Pulley v. State
| Citation | 287 Md. 406,412 A.2d 1244 |
| Decision Date | 10 April 1980 |
| Docket Number | No. 81,81 |
| Parties | Rodney King PULLEY v. STATE of Maryland. |
| Court | Court of Appeals of Maryland |
Thomas J. Saunders, Asst. Public Defender, Alan H. Murrell, Public Defender, Baltimore, on the brief, for appellant.
Stephen Rosenbaum, Asst. Atty. Gen., Stephen H. Sachs, Atty. Gen., Baltimore, on the brief, for appellee.
Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.
We granted certiorari in this criminal cause to determine: 1) what time constraints, if any, are validly imposed by Maryland Rule 736, or otherwise, on a defendant asserting a claim that the pending prosecution against him is barred by the double jeopardy clause of the fifth amendment to the United States Constitution; and 2) whether, upon an immediate appeal being noted from the pretrial denial of such a claimed fifth amendment bar, a trial on the general issue conducted to final conclusion during the pendency of that appeal is a nullity. Since, even assuming that the time requirements of Rule 736 and its predecessor rules govern motions to dismiss an indictment for former jeopardy reasons, it is our conclusion that the motion in the present cause was timely asserted, we will with only limited discussion of the first question proceed to a disposition of the second issue presented. Moreover, as we conclude that the filing of the immediate appeal here did not render nugatory the subsequent criminal trial on the merits, and as we additionally determine that the present prosecution of the accused was not barred on double jeopardy grounds, we will affirm the judgment of conviction and sentence entered against him.
Petitioner Rodney King Pulley has been placed on trial before a jury four times in the Criminal Court of Baltimore on the grand jury indictment returned on December 18, 1974, charging him with both murder in the first degree and using a handgun in the commission of a felony. Extracted principally from the agreed statement of facts, we chronicle the relevant events, with a few to be added later, pertaining to each of these trials: the first, which took place in the fall of 1976, abruptly ended when Pulley's request that a mistrial be declared was granted by the presiding judge; the second trial occurred a short time after the first and terminated in a similar manner when the jury failed to agree; the third concluded with the petitioner being convicted on both counts of the indictment, but this result was aborted when the Court of Special Appeals determined that error had been committed in the lower court and awarded Pulley a new trial, Pulley v. State, 38 Md.App. 682, 382 A.2d 621 (1978); and the fourth was terminated in the trial court with the petitioner being convicted in August 1978 of felony-murder as well as of the handgun charge, and sentenced to concurrent terms of imprisonment for life, and fifteen years, respectively. Because of their significance to a resolution of the issues here presented, we mention some of the additional events which surround this last trial, the one which is the subject of this appeal. The record discloses that although Pulley has been continuously represented vigorously and ably by an attorney from the Public Defenders' office from at least January 9, 1975, to the present time, and was arraigned on the charges contained in the indictment on March 8, 1976, it was not until August 2, 1978, just moments before the fourth trial was scheduled to begin, that a motion to dismiss the indictment on double jeopardy grounds was interposed. By way of this motion, Pulley asserts that because of what took place at his first trial in 1976, the fifth amendment to the United States Constitution bars his ever again being placed on trial for the offenses alleged against him, and therefore the indictment must be dismissed. The trial judge, after conducting a hearing on the former jeopardy claim, concluded that Rule 736 was applicable and since the motion to dismiss the indictment was not filed within the time prescribed by that rule, with no "good cause" being shown to excuse this failure, she granted the State's motion Ne Recipiatur which effectively denied the indictment dismissal motion. When Pulley reacted to this ruling by noting an immediate appeal to the Court of Special Appeals, the judge, nonetheless, directed that the trial proceed on the merits, resulting in the petitioner's conviction and sentence.
On appeal the Court of Special Appeals agreed with the trial court that Rule 736 a 1 was applicable to the petitioner's dismissal motion on double jeopardy grounds, and concluded that since the motion was not timely filed in accord with subsection b of that rule, any right to claim a former jeopardy bar that may have previously existed was waived; consequently, the intermediate appellate court affirmed the conviction and sentence as entered by the Criminal Court of Baltimore. Pulley v. State, 43 Md.App. 89, 403 A.2d 1272 (1979). Even though we disagree with the rationale utilized in reaching this result, for other reasons to be explained presently, we will affirm the Court of Special Appeals' judgment.
We begin our discussion of the first issue by pointing out that the relevant parts of Rule 736, namely subsections a, b and c, as they now read were adopted by this Court on January 31, 1977, effective July 1 of that year. Those sections read:
a. Mandatory Motions.
A motion asserting one of the following matters shall be filed in conformity with this Rule. Any such matter not raised in accordance with this Rule is waived, unless the court, for good cause shown, orders otherwise:
1. A defect in the institution of the prosecution;
2. A defect in the charging document, other than its failure to show jurisdiction in the court or to charge an offense which defenses can be noticed by the court at any time;
3. An unlawful search, seizure, interception of wire or oral communication, or pretrial identification;
4. An unlawfully obtained admission, statement or confession;
5. A motion for joint or separate trial of defendants or offenses b. Time for Filing Mandatory Motions.
A motion filed pursuant to section a of this Rule shall be filed within 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the court pursuant to Rule 723 (), except when discovery is furnished on an issue which is the subject of the motion, then the motion may be filed within five days after the discovery is furnished.
c. Other Motions.
Any other defense, objection or request capable of determination before trial without trial of the general issue shall be raised by motion filed at any time before trial. 1
The order of this Court adopting the new Rule 736 in part provides that it "shall take effect and apply to all proceedings commenced on or after July 1, 1977, and insofar as practicable, to all proceedings then pending . . . ."
Prior to the effective date of this new rule, its predecessor before rescission, designated as Rule 725 b, regulated the time within which pretrial motions were required to be filed. It read:
Defenses and objections based on defects in the institution of the prosecution or in the indictment, other than that it fails to show jurisdiction in the court or to charge an offense, must be raised by motion before trial. Such motion shall include all such defenses and objections then available to the accused. Failure to present any such defense or objection as herein provided shall constitute a waiver thereof, but the court for cause shown may grant relief from the waiver. Lack of jurisdiction or the failure of the indictment to charge an offense shall be noticed by the court at any time during the proceeding. Any defense or objection capable of determination without the trial of the general issue may be raised before trial by motion. ((Emphasis added.))
Recalling that (i) the indictment in this case was returned by the grand jury on December 18, 1974, (ii) the appearance of Pulley's attorney was entered of record on January 9, 1975, and (iii) the defendant was personally before the court at the least by March 8, 1976, when he was arraigned and entered pleas to the charges, it is "impracticable" to apply Rule 736 to the case now before us. This obviously follows from the fact that thirty days after "the earlier of the appearance of counsel or the first appearance of the defendant before the court pursuant to Rule 723" (Md. Rule 736 b) expired long before the thirty day time stricture was even created; consequently, assuming either Rule 736, or its predecessor 725 b, has application to the present double jeopardy motion, as between these two rules, 725 b must control. For a case reaching a like conclusion under almost identical circumstances see Smith v. Fredericktown Bank, 258 Md. 141, 144, 265 A.2d 236, 238 (1970). Since Rule 725 b, assuming its survival for this case, permits pretrial motions to be filed at any time "before trial," the motion to dismiss the indictment now before us, having met that mandate, was seasonably made.
With the timeliness of the motion to dismiss the indictment on former jeopardy grounds established, we turn now to its merits, which are so patently frivolous that we can reject petitioner's claim of error from its denial almost out of hand. The record discloses that during the course of the first trial in 1976, the following answers to questions propounded by the State were given by a witness produced by the prosecution:
Q. Do you know where they were heading for as they left?
A. Not at that time. I knew they was going to Chuck's to see if they were to see if they could get a car, a ride Rodney (Pulley) was going to get a ride. From what I can understand.
Q. From whom did you understand Rodney (Pulley) was going to try and get this ride?
A. From my brother. I overheard them. They were talking...
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