Mayne v. State, s. 890
| Decision Date | 07 May 1980 |
| Docket Number | 930,Nos. 890,s. 890 |
| Citation | 45 Md.App. 483,414 A.2d 1 |
| Parties | Lester Thomas MAYNE, Jr. v. STATE of Maryland (two cases). |
| Court | Court of Special Appeals of Maryland |
James R. White, Baltimore, with whom was C. Daniel Saunders, Chestertown, on the brief, for appellant.
Michael A. Anselmi, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., and Basil Wadkovsky, State's Atty., for Kent County on the brief, for appellee.
Argued before GILBERT, C. J., and MORTON and THOMPSON, JJ.
On August 9, 1978, the body of Valerie Anne Mayne was found at her home at Rock Hall, Kent County, Maryland. The home was owned by her estranged husband, Lester Thomas Mayne, Jr., the appellant. An autopsy revealed that death was caused by a single stab wound to the abdomen. A knife was discovered near the body by the officers who arrived in response to a telephone call from the appellant. On August 15, 1978, appellant insisted that his attorney inform the police that the knife found by the officers was not the same knife he had discovered when he found his wife's body because that knife had been removed by him. He had thrown it into Swan Creek from the vessel upon which he was living and which was docked nearby. The officers discovered the knife at the location described.
Appellant testified at trial that at or about 2 or 2:30 a. m. on August 9, he left the Village Tavern with his wife, after having a few drinks. At that time he was not intoxicated. After they arrived at her home they talked for approximately half an hour; after which he went to his boat. He remained on the boat for 15 or 20 minutes and then went back to the house where he found his wife "sitting in the living room on the couch crying." At that time, appellant told his wife that he wanted to end their marriage. He then left the house and returned to his boat. After staying on the boat for a brief period he again returned to the house. Upon his arrival he found his wife lying on the floor bleeding. He picked up a knife that was lying near her and threw it overboard when he went back to his boat. He then went to bed. Upon awakening, he returned to the house and started thinking about what he had done. He said, "I had taken away the knife and I knew it would look pretty bad on me." He then went to the kitchen, got a knife out of the drawer, put some of his wife's blood on it, and threw it on the floor. He stated he was sober at that time. He testified that when he initially discovered the body, he was upset and thought in his confused state of mind that by discarding the knife, no one would see that she had hurt herself.
On September 6, 1978, he was indicted in a seven count indictment charging (1) murder in the first degree; (2) murder in the second degree; (3) manslaughter; (4) assault with intent to murder; (5) assault and battery; (6) making a false statement to the police; and (7) attempted obstruction of justice. The case was tried in the Circuit Court for Caroline County to which it had been removed. The trial judge, K. Thomas Everngam, submitted to the jury counts 1, 2, 5 (as to battery) and 7. The other counts were either nolle prossed by the State or dismissed by the court. When the jury returned its verdict, the following occurred:
After the jurors were harkened unto their verdict, they were excused. Thereafter the State's Attorney inquired of the court as to whether or not there was anything officially in the record with respect to a mistrial as to the remaining counts, whereupon the court declared a mistrial as to count 2, murder in the second degree, and count 5, battery. Appellant received a five year sentence for attempted obstruction of justice.
Thereafter the case was moved to the Circuit Court for Cecil County, (Mackey, J.), where a motion to dismiss counts 2 and 5 on the basis of double jeopardy was denied. In this consolidated appeal, appellant alleges that his conviction for obstruction of justice in the Circuit Court for Caroline County was improper and that the denial of his motion to dismiss by the Circuit Court for Cecil County was in error.
We will answer the contentions in inverse order.
Appellant first argues that although Maryland Rule 759 d permits the court to take a partial verdict in a criminal case and provides that an accused may be retried on any count upon which the jury did not agree, in this case retrial should not be permitted because the trial judge did not state there was a mistrial until after the jury had been discharged. The argument not only lacks supporting authority but it lacks logic as well. The rule itself provides that there is a mistrial if the jury does not agree on all counts and, thus, the declaration by the court was entirely superfluous. 1
Appellant argues secondly that having been acquitted of the first count which set forth the statutory language of first degree murder, he should by operation of law be found not guilty of second degree murder. He relies on Blackwell v. State, 278 Md. 466, 365 A.2d 545 (1976), cert. denied, 431 U.S. 918, 97 S.Ct. 2183, 53 L.Ed.2d 229 (1977), which stated that murder indictment for first degree murder also included charges of second degree murder and manslaughter. He argues that double jeopardy precludes another trial. He cites a long line of Maryland cases ending with Bennett v. State, 229 Md. 208, 182 A.2d 815 (1962) to show that once an accused is acquitted he cannot be retried. The fallacy with this argument is that there was no acquittal as to murder in the second degree. The law is well settled that "(w)here the meaning of the verdict is so unmistakable, mere inartificiality in its form will not be sufficient to defeat justice by nullification of a verdict which plainly declared the intent of the jury . . . ". Simmons v. State, 165 Md. 155, 169, 167 A....
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