Giddins v. State

• Court: Maryland Court of Appeals
• Writing for the Court: CHARLES E. MOYLAN, JR., (retired, specially assigned).
• Citation: Giddins v. State, 878 A.2d 687, 163 Md. App. 322 (Md. App. 2005)
• Decision Date: 12 July 2005
• Docket Number: No. 2062,2062
• Parties: Damont Isaiah GIDDINS v. STATE of Maryland.

878 A.2d 687

163 Md. App. 322

Damont Isaiah GIDDINS v. STATE of Maryland.

No. 2062, September Term, 2004.

Court of Special Appeals of Maryland.

July 12, 2005.

Ronald I. Kurland, Baltimore, for Appellant.

Brian S. Kleinbord (J. Joseph Curran, Jr., Atty. Gen., on the brief), Baltimore, for Appellee.

Panel: SALMON, MEREDITH, and CHARLES E. MOYLAN, JR. (retired, specially assigned), JJ.

CHARLES E. MOYLAN, JR., Judge (retired, specially assigned).

The appellant, Damont Isaiah Giddins, went on trial on July 6, 2004, before a Worcester County jury for the possession of cocaine with the intent to distribute. In the course of the direct examination of the State's first witness, the trial judge granted the appellant's motion for a mistrial.

On July 8, the State requested that the case be docketed for retrial. On July 23, the appellant interposed the plea in bar of double jeopardy. Argument was held on the appellant's double jeopardy plea before Judge Thomas C. Groton, III, on September 13. On September 16, Judge Groton issued an Opinion and Order, denying the double jeopardy plea. This appeal followed.

Setting the Doctrinal Stage

As we affirm Judge Groton, answering the appellant's single contention is easy. What is more problematic is putting the question itself into an intelligible context. We are dealing with an esoteric nuance of double jeopardy law. What we said, as we examined very thoroughly this same nuance a quarter of a century 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.

(Emphasis supplied).

There are layers of double jeopardy law that must be peeled away before we can get to the arcane little problem of the permissibility of a retrial following the declaration of a mistrial at the request of a defendant. An initial hurdle is that there are four widely divergent forms of double jeopardy law and that what is before us is the rarest and most recently evolved of these. In Fields v. State, 96 Md.App. 722, 725, 626 A.2d 1037 (1993), we looked initially at the larger genus.

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.

(Emphasis supplied). See also Tabbs v. State, 43 Md.App. 20, 21, 403 A.2d 796 (1979).

Zooming in more closely, the particular species of the larger genus that is before us 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 (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. 2156, through its "rather unreflective incorporation ... into the guarantee against double jeopardy." 437 U.S. at 46, 98 S.Ct. 2156. 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. 2156. 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. 2156. 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. 2156.

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. 2156. 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, 69 S.Ct. 834, 93 L.Ed. 974 (1949).

Crist, 437 U.S. at 47,98 S.Ct. 2156. Justice Powell observed that the Supreme Court did this "almost without articulated thought." Id. See West v. State, 52 Md.App. at 628, 451 A.2d 1228 ("[This] expansion of double jeopardy law occurred late in the evolution of that law and occurred largely subconsciously, as an historic accident.").

In Fields v. State, 96 Md.App. at 727, 626 A.2d 1037, this Court appraised what Justice Powell had shown to be the Supreme Court's 1949 mistake and the danger of confusion flowing from it.

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.

(Emphasis supplied).

Initial Jeopardy As the Sine Qua Non of Double Jeopardy

A tell-tale characteristic of just how unique the mistrial/retrial variety of double jeopardy actually is can be found in its total nondependence on the traditional double jeopardy concept that initial jeopardy only attaches with the actual rendering of a verdict. There cannot, by definition, be second or double jeopardy until there has been first or initial jeopardy. See West v. State, 52 Md.App. at 626, 451 A.2d 1228 ("Before we can even consider double jeopardy, we must first establish single jeopardy."). At the common law, there was no jeopardy until the moment that a verdict was rendered. In Fields v. State, 96 Md.App. at 727-28, 626 A.2d 1037, we explained how the other three varieties of double jeopardy are still only triggered by the rendering of a verdict and the resulting attachment of initial jeopardy.

In classic double jeopardy law, 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.

(Emphasis supplied).

It is still the firm position of the common law, both in England and in Maryland, that jeopardy only attaches with the rendering of a verdict. 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, 433-34 (1863); State v. Shields, 49 Md. 301, 303-04 (1878); Gilpin v. State, 142 Md. 464, 121 A. 354 (1923). 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 stated 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,

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