State v. Ferrell

Citation545 A.2d 653,313 Md. 291
Decision Date01 September 1986
Docket NumberNo. 97,97
PartiesSTATE of Maryland v. Raist Vernon FERRELL. ,
CourtCourt of Appeals of Maryland

Jillyn K. Schulze, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., on the brief), Baltimore, for appellant.

Mark Colvin, Asst. Public Defender (Alan H. Murrell, Public Defender, on the brief), Baltimore, for appellee.

Argued before ELDRIDGE, COLE, RODOWSKY, COUCH * and McAULIFFE, JJ., and MARVIN H. SMITH and CHARLES E. ORTH, Jr., Associate Judges of the Court of Appeals of Maryland (retired), Specially Assigned.

ELDRIDGE, Judge.

The issue in this case is whether a defendant's prosecution for use of a handgun in the commission of a felony or crime of violence is barred, under double jeopardy principles, by the defendant's prior conviction of armed robbery, where both prosecutions were based on the same act of robbery with a handgun.

The facts, taken largely from the parties' "Agreed Statement of Facts" under Maryland Rule 828 g, are as follows. The respondent, Raist Vernon Ferrell, was a participant in the robbery of Samuel Smith and others, on December 30, 1984, at an elementary school playground in Baltimore County. One of Ferrell's accomplices was armed with a handgun, but no other weapon was displayed by the robbers. Later on the day of the robbery, a District Court statement of charges was filed charging Ferrell with, inter alia, robbery and use of a handgun in the commission of a crime of violence.

About a month later, a twenty-one count indictment was filed in the Circuit Court for Baltimore County charging Ferrell with the armed robberies of Samuel Smith and the other victims. See Maryland Code (1957, 1987 Repl.Vol.) Art. 27, § 488. That indictment contained counts charging lesser included offenses within the armed robbery charges but did not contain any counts alleging use of a handgun in the commission of a felony or crime of violence in violation of Art. 27, § 36B(d).

As the scheduled trial date of June 19, 1985, approached, the prosecuting attorney and defense counsel began plea negotiations. During these negotiations, the prosecutor discovered that a handgun count had inadvertently been omitted from the armed robbery indictment. In an attempt to remedy this oversight, the Assistant State's Attorney filed, on June 18, 1985, the day before the robbery trial, a criminal information charging Ferrell with use of a handgun in the commission of a felony or crime of violence. The underlying felony or crime of violence was the armed robbery of Samuel Smith on December 30, 1984.

On June 19, 1985, the armed robbery indictment was called for trial after the county administrative judge had denied the State's motion for a continuance. Before the trial began, the State and Ferrell, who was then aware of the pending handgun prosecution which had been instituted by criminal information the day before, concluded a plea agreement which made no mention of the handgun charge. Ferrell agreed to plead guilty to a single count in the indictment charging the armed robbery of Samuel Smith in exchange for the State's nolle pros of all other charges in the indictment and the trial judge's acceptance of a recommendation that Ferrell's sentence not exceed three years imprisonment. The plea was then entered, and the court ordered a presentence investigation. The sentencing hearing was not held until October 1, 1985.

In the meantime, on July 10, 1985, Ferrell was arraigned on the information charging the handgun violation. On August 8, he filed a motion in the handgun case to dismiss the information, asserting, inter alia, double jeopardy and res judicata grounds. He also contended that the plea agreement should be viewed as a disposition of all charges, including the handgun charge. 1

The sentencing in the armed robbery case occurred on October 1, 1985. In light of a favorable presentence report on Ferrell, an 18-year-old with no prior criminal or juvenile record, the court imposed a five-year sentence but suspended all but six months thereof. The court placed Ferrell on supervised probation for five years following his release from incarceration.

The hearing on the motion to dismiss the information charging use of a handgun in the commission of a felony or crime of violence took place on October 10, 1985, before a different judge. At that hearing, the parties agreed that the basis of the handgun charge was the armed robbery of Samuel Smith to which Ferrell had pleaded guilty on July 19, 1985, that Ferrell was aware of the pending handgun charge when he entered his plea on June 19, that the handgun charge could have been included in the armed robbery indictment, and that the handgun charge had been omitted from that indictment due to an oversight. The prosecuting attorney acknowledged that, rather than proceeding with the plea agreement on June 19, the State could have nolle prossed the armed robbery indictment and reindicted Ferrell for both armed robbery and use of a handgun in the commission of a crime of violence or could have moved to consolidate the two charges.

The circuit court, relying on res judicata principles as embodied in the double jeopardy prohibition, as well as on language in Cook v. State, 281 Md. 665, 668-669, 381 A.2d 671, 673, cert. denied, 439 U.S. 839, 99 S.Ct. 126, 58 L.Ed.2d 136 (1978), concluded that the prosecution on the handgun charge was barred because of the armed robbery conviction. Accordingly, the court granted Ferrell's motion to dismiss.

On the State's appeal, the Court of Special Appeals affirmed, adopting basically the same reasoning as the trial court, State v. Ferrell, 67 Md.App. 631, 643-645, 508 A.2d 1023 (1986). Thereafter we granted the State's petition for a writ of certiorari.

In this Court, as well as in both courts below, the defendant Ferrell has advanced essentially three alternate arguments as to why the prosecution for use of a handgun in the commission of a felony or crime of violence is barred by the prior conviction for armed robbery.

Ferrell's principal argument is that, for purposes of the double jeopardy prohibition against successive trials for the same offense, the handgun offense and the armed robbery offense, when based on the same act or acts, should be deemed the same offense under the so-called "same evidence" or "required evidence" test of Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932); Gavieres v. United States, 220 U.S. 338, 342, 31 S.Ct. 421, 422, 55 L.Ed. 489 (1911); and Morey v. Commonwealth, 108 Mass. 433 (1871). See, in addition, e.g., Illinois v. Vitale, 447 U.S. 410, 416, 100 S.Ct. 2260, 2265, 65 L.Ed.2d 228 (1980); Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977); Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); Nightingale v. State, 312 Md. 699, 542 A.2d 373 (1988); State v. Frye, 283 Md. 709, 393 A.2d 1372 (1978); Newton v. State, 280 Md. 260, 373 A.2d 262 (1977); Thomas v. State, 277 Md. 257, 353 A.2d 240 (1976). If the handgun offense and the armed robbery are deemed the same offense under the required evidence test set forth in the above-cited cases, it is undisputed that, under the circumstances of this case, double jeopardy principles would bar the trial on the handgun charge following the armed robbery conviction. The State, relying upon the Court of Special Appeals' opinion in Couplin v. State, 37 Md.App. 567, 579-582, 378 A.2d 197 (1977), cert. denied, 281 Md. 735 (1978), argues that the handgun and the armed robbery offenses are not the same under the required evidence test.

Second, Ferrell points out that res judicata principles are applicable to criminal as well as civil cases, and are to some extent embodied in the prohibition against double jeopardy. See Cook v. State, supra, 281 Md. at 668-669, 381 A.2d at 673. Relying upon the Cook opinion, Ferrell argues that, because the " 'same evidentiary facts would sustain both' " criminal prosecutions, and because the matter of the defendant's " 'use of the same handgun in the same armed robbery' " was adjudicated in the prior proceeding, res judicata principles preclude the re-litigation of the same matter in a second proceeding. (Respondent's brief, p. 8). Both the circuit court and the Court of Special Appeals appeared to agree with this argument and based their decisions on this ground. The State, however, contends that, as long as the offenses are not the same under the required evidence test, as long as the State is not violating the principle of collateral estoppel by attempting to re-litigate an ultimate issue resolved in the defendant's favor at the prior trial, and as long as the prosecutions are in good faith, the State is entirely free to prosecute separately each charge arising from a particular transaction. (Petitioner's brief, pp. 8-12). The State invokes Cousins v. State, 277 Md. 383, 354 A.2d 825, cert. denied, 429 U.S. 1027, 97 S.Ct. 652, 50 L.Ed.2d 631 (1976), in which this Court rejected the so-called "same transaction" test as the ordinary test for determining when offenses would be deemed the same for purposes of the double jeopardy prohibition against successive trials for the same offense. 2 The defendant Ferrell's third argument is that, under the circumstances, the plea bargain in the armed robbery case should be treated as a disposition of all charges growing out of the same transaction.

We agree with the defendant's first contention that the armed robbery and the handgun violation must be deemed the same offense under the required evidence test. Consequently, the Double Jeopardy Clause of the Fifth Amendment and Maryland common law double jeopardy principles preclude the prosecution of Ferrell for use of a handgun in the commission of a felony or crime of violence after he had been tried and convicted of armed robbery. In light of this conclusion, we need not and do not reach the second and third arguments...

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