State v. Moulden

• Decision Date: 24 February 1982
• Docket Number: No. 48,48
• Citation: 441 A.2d 699,292 Md. 666
• Parties: STATE of Maryland v. Melvin MOULDEN.
• Court: Maryland Court of Appeals

Page 666

292 Md. 666

441 A.2d 699

STATE of Maryland v. Melvin MOULDEN.

No. 48.

Court of Appeals of Maryland.

Feb. 24, 1982.

Diane G. Goldsmith, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on the brief), for appellant.

George E. Burns, Jr., Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellee.

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

ELDRIDGE, Judge.

Melvin Moulden was charged by criminal information with armed robbery, simple robbery and related offenses. He was tried twice in the Criminal Court of Baltimore, and the broad question before us now is whether, under all of the circumstances, further trial court proceedings are precluded by double jeopardy principles.

At the defendant's first trial, the number of potential jurors available was insufficient to permit both the defense and the prosecution to exercise all of the peremptory challenges allotted by Maryland Rule 753 in an armed robbery prosecution. As a result, the State elected not to prosecute the defendant on the armed robbery count. ¹ After the jury was sworn and after the presentation of all the evidence, but before closing arguments had been made, the defendant's counsel became ill, and the defendant, by another attorney, requested and was granted a mistrial.

Thereafter, the defendant was re-arraigned on the same criminal information and the case was again called for trial before a jury in the Criminal Court of Baltimore, but this time on both the armed robbery and the simple robbery counts. Before the second trial began, the defendant objected to being retried on the greater count, although not on the simple robbery count. The basis for the defendant's objection was that, at the beginning of the first trial, "the State abandoned the first count and, therefore, cannot call that count now ...." The State, on the other hand, denied that it had abandoned or nol prossed the armed robbery count and contended that it could proceed at the second trial on both the armed robbery and the simple robbery counts. The trial court made no ruling as to whether or not the State had abandoned the armed robbery count at the first trial. ² Instead, the trial court treated the matter as a double jeopardy issue and held that, under the appellate cases dealing with double jeopardy principles, the State was not precluded from calling the armed robbery charge.

After the presentation of evidence, the trial court instructed the jurors that they should first consider the armed robbery count, and, if they found that the defendant was guilty of armed robbery, then they "do not have to go on to the third count, the one which charges robbery because that is what we call a lesser count, and it would merge into the greater, the first (armed robbery) count." The trial court explained, however, that should the jury find the defendant not guilty on the armed robbery charge, it should proceed to consider the simple robbery count.

The jury returned a verdict of guilty of armed robbery and guilty of carrying a deadly weapon openly with intent to injure. In accordance with the court's instructions, the jury returned no verdict on the simple robbery count.

On appeal to the Court of Special Appeals, the defendant argued that the trial court had erred in not sustaining his objection to being tried on the armed robbery count. The defendant claimed that the second trial, on the armed robbery count, violated the prohibition against double jeopardy contained in the Fifth Amendment to the United States Constitution. The defendant pointed out that, at the first trial before the mistrial was declared, jeopardy had attached to the charge of simple robbery. He also pointed out that, because simple robbery is a lesser included offense of armed robbery, they are deemed the same offense for double jeopardy purposes under the required evidence test of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). ³ Therefore, according to the defendant jeopardy attached to the armed robbery charge also, and a conviction on the simple robbery charge at the first trial would have precluded a subsequent prosecution on the armed robbery charge. ⁴ Finally, the defendant contended that the mistrial related only to the simple robbery charge, permitting a retrial on that charge, but that it did not affect the armed robbery charge. Since, in the defendant's view, jeopardy had attached to the charge of armed robbery, he could not be prosecuted again on that charge. The defendant also argued that the evidence was insufficient to convict him on the deadly weapon charge.

The State in the Court of Special Appeals initially conceded that the "State's election (at the beginning of the first trial) to proceed on simple robbery was the equivalent of a nolle prosequi as to armed robbery ...." However, instead of then taking the position that the second trial on the armed robbery count was improper because the count had been nol prossed, the State agreed with the defendant's argument and conceded that the armed robbery conviction should be reversed on constitutional double jeopardy grounds. ⁵ The State argued, however, that even though the jury did not consider the simple robbery count, the jury's finding that the defendant was guilty of armed robbery necessarily meant that he was also guilty of simple robbery. The State requested that the Court of Special Appeals vacate the armed robbery conviction, order the trial court to enter a conviction for simple robbery, and order the trial court to impose a sentence for simple robbery.

The Court of Special Appeals, in an unreported opinion, reversed the judgment on the armed robbery count and affirmed the judgment on the count charging the carrying of a deadly weapon openly with intent to injure. The intermediate appellate court agreed with the position of the defendant and the State that the armed robbery conviction at the second trial violated the Fifth Amendment's prohibition against double jeopardy. The Court of Special Appeals refused to remand the case on the simple robbery charge with either directions for the entry of a guilty verdict as requested by the State or directions for a new trial. Instead, the court took the position that the jury's verdict operated as a judgment of acquittal on the charge of simple robbery, precluding any further proceedings on such charge. The Court of Special Appeals reasoned that the case was analogous to Block v. State, 286 Md. 266, 407 A.2d 320 (1979), in which it was held that a verdict of "not guilty" in a nonjury trial, even if rendered in violation of a procedural rule, was within the court's jurisdiction and, therefore, was final and a bar to further criminal proceedings on the same charge. After quoting from Block, the Court of Special Appeals stated in the present case:

"In the instant case the court had jurisdiction over both the subject matter and the appellant. From this basis the court specifically instructed the jury, in the disjunctive, to find the appellant either guilty of robbery with a deadly weapon, guilty of common law robbery or not guilty of either offense. That such an instruction, as regard to the robbery with a deadly weapon charge, was in error does not, for the same reasoning as set forth in Block v. State, supra, prevent it from operating as a judgment of acquittal for an offense which was not, pursuant to such instruction, considered by the jury."

This Court then granted the State's petition for a writ of certiorari which purported to present the following question:

"Whether Respondent may be convicted of simple robbery when

(a) His conviction of armed robbery was reversed by the Court of Special Appeals on double jeopardy grounds not affecting the charge of simple robbery and

(b) the jury returned no specific verdict on simple robbery in accordance with the trial court's instructions."

The State argues that, under the circumstances of this case, the reversal of the armed robbery conviction on double jeopardy grounds does not preclude further proceedings in the trial court on the lesser included offense of simple robbery. The State asks that the case be remanded to the trial court for entry of a guilty verdict and sentencing on the simple robbery charge. Alternatively, the State urges that the case be remanded for a new trial on the charge of simple robbery. The defendant, on the other hand, argues that, because the simple robbery charge was submitted to the jury and the jury failed to return a verdict on the charge, he "was in direct peril of being convicted" of simple robbery and may not now be tried on that charge under the principles of Green v. United States, 355 U.S. 184, 190, 78 S.Ct. 221, 225, 2 L.Ed.2d 199 (1957).

(a)

Preliminarily, it should be pointed out that the precise issue raised by the State's certiorari petition is not actually presented under the facts of this case. The question posited by the State includes the assumption that the reversal of the armed robbery conviction was required by double jeopardy principles. In our view, however, whether the armed robbery conviction at the second trial was invalid on double jeopardy or due process grounds should never have been reached by the Court of Special Appeals. Instead, as a threshold matter, the trial and conviction on the armed robbery count were erroneous because that count in the charging document had been nol prossed.

As previously noted, supra n. 2, the State's election not to prosecute on the armed robbery count was a nolle prosequi of that count. In Maryland, unlike some other jurisdictions, we have consistently drawn a sharp distinction between a nolle prosequi and a stet. Barrett v. State, 155 Md. 636, 638, 142 A. 96 (1928); State v. Morgan, 33 Md. 44, 46 (1870); Brady v. State, 36 Md.App. 283, 290, 374 A.2d 613 (1977); State v. Jones, 18 Md.App. 11, 33-37, ...