Ward v. State

• Decision Date: 07 April 1981
• Docket Number: No. 105,105
• Parties: James Edward WARD v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 76

290 Md. 76

427 A.2d 1008

James Edward WARD v. STATE of Maryland.

No. 105.

Court of Appeals of Maryland.

April 7, 1981.

George E. Burns, Jr., Asst. Public Defender, Baltimore, for appellant; Alan H. Murrell, Public Defender, Baltimore, on brief.

Kathleen M. Sweeney, Asst. Atty. Gen., Baltimore, for appellee; Stephen H. Sachs, Atty. Gen., Baltimore, on brief.

Argued before SMITH, DIGGES, ELDRIDGE, COLE and DAVIDSON, JJ.

ELDRIDGE, Judge.

In this criminal case, two different counts of the indictment charged the same offense. At the trial after jeopardy had attached, the State entered a nolle prosequi, without the defendant's consent, as to one of the counts, and the defendant was convicted on the other count. Later, the defendant was successful in having the conviction set aside and a new trial awarded. The issue before us now is whether the new trial may proceed in light of the earlier nolle pros of a count charging the same offense.

I.

A Prince George's County grand jury, in a five count indictment, charged the defendant James Edward Ward with various offenses relating to the 1972 murder of Gerald Joseph Godbout, Jr., and the attempted murder of Dorothy Mae Ward. Count one charged the defendant with conspiracy to murder Dorothy Mae Ward; count two accused him of conspiracy to murder Godbout; count three expressly charged him with being an accessory before the fact to the murder of Godbout; and the fourth count alleged that he attempted to murder Dorothy Mae Ward. Count five, charging the defendant with responsibility for the murder of Godbout, was the statutory form of indictment set forth in Maryland Code (1957, 1971 Repl. Vol.), Art. 27, § 616, which encompasses murder, manslaughter or "being an accessory thereto." ¹ Consequently, the fifth count included a charge which was identical to the charge in the third count, namely being an accessory before the fact to the murder of Godbout. See State v. Williamson, 282 Md. 100, 107-110, 382 A.2d 588 (1978).

The defendant Ward was brought to trial in the Circuit Court for Prince George's County on all five counts, and the jury was empanelled and sworn. Therefore, jeopardy attached to all offenses covered by the indictment. Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978); Blondes v. State, 273 Md. 435, 444-446, 330 A.2d 169 (1975). At the close of the State's case, a nolle prosequi was entered by the prosecuting attorney, without the defendant's consent, with regard to counts four and five in their entirety. The trial continued, and the jury found the defendant guilty on counts one, two and three. The court imposed a life sentence on each count, all three sentences to run concurrently, and the judgment was affirmed on appeal, Ward v. State, 30 Md.App. 113, 351 A.2d 452, cert. denied, 277 Md. 742 (1976).

Thereafter, the defendant filed a petition for relief under the Post Conviction Procedure Act, Code (1957, 1976 Repl. Vol.), Art. 27, § 645A et seq. The circuit court in the post conviction proceeding held that Ward had been denied the effective assistance of counsel with respect to counts one and two, the conspiracy counts, because of counsel's failure to plead limitations, and these counts were dismissed. The circuit court granted a new trial on the third count, apparently on the theory that certain evidence introduced solely to prove conspiracy may have affected the jury's verdict on count three. The circuit court's decision was affirmed by the Court of Special Appeals in an unreported opinion.

Prior to his new trial on count three, the only remaining count, Ward filed three motions to dismiss, each on a separate ground. One motion asserted that the third count was defective under the common law doctrine of accessoryship; another claimed a denial of the right to speedy trial; and in the third motion Ward argued that a second trial would violate the prohibition against double jeopardy. The double jeopardy theory was that the nolle prosequi of count five at the first trial, after the attachment of jeopardy and without the defendant's consent, amounted to an acquittal of all offenses charged in the fifth count, including the accessory charge. Therefore, the argument continued, a second trial on the same accessory charge, under the third count, would violate the double jeopardy prohibition against the trial for the same offense following an acquittal.

The circuit court agreed with Ward that count three was invalid under the doctrine of accessoryship and dismissed the indictment on this ground. ² The trial court did not rule upon the motions to dismiss on speedy trial and double jeopardy grounds. The State appealed the dismissal of the indictment, and this Court issued a writ of certiorari prior to any proceedings in the Court of Special Appeals. In this Court, in addition to defending the trial court's action, Ward contended that the indictment should have been dismissed on double jeopardy grounds. We reversed, holding that a trial under count three, for allegedly being an accessory before the fact to second degree murder, was not precluded by the doctrine of accessoryship. State v. Ward, 284 Md. 189, 396 A.2d 1041 (1978). ³ Because the trial court had not decided the double jeopardy contention, we declined under Maryland Rule 885 to decide the question.

After the remand, and before the commencement of the second trial on count three, a hearing was held on the remaining motions to dismiss on speedy trial and double jeopardy grounds. The trial court denied both motions, and the defendant took an immediate appeal from the denial of the double jeopardy claim. ⁴ Again, before any proceedings in the Court of Special Appeals, we issued a writ of certiorari. We shall affirm.

II.

The defendant initially relies upon the "well settle(d)" principle that the entry of a nolle prosequi, after jeopardy has attached, has the "effect" of an acquittal. Consequently, in the defendant's view, because count five charged him with being an accessory before the fact to the murder of Godbout, and because the nolle pros of count five "operated" as an acquittal, a second trial for the same offense is absolutely precluded. Under this theory, a retrial would violate that aspect of the double jeopardy prohibition based upon the common law plea of autrefois acquit. See Pugh v. State, 271 Md. 701, 705, 319 A.2d 542 (1974); State v. Shields, 49 Md. 301, 303 (1878). ⁵

If a nolle prosequi after the attachment of jeopardy, without the defendant's consent, were unqualifiedly an acquittal of the offense charged, regardless of the fact that the nolle prosequi related to only one of the two counts charging the same offense, there would be a strong basis for the defendant's argument. In fact, carrying the argument to its logical conclusion, not only would a second trial be precluded but a continuation of the original trial on the accessory offense, after an acquittal of that offense, would be deemed a second trial and would also be prohibited. Block v. State, 286 Md. 266, 407 A.2d 320 (1979); Pugh v. State, supra. However, the fallacy in the defendant's argument is his treating the nolle prosequi as an acquittal. Moreover, the argument fails to distinguish between the broad nolle pros of an offense and the nolle pros of one count when another viable count charges the same offense.

In light of the defendant's argument, it is necessary to examine the nature of a nolle prosequi and the often repeated statement that a nolle prosequi, after jeopardy attaches and without the defendant's consent, "operates as an acquittal."

III.

Apparently the first reported case discussing the entry of a nolle prosequi in a criminal prosecution was Stretton and Taylors Case, 1 Leon. 119, 74 Eng. Rep. 111 (K.B.1588), where the Attorney General entered a "non vult prosequi" for purpose of preventing a private prosecution. Since that time, the nolle prosequi has been a means whereby the government exercises control over pending criminal cases. See Note, Nolle Prosequi, 41 N.Y.U.L. Rev. 996, 997 (1966). Thus, as Bishop points out, a "Nolle Prosequi in criminal practice (for it pertains also to civil), is a declaration of record from the legal representative of the government, that he will no further prosecute the particular indictment or some designated part thereof." 2 Bishop, New Criminal Procedure § 1387, p. 1194 (2d ed. 1913). It is an "abandonment of the prosecution," Barrett v. State, 155 Md. 636, 638, 142 A. 96 (1928), or a "discontinuance of a prosecution by the authorized attorney" for the state, Commonwealth v. Hart, 149 Mass. 7, 8, 20 N.E. 310 (1889).

The entry of a nolle prosequi is generally within the sole discretion of the prosecuting attorney, free from judicial control and not dependent upon the defendant's consent. Barrett v. State, supra, 155 Md. at 637-638, 142 A. 96; Greathouse v. State, 5 Md.App. 675, 685, 249 A.2d 207, cert. denied, 253 Md. 734 (1969); Commonwealth v. Tuck, 20 Pick. 356, 366 (Mass.1838); Bishop, supra, § 1388; Hochheimer, The Law of Crimes and Criminal Procedure § 152, p. 170 (2d ed. 1904). ⁶ A nolle prosequi may be entered as to an entire charging document, or one or more counts, or even a part of a count. The prosecution may nolle pros part of a count for the purpose, inter alia, of curing duplicity or of reducing a greater offense to a lesser included one. Knotts v. State, 237 Md. 417, 420, 207 A.2d 100 (1965); Commonwealth v. Briggs, 7 Pick. 177, 179 (Mass.1828); Bishop, supra, §§ 1391-1392, pp. 1196-1197; Hochheimer, supra. However, the prosecution cannot, by a nolle pros of part of a count, change the entire nature of the offense charged. Commonwealth v. Dunster, 145 Mass. 101, 102-103, 13 N.E. 350 (1887).

It has been settled since at least the opinion of Chief Justice Holt in Goddard v. Smith, 9 Eng.Rpts. 394, 6 Mod. 262, 2 Salk. 456 (1705) that while a nolle prosequi discharges the defendant on the charging document or count which...