State v. Suter, 189
Decision Date | 14 November 1977 |
Docket Number | No. 189,189 |
Citation | 38 Md.App. 72,379 A.2d 425 |
Parties | STATE of Maryland v. Joseph Richard SUTER. |
Court | Court of Special Appeals of Maryland |
Francis B. Burch, Atty. Gen., Kathleen M. Sweeney, Asst. Atty. Gen., Sandra
A. O'Connor, State's Atty. for Baltimore County, Charles A. Ruppersberger, III, Asst. State's Atty. for Baltimore County, and David F. Mister, Asst. State's Atty. for Baltimore County, for appellant.
Russell J. White, Towson, for appellee.
Submitted to GILBERT, C. J., and THOMPSON and MOORE, JJ.
Procedure is to law what the wheel is to a cart a necessary factor. The importance of procedure to our society, functioning under a rule of law, was well illustrated by Curtis Bok in an address at the National Book Awards in New York City on January 26, 1954. Bok said:
Failure by the trial judge, with the express acquiescence of the Assistant State's Attorney, to follow proper procedure in the instant case necessitates our declination to consider the State's appeal from the dismissal by the Circuit Court for Baltimore County of five indictments that had been brought against Joseph Richard Suter, a police officer of that County. Our reason for declining to consider the State's appeal is that the issues all have been mooted as a result of the procedural misstep. 1 We shall explain why this is so.
The Supreme Court of the United States, speaking through Mr. Justice Rehnquist in Illinois v. Somerville, 410 U.S. 458, 460, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973), 2 pointed out that jeopardy attaches in a criminal trial when the jury is impaneled and sworn. 3 See also United States v. Jorn, 400 U.S. 470, 479-80, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); Green v. United States, 355 U.S. 184, 188, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957); Wade v. Hunter, 336 U.S. 684, 688, 69 S.Ct. 834, 93 L.Ed. 974 (1949). That rule, prior to Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), was applied to federal but not State proceedings. Benton, however, held that the Fifth Amendment prohibition against former jeopardy was applicable to the States through the vehicle of the Fourteenth Amendment's Due Process Clause. See also Blondes v. State, 273 Md. 435, 330 A.2d 169 (1975); Neal v. State, 272 Md. 323, 322 A.2d 887 (1974); Cornish v. State, 272 Md. 312, 322 A.2d 880 (1974); State v. Rhodes, 36 Md.App. 214, 373 A.2d 636 (1977); Baker v. State, 15 Md.App. 73, 289 A.2d 348, cert. denied, 265 Md. 744 (1972).
In the matter now before us, the appellee was indicted on a series of charges alleging one count of obstruction of justice, four counts of receiving stolen goods, and one count of misconduct in office. 4 Suter moved to dismiss the indictments. The reason he assigned for the dismissal of the obstruction count was that the statute of limitations barred the prosecution of that offense. A similar reason was given for the dismissal of the receiving charges, and Suter also contended that the receiving offenses were based on allegedly receiving stolen goods from a person who had obtained them by false pretense rather than larceny.
When the case was called to trial, the judge said:
After I have done that, I will call the roll, and each juror will stand so that you can observe the appearance and demeanor of the jurors. Then, after that is done, if either counsel for the prosecution or for the defense would like to ask any other questions to the jury, you can approach the Bench and suggest that voir dire question to the Court.
THE COURT: All right. All right. The Defendant prays a jury trial and pleaded not guilty to all of these charges. Be seated. Swear the jury for voir dire questioning.
(Whereupon, the jury panels were duly sworn for voir dire examination.)
(Whereupon, a jury panel was selected from the prospective jurors.)
The jury was then excused until the court ruled upon the motions to dismiss. All indictments save the misconduct charge were dismissed and the State entered an appeal as to each of the dismissed indictments. 5 Suter has moved to dismiss the appeal.
It is apparent that jeopardy attached when the jury was impaneled and sworn. Illinois v. Somerville, supra; United States v. Jorn, supra; Blondes v. State, supra; Neal v. State, supra; State v. Rhodes, supra. 6
Thus, even if we were to agree with the State that the judge erred in dismissing the indictments, it would be to no avail, 7 because any retrial would be barred by the Constitutional proscription against double jeopardy.
The judge should have ruled on the motions prior to the impaneling and swearing of the jury. 8 His consideration for the "twenty-five people" he did not want to be "sitting around outside the courtroom in limbo" led him to commit the procedural error that allowed jeopardy to attach before he ruled on the motions. By so doing, he effectively precluded the State's right to have the appeal decided on the merits inasmuch as the matter has been mooted.
MOTION TO DISMISS APPEAL GRANTED. COSTS TO BE PAID BY BALTIMORE COUNTY.
1 We are not to be understood as agreeing or disagreeing with the State's position on the merits. We express no opinion thereon.
2 The Somerville case turned on the question of whether there was a "manifest necessity" to declare, over a defendant's objection, a mistrial in order for the State of Illinois to seek new and hopefully corrected indictments. The majority of a 5 to 4 decision were...
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...535 A.2d 963 (1988); In re Darnell F., 71 Md.App. 584, 526 A.2d 971, cert. denied, 311 Md. 144, 532 A.2d 1371 (1987); State v. Suter, 38 Md.App. 72, 379 A.2d 425 (1977). Courts Art. § 3-810(b)(1) provides that the intake officer "shall make a preliminary inquiry within 15 days as to whether......