Middleton v. State

• Decision Date: 01 September 1987
• Docket Number: No. 1488,1488
• Citation: 545 A.2d 103,76 Md.App. 402
• Parties: Vincent C. MIDDLETON v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 402

76 Md.App. 402

545 A.2d 103

Vincent C. MIDDLETON v. STATE of Maryland.

No. 1488, Sept. Term, 1987.

Court of Special Appeals of Maryland.

Aug. 5, 1988.

Patrick D. Hanley, Assigned Public Defender, Towson (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellant.

Richard B. Rosenblatt, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, Andrew L. Sonner, State's Atty. and John J. McCarthy, Asst. State's Atty. for Montgomery County on the brief, Rockville), for appellee.

Argued before BISHOP, GARRITY and ROBERT M. BELL, JJ.

GARRITY, Judge.

We shall examine the issue of whether the vacation of a guilty verdict as a predicate to an award of a new trial bars reconsideration, and ultimately reinstatement of the verdict, on the grounds of double jeopardy.

Factual Background

At 2:15 a.m. on July 9, 1986, the seventeen-year-old victim voluntarily accompanied Vincent C. Middleton (the appellant), after meeting him outside a bar, to his apartment located in Montgomery County. Once there, the victim helped the appellant fold his clothing and carry it into his bedroom where she began watching television. The appellant then left the room and returned clad only in his boxer shorts.

The prosecutrix testified that when she cautioned the appellant "not to get too comfortable," and told him that she was "ready to go," the appellant laid down on the bed and dragged her down on top of him. The appellant attempted, unsuccessfully, to remove the victim's clothing. After the victim refused the appellant's request to engage in sexual activity, the appellant withdrew a handgun from a duffle bag. The victim testified that the appellant forced her into a closet, closed its door and brandished a handgun in her face while threatening to use it if she did not submit. The young victim testified that she attempted to scream, but nothing came out. She subsequently submitted to the appellant and engaged in sexual activity, including vaginal intercourse. Upon being taken to the home of a friend, she called the police.

The appellant was charged with having committed first and second degree rape, first and second degree sexual offense, attempted first and second degree sexual offense, and of use of a handgun in the commission of a crime of violence. He was tried by a jury in the Circuit Court for Montgomery county (Weinstein, J., presiding). The jury convicted the appellant of first ¹ and second degree rape and attempted first and second degree sexual offense, but acquitted him of first and second degree sexual offense, and use of a handgun in the commission of a crime of violence. The appellant moved for a new trial. One of the arguments he asserted in support of the motion was that his acquittal on the handgun charge "should have precluded the jury from finding guilt as to the first degree rape charge."

When the matter came before the court for disposition and for hearing on the new trial motion, in addition to arguing the merits of the new trial motion, the appellant orally moved to strike the first degree rape guilty verdict. Once again, he relied upon the inconsistency of the jury's findings as to the first degree rape and the handgun charge. After hearing from the State, apparently agreeing with the appellant's argument, the court vacated the first degree rape verdict over the State's objection, ruling:

All right. With respect to your Motion For a New Trial, that is denied.

With respect to your motion regarding the use of a handgun in the commission of the rape in this case, raising it from the second to first degree rape, I find that your point is well taken, and I grant your motion as to the first degree rape charge.

During a discussion that followed between the court and both counsel, defense counsel maintained that the court's ruling was tantamount to a verdict of not guilty on the first degree rape charge. Although the trial judge, during the discussion, acknowledged that he had found the verdicts to be inconsistent, ² he denied that his ruling was in effect a finding of not guilty as to first degree rape. ³ He took the position that he had merely granted the appellant's motion for new trial as to first degree rape. Agreeing with the appellant that he had vacated the verdict as to the first degree rape charge, the trial judge ultimately stated:

I do not find him not guilty. I find that the verdict was inconsistent vis-a-vis the 1st Degree Rape Charge. Your motion with respect to that is granted. ⁴

The court having imposed sentence as to the remaining convicted counts, the appellant noted a timely appeal. Prior to the appellant's noting of the appeal, however, the State filed a motion to reconsider the court's ruling vacating the first degree rape verdict. While the appellant's appeal was pending, the court held a hearing on the State's motion, which it granted and then reinstated the conviction of first degree rape. The appellant was then sentenced on that charge and this appeal followed. ⁵

Discussion of Law

The only issue presented on this appeal is whether, having vacated a jury's guilty verdict on the grounds of inconsistency as a predicate to the award of a new trial, the trial court could ultimately, without offending the prohibition against double jeopardy, reinstate that verdict. For resolution of this issue, we look to the effect of the trial court's actions and the decisions in Pugh v. State, 271 Md. 701, 319 A.2d 542 (1974) and Block v. State, 286 Md. 266, 407 A.2d 320 (1979). ⁶

In Pugh, the appellant had been charged in two indictments with violations of narcotics statutes. Indictment # 2110 charged him with possession of cocaine, and indictment # 2111 charged him with possession of cocaine with an intent to distribute. Pugh elected to be tried by the court instead of a jury. In rendering his verdict, the trial judge stated:

So, the verdict is guilty on the first count. Does anybody have the indictment? Guilty in 2110, and not guilty in 2111. I don't think it's in sufficient quantity.

Immediately subsequent to the pronouncement of "not guilty" as to indictment 2111, the following colloquy took place.

MR. IAMELE: 2111 would be the distribution charge. That's what the State is pressing in this case.

THE COURT: I would be glad to hear from you.

MR. IAMELE: I believe that we have evidence, ample evidence of sale. That's exactly what the State is going after. This man is a distributor of cocaine, and on the night of the 18th of February-- THE COURT: I see what you mean.

MR. IAMELE: --he made a sale.

THE COURT: I was thinking of it in a different way. So, the verdict is guilty of 2111, because it was an actual sale. What I was thinking of was the possession in quantity to indicate a distribution....

The trial court thereupon sentenced Pugh to 12 years imprisonment on the distribution charge. On appeal, the appellant claimed that the evidence was insufficient to convict him and that he had been twice placed in jeopardy.

Writing on behalf of the Court, Judge Eldridge stated:

We agree with the argument in the State's brief that where a judge "obviously inadvertently" says one thing when he means something else, and immediately thereafter corrects himself, a "verdict" would not be rendered for purposes of Rule 742 or the prohibition against double jeopardy. However, the trial judge's initial statement of "not guilty" in this case was not "inadvertent" or a "slip of the tongue." Instead it represented an intended decision based upon the judge's view that the prosecution had failed to prove possession of cocaine in sufficient quantity as to indicate an intent to distribute. When the prosecution then argued that its case was grounded upon an actual sale, rather than an inference of distribution based on possession of the drug in sufficient quantity, the trial judge changed his mind. He decided that, in light of this theory of the prosecution, the evidence was sufficient to show distribution or an intent to distribute the drug.

Once a trial judge intentionally renders a verdict of "not guilty" on a criminal charge, the prohibition against double jeopardy does not permit him to change his mind.

Pugh v. State, 271 Md. at 707, 319 A.2d 542.

The Block case also dealt with a situation wherein a trial judge reversed his decision after having intentionally rendered a verdict of not guilty. At the conclusion of Block's trial, the District Court judge rendered a verdict of guilty but deferred imposing sentence. Eleven days later, the defendant filed a motion requesting that the trial judge reconsider the verdict. The trial judge in open court stated that he had reconsidered the verdict in the defendant's case, and he then rendered a verdict of not guilty. The following month, the prosecuting attorney filed a motion asking the judge to set aside the not guilty verdict and to reinstate the guilty verdict. Two months later, the trial judge struck his not guilty verdict, but instead of reinstating the prior guilty verdict, ordered that the defendant stand for a new trial. Eventually, the case, pursuant to a prayer for jury trial, was transferred to the Circuit Court for Montgomery County where Ms. Block filed a motion to bar the new trial on the ground of double jeopardy. After a hearing, the circuit court denied the motion and the Court of Appeals reviewed the case pursuant to a writ of certiorari.

Citing the Pugh decision, Judge Eldridge observed:

[T]his court flatly held that when a trial judge "intentionally renders a verdict of 'not guilty,' the verdict is final and the defendant cannot later be retried on or found guilty of the same charge." ... We pointed out in Pugh that from the earliest times, it has been settled that a verdict of not guilty "cannot be set aside. Any attempt to do so by the prosecutor is barred by what at common law was the plea of autrefois acquit." ....

Block, 286 Md. at 268, 407 A.2d 320.

The Court held that the District Court had jurisdiction...