Vernon Lee EVANS, Jr. v. STATE of Maryland. Anthony GRANDISON, Sr. v. STATE of Maryland.
No. 160, Sept. Term, 1983. No. 7, Sept. Term, 1984.
Court of Appeals of Maryland.
April 4, 1984. Opinion Oct. 3, 1984.
481 A.2d 1135
Deborah K. Chasanow, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on brief), for appellee in No. 160, Sept. Term 1983.
H. Warren Crawford, Ocean City, for appellant in No. 7, Sept. Term 1984.
Dana M. Levitz, Asst. State‘s Atty. for Baltimore County, Towson (Stephen H. Sachs, Atty. Gen., Deborah K. Chasanow, Asst. Atty. Gen., Baltimore, on brief), for appellee in No. 7, Sept. Term 1984.
Argued before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, DAVIDSON,* RODOWSKY and COUCH, JJ.
PER CURIAM ORDER
For reasons to be stated in an opinion later to be filed, it is this 4th day of April, 1984
ORDERED, by the Court of Appeals of Maryland, that the order of the Circuit Court for Worcester County deny-
ORDERED that the mandate shall issue forthwith, costs to be paid by the appellant.
PER CURIAM ORDER
For reasons to be stated in an opinion later to be filed, it is this 4th day of April, 1984
ORDERED, by the Court of Appeals of Maryland, that the order of the Circuit Court for Somerset County denying the motion to dismiss the indictment be, and it is hereby, affirmed; and it is further
ORDERED that the mandate shall issue forthwith, costs to be paid by the appellant.
PER CURIAM.
The issue in these cases is whether the Double Jeopardy Clause of the Fifth Amendment or the Maryland common law double jeopardy prohibition bars the present state court criminal prosecutions which arise out of the same acts for which the defendants had previously been convicted in federal court.
According to the State‘s allegations, Anthony Grandison, the appellant in No. 7, and Vernon Evans, Jr., the appellant in No. 160, entered into an agreement whereby Evans would kill Scott Piechowitz and his wife, Cheryl, because the couple was slated to testify against Grandison in his upcoming narcotics trial in the United States District Court. The State further alleged that Evans partially carried out the scheme, killing Scott Piechowitz and Susan Kennedy in the mistaken belief that she was Cheryl Piechowitz.
A two count indictment was filed in the United States District Court for the District of Maryland against Grandison and Evans. They were charged with conspiracy to violate the civil rights of Scott and Cheryl Piechowitz by interfering with their right to be witnesses in a judicial
A four count indictment was subsequently filed in the Circuit Court for Baltimore County, charging Grandison and Evans with two counts of murder, one count of conspiracy to commit murder, and use of a handgun in the commission of a felony or crime of violence. The state cases were severed and removed to other counties, the prosecution of Grandison being transferred to the Circuit Court for Somerset County and the prosecution of Evans being transferred to the Circuit Court for Worcester County.
With respect to the federal charges, Grandison and Evans were tried together in the United States District Court for the District of Maryland and convicted on both counts. Each defendant was sentenced to life plus ten years imprisonment.
Both defendants then filed motions in the circuit courts to have the state indictment dismissed on the grounds of double jeopardy and due process.1 The motions were heard and denied by each circuit court. The defendants took immediate appeals from those decisions,2 and this Court granted their petitions for writs of certiorari prior to any proceedings in the Court of Special Appeals.
On appeal, the defendants presented a two-stage double jeopardy argument. First, they urged that the state charges should be deemed the same for double jeopardy
On April 4, 1984, following oral argument, we filed per curiam orders, affirming the decisions of the circuit courts denying the motions to dismiss the indictment. We shall now give the reasons for our orders.
We shall assume arguendo that, for double jeopardy purposes, the state indictment should be deemed to charge the same offenses as the defendants’ federal convictions under
(a)
The seminal cases on dual sovereignty under the federal constitution are Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959), and Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959). In Bartkus, the defendant was tried and acquitted in the United States District Court for the Northern District of
“The process of this Court‘s response to the Fifth Amendment challenge was begun in Fox v. Ohio [5 How. 410, 12 L.Ed. 213 (1847)], continued in United States v. Marigold, 9 How. 560 [13 L.Ed. 257 (1850)], and was completed in Moore v. Illinois, 14 How. 13 [14 L.Ed. 306 (1852)]. Mr. Justice Grier, writing for the Court in Moore v. Illinois, gave definitive statement to the rule which had been evolving:
‘An offence, in its legal signification, means the transgression of a law. 14 How., at 19 [14 L.Ed. 306]. Every citizen of the United States is also a citizen of a State or territory. He may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either. The same act may be an offence or transgression of the laws of both. 14 How., at 20 [14 L.Ed. 306]. That either or both may (if they see fit) punish such an offender, cannot be doubted. Yet it cannot be truly averred that the offender has been twice punished for the same offence; but only that by one act he has committed two offences, for each of which he is justly punishable. He could not plead the punishment by one in bar to a conviction by the other.’ Ibid.
“In a dozen cases decided by this Court between Moore v. Illinois and United States v. Lanza [260 U.S. 377, 43 S.Ct. 141, 67 L.Ed. 314 (1922)] this Court had occasion to
reaffirm the principle first enunciated in Fox v. Ohio. Since Lanza the Court has five times repeated the rule that successive state and federal prosecutions are not in violation of the Fifth Amendment. Indeed Mr. Justice Holmes once wrote of this rule that it ‘is too plain to need more than statement.‘”
In Abbate, a companion case to Bartkus, the situation was reversed. The defendant there contested on double jeopardy grounds a federal prosecution following a state court conviction for essentially the same offense. Relying on most of the same cases as in Bartkus, the Court in Abbate again upheld the second conviction.
The defendants argue, however, that the dual sovereignty doctrine was in effect abrogated by the Supreme Court‘s decision in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), and that, therefore, Bartkus and Abbate are no longer viable. In Benton v. Maryland, the Double Jeopardy Clause of the Fifth Amendment was held to be applicable to the state prosecutions by virtue of the Fourteenth Amendment. The defendants theorize that, because the same clause of the United States Constitution now prohibits both the federal government and the state governments from placing someone twice in jeopardy for the same offense, the distinctions between the federal and state governments with regard to successive prosecutions for essentially the same crime have been erased. Nevertheless, United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978), compels rejection of the defendants’ contention. In Wheeler, decided after Benton, the Supreme Court expressly reaffirmed the dual sovereignty concept and the decisions in Bartkus and Abbate.
The viability of the dual sovereignty principle was recently reviewed by the United States Court of Appeals for the Fifth Circuit in United States v. Hayes, 589 F.2d 811 (5th Cir.1979), cert. denied, 444 U.S. 847, 100 S.Ct. 93, 62 L.Ed.2d 60 (1979). In that case the defendant Hayes was first tried in the state court for capital murder and was convicted of the lesser included offense of aggravated as-
“While the Court has consistently expressed concern over the possible abuses of dual prosecutions, see Bartkus v. Illinois, 359 U.S. 121, 138, 79 S.Ct. 676 [686], 3 L.Ed.2d 684 (1959) (‘the greatest self-restraint is necessary when that federal system yields results with which a court is in little sympathy‘); United States v. Lanza, 260 U.S. 377, 383, 43 S.Ct. 141 [143], 67 L.Ed. 314 (1922) (‘in the benignant spirit’ in which the federal system is administered, defendants should be subject to dual state-federal prosecutions only ‘in instances of peculiar enormity‘), quoting Fox v. Ohio, 46 U.S. (5 How.) 410, 434, 12 L.Ed. 213 (1847), and while the Lanza-Abbate-Bartkus doctrine has met harsh criticism, see, e.g., Harrison, Federalism and Double Jeopardy; A Study in the Frustration of Human Rights, 17 U. Miami L. Rev. 306 (1963); Fisher, Two Sovereignties and the Intruding Constitution, 28 U.Chi.L.Rev. 591, 599 (1961); Grant, The Lanza Rule of Successive Prosecutions, 32 Colum.L.Rev. 1309, 1329 (1932), the doctrine has nonetheless been applied consistently by the Circuit Courts.... Moreover, the Supreme Court has recently reaffirmed the dual sovereignty doctrine. See United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978) (Indian tribe and federal government are dual sovereigns); Rinaldi v. United States, 434 U.S. 22, 98 S.Ct. 81, 54 L.Ed.2d 207 (1977) (dictum) (dual sovereignty principle is inherent in the federal system). Unless and until the Supreme Court overturns Abbate, appellant‘s double jeopardy claim must fail.”
See United States v. Grimes, 641 F.2d 96, 101 n. 14 (3d Cir.1981).
(b)
Defendants alternatively argue that the Maryland common law proscription against double jeopardy should bar the state court prosecutions, even if the federal constitution does not. The
The first case relied on is King v. Roche, 1 Leach 134, 168 Eng.Rep. 169 (1775). In that case, Captain Roche was indicted for the murder of John Ferguson at the Cape of Good Hope on the coast of Africa. He was tried at the Old Bailey and filed both a plea of autrefois acquit and a plea of not guilty. The plea of autrefois acquit was based on the allegation that Captain Roche had previously been acquitted of the same murder by the Supreme Court of Criminal Jurisdiction in South Africa. The court agreed that, if the jury found true the defendant‘s allegation of former acquittal, “that finding would be a bar.” Nevertheless, the court held that both the plea in bar and the plea on the merits could not be submitted to the jury at the same time. The defendant thereupon withdrew the plea of autrefois acquit; the case was tried on the not guilty plea, and the defendant was acquitted. Although the decision in Roche‘s Case was based on a finding of not guilty, the report of the case does suggest that the common law double jeopardy prohibition was viewed as applicable despite the fact that the prosecutions were by different jurisdictions.
In Worthington v. State, 58 Md. 403 (1882), although the case did not involve a second prosecution for the same offense, this Court stated (58 Md. at 410):
“[i]f a party has committed a crime against the laws of two States we can perceive no good reason why he should not be punished in both States; and Mr. Bishop in his work on Criminal Law, sec. 136, very justly says, ‘to let him go free of punishment for the felony which he has committed against our laws because he had before committed a similar felony against the laws of another country, is to suffer foreign laws to suspend the action of our own.‘”
Many years later the issue was again discussed by this Court in State v. James, 203 Md. 113, 100 A.2d 12 (1953). In James, the defendant was convicted in Delaware in 1950 of criminal nonsupport. Later he moved to Worcester County, Maryland, where on March 3, 1953, he was indicted for failure to support his children from September 1, 1952, to the date of the indictment. The Circuit Court for
“If it be assumed that Delaware could punish the appellee for non-support from September 1, 1952 to March 3, 1953, either under the original order or by a new prosecution, the rule of double jeopardy would not bar prosecution here for violation of Maryland law. The same act may be a crime against two sovereignties, and, where it is, double jeopardy does not apply.”
The Court in James then cited, inter alia, Hebert v. Louisiana, 272 U.S. 312, 47 S.Ct. 103, 71 L.Ed. 270 (1926), and Jerome v. United States, 318 U.S. 101, 63 S.Ct. 483, 87 L.Ed. 640 (1943), both of which were also relied upon by the Supreme Court in Bartkus and Abbate. See also, Claybrooks v. State, 36 Md.App. 295, 306-307, 374 A.2d 365 (1977).
Therefore this Court has adopted, as a matter of Maryland common law, the dual sovereignty concept delineated in the Supreme Court‘s Bartkus and Abbate cases.
For the foregoing reasons, the circuit courts correctly rejected the defendants’ double jeopardy contention.
ELDRIDGE, Judge, concurring in part and dissenting in part.
In my view, the defendants’ motions to dismiss on double jeopardy grounds were properly denied insofar as the motions related to portions of the state indictment charging crimes which were clearly distinct from the federal offense under
The concept that successive prosecutions of the same defendant for the same offense are permissible as long as each prosecution is by a different “sovereign” was initially adopted in United States v. Lanza, 260 U.S. 377, 43 S.Ct. 141, 67 L.Ed. 314 (1922), as a Fifth Amendment precept, and reaffirmed in Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959), and Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959). The doctrine was
The two English cases discussed in the majority opinion, as well as earlier and later English and other authorities, establish that, as a common law principle, one could not be tried a second time for an offense if he had previously been convicted or acquitted of that offense, whether or not the first prosecution was by the same or by a different jurisdiction. See the authorities reviewed in Grant, The Lanza Rule of Successive Prosecutions, 32 Colum. L. Rev. 1309, 1318-1329 (1932). See, in addition, Fisher, Double Jeopardy, Two Sovereignties and The Intruding Constitution, 28 U.Chic.L.Rev. 591, 603-606 (1961); Harrison, Federalism And Double Jeopardy: A Study In The Frustration Of Human Rights, 17 U. Miami L.Rev. 306 (1963).
Neither the General Assembly nor any holding of this Court has changed this common law principle. The two cases quoted by the majority, Worthington v. State, 58 Md. 403 (1882), and State v. James, 203 Md. 113, 100 A.2d 12 (1953), did not involve successive prosecutions for the same offense.3 Furthermore neither those cases, nor any other
Finally, I would not today modify the common law rule. The purposes underlying the prohibition against successive criminal prosecutions for the same offense are just as applicable regardless of whether those prosecutions are by the same or different jurisdictions. As has been pointed out, “most free countries have accepted a prior conviction elsewhere as a bar to a second trial in their jurisdiction.” Abbate v. United States, supra, 359 U.S. at 203, 79 S.Ct. at 675 (Black, J., dissenting).
Notes
The federal indictment charged that Grandison “did unlawfully, knowingly and willfully ... agree” with Evans and others to injure Scott and Cheryl Piechowitz in the exercise of the federal right to be a witness, and that as “part of the conspiracy,” Grandison “solicited, induced and procured defendant Vernon Evans, Jr., to kill Scott Piechowitz and Cheryl Piechowitz to prevent them from testifying....” The state murder charges against Grandison were not based on the theory that Grandison had been a principal in the murders. Instead, the state capital murder charges were based upon Grandison being an accessory before the fact and upon
Thus, the essence of both the federal charge and counts one and two of the state charges against Grandison was that he had entered an agreement whereby the victims were to be killed by Evans to prevent their testimony. The federal and state charges against Grandison in these cases do not represent the traditional dichotomy between a conspiracy and the substantive offense. Under the so-called “concert of action rule” or “Wharton‘s rule,” one cannot be prosecuted both for a substantive offense and conspiracy to commit that offense where an agreement or the participation of two persons is a necessary ingredient of the substantive offense. Robinson v. State, 229 Md. 503, 513, 184 A.2d 814 (1962); Jones v. State, 8 Md.App. 370, 376 n. 5, 259 A.2d 807 (1969).
“If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same;
* * * * * *
“They shall be fined not more than $10,000 or imprisoned not more than 10 years, or both; and if death results, they shall be subject to imprisonment for any term of years or for life.”
Worthington cited no cases to support its dictum. James cited Rossberg v. State, 111 Md. 394, 74 A. 581 (1909), and Bloomer v. State, 48 Md. 521 (1878). Rossberg was a preemption case, relating to a local government‘s authority, and not a case involving successive prosecutions. Bloomer similarly did not involve successive prosecutions of the same defendant.As the Supreme Court pointed out in Anderson v. United States, 417 U.S. 211, 223, 94 S.Ct. 2253, 2262, 41 L.Ed.2d 20 (1974), “the gravamen of the offense under § 241 is conspiracy, [and] the prosecution must show that the offender acted with a specific intent to interfere with the federal rights in question.” Where death results in connection with the conspiracy, homicide does not appear to be an element of the charge under § 241. See United States v. Price, 383 U.S. 787, 791, 86 S.Ct. 1152, 1155, 16 L.Ed.2d 267 (1966). Even under the language added to § 241 in 1968, providing for life imprisonment “if death results,” a murder or a specific intent to kill is not an element of the offense; instead “deprivation of a constitutional right must be intended.” United States v. Purvis, 580 F.2d 853, 857 (5th Cir.1978). See United States v. Harris, 701 F.2d 1095, 1101 (4th Cir.1983), cert. denied, 103 S.Ct. 3554, 77 L.Ed.2d 1400 (1983) (no requirement “that the death be the direct and intended result of the violation“); United States v. Hayes, 589 F.2d 811, 820-822 (5th Cir.1979), cert. denied, 444 U.S. 847, 100 S.Ct. 93, 62 L.Ed.2d 60 (1979) (involving the identical language under
Consequently, the intent which the prosecution must prove under
On the other hand, in light of the prosecution‘s theory of the case, the conspiracy charged in count three of the state indictment would not seem to be distinct from the charge under
“It has not been deemed relevant to discussion of our problem to consider dubious English precedents concerning the effect of foreign criminal judgments on the ability of English courts to try charges arising out of the same conduct—dubious in part because of the confused and inadequate reporting of the case on which much is based, see the varying versions of Rex v. Hutchinson found in Beak v. Thyrwhit, 3 Mod. 194, 87 Eng.Rep. 124 (reported as Beake v. Tyrrell in 1 Show. 6, 89 Eng.Rep. 411, and as Beake v. Tirrell in Comberbach 120, 90 Eng.Rep. 379), Burrows v. Jemino, 2 Strange 733, 93 Eng.Rep. 815 (reported as Burroughs v. Jamineau in mos. 1, 25 Eng.Rep. 235, as Burrows v. Jemineau in Sel.Cas. 70, 25 Eng.Rep. 228, as Burrows v. Jemineau in 2 Eq.Ca.Abr. 476, and as Burrows v. Jemino in 22 Eng.Rep. 443), and explained in Gage v. Bulkeley, Ridg.Cas. 263, 27 Eng.Rep. 824.”
Justice Black, in his dissenting opinion in Bartkus, observed (359 U.S. at 156 n. 15, 79 S.Ct. at 698 n. 15):
“In England the doctrine that a foreign acquittal is a good plea in bar seems to antedate the American Revolution. See Rex v. Hutchinson, as reported in Beak v. Thyrwhit, 3 Mod. 194, 87 Eng.Rep. 124 (1689), and Burrows v. Jemino, 2 Str. 733, 93 Eng.Rep. 815 (1726), but compare the report of the same case in Gage v. Bulkeley, Ridg.T.H. 263, 27 Eng.Rep. 824 (1744); Rex v. Roche, 1 Leach 134, 135n, 168 Eng.Rep. 169, 169n (1775). Cf. Rex v. Thomas, 1 Sid. 179, 82 Eng.Rep. 1043; 1 Lev. 118, 83 Eng.Rep. 326, 1 Keb. 663, 83 Eng.Rep. 1172 (1664); 2 Hawkins, op. cit., supra, note 5, at 372. See also Rex v. Aughet, 26 Cox C.C. 232, 238 (C.C.A.1918); 10 Halsbury, The Laws of England (3d ed.1955), 405.”