State v. Richard

• Decision Date: 15 December 2020
• Docket Number: Docket: Pen-20-45
• Citation: 2020 ME 136
• Parties: STATE OF MAINE v. RICHARD V. SHIREY
• Court: Maine Supreme Court

2020 ME 136

STATE OF MAINE v. RICHARD V. SHIREY

Docket: Pen-20-45

MAINE SUPREME JUDICIAL COURT

Argued: September 16, 2020

December 15, 2020

Reporter of Decisions

Panel: MEAD, GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.

HORTON, J.

[¶1] Richard V. Shirey appeals from an interlocutory order of the Superior Court (Penobscot County, Anderson, J.) denying his motion to dismiss on double jeopardy grounds a superseding indictment against him. Shirey argues that the dismissal of the original indictment against him after the jury was empaneled and sworn bars the State from charging him again with the same offense. We affirm the judgment, taking this opportunity to clarify the implications of a defective indictment for purposes of the Double Jeopardy Clauses of the Maine and United States Constitutions. U.S. Const. amends. V, XIV; Me. Const. art. I, § 8.

I. BACKGROUND AND PROCEDURAL HISTORY

[¶2] In September 2018, a grand jury indicted Shirey on one count of possession of a firearm by a prohibited person (Class C), 15 M.R.S. § 393(1)(A-1)(3) (2020). Shirey proceeded to trial on this indictment on August 21, 2019. The indictment charged, in relevant part,

On or about August 11, 2017, in Burlington, Penobscot County, Maine, RICHARD SHIREY, did own, possess or control a firearm, having been convicted of or found not criminally responsible by reason of mental disease or defect of committing a crime under the laws of Pennsylvania punishable by imprisonment for one year or more.

(Emphasis added.) However, the criminal statute defining the firearm possession offense charged provides,

A person may not own, possess or have under that person's control a firearm, unless that person has obtained a permit under this section, if that person . . . [h]as been convicted of committing or found not criminally responsible by reason of insanity of committing . . . [a] crime under the laws of any other state that, in accordance with the laws of that jurisdiction, is punishable by a term of imprisonment exceeding one year.

15 M.R.S. § 393(1)(A-1)(3) (emphasis added). Immediately after the jury was sworn, Shirey moved to dismiss the indictment for failure to state an offense under Maine law. See M.R.U. Crim. P. 12(b)(2).

[¶3] The court granted Shirey's motion, concluding that the indictment failed to allege a crime due to the incorrect recitation of the prior conviction element of the offense. The court reasoned that the indictment would allow Shirey to be convicted upon proof that he had previously been convicted of a crime that is punishable by a term of imprisonment of precisely one year, even though the firearm possession statute defines the offense to require proof of a prior conviction for a crime punishable by a term of imprisonment exceeding one year. 15 M.R.S. § 393(1)(A-1)(3).

[¶4] The State soon thereafter convened a second grand jury, which indicted Shirey on the instant charges.¹ Shirey moved to dismiss Counts 1 and 2 of the superseding indictment on double jeopardy grounds. The court denied the motion, concluding that Shirey was never placed in jeopardy at the trial on the original indictment because (1) the court lacked subject matter jurisdiction over the original indictment and (2) jeopardy cannot attach "until a proceeding begins before a trier [of fact] having jurisdiction to try the question of guilt or innocence of the accused." Shirey timely appealed the order denying his motion to dismiss. See 15 M.R.S. § 2115 (2020); M.R. App. P. 2B(b)(1); State v. Jandreau,2017 ME 44, ¶ 6 n.3, 157 A.3d 239 (stating that the denial of a motion to dismiss based on double jeopardy is immediately appealable).

II. DISCUSSION

[¶5] The United States and Maine Constitutions prohibit a defendant from being "twice put in jeopardy of life or limb" for the same offense.² U.S. Const. amends. V, XIV; Me. Const. art. I, § 8; see Benton v. Maryland, 395 U.S. 784, 794 (1969). The Double Jeopardy Clause of each constitution applies if (1) jeopardy has attached in a criminal trial, (2) jeopardy has terminated, and (3) the defendant is placed in jeopardy again for the same offense. See United States v. Dixon, 509 U.S. 688, 696 (1993); Richardson v. United States, 468 U.S. 317, 325 (1984); Brown v. Ohio, 432 U.S. 161, 166 (1977); Serfass v. United States, 420 U.S. 377, 388 (1975); Blockburger v. United States, 284 U.S. 299, 304 (1932); State v. Johnson, 2014 ME 68, ¶ 10, 92 A.3d 351.

[¶6] "The Double Jeopardy Clause protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishmentsfor the same offense." Brown, 432 U.S. at 165 (quotation marks omitted). These protections arise only after jeopardy has "attached," meaning that the defendant was materially at risk of conviction. Martinez v. Illinois, 572 U.S. 833, 834 (2014). If jeopardy has attached, the question becomes whether it has terminated so as to bar a retrial for the same offense. See id. at 841. Thus, this case raises two questions. First, did jeopardy attach to Shirey during the trial on the original indictment? If so, did jeopardy terminate in a way that bars a trial on the superseding indictment? The trial court answered both questions in the negative. "We review the trial court's double jeopardy determination de novo." State v. Martinelli, 2017 ME 217, ¶ 5, 175 A.3d 636.

A. Attachment of Jeopardy

[¶7] Pursuant to both the United States and Maine Double Jeopardy Clauses, jeopardy attaches in a jury trial when the jury is sworn and in a bench trial when the first witness is sworn. Crist v. Bretz, 437 U.S. 28, 37 n.15, 38 (1978); State v. Linscott, 416 A.2d 255, 258 (Me 1980); State v. Harriman, 259 A.2d 752, 754 (Me. 1969). There remain, however, "limited exceptions to this rule—e.g., where the trial court lacks jurisdiction or where a defendant obtains an acquittal by fraud or corruption." Martinez, 572 U.S. at 840 n.3.

[¶8] Jeopardy cannot attach if the court lacks subject matter jurisdiction, i.e., the authority to adjudicate the type of criminal offense charged. See United States v. Ball, 163 U.S. 662, 669 (1896); accord, e.g., Hall v. McKenzie, 575 F.2d 481, 484 (4th Cir. 1978) ("[I]t is settled that an accused cannot be placed in jeopardy by a court lacking jurisdiction to decide his case."); see also United States v. Morton, 467 U.S. 822, 828 (1984) ("Subject-matter jurisdiction defines the court's authority to hear a given type of case . . . ."); accord Perkins v. State, 614 S.E.2d 92, 93 (Ga. 2005) (holding that jeopardy did not attach where the defendant was tried for a criminal offense in a probate court lacking criminal jurisdiction).

[¶9] On the other hand, if the court has subject matter jurisdiction over the type of charge brought, "defects in an indictment do not deprive a court of its power to adjudicate a case." United States v. Cotton, 535 U.S. 625, 629-31 (2002).³ The Supreme Court has explained the distinction between subject matter jurisdiction and the issues raised by a defective indictment:

An acquittal before a court having no jurisdiction is, of course, like all the proceedings in the case, absolutely void, and therefore no bar to subsequent indictment and trial in a court which has jurisdiction of the offense. But although the indictment was fatally defective, yet, if the court had jurisdiction of the cause and of the party, its judgment is not void, but only voidable by writ of error; and, until so avoided, cannot be collaterally impeached. . . . If the judgment is upon an acquittal, the defendant, indeed, will not seek to have it reversed; and the government cannot.

Ball, 163 U.S. at 669-70 (citations omitted); accord Benton, 395 U.S. at 797.

[¶10] Because a defective indictment does not affect a court's subject matter jurisdiction, if a trial on a defective indictment is allowed to proceed to the point of an acquittal, the Double Jeopardy Clause bars a retrial. See Ball, 163 U.S. at 670.

[¶11] For these reasons, a defective indictment brought to trial in a court that has jurisdiction places the defendant in jeopardy of conviction if the trial proceeds past the point at which jeopardy attaches. See Hoffler v. Bezio, 726 F.3d 144, 156-61 (2d Cir. 2013) (concluding that jeopardy attached to a defendant at his trial for murder because the court had (1) subject matter jurisdiction to try felony offenses allegedly occurring in the state's territorial boundaries and (2) personal jurisdiction over the defendant); People v. Sup. Ct. of Los Angeles Cty., 820 P.2d 613, 617, 626 (Cal. 1991) (concluding that jeopardy attached notwithstanding that the court's proceedings were defective for failing to hold a competency hearing); State v. Corrado, 915 P.2d 1121, 1128-33 (Wash. Ct. App. 1996) (explaining that, despite the absence of any charging instrument, jeopardy attached where the trial court "had jurisdiction over the type of offense, over the person, and over the place where the offense allegedly occurred" (emphasis added)).

[¶12] Because the trial court had jurisdiction over the subject matter of the indictment and over Shirey—and because the jury was sworn before the court dismissed the indictment—we conclude that jeopardy attached in Shirey's trial.

[¶13] With the first question answered in the affirmative, we must next determine "whether the jeopardy ended in such a manner that the defendant may not be retried." Martinez, 572 U.S. at 841.

B. Termination of Jeopardy

[¶14] Jeopardy terminates so as to bar a retrial in three circumstances: (1) when the defendant is acquitted, see Richardson, 468 U.S. at 325; (2) when the defendant's conviction has become final, see United States v. Wilson, 420 U.S. 332, 343 (1975); or (3) when the court ends the trial after jeopardy has attached but before verdict or judgment without either the defendant's consent or any manifest necessity, see Green v. United States, 355 U.S. 184, 188 (1957); State v. Friel, 500...