 707, 715, on remand, 8 Md.App. 388, 260 A.2d 86 (1969). The sole question presented by this case is whether that clause, or Maryland common law double jeopardy principles, or both, bar a prosecution for automobile manslaughter, ¹ after the defendant has paid a pre-set fine for negligent driving, ² pursuant to a traffic citation issued to him following the motor vehicle collision that resulted in the death charged in the subsequent prosecution.

I

The essential, and undisputed, facts of this case are as follows. On 20 November 1988 an automobile driven by Frank Gianiny collided with another motor vehicle. The driver of the other vehicle died as a result of injuries sustained in that collision. The police officer who investigated the occurrence issued traffic citations to Gianiny, on Maryland Uniform Complaint and Citation forms, charging him with violations of three sections of the Maryland Vehicle Law: Transportation Art., § 21-801(b) (failure to control speed to avoid collision); § 21-309 (failure to drive in a designated lane); and § 21-901.1(b) (negligent driving). Trial on those charges in the District Court was eventually set for 3 February 1989. On 30 January 1989, however, Gianiny, having been forewarned that he was about to be indicted for automobile manslaughter, paid a fine of $45.00 for negligent driving as an alternative to appearing for trial on that charge, as provided in the Uniform Traffic Citation. On 2 February 1989 an indictment charging Gianiny with manslaughter by automobile (Count I) and driving at an excessive rate of speed (Count II) was filed in the Circuit Court for Montgomery County. Gianiny's motion to dismiss the first count of that indictment on double jeopardy grounds was denied; he appealed to the Court of Special appeals, and this Court issued a writ of certiorari prior to any proceedings in the intermediate appellate court.

II

In Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932), the Supreme Court set forth the general test for determining whether two offenses should be deemed the same for double jeopardy purposes:

The applicable rule is that when the same action constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not,....

In Brown v. Ohio, 432 U.S. 161, 166, 97 S.Ct. 2221, 2225-26, 53 L.Ed.2d 187, 194-95 (1977), the Court explained that if two offenses are the same under the Blockburger test successive prosecutions are barred. A lesser included offense, one which requires no proof beyond that which is required for conviction of the greater offense, is the same statutory offense as the greater offense under the Blockburger test. Thus, whichever is prosecuted first, "the Fifth Amendment forbids successive prosecution ... for a greater and lesser included offense." 432 U.S. at 168-69, 97 S.Ct. at 2226-27, 53 L.Ed.2d at 195-96. ³

The Blockburger or "required evidence" test for determining whether two offenses are the same for double jeopardy purposes has been expanded. In Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980), the Supreme Court suggested, and in Grady v. Corbin, --- U.S. ----, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), it held that the Double Jeopardy Clause bars a subsequent prosecution that would not be barred under the Blockburger test if the government, in order to establish an essential element of the subsequently charged offense, will prove the conduct for which the defendant has already been prosecuted.

III

Maryland common law double jeopardy principles as well as the Fifth Amendment protect an accused against twice being put in jeopardy for the same offense. Middleton v. State, 318 Md. 749, 756-57, 569 A.2d 1276, 1979-80 (1990). When a person is charged with different offenses arising out of the same transaction, the normal test for determining whether they are the "same offense" for double jeopardy purposes is the "same evidence" or "required evidence" test that was applied by the Supreme Court in Blockburger v. United States, supra. Id. See also State v. Ferrell, 313 Md. 291, 297, 545 A.2d 653, 656 (1988); Nightingale v. State, 312 Md. 699, 702-03, 542 A.2d 373, 374-75 (1988); Brooks v. State, 284 Md. 416, 423, 397 A.2d 596, 600 (1979); Thomas v. State, 277 Md. 257, 262-67, 353 A.2d 240, 243-47 (1976).

Judge Eldridge, writing for the Court in Middleton, pointed out:

The Maryland common law double jeopardy prohibition consists of "different but related rules," some of which embody several distinct pleas at common law. Pugh v. State, 271 Md. 701, 705, 319 A.2d 542, 544 (1974).

One of those common law pleas, autrefois convict, generally means that " 'where there had been a final [judgment] ... of conviction, ... the defendant could not be a second time placed in jeopardy for the particular offense.' " Hoffman v. State, 20 Md. 425, 434 (1863). See 4 Blackstone, Commentaries on the Laws of England, 335-36 (Lewis, ed. 1897); 1 Chitty, A Practical Treatise On The Criminal Law 376 (1819) ("The plea of autrefois convict depends ... on the principle that no man shall be more than once in peril for the same offense").

318 Md. at 756-57, 569 A.2d at 1279.

IV

Negligent driving is a lesser included offense within the greater offense of manslaughter by automobile. Although negligent driving is a violation of the Maryland Vehicle Law rather than the criminal code, it is a misdemeanor by virtue of § 27-101 of the Transportation Article, which provides that it is a misdemeanor for any person to violate any provision of the Maryland Vehicle Law unless the violation is declared to be a felony. (Negligent driving is not declared to be a felony.) Manslaughter by automobile is also a misdemeanor. Art. 27, § 388.

A comparison of the two statutes clearly demonstrates that in order to prove the greater offense, manslaughter by automobile, the State must necessarily prove the lesser offense, negligent driving. Article 27, § 388 provides:

Every person causing the death of another as the result of the driving, operation, or control of an automobile, motor vehicle, motorboat, locomotive, engine, car, streetcar, train or other vehicle in a grossly negligent manner shall be guilty of a misdemeanor....

Under § 21-901.1(b) of the Transportation Article, one is guilty of negligent driving if he or she drives a motor vehicle in a careless or imprudent manner that endangers property or the life or person of an individual.

It is obvious that the offense of negligent driving requires no proof beyond that which is required for conviction of manslaughter by automobile or motor vehicle. The traffic offense requires proof of the operation of a motor vehicle in a negligent manner, i.e., in a careless or imprudent manner that endangers property or the life or person of an individual. Manslaughter by motor vehicle requires proof of grossly negligent driving, which necessarily includes negligent driving, plus proof that someone's death resulted from that conduct. Under the Blockburger or required evidence test, therefore, the offenses are the same for double jeopardy purposes, and a conviction of the lesser offense bars a subsequent prosecution for the greater.

V

The State contends that the payment of the sum designated as a fine on the Uniform Complaint and Citation "does not constitute a conviction following initial jeopardy serving to bar subsequent prosecution." Its adroit and resourceful argument in support of that contention begins with the assertion that it is essential to a plea of double jeopardy that the accused must have been put in jeopardy, and concludes that Gianiny was not in jeopardy for negligent driving. Blondes v. State, 273 Md. 435, 444, 330 A.2d 169, 173 (1975), is cited for the proposition that jeopardy attaches in a jury case when the jury is selected and sworn and in a non-jury case when the judge begins to receive evidence. In the case of a guilty plea, the argument continues, jeopardy attaches when the guilty plea is accepted by the court. Sweetwine v. State, 288 Md. 199, 203, 421 A.2d 60, 62-63 (1980); Banks v. State, 56 Md.App. 38, 47, 466 A.2d 69, 73 (1983). When the recipient of a traffic citation delivers to the Clerk of the District Court a pre-trial payment of the sum designated on the citation as a fine, there is no trial. The receipt of the money, the State posits, cannot be construed as the acceptance of a guilty plea, in the absence of any litany as to waiver of rights, see Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), or determination that the plea was voluntary. See State v. Priet, 289 Md. 267, 424 A.2d 349 (1981).

Since the depositing of money with the clerk of the District Court as payment of the "fine" set by the citation cannot be a guilty plea, the argument continues, such payment or deposit must be construed as nothing more than the posting of collateral which is forfeited when the defendant fails to appear for trial. Section 11-110 of...