White v. State

• Decision Date: 01 September 1995
• Docket Number: No. 1254,1254
• Citation: 109 Md.App. 350,674 A.2d 566
• Parties: Kenneth WHITE v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 350

109 Md.App. 350

674 A.2d 566

Kenneth WHITE v.STATE of Maryland.

No. 1254, Sept. Term, 1995.

Court of Special Appeals of Maryland.

April 5, 1996.

Gary S. Offutt, Assistant Public Defender(Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant.

Thomas K. Clancy, Assistant Attorney General(J. Joseph Curran, Jr., Attorney General, Baltimore and Jack B. Johnson, State's Attorney for Prince George's County, Upper Marlboro, on the brief), for appellee.

Submitted before BLOOM, CATHELL and DAVIS, JJ.

CATHELL, Judge.

The instant appeal presents the question of whether the determination made by a master on a Child in Need of Assistance (CINA)petition ¹ may be used to bar a subsequent criminal proceeding based upon the same or similar facts and circumstances.This appeal is taken by Kenneth White from a denial of his Motion to Dismiss the criminal indictment filed against him in the Circuit Court for Prince George's County(Platt, J., presiding), charging various sexual offenses involving his minor daughter.He asks:

Did the trial court err in denying Appellant's motion to dismiss on double jeopardy grounds?

THE FACTS

In February of 1995, the Prince George's County Department of Social Services(DSS) petitioned the circuit court to find appellant's daughter a child in need of assistance.In the Petition, DSS officials stated, in part:

1.On 1-18-95 the child's father placed the child with her aunt.When the child arrived at the aunt's she had a severe sore throat; the child's father had failed to seek medical attention for the child.The child was unkemp [sic] and dirty when she arrived at the aunt's home.Prior to being placed with her aunt the child ... had been placed in numerous other homes by her father.

2.The child's aunt notice[d] a significant change in the child's behavior at the time she was placed with the aunt; the child had become withdrawn, non-verbal, and frightened.On 2-6-95 the child was examined at the Sexual Assault Center and found to have no hymen.The child has indicated that someone had touched her genital area.It is not clear who the abuser is.

3.The child's father ... has failed to pay child support to the aunt for the child's food and clothing ....

5.The child's father is an alcohol abuser.

....

7.It is contrary to the child's best interest to be returned home at this time.

The Petition was heard before the circuit court, sitting as a Juvenile Court, on May 9, 1995.The Master for Juvenile Causes recommended, inter alia:

that the child be found to be a child in need of assistance based on the following findings of fact: The allegations in the petition are unrefuted and are sustained.Father neither admits nor denies the allegations but does not oppose the CINA finding.

Immediately underneath this recommendation, the master made the notation, "No findings No removal," in reference to appellant's reunion with his daughter.The master further recommended: "Mr. White is to be evaluated as a sexual offender," and, "Kenneth White is to undergo a substance abuse evaluation."Immediately following these recommendations is the notation, "Both of Mr. White's evaluations are to be deferred until his criminal liability has been determined."In an Order, dated May 22, 1995, the master's recommendations were ratified and adopted by the circuit court.

On April 13, 1995, an indictment was filed against appellant, alleging that he had abused, raped, and committed other sexual offenses upon his minor daughter in violation of Maryland Code(1957, 1992 Repl.Vol.), Art. 27, §§ 35A, 463, 464B, respectively.Pending a hearing in the matter, appellant was ordered to have "no further contact" with his daughter.On August 2, 1995, appellant moved to dismiss the indictment, on the grounds that it was "barred by double jeopardy and the doctrine of collateral estoppel."Appellant alleged that,

because the State in the CINA case ... stipulated as a matter of fact that it could not establish the identity of the abuser by a preponderance of the evidence, the State[could] not [then] attempt in the subsequent criminal proceeding to prove beyond a reasonable doubt that the abuser is in fact [appellant].

Appellant continued, stating, "Double jeopardy bars the State from prosecuting [appellant] because the State has already failed in a previous proceeding to establish that he committed any acts of sexual abuse against his daughter."

On August 8, 1995, the trial court denied appellant's motion.Looking to the three-pronged test of Bowling v. State, 298 Md. 396, 470 A.2d 797(1984), and our decision in Lee v. State, 62 Md.App. 341, 489 A.2d 87(1985), the court found that "the allegation in the petition which was eventually adopted by this Court as a finding of fact, was not the basis of the CINA decision and therefore the criminal proceeding is not barred by double jeopardy."Based upon the master's deferral of appellant's recommended evaluations as a sexual offender and substance abuser, the court stated that "it is clear that the issue of the criminal agency of the defendant ... was not adjudicated or even addressed in the CINA proceeding."Appellant files this appeal of the interlocutory order ² therefrom.

We shall affirm.

THE LAW

The defense of former jeopardy is available in this State as a matter of common law, Ferrell v. State, 318 Md. 235, 241, 567 A.2d 937, cert. denied, 497 U.S. 1038, 110 S.Ct. 3301, 111 L.Ed.2d 810(1990);Bennett v. State, 229 Md. 208, 212, 182 A.2d 815(1962); there is no express prohibition therefor within the provisions of the Maryland Constitution, Whittlesey v. State, 326 Md. 502, 504 n. 1, 606 A.2d 225, cert. denied, 506 U.S. 894, 113 S.Ct. 269, 121 L.Ed.2d 198(1992).Maryland common law also recognizes collateral estoppel as a form of double jeopardy.Ford v. State, 330 Md. 682, 719, 625 A.2d 984(1993);see alsoTabbs v. State, 43 Md.App. 20, 21, 403 A.2d 796, cert. denied,286 Md. 754(1979)(Collateral estoppel is one of four distinct subdoctrines enveloped within the broad umbrella of double jeopardy.).Though applicable to criminal and civil causes, collateral estoppel, "[w]hen applied to criminal cases, ... acquire[s] a constitutional dimension by reason of the Double Jeopardy Clause of the Fifth Amendment, made applicable to the states as a result of Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056[23 L.Ed.2d 707](1969)."Cook v. State, 281 Md. 665, 668 n. 2, 381 A.2d 671(citingAshe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469(1970)), cert. denied,439 U.S. 839, 99 S.Ct. 126, 58 L.Ed.2d 136(1978);see alsoTurner v. Arkansas, 407 U.S. 366, 368, 92 S.Ct. 2096, 2098, 32 L.Ed.2d 798(1972).

Collateral estoppel involves preclusion of a claim when the material issue has been litigated and decided in a prior suit, though that prior suit may have involved a completely different cause of action.Myers v. State, 57 Md.App. 325, 327, 470 A.2d 355(1984).Thus, a second prosecution is barred "where the ultimate issues to be litigated have already been resolved in the accused's favor in a prior action even though the offenses might not otherwise be the same."Cousins v. State, 277 Md. 383, 388, 354 A.2d 825, cert. denied, 429 U.S. 1027, 97 S.Ct. 652, 50 L.Ed.2d 631(1976).Indeed, the collateral estoppel form of double jeopardy is not based upon an identity of the offenses, but, rather, upon a common necessary factual component.Apostoledes v. State, 323 Md. 456, 463-64, 593 A.2d 1117(1991)(involving two criminal charges).

On review of a claim invoking the collateral estoppel aspect of double jeopardy, a court is not to be concerned with whether the trial court was right or wrong, but, rather, whether the judgment reflects a resolution of the factual elements of the offense involved.Ford, 330 Md. at 720, 625 A.2d 984.While the analysis "focuses on what the fact finder did find or must have found,"id.(citingApostoledes, 323 Md. at 464, 593 A.2d 1117), "the reviewing court may examine the judge's express basis for the ruling in order to determine if the judge resolved in the defendant's favor an ultimate factual issue essential to both counts,"Apostoledes, 323 Md. at 464, 593 A.2d 1117.In undertaking this inquiry, therefore, we examine the "substance of what occurred, not merely its procedural form."Ford, 330 Md. at 720, 625 A.2d 984.

DISCUSSION

In resolving the instant appeal, Bowling v. State, supra, 298 Md. 396, 470 A.2d 797, andLee v. State, supra, 62 Md.App. 341, 489 A.2d 87, are particularly instructive.In Bowling, the Court of Appeals held that

the doctrine of collateral estoppel prevents the State from criminally trying the defendant on charges of sexual assault and related offenses when, in a prior civil proceeding based upon the same alleged incidents, the court dismissed the action on the ground that the State had failed to prove that the defendant had committed the acts.

298 Md. at 398, 470 A.2d 797.In that case, a CINA petition was filed with the trial court based upon statements made by Bowling's daughter, which indicated that he had engaged in sexual activity with her.Unlike the present case, the petition was based upon the allegation that Bowling was, in fact, the abuser.Testimony at the hearing on the petition was largely devoted to the occurrence vel non of Bowling's alleged sexual misconduct.At the conclusion of the hearing, the trial court found that it had not been "persuaded by a preponderance of the evidence that th[e] sexual abuse did, in fact, take place."Id. at 399, 470 A.2d 797(emphasis omitted).In Bowling, the circuit court went on to dismiss the CINA petition for failure of the State to prove its case.Id. at 400, 470 A.2d 797.Bowling was thereafter indicted; "[t]he indictment was grounded on the identical factual allegations which formed the basis for the earlier CINA petition."Id.Based upon the common law doctrine of collateral estoppel and its incorporation within...