Mauk v. State

• Decision Date: 01 September 1990
• Docket Number: No. 1957,1957
• Citation: 605 A.2d 157,91 Md.App. 456
• Parties: Eric Joseph MAUK v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 456

91 Md.App. 456

605 A.2d 157

Eric Joseph MAUK v. STATE of Maryland.

No. 1957, Sept. Term, 1990.

Court of Special Appeals of Maryland.

April 29, 1992.

Emory E. Tamplin, Jr., Cambridge, for appellant.

Valerie Smith, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Michael C. Maloney, State's Atty. for Dorchester County, Cambridge, on the brief), for appellee.

Argued before MOYLAN, ALPERT and MOTZ, JJ.

MOYLAN, Judge.

The appellant, Eric Joseph Mauk, poses for us a cleverly crafted and deceptively attractive but ultimately meritless double jeopardy issue. On September 20, 1990, he stood trial before a Dorchester County jury on a multi-count indictment. What is here pertinent is that 1) on Count 1 charging the possession of marijuana with intent to distribute, there was a hung jury and 2) on Count 2, charging the simple possession of marijuana, the jury returned a verdict of guilty. ¹ Judge Richard D. Warren declared a mistrial as to Count 1. On September 28, Judge Warren sentenced the appellant to a nine-month term of imprisonment for the possession of marijuana. The appellant has now served that sentence.

On October 11, the State set a new trial date of November 20 for the possession of marijuana with intent to distribute charge, as to which the mistrial had been declared on September 20 because of the hung jury. The appellant moved to have that charge dismissed on grounds of double jeopardy. Judge Warren denied the motion. This interlocutory appeal followed. ²

The appellant claims that for the offense of simple possession, he has already been in jeopardy. He is right. He has not only been jeopardized, he has actually been convicted, sentenced, and punished for that offense. He further claims that simple "possession" and "possession with intent to distribute" are the same offense within the contemplation of double jeopardy law. Again, he is right. He finally claims that to retry him now for possession with intent to distribute would be, therefore, to place him twice in jeopardy for the same offense, which the Constitution forbids. That argument certainly sounds plausible--at first glance. We will try to take it apart and see where it goes wrong. "The Same Offense"

We agree with the appellant in his statement of his major premise. "Possession with intent to distribute" is, indeed, the greater, inclusive offense, subsuming within it simple "possession," which is a lesser, included offense. Under the circumstances, the two offenses qualify as manifestations of "the same offense" within the contemplation of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) and Morey v. Commonwealth, 108 Mass. 433 (1871).

Every element of simple possession is also a constituent element of possession with intent to distribute. The more aggravated possession, however, includes the incremental mens rea of an intent to distribute, to wit, an additional element. By what is now a hornbook definition, since one of the offenses (simple possession) does not possess any independent element not shared by the other (possession with intent to distribute), the two offenses, albeit not identical, are treated as "the same offense." In his construction of his syllogism, the appellant is thus far absolutely on the mark.

What Does Being "The Same Offense" Portend?

The problem with the appellant's syllogism is in his selection of a minor premise. Having identified the relationship between the greater offense and the lesser as one of being but separate manifestations of the "same offense," he wishes then to set forth the consequence that such a relationship must necessarily portend. His problem is that such a relationship does not necessarily and universally portend any fixed or single consequence. The relationship, rather, will produce different results in different situations.

In one, the relationship may be influential, with the fate of the first offense modifying and circumscribing what happens in the case of the second. In a second situational context, by contrast, the relationship will be foreclosing in its force, with the fate of the initial offense controlling totally the fortunes of its sibling. In yet a third, however, the relationship will be nugatory in effect, with the fate of the first offense having no impact at all upon the outcome as to the second. The three very different situational contexts are those involving:

1. Multiple punishment,

2. Sequential jeopardy,

3. Continuing jeopardy.

The appellant's problem is that he points to an impact that would be legally and logically compelling in a context involving sequential jeopardy but he misapplies it to a very different context involving continuing jeopardy. His syllogism is a valid one and would be persuasive in an appropriate setting. It is, however, inapposite in the setting of this case. The appellant's argument is in the right pew but the wrong church.

It behooves us to consider more fully the possible applicability of the Blockburger test in each of the three situational contexts. By way of brief prelude, it will be found applicable to multiple punishment problems (generally speaking) as a rule of statutory construction. It will be found applicable to sequential jeopardy problems as a measuring rod for issues of actual constitutional dimension. It will be found inapplicable to continuing jeopardy problems, not through any fault of its own but for the larger reason that the double jeopardy protection itself is inapplicable.

Multiple Punishment

A multiple punishment problem could conceivably arise in this case, although it has not yet done so. If the appellant is, upon his retrial, convicted of the possession of marijuana with the intent to distribute, he would face, under Article 27, § 286(b)(3), a maximum penalty of five years imprisonment plus a fine of $15,000. If the sentencing judge were to impose that maximum term of imprisonment, without giving credit for the nine-month sentence already imposed and served for simple possession, the appellant would, indeed, have suffered the multiple punishment for the same offense forbidden by the Blockburger principle. The total sentence of five years and nine months for the two manifestations of "the same offense" would exceed by nine months the legislatively prescribed maximum penalty for such offense.

On the very day, June 23, 1969, that the Supreme Court in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), deemed the double jeopardy clause of the Fifth Amendment to be incorporated in the due process clause of the Fourteenth Amendment, thereby making it applicable to the states, it also decided North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). North Carolina v. Pearce has ever since been universally accepted as having provided the classic statement of the multiple purposes served by the double jeopardy clause:

"That guarantee has been said to consist of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense. This last protection is what is necessarily implicated in any consideration of the question whether, in the imposition of sentence for the same offense after retrial, the Constitution requires that credit must be given for punishment already endured." (footnotes omitted).

395 U.S. at 717, 89 S.Ct. at 2076. ³

In terms of that third purpose and assuming other double jeopardy purposes are not engaged, what Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977), had to say about the sentencing problem in the context of consecutive sentences imposed at a single trial applies with equal validity to the problem of consecutive sentences generally:

"Where consecutive sentences are imposed at a single criminal trial, the role of the constitutional guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense." (emphasis supplied).

There is a big methodological difference between fulfilling the first two expectations of the clause and fulfilling the third. When either of the first two constitutional protections described by North Carolina v. Pearce is involved, the double jeopardy shield is brought forth in its pristine and traditional shape, as a plea in bar. In that capacity, it is the present-day constitutional incarnation of the two common law pleas in bar of autrefois acquit (at an earlier time, he was acquitted) and autrefois convict (at an earlier time, he was convicted). In a classic sequential setting, the history of an earlier jeopardy, which had initially attached and then been suffered and finally been terminated by a verdict of either acquittal or conviction, is pleaded as an historic fact that should bar any subsequent attachment of a forbidden second jeopardy. This quintessential character of the double jeopardy defense as a plea in bar is what we sought to communicate in State v. Garner, 90 Md.App. 392, 399, 601 A.2d 142 (1992):

"Indispensable to any understanding of double jeopardy law is the appreciation that, both in origin and in essential character, a double jeopardy defense is not a defense upon the merits. It is a defense in bar. It applies in a sequential setting. Its purpose is to prevent the prosecution from instituting new proceedings following the termination, through a verdict of either guilty or not guilty, of earlier proceedings. It is interposed as a plea in bar to prevent the initiation of new and sequential jeopardy following the termination of an earlier jeopardy." (emphasis in original).

It is only when serving the third purpose, the avoidance of multiple punishment for the same offense, that the double jeopardy protection does not always appear as a plea in...