Pinkett v. State, 631

• Decision Date: 02 March 1976
• Docket Number: No. 631,631
• Citation: 352 A.2d 358,30 Md.App. 458
• Parties: Tyrone Wayne PINKETT v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 458

30 Md.App. 458

352 A.2d 358

Tyrone Wayne PINKETT v. STATE of Maryland.

No. 631.

Court of Special Appeals of Maryland.

March 2, 1976.

Certiorari Denied May 25, 1976.

John W. Sause, Jr., Dist. Public Defender, with whom was Alan H. Murrell, Public Defender on the brief, for appellant.

Michael James Kelly, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Sidney S. Campen, Jr., State's Atty., for Talbot County and Philip C. Foster, Asst. State's Atty., for Talbot County on the brief, for appellee.

Argued before ORTH, C. J., and POWERS, LOWE and MELVIN, JJ.

ORTH, Chief Judge.

Tyrone Wayne Pinkett was charged with the commission of three offenses under separate charging documents-two statements of charges, and an arrest warrant-filed in the District Court in Talbot County. Detective Corporal Walter E. Chase of the Easton Police Department prepared and executed the statements of charges on 15 November 1974. The applicant was Lt. Edward Blessing of that Department. Statement of Charges No. 063764 alleged that on 14 November 1974 at 2255 hours at Harrison Street, Easton Maryland, Pinkett unlawfully possessed a concealed weapon, to wit, a sawed-off shotgun in violation of Code, art. 27, § 36(a). ¹ The 'factual information or observations (probable cause)' set out by Blessing as the basis for the charge were: 'On 11-14-74 at 2255 hrs. the applicant stopped a 1968 Ford, Md. Tag #6841 for a Motor Vehicle Violation in Easton, Md. While making the stop the defendant appeared to be putting something under the seat or on the floor. A consent search was granted by the operator of the car for the applicant to search under the front seat. In doing so I found a sawed off Shot Gun and shells to fit the gun. The defendant was sitting in the rear left side of the car.'

Statement of Charges No. 063765 alleged that on the same date, time and place, Pinkett 'did unlawfully possess a sawed off Shot Gun, and other items mentioned above, the charge is being a Rogue and Vagabond Art. 27 Sec. 490.' The 'other items mentioned above' were set out in the 'factual information and observations' of Blessing, stated as the probable cause for the charge. Blessing recounted the stopping of the car and the actions of Pinkett. He added: 'After finding the gun I observed several nylon stockings, several pairs of gloves and clothes line rope. In the past several weeks there has been armed robberies in this area where the Police Investigations have revealed items such as has been mentioned were used while committing the crimes.'

On each Statement of Charges, Pinkett stated, under date of 15 November 1974, that he had read, or that there had been read to him, the contents of the document and acknowledged that he had received a copy of it. Return was made to the judicial office on 16 November.

The Arrest Warrant was issued by a judicial officer on 17 November 1974 on the sworn application of Chase. It alleged that Pinkett 'did on or about November 14, 1974 at Talbot County aforesaid: Unlawfully wear, carry or knowingly have in his possession a Hand-Gun; and him, the said Tyrone Wayne Pinkett, allegedly having been convicted of a crime of violence, in violation of Art. 27, Sec. 445(c).' The formal charge was designated as a violation of that statute. Chase certified that he executed the warrant at 7:40 P.M. on 17 November 1974 at 'Sheriff's Dept.' The judicial officer certified that it was returned on 18 November. ²

Pinkett was tried in the District Court on 7 February 1975 and convicted on all three charges. ³ He was sentenced to 3 years on the concealed weapon conviction and to a concurrent 3 year sentence on the rogue and vagabond conviction. A sentence of 3 years was imposed on the conviction of possessing a handgun after having been convicted of a crime of violence, to run consecutively to the other sentences. Pinkett appealed.

The appeal was set for trial in the Circuit Court for Talbot County on 2 May 1975. What happened thereafter is a procedural nightmare with serious substantive consequences. When Pinkett appeared in court on 2 May 1975, the State filed a criminal information charging him with four offenses. This charging document informed the court that on 14 November 1974, Pinkett:

I-'unlawfully did wear, carry or knowingly transport a handgun, to wit: a short barreled shotgun, in a vehicle while travelling upon the public roads and highways in this State', in violation of art. 27, § 36B(b);

II-was a rogue and vagabond in violation of art. 27, § 490;

III-'unlawfully did wear, carry or knowingly have in his possession a pistol, to wit: a .22 caliber revolver, the said Tyron Pinkett having been convicted of a crime of violence', in violation of art. 27, § 445(c);

IV-'unlawfully did carry or knowingly transport said handgun in a vehicle travelling upon the public roads and highways in this State' in violation of art. 27, § 36B(b).

The State informed the court that it wished to arraign Pinkett on the information and 'to nolle pros the charging document which had been transferred to the Circuit Court from the District Court, an arrest warrant, on which a conviction has previously been obtained. We will nolle pros the arrest warrant first.' Upon inquiry by the court, the State explained that it wished to take this action because the charging document 'lists the improper section number for the conviction. The sentence on the conviction will indicate it was to be served concurrently with another conviction, so the actual length of sentence in the District Court is not altered by this.' The State moved 'to nolle pros statement of Charges No. 063764 from the District Court' and the motion was granted. ⁴ The record does not disclose that Pinkett consented to the nolle prosequi. Defense counsel said that before a plea was tendered he desired to make a statement to clarify the record. He said:

'As read by the Clerk, counts 1 and 4, and any counts for which the defendant has never been tried and, therefore, I am assuming and want for clarification on the record that the Circuit Court for Talbot County is thus assuming original jurisdiction as to counts 1 and 4 and counts 2 and 3 are here de novo from the District Court, and will be tried de novo.'

The prosecutor said, 'The State agrees with that' and added, 'I believe Mr. Moore (Philip W. Moore, 3rd, Esq., defense counsel) feels he has a direct appeal right as to any new charges but would not have an appeal right as to the de novo charges.' This statement went unanswered. Pinkett was arraigned on the information, pleaded not guilty and prayed a trial by jury. Trial was set for 13 May.

The case came on for trial as set. Before trial commenced, at a bench conference out of the presence of the jury, the court suggested that the 4th count be amended by adding 'to wit: a .22 caliber revolver' after the word 'handgun', to distinguish it from a short barreled shotgun. This was subsequently done in open court without objection. At the bench conference defense counsel told the court: 'It is my intention to file a motion to dismiss the two transportation charges as soon as the jury is empanelled because we can't do it until then on the grounds of double jeopardy.' The prosecutor said: 'The plea of double jeopardy doesn't arise until some testimony is taken, does it. The way I understand it, as soon as the jury is empanelled.' The court suggested that after the jury was empanelled, the motion could be heard out of their presence. In open court, Pinkett waived re-arraignment on all counts as amended. The jury was duly selected, placed in the jury box and sworn. All witnesses were sequestered.

Out of the jury's presence, Pinkett moved the court 'to dismiss the criminal information charging (him) with violations of Article 27, § 36B(b).' ⁵ These violations were charged in counts I and IV of the information. Pinkett claimed he was placed twice in jeopardy as to them when the jury was empanelled because he had already been charged and convicted on them in the District Court. He claimed that he had 'been tried once under all of the facts and with the exact same proof that the State intends to try (him) a second time for charges involving Art. 27, § 36B(b). As a result, (he) is now being placed in double jeopardy for the handgun charges, and the two new informations charging violation of Art. 27, § 36B(b) should be dismissed.' Pinkett pointed out in his motion:

'(I)f the State is permitted to try the Defendant on the new charges, then the intent of the District Court Article allowing District Court criminal trial with a de novo appeal to the Circuit Court is being defeated, because the State cannot by its actions allow appeals as a matter of right by adding new charges, or conversely, inhibit and otherwise unfairly influence the District Court Appellate processes by threatening to add new charges after a complete and total trial on the old charges.'

After argument of counsel, the court denied the motion. ⁶

The trial proceeded. Motions for judgment of acquittal were made and denied at the close of evidence offered by the State and at the close of all the evidence. The jury, being duly charged, convicted Pinkett under all four counts of the information. He was sentenced to one year on count I, to a three year sentence on count II, to run consecutively to the sentence imposed on count I, and to a three year sentence on count III, to run consecutively to the sentences imposed on counts I and II. No sentence was imposed on count IV, the court stating that 'sentence be suspended' thereon. Pinkett was to serve a total time of seven years, commencing with 14 November 1974-'You have been given full credit for the time you have been lodged in jail pending the disposition of this case.' Pinkett noted a direct appeal to this Court.

Summary

Charging Documents Tried in District Court

Statement of Charges No. 063764:

possession of a concealed weapon, a sawed off shotgun; art. 27, § 36(a)....