Kendall v. State

Decision Date27 November 2012
Docket NumberNo. 2,Sept. Term, 2012.,2
Citation429 Md. 476,56 A.3d 223
PartiesAngela Jones KENDALL v. STATE of Maryland.
CourtMaryland Court of Appeals


Leigh R. Melton (Jesse B. Hammock of Parker, Counts, Melton & Goodman, P.C., Easton, MD), on brief, for petitioner.

Scott G. Patterson, Special Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for respondent.



The prohibition against double jeopardy, an important protection provided by the federal Constitution and our common law, precludes further prosecution of a defendant on a charge following an acquittal on that charge. That protection is triggered not only by a properly-labeled “ acquittal” but also by a “ruling of the judge, whatever its label, [that] actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.” 1

Applying the principle that the substance of a decision controls for double jeopardy purposes, our Court has held that a putative “dismissal” of charges was in substance an acquittal that triggered the protection against double jeopardy.2 This case presents another variation for application of that principle. The trial judge in the District Court denied a defense motion for judgment of acquittal on three charges against the defendant. The court then terminated the prosecution of those charges for a purely procedural reason—noncompliance with the rule on service of process—that the court made clear was unrelated to guilt or innocence but recorded its action on the docket sheet as “NG”i.e., “not guilty”—a label that seemingly denotes an acquittal. This case raises the question whether the protection against double jeopardy precludes the State from pursuing an appeal of that decision.

The Circuit Court for Talbot County held that, in these circumstances, the trial court's action was tantamount to a preliminary motion to dismiss and that the State could therefore appeal the trial court's decision concerning service of process. We agree with the Circuit Court—and with the courts in other jurisdictions that have confronted similar situations—that a mis-labeled dismissal of charges for a purely procedural reason unrelated to guilt or innocence does not trigger the protection against double jeopardy.


On March 28, 2011, Angela Jones Kendall was charged with driving under the influence of alcohol in violation of Maryland Code, Transportation Article (“TR”), § 21–902(a)(1); driving or attempting to drive a vehicle while impaired by alcohol, in violation of TR § 21–902(b)(1); driving or attempting to drive a vehicle while impaired by drugs or alcohol and drugs, in violation of TR § 21–902(c)(1); and failure to control vehicle speed to avoid a collision, in violation of TR § 21–801(b). The case came to trial in the District Court of Maryland sitting in Talbot County, on June 1, 2011. Ms. Kendall entered a plea of “not guilty” on all charges and elected to have the charges tried by the District Court in a bench trial.

The State called five witnesses. After the State rested its case, defense counsel made a motion for judgment,” arguing that the investigating police officer had failed to obtain a blood sample from the defendant to determine her blood alcohol concentration following the arrest in accordance with Maryland Code, Courts & Judicial Proceedings Article (“CJ”) § 10–305.3 As an additional ground, defense counsel argued that the defendant had not been properly served with the charges as required by Maryland Rule 4–212(h), which provides that [t]he person issuing a citation, other than for a parking violation, shall serve it upon the defendant at the time of its issuance.”

The trial judge agreed that the officer had failed to comply with CJ § 10–305 and granted the defense motion on that ground as to the charge of driving while under the influence of alcohol.4 The court denied the defense motion with respect to that ground as to the remaining three charges. After denying the motion, the court expressed a willingness to discuss case law on the service of process issue. There followed a discussion between the court and counsel about an appellate decision that construed the rule governing service of criminal citations, and the court permitted the State to recall a police officer to testify briefly about how he served the citations that commenced the prosecution. The officer testified that he had given the citations to Ms. Kendall's mother, not Ms. Kendall. There was no testimony as to the substance or the merits of the charges in the citations.

After the testimony, the trial judge heard additional argument from counsel as to the adequacy of the service of the citations; none of that argument concerned Ms. Kendall's guilt or innocence of the charges. At the conclusion of the argument, the following colloquy took place:

THE COURT: I'm going to grant the motion.

[PROSECUTOR]: I would note, just for the record, Your Honor, that Judge Moylan addresses that exact same rule [in Darrikhuma v. State, 81 Md.App. 560, 568 A.2d 1150 (1990) ].5

THE COURT: I understand that but I'm looking at, I read the rule and it says “shall.” And the officer is there, Ms. Kendall is there. It's not a situation where she is unconscious or undergoing surgery, she's in fact, he's standing out in the hall and she is in a room. And instead of going in and serving her, he hands it to her mother. And I don't think that's what the rule contemplates....

[the trial court then referred to the Darrikhuma case and the practice of other officers serving citations in hospitals in other cases]

... In this case she was there, he was there, and he served somebody else and that's not what the rule says.

[PROSECUTOR]: I understand.

THE COURT: So I think that he, the rule in this case was not complied with.

[PROSECUTOR]: For the record to entertain that motion as a preliminary motion to dismiss?

THE COURT: Maybe, yeah.

[PROSECUTOR]: Thank you. Nothing further.

THE COURT: I'm going to grant this motion based upon, I think that this is one of those situations where although Judge Moylan has an analysis I think the facts in this case fly directly in the face of the requirements of the rule.

[PROSECUTOR]: Yes, Your Honor.

THE COURT: And there is no justification for not complying.

At the same time that he rendered his decision on the defense motion, the trial judge completed and signed a docket sheet for each charge.6 The docket sheets offer the following choices to record a disposition: “G” (guilty), “NG” (not guilty), “PBJ” (probation before judgment), “Dismissed,” “Merged,” “ABD” (abated by death), “NCR” (not criminally responsible), “NC” ( nolo contendere ), and “JA” (judgment of acquittal). The trial judge recorded “NG” as to each charge and, in that regard, did not differentiate his disposition of the driving while intoxicated charge for non-compliance with CJ § 10–305 from his termination of the other three charges for faulty service of process.

The State subsequently noted an appeal to the Circuit Court for Talbot County with respect to the termination of the prosecution of the three charges for improper service, characterizing the trial court's action as a “dismissal.” 7 Ms. Kendall moved to dismiss the appeal, arguing that the District Court action was an acquittal on those charges and that the State's action violated her constitutional and common law protections against double jeopardy.8

The Circuit Court held that the District Court had clearly acquitted Ms. Kendall on the first charge of driving while intoxicated—an issue not contested by the State. However, the Circuit Court found that the record was “sufficiently clear” that the trial court had not acquitted her of the other three charges. Rather, the Circuit Court held, the trial court's action was equivalent to granting a preliminary motion to dismiss for improper service. The “not guilty” verdicts on the abbreviated docket forms, the Circuit Court held, “were released in error.” 9 The Circuit Court therefore denied Ms. Kendall's motion to dismiss the State's appeal on double jeopardy grounds.

On April 20, 2012, we granted Ms. Kendall's petition for certiorari on her double jeopardy claim.10

Double Jeopardy

The federal Constitution provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” United States Constitution, Fifth Amendment.11 That protection is also a fundamental part of Maryland common law. See State v. Taylor, 371 Md. 617, 629–30, 810 A.2d 964 (2002). In a nonjury trial, jeopardy ordinarily attaches when the first witness is sworn, Crist v. Bretz, 437 U.S. 28, 37 n. 15, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978), although in some circumstances it may attach without the appearance of a witness if the defendant is “subjected to the risk of conviction.” Daff v. State, 317 Md. 678, 688–89, 566 A.2d 120 (1989) (acquittal following failure of prosecution witnesses to appear for trial). For each offense for which the defendant is thereafter acquitted, both the federal Constitution and State common law prohibit a second prosecution. See Benton v. Maryland, 395 U.S. 784, 796, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969) (federal Constitution); Gianiny v. State, 320 Md. 337, 342, 577 A.2d 795 (1990) (Maryland common law). “If the innocence of the accused has been confirmed by a final judgment, the Constitution conclusively presumes that a second trial would be unfair,” even if the acquittal was based on an “egregiously erroneous foundation.” United States v. DiFrancesco, 449 U.S. 117, 129, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980); see also Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962).12 Nor are double jeopardy protections vulnerable to judicial second thoughts. [O]nce the trier of fact in a criminal case, whether it be the jury or the judge, intentionally...

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