State v. Bailey

• Decision Date: 24 November 1980
• Docket Number: No. 4,4
• Parties: STATE of Maryland v. Lionel BAILEY et al. Sept. Term 1980.
• Court: Maryland Court of Appeals

Page 143

289 Md. 143

422 A.2d 1021

STATE of Maryland v. Lionel BAILEY et al.

No. 4 Sept. Term 1980.

Court of Appeals of Maryland.

Nov. 24, 1980.

Thomas P. Barbera, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on the brief), for appellant.

Alan J. Goldstein, College Park (Horowitz, Oneglia, Goldstein, Foran & Parker, P. A., College Park, on the brief), for Michael Grodsky Bass and Bernie Lee Simon, etc.

Barry H. Helfand, Helfand, Stein, Sperling, Bennett & Dameron, Rockville, on the brief for Eric Jay Bass, Michael Grandus and Steven Craig Smith.

William O. Lockwood, Quinn, Scanlin, Maiberger & Lockwood, Rockville, on the brief for Lionel Bailey.

Marvin P. Sadur, Sadur & Pelland, Chtd., Washington, D. C., on the brief for Harriet Broder Brill.

George E. Burns, Jr., Asst. Public Defender, Baltimore, on the brief for Kerry Lynn Ricker.

Peter I. J. Davis and Shaffer & Davis, Rockville, on the brief for David Michaels.

Louis Fireison and Fireison & Olshonsky, P. A., Bethesda, for Dean Gust Trakas.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

COLE, Judge.

In this case, we shall address the question this Court specifically reserved in Hayward v. State, 278 Md. 654, 366 A.2d 52 (1976) and Lohss and Sprenkle v. State, 272 Md. 113, 321 A.2d 534, (1974), i. e., whether the State may raise the propriety of a trial court's suppression of evidence on appeal from the dismissal of an indictment pursuant to Maryland Code (1974, 1978 Cum.Supp.), § 12-302(c)(1) of the Courts and Judicial Proceedings Article. We did not reach the question in Hayward because the trial court never ruled on the adequacy or validity of the warrant there involved. We reversed in Lohss and Sprenkle because the State had consented to the dismissals and was not an aggrieved party. In State v. Mayes, 284 Md. 625, 399 A.2d 597 (1979), we assumed, without deciding, that such an appeal would lie. We now find that the issue is clearly presented by the facts of this case and is ripe for decision.

The pertinent facts may be stated briefly. On February 16, 1979, an ex parte order, authorizing the interception of telephone communications, was issued for two telephone numbers in Montgomery County. The order provided that the interception was to commence as soon as practicable; that the authorization was to expire no more than thirty days from the day interception began; and that the intercept was to be conducted in such a way as to minimize the interception of communications not pertinent to the objective of the investigation. Absent from the order, however, was a directive to terminate the operation upon the attainment of the authorized objective.

The provisions of the order were followed scrupulously by the police, who made weekly reports to the issuing judge. The intercept was terminated on March 14, 1979, two days prior to the thirty-day required termination date and a report and return were made to the issuing judge on March 16, 1979. Indictments were obtained by the State and filed in the Circuit Court for Montgomery County. The accused subsequently filed motions to suppress which were granted based on the above noted omission in the wiretap order. The trial court also granted the defendants' motions to dismiss the indictments as the wiretap evidence had been relied upon by the grand jury in returning the indictments. The State appealed to the Court of Special Appeals and we granted certiorari prior to consideration by that court.

The State contends it has the right to appeal from a final judgment of dismissal and that in doing so it may challenge the grounds for such dismissal which in this case is the correctness of the trial court's rulings on the motions to suppress. The defendants counter by claiming that the State may not appeal from the granting of motions to suppress and may not contest the correctness of such ruling in an appeal of a motion dismissing an indictment.

I

We begin our consideration by recognizing that any right of appeal, in either a civil or criminal case, must find its source in an act of the legislature. Clark v. Elza, 286 Md. 208, 211-212, 406 A.2d 922 (1979); Estep v. Estep, 285 Md. 416, 422, 404 A.2d 1040 (1979); Smith v. Taylor, 285 Md. 143, 146, 400 A.2d 1130 (1979); Peat & Co. v. Los Angeles Rams, 284 Md. 86, 90, 394 A.2d 801 (1978); Lohss and Sprenkle v. State, supra. Maryland Code (1974, 1978 Cum.Supp.) § 12-302(c)(1) of the Courts and Judicial Proceedings Article provides: "In a criminal case, the State may appeal ... (f)rom a final judgment granting a motion to dismiss or quashing or dismissing any indictment, ...." It is apparent, then, under this unambiguous language, that unless the State acquiesced or consented to the dismissal as in Lohss, or by some other means has impeded its right to appeal, it may do so.

The question next posed in whether in appealing the State may argue the correctness of the trial court's ruling on the motion to suppress; for it is also the established rule in this jurisdiction that when a trial court suppresses evidence that it determines was illegally obtained, no right of appeal exists from the granting of that motion. Hayward v. State, supra, 278 Md. at 657, 366 A.2d 52. This is true whether the State moves to stay the proceedings and take an interlocutory appeal or waits until the accused has been acquitted. Therefore, to allow the State the right to appeal where the motion to dismiss is granted as the result of the trial court's sustention of a motion to suppress, is to permit the State to achieve indirectly that which it is forbidden to do directly. The rationale for that which at first blush appears inconsistent is rooted in the policies which underlie the rules.

The reason that the State is barred from appealing from a suppression order prior to an adjudication on the merits is that it is not a final judgment. Neal v. State, 272 Md. 323, 324-325, 322 A.2d 887 (1974); Pearlman v. State, 226 Md. 67, 70, 172 A.2d 395 (1961) (and cases cited therein). The statute specifically provides that the State may appeal "from a final judgment" and the court's ruling gives rise only to an interlocutory order. Thus, the State's right of appeal has not ripened. Our rationale has been to avoid piecemeal appeals, Peat & Co. v. Los Angeles Rams, 284 Md. 86, 394 A.2d 801 (1978); Jolley v. State, 282 Md. 353, 384 A.2d 91 (1978), and thereby assure an orderly administration of justice by allowing such appeals only where the ultimate issue has been resolved. ¹

But here, the State responds, is its dilemma. If it must wait for a final judgment, it has lost its right of appeal. If the accused is convicted, the question is moot; if he is acquitted, the State is barred by a longstanding policy.

It has always been a settled rule of common law that after acquittal of a party upon a regular trial on an indictment for either a felony or a misdemeanor, the verdict of acquittal can never afterward, on the application of the prosecutor, in any form of proceeding, be set aside and a new trial grant .... (State v. Shields, 49 Md. 301, 303 (1878)).

The State further complains that in addition to this strong common law tradition regarding acquittals, a right of appeal is barred by the double jeopardy clause of the fifth amendment of the United States Constitution. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). Once a determination has been made on the merits, a defendant has the constitutional right not to be exposed to a second trial for the same offense.

The State maintains, however, that in this case the court is not confronted with problems of interlocutory orders or acquittals because the order dismissing the indictments is final and no question of jeopardy or multiple punishment arises since there has been no trial on the merits. It contends that these defendants have no right to benefit from an error of law if the error can be corrected without subjecting them to a second trial.

The defendants' reply is that even if review is authorized, such authorization should not extend to a review of the motions to suppress. They reason that, since the legislature did not explicitly grant authority to the courts to review motions to suppress which are the grounds for motions to dismiss, the legislature never intended to authorize such inquiry and the Court should deny the State the opportunity to pursue a review of such suppression rulings.

Fundamental to a resolution of this issue is an understanding of the function and role of a motion to dismiss in our system of justice. It is now settled in Maryland under Rule 736, formerly Rule 725a, that defenses and objections to an indictment that were once raised by demurrers, motions to quash, pleas in abatement and certain other pleas are now raised by motions to dismiss. The rule further requires that any such defenses and objections based on defects in the institution of the prosecution, or in the indictment or information other than that it fails to show jurisdiction in the court or to charge an offense, may be raised only by motion before trial. Failure to file such defense prior to trial amounts to a waiver thereof, except that the court for good cause shown may grant relief from the waiver.

In passing upon the validity of a motion to dismiss an indictment, the appellate courts of this State have been steadfast in holding that: (1) the motion is not a proper vehicle for testing the admissibility of testimonial evidence at trial, Richardson v. State, 7 Md.App. 334, 255 A.2d 463 (1969); (2) an unlawful arrest is not a ground for quashing an indictment, Matthews v. State, 237 Md. 384, 206 A.2d 714 (1965); (3) a defendant is not entitled to dismissal simply because the prosecution acquired incriminating evidence in violation of law, even if tainted evidence was presented to the grand jury, Everhart v. State, 274 Md. 459, 337 A.2d 100 (1975); (4) an...