State v. Taylor, No. 124

• Decision Date: 12 November 2002
• Docket Number: No. 124
• Citation: 810 A.2d 964,371 Md. 617
• Parties: STATE of Maryland v. Donald TAYLOR, Jr. Larry Bledsoe, George Kopp, and Joseph Johnson v. State of Maryland.
• Court: Maryland Court of Appeals

810 A.2d 964

371 Md. 617

STATE of Maryland v. Donald TAYLOR, Jr.

Larry Bledsoe, George Kopp, and Joseph Johnson v. State of Maryland.

Nos. 124, September Term, 2000, 6, September Term 2002.

Court of Appeals of Maryland.

November 12, 2002.

Kathryn Grill Graeff, Assistant Attorney General, Gary Bair, Solicitor General (J. Joseph Curran, Jr., Attorney General of Maryland, on brief), for appellant.

John L. Kopolow, Assistant Public Defender, Nancy S. Forster, Deputy Public Defender (Stephen E. Harris, Public Defender, on brief), for appellee.

Argued before BELL, C.J., ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and ROBERT L. KARWACKI, (retired, specially assigned), JJ.

HARRELL, J.

In these cases, consolidated for the purpose of this decision, we again consider the scope of double jeopardy protections under Maryland common law. Specifically, we decide whether jeopardy attaches in a proceeding where a trial judge grants a pretrial motion to dismiss based on a finding of insufficiency of evidentiary facts beyond those contained within the "four corners" of the charging document, i.e., criminal indictment or criminal information.

We set out the background facts and procedural history of each case separately.

I.

A. Bledsoe v. State

Petitioners Larry Bledsoe, George Kopp, and Joseph Johnson ("Petitioners") were charged with conspiracy to violate Prince George's County Code (1967), Subtitle 14, ž 14-139.02(b)(2) ("Ordinance") making it illegal to appear fully nude in a public place.¹ The alleged criminal activity, as recited in each of the criminal informations, took place on 22 May 1999 at The Showcase Theater ("Showcase") in Beltsville, Maryland.

Petitioners were charged in the District Court of Maryland, sitting in Prince George's County, by criminal informations filed 11 August 1999 charging that each of the three men conspired to have several women "engage in public nudity" in violation of Maryland common law and ž 14-139.02(b)(2). The cases were scheduled for trial on 14 February 2000.

Petitioners filed a pre-trial "Motion to Dismiss, or in the Alternative for Judgment of Acquittal" on 16 December 1999. The parties argued the motion the following day. Consistent with their motion, Petitioners argued that the form of the criminal informations, as filed, were duplicitous on their face because they respectively alleged two violations in a single count. Petitioners also argued that the charges could not stand "because there's simply been no violation of the Prince George's County Code." To support that point, Petitioners contended that the Showcase was not a public place under the Ordinance, and therefore the crime of public indecency could not be committed there. If the underlying crime could not be committed, so the argument went, there could be no conspiracy to commit that crime. Finally, Petitioners asserted that the Ordinance, as applied to nude dancing, was unconstitutionally overbroad on its face and therefore had a chilling effect on speech. In response, the State ventured that nude dancing was not a protected form of speech and that the Showcase was a public place for purposes of the Ordinance. After hearing the initial arguments, the judge stated: "[I]n order for me to rule on this motion, it seems as though the Court has to make at least certain factual findings, or certain factual findings need to be stipulated to." In response, Petitioners and the State stipulated to the following facts: (a) at the time and place of the alleged criminal activity, nude dancing took place in an enclosed building located in an industrial park; (b) the Showcase was a for-profit business that charged an admissions fee; (c) the Showcase did not admit anyone under the age of 18;² and (d) the building had external doors and inside was a stage, lighting, music, and women initially clothed in costumes who eventually achieved a state of undress during their performances.³ At the conclusion of the motions hearing the judge took the matter under advisement. On 30 December 1999, before the judge ruled on the motion, the State submitted a memorandum in opposition to the motion to dismiss with additional evidence attached.⁴

On the date scheduled for trial, the District Court judge issued an oral ruling, accompanied by a written opinion, granting the motion and dismissing the criminal informations. He applied statutory interpretation principles to conclude that, based on the totality of the facts before him, the Showcase was not a "public place" under the statute. He also opined that "nude dancing is considered constitutionally protected expression pursuant to the first amendment of the United States Constitution and as applied to the States through the 14th Amendment." Although Petitioners had argued that the statute was unconstitutional both on its face and as applied, the judge only found it to be unconstitutional as applied to the facts of the matter before him. Relying on Hughes v. Cristofane, 486 F.Supp. 541 (D.Md.1980), the judge held that "[a]pplying the reasoning of the Hughes decision to the present facts, we find that [the Ordinance] imposes a chilling effect on constitutionally protected expression."

The State noted an appeal to the Circuit Court for Prince George's County.⁵ The appeal was heard on 26 January 2001. Petitioners asserted that the Circuit Court lacked jurisdiction to hear the appeal because the District Court judge's ruling amounted to an acquittal and the appeal therefore was barred by federal constitutional and Maryland common law double jeopardy principles and, even if the Court had jurisdiction to hear the appeal, the District Court judge's ruling should be upheld as a correct interpretation of the Ordinance.

The Circuit Court judge issued a written opinion on 3 January 2002. She concluded that the phrase "commonly open to the public" in the Ordinance was intended by the County Council to have its plain and ordinary meaning, and that the Showcase was a "public place" pursuant to the Ordinance. She also determined, relying on federal constitutional principles discussed in Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975), that jeopardy does not attach in a proceeding in which the trial court dismisses charges. The judge concluded that the District Court erred in dismissing the charges against Petitioners, and remanded the matters to the District Court for trial.

Petitioners filed a petition for writ of certiorari in this Court on 1 February 2002, pursuant to Maryland Code (1973, 2002 Repl.Vol.), Courts and Judicial Proceedings Article, ž 12-302(c)(1). Certiorari was granted to consider the following issues: whether double jeopardy principles were triggered by the previous dismissal of the criminal action by the District Court, thus requiring reversal of the Circuit Court's judgment; whether the Showcase is a "public place" subject to the Ordinance; and, whether Petitioners would be denied their right to a speedy trial if the long delayed Circuit Court ruling were allowed to stand.⁶ Bledsoe v. State, 368 Md. 526, 796 A.2d 695 (2002).

B. State v. Taylor

Donald Taylor, Jr. ("Appellee") was charged by criminal information in the Circuit Court for Frederick County with three counts of violating Maryland Code (1978, 1996 Repl.Vol., 2001 Supp.), Article 27, ž 419A,⁷ one count of attempted third degree sexual offense,⁸ and one count of attempted second degree assault.⁹ Counts I, II, and III of the Criminal Information, charging the violations of ž 419A, were identical, with the exception of the charged date of the offenses. The substance of the charges read as follows:

that Donald Taylor Jr., on or about October 8, 1999, at Frederick County, Maryland, did, by means of a computer, knowingly compile, enter, transmit, make, print, publish, reproduce, cause, allow, buy, sell, receive, exchange, or disseminate a notice, statement, advertisement, or minor's name, telephone number, place of residence, physical characteristic or other descriptive or identifying information for the purpose of engaging, facilitating, encouraging, offering or soliciting unlawful sexual conduct or sadomasochistic abuse of or with a minor; contrary to the form of the Act of Assembly in such cases made and provided and against the peace, government, and dignity of the State. (Article 27, Section 419A).

Count IV read as follows:

that Donald Taylor, Jr., on or about October 29, 1999, at Frederick County, Maryland, did unlawfully attempt to commit a sexual offense in the third degree upon a minor; contrary to the form of the Act of Assembly in such cases made and provided and against the peace, government, and dignity of the State. (Common Law).

Count V read as follows:

that Donald Taylor, Jr., on or about October 29, 1999, at Frederick County, Maryland, did unlawfully attempt to assault a minor in the second degree; contrary to the form of the Act of Assembly in such cases made and provided and against the peace, government, and dignity of the State. (Common Law).

On 29 February 2000, Appellee filed a motion to suppress evidence, dismiss the charges, or, in the alternative, grant a change of venue. For purposes of the motions hearing, Appellee moved into evidence, as Defendant's Exhibit No. 1, a photocopy of a "confidential" memorandum prepared by TFC Brian Moser of the Computer Crimes Unit of the Maryland State Police. This memorandum purportedly was relied on by the State to prepare the criminal information. Appellee and the State proceeded at the motions hearing based on an agreement that TFC Moser's memorandum was an accurate and complete summary of the facts underlying the charges in the information. The memorandum was received into evidence at the motions hearing without objection from the State.

We recite the pertinent facts from the memorandum. On approximately 5 October 1999, the Maryland State Police received a complaint that Appellee, a 43 year old male living in New Jersey, was using...