Wodoslawsky v. State
| Decision Date | 07 July 1977 |
| Docket Number | No. 821,821 |
| Citation | 36 Md.App. 654,374 A.2d 917 |
| Parties | Michael Steve WODOSLAWSKY v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Henry J. Noyes, Rockville, for appellant.
Alexander L. Cummings, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Andrew L. Sonner, State's Atty., for Montgomery County and Thomas L. Heeney, Asst. State's Atty., for Montgomery County on the brief, for appellee.
Argued before MORTON, MENCHINE and MASON, JJ.
On November 24, 1975, an automobile operated by appellant, Michael Steve Wodoslawsky, collided with a vehicle driven by Bernard Wilson, resulting in the death of Elizabeth Wilson, a passenger in the Wilson vehicle. On the following day appellant was charged in the District Court for Montgomery County with the crime of manslaughter by automobile. On January 8, 1976, he was indicted by the grand jury for Montgomery County for the same offense. The pending district court charge was then marked "returned to the files." Shortly thereafter appellant was arraigned in the Circuit Court for Montgomery County at which time he entered a plea of not guilty and requested a jury trial.
On June 21, 1976, trial began in the circuit court (Latham, J., presiding) pursuant to the indictment. At the close of the state's evidence, appellant moved to dismiss the indictment on the basis that although the circuit court and district court have concurrent jurisdiction in manslaughter by automobile cases, 1 the state, by virtue of having filed charges first with the district court, thereby selected its forum and thus precluded trial for this offense in the circuit court. In overruling the motion the trial judge reasoned:
The trial continued until approximately noon on June 24, 1976, at which time the jury retired to deliberate. During the course of their deliberations, the jury sent five notes to the trial judge requesting copies of the relevant portions of the Motor Vehicle Code, information as to the authority of the police to obtain breath or blood samples, portions of Wilson's testimony on direct, cross-examination and redirect, a note as to why they had made such requests and an inquiry as to whether there was a body of case law relating to causes other than gross negligence and causality. The members of the jury adjourned for dinner at 7 p. m. with an admonishment not to discuss the matter, returned around 8:30 p. m. and at 10:30 p. m. sent their last note to the court stating that they had "reached a point wherein it appears that a verdict cannot be reached." They were returned to the court room at 10:45 p. m. whereupon the following colloquy ensued:
Thereafter, on July 8, 1976, a proceeding was held in the district court wherein the state entered a "nolle prosequi on the record." Appellant objected to the entry of the nolle prosequi arguing that his pending motion to dismiss the charges for lack of a speedy trial would not receive consideration. During the course of his argument appellant submitted two exhibits into evidence, namely, a copy of the circuit court indictment and a copy of the circuit court docket entries. The trial judge denied appellant's request for a hearing on the speedy trial motion, reasoning that such motion was rendered moot by the entry of the nolle prosequi.
Prior to his retrial in the circuit court, appellant filed therein a "Motion to Dismiss per Autrefois Acquit." At the hearing on this motion (Miller, J., presiding) held on July 16, 1976, appellant asserted (1) that there was no "manifest necessity" for the mistrial in the circuit court and (2) that by virtue of the district court proceedings, further prosecution would amount to double jeopardy. In denying the motion, the trial judge stated:
"The Court has had an opportunity, Mr. Noyes, to read the authorities that you cite, and, first of all, with regard to the declaration of a mistrial, while the cases do say that you should not declare a mistrial except for reasons of manifest necessity, they go on to say except for the most obvious reasons, and the Court feels that those cases deal with where a prosecutor was sick, and where a witness said something out of the courtroom, and I feel relatively certain the 'most obvious' reason is where the jury is hung.
While it may have been more preferable to ask a few more questions or to seek the advice of counsel, after nine hours of deliberation I feel that there is nothing improper in declaring a mistrial.
Now as far as the second ground goes, it is true that Maryland has adopted the hearing of evidence rule as opposed to the swearing of first witness in a non-jury trial, but the Blondes (v. State, 273 Md. 435, 330 A.2d 169 (1975)) case makes it abundantly clear to me that the evidence must be received before the entry of a nol pros, and that was not done in this case. Therefore, the motion is denied, the plea of jeopardy is denied."
Appellant thereupon filed this appeal (see Neal v. State, 272 Md. 323, 326, 322 A.2d 887 (1974)) and first contends that "the Circuit Court for Montgomery County had no jurisdiction over the subject matter of this case."
Appellant essentially asserts that "where each of two courts has concurrent jurisdiction, the court in which suit is first instituted is entitled to retain jurisdiction and the second court is without power to interfere." Pinkston, Tr. v. Higham, 224 Md. 513, 517, 168 A.2d 712, 714 (1961). See also Woodcock v. Woodcock, 169 Md. 40, 179 A. 826 (1935); Withers v. Denmead, 22 Md. 135 (1864). He argues, on the basis of this rule, that once the state filed in the district court the charge of manslaughter by automobile, the state was powerless thereafter to have appellant indicted by the grand jury on the same charge and try him in the circuit court. It is a well established rule in civil cases that where courts have concurrent jurisdiction over the same subject matter, the court in which suit is first instituted retains jurisdiction to the exclusion of the coordinate court. We are not convinced, however, that this rule has application in criminal cases. Appellant has referred us to no case in which it has been so held. On the other hand, we think there are sound reasons why the rule should not be extended to criminal cases.
It is, of course, true that the state could not bring identical charges against an individual in courts having concurrent jurisdiction over the subject matter of the charges and then proceed to trial thereon in each court since the accused's right to be free from being placed in double jeopardy would thereby be violated. But we know of no rule or principle of law, constitutional or otherwise, which compels the state, when it initially brings criminal charges against an individual, to make a binding election as to the forum in which the charges will ultimately be tried, any more than the state can be compelled to make a binding election that it bring the charges in the form of a warrant, an information, an indictment or any other form of charging the individual. In our view the state's attorney has the choice, subject to statutory and constitutional proscription, to determine the mode or means he will employ to initiate the criminal charges and the forum in which the ultimate trial will be conducted. See Murphy v. Yates, 276 Md. 475, 348 A.2d 837 (1975); State v. Hunter, 10 Md.App. 300, 270 A.2d 343 (1970); Greathouse v. State, 5 Md.App. 675, 249 A.2d 207 (1969).
Here the state's attorney was privileged to file the charging document in the district court or to proceed by way of an indictment. He apparently decided to take both courses and then elected to conduct the trial in the circuit court. Since there was no showing of...
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...is within the State's Attorney's discretion "to determine the mode or means ... to initiate the criminal charges." Wodoslawsky v. State, 36 Md.App. 654, 659, 374 A.2d 917, 920, cert. denied, 281 Md. 746 (1977), 434 U.S. 1068, 98 S.Ct. 1248, 55 L.Ed.2d 770 The offense of willfully failing to......